Is it blue or is it a car?
This may seem like a strange question, but it is exactly the kind of question that the European Court of Justice was faced with in yesterday’s Commission v. Parliament and Council (Cross-border exchange of information on road safety related traffic offences): Is Directive 2011/82 facilitating the cross-border exchange of information on road safety related traffic offences a transport measure – meaning that it could have been enacted under art. 91(1) TFEU as the Commission originally proposed - or is it a measure on police cooperation, as the Parliament and the Council thought when they enacted it under art. 87(3) TFEU?
This matters not only because of the amount of power the Parliament has under each provision. (Under art. 87(3) TFEU they are only consulted.) The more important difference between the two possible legal bases is that art. 87 TFEU is part of the old JHA pillar, where the UK, Ireland and Denmark have opt-outs. (See Protocols 21 and 22 attached to the Treaties.) Unfortunately, the Court’s test for deciding which legal basis is more appropriate is the same test it uses within the old first pillar, for example in the Tobacco Advertising case, where the choice was between health and the internal market.
29 According to settled case-law of the Court, the choice of legal basis for a European Union measure must rest on objective factors that are amenable to judicial review; these include the aim and content of that measure (see, to that effect, Case C‑411/06 Commission v Parliament and Council EU:C:2009:518, paragraph 45 and the case-law cited, and Case C‑130/10 Parliament v Council EU:C:2012:472, paragraph 42 and the case-law cited).
30 If examination of the measure concerned reveals that it pursues a twofold purpose or that it has a twofold component and if one of those is identifiable as the main or predominant purpose or component, whereas the other is merely incidental, that measure must be based on a single legal basis, namely that required by the main or predominant purpose or component (Case C‑137/12 Commission v Council EU:C:2013:675, paragraph 53 and the case-law cited).
…and on that basis the Court soldiered on, trying to decide whether a directive on police cooperation in transport matters was about police cooperation or about transport matters.
Looking at art. 1 of the Directive, which states its aims, the Court finds – unsurprisingly – that the aim is “to ensure a high level of protection for all road users in the Union”. The Court takes this to mean that we are looking at a transport measure here, given that JHA measures are described in art. 67(2) TFEU as aiming to “ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control” and, in par. 3, as “endeavour[ing] to ensure a high level of security through measures to prevent and combat crime, racism and xenophobia, and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws”. (This section is quoted in full by the Court in par. 48 of its judgement.)
It should be obvious that this is a simple matter of applying an unworkable test. If the Court meant to say that all JHA measures that focus on Internal Market crimes are to be enacted under an Internal Market legal basis, it should have said so. Something similar is going on in the former second pillar, where both the express wording of the Treaty and a long-standing body of case law provide that international agreements on Internal Market matters are to be enacted under the former first pillar. This would leave only general police cooperation for art. 87 TFEU, which is fine, but it would be a bit awkward for things that come closer to substantive criminal law.
For example, are we to understand that the Council and the Parliament could rely on art. 91 TFEU to enact a Regulation making driving a truck without a license a crime? Such a measure would clearly aim to ensure a high level of protection for all road users in the Union, just like the Directive under consideration here. Looking at the letter of the law, it is clearly a “measure to improve transport safety” as required by art. 91(1)(c) TFEU. It might even survive proportionality and subsidiarity, given how reluctant the Court is to go near those tests, and given that such a Regulation would undoubtedly help to create a common market for truck drivers, as well as preventing a race to the bottom in occupational standards for drivers and transport companies. But given the history of the Treaties, surely it cannot be right that the EU legislator can use Internal Market provisions to enact substantive criminal law, at least not without an explicit mention of that possibility. (In actual fact, such an explicit mention exists in art. 83(2) TFEU, i.e. in Title V of Part 3 of the TFEU, the old JHA pillar.)
And so we need a more nuanced test. As we have seen, such a test cannot rely on the aim of the measure, since all JHA measures aim to do something substantive. Perhaps Steve Peers was right in arguing that this Directive required a dual legal basis, or rather that it should have been split in two parts. However, as a general rule that seems awkward. Perhaps the Court should have invented something equivalent to the old tie-breaker for Internal Market matters: when there are two equally valid legal bases on offer, the Union legislator should choose the one that gives the greatest amount of power to the Parliament, i.e. one that requires the ordinary legislative procedure rather than a special legislative procedure.
For matters potentially concerning the Area of Freedom, Security and Justice, it would probably be good to adopt a tie-breaker rule that says that when two legal bases are equally valid, and one of them is in Title V of Part 3 of the TFEU, i.e. the old JHA pillar, then that one should win. Given how sensitive this area is, the Court should probably favour the legal basis that gives more power to the Member State governments, which coincidentally is also the legal basis that allows for some of the most touchy Member States to opt out entirely. This way, legally messy dual legal bases or twinned Acts can be avoided, and Member State prerogatives can be respected.
Anything better than the kind of focus on “aim” alone that the Court produced yesterday. Yes, we all agree the thing is blue, but that doesn’t mean it should necessarily be regulated like all other blue things. Maybe it would be better to treat it like a car instead, putting it together with green cars and red cars.