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

authorisation, could hinder the free movement of capital in accordance with EC law, and
hence ran contrary to the second paragraph of Article 4 of Directive 88/361. 351
In other cases, the Court looked at the intensity of penalties applied for certain crimes. In
Skanavi, for example, the Court took the view that although Member States remained
competent to impose penalties on individuals who breached their obligation to exchange
driving licences within one year of taking up resident in another Member State, Member
States were not entitled to impose a penalty so disproportionate to the gravity of the
infringement that it became an obstacle to the freedom of movement. 352
The fact that the CJEU evaluates the proportionality of an offence in relation only to the
possibility of it affecting the Community’s policy goals was clear in Banchero. Here, the
Court, when assessing national criminal law and, in this particular case, national
criminal penalties, noted that,
“The penalties facing Mr Banchero do not hinder in any way the importation of tobacco
products from other Member States, but merely tend to dissuade consumers form
obtaining supplies of tobacco products” 353 (…) “The severity of those penalties is thus
not a matter for assessment under Community law.” 354
Furthermore, during this period, the Court expanded the scope of its case law in criminal
matters, ruling on what can be called a ‘duty of positive action’ on the part of Member
States. This was the case in Commission v France (the so-called ‘Spanish strawberries’
case), which concerned the action of French farmers who launched a campaign to stop
the import of Spanish strawberries. 355 The campaign was violent and involved repetitive
road blockages, the burning of lorries carrying goods and threats against shops. At the
time, despite numerous criminal offences committed by the French farmers, French
authorities were very passive towards the events. In consequence, the European
Commission sued France before the CJEU. In its decision, the Court noted that when a
Member State abstains from taking action, or fails to adopt adequate measures to prevent
obstacles to the free movement of goods that are created by the actions of private
individuals in their territory, this abstention is likely to obstruct intra Community
351 Joined Cases C-358/93 and C-416/93 Aldo Bordessa v Vicente Mellado and Concepción
Maestre ECR I-376 [1995] para 25.
352
Case C-193/94 Criminal proceedings against Sofia Skanavi and Konstantin
Chryssanthakopoulos ECR I-929 [1996] para 36-38.
353 Case C-387/93 Criminal proceedings against Giorgio Domingo Banchero ECR I-4683 [1995]
Para 60.
354 Para 61, ibid..
355
Case C-265/95 Commission v France ECR I-6959 [1997].
96