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80 The emergence of European Union environmental criminal law – Part I : Hedemann-Robinson [2008] 3 Env. Liability
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The principle of equivalence established in the ECJ’s Together with the fourth principle of proportionality,
case law requires that the penalty used under national law the ECJ has developed a number of other minimum legal
to effect compliance with Community law should be similar safeguards for the benefit of defendants and required to be
to the systems for sanctioning analogous transgressions of guaranteed by Member States electing to implement
national law. This principle has the capability of assisting in Community law by way of criminal sanctions. Several of
national law enforcement as well as providing a limited these safeguards serve to protect or otherwise underpin
degree of legal protection for defendants. Its impact will the basic human right of there being no crime or criminal
depend upon how stringently individual Member States punishment except in accordance with the law (nullem
decide to craft their penalty regimes. ECJ caselaw confirms crimen nulla poene sine lege), as expressed in Article 7 of the
that the equivalence principle entitles national authorities European Convention of Human Rights and Fundamental
to uphold a strict approach towards law enforcement of Freedoms 1950 and Article 49 of the Charter of
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Community rules, in so far as they apply equally stringent Fundamental Rights of the EU 2000. This human right,
sanctions to combat infractions of national law that are which is a specific expression of the broader principle of
similar or analogous to the EC rules in question. This was, legal certainty, is recognised by the ECJ as an integral part
for instance, a relevant factor in the ECJ’s judgment in of the unwritten general principles of EC law and is a
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Hansen. In that particular case, the court upheld that directly enforceable binding norm of primary Community
Denmark could impose strict criminal liability rules as a law. It has been applied on a number of occasions by the
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means of enforcing EC rules on road transport safety, taking ECJ in connection with the implementation of EC rules by
into account that such liability corresponded with the means of national criminal law. For instance, the ECJ has
system generally applicable in that country for the used it to prevent national authorities seeking to punish
protection of employees within the working environment. 72 infringement of EC fishing rules retroactively. 79
At the same time, the equivalence principle offers a basic In addition, the ECJ has held that Member State
legal safeguard to defendants that Member States will not authorities are not entitled to rely on provisions contained
adopt measures imposing sanctions which are significantly in a Community directive that have not been, as required
stricter than applicable in relation to transgressions of by the EC Treaty, properly transposed into national law in
domestic law. In this sense, the equivalence principle may order either to determine or aggravate the liability in
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feed into and underpin application of the fourth principle criminal law of persons acting in contravention of the
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of proportionality. directive. Accordingly, directives may not be directly
Proportionality, which the ECJ has confirmed as having enforced against individuals by national authorities seeking
the status of a general principle of EC law (and therefore a to impose criminal liability. Neither may national
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source of primary EC law), requires Member States to authorities seek to rely on EC directives indirectly, by
ensure that implementation measures are suitable and interpreting national rules on criminal liability in line with
necessary to achieve the desired objective, and to consider the provisions of Community directives in order to secure
whether, taken in context, the measure imposes a burden or intensify the criminal liability of a defendant. This well-
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or burdens on individuals that may be considered to be established seam of ECJ case law, which has addressed a
excessive in nature in relation to the objective. Accordingly, number of attempts on the part of national authorities to
where a Member State adopts implementing measures that rely on various EC environmental directives in the context
serve to undermine attainment of one or more Community
legislative objectives, the national rules may be considered
liable to be disproportionate in nature. National
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implementing rules may also fall foul of the proportionality 77 OJ 2000 C364/1.
principle if they constitute an excessive interference with 78 See eg Case 63/83 R v Kent Kirk [1984] ECR 2689. The ECHR
1950 is not binding on the EU , given that the Union is not a
rights guaranteed under Community law, such as in relation Contracting Party to the Convention. The EU Charter on
to the free movement of persons or EU citizenship rights. 76 Fundamental Rights 2000 is not a legally binding document but a
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political proclamation by the Community political institutions and
EU Member States.
79 Case 63/83 R v Kent Kirk [1984] ECR 2689.
71 ibid Anklagemyndigheden v Hansen & Soen. 80 See eg Case C–168/95 Criminal Proceedings against L Arcaro
72 ibid para 18 of judgment. [1996] ECR I-4705.
73 See eg Case 118/75 Watson and Belmann [1976] ECR 1186. 81 See Case 14/86 Pretore di Salò v Persons Unknown [1987] ECR
74 See eg Danske Svineproducenter v Justis Ministeriet (n 70). 2545, Case 80/86 Criminal Proceedings against Koplpinghuis Nijmegen
75 See eg Case C–348/96 Donatella Calfa [1999] ECR I-11. BV [1987] ECR 3969 and Case C–343/98 Collino & Chiappero v
76 See eg Case C–413/99 Baumbast and R v Secretary of State for the Telecom Italiana [2000] ECR I-6659.
Home Department [2002] ECR I-7091, esp para 91 of judgment. 82 Criminal Proceedings against L Arcaro (n 80).

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