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82 The emergence of European Union environmental criminal law – Part I : Hedemann-Robinson [2008] 3 Env. Liability
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In a case decided in 1992, the court came close to particularly those that proved necessary within the context
addressing the issue of Community competence in the of elimination of customs frontiers within the single market,
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criminal area. Germany had sought to annul certain EC it was clear that they wished to entrench the utilisation of
regulations adopted by the Commission stipulating that intergovernmental as opposed to any supranational
Member States were required to impose certain sanctions mechanisms for developing agreement on common
on farmers committing financial irregularities when approaches to combating crime. Specifically, this would
applying for EC funds. The regulations envisaged the mean that political agreement would have to be crafted
following types of sanctions be imposed on persons found upon the basis of the express consent of each Member State
guilty of fraudulent activity: recovery of any payment and would not be expected to have any legal force, other
together with interest; imposition of a surcharge; and than that attributed to agreements under standard principles
exclusion from Community financing schemes for a certain of international law.
minimum period. Germany conceded that the EC had
implied powers under the relevant common agricultural I.3.1 The establishment of the third pillar of the EU
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policy provisions of the EC Treaty to impose civil Upon entry into force of the TEU in 1993, for the first
sanctions, which would cover the first two types of financial time it appeared that the Member States had agreed to
sanctions. It denied that the Community had competence construct a clear legal basis for the development of political
to require the exclusion of persons from EC funding cooperation over crime at EU level in the form of the third
schemes, submitting that this amounted to de facto criminal pillar (Title VI TEU). The creation of the third pillar served
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sanction. The ECJ dismissed the German government’s to underpin a widely held view, and one most clearly shared
submissions, holding that all the sanctions set by the EC by the Council of the EU, that cooperation on crime at
legislation fell within the powers envisaged for the Union level should be and could only be legitimately based
Community under the EC Treaty’s agricultural policy on an intergovernmental as opposed to supranational basis.
provisions. The court rejected that the sanction of exclusion Although the third pillar was constructed relatively
amounted to a penal measure, holding that there was no early in the 1990s, it was a number of years before the
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significant difference between the imposition of a surcharge Member States were prepared to make use of its provisions
and exclusion from an economic benefit. As a result, it took and begin to craft common policies in the crime sector,
the view that there was no need to express any view on the including environmental crime. This was largely due to the
Community’s powers in the sphere of penal policy. The fact that the third pillar’s original provisions required
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court decided not to comment on Advocate General Jacob’s subsequent substantial changes by virtue of later amending
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opinion in that case that the Community did have implied treaties, principally the ToA (1997) and also the Treaty of
powers under the EC Treaty to harmonise Member State Nice 2001 (ToN), before they provided a sufficiently
criminal laws if that were necessary to attain one of the detailed and viable framework for policy development on
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objectives of the treaty. It did not do so until its judgment crime. The original version of the third pillar, entitled Title
in Environmental Crimes in 2005. VI Provisions on Cooperation in the Field of Justice and
Home Affairs, cited a range of policy areas as being matters
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of common interest among Member States, criminal and
I.3 The initial rise of intergovernmentalism in non-criminal, for the purpose of achieving the Union’s
European cooperation on environmental crime: objectives, in particular the free movement of persons.
1993–2000 These areas included asylum, immigration, judicial
The establishment of the tripartite framework of the EU cooperation in civil matters and customs cooperation. It
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by virtue of the TEU 1992 facilitated the possibility of was clear from this that the priority for Member States in
cooperation being developed between EU Member States relation to developing a criminal political dimension to
on the subject of criminal policy. While EU Member States Union affairs would be to focus on security aspects relating
declared themselves willing ultimately to cooperate over
certain aspects of environmental criminal policy,

96 For an in-depth legal analysis of the evolution of the third pillar
which is beyond the scope of this article, see eg S Peers EU Justice
91 Case C–240/90 Germany v Commission [1992] ECR I-5383. and Home Affairs (2nd edn Oxford University Press 2006).
92 See notably arts 34(2) and 37(2) EC (ex rts. 40(2) and 43(2)). 97 The TEU entered into force on 1 November 1993, one month
93 See paras 24–25 of judgment in Germany v Commission (n 91). after all the Member States had ratified the treaty.
94 See para 12 of his Opinion in Case C–240/90. 98 OJ 1997 C347.
95 OJ 1992 C191. 99 Arts K.1-K.9 EU, original 1992 version.

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