EU creates sanctions for environmental crimes

News @ Justice & Home Affairs Council. The Council has recently reached an agreement with the European Parliament on the Directive for the protection of the environment through criminal law (at first reading, under the co-decision procedure). According to Hartmut Nassauer, European Parliament rapporteur, “we are setting a precedent” whilst stressing that criminal penalties might be extended to other areas than protection of environment. This Directive intends to harmonise the approach of Member States in the breach of EU environmental protection rules. Presently, there is no express power conferred by the EC Treaty to the Community to adopt criminal law measures.

In 2001, the European Commission proposed a Directive on the protection of the environment through criminal law however the Council had adopted a framework decision instead. In September 2005, the ECJ ruled that the Community had the competence to adopt criminal measures to ensure compliance with environmental protection rules and annulled the framework decision. Obviously, the ECJ ruling was an important victory for the European Commission which could not wait to initiate legislation in criminal matters. In February 2007 the European Commission had put forward a proposal for a Directive on the protection of the environment through criminal law aiming at replacing the Council Framework Decision annulled by the ECJ. The Directive will apply to breaches of Community law on the protection of the environment such as the illegal transport of waste, illegal trafficking of threatened species, the significant deterioration of protected habitats, unauthorized emissions into the water, air or soil, through dangerous activities which includes the production, storage and transportation of nuclear material, or the production and placing on the market or use of ozone depleting substances. Under the Directive such behaviour will be considered as a criminal offence throughout the EU when unlawful and committed intentionally or with serious negligence.

Member States are therefore required to introduce in their national legislation criminal penalties for serious violation of Community environmental protection law committed intentionally or by seriously neglect and to introduce the necessary measures to ensure that these offences are punishable by effective, proportionate and dissuasive criminal penalties. Under the Directive, inciting, aiding and abetting of such conduct will also be considered a criminal offence. The Commission was initially aiming at harmonizing the minimum levels for fines but this was withdrawn as the ECJ ruled that the Community does not have competence to determine the type and the level of the criminal sanctions.

The Lisbon Treaty confers powers on the Union to define criminal offences and sanctions when they are necessary for the implementation of one of its policies. The Justice and Home Affairs Council gave its blessing to this Directive on 6 June. The power to determine criminal liability and to impose criminal penalties is another sovereign power which has been transferred from Member States to Brussels.

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