Brussels, 31 March 2003
Protection of the environment through criminal law: Commission decides to take action in the Court of Justice
The European Commission has decided to ask the European Court of Justice to annul a Framework Decision adopted by the Council of the European Union on 27 January 2003 on protection of the environment through criminal law. When adopting the Decision the Council disregarded the Commission proposal for a directive on the same subject. The Commission challenges the legal basis for the Council Framework Decision. The Commission believes that its proposed directive, if adopted, would secure better protection of the environment through criminal law than the Framework Decision.
The Framework Decision, 2003/80/JHA, originally presented as an initiative of the Kingdom of Denmark,(1) is based on Title VI of the Treaty on European Union relating to judicial cooperation in criminal matters (the "third pillar"). It defines a number of environmental offences for which Member States are called on to provide for criminal penalties and contains provisions relating to judicial cooperation in criminal matters.
The Framework Decision constitutes the basis on which the European Union intends to offer a concerted response to the proliferation of environmental offences and their effects. The Commission supports that objective and welcomes the Council's attachment to protecting the environment through the criminal law. It recently embarked on resolute action to combat ship-source pollution of the seas in response to the loss of the oil tanker Prestige(2) and will shortly be presenting measures to amplify the proposed body of criminal law.
But the Commission is sceptical about the adequacy of the legal basis taken by the Council. It feels that the proper legal basis for requiring Member States to provide for criminal penalties for environmental offences would be Article 175 of the Treaty establishing the European Community, which is the usual legal basis for environmental law. The Commission considers that if Community rules can only be enforced by means of criminal penalties, the Community legislature has the legal standing to require the Member States to provide for such penalties. That is why, on 15 March 2001, it presented a proposal for a Parliament and Council Directive on protection of the environment through criminal law, based on Article 175(1) of the EC Treaty (the "first pillar").(3) This proposal for a Directive would provide for better protection of the environment that he Framework Decision. It would be transposed in the Member States and subject to review by the Court of Justice. The Framework Decision, by contrast, imposes a series of conditions for the Member States to be able to adopt criminal penalties for environmental offences, which could introduce distortions in the implementation of environmental law through criminal law in the Union. This would be especially regrettable at a time when the Union is on the threshold of a major enlargement.
The European Parliament, which is merely consulted in the procedure of the Treaty on European Union, spoke out clearly in support of the Commission's approach. The Council disregarded this opinion.
For these reasons, the Commission, believing that the definition of the powers of the Community legislature in criminal matters is a vital question, decided to take an action in the Court of Justice of the European Communities to have the Council's Framework Decision annulled.
(1)OJ C 39, 11.2.2000, p. 4.
(2)COM (2003) 92 final, 5.3.2003.
(3)COM (2001) 139 final - OJ C 180, 26.6.2001, p.238.