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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1.

Tekst

COUNCIL OF THE EUROPEAN UNION

GENERAL SECRETARIAT

Brussels, 14 January 2008 (15.01) (OR. de)

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DROIPEN 2 ENV 18 CODEC 28

NOTE

from: to:

German delegation

Working Party on Substantive Criminal Law

No. prev. doc.: 11002/07 DROIPEN 61 ENV 349 SAN 139 CONSOM 87 CODEC 699

15897/07 DROIPEN 116 ENV 670 CODEC 1374

16413/1/07 REV 1 DROIPEN 120 ENV 702 SAN 261 CONSOM 152

CODEC 1447 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

I.

Preliminary remark:

The aim of the draft Directive, namely to achieve a high level of protection of the environment through criminal law by setting minimum standards for the definition of serious environmental offences at Community level, is a major concern. The German delegation emphatically supports this concern.

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During the German and Portuguese Presidencies work on the draft Directive was taken forward on many points in the Council Working Party on Substantive Criminal Law. 15897/07 and 16413/1/07 REV 1 document the major progress it was possible to achieve on the road to an agreement and the efforts made by all Member States to reach rapid agreement on the draft Directive. Germany is therefore confident that agreement can be reached in the near future. Against this background, Germany expressly welcomes the Slovenian Presidency's announcement that it will deal with the draft Directive speedily and intensively. With a view to supporting the Presidency, Germany sets out below its position on the proposed Directive in detail.

II. Position

Germany takes the view that the outcome of the discussions on 26 November 2007 affords a sound basis for agreement. The following position therefore refers to the draft Directive, as it emerged from the discussions on 26 November 2007 and is set out in 15897/07, and to the proposal contained in an annex to 11002/07. Account is also taken of the additional proposals in 16413/1/07 REV 1.

In detail:

  • 1. 
    Article 1

Germany can accept the wording of this Article.

  • 2. 
    Article 2(a)

Germany can accept the substance and wording of Article 2(a) in principle.

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However, a new subparagraph should be inserted defining the term "unlawfulness" in connection with Euratom. Germany therefore proposes that the draft Directive include the compromise proposal contained in 16413/1/07 REV 1 for a new Article 2(a).

Germany can also accept the addition to the recitals as suggested in the compromise proposal set out in 16413/1/07 REV 1. In order to highlight the exceptional nature of this provision regarding competence and to avoid creating a precedent, the words "in this Directive" should, however, be inserted in the second sentence of the proposed addition to the recitals after the word "Therefore".

  • 3. 
    Article 2(b)

The species listed in Annex 1 to Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds are not relevant as regards the bans on access and marketing contained in the Directive mentioned.

Germany therefore proposes the deletion of the second indent in Article 2(b)1) (" – Annex 1 and referred to in Article 4(2) of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds and ").

In addition, Germany can accept the wording of Article 2(b).

  • 4. 
    Article 2(c)

Germany is in agreement in principle with the substance of the definition of "protected habitat" in Article 2(c) if the elements of the criminal offence in Article 3(h) are restricted in terms of conduct (see point 14 in this connection).

  • 5. 
    Article 2(d)

Germany can accept the wording of Article 2(d).

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  • 6. 
    Article 3, introductory sentence

The introductory sentence of Article 3 currently covers both intentional conduct and conduct committed with (at least) serious negligence. To this extent the structure of the Directive deviates from the structure of the (annulled) Framework Decision on the protection of the environment through criminal law, Article 2 of which covered only intentional conduct and Article 3 of which contained a requirement to cover acts involving negligent or at least seriously negligent conduct. The structure of the draft Directive is such that the penalisation of seriously negligent conduct is also covered in subparagraphs (f) and (g), although European law requirements do not prohibit seriously negligent conduct in such cases or the coverage of seriously negligent conduct leads to over-criminalisation (see here in detail the reasons given under points 12 and 13). Germany therefore proposes that in Article 3 only intentional conduct be treated as a criminal offence. Along the lines of the Framework Decision, it can be prescribed in a new Article 3a that certain cases (subparagraphs (a) to (e) and (h) and (i) [to (j)] are also treated as seriously negligent conduct.

Germany therefore proposes that the words "or with at least serious negligence" be deleted in the introductory sentence of Article 3.

  • 7. 
    Article 3(a)

Germany can accept the substance and wording of Article 3(a) in principle.

The inclusion of the element "ionising radiation" in the elements of the offence does, however, imply that the concept of unlawfulness in the case of conduct covered by legal acts on the basis of the Euratom Treaty is defined separately in Article 2 (see proposal for an Article 2(a)bis under point 2).

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  • 8. 
    Article 3(b)

The element used to date, "management of waste", is not definite enough. It is not made clear whether the element should take account of a definition from another EC legal act and, if necessary, to which legal act reference is being made.

Germany therefore proposes that the offences to be covered by "management of waste" should be listed in detail.

Even if errors in monitoring are to be treated as criminal offences as well, Germany proposes limiting this to operational monitoring. If reference is to be made to the waste Directive in the case of "management of waste", the separate listing of the elements "abandonment, dumping or uncontrolled management", would , moreover, be superfluous since these elements are already covered by the term "unlawful management of waste". The words "including hazardous waste" are superfluous as well since the term "waste" covers both hazardous and non-hazardous waste.

Germany therefore proposes that Article 3(b) be drafted as follows:

"(b) the collection, transport or recovery of waste, including operational monitoring of such processes and the maintenance of disposal plant and including acts performed by dealers or brokers (management of waste), 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."

  • 9. 
    Article 3(c)

Germany can accept the wording of Article 3(c).

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  • 10. 
    Article 3(d)

Germany proposes that the last part of the sentence ("whether the shipment is executed in a single operation or in several operations which appear to be linked;") be deleted since this is unclear and is superfluous from a waste legislation viewpoint. The definition of "shipment" in Article 2(34) of Regulation (EC) No 1013/2006 is sufficient in this respect.

  • 11. 
    Article 3(e)

Germany can accept the substance and wording of Article 3(e) in principle. However, the inclusion of the elements of the offence implies that the concept of unlawfulness in the case of acts covered by legal acts on the basis of the Euratom Treaty is defined separately in Article 2 (see proposal for an Article 2(a)bis under point 2).

  • 12. 
    Article 3(f)

Under Article 3(f), the possession and taking of specimens of protected wild fauna and flora species or parts or derivatives thereof and the killing or destruction of specimens of protected wild fauna and flora species is deemed to be an offence. Under Framework Decision 2003/80/JHA on the protection of the environment through criminal law, such conduct was treated as a criminal offence only with regard to species threatened with extinction. The draft Directive therefore goes beyond this Framework Decision to the extent that all protected wild species are the object of the crime. Article 12(1) of Council Directive 92/43/EEC of 21 March 1992 on the conservation of natural habitats and of wild fauna and flora prohibits only deliberate killing. In this respect there is no need to give a broader scope to European-wide protection of the environment through criminal law than to the European-wide protection of species under Council Directive 92/43/EEC of 21 March 1992 and Council Directive 79/409/EEC of 2 April 1979.

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Germany is therefore against only seriously negligent conduct being treated as a criminal offence in the context of the elements of an offence in Article 3(f) (see here points 6 and 17). Furthermore, it is proposed that the elements of the offence be restricted so as to exclude minor cases.

Germany proposes the following wording for Article 3(f):

"(f) the possession or taking of specimens of protected wild fauna and flora species or parts or derivatives thereof and the killing or destruction of specimens of protected wild fauna and flora species insofar as the perpetrator acts habitually or by way of an occupation or the conduct relates to fauna or flora of a strictly protected species;".

  • 13. 
    Article 3(g) It is unnecessary to make seriously negligent trading in protected fauna or flora a criminal offence. Germany therefore suggests that only intentional action should constitute an offence (see points 6 and 17) in order to keep minor cases out of the definition. It also suggests restricting the scope of the offence.

Germany therefore proposes that Article 3(g) should read as follows:

"(g) Trading in specimens of protected wild fauna and flora species or parts or

derivatives thereof, when committed for commercial purposes or habitually, or where the offence relates to fauna or flora of a strictly protected species;".

  • 14. 
    Article 3(h) At the Working Party meeting on 18 December 2007 the vast majority of Member States were in favour of keeping Article 3(h), but felt that the concept "any conduct" needed to be defined more accurately, in keeping with the principle that criminal law must be clear and definite.

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Germany also feels that the current wording of Article 3(h) is not sufficiently precise, especially as the very broad terms used to define the offence are out of line with the precise descriptions of offences elsewhere in Article 3; it seems likely that paragraph (h) could overlap with them in some areas. Germany is therefore standing by its reservation on Article 3(h) for the time being.

However, we could agree to establish an offence in this area if the acts constituting the criminal offence are described precisely enough to ensure that the conduct to be made an offence is clearly circumscribed and the basic content of the law can be understood by the target group. Although this degree of precision would mean restricting the scope of Article 3(h), it is necessary, since otherwise there is a risk of creating a vague catch-all offence which Member States would be hard put to implement without infringing the principle of clarity and definiteness, which states that the criminal act must be accurately defined and the risk of committing a crime must be clear. In order to satisfy the requirements of Community law regarding the conservation of specially protected habitats, the offence must cover any conduct which might lead to deterioration in the protection which such habitats are intended to afford. Accordingly, any intervention affecting soil components, natural surface structure, waters, wetlands or forests should be covered.

Germany therefore proposes that Article 3(h) should read as follows:

"(h) the mining or extraction of soil components, excavation or infill work, the

creation, modification or removal of a body of water, the drainage of a wetland, the construction of a building or the felling of a wood, which significantly detracts from the conservation aim of a protected habitat".

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  • 15. 
    Article 3(i)

Germany can accept the wording of Article 3(i).

  • 16. 
    Netherlands proposal for a new Article 3(ia)

Germany supports the proposed extension of the criminal offences listed in Article 3 to include the manufacture, treatment, storage, use, transport, import or export of chemical substances. Since the acts and potential risks correspond to those in Article 3(e), it is proposed that "or chemical substances" be added after "radioactive substances".

Germany also supports the inclusion of a criminal offence relating to genetically modified organisms. However, handling of genetically modified organisms, which is already illegal, should be made a criminal offence irrespective of the risk of serious consequences. Germany therefore proposes the following letter (j):

"(j) the manufacture, treatment, storage, use or transport of genetically modified organisms.".

The illegal export of such organisms is already covered by Regulation No 1946/2003.

Conversely, Germany does not see any need for this Directive to contain criminal provisions on the illegal handling of pyrotechnical materials, explosives for civil use, biocides or plant protection products.

  • 17. 
    New Article 3a

Not all of the offences listed in Article 3 are to constitute offences in the event of serious negligence (see point 6).

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Germany therefore proposes an Article 3a reading as follows:

"Article 3a

Offences of serious negligence

The Member States shall ensure that the conduct listed in Article 3(a) to (e) and (h)

and (i) [to (j)] constitutes a criminal offence if committed

through serious negligence."

  • 18. 
    Article 4

Article 3 is to contain only one provision on intentional offences (see points 6 and 17). The reference to "intentional" in Article 4 is therefore superfluous.

Germany therefore proposes that the word "intentional" be deleted from this Article.

  • 19. 
    Articles 5, 6 and 7

Germany agrees in principle with the content and wording of Articles 5, 6 and 7 and the deletion of the second paragraphs from Article 5 and 7. In view of the proposed amendments in points 6 and 17, the words "Articles 3 and 4" in Articles 5 and 7 should be replaced by "Articles 3 to 4".

  • 20. 
    Articles 8, 9, 10 and 11

Germany can accept the deletion of Article 8 and the content and wording of Articles 9, 10 and 11.

  • 21. 
    Annex A

Prior discussion in the Working Party on Substantive Law and a Council Decision should be required before any amendments, deletions or additions can be made to the legal acts listed in the Annex; this rules out automatic adjustment of the Annex.

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The following deletions from the Annex (as given in 11002/07) are therefore proposed:

– Council Directive 75/439/EEC: deletion of the words "(proposal to repeal, new Waste

Framework Directive)", – Council Directive 91/689/EEC: deletion of the words "repeal proposed (new waste

framework directive)", – Directive 2006/12/EC: deletion of the words "proposal to amend (new Waste

Framework Directive)".

If the new Waste Framework Directive is adopted before this Directive, the updated versions of the Directives should be included in the Annex.

In addition, the following amendments should be made to the Annex:

– following addition to Directive 2002/96/EC: "of the European Parliament and of the

Council of 27 January 2003", – following addition to Directive 2006/12/EC: "of the European Parliament and of the

Council of 5 April 2006", – the reference to Directive 2006/21/EC should be replaced by the following:

"Directive 2006/21/EC of the European Parliament and of the Council of

15 March 2006 on the management of waste from extractive industries and amending

Directive 2004/35/EC".

Germany also proposes the following addition to the Annex:

– Commission Regulation (EC) No 1418/07 of 29 November 2007 concerning the export for recovery of certain waste listed in Annex III or IIIA to Regulation (EC) No 1013/2006 of the European Parliament and of the Council to certain countries to which the OECD Decision on the control of transboundary movements of wastes does not apply".

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  • 22. 
    Annex B

Germany can accept Annex B as proposed in 16413/1/07.

  • 23. 
    Demarcation from the draft Directive to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution

Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution was annulled by judgment of the ECJ on 23 October 2007. The Commission has announced that it will be submitting a draft Directive to replace the framework Decision.

To prevent any overlap between this forthcoming Directive and the draft Directive on the protection of the environment through criminal law, Germany proposes that it should be made clear in the recitals that the draft Directive on the protection of the environment through criminal law will not include the area covered by a Directive to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution.

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