Page 14 - Lawtext Environmental Liabilty Journal Example

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[2008] 3 Env. Liability : The emergence of European Union environmental criminal law – Part I : Hedemann-Robinson 8181
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of criminal proceedings under national law, serves to ECJ jurisprudence and Community legal competence in
underpin a fundamental point stipulated in the EC Treaty relation to crime prior to the Environmental Crimes
that it is Member States and not individuals who are judgment
considered, from a legal perspective, to be addressees of Prior to its Environmental Crimes judgment in 2005, the ECJ
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the obligations contained in directives. Accordingly, unless was not called upon to address the question of whether the
there are national rules of law in place which have Community has competence to enact measures on crime.
transposed EC directives accurately and fully into national As already noted, it was clear by the 1980s that the Council
law, it would be a clear breach of the principle of legal of the EU was steadfastly opposed to the adoption of
certainty if individuals were to be treated as being directly Community legislation requiring either the approximation
or indirectly bound by provisions contained in Community of national criminal laws or the adoption of criminal
directives. The same principles of legal certainty apply in sanctions in order to further the objectives of Community
the case of other Community legislative instruments, policies. As a consequence, no Commission proposals for
including EC regulations, where they require or empower EC criminal legislation had the chance of seeing the light
Member States to adopt penalties with respect to of day, given that they would either be rejected or amended
infringements of their provisions. 85 so as to be devoid of any specific reference to the field of
Apart from restricting the possibilities for Member criminal law. Moreover, given that under the EC Treaty the
States to rely on EC legislative provisions in order to assist Council is perfectly entitled to decide to amend or reject
in the prosecution of a criminal case, the ECJ has on several the adoption of draft Community legislative proposals, any
occasions confirmed that individual persons may, under refusal on the Council’s part to adopt EC legislation relating
certain conditions, rely on EC directives directly or to crime is not of itself capable of being successfully
indirectly as defendants in the context of criminal challenged by way of judicial review proceedings before
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proceedings at national level. Specifically, the ECJ has the ECJ. Accordingly, the issue of legal competence over
confirmed that individuals may rely upon provisions criminal policy remained dormant for several years in the
contained in directives as directly enforceable rights before absence of any prospect of a test case being brought before
national courts against national authorities, so long as the the court.
relevant provisions of the directive are clear, precise and However, in various cases before 2005, the ECJ did
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unconditional (the doctrine of vertical direct effect). In make some general obiter dicta comments on Member State
addition, the ECJ has confirmed that national courts and competence in criminal matters, which in turn gave rise to
other public authorities are under a duty to interpret speculation as to the definitive position of the court on the
national laws, including national criminal laws, in issue of Community competence. in a number of cases the
accordance with the provisions of Community directives ECJ made statements that might have appeared, at first
insofar as it is possible to do this under the rules of statutory glance, to indicate that the Member States were exclusively
construction of national law (the doctrine of ‘indirect competent to take legislative action on crime. For instance,
effect’). 87 in Casati the ECJ confirmed that ‘in principle, criminal
legislation and the rules of criminal procedure are matters
for which the Member States are still responsible’. 89
However, as has been commented elsewhere, the court’s
statements on Member State competence to construct
sanctions regimes in order to enforce EC rules were always
83 See notably Pretore di Salò v Persons Unknown (n 81); Criminal qualified rather than absolute. Specifically, the court only
Proceedings against L Arcaro (n 80); Case C–235/02 Criminal
Proceedings against M A Saetti and A Frediani [2004] ECR I-1005; Case ever affirmed Member State competence to take measures
C–457/02 Criminal Proceedings against A Niselli [2004] ECR I- in the absence of Community rules providing for specific
10853. sanctions to be imposed on individuals. 90
84 See the definition of a Community directive in art 249(3) EC.
85 See Case C–60/02 Criminal Proceedings against X [2004] ECR I-
651, where the ECJ confirmed that an EC regulation,
notwithstanding that it does not require national implementing
measures under art 249(2) EC, may not of itself and independently
of a law adopted by a Member State have the effect of determining 88 Article 230 EC (action for the annulment of Community acts
or aggravating personal criminal liability where the EC regulation breaching Community law; art 232 EC (action for a failure to act in
empowers Member States to adopt penalties for infringements of contravention of a legal requirement so to do under Community
its provisions. law).
86 See eg Case 148/78 Pubblico Ministero v Ratti [1979] ECR 1629. 89 Case 203/80 Criminal Proceedings against G Casati [1981] ECR
87 See eg Case 14/83 Von Colson and Kamann v Nordrhein-Westfalen 2595, first sentence of para 27 of judgment.
[1984] ECR 1891. 90 See eg Roger France ‘Influence of EC 1994) (n 21) p 336.

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