The Ever-longer Arm of EC law: The Extension of Community Competence into the Field of Criminal Law

The physical and legal borders of the European Community have been subject to a large number of changes in recent years. Throughout this period of transition Member States have sought to ensure that certain parameters remain unchanged. One such example is the province of Member States to determine which behaviour to punish by way of criminal sanctions. However, the recent judgments of the (ECJ) in the Cases C-176/03 and C-440/05 have changed these parameters by confirming that the European Community may provide for the imposition of criminal sanctions in certain policies. This article outlines these judgments and examines their impact, addressing a number of questions they left open. It also seeks to highlight the challenges the Community legislature will face should it seek to integrate criminal sanctions into EC legislation. While the shortfalls of the 'double text' situation cannot be denied, these flaws result from a deliberate decision by the Member States to attribute criminal competence to the EU under the Third Pillar, rather than to the EC under the First Pillar. It is thus unfortunate that such a consideration was not given greater weight by either the ECJ in its judgments, or the Commission in its extensive interpretation of the Court's judgment in Case C-176/03.