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

criminal sanctions, such as civil or administrative sanctions, will be sufficient to ensure
policy implementation or whether criminal law would address the problems more
effectively. The second stage in the adoption of EU legislation is the decision of which
concrete measure to adopt when there is a demonstrated need for criminal law. Here, the
Commission identifies four main elements to be taken into consideration. First, it
reasserts the EU’s competence to adopt minimum rules only, although these must be
clear enough to respect the principle of legality. Second, it reasserts the criteria of
‘necessity’ and proportionality in the choice of criminal offences. Third, the need for
clear factual evidence about the nature and effects of the crime in question as well as
divergent legal situations in Member States which could jeopardise the effective
enforcement of an EU policy. Finally, the Commission reasserts the need for
effectiveness of the penalty applicable which might involve the ‘tailoring of the sanction
to the crime’. This could involve the use of sanctions such as confiscation, for
example. 943
The Commission’s Communication makes a clear first attempt at the formulation of
principles of criminalisation or criteria for such formulation at the EU level. Underlying
this attempt, three main ideas become salient: subsidiarity (the EU should only intervene
if it is shown to be necessary due to the scale and effects of the measures needed);
criminal law as ultima ratio (the principle according to which criminal law should be of
last resort); and effectiveness (the demonstrated need that a particular EU policy is not
efficient without the help of criminal sanctions). 944
How the EU in general, or the Commission in particular, will articulate these principles
in practice is yet to be seen. Indeed, as seen in Chapter 3, the effectiveness of EC
policies and interests was the strongest argument in the Commission and CJEU’s
reasoning for the need to adopt of criminal measures. Particularly in relation to the
protection of EC’s environmental policy via criminal law, there were arguments put
forward that criminal law was not necessarily the most effective means to ensure
compliance with environmental policies. 945 However, the CJEU and the Commission
both seemed to assume that criminal law could guarantee such effectiveness per se. 946
This suggests that the Commission will have to seek a balance between the criteria of
effectiveness and that of ultima ratio. The necessity for this balance is indeed indirectly
voiced in the Communication when, the need for more ‘factual evidence’ is mentioned
by the Commission. In particular, the Commission mentions ‘Impact Assessments’
943 Ibid., 7-8.
944 A. Klip, “Editorial: European Criminal Policy”, ibid., 6.
945 M. Faure, “European Environmental Criminal Law”, supra note 480; and B. Lange,
“Environmental Criminal Law in a European Context”, supra note 481.
946 See chapter 3.
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