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

On 9 February 2007 the Commission submitted to the Council a proposal for a Directive of the

European Parliament and of the Council on the protection of the environment through criminal law.

The above mentioned proposal has been transmitted to the European Parliament in view of its

opinion under the co-decision procedure.

The Slovenian Presidency has held until now three informal consultations with the Rapporteur of

the Committee on Legal Affairs and one with the Rapporteur of the Committee on the Environment,

Public Health and Food Safety of the European Parliament.

Under Slovenian Presidency, the Working Party on Substantive Criminal Law discussed this

proposal at its meetings on 16.1.08, 31.1.-1.2.08 and 25.2.08.

In the present document, the Presidency invites COREPER, notwithstanding the still existing

reservations expressed by Member States and included in the footnotes to the text, to agree, as a

basis for further discussions with the European Parliament, with

  • - 
    the Preamble and
  • - 
    the text of Articles 2, 3 and 3A

of the proposed Directive, as set out in the Annex to this Note and as they arose from the

discussions of the last meeting of the Working Party on Substantive Criminal Law on 25.2.08.

____________

ANNEX

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 ,

Acting in accordance with the procedure laid down in Article 251 of the Treaty 4 , 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 availability of criminal penalties, which

demonstrate a social disapproval of a qualitatively different nature compared to

administrative sanctions or a compensation mechanism under civil law.

(4) Common rules on criminal offences make it possible to use effective methods of investigation and assistance within and between Member States.

1

OJ C , , p. . 2

OJ C , , p. . 3

OJ C , , p. . 4

OJ C , , p. .

(5) [....]

(6) In order to achieve effective protection of the environment, there is a particular need for 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.

(6a) The legislation listed in the Annexes to this Directive contain provisions, which should be subject to measures which relate to criminal law in order to ensure that the rules on

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environmental protection are fully effective.

(6b) The obligations under this Directive only relate to the provisions of the legislation listed in the Annexes to this Directive which entail an obligation for Member States, when

2

implementing that legislation, to provide for prohibitive measures.

(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 3

of such activities should also be considered a criminal offence.

(9a) This Directive obliges Member States to provide for criminal penalties in their national legislation for serious infringements of provisions of Community law on the protection of

the environment. This Directive creates no obligations regarding the application of such

penalties or any other available system of law enforcement, in individual cases.

4

(9b) [...].

1

DE and ES, lodged scrutiny reservations on this recital. 2

ES, DE, DK and the Commission representative lodged scrutiny reservations on this recital. 3

FI wished addition of the word "intentional". 4

EL and DE lodged scrutiny reservation for the deletion.

(10) [...]

(11) [...] (12) [...]

(13) As this Directive provides for minimum rules, Member States are free to adopt or maintain more stringent measures regarding the effective criminal law protection of the environment.

These measures must be compatible with the TEC.

(13 a) EURATOM Treaty and its secondary legislation set out provisions for the environmental

protection regarding nuclear activities. Therefore, environmental offences in this Directive,

connected to nuclear activities are to be exclusively defined by reference to EURATOM

1

Treaty and its secondary legislation. 2

(13b) In accordance with point 34 of the Inter-institutional Agreement on better law-making Member States should draw-up, for themselves and in the interest of the Community, their

own tables, illustrating, as far as possible, the correlation between this Directive and the

transposition measures and make them public.

(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.

1

IE and AT lodged scrutiny reservations on this recital. 2

OJ C 321, 31.12.2003, p. 1.

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

(i) the legislation adopted on the basis of the Treaty establishing the European Community set out in

Annex A, and

(ii) with regard to activities covered by EURATOM Treaty, the legislation adopted on the basis of

the EURATOM Treaty set out in Annex B, or

(iii) a law, an administrative regulation of a Member State or a decision taken by a competent

authority of a Member State that gives effect to the Community legislation referred to in (i) and (ii)

(b) "protected wild fauna and flora species" are 1) for the purposes of Article 3 (ee) and Article 3 A (a) those listed in

  • - 
    Annex IV of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and wild fauna and flora;
  • - 
    Annex 1 and referred to in Article 4(2) of Council Directive 79/409/EEC of 2 April 1

1979 on the conservation of wild birds and

  • 2) 
    for the purposes of Article3 (ee) and article 3A (b) those listed in
  • - 
    Annexes A or B to Council Regulation 338/97/EC of 9 December 1996 on the 2

protection of species of wild fauna and flora, by regulating trade therein .

1 HU proposed following wording for b) "protected wild fauna and flora species" are 1) for the purposes of Article 3 (ee) and 3 A (a) those listed in - (first indent remains unchanged) -"Bird species referred to in Article 1 and Article 5 of Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds." 2

ES proposes a new indent 2.b.3. instead of 2 c):

"Protected wild fauna and flora species" are for the purposes of Article 3 (h) those: -listed in Annex II or Annex IV to Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and wild fauna and flora; -listed in Annex I to, or referred to in Article 4 (2) of, Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds; -which live, breed or rest in a special area of conservation listed in Annex I to Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and wild fauna and flora".

(c) "habitat within a protected site", 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/EEC of 2 April 1979

on the conservation of wild birds, or any natural habitat or a 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

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May 1992 on the conservation of natural habitats and of wild fauna and flora.

(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 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

(a) the discharge, emission or introduction of a quantity of materials 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 to the quality of air, the quality of soil, the quality of water or to animals or plants;

(b) the management of waste or the abandonment, dumping or uncontrolled management of 2

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, the quality of soil, the quality of water, or to

animals or plants.

(c) 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, the quality of

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

1

FR lodged a scrutiny reservation. 2

DE supported by NL indicated that the term "management of waste" should be understood in the sense of the future "Waste" Directive.

(d) The shipment of waste, where this activity falls within the scope of Article 2 (35) of Regulation (EC) No 1013/2006 of the European Parliament and of the Council and is undertaken in

a non-negligible quantity, whether executed in a single shipment or in several shipments which

appear to be linked.

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(e) 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, the quality of soil, the quality of water, or to

animals or plants;

(ee) The possession and taking of specimens of protected wild fauna and flora species, unless the

conduct concerns a negligible quantity and has a negligible impact on the conservation status of the

species.

(h) Any conduct 2 which causes the significant deterioration of a habitat within a protected site 3 . 4

(i) Trading in or production, marketing or use of ozone-depleting substances .

Article 3A

Member States shall ensure that the following conducts constitute criminal offence, when unlawful

and committed intentionally.

(a) The killing or destruction of specimens of protected wild fauna or flora species, except for cases

when the conduct concerns a negligible quantity of such specimens and has a negligible impact on

the conservation status of the species,

1 IE would like to add the word "disposal". 2

FI expressed its concerns for the unnecessary broad character of the word "conduct" and wished to limit the provision to "Acts" (and not include "omissions"). 3

DE entered a reservation with regard to this drafting and indicated that it preferred following drafting: "(h) the mining or extraction of soil components, excavation or infill work, he 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". DK entered a reservation and indicated it preferred following drafting: "(h) Conduct of activities having the character of plans or projects likely to have a significant effect on a habitat within a protected site, without the consent of the competent authorities". DE expressed a positive position on this drafting. 4

HU supported by PL proposes exclusion of minor cases with a new wording: "Trading in, production or marketing of ozon-depleting substances unless the conduct concerns a negligible quantity".

(b) Trading in specimens of protected wild fauna or flora species or parts or derivatives thereof,

except for cases when the conduct concerns a negligible quantity of these specimens and has a

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negligible impact on the conservation status of the species.

Article 4

Inciting, aiding and abetting

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

Article 3 and 3a is punishable as a criminal offence.

Article 5

Penalties

Each Member State shall take the necessary measures to ensure that the offences referred to in

Articles 3, 3a and 4 are punishable by effective, proportionate and dissuasive criminal penalties.

Article 6

Liability of legal persons

  • 1. 
    Member States shall ensure that legal persons can be held liable for offences referred to in Articles 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.

  • 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 Articles 3 and 4 for the benefit of that legal person by a person under its

authority.

1

NL would prefer to include b) under Article 3. BE, ES, LUX, IT, SE, and the COM indicated that they support this position.

  • 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

Penalties for legal persons

Member States shall take the necessary measures to ensure that a legal person held liable pursuant

to Article 6 is punishable by effective, proportionate and dissuasive penalties.

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Article 8 Reporting

[...] deleted

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 [...] [...]

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.

1

The Commission representative opposed this deletion.

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

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