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[2008] 3 Env. Liability : The emergence of European Union environmental criminal law – Part I : Hedemann-Robinson 7979
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criminal rules unenforceable against individuals relying take action on relation to analogous contraventions of
upon directly enforceable Community rights. national law (equivalence principle); carried out with the
The ECJ has also confirmed that Member States have a same due diligence as would be expected in relation to
number of general obligations under Community law to similar types of contraventions of national law; and
ensure that their implementation of first pillar norms proportionate in nature. These principles apply, whether
through national legislation and in practice is effective. In a or not Community legislation obliges Member States to
series of cases, the court has ruled that Member States will enact penalties to counter conduct prohibited or otherwise
be in breach of Article 10 EC if it is evident that the national restricted by its provisions. 65
legal framework used to ensure compliance with As far as the principles of effectiveness and due
Community rules is inadequate for that purpose. In the diligence are concerned, the ECJ has shown that it is
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leading case of Greek Maize, the ECJ spelt out the duties prepared to confirm that a breach of Article 10 EC occurs
incumbent on Member States to provide for sufficiently under this heading where there is evidence of persistent
stringent sanctions where Community law prohibited and manifest failure on the part of Member State authorities
certain conduct. In that case, the Commission had taken to sanction transgressors of Community obligations,
infringement proceedings against Greece on account of it whether this be on account of inadequate of national
having failed to take criminal or disciplinary proceedings sanctions or due to lack of application of penalty provisions
against customs officials who had issued false export under national law. For instance, the Commission brought
documentation in respect of consignments of Yugoslavian a successful infringement action under Article 226 EC
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maize in contravention of EC trade rules. The relevant EC against France in the Spanish Strawberries case, in respect
legislation did not stipulate that any specific penalties were of the French authorities’ failure over a lengthy period of
to be established under national law. Nevertheless, the court time to take effective legal action under French law against
clarified that, by implication, a number of important individuals interfering with the free movement of goods.
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obligations existed under Article 10 EC for Member States: In French Overfishing, the ECJ agreed with the Commission
For that purpose, whilst the choice of penalties remains that France had committed a breach of Community rules
within their discretion, they must ensure in particular that by failing to enforce fishing quotas set under the Common
infringements of Community law are penalized under Fisheries Policy. The court dismissed the French
conditions, both procedural and substantive, which are government’s defence that it had encountered substantial
analogous to those applicable to infringements of national difficulties in gathering the requisite evidence for the
law of a similar nature and importance and which, in any purpose of prosecuting cases. Specifically, it rejected the
event, make the penalty effective, proportionate and Member State’s submission that it was necessary to secure
dissuasive. Moreover, the national authorities must proceed, evidence of over-fishing through the presence of a sworn
with respect to infringements of Community law, with the agent employed at sea. According to the court, evidence of
same diligence as that which they bring to bear in over-fishing could be gleaned from considering the quantity
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implementing corresponding national laws. 63 of fish landed at port. The ECJ has accepted that, in the absence
As the Commission was able to show that the Greek of Community provisions to the contrary, Member States are
authorities had not taken any action to institute criminal not bound to enact specific types of penalties in order to fulfil
or disciplinary proceedings against the officials participating their EC obligations. At the same time, it has confirmed that
in the fraud, the court held that Greece had violated Article Member States remain free to opt for criminal law sanctions
10 EC. The principles set out in Greek Maize have if they so choose, unless this is ruled out by Community
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subsequently been confirmed and expanded upon by the rules or constitutes a plainly disproportionate means of
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ECJ. Most importantly, Member States must ensure that securing Community policy objectives. 70
when using a system of penalties under national law in order
to carry out Community obligations these must be: effective
in practice; similar in nature to legal proceedings used to

65 Criminal Proceedings against M Nunes and E de Matos (n 37) para
12 of judgment.
66 Case C–265/95 Commission v France [1997] ECR I-6959.
62 Case 68/88 Commission v Greece [1989] ECR 2965. 67 Case C–333/99 Commission v France [2001] ECR I-1021.
63 ibid paras 24–25 of judgment. 68 ibid paras 53-54 of judgment.
64 See eg Case C–326/88 Anklagemyndigheden v Hansen & Soen 69 Criminal Proceedings against M Nunes and E de Matos (n 37).
[1990] ECR I-291, paras 17 of judgment and Case C–186/98 70 See eg Case C–326/88 Anklagemyndigheden v Hansen & Soen
Criminal Proceedings against M Nunes and E de Matos [1999] ECR I- [1990] ECR I-291and Case C–491/06 Danske Svineproducenter v
4883, paras 9–12 of judgment. Justis Ministeriet 8.5.2008 (nyr).

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