Proposal for a Directive of the European Parliament and of the Council on the protection of the environment through criminal law

Inhoud

Delen

enveloppe
  1. Tekst
  2. Originele weergave
  1. Meer informatie

1.

Tekst

Subject: Proposal for a Directive of the European Parliament and of the Council on the protection of the environment through criminal law

Delegations will find attached in Annex I to this note, a Presidency draft proposal for the text of

Articles 2, 3, 4 and 6, reflecting the examination of these Articles in the framework of the Working

Party on Substantive Criminal Law. The text of the Articles which have not been examined yet

remains unchanged.

In particular, the text of Articles 2 (a) and 3 is reflecting discussions under the German Presidency.

Several aspects (e.g. EURATOM, MARPOL) to which delegations referred to during the

examination of these two Articles but do not have a direct link with the text of the Articles as such,

have led to the addition of two recitals, as the German Presidency felt that these aspects should be

reflected in the text. However, the Preamble as a whole will be discussed at a later stage.

Furthermore, the text of Articles 2 (b), 4 and 6 is reflecting discussions started under the Portuguese

Presidency.

Modifications with regard to the Commission proposal are highlighted in bold. Comments by

delegations are set out in footnotes. Annex II to this note includes the list of Community legislation,

infringement of which results to unlawful conduct pursuant to Article 2 (a) of the proposed

Directive, prepared by the Commission in follow-up to the request of the Working Party.

____________________

ANNEX I

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on the protection of the environment through criminal law

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 175(1) thereof,

1

Having regard to the proposal from the Commission, 2

Having regard to the opinion of the European Economic and Social Committee, 3

Having regard to the opinion of the Committee of the Regions, 4

Acting in accordance with the procedure laid down in Article 251 of the Treaty, Whereas

(1) According to Article 174(2) of the Treaty, Community policy on the environment must aim at a high level of protection. (2) The Community is concerned at the rise in environmental offences and their effects, which are increasingly extending beyond the borders of the States in which the offences are committed. Such offences pose a threat to the environment and therefore call for an appropriate response. (3) Experience has shown that the existing systems of sanctions have not been sufficient to achieve complete compliance with laws for the protection of the environment. Such compliance can and should be strengthened by the application of criminal sanctions, which demonstrate a social disapproval of a qualitatively different nature compared to administrative sanctions or a compensation mechanism under civil law.

1

OJ C , , p. .

2

OJ C , , p.

. 3

OJ C , , p.

. 4

OJ C , , p. .

(4) Common rules on criminal sanctions make it possible to use more effective methods of investigation and assistance within and between Member States than are available under administrative co-operation. (5) By entrusting judicial authorities, rather than administrative authorities, with the task of imposing sanctions, responsibility for investigating and enforcing the respect of environmental regulations falls to authorities which are independent of those which grant exploitation licences and discharge authorisations. (6) In order to achieve effective protection of the environment, there is a particular need for more dissuasive sanctions for environmentally harmful activities, which typically cause or are likely to cause substantial damage to the air, including the stratosphere, soil, water, animals or plants, including to the conservation of species.

(6bis) On the basis of the findings of the Court of Justice in its judgement of 13 September 2005 (C-176/03) the scope of the directive covers infringements of any Community legislation aiming at environmental protection irrespective of the legal basis on which this legislation has been adopted. The directive therefore also provides for criminal sanctions when the unlawful conduct is related with ionising radiation. The mere fact that a provision of Community law refers to nuclear material or ionizing radiation does not mean that a EURATOM legal basis is required for the adoption. Therefore, in the definition of the term "unlawful" in Article 2 of the Directive the infringements of acts that may have been adopted on the basis of EAEC Treaty are not excluded

5

.

(6ter) Ship-source discharges of polluting substances are already to be regarded as infringements following the Directive on ship source pollution (2005/35/EC)[and the additional Framework Decision (2005/667/JHA)]. The directive on ship source pollution establishes a balanced regulatory framework for these specific discharges that moreover fully respects the

provision of international law of the sea (MARPOL and UNCLOS). This directive is not applicable to infringements mentioned in the Directive on ship source pollution.

(7) Failure to comply with a legal duty to act can have the same effect as active behaviour and should therefore be subject to corresponding sanctions, as well. (8) Therefore, such conduct should be considered a criminal offence throughout the Community when committed intentionally or with serious negligence. (9) In order to achieve effective protection of the environment, participation in and instigation of such activities should also be considered a criminal offence.

5

Opinion of the Council's Legal Service (10260/07 JUR 218 DROIPEN 55 ENV 304).

(10) Environmentally harmful activities should be punishable by effective, proportionate and dissuasive criminal sanctions, which should also apply to legal persons throughout the Community, because environmental offences are committed, to a large extent, in the interest of legal persons or for their benefit. (11) Furthermore, the significant differences in the level of sanctions in the Member States make it necessary to foresee, under certain circumstances, an approximation of those levels corresponding to the seriousness of the offence. (12) Such an approximation is particularly important where the offences have serious results or the offences are committed in the framework of criminal organisations which play a significant role in environmental crime. (13) As this Directive provides for minimum rules, Member States are free to adopt or maintain more stringent provisions regarding the effective criminal law protection of the environment. (14) Member States should provide information to the Commission on the implementation of this Directive, in order to enable it to evaluate the effect of this Directive. (15) Since the objectives of the action to be taken, namely to ensure a more effective protection of the environment, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives. (16) This act respects fundamental rights and principles as recognised notably in the Charter of fundamental rights of the European Union. HAVE ADOPTED THIS DIRECTIVE:

Article 1

Subject matter

This Directive establishes measures relating to criminal law in order to protect the environment

more effectively.

Article 2

Definitions

For the purpose of this Directive

(a) "unlawful" means infringing Community legislation or a law, an administrative regulation or a

decision taken by a competent authority in a Member State that gives effect to Community

legislation.

(b) "Community legislation" means the legislation aiming at the protection of the environment set out in the Annex.

(c) "illegal shipment" means unlawful conduct [which trigger the provisions in Art. 24 and 25 of Regulation (EC) No 1013/2006].

(d) "legal person" means any legal entity having such status under the applicable national law, except for States or public bodies in the exercise of State authority and for public

6

international organisations. Article 3

Offences

Member States shall ensure that the following conduct constitutes a criminal offence,

when unlawful and committed intentionally or with at least serious negligence:

6

Scrutiny reservations by DELETED and the Commission representative.

(a) deleted (b) the [...]discharge, emission or introduction of a quantity of [substances] or ionising radiation into air, soil or water, which causes or is likely to cause death or serious

7

injury to any person or [lasting or] substantial damage [deterioration] to the quality of air, soil, water, animals or plants;

(c) the [...] treatment, including disposal and storage, transport, export or import of waste, including hazardous waste, which causes or is likely to cause death or serious

injury to any person or substantial damage to the quality of air, soil, water, animals

or plants;

(d) the [...] operation of a plant in which a dangerous activity is carried out or in which dangerous substances or preparations are stored or used and which, outside the plant,

causes or is likely to cause death or serious injury to any person or substantial

damage to the quality of air, soil, water, animals or plants;

(e) [in cases where subparagraph c does not apply] the illegal shipment of waste as defined in Article 2(35) of the Regulation (EC) No 1013/2006 of the European

8

Parliament and Council for profit [for commercial purposes] and in a non- negligible quantity, [which could cause death, serious injury or material

damage], whether the shipment is executed in a single operation or in several

operations which appear to be linked;

(f) the [...] manufacture, treatment, storage, use, transport, export or import of nuclear materials, other hazardous radioactive substances which causes or is likely to cause

death or serious injury to any person or substantial damage to the quality of air, soil,

water, animals or plants;

7

While the majority of Member States expressed the view that a definition of "substantial

damages" is not necessary or appropriate, DELETED opted for a definition. 8

OJ L 190, 12.7.2006, p. 1.

(g) the [...] possession, taking or trading of or in specimens of protected wild fauna and flora species or parts or derivatives thereof, [when committed intentionally];

the damaging and killing of specimens of protected wild fauna and flora

[

species, when committed intentionally and for commercial purposes or

habitually, except within a permitted professional activity];

9

(h) the [...] significant deterioration of a protected habitat; (i) the [...] trade in or use of ozone-depleting substances; (j) The causing of noise, which causes or is likely to cause a serious danger for the 10

human health.

11

Article 4 Aiding, abetting or inciting

Member States shall ensure that aiding, abetting or inciting the intentional conduct referred to in

Article 3, constitutes a criminal offence.

(Article 5)

Sanctions

  • 1. 
    Member States shall ensure that the commission of the offences referred to in Articles 3 and 4 is punishable by effective, proportionate and dissuasive criminal sanctions.

9

The majority of delegations, while considering this provision as necessary, indicated that it

needed further examination. One issue which may be considered in more detail is whether the provision should focus on aggravated circumstances only. 10

Addition requested by DELETED. The majority of delegations entered scrutiny reservation thereon.

11

The text of this Article was amended along the lines of article 3 of the Council Framework

Decision of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution. (2005/667/JHA).

  • 2. 
    Member States shall ensure that the commission of the offences referred to in Article 3 (b) to (h) is punishable by a maximum of at least between one and three years imprisonment

where the offence is committed with serious negligence and causes substantial damage to

air, soil, water, animals or plants.

  • 3. 
    Member States shall ensure that the commission of the following offences is punishable by a maximum of at least between two and five years imprisonment:

(a) the offence referred to in Article 3(a), where the offence is committed with serious negligence;

(b) the offences referred to in Article 3 (b) to (f), where the offence is committed with serious negligence and causes the death of or serious injury to a person;

(c) the offences referred to in Article 3 (b) to (h) where the offence is committed intentionally and causes substantial damage to air, soil, water, animals or plants;

(d) the offences referred to in Article 3, where the offence is committed in the framework of a criminal organisation within the meaning of Framework Decision

12

[... on the fight against organised crime]. 4. Member States shall ensure that the commission of the following offences is punishable by a maximum of at least between five and ten years imprisonment:

(a) the offence referred to in Article 3 (a), where the offence is committed intentionally; (b) the offences referred to in Article 3 (b) to (f) where the offence is committed intentionally and causes the death of or serious injury to a person.

12

OJ L , , p. .

  • 5. 
    The criminal sanctions provided for in this article may be accompanied by other sanctions or measures, in particular:

(a) the disqualification of a natural person from engaging in an activity requiring official authorization or approval, or founding, managing or directing a company or a

foundation, where the facts having led to his conviction show a high risk that the

same kind of criminal activity may be pursued again;

(b) the publication of the judicial decision relating to the conviction or any sanctions or measures applied;

(c) the obligation to reinstate the environment. 13

Article 6 Liability of legal persons

  • 1. 
    Member States shall ensure that legal persons can be held liable for offences referred to in Article 3 where such offences have been committed for their benefit by any person, acting

either individually or as part of an organ of the legal person, who has a leading position

within the legal person, based on

(a) a power of representation of the legal person, or (b) an authority to take decisions on behalf of the legal person, or (c) an authority to exercise control within the legal person. Member States shall also ensure that legal persons can be held liable, where the above

person acts by aiding, abetting or inciting the intentional [...] commission of the

offences referred to in Article 3.

13

DELETED scrutiny reservation on the entire Article.

  • 2. 
    Member States shall also ensure that a legal person can be held liable where the lack of supervision or control, by a person referred to in paragraph 1, has made possible the

commission of an offence referred to in Article 3 for the benefit of that legal person by a

person under its authority.

  • 3. 
    Liability of a legal person under paragraphs 1 and 2 shall not exclude criminal proceedings against natural persons who are perpetrators, instigators or accessories in the offences

referred to in Article 3.

(Article 7)

Sanctions for legal persons

  • 1. 
    Member States shall ensure that a legal person held liable for an offence pursuant to Article 6 is punishable by effective, proportionate and dissuasive sanctions, which shall

include criminal or non-criminal fines.

  • 2. 
    The fines provided for in paragraph 1 shall be: (a) of a maximum of at least between EUR 300 000 and EUR 500 000 in cases where an offence referred to in Article 3 (b) to (h) is committed with serious negligence and

causes substantial damage to air, soil, water, animals or plants.

(b) of a maximum of at least between EUR 500 000 and EUR 750 000 in cases where: i) the offence referred to in Article 3 (a) is committed with serious negligence, or

(ii) an offence referred to in Article 3 (b) to (h):

  • - 
    is committed with serious negligence and causes the death or serious injury of a person, or
  • - 
    is committed intentionally and causes substantial damage to air, soil or water or to animal or plants, or

(iii) an offence referred to in Article 3 is committed intentionally in the framework

of a criminal organisation within the meaning of Framework Decision [... on

the fight against organised crime];

(c) of a maximum of at least between EUR 750 000 and EUR 1 500 000 in cases where: (i) an offence referred to in Article 3 (a) is committed intentionally, or (ii) an offence referred to in Article 3 (b) to (f) is committed intentionally and

causes the death or serious injury of a person.

Member States may apply a system whereby the fine is proportionate to the turnover of the

legal person, to the financial advantage achieved or envisaged by the commission of the

offence, or to any other value indicating the financial situation of the legal person,

provided that such system allows for maximum fines, which are at least equivalent to the

minimum for the maximum fines. Member States that implement the Directive in

accordance with such a system shall notify the Commission that they intend to do so.

  • 3. 
    Member States in which the Euro has not been adopted shall apply the exchange rate between the Euro and their currency as published in the Official Journal of the European

Union on [...].

  • 4. 
    The sanctions provided for in this article may be accompanied by other sanctions or measures, in particular:

(a) the obligation to reinstate the environment;

(b) the exclusion from entitlement to public benefits or aid; (c) the temporary or permanent disqualification from the practice of industrial or commercial activities;

(d) the placing under judicial supervision; (e) a judicial winding-up order; (f) the obligation to adopt specific measures in order to eliminate the consequences of conduct such as that on which the criminal liability was founded ;

(g) the publication of the judicial decision relating to the conviction or any sanctions or measures applied.

Article 8

Reporting

By [...] at the latest, and every three years thereafter, Member States shall transmit information to

the Commission on the implementation of this Directive in the form of a report.

On the basis of those reports, the Commission shall submit a report to the European Parliament and

the Council.

Article 9

Transposition

  • 1. 
    Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by at the latest. They shall forthwith communicate

to the Commission the text of those provisions and a correlation table between those

provisions and this Directive.

When Member States adopt those provisions, they shall contain a reference to this

Directive or be accompanied by such a reference on the occasion of their official

publication. Member States shall determine how such reference is to be made.

  • 2. 
    Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 10

Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the

Official Journal of the European Union.

Article 11

Addressees

This Directive is addressed to the Member States.

Done at Brussels,

For the European Parliament For the Council The President The President

____________________

ANNEX II

LIST OF COMMUNITY LEGISLATION,

IFRINGEMENT OF WHICH RESULTS TO UNLAWFUL CONDUCT PURSUANT TO

ARTICLE 2 (a) OF THE PROPOSED DIRECTIVE

  • - 
    Council Directive 70/220/EEC of 20 March 1970 on the approximation of the laws of the Member States relating to measures to be taken against air pollution by gases from positive-ignition engines of motor vehicles; to be repealed by new Regulation
  • - 
    Council Directive 72/306/EEC of 2 August 1972 on the approximation of the laws of the Member States relating to the measures to be taken against the emission of pollutants from diesel engines for use in vehicles ;
  • - 
    Council Directive 75/439/EEC of 16 June 1975 on the disposal of waste oils (proposal to repeal, new Waste Framework Directive);
  • - 
    Council Directive 76/464 of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community, repealed by Directive 2000/60 as of 2013
  • - 
    Council Directive 76/769/EEC of 27 July 1976 on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations ; to be replaced by REACH Regulation as of 1.6.2009
  • - 
    Council Directive 77/537/EEC of 28 June 1977 on the approximation of the laws of the Member States relating to the measures to be taken against the emission of pollutants from diesel engines for use in wheeled agricultural or forestry tractors ;
  • - 
    Council Directive 78/176/EEC 20 February 1978 on waste from the titanium dioxide industry;
  • - 
    Council Directive 79/117 of 21 December 1978 prohibiting the placing on the market and use of plant protection products containing certain active substances;
  • - 
    Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds;
  • - 
    Regulation (EEC) No 348/81 of 20 January 1981 on common rules for imports of whales or other cetacean products;
  • - 
    Council Directive 82/176/EEC of 22 March 1982 on limit values and quality objectives for mercury discharges by the chlor-alkali electrolysis industry; repeal proposed
  • - 
    Council Directive 83/129/EEC of 28 March 1983 concerning the importation into Member States of skins of certain seal pups and products derived therefrom;
  • - 
    Council Directive 83/513/EEC of 26 September 1983 on limit values and quality objectives for cadmium discharges; repeal proposed
  • - 
    Council Directive 84/156/EEC of 8 March 1984 on limit values and quality objectives for mercury discharges by sectors other than the chlor-alkali electrolysis sector; repeal proposed
  • - 
    Council Directive 84/360/EEC of 28 June 1984 on the combating of air pollution from industrial plants; will be repealed in October 2007
  • - 
    Council Directive 84/491/EEC of 9 October 1984 on limit values and quality objectives for discharges of hexachlorocyclohexane, repeal proposed
  • - 
    Council Directive 86/278/EEC of 12 June 1986 on the protection of the environment, and in particular of the soil, when sewage sludge is used in agriculture;
  • - 
    Council Directive 86/280/EEC of 12 June 1986 on limit values and quality objectives for discharges of certain dangerous substances included in List I of the Annex to Directive 76/464/EEC; repeal proposed
  • - 
    Council Directive 90/219/EEC of 23 April 1990 on the contained use of genetically modified micro-organisms;
  • - 
    Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment;
  • - 
    Council Directive 91/414/EEC concerning the placing of plant protection products on the market,
  • - 
    Council Directive 91/689/EEC of 12 December 1991 on hazardous waste; repeal proposed (new waste framework directive)
  • - 
    Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora;
  • - 
    Council Directive 92/112/EEC of 15 December 1992 on procedures for harmonising the programmes for the reduction and eventual elimination of pollution caused by waste from the titanium dioxide industry ;
  • - 
    Council Directive 94/63/EC of 20 December 1993 on the control of volatile organic compound(VOC) emissions resulting from the storage of petrol and its distribution from terminals to service stations;
  • - 
    Council Directive 96/59/EC of 16 September 1996 on the disposal of polychlorinated biphenyls and polychlorinated terphenyls;
  • - 
    Council Directive 96/61/EC 24 September 1996 concerning integrated pollution prevention and control;
  • - 
    Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances;
  • - 
    Directive 97/68/EC of the European Parliament and of the Council of 16 December 1997 on the approximation of the laws of the Member States relating to measures against the emission of gaseous and particulate pollutants from internal combustion engines to be installed in non-road mobile machinery ;
  • - 
    Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein;
  • - 
    Directive 98/8/EC of the European Parliament and the Council of 16 February 1998 concerning the placing of biocidal products on the market,
  • - 
    Directive 98/70/EC of the European Parliament and of the Council of 13 October 1998 relating to the quality of petrol and diesel fuels and amending Council Directive 93/12 ;
  • - 
    Council Directive 99/13/EC of 11 March 1999 on the limitation of emissions of volatile organic compounds due to the use of organic solvents in certain activities and installations ;
  • - 
    Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste;
  • - 
    Council Directive 1999/32/EC of 26 April 1999 relating to a reduction in the sulphur content of certain liquid fuels and amending Directive 93/12/EEC ;
  • - 
    Directive 2000/53/EC of the European Parliament and of the Council of 18 September 2000 on end of life vehicles;
  • - 
    Directive 2000/59/EC of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues ;
  • - 
    Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy;
  • - 
    Directive 2000/76/EC of the European Parliament and of the Council of 4 December 2000 on the incineration of waste;
  • - 
    Regulation (EC) No 2037/2000 of the European Parliament and of the Council of 29 June 2000 on substances that deplete the ozone layer;
  • - 
    Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC;
  • - 
    Directive 2001/80/EC of the European Parliament and of the Council on emissions of certain pollutants into the air from large combustion plants
  • - 
    Directive 2002/96/EC on waste electrical and electronic equipment
  • - 
    Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Directive 96/61/EC;
  • - 
    Regulation (EC) No 850/2004 of the European Parliament and of the Council of 29 April 2004 on persistent organic pollutants and amending Directive 79/117/EC;
  • - 
    Directive 2005/55/EC of the European Parliament and of the Council of 28 September 2005 on the approximation of the laws of the Member States relating to the measures to be taken against the emission of gaseous and particulate pollutants from compression-ignition engines for use in vehicles, and the emission of gaseous pollutants from positive-ignition engines fuelled with natural gas or liquefied petroleum gas for use in vehicles;
  • - 
    Commission Directive 2005/78/EC of 14 November 2005 implementing Directive 2005/55/EC of the European Parliament and of the Council on the approximation of the laws of the Member States relating to the measures to be taken against the emission of gaseous and particulate pollutants from compression-ignition engines for use in vehicles, and the emission of gaseous pollutants from positive ignition engines fuelled with natural gas or liquefied petroleum gas for use in vehicles and amending Annexes I, II, III, IV and VI thereto;
  • - 
    Directive 2006/11/EC of the European Parliament and of the Council of 15 February 2006 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community
  • - 
    Directive 2006/12/EC on waste, proposal to amend (new Waste Framework Directive)
  • - 
    Directive 2006/21/EC of the European Parliament and of the Council on the management of waste from the extractive industries;
  • - 
    Directive 2006/32/EC of the European Parliament and of the Council of 5 April 2006 on energy end-use efficiency and energy services and repealing Council Directive 93/76/EEC;
  • - 
    Directive 2006/66/EC on batteries and accumulators and waste batteries and accumulators and repealing Directive 91/157/EEC;
  • - 
    Directive 2006/118/EC of the European Parliament and of the Council of 12 December 2006 on the protection of groundwater against pollution and deterioration;
  • - 
    Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste - applicable from 12 July 2007
  • - 
    Regulation of the European Parliament and of the Council on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information; will be adopted in the next days and will repeal Directive 70/220/EEC 66 months after entry into force.

______________________

2.

Originele weergave

afbeelding document
 
 

3.

Meer informatie