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SOME DEVELOPMENTS OF THE PRINCIPLE

OF MENS REA IN THE CASE LAW


OF THE COURT OF JUSTICE
OF THE EUROPEAN UNION

Alessandro Rosan*

1. INTRODUCTION

As a matter of fundamental legal principle, criminal liability may not arise from the
mere existence of the fact or from the anti-juridical nature of the fact: the defendants
should be held criminally liable only for events or consequences which they intended
or knowingly risked.1 That is the principle of mens rea which is expressed by the well-
renowned formula nullum crimen, nulla poena sine culpa and which manifests the

* Alessandro Rosan, PhD, is Teaching Assistant of EU Law and International Law at the Law School
of the University of Padova (Italy). The author wishes to thank Eleonora Rosan, John Foster and
the anonymous reviewers for their valuable contributions and comments on earlier versions of the
case note. The author is solely responsible for the content of the case note.
1 Andrew Ashworth, Jeremy Horder, Principles of Criminal Law (7th edn, Oxford University Press
2013) 74. As it was underlined by Alan Brudner, Agency and Welfare in Criminal Law in Stephen
Shute, John Gardner, Jeremy Horder (eds), Action and Value in Criminal Law (Clarendon Press
1993) 35 what alone takes us to criminal punishment is the intentional or (advertently) reckless
disdain for the autonomy of another self that, when absolutised as a principle, involves the insecurity
of ones own liberty as its necessary consequence. Regarding mens rea at common law, see generally
Claire de Than, Russell Heaton, Criminal Law (4th edn, Oxford University Press 2013) 5089;
Richard Card, Card, Cross & Jones Criminal Law (21st edn, Oxford University Press 2014) 69109;
Nicola Padfield, Criminal Law (9th edn, Oxford University Press 2014) 4775; Andrew Ashworth,
Sentencing and Criminal Justice (6th edn, Cambridge University Press 2015) 157159. Regarding
mens rea at civil law, see generally Giuseppe Maggiore, Prolegomeni al concetto di colpevolezza
(Priulla 1951); Marcello Gallo, Il concetto unitario di colpevolezza (Giuff r editore 1951); Biagio
Petrocelli, La colpevolezza (3rd edn, Cedam 1955); Pietro Nuvolone, La concezione giuridica italiana
della colpevolezza [1976] Rivista italiana di diritto e procedura penale 3; Claus Roxin,
Considerazioni di politica criminale sul principio di colpevolezza [1980] Rivista italiana di diritto
e procedura penale 369; Tullio Padovani, Teoria della colpevolezza e scopi della pena [1987] Rivista
italiana di diritto e procedura penale 798; Mohamed Badar, Mens rea Mistake of Law & Mistake
of Fact in German Criminal Law: A Survey for International Criminal Tribunals [2005]
International Criminal Law Review 203. For an introduction to mens rea in international criminal
law, see Mohamed Badar, The Concept of Mens Rea in International Criminal Law: The Case for a
Unified Approach (Bloomsbury Publishing 2013).

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need for a psychical nexus between the offenders and what they have done as they
must have been subjectively aware of their conduct.2 It represents the point of
convergence between law and ethics3 and it conveys the idea of a personal reprimand
issued by the legal system to the offender.
In the European Convention on Human Rights (ECHR) legal system, one may not
find a provision that explicitly affirms and defines the principle of mens rea. However,
it is possible to combine several provisions such as those of Articles 5(1) (Right to
liberty and security), 6(1) (Right to a fair trial) and 7(1) (No punishment without law)
to find a legal basis for this. As a matter of fact, this line of reasoning has been
confirmed by the European Court of Human Rights (ECtHR).4
As far as the European Union (EU) is concerned, the legal framework is quite
similar in that one cannot identify a specific provision regarding this principle.5
However, one may try to combine some provisions here as well. In fact, the combination
of Articles 6 (Right to liberty and security), 48(1) (Presumption of innocence and
right of defence) and 49 (Principles of legality and proportionality of criminal offences
and penalties) of the Charter of Fundamental Rights of the EU seems to lead to the
same hermeneutic outcome.6 In light of Article 6 TEU, the Court of Justice of the

2 For an overview of the historical development of the concept see Tullio Padovani, Appunti
sullevoluzione del concetto di colpevolezza [1973] Rivista italiana di diritto e procedura penale 554.
3 Giuseppe Bettiol, Colpevolezza giuridica e colpevolezza morale [1980] Rivista italiana di diritto e
procedura penale 1007.
4 See Varvara v Italy App no 17475/09 (ECtHR, 29October 2013) para 69. See also Sud Fondi s.r.l. v
Italy App no 75909/01 (ECtHR, 10May 2002) para 116: En ce qui concerne la Convention, larticle7
ne mentionne pas expressment le lien moral entre llment matriel de linfraction et la personne
qui en est considre comme lauteur. Cependant, la logique de la peine et de la punition ainsi que la
notion de guilty (dans la version anglaise) et la notion correspondante de personne coupable
(dans la version franaise) vont dans le sens dune interprtation de larticle7 qui exige, pour punir,
un lien de nature intellectuelle (conscience et volont) permettant de dceler un lment de
responsabilit dans la conduite de lauteur matriel de linfraction. A dfaut, la peine ne serait pas
justifie. Il serait par ailleurs incohrent, dune part, dexiger une base lgale accessible et prvisible
et, dautre part, de permettre quon considre une personne comme coupable et la punir alors
quelle ntait pas en mesure de connatre la loi pnale, en raison dune erreur invincible ne pouvant
en rien tre impute celui ou celle qui en est victime. On these judgements, see Maurizio De
Stefano, La confisca delle lottizzazioni abusive in Italia allesame della Corte Europea dei Diritti
dellUomo (il caso Punta Perotti) [2008] I diritti delluomo 53; Francesco Mazzacuva, Un hard
case davanti alla Corte europea: argomenti e principi nella sentenza su Punta Perotti [2009]
Diritto penale e processo 1540; Antonio Balsamo, La Corte europea e la confisca senza condanna
per la lottizzazione abusiva [2014] Cassazione penale 1395; Gabriele Civello, La sentenza Varvara
contro Italia non vincola il giudice italiano: dialogo tra Corti o monologhi di Corti? [2015]
Archivio Penale 1.
5 As far as administrative sanctions are concerned, it should be considered that Article5(1) of Council
Regulation (EC, Euratom) 2988/95 of 18 December 1995 on the protection of the European
Communities fi nancial interests, [1995] OJ L312/1, introduces a distinction between intentional
irregularities or those caused by negligence.
6 Anyway, the concept of guilt may be identified in Article6(2) ECHR and Article48(1) of the Charter
where it is stated that everyone who has been charged shall be presumed innocent until proved
guilty according to law. See generally on the Charter Giuseppe Palmisano (ed), Making the Charter

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Alessandro Rosan

European Union (CJEU) has to interpret EU law consistently with those principles.
Therefore, the purpose of this article is to show that the CJEU has constantly tried to
do so sometimes with swinging outcomes even before the adoption and the
constitutionalisation of the Charter. So, issues such as the distinction between
intentionally committed and unintentionally committed offences (with a focus on the
concepts of intention and negligence), strict criminal liability and ignorance or
mistake as to a matter of law are tackled in this case analysis.

2. THE DISTINCTION BETWEEN INTENTIONALLY


COMMITTED AND UNINTENTIONALLY COMMITTED
OFFENCES

In Rinkau, a man resident in the Federal Republic of Germany was summoned to


appear before a Dutch magistrate for driving, in the Netherlands, a vehicle equipped
with a radio-electrical transmitting device without holding the appropriate licence.
He did not appear and was sentenced in absentia to a fine or, failing the payment, to
one days imprisonment. After two appeals, the Supreme Court decided to refer two
questions to the CJEU for an interpretation of Article 2 of the Protocol on the
Interpretation by the Court of Justice of the Convention of 27 September 1968 on
Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters.
One of those questions concerned the meaning of the expression an offence which
was not intentionally committed under Article2(1).7 In this regard, the Court ruled
that, even if the Convention did not provide a legal definition of that concept, it could
be identified as an independent notion which could be explained by reference to the
objectives and scheme of the Convention and to the general principles which the
national legal systems share. Thus, it was possible to distinguish between offences
committed intentionally and those not so committed:

of Fundamental Rights a Living Instruments (Brill Nijhoff 2014); Steve Peers, Tamara Hervey, Jeff
Kenner, Angela Ward (eds), The EU Charter of Fundamental Rights: A Commentary (Hart Publishing
2014); Sybe de Vries, Ulf Bernitz, Stephen Weatherill (eds), The EU Charter of Fundamental Rights
as a Binding Instrument: Five Years Old and Growing (Hart Publishing 2015).
7 Pursuant to Article 2, (1) without prejudice to any more favourable provisions of national laws,
persons domiciled in a Contracting State who are being prosecuted in the criminal courts of another
Contracting State of which they are not nationals for an offence which was not intentionally
committed may be defended by persons qualified to do so, even if they do not appear in person. (2)
However, the court seised of the matter may order appearance in person; in the case of failure to
appear, a judgment given in the civil action without the person concerned having had the
opportunity to arrange for his defence need not be recognised or enforced in the other Contracting
States. In Rinkau, the issue at stake concerned the possibility of qualifying the offence committed
by Mr Rinkau (whose domicile was in Germany) as an unintentional one in order to justify his
defence by a lawyer qualified to do so in front of the Dutch judiciary. It is quite peculiar that a
criminal procedure rule found room in a convention concerning civil and commercial matters. The
reason should be identified in the fact a criminal judgement may affect those two sectors.

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Whereas offences which were intentionally committed, if they are to be punishable, require
an intent to commit them on the part of the person concerned, offences which were not
intentionally committed may result from carelessness, negligence or even the mere
objective breach of a legal provision. They are therefore, first, generally less serious in
nature and, secondly, cover most offences connected with road accidents which are to be
ascribed to carelessness, negligence or the mere actual breach of a legal provision.8

An important judgement on the concept of intentional offence handed down by the


CJEU concerned the interpretation of some regulations providing for sanctions
against Iran in order to apply pressure to end proliferation-sensitive nuclear
activities.9 More specifically, an Iranian company had purchased in Germany some
technical components which were deemed necessary to develop long range missiles.
The questions referred to the CJEU for a preliminary ruling regarded, inter alia, the
mental element of the conduct which, pursuant to the EU regulations, was identified
by using the adverbs knowingly and intentionally.10 The national judge needed to
know whether actual knowledge and an extensive volitional component were needed
in the situation at hand.
Advocate General (AG) Bot clarified two preliminary aspects. First of all, the two
terms must be interpreted in an autonomous and uniform manner throughout the
EU. Secondly, their meaning must be sought by taking into account the principle of
autonomy of criminal law and the general principles of that branch. According to AG
Bot, these principles require that the offender should have acted in full awareness and
of their own free will: that is to say, their awareness and will should not have been
overborne by mental disorder and/or constraint. So, both intentional fault and fault

8 Case 157/80 Rinkau [1980] ECR 1392, para 15. See Trevor Hartley, Civil Proceedings in Criminal
Court: Article II of the Protocol [1981] European Law Review 483; Walther J. Habscheid, Zur
Auslegung von Art. II des Protokolls zum EuGV [1982] Praxis des internationalen Privat- und
Verfahrensrechts 173.
9 See Council Common Position 2007/140/CFSP of 27February 2007 concerning restrictive measures
against Iran [2007] OJ L61/49 and Council Regulation (EC) 423/2007 of 19April 2007 concerning
restrictive measures against Iran [2007] OJ L103/1, both of which make reference to UNSC Res 1737
(23 December 2006) UN DOC S/RES/1737. On the topic see generally Francesco Giumelli, The
Success of Sanctions: Lessons Learned from the EU Experience (Routledge 2013); Pieter Jan Kuijper,
Jan Wouters, Frank Hoff meister, Geert De Baere, Thomas Ramopoulos, The Law of EU External
Relations (2nd edn, Oxford University Press 2015) 215294.
10 Pursuant to Article7(4) of Regulation 423/2007 the participation, knowingly and intentionally, in
activities the object or effect of which is, directly or indirectly, to circumvent the measures of
freezing funds and economic resources shall be prohibited. The concept of intent may also be found
expressed under Article2 of Council Framework Decision 2008/841/JHA of 24October 2008 on the
fight against organised crime [2008] OJ L300/42. Pursuant to that Article, each Member State shall
take the necessary measures to ensure that the conduct by any person who, with intent and with
knowledge of either the aim and general activity of the criminal organisation or its intention to
commit the offences in question, actively takes part in the organisations criminal activities,
including the provision of information or material means, the recruitment of new members and all
forms of fi nancing of its activities, knowing that such participation will contribute to the
achievement of the organisations criminal activities is regarded as an offence (emphasis added).

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of carelessness or negligence may be taken into consideration.11 According to the


CJEU, the two cumulative requirements of knowledge and intent are met where the
person deliberately seeks the object or the effect, direct or indirect, of the offence.
They are also met where the person is aware their participation in such an activity may
have that object or effect and accepts that possibility.12
Elsewhere the CJEU has confirmed that interpretative line by ruling on the concept
of intentional non-compliance which can be found in many EU regulations regarding
the Common Agricultural Policy and support for rural development.13 According to
the Court, this concept presupposes an infringement of the rules on cross-compliance
by a beneficiary of aid who chooses non-compliance with those rules or accepts the
possibility of non-compliance.14 That seems to recall another reasoning expressed by
the Court: according to settled case law in the antitrust law field, it is not necessary for
an undertaking to have been aware it was infringing the competition rules for an
infringement to be regarded as intentionally committed; it is sufficient that it could
not have been unaware its conduct had as its object the restriction of competition in
the common market.15
As to the concept of negligence, in a case concerning an accident at work caused
by the malfunction of machinery, two questions were referred to the CJEU in order to
understand what obligations may be imposed on the importer of a machine bearing
the CE marking and accompanied by an EC declaration of conformity.16 The Court

11 Case C-72/11 Afrasiabi and others [2011] ECR I-14288, Opinion of AG Bot.
12 Case C-72/11, Afrasiabi and others [2011] ECR I-14308, para 67. In the same sense, see Case
T-434/11Europisch-Iranische Handelsbank AG v Council [2013] nyr. For a review of Afrasiabi, see
Vincenzo Sciarabba, Alcuni chiarimenti della Corte di giustizia sulla portata delle misure contro la
proliferazione nucleare in Iran [2012] Diritto pubblico comparato ed europeo 783; Steven
Blockmans, Curbing the circumvention of sanctions against Iran over its nuclear programme:
Afrasiabi [2013] Common Market Law Review 623. On the concept of intention in European
criminal law see generally Jerome Blomsma, Mens rea and defences in European criminal law
(Intersentia 2012).
13 See for instance Article67 of Commission Regulation (EC) 796/2004 of 21April 2004 laying down
detailed rules for the implementation of cross-compliance, modulation and the integrated
administration and control system provided for in of Council Regulation (EC) 1782/2003
establishing common rules for direct support schemes under the common agricultural policy and
establishing certain support schemes for farmers [2004] OJ L141/18, Article51 of Council Regulation
(EEC) 1698/2005 of 20 September 2005 on support for rural development by the European
Agricultural Fund for Rural Development (EAFRD) [2005] OJ L277/1, Article23 of Commission
Regulation (EC) 1975/2006 of 7December 2006 laying down detailed rules for the implementation
of Council Regulation (EC) 1698/2005, as regards the implementation of control procedures as well
as cross-compliance in respect of rural development support measures [2006] OJ L368/74.
14 Case C-396/12 van der Ham and van der Ham-Reijersen van Buuren [2014] published in the
electronic Report of Cases, para 37.
15 See for instance Case 19/77 Miller v Commission [1978] ECR 132, para 18; Case 246/88 Belasco and
Others v Commission [1989] ECR 2181, para 41; Joined Cases T-259/02 to T-264/02 and T-271/02
Raiffeisen Zentralbank sterreich AG and others v Commission [2006] ECR II-5200, para 205.
16 Case C-40/04 Yonemoto [2005] ECR I-7776. See Aude Bouveresse, Conformit des machines aux
normes CE [2005] Europe 18.

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listed those obligations verifying the presence of the marking and the declaration of
conformity, translating the marking and the declaration in the language of the
country in which the machinery is to be used, verifying the presence of translated
instructions, informing and cooperating with national authorities and seemed to
implicitly recall the concept of diligence, even if a definition was not provided.
Afterwards, the concept of negligence was considered in Intertanko. The case
regarded the interpretation of directive 2005/3517 and the meaning of serious
negligence pursuant to Article4.18 According to the Court, serious negligence must
be understood as entailing an unintentional act or omission by which the person
responsible commits a patent breach of the duty of care which they should have and
could have complied with in view of their attributes, knowledge, abilities and
individual situation.19
Thus, in light of the case law that has been considered so far, one may draw some
preliminary conclusions. First, in Rinkau, the traditional difference between
intentional offences and unintentional offences was identified by taking into
consideration the relevance of the mental element. So, the summa divisio, which is
typical of national legal systems,20 entered CJEU case law.
As regards intentional offences, it does not seem possible to criticise the judgements
which underlined the centrality of both the representative and the volitional elements.
In fact, the CJEU made reference not only to the case in which a person deliberately
seeks the object or the effect, direct or indirect, of the offence but also to the case in
which the person is aware their participation in such an activity can have that object
or effect and accepts that possibility: that means the scheme of dolus eventualis may
suffice.21

17 Directive 2005/35/EC of the European Parliament and of the Council of 7September 2005 on ship-
source pollution and on the introduction of penalties for infringements [2005] OJ L255/11.
18 Pursuant to Article 4, Member States shall ensure that ship-source discharges of polluting
substances into any of the areas referred to in Article3(1) are regarded as infringements if committed
with intent, recklessly or by serious negligence. These infringements are regarded as criminal
offences by, and in the circumstances provided for in, Framework Decision 2005/667/JHA
supplementing this Directive.
19 Case C-308/06 Intertanko [2008] ECR I-4057, para 77. For a review see Eileen Denza A note on
Intertanko [2008] European Law Review 870; Jessica Makowiak, Spcificit de lordre juridique
communautaire et pragmatisme de la Cour: ou comment lutter efficacement contre les pollutions
maritimes [2009] Revue trimestrielle de droit europen 402; Leonardo Pasquali, La sentenza
Intertanko e il problema della sindacabilit degli atti delle istituzioni comunitarie alla luce del
diritto internazionale [2009] Diritto comunitario e degli scambi internazionali 43; Simone Vezzani,
Pacta sunt servanda? La sentenza della Corte di giustizia nellaffare Intertanko (caso C-308/06) e
ladattamento dellordinamento comunitario al diritto internazionale pattizio [2009] Studi
sullintegrazione europea 233.
20 Gabriele Fornasari, Antonia Menghini, Percorsi europei di diritto penale (3rd edn, Cedam 2012) 72.
21 On the issue see Jerome Blomsma, Fault elements in EU criminal law: the case of recklessness in
Andr Klip (ed), Substantive Criminal Law of the European Union (Maklu 2011) 144. The Author
expresses an adverse opinion, since it would not be possible to reach predictable results.

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As regards negligence, it is worth remembering the CJEU ruling in Intertanko.


Such a ruling is interesting since it expresses full awareness of the fact that three
elements are needed when it comes to criminal liability for unintentional offences: the
lack of will concerning the crime (negative profi le), the violation of a rule of conduct
(objective profi le), and the possibility the person may comply with that rule (subjective
profi le).22

3. STRICT CRIMINAL LIABILITY

The expression strict criminal liability is usually used to indicate those offences of
which a person may be convicted without proof of intention, knowledge, recklessness,
or negligence.23 The CJEU had the chance to deal with this topic too. As already said,
in Rinkau the Court ruled that criminal liability may arise from the mere actual
breach of a legal provision. The topic was explored further in some other judgements,
some of which may be deemed not consistent with the principle of mens rea.
In Hansen, the issues at stake concerned Danish provisions which were adopted in
order to implement an EEC Regulation on road transport.24 Pursuant to one of the
Danish provisions, an employer could have been liable for a fine where the employee
had not respected the prescribed driving rest periods and the journey was undertaken
in the interest of the employer, even though the infringement could not have been
imputed to an intentional act or negligence on his part: in such a case, a fine could
apply. In light of that provision, a Danish company was fined but it appealed and the
appellate court referred a question to the CJEU since it had doubts about the
compatibility of strict criminal liability with regulation. The British and Danish
Governments argued the Danish approach constituted a permissible exercise of state
discretion which was aimed at identifying a necessary and effective remedy against
negligence on the part of the employers. The Commission agreed with those
conclusions since the Danish provisions constituted an effective method of ensuring
compliance with the EEC obligations. According to the Danish company, the national
provisions had extended the scope of the regulation and imposed an obligation which
was not provided by it and which distorted competition within the common market.
It is quite curious that neither the company nor the governments or the Commission
took into consideration the nullum crimen, nulla poena sine culpa principle, but AG
van Gerven focused his attention on that topic.25 From a comparative point of view

22 Ferrando Mantovani, Diritto penale. Parte generale (9th edn, Cedam 2009) 326.
23 Ashworth, Horder (n 1) 160.
24 Regulation (EEC) 543/69 of the Council of 25March 1969 on the harmonisation of certain social
legislation relating to road transport [1969] OJ L77/49. For what concerns liability for not complying
with the rules governing rest periods, see Case 69/74 Cagnon and Taquet [1975] ECR 171 where the
Court ruled that the provision on daily rest must be observed both by crew members and employers.
25 Case C-326/88 Hansen [1990] ECR I-2919, Opinion of AG van Gerven.

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and concerning the liability of employers and undertakings for the conduct of their
employees or appointees, he considered that in some Member States, employers and
undertakings may be made liable in criminal law, while in others they are made liable
in civil law for the payment of fines. In both cases, the mental element had not been
taken into account by national lawmakers. So, in light of a constitutional tradition
common to the Member States, it was not possible to rule on the existence of an
absolute prohibition on the introduction under certain specified circumstances (for
instance, environmental protection, protection of the working environment and
consumer protection) of a system of strict criminal liability. In any event, the CJEU
did not take into consideration any criminal law issue and ruled that neither the
regulation nor the general principles of Community law precluded the application of
a system of strict criminal liability on condition that the penalty provided for is
similar to those imposed in the event of infringement of provisions of national law of
similar nature and importance and is proportionate to the seriousness of the
infringement committed.26
Soon after that judgement, the CJEU ruled on a similar issue in Vandevenne. In his
Opinion, AG van Gerven confirmed the interpretation already expressed in Hansen
and stated that an EEC regulation27 neither requires Member States to introduce a
system of strict liability [] nor precludes their doing so.28 The same viewpoint was
shared by the CJEU.29 Thus, at the beginning of the 1990s, strict criminal liability was
granted full legitimacy in the European supranational legal system. Many years after
Hansen and Vandevenne, the Advocate General would offer the Court the chance to
correct a highly problematic piece of case law with reference to the protection of
fundamental rights and the basic canons on the assessment of criminal liability. In
Aalborg Portland, a judgement of the Court of First Instance was appealed before the
CJEU. The Court of First Instance had partly annulled the decision of the Commission
by which anti-competitive conduct in the field of cement production had been
ascertained and reduced the fine imposed on a Danish company. That company
appealed the judgement claiming the CJEU should set aside that decision in its entirety
since the anti-competitive conduct should be referred to a pre-existing legal entity,
holding 50% of the shares in the Danish company. In this regard, the words of AG
Dmaso Ruiz-Jarabo Colomer sounded quite stentorian:

26 Case 326/88 Hansen [1990] ECR I-2930.


27 In the meantime, Regulation 543/69 had been replaced by Council Regulation (EEC) 3820/85 of
20 December 1985 on the harmonisation of certain social legislation relating to road transport
[1985] OJ L370/1.
28 Case C-7/90 Vandevenne and others [1991] ECR I-4377, Opinion of AG van Gerven.
29 Case C-7/90 Vandevenne and others [1991] ECR I-4383. In the very field of road transportation, a
confirmation of that precedent may be found in Case C-210/10 Urbn [2012] published in the
electronic Report of Cases.

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The Court of Justice must begin by setting out a general principle of law, developed in order
to limit the exercise of ius puniendi by the public authorities: the principle that punishment
should only be applied to the offender, which complements the principle of culpability,
whose first and most important manifestation is that only the perpetrator can be charged
in respect of unlawful conduct. That principle, like all the safeguards derived from criminal
law, requires great caution when it is applied to administrative proceedings, since, when it
comes to imposing penalties or making compensation for unlawful conduct, a system of
objective responsibility, or strict responsibility, is unacceptable. Although, in the case of
legal persons, the principle must be applied in a different way, there is no reason to abolish
the subjective element of guilt.30

However, soon after those considerations,31 the AG underlined that the element of
guilt undergoes a process of objectivisation especially when it comes to collective
entities. That depends on the fact that it is not possible to identify a volitional element
in those cases but only a legal fiction: this enables the attribution to collective entities
of infringements which are the consequence of their conduct. So, this looks like a
contradiction with the old maxim societas delinquere non potest. Perhaps the CJEU
could solve the problem. However, given the nature of obiter dictum that such an
assessment would have taken and the likely desire not to uncover Pandoras box, the
judges did not make any reference to those issues and simply dismissed the appeal
since there was continuity between the two legal entities.32
Some useful hints may be found in a judgement concerning compliance with the
regulations in the field of the Common Agricultural Policy and support for rural
development. One of the questions referred to the CJEU concerned the possibility of
attributing intentional non-compliance to the beneficiary of an aid if a third party
had carried out the works on their instructions. According to AG Juliane Kokott, the
mere fact that work is carried out by other persons does not preclude fault on the
part of the farmer since their fault may reside in the choice, instruction or supervision
of the contractor (culpa in eligendo, instruendo vel custodiendo). The aid beneficiary
must normally ensure that the person carrying out farm work for them has the
necessary skills and knowledge to avoid non-compliances. Thus, national authorities
may assume intentional non-compliance in such a case and it would be up to the aid
beneficiary to refute that assumption. However, it would be inconsistent with the
principle of legal certainty to accept that the aid beneficiary was responsible for
persons acting on their behalf, regardless of personal culpability, in that that
principle requires that rules of law must be clear and precise and their application

30 Joined cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg
Portland and others [2004] ECR I-133, Opinion of AG Ruiz-Jarabo Colomer, paras. 6365.
31 In the very same para 65.
32 Joined cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg
Portland and others [2004] ECR I-403.

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must be foreseeable by those subject to them.33 The ruling of the CJEU is quite
similar, since:

In t he event of an infringement of the requirements of cross-compliance by a third party


who carries out work on the instructions of a beneficiary of aid, the beneficiary may be held
responsible for the infringement if he acted intentionally or negligently as a result of the
choice or the monitoring of the third party or the instructions given to him, independently
of the intentional or negligent nature of the conduct of the third party.34

So, one may say that the case law in the field of strict criminal liability has constantly
evolved by taking into due consideration the principle of guilt. That should be valued
positively as that evolution seems to have led to the denial of a form of liability which
leaves aside any consideration concerning the mental element and to the actual
reaffirmation of the paramount importance of the principle of mens rea.

4. IGNORANCE OR MISTAKE AS TO A MATTER OF LAW

As regards the ignorantia juris neminem excusat principle, there is not any precedent
in which such issue has been tackled from a criminal law viewpoint. However, one
may consider two judgements in which the topic was analysed with regard to
administrative sanctions in order to assess what the reasoning of the CJEU was and
how the CJEU might deal with that matter, should a case involving criminal sanctions
be brought before it.
In Louloudakis, a Greek and Italian national was fined by the Greek authorities
because of the illegal importation of three motor vehicles from Italy to Greece. The
national judge referred some questions to the CJEU in order (also) to understand if
EEC law could give rise to an obligation on the Member States to take into account,
when imposing administrative penalties in cases with which EEC law was concerned,
the good faith of the persons concerned and the absence of fraudulent intent (for
example, ignorance). As a matter of fact, the EEC directive that came into consideration
in that case35 was quite complex and the assessment of the applicable tax regime was
not at all easy. AG Alber underlined that the directive did not contain any provision
regarding penalties so the choice was up to the Member States. Therefore, the choice
of taking into account any good faith the perpetrator may have is to be determined
according to the law of the Member States as well. However, national penalties cannot
be contrary to the realisation of the freedoms granted by supranational law, such as,

33 Case C-396/12 van der Ham and van der Ham-Reijersen van Buuren [2014] published in the
electronic Report of Cases, Opinion of AG Kokott, paras. 6769, 81.
34 See the judgement cited above under n 14.
35 Council Directive 83/182/EEC of 28 March 1983 on tax exemptions within the Community for
certain means of transport temporarily imported into one Member State from another [1983] OJ
L105/59.

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Alessandro Rosan

for example, the free movement of persons. Thus, if a citizen of the Union exercises the
right to free movement and uses their motor vehicle, which is registered in one
Member State, in good faith in another Member State without observing its rules on
the declaration of motor vehicles, it is consistent with the purpose of supranational
law to take their good faith into account in determining the administrative penalty.36
The CJEU agreed and ruled:

Where national law contains, in penal matters, a general principle according to which
everyone is presumed to know the law, Community law does not preclude that principle
from being applied in proceedings concerning infringements relating to temporary
importation of certain means of transport. None the less, in the light of the purpose of the
directive, which is to promote the freedoms guaranteed by the Treaty, account must be
taken of the good faith of the offender when determining the penalty actually imposed on
him, where determination of the arrangements applicable has given rise to difficulties.37

In Gerken, a German farmer applied for a special premium for twelve male bovine
animals but her application was rejected by the Office for Agriculture on the ground
that she had not provided any proof that those animals fulfi lled the age condition laid
down by supranational law. That rejection was based on the fact that the Office for
Agriculture had changed its administrative practice regarding the means of proof of
age of bovine animals after the farmer had applied for the premium. According to the
CJEU, the sanctions consisting in the reduction of and exclusion from the premium
were not to apply where the farmer had submitted factually correct information or
showed otherwise that she was not at fault,38 pursuant to Article 44 of Regulation
2419/2001.39
In light of the above, some problems arise from the application of the ignorantia
juris neminem excusat principle in the case law of the CJEU. Louloudakis may be
considered a good starting point, but it is not enough. According to the CJEU
judgement and the AGs Opinion, good faith must be taken into account when it
comes to determine the applicable sanction so to decrease its amount: that depends

36 Case C-262/99 Louloudakis [2001] ECR I-5550, Opinion of AG Alber, para 68.
37 Case C-262/99 Louloudakis [2001] ECR I-5573, para 76. See Manuela Cittadini, Lorientamento
della Corte di Giustizia in materia di residenza a fi ni fiscali [2002] Giurisprudenza italiana 869.
38 Case C-295/02 Gerken [2004] ECR I-6382.
39 Commission Regulation (EC) 2419/2001 of 11 December 2001 laying down detailed rules for
applying the integrated administration and control system for certain Community aid schemes
established by Council Regulation (EEC) 3508/92 [2001] OJL 327/11. Under Article44 (Exceptions
from the application of reductions and exclusions), (1) the reductions and exclusions provided for
in this Title shall not apply where the farmer submitted factually correct information or where he
can show otherwise that he is not at fault. (2) The reductions and exclusions provided for in this Title
shall not apply with regard to those parts of the aid application as to which the farmer informs the
competent authority in writing that the aid application is incorrect or has become incorrect since it
was lodged, provided that the farmer has not been informed of the competent authoritys intention
to carry out an on-the-spot check and that the authority has not already informed the farmer of any
irregularity in the application.

312 Intersentia
Some Developments of the Principle of Mens Rea in the Case Law of the CJEU

on the particular situation concerning the offender since they could not adequately
know the applicable regulation. Anyway, that does not mean the sanction will not
apply. As the Court ruled, account must be taken of the good faith of the offender
when determining the penalty actually imposed on him.40 Thus, it seems like the
sanction must actually apply: of course, it is going to be less severe because of the
good faith of the offender, but their liability will not be completely excluded. Indeed,
the CJEU gave an opposite and more shareable answer in Gerken, but that happened
because of the unequivocal provision under Article44 of Regulation 2419/2001. So,
the case law concerning administrative sanctions poses some serious issues with
regard to the principle of mens rea and it would be a mistake to simply take and
apply it to criminal sanctions should a case regarding that kind of sanctions be
referred to the Court without considering the consistency problems it raises.
Therefore, a reassessment of the case law could be very useful in order to rule out
any form of liability (be it either criminal or administrative in nature) in light of
the good faith (or better, the ignorance or mistake as to a matter of law) of the
offender.
Given the CJEUs experience in the criminal field over time,41 that should not be a
daunting task.

5. CONCLUSION

In light of the above, one may say that, notwithstanding the lack of a specific provision
regarding the principle of mens rea in the EU legal system, and most of all in the
Charter of Fundamental Rights of the EU, the CJEU has interpreted some concepts
consistently with that principle, even before the Charter was adopted. That confirms
the role played by the protection of fundamental rights in the EU and the idea that,
over time, the CJEU has developed a criminal law awareness which must be regarded
as a necessary instrument for the construction of the Area of Freedom, Security and
Justice.42
The concepts of intentional offence, unintentional offence, intent and (serious)
negligence have been analysed in depth by the CJEU and now form an integral part of
its case law. It is interesting that the Court has tackled those complex matters without

40 See n 37 (emphasis added).


41 As an introduction to that topic, see Valsamis Mitsilegas, EU Criminal Law (Hart 2009); Ester
Herlin-Karnell, The Constitutional Dimension of European Criminal Law (Hart 2012); Antonietta
Damato, Patrizia De Pasquale, Nicoletta Parisi, Argomenti di diritto penale europeo (2nd edn, G.
Giappichelli editore 2014); Andr Klip, European Criminal Law (3rd edn, Intersentia 2016).
42 For an introduction, see Neil Walker (ed), Europes Area of Freedom, Security and Justice (Oxford
University Press 2004); Ugo Draetta, Nicoletta Parisi, Dino Rinoldi (eds), Lo spazio di libert,
sicurezza e giustizia dellUnione europea: principi fondamentali e tutela dei diritti (Editoriale
Scientifica 2007); Jrg Monar (ed), The Institutional Dimension of the European Unions Area of
Freedom, Security and Justice (Peter Lang 2010).

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Alessandro Rosan

recalling national legal frameworks and national doctrines. In my opinion, that


means that they are now autonomous notions of EU law and, more importantly, that
EU criminal law is progressively breaking free from the merely national dimension in
order to become truly European, also as regards the development of its own dogmatics.

314 Intersentia

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