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PUNITIVE ADMINISTRATIVE SANCTIONS AND PROCEDURAL SAFEGUARDS
A Blurred Picture that Needs to be Addressed*
Anne Weyembergh** and Nicolas Joncheray*** ABSTRACT
In order to ensure eff ectiveness of European Union law, the legislator progressively
introduced punitive sanctions in various fi elds of administrative law. If the defi nition of
punitive administrative sanction is already complex, its erratic use in the European
Union legal order further contributes to the blurriness of the boundaries distinguishing
administrative sanctions from criminal sanctions. Consequently, the current
approximation of the applicable standards in the European legal order is insuffi cient as
the standards imposed by the European Court of Human Right, the Court of Justice of
the European Union and national courts diff er, notably on the extent to which punitive
administrative sanctions should comply with guarantees applicable to criminal law
procedures. Overcoming the hurdles of approximation requires the legislator’s
intervention in order to set a coherent standard.
Keywords: administrative law; criminal law; fair trial; Engel criteria; EU law;
procedural safeguards; punitive administrative sanctions
Over the last decades, the boundaries of repressive law evolved in such a way that it
became increasingly diffi cult to draw a clear dividing line between core criminal
law and administrative law when the later encompasses punitive administrative
sanctions. Approaching punitive administrative sanctions implies entering a “ foggy
grey zone”1 belonging to something in between criminal and administrative law.
* Th is contribution is a follow-up of the 2013 ECLAN annual conference entitled “Do labels still
matter? Blurring boundaries between administrative and criminal law. Th e infl uence of the EU”, F.
Galli and A.Weyembergh, Editions de l’ULB, 2015, 251 p.
** President of the Institute for European Studies of Université Libre de Bruxelles, Professor and co-coordinator of ECLAN.
*** Researcher at the European Law Center at the Université Libre de Bruxelles. 1
A. Bailleux, “Th e Fift ieth shade of Grey. Competition Law, ‘criministrative law’ and Fairly fair 190 Intersentia
Punitive Administrative Sanctions and Procedural Safeguards
Th is is particularly clear in the case of competition law that has long been considered
as pertaining to administrative law but that increasingly resembles criminal law
and has been qualifi ed by some authors, as Antoine Bailleux, as “criministrative law”.2
Th e classifi cation of a measure as administrative or criminal is far from being
theoretical as it preconditions the applicable legal regime and especially the level of
procedural safeguards benefi ting to those sanctioned. Administrations have indeed
adopted repressive measures without granting the addressee the procedural
guarantees attached to repressive measures taken under the umbrella of criminal law.
In order to oppose the temptation for public authorities to manipulate their
domestic defi nitions by qualifying criminal sanctions as “administrative” in order
to escape the safeguards and guarantees required in criminal law, the European
Court of Human Rights has developed its so-called Engel case-law.3 Th e Court gave
an autonomous and extensive meaning to the “criminal law” category and considered
that, for the purpose of application of Article 6 of the European Convention on
Human Rights, even State measures which are not expressly characterised as
criminal can nonetheless fall into that category depending on the nature of the
off ence concerned and the degree of severity of the penalty provided for.4 In creating
a new category of “quasi-criminal” measures5, the European Court of Human
Rights tried to circumvent the diffi culty of classifying a measure as being of
administrative or of criminal nature, as prescribed by its own case-law,6 but
increased in return the level of confusion surrounding its autonomous interpretation of criminal sanction.
Th e level of complexity is all the larger given that the case-law of the Court of the
Justice of the European Union does not seem to always be perfectly in line with the
European Court of Human Rights’ decisions.
Trials”, in F. Galli and A. Weyembergh (Eds), Do labels still matter? Blurring boundaries between
administrative and criminal law – Th e infl uence of the EU, Bruxelles, Editions de l’ULB, 2014, p. 139. 2
Ibid. p. 137 and f. See also for instance contribution of L. Bernardeau and E. Th omas at the
Conference for the 50th anniversary of les Cahiers de droit européen, 10 September 2015, Brussels,
“Principes généraux du droit et contrôle juridictionnel en droit de la concurrence: ‘M. Jourdain: juge pénal?’”. 3
ECtHR, 8 June 1976, Engel e.a. v Th e Netherlands, para. 82, to be read in conjunction with ECtHR,
21 February 1984, Ötztürk v Germany, para. 53, amending the second criterion in focusing on the
aim of the sanction instead of its nature. Further developed below in part I.A. 4
About the evolution of the case-law of the ECtHR in this fi eld, see P. Caeiro, “Th e infl uence of the
EU on the ‘blurring’ between administrative and criminal law”, in F. Galli and A. Weyembergh
(Eds), Do labels still matter? Blurring boundaries between administrative and criminal law – Th e
infl uence of the EU, Bruxelles, Editions de l’ULB, 2014, p. 171–190. 5
ECtHR, 23 November 2006, Jussila v Finland, para. 43. 6 Ibid.
New Journal of European Criminal Law, Vol. 7, Issue 2, 2016 191
Anne Weyembergh and Nicolas Joncheray
Th e importance of the topic results from the broad variety of norms falling within
the category of punitive administrative sanctions at the national level but also and
particularly at the European Union level. Regarding general European Union law, the
notion of punitive administrative sanctions is potentially triggered as soon as the
administrative enforcement of European Union policies is at stake. Regarding the
Area of Freedom, Security and Justice, even though most of the time administrative
sanctions are not covered by the instruments pertaining to police and judicial
cooperation in criminal matters, punitive administrative sanctions are relevant in this fi eld as well.
Notwithstanding the attention of the special issue to the notion of citizenship, the
present contribution will not specifi cally address the relationship between citizenship
and punitive administrative sanctions. Within the European Union all the addressees
are benefi tting from the same procedural and substantial safeguards regardless of
their nationality. Th is situation is justifi ed for two reasons. First, the targets of
punitive administrative sanctions are most of the time legal persons, that are by
defi nition deprived of Union citizenship (although some of the rights initially meant
for Union citizens have been extended to them, such as the right to seize the mediator
or the petition commission of the European Parliament7). Second, because a
diff erence in treatment-based not on the nature of the measure (administrative or
criminal) but on the addressee would most probably be considered to be discriminatory.
Whilst citizenship does not imply any special treatment, it does not constitute a
general protection that would enable an individual to escape a sanction either. When
assessing the compatibility with Union law of the loss of Union citizenship due to the
application of German law (enabling the administration to retrieve a naturalisation
acquired by intentional deception), the Court concluded that such a retrieval is
compatible with Union law, if it is to be found proportionate.8 Th ere is nevertheless a
specifi c protection granted by Union citizenship when it comes to exclusion orders
addressed to relatives of Union citizens. Pending cases might consolidate the
protection for third country nationals from expulsion orders when the targeted
individuals are parents of Union citizens.9
Citizenship might also have an indirect impact on punitive administrative
sanctions. Citizenship is the basis of the exercise of free movement, that in return
triggers the applicability of Union law, including the rights entailed in the Charter. If
the protection off ered under Union law goes beyond the case-law of the European
Court of Human Rights, two addressees will benefi t from diff erent safeguards if one
is considered to be in a purely internal situation and if the other made use of the free 7 See Articles 227 and 228 TFEU. 8
CJ, 2 March 2010, Janko Rottmann v Freistaat Bayern, C-135/8, ECLI:EU:C:2010:104, para. 54–59. 9
See CJ, CS, C-304/14, ECLI:EU:C:2016:75 and CJ, Rendón Marín, C-165/14, ECLI:EU:C:2016:75, both currently pending. 192 Intersentia
Punitive Administrative Sanctions and Procedural Safeguards
movement provisions. Such a situation is however to be analysed under the prism of
reverse discrimination rather than under the lens of citizenship.
Furthermore, the freedom of establishment could enable individuals or companies
to settle down in the Member States off ering the strongest procedural safeguards or
the lowest possible sanctions. However, such a possibility should not be overrated. If a
certain form of forum shopping is tolerated by European Union law, the case-law
preventing abuse of law is abundant10 and the conditions and rules applicable to this
freedom are well established.11 It is also doubtful that an individual or a company
considers such variables as being as important as economic considerations when
deciding on the location of its headquarters.
Taking into account citizenship’s neutrality towards punitive administrative
sanctions, the present contribution will rather focus on the blurred delimitation
between punitive administrative sanctions and criminal law.
One might be tempted to believe that this blur is a necessity deriving from the
complexity of the legal integration process at stake and that it provides the
legislator with room for manoeuvre. However, aft er showing how blurred this
delimitation actually is (I), the present contribution argues in favour of a
clarifi cation of such a delimitation given the importance of administrative punitive
sanctions in the fi eld of European Union law and the consequences for the addressee (II). 1.
THE PUNITIVE ADMINISTRATIVE SANCTIONS’ BLURRED BOUNDARIES
Th e notion of administrative punitive sanctions is particularly complex (A). Th is
complexity and the blurred boundaries of the concept of punitive administrative
sanctions are reinforced at European Union level, especially because of the very nature
of the legal integration process, and the legislator’s variations between functional and
formal approaches, depending on the fi eld of law or on the specifi c legal act concerned (B). 10
See for instance CJ, 14 December 2000, Emsland-Stärke GmbH v Hauptzollamt Hamburg-Jonas,
C-110/99, ECLI:EU:C:2000:695 for agriculture, CJ, 23 March 2000, Diamandis v Elliniko Domosio,
C-373/97, ECLI:EU:C:2000:150 for company law, CJ, 9 March 1999, Centros Ltd contre Erhvervs- og
Selskabsstyrelsen, C-212/97, ECLI:EU:C:1999:126 for establishment, CJ, 17 July 2014, Angelo Alberto
Torresi e.a. v Consiglio dell’Ordine degli Avvocati di Macerata, C-58/13, ECLI:EU:C:2014:2088 for free movement for persons. 11
See A. De Graaf, M. Evers, “Limiting benefi t shopping: use and abuse of EC law”, EC Tax Review n.
6, 2009, p. 279–298; V. Edwards, P. Farmer, “Th e concept of abuse in the freedom of establishment
of companies: a case of double standards?” in A. Arnull, P. Eeckhout, and T. Tridimas (eds.),
Continuity and change in EU law, in Essays in honour of Sir Francis Jacob, OUP, 2008, p. 205.
New Journal of European Criminal Law, Vol. 7, Issue 2, 2016 193
Anne Weyembergh and Nicolas Joncheray
1.1. THE COMPLEX NOTION OF PUNITIVE ADMINISTRATIVE SANCTIONS
Although there is much literature on the defi nition and objectives or functions12 of
repressive sanctions, be they administrative13 or criminal14, the notion of punitive
administrative sanction remains to be further analysed:
According to Pedro Caeiro, punitive administrative sanctions can be defi ned as:
“admonitions pursuing general and individual deterrence, in contrast to criminal
punishment, the particular feature of which lies in the purpose of reassuring society at
large as to the validity and eff ectiveness of the norms protecting valuable legal interests
(the so-called ‘positive prevention’). Th
ey also pursue a punitive purpose (lato sensu) in the
sense that, contrary to the other categories of administrative sanctions (restorative and
preventative), they are intended as a response caused by the act itself, not by damage or by
the dangerous situation produced by the act.”15
Following this defi nition, punitive administrative sanctions are the category of
administrative sanctions where the blurring boundaries between administrative and
criminal law are the most visible. More than the other categories of administrative
sanctions (i.e. restorative and preventative measures), punitive administrative sanctions
share common features with criminal sanctions, particularly their punitive purpose
(lato sensu) but also their content (e.g. payment of an amount of money, deprivation of
some rights such as the right to apply for grants or public tenders, the ban on exercising
a given profession and even deprivation of liberty for a limited period of time).16 12
Sanctions, according to Jürgen Schwarze (“Judicial Review of European Administrative Procedure”,
Law and Contemporary Problems, No. 1, Vol. 68, Durham/North Carolina, 2004, p. 101), “can serve
various purposes: restitution, prevention, and retribution. Restitution gives reparations for the
damages caused. Prevention focuses on the deterrent eff ect of sanctions. Finally, retribution seeks
revenge for the committed tort.” 13
See for instance the defi nition of administrative sanctions given by the Committee of Ministers of
the Council of Europe: “Administrative acts which impose a penalty on persons on account of
conduct contrary to the applicable rules, be it a fi ne or any punitive measure, whether pecuniary or
not” (Recommendation R 91/1 of 13 February 1991). See also Les sanctions administratives en
Belgique, au Luxembourg et aux Pays-Bas – Analyse comparé e, Ré union des Conseils d’Etat du
Benelux et de la Cour administrative du Luxembourg, En collaboration avec le Secré tariat gé né ral du
Benelux, octobre 2011. C. E. Paliero, “Th e defi nition of administrative sanctions – General report”
in O. Jansen (ed.), Administrative Sanctions in the European Union, Intersentia, 2013. 14
Criminal sanctions may be defi ned as the coercive measure pronounced by a penal judge as a
reaction to the commission of a criminal off ence. About the functions of criminal sanctions, see
especially F. Tulkens and M. van de Kerchove, Introduction au droit penal, aspects juridiques et
criminologiques, 8th ed., Brussels, Kluwer, 2007, p. 528 and f. 15
P. Caeiro, “Th e infl uence of the EU on the ‘blurring’ between administrative and criminal law”, op. cit., p. 174. 16
F. Tulkens and M. van de Kerchove, Introduction au droit penal, aspects juridiques et criminologiques, op. cit., p. 516 and f. 194 Intersentia
Punitive Administrative Sanctions and Procedural Safeguards
In order to assess the level of hesitation surrounding the notion and its content,
one might take into account the criticisms related to asset freezing and smart sanctions
which are labelled by the European courts as preventive administrative measures17,
but considered by some scholars as of punitive and even criminal nature.18 Another
debate is currently surrounding sanctions adopted in the fi eld of competition law, in
merger control19, but mainly in antitrust law.20
Th ese hesitations are implied by the slow and steady approximation of European
Union punitive administrative law, as it is subject to the direct infl uence of the
European Court of Human Rights.21 In order to avoid any temptation for public
authorities to qualify as “administrative” measures that are actually criminal charges
(and thereby avoid the criminal law safeguards), the European Court of Human
Rights developed an autonomous interpretation of the notion of “criminal c harge”
with its so-called Engel criteria.22 Accordingly, a measure is to be understood as a
“criminal charge” if (i) it is classifi ed as criminal (indicative criterion), (ii) it follows a 17
See for example for the EU: GC, 27 February 2014, Ahmed Abdelaziz Ezz and Others v Council,
T-256/11, ECLI:EU:T:2014:93, para. 77–80; GC, 11
July 2007, Sison v Council, T-47/03,
ECLI:EU:T:2007:207, para. 101. In the same vein, the European Court of Human Rights considers
that the freezing of assets does not constitute a criminal sanction: ECtHR, 26 November 2013,
Al-Dulimi et Montana Management Inc. C. Suisse, para. 96. 18
F. Galli, “Th e Freezing of Terrorists’ assets: preventive purpose with a punitive eff ect”, p. 52 in F.
Galli and A. Weyembergh (Eds), Do labels still matter? Blurring boundaries between administrative
and criminal law – Th e infl uence of the EU, Brussels, Editions de l’ULB, 2014, who also refers to I.
Cameron, “Th e ECHR, Due Process, and UN Security Council Counterterrorism Sanctions”,
6 February 2012, Strasbourg, Council of Europe, 2006. 19
See for instance the Commission decisions imposing a fi ne for putting into eff ect a concentration in
breach of the Merger regulation: Commission decision, 18 February 1998, case No IV/M.920 –
Samsung/AST; Commission decision, 10
February 1999, case No IV/M.969 – A.P. Møller;
Commission decision, 10 June 2009, case COMP/M.4994 Electrabel/Compagnie Nationale du
Rhô ne; Commission decision, 23 July 2014, case M.7184 – Marine Harvest / Morpol. At national
level, the decision to retrieve of a merger authorisation has been considered to be a sanction falling
within the scope of Article 6 of the European Convention on Human Rights: Conseil Constitutionnel,
12 October 2012, decision n° 2012–280 QPC, para. 16 as well as, Conseil d’Etat, Ass., Société Groupe
Canal Plus, n° 353856, ECLI:FR:CEASS:2012:353856.20121221, para. 49. 20
Th e debate was launched before the European Commission of Human Rights, EComm.HR, 30 May
1991, Société Stenuit v France, para. 66 and the European Court of Human Rights (ECtHR,
23 November 2006, Jussila v Finlan , p
d ara. 43, and ECtHR, 27 September 2011, Menarini Diagnostics
S.R.L. v Italy, para. 40–44) and spilled over both at EU and national level. 21
Indirect infl uence by national courts is also possible, especially in situations where they have to
decide fi rst of new applicable standards, such as in Conseil d’Etat, Ass., Société Groupe Canal Plus,
n° 353856, op.cit., where the French Conseil d’Etat had to assess whether a given measure can be
qualifi ed as sanction. If such a decision is not binding as such under EU law, the new standard set
(this jurisdiction was the fi rst one to answer this question) can hardly just be ignored in subsequent litigations at EU level. 22
ECtHR, Engel e.a. v Th e Netherlands, 8 June 1976, para. 82, to be read in conjunction with ECtHR,
Ötztürk v Germany, 21 February 1984, para. 53, amending the second criterion in focusing on the
aim of the sanction instead of its nature. For a detailed analysis of the criteria and their evolution
see P. Caeiro, “Th e infl uence of the EU on the ‘blurring’ between administrative and criminal law”, op. cit., p. 176 and f.
New Journal of European Criminal Law, Vol. 7, Issue 2, 2016 195
Anne Weyembergh and Nicolas Joncheray
punitive aim, and (iii) it is severe. As a consequence, the European Court of Human
Rights developed an abundant case-law assimilating punitive administrative sanctions
to “criminal charges” triggering the application of Article 6 of the Convention to administrative proceedings.
However, the subsequent case-law, based on a case-by-case approach is both
lacking consistency and subject to further discussions as analysed by F. Tulkens and
M. van de Kerchove, who conclude that this stream of case-law only enables the
observer to appreciate the “degree of common features” that a given measure shares with criminal sanctions.23
For instance, in the fi eld of competition law, the inconsistency in the assessment of
the second and third Engel criteria can be illustrated by the Neste litigation,24 whereby
the European Court of Human Rights took the view that Russian antitrust law,
although foreseeing measures such as the dissolution of a company, did not fulfi l the
criteria set in Engel, notwithstanding earlier decisions of its Commission.25 Th is
case-law has quickly been abandoned with the Jussila26 and Menarini27 cases where
the Court fi nally acknowledged the repressive character of competition law.
Nevertheless, the later cases created additional confusion as one might wonder if
they did result in the creation of a third category of repressive measures, namely
“quasi-criminal” measures, that would fi nd its place in a grey area separating
administrative sanctions deprived of repressive purpose from core criminal sanctions.
In the Jussila case for instance, the European Court of Human Rights declared:
“the autonomous interpretation adopted by the Convention institutions of the notion of a
‘criminal charge’ by applying the Engel criteria have underpinned a gradual broadening of
the criminal head to cases not strictly belonging to the traditional categories of the criminal
law, for example administrative penalties (…), prison disciplinary proceedings (…),
customs law (…), competition law (…), and penalties imposed by a court with jurisdiction
in fi nancial matters (…). Tax surcharges diff er from the hard core of criminal law; 23
F. Tulkens and M. van de Kerchove, Introduction au droit penal, aspects juridiques et criminologiques,
5th ed., Kluwer, Brussels, 1999, p. 405: “La cour semble avoir consacré, dans chacune de ces espèces,
des critères de nature partiellement diff érente (…) dont la combinaison et la pondération variables
permettent seulement de parler d’un certain ‘degré d’appartenance’ d’une mesure à la catégorie des
peines, voire d’une ‘prédominance’ des aspects qui ‘présentent une colloration pénale’ (ECtHR,
24 February 1994, Bendenoun v France) sans pouvoir trancher cette question selon une ‘logique
bianaire d’appartenance ou de non-appartenance (…)’.” 24
ECtHR, 3 June 2004, Neste St. Petersburg v Russia. 25
EComm.HR, 30 May 1991, Société Stenuit v France, para. 66. 26
ECtHR, 23 November 2006, Jussila v Finland, para. 43, where the Court stated: “the autonomous
interpretation adopted by the Convention institutions of the notion of a “criminal charge” by
applying the Engel criteria have underpinned a gradual broadening of the criminal head to cases not
strictly belonging to the traditional categories of the criminal law, for example (…) competition law”. 27
ECtHR, 27 September 2011, Menarini Diagnostics S.R.L. v Italy, para. 40–44. 196 Intersentia
Punitive Administrative Sanctions and Procedural Safeguards
consequently, the criminal-head guarantees will not necessarily apply with their full stringency (…).”28
Th e partial application of the Article 6 guarantees by administrative bodies adopting
punitive administrative sanctions has been confi rmed in the Menarini Judgment
where the Court held that lack of compliance with some of the obligations stemming
from Article 6 of the European Convention on Human Rights could be compensated
if the administrative punitive sanction is subject to a review by courts having full
jurisdiction.29 However, the European Court of Human Rights did not provide any
clarifi cation as to the guarantees applicable to criminal heads not belonging to the
hard core of criminal law and therefore subject to a “less stringer approach”: Are some
core elements of Article 6 safeguards, such as the principle of impartiality, non-
derogable obligations or can one stretch the fi ndings in Jussila to exclude any
application of Article 6 guarantees?
Th e lack of clarity of the European Court of Human Rights’ case-law provided the
European Court of Justice as well as national jurisdiction with a wide margin of
manoeuvre, that further contributed to the notion’s complexity.
Th e Court of Justice implicitly took over the substance of the Engel criteria and
progressively developed procedural guarantees in the fi eld of punitive administrative
sanctions.30 However, the use of these criteria gave rise to an erratic case-law.
Regarding insider dealing, the Court of Justice expressly applied the Engel criteria and
concluded on the criminal nature of the sanctions at stake: 28
ECtHR, 23 November 2006, Jussila v Finland, para. 43. See on this case F. Tulkens and M. van de
Kerchove, Introduction au droit penal, aspects juridiques et criminologiques, 8th edition, Brussels, Kluwer, 2007, p. 489 and f. 29
ECtHR, 27 September 2011, Menarini Diagnostics S.R.L. v Italy, para. 59. 30
Th is is for instance clear in the fi eld of competition law, where, according to Antoine Bailleux a
so-called “ fairly-fair trial” emerged (see A. Bailleux, “Th e fi ft ieth shade of grey. Competition law,
‘criministrative law’ and ‘fairly fair trials’”, op. cit., p.144 and f. See as well D. Waelbroeck, D. Slater,
and S. Th omas “Competition law proceedings before the European Commission and the right to a
fair trial: no need for reform?” College of Europe, Research Papers in Law, 5/2008 and the
forthcoming contribution of L. Bernardeau and E. Th omas at the conference for the 50th anniversary
of les Cahiers de droit européen, Brussels, 10th September 2015, “Principes généraux du droit et
contrôle juridictionnel en droit de la concurrence: ‘M. Jourdain: juge pénal?’”: “est-ce que comme
Jourdain a appris qu’il faisait de la prose depuis 40 ans, l’UE ne devrait pas se rendre compte qu’il fait
du droit pénal en faisant du droit de la concurrence depuis 40 ans”. Th is is also obvious in the fi eld of
the protection of the Union’s fi nancial interests where the new Regulation 883/2013 of 11 September
2013 concerning investigations conducted by the European Anti-Fraud Offi ce (OJ L248/1,
18 September 2013) clearly strengthened the procedural rights of persons concerned by OLAF’s
investigations (see especially its Article 9 containing a real catalogue of rights restating many of the
rights covered by Article 6 European Convention on Human Rights, such as the presumption of
innocence, the right not to incriminate oneself, the right to be assisted by a person of one’s choice at
the interview…). For an in-depth analysis, see K. Ligeti and M. Simonato, “Multidisciplinary
investigations into off ences against the fi nancial interest of the EU: a quest for an integrated
enforcement concept”, in F. Galli and A. Weyembergh (Eds), Do labels still matter? Blurring
boundaries between administrative and criminal law – Th e infl uence of the EU, Brussels, Editions de l’ULB, 2014, p. 93–94).
New Journal of European Criminal Law, Vol. 7, Issue 2, 2016 197
Anne Weyembergh and Nicolas Joncheray
“in the light of the nature of the infringements at issue and the degree of severity of the
sanctions which may be imposed, such sanctions may, for the purposes of the application
of the ECHR, be qualifi ed as criminal sanctions (see, by analogy, (…) Eur. Court H. R.,
Engel and Others v the Netherlands, judgment of 8 June 1976, Series A no. 22, §82; Öztürk
v Germany, judgment of 21 February 1984, Series A no. 73, §53; and Lutz v Germany,
judgment of 25 August 1987, Series A no. 123, §54)”.31
In the fi eld of agricultural policy, aft er having denied several times the criminal
nature of the sanctions,32 the Court departed from its previous case-law with the
Bonda case33 where it explicitly referred to these criteria and launched a debate
amongst observers as to whether or not the Court of Justice did apply the Engel
criteria.34 However, the two-stage approach in the Court’s reasoning is slightly
puzzling: the Court of Justice could have ended its reasoning aft er having recalled that
the penalties laid down in rules of the common agricultural policy are not of a
criminal nature.35 It went on assessing whether this reasoning is compatible with the
Engel criteria.36 If the two stage approach is in itself questionable (the “raison d’être”
of the Engel criteria being the rejection of a formalistic approach), one might also
wonder whether the reference to Engel was meant to avoid any subsequent proceeding
before the European Court of Human Rights (the case being a preliminary procedure). 31
CJ, 23 December 2009, Spector Photo Group NV v. Commissie voor het Bank-, Financie- en
Assurantiewezen (CBFA), C-45/08, ECLI:EU:C:2009:806, para. 43. 32
CJ, 18 November 1987, Maizena Gesellschaft mbH e.a. v Bundesanstalt für landwirtschaft liche
Marktordnung, 137/85, ECLI:EU:C:1987:493, para. 13, CJ, Germany v Commission, C-240/90,
ECLI:EU:C:1992:408 para. 25, CJ, 11
July 2002, Käserei Champignon Hofmeister, C-210/00, ECLI:EU:C:2002:440, para. 43. 33
CJ, 5 June 2012, Bonda, C-489/10 ECLI:EU:C:2012:319. Th e facts in Bonda concerned an incorrect
declaration in an application for the grant of European Union agricultural aid. Pursuant to
Regulation No 1973/2004, an administrative penalty was imposed on Mr Bonda, following which
criminal proceedings were instituted against him for subsidy fraud. Considering that if the fi rst
penalty imposed were classifi ed as a criminal penalty the situation would amount to a violation of
the national ne bis in idem principle, the Polish Supreme Court stayed the proceedings and asked
the ECJ to interpret the legal nature of the penalty imposed on the farmer under the European
Regulation. Interestingly, the Court does not follow the reasoning of Advocate General Kokott, who
had pleaded for the applicability of Article 50 of the Charter (para. 11 and f). Instead, the ECJ recalls
the case law in which it held that the penalties laid down in the rules of the common agricultural
policy are not of a criminal nature (para. 28 and f.), to then confront that position with the case law
of the ECtHR on the concept of ‘criminal proceedings’ within the meaning of Article 4 of Protocol
7 (para. 36 and f.). Th e application of the three ‘Engel criteria’ to the case at issue leads the Court to
conclude that the penalties provided for in Regulation No 1973/2004 do not constitute criminal penalties (para. 46). 34
According to P. Caeiro, “Th e infl uence of the EU on the ‘blurring’ between administrative and
criminal law”, op. cit., p. 190, the defi nitions of criminal sanctions resulting from the case law of
both Courts do not seem to coincide entirely. For a diff erent view, see B. Cheynel, “Dernier pas de la
Cour avant la reconnaissance du caractère pénal des procédures antitrust européennes”, REA-LEA, 2012/2, p. 443–450. 35
CJ, 5 June 2012, Bonda, C-489/10 ECLI:EU:C:2012:319, para. 28 and f. 36 Ibid. para. 36 and f. 198 Intersentia
Punitive Administrative Sanctions and Procedural Safeguards
In the fi eld of competition law, the Court of Justice admitted that competition law
procedures should respect fundamental rights such as the principle of nullum crimen,
nulla poena sine lege37, the presumption of innocence38 or the personal character of
the sanctions39, but still refuses to openly apply the Engel criteria to measures in this
fi eld. Th is strict refusal is all the more surprising as the progressive extension of
procedural guarantees to competition law procedures is justifi ed by the Court because
of “the nature of the infringements in question and the nature and degree of severity of
the ensuing penalties”.40 Th is “unoffi cial borrowing” of the Engel criteria without
naming them enables the Court of Justice to make full use of the lack of clarity of the
Strasbourg case-law in order to protect the European competition law procedure and
subsequent review41 from a thorough scrutiny of its compliance with Article 6 of the
European Convention on Human Rights.
Contrary to the Court of Justice, some national courts opted for an extensive
application of obligations stemming from Article 6 to competition law proceedings.
In France for instance, both the Conseil Constitutionnel and the Conseil d’Etat decided
that the decision to retract a merger authorisation (a fi eld considered up to that point
to be of a pure administrative nature), following a breach of commitments should be
considered to constitute a sanction falling within the scope of Article 6.42 As a
consequence, the complexity originating from the incoherence between the European
Court of Human Rights’ and the Court of Justice’s case-law is amplifi ed by national
jurisdictions, especially since the latter remains the “ordinary” judge of both European Union and Convention law. 37 CJ, 8
July 2008, AC-Treuhand AG v Commission of the European Communities, T-99/04,
ECLI:EU:T:2008:256, para. 113 and f. 38
CJ, 8 July 1999, Hüls v Commission C
, -199/92 P, ECLI:EU:C:1999:358, para. 150. 39
CJ, 8 July 1999, Commission v Anic Partecipazioni, C-49/92, ECLI:EU:C:1999:356, para. 78. 40
CJ, 8 July 1999, Hüls v Commission C
, -199/92 P, ECLI:EU:C:1999:358, para. 150. 41
Th at the ECtHR recognised that the limited review of the Italian supreme administrative courts
should be considered as a full review was certainly of great help for the European Court of Justice to
conclude that the European system of judicial review in competition cases was fully compliant with
fundamental rights standards (See CJ, 8 December 2011, KME Germany e.a. v Commission,
C-389/10 P, ECLI:EU:C:2011:816, para. 133–134 and CJ, 10 July 2014, Telefónica et Telefónica de
España v Commission, C-295/12 P, ECLI:EU:C:2014:2062, para. 36–60). 42
Conseil Constitutionnel, 12 October 2012, decision n° 2012–280 QPC, para. 16 where such a measure
is qualifi ed as “sanction ayant le caractère d’une punition”. See also, Conseil d’Etat, Ass., Société
Groupe Canal Plus, n° 353856, ECLI:FR:CEASS:2012:353856.20121221, para. 49, where the retrieval
of the authorisation is considered to be of a punitive nature: “Considérant qu’eu égard à leur objet
qui, outre sa portée punitive, est la préservation de l’ordre public économique, les sanctions prévues
par le 1° et le 2° du IV de l’article L. 430–8 du code de commerce, qui sont distinctes de la sanction
pécuniaire prévue au quatrième alinéa de ce IV, doivent être proportionnées à la gravité des
manquements constatés et aux exigences de maintien ou de rétablissement d’un niveau de concurrence
suffi sant sur les marchés concernés”.
New Journal of European Criminal Law, Vol. 7, Issue 2, 2016 199
Anne Weyembergh and Nicolas Joncheray
Th e lack of clarity of the dividing line, some even speak of a “structural blur”43,
assessed on a case-by-case basis, is also increased under the eff ect of the complexity of
the European legal integration process.
1.2. AN ERRATIC USE OF ADMINISTRATIVE PUNITIVE SANCTIONS
BY THE UNION LEGISLATOR THAT CATALYSES A BLURRING
ALREADY FOSTERED BY THE EUROPEAN UNION LEGAL INTEGRATION PROCESS
Th e shaping of the European Union legal order is a complex process, where the legislator
is alternatively following either a formalistic or a functional approach, depending on
the piece of legislation or the context at stake. If this is particularly clear in the fi elds of
law originally developed within the ex-fi rst pillar of the Treaty, where the introduction
of punitive administrative sanctions has been incremental, a similar phenomenon can
be observed, although to a lesser extent, in the Area of Freedom, Security and Justice.
As commonly accepted, the development of punitive administrative sanctions
started in the 1970s44, when Community secondary legislation started to provide for
fi nes, forfeiture of fi nancial guarantees, exclusion from subsidy schemes and
professional disqualifi cations. Th e integrated nature of the Community legal order
necessarily entailed the adoption of such measures in order to ensure eff ectiveness
and uniform application of European law. In the absence of such provisions, the duty
of loyal cooperation required Member States to “take all the measures necessary to
guarantee the application and eff ectiveness of Community law, if necessary by instituting criminal proceedings”.45
Th e Court of Justice also recognised the Community’s competence to adopt
measures necessary for the equivalent and eff ective enforcement of Community
policies including punitive administrative sanctions.46 Th ese measures have been
adopted in various areas subject either to positive integration (with common policies,
such as the agricultural policy, the fi shery policy, or with fl anking policies such as
environmental protection, EC fi nancial interests protection) or negative integration 43
P. Caeiro, “Th e infl uence of the EU on the ‘blurring’ between administrative and criminal law”, op. cit., p. 175. 44
Previously, EC law remained silent on the enforcement of EC policies. Member States had to enforce
EC law but it was up to them to decide whether to use private law, disciplinary law, administrative
law or criminal law to sanction violations of EC obligations (about such evolution, see for instance
K. Ligeti and M. Simonato, “Mutlidisciplinary investigations into off ences against the fi nancial
interest of the EU: a quest for an integrated enforcement concept”, op. cit. p. 81). For a historical
approach, see D. Flore, Droit penal européen. Les enjeux d’une justice pénale européenne, 2nd ed.,
Brussels, Larcier, p. 24 and f. 45
CJ, 13 July, 1990, Zwartveld e.a , Ord .
er, ECLI:EU:C:1990:315, para. 17. 46
See especially CJ, 27 October 1992, Germany v Council and Commission, C-240/90, ECLI:EU: C:1992:408. 200 Intersentia
Punitive Administrative Sanctions and Procedural Safeguards
(the four freedoms).47 Th e sector by sector approach undertaken by the legislator, as
well as the diff erence in approach depending on the sector at stake (whilst positive
integration gives the opportunity to engage into a harmonisation process that could
contribute to a reduction in the blur, by defi nition, negative integration does not
provide for such a possibility as it requires the Member States to refrain from adopting
any measure) do not enable the legislator to undertake a coherent and systematic
approach. Th is task is also subject to further complications related to the evolving
nature of the Treaties (and of the legal bases they encompass48), not to mention the
divergent legal systems at Member State level that also explain the absence of a
coherent approach regarding punitive administrative sanctions.
Th e relevance of punitive administrative sanctions is – at least at fi rst sight – less
visible in the Area of Freedom, Security and Justice, especially if one looks at the text
of the Treaty, and especially at Articles 82 and 83 TFEU. Although administrative
sanctions are most of the time not covered by the instruments pertaining to police
and judicial cooperation in criminal matters, it is important to highlight their (occasional) presence.
Th is is for instance the case with the instruments approximating substantive
criminal law relating to the imposition of eff ective, proportionate and dissuasive
penalties on legal persons, specifying that they shall include criminal or non-criminal fi nes and other penalties.49
Some instruments of mutual recognition cover administrative sanctions as well.
Th is is particularly true for the Council Framework Decision of 24 February 2005 on
the application of the principle of mutual recognition to fi nancial penalties, that 47
See J.A.E. Vervaele, “Administrative Sanctioning Powers of and in the Community. Towards a
System of European Administrative Sanctions?”, in J.A.E. Vervaele (ed.), Administrative Law
Application and Enforcement of Community Law in Th e Netherlands, Deventer, Kluwer Law
International, 1994, p. 161 and f. as well as M. Poelemans, La sanction dans l’ordre juridique
communautaire. Contribution à l’étude du système répressif de l’Union européenne, Bruxelles, Bruylant, 2004. 48
Th e protection of fi nancial interests is a good example as the present legal basis, Article 325 TFEU,
cannot be compared with the fl exibility clause (Article 235 under the Maastricht Treaty) that
allowed the adoption of the Council Regulation n° 2988/95 of 18 December 1995 on the protection
of the European Communities fi nancial interests, OJ L 312, 23 December 1995 p.1–4. 49
See for example Council Framework Decision 2002/475/JHA of 13 June 2002 on combating
terrorism, OJ L 164, 22 June 2002, p. 3, Article 8; Council Framework Decision 2003/568/JHA of
22 July 2003 on combating corruption in the private sector, OJ L 192 of 31 July 2003, p. 54, Article 6;
Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions
on the constituent elements of criminal acts and penalties in the fi eld of illicit drug traffi cking, OJ
L 335, 11 November 2004, p. 8, Article 7; Directive 2011/36/EU of the European Parliament and of
the Council of 5 April 2011 on preventing and combating traffi cking in human beings and
protecting its victims, and replacing Council Framework Decision 2002/629/JHA, OJ L 101,
15 April 2011, p. 1, Article 6; Directive 2011/93/EU of the European Parliament and of the Council
of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child
pornography, and replacing Council Framework Decision 2004/68/JHA, OJ L 335, 17 December 2011, p. 1, Article 13, etc.
New Journal of European Criminal Law, Vol. 7, Issue 2, 2016 201
Anne Weyembergh and Nicolas Joncheray
covers fi nancial penalties imposed by judicial or administrative authorities, especially
in respect of road traffi c off ences.50
Despite a clear focus on criminal proceedings, the procedural guarantees directives
do not completely ignore administrative proceedings either. Both the Directive of
20 October 2010 on the right to interpretation and translation in criminal proceedings
and the Directive of 22 May 2012 on the right to information in criminal proceedings
have a limited scope of application regarding punitive administrative sanctions. Th ey
are only applicable to the subsequent proceedings before a court having jurisdiction
in criminal matters.51 A similar limitation aff ects the scope of application of the
Directive of 22 October 2013 on the right of access to a lawyer in criminal proceedings
and in European arrest warrant proceedings, and on the right to have a third party
informed upon deprivation of liberty and to communicate with third persons and
with consular authorities while deprived of liberty.52
A shy evolution seems to have emerged with the Directive of 9 March 2016
concerning the presumption of innocence.53 Th e initial proposal as presented by
the Commission only applied to criminal proceedings and explicitly excluded
from its scope of application administrative proceedings leading to sanctions such
as competition, trade, tax, fi nancial services proceedings and other investigations
by administrative authorities in relation to these proceedings, and also civil
proceedings.54 But the European Parliament introduced amendments in this 50
Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle
of mutual recognition to fi nancial penalties, OJ L 76, 22 March 2005, p. 16, recitals 2 and 4 as well as Article 1. 51
See respectively Article 1(3) of Directive 2010/64/EU of the European Parliament and of the Council
of 20 October 2010 on the right to interpretation and translation in criminal proceedings OJ L 280,
26 October 2010, p. 1 and Article 2(2) of Directive 2012/13/EU of the European Parliament and of
the Council of 22 May 2012 on the right to information in criminal proceedings, OJ L 142, 1 June 2012, p. 1. 52
Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the
right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and
on the right to have a third party informed upon deprivation of liberty and to communicate with
third persons and with consular authorities while deprived of liberty, OJ L 294, 6 November 2013,
p. 1. According to its Article 2(4):
“Without prejudice to the right to a fair trial, in respect of minor off ences:
(a) where the law of a Member State provides for the imposition of a sanction by an authority other
than a court having jurisdiction in criminal matters, and the imposition of such a sanction may be
appealed or referred to such a court; or
(b) where deprivation of liberty cannot be imposed as a sanction;
this Directive shall only apply to the proceedings before a court having jurisdiction in criminal matters.” 53
Directive 2016/343/EU of the European Parliament and of the Council of 9 March 2016 on the
strengthening of certain aspects of the presumption of innocence and of the right to be present at
the trial in criminal proceedings, OJ L 65, 11 March 2016, p. 2. 54
See recital 6 of Proposal for a Directive on the strengthening of certain aspects of the presumption
of innocence and of the right to be present at trial in criminal proceedings, COM/2013/0821 fi nal, 27 November 2013. 202 Intersentia
Punitive Administrative Sanctions and Procedural Safeguards
regard in order to take into consideration the Engel case-law of the European
Court of Human Rights.55 Th e Presidency, supported by the Commission, opposed
the Parliament’s request, for reasons of consistency with the other, already adopted
procedural rights Directives, and because it is not necessary, since «criminal
proceedings» is an autonomous notion which will be interpreted by the Court of
Justice of the European Union.56 According to the fi nal version of the text a
compromise was found in recital 11, according to which the Directive “should
apply only to criminal proceedings as interpreted by the Court of Justice of the
European Union (…), without prejudice to the case-law of the European Court of
Human Rights. Th is Directive should not apply to civil proceedings or to
administrative proceedings, including where the latter can lead to sanctions, such as
proceedings relating to competition, trade, fi nancial services, road traffi c, tax or tax
surcharges, and investigations by administrative authorities in relation to such proceedings”.57
Th e recourse to punitive administrative sanctions is certainly not specifi c to the
European Union.58 However, it remains unclear whether the European Union
legislator intended with such measures to circumvent the protective procedural
standards stemming from criminal law, as feared by the European Court of Human
Rights.59 It is not to be excluded that the Union’s system of competences and the lack
of appropriate legal basis at that time left the legislator with no other choice but to
adopt such measures in the fi eld of administrative law. And even once such legal bases
appeared in the course of legal integration, the legislator had to maintain a coherent
approach between the pillars. Th ese diffi culties might explain that the apparent
multiplication and erratic use of punitive administrative sanctions in the Union legal 55
See EP amendments No 6 and 5. See also Meijers Committee, “Note on the Council General
Approach on the Directive Presumption of Innocence and the Right to be Present at Trial”,
12 December 2014 (see www.commissie-meijers.nl/sites/all/fi les/cm1416_note_on_the_general_
approach_on_the_directive_presumption_of_innocence.pdf). 56
Council of the EU, doc., 11664/15, 4 September 2015, p. 4, fn 2. 57
See D. Fanciullo, “Th e principle of presumption of innocence in the European Union law: towards
an ‘incomplete’ transposition of the case law of the European Court of human rights?”, Cahiers de
Droit Européen, 2016, forthcoming. 58
P. Caeiro, “Th e infl uence of the EU on the ‘blurring’ between administrative and criminal law”, op.
cit., p. 174 according to whom “the blur with criminal law is the very history of administrative
punitive law, starting, at least, from the moment when the administration became subject to the law.
In this sense, the blur has always been there: regardless of the content we might give to the concept
of ‘punitive administrative law’, it is safe to say that the boundaries between the two branches were always permeable”. 59
ECtHR, 8 June 1976, Engel e.a. v Th e Netherlands, para. 81: “If the Contracting States were able at
their discretion to classify an off ence as disciplinary instead of criminal, or to prosecute the author of
a ‘mixed’ off ence on the disciplinary rather than on the criminal plane, the operation of the
fundamental clauses of Articles 6 and 7 would be subordinated to their sovereign will. A latitude
extending thus far might lead to results incompatible with the purpose and object of the Convention.
Th e Court therefore has jurisdiction, under Article 6 and even without reference to Articles 17 and 18,
to satisfy itself that the disciplinary does not improperly encroach upon the criminal.”
New Journal of European Criminal Law, Vol. 7, Issue 2, 2016 203
Anne Weyembergh and Nicolas Joncheray
order are also a refl ection of the European Union’s legal integration process. And
fi nally, one might also take into account the heterogeneity of the Member States’ legal
systems (a sanction can be administrative in Member State A and criminal in Member
State B), as well as by the necessity to adopt instruments intended to preserve the eff et utile of Union law.60 2.
THE NEED FOR FURTHER CLARIFICATION
Whilst the present situation is understandable, it should nevertheless be clarifi ed. Th e
current approximation between the Convention and European Union standards is
problematic for two reasons: fi rst, regarding the extent to which punitive administrative
sanctions are subject to criminal law guarantees, but also the lack of cohesion in the
case-law stemming from the European Court of Human Rights, the Court of Justice
of the European Union and national courts. It entails the risk of further blurring and
legal uncertainty (A). Some thoughts on the way forward will be presented (B).
2.1. THE INSUFFICIENCIES OF THE PRESENT APPROXIMATION
Th e thin buff er zone separating punitive administrative measures from criminal
sanctions bears major consequences for the addressees: the standard of judicial review
will for instance depend on whether the measure is considered to be deprived of a
criminal nature, such as in Käserei Champignon addressing the question of the
payment of a penalty in the fi eld of agricultural policy,61 or not.
In other words, the addressee of a measure considered to be administrative (as it
does not satisfy the Engel criteria) will not benefi t from the guarantees stemming
from the right to a fair trial. On the other hand, a measure (no matter whether it
formally belongs to administrative or to criminal law) classifi ed as belonging to core
criminal law, according to the Engel criteria, will fall within the scope of Article 6 of
the European Convention on Human Rights, not only during the stage of judicial
review, but during the whole procedure leading to its adoption.62 And fi nally,
according to cases such as Menarini or Jussila, the addressees of “quasi-criminal
measures”, satisfying the Engel criteria, but nonetheless in between the two categories 60
And should such instruments be missing, Member States would anyway be required, according to
the principle of loyal cooperation, to undertake any necessary measure to preserve the eff et utile of EU law, see for example CJ, 9
December 1997, Commission v France, case C-265/95, ECLI:EU:C:1997:595. 61
CJ, 11 July 2002, Käserei Champignon Hofmeister GmbH & Co. KG v Hauptzollamt Hamburg-Jonas,
C-210/00, ECLI:EU:C:2002:440, para. 43. 62
J.A.E. Vervaele, “Relationship between OLAF, 109 the future EPPO, the other European Bodies and
the national judicial authorities”, in V. Bazzocchi (Ed.), Protecting Fundamental and Procedural
Rights. From the Investigation of OLAF to the Future EPPO, Fondazione Basso, 2014, p. 111. 204 Intersentia
Punitive Administrative Sanctions and Procedural Safeguards
mentioned above, will only benefi t from the guarantees stemming from Article 6 of
the European Convention on Human Rights at the stage of judicial control.
An illustration of the consequences of the classifi cation of a measure as
administrative or criminal is to be found in the application of the ne bis in idem
principle.63 First of all, it is necessary to recall that the application of the principle is
diff erent in criminal law sensu stricto, where it is subject to a double condition of
identity of the facts and unity of the off ender, and in competition law for instance,
where it is subject to a threefold condition of identity of the facts, unity of the off ender
and unity of the legal interest protected.64 Second, whilst the principle prevents double
jeopardy, it does not preclude the combination of administrative punitive sanctions
and criminal sanctions.65 Th is is essential as in some fi elds, for the same off ences the
European Union provides for parallel provisions on administrative and criminal
sanctions. Th is is for instance the case with the new market abuse provisions in the
Market Abuse Regulation and the Market Abuse Directive.66
Currently, the Court of Justice undertakes an incremental approach67 towards
punitive administrative sanctions: the approximation described earlier is made piece
by piece, sector by sector and is thus very fragmented. Depending on the sector
concerned there are more or less fair, or “fairly fair” trials68, which is regrettable for
the sake of clarity and legal certainty. As a consequence, the Court of Justice of the
European Union is regularly invited by its advocate generals to formally take over the 63
For a detailed analysis of the ne bis in idem principle and the boundaries between criminal sanctions
and punitive administrative sanctions, see C. Wong, “criminal sanctions and administrative
penalties: the quid of the ne bis in idem principle and some original sins”, in F. Galli and A.
Weyembergh (Eds), Do labels still matter? Blurring boundaries between administrative and criminal
law – Th e infl uence of the EU, Brussels, Editions de l’ULB, 2014, p. 219 and f. 64
See CJ, 14 February 2012, Toshiba e.a. v Commission, C-17/10, ECLI:EU:C:2012:72, para. 97. 65
See, CJ, 26 February 2013, Åklagaren v Hans Åkerberg Fransson, C-617/10, ECLI:EU:C:2013:105,
where the Court recalls that the Charter does not preclude Member States from imposing, for the
same acts of non-compliance with VAT declaration obligations, a combination of tax penalties and
criminal penalties (para. 34) and validates a widespread practice in the Member States, that
according to Advocate General Cruz Villalón might amount to a common constitutional tradition
of the Member States (para. 86). 66
R. Kert, “Th e relationship between administrative and criminal sanctions in the new market abuse
provisions”, in F. Galli and A. Weyembergh (Eds), Do labels still matter? Blurring boundaries
between administrative and criminal law – Th e infl uence of the EU, Bruxelles, Editions de l’ULB, 2014, p. 103 and f. 67
See the Model Rules on EU Administrative Procedure of 2014 presented by ReNEUAL – Research
Network on EU Administrative Law – and edited by Professors Herwig C.H. Hofmann, Jens-Peter
Schneider and Jacques Ziller (especially Book III – Single Case Decision-Making:
www.reneual.eu/publications/ReNEUAL%20Model%20Rules%202014/ReNEUAL-%20Model%20
Rules-Compilation%20Books%20I_VI_2014–09–03.pdf ), the aim of which is to serve as a draft
proposal for binding legislation identifying – on the basis of comparative research – best practices
in diff erent specifi c policies of the EU, in order to reinforce general principles of EU law. 68
A. Bailleux, “Th e Fift ieth shade of Grey. Competition Law, ‘criministrative law’ and Fairly fair Trials”, op. cit., p. 147.
New Journal of European Criminal Law, Vol. 7, Issue 2, 2016 205
Anne Weyembergh and Nicolas Joncheray
Menarini reasoning69, but refrained to do so until now. Th e evocation of the Menarini
case in Telefónica70 is not such as to rebut this fi nding as the Court decided not to
openly address the debate regarding the criminal nature of competition law and only
focused on the nature of the judicial review of fi nes under Article 263 TFEU.
If the Court’s judicial review without any doubt played a major role in the step
forward undertaken with the adoption of regulation 883/201371, leading to a stronger
approximation of the procedure followed by OLAF with procedural safeguards
stemming from criminal law, or in the progressive development of fundamental rights
in competition law proceedings, the current situation remains unsatisfactory. Th e
fi elds of the protection of fi nancial interests72 and fi ght against market abuses,73 imply
multidisciplinary investigations. Such investigations join both administrative
structures and judicial organs, applying divergent standards of fundamental rights.
Th is heterogeneity might foster the risk of incompatibility between diff erent national
standards hindering cooperation and harm the creation of an effi cient Area of
Freedom, Security and Justice within the European Union.
Th is approximation is a suboptimal approach in which the Court is trapped
because of the legislator’s lack of clarity. A new approach from the legislator’s side, that
remains to be defi ned, is necessary to ensure legal certainty for both the addressees
and public authorities (the latter risking for instance to have its procedures annulled
because of a clarifi cation on the applicable standard suddenly appearing in the case- law).
If the Court of Justice should not be blamed for the current situation, the risks
stemming from this incremental approach should not be disregarded.
2.2. SOME THOUGHTS ON THE WAY FORWARD
According to the diagnosis described above, the authors would like to merely sketch
potential steps to be undertaken in order to address the issue of “quasi-criminal 69
See for example the opinion of Advocate General Kokott in CJ, 28 February 2013 in Schenker und
Co AG e.a., Case C-681/11, ECLI:EU:C:2013:126, para. 40 or the opinion of Advocate General
Mengozzi in CJ, 19 September 2013, European Commission v Siemens Österreich e.a., Joined cases
C-231/11 P, C-232/11 P and C-233/11 P, para. 74. 70
CJ, 10 July 2014, Telefónica et Telefónica de España v Commission, C-295/12 P, ECLI:EU:C:2014:2062, para. 50–52. 71
Regulation 883/2013 of the European Parliament and of the Council of 11 September 2013
concerning investigations conducted by the European Anti-Fraud Offi ce (OLAF) and repealing
Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council
Regulation (Euratom) No 1074/1999, OJ L248/1, 18 September 2013. 72
As was clearly established by K. Ligeti and M. Simonato, “Mutlidisciplinary investigations into
off ences against the fi nancial interest of the EU: a quest for an integrated enforcement concept”, op. cit. p. 88 and f. 73
See R. Kert, “Th e relationship between administrative and criminal sanctions in the new market
abuse provisions”, op. cit., p. 106–107. 206 Intersentia
Punitive Administrative Sanctions and Procedural Safeguards
measures” and clarify the blurred frontier separating administrative sanctions from criminal sanctions.
First of all, one must agree that the basis on which the current approach is built
can hardly be considered to constitute stable ground. Th e European Court of Human
Rights’ fi nding that some measures might be of a “quasi-criminal” nature (and
therefore subject to some of the obligations stemming from Article 6 of the Convention)
without further defi ning the Article 6 obligations that have to be taken into account
and those that can be left will necessarily lead to further litigation to clarify the
current situation.74 Such clarifi cations will in return necessarily impact upon the
approximation process undertaken by the Court of Justice of the European Union.
Second, as these clarifi cations might stem from various jurisdictions (supreme
courts of Member States, the European Court of Justice or the European Court of
Human Rights), they might aff ect the Union’s legal order, and especially the
functioning of the Area of Freedom, Security and Justice. For example, if aft er a
judgment of the European Court of Human Rights setting a new standard regarding
the applicable procedure, the supreme court of Member State A applies the new
standard, but is not followed by Member State B, judicial cooperation between those
two countries might be strongly aff ected. Alternatively, should the European Court of
Justice disregard a standard set by the European Convention on Human Rights,
national jurisdictions will be trapped between their obligations stemming from Union
law and their obligations enshrined in the Convention. Th e recent Billerüd cases can
be understood as an interesting illustration of this issue. In a litigation between the
Billerüd companies and the Swedish environmental protection agency, which imposed
penalties on the companies for having failed to surrender in time the carbon dioxide
allowances equivalent to their actual emissions in 2006, a Swedish court requested a
preliminary ruling. Th e national court asked whether the impossibility of varying the
amount of the penalty (as the directive imposes a lump sum penalty) is compatible
with the principle of proportionality. In its judgment75, the Court of Justice stressed
that, when adopting the directive at stake, the legislature viewed the surrender 74
For an invitation to further litigate see dissenting opinion of Juge Pinto De Albuquerque, in ECtHR,
27 September 2011, Menarini Diagnostics S.R.L. v Italy: “L’acceptation d’un ‘pseudo-droit pénal’ ou
d’un ‘droit pénal à deux vitesses’, où l’administration exerce sur les administrés un pouvoir de
punition, imposant parfois des sanctions pécuniaires extrêmement sévères, sans que s’appliquent les
garanties classiques du droit et de la procédure pénale, aurait deux conséquences inévitables:
l’usurpation par les autorités administratives de la prérogative juridictionnelle du pouvoir de punir et
la capitulation des libertés individuelles devant une administration publique toute-puissante. Si des
raisons tenant à l’effi cacité et à la complexité technique de l’organisation administrative moderne
peuvent justifi er l’attribution d’un pouvoir de punition aux autorités administratives, elles ne peuvent
néanmoins pas justifi er que celles-ci aient le dernier mot quant à l’exercice de ce pouvoir répressif. Le
mouvement souhaitable de dépénalisation ne peut pas se transformer en un chèque en blanc donné à
l’administration. Il faut que, à la fi n de la procédure de sanction administrative, il y ait un juge envers
qui les administrés puissent se tourner pour demander justice, et ce sans aucune limite”. 75
CJ, 17 October 2013, Billerud Karlsborg and Billerud Skärblacka, C-203/12, ECLI:EU:C:2013:664, para. 39–42.
New Journal of European Criminal Law, Vol. 7, Issue 2, 2016 207
Anne Weyembergh and Nicolas Joncheray
obligation and the lump sum penalty as a necessity for the establishment of an effi cient
trading scheme in order to prevent any risk of circumvention or manipulation. Th e
Court also mentioned that Member States remained free to introduce mechanisms to
allow good-faith operators to be fully informed. Consequently, the Court did not fi nd
any incompatibility between the lump sum penalty system foreseen in the directive
and the principle of proportionality. Aft er the Court of Justice rendered its preliminary
ruling, the litigation continued at national level. In its judgment,76 the Swedish
Supreme Court declared that a national court might deviate from the Court of Justice’s
interpretation of a European Union provision where this interpretation would
constitute a serious and unambiguous violation of the European Convention on Human Rights.
Th ird, the approximation leads to a systematic extension of the scope of the notion
of criminal sanction and never towards “de-criminalisation”: either the Court
maintains the status quo in fi nding that a measure is purely administrative or it
considers it to be a criminal sanction. It seems very unlikely that the Court fi nally
considers a measure to be administrative if it previously considered it to be a sanction.
Consequently, the scope of application of criminal law standards regarding procedural
safeguards is constantly increasing. If this one-way process is to be welcomed from a
human rights perspective and for the protection of individual freedoms, it also implies
the loss of the advantages off ered by the administrative procedure.77
Instead of leaving to the judge the responsibility to clarify on a case-by-case basis
which standard to apply, it should be for the legislator to clearly take position when
adopting a measure liable to be qualifi ed as sanction. It is the legislator’s responsibility
to strike a balance between the fl exibility off ered by individual measures deprived of
repressive aspects and the effi ciency of punitive administrative sanctions to ensure
enforcement of Union law, although the latter will imply a high standard of protection
for the addressee, be it during the measure’s adoption or at the stage of judicial
review.78 It is clear that this task will be particularly arduous for the legislator if one
takes into account both the multiplicity of legal bases likely to lead to the adoption of
punitive administrative sanctions and the diversity of national approaches.
As previously mentioned, this issue is far from being theoretical as the classifi cation
of a measure as administrative or criminal preconditions the applicable legal regime
and especially the level of procedural guarantees benefi ting to those sanctioned. 76
Billerud case, NJA 2014, p. 79, point 17. 77
See M. Fauré and A. Gouritin “Blurring boundaries between administrative and criminal
enforcement of environmental law” in F. Galli and A. Weyembergh (Eds), Do labels still matter?
Blurring boundaries between administrative and criminal law – Th e infl uence of the EU, Brussels,
Editions de l’ULB, 2014, p. 109 and f. 78
J.A.E. Vervaele, “Relationship between OLAF, the future EPPO, the other European Bodies and the
national judicial authorities”, op. cit., p. 111. 208 Intersentia
Punitive Administrative Sanctions and Procedural Safeguards 3. CONCLUSION
Th e risk of a tectonic shift is rarely a positive development when one talks about law.
An incremental evolution should not be considered in a more favourable way either as
it also entails the same levels of legal uncertainty and legal instability. As a consequence,
instead of going forward whilst looking in the rear-view mirror, the legislator (or the
constituent) should shoulder its responsibility and address the abovementioned
issues. Solving these is far from simple in such a complex legal construction (bearing
in mind the multiple legal bases, the variety of norms involved and a case-law that is,
according to primary law, bound to the European Convention on Human Rights).
However, the costs of ignoring these issues might appear to be much more important
than the ones resulting from the eff orts of solving it.
New Journal of European Criminal Law, Vol. 7, Issue 2, 2016 209
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