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 !
Top Related