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: EU indirect sanctions: the adoption of common standards concerning the duty incumbent upon the Member States to sanction breaches of Union law

As an inherent feature of the EU composite legal order, the Member States are the traditional enforcers of EU law, by virtue of the duty of loyal cooperation enshrined in Article 4(3) TEU. In most policy areas, the broad obligation incumbent upon the

Member States to take all measures necessary to implement and apply EU law effectively encompasses the adoption of sanctions. From a domestic perspective, this multi-level dynamic of compliance could be seen as a much needed self-restraint of the Union, on the deeply held assumption that all aspects of the sanctioning cycle -from the abstract normative choices on the type and severity of the relevant measures to their enforcement - touch upon the noyau dur of national sovereignty.

In line with this, until the early 1980s, the Union offered leeway to national authorities on their choice of measures for enforcing EU law, refraining from imposing specific harmonised sanctioning standards. Accordingly, in Amsterdam Bulb, the Court took the stance that loyal cooperation “allows the Member States to choose the measures which they consider appropriate”, without further specific constraints.[1] Yet, in 1989, the Greek Maize case marked the rise of a second season of the EU legislature’s practice. While setting the scene for a stricter assessment of the compatibility of national sanctions with the general principles of EU law, the Court clarified that the relevant domestic sanctions must comply with three cumulative criteria, namely effectiveness, proportionality and dissuasiveness. In the aftermath of this judgment, the European legislature began to include the “effective, proportionate and dissuasive” refrain as a matter of routine in any provisions requiring the Member States to sanction an infringement of EU law, although it can be considered to merely codify pre-existing general obligations already deriving from Article 4(3) TEU.

Building on the advances made by Greek Maize, the European institutions decided to develop further the normative approach to the indirect exercise of their sanctioning powers. In an increasing set of policy domains, the EU legislature - and sometimes the Commission, in its capacity as a delegated authority - began to provide more specific indications on the type and level of sanctions to be implemented in the national legal orders. This third normative season is now well-established, to the extent that the persisting reference to effective, proportionate and dissuasive sanctions very often takes the shape of specific legal contours within which the domestic authorities must contextualise their (now more limited) discretion. Even though the panorama is extremely diversified, some recurring features can be identified. EU legislation usually provides for abstract types of measures - or at least some of them - to be made available to the competent national authorities and sometimes clarifies the type and severity of conduct to which these pre-determined measures should apply. Moreover, these instruments often include quantitative thresholds, such as the minimum and/or maximum scale of nominal sanction common to all Member States,[2] or at least provide a series of factors to be taken into consideration when determining the amount of a penalty. Finally, as already outlined above for direct EU ius puniendi, on many occasions, the forms of sanctions prescribed by EU acts lead to domestic measures that reflect the infringement concerned and are tailor-made to it.

The development outlined above entails a partial paradigm shift from the traditional way of conceiving EU law enforcement, although the formal allocation of this task is still centred on the necessary intervention of the Member States. From a functional perspective, it also represents an example of how the EU legislature attempts to maximise the scope of the legal bases enshrined in the Treaties, with a view to securing the full effectiveness of EU law. These normative constraints to national legislatures can be seen as an instrument for avoiding undue departures from EU law. Their main rationale is to establish an EU-wide level playing field in which sanctions can effectively punish and deter violations of EU law, while avoiding the detrimental implications of the two opposite poles of the sanctioning range: the creation of safe havens where significantly less severe measures can encourage non-compliance and, conversely, the choice of types and levels of sanctions which are - per se or in specific cases - disproportionate to the infringement they are intended to address.

In this respect, the identification of the essential elements of the sanctions to be transposed into national law pre-determines the forms and severity of sanctions that are likely to be considered as “effective, proportionate and dissuasive”. XThile it contributes to securing the implementation of EU policies, this approach also contributes to preventing these measures from being cancelled following a judicial review at national and European levels, unless the EU normative choices are per se disproportionate or a Member State departs from the EU-pattern when transposing them.50 Of course, the trend outlined above does not automatically secure the compatibility of domestic enforcement activity with the general principles of EU law. Leaving aside situations of erroneous implementation, the actual sanctioning scales may be influenced by other branches or aspects of national legislation falling outside the scope of EU competences, thereby leading to the imposition of excessively harsh measures.

Interestingly, this third wave of EU sanctions regarding the Member States has gradually expanded to the Union’s competence to impose duties of criminalisation. This domain is of particular significance from the viewpoint of proportionality, as confirmed by Article 49(3) of the Charter, which enshrines the principle of proportionality of criminal offences and penalties.

Article 83 TFEU has equipped the EU with the competence to adopt minimum rules common to the Member States regarding the definition of certain offences and the determination of the type and level of the related sanctions. While the Third Pillar legal bases only provided for the competence to harmonise “minimum maximum penalties”, namely the minimum threshold of the maximum penalty available for sentencing at national level, Article 83 TFEU has, in principle, amplified the Union’s role, extending its harmonisation powers to the lowest degree of the nominal penalty scale. Although, thus far, the EU has not exercised the latter competence, the codification of the EU’s competence to harmonise national criminal legislation has further boosted the Union legislature’s practice to established detailed rules on penalty scales, aggravating and mitigating circumstances, and other factors influencing the severity of nominal sanctions that should be made available to law enforcement and judicial authorities. Overall, the Union appears to be increasingly eager to articulate a minimum common basis for a shared understanding of interests requiring protection and of the intensity of the reaction of domestic penal systems to a given criminal conduct. For our purposes, the question is then whether or not the principle of proportionality of criminal sanctions plays any role in the EU decision-making process in this area.

The 2011 Commission Communication on European criminal policy provides useful guidance in this respect.32 On that occasion, the Commission stressed the importance of adopting common rules on penalties, as a means of guaranteeing deterrence and avoiding “safe havens “with attractively lenient sanctioning systems, fostering security across Europe.33 The Commission usually reiterates these arguments as a mantra for substantiating its proposals for new legislative acts harmonising substantive criminal law and the related minimum or penalties. Crucially, the relevant EU legislation translates these underlying objectives into the aforementioned refrain that sanctions must be “effective, proportionate and dissuasive”. In

1

’’See, for instance, Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism, OJ 2017, L 88/6 which prescribes different penalty scales for a series of criminal behaviours included in the category of terrorist offences.

>2 Communication from the Commission COM(2011)573 of 20 September 2011, Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies throughout criminal law.

53 The Commission also contends that common standards on punishment can foster judicial collaboration, as they contribute to ensuring that reactions to a crime will not differ greatly from one State to another.

line with an overarching deterrence narrative, many expected to see an increase in penalty scales at national level, due to the harsher EU minimum common rules. It has been highlighted that harsher punishment is an easy way of (apparently) strengthening dissuasiveness while coping with the fragmentation of national legal orders with regard to the type and level of penalties. However, studies conducted thus far lead to the rejection of the idea of a generalised EU-driven aggravation of penalty scales in the national scenarios.[3]. Moreover, and a fortiori when dealing with minimum harmonisation instruments, nominal penalties rarely correspond to actual levels of (and trends in) punishment. A wide range of exogenous factors pertaining, inter alia, to national criminal law and criminal law enforcement contribute to amplifying the fragmentation of domestic legal regimes and the solutions to which they could lead. This means that, provided that the minimum common rules on penalties adopted at EU level are not plainly unreasonable or disproportionate, the proportionality match is mainly played at the level of national penal systems, which are expected to ensure that, either systemically or in each individual case, this general principle is respected.

  • [1] 50/76, Amsterdam Bulb, ECLI:EU:C:1977:13, para. 32. In the same paragraph, the Court also clarified that such measures “may even be criminal in nature”. 2 68/88, Commission v. Greece, ECLI:EU:C: 1989:339, paras 24 and 25. 3 The same refrain appears in Article 325 TFEU. 4 The panorama of sanctions that EU law requires Member States to implement is increasingly wide. For instance, Article 16(2) of the so-called Emission Trading Scheme Directive 2003/87/EC states that, among the relevant measures, the national authorities must ensure the publication of the names of the operators that are held responsible for certain conduct.
  • [2] See, for instance, Arts 63 and 64 of Regulation 1306/2013 of the European Parliament and of the Council of 17 December 2013 on the financing, management and monitoring of the common agricultural policy, OJ 2012, L 347/549. 2 See, for instance, Article 19 of Regulation (EU) no. 995/2010 of the European Parliament and of the Council of 20 October 2010 laying down the obligations of operators who place timber and timber products on the market, OJ 2010, L 295/23. 50 See infra, Section 3.3.
  • [3] 54 T. Elliolm, ‘Does EU Cooperation Necessarily Mean Increased Repression in the Nordic Countries?’ (2009) 17 European journal of Crime, Criminal Law and Criminal Justice, 204. 2 55 In the past, the Court sometimes used a bipartite test, assessing if the means employed corresponded to the importance of the aim and were necessary for its achievement. See C-66/82, Fromançais v. FORMA, ECLI:EU:C:1983:42. 3 ,6G. de Biirca, ‘The principle of proportionality and its application in EC law’, (1993) 13 YEL
 
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