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

easoning, clearly places effectiveness as the main goal and links it directly with
proportionality and dissuasion. Then Harding moves on to explain what can be
understood by the three criteria proposed by the Court, suggesting that,
“Beginning with the, perhaps obvious but nonetheless crucial, statement that in the
present context effectiveness means supporting and reinforcing the value of the norms
and standards which have been breached, it should be clear that such strategy requires
(a) taking into account the nature and gravity of and the damage caused by the breach,
and (b) acting in a way to secure the rules or standards in the future, inhibiting further
violations. The first of these elements, proportionality of response, is important in
achieving a sense of fairness in enforcement, which in turn helps to ensure confidence in
and general support for the system of enforcement. The second element, dissuasion, is a
natural objective of a measure taken in response to the breach of a prohibitive norm, in
that it seeks to guarantee future respect for such a norm.” 225
As Harding further notes, the conduct in question in Greek Maize was a relatively
straightforward example as the fraudulent conduct of the Greek authorities and fraud, in
general, attracted a clear and widespread moral condemnation. Hence, according to the
author, in the case in question,
“a failure to use criminal proceedings to deal with such offending conduct would not
only breach the principle of assimilation, but would also undoubtedly be regarded as
insufficiently dissuasive.” 226
As the author continues, the question was however left open in relation to other cases
and it necessarily requires a consideration of each particular case and of the use of
particular measures in particular contexts of enforcement as this will vary from Member
State to Member State. 227
Regardless of this possible variation, the Court deeply reshaped the relationship between
the Community and national criminal law with this judgement. Most of the CJEU’s
intervention had thus far been in setting limits to national criminal law when the latter
would impair the attainment of an EC goal or provision. Greek Maize however, clearly
set an obligation that can potentially involve measures of criminal nature at a national
level, namely criminal prosecution and application of criminal penalties. This rather than
225 C. Harding, “Member State Enforcement of European Community Measures: The Chimera of
‘Effective’ Enforcement” supra note 121, 11.
226 Ibid., 17.
227 Ibid., 22.
62