Effective, Proportional and Dissuasive Penalties in the Implementation of the Environmental Crime and Shipsource Pollution Directives: Questions and Challenges
European Energy and Environmental Law Review, pp. 256-278, 2010
26 Pages Posted: 22 Jan 2012
Date Written: December 20, 2010
A European directive forces EU Member States to use the criminal law to enforce legislation implementing European environmental legislation in Member States legislation. The environmental crimes directives hold that Member States should impose "effective, proportional and dissuasive penalties" on violations, without specifying what these notions precisely mean. This notion of "effective, proportional and dissuasive penalties" comes from case-law of the European Court of Justice but can now be found in many European directives. This article attempts to interpret these rather vague notions. It is for example argued that the effectiveness notion requires that penalties aiming at punishing environmental crime should not only deter, but also aim at restoration of harm caused in the past and prevention of future harm. The notion of proportionality is interpreted by reference to a graduated punishment system, arguing that the penalty should be proportional to the way in which particular protected interests (like administrative interests, human health, human life, ecological interests) have been endangered or infringed. The notion of dissuation refers to deterrence. The well-known Becker model of crime is presented, but it is also argued that only low penalties and a low prosecution of environmental crime may not necessarily make environmental penalties ineffective. There may be other ways of inducing perpetrators towards compliance than merely by deterrence. Hence, the article aims at using legal doctrine and case law, as well as an economic approach, to explain how these notions of "effective, proportional and dissuasive penalties" could be interpreted.
Keywords: environmental criminal law, effective penalties, proportionality, deterrence, compliance, economic theory of crime, graduated punishment, restoration, prevention
JEL Classification: K14, K23, K32
Suggested Citation: Suggested Citation