Interplay between European Union criminal law and administrative sanctions: Constituent elements of transposing punitive administrative sanctions into national law

Abstract

The post-Lisbon punitive sanctioning law of the EU is divided between criminal and non-criminal sanctions. The legislator has preferred non-criminal sanctions for reasons of ultima ratio but more recently also for reasons of efficiency. In the search for efficiency, the regulation on such sanctions has become increasingly precise, and the legislator has started to refer to the administrative nature of such sanctions. This can limit the discretion of the Member States in finding the most suitable way to transpose such sanctions, and it could amount to a prohibition on resorting to criminal law (a negative harmonisation of criminal law). When EU law prescribes specific requirements on administrative sanctioning systems, fundamental aspects of national sanctioning systems might be affected, and this can also bring about a lower protection for procedural guarantees. This article explores the interplay between EU criminal law and administrative sanctions to ascertain whether there is a coherent understanding of what the term administrative refers to in EU law. Based on this evaluation, this article analyses whether the EU legislation allows for conclusions to be made on the minimum requirements of transposing sanctions that are labelled as administrative into national law (the constituent elements) and whether this labelling interferes with the use of criminal law.