12 Colum. J. Eur. L. 625 (2006)

Katherine M. Apps, Supervisor in Law, New Hall College, Cambridge, United Kingdom. I am most grateful to Tim Corthaut for his helpful comments on previous drafts; however, all errors and omissions are entirely my own.

Hot on the heels of the “no vote” to the Constitution in France and the Netherlands, it was clear that Case C-176/03 Commission v. Council would be likely to generate a large quantity of controversy. However, it would have been a rash tipster to have advised staking money on the Court of Justice (the Court or ECJ) going as far as it did. This case is surprising not least in that the Court, in ensuring a potentially expansive role of the European Community (EC) into the realm of criminal law, went further than the more incrementalist approach advocated by the Commission. This case note analyzes the potential consequences of this ruling on all those potentially affected in the light of some of the other recent cases from the Court and the Commission’s new approach since the case. First, this case note sets out the conclusions reached by the Court and considers the effects of its holding on the power of the EC itself. It also, secondly, analyzes how this increase in power affects the relationship between the EU and the EC such that the other two “pillars” of the EU have been battered and bruised. Thirdly, the impact of this case on the relationship between the Member States and the EC is also investigated, in particular how this case relates to the recent judgments in Lindqvist and Swedish Match. Finally, this case note will give thought to a question largely left unconsidered by the Court: the likely impact of this holding on the freedom of individual citizens, focusing on recent developments in Berlusconi, Adelchi and Marcello Dell’Utri and Others, and Pupino.