Steve Peers

There’s a humorous anecdote about national stereotypes, where an American, a Canadian, a Brit, and a Frenchman are asked to write about elephants. The punchline highlights their different perspectives: the Frenchman focuses on the elephant’s mating habits, the Brit on its colonial significance, the American on its military uses, and the Canadian on whether the elephant falls under federal or provincial jurisdiction. This humorous scenario underscores how jurisdictional issues are central to Canadian identity.

Let’s imagine this group joined by an EU lawyer in Luxembourg. She would likely ponder which EU treaty governs elephants, reflecting a common legal debate. This hypothetical situation mirrors real-life disputes, such as the legal basis for regulating trade in endangered elephants. Adding another layer, let’s say the EU lawyer brings a German friend who ends up covering everyone’s expenses due to her persuasive skills.

While seemingly obscure, debates about legal bases in EU law often reflect broader power struggles within the EU system. These disputes often center around the legislative authority of the European Parliament and the veto powers of individual member states.

Today’s ruling on the legal basis of the Directive concerning the sharing of information about driving offenses deals with two distinct issues: the Commission’s exclusive right to propose new laws and the opt-out provisions for EU Justice and Home Affairs (JHA) law.

Proposed in 2008, this Directive initially faced obstacles due to disagreements over whether it should fall under transport or police cooperation, the latter involving unanimous voting and limited involvement of the European Parliament. The Lisbon Treaty, enacted in 2009, streamlined the decision-making process for both transport and police cooperation, subjecting them to the ordinary legislative procedure within the Council and EP.

However, two key distinctions remained. Firstly, in matters of criminal and police cooperation, the Commission shared its power to initiate legislation with groups of Member States. This wasn’t the case with transport or other EU law areas. Secondly, the UK, Ireland, and Denmark could opt out of EU laws related to criminal and police cooperation, but not those related to transport.

During the latter half of 2010, the Belgian Council Presidency revived discussions on the Commission’s proposal, leading to agreements within the Council and with the EP. The Directive was adopted in 2011, with the UK and Ireland exercising their opt-out rights and Denmark being automatically excluded.

In essence, the Directive establishes a framework for EU Member States to exchange information regarding specific driving violations, such as speeding and driving under the influence. The way this information is used is left to the discretion of the receiving Member State.

The CJEU’s Judgment

The Court of Justice of the European Union (CJEU) sided entirely with the Commission, asserting that the Directive solely pertained to transport matters. However, it granted a one-year extension for the Directive to remain in effect, obliging the EP and the Council to collaborate on a revised text within that timeframe. This new measure would be applicable to all Member States, as there are no opt-out clauses for transport-related issues.

The Court maintained that both the objective and content of EU legislation should be considered when determining its legal foundation, and in this case, both aspects clearly aligned with transport policy. The Directive’s goal, as established by earlier CJEU rulings, was to ensure road safety, a key aspect of the EU’s shared transport strategy. It aimed to encourage safer driving practices to decrease road accidents and fatalities, irrespective of whether these violations were classified as administrative or criminal offenses under national law.

The Court pointed to the Directive’s stipulation that each national authority should have access to vehicle registration data and that drivers must be notified as evidence of its content aligning with road safety objectives. It also highlighted the possibility of the Commission proposing further measures in 2016, indirectly referencing previous contentious proposals to harmonize drunk driving laws across the EU by setting a standard maximum blood alcohol content.

The Court dismissed the argument that the Directive belonged under police cooperation, stating that while the EU’s authority in this domain has broadened since the Lisbon Treaty, such collaboration remains limited to police and law enforcement agencies working together on the ‘prevention, detection and investigation of criminal offences’ (Article 87(1)). Furthermore, it argued that the legal basis for police cooperation should be interpreted considering the broader goals of EU JHA law as outlined in Article 67 TFEU, which emphasizes ‘a high level of security’ through ‘coordination and cooperation’ among police and other authorities, including criminal law measures.

Comments

With due respect, the Court’s ruling is unconvincing, as is the counter-argument presented by the Council and EP, which was backed by seven Member States and Advocate-General Bot.

While the Court is right to say that the Directive aims to improve road safety, its evaluation of the Directive’s content is flawed. In Member States where some or all driving offenses are criminal offenses, the information exchange facilitated by the Directive is meant to help prosecute and penalize offenders. The Court disregarded the Advocate-General’s point that the Directive relies on the EU’s ‘Prum’ system, which allows police forces to share information.

Although the Court could argue that it was differentiating between information exchange and subsequent legal action, this distinction wouldn’t be persuasive. The two aspects of criminal law are intertwined, and Article 87 TFEU explicitly mentions information exchange.

The Court, however, doesn’t seem to make this distinction, focusing instead on the goal of enhancing road safety and the fact that the Directive’s content (information exchange) contributes to this goal. This implies that even measures related to the mutual recognition of criminal penalties for traffic violations, such as the existing Framework Decision mentioned by the Advocate-General, are covered by EU transport law. Furthermore, this reasoning could be applied to criminal law measures in other areas of EU law, like the internal market. As highlighted by the Advocate-General, Article 83(2) TFEU, which empowers the adoption of substantive criminal law connected to other EU policies, demonstrates that there’s no strict separation between criminal law and other EU law areas.

The Court’s reliance on Article 67 TFEU is also unconvincing. This provision is less clear than Article 87’s legal basis, referring broadly to ‘cooperation and coordination’ without specifically limiting the scope of policing and criminal law aspects under the JHA Title to criminal offenses.

This leads to the fundamental problem with the opposing argument. Both the Advocate-General and the EP asserted that Article 87(1) TFEU’s scope wasn’t limited to “criminal matters.” However, it is clearly limited to “criminal offenses”. (The Advocate-General even went so far as to quote Article 87 while omitting these last two words). While some Member States treat traffic violations as criminal offenses, others don’t. This distinction is recognized by Article 67(1) TFEU (which the CJEU didn’t cite), which states that EU law on JHA matters must respect the “different legal systems and traditions of the Member States”.

The Council’s arguments acknowledged that EU police cooperation measures had to be tied to criminal law but claimed that ‘criminal’ law had a broad definition, encompassing administrative procedures. These arguments fail to consider the diverse legal traditions among Member States in this domain.

What approach should the EU legislature – and the Court – have adopted? The Court’s analysis is flawed because it disregards the connection between criminal law and traffic offenses in many Member States. On the other hand, the Council and the EP failed to consider the significant role of administrative law in other Member States. To address road safety while respecting the diversity of legal systems, the EU could have adopted parallel measures reflecting these different approaches. It employed a similar strategy when it enacted a Regulation on civil law aspects of victim protection orders, which followed a Directive on its criminal law aspects.

Finally, the UK’s decision to opt out of this measure (a decision now thwarted by the Court) is difficult to justify. The UK’s official explanation (provided to the House of Commons EU Scrutiny Committee) was that the measure was incompatible with the UK’s existing system. A more constructive approach would have been to advocate, during the legislative process, for an alternative model of information exchange that acknowledged the specific characteristics of the UK system while still achieving the legislation’s core objective. After all, UK citizens likely share the Advocate-General’s view that it’s unjust for foreign drivers to escape penalties for traffic violations committed within the UK.

One can only hope that the government’s decision to opt out wasn’t solely motivated by a desire to appease those who oppose any EU involvement in criminal justice matters by securing another opt-out. The safety of British drivers and pedestrians should not be jeopardized for the sake of political maneuvering aimed at scoring points with Euroskeptics.

Barnard & Peers: chapter 5, chapter 25