The paper explores the
legislative trend of using administrative fines – formally non-criminal
monetary sanctions – to combat infringements of economic legislation. It is
often claimed that administrative fines are more effective than criminal
penalties and that administrative fine provisions should therefore replace or
complement criminal provisions. The paper analyses what effectiveness-related
argumentation has been presented in preparatory works, and discusses how that
argumentation compares to relevant social scientific insights (from sociolegal
studies, economic analysis of law, and criminology). We examine preparatory
works from the EU and from three Nordic countries: Sweden, Norway, and Finland.
These Nordic countries have seen major reforms which remain little-known in
broader European discussions.
Effectiveness can be
divided to purpose-rationality – here, the ability to prevent infringements –
and cost-efficiency. The purpose-rationality of sanctions depends on the
probability and severity of sanctioning. Administrative fines should improve
probability due to various reasons, while severity and cost-efficiency are more
ambiguous factors.
The motivations
presented by the EU legislature have often been abstract and one-sided.
However, travaux preparatoires of the 2024 Environmental Crime Directive
properly discuss the entire criminal enforcement chain, which is a promising
sign. In Nordic countries, some preparatory works have featured rather
elaborate argumentation where empirical data is utilized along with
common-sense argumentation.