In 1992, Advocate General Giuseppe Tesauro noted that the issue of sanctions in the EU (then Community) legal order raised some concern, as sanctioning powers were considered to be lacking. These words highlighted the shortcomings deriving from the limited sanctioning powers conferred upon the the...
In 1992, Advocate General Giuseppe Tesauro noted that the issue of sanctions in the EU (then Community) legal order raised some concern, as sanctioning powers were considered to be lacking. These words highlighted the shortcomings deriving from the limited sanctioning powers conferred upon the then European Community. At the time, three main factors contributed to scaling down the EC’s role in this domain. Firstly, the lack of legal bases in the Treaty and the Member States’ unwillingness to strengthen the sanctioning powers of the EC institutions, with limited exceptions. Secondly, according to some commentators, the European institutions were themselves focused on developing the Community legal order and policies, rather than on securing the implementation of relevant legislation at domestic level. Thirdly, the exercise of jus puniendi was still perceived as a primary task of the national authorities, due to its close connection with the idea of sovereignty over a given territory and a group of people. Consequently, the EC sanctioning system was originally confined to those limited provisions of secondary legislation expressly conferring such a task to the Community institutions.
In less than thirty years, the scenario has steadily changed.
Following the Amsterdam Bulb and Greek Maize case law, EU law may re-quire the Member States to impose proportionate, appropriate and effective sanctions as a corollary to their general obligation to ensure the effectiveness of EU law. This duty stems from the principle of loyal cooperation and has been considered a contrario as evidence of the existence of a structured EU-driven repressive system. Indeed, it provides a legal basis for the imposition of a sanction even in the absence of specific provisions of EC law. However, Greek Maize situations merely reflect the multilayered structure of the European legal order and the general rule according to which the Member States are tasked with implementing and executing EU law. Although national authorities have the duty to punish certain conduct under Article 4(3) TEU, the Union’s jus puniendi is blurred by the allocation of the choice regarding the type and extent of a sanctioning measure at domestic level. Certainly, recent practice indicates that the margin of discretion left to the Member States is gradually being eroded, as the European legislature increasingly sets out the nature of the sanctions to be enacted at domestic level and the basic criteria of their intensity.
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