Summary

This article focused on defining the requirements of the proportionality of punishment stipulated in the Article 49 (3) of the Charter of Fundamental Rights of the European Union (the Charter) which are imposed on the legislator of the European Union when establishing criminal sanctions by the means of directives. The following conclusions were reached.

The case law of the CJEU requires that the criminal sanctions established in the directives must comply with the principle of ordinal and cardinal proportionality within a miniature penal system that forms from the sanctions and criminal offences established in the secondary legislation of the European Union. Hence, in addition to the requirements of the general standard of proportionality, the sanctioning frameworks established by the means of directives must also be proportionate in relation to each other. Based on the case law of the ECtHR, the analysis concluded that the sanctioning frameworks provided for in the secondary law of the European Union must not be grossly disproportionate compared to the criminal offence. A disproportion with such gravity can only be identified in rare and unique cases. Even though the explanations relating to the Charter contend that the principle of proportionality between criminal offences and penalties is enshrined in the common constitutional traditions of the Member States, the Charter could not be interpreted based on the aforementioned.

However, it cannot be concluded from the theory of sanction law, the case law of the CJEU, the case law of the ECtHR, or from the common constitutional practice of the Member States that Article 49 (3) of the Charter requires the legislator of the European Union to ensure that the criminal sanctions established by the means of directives are proportionate in connection to each sanction system of a Member State.