ECCE BRUSSELS BRIEF

A decision by the Grand Chamber of the European Court of Justice which has struck down a Council framework decision on environmental protection through criminal law because it could have been done under regular Treaty powers on environment rather than Council's exceptional powers to act alone: judgment (C-176/03) has been referred to as a ‘landmark decision’.

The European Court of Justice in Luxembourg decided that the competences of the European Community to protect the environment also include the power to require Member States to ensure such protection through criminal sanctions for serious offences. The Court annulled a Council Framework Decision adopted in 2003, reserving this competence to an intergovernmental decision under the “third pillar”[1]. In this way the Court supported the position of the European Commission. The judgement concerns a particular environmental legislation, but it is considered that this case sets an important precedent for Community law in general.

In March 2001, the Commission proposed a Directive based on the environmental provisions of the EC Treaty (Article 175(1) EC Treaty). The Directive would have required Member States to ensure that a range of environmentally harmful activities, already outlawed by existing EC legislation, would be considered to be criminal offences when committed intentionally or with serious negligence.

However, as the Council did not have the ‘qualified majority’ required to pass a vote successfully, it was not in a position to adopt this proposal. In 2003, in order to resolve this problem, the Council therefore chose a Framework Decision under the “third pillar” of the EU Treaty. This solution had been proposed by one Member State. (It was based on Treaty provisions on cooperation in judicial and criminal matters[2]. The Council intended to use the Framework Decision to respond in a concerted way to the increase in offences posing a threat to the environment.

The effect of the Framework decision was that Member States were able to choose the criminal penalties to apply. Such penalties had to be effective, proportionate and dissuasive.

The decision was adopted by the Council of the European Union, in other words, by the representatives of the Governments of the Member States. The decision was adopted as an aspect of police and judicial cooperation between governments in criminal matters, which, by virtue of the Treaty on European Union, has become part of the institutional framework.

Against this choice of the legal basis, the Commission brought an action for annulment against the Council. As a test case, the Commission, supported by the European Parliament and the Economic and Social Committee, challenged Council Framework Decision 2003/80 on the protection of the environment through criminal law. The central argument used by the Commission in taking this action to the European Court of Justice was the following: the Commission claimed that requiring Member States to use criminal sanctions for violations of EC environment law must be based on the law and decision-making procedures of the EC Treaty (the so-called “Community method”), and not on the “third pillar” of the EU Treaty, as had been the choice of the Council. The Council (supported by 11 Member States) took the view that no explicit provision in the EC Treaty could justify this approach.

The difference between a legal basis in the “third pillar” of the EU Treaty instead of the EC Treaty is very important. It has two major consequences.

1. A different legislative procedure. Under the EU Treaty, the Council acts unanimously on the proposal of a Member State or the Commission. The European Parliament only has a marginal role. Under the EC Treaty, the Commission has the sole right of initiative the Parliament has its full rights as a co-legislator and the Council would decide by qualified majority.

2. There is no infringement procedure available for acts adopted under the EU Treaty. Thus the Commission has no power to force Member States to implement properly, which is of decisive importance for ensuring compliance.

The Court of Justice ruling confirmed the position of the Commission. Although, as a general rule, neither criminal law nor the rules of criminal procedure fall within the Community’s competence, that does not prevent the Community legislature, when the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities is an essential measure for combating serious environmental offences, from taking measures that relate to the criminal law of the Member States which it considers necessary in order to ensure that the rules which it lays down on environmental protection are fully effective.

1. Annuls Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law;

3. Orders the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Kingdom of the Netherlands, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland and the European Parliament to bear their own costs.

SPECIFIC PROGRAMMES UNDER THE SEVENTH FRAMEWORK PROGRAMME FOR

RESEARCH AND TECHNOLOGICAL DEVELOPMENT (RTD)

Objective: establish European leadership in key scientific and technological areas.

Method: supporting cooperation between universities, industry, research centres and public authorities across the EU and internationally.

The Commission proposes a budget amount of €44,432 million (+/-60% of total proposed FP7 expenditure). The programme focuses on nine themes:

1. Health:- Objective: improve the health of Europeans, increase competitiveness of EU health-related industries/businesses, address global health issues including emerging epidemics. Aims: to turn basic discoveries into clinical applications, develop and validate new therapies, methods for health promotion and disease prevention, diagnostic tools and technologies and efficient health care systems. Proposed budget of €7,350 million.

2. Food, Agriculture and Biotechnology:- Objective: science, industry and other stakeholders come together to build a European knowledge-based bio-economy. Aims: to exploit research opportunities. Challenges: growing demand for safer, healthier and higher quality food (taking into account animal welfare and rural contexts); sustainable production and use of renewable bio-resources; the increasing risk of epizootic and zoonotic diseases and good-related disorders; threats to the sustainability and security of agricultural and fisheries production resulting in particular from climate change. Proposed budget of €2,170 million.

3. Information and Communication Technologies (ICT):- Objective: improve Europe’s industrial competitiveness, enable it to master and shape ICT developments to meet the demands of society and the economy. Aims: to strengthen Europe’s scientific and technology base, ensure global ICT leadership, stimulate innovation through ICT use, ensure rapid transformation of ICT progress to benefit public, businesses, industry and governments. Proposed budget: €11,197 million.

4. Nanosciences, Nanotechnologies, Materials and new Production Technologies:- Objective: improve EU industrial competitiveness and ensure transformation from resource-intensive to knowledge-intensive. Method: generate breakthrough knowledge for new applications, concentrate on high-added-value products and technologies to meet both customer requirements and expectations regarding environment, health etc. Proposed budget: €4,270 million.

5. Energy:- Objective: transform current fossil-fuel energy system into a more sustainable energy-efficient one based on diverse energy sources and carriers. Challenges to be addressed: security of supply and climate change. Proposed budget: €2,590 million.

6. Environment, including Climate Change:- Objective: promote sustainable management of the natural and human environment and its resources. Aim: to advance understanding of the interaction of the bio-sphere, ecosystems and human activities; develop new technologies, tool and services. Emphasis on: prediction of climate, ecological, earth and ocean systems changes; on tools and technologies to monitor, prevent and mitigate environmental pressures and risks, including to health and the sustainability of the natural and man-made environment. Proposed budget: €2,240 million.

7. Transport, including Aeronautics: Aims: to develop integrated, “greener”, “smarter” and safer pan-European transport systems, respecting the environment and natural resources; secure and develop EU industry’s global competitiveness and leading role. Proposed budget: €5,250 million.

8. Socio-economic sciences and the Humanities, generating in-depth, shared understanding of complex and inter-related socio-economic challenges facing Europe (e.g. growth, employment and competitiveness, social cohesion, sustainability, quality of life, education, cultural issues and global interdependence). Emphasis on providing an improved knowledge case for policies in the fields concerned. Proposed budget: €700 million.

9. Security and space: Two-fold objectives. (1) develop technologies and knowledge to ensure public security from intended threats (terrorism and crime) and from unintended incidents (natural disasters, industrial accidents), (2) support a European Space Programme, focusing on Global Monitoring for Environmental Sustainability etc.. Proposed budget: €3,500 million.

The Co-operation programme will focus on collaborative research. This will primarily take the form of collaborative projects, networks of excellence, coordination and support actions.

The Co-operation Programme also proposes two new instruments to support R&D in Europe:

(1) Joint Technology Initiatives (JTIs) in a limited number of cases will support the creation of long-term private/public partnerships. These JTIs will mainly result from the work of European Technology Platforms, to combine private sector, national and European financing. Selection criteria include: demonstrated added value of EU-level intervention; a clear objective; financial and other resources committed by industry; clear growth & competitiveness impact; contribution to broader policy objectives; capacity to attract other funding; inability of other instruments to achieve objective.

(2) Risk Sharing Finance Facility, a grant to the European Investment Bank, to cover part of the risks associated with loans to research and development actions.

The Co-operation programme aims to make it easier to focus on cross-cutting priority scientific areas such as marine sciences and technology (food and environment). The programme is flexible enough to meet emerging needs that cannot yet be foreseen. Focus will be on specific objectives in emerging fields of science and technology that promise major advances. Flexibility will aid response to new policy needs that arise (new epidemics, emerging food safety concerns, responses to natural disasters etc).

The Ideas programme will establish a European Research Council (ERC) to support those truly creative scientists, engineers and scholars most likely to make unpredictable and spectacular discoveries. Key operating principles: scientific autonomy and excellence. Proposed budget: €10,483 million. ERC will consist of a Scientific Council, comprising 22 eminent scientists from across Europe and from many different disciplines. An implementation structure (responsible for administrative implementation and the work programme) will support the Scientific Council. The Scientific Council will establish principles for evaluation procedures, peer review and selection processes and will ensure financial and scientific management of grants.

European science can only be as good as the people who carry it out. The European Commission proposes to allocate €6,300 million to develop Europe’s researchers (qualitatively and quantitatively) through ‘Marie Curie Actions’ which will build on positive experience from previous programmes. Actions supported will include: initial training of researchers (networking system focused on the first four years of their careers); life-long training and career development (individual fellowships, co-funding regional, national or international programmes); creating closer industry-academia links (secondments, hosting programmes, workshops and conferences). At international lever there will be outgoing international fellowships, return and reintegration grants for European researchers, incoming international fellowships and partnerships. Actions will be supported that remove obstacles to mobility within the EU and which enhance the career perspectives of researchers.

Aim: to develop the resources available to Europe’s research community. Measures include:

developing research infrastructures (large-scale facilities - super-computers, libraries, networked databases, testing facilities, observatories) to keep European scientists at the forefront (€3,500m);

strengthening innovative capacity of small- and medium-sized enterprises and their ability to benefit from research; helping them outsource research, increase their own efforts, extend their networks, make better use of results and acquire necessary technological know-how (€1,680m);

developing Regions of Knowledge by bringing together regional authorities, universities, research centres, enterprises and other interested parties. (€140m);

stimulating participation of EU convergence and outermost regions in research activities by twinning, networks to exchange know-how and expertise, secondments, equipment acquisition, awareness-raising etc. (€490m);

bringing science and society closer together, improving public participation in setting priorities and tacking the perceived isolation of the scientific world from everyday life. Objectives: strengthening and improving the European science system, access to research results, the link between science and policy-making, promoting better understanding of issues that have an impact on society’s perception of science (ethics, law, culture etc.), improving the gender dimension, attracting young people into science, supporting effective scientists-public communication. (€490m)

In broader terms, this programme can support coordination of Member States’ research policies and putting into practice the EU’s growth and competitiveness agenda.

The European Commission’s Directorate-General Joint Research Centre will receive €1,617 million 7FP funding to provide customer-driven scientific and technical support to the EU policy-making process. JRC major customers are: Commission services (policy DGs), other European institutions such as the European Parliament, EU agencies and Member States.

For reasons stemming from the legal set-up of the EU, all nuclear research and training activities are funded under two separate Specific Programmes, under the Euratom treaty. These activities will be carried out by both the Joint Research Centre and the research community in general. They concern nuclear waste management, environmental impact and basic knowledge; nuclear safety and nuclear security, fusion energy research and research on nuclear fission and radiation protection. Total proposed budget : €2,800.

Common themes and issues: The Commission will be responsible for ensuring the coherence of these Specific Programmes. A number of aspects will reinforce the operation of all the Specific Programmes as part of an integrated European programme of research.

Joint calls for proposals, for actions with strong relevance to different parts of the Co-operation, People and Capacities programmes, or across different themes within the Co-operation programme.

International co-operation will be a specific theme of the Capacities programme. €315m will be allocated. International co-operation will form a part of all programmes with dedicated actions.

Emphasis is placed on the ethical framework for the Specific Programmes. All Specific Programmes contain clauses making clear the necessity to operate with respect for fundamental ethical principles and existing international law and conventions in this area.

Issues which are ruled out: human cloning for reproductive purposes, research activity to modify the genetic heritage of human beings, the creation of human embryos for the purpose of research or stem cell procurement are explicitly ruled out. No research can be financed by the Framework Programme in a particular country that is contrary to the laws of that country.

Projects that raise any ethical questions are submitted to a rigorous four-stage process before being funded (national ethical review, European scientific review, European ethical review and consideration by a Committee of Member States).

SME participation will be a major priority of the new programme. Specific actions are contained in the Capacities programme. SME research interests are also included throughout the Co-operation programme and will be identified in more detail in the work programmes and calls for proposals.

Dissemination and knowledge transfer: efforts to improve the take-up of research results are a key feature of all the Specific Programmes, with emphasis on transfer of knowledge across national borders, different disciplines, and between academia and industry.

A major Commission priority is Simplification to make the programmes more accessible and user-friendly. Most improvements can be made at the level of rules of participation, to be proposed by the Commission in autumn 2005.

A number of improvements are already possible at the level of Specific Programmes: e.g. improved efficiency through the management of administrative tasks by an outside agency; streamlining of the funding schemes available to participants, principles established for evaluation criteria; streamlined systems for the approval of projects; clearer programme architecture.

[1] The activity of the EU is usually illustrated by three pillars. The first pillar is composed of the European Communities: matters relating to the Single Market and to freedom of movement, of persons, goods, services and capital across borders. It includes agriculture, environment, competitiveness and trade policy matters, plus cooperation in fiscal and monetary issues. The second pillar consists of the Common Foreign and Security Policy. The third pillar comprises police cooperation and cooperation in the area of criminal law.

[2] Article 34(1)(b) in conjunction with Article 31(1)(e) of the EU Treaty. In the ‘Third Pillar’, the Commission shares the right of initiative with the Member States (Art. 34 EU). As a rule, the Council decides unanimously. The Council decides measures implementing decisions at the EU level with a qualified majority of votes.