Wednesday, 7 February 2007

Giving Ministers the power to decide EU crimes and penalty

Government Ministers and the EU to be given power to decide to have Irish citizens fined and imprisoned without any need for Oireachtas permission – a Power grab by the Government and Ministers      

The European Communities Bill 2006, which has its second reading in the Dail on tomorrow, Thursday,  proposes the most important ever amendment to the European Communities Act 1972.  This is  the Act which enables Ministerial regulation to  incorporate  European laws into the domestic law of the State.  

Section 3  of the 1972 Act states that “regulations under this section shall not create an indictable offence.”  Section 2 of the Bill before the Dail tomorrow proposes to delete this section and  thereby  give the Government and Ministers sweeping power to decide henceforth what shall be criminal offences for Irish citizens under EU law,  and what penalties shall attach to committing them, up to €500,000 fines and 3 years imprisonment.

For the first time ever  this Bill would give Ministers the power to agree to an EU-wide criminal code,  if that  should be considered necessary to enforce EC law in every area of supranational policy.  It would give Ministers the power  to decide themselves, without reference to the Oireachtas, what penalties should attach to breaches of such a code. 

To be blunt about it, this Bill proposes to give Ministers powers comparable  to those which governments have under dictatorships, where there is no need to consult, not to mind get the permission of, elected Parliaments in deciding what are crimes and penalties.  

No one knows that the EU Council of Ministers may decide by  majoirity vote to regard as a crime in future. The Bill as it stands goes well beyond what is needed to comply with EU/EC legislation.  It represents a significant shift of power from the legislative arm of the State, the Oireachtas, which is elected by the people,  to its executive arm, the Government and Ministers, and of course from the Oireachats to the EU/EC. 

In addition, Sections 3 and 4 of the Bill  would  give wide powers to Ministers to alter the primary legislation of the Oireachtas,  and to do this retrospectively, as long as Ministers can claim that this is necessary to enforce EC laws. 
  Even if one accepts that the EU Council of Ministers may decide by majority vote what constitutes an EC crime and that a penalty should attach to it, it  should be  for the Oireachtas and other national Parliaments to decide what that penalty should be – unlike what is provided  for in this Bill.

People concerned about democracy and civil liberties will surely agree that it is desirable also that Ministers should be required to notify the Oireachtas in advance of any proposal to attach a penalty to  a breach of European law in each particular policy area where EU crimes and sanctions might arise.  Instead  Section 2 of this Bill  proposes to give blanket permission to Ministers  to decide what constitutes offences and penalties for Irish citizens over the vast area of EC public policy for the indefinite future.

This Bill marks a watershed in Ireland’s relations with the EU. It  gives carte blanche to Ministers to elaborate an EU criminal code potentially covering vast areas of  EU policy, and to decide when Irish people may be locked up and  fined, without the Dail or Seanad  having to  give their assent.

Anthony Coughlan
Tel.: 01-8305792  

COPY OF ARTICLE FROM "VILLAGE MAGAZINE", 8 DECEMBER 2005, giving  some of  the background to this Bill   (article extended slightly)


The power of the EU over our lives has been dramatically extended by a recent judgement of the European Court of Justice(ECJ) in Luxembourg that has got remarkably little  attention in Ireland.

In September 2005 the Court ruled that the EU had the right to create pan-European criminal offences for breaches of EU law, which Member States would have to implement even if they are opposed to such criminal sanctions.

This ECJ judgement opens the door to the creation of a body of supranational EU criminal law for the first time. This had been proposed in the EU Constitution which the French and Dutch rejected last summer, but the September judgement brings it into being anyway.
It signals a major shift of power from national capitals to the EU.

For the first time in legal history this judgement permits the EU rather than its Member States to lay down sanctions such as prison sentences and fines for citizens violating EU laws. As a consequence Member States lose their exclusive power to decide what constitutes a crime, and when their citizens may be fined, imprisoned or given criminal records. Member States are thereby deprived of one of the classical prerogatives  of all independent sovereign States.

"This is a watershed decision," said Commission President Manuel Barroso in greeting the ECJ judgement. The Commission lost no time in jumping in with a document on 23 November that listed seven areas which it said should become EU crimes immediately: private sector corruption, credit card and cheque fraud, counterfeiting euro notes and coins, money laundering, people trafficking, computer crime and marine pollution.

The Commission suggested that possible future EU crimes could be be corruption in awarding public contracts, racial discrimination and incitement,intellectual property theft and trafficking in human organs and tissues. Legal commentators  have suggested that financial services, consumer protection law, health and safety rules for factories and offices, the CAP,fisheries policy, transport and trademarks could become further fields of application f
or EU crimes and penalties in time and require significant  harmonization of national  criminal codes in these areas.

At present it is up to Member States to decide whether to use criminal  sanctions to enforce EU laws or not, and what those sanctions should be. Thus Ireland decides that if fishermen violate EU fisheries laws they may be fined, have nets confiscated and so on. The ECJ judgement permits the EU to decide what will be EU crimes in future, and how Irish and other citizens should be punished for committing them.

It is surely remarkable that 50 years after the Treaty of Rome the Court of Justice should claim such a power for the EU.  Although the ECJ judgement related to environmental matters, it means that the EU can in principle attach supranational criminal penalties henceforth to breaches of EU law going back to the original Treaty of  Rome, so long as the Commission proposes and the Council of Ministers agrees by majority vote that cross-EU criminal penalties are necessary and should apply.

The ECJ judgement was given in a dispute between the Commission, supported by the European Parliament, and the Council of Ministers as regards their respective powers. The Commission contended that it could propose criminal sanctions for breaches of EU law and have them agreed by majority Council vote. The majority of the "old Europe" 15 on the Council of Ministers, including the Irish Government, contended that imposing criminal sanctions for breaches of EU law required unanimity,so that each Member State retained a veto.

Eoin Fitzsimons SC represented Ireland in the case.

The Court came down on the Commission’s and Parliament’s side, as it generally does as regards anything that expands EU powers further. One of the ECJ’s own judges, Pastorino, once characterised the ECJ as a "court with a mission" -  that mission being to  increase the powers of the EU to the utmost by means of its interpretation of the European treaties.

The Commission, Court and Parliament share this common aim; for all increases in EU power increase the powers of these supranational institutions and the power of the judges, bureaucrats and MEPs that compose them.  The EU Member States, their governments, parliaments and citizens lose power correspondingly.

Henceforth a Member State that opposes a breach of a particular EU law being made into a crime, or opposes the level of EU penalty attached, will still have to introduce it if a sufficient number of other EU States vote for it.  In principle the new legal  position would allow the EU to compel Ireland to jail or fine its citizens for doing things that the Irish Government and Oireachtas did not consider a crime – improbable though that may seem at present.

Commission officials are reported as saying that in future they will draft tests to decide if offences against EU laws are civil, administrative  or criminal.

In this way 25 non-elected EU judges, together with the 25
non-elected EU Commissioners, have  increased their power over all of us in what amounts to a judicial coup d’etat against democratic
national governments and the citizens that elect them.

AN ECJ-Coup: Gargani Slips Past Colossal Implications (3.2.06)

In the European Parliament on 30 January2006, EPP-MEP Giuseppe Gargani unveiled – to the Legal Affairs Committee (JURI) – his report, on "the judgement (C-176/03) of the European Court of Justice" (ECJ)

C-176/03 was the ECJ-judgement, which proclaimed the EU’s authority to legislate in areas, where, in the words of the EU’s Council-President, Wolfgang Schssel, "the EU-treaties specifically forbade the EU to legislate."

The Gargani-report begins with a "Motion for a European Parliament Resolution", an abridged version of which follows.  Square brackets show omissions and additions and comments are added in bold.

"The European Parliament, []
– having regard to the judgement of the Court of Justice of the European Communities of 13 September 2005 []
– whereas the effective implementation of Community law is [] a fundamental obligation of Member States []
– whereas [] the Court of Justice has repeatedly established that [] the effective implementation of Community law may involve criminal penalties,
– whereas [] the Court of Justice [] has stated that [] when the application of effective, proportionate and dissuasive criminal penalties is essential for combating serious environmental offences [] the Community legislature [may take] measures, relating to the criminal law of Member States, which it considers necessary to ensure that the rules it lays down on environmental protection, are fully effective,
– whereas [on 23.11.05] the [EU-]Commission sought to extend the conclusions of the Court of Justice [] to all other areas of Community competence also, and not just those relating to environmental policy [and]
– having regard to [] the legitimacy [as decided unilaterally by the ECJ!] of including criminal provisions in legislation adopted under [] Community law,
Welcomes the abovementioned judgement of the Court of Justice []
Is pleased that the Court of Justice [] confirms that the European legislature may adopt [] any criminal provisions necessary to ensure that the rules - in this instance, on environmental protection – are fully effective [emphasis added]
Is delighted that the Commission [] sought to extend the conclusions of the Court of Justice to every other field falling within the scope of the first pillar [i.e. of Community law] [which is just about everything one can think of]
Reminds the Commission that reviewing Community legislation [in this light] must not involve sacrificing the democratic input, provided by [the EU-]Parliament, to the process of European integration [for what else is there, it is implied, to input to?]
Notes, however, that [] a directive cannot of itself, and independently of a national law adopted for its implementation, have the effect of determining the liability of persons who act in contravention of that directive;
[We should note, however, that EU-member governments have no choice but to pass EU-directives into national law]

Notes that this power of the Community legislature [] may not also determine the type and severity of penalties imposed []"  (Yet the Irish Government’s European Communities Bill 2006  would give this power to Ministers.  Also one should note that under several of the above provisions (e.g. when deciding what is "effective, proportionate" etc) the ECJ may do this.  Could there be a more slippery slope to the seizure of absolute power?)