Relationship between criminal and administrative enforcement and sanctioning for environmental crimes
Double track enforcement regime in environmental matters
The recent case law on the ne bis in idem principle has developed in the field of economic and financial crime. However, its conclusions apply also to practices in other fields, which allow a joint imposition of administrative and criminal sanctions in respect of the same conduct, including environmental matters. In this respect, the ECtHR in A and B v Norway made a reference to opinion od Advocate General in case C-617/10, Åkerberg Fransson, and noticed that
Here, environmental policies are listed among other complex fields which often allow or require coordination of multiple administrative authorities and criminal investigators.
As to the connection in substance, the dual proceedings must satisfy the following four conditions (see also Johannesson and Others v Iceland, 22007/11, Ragnar Thorisson v. Iceland, 52623/14):
- They pursue complementary purposes and thus address, not only in abstracto but also in concreto, different aspects of the social misconduct involved;
- They are a foreseeable consequence, both in law and in practice, of the same impugned conduct;
- They avoid, as far as possible, any duplication in the collection and assessment of the evidence;
- They “above all” put in place an offsetting mechanism designed to ensure that the sanction imposed in the first proceedings is taken into account in the other proceedings, so that the overall amount of any penalties imposed is proportionate.
- In addition to the connection in substance, a relationship in time must also be present, though the proceedings don't need to be conducted simultaneously and the order in which the processes take place is irrelevant.
To sum up, it is possible to set the ne bis in idem principle aside where dual proceedings represent “complementary responses to socially offensive conducts” and are combined in an integrated manner to form a “coherent whole” in order to address the different aspects of the offence.