Prof. Dr. Gülsün Aygörmez
In legal scholarship, administrative accessoriness is commonly classified according to its point of reference into three forms: conceptual accessoriness, accessoriness to administrative law, and accessoriness to administrative acts.
Conceptual accessoriness refers to the incorporation into criminal law of concepts originating outside criminal law, particularly concepts of administrative law. In environmental criminal law, conceptual accessoriness exists where an element of a criminal offence is interpreted by reference to a concept derived from environmental administrative law. Examples include the concepts of nuclear fuel in section 328(1) no. 1 of the German Criminal Code (StGB), radioactive substances in section 328(1) no. 2 StGB, and waters in section 324 StGB.
Accessoriness to administrative law means that criminal liability for environmental offences depends on requirements laid down in administrative legislation. Criminal liability therefore presupposes the infringement of an administrative-law rule. Administrative law constitutes the primary regulatory order defining the relevant duties, while criminal law operates secondarily as a system of sanctions. Examples include duties arising under nuclear-energy legislation and offences committed in breach of administrative-law obligations within the meaning of section 330d StGB.
Accessoriness to administrative acts concerns the dependence of criminal law on an individual administrative decision. It covers, in particular, conduct carried out without the required permit or contrary to an enforceable order, prohibition or condition, as well as infringements of relevant decisions or public-law agreements. Sections 326 and 329 StGB provide important examples.
This structure demonstrates a central characteristic of German environmental criminal law: criminal liability frequently cannot be determined solely by reading the criminal provision. The content and limits of the offence may depend on environmental administrative legislation, regulatory concepts, permits and other administrative decisions. Administrative law thus defines important elements of the legally permitted sphere of conduct, while criminal law sanctions certain infringements of that regulatory framework.
References
[1] LPK-StGB, Vor §§ 324–330d, para. 9 ff.; Otto, JURA 1991, 308 (309); Franzheim/Pfohl, Umweltstrafrecht, p. 6; Rogall, GA 1995, 299 (302); Busch/Iburg, Umweltstrafrecht, p. 62 ff.
[2] Busch/Iburg, Umweltstrafrecht, p. 62; Franzheim/Pfohl, Umweltstrafrecht, p. 6.
[3] Rogall, GA 1995, 299 (302); Kemme, Tatbestandsmerkmal, p. 39; LPK-StGB, Vor §§ 324–330d, para. 9.
[4] Kemme, Tatbestandsmerkmal, p. 40; Busch/Iburg, Umweltstrafrecht, p. 63; Rogall, GA 1995, 299 (302).
[5] Rogall, GA 1995, 299 (303); Bloy, JuS 1997, 577 (584).