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Heat and no light

Posted by Richard Wednesday, September 14, 2005

This morning, The Times, in particular, goes to town with the story on the ECJ ruling, extending criminal penalties to environmental law, with a front-page article and a leader.

On the back of our post yesterday, the story is also covered in The Telegraph, in The Guardian and The Independent.

Reviewing the various press comment, it is clear that all the reporters and editorial writers are having difficulty in understanding what, in fact, is an extremely complex issue, and are also demonstrating their basic lack of understanding of the nature of the European Union.

The Times, for instance, complains that the EU Commission "is not a sovereign power but a civil service executive, supposedly appointed to serve EU common interests", while The Telegraph describes the commission as "an unelected bureaucracy", both thereby expressing a sense of surprise and even outrage at the events that have come to pass.

In a sense, this is chickens coming home to roost, the failure to understand that the commission is a government, a power in its own right. Furthermore, within the areas or "competences" defined in the treaties, it is a supranational government, with superior powers over member states, which are subordinate to it.

That said, the actual judgement – serious enough in its own right - has been overblown. The situation is not as The Independent describes it, that "Europe may impose criminal penalties for breaching EU law", and The Times headline is way off the mark with its: “Europe wins the power to jail British citizens”. The Guardian is closer to the mark with: "Brussels wins right to force EU countries to jail polluters", as is The Telegraph, with "EU laws could be enforced by prison".

Even these latter two headlines, however, do not actually convey what is happening, and has already happened. Within the treaties, there has always been a requirement that member states enforce community law. Much (in fact most) of the EU law transposed into UK law comes within the criminal code and thereby makes provision for custodial sentences.

The issue here, therefore, is something different. We are actually dealing with a dispute between the Council and the Commission, the former having decided that the power to determine minimum penalties for environmental law resides with it – the ministers of the member states acting collectively as a community institution.

In this, the Commission disagreed, arguing that, since the environment is wholly a community competence, the power to decide penalties resides not solely with the Council. It must fall within the institutional framework, where the nature of the penalties must, in the first instance, be proposed by the commission and then approved, under the co-decision procedure, jointly by the Council and the EU parliament.

What this boils down to, therefore, is a turf war, where the Commission has come head-to-head with the Council, arguing about the powers held by the different institution. In this instance – as so often – the ECJ has come down on the side of the Commission.

In so doing, the ECJ is probably entirely correct, as it acknowledges that reality of what the member states had conceded when they gave the commission the power in the first place – that they had turned it into a government with the right to propose our laws.

As to the end result, for the putative offender, nothing has changed – it is only of academic importance whether they are sent to jail as a result of a Council "framework decision" or a directive of the Council and European Parliament. The fact is that British people have, ever since we joined the Common Market, been subject to EU law and some have been sent to jail as a result, and will continue to be locked up for breaking it.

Our newspapers, therefore, have generated great heat, but little light.

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