Environmental crime[de] 

In 1998, the Council of Europe opened a Convention on the protection of the environment through criminal law. This was significant because it represented the first international convention to criminalise acts causing or likely to cause environmental damage. However, Germany, followed by France and the UK, expressed its reluctance to ratify the Convention.

As a result, Denmark and the Commission both presented initiatives aiming to protect the environment under criminal law. The existence of two proposals has created conflict between the Council on the one hand and the European Parliament and the Commission on the other.

The Commission adopted a Directive establishing a Community minimum standard to combat environmental crime in March 2001. According to the Commission's proposal, which was more stringent than the Danish, member states would have been obliged to ensure that any act committed intentionally or out of serious negligence, which breaches the Community rules protecting the environment, was treated as a criminal offence.

In January 2003, the Council adopted a Framework Decision on the protection of the environment through criminal law based on the proposal tabled by Denmark. This proposal seeks to establish police, criminal justice and administrative cooperation between member states to combat serious environmental offences on an intergovernmental basis ("third pillar" of the EU Treaty). Third pillar legislation makes the member states, and not the EU, responsible for the application of the agreed measures.

The Commission contested the legal basis on which the Council took its decision. On 24 March 2003, it launched a legal action before the European Court of Justice to annul the Framework Decision adopted by the Council. The EU executive argued that Article 175 (the main environmental article) was the correct legal basis, instead of basing the legislation on the "third pillar" and therefore excluding the Commission and the Parliament. The Commission also pointed out that the Council's Framework Decision could produce distortions in the way environmental laws are implemented in the member states.

In 2005, the Court of Justice annuled the Council's decision, opening the way for a new proposal by the Commission (see EurActiv 13 September 2005).

The resulting draft Directive tabled by the European Commission first appeared on 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. 

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."