Relationship between criminal and administrative enforcement and sanctioning for environmental crimes
Administrative sanctions considered as criminal
Not every breach of a legal obligation constitutes a criminal act. Whether an unlawful act can be considered a crime, depends on domestic legislation and the specific circumstance of the individual case. The criterion according to which the legislator usually differentiates between administrative and criminal sanctions is the seriousness or gravity of the attack and the degree of damage or endangerment.
Legislation in the numerous Member States provides a range of administrative fines, depending mainly on the severity of the offence and its effect on the environment. The additional administrative measures include restriction, suspension or prohibition/ban of the activity; cancellation of the licence or restriction of its terms; seizure of tools, machinery and equipment; suspension of the right to obtain subsidies or other benefits issued by national or European public authorities or services; loss of tax benefits, credit benefits and credit financing acquired prior to the offence; imposition of rectification or corrective measures on the operator; closure of the installation concerned etc.
Ever since the Engel judgment (Engel and Others v. the Netherlands, 5100/71; 5101/71; 5102/71; 5354/72; 5370/72), the ECtHR has clarified that the national label is not the only criterion to assess the nature of an afflictive measure, and even a formally administrative measure could be considered criminal in nature.
The CJEU has taken into consideration the case-law of the ECtHR, particularly as regards the assessment of the criminal nature of a sanction. Most remarkably, it has paid increasing attention in order to define what amounts to ‘idem’, i.e. the material conduct and not the legal classification, notwithstanding that Protocol No. 7 ECHR refers to ‘offence’ instead of facts (see Zolotukhin v. Russia, 14939/03, para. 33-38).
The administrative sanctions might in effect turn out as punitive as criminal measures. A criminal sanction may take the form of even rather low fines or administrative measures (for example revocation of the planning permit in Morscher, 54039/00, from the CJEU case law, see C-45/08, Spector Photo Group and C-60/12, Baláž).
Criminal sanctions, both criminal (in a strict sense) and administrative trigger the safeguards provided by criminal law including the principles of legality and the right not to be prosecuted or punished twice for the same offence (ne bis in idem).