The Treaty on the Functioning of the EU (hereinafter TFEU) sets out in Article 83(2) the competence of the EU to employ criminal law measures if they are essential for the effective implementation of Union policies. Article 83(2) TFEU limits the Union competences to enact criminal law measures to criminal sanctions that are essential for the effective implementation of Union policies to materialize – it may be argued that the Union competence is constrained by the ultima ratio principle.39
Prior to the introduction of the Lisbon Treaty Dawes and Lynskey argued that the Community legislature should establish in each case whether criminal penalties are essential for the attainment of policy objectives.40
Inter alia the following grounds were given in the Commission proposal in 2007 regarding the introduction of environmental penalties: firstly the deterrent effect of harsher sanctions which would be followed by a lower number of offences and in general the need to introduce criminal penalties to implement Community’s environmental policy and the stronger criminal investigatory means that are lacking under an administrative regime. The Commission opined that only criminal penalties are adequately dissuasive.41
It may be pointed out that with regard to competition law infringements Wils has argued that more robust investigatory tools that are available under a criminal regime could provide effectiveness.42
Analysing the essentiality requirement is a part of a determination whether the criminalization of cartels should be undertaken. The word ‘essential’ may raise considerable interest, for example one commentator, Jacob Öberg, has examined the different language versions of the TFEU to determine whether variations exist as to the translation of the word ‘essential’ between different language versions. The result was that some versions appear to require that the criminal measures are ‘absolutely necessary’ whereas for example the Finnish and Swedish versions require only that the criminal measures are ‘necessary.’ Essentiality would then mean in the context of the Treaty that without criminal measures the Union policy could not be effectively implemented.43
39 Draft Council conclusions on model provisions, guiding the Council’s criminal law negotiations, JAI 868, DROIPEN 160, 16542/09, Brussels, 23 November 2009, pp. 4-5
40 Dawes and Lynskey 2008, p. 144.
41 See to this effect Commission Proposal on February 9th, 2007, COM(2007) 51 final, 2007/0022 (COD) p. 2.
As art. 83(2) TFEU gives competence for the EU to legislate in criminal matters when this is essential to effectively implement Union policies, Herlin-Karnell thinks that one may too easily suppose that criminal law brings with it effectiveness and checking on effectiveness is difficult – where goes the line beyond which it should be allowed to make the effectiveness claim. She points out that ‘most criminal lawyers and criminologists’ do not always regard criminal law as the best social control tool.44 She argues that
art. 83(2) TFEU is inexact in terms of the competence that the Union gets to legislate, and opines that the competence appears broad.45
When considering a criminalization in light of the principle of effectiveness, one line of argument goes on saying that the credibility of the criminal law system suffers as a result of a stipulation that is not effective (paper tiger argument). Too strict criminal law provisions on the other hand do not produce the desired effects as they loose the respect of the people. 46
Herlin-Karnell characterizes art. 83 TFEU as lex specialis authorizing the EU to legislate. From a constitutional perspective she thinks it’s problematic. She is of the opinion that if art. 83(2) TFEU could undermine the idea of using criminal law as the last resort if used as a ‘carte blance’. Further it would make attribution of powers futile.47 She points out that
overcriminalization goes against what is effective and calls for the observance of the principles of proportionality and subsidiarity in the field of criminal law.48 Art. 69 TFEU expects the national parliaments to safeguard these
principles when the Union legislates.49
According to Herlin-Karnell, the common perception is that those who seek to resort to a criminalization also need to prove that it would be effective, such burden according to her should not lie on those who do not propose the criminalization trajectory (this is the objective of the ultima ratio principle). 50
It has been pointed out that its possible that administrative sanctions could in many instances be more effective than criminal law penalties. According to this reasoning administrative penalties would be more effective due to the lack of subjective fault requirement. She however points out that sanctions should not be disguised as administrative ones, if in reality they are criminal, at least under the autonomous interpretation of the European
44 Herlin-Karnell 2012b p. 339; See Opinion of Advocate General Mazak, Case C-440/05 para. 115
45 ibid. p. 339
46 Herlin-Karnell Ester 2012a, p. 59. 47 Herlin-Karnell Ester 2012b, p. 339. 48 Herlin-Karnell 2012b . pp. 344-345. 49 Herlin-Karnell 2012b p. 344.
Court of Human Rights.51 She underlines that it is problematic that the EU
seems to use administrative penalties to in effect operate in the criminal law field. Importantly the crucial principle of nulla poena sine culpa enshrined in art. 6 ECHR is more limited under an administrative regime than under the criminal regime.52
Herlin-Karnell argues that symbolism, which is connected to effectiveness, raises questions if one sees European criminal law as a symbol. According to Herlin-Karnell, it is problematic if a criminalization is adopted on grounds of symbolism. She asks whether criminal law as a symbol guarantees effective protection or whether the goal is to attach a symbolic label on the offender. In her view the stigmatic label, that the criminal law brings with it is automatic and therefore, should not determine what gets criminalized as the result would lead to overcriminalization. 53
If the objective is to influence morals, one could argue that such effects should be examined for a more extensive period of time to see how the morals of the society are affected. In Herlin-Karnell’s opinion the EU is not at the stage yet where it could employ the criminal law symbolism to affect the public’s views on what is morally acceptable and what is not. 54
Öberg has opined that the Union should proceed with criminalizing cartels only once less restrictive measures such as director disqualification orders in combination with personal fines have been tested and proven ineffective. He points out that the Union is not experienced in using individual sanctions and that the deterrent effect of criminal penalties remains to be proven and thus criminal sanctions should not be adopted at this point. He thinks that the Union legislator would not necessarily be able to show that criminal sanctions would prove essential for the effective implementation of Union policies.55
As pointed out by Peers assessing whether the criterion of essentiality under art. 83(2) TFEU is fulfilled does not happen without difficulty. During the pre-Lisbon Treaty era this already applied to the criminal law competence of the Community, as per the case law.56 The ECJ specifically
referred to the essentiality requirement also in the Environmental Crime Case.57
51 See Herlin-Karnell 2012a, p. 58; See chapter ‘Punitive Administrative Sanctions in Finland: Neither Fish nor Fowl’
52 Herlin-Karnell 2012a, p. 59.
53 See Herlin-Karnell 2012a, p. 58; See in this work the discussion in chapter ‘Punitive Administrative Sanctions in Finland: Neither Fish nor Fowl’.
54 Herlin-Karnell 2012a, p. 59. 55 Öberg 2011, p. 313. 56 Peers 2012, p. 775.
Asp points out that the EU legislator is the one who should make the decision whether the criteria of essentiality are met, thus the criteria curbing the legislative competence of the legislator. The decision by the legislator is further possibly subject to the review by the ECJ. 58
The Court has stated that the Union legislator should have a broad freedom to decide on matters that concern ‘political, economic and social choices on its part,’ and that only manifest inappropriateness can render the measure invalid.59
The Environmental case’s analysis did not assess the possibility of introducing alternative sanctions and arguably the evaluation regarding the fulfillment of the necessity requirement could have been more thorough.60
Indeed critical views of the Environmental case have emerged relating to the principle of subsidiarity and attribution of powers as the Court only seemed to emphasize effective enforcement. Dougan argues that the court simply appeared to endorse the view that criminal sanctions are most effective.61
Dougan acknowledges that the decision on the criminal law measures is appropriately made by political institutions.62
Asp argues that ‘it is probably not realistic to require hard empirical data supporting the assertion that criminal law measures are essential – such data will seldom be available.’63 As opposed to that it could be expected
that an effort is made by citing the available evidence and from a practical point of view advancing arguments of sound judgment.64
58 Asp 2013 pp. 130-132
59 See Case C-210/03, Swedish Match AB and Swedish Match UK Ltd v Secretary of
State for Health. Para. 48
60 Dougan 2012 p. 101 61 Dougan 2012 p. 101
62 ‘Such basic political choices about the appropriate role and scope of the criminal justice system are not (and should not) be open to second-guessing by the courts. The judicial function is better discharged by a careful scrutiny of whether the legislature’s more detailed choices about offences and sanctions, as well as their actual application and enforcement within the Member States, complies with the principles of proportionality and other fundamental rights guarantees.’ Dougan 2012 p. 102 63 Asp 2013 pp. 130-132