There was a bit of a media frenzy this week on the European Court judgement which allegedly gives the Commission "power to legislate in the area of criminal law" (according to the BBC!). Predictably, the Daily Mail described this as a "sinister new judgement" and reported that:

"unelected bureaucrats, answerable to no-one, will be able to order British courts to fine or put people in prison for breaching EU laws".

Complete rubbish in every respect, of course. Other publications were only slightly less reactionary: compare coverage in the Times and the Guardian, not to mention the tabloids.

Rather than wearily pointing out for the millionth time that, with or without this judgement, the Commission has no power at all to legislate in any area (because it merely makes proposals and carries out what has been agreed), I decided to look into the detail and find out what the Court's judgement actually said. Here it is in full. And a quick glance at the Court's summary here also reveals that the headlines are, needless to say, grossly exaggerated.

Interestingly, there was no dispute at all about the actual content of the environmental legislation that gave rise to the court case. All parties agreed that it was necessary to classify certain infringements of environmental legislation as criminal offences in countries' domestic law. These offences are listed in a framework decision originally agreed jointly by national ministers, and include:

(a) the discharge, emission or introduction of a quantity of substances or ionising radiation into air, soil or water which causes death or serious injury to any person;

(b) the unlawful discharge, emission or introduction of a quantity of substances or ionising radiation into air, soil or water which causes or is likely to cause their lasting or substantial deterioration or death or serious injury to any person or substantial damage to protected monuments, other protected objects, property, animals or plants;

(c) the unlawful disposal, treatment, storage, transport, export or import of waste, including hazardous waste, which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, soil, water, animals or plants;

(d) the unlawful operation of a plant in which a dangerous activity is carried out and which, outside the plant, causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, soil, water, animals or plants;

(e) the unlawful manufacture, treatment, storage, use, transport, export or import of nuclear materials or other hazardous radioactive substances which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, soil, water, animals or plants;

(f) the unlawful possession, taking, damaging, killing or trading of or in protected wild fauna and flora species or parts thereof, at least where they are threatened with extinction as defined under national law;

(g) the unlawful trade in ozone-depleting substances;

when committed intentionally.

The Court case simply turned on which treaty article should be used for the adoption of such agreements. The Court ruled that, as it concerned the protection of the environment, it was appropriate to use the environmental articles of the treaties. The definition of the offence, and the severity of the penalty that would apply, remain a matter for member states to decide individually as they see fit.

The losing side in the case agreed that joint European-level action was necessary and that the offences listed should be classified as criminal offences - but they argued for a different treaty article to be used in order to enact such legislation. Using this article would simply have sidestepped the need for parliamentary approval while leaving the content of the legislation intact.

The Court's judgement therefore didn't touch the question of whether the principle of member states laying down criminal penalties could be agreed at European level - since this principle was already agreed by all parties (pace the UK's eurosceptic media). Instead, the net effect of the judgement is to rule that parliamentary scrutiny is required for these decisions, so the Council of Ministers is not allowed to adopt them unilaterally. Surely this is a valuable democratic safeguard worth having - for any legislation?