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

Interinstitutional File: 2007/0022 (COD)

Brussels, 15 April 2008

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DROIPEN 35

ENV 225 CODEC 453

REPORT

from to:

No. prev. doc.: No. Cion prop.:

Subject:

the Working Party on Substantive Criminal Law Permanent Representatives Committee (Part II)

8408/08 DROIPEN 36 ENV 230 CODEC 464

6297/07 DROIPEN 10 ENV 95 SAN 20 CONSOM 7 CODEC 113

+ ADD 1 + ADD 2 COM(2007) 51 final

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

I. INTRODUCTION

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 European Parliament voted on a draft opinion in its Committee on Legal Affairs (JURI) on 8 April 2008 and will be delivering its opinion on 19-21 May 2008.

The Economic and Social Committee delivered its opinion on 26 February 2007.

UK, DK and CZ delegations entered parliamentary scrutiny reservations.

The Working Party on Substantive Criminal Law started the examination of this proposal under German Presidency. Under Slovenian Presidency the Working Party met 6 times, once at COREPER (Part II) level (on 5.3.08 ) and once at Article 36 Committee level (on 2.4.08).

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The discussions have been from a general point of view positive and the Working Party on Substantive Criminal Law has reached consensus on almost all Articles of the proposed Directive, its Preamble and the Annexes I and II to be attached to the body of the proposed instrument.

However, one issue, namely the drafting of the offence with regard to the significant deterioration of a protected habitat (Article 3 (h)) raises still some questions. Another question which also needs more reflection is the inclusion or deletion of some legal instruments in the Annexes.

II. OUTSTANDING ISSUES

During the discussions in the Working Party, the DE and DK delegations, advocating a more narrow description of the offence provided for in Article 3 (h), presented alternative drafting proposals for the above mentioned provision and entered scrutiny reservations.1

Furthermore, the DE, HU and CZ delegations entered scrutiny reservations with regard to the

inclusion or deletion of some legal instruments in the Annexes to be attached to the proposed Directive.2

III. OTHER ISSUES

European Parliament Amendments

The outcome of the vote of the European Parliament on a draft opinion in its Committee on Legal Affairs (JURI) is set out in the Annex to this Note in column 2. Modifications/additions with regard to the text as it arose from the discussions in the Council's Working Party on Substantive Criminal Law are set out in bold. The outcome of the examination of these amendments in the Working Party on Substantive Criminal Law is set out in bold and underlined in the Annex to this Note in column 3. The text preconised by the Working Party is set out in italics.

It has to be noted that the JURI Committee did not take any position on recitals 9 and 10 as well as on Article 6 of the proposed Directive.

IV. CONCLUSION

The Permanent Representatives Committee is invited

  • • 
    to examine the issues still raising questions as well as the outcome of the examination by the Working Party on Substantive Criminal Law of the amendments voted on 8 April 2008, in the Committee for Legal Affairs of the European Parliament, with a view to giving the Presidency a mandate to negotiate with the European Parliament a first reading agreement on the proposed Directive, on the basis of the text as it arose from the discussions in the Council's Working Party and set out in the Annex,

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to allow the Working Party on Substantive Criminal Law to continue the negotiations on the basis of this mandate until finalisation of an agreed text of the proposed Directive, without referring to the Permanent Representatives Committee with regard to modifications of this mandate that would eventually arise in the course of the negotiations.

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ANNEX

Subject :

Proposal for a directive of the European Parliament and of the Council on the protection of the environment through criminal law (KOM(2007)0051 – C6-0063/2007 – 2007/0022(COD))

 

Commission's proposal

Adopted amendments in follow-up to the vote of the European Parliament in its JURI Committee on 8 April 2008.

Outcome of the examination of EP's amendments by the DROIPEN in follow-up to its meeting on 10/11 April 2008.

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,

Having regard to the proposal from the

Commission3,

Having regard to the opinion of the European Economic and Social Committee4,

Having regard to the opinion of the

The European Parliament,

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,

Having regard to the proposal from the

Commission,

Having regard to the opinion of the

European Economic and Social Committee,

OJ C OJ C OJ C

  • p. 
    p. p.

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Committee of the Regions3,

    
     

Acting in accordance with the procedure laid down in Article 251 of the Treaty1, 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 application of criminal sanctions, which demonstrate a social disapproval of a qualitatively different nature compared to administrative sanctions or a compensation

  

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,

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

OJ C , , p.

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5

(4)

(5)

(6)

mechanism under civil law.

Common rules on criminal sanctions make it possible to use more effective methods of investigation and assistance within and between Member States than are available under administrative co-operation.

By entrusting judicial authorities, rather than administrative authorities, with the task of imposing sanctions, responsibility for investigating and enforcing the respect of environmental regulations falls to authorities which are independent of those which grant exploitation licences and discharge authorisations.

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

(4a) It is clear that the success of efforts to tackle environmental crime in a crossborder context will depend on an appropriate role for bodies coordinating international pre-trial proceedings (Europol, Eurojust, joint investigation teams) and greater effectiveness of these bodies in terms of competences and organisation.

( 5) deleted

(6) In order to achieve effective protection of the environment, there is a particular need for more dissuasive sanctions for environmentally harmful activities, which typically cause or are likely to cause substantial damage to the landscape, the air, including the stratosphere, bedrock, soil, water, animals or plants, including to the conservation of species.

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.

AM rejected

(5)

deleted

CP maintained.

(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.

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CP maintained
     

(6a) The legislation listed in the
     

Annexes to this Directive contain
     

provisions, which should be
     

subject to measures which relate
   

(6a) The legislation listed in the Annex to

to criminal law in order to ensure
   

this Directive contains provisions which

that the rules on environmental
   

should be subject to measures which relate

protection are fully effective.
   

to criminal law, in order to ensure that the

CP maintained.
   

rules on environmental protection are fully

(6b) The obligations under this
   

effective.

Directive only relate to the provisions of the legislation listed
   

(6b) The obligations imposed by this

in the Annexes to this Directive
   

Directive relate only to the provisions of

which entail an obligation for
   

the legislation listed in the Annex hereto

Member States, when
   

which entail an obligation for Member

implementing that legislation, to
   

States, when implementing that legislation,

provide for prohibitive measures.
   

to provide for prohibitive measures.

CP maintained

(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.

CP maintained

(7)

Failure to comply with a legal

  

(8) Therefore, such conduct should be
 

duty to act can have the same

  

considered a criminal offence
 

effect as active behaviour and

  

throughout the Community when
 

should therefore be subject to

  

committed intentionally or with
 

corresponding sanctions, as well.

  

serious negligence.

(8)

Therefore, such conduct should be considered a criminal offence throughout the Community when

  

(9) deleted
 

committed intentionally or with

  

CP maintained
 

serious negligence.

(9a) The directive obliges the Member

(9a) This Directive obliges Member
   

States to include in their national

States to provide for criminal

(9)

In order to achieve effective

legislation criminal sanctions for serious

penalties in their national
 

protection of the environment,

violations of Community environmental

legislation for serious
 

participation in and instigation of

protection law. The directive does not

infringements of provisions of

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such activities should also be

create obligations with regard to the

Community law on the protection
 

considered a criminal offence.

implementation of such sanctions or of

of the environment. This Directive
   

other available legal instruments in

creates no obligations regarding
   

individual cases.

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

(9b) deleted

(10) deleted

(10)

Environmentally harmful activities should be punishable by effective, proportionate and dissuasive criminal sanctions, which should also apply to legal persons

    
 

throughout the Community, because environmental offences are committed, to a large extent, in

(11) deleted

CP mantained (11) deleted
 

the interest of legal persons or for

    
 

their benefit.

    

(11)

Furthermore, the significant differences in the level of sanctions in the Member States make it necessary to foresee, under certain circumstances, an approximation of those levels corresponding to the seriousness of the offence.

  

CP maintained (12) deleted

(12)

Such an approximation is particularly important where the

(12) deleted

  
 

offences have serious results or the offences are committed in the framework of criminal organisations which play a significant role in environmental crime.

(12a) Where a continuing activity proves after a lapse of time to give rise to environmental damage which may in turn give rise to criminal liability under this Directive, the question whether or not the perpetrator of the damage acted

AM rejected

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(13) As this Directive provides for minimum rules, Member States

intentionally or negligently should be determined by reference to the time when the perpetrator became aware, or should have been aware, of the facts constituting the offence and not to the time when the perpetrator commenced its activity. It should be borne in mind in this connection that the prior grant of an authorisation, licence or concession should not constitute a defence in such circumstances.

(12b) The mental element for the criminal offences to be created by the Member States pursuant to this directive should be intention or at least serious negligence. Accordingly, the prosecuting authorities and the courts in the Member States should have a discretion not to prosecute for offences concerning protected wild fauna and flora species or parts or derivatives thereof, where the conduct complained of concerns a negligible quantity of specimens and has a negligible impact on the conservation status of the species concerned and where the person or persons concerned were unaware of the protected status of the wild fauna or flora concerned.

(13) deleted

AM rejected

CP maintained.

(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.

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are free to adopt or maintain more

  

CP maintained

stringent provisions regarding the

(13 a) The Euratom Treaty and its

(13 a)

deleted

effective criminal law protection

secondary legislation regulate

    

of the environment.

environmental protection with regard to nuclear activity. As a result, the unlawfulness of actions which affect the environment as a result of nuclear activities can only be defined by reference to the Euratom Treaty and its secondary legislation.

    
   

(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.

  

(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.
   

AM acceptable
 

(15)Since the objectives of the action to be

(15)

Since the objectives of the action
 

taken, namely to ensure a more effective

  

to be taken, namely to ensure a

(15) Since the objectives of the action

protection of the environment, for example by combating large-scale organised

  

more effective protection of the environment, cannot be

to be taken, namely to ensure a more effective protection of the

crime which causes serious environmental damage, cannot be

  

sufficiently achieved by the Member States and can therefore

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environment, cannot be

sufficiently achieved by the Member States

be better achieved at Community

sufficiently achieved by the

and can therefore be better achieved at

level, the Community may adopt

Member States and can therefore

Community level, the Community may

measures, in accordance with the

be better achieved at Community

adopt measures, in accordance with the

principle of subsidiarity as set out

level, the Community may adopt

principle of subsidiarity as set out in Article

in Article 5 of the Treaty. In

measures, in accordance with the

5 of the Treaty. In accordance with the

accordance with the principle of

principle of subsidiarity as set out

principle of proportionality, as set out in

proportionality, as set out in that

in Article 5 of the Treaty. In

that Article, this Directive does not go

Article, this Directive does not go

accordance with the principle of

beyond what is necessary in order to

beyond what is necessary in order

proportionality, as set out in that

achieve those objectives.

to achieve those objectives.

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

(16) This act respects fundamental

  

of Fundamental rights of the

rights and principles as recognised

  

European Union.

notably in the Charter of

    

fundamental rights of the

    

European Union.

    

HAVE ADOPTED THIS DIRECTIVE:

  

HAVE ADOPTED THIS DIRECTIVE CP maintained

Article 1 Subject matter

This Directive establishes measures

relating to criminal law in order to protect

Article 1 Subject matter

This Directive establishes measures

relating to criminal law in order to protect

Article 1 Subject matter

This Directive establishes measures

the environment more effectively

the environment more effectively. It

relating to criminal law in order to protect
 

concerns criminal liability only and is

the environment more effectively.
 

without prejudice to Community or

  
 

national law, and to any rules derived

  
 

therefrom, with respect to civil liability

  
 

for environmental harm.

  

Art. 2: Definitions

Art. 2 Definitions

Article 2: Definitions

For the purpose of this Directive

  

For the purpose of this Directive

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(a) "unlawful" means infringing Community legislation or a law, an administrative regulation or a decision taken by a competent authority in a Member State aiming at the protection of the environment.

(a) “unlawful” means

  • - 
    infringing a Community act listed in the Annex hereto or
  • - 
    for activities concerning the EURATOM Treaty, any infringement of Community legislation as laid down in Annex B or
  • - 
    a law, an administrative regulation or a decision taken by a competent authority in a Member State intended to transpose Community legislation.

CP maintained

(a) "unlawful" means infringing

(i) the legislation adopted on the basis of the Treaty establishing the European Community set out in Annex A , or (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) or (ii)
 

(aa) "protected wild fauna and flora species" means:

(i) for the offence referred to in Article 3(g), those listed in:

– Annex IV to Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and wild fauna and flora1;

– Annex 1 to, and referred to in Article 4(2) of, Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds2; and

(ii) for the trade-related offence referred to in Article 3(ga), those listed in:

– Annexes A or B to Council Regulation (EC) No 338/97 of 9 December 1996 on

AM conditionally acceptable

(b) "protected wild fauna and flora

species" are

  • 1) 
    for the purposes of Article 3(f) 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 1979 on the conservation of wild birds and
  • 2) 
    for the purposes of Article 3 (g) those listed in
  • - 
    Annexes A or B to Council Regulation 338/97/EC of 9 December

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the protection of species of wild fauna and flora by regulating trade therein3;

_______________________________

1 OJ L 206, 22.7.1992, p. 7. Directive as last amended by Directive 2006/105/EC (OJ L 363, 20.12.2006, p. 368).

2 OJ L 103, 25.4.1979, p. 1. Directive as last amended by Directive 2006/105/EC (JO L 363, 20.12.2006, p. 368).

3 OJ L 61, 3.3.1997, p. 1. Regulation as last amended by Commission Regulation (EC) No 1332/2005 (OJ L 215, 19.8.2005, p. 1).

1996 on the protection of species of wild fauna and flora, by regulating trade therein.
 

(2ab) "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, 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.

AM acceptable

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

(b) “legal person” means any legal entity having such status under the applicable national law, except for States or other public bodies acting in the exercise of their sovereign rights and for public international organisations.

.)

CP maintained

(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.

Art. 3: Offences

Art . 3 Offences

Article 3: Offences

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Member States shall ensure that the following conduct constitutes a criminal offence, when committed intentionally or with at least serious negligence:

Member States shall ensure that the following conduct constitutes a criminal offence, when unlawful and committed intentionally or with at least serious negligence:

CP maintained

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 death or serious injury to any person;

(a) deleted

CP maintained (a) deleted

(b) the unlawful 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, soil, water, animals or plants;

(b) the discharge, emission or introduction of a quantity of materials or ionising radiation onto the Earth's surface, into air, bedrock, 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, soil, rock, water, animals or plants;

AM conditionally acceptable

(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;

(c) the unlawful treatment, including disposal and storage, transport, export or import 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;

(c) the collection, transport, recovery and disposal of waste, including the supervision of such operations and the after-care of disposal sites, and including actions taken as a dealer or broker (waste management), which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, soil, rock, or water or to animals or plants;

AM conditionally acceptable

  • b) 
    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, the quality of soil, the quality of water, or to animals or plants.

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(d) the unlawful 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;

(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, rock, water, animals or plants;

AM conditionally acceptable

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

(e) the illegal shipment of waste as defined in Article 2(35) of Regulation (EC) No 1013/2006 of the European Parliament and Council for profit and in a non-negligible quantity, whether the shipment is executed in a single operation or in several operations which appear to be linked;

(e) the shipment of waste, where this activity falls under Article 2(35) of Regulation (EC) No 1013/2006 of the European Parliament and of the Council for profit and in a non-negligible quantity;

AM conditionally acceptable (c) 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.

;

(f) the unlawful manufacture, treatment, storage, use, transport, export or import of nuclear materials or 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;

(f) the manufacture, treatment, storage, use, transport, sale and distribution and export or import of nuclear materials or 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, bedrock, soil, water, animals or plants

AM conditionally acceptable (e) the manufacture, treatment, storage and disposal , 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 .

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(g) the unlawful possession, taking, damaging, killing or trading of or in specimens of protected wild fauna and flora species or parts or derivatives thereof;

(g) the possession, taking, damaging, processing or killing of specimens of protected wild fauna and flora species or parts or derivatives thereof and the killing or destruction of such specimens, except in cases where the conduct concerns a negligible quantity of those specimens and has a negligible impact on the conservation status of the species;

CP maintained

(f)The killing, destruction , possession and taking 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.
 

(ga) trading in specimens of protected wild fauna and flora species or parts or derivatives thereof, except in cases where the conduct concerns a negligible quantity of those specimens and has a negligible impact on the conservation status of the species;

CP maintained

(g) Trading in specimens of protected wild fauna and flora species or parts or derivatives thereof, except for cases when the conduct concerns a negligible quantity of these specimens and has a negligible impact on the conservation status of the species.

(h) the unlawful significant deterioration of a protected habitat;

(h) the significant deterioration of a habitat within a protected site through building work, stone clearance, deforestation, grubbing and planting work, and arson or any comparable serious acts;

CP maintained

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

(i) the unlawful trade in or use of ozone-depleting substances.

(i) trade in, or the manufacture, placing on the market, distribution or use of, ozone-depleting substances

AM conditionally acceptable

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

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.

  

Art. 4 Participation and instigation

Article. 4

Article 4: Inciting, aiding and abetting

Member States shall ensure that participation in or instigation of the conduct referred to in Article 3 constitutes a criminal offence.

Member States shall ensure that instigation of, and aiding and abetting, the intentional conduct referred to in Article 3 are made punishable offences.

CP maintained

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.

Art. 5 Sanctions

Art. 5

Article 5: Penalties
  • 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
  • 1. 
    Each Member State shall take the steps required to ensure that the commission of the offences referred to in Articles 3 to 4 is punishable by effective, proportionate and dissuasive criminal sanctions.

CP maintained

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.

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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].

  • 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

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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.

    

Art. 6: Liability of legal persons

Art. 6

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
  
  • 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 an person, acting either individually or as part of an organ of the

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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 for their involvement as accessories or instigators in the commission of the offences referred to in Article 3.

  

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 for the benefit of that legal person by a person under its authority.
  • 2. 
    Member States shall also ensure that a legal person can be held liable where the
  • 2. 
    Member States shall also ensure that a legal person can be held liable where th 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.
  • 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.
  
  • 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.

Art. 7 Sanctions for legal persons

Article . 7

Article 7: Penalties for legal persons

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  • 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 shall be:

in paragraph 1

(a)

(b)

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.

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

  • 1. 
    Member States shall take the steps required to ensure that a legal person held liable for an offence pursuant to Article 6 is punishable by effective, proportionate and dissuasive sanctions.

CP maintained

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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(c)

with serious negligence and causes the death or serious injury of a person, or

  • - 
    is

committed intentionall y          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];

of a maximum of at least between EUR 750 000 and EUR 1 500 000 in cases where:

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(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;

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(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.

    

Art. 8: Reporting

Article .8

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.

deleted

CP maintained deleted

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Article 8a

(8a) Adoption of new legislation Whenever subsequent legislation on environmental matters is adopted, it shall specify where appropriate that the Annex to this Directive is to be amended.

AM rejected

Art. 9: Transposition

Art. 9 Transposition

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.

  • 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.
  • 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

CP maintained

  • 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.

Art. 10: Entry into force

Art. 10 Entry into force

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.

  

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

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Art. 11: Addressees

Art. 11 Addresees

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

  

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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Annex A to the ANNEX

LIST OF COMMUNITY LEGISLATION INFRINGEMENT OF WHICH CONSTITUTES UNLAWFUL CONDUCT WITHIN THE MEANING OF ARTICLE 2(a) OF THIS DIRECTIVE

LIST OF TEC COMMUNITY LEGISLATION, INFRINGEMENT OF WHICH RESULTS TO UNLAWFUL CONDUCT PURSUANT TO ARTICLE 2 (a) i) OF THE PROPOSED DIRECTIVE

  • - 
    Council Directive 70/220/EEC of 20 March 1970 on the approximation of the laws of the Member States relating to measures to be taken against air pollution by gases from positive-ignition engines of motor vehicles (to be repealed as from 2 January 2013 by Regulation (EC) No 715/2007 of the European Parliament and of the Council);
  • - 
    Council Directive 72/306/EEC of 2 August 1972 on the approximation of the laws of the Member States relating to the measures to be taken against the emission of pollutants from diesel engines for use in vehicles (to be repealed as from 2 January 2013 by Regulation (EC) No 715/2007);
  • - 
    Council Directive 75/439/EEC of 16 June 1975 on the disposal of waste oils;
  • - 
    Council Directive 76/769/EEC of 27 July 1976 on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations (to be repealed and replaced with effect from 1 June 2009 by the REACH Regulation (Regulation (EC) No 1907/2006 of the European Parliament and of the Council));
  • - 
    Council Directive 77/537/EEC of 28 June 1977 on the approximation of the laws of the Member States relating to the measures to be taken against the emission of pollutants from diesel engines for use in wheeled agricultural or forestry tractors;
  • - 
    Council Directive 78/176/EEC of 20 February 1978 on waste from the titanium dioxide industry;
  • - 
    Council Directive 79/117/EEC of 21 December 1978 prohibiting the placing on the market and use of plant protection products containing certain active substances;
  • - 
    Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds;
  • - 
    Council Directive 70/220/EEC of 20 March 1970 on the approximation of the laws of the Member States relating to measures to be taken against air pollution by gases from positive-ignition engines of motor vehicles; to be repealed by new Regulation.
  • - 
    Council Directive 72/306/EEC of 2 August 1972 on the approximation of the laws of the Member States relating to the measures to be taken against the emission of pollutants from diesel engines for use in vehicles
  • - 
    Council Directive 75/439/EEC of 16 June 1975 on the disposal of waste oils.
  • - 
    Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water.
  • - 
    Council Directive 76/769/EEC of 27 July 1976 on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations.
  • - 
    Council Directive 77/537/EEC of 28 June 1977 on the approximation of the laws of the Member States relating to the measures to be taken against the emission of pollutants from diesel engines for use in wheeled agricultural or forestry tractors.
  • - 
    Council Directive 78/176/EEC 20 February 1978 on waste from the titanium dioxide industry.
  • - 
    Council Directive 79/117 of 21 December 1978 prohibiting the placing on the market and use of plant protection products containing certain active substances.
  • - 
    Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds;

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  • - 
    Regulation (EEC) No 348/81 of 20 January 1981 on common rules for imports of whales or other cetacean products;
  • - 
    Council Directive 82/176/EEC of 22 March 1982 on limit values and quality objectives for mercury discharges by the chlor-alkali electrolysis industry (repeal proposed);
  • - 
    Council Directive 83/513/EEC of 26 September 1983 on limit values and quality objectives for cadmium discharges (repeal proposed);
  • - 
    Council Directive 84/156/EEC of 8 March 1984 on limit values and quality objectives for mercury discharges by sectors other than the chlor-alkali electrolysis sector (repeal proposed);
  • - 
    Council Directive 84/491/EEC of 9 October 1984 on limit values and quality objectives for discharges of hexachlorocyclohexane (repeal proposed);
  • - 
    Council Directive 86/278/EEC of 12 June 1986 on the protection of the environment, and in particular of the soil, when sewage sludge is used in agriculture;
  • - 
    Council Directive 86/280/EEC of 12 June 1986 on limit values and quality objectives for discharges of certain dangerous substances included in List I of the Annex to Directive 76/464/EEC (repeal proposed);
  • - 
    Council Directive 90/219/EEC of 23 April 1990 on the contained use of genetically modified micro-organisms;
  • - 
    Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment;
  • - 
    Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market;
  • - 
    Council Directive 82/176/EEC of 22 March 1982 on limit values and quality objectives for mercury discharges by the chlor-alkali electrolysis industry.
  • - 
    Council Directive 83/513/EEC of 26 September 1983 on limit values and quality objectives for cadmium discharges.
  • - 
    Council Directive 84/156/EEC of 8 March 1984 on limit values and quality objectives for mercury discharges by sectors other than the chlor-alkali electrolysis sector.
  • - 
    Council Directive 84/360/EEC of 28 June 1984 on the combating of air pollution from industrial plants.
  • - 
    Council Directive 84/491/EEC of 9 October 1984 on limit values and quality objectives for discharges of hexachlorocyclohexane.
  • - 
    Council Directive 85/203/EEC of 7 March 1985 on air quality standards for nitrogen dioxide.
  • - 
    Council Directive 86/278/EEC of 12 June 1986 on the protection of the environment, and in particular of the soil, when sewage sludge is used in agriculture.
  • - 
    Council Directive 86/280/EEC of 12 June 1986 on limit values and quality objectives for discharges of certain dangerous substances included in List I of the Annex to Directive 76/464/EEC.
  • - 
    Council Directive 87/217/EEC of 19 March 1987 on the prevention and reduction of environmental pollution by asbestos.
  • - 
    Council Directive 90/219/EEC of 23 April 1990 on the contained use of genetically modified microorganisms.
  • - 
    Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment.
  • - 
    Council Directive 91/414/EEC concerning the placing of plant protection products on the market.
  • - 
    Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources.

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  • - 
    Council Directive 91/689/EEC of 12 December 1991 on hazardous waste;
  • - 
    Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora;
  • - 
    Council Directive 92/112/EEC of 15 December 1992 on procedures for harmonising the programmes for the reduction and eventual elimination of pollution caused by waste from the titanium dioxide industry;
  • - 
    European Parliament and Council Directive 94/63/EC of 20 December 1994 on the control of volatile organic compound (VOC) emissions resulting from the storage of petrol and its distribution from terminals to service stations;
  • - 
    Council Directive 96/59/EC of 16 September 1996 on the disposal of polychlorinated biphenyls and polychlorinated terphenyls (PCB/PCT);
  • - 
    Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances;
  • - 
    Directive 97/68/EC of the European Parliament and of the Council of 16 December 1997 on the approximation of the laws of the Member States relating to measures against the emission of gaseous and particulate pollutants from internal combustion engines to be installed in non-road mobile machinery;
  • - 
    Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by
  • - 
    Council Directive 91/689/EEC of 12 December

1991 on hazardous waste.

1992 on procedures for harmonising the programmes for the reduction and eventual elimination of pollution caused by waste from the titanium dioxide industry.

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regulating trade therein;

  • - 
    Directive 98/8/EC of the European Parliament and the Council of 16 February 1998 concerning the placing of biocidal products on the market;
  • - 
    Directive 98/70/EC of the European Parliament and of the Council of 13 October 1998 relating to the quality of petrol and diesel fuels and amending Council Directive 93/12/EEC;
  • - 
    Council Directive 1999/13/EC of 11 March 1999 on the limitation of emissions of volatile organic compounds due to the use of organic solvents in certain activities and installations;
  • - 
    Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste;
  • - 
    Council Directive 1999/32/EC of 26 April 1999 relating to a reduction in the sulphur content of certain liquid fuels and amending Directive 93/12/EEC;
  • - 
    Directive 2000/53/EC of the European Parliament and of the Council of 18 September 2000 on end-of-life vehicles;
  • - 
    Directive 2000/59/EC of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues;
  • - 
    Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy;
  • - 
    Directive 2000/76/EC of the European Parliament and of the Council of 4 December 2000 on the incineration of waste;

by regulating trade therein.

  • - 
    Directive 98/8/EC of the European Parliament and the Council of 16 February 1998 concerning the placing of biocidal products on the market
  • - 
    Directive 98/70/EC of the European Parliament and of the Council of 13 October 1998 relating to the quality of petrol and diesel fuels and amending Council Directive 93/12.
  • - 
    Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption.
  • - 
    Council Directive 99/13/EC of 11 March 1999 on the limitation of emissions of volatile organic compounds due to the use of organic solvents in certain activities and installations.
  • - 
    Council Directive 1999/30/EC of 22 April 1999 relating to limit values for sulphur dioxide , nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air, Commission Decision 2001/744/EEC of 17 October 2001 amending Annex V of this Directive.
  • - 
    Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste.
  • - 
    Council Directive 1999/32/EC of 26 April 1999 relating to a reduction in the sulphur content of certain liquid fuels and amending Directive 93/12/EEC.
  • - 
    Directive 2000/53/EC of the European Parliament and of the Council of 18 September 2000 on end of life vehicles.
  • - 
    Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy.
  • - 
    Directive 2000/69/EC of the European Parliament and of the Council of 16 November 2000 relating to limit values for benzene and carbon monoxide in ambient air.
  • - 
    Directive 2000/76/EC of the European Parliament and of the Council of 4 December 2000 on the incineration of waste.

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to be taken against the emission of gaseous and particulate pollutants from compression-ignition engines for use in vehicles, and the emission of gaseous pollutants from positive-ignition engines fuelled with natural gas or liquefied petroleum gas for use in vehicles;

to the measures to be taken against the emission of gaseous and particulate pollutants from compression-ignition engines for use in vehicles, and the emission of gaseous pollutants from positive-ignition engines fuelled with natural gas or liquefied petroleum gas for use in vehicles.

  • - 
    Commission Directive 2005/78/EC of 14 November 2005 implementing Directive 2005/55/EC of the European Parliament and of the Council on the approximation of the laws of the Member States relating to the measures to be taken against the emission of gaseous and particulate pollutants from compression-ignition engines for use in vehicles, and the emission of gaseous pollutants from positive ignition engines fuelled with natural gas or liquefied petroleum gas for use in vehicles and amending Annexes I, II, III, IV and VI thereto.

Directive 2006/7/EC of the European Parliament and of the Council of 15 February 2006 concerning the management of bathing water quality and repealing Directive 76/160/EEC.

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  • - 
    Directive 2006/66/EC of the European Parliament and of the Council of 6 September 2006 on batteries and accumulators and waste batteries and accumulators and repealing Directive 91/157/EEC;
  • - 
    Directive 2006/118/EC of the European Parliament and of the Council of 12 December 2006 on the protection of groundwater against pollution and deterioration;
  • - 
    Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste;
  • - 
    Regulation (EC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information (will repeal Directive 70/220/EEC with effect from 2 January 2013);
  • - 
    Commission Regulation (EC) No 1418/2007 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.

fresh waters needing protection or improvement in order to support fish life. - Directive 2006/66/EC of 6 September 2006 on batteries and accumulators and waste batteries and accumulators and repealing Directive 91/157/EEC.

  • - 
    Directive 2006/118/EC of the European Parliament and of the Council of 12 December 2006 on the protection of groundwater against pollution and deterioration.
  • - 
    Regulation 842/2006/EC of the European Parliament and of the Council of 17 May 2006 on certain fluorinated greenhouse gases.
  • - 
    Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste.
  • - 
    Regulation (EC) 715/2007 of the European Parliament and of the Council on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information.
  • - 
    Commission Regulation (EC) No 1418/2007 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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Annex B to the ANNEX

 
 

Annexe B

JURI am 76 Toubon a.o.

List of Community laws, the

infringement of which constitutes an

unlawful act, pursuant to Article 2(a),

2nd indent, regarding nuclear activities:

  
 
  • - 
    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 ionizing radiation.
  • - 
    Council Decision 87/600/Euratom of 14 December 1987 on Community arrangements for the early exchange of information in the event of a radiological emergency.
  • - 
    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.

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2.

Originele weergave

afbeelding document
 
 

3.

Meer informatie