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

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Tekst

COUNCIL OF THE EUROPEAN UNION

Interinstitutional File: 2007/0022 (COD)

Brussels, 14 December 2007

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DROIPEN 120

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Presidency

Working Party on Substantive Criminal Law

No. prev. doc. : 15897/07 DROIPEN 116 ENV 670 CODEC 1374 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

The Presidency, considering the constructive work and progress that has been achieved regarding the proposal for a Directive of the European Parliament and the Council on the Protection of the Environment through Criminal Law, and acknowledging the existing outstanding issues, presents the following to the Working Group:

  • a) 
    Legal basis for Article 3, subparagraphs a), b), e)

The outstanding issues pertaining to these subparagraphs are related to the position of some Member States that the EC Treaty was not the proper legal basis to adopt measures to ensure the protection of the environment against the risks of activities, which involve nuclear materials and ionising radiation.

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However, in the last meeting of the Working Party, a proposal was presented, by the concerned delegation, to resolve this issue. This proposal, presented in Annex, allows conciliating the concerns on the legal basis on which the measures above mentioned could or should be adopted and the need for these matters to be included in a Directive, which aims to protect the environment through criminal law.

Considering the positive reactions to said proposal, the Presidency believes that a compromise is possible on this basis.

  • b) 
    Level and ambition of incrimination in order to protect habitats and species, Article 2 c) and Article 3 h)

The underlying question on the discussions on both Articles 2, subparagraph c) and 3, subparagraph h) is related, in particular, to the interpretation of the obligations set out in Council Directive 92/43/ECC, of 21 of May 1992, on the conservation of natural habitats and of wild fauna and flora1.

Throughout the meetings of the Working Party, the majority of delegations considered Article 3, subparagraph h) necessary. However, some Member States questioned the insertion of this provision in the Directive, criminalizing the “significant destruction of a protected habitat”, with reference to a limited definition of “protected habitat” based on the Council Directive 79/409/ECC of 2 April 1979, on the conservation of wild birds2, and Council Directive 92/43/ECC.

This position was grounded on the consideration that there is no explicit obligation in Council Directive 92/43/ECC to prohibit the deterioration of habitats and that the use of criminal tools could jeopardise the positive effects of other measures that could be adopted pursuant to its implementation.

OJ L 206, 22.7.1992, p.7. OJ L 103, 25.04.1979, p.1.

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That being said, compromise and constructive proposals on this matter have been presented by these delegations and worked on by the Presidency.

On this issue, and after taking into considerations comments presented in the meantime, the Presidency proposes the following:

Article 2 c): “protected habitat” means any habitat of species for which an area is classified as a special protection area pursuant to Article 4(1) or (2) of Directive 79/409 of 2 April 1979 and any natural habitat or habitat of species for which a site is designated as a special area of conservation pursuant to Article 4(4) of Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora”

Article 3 h): “Any conduct which causes the significant deterioration of a protected habitat”

Council Directive 92/43/ECC dictates that “Member States shall take the appropriate measures to avoid (…) the deterioration of natural habitats and the habitats of species as well as the disturbance of the species for which the areas have been designated (…)” (Article 6, subparagraph 2)). As such, the adoption of criminal measures to avoid the mentioned deterioration and disturbance is one of the possibilities within this framework.

Until the present date, admittedly, the choice between the multiple possibilities has been left entirely to the Member States. However, a further step has been taken when deciding to adopt, at European level, an instrument with the aim of protecting the environment through criminal law. This naturally means the establishment of new obligations for the Member States, which will have to measures of a criminal nature.

This was and is a policy decision, in view of the preventive and punitive functions of criminal law, upheld during the informal lunch of the Ministers of Justice on 9 November, dedicated to this issue.

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Considering the sensitivity of the issue at hand, and the framework of Council Directive 92/43/ECC, particular attention was given to limit the scope of Article 3, subparagraph h), in accordance with the position of most of the delegations.

The Presidency believes that the current proposal addresses the majority of the concerns voiced by Member States during the meetings of the Working Party.

Moreover, it is only the conducts, which cause the significant deterioration, which are criminalized, i.e., only the gravest cases are within the scope of this provision.

Furthermore, the notion of protected habitats, as defined in Article 2, subparagraph c) is circumscribed to very specific cases. In the case of Council Directive 79/409/ECC, the reference is not made to “all species of naturally occurring birds in the wild state (…)” (Article 1), but rather the species included in its Annex I and regularly occurring migratory species which are not in said annex (Article 4, subparagraphs 1 and 2). In the case of Council Directive 92/43/ECC, and, consequently, within the context of the Natura 2000 network, reference is made to the specific natural habitats and habitats of species which justified the creation of the special areas of conservation, and not to the latter in their entirety.

  • c) 
    The extension of the scope of the proposal

The Netherlands presented a proposal with the intention of extending the scope of application of

the Directive, in particular by introducing a new subparagraph in Article 3, determining the

following:

“The manufacture, treatment, storage, use, transport, export or import of genetically modified organisms, explosives for civil use, pyrotechnical materials, chemical substances, biocides and plant protection products, which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, the quality of soil, the quality of water, or to animals or plants”

The Presidency believes that this proposal should be further discussed.

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ANNEX

Compromise proposal pertaining to article 3, subparagraphs a), b) and c)

Recital:

“European Treaty and its secondary legislation rule the environmental protection regarding nuclear activities. Therefore, environmental crimes connected to nuclear activities are to be exclusively defined by reference to the Euratom Treaty and its secondary legislation”.

Additional subparagraph for Article 2:

“a) bis – With regard to activities covered by the Euratom treaty, “unlawful” means infringing Euratom Community legislation set out in Annex B, or a law, and administrative regulation or a decision taken by a competent authority in a Member State that gives effect to this Euratom Community legislation”

Annex B:

  • - 
    Council Directive 2006/117/EURATOM, of 20 November 2006, on the supervision and control of shipments of radioactive waste and spent fuel.
  • - 
    Council Directive 2003/122/EURATOM, of 22 December 2003, on the control of high-activity sealed radioactive sources and orphan sources.
  • - 
    Council Directive 96/29/EURATOM, of 13 may 1996, laying down basic safety standards for the protection of the health of workers and the general public against the dangers arising from ionising radiation.
  • - 
    Council Directive 87/600/EURATOM, of 14 December 1987, on Community arrangements for the early exchange of information in the event of radiological emergency.

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