Directive on the protection of the environment through criminal law Anna Karamat European Commission DG Environment Unit A.2 ‘Infringements’

Directive on the protection of the environment through criminal law Background m Implementation of EC environmental legislation not satisfactory m Large disparities in offences and sanctions in the MS m Sanctions overall not sufficiently strict to be a real deterrent m Cross border nature of environmental offences m Create level playing field in the EU

Directive on the protection of the environment through criminal law Legal basis of the directive l 2001 Commission proposal for a directive based on Art 175 of the EC Treaty (1st pillar) l 2003 Council Framework Decision based on intergovernmental cooperation provisions of the EU Treaty (3rd pillar) l European Court of Justice: clarification of Community competence for criminal law measures

Directive on the protection of the environment 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 environment through criminal law Second judgment of the ECJ Case C-440/05 Ship Source Pollution l l Confirmation of the Community’s competence to adopt criminal law related measures where this is essential for the implementation of one of its policies. l l But: no competence to define the nature and level of sanctions

Directive on the protection of the environment through criminal law New proposal for a directive l Presented by Commission in February 2007 l Objective: Set out minimum requirements relating to criminal law in the Member States to ensure better protection of the environment, in line with ECJ judgment l Agreement between Parliament and Council in May 2008 –formal adoption in November 2008

Directive on the protection of the environment through criminal law Definition of criminal offences m All offences must be committed intentionally or by serious negligence. m All offences must be unlawful acts, i.e. breach of EC legislation listed in annexes m The proposed list of offences is a minimum list.

Directive on the protection of the environment through criminal law Definition of criminal offences ( continued) m Unlawful acts that cause or are likely to cause substantial damage to the environment: r Emissions of materials or ionising radiation into water, air or soil r Management of waste r Operation of an installation where a dangerous activity is carried out r Production, use, treatment, transport, import, export of radioactive substances

Directive on the protection of the environment through criminal law Definition of criminal offences ( continued) Special offences: r Significant deterioration of a protected habitat r Illegal shipment of waste in non-negligible quantity r Killing, destroying or illegal trade in endangered animal or plant species, except minor cases r Illegal trade in or use of ozone depleting substances

Directive on the protection of the environment through criminal law General obligations l l The proposed offences will have to be considered criminal offences in the MS. l l Aiding and abetting or inciting such offences must be punishable too. l l Legal persons must be held liable for acts committed for their benefit (criminal or other liability) l l MS must put in place dissuasive, proportionate and effective criminal sanctions (or non criminal sanctions for legal persons).

Directive on the protection of the environment through criminal law Levels of penalties l l Minimum levels of imprisonment and fines proposed by the Commission for most serious cases l l But removed from proposal by Council and EP l l Only general obligation for MS to set ‘dissuasive, proportionate and effective’ penalties

Directive on the protection of the environment through criminal law Implementation by Member States l l MS must adopt the necessary measures to conform their criminal law with the directive at the latest 2 years after its entry into force ( ). l l MS must inform the Commission of these measures l l The directive does not touch the powers of prosecutors and judges, nor does it regulate criminal law procedures.

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