Environmental crime

Summary

In March 2001, the Commission proposed a Directive establishing a Community minimum standard to combat environmental crime. According to the proposal, member states would be obliged to ensure that serious breaches, whether intentional or out of negligence, of Community rules on environment are treated as criminal offences.

But in January 2003, the Council adopted a Framework Decision on the protection of the environment through criminal law. The decision established police, criminal justice and administrative cooperation between member states to combat serious environmental offences on an intergovernmental basis.

The Commission contested the legal basis on which the Council acted and launched legal action before the European Court of Justice (ECJ) to annul the Framework Decision. The ECJ agreed with the Commission and annuled the Council's decision in 2005, opening the way for a new proposal by the Commission (EurActiv 13/09/05).

Issues

A ruling by the European Court of Justice (ECJ), issued on 23 October 2007, finally cleared up the issue once and for all. While supporting the Commission's right to require criminal sanctions for environmental damage, it also said that it does not have the authority to fix the type and level of these penalties (EurActiv 24/10/07).

Parallel to these developments, France set a legal precedent in January 2008, when the Criminal Court of Paris condemned the world's fourth largest oil group Total SA and three other parties to fines of up to €375,000 for their role in the "ecological prejudice" caused by the sinking of the Erika oil tanker in 1999. The case represented the first time that a French court has handed down a conviction for environmental damage (EurActiv 17/01/08). 

The Commission tabled a new 8 February 2007, but changes made over the summer indicate that member states now want harmonised EU sanctions for environmental crimes confined to transgressions of EU laws only, and not extended to breaches of national laws.

In its initial Directive proposal, the Commission stated the EU sanctions regime should apply to crimes caused by non-compliance with any "law, administrative regulation or decision" adopted by an EU government that is "aimed at protecting the environment". This would therefore also have included any law adopted at national level. But in a revised text issued by the Council of Ministers in late July, this scope was narrowed. Only infringements of laws that "give effect to [EU] legislation" would be covered. The proposals aim to impose fines and imprisonment for the most serious infringements of green laws by individuals or firms - this is defined as a closed set of 55 directives and regulations, classifying as crimes such offences as the unlawful discharge of substances into the air, soil or water and the handling of waste or radioactive materials in a way likely to cause "substantial damage" to the environment or "death or serious injury". Unlawful handling of protected wildlife and trading in ozone-depleting substances will also be treated as crimes. 

Positions

The Council's stance is likely to prompt renewed conflict with the Commission and European Parliament: the Directive was proposed only after the European Court of Justice had rejected a similar law agreed unilaterally by EU governments, bypassing the Commission and MEPs. Parliament has yet to adopt its first-reading position on the Directive.

In other amendments, the Council has included the "causing of noise" as a potential criminal offence, and extended the possibility of sanctions to those that "aid, abet or incite" green crimes. But it has postponed discussion of the level of sanctions themselves until the European Court rules on a related case involving sanctions for causing marine pollution. A verdict in this case is expected by the end of 2007.

Paul de Clerck, of Friends of the Earth said enforcement of the law was important. "If a member state does not enforce the law, the Commission could take them to the European Court of Justice."

De Clerck also wants an EU-wide law that allows companies to be prosecuted at home for offences committed abroad.

A Greenpeace spokesperson told EurActiv: "The proposals make it easier for courts to implement laws that already exist, will encourage judicial co-operation across borders, and this should improve enforcement. But the law could still go further - the minimum proposed ceiling of up to €1.5 million or illegally trading in radioactive substances, for example, is still very, very low when you consider the actual crime, especially compared to cartel fines that run into hundreds of millions of euro."

Timeline

• 21 May: Agreement on environmental crime between Council and Parliament;
• 2010: Member states will have two years to transpose the Directive on criminalising environmental damage.

External Links

Non-assigned links

• DG Environment:Environmental Crime(26 August 2003)
• EurLex:Council framework decision on the protection of the environment through criminal law[ FR FR DE
• EurLex:Directive on the Protection of the Environment through Criminal Law (COM(2001)139)[ FR FR DE
• European Parliament:Debates: Combating serious environmental crime[ FR FR DE
• DG Environment:Criminal Penalties in EU Member States' Environmental Law, study by the Maastricht European Institute for Transnational Legal Research (Metro)(26 August 2003)
• Council:Organised environmental crime in European countries(March 2001)
• Scad plus:Serious environmental crime[ FR FR DE
• UNEP:New initiative to combat growing global menace of environmental crime[ FR
• Council of Europe:Convention on the Protection of the Environment through Criminal Law, 4 November 1998[ FR
• Council of Europe:Convention on the Protection of the Environment through Criminal Law, Explanatory Report[ FR
• Council of Europe:Lutte de l"Europe contre la criminalité économique et le crime organisé transnational: progrès ou recul?
• US White House:International Crime Threat Assessment
• UK Environment Agency:Environmental crime - an overview
• UK Customs and Excise:Our fight against environmental crime
• Intertanko:Environmental crime - post Prestige
• UK Royal Institute of International Affairs:International environmental crime the nature and control of environmental black markets
• Journal des Accidents et des Catastrophes:La règlementation du commerce maritime: entre crime écologique et voyous des mers ntha> (Mars 2003)
• Fraudwatchernetwork:Environmental Crime - overview