Ceci n'est pas une pipe

One of the great or, at least, famous images of modern art: René Magritte’s 1929 painting of a pipe with the writing under it: Ceci n’est pas une pipe (This is not a pipe). Without going into any of the artistic and symbolistic, not to mention post-modernist conceptual discussions of the work (which, I must admit, always makes me smile), it is something to consider as one looks at the latest ECJ decision and the comments on it.

In particular, I was interested to read that Commission lawyers are insisting, "we are not creating a community criminal code". Well, as my colleague says, what's this, scotch mist?

The ECJ has ruled that the Commission will now have the right to make governments apply sanctions against companies that break EU environmental laws. To arrive at this decision the ECJ has overturned a framework decision taken by the Council of Ministers, which reserved the member states' right to impose sanctions.

According to the ECJ press release:

“The Commission claimed that the aim and content of the Framework Decision are within the scope of the European Community’s power on the environment as provided for in the EC Treaty. Accordingly, the Framework Decision could not be adopted on the basis of the provisions of the Treaty on European Union concerning police and judicial cooperation in criminal matters. In environmental matters, the Commission initiates the legislative procedure that involves, among others, the European Parliament.”

But heck, this is not creating a community criminal code, despite the fact that it is serious move into criminal legislation. This, as lawyers are already arguing, will be a dangerous precedent for other issues such as breaches of EU internal market, data protection laws and intellectual property rights.

The Court further pronounced:

“The Court observes that the protection of the environment constitutes one of the essential objectives of the Community and that environmental protection requirements must be integrated into the definition and implementation of the Community’s policies and activities.”

I must admit I do not remember being told that the protection of the environment was one of the essential objectives of the Community at any stage and it does make one wonder what else the Court might decide is on that list.

Needless to say, we have had the usual spate of comments from various well-known and not so well-known personalities. Commission President Barroso explained

“This court judgement breaks new ground, it strengthens democracy and efficiency in the EU.”

One wonders how the Commission President would define democracy. Or, for that matter, efficiency if he thinks this kind of top heavy centralization leads to that.

Of course, we still do not know how the whole thing will work in practice but there has been some rejoicing among some MEPs (the less well-known individuals).

The Lib-Dim Chris Davies has been rejoicing:

"It is unacceptable for some EU states to try and sidestep the law in order to gain a competitive advantage over their partners.

"Europe needs an umpire to ensure fair play between member states and to dismiss the cheats. The European Commission is the only body that comes close to fitting that role and this court ruling gives it more teeth with which to bite."

Well, goodness me, one must not have competitive advantages. One rather wonders how all this will affect the new members who are already finding it hard to accommodate the many unnecessary and inappropriate environmental regulations, based as they are too often on precautionary prejudice rather than scientific evidence.

Also, one rather wonders (what a lot of wondering one is doing) about his definition of an umpire. The Commission is claiming the right to direct the criminal enforcement in member states.

Just to make it quite clear, the ECJ press release concludes with these words:

“Since the Framework Decision encroaches on the powers which the EC Treaty confers on the Community and thereby infringes the Treaty on European Union,which gives priority to such powers, the Court annuls that decision in its entirety.”

There is, however, another aspect of the whole saga to consider. Just recently, it looked as if the Council was winning the tug-of-war for power in the EU over the Commission. This decision and its possible ramifications, pushed matters in the other direction.

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