COOPERATION WITH NATIONAL JUDGES AND PROSECUTORS IN THE PROTECTION FIELD OF OF EU ENVIRONMENTAL THROUGH LAW CRIMINAL LAW PROTECTION OF ENVIRONMENT THROUGH CRIMINAL LAW European Commission, European Parliament, http://my.opera.com/ Introduction to the Environmental Crime Directive 2008/99/EC 1
Environmental crime as a growing problem Cross-border nature and effects of environmental offences High profits and law risk of detection Large disparities in offences and sanctions in the Member States Sanctions overall not sufficiently strict to be a real deterrent Role of EU environmental criminal law 2
Genesis and legal basis of Directive 2008/99/EC European Council of Tampere 1999 and following institutional fight on criminal law competence 2001 Commission Proposal for a Directive based on Article 175(1) TEC Framework Decision 2003/80/JHA based on Article 29 and 31(e) TEU 2007 new Commission proposal for a Directive Formal adoption of the Environmental Crime Directive 2008/99/EC (ECD) in November 2008 based on Article 175(1) TEC 3
2005 European Court of Justice Judgment (C-176/03) Annulment of the Framework Decision 2003/80/JHA (wrong legal basis) Criminal competence in the first pillar under the following conditions: - Existence of a certain EU policy - Aim: combating serious criminality in this policy area - Necessity of criminal law measures 4
2007 European Court of Justice Judgment (C-440/05) Annulment of the Framework Decision 2005/667/JHA on combating ship source pollution (wrong legal basis) 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 Community s competence to determine type and level of criminal sanctions 5
Directive 2008/99/EC: main content Sets out minimum requirements relating to criminal law in the Member States in order to ensure better protection of the environment; no rules on criminal law procedure The offences listed in article 3 have to be considered criminal offences in the Member States Inciting, aiding and abetting must be punishable too Member States must put in place dissuasive, proportionate and effective criminal sanctions Liability also of legal persons 6
Definition of criminal offences (1) The list of offences in Article 3 ECD is a minimum list The selected offences represent serious breaches of environmental legislation with potential for substantial damage to the environment or human health ECD does not create new illegal acts; MS have to attach criminal sanctions to breaches of existing prohibitions All offences must be committed intentionally or by serious negligence, but no definition of these mental elements in the ECD 7
Definition of criminal offences (2) Complicated legal technique used: - List of conducts in Article 3 ECD - Clarification in recital 9 ECD - Concept of unlawfulness in Art. 2(a) - all offences must be unlawful acts, i.e. breach of EU legislation listed in the annexes of Directive 2008/99/EC or national legislation implementing it - Annexes include lists of EU environment laws but no concrete provisions Large number of indefinite terms: substantial damage, negligible quantity, negligible impact, dangerous substances, etc. 8
Offences linked to a certain result (1) Discharge, emissions or introduction of materials or ionising radiation into water, air or soil Management of waste Operation of an installation where a dangerous activity is carried out or dangerous substances are used Production, use, treatment, transport, import, export of radioactive substances which cause or is likely to cause serious injury to persons or substantial damage to the environment 9
Offences linked to a certain result (2) Significant deterioration of a habitat within a protected site (Article 3(h) ECD) Definition of habitat in Article 2(c) ECD but no definition of the term significant deterioration - Reference to Directives 79/409/EEC and 92/43/EEC - Commission Decisions on protected sites designation Vague notions in criminal law and principle of legal certainty 10
Specific offences Illegal shipment of waste in non-negligible quantity Killing, destruction, possession and taking of or illegal trading in specimens of protected wild fauna and flora - Two definitions of protected wild fauna and flora in Article 2(b) ECD - Minor cases excepted Illegal production, trading in and use of ozone-depleting substances 11
Definition of sanctions Commission Proposal of 2007 Approximation of minimum maximum sanctions (imprisonment for natural persons and fines for legal persons) Optional sanctions suggested: obligation to reinstate the environment, ban of engaging in commercial activities, publication of judicial decisions, etc. Implications of the ECJ Judgement C-440/05 Adopted Directive 2008/99/EC requires effective, proportionate and dissuasive criminal penalties Relation with administrative sanction systems 12
Liability of legal persons Legal persons must be held liable for acts committed for their benefit, if offences are committed - by persons representing the legal person - or person taking decisions on behalf of the legal person - or exercising control within the legal person Liability of legal persons does not rule out liability of natural persons acting The responsibility of legal persons can be of criminal or other nature 13
Implications of the Lisbon Treaty Integration of first and third pillar Specific legal basis in Article 83 (2) TFEU - Directives may establish minimum rules with regard to the definition of criminal offences and sanctions - If essential to ensure effective implementation of a Union policy in an area which has been subject to harmonisation - Ordinary legislative procedure but emergency break Environmental crime as organised crime - relevance of Article 83 (1) TFEU? 14
Transposition and Implementation (1) Member States had to transpose the ECD before 26 December 2010 Only 6 MS notified full transposition within the transposition period Implementation check by Commission has started 15
Transposition and Implementation (2) Implementation challenges - Interpretation of the vague notions included in ECD - Importance of national constitutional traditions and criminal enforcement culture - Need for amendments in case of subsequent legislation on environmental matters - Need for specialisation of prosecutors and judges - Need for effective co-operation between prosecutors, police and environmental inspectors 16
Thank you for your attention! 17