EU powers extended

A recent judgement at the European Court of Justice represents judicial coup d'etat against democratic national governments and the citizens that elect them, writes Anthony Coughlan

THE POWER of the EU over our lives was dramatically extended by a recent judgement of the European Court of Justice (ECJ) in Luxembourg. It has receieved remarkably little public attention in either Ireland or Britain.

The EU court ruled recently 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 were opposed to such criminal sanctions. This EU court 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 EU court now brings it into being anyway. It signals a further 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 aconsequence 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 independent sovereign states.

"This is a watershed decision,"said Commission president Manuel Barroso, in greeting the Luxembourg court judgement. The Commission lost no time in jumping in with a document last November listing 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.

It suggested that possible future EU crimes could 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 for EU crimes and penalties in time and require significant harmonisation 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 can 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 truly remarkable that 50 years after the Treaty of Rome the Court of Justice should claim such a power for the EU. Although the court 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-EUcriminal penalties are necessary and should apply.

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 the Irish or British governments to jail or fine their citizens for doing things that the Dail or House of Commons did not consider a crime. 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.