Select Committee on European Scrutiny Seventh Report





Draft Framework Decision on the protection of the
environment through criminal law.

Draft Framework Decision on the protection of the
environment through criminal law.

Draft Framework Decision on the protection of the
environment through criminal law.

Legal base: Articles 31(e) and 34(2)(b) EU; consultation; unanimity
Department: Home Office
Basis of consideration: EM of 20 February 2001
Previous Committee Report: None; but see (19759) 10951/98: HC 34-xi (1998-99), paragraph 7 (24 February 1999) and HC 34-xvii (1998-99), paragraph 4 (28 April 1999)
To be discussed in Council: 15 - 16 March 2001
Committee's assessment: Politically important
Committee's decision: (All) Cleared


  13.1  In April 1999, we cleared a Danish proposal for a Joint Action on combating serious environmental crime.[47] Following the entry into force of the Treaty of Amsterdam, the text was frozen. A Danish proposal for a Framework Decision (document (a)) was deposited last May, but was sidelined when the French Presidency decided to take a different approach and to base the measure more closely on the existing Council of Europe Convention on the protection of the environment through criminal law of 4 November 1998. Working group discussions on that Convention resulted in the production of a draft text (document (b), which has now been superseded by a revised version, document (c), on which our report concentrates.

Document (c)

  13.2  The draft Framework Decision is intended to establish criminal offences for certain acts relating to the environment, both when committed intentionally and through negligence. It requires Member States to set effective, proportionate and dissuasive penalties for these offences, and includes further provisions on liability of legal persons and on jurisdiction. It provides for implementation two years after adoption.

The Government's view

  13.3  In her Explanatory Memorandum, the Minister of State at the Home Office (Mrs Barbara Roche) tells us that the Government is content with the main provisions of this measure, which are broadly equivalent to existing UK legislation on environmental crime. A change in UK law would, however, be necessary for the implementation of Article 9 (1) which requires each Member States to establish jurisdiction for offences committed in whole or in part in its territory.

  13.4  The Minister then comments on particular Articles of the draft Framework Decision, among which are the following:

    "Article 1: During Working Group discussions, the Government established that 'unlawful', as defined in Article 1, is to be interpreted as unlawful in the country where the conduct referred to in Articles 2 and 3 took place. This is important because a wider interpretation of 'unlawful' would have caused serious practical difficulties, including possible conflicts of jurisdiction.

    "Article 2: Article 2(a) of the Council of Europe Convention provides that each party shall establish as a criminal offence: the discharge, emission or introduction of a quantity of substances or ionising radiation into air, soil or water which creates a significant risk of causing death or serious injury to any person. The Government secured the removal of the reference to 'creating a significant risk' from the draft Framework Decision, in view of the fact that the concept of 'creating a significant risk' has no equivalent under UK law.

    "Article 3: Article 3 requires Member States to establish the conduct described in Article 2 as criminal offences when committed with serious negligence. The term 'serious negligence' is used in place of 'gross negligence' which is used in the Council of Europe Convention. The Government considers that it is reasonable to interpret serious negligence as covering manslaughter offences, and recklessness when applied to offences against the person...

    "Article 7: The Government is content with the provisions in Article 7 concerning the liability of legal persons, since the wording includes the 'directing mind' concept (by virtue of the wording 'who has a leading position within the legal person'). The wording in Article 2 does not imply that the intentional offences include intentionally causing death or serious injury. The first part of each sub-article in Article 2 must be intentional, i.e. the discharge, emission or introduction, but not necessarily the causing of a person's death or serious injury.

    "Article 8: The Government welcomes the provision in Article 8(e) which refers to preventive or remedial measures.

    "Article 9: ... Article 9(1)(a) would oblige the United Kingdom to take jurisdiction for offences committed 'in whole or in part' in UK territory. Given the nature of environmental crime, the Government considers that such jurisdiction is appropriate...

    "Article 10: The Government considers that the target date is ambitious. Its achievability as far as the UK is concerned will depend on the Government's future legislative programme."

  13.5  The Minister also tells us that the Commission has argued in a working paper that some of the provisions in the draft Framework Decision would be more appropriately sited in the first pillar. The Government does not agree.

  13.6  The Minister informs us that the Swedish Presidency is hoping to secure political agreement on the measure at the Justice and Home Affairs Council on 15-16 March.


  13.7  The Government had several concerns about the original Danish proposal for a Joint Action, which it considered went too far, and which would have required significant changes to United Kingdom legislation. The Minister is clearly much more favourably inclined towards the current proposal, and has set out her views in helpful detail.

  13.8  We clear all the documents.

47  (19759) 10951/98; see headnote to this paragraph.  Back

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