Interplay between European Union criminal law and administrative sanctions: Constituent elements of transposing punitive administrative sanctions into national law
| Published date | 01 March 2022 |
| Author | Markus Kärner |
| Date | 01 March 2022 |
| DOI | 10.1177/20322844221085918 |
| Subject Matter | Articles |
Article
New Journal of European Criminal Law
2022, Vol. 13(1) 42–68
© The Author(s) 2022
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DOI: 10.1177/20322844221085918
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Interplay between European
Union criminal law and
administrative sanctions:
Constituent elements of
transposing punitive
administrative sanctions into
national law
Markus K¨
arner
Faculty of Law, University of Tartu, Estonia
Abstract
The post-Lisbon punitive sanctioning law of the EU is divided between criminal and non-criminal
sanctions. The legislator has preferred non-criminal sanctions for reasons of ultima ratio but more
recently also for reasons of efficiency. In the search for efficiency, the regulation on such sanctions
has become increasingly precise, and the legislator has started to refer to the administrative nature of
such sanctions. This can limit the discretion of the Member States in finding the most suitable way to
transpose such sanctions, and it could amount to a prohibition on resorting to criminal law (a
negative harmonisation of criminal law). When EU law prescribes specific requirements on ad-
ministrative sanctioning systems, fundamental aspects of national sanctioning systems might be
affected, and this can also bring about a lower protection for procedural guarantees. This article
explores the interplay between EU criminal law and administrative sanctions to ascertain whethe r
there is a coherent understanding of what the term administrative refers to in EU law. Based on this
evaluation, this article analyses whether the EU legislation allows for conclusions to be made on the
minimum requirements of transposing sanctions that are labelled as administrative into national law
(the constituent elements) and whether this labelling interferes with the use of criminal law.
Keywords
EU criminal law, administrative sanctions, administrative fines, administrative penalties, criminal
sanctions, non-criminal sanctions, Engel,Bonda
Corresponding author:
Markus K¨
arner, Faculty of Law, University of Tartu, N¨
aituse 20, 50409 Tartu.
Email: markus.karner@ut.ee
Introduction
The Treaty establishing the European Economic Community did not include any provisions on the
approximation of sanctions. However, it soon became clear that sanctions are a vital tool for
enforcing Community legislation. The 1977 Amsterdam Bulb and the 1989 Greek Maize judge-
ments established that Member States must ensure that infringements of Community law are
penalised by effective, proportionate and dissuasive penalties comparable to infringements of
national law (the Greek Maize trial).
1
In the 1992 case of Germany v. Commission, the European
Court of Justice held that it is within the competence of the Community to prescribe penalties for
infringements of Community legislation.
2
Whilst affirming a sanctioning competence, the question
of a fully-fledged criminal competence remained an issue of debate throughout the negotiations of
3
(signed in 1992), the Treaty of Amsterdam
4
(signed in 1999) and the cases
of annulment regarding Environmental Crime
5
and Ship-Source Pollution
6
in 2005 and 2007. The
need to enforce Community law, counterbalanced by the lack of clarity regarding the penal
competence and the Member States’protective approach to the sovereignty of national criminal law,
brought about legislation requiring Member States to sanction infringements of Community law
with non-criminal sanctions. This was a compromise between protecting the effective enforcement
of Community’s legislation, whilst granting the Member States a broad discretion regarding the type
and nature of the sanctions.
7
The 2007 Treaty of Lisbon
8
, which entered into force in December 2009, abolished the former
three pillars and outlined the limits of the European Union’s criminal law competence in Art 82 and
83 of the Treaty on the Functioning of the European Union (TFEU).
9
The emergency brake clauses
in Art 82(3) and 83(3) and the opt-outs negotiated by the Republic of Ireland, Denmark
10
and the
United Kingdom
11
illustrate the very cautious approach the Member States had in vesting the Union
with a competence to interfere with the national criminal justice systems.
12
1. Case C-50/76 Amsterdam Bulb BV v Produktschap voor Siergewassen [1977] ECR 00,137,para 33 and case 68/88
Commission v Greece [1989] ECR 02965, paras 23-24.
3. Treaty on European Union [1992] OJ C191/4.
4. The Treaty of Amsterdam amending the Treaty on European Union,the Treaties establishing the European Communities
and certain related acts [1997] OJ C340/1.
5. Case C-176/03 Commission of the European Communities v Council of the European Union [2005] ECR I-07879.
6. Case C-440/05 Commission of the European Communities v Council of the European Union [2007] ECR I-09097.
7. For more on the competence dispute’s effect on the dual-track sanctioning system, see Markus K¨
arner,‘Punitive
Administrative Sanctions After the Treaty of Lisbon: Does Administrative Really Mean Administrative?’(2021)2
EurCrimLRev 157, 160-165; Ester Herlin-Karnell,‘Is administrative law still relevant? How the battle of sanctions has
shaped EU criminal law’in Valsamis Mitsilegas, Maria Bergstr¨
om, Theodore Konstadinides (eds), 2016) 233-248 and
Samuli Miettinen, Criminal Law and Policy in the European Union (Routledge Taylor & Francis Group, 2013) 18-19.
8. Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [2007]
OJ C306/1.
9. Treaty on the Functioning of the European Union [2012] OJ C326/47.
10. For more on the rela tionship between Danish criminal l aw and the European Union, see Trine Baumba ch,‘Danish
criminal law and the EU’(2013) 3 EurCrimLRev 300.
11. The United Kingdom has since withdrawn from the Union.
12. For more on the limits of harmonisation of criminal law and the emergency brake provisions, see Kaie Rosin and Markus
K¨
arner, ‘The Limitations of the Harmonisation of Criminal Law in the European Union Protected by Articles 82(3) and
83(3) TFEU’(2018) 26 European Journal of Crime, Criminal Law and Criminal Justice 315.
K¨
arner 43
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