Local view for "http://purl.org/linkedpolitics/eu/plenary/2003-09-01-Speech-1-094"
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"en.20030901.7.1-094"2
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".
Mr President, Commissioner, ladies and gentlemen, the Committee on Legal Affairs and the Internal Market did me the honour of asking me to draft an own-initiative report on legal bases and compliance with Community law.
The title of the report is not accurate. I would say it is slightly misleading. It is in fact about the huge issue which is troubling the Council, the Commission and the European Parliament with contradictory positions and which has to do with investigating potential legal bases for the jurisdiction of the European Union to make provision for criminal sanctions for certain serious violations of Community law.
There is a large divergence of opinion about if and to what extent this sort of activity can be legislated. In order, therefore, for us to have a substantiated report, I proposed and the Commission agreed to hold a public hearing with rapporteurs expressing the various tendencies. I should like to express my thanks for their contribution and to inform the House that the report was based on the points on which we appear to more or less agree. The common objective of all of us must be the effective application of Community provisions, but with solutions which will be reliable, because our main concern is to create legal certainty.
I would also remind you that the issue of criminal sanctions for serious infringements of Community law was also raised in the past in connection with legislative proposals concerning environmental protection, protection of the Community’s financial interests, safeguarding intellectual property rights, pollution at sea and pollution offences in general.
This is a rather complicated issue from a legal point of view. It is further complicated by the distinction between the three pillars. The report concentrates on the issue of legislating criminal sanctions in the first pillar. In order to make the problem understandable, I have confined myself to raising the basic question to which the report gives a positive answer, in other words the extent to which the Community can impose an obligation on the Member States to make provision for criminal sanctions for serious infringements of Community law. This is the so-called mixed method, whereby the Community imposes an obligation on the Member States to make provision for criminal sanctions for this specific issue.
We confined ourselves to this method because it appears to attract a great deal of agreement. By contrast, the purely Community method of making direct provision for criminal sanctions under Community law, a sort of communitisation of criminal law, comes up against serious legal objections which start from the fact that there is no clear legal basis in the Treaty for this issue, that criminal sanctions form part of the national sovereignty of the Member States and that criminal justice is an integral part of national culture. In addition, the objection is also advanced that criminal sanctions are linked to restrictions on individual rights, which presupposes a fully constitutionally coordinated state, not an imperfect legal order with the obvious financial elements and democratic deficit of the European Union.
In all events, even if the purely Community method were accepted, it would be confined to making provision for one criminal sanction. It does not appear to have jurisdiction to impose the sanction in this specific case. As regards the so-called national method, which means the right of the states to make provision for criminal sanctions for cases of infringement of Community law, this does not create problems. The states are at liberty to follow this method. However, the sanction needs to be of an effective, proportionate and deterrent nature. It would even become clear that it was not thus concerned with the issue of the harmonisation of criminal law and sanctions, for which only the third pillar can be used and only in specific cases. With the constitution being drafted, these issues will have a new basis. The position of the report on the basic question I referred to above, in other words if the Community can impose an obligation on the Member States to make provision for criminal sanctions, is that the Community legislator has the legal capacity to demand this of the Member States. To be specific, it accepts the principle of safeguarding the law formulated in Article 10 of the EC Treaty; in other words, the obligation of the Member States to ensure that violations of Community law attract effective criminal sanctions. Consequently, as we acknowledge such an obligation on the part of the states, we should also acknowledge the Community legislator’s capacity to make provision for similar obligations, at least for serious infringements of Community law.
Thus, the report clarifies that, in order for such a Community initiative to be legal with the law as it stands, it must only be exercised in cases in which this is the only way to safeguard effective compliance with Community provisions.
Finally, the report also proposes that the European Commission, in its capacity as guardian of Community interests, should be able to lodge complaints or bring civil actions, at least in cases where the Member States are accorded an equivalent right. It is encouraging that the Constitutional Convention is on the same wavelength, with final proposals from the motion for the resolution, as can be seen from articles Ι-13, ΙΙΙ-65 and ΙΙΙ-172. Once the new Treaty applies, we shall have to re-examine this issue."@en1
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