Penalties for Individuals

As regards penalties for individuals in breach of rules originating in EU law, Member States have a general obligation to guarantee the application and effectiveness of EU law. Unless specifically provided for in an EU legal act, Member States may choose the appropriate penalties but must ensure that infringements are penalised under conditions equivalent to the substantive and procedural rules of national law applicable to offences of a similar nature and seriousness.^[1] The standard is thus relative and depends on how similar actions are considered by the national legislature. However, it is generally required that penalties should be ‘effective, proportionate, and dissuasive’.^[2]

Many EU legal acts contain such generally formulated requirements on sanctions. For example, the Water Framework Directive prescribes the following:

Member States shall determine penalties applicable to breaches of the national provisions adopted pursuant to this Directive. The penalties thus provided for shall be effective, proportionate and dissuasive.^[3]

More specific penal law provisions can be found in Directive 2005/35/EC on ship- source pollution^{[4] [5] [6] [7] [8]} and in Directive 2008/99/EC on the protection of the environment through criminal law.ⁿ The latter is aimed specifically at ensuring that certain acts are considered criminal offences throughout the EU. It obliges Member States to ensure that certain listed conduct constitutes a criminal offence when unlawful and committed intentionally or with serious negligence. ‘Unlawful’ here refers to activities infringing any of a large number of listed EU legislative acts or infringing any law, administrative regulation of a Member State, or decision taken by a competent authority of a Member State that gives effect to such EU legislation^²

The directive lists activities that shall be punishable when they violate the stated acts or implementing arrangements and are committed intentionally or with serious negligence. Such activities include

the discharge, emission or introduction of a quantity of materials or ionising radiation into air, soil or water, which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants

as well as ‘any conduct which causes the significant deterioration of a habitat within a protected siteM³

Neither of these two directives specifies what penalties should apply to a particular conduct. This is left to Member States to decide.

The EU’s ability to impose specific criminal sanctions for breaches of EU law has been disputed. The dispute mainly concerned whether the EC possessed this competence or whether such decisions would be subject to the more intergovernmental decision-making process in what was then the EU’s third pillar. In two cases with environmental criminal elements concerning the validity of framework deci- sions,i⁴ the Court of Justice found that although in principle criminal legislation does not fall within the Community’s competence, the Community legislature was not prevented,

when the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities is an essential measure for combating serious environmental offences, from taking measures which relate to the criminal law of the Member States which it considers necessary in order to ensure that the rules which it lays down on environmental protection are fully effective.^{[9] [10] [11] [12] [13] [14] [15]}

By contrast, determination of the type and level of the criminal penalties to be applied did not fall within the Community’s competence.1⁶

After the amendments introduced by the Treaty of Lisbon, it follows now from Article 83(2) TFEU that minimum rules on definition of criminal offences and sanctions may sometimes be included in a directive. Such decisions are, however, subject to a special legislative procedure designed to protect fundamental aspects of the Member States’ criminal justice systems.

There are also examples of specific sanctions that are not of a criminal nature under environmental legislation. 1⁷ One is found in Directive 2003/87 on emissions trading. This provides for the publication of the names of operators who are in breach of the requirement to surrender sufficient emission allowances; and that any operator who does not surrender sufficient allowances to cover its emissions during the preceding year shall be held liable for the payment of an excess emissions penalty.1⁸

• [1] Case C-354/99 Commission v Ireland ECLI:EU:C:2001:550, para 46 and the cases referred totherein.
• [2] Ibid.
• [3] Directive 2000/60/EC of the European Parliament and of the Council establishing a frameworkfor Community action in the field of water policy [2000] OJ L 327/1, Art 23.
• [4] Directive 2005/35/EC of the European Parliament and of the Council on ship-source pollutionand on the introduction of penalties for infringements [2005] OJ L 255/11.
• [5] Directive 2008/99/EC of the European Parliament and of the Council on the protection of theenvironment through criminal law [2008] OJ L 328/28.
• [6] Ibid, Art 2a. 13 Ibid, Art 3(a) and (h).
• [7] 14 Council Framework Decision 2003/80/JHA on the protection of the environment through
• [8] criminal law [2003] OJ L 29/55.
• [9] Case C-176/03 Commission v Council ECLI:EU:C:2005:542, para 48 and Case C-440/05Commission v CouncilECLI:EU:C:2007:625, para 66.
• [10] Case C-440/05 Commission v Council (n 15), para 70.
• [11] R Meeus ‘Fill in the Gaps: EU Sanctioning Requirements to Improve Member State EnforcementofEU Environmental Law’ (2010) 7 Journalfor European Environmental&PlanningLaw 135—62, 149.
• [12] Directive 2003/87/EC of the European Parliament and of the Council establishing a scheme forgreenhouse gas emission allowance trading within the Community [2003] OJ L 275/32, Art 16(2)—(3).
• [13] 19 Communication from the Commission on implementing European Community EnvironmentalLaw (18 November 2008) COM (2008) 773 final.
• [14] L Kramer EU Environmental Law (7 th edn, Sweet & Maxwell, 2012) 398. See also Communicationfrom the Commission on the review of Recommendation 2001/331/EC providing for minimum criteria for environmental inspections in the Member States (14 November 2007) COM (2007) 707 final.
• [15] COM (2008) 773 final (n 19) 3-4. This Communication was supplemented in 2012 byCommunication from the Commission—I mproving the delivery of benefits from EU environment measures: building confidence through better knowledge and responsiveness (7 March 2012)