DM's letter to Tony Blair
Response from the Foreign Office
DM's letter back to the Foreign Office

DM's letter to Tony Blair

The Prime Minister
10 Downing Street
London
SW1A 2AA

14th September 2005

Dear Mr Blair,

I am writing following the European Court of Justice's momentous ruling on September 13th in relation to criminal sanctions to ask if it is still your government's official position that the EU has no intention whatsoever of transforming itself into a system of government?

The ECJ ruling states that the EU, following a qualified majority vote, can compel member states to impose criminal sanctions, including prison sentences, on their citizens in relation to EU directives. This clearly confirms the transition of the EU into a criminal jurisdiction, one of the key characteristics of a state.

If you now accept the self-evident, empirical reality that the EU is acquiring the key characteristics of a state, will this have any bearing on your belief in the desirability of EU membership? If, on the other hand, you are still maintaining that there is no project to build a Brussels-based government, it would be interesting to know what is your working definition of a 'state' and how this differs from the current structure and powers of the European Union, especially in view of the ECJ criminality decision.

Given that your administration claims to oppose the ECJ's new ruling, can you now give a categorical, public undertaking that so long as you are prime minister the UK government will refuse, on principle, to impose criminal penalties that have been ordered by the EU?

Given that there is no existing article in the current treaty granting Brussels this extraordinary power, it would appear that your elected government would be in a very strong position, morally and legally speaking, in undertaking the commitment I am suggesting. It would also be a very popular position with the electorate.

If you refuse to give this commitment, will it be because you believe the UK has no legal option but to accept all instructions that emanate from the decision-making processes of the EU, or for some other reason?

Yours sincerely,
Marc Glendening

Campaign Director
Democracy Movement

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Response from the Foreign Office

Mr Marc Glendening
Democracy Movement
Kershaw House
449 Great West Road
Hounslow
TW5 0BU

24th October 2005

Dear Mr Glendening,

Thank you for your letter of 14 September to the Prime Minister about a recent decision in the European Court of Justice. I am replying as the person responsible for this issue at the Foreign and Commonwealth Office.

As you are no doubt aware, the case in question (case C176/03) involved a dispute over legal base. The ECJ ruling annulled an existing EU measure setting out environmental offences, on the grounds that it had been adopted under Article X of TEU, when the more appropriate legal base was Article 175(1) TEC. The substance of the measure, ie. that criminal penalties are needed to punish serious environmental damage, was not at issue.

The ECJ ruling in fact reaffirmed that as a general rule, criminal law does not come within the Community's competence. The EU will continue to respect the different legal systems and traditions of its Member States, and there is no threat to their sovereignty. However, the ruling did say that Community legislature may take measures relating to the criminal law of Member States when that is necessary for the achievement of an important Community objective, in this case environmental protection.

The UK has a good record of playing by EU rules. In environmental matters, compliance with EU regulation has resulted, for example, in cleaner British beaches and cleaner air for our citizens to breathe. We demonstrated our support for an EU measure on environmental protection through criminal penalties for offences by agreeing the measure annulled by the ECJ decision on 13 September, and maintain our support of such action in principle.

Nonetheless, I can assure you that the UK Government will continue to give very careful consideration to any future proposal relating to the criminal law of Member States, to ensure we are satisfied legislation we sign up to is both necessary and proportionate. I am also confident that our EU partners, many of whom intervened in support of the Council in the above case along with the UK, will do the same. And as you acknowledge in your letter, any Commission proposal of this nature would ultimately have to be agreed by a qualified majority vote. The Commission's power thus remains limited by the will of the Member States.

Yours sincerely,
Kathy Heal

Europe Directorate
Foreign & Commonwealth Office

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DM's reply to the Foreign Office

Kathy Heal
European Directorate
Foreign & Commonwealth Office
London
SW1A 2AH

9th November 2005

Dear Ms Heal,

Thank you for your letter of 24/10/05 that provided interesting background information relating to the specific case from which the ECJ's ruling arose that I was not aware of.

I would like to respond to two points you make. First, you say that 'as a general rule, criminal law does not come within the Community's competence … and there is no threat to [member states'] sovereignty'. However, in the next paragraph you come over all 'Vicky Pollard' and confirm that the European Union 'may take measures relating to the criminal law of the Member States when that is necessary for the achievement of an important Community objective…'. Therefore, you have rightly confirmed that there is indeed a threat to the legal sovereignty of member states. How could it be otherwise if the EU can compel national governments to attach criminal sanctions to EU derived laws they may have no wish to enforce, simply because Brussels deems it 'necessary'?

Am I correct in thinking that this ruling does not place any limit in terms of the number or types of EU competences criminal sanctions can be applied to? If I am right in this regard, this ruling has a huge potential significance for the criminal justice system of this and other member states given the high percentage of laws that now have a Brussels point of origin. The claim made by the FCO that the EU is not a system of government or state in the process of creation looks even more bizarre now that the ECJ has, at a stroke, transformed the organisation into a jurisdiction with the power to order the imposition of criminal sanctions against the citizens from the member countries. This power is, self-evidently, one of the key characteristics of a state.

Second, you write that 'The Commission's power thus remains limited by the will of the Member States'. My argument here is that this new EU power has never been explicitly granted by the national governments. It has been invented out of thin air by the European Court of Justice. There is therefore potentially no limitation of EU power since this is subject to the arbitrary judgements of the ECJ. It was this court, remember, that unilaterally invented the doctrine that Community law is superior to national law and that Britain's opt-out from the 48 hour working week directive was no longer valid. To my knowledge there is no… …article in the existing EU treaty that provides the legal justification for this latest ruling. Can you name the article that does? This episode further illustrates that the citizens of the member states are now partly governed by an authority that does not abide by the rule of law.

You suggest that since any Commission proposal to attach criminal sanctions would have to be passed by qualified majority vote in the Council this should put our minds at rest. But what if the citizens of, say, France or Greece have no wish to see certain criminal sanctions imposed upon themselves but nevertheless still find that they are in the minority position? As I said earlier, neither they nor their political representatives have ever consciously transferred to the EU competences relating to the right to impose criminal penalties. So being subject to QMV, therefore, offers absolutely no safeguard or consolation in regard to this power.

Thank you once again for responding. Your comments on the above would be appreciated. I am enclosing some items of literature that might be of interest to you.

Yours sincerely,
Marc Glendening

Campaign Director
Democracy Movement

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