The evolution of European Union criminal law (1957-2012)

infringement of Community rules on maritime safety. It then ascertained that the
necessity of criminal penalties to ensure compliance with such rules had been recognised
by the preambles of both Directive 2005/667 and Framework Decision 2005/667.
Accordingly, as Articles 2, 3 and 5 of the Framework Decision were designed to ensure
the efficacy of the rules adopted in the field of maritime safety, they were regarded as
being aimed at improving maritime safety as well as environmental protection and thus
could be adopted under the ECT(A) (Article 80(2)). The Court then turned to note that,
in contrast, the determination of the level and type of penalty to be applied did not fall
within the Community’s sphere of competence (hence, the provisions of the Framework
Decision which related to the type and level of penalties were not in infringement of
Article 47TEU(A)). However, the Court considered that these provisions were
inextricably linked with those relating to conduct; hence, the Framework Decision ought
to be annulled in its entirety. 489
The Court thus extended the Community’s competence in criminal matters to the field of
ship-source pollution and further emphasised the need for the effectiveness of EC law as
a central justification for criminalisation. However, the Court also set limits to this
competence, namely by clarifying that the imposition of precise sanctions (the choice of
type and level of penalties) still fell within the realm of the third pillar and repeatedly
reaffirmed that the objectives at stake were ‘essential Community’ objectives.
Nonetheless, according to Symeonidou-Kastanidou, the Court left three important
questions unanswered: when is the enforcement of criminal sanctions a ‘necessary’
measure; when can the threat of criminal penalties be justified as ‘effective’ (in
particular, when criminal law still hosts an intense debate as to whether penal sanctions
actually bear dissuasive powers); and, finally, which are the so-called ‘severe’ or ‘grave’
offences against the environment and how can they be distinguished from less severe
ones. 490
Certainly, this judicial “opening of the door” for the protection of EC interests and
policies via criminal law represented a very ambitious leap in the relationship between
the EC and criminal law and further expanded the boundaries of the former’s influence
on the latter. It certainly left many questions unanswered. However, it established
beyond any doubt the Community’s competence to adopt measures of a criminal nature
489 Para 74-74, ibid..
490 E. Symeonidou-Kastanidou, “Ship-Source Marine Pollution: the ECJ Judgements and their
Impact on Criminal Law” (2009) 17 European Journal of Crime, Criminal Law and Criminal
Justice 345. For an opinion of how the Court also left many questions unanswered particularly
relating to the scope of EC competence and the meaning of effectiveness see E. Herlin-Karnell,
“The Ship-Source Pollution Case C-440/05, Commission v Council, Judgment of 23 October
2007 (Grand Chamber)” (2008) 14 European Public Law 533-544.
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