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

“For that purpose, whilst the choice of penalties remains within their discretion, they
must ensure in particular that infringements of Community law are penalized under
conditions, both procedural and substantive, which are analogous to those applicable to
infringements of national law of a similar nature and importance and which, in any
event, make the penalty effective, proportionate and dissuasive.” 223
In Greek Maize the Court set two general obligations upon Member States. First, an
obligation of assimilation or equivalence, by requiring Member States to ensure that
breaches of Community law are sanctioned on conditions, substantive and procedural,
analogous to those applying to breaches of national law of a similar nature and
importance; and that national authorities must proceed in relation to breaches of
Community law with the same diligence as they use in implementing national law. And,
second, an obligation of efficacy, holding that whilst Member States retain a choice of
sanctions, measures taken should in every case confer on the sanction an effective,
proportionate and dissuasive character.
Klip has suggested that this decision can cause difficulties of interpretation in some legal
orders as the decision to prosecute or not to prosecute at a national level can be
discretionary in some Member States. Whilst in some national legal orders prosecution
of crimes is pursued based on the principle of legality, which holds that all offences that
come to the attention of the police or the prosecution must be prosecuted; other legal
orders allow for more discretion, in accordance with the principle of opportunity, which
conveys that a prosecutor may decide not to prosecute based on general interest. In
practice, however, differences between the two are not very steep as both principles
allow for exceptions and have qualifications made to them. According to Klip the
enforcement obligation set by the CJEU
“... does not require Member States to do the impossible. In other words, if the case has
been seriously investigated and there is simply insufficient evidence to sustain a
conviction, a Member State may refrain from bringing charges, on condition that it
would do the same with regard to the enforcement of national law unrelated to Union
law.” 224
The requirement of ‘effectiveness’ set by the CJEU in Greek Maize can also leave some
room for doubt as to the exact meaning of the ‘effective, dissuasive and proportional’
character of a sanction; the Court did not elaborate upon this. Harding offered some
guidance in how to read these these criteria. First, the author notes that the Court, in it’s
223 Para 24, ibid..
224 A. Klip, European Criminal Law, supra note 15, 251.
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