Inhoudsopgave van deze pagina:
Delen
COUNCIL OF THE EUROPEAN UNION
Brussels, 17 October 2007
Interinstitutional File: 2007/0022 (COD)
LIMITE
DROIPEN 91
ENV 526 CODEC 1087
NOTE
from : to :
Presidency
Working Party on Substantive Criminal Law
No. prev. doc. : 13024/07 DROIPEN 84
No. Cion prop. : 6297/07 DROIPEN 10 ENV 95 SAN 20 CONSOM 7 CODEC 113
+ADD 1+ADD 2 COM(2007) 51 final 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 a Presidency compromise proposal on Articles 2, 3, 4, and 6 of the above mentioned proposed Directive, reflecting discussions in the Working Party on Substantive Criminal Law and comments sent by writing by delegations.
14021/07
DG H 2B
IS/np 1
LIMITE EN
Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on the protection of the environment through criminal law
Article 1 Subject matter
This Directive establishes measures relating to criminal law in order to protect the environment more effectively.
Article 2 Definitions
I. By making reference to the Community legislation referred to in the Annex, the definition of “unlawful” included in article 2 (a) of the proposal raises additional difficulties in what concerns the definition of a procedure for amending or updating of the Annex.
Since it is an integral part of this Directive and, as such, has the same legal status, the Annex
can only be amended or updated on the basis of the procedure set for the revision of the
Directive. The Annex cannot be amended or updated through a mere administrative
mechanism.
In the light of the different positions expressed by the delegations, and in accordance with
existing legal drafting techniques, the Presidency presents to the Group the following possible
solutions:
A One possibility is to agree that each new legislative instrument adopted in the field of environment, on the basis of Community competence, and which imposes conducts or duties which, if violated, may integrate the offences defined in the Directive (Article 3 of the proposal), must expressly provide for its inclusion in the Annex. As such, the instrument amending or updating the Annex would have an equivalent legal status to that of the Directive. This procedure would have the added value of ensuring that the amending or updating of the Annex is done simultaneously with the adoption of the new instrument. In this case, Article 2 (a) would be drafted as follows:
14021/07 IS/np 2
DG H 2B LIMITE EN
For the purpose of this Directive
(a) "unlawful" means infringing Community legislation, set out in the Annex, which is an integral part of this Directive, as well as any new Community legislation expressly providing for its inclusion in that Annex, or a law, administrative regulation or decision taken by a competent authority in a Member State that gives effect to this Community legislation.
B
The amending or updating of the Annex could alternatively be done by way of another mechanism. It would consist of periodically updating the Annex in order to include Community legislation adopted in the meantime, which by its object and purpose would fall within the scope of this Directive. The update mechanism should follow the same procedure of adoption of the Directive.
In this case, Article 2 (a) would be drafted as follows:
-
a)"unlawful" means infringing Community legislation set out in the Annex, which is an integral part of this Directive, or a law, an administrative regulation or a decision taken by a competent authority in a Member State that gives effect to this Community legislation.
It would further be added a final clause, which could be drafted in the following way:
“Article 10-A
Periodical update of the Annex
Every [five] [three] years, the Commission, if it deems necessary, may propose the updating of the Annex.
II - In both of the aforementioned proposals, Article 2 (b) is no longer needed, since the notion of unlawful is comprehensively defined in Article 2 (a).
14021/07 IS/np 3
DG H 2B LIMITE EN
III - Article 2 (c) (“illegal shipment”) should be discussed together with Article 3 (e), namely with regard to the necessity of an autonomous treatment of the “illegal shipment”.
IV – The definition of legal person, included in Article 2 (b) was already agreed upon in the meeting of 23 July 200:
“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 international organisations.”
Article 3 Offences
Member States shall ensure that the following conducts constitute a criminal offence, when unlawful and committed intentionally or with at least serious negligence [as defined by national law]:
Note of the Presidency in what concerns the meaning of serious negligence: Negligence is not having acted with the due diligence that the circumstances demanded. Serious negligence is a degree of negligence, which by its intensity or gravity is particularly reproachable.
(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 injury to any person or substantial damage [deterioration] to the quality of air, soil, water, animals or plants;
14021/07
DG H 2B
IS/np 4
LIMITE EN
Note by the Presidency with regard to the expression: "which causes or is likely to cause death or serious injury to any person". This expression is adequate to the purpose of the Directive, as the offences which are referred to in indent (b) are by nature crimes of endangerment. In such crimes the protection is given as of the conduct itself, due to the high risk of causing serious injuries and damages, regardless of whether or not these occur.
The elimination of the reference to “death or serious injury to any person” could lead to an unbalanced interpretation of this provision, as these injuries are a central element in the notion of “crimes of endangerment”.
(c) the […] management of waste or the abandonment, dumping or uncontrolled
management 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;
Note of the Presidency on the expression “management”: The use of this expression seems to be more in line with the new "Waste" Directive.
(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;
Note of the Presidency on the expression “outside the plant”: This spatial limitation could be eliminated if it is considered that there is no justification for limiting the space where the effects of an activity, which is dangerous by nature, are produced.
[(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 Parliament and Council1 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];
1
OJ L 190, 12.7.2006, p. 1.
14021/07 IS/np 5
DG H 2B LIMITE EN
Note of the Presidency regarding this subparagraph: As this subparagraph refers to a behaviour which is punishable regardless of its danger or consequences, it does not seem to find justification in the protection this Directive aims to afford. Therefore, it could conflict with the principles of proportionality and necessity.
However, if an element of danger were to be added, then there would be no need for an autonomous treatment of the conduct, as it would already fall within the concept of “transport” of Article 3 (c)
(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;
(g) the [...] possession, taking, damaging, killing or trading of or in specimens of protected wild fauna and flora species or parts or derivatives thereof;
(h) any conduct which causes the [...] significant deterioration of a protected habitat1;
(i) the [...] trade in or production, marketing or use of ozone-depleting substances;
1 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.
14021/07 IS/np 6
DG H 2B LIMITE EN
Article 4 Aiding, abetting and inciting
Member States shall ensure that aiding, abetting and inciting the intentional conduct referred to in Article 3, constitutes a criminal offence [will be punishable under criminal law].
(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.
-
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 […] on the fight against organised crime]1.
OJ L , , p.
14021/07
DG H 2B
IS/np 7
LIMITE EN
ï
-
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.
-
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.
The Pre sidency propose s the fo lowing alte rnative :
[ 1. E ach Member State sha l take the necessary measures to ensure that the conduct referred to in Artic le 3 is punishable by e ffective , proportionate and dissuasive penaltie s [ including, at le ast in se rious c ase s, penaltie s involving de privation of liberty whic h c an g ive rise to extrad ition].
14021/07 IS/np 8
DG H 2B LIMITE EN
-
2.
T he criminal penaltie s provided for in parag raph 1 may be accompanied by other pe nalties or measure s, in partic ular the disqualific ation for a natural person from engag ing in an ac tivity requiring offic ial authorisation or approval, or founding, manag ing or directing a c ompany or a foundation, where the facts having led to his or her conviction show an obvious risk that the same kind of criminal activity may be pursued].
Article 61 Liability of legal persons
-
1.Member States shall ensure that legal persons can be held liable for offences referred to in
Article 3 [and 4] 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 and inciting the intentional […] commission of the offences referred to in Article 3].
-
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.
1
UK scrutiny reservation on the entire Article.
14021/07 IS/np 9
DG H 2B LIMITE EN
-
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];
14021/07 IS/np 10
DG H 2B LIMITE EN
(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.
14021/07 IS/np 11
DG H 2B LIMITE EN
The Pre sidency propose s the fo lowing alte rnative :
[E ac h Member State sha l take the necessary measures to ensure that a legal person held liable pursuant to Artic le 6 is punishab le by e ffective , proportionate and dissuasive sanc tions, whic h sha l inc lude criminal or non-criminal fines and may include other sanctions such as:
(a) E xclusion from entitlement to public benefits or aid;
(b) Temporary or perm ane nt disqualific ation from the prac tic e of industrial or c ommerc ial ac tivities;
(c) Plac ing unde r judic ial supe rvision;
(d) A judic ial winding -up order;
(e) The obligation to adopt specific measures in order to avoid the consequences of conduct such as that on which the criminal liability was founded].
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.
14021/07 IS/np 12
DG H 2B LIMITE EN
-
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
14021/07 IS/np 13
DG H 2B LIMITE EN
