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76 The emergence of European Union environmental criminal law – Part I : Hedemann-Robinson [2008] 3 Env. Liability
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determine the best means of implementing Community political positions against Community involvement in the
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obligations. It has been argued that in the relatively earliest field of law and order. It is true that, technically speaking,
years of the EC, the Community legislative institutions the principle of subsidiarity does not provide a specific legal
appeared on occasion to be prepared to require Member tool for assisting in determination of the existence of
States to criminalise certain infringements of Community Community competence in a given policy area. Instead, its
35
law, such as in the area of agricultural policy. However, principal remit is to offer a framework for the political
the main EC legislative instruments requiring Member institutions of the Community to use in order to assess
States to impose sanctions for breaches of Community rules whether EC intervention is more appropriate than leaving
have deferred to individual Member States over whether the matter to individual Member State action, where
or not this should translate into meaning criminal liability competence is recognised as being shared between EC and
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under national law. Community legislation has been used national levels. The subsidiarity principle places an inherent
to specify that civil penalties be applicable in certain preference for devolving matters of shared competence to
common policy areas, notably in relation to persons found the national level. Specifically, the onus is placed on
guilty of fraudulently accessing EC funds. 37 Community institutions, notably the Commission, to justify
The incorporation of the principle of subsidiarity 38 the application of Community legislative competence and
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within the legal fabric of the Community legal order, by a strong preference is placed on utilisation of the instrument
virtue of the TEU and the Treaty of Amsterdam (ToA) of the Community directive where EC action is deemed to
1997, without doubt served to entrench Member State be warranted. 41
39
A Community directive is defined in the EC Treaty as
being binding on its Member State addressee(s), but shall
leave to the national authorities the ‘choice of form and
42
methods’. Directives therefore foresee a certain degree
34 See eg point 1 of the joint ministerial Declaration on the of choice and flexibility allowed to Member States over
Implementation of Community Law annexed to the TEU (OJ 1992
C191) and fourth recital of the Council Resolution on the effective the implementation of their obligations. Typically, this will
application of Community law and on the penalties applicable for mean that where a directive requires Member States to
breaches of Community law in the internal market (OJ 1995 C188/1).
35 See eg J Bridge ‘The European Communities and the Criminal adhere to minimum standards commensurate with the
Law’ (1976) Criminal Law Review p 88; J Dine ‘European achievement of Community objectives, such as the
Community Criminal Law?’ (1993) Criminal Law Review p 246; attainment of a high level of environmental protection as
Roger France ‘Influence of EC Law’ (n 21) p 336.
36 See eg art 29 of reg 1616/68 concerning commercial specified in Articles 2 and 174 EC, the instrument of the
standards on the marketing of eggs (OJ 1968 Sp Ed (II) p 489) directive devolves power to the individual Member States
cited by Bridge (n 35) as a key example of an EEC regulation
requiring the imposition of criminal liability. Whereas the English to determine how national law should transpose its
version of that provision requires Member States to take all obligations to apply at national level, namely by way of civil,
appropriate measures to ‘penalise’ infringements of the regulation, administrative and/or criminal legal rules. The principle
the French version uses the more open-ended term ‘sanctionner’,
which would cover both civil and criminal penalties. Moreover, of subsidiarity under EC law therefore envisages that
recital 22 to the regulation in the French version refers only in decision-making over the type of legal instrumentation to
general terms to the need for Member States to provide for
sanctions against persons infringing the requirements of the be used to shape social behaviour so as to conform with EC
regulation (‘les sanctions applicables aux contrevenants’). law, such as the use of criminal law, should ideally be
37 For instance, in relation to funding under the auspices of the determined at the national as opposed to Community level.
European Agricultural Guidance Fund (referred to in eg Case C–
240/90 Germany v Commission [1992] ECR I-5383) and funding When the ToA incorporated powers for the Community
under the aegis of the European Social Fund (referred to in eg Case to develop common policies in the areas of customs
C–186/98 Criminal Proceedings Against M Nunes and E de Matos 43
[1999] ECR I-4883). cooperation and fraud affecting the Community’s financial
38 Article 5 EC. interests, policy areas which would typically be expected
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39 See para 7 of the Protocol on the Application of the Principles
of Subsidiarity and Proportionality, annexed to the EC Treaty by
virtue of the ToA, where it is stated that with reference to the use
of EC measures: ‘Regarding the nature and extent of Community
action, Community measures should leave as much scope for 40 Article 5(2) EC in conjunction with the Protocol on the
national decision as possible, consistent with securing the aim of Application of the Principles of Subsidiarity and Proportionality,
the measure and observing the requirements of the [EC] Treaty. annexed to the EC Treaty (esp para 9).
While respecting Community law, care should be taken to respect 41 ibid para 6.
well-established national arrangements and the organisation and 42 Article 249(3) EC.
working of Member States’ legal systems. Where appropriate and 43 Title X (Customs Co-operation) of Part 3 (Community
subject to the need for proper enforcement, Community measures Policies) of the EC Treaty: art 135 EC.
should provide Member States with alternative ways to achieve the 44 Article 280 of Title II (Financial Provisions) of Part 5
objectives of the measures.’ ((Institutions of the Community) of the EC Treaty: art 280 EC.

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