Araceli Turmo , 13 mai 2014

Directive 2011/82 seeks to facilitate the exchange of information on road safety related traffic offences, regardless of their administrative or criminal nature under the law of the Member State concerned. This Directive was adopted by the European Parliament and Council using Article 87(2) TFEU as its legal basis. The Court, however, annulled this act on 6 May 2014, ruling in Case European Commission v Parliament and Council (C-43/12) that the appropriate legal basis was, as the Commission had initially proposed, Article 91(1)(c) TFEU.

This provision concerns the European Union’s transport policy, whereas Article 87(2) is part of Title V, on the Area of Freedom, Security and Justice (AFSJ), and concerns police cooperation in relation to criminal offences. The importance of legal basis in this case is evident due to the specific legal regimes associated with the AFSJ, notably the possibility of opt-outs for the UK, Ireland and Denmark under Protocols 21 and 22. The Commission’s challenge was based on an understanding of the scope of Article 87(2) as being restricted to criminal offences, whereas the Directive covers all road safety related traffic offences.

Following its previous case-law, the European Court of Justice examined the aim and content in order to identify the appropriate legal basis. It ruled in favour of the Commission, stating that improving road safety was both the main purpose of Directive 2011/82 and a “prime objective” of the EU’s transport policy. According to the Court, the act’s contents provide the means of pursuing this objective. This prevents the use of Article 87 TFEU which, read in the light of Article 67 TFEU, must be understood as having different objectives.

The Court granted the Commission and the Council’s request that the Directive’s effects be maintained, given the importance of the pursuit of its aims, and taking into account the fact that the transposition period had already ended. Directive 2011/82 will retain its effects for a maximum of 12 months, until the entry into force of a new directive based on the correct legal basis.

It is worth noting that the Court did not follow the Opinion of Advocate General Bot, who proposed that the application be dismissed. According to him, the fact that the directive seeks to improve road safety is not, in itself, decisive, since another aim is to enable more effective enforcement of sanctions related to traffic offences by introducing a mechanism for cooperation between national law enforcement authorities. The Advocate General also held a much wider view of the scope of Article 87(2) TFEU, quoting the ECHR’s functional approach in defining the scope of criminal matters under Article 6 of the Convention.

Araceli Turmo, "Annulment of Directive 2011/82 Facilitating the Cross-Border Exchange of Information on Road Safety Related Traffic Offences", www.ceje.ch, Actualité du 13 mai 2014.