Bad Drivers Together With Eu Law: The Cjeu Drives On The Incorrect Side Of The Route

Steve Peers

There’s an old Canadian joke, which was in 1 trial voted the ‘Most Canadian Joke Ever’ (mind you, it powerfulness non own got faced much competition). An American, a Canadian, a Brit too a Frenchman walk into a bar. The barman (bizarrely) asks them each to write an essay nigh an elephant. The Frenchman writes nigh the elephant’s sexual activity life. The Brit writes nigh the role of the elephant inward colonial history. The American writes nigh the armed services utilization of the elephant (or perhaps, now, nigh the utilization of elephants to intercept telecommunications). And the Canadian writes: “The elephant: Does it autumn inside federal or provincial jurisdiction?”

Now, let’s add together an European Union law element. Say this grouping of boozy essay-writers is gathering inward a bar inward Luxembourg. An European Union lawyer joins them. Inevitably, she writes her essay on ‘Which Treaty legal base of operations regulates elephants?’ In fact, this is a genuine legal dispute, at to the lowest degree every bit regards merchandise inward endangered elephants (does the Treaty dominion on surroundings or on the mutual commercial policy apply?). And finally, the European Union lawyer has brought along her German linguistic communication friend. He only agreed to come upward because the European Union lawyer promised him that everyone would pay for their ain drinks. But when he gets to the bar, he finds that the European Union lawyer has successfully convinced everyone inward Grand Duchy of Luxembourg that he has to selection upward the whole tab for the evening.

While disputes over legal bases powerfulness seem to live on a especially arcane characteristic of European Union law, they are normally manifestations of of import disputes nigh how political ability is exercised at European Union level. Most often, the legal base of operations dispute is actually nigh the extent of the legislative ability of the European Parliament, and/or the extent of Member States’ veto powers. 

Today’s judgment on the legal base of operations of the Directive on the central of information on driving offences is nigh ii other issues, however: the extent of the Commission’s monopoly of initiative, too the orbit of the opt-outs relating to European Union Justice too Home Affairs (JHA) law. 

This detail Directive was commencement proposed past times the Commission dorsum inward 2008, amongst a legal base of operations relating to transport. Discussions on this proposal were shortly blocked past times disputes every bit to whether it should instead own got a legal base of operations relating to law cooperation – which would therefore own got entailed unanimous voting too mere consultation of the European Parliament (EP). However, next the entry into forcefulness of the Treaty of Lisbon inward 2009, the decision-making physical care for relating to carry law, on the 1 hand, too (most) European Union rules on law cooperation, on the other hand, were governed past times the same decision-making rules (the ordinary legislative procedure) every bit far every bit the Council too EP were concerned. 

But ii differences remained: the Commission shared its ability of first amongst groups of Member U.S.A. every bit regards criminal too law cooperation measures, but non every bit regards carry law (or whatever other aspects of European Union law); too the UK, Republic of Ireland too Kingdom of Denmark own got opt-outs from the one-time surface area of European Union law, but non from carry law. 

The Belgian Council Presidency, inward the minute one-half of 2010, relaunched discussions o the Commission’s proposal too shortly reached an understanding inward the Council. The next Presidency reached an understanding amongst the EP, too the Directive was adopted inward 2011. The Great Britain too Republic of Ireland chose to practise their opt-out, piece Kingdom of Denmark was automatically excluded. 

In a nutshell, the Directive sets out a physical care for for central of information betwixt Member U.S.A. every bit regards specified mutual driving offences, such every bit speeding too drunkard driving. The subsequent utilization of that information is therefore left to the discretion of the State which has received it. 

The CJEU’s judgment

The CJEU ruled exclusively inward favour of the Commission, belongings that the Directive concerned only carry issues. However, it kept the Directive inward forcefulness for a year, placing the EP too the Council nether an obligation to negotiate a novel text past times the halt of that period. The novel mensurate volition evidently apply to all Member States, given the absence of whatever opt-outs relating to carry matters.

According to the Court, applying the usual dominion of examining both the aim too content of European Union measures to create upward one's hear their right legal base, both the aim too content of this Directive concern carry policy. First of all, its aim was to ensure a high grade of route safety, too the prior CJEU case-law had established that route security was an expression of the EU’s mutual carry policy. As the Court pointed out, the Directive applied regardless of whether the offences were regarded every bit administrative or criminal nether national law. It aimed to ‘induce to a greater extent than cautious behaviour’ past times drivers, ‘thereby helping to cut the number of casualties due to route traffic accidents’. 

As for the content of the Directive, it regulated the access to vehicle registration information past times each national authority, every bit good every bit the notification to the drivers concerned. It also provides for possible farther proposals past times the Commission inward 2016: this is a veiled reference to reviving the Commission’s previous controversial proposals to harmonise the law on drunkard driving across the European Union (ie, setting a criterion maximum flat of blood alcohol content). So the Court ruled that the content of the Directive also pursued the objective of route safety. 

The Court therefore rejected the declaration that the Directive savage inside the orbit of the legal base of operations on law cooperation. While the European Union powers on this number own got a wider orbit since the Treaty of Lisbon entered into force, this cooperation is soundless limited to cooperation past times law too other law enforcement authorities every bit regards ‘the prevention, detection too investigation of criminal offences’ (Article 87(1)). Also, the law cooperation legal base of operations had to live on interpreted inward low-cal of the full general objectives of European Union JHA law, every bit laid upward out inward Article 67 TFEU, which include ensuring ‘a high flat of security’ past times agency of ‘coordination too cooperation’ betwixt law too other authorities, every bit good every bit criminal law measures.

Comments 

With groovy respect, the Court’s judgment is non convincing; but neither is the declaration defended past times the Council too the EP, which was supported past times 7 Member U.S.A. too Advocate-General Bot. 

As for the judgment, piece the Court is right to say that the aim of the Directive is route safety, its analysis of the content of the Directive is problematic. In those Member U.S.A. which enforce closed to or all of the driving offences inward inquiry past times agency of criminal law, the physical care for of exchanging information laid upward out inward the Directive has the role of facilitating the application of prosecution too criminal penalties every bit regards the persons concerned. The Court ignored the Advocate-General’s signal that the Directive draws upon the EU’s ‘Prum’ organization for the central of information betwixt law authorities. 

While it is arguable that the Court was drawing a distinction betwixt the central of information too the subsequent criminal process, such a distinction would non live on convincing. The ii aspects of criminal law are closely linked, too Article 87 TFEU expressly refers to the central of information.

In fact, the Court does non seem to depict such a distinction, relying only upon the aim of securing route safety, too the fact that central of information (the content of the Directive) supported this aim. This could live on understood to hateful that fifty-fifty a mensurate nigh the mutual recognition of criminal penalties relating to route traffic offences (such every bit the existing Framework Decision, referred to past times the Advocate-General) falls inside the orbit of European Union carry law, at to the lowest degree every bit far every bit carry is concerned. Moreover, logically this approach applies past times analogy to criminal law measures related to other aspects of European Union law, such every bit the internal market. As the Advocate-General pointed out, the existence of Article 83(2) TFEU, which provides for the ability to adopt noun criminal law relating to other European Union policies, proves that ‘the edge is non sealed’ betwixt criminal law too the residuum of European Union law. 

The Court’s reliance upon Article 67 TFEU is non convincing either. In fact, that provision is less precise than the legal base of operations of Article 87, referring mostly to ‘cooperation too coordination’, too non restricting the orbit of the policing too criminal law aspects of the JHA Title expressly to criminal offences. 

This brings us to the primal flaw of the option argument. Both the Advocate-General too the EP stated that Article 87(1) TFEU was non limited inward orbit to ‘criminal matters’. No, but it is expressly limited inward orbit to ‘criminal offences’. (The Advocate-General went therefore far every bit to quote the wording of Article 87, leaving out these in conclusion ii words). While closed to Member U.S.A. apply criminal law to route traffic offences, others create not. This distinction is for certain recognised past times Article 67(1) TFEU (not quoted past times the CJEU), which states that European Union law on JHA matters must abide by ‘the dissimilar legal systems too traditions of the Member States’. 

The Council’s arguments did choose that the European Union law cooperation measures had to live on linked to criminal law, but asserted that ‘criminal’ law had a broad meaning, too that administrative physical care for had to live on regarded every bit criminal procedure. These arguments ignore the multifariousness of the Member States’ traditions inward this field. 

What approach should the European Union legislature – too the Court – own got taken? The Court’s analysis is flawed because it ignores the link betwixt criminal law too route traffic offences inward many Member States, piece the Council too EP ignored the role which administrative law plays inward many others. There is a way inward which the European Union could own got attempted to bargain amongst the number of route safety, piece taking occupation concern human relationship of the multifariousness of Member States’ systems. It could own got adopted parallel measures relating to the dissimilar approaches to this issue, every bit it did when it adopted a Regulation on the civil law aspects of victim protection orders, next a Directive on the criminal law aspects of this issue. 

Finally, every bit for the UK, its determination to opt out from this mensurate (which has similar a shot been frustrated past times the Court) is difficult to explain. Officially, at least, the Great Britain opted out of the mensurate because it would was non consistent amongst the organization applied inward the Great Britain (see the government’s explanation to the House of Commons European Union Scrutiny committee). But the improve class would own got been to endeavour to negotiate, inside the context of the legislation, a dissimilar model for the central of information which (in accordance amongst Article 67 TFEU) took occupation concern human relationship of the specificities of the Great Britain organization but which soundless ensured that the valuable objective of the legislation would live on secured inward the UK. After all, for certain Great Britain citizens also quite rightly experience (in the Advocate-General’s words) ‘the feel of injustice that tin dismiss arise from the impunity’ of unusual drivers non beingness penalised for route traffic offences committed inward the UK. 

One tin dismiss only hope that the regime did non opt out of the proposal purely inward lodge to boast to those who oppose whatever European Union role inward criminal law nether whatever circumstances that it had secured yet closed to other opt-out. The security of British drivers too pedestrians should non live on undermined past times the political objective of putting closed to other notch inward a Eurosceptic bedpost. 

Barnard & Peers: chapter 5, chapter 25

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