Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law
Date: 2003-01-27
Institutions: Council of the European Union
Subjects: criminal law, environmental law, environmental protection, legal person, offence, penalty

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Official Journal of the European Union

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

COUNCIL FRAMEWORK DECISION 2003/80/JHA

of 27 January 2003

on the protection of the environment through criminal law

THE COUNCIL OF THE EUROPEAN UNION,

(7)

Having regard to the Treaty on European Union, and in parti-
cular Article 29, Article 31(e) and Article 34(2)(b) thereof,

Having regard to the initiative of the Kingdom of Denmark (1),

Having regard to the opinions of the European Parliament (2),

Whereas:

(1)

(2)

(3)

(4)

(5)

(6)

The Union is concerned at the rise in environmental
increasingly
offences
extending beyond the borders of the States in which the
offences are committed.

effects, which are

and their

Such offences pose a threat to the environment and
therefore call for a tough response.

Environmental offences are a problem jointly faced by
Member States, which should therefore take concerted
action to protect the environment under criminal law (3).

The European Commission has submitted in March
2001 a proposal for a Directive of the European Parlia-
ment and the Council concerning the protection of the
environment by criminal law (4), based on Article 175(1)
of the Treaty establishing the European Community.

The Council considered it appropriate to incorporate
into the present Framework decision a number of
substantive provisions contained in the proposed Direc-
tive,
in particular those defining the conduct which
Member States have to establish as criminal offences
under their domestic law.

The European Parliament delivered its opinion on the
proposed Directive on 9 April 2002. The European
Commission submitted in October 2002 an amended
proposal for a Directive pursuant to Article 250(2) of
the Treaty establishing the European Community. The
Council did not consider it appropriate to modify the
present Framework Decision on that basis.

The Council has considered this proposal but has come
to the conclusion that the majority required for its adop-
tion by the Council can not be obtained. The said
majority considered that the proposal went beyond the
powers attributed to the Community by the Treaty
the
establishing the European Community and that
objectives could be reached by adopting a Framework-
Decision on the basis of Title VI of
the Treaty on
European Union. The Council also considered that the
present Framework Decision, based on Article 34 of the
Treaty on European Union, is a correct instrument to
impose on the member States the obligation to provide
for criminal sanctions. The amended proposal submitted
by the Commission was not of a nature to allow the
Council to change its position in this respect.

Not only physical persons but also legal persons should
be held liable for environmental offences.

Member States should establish wide-ranging jurisdiction
with respect to the said offences in such a way as to
avoid that physical or legal persons would escape prose-
the offence was not
cution by the simple fact
committed in their territory.

that

(8)

(9)

(10) On 4 November 1998 the Council of Europe adopted a
the environment
Convention on the protection of
through criminal law, which has been taken account of
in the provisions of the present instrument,

HAS ADOPTED THIS FRAMEWORK DECISION:

Article 1

Definitions

For the purposes of this Framework Decision

(1) OJ C 39, 11.2.2000, p. 4.
(2) Opinions delivered on 7 July 2000 (OJ C 121, 24.4.2001, p. 494)
and on 9 April 2002 (not yet published in the Official Journal).

(3) See also the Annex.
(4) OJ C 180 E, 26.6.2001, p. 238.

(a) ‘unlawful’ means infringing a law, an administrative regula-
tion or a decision taken by a competent authority,
including those giving effect
to binding provisions of
Community law aiming at the protection of the environ-
ment;

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(b) ‘water’ means all kinds of groundwater and surface water

including the water of lakes, rivers, oceans and seas;

Article 4

(c) ‘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.

Participation and instigation

Each Member State shall take the necessary measures to ensure
that participating in or instigating the conduct referred to in
Article 2 is punishable.

Article 2

Intentional offences

Each Member State shall take the necessary measures to estab-
lish as criminal offences under its domestic law:

(a) the discharge, emission or introduction of a quantity of
substances or ionising radiation into air, soil or water
which causes death or serious injury to any person;

(b) the unlawful discharge, emission or introduction of a quan-
tity of substances or ionising radiation into air, soil or
water which causes or is likely to cause their lasting or
substantial deterioration or death or serious injury to any
person or substantial damage to protected monuments,
other protected objects, property, animals or plants;

(c) the unlawful disposal, treatment, 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;

(d) the unlawful operation of a plant in which a dangerous
activity is carried out 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;

(e) the unlawful manufacture, treatment, storage, use, trans-
port, export or import of nuclear materials or other hazar-
dous 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 unlawful possession,

taking, damaging, killing or
trading of or in protected wild fauna and flora species or
parts thereof, at
least where they are threatened with
extinction as defined under national law;

Article 5

Penalties

1.
Each Member State shall take the necessary measures to
ensure that the conduct referred to in Articles 2 and 3 is
punishable by effective, proportionate and dissuasive penalties
including, at least in serious cases, penalties involving depriva-
tion of liberty which can give rise to extradition.

2.
The criminal penalties provided for in paragraph 1 may
be accompanied by other penalties or measures, in particular
the disqualification for a natural person from engaging in an
activity
approval, or
founding, managing or directing a company or a foundation,
where the facts having led to his or her conviction show an
obvious risk that the same kind of criminal activity may be
pursued.

requiring official

authorisation or

Article 6

Liability of legal persons

Each Member State shall take the necessary measures to
1.
ensure that legal persons can be held liable for conduct referred
to in Articles 2 and 3 committed for their benefit by any
person, acting either individually or as part of an organ of the
legal person, who has a leading position within the legal
person, based on

(a) a power of representation of the legal person, or

(b) an authority to take decisions on behalf of the legal person,

(g) the unlawful trade in ozone-depleting substances;

or

when committed intentionally.

(c) an authority to exercise control within the legal person,

Article 3

Negligent offences

Each Member State shall take the necessary measures to estab-
lish as criminal offences under
its domestic law, when
committed with negligence, or at least serious negligence, the
offences enumerated in Article 2.

as well as for the involvement as accessories or instigators in
the commission of conduct referred to in Article 2.

Apart from the cases already provided for in paragraph 1,
2.
each Member State shall take the necessary measures to ensure
that a legal person can be held liable where the lack of supervi-
sion or control by a person referred to in paragraph 1 has
made possible the commission referred to in Articles 2 and 3
for the benefit of that legal person by a person under its
authority.

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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 conduct referred
to in Articles 2 and 3.

Article 7

Sanctions for legal persons

Each Member State shall take the necessary measures to ensure
that a legal person held liable pursuant to Article 6 is punish-
able by effective, proportionate and dissuasive sanctions, which
shall include criminal or non-criminal fines and may include
other sanctions such as:

(a) exclusion from entitlement to public benefits or aid;

(b) temporary or permanent disqualification from the practice

of industrial or commercial activities;

(c) placing under judicial supervision;

(d) a judicial winding-up order;

(e) the obligation to adopt specific measures in order to avoid
the consequences of conduct such as that on which the
criminal liability was founded.

Article 8

Jurisdiction

1.
Each Member State shall take the necessary measures to
establish its jurisdiction with regard to the offences referred to
in Articles 2 and 3 where the offence has been committed:

(a) fully or in part in its territory, even if the effects of the

offence occur entirely elsewhere;

(b) on board a ship or an aircraft registered in it or flying its

flag;

(c) for the benefit of legal persons with a registered office in its

territory;

(d) by one of its nationals if the offence is punishable under
criminal law where it was committed or if the place where
it was committed does not fall under any territorial jurisdic-
tion.

Subject to the provisions of Article 9, any Member State
2.
may decide that it will not apply, or that it will apply only in
specific cases or circumstances, the jurisdiction rule set out in:

(a) paragraph 1(c);

(b) paragraph 1(d).

Article 9

Extradition and prosecution

1.

(a) Any Member State which, under its law, does not yet
extradite its own nationals shall
take the necessary
measures to establish its jurisdiction over the offences
provided for in Articles 2 and 3 when committed by its
own nationals outside its territory.

(b) Each Member State shall, when one of its nationals is
alleged to have committed in another Member State an
offence involving the conduct described in Articles 2
and 3, and it does not yet extradite that person to that
other Member State solely on the ground of his nation-
ality, submit the case to its competent authorities for
the purpose of prosecution if appropriate. In order to
enable prosecution to take place, the files, information
and exhibits relating to the offence shall be transmitted
in accordance with the procedures laid down in Article
6(2) of the European Convention on Extradition. The
requesting Member State shall be informed of the prose-
cution initiated and of its outcome.

For the purpose of this Article, a national of a Member
2.
State shall be construed in accordance with any declaration
made by that State under Article 6(1)(b) and (c) of
the
European Convention on Extradition of 13 December 1957.

Article 10

Implementation

1. Member States shall adopt
the measures necessary to
comply with the provisions of this Framework Decision before
27 January 2005.

2.
Before 27 April 2005, Member States shall communicate
to the General Secretariat of the Council and to the Commis-
sion the texts of the provisions transposing into their national
law the obligations imposed on them by this Framework Deci-
sion. On the basis of that information and a written report by
the Commission, the Council shall, no later than 27 January
2006, check the extent to which Member States have taken the
measures necessary to comply with this Framework Decision.

Article 11

Territorial application

This Framework Decision shall apply to Gibraltar.

Article 12

Effective date

This Framework Decision shall take effect on the day of its
publication in the Official Journal of the European Union.

Done at Brussels, 27 January 2003.

For the Council

The President

G. PAPANDREOU

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The Council takes note that Austria intends to comply with Article 2(f) and (g) as far as minor cases are concerned and
Article 3 by providing for effective, proportionate and dissuasive sanctions under administrative criminal law.

ANNEX