Opinion of the European Economic and Social Committee on the 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 — 2007/0022 (COD)
Date: 2007-09-26
Institutions: European Economic and Social Committee
Subjects: approximation of laws, criminal law, criminal liability, drafting of EU law, environmental protection

15.1.2008

EN

Official Journal of the European Union

C 10/47

Opinion of the European Economic and Social Committee on the ‘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 — 2007/0022 (COD)

(2008/C 10/12)

On 28 February 2007 the Council decided to consult the European Economic and Social Committee, under
Article 174 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for Agriculture, Rural Development and the Environment, which was responsible for preparing
the Committee's work on the subject, adopted its opinion on 6 September 2007. The rapporteur was
Mr Retureau.

At its 438th plenary session, held on 26 and 27 September 2007 (meeting of 26 September), the European
Economic and Social Committee adopted the following opinion by 149 votes to three with ten abstentions.

1. Conclusions

Once again,

the Committee welcomes the fact

1.1
that
serious environmental offences may be subject to criminal sanc-
tions. It restates that, in its view, the Commission should have
the power to compel Member States to apply proportionate and
dissuasive criminal sanctions when necessary in order to ensure
the application of Community policies, especially in the field of
protecting the environment against serious offences: such sanc-
tions should be applied as part of the criminal justice system of
each Member State. Lastly, the Commission should have the
power to supervise the effectiveness of the criminal law applied
in the field in question, and should actively exercise this power.

1.6
The Committee would like the obvious political aspects
raised by the division of competences, and the role that it
wishes the Parliament to play in all legislation touching upon
criminal matters, to be covered by more precise Court of Justice
case-law, by an interinstitutional agreement, or by a reform that
could be built into the reform of the Treaties by the current
IGC. It would tend to prefer this latter option, given the urgent
need to adopt effective sanctions to protect the environment.

2. Introduction

The proposal for a directive targets for example offences
1.2
committed in the framework of criminal organisations (which it
views as an aggravating circumstance). The Committee is
convinced that such actions should be subject to sanctions,
including an approximation of the criminal
law rules in the
the Treaty and case-law are quite clear
Member States, but
regarding the repression of acts committed in the framework of
criminal organisations: approximation of
the Member States'
rules of criminal law can in principle only take place under the
provisions on police and judicial cooperation in criminal
matters as laid down in Title VI of the Treaty on European
Union (TEU), and not under the EC Treaty (TEC) as proposed by
the Commission.

The Committee also wonders if

1.3
the stipulation that
certain offences are to be punished by imprisonment does not
exceed the powers under the first pillar, constituting interference
in the choice of the most appropriate sanctions which should in
principle remain a competence of the Member States.

2.1
In 1998, the Council of Europe opened a Convention on
the Protection of the Environment through Criminal Law for
signature. This was significant because it represented the first
international convention to criminalise acts causing or likely to
cause environment damage. However, Germany followed by
France and the UK expressed its reluctance to ratify the Conven-
tion. As a result, Denmark and the Commission both presented
separate initiatives aiming to protect the environment under
criminal law.

The Council's

2.2
framework decision, adopted by the
Council at Denmark's proposal, and against the opinion and
proposals of the Commission, defined a number of environ-
mental offences, for which the Member States were asked to
introduce criminal sanctions. Its provisions were based largely
on those of the Council of Europe's Convention on the Protec-
tion of the Environment through Criminal Law of 4 November
1998 and which has, to date, been signed by ten Member
States.

1.4
It is of the view that Community competence should be
restricted to defining obligations and stipulating that criminal
sanctions are to apply. A framework decision based on Title VI
of the Treaty on European Union would be needed in order to
go further and lay down a system of penalties.

1.5
By the same token, the Committee would question if
Community law can extend to imposing a maximum level of
sanctions.

It believed Article 175(1) of

The Commission opposed the legal basis chosen on
2.3
various Council bodies.
the
EC Treaty to be the right legal basis in this regard and, on
15 March 2001, had presented a Proposal for a Directive of the
European Parliament and of the Council on the Protection of
the Environment through Criminal Law based on this Article (1),
although Article 174 of the EC Treaty conferred no powers on
the Community in criminal matters.

(1) OJ C 180, p. 238.

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2.4
On 9 April 2002, the European Parliament adopted a
report on both the proposed directive and the draft framework
decision. It agreed with the approach advocated by the Commis-
sion at that time (a directive and a framework decision).

involved. It therefore considers that steps should be taken to
ensure a minimum level of harmonisation of the criminal law
applicable to serious environmental offences, whether resulting
from acts with criminal intent or serious negligence.

its draft

The Council, however, adopted not

the Treaty on European Union which,

2.5
the directive and
framework decision proposed by the Commission, but an
framework decision, based on
amended version of
Article 34 of
in its
opinion, represented an appropriate instrument to oblige the
Member States to introduce criminal sanctions. It emphasised
that most Member States were hostile to recognising criminal
powers on the part of the Community, and were convinced that
such matters came under the provisions for police and judicial
cooperation in criminal matters set out in Title VI of the Treaty
on European Union.

In an earlier opinion (5),

the EESC supported the
2.10
Commission's initial proposal for a directive, and its proposal
for a framework decision, under which the Member States were
to adopt effective, proportionate and dissuasive criminal sanc-
tions to combat offences against the environment. The action
for annulment brought by the Commission and supported by
the European Parliament against the Council's framework deci-
sion was also supported by the Committee, although in a preli-
minary procedural decision, the Court ruled out any interven-
tion by the Committee.

2.11

The purpose is therefore to assess whether:

The case was brought before the Court of Justice, which

2.6
issued a judgment on 13 September 2005 (2).

— the new proposals tally with the framework established by

the Court,

The European Parliament coincides with the Court and
2.7
in considering that there is no general
the Advocate General
law, but in certain
Community power to harmonise criminal
clearly defined fields, such as the present one of environmental
protection, the Community could oblige the Member States to
prescribe criminal sanctions.

For its part, the Commission has interpreted the judgment very
broadly, granting itself wide-ranging powers in many Com-
munity policies other than the environment.

2.8
Following the CJEC judgment annulling the framework
decision, the Commission has presented a new proposal for a
directive. The Court judged that, although as a general rule,
law nor the rules of criminal procedure fall
neither criminal
within the Community's competence, this does not prevent the
Community legislature, when the application of effective,
proportionate and dissuasive criminal penalties by the compe-
tent national authorities is an essential measure for combating
serious environmental offences, from ‘taking measures which
relate to the criminal law’ of the Member States when they are
necessary in order to ensure that Community legislation on
environmental protection is fully effective (3).The Committee
recalls that the Court emphasised the fact that in principle, the
Community had no competence in criminal matters, which the
Treaty on European Union sees as a sovereign sphere of the
Member States. The wording quoted above — ‘measures which
relate to the criminal law’ — is so vague as to be open to all
kinds of interpretations, often contradictory.

2.9
This judgment underpins the Commission's presentation
of an amended proposal for a directive (4), which contains both
incriminations and sanctions, as it believes that
the purely
administrative sanctions or certain criminal sanctions applicable
in some countries are too disparate or too weak to have an
adequate deterrent effect, particularly where organised crime is

(2) Judgment of 13 September 2005, Case C-176/03.
(3) Point 48 of the judgment.
(4) Proposal for a Directive (COM(2007) 51 final of 9.2.2007.

— the proposed sanctions are commensurate with the aim of
ensuring the effectiveness of environmental law and a higher
level of harmonisation of national laws (obligation to intro-
duce sufficiently dissuasive criminal sanctions in order to
guarantee the effectiveness of applicable legislation).

2.12
The wide-ranging debate which has sprung up since the
judgment at policy level and with regard to legal opinion on the
‘constitutionality’ or otherwise of extending the Community's
competences to criminal matters for the implementation of
Community policies, and debate on the precedence of
the
EC Treaty over the Treaty on European Union in such areas, will
nevertheless have to be considered by the Committee (6) with
regard to the numerous legislative proposals that the Commis-
sion envisages revising, as it has recently done in the field of
intellectual property (7), for example.

2.13 Many Member States challenge the rather broad inter-
pretation that the Commission would make of the judgment,
with regard both to the content of
the new environmental
proposals and to the introduction of a minimum penal element
for the effective implementation of all Community policies (and
not only of a clearly cross-sectoral policy, such as the environ-
ment), although in any case nothing is explicitly laid down in
the EC Treaty. According to these Member States, use of the
Court's case-law must be restricted to environmental policy on
account of the cross-sectoral and cross-border nature of the
environment, and of the wording of the Court's judgment, and
must not be taken by the Commission as a blank cheque for all
Community policies.

In the

particular

2.14
the
case
Committee will limit its comments to the proposals concerning
the environment, the only area explicitly covered by the Court's
judgment.

examination,

under

(5) Opinion on the European Economic and Social Committee on the
Proposal for a Directive of the European Parliament and of the Council on
access to justice in environmental matters (COM(2003) 624 final) (OJ C 117
of 30.4.2004, p. 55, for the implementation of the Århus Convention.
(6) It should be noted that the mandate for the reform of the treaties puts
the revised EC Treaty and Treaty on European Union on an equal
footing.

(7) CESE 981/2007 (not yet published in the OJ).

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2.15
In brief, the Commission has decided to propose incri-
minations and criminal sanctions, in the form of a minimum
set of punishments, for ‘environmental crime’ with regard to
any natural or legal person who commits, abets or instigates
serious environmental offences, or who gives rise to such
offences through serious negligence. Imprisonment and/or fines,
together with additional sanctions (Article 5), are specified, and
may be extended or supplemented by additional incriminations
and sanctions under national law.

3. The Committee's comments

3.1
The Committee is disappointed that penal sanctions in
the environmental sphere, the principle and level of which it
supports, as it did the Commission's proposal for a directive
and for a framework decision in 2005, should have been
delayed for years and may still be further delayed as a result of
disagreement between the institutions on the division of compe-
tences in the EC Treaty and Treaty on European Union. It hopes
that a political solution will rapidly be devised by the institu-
tions, inter alia for the involvement of Parliament, and that the
treaties can be clarified, by means of the recently-opened IGC
or, failing that, by future Court case-law.

3.2
The definition of environmental offences subject to crim-
inal sanctions, such as ‘significant deterioration’, has not yet
been interpreted when being incorporated into domestic law or
in the criminal case-law of the various Member States.

3.3
The Committee notes that the directive targets ‘serious
offences’ as a priority, especially those committed by criminal
organisations, or committed on a large scale by legal persons,
and that it sets out to bring the applicable sanctions at Com-
munity level closer into line with each other, to prevent legal
loopholes being used by criminals. But questions concerning
organised crime come under Title VI of the Treaty on European
Union on police and judicial cooperation in criminal matters,
and must therefore be governed by an appropriate legal instru-
ment such as, for example, the framework decision.

if

to wonder whether

The broad character of the incrimination has prompted
3.4
one British tabloid newspaper
simply
picking wild flowers could lead to private individuals being
the bunch happened to contain a protected
imprisoned,
species. It should be emphasised that criminal sanctions are to
apply only in ‘serious’ cases and must remain effective, propor-
tionate and dissuasive. The national criminal court judge respon-
sible for applying the sanctions must retain full discretion to
gauge the seriousness of the offence and set an appropriate
sentence in each individual case, in order to comply with the
independence of the judiciary.

unambiguously aware of the rights and obligations entailed, or
in other words: no sanction without specific legal basis.

3.6
It is clear that infringements of all environmental legisla-
tion, whether of national Community or international origin,
are covered by the system of criminal sanctions proposed by the
Commission. This particularly broad scope could create a legal
problem in connection with the national foundation of general
law or autonomous instruments for supervising international
in question are those committed
law. The ‘serious offences’
the
either within or across national borders. Nevertheless,
Committee agrees with this material and territorial scope, which
arises
from the very nature of environmental protection,
offences against which generally affect the overall environment,
regardless of borders.

3.7
Criminal and non-criminal sanctions are laid down for
legal persons, but it is not clear if the applicable criminal sanc-
tions can be imposed on natural persons, such as the managers
of
the companies concerned. The sanctions apply only to
persons, belonging to the legal person, who are directly the
authors or instigators of the actions subject to proceedings. The
Committee considers that the directive should take account of
managers who have simply failed to monitor the actions of,
their subordinates, even if this entails only supplementary sanc-
tions.

3.7.1
The Committee notes that Article 7 of the proposal
establishes minimum amounts for maximum fines, but that the
if appro-
Member States may establish more severe penalties,
priate, at the time of transposition. This goes no further than
ensuring a common minimum, but entails the risk of creating
divergent national criminal approaches. The Committee prefers
a more vigorous criminal harmonisation approach, in order to
avoid the temptations of ‘forum shopping’, even if this means
higher minimum amounts for maximum fines.

According to the Commission's

3.8
impact assessment,
however, the Member States would enjoy considerable leeway
with regard to implementation. In the Committee's view, regular
monitoring of national practices must take place, because discre-
pancies in transposition are such that the effective approxima-
tion of criminal law on the environment could be hampered.
The Member States' usual margin of discretion should in general
avoid the creation of areas where it is ‘cheaper’ to pollute. In
this regard, the Committee agrees with the proposed legal basis
(Article 175 of the EC Treaty).

3.5
For its part, the Committee is satisfied with the fact that
the proposed directive (Article 3) clearly details the unlawful
acts covered, in keeping with the general principle of law ‘Nulla
poena sine lege’ (8), a general principle that requires criminal legis-
lation to be clear and precise, so that the individuals concerned

(8) Judgment of the Court of 8 February 2007, Case C-3/06 P, Groupe

Danone.

3.9 With regard to imprisonment, the Committee notes that
approximation is proposed on the basis of a three-step scale,
corresponding to the conclusions of
the Justice and Home
Affairs Council of 25-26 April 2002. Alternative sanctions are
also provided, additional to reinstating the environment, such as
lastly,
disqualification from engaging in an economic activity;
the majority of serious environmental offences are covered by
the scope of Framework Decision 2005/212/JHA on confisca-
tion of crime-related proceeds, instrumentalities and property.

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3.10 Moreover,
the establishment of a maximum ranging
from two to five years is a rather bizarre option: it would have
been better to choose a single minimum level for the maximum
sentence, in the interests of greater harmonisation, given that
this would not in any case jeopardise judges' room for discre-
tion.

However, the Commission considers that setting limits
3.11
to Member States' discretion with regard to transposition is
contrary to the aim of the directive; there is a conflict between
the Committee's preferred approach to criminal law and that of
the Commission. In the light of how application actually takes
it will probably be necessary to opt for one approach
place,
rather than another if the aims of the proposal are to be met.

3.12
The EESC is aware that at the present stage of the Com-
munity integration process, a regulation on this subject is not
possible. Concern is however felt about the need for a clear
distinction between administrative sanctions and crime, and to
ensure that transposition does not give rise to major differences
in Member State legislation — it would not be logical
for
certain behaviour to be punishable in one Member State and
not in another.

Brussels, 26 September 2007.

3.13
(Article 8) should also be addressed to the EESC.

The report on the implementation of

the directive

3.14
should be taken into account, especially regarding:

The views of

the EESC as expressed previously (9)

— ius standi (right to act to initiate public criminal proceedings)
so that associations and NGOs can bring proceedings before
the courts on the basis of the directive; the Århus Conven-
tion system could provide a model for the implementation
of this right by accredited NGOs, which would be preferable
to any class action system;

— a strengthening the cooperation and investigation machinery
of the judicial authorities to enable them to prosecute envir-
onmental crimes, recommending the setting up of public
prosecutors offices specialising in environmental matters;

— the use of European judicial networks to establish the neces-

sary cooperation regarding cross-border crimes.

The President

of the European Economic and Social Committee

Dimitris DIMITRIADIS

(9) See CES 463/2001 fin of 3 August 2001 (NAT/114).