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[2008] 3 Env. Liability : The emergence of European Union environmental criminal law – Part I : Hedemann-Robinson 7777
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to cut across issues concerning the application of criminal Specifically, these were in relation to money laundering 49
law, the Member States took care to include treaty clauses and insider dealing. The Commission considered that
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to ensure that any EC measures adopted under those new obligations on Member States to ensure the imposition of
policy provisions would ‘not concern the application of criminal liability under national law fell within the scope
national criminal law or the administration of justice’. 45 of the EC Treaty and that the mechanism of the criminal
These steps appeared to reflect a widely-held assumption law would be justified on the grounds that it was necessary
among Member States that it was not legally possible to to ensure that policy implementation would be effective.
imply any Community competence to enact criminal The Council contested the Commission’s view that such
measures in other existing policy areas, and therefore there obligations fell within the legal competence of the
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was no need to include clauses excluding Community Community and the resulting Community directives for
competence on crime to apply generally across the entire both initiatives contained no specific reference to criminal
span of Community policies. In the light of the 2005 liability. Instead, it was decided in the EC legislation that
judgment in Environmental Crimes, several Member States Member States would be required to ‘prohibit’ certain
may well have regretted this. activities and were subject to generally worded obligations
The European Commission’s position over the issue of to determine to the penalties to be applicable in relation to
Community legal competence in the area of criminal policy infringements of the Community legislation. 52
has arguably been far less clear and consistent than that of Since then, and until the turning point achieved in the
the Council. In the earliest phase of Community Environmental Crimes case, Community legislative initiatives
development, the Commission appeared to rule out EC on combating unfair and fraudulent commercial activity
competence in the field of criminal policy, as expressed in have consistently followed the approach of devolving to
its 1974 General Report on the Community’s activities. 46 Member States how to implement Community legislative
Its interest in the area of criminal policy was accordingly obligations requiring the imposition of restrictions on
relatively limited. In the 1970s, work was carried out with certain types of behaviour in the market place, while
a view to drawing up draft proposals for conventions on imposing general obligations on Member States to ensure
criminal liability of Community civil servants and on that the national rules used to apply sanctions on persons
criminal liability of persons guilty of defrauding the breaching Community requirements are effective,
Community budget. It is significant that the Commission proportionate and dissuasive. Alternatively, where the
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considered that none of the provisions of the EC Treaty Community has determined that specific penalties are to
provided an appropriate legal basis to promulgate be applied by Member States in respect of infringements
Community legislation on these or other criminal matters. of Community rules, care has been taken to exclude
The draft conventions were proposed on the basis of the
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equivalent of Article 48 EU, which foresees an increase
in the existing scope of Union activities to be secured by
way of consensus among Member States and ratification
according to domestic constitutional arrangements.
49 COM(1990)106 final, Commission Proposal for a Directive on
After the adoption of the SEA 1985, the Commission’s the Prevention of Use of the Financial System for the Purpose of
position appeared to change. In two draft legislative Money Laundering (OJ 1990 C106/6), especially 4th recital and
art 2.
initiatives forming part of the Community’s package of 50 Commission Proposal for a Directive Coordinating Regulations
measures to secure realisation of the SEA’s objective to on Insider Trading (OJ 1987 C153/8 and OJ 1988 C277/13).
secure a single market by the end of 1992, the Commission 51 Former Directive 89/592 coordinating regulations on insider
dealing (OJ 1989 L 334/30) and former Directive 91/308 on
originally proposed Member States be required to prevention of the use of the financial system for the purpose of
criminalise certain illicit commercial trading activities. money laundering (OJ 1991 L166/77).
52 The Member States did publish a statement annexed to the
former Money Laundering Directive 91/308 promising to enact
criminal legislation in order to enable them to comply with the
directive’s obligations (OJ 1991 L166/83).
53 See Directive 2003/6 on insider dealing and market
45 Article 135 EC, second sentence and art 280(4) EC, second manipulation (market abuse) (OJ 2003 L96/16) esp art 14;
sentence. Directive 2005/60 on the prevention of the use of the financial
46 See point 145 of the Commission’s Eighth General Report on the system for the purpose of money laundering and terrorist financing
Activities of the European Communities 1974 (OOPEC 1975, Brussels/ (OJ 2005 L309/15) esp art 39; Directive 2006/24 on the
Luxembourg). retention of data generated or processed in connection with the
47 See points 146–147, ibid and OJ 1976 C222/2. Neither provision of publicly available electronic communications services
initiative was adopted. or of public communications networks and amending Directive
48 Article 236 EEC. 2002/58 (OJ 2006 L105/54) esp art 13.

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