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78 The emergence of European Union environmental criminal law – Part I : Hedemann-Robinson [2008] 3 Env. Liability
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criminal sanctions from the range of penalties imposed. 54 conceded on a number of occasions that criminal legislation
Any specific measures relating to cooperation between and rules of criminal procedure are in principle matters
Member States on combating crime had been adopted for which the Member States, as opposed to the
under the aegis of the third pillar until that judgment. Community, have responsibility in the absence of provision
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For a long time, the Commission was prepared to on sanctions by the latter, according to the court this does
accommodate the Council’s concerns over legal not mean that Member States have unqualified powers to
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competence. However, in 2001 the Commission changed act as they see fit in the domain of criminal policy. In a
tack and decided to propose Community legislation in number of cases, the court has fleshed out the qualifications
the area of criminal policy, specifically a proposal for a it considers are attached to national autonomy by virtue of
directive on environmental crime. Community law.
Where national rules conflict with Community legal
I.2.2 The ECJ’s early case law on Community law and obligations, the ECJ has made it clear that national courts
criminal policy and authorities are obliged to refrain from applying the
Until its seminal 2005 judgment in Environmental Crimes, conflicting national rule, irrespective of its legal form or
the ECJ did not have any specific opportunity to pronounce nature. The fact that a Community norm may conflict with
definitively on the issue of Community legislative a national rule of criminal law will not affect application of
competence in the area of criminal policy. However, it the principle of supremacy of Community law. For instance,
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would be inaccurate to assume that, prior to this date, there in the SAIL case the ECJ rejected the submissions of the
had been an absence of ECJ guidance on the relationship Italian government that it had no jurisdiction to receive a
between Community law and national criminal law. Before request from an Italian court for a preliminary ruling under
the Environmental Crimes judgment the court had developed Article 234 EC on the interpretation of certain CAP
a substantial body of caselaw on the impact of EC law in legislation, on the grounds that its answers would influence
relation to the rules of national criminal law. the application of Italian criminal law. The ECJ confirmed
that the effectiveness of EC law could not vary according
Implementation of EC law through national criminal law to the various branches of national law which it may affect. 59
The ECJ has developed a considerable body of Consequently, in several cases the ECJ has confirmed that
jurisprudence on the impact of Community law over the Member States are obliged to ensure that their national
manner in which Member States implement first pillar criminal rules accord with obligations under Community
obligations, where Community law does not provide for law. For instance, the ECJ has held that Member States are
any specific mode of implementation. The ECJ has obliged to ensure that their criminal laws do not constitute
essentially developed its case law on the basis of Article 10 a disproportionate interference with the exercise of
EC, which imposes a general obligation of good faith on fundamental economic rights to freedom of movement
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Member States to take active steps to ensure that they fulfil guaranteed under the EC Treaty or conflict with
their EC obligations and desist from taking any measures Community norms prohibiting discrimination against
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that might undermine EC objectives. individuals. Any such interference will render national
From a relatively early stage in its history, the ECJ
established that Member States do not have absolute
discretion over implementing Community legislation at
national level, notwithstanding the absence of any EC Treaty 55 Article 10 EC states: ‘Member States shall take all appropriate
provisions specifically limiting Member State autonomy in measures, whether general or particular, to ensure fulfilment of the
obligations arising out of this Treaty or resulting from action taken
this regard. This is so even where Community legislation by the institutions of the Community. They shall facilitate the
defers to individual Member States as to how best to secure achievement of the Community’s tasks. They shall abstain from any
implementation and where national implementation takes measure which could jeopardise the attainment of the objectives of
this Treaty.’
the form of criminal measures. Although the ECJ has 56 See eg Case 50/76 Amsterdam Bulb BV v Produktschap voor
Siergewassen [1977] ECR 137, esp paras 31–33 of judgment.
57 See eg Case 203/80 Criminal Proceedings Against G Casati [1981]
ECR 2595, at para 27 of judgment.
58 Case 82/71 Pubblico Ministero della Repubblica Italiana v Società
Agricola industria latte (SAIL) [1972] ECR 119.
54 See eg reg 150/2001 laying down detailed rules for the 59 ibid para5 of judgment.
application of reg 104/2000 as regards the penalties to be applied 60 See eg Criminal Proceedings against G Casati (n 57) at para 27 of
to producer organisations in the fisheries sector for irregularity of judgment and C–193/94 Criminal Proceedings against S Skanavi and K
the intervention mechanism and amending reg 142/98 (OJ 2001 Chryssanthakopolous [1996] ECR I-929.
L24/10) esp. art 3(4). 61 Case 186/87 I W Cowan v Trésor Public [1989] ECR 195.

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