Directive on the protection of Directive on the protection of the environment through the environment through

criminal lawcriminal law

Anna KaramatAnna KaramatEuropean CommissionEuropean CommissionDG EnvironmentDG EnvironmentUnit A.2 Unit A.2 ‘Infringements’‘Infringements’

Directive on the protection of the Directive on the protection of the environment through criminal lawenvironment through criminal law

Background

Implementation of EC environmental legislation not

satisfactory

Large disparities in offences and sanctions in the MS

Sanctions overall not sufficiently strict to be a real

deterrent

Cross border nature of environmental offences

Create level playing field in the EU

Directive on the protection of the Directive on the protection of the environment through criminal lawenvironment through criminal law

Legal basis of the directive

2001 Commission proposal for a directive based on Art 2001 Commission proposal for a directive based on Art 175 of the EC Treaty (1st pillar)175 of the EC Treaty (1st pillar)

2003 Council Framework Decision based on 2003 Council Framework Decision based on intergovernmental cooperation provisions of the EU intergovernmental cooperation provisions of the EU Treaty (3rd pillar) Treaty (3rd pillar)

European Court of Justice: clarification of Community European Court of Justice: clarification of Community competence for criminal law measurescompetence for criminal law measures

Directive on the protection of the Directive on the protection of the environment through criminal lawenvironment through criminal law

Judgment of the European Court of Justice of 13 September 2005 (case C-176/03)

Criminal law in principle not Community competence, but:

this “does not prevent the Community legislature, when the application of

effective, proportionate and dissuasive criminal penalties by the competent

national authorities is an essential measures for combating serious

environmental offences, from taking measures which relate to the criminal

law of the Member States which it considers necessary in order to ensure

that the rules which it lays down on environmental protection are fully

effective.” (point 48 of the judgment)

Directive on the protection of the Directive on the protection of the environment through criminal lawenvironment through criminal law

Second judgment of the ECJCase C-440/05 Ship Source Pollution

Confirmation of the Community’s competence to adopt criminal law related measures where this is essential for the implementation of one of its policies.

But: no competence to define the nature and level of sanctions

Directive on the protection of the Directive on the protection of the environment through criminal lawenvironment through criminal law

New proposal for a directive

Presented by Commission in February 2007Presented by Commission in February 2007 Objective: Set out minimum requirements relating Objective: Set out minimum requirements relating

to criminal law in the Member States to ensure to criminal law in the Member States to ensure better protection of the environment, in line with better protection of the environment, in line with ECJ judgmentECJ judgment

Agreement between Parliament and Council in Agreement between Parliament and Council in May 2008 –formal adoption in November 2008May 2008 –formal adoption in November 2008

Directive on the protection of the Directive on the protection of the environment through criminal lawenvironment through criminal law

Definition of criminal offences All offences must be committed intentionally or

by serious negligence. All offences must be unlawful acts, i.e. breach of

EC legislation listed in annexes The proposed list of offences is a minimum list.

Directive on the protection of the Directive on the protection of the environment through criminal lawenvironment through criminal law

Definition of criminal offences (continued)

Unlawful acts that cause or are likely to cause substantial damage to the environment:

Emissions of materials or ionising radiation into water, air or soil

Management of waste

Operation of an installation where a dangerous activity is carried out

Production, use, treatment, transport, import, export of radioactive substances

Directive on the protection of the Directive on the protection of the environment through criminal lawenvironment through criminal law

Definition of criminal offences

(continued)

Special offences: Significant deterioration of a protected habitat

Illegal shipment of waste in non-negligible quantity

Killing, destroying or illegal trade in endangered animal

or plant species, except minor cases

Illegal trade in or use of ozone depleting substances

Directive on the protection of the Directive on the protection of the environment through criminal lawenvironment through criminal law

General obligations General obligations The proposed offences will have to be considered criminal

offences in the MS.

Aiding and abetting or inciting such offences must be punishable too.

Legal persons must be held liable for acts committed for their benefit (criminal or other liability)

MS must put in place dissuasive, proportionate and effective criminal sanctions (or non criminal sanctions for legal persons).

Directive on the protection of the Directive on the protection of the environment through criminal lawenvironment through criminal law

Levels of penalties

Minimum levels of imprisonment and fines proposed by the Commission for most serious cases

But removed from proposal by Council and EP

Only general obligation for MS to set ‘dissuasive, proportionate and effective’ penalties

Directive on the protection of the Directive on the protection of the environment through criminal lawenvironment through criminal law

Implementation by Member States

MS must adopt the necessary measures to conform their criminal law with the directive at the latest 2 years after its entry into force (26.12.2010).

MS must inform the Commission of these measures

The directive does not touch the powers of prosecutors and judges, nor does it regulate criminal law procedures.

Directive on the protection of the Directive on the protection of the environment through criminal lawenvironment through criminal law

For more information please visit our website:http://ec.europa.eu/environment/crime/index.htm

Thank you for your attention !