Initiative of the Kingdom of Denmark with a view to adopting a Council framework Decision on combating serious environmental crime
Date: 2000-02-11
Institutions: Denmark
Subjects: Denmark, administrative sanction, degradation of the environment, environmental offence, offence

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Official Journal of the European Communities

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II

(Preparatory Acts pursuant to Title VI of the Treaty on European Union)

COUNCIL

Initiative of the Kingdom of Denmark with a view to adopting a Council framework Decision on
combating serious environmental crime

(2000/C 39/05)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in
particular Article 31 and Article 34(2)(b) thereof,

Having regard to the initiative by the Kingdom of Denmark,

(b) storage or disposal of waste or similar substances resulting
in substantial damage to the environment or presenting an
obvious risk thereof.

2.

(cid:145)Aggravating circumstances(cid:146) shall mean in particular that:

Having regard to the opinion of the European Parliament,

(a) The act or omission cannot be considered part of

the
normal, everyday operation of an otherwise lawful activity;

Whereas:

(1) The Council

is concerned at

the increasing scale and

frequent cross-border effects of environmental crime.

(b) the offence is major in scale, or

(c)

financial gain was obtained or sought.

(2) Serious

environmental

to the
environment and serious environmental offences therefore
should be met by a tough response.

crime poses

threat

a

(3) Serious environmental crime is a problem jointly faced by
Member States, which should therefore take concerted
action to protect the environmental under criminal law.

(4) Combating serious environmental crime requires effective
investigation and prosecution in Member States and
justice and administrative coop-
effective police, criminal
eration between Member States.

(5) Exchanges of information on serious environmental crime

between Member States should be stepped up.

(6) On 9 September 1998 the Council of Europe adopted a
Convention on the protection of the environment through
criminal law ((cid:145)the 1998 Convention(cid:146)),

In assessing whether the offence is major in scale, significance
shall be attached to the following factors among others:

(a) whether such behaviour is more systematic or persistent,
environmental

showing deliberate disregard for basic
considerations;

(b) whether the offence committed was planned in advance, or

(c) whether an attempt was made to conceal the pollution or
thereby increasing the damage or danger, as
storage,
clean-up or preventive measures were not taken or were
taken only at a very late stage.

Article 2

HAS ADOPTED THIS FRAMEWORK DECISION:

1. Member States shall take measures to ensure that:

Article 1

1.
For the purposes of this Framework Decision, the term
(cid:145)serious environmental crime(cid:146) shall be defined as acts or
omissions, under aggravating circumstances and in breach of
national environmental legislation, consisting in:

(a) serious environmental crime is punishable under criminal
law in a way which is effective and commensurate with the
offence, acts as a deterrent and may entail extradition;

(b) legal persons can be held criminally liable, in accordance

with national law, for serious environmental crime.

(a) pollution of air, water,

resulting in
substantial damage to the environment or presenting an
obvious risk thereof, or

soil or

subsoil

2. Member States shall take measures to ensure that:

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(a)

law, to seize and
it is possible, as specified in national
confiscate equipment and proceeds, or assets of equivalent
value, in connection with serious environmental crime;

(c) by a legal person based on its territory.

(b) serious environmental crime is covered by national rules
designed to implement the Council of Europe Convention
of 8 November 1990 on laundering, search, seizure and
confiscation of the proceeds from crime;

(c) anyone convicted of serious environmental crime may be
precluded or disqualified from engaging in an activity
requiring official authorisation or approval, where the
facts established show an obvious risk that the situation
or activity might be abused;

(d) anyone convicted of serious environmental crime may,
so dictate, be disqualified
where special circumstances
from the right to engage in another activity or from the
right to be a founder, manager of director of a limited-
liability company, a company or association requiring
the
special official approval or a foundation, under
conditions in (c) above, and

(e) serious

environmental

covered by effective
compensation rules and rules on environmental rehabili-
tation under national law.

crime

is

Article 3

Each Member State shall take the necessary measures to ensure
that, in addition to the ordinary use of coercive measures such
as searching and seizure, there are powers and methods of
inquiry available such that law enforcement authorities can
effectively investigate and prosecute serious environmental
crime, while observing suitable legal safeguards of due process.

Article 4

Each Member State shall ensure that its authorities have
crime
serious

environmental

1.
jurisdiction in respect of
committed:

(a)

in whole or in part on its territory, including on vessels
registered in that Member State;

(b) by a natural person who is a national of or permanently

resident in that Member State;

2. Where the criminal offence has been committed on the
territory of another State, the national authorities’ jurisdiction
in the cases referred to in paragraph 1(b) and (c) may be
conditional upon the matter also constituting a criminal
offence under the legislation applicable in that other State.

3.
Each Member State shall ensure that its authorities have
jurisdiction in respect of serious environmental crime affecting
or intended to affect its territory.

Article 5

Each Member States shall
take the necessary measures to
ensure tha efforts by the competent national authorities in
order to combat serious environmental crime are appropriately
coordinated. Depending on the administrative structure and
legal system of the Member State in question, such national,
regional or local coordination may, for instance, involve minis-
tries, the public prosecution service, the police and environ-
mental authorities.

Article 6

1. Member States shall cooperate as extensively as possible
in investigating and prosecuting serious environmental crime.

2. Member States which have entered reservations or made
declarations pursuant to Article 5 of the European Convention
of 20 April 1959 on mutual assistance in criminal matters shall
consider whether such reservations or declarations impede
effective cooperation with other Member States in combating
serious environmental crime and, if so, shall limit the scope of
such reservations or declarations in relation to other Member
States.

3. Member States shall ensure,
in accordance with the
relevant agreements, conventions and other instruments, that
they expedite the handling of letters rogatory regarding serious
environmental crime and keep the requesting State informed of
progress in case,
including any problems in processing the
letters rogatory.

4. Member States shall, where relevant, take the necessary
measures for letters rogatory to be forwarded directly between
the competent authorities at local level.

Article 7

in accordance with national

1. Member States shall assist one another as extensively as
possible,
law and international
conventions and agreements,
in exchanging information on
serious environmental crime, including any information of an
administrative nature or coming under administrative auth-
orities.

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Each Member State shall unsolicited, in accordance with
2.
law, pass on to another Member State specific
national
information on serious
it
environmental
considers the supply of such information appropriate for the
opening or conduct of a criminal investigation or prosecution
in the recipient State.

crime, where

3.
Each Member State shall pass on forthwith to another
Member State, without undue delay, such information on
serious environmental crime as is necessary in order
for
clean-up or preventive measures to be taken in the Member
State in question or as otherwise necessary in order to secure
evidence or arrest in connection with serious environmental
crime. According to the circumstances,
information may be
passed on via the national contact points designated pursuant
to Article 9.

Article 8

1.
Each Member State shall ensure that criminal proceedings
arising from serious environmental crime can be transferred to
another Member State in accordance with the principles laid
down in the European Convention of 15 May 1972 on the
transfer of proceedings in criminal matters.

2.
Each Member State shall ensure that criminal penalties
can be enforced in accordance with the principles laid down
in the European Convention of 28 May 1970 on the inter-
national validity of criminal judgments.

Article 9

Each Member State shall designate one or more contact
1.
points for the collection and exchanging with other Member
States of information on serious environmental crime.

is not

itself able to reply to an
Where a contact point
application or meet a request from another Member State, it
shall be empowered to pass the application or request on the
the proper authority in the Member State in question. At least
one contact point
in each Member State shall be manned
around the clock.

2.
The General Secretariat of the Council shall prepare and
keep up to date a list of individual Member States’ contact
points. The list shall be circulated to all Member States.
Should Europol, in order to achieve the objectives in Article
2(1) of the Europol Convention, be assigned responsibility for
dealing with environmental crime, this ask shall be transferred
to Europol.

Should Europol, in order to fulfil the objectives in Article
2.
2(1) of the Europol Convention, be assigned responsibility for
dealing with environmental crime,
the task referred to in
paragraph 1 shall be transferred to Europol.

Article 11

1. Member States
inclusion in the register to the keeper thereof.

submit

shall

their contributions

for

The keeper of the register shall draw up the register on

2.
the basis of Member States’ contributions.

shall

The keeper

3.
that any amendments or
additions to the register on the basis of further contributions
from Member States are duly included in it and that Member
States are notified of amendments and additions.

ensure

Article 12

1.
Each Member State shall supply for the purpose of the
register information on special expertise, skills or know-how
which it has built up in combating serious environmental
crime and which it considers should be made available to all
Member States.

shall at

2. Member States’ contributions
the very least
furnish a sufficiently detailed description of the various kinds
of special expertise, skills or know-how in order to provide the
appropriate bodies in the Member States with a basis on which
in
to assess whether
conducting their operations to combat serious environmental
crime. Contributions shall also specify how the source of the
expertise can be speedily contacted.

information is of

relevance

that

3. Member
States
contributions updated where necessary.

shall

be

responsible

for

having

States may

4. Member
further
at
contributions included or ask for contributions to be deleted
from the register.

have

time

any

5.
The register may not include any personal data apart
from the names and contact details required in order for the
scheme to work.

Article 10

Article 13

The General Secretariat of

1.
the Council, hereinafter
referred to as (cid:145)the keeper of the register(cid:146), shall take charge of
preparing, keeping and supplying a register of special skills or
know-how with regard to combating serious environmental
crime, hereinafter referred to as (cid:145)the register(cid:146).

1.
Each Member States shall hold a copy of the register or
otherwise have access to the register. The relevant bodies in a
Member State that wish to make use of special expertise,
know-how or skills listed in the register shall
themselves
contact the Member State which included the information.

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The question of

terms and conditions for the use of
2.
special expertise, know-how and skills listed in the register
shall be settled directly between the Member States concerned,
there being under no circumstances any entitlement to their
use.

2. Member States shall transmit to the General Secretariat of
the Council the text of the provisions transposing into their
law the obligations imposed on them under this
national
framework Decision. On the basis of
this information the
Council shall assess before 30 June 2001 whether Member
States have complied with this framework Decision.

Article 14

Each Member States shall ensure that,
in accordance with
national law, it takes the necessary steps as soon as possible
and by 1 January 2000 to sign the 1998 Convention. Each
Member State shall ensure that it has placed before its legis-
lature by 1 January 2001 proposals for ratification of the 1998
Convention. In ratifying the 1998 Convention, Member States
shall as far as possible ensure that they do not enter any reser-
vations in respect of it.

Article 15

1. Member States shall
take the necessary measures to
comply with the provisions of this framework Decision by
the end of 2000.

Article 16

This Framework Decision shall enter into force on the date of
its publication in the Official Journal of the European Commun-
ities.

Done at . . .

For the Council

. . .

The President