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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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 annexed information from the Presidency on the above subject, which will be

dealt with under "other business" at the meeting of the Council (Environment) on

20 December 2007.

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ANNEX

Proposal for a Directive of the European Parliament and of the Council on the protection of

the environment through criminal law

I. Introduction

  • 1. 
    On 9 February 2007 the Commission submitted a proposal for a Directive on environmental protection through criminal law, which is of particular importance for the

Member States of the European Union.

  • 2. 
    A uniform level of protection throughout Europe in the field of environmental criminal law is both necessary and appropriate. The Member States had already made this clear

by agreeing on the Framework Decision on the protection of the environment through

criminal law, which was annulled on grounds of lack of competence by the European

Court of Justice in its judgment of 13 September 2005. The proposal for a Directive is

intended to replace the annulled Framework Decision and thus fill a gap in the area of

environmental protection through criminal law.

  • 3. 
    The Presidency continued the work initiated by the German Presidency, regarding this proposal as fundamental for the development of the protection of the environment. Six

working party meetings have taken place to date, all of which were marked by

constructive cooperation among the Member States and the Commission.

  • 4. 
    General consensus was reached among Member States on the inclusion of an Annex with the list of Community legislation, infringement of which results in unlawful

conduct pursuant to Article 2(a) of the proposed Directive.

  • 5. 
    Following the decision taken by the Court of Justice on 23 October in Case C-440/05 pertaining to enforcement of the law against ship-source pollution, and the political

framework set out by the Ministers of Justice at the lunch on 9 November, the working

party reached broad agreement on the majority of the directive's articles. Broad

consensus was reached in the discussion on Articles 1, 2(a), 2(b), 2(d), 4, 5, 6, 7, 8, 9,

10 and 11 of the Proposal, with only a very limited number of scrutiny reservations

remaining, lodged by some Member States and by the Commission.

  • 6. 
    Notwithstanding the above, outstanding issues remain, in particular regarding Article 2, subparagraph c), and Article 3, subparagraphs a), b), f), e) and h), which essentially

concern criminal policy decisions.

  • 7. 
    Contacts took place with the European Parliament with a view to facilitating a first- reading agreement in the first half of 2008. The Presidency met the rapporteurs of the

two committees involved in the co-decision procedure and took note of the European

Parliament's high level of ambition.

  • 8. 
    Given the considerable progress made regarding this directive and the generally favourable view of the aims of the instrument and the contributions made by the

Member States, the Presidency believes that additional steps can be taken to further

consolidate the agreement reached.

II. The main outstanding issues to be discussed in future meetings of the working group

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

The outstanding issues pertaining to these subparagraphs are related to the view held by some

Member States that the EC Treaty was not the proper legal basis for adopting measures to

ensure the protection of the environment against the risks of activities which involve nuclear

materials and ionising radiation.

However, in the last meeting of the working party, a proposal for resolving this issue was

submitted. The proposal, which is attached hereto, reconciles the concerns over the legal basis

on which the measures mentioned above could, or should, be adopted, with the need for these

matters to be included in a directive which aims to protect the environment through criminal

law.

In view of the positive reactions to the 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 in the discussions on both Articles 2, subparagraph c) and 3,

subparagraph h) concerns, in particular, 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

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fauna and flora .

Throughout the meetings of the working party, the majority of delegations considered

Article 3, subparagraph h) to be necessary. However, some Member States questioned the

insertion of this provision in the directive, thus criminalizing the "significant destruction of a

protected habitat", with reference to a limited definition of "protected habitat" based on

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Council Directive 79/409/ECC of 2 April 1979 on the conservation of wild birds , and Council Directive 92/43/ECC.

This position was based on the consideration that there is no explicit provision in Council

Directive 92/43/ECC prohibiting the deterioration of habitats and that the use of criminal tools

could jeopardise the positive effects of other measures adopted pursuant to its

implementation.

1

OJ L 206, 22.7.1992, p.7. 2

OJ L 103, 25.04.1979, p.1.

That being said, constructive compromise proposals on this matter have been submitted by

these delegations and worked on by the Presidency.

On this issue, the current proposal made to the Member States is as follows:

Article 2 c): ""protected habitat" means any habitat of a species for which an area is

classified as a special protection area pursuant to Article 4(1) or (2) of Directive

79/409/EEC of 2 April 1979 and any natural habitat or habitat of a 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 stipulates 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)). The adoption of criminal measures to avoid the aforementioned

deterioration and disturbance is one of the possibilities within this framework.

Until now, admittedly, the choice between the multiple possibilities has been left entirely to

the Member States. However, a further step was taken when the decision was taken to adopt,

at European level, an instrument aiming to protect the environment through criminal law. This

naturally means the creation of new obligations for the Member States, which will have to

adopt measures of a criminal nature.

This was and is a policy decision, in view of the preventive and punitive functions of criminal

law which were upheld during the informal lunch of the Ministers of Justice on 9 November

on this matter.

Considering the sensitivity of the issue at hand, and the framework of Council Directive

92/43/ECC, particular attention was given to limiting 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, only those conducts which cause the significant deterioration are criminalized, i.e.,

only the most serious cases fall within the scope of this provision.

Furthermore, the notion of protected habitats, as defined in Article 2, subparagraph c) is

limited to very specific cases. In the case of Council Directive 79/409/ECC, reference is not

made to "all species of naturally occurring birds in the wild state (...)" (Article 1), but rather

to the species included in Annex I thereto and to the regularly occurring migratory species

which are not included in that 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 former as a whole.

III. Conclusions

· Significant progress has been achieved with regard to this instrument, in particular with

respect to Articles 1, 2 (a), 2 (b), 2 (d), 4, 5, 6, 7, 8, 9, 10 and 11.

· Fine-tuning concerning the legal basis for Article 3, subparagraphs a), b) and e) is

required. A compromise is possible on the basis of the proposal attached to this document.

· Further work also needs to be undertaken with regard to Article 3, subparagraph h) in the

Directive and the related definition of "protected habitat", in Article 2, subparagraph c) in

the terms proposed by the Presidency.

These outstanding issues will be discussed at the last meeting of Droipen on 18 December.

______________________

Annex to the 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:

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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