Proposal for a Directive of the European Parliament and of the Council on the protection of the environment through criminal law. - Approval of the final compromise text with a view to a first reading agreement with the European Parliament.

Inhoudsopgave van deze pagina:

Tekst
Originele weergave

Meer informatie

1. Tekst

COUNCIL OF THE EUROPEAN UNION

Interinstitutional File: 2007/0022 (COD)

Brussels, 20 May 2008

9271/1/08 REV1

LIMITE

DROIPEN 44

ENV 282 CODEC 570

NOTE

from : to :

Presidency

Permanent Representatives Committee (Part II)

No prev. doc : 8328/1/08 REV 1 DROIPEN 35 ENV 225 CODEC 453

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.

-

Approval of the final compromise text with a view to a first reading agreement with the European Parliament.

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 report in its Committee on Legal Affairs (JURI) on 15 April 2008 and will be delivering its opinion on 19-21 May 2008.

The Economic and Social Committee delivered its opinion on 26 September 2007¹. The Committee of the Regions abstained from delivering an opinion.

OJ C 10 15.1.2008, p. 47.

9271/1/08 REV 1

DG H 2B

IS/np 1

LIMITE EN

The UK and DK 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 held eight meetings. Furthermore, it met twice at COREPER (Part II) level and once at Article 36 Committee level.

II. TRIALOGUES

In line with the Joint declaration on practical arrangements for the co-decision procedure¹, three informal Trialogue meetings (17 April 2008, 24 April 2008 in Strasbourg and 6 and 7 May 2008) were held between the Presidency, the European Parliament and the European Commission. The Working Party on Substantive Criminal Law was continuously informed of the outcome of those informal Trialogues, lately at its meetings on 6 and 7 May 2008.

III. FINAL COMPROMISE TEXT

In the course of the Trialogue meetings, the three Institutions were able to reconcile their positions. The final compromise text as it arose from those meetings is set out in the Annex to this note. Modifications with regard to the initial Commission proposal are highlighted in bold. However, LV and ES lodged scrutiny reservations with regard to the inclusion in the final compromise text of amendment 28 adopted by the European Parliament through its JURI Committee. In particular, those delegations wish to include the provision on the correlation tables to be communicated to the Commission by the Member States, when implementing the proposed Directive, rather in a recital and not in the body of the instrument (Article 9 (2) of the proposed Directive) as preconised in the final compromise text.

Furthermore, DE entered a scrutiny reservation on the inclusion in the compromise text of amendment 20 with regard to Article 3 (h). In particular this delegation considers that this provision is too broad and wishes a more specific drafting.

¹ OJ C 145, 30.6.07, p.5.

9271/1/08 REV 1 IS/np 2

^DG ^H ^2B LIMITE EN

Whilst the Presidency is aware of those reservations and the views expressed by the above mentioned delegations on these specific points, it feels that the final compromise in its consolidated version, as included in the Annex to this note, should now be accepted as a package.

Furthermore, according to the Joint declaration on practical arrangements for the co-decision

procedure, the Chairman of the Permanent Representatives Committee communicates, in a letter

forwarded to the Chair of the JURI Parliamentary Committee, Council's willingness to accept the

consolidated compromise text, subject to legal linguistic verification, should it be confirmed by the

vote in the European Parliament's Plenary session on 19/22 May 2008.

Copy of this letter shall be forwarded also to the JURI Committee's Rapporteur and the

Commission.

IV. CONCLUSION

COREPER is invited:

to confirm the agreement on the final compromise package for a consolidated text of the proposed Directive, as set out in the Annex to this Note.

in order to reach an agreement at first reading, to give the Chairman of the Permanent Representatives Committee the mandate to inform the Chair of the European Parliament's Committee on Legal affairs that, should the European Parliament adopt the amendments to the Commission proposal in the exact form as set out in the consolidated compromise package set out in the Annex to this note, the Council would adopt the proposed Directive in the form of the text thus amended, subject to legal-linguistic verification by both institutions.

9271/1/08 REV 1 IS/np 3

^DG ^H ^2B LIMITE EN

ANNEX

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

on the protection of the environment through criminal law

(COM (2007) 51 final)

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,

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 mechanism under civil law.

9271/1/08 REV 1 IS/np 4

ANNEX DG H 2B LIMITE EN

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

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

(6) 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 environmental protection are fully effective.

(7) 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 implementing that legislation, to provide for prohibitive measures.

(8) Failure to comply with a legal duty to act can have the same effect as active behaviour and should therefore be subject to corresponding penalties, as well.

(9) Therefore, such conduct should be considered a criminal offence throughout the Community when committed intentionally or with serious negligence.

(10) 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.

(11) This Directive is without prejudice to other liability systems for environmental damage under Community law or national law.

(12) 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.

9271/1/08 REV 1 IS/np 5

ANNEX DG H 2B LIMITE EN

(13) 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) 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.

(15) Whenever subsequent legislation on environmental matters is adopted it should specify, where appropriate, that this Directive will apply. Where necessary, Article 3 should be modified.

(16) This act respects fundamental rights and principles as recognised notably in the Charter of Fundamental rights of the European Union.

HAVE ADOPTED THIS DIRECTIVE

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,

9271/1/08 REV 1 IS/np 6

ANNEX DG H 2B LIMITE EN

(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).

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

9271/1/08 REV 1 IS/np 7

ANNEX DG H 2B LIMITE EN

(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.

(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 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, water, animals or plants.

(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.

9271/1/08 REV 1 IS/np 8

ANNEX DG H 2B LIMITE EN

(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 production, processing, handling, use, holding, storage, transport, import, export and disposal 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, the quality of soil, the quality of water, or to animals or plants

(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.

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

(i) Production, importation, exportation, placing on the market or use of ozone-depleting substances.

Article 4 Inciting, aiding and abetting

Member States shall ensure that inciting, aiding and abetting the intentional conduct referred to in Article 3 is punishable as a criminal offence.

9271/1/08 REV 1 IS/np 9

ANNEX DG H 2B LIMITE EN

Article 5 Penalties

Each Member State shall take the necessary measures to ensure that the offences referred to in Articles 3 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 a 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

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, inciters or accessories in the offences referred to in Article 3.

9271/1/08 REV 1 IS/np 10

ANNEX DG H 2B LIMITE EN

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.

Article 8 Transposition

1.

Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by […] […] at the latest.¹

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, and a correlation table between those provisions and this Directive.

Article 9 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 24 months from the date of its entry into force.

9271/1/08 REV 1 IS/np 11

ANNEX DG H 2B LIMITE EN

Article 10 Addressees

This Directive is addressed to the Member States. Done at Brussels,

For the European Parliament For the Council

The President The President

9271/1/08 REV 1 IS/np 12

ANNEX DG H 2B LIMITE EN

Annex A to the ANNEX

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 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.

9271/1/08 REV 1 IS/np 13