Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the Protection of the Environment through Criminal Law

(presented by the Commission)

EXPLANATORY MEMORANDUM

1. Justification :

In order to guarantee a high level of protection of the environment (Article 174 2 EC) the increasing problem of environmental crime must be tackled.

The Community has adopted numerous acts of legislation protecting the environment. Member States have to transpose and implement those acts. In accordance with Article 10 EC, they must take, if necessary, effective, dissuasive and proportionate sanctions in order to enforce Community law [1].

[1] See, for instance, Court of Justice, Cases C-186/98, Nunes -De Matos, ECR 1999, I-4883, and C-77/97, Unilever, ECR 1999, I-431. See also the Commission's Communication of 3 May 1995 on the role of penalties in implementation of Community internal market legislation, COM(95)162 final, and the Council's Resolution of 29 June 1995 on the uniform and effective application of Community law and sanctions applicable to breaches of Community law (OJ C 188/1 of 22.7.1995). The Commission has subsequently sought to ensure that, where relevant, provisions on appropriate penalties are included in Community measures.

Experience has shown that the sanctions currently established by the Member States are not always sufficient to achieve full compliance with Community law. Not all Member States provide for criminal sanctions against the most serious breaches of Community law protecting the environment. There are still many cases of severe non-observance of Community law on the protection of the environment which are not subject to sufficiently dissuasive and effective penalties.

Although Community law may, in certain cases, already require Member States to provide for criminal penalties with regard to Article 10 EC, currently there is no Community provision which requires expressly this type of sanction. As a consequence, there is not only a lack of certainty of the law with regard to the Member State's obligation to provide for criminal penalties, but there is no minimum standard or acquis communautaire with regard to offences to the detriment of the environment.

In many cases, only criminal penalties will provide a sufficiently dissuasive effect. First, the imposition of criminal sanctions demonstrates a social disapproval of a qualitatively different nature compared to administrative sanctions or a compensation mechanism under civil law. It sends a strong signal, with a much greater dissuasive effect, to offenders. For instance, administrative or other financial sanctions may not be dissuasive in cases where the offenders are impecunious or, on the contrary, financially very strong.

Second, the means of criminal prosecution and investigation (and assistance between Member States) are more powerful than tools of administrative or civil law and can enhance effectiveness of investigations. Furthermore, there is an additional guarantee of impartiality of investigating authorities, because other authorities than those administrative authorities that have granted exploitation licences or authorisations to pollute will be involved in a criminal investigation.

Therefore, a minimum standard on constituent elements of criminal offences in breach of Community law protecting the environment needs to be established. In order to ensure its better and harmonised application in all Member States, this objective can better be achieved by the Community than at the level of the Member States (Article 5 2 EC).

2. The Legal Basis

The European Council held in Tampere on 15/16 October 1999 asked for efforts to agree on common definitions, incriminations and sanctions to be focused in the first instance on a limited number of sectors of particular relevance, including environmental crime.

The Justice and Home Affairs Council agreed on 28 September 2000 that such an acquis on environmental offences should be established. On 7 July 2000 [2], the European Parliament adopted a favourable opinion concerning an initiative of the Kingdom of Denmark for a framework decision on environmental crime [3].

[2] EP document n° A5-0178/2000.

[3] OJ C 39/4 of 11.2.2000.

The question of the appropriate legal basis has been discussed intensively within the Council Working Party on substantial criminal law and the Coordinating Committee established by Article 36 EU. Because the matter concerns both protection of the environment and judicial cooperation in criminal matters, the question was whether it has to be dealt with under the provisions of the EC- or the EU Treaty.

As explained in the Commission staff working paper of 7.02.2001 [4], the Commission takes the position that an acquis communautaire on environmental crime can and must be established by Community law. In particular, this is true for the definition of polluting activities which shall be subject to criminal sanctions and also for the Member States' general obligation to provide for criminal sanctions. Those matters fall into the Community competence according to Article 175 EC, because they are aiming at protection of the environment. In its Articles 47 and 29, the EU Treaty confers clear priority to Community law. Insofar, there is therefore no room for an instrument according to Article 34 of the EU-Treaty.

[4] SEC(2001)227.

3. Main Content of the Articles of the Proposal

a) Purpose and Scope of Application (Article 1 and 3)

The proposed draft directive shall only apply to activities which are in breach of Community law protecting the environment and/or rules adopted by Member States in order to comply with such Community law. Definitions of constituent elements of criminal acts are therefore to be read as corresponding definitions in existing Community law. For example, the term "discharge of waste oils" refers to Directive 75/439/EEC on the disposal of waste oils [5].

[5] OJ L 194/23 of 25.7.1995. See, in particular, Articles 1 and 4 of this Directive.

The proposal does not cover all activities regulated by Community law, but only important types of pollution which can be attributed to individuals or legal persons. For instance, the directive would not apply to pollution caused by diffuse sources, even if it is widely covered by Community law setting up quality objectives.

b) Criminal Offences (Article 3)

In line with the principle that an action by the Community shall not go beyond what is necessary to achieve the objectives of the Treaty (Article 5 3 EC), the proposal covers polluting activities which usually cause or are likely to cause significant deterioration of or substantial damage to the environment. When committed by intention or serious negligence, those activities must be considered a criminal offence.

Article 3 lists a number of breaches of obligations under Community environmental law and/or of national legal provisions which transpose these requirements into the national legal order. Only those obligations have been selected which constitute serious impairments of the environment. The fact that these activities continue to exist in parts of the Community is a strong indicator that existing sanctions do not always have the necessary deterrent effect.

For reasons of legal certainty, the Annex to the proposed directive sets out exhaustively the relevant Community provisions, which prohibit the activities described in Article 3. For all these cases, it is considered that, as a minimum, criminal sanctions are necessary in order to ensure a sufficient dissuasive effect throughout the Community. For the purposes of this directive, any future modification of the directives listed in the Annex will automatically apply to this directive. As regards future Community legislation, each text will regulate itself to which extent criminal sanctions shall have to be provided for.

Some of the activities listed in Article 3 have been prohibited per se by virtue of the different Community legislative provisions, regardless of whether there is evidence for a concrete harmful impact to the environment in a concrete, individual case. Community law considers such activities harmful or particularly dangerous to the environment. For this reason, these activities should also be considered criminal offences, as the risk for the environment lies in the activity as such, independently from an eventual damage that it causes.

The application of Community environmental law, which is to a large extent at the source of Member States' environmental law, is of considerable concern throughout the Community. As regards infringements for practical application, the environmental sector ranks first of all sectors which are monitored at Community level. The Commission will examine the setting up of a legal instrument to provide for criminal sanctions against unauthorised activities dealing with nuclear materials. This matter may have to be dealt with under the Treaty establishing the European Atomic Energy Community.

c) Sanctions, Participation and Instigation (Article 4)

In accordance with the principles of proportionality and subsidiarity, this Directive does not regulate questions of criminal investigations and prosecutions, nor questions of criminal procedure. It is up to the judicial authorities in the Member States to decide whether the offences according to Article 3 must be prosecuted in any case or whether they provide for possibilities to refrain from imposing criminal penalties in minor cases, where the impact on the environment is insignificant.

As concerns natural persons, the Directive would oblige Member States to provide for effective, dissuasive and proportionate criminal penalties against the defined breaches of Community law. In order to protect the environment effectively, it is important to include sanctions against complicity (participation and instigation) in the offences defined in Article 3. In serious cases, Member States would have to provide for the possibility of imprisonment. Insofar, they would have a scope of discretion in determining such serious cases.

As concerns legal persons, it is essential for effective enforcement of Community law protecting the environment that legal persons can be held liable and that sanctions against legal persons are taken throughout the Community. However, for some Member States it might be difficult to provide for criminal sanctions against legal persons without changing fundamental principles of their national legal systems. Therefore, Member States would be able to foresee sanctions other than of criminal nature, as long as they are effective, proportionate and dissuasive. For instance, they could impose non-criminal fines, judicial supervision, judicial winding up orders or exclusion from entitlement to public benefits or aid.

4. Nature of the Proposed Directive

The proposal sets a minimum standard of environmental protection through criminal law. According to Article 176 EC, Member States are free to maintain or to introduce more stringent protective measures. For instance, they may establish additional offences and/or additional types of sanctions or penalties. For instance, they might consider to provide for disqualification of natural persons from engaging in an activity requiring official authorisation or approval, of founding, managing or directing a company or a foundation..

5. Possible Complementary Measures under the Treaty on European Union

Beyond the rules of this directive, further steps might have to be taken under the EU-Treaty, with regard to improved judicial co-operation. On the basis of the current discussion in the Council following the initiative of the Kingdom of Denmark, it may be envisaged to set up in addition a framework decision according to Article 34(2) b EU. It could concern criminal jurisdiction, measures guaranteeing mutual extradition and/or coordination of prosecutions and investigations.

As concerns the constituent elements of criminal acts, such a framework decision could refer to the enclosed Community directive. In the light of Article 31(e) EU and of the action plan of the Council and the Commission on the establishment of an area of freedom, security and justice of 1998 [6], such an instrument might put particular accent on the area of organised crime and/or terrorism.

[6] OJ C 19 of 23.1.1999, point 46.

2001/0076(COD)

Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL On the Protection of the Environment through Criminal Law

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 [7],

[7] OJ C [...], [...], p. [...].

Having regard to the opinion of the Economic and Social Committee [8],

[8] OJ C [...], [...], p. [...].

Having regard to the opinion of the Committee of the Regions [9],

[9] OJ C [...], [...], p. [...].

Acting in accordance with the procedure laid down in Article 251 of the Treaty [10],

[10] OJ C [...], [...], p. [...].

Whereas:

(1) Under 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) Activities breaching Community law and/or rules adopted by Member States in order to comply with Community law should be subject to effective, dissuasive and proportionate sanctions at national level throughout the Community.

(4) Experience has shown that the existing systems of sanctions have not been sufficient to achieve complete compliance with Community law. 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 mechanism under civil law.

(5) Common rules on criminal sanctions would make it possible to use methods of investigation and assistance within and between Member States, which are more effective than the tools available under administrative co-operation.

(6) Entrusting to judicial authorities, rather than administrative authorities the task of imposing sanctions, entails giving responsibility for investigating and enforcing the respect of environmental regulations to authorities which are independent of those which grant exploitation licences and discharge authorisations.

(7) In order to achieve effective protection of the environment, there is particular need for more dissuasive sanctions for polluting activities which typically cause or are likely to cause significant deterioration of the environment.

(8) Therefore, those activities should be considered criminal offences throughout in the Community, when they are committed intentionally or with serious negligence, and should be subject to criminal penalties, involving in serious cases deprivation of liberty.

(9) Participation in and instigation of such activities should also be considered a criminal offence, in order to achieve effective protection of the environment. This is also true for failures to comply with a legal duty to act, because such failures can have the same effects as active behaviour and should therefore be subject to corresponding sanctions.

(10) Legal persons should also be subject to effective, dissuasive and proportionate sanctions throughout the Community, because breaches of Community law to a large extent are committed in the interest of legal persons or for their benefit.

(11) 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.

(12) 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 - Purpose

The purpose of this Directive is to ensure a more effective application of Community law on the protection of the environment by establishing throughout the Community a minimum set of criminal offences.

Article 2 - Definitions

For the purpose of this Directive

(a) "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.

(b) "activities" means active behaviour and failure to act, insofar as there is a legal duty to act.

Article 3 - Offences

Member States shall ensure that the following activities are criminal offences, when committed intentionally or with serious negligence, as far as they breach the rules of Community law protecting the environment as set out in the Annex and/or rules adopted by Member States in order to comply with such Community law:

(a) the discharge of hydrocarbons, waste oils or sewage sludge into water;

(b) the discharge, emission or introduction of a quantity of materials into air, soil or water and the treatment, disposal, storage, transport, export or import of hazardous waste;

(c) the discharge of waste on or into land or into water, including the operation of a landfill;

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

(e) the significant deterioration of a protected habitat;

(f) trade in ozone-depleting substances;

(g) the operation of a plant in which a dangerous activity is carried out or in which dangerous substances or preparations are stored or used.

Article 4 - Sanctions

Member States shall ensure that the offences referred to in Article 3, and the participation in or instigation of such offences are punishable by effective, proportionate and dissuasive sanctions.

a) As concerns natural persons, Member States shall provide for criminal penalties, involving in serious cases deprivation of liberty.

b) As concerns natural and legal persons, where appropriate, Member States shall provide for fines, exclusion from entitlement to public benefits or aid, temporary or permanent disqualification from the practice of commercial activities, placing under judicial supervision or judicial winding up orders.

Article 5 - Reporting

Every three years, Member States shall transmit information to the Commission on the implementation of this Directive in the form of a report. Based on these reports, the Commission shall submit a Community report to the European Parliament and the Council.

Article 6 - Transposition

(1) Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [1 September 2003] at the latest. They shall forthwith inform the Commission thereof.

(2) 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. The methods of making such a reference shall be laid down by the Member States.

(3) Member States shall communicate to the Commission the texts of the provisions of national law which they adopt in the field covered by this Directive.

Article 7 - Entry into force

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

Article 8 - Addressees

This Directive is addressed to the Member States.

Done at Brussels, [...]

For the European Parliament For the Council

The President The President

[...] [...]

ANNEX

List of Community law provisions protecting the environment, referred to in Article 3 [11]

[11] The legislation referred to hereafter includes the amendments of the legislation which have been adopted until 1 March 2001.

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 [12] ;

[12] OJ 1970, L 76, p.1

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 [13] ;

[13] OJ 1972, L 190, p.1

Council Directive 75/439/EEC of 16 June 1975 on the disposal of waste oils [14] ;

[14] OJ 1975, L 194, p.23

Council Directive 75/442/EEC of 15 July 1975on waste [15] ;

[15] OJ 1975, L 194, p.39

Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community [16] ;

[16] OJ 1976, L 129, p.23

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 [17] ;

[17] OJ 1976, L 262, p.201

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 [18] ;

[18] OJ 1977, L 220, p.38

Council Directive 78/176/EEC 20 February 1978 on waste from the titanium dioxide industry [19] ;

[19] OJ 1978, L 54, p.19

Council Directive 79/117 of 21 December 1978 prohibiting the placing on the market and use of plant protection products containing certain active substances [20] ;

[20] OJ 1979, L 33, p.36

Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds [21] ;

[21] OJ 1979, L 103, p.1

Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances [22] ;

[22] OJ 1980, L 20, p.43

Regulation (EEC) No 348/81 of 20 January 1981 on common rules for imports of whales or other cetacean products [23] ;

[23] OJ 1981, L 39, p.1

Council Directive 82/176/EEC of 22 March 1982 on limit values and quality objectives for mercury discharges by the chlor-alkali electrolysis industry [24] ;

[24] OJ 1982, L 81, p.29

Council Directive 83/129EEC of 28 March 1983 concerning the importation into Member States of skins of certain seal pups and products derived therefrom [25] ;

[25] OJ 1983, L 91, p.30

Council Directive 83/513/EEC of 26 September 1983 on limit values and quality objectives for cadmium discharges [26] ;

[26] OJ 1983, L 291, p.1

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 [27] ;

[27] OJ 1984, L 74, p.49

Council Directive 84/360/EEC of 28 June 1984 on the combating of air pollution from industrial plants [28] ;

[28] OJ 1984, L 188, p.20

Council Directive 84/491/EEC of 9 October 1984 on limit values and quality objectives for discharges of hexachlorocyclohexane [29] ;

[29] OJ 1994, L 274, p.11

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 [30] ;

[30] OJ 1986, L 181, p.6

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 [31] ;

[31] OJ 1986, L 181, p.16

Council Directive 88/77/EEC of 3 December 1987 on the approximation of the laws of the Member States relating to the measures to be taken against the emission of gaseous pollutants from diesel engines for use in vehicles [32] ;

[32] OJ 1988, L 36, p.33

Council Directive 88/609/EEC of 24 November 1988 on the limitation of emissions of certain pollutants into the air from large combustion plants [33] ;

[33] OJ 1988, L 336, p.1

Council Directive 89/369/EEC of 8 June 1989 on the prevention of air pollution from new municipal waste incineration plants [34] ;

[34] OJ 1989, L 163, p.32

Council Directive 89/429/EEC of 21 June 1989 on the reduction of air pollution from existing municipal waste incineration plants [35] ;

[35] OJ 1989, L 203, p.50

Council Directive 90/219EEC of 23 April 1990 on the contained use of genetically modified micro-organisms [36] ;

[36] OJ 1990, L 117, p.1

Council Directive 90/220/EEC of 23 April 1990 on the deliberate release into the environment of genetically modified oorganisms [37] ;

[37] OJ 1990, L 117, p.15

Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment [38] ;

[38] OJ 1991, L 135, p.40

Council Directive 91/689/EEC of 12 December 1991 on hazardous waste [39] ;

[39] OJ 1991, L 377, p.20

Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora [40] ;

[40] OJ 1992, L 206, p.7

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 [41] ;

[41] OJ 1992, L 409, p.11

Council Regulation (EEC) 259/93 of 1 February 1993 on the supervision and control of shipments of waste within ; into and out of the European Community [42] ;

[42] OJ 1993, L 30, p.1

Council Directive 93/76/EEC of 13 September 1993 to limit carbon dioxide emissions by improving energy efficiency(SAVE) [43] ;

[43] OJ 1993, L 237, p.28

Directive 94/12/EC of the European Parliament and the Council of 23 March 1994 relating to measures to be taken against air pollution by emissions from motor vehicles and amending Directive 70/220/EEC [44] ;

[44] OJ 1994, L 100, p.42

Council Directive 94/63/EC of 20 December 1993 on the control of volatile organic compound(VOC) emissions resulting from the storage of petrol and its distribution from terminals to service stations [45] ;

[45] OJ 1994, L 365, p.24

Council Directive 94/67/EC of 16 December 1994 on the incineration of hazardous waste [46] ;

[46] OJ 1997, L 365, p.34

Council Directive 95/21/EC of 19 June 1995 concerning the enforcement, in respect of shipping using Community ports and sailing in the waters under the jurisdiction of the Member States, of international standards for ship safety, pollution prevention and shipboard living and working conditions ( port state control) [47] ;

[47] OJ 1995, L 157, p.1

Council Directive 96/59/EC of 16 September 1996 on the disposal of polychlorinated biphenyls and polychlorinated terphenyls [48] ;

[48] OJ 1996, L 243, p.31

Council Directive 96/61/EC 24 September 1996 concerning integrated pollution prevention and control [49] ;

[49] OJ 1996, L 257, p.26

Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances [50] ;

[50] OJ 1997, L 10, p.13

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 [51] ;

[51] OJ 1997, L 59, p.1

Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein [52] ;

[52] OJ 1997, L 61, p.1

Directive 98/69/EC of the European Parliament and of the Council of 13 October 1998 relating to measures to be taken against air pollution by emissions from motor vehicles and amending Council Directive 70/220/EEC [53] ;

[53] OJ 1998, L 350, p.1

Directive 98/70/EC of the European Parliament and of the Council of 13 October 1998 relating to the quality of petyrol and diesel fuels and amending Council Directive 93/12 [54] ;

[54] OJ 1998, L 350, p.58

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 [55] ;

[55] OJ 1999, L 85, p.1

Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste [56] ;

[56] OJ 1999, L 182, p.1

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 [57] ;

[57] OJ 1999, L 121, p.13

Directive 1999/96/EC of the European Parliament and of the Council of 13 December 1998 on the approximation of the laws of the Member States relating to 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 vehicvles and amending Council Directive 88/77 [58] ;

[58] OJ 2000, L 44, p.1

Directive 2000/53/EC of the European Parliament and of the Council of 18 September 2000 on end of life vehicles [59] ;

[59] OJ 2000, L 269, p.34

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 [60] ;

[60] OJ 2000, L 332, p.81

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 [61] ;

[61] OJ 2000, L 327, p.1

Regulation (EC) No 2037/2000 of the European Parliament and of the Council of 29 June 2000 on substances that deplete the ozone layer [62] ;

[62] OJ 2000, L 244, p.1