The Court of Justice and European Criminal Law

Leading Cases in a Contextual Analysis

Valsamis Mitsilegas, Alberto di Martino, Leandro Mancano

• Publisher: Hart Publishing
• Year: 2019
• ISBN:
  9781509911189
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

The aim of this book is to provide an insight into the landmark rulings of the Court of Justice of the European Union (CJEU) in European Criminal Law (ECL). As in other areas of EU law, the decisions of the CJEU have been a driving force for development and integration. By analysing the impact of these leading cases on EU and national law, the book provides a diachronic and multifaceted picture of the Court's approach to criminal law.

part i

Principles

1

C-80/86 – Kolpinghuis Nijmegen

The General Principles of European (Criminal) Law as Limitation to the Enforcement of EU Law: The Kolpinghuis Nijmegen Rule^*

DR LUISA MARIN

I.Introduction: Kolpinghuis Nijmegen as a First Encounter between EU Law and National Criminal Law(s) Principles

In the same year in which Michael Jackson released his famous ‘Bad’ album (1987), the Court of Justice of the EU (CJEU or CJ) delivered, on the 8th of October 1987, the judgment in the case Criminal Proceedings against Kolpinghuis Nijmegen BV (hereinafter: Kolpinghuis Nijmegen), in which it gave its contribution to the edification of European criminal law, by deciding that the principles of legal certainty and non-retroactivity limited the enforcement of EU law into the legal orders of the Member States (MSs).¹ This chapter focuses on this ruling.

The judgment can be considered one of the cornerstones of EU criminal law for several reasons: from one perspective, it indicates how EU law can and cannot influence national law enforcement systems, with specific reference to the interaction between EU law and national criminal law. Two years before the leading ‘Greek Maize’ case,² the CJ was building the edifice of EU law, unravelling the implications of its famous doctrines of direct effect and indirect effect, in particular for directives.³

From another perspective, the Kolpinghuis Nijmegen case represents a contribution to the edification of the principles of EU law, namely of legal certainty and non-retroactivity. These principles have a special significance for European criminal law, a field of law which has developed, first, thanks to the adjudication of the CJ and, later on, with the treaties and with the legislation.

The common element within both perspectives is the strong protective dimension developed for individuals by the CJ, with a judgment where EU law is deployed to protect citizens against the state, but also where the CJ resorts to general principles of national criminal justice systems in order to forge this protective dimension. EU law functions like a ‘shield’ against criminal law.⁴

Kolpinghuis Nijmegen is therefore, and for different reasons, a judgment of crucial importance in both EU law and EU criminal law, with a deep constitutional significance. It contributes to shape EU law as the house built upon the foundational Van Gend en Loos case, where the CJ stated that the EU legal order was ‘more than an agreement which merely creates mutual obligations between the contracting parties’.⁵ As ‘a new legal order of international law for the benefit of which the states have limited their sovereign rights (…) and the subjects of which comprise not only Member States but also their nationals,⁶ Kolpinghuis Nijmegen develops a new declination of this core feature of EU law on the precise juncture of the relations between states and individuals. It is one of those judgments in which EU law emerges not simply as a law to be enforced, but also as a shield for individuals, and as such it shapes the EU as a system based on the ‘rule of law’. In a nutshell, it is one of the first encounters between European law and national criminal law principles, which then became European criminal law principles.

The chapter is organised as follows: after this short introduction (I), the judgment will be presented and discussed in relation to the case law of that time (II). In a following section (III), the legal issues at the core of the case will be analysed, and the chapter will move forward on the legacy (IV) of Kolpinghuis Nijmegen in the subsequent case law of the Court of Justice, showing how the knots of the direct effect(s) of EU law provisions continue to animate the debate on European, criminal law and constitutional law scholarship, as the recent Taricco saga⁷ demonstrates, before concluding (V).

II.The Facts of the Case and the Judgment of 8 October 1987

A.The Café Run by Kolpinghuis Nijmegen

The case dealt with a preliminary reference from the district court (arrondissement bank) of Arnhem, in the Netherlands, in which the referring court asked questions on a directive that, at the time, had not yet been implemented in national legislation.

Council Directive 80/777/EEC⁸ on the approximation of the laws of the MSs relating to the exploitation and marketing of natural mineral waters (hereinafter: the Directive) required MSs to take measures necessary to ensure that only waters extracted from the ground and recognised by the national responsible authority as ‘mineral waters’ could be marketed as such.

The deadline for the implementation of the Directive expired on the 17 July 1984, but the Dutch state amended its legislation with effect from 8 August 1984, whereas the facts of the case took place precisely on 7 August 1984, one day before the entry into force of the legislation implementing the Directive. The facts therefore took place before the state had implemented the Directive, which was already due for transposition.

The facts of the case concerned a prosecution against a company running a café which used to sell a mixture of tap water and carbon dioxide under the label of ‘mineral water’. Tap water mixed with carbon dioxide, as one can easily agree, could not be considered as mineral water for the purpose of the Directive, and therefore could not be marketed with that indication. At a domestic level, the undertaking was charged with the infringement of the Inspection Regulation of the Municipality of Nijmegen, prohibiting the stocking and delivery of goods of unsound composition intended for trade and human consumption.

The public prosecutor also relied on the Directive on natural mineral waters in his request for conviction.

In this situation, the judge referring the case questioned the applicability of the Directive for the solution of the case at stake. Therefore, the core of the referral boiled down to the issue of whether an authority of the MS, such as a prosecuting entity, could invoke against a national a provision of a directive in a case which is not covered by the MS’s own legislation or implementing provision. It covered, in a nutshell, the question of whether a directive could bring about detrimental direct effects for individuals and how they could do so; second, it covered the issue of whether the Court can be bound to directives via the instrument of consistent interpretation.⁹

B.The Judgment of the Court

This referral gave the Court the chance to dig into the issue of direct effects of directives not yet implemented and their relationship with criminal liability, a subject which was highly dynamic at that time.

After the seminal Van Gend en Loos of 1963, EU law history was made in the 1970s with the ramification of the doctrine of the direct effect of treaty provisions into the direct effect of directives following Van Duyn¹⁰ and its progenies. In the 1980s, the CJ continued to further develop this complex doctrine.

In this judgment, confronted with the direct effect of directives and an individual’s criminal liability, the CJ had examined the first two questions together, since they both referred to the issue of ‘detrimental direct effects’, ie, direct effects which are detrimental for the individual concerned and do not confer on her/him any right, as was the situation in the classical Van Gend en Loos case.

Starting from its case Becker,¹¹ on tax collection and VAT, the Court stated that provisions of directives, sufficiently precise and unconditional, may be relied upon by an individual against the MS where the MS fails to implement the directive by the end of the implementation period or if it has been implemented incorrectly.

This means that a MS which has not adopted the implementing measures required by the directive may not plead, as against individuals, its own failure to perform the obligation the directive entails. This results from the nature of the obligation of the then Article 189 of the Treaty (now Article 288 of the Treaty on the Functioning of the European Union (TFEU)), which is of a binding nature toward states, and therefore entails that the individuals concerned should be able to rely on that binding nature.

The Court then moves on to analyse whether a directive can impose obligations on individuals, an issue that was tackled in Marshall,¹² which concerned the case of a dietician dismissed from the national health authority on the ground that she had reached retirement age. In Marshall, the Court held that the direct effect of directives can be invoked against the state irrespective of whether it acts as an employer or as autorite’ publique. However, direct effect cannot operate against other individuals, thus denying that directives can have a so-called ‘horizontal direct effect’. The logic of the CJ is ‘to prevent the State from taking advantage of its own failures to comply with Community Law’.¹³

Developing its Marshall doctrine in Kolpinghuis Nijmegen, the Court held that ‘a directive may not of itself impose obligations on an individual and that a provision of a directive may not be relied upon as such against such a person before a national court’.¹⁴ Thus, as long as direct effect is concerned, a directive cannot display horizontal direct effect.

The second question tackled in Kolpinghuis Nijmegen concerned whether the Directive could bear indirect effect, in the sense that the national court ‘may or must take into account of a directive as an aid to the interpretation of a rule of national law’.¹⁵ In other words, if EU law could not work as a foundation of a duty of incrimination, can the national law, interpreted in harmony with or in light of the Directive, be used to establish such criminal liability? Must it be interpreted in such a way?

The CJ first recalled the Von Colson case,¹⁶ where the doctrine of indirect effect or consistent interpretation was first posited, exactly 10 years after Van Duyn.

With the doctrine of consistent interpretation, the CJ further expanded the enforcement of EU law via the first European judges, ie, national courts. Consistent interpretation entails that, when a national court cannot derive direct effect from a directive, because it is not precise, clear and unconditional enough, then the court can interpret its national law in conformity with EU law. Consistent interpretation is a category of interpretation which is also used by many other courts in Europe, and which echoes the verfassungskonforme Auslegung of the German Constitutional Court, for example.

However, in Kolpinghuis Nijmegen the CJ confronts the duty of consistent interpretation with the general principles of EU law, in particular the principles of legal certainty and non-retroactivity. In other words, the CJ states that in interpreting national law, the national court is limited by the general principles of EU law, namely the principle of legal certainty and non-retroactivity.

As stated a few months earlier in Pretore di Salò:¹⁷

a directive cannot, of itself and independently of a national law adopted by a Member State for its implementation, have the effect of determining or aggravating the liability in criminal law of persons who act in contravention of the provisions of that directive.¹⁸

That is also why in the referring case, the CJ answered that, notwithstanding the duty of consistent interpretation which generally speaking applies (the Von Colson rule), ‘the directive cannot of itself and independently of a law adopted for its implementation, have the effect of determining or aggravating the liability in criminal law of persons who act in contravention of the provisions of that directive’.¹⁹

Therefore, the Von Colson rule is interpreted together with the rule that a directive cannot display ‘detrimental’ and ‘descendant’ direct effect, in order to set the same limitation of direct effect also to consistent interpretation. In so doing, the Court reinforces the protective dimension of EU law toward t...

Table of contents

• Cover
• Title Page
• Foreword by Koen Lenaerts
• Table of Contents
• List of Contributors
• Introduction
• PART I: PRINCIPLES
• PART II: COMPETENCE
• PART III: NE BIS IN IDEM
• PART IV: MIGRATION AND CITIZENSHIP
• PART V: MUTUAL RECOGNITION AND MUTUAL TRUST
• Index
• Copyright Page