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Liability measures

Liability measures. Prof. Gyula Bándi. Liability towards the Community - fine. TFEU Art. 260? Penalty payment – fine C-387/97, Commission vs. Greece

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Liability measures

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  1. Liability measures Prof. Gyula Bándi

  2. Liability towards the Community - fine • TFEU Art. 260? Penalty payment – fine • C-387/97, Commission vs. Greece „82 Article 171 of the Treaty does not specify the period within which a judgment must be complied with. However, in accordance with settled case-law, the importance of immediate and uniform application of Community law means that the process of compliance must be initiated at once and completed as soon as possible (Case 131/84 Commission v Italy [1985] ECR 3531, paragraph 7, Case 169/87 Commission v France [1988] ECR 4093, paragraph 14, and Case C-334/94 Commission v France, cited above). … • 84 In the absence of provisions in the Treaty, the Commission may adopt guidelines for determining how the lump sums or penalty payments which it intends to propose to the Court are calculated, so as, in particular to ensure equal treatment between the Member States. • 85 Memorandum 96/C 242/07 states that decisions as to the amount of a fine or penalty payment must be taken with an eye to their purpose, namely the effective enforcement of Community law. The Commission therefore considers that the amount must be calculated on the basis of three fundamental criteria: the seriousness of the infringement, its duration and the need to ensure that the penalty itself is a deterrent to continuation of the infringement and to further infringements.”

  3. C-278/01, Commission vs. Kingdom of Spain: „35. In the light of all the foregoing considerations, it must be held that, by not taking the measures necessary to ensure that the quality of inshore bathing water in Spanish territory conforms to the limit values set in accordance with Article 3 of the Directive, notwithstanding its obligations under Article 4 of that directive, the Kingdom of Spain has not taken all the measures necessary to comply with the Court's judgment in Commission v Spain and has accordingly failed to fulfil its obligations under Article 228 EC. … 42. Clearly a penalty payment is likely to encourage the Member State in infringement to put an end as soon as possible to the breach that has been found. For the purposes of determining the penalty payment in this case it is, first of all, necessary to consider the frequency of the proposed penalty payment; secondly, whether its amount should stay the same or decrease; and thirdly, the exact calculation of its amount. … 49. In those circumstances, a penalty which does not take account of the progress which a Member State may have made in complying with its obligations is neither appropriate to the circumstances nor proportionate to the breach which has been found. … 52. As regards the amount of the fine, the basic criteria which must be taken into account are, in principle, the duration of the infringement, its degree of seriousness and the ability of the Member State to pay (see Commission v Greece, paragraph 92). … 62. Consequently, the Kingdom of Spain must be ordered to pay to the Commission, into the account European Community own resources, a penalty payment of EUR 624 150 per year and per 1% of bathing areas in Spanish inshore waters which have been found not to conform to the limit values laid down under the Directive for the year in question, as from the time when the quality of bathing water achieved in the first bathing season following delivery of this judgment is ascertained until the year in which the judgment in Commission v Spain is fully complied with.”

  4. Interim measures • TFEU Art. 279 • C-193/07 R, Commission vs. Poland (Augustowska) • C-76/08 R, Commission vs. Republic of Malta (hunting) „21      It is settled case-law that the judge hearing an application for interim measures may order interim relief only if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Where appropriate, the judge hearing such an application must also weigh up the interests involved (see, inter alia, the order in Case C‑404/04 P-R Technische Glaswerke Ilmenau v Commission [2005] ECR I‑3539, paragraph 10, and the case cited). 22      The conditions thus imposed are cumulative, so that an application for interim measures must be dismissed if one of them is not met (see, inter alia, Technische Glaswerke Ilmenau v Commission, paragraph 11, and the case cited).”

  5. Common liability measures - criminal TFEU Chapter 4 - Judicial cooperation in criminal matters • Article 82 (ex Article 31 TEU) 1. ... principle of mutual recognition of judgments and judicial decisions ... 2. ... the European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules. ... They shall concern: • mutual admissibility of evidence between Member States; • the rights of individuals in criminal procedure; • the rights of victims of crime; • any other specific aspects of criminal procedure which the Council has identified .... • ... maintaining or introducing a higher level of protection for individuals.

  6. Article 83 (ex Article 31 TEU) 1. The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis. These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime. On the basis of developments in crime, the Council may adopt a decision identifying other areas of crime that meet the criteria specified in this paragraph. It shall act unanimously after obtaining the consent of the European Parliament. 2. ... in an area which has been subject to harmonisation measures, directives may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned. ... ordinary or special legislative procedure as was followed for the adoption of the harmonisation measures in question, without prejudice to Article 76. 3. Where a member of the Council considers that a draft directive ...would affect fundamental aspects of its criminal justice system, it may request that the draft directive be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. ...

  7. Article 84 The European Parliament and the Council, ... promote and support ... crime prevention, excluding any harmonisation of the laws and regulations of the Member States. • Article 85 (ex Article 31 TEU) 1. Eurojust's mission shall be to support and strengthen coordination and cooperation ... shall determine Eurojust's structure, operation, field of action and tasks. These tasks may include:.... • Article 86 1. In order to combat crimes affecting the financial interests of the Union, the Council, by means of regulations adopted in accordance with a special legislative procedure, may establish a European Public Prosecutor's Office from Eurojust. ...

  8. General principles to respect • Subsidiarity requirement special attention (This means that the EU can only legislate if the goal cannot be reached more effectively by measures at national or regional and local level but rather due to the scale or effects of the proposed measure can be better achieved at Union level.) • In addition, fundamental rights, ...must be respected A two-step approach in criminal law legislation • Step 1: The decision on whether to adopt criminal law measures at all Necessity and Proportionality – Criminal law as a means of last resort ("ultima ratio") • Step 2: Principles guiding the decision on what kind of criminal law measures to adopt Should Step 1 demonstrate the need for criminal law, the next question is which concrete measures to take.

  9. Convention on the Protection of the Environment through Criminal Law (Strasbourg, 4.XI.1998) • common criminal policy • environmental violations having serious consequences must be established as criminal offences subject to appropriate sanctions • effective measures • imposing criminal or administrative sanctions on legal persons Draft directive. (COM [2001]139 final). • Council framework decision Council Framework Decision 2003/80/JHA of January 27, 2003 on the protection of the environment through criminal law • When presenting the directive, the Council voiced its concerns which are contained also in the preamble to the framework decision: „7 The Council has considered this proposal but has come to the conclusion that the majority required for its adoption by the Council can not be obtained. The said majority considered that the proposal went beyond the powers attributed to the Community by the Treaty establishing the European Community.”

  10. The Directive (Directive 2008/99/EC) Why? • The extensive body of EU Environmental law • Effective implementation (6th EAP on implementation - serious environmental offences, adequate, and dissuasive functions • Large differences between the criminal sanctions provided for environmental offences in the Member States. Minimum requirements • a list of environmental offences, if committed intentionally or with serious negligence • inciting, aiding and abetting the commission of these offences must be punishable as a criminal offence as well • legal persons can be held liable • effective, proportionate and dissuasive criminal sanctions • a minimum standard of environmental protection through criminal law • no procedural part

  11. Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law Preamble • (1) According to Article 174(2) of the Treaty, Community policy on the environment must aim at a high level of protection. • (3) ... existing systems of penalties have not been sufficient to achieve complete compliance with the laws for the protection of the environment. ... criminal penalties, ... demonstrate a social disapproval of a qualitatively different nature compared to administrative penalties or a compensation mechanism under civil law. • (5) ... more dissuasive penalties.

  12. (6) Failure to comply with a legal duty to act can have the same effect as active behaviour and should therefore also be subject to corresponding penalties. • (7) ... when committed intentionally or with serious negligence. • (8) The legislation listed in the Annexes to this Directive contains provisions which should be subject to criminal law measures ... • (10) This Directive obliges Member States to provide for criminal penalties in their national legislation ...This Directive creates no obligations regarding the application of such penalties, or any other available system of law enforcement, in individual cases. • (11) This Directive is without prejudice to other systems of liability for environmental damage under Community law or national law. • (12) As this Directive provides for minimum rules,

  13. Environmental Liability Directive Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage • (2) The prevention and remedying of environmental damage should be implemented through the furtherance of the "polluter pays" principle, as indicated in the Treaty and in line with the principle of sustainable development. • (11) This Directive aims at preventing and remedying environmental damage, and does not affect rights of compensation for traditional damage granted under any relevant international agreement regulating civil liability. • (13) Not all forms of environmental damage can be remedied by means of the liability mechanism. For the latter to be effective, there need to be one or more identifiable polluters, the damage should be concrete and quantifiable, and a causal link should be established between the damage and the identified polluter(s). Liability is therefore not a suitable instrument for dealing with pollution of a widespread, diffuse character, where it is impossible to link the negative environmental effects with acts or failure to act of certain individual actors.

  14. (14) This Directive does not apply to cases of personal injury, to damage to private property or to any economic loss and does not affect any right regarding these types of damages. • (15) Since the prevention and remedying of environmental damage is a task directly contributing to the pursuit of the Community's environment policy, public authorities should ensure the proper implementation and enforcement of the scheme provided for by this Directive. • (18) According to the "polluter-pays" principle, an operator causing environmental damage or creating an imminent threat of such damage should, in principle, bear the cost of the necessary preventive or remedial measures. In cases where a competent authority acts, itself or through a third party, in the place of an operator, that authority should ensure that the cost incurred by it is recovered from the operator. It is also appropriate that the operators should ultimately bear the cost of assessing environmental damage and, as the case may be, assessing an imminent threat of such damage occurring.

  15. (21) Operators should bear the costs relating to preventive measures when those measures should have been taken as a matter of course in order to comply with the legislative, regulatory and administrative provisions regulating their activities or the terms of any permit or authorisation. • (23) Competent authorities should be entitled to recover the cost of preventive or remedial measures from an operator within a reasonable period of time from the date on which those measures were completed. • (25) Persons adversely affected or likely to be adversely affected by environmental damage should be entitled to ask the competent authority to take action. Environmental protection is, however, a diffuse interest on behalf of which individuals will not always act or will not be in a position to act. Non-governmental organisations promoting environmental protection should therefore also be given the opportunity to properly contribute to the effective implementation of this Directive.

  16. Article 4 - Exceptions • Article 5 - Preventive action • Article 6 - Remedial action • Article 7 - Determination of remedial measures • Article 8 - Prevention and remediation costs • Article 9 - Cost allocation in cases of multiple party causation • Article 10 - Limitation period for recovery of costs • Article 12 - Request for action • Article 14 - Financial security

  17. Case C‑378/08 • Where, in a situation entailing environmental pollution, the conditions for the application ratione temporis and/or ratione materiæ of Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage are not met, such a situation is governed by national law, in compliance with the rules of the Treaty, and without prejudice to other secondary legislation. • Directive 2004/35 does not preclude national legislation which allows the competent authority acting within the framework of the directive to operate on the presumption, also in cases involving diffuse pollution, that there is a causal link between operators and the pollution found on account of the fact that the operators’ installations are located close to the polluted area. However, in accordance with the ‘polluter pays’ principle, in order for such a causal link thus to be presumed, that authority must have plausible evidence capable of justifying its presumption, such as the fact that the operator’s installation is located close to the pollution found and that there is a correlation between the pollutants identified and the substances used by the operator in connection with his activities.

  18. Articles 3(1), 4(5) and 11(2) of Directive 2004/35 must be interpreted as meaning that, when deciding to impose measures for remedying environmental damage on operators whose activities fall within Annex III to the directive, the competent authority is not required to establish fault, negligence or intent on the part of operators whose activities are held to be responsible for the environmental damage. On the other hand, that authority must, first, carry out a prior investigation into the origin of the pollution found, and it has a discretion as to the procedures, means to be employed and length of such an investigation. Second, the competent authority is required to establish, in accordance with national rules on evidence, a causal link between the activities of the operators at whom the remedial measures are directed and the pollution.

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