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Brussels, 9 February 2007

Questions and Answers on the protection of the environment through criminal law

Why is the Commission presenting a new proposal for a directive?

In 2001 the Commission presented a proposal for a directive on the protection of the environment through criminal law, based on the European Community Treaty provisions concerning environmental policy. But in 2003, Council adopted instead an initiative from Denmark of 2000 for a Framework Decision[1], an instrument provided for by the European Union Treaty in the field of judicial cooperation in criminal matters.

The Commission challenged the Framework Decision before the European Court of Justice on the grounds that it had been adopted on the wrong legal basis. On 15 September 2005 the European Court of Justice annulled the Framework Decision and confirmed that the Community had the competence to adopt criminal law measures related to the protection of the environment if this is necessary to ensure the efficient implementation of its environmental policy.

In order to take into account both the Court's judgment and the latest developments in environmental legislation, the Commission decided to withdraw its earlier proposal of 2001 for a Directive and make a new one. The proposal presented today by the Commission therefore replaces both its own proposal for a directive of 2001 and the Council's Framework Decision of 2003.

What are the major differences between a Framework Decision and a Directive?

Whereas a Framework Decision is adopted only by the Council, the proposed directive will go through both Council and the European Parliament as part of the Community co-decision making process. Furthermore, once a directive is adopted, its implementation by the Member States is controlled by the European Commission and the European Court of Justice, which is not the case with Framework Decisions.

Why is criminal law a necessary instrument in the fight for an effective protection of the environment?

Environmental crimes cover a large range of acts or omissions that damage or endanger the environment, such as the illegal emission of hazardous substances into the air, water or soil, the illegal shipment of waste or the illegal trade in endangered species. These offences can have devastating effects on the environment and human health. They also undermine the effective implementation of the legislation adopted by the Community to protect the environment and human health. Thus it must be ensured that such offences are subject to effective sanctions, including, in serious cases, criminal sanctions.

Which offences will be covered by the Directive?

The Directive will cover a list of serious environmental crimes, the majority of which were also covered by the annulled Framework Decision which had been adopted unanimously in 2003. This list includes the unlawful treatment, transport, export or import of waste, including hazardous waste; the unlawful trade in endangered species; the unlawful trade in or use of ozone-depleting substances and the unlawful operation of a plant in which a dangerous activity is carried out or in which dangerous substances or preparations are stored or used.

The majority of the offences are made conditional on whether or not they cause or are likely to cause serious harm to persons or the environment.

For example, illegal discharging of hazardous substances into surface water would be covered if it causes or is likely to cause death or injury to persons or significant damage to the environment. Illegal shipment of waste from the European Union would be covered but only if a significant quantity of waste is involved and if there is a clear intention to make a profit out of it. Smuggling rare animals or plants into the EU in breach of the CITES Regulation[2] would be covered. So would Illegal exports of ozone depleting substances to developing countries.

In August 2006, a ship called the Probo Koala offloaded up to 500 tons of toxic waste in Abidjan, Ivory Coast. The waste was then dumped at several sites around the city. Several people died as a result and hundreds were affected by respiratory problems, nausea, dizziness, vomiting, burns and irritation from the toxic waste. The Probo Koala case would have been covered by the proposed directive, as it was presumably a case of illegal shipment of waste.

If the chemical explosion in Seveso, Italy, in 1976, when people living nearby suffered from skin problems after having been exposed to huge amounts of dioxin, was caused by serious negligence or intentional breach of legislation, then it would also come under the present proposal.

Oil spills are not explicitly excluded from this proposal but they will be covered by a separate proposal for amending Directive 2005/35 on ship source pollution to come out later this year.

Why is the criminal law currently in place in the Member States not sufficient and EC action is needed?

Studies carried out by the Commission have shown large disparities in the definition of environmental crimes in the Member States, and in many Member States levels of sanctions were found to be insufficient. For example, regarding the trade in endangered species, the factor between the lowest and the highest defined maximum fine is 1 to 348. The objective of the proposal adopted by the Commission is to ensure a minimum level of protection of the environment through criminal law, throughout the EU.

The proposal will provide for a minimum standard at Community level for the definition of serious environmental criminal offences, a similar scope of liability for legal persons as well as levels of penalties for particularly serious environmental crimes. This will ensure that serious cases of environmental crime are dealt with in a similar manner in all Member States and that perpetrators cannot take benefit from the existing differences in national legislation. It will also facilitate cooperation between Member States in cross-border cases.

In its Communication of 24 November 2005 (COM (2005)538final/2) the Commission explained its interpretation of the judgment. In particular, it pointed out that, depending on the test of necessity, the required criminal law measures in a field which is within the Community competences should include, where appropriate and where needed, the definition of the offence and the nature and level of the criminal penalties applicable. Moreover Vice-President Frattini has indicated that he intends to make prudent use of the Commission's competence to adopt criminal law measures, to be decided on a case by case basis, and only when necessary to further policy objectives set out in the Treaty.

For which cases does the directive foresee an approximation of sanction levels?

Taking into account the principle of proportionality, the approximation of sanctions foreseen in the Directive is limited to particularly serious cases. The aggravating circumstances for which an approximation of penalties is foreseen are the particularly serious consequences of an offence, such as death or serious injury to a person or substantial damage to the environment, or the fact that the offence is committed in the framework of a criminal organisation. Those circumstances are generally already considered particularly serious in the national criminal laws of Member States and have already been provided for by other EU instruments.

Regarding imprisonment, the proposed approximation on a three-step scale corresponds to the conclusions of the Justice and Home Affairs Council of 25-26 April 2002. The scale is based on the mental element (serious negligence or intent) and the respective aggravating circumstance. It provides for prison sentences of up to at least between 5 and 10 years for the most serious crimes.

The system of fines for legal persons also follows a three-step approach corresponding to the one developed by the Justice and Home Affairs Council for prison sentences. The range of fines for legal persons is similar to the one agreed on by the Council in the Framework Decision 2005/667/JHA on ship-source pollution - from a minimum of at least 300.000-500.000 EUR, 500.000 and 750.000 EUR and 750.000 and 1.500.000 EUR.

Does the Commission intend to fully harmonise Member States' criminal laws in regard to environmental crimes?

The aim of this initiative is not to fully harmonise national criminal laws, but to take only those measures at Community level that are necessary to ensure the effective implementation of environmental policy.

The instrument chosen is a directive, which leaves Member States a high degree of flexibility in the implementation. According to Article 176 EC, Member States are free to maintain or introduce more stringent measures than those foreseen in the directive. For instance, they may establish additional offences, extend the level of criminal culpability to simple negligence and/or add additional types and higher levels of penalties.

The proposal is worded in a way that leaves maximum flexibility to Member States to adapt its requirements to their existing criminal law systems. The different legal traditions and systems of Member States have been taken into account in the proposal. For instance, the directive recognises that not all legal systems in the Member States acknowledge the criminal liability for legal persons. It therefore allows Member States to choose other forms of liability for legal persons.

What are the next steps for implementing the Directive?

Member States will have to implement the directive at the latest 18 months after its adoption and send their implementing legislation to the Commission. This implementation period should not pose any difficulties for Member States because many of the provisions were already contained in the annulled Framework Decision 2003/80/JHA. The implementation period for this Framework Decision ended on 27 January 2005 so that Member States will already have done a significant part of the required implementation work for this Directive.

As a first step, the Commission will assess whether the implementing measures submitted by the Member States are in compliance with the directive. Secondly, the proposal obliges Member States to submit a report on the implementation of the directive every three years. The Commission will produce regular reports on the basis of this information, aiming to evaluate how the directive is being applied in the Member States and to identify possible problems of implementation or the need for amendments to the directive. In case of insufficient implementation, the Commission can bring infringement proceedings against the Member State concerned before the European Court of Justice, which can impose severe penalties.

In addition, the Commission will work towards collecting comparable and reliable statistics on environmental crimes in the Member States. For this purpose an expert group will be established, with the task of defining the information needs.

Are there any other relevant instruments in the field?

In the particular field of ship-source pollution, two instruments adopted in 2005 are particularly relevant: Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements, and Framework Decision 2005/667/JHA to strengthen the criminal law framework for the enforcement of the law against ship-source pollution, which is challenged by the Commission in the Court for the same reason as has been the case for the FD on Environment, i.e. a wrong legal basis.

What other measures are being taken to ensure implementation of EU environmental law?

The present initiative should not be seen in isolation. The Commission is also seeking to make European environmental laws more effective through a range of other means.

The Commission can take legal action against Member States which tolerate illegal activities, leading the European Court of Justice (EJC) to impose fines. For example, in 2003, Greece was fined 20,000 Euros a day for tolerating an illegal landfill on the island of Crete. The Commission is generally working to ensure that national laws are sufficiently rigorous to give proper effect to Community rules. It challenges ambiguities or loopholes in national laws that have the effect of diluting the objectives of EU environmental law.

The Commission has also taken preventive action by producing, in consultation with interested third parties, guidance documents to assist with implementation and enforcement. It has launched studies to identify implementation gaps and will intensify contacts with Member States in order to address specific problems that have been identified. The Commission will also encourage Member States to make use of funding opportunities at EU level and ensure that the way they programme expenditure under the various instruments[3] contributes to improved implementation of EU environmental legislation.

The Commission will further develop this approach and will draw up in the course of 2007 a revised strategy on implementation and enforcement of EU environment law. This strategy will focus particularly on the systematic implementation failures that have been identified and will encourage the use of a mix of legal and non-legal instruments.

[1] Framework Decision 2003/80/JHA.

[2] Convention on the International Trade in Endangered Species, transposed into EU Law through Council Regulation (EC) No. 338/97

[3] Cohesion Policy instruments, Rural Development, European Regional Development Fund, European Social Fund, Research and Competitiveness and Innovation framework programmes, and under the new single instrument for the environment, LIFE+.

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