Case C-43/12 Commission v Parliament and Council: Legal basis, opt out

There were nearly 30 000 deaths caused by road traffic accidents in the EU in 2012 (see table showing the evolution of road fatalities here. That’s a lot.

The Court of Justice’s judgment in Case C-43/12 Commission v Parliament and Council EU:C:2014:298 shows that attempts to put in place effective legislation to reduce the number of fatalities are frought with legal difficulties.

A reduction in the number of deaths requires, among other things, an effective system of punishment of road traffic offences. Consequently, the Commission, back in March 2008, proposed to  the Parliament and the Council to adopt a directive seeking to facilitate the exchange of information concerning certain road traffic offences and the cross-border enforcement of the sanctions. The legal basis chosen by the Commission was Article 91(1)(c) TFEU (then Article 71(1) EC) which relates to transport safety. On 25 October 2011, the Parliament and the Council adopted Directive 2011/82. They changed the legal basis, however, to Article 87(2) TFEU which relates to police cooperation. Importantly, Denmark, Ireland and the United Kingdom could opt out of applying the Directive, which they chose to do.

The Commission sought the annulment of the Directive claiming it had been adopted on the incorrect legal basis.

The Court of Justice upheld the challenge of the Commission and annulled the Directive.

The Court recalled its well established case law on legal bases according to which the choice of legal basis for a EU measure must rest on objective factors that are amenable to judicial review; these include the aim and content of that measure (Case C‑411/06 Commission v Parliament and Council EU:C:2009:518, paragraph 45 and Case C‑130/10 Parliament v Council EU:C:2012:472, paragraph 42).

If  the measure pursues a twofold purpose or that it has a twofold component and if one of those is identifiable as the main or predominant purpose or component, whereas the other is merely incidental, that measure must be based on a single legal basis, namely that required by the main or predominant purpose or component (Case C‑137/12 Commission v Council EU:C:2013:675, paragraph 53).

On examination of the content of Directive 2011/82/EU, the Court found that its main aim is to improve road safety which is a prime objective of the EU’s transport policy.

The Court recalled that it had already held that measures seeking to improve road safety are part of transport policy and may therefore be adopted on the basis of Article 91(1)(c) TFEU in so far as they are ‘measures to improve transport safety’ within the meaning of that provision (Joined Cases C‑184/02 and C‑223/02 Spain and Finland v Parliament and Council EU:C:2004:497, paragraph 30). Consequently, since, both in respect of its aims and its content, Directive 2011/82 is a measure to improve transport safety within the meaning of Article 91(1)(c) TFEU, it should have been adopted on the basis of that provision.

The Court goes on to deal with the argument of the Council and the Parliament that the Directive could validly be adopted on the basis of Article 87(2) TFEU.

It gives two reasons for rejecting that argument.

First, while, since the Lisbon Treaty, the scope of police cooperation is greater than under the former Article 30 of the TEU, the fact remains that, as provided for in Article 87(1) TFEU, that cooperation continues to concern the competent authorities of the Member States, including the police, customs and other specialised law enforcement services of the Member States ‘in relation to the prevention, detection and investigation of criminal offences’.

Second, Article 87(2) TFEU must be understood in the light of the ‘General Provisions’ of Chapter 1 of Title V of Part Three of the FEU Treaty, in particular Article 67 TFEU, which opens that chapter and provides, in paragraph 2, that the European Union ‘shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control’ and, in paragraph 3, that it ‘shall endeavour to ensure a high level of security through measures to prevent and combat crime, racism and xenophobia, and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws’.

The Court held that Directive 2011/82, in the light of its aim and its content is not directly linked to the objectives referred to in Chapter 1 of Title V of Part Three of the FEU Treaty.

While the Court annuls the Directive it limits the effects of the annulment so that the present Directive can remain in force for a period of twelve months at the longest until a new directive is adopted on the correct legal base, namely Article 91(1)(c ) TFEU (For a judgment on the limitation of the temporal effects of a preliminary reference judgment, see Maria’s post here).

Another consequence of this judgment – not mentioned in it – is that the new directive when adopted will be EEA relevant (because it will be a transport policy matter) and must then be implemented by Iceland, Liechtenstein and Norway.

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