Ersatzs indignation

One does not wish to disagree with the thrust of any publication issued by the Bruges Group – which we actively support – but nevertheless feel impelled to take up cudgels against its latest pamphlet, "Another slice of the Salami: How the European Criminal Code is being introduced by stealth".

Written by Gawain Towler of the EU parliament Ind/Dem Group, he argues that:

A technical decision made by the European Court of Justice has turned the constitutional development of all EU member states on their head. The Commission has taken upon itself the right to overrule both the European Parliament and the Council of Ministers by reference to judgements of the highly partisan and activist European Court of Justice (ECJ). In this way the executive and the judiciary have coalesced to destroy the balance of power within the European Communities.

However, as we pointed out in an earlier post, there is actually nothing new in the thrust of the ECJ judgement, which re-affirms the right of the commission to propose penalties in respect of legislation coming within its areas of competence.

And, as we wrote in that earlier post, it has always been implicit in the EU treaties that member states should adopt appropriate and proportional penalties, applicable to their citizens, for failures to comply with EU law transposed into their own legal codes. After all, if member states adopted the laws but imposed no penalties, the laws would have no effect.

To reinforce this very point, in the draft Council Directive "on Community measures for the control of avian influenza", which was debated in the Commons European Sub-Committee A yesterday, we see in Article 62, headed "Penalties", with the following words:

Member States shall lay down the rules on penalties applicable to infringements of national provisions adopted pursuant to this Directive and shall take measures necessary to ensure that they are implemented. The penalties provided must be effective, proportionate and dissuasive.

And just in case this is thought to be influenced by the recent ECJ decision, take any directive at random, for instance Directive 2002/95/EC on "the restriction of the use of certain hazardous substances in electrical and electronic equipment", and we see very similar wording, viz, Article 8, also headed "Penalties":

Member States shall determine penalties applicable to breaches of the national provisions adopted pursuant to this Directive. The penalties thus provided for shall be effective, proportionate and dissuasive.

Thus, while we counselled earlier that Eurosceptics should enjoy the outrage engendered in the media at the realisation that the EU – in this case the commission - was creating criminal penalties, it should be tempered by the knowledge that, ever since we joined the EEC in 1972, this has always been the case.

Over term, our membership of the "Community" has given rise to thousands of new criminal offences which exist on our stature book only because we were told to put them there. Thousands, if not hundreds of thousands of people subsequently have been convicted of such offences, by British magistrates and judges, sitting in courts under the Royal Coat of Arms.

That is the true scandal, and ersatzs indignation over a technical judgement simply obscures the more important fact that, for decades now, we have allowed the EU free reign to create so many criminal penalties, imposed by British judges in British courts.

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