Punishment for unlawful fertiliser application

Case no. 103/2018

Judgment delivered on 4 June 2019

The Prosecution Service
vs.
T

T was found guilty of violation of the Danish Act on Fertiliser Application by having used fertiliser containing more nitrogen than the company’s annual allowable quota for the 2008/2009 programming period in his agricultural establishment.

The Supreme Court held that it had no bearing on the issue of T’s criminal liability that the rules on the determination of the annual quota were amended in 2016, as the current penal code was the same as the one in force when T committed the criminal offence. This meant that the offence should be assessed on the basis of the penal code that was in force when T committed the act and which still applied in the relevant programming period. The European Convention on Human Rights and the EU Charter of Fundamental Rights also did not give any grounds for exempting T from punishment.

The Supreme Court also held that infringement of the procedural rules in the Habitat Directive and the SME Directive could also not lead to such result.

Finally, the Supreme Court stated that the limitation period was suspended when T received an administrative fixed-penalty notice, and that it could not be considered with any certainty with reference to the High Court’s findings of fact that the last application of fertiliser had taken place less than four years before the time when T had received the fine. The Supreme Court thus agreed that another offence committed by T in the 2006/2007 programming period was time-barred.

The extended length of proceedings had already been considered in the determination of the penalty, and the Supreme Court found no reason to reduce the penalty further.

The High Court had reached the same conclusion.