There’s an old Canadian joke, which was once voted the ‘Most Canadian Joke Ever’ (mind you, it might not have faced much competition). An American, a Canadian, a Brit and a Frenchman walk into a bar. The barman (bizarrely) asks them each to write an essay about an elephant. The Frenchman writes about the elephant’s sex life. The Brit writes about the role of the elephant in colonial history. The American writes about the military use of the elephant (or perhaps, now, about the use of elephants to intercept telecommunications). And the Canadian writes: “The elephant: Does it fall within federal or provincial jurisdiction?”
Now, let’s add an EU law element. Say this group of boozy essay-writers is gathering in a bar in Luxembourg. An EU lawyer joins them. Inevitably, she writes her essay on ‘Which Treaty legal base regulates elephants?’ In fact, this is a genuine legal dispute, at least as regards trade in endangered elephants (does the Treaty rule on environment or on the common commercial policy apply?). And finally, the EU lawyer has brought along her German friend. He only agreed to come because the EU lawyer promised him that everyone would pay for their own drinks. But when he gets to the bar, he finds that the EU lawyer has successfully convinced everyone in Luxembourg that he has to pick up the whole tab for the evening.
While disputes over legal bases might appear to be a particularly arcane feature of EU law, they are usually manifestations of important disputes about how political power is exercised at EU level. Most often, the legal base dispute is really about the extent of the legislative power of the European Parliament, and/or the extent of Member States’ veto powers.
Today’s judgment on the legal base of the Directive on the exchange of information on driving offences is about two other issues, however: the extent of the Commission’s monopoly of initiative, and the scope of the opt-outs relating to EU Justice and Home Affairs (JHA) law.
This particular Directive was first proposed by the Commission back in 2008, with a legal base relating to transport. Discussions on this proposal were soon blocked by disputes as to whether it should instead have a legal base relating to police cooperation – which would then have entailed unanimous voting and mere consultation of the European Parliament (EP). However, following the entry into force of the Treaty of Lisbon in 2009, the decision-making procedure relating to transport law, on the one hand, and (most) EU rules on police cooperation, on the other hand, were governed by the same decision-making rules (the ordinary legislative procedure) as far as the Council and EP were concerned.
But two differences remained: the Commission shared its power of initiative with groups of Member States as regards criminal and police cooperation measures, but not as regards transport law (or any other aspects of EU law); and the UK, Ireland and Denmark have opt-outs from the former area of EU law, but not from transport law.
The Belgian Council Presidency, in the second half of 2010, relaunched discussions o the Commission’s proposal and soon reached an agreement in the Council. The following Presidency reached an agreement with the EP, and the Directive was adopted in 2011. The UK and Ireland chose to exercise their opt-out, while Denmark was automatically excluded.
In a nutshell, the Directive sets out a process for exchange of information between Member States as regards specified common driving offences, such as speeding and drunk driving. The subsequent use of that information is then left to the discretion of the State which has received it.
The CJEU’s judgment
The CJEU ruled entirely in favour of the Commission, holding that the Directive concerned only transport issues. However, it kept the Directive in force for a year, placing the EP and the Council under an obligation to negotiate a new text by the end of that period. The new measure will obviously apply to all Member States, given the absence of any opt-outs relating to transport matters.
According to the Court, applying the usual rule of examining both the aim and content of EU measures to determine their correct legal base, both the aim and content of this Directive concern transport policy. First of all, its aim was to ensure a high degree of road safety, and the prior CJEU case-law had established that road safety was an aspect of the EU’s common transport policy. As the Court pointed out, the Directive applied regardless of whether the offences were regarded as administrative or criminal under national law. It aimed to ‘induce more cautious behaviour’ by drivers, ‘thereby helping to reduce the number of casualties due to road traffic accidents’.
As for the content of the Directive, it regulated the access to vehicle registration data by each national authority, as well as the notification to the drivers concerned. It also provides for possible further proposals by the Commission in 2016: this is a veiled reference to reviving the Commission’s previous controversial proposals to harmonise the law on drunk driving across the EU (ie, setting a standard maximum level of blood alcohol content). So the Court ruled that the content of the Directive also pursued the objective of road safety.
The Court then rejected the argument that the Directive fell within the scope of the legal base on police cooperation. While the EU powers on this issue have a wider scope since the Treaty of Lisbon entered into force, this cooperation is still limited to cooperation by police and other law enforcement authorities as regards ‘the prevention, detection and investigation of criminal offences’ (Article 87(1)). Also, the police cooperation legal base had to be interpreted in light of the general objectives of EU JHA law, as set out in Article 67 TFEU, which include ensuring ‘a high level of security’ by means of ‘coordination and cooperation’ between police and other authorities, as well as criminal law measures.
With great respect, the Court’s judgment is not convincing; but neither is the argument defended by the Council and the EP, which was supported by seven Member States and Advocate-General Bot.
As for the judgment, while the Court is correct to say that the aim of the Directive is road safety, its analysis of the content of the Directive is problematic. In those Member States which enforce some or all of the driving offences in question by means of criminal law, the process of exchanging information set out in the Directive has the purpose of facilitating the application of prosecution and criminal penalties as regards the persons concerned. The Court ignored the Advocate-General’s point that the Directive draws upon the EU’s ‘Prum’ system for the exchange of information between police authorities.
While it is arguable that the Court was drawing a distinction between the exchange of information and the subsequent criminal process, such a distinction would not be convincing. The two aspects of criminal law are closely linked, and Article 87 TFEU expressly refers to the exchange of information.
In fact, the Court does not seem to draw such a distinction, relying only upon the aim of securing road safety, and the fact that exchange of information (the content of the Directive) supported this aim. This could be understood to mean that even a measure about the mutual recognition of criminal penalties relating to road traffic offences (such as the existing Framework Decision, referred to by the Advocate-General) falls within the scope of EU transport law, at least as far as transport is concerned. Moreover, logically this approach applies by analogy to criminal law measures related to other aspects of EU law, such as the internal market. As the Advocate-General pointed out, the existence of Article 83(2) TFEU, which provides for the power to adopt substantive criminal law relating to other EU policies, proves that ‘the border is not sealed’ between criminal law and the rest of EU law.
The Court’s reliance upon Article 67 TFEU is not convincing either. In fact, that provision is less precise than the legal base of Article 87, referring generally to ‘cooperation and coordination’, and not restricting the scope of the policing and criminal law aspects of the JHA Title expressly to criminal offences.
This brings us to the central flaw of the alternative argument. Both the Advocate-General and the EP stated that Article 87(1) TFEU was not limited in scope to ‘criminal matters’. No, but it is expressly limited in scope to ‘criminal offences’. (The Advocate-General went so far as to quote the wording of Article 87, leaving out these final two words). While some Member States apply criminal law to road traffic offences, others do not. This distinction is surely recognised by Article 67(1) TFEU (not quoted by the CJEU), which states that EU law on JHA matters must respect ‘the different legal systems and traditions of the Member States’.
The Council’s arguments did accept that the EU police cooperation measures had to be linked to criminal law, but asserted that ‘criminal’ law had a wide meaning, and that administrative procedure had to be regarded as criminal procedure. These arguments ignore the diversity of the Member States’ traditions in this field.
What approach should the EU legislature – and the Court – have taken? The Court’s analysis is flawed because it ignores the link between criminal law and road traffic offences in many Member States, while the Council and EP ignored the role which administrative law plays in many others. There is a way in which the EU could have attempted to deal with the issue of road safety, while taking account of the diversity of Member States’ systems. It could have adopted parallel measures relating to the different approaches to this issue, as it did when it adopted a Regulation on the civil law aspects of victim protection orders, following a Directive on the criminal law aspects of this issue.
Finally, as for the UK, its determination to opt out from this measure (which has now been frustrated by the Court) is hard to explain. Officially, at least, the UK opted out of the measure because it would was not consistent with the system applied in the UK (see the government’s explanation to the House of Commons EU Scrutiny committee). But the better course would have been to attempt to negotiate, within the context of the legislation, a different model for the exchange of information which (in accordance with Article 67 TFEU) took account of the specificities of the UK system but which still ensured that the valuable objective of the legislation would be secured in the UK. After all, surely UK citizens also quite rightly feel (in the Advocate-General’s words) ‘the sense of injustice that can arise from the impunity’ of foreign drivers not being penalised for road traffic offences committed in the UK.
One can only hope that the government did not opt out of the proposal purely in order to boast to those who oppose any EU role in criminal law under any circumstances that it had secured yet another opt-out. The safety of British drivers and pedestrians should not be undermined by the political objective of putting another notch in a Eurosceptic bedpost.
Barnard & Peers: chapter 5, chapter 25