The Scope of the Community's Competence in the Field of Criminal Law

Abstract

On 13 September 2005, the Court of Justice of the European Communities (hereafter: Court of Justice EC) passed a judgment giving rise to much controversy.1 In that judgment, the Court found that in some situations, the EC Treaty leaves room to take measures in a directive “which relate to the criminal law of the Member States” (para. 48). The authority to take criminal law measures in the First Pillar exists – concisely stated – if these measures relate to one of the essential objectives of the Community (cf. Articles 2 and 3 EC Treaty), and the use of effective, proportionate and dissuasive criminal penalties by the national authorities is an essential measure to achieve that objective.2 In view of the starting point that provisions of the EU Treaty may not prejudice those of the EC Treaty (Article 47 EU Treaty), actions of the Council within the Third Pillar – which concerns police and judicial cooperation in criminal matters as referred to in Article 29 ff. EU Treaty – may not encroach upon the competences of the Community in the First Pillar.3 This means that in cases