Administrative Penal Law

It was already mentioned that in the 1980s that some legal systems, such as Austria and Germany, had administrative penal laws whereby the legislator had ex-ante decided that particular violations would no longer be handled by the criminal law but exclusively through administrative penal law. Also in other member states, such as Portugal, the enforcement of environmental administrative statutes took place through administrative punishment of those regulatory offences (Faure and Heine 2000, p. 283).

It was especially in the UK where administrative fines were introduced. In England and Wales, the introduction of the Regulatory Enforcement and Sanctions Act (2008) gave some regulatory bodies, including the Environment Agency, the power to impose a greater repertoire of civil (administrative) sanctions. They were introduced by various administrative orders and regulations such as the Environment Civil Sanctions Order (2010). Consequently, in England and Wales, the Environment Agency can impose either a fixed monetary penalty or a variable monetary penalty. The reason for applying those fines is to fill the gap in enforcement where prosecution does not seem to be in the public interest (Faure and Svatikova 2012, pp. 266-268).

Similar changes equally took place in parts of Belgium because of the introduction of the Environmental Enforcement Decree (2008) in the Flemish Region and a similar decree, also in 2008, in the Walloon Region. In case of the former, some environmental crimes have been declassified as administrative offences no longer subject to the criminal law. In that case, the exclusive administrative sanction is the only sanction available. For crimes still forwarded to the public prosecutor, there is a possibility for the Regional Agency to impose an alternative administrative fine, but only in cases in which the prosecutor opts not to prosecute (Faure and Svatikova 2012, pp. 260-261). Recall that for the Flemish Region under the old system (of only criminal enforcement), 65 per cent of the notices of violations were dismissed, which effectively meant that no remedy was imposed at all. Data on the enforcement policy after the introduction of the administrative fining system in 2008 show that the dismissals, that is, the cases where no enforcement reaction whatsoever took place, have been considerably reduced. When the prosecutor now dismisses cases, they are sent to the administrative authority to impose an administrative fine, which results in a substantial reduction of the number of cases where no reaction takes place.[1]

It is important to remember, however, that there are still important differences between the member states. For example, in the Netherlands, a variety of different administrative remedies exist but administrative fines have so far not been used in environmental law.[2] In Spain, the introduction of administrative fines has been opposed (Fajardo et al. 2015, p. 67). This shows that although some member states employ an alternative approach that focuses on a more reduced role of the criminal law, this is certainly not the case for all EU member states and, as shown above, nor for the EU Environmental Crime Directive.

  • [1] See in that respect the Environmental Enforcement Reports of the Flemish High Council forEnvironmental Enforcement to be found (in English) on . See also Faure (2011).
  • [2] See Jansen (2015) for a plaidoyer in favour of the introduction of administrative fines inenvironmental enforcement.
 
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