PROTECTION OF THE ENVIRONMENT THROUGH
CRIMINAL LAW
(22227)
7407/01
COM(01) 139
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Draft Directive on the protection of the environment through criminal law.
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| Legal base: |
Article 175 (1) EC; co-decision; qualified majority voting
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| Document originated:
| 13 March 2001 |
| Forwarded to the Council:
| 16 March 2001 |
| Deposited in Parliament:
| 17 April 2001 |
| Department: |
Home Office |
| Basis of consideration:
| EM of 23 April 2001 |
| Previous Committee Report:
| None; but see (22017) 14880/00: HC 28-vii (2000-01), paragraph 13 (28 February 2001)
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| To be discussed in Council:
| No date set |
| Committee's assessment:
| Legally and politically important
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| Committee's decision:
| Not cleared; further information requested
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Background
4.1 In February, we cleared a Framework
Decision on the protection of the environment through criminal
law.[4]
At the Justice and Home Affairs Council on 15 and 16 March, provisional
agreement was reached on the objectives and, in principle, the
content of that proposal. However, the relevant working groups
were instructed to consider whether it needed to be "complemented"
by a first-pillar (i.e. EC) measure, in the light of the Commission's
proposal for a Directive (the current document).
The document
4.2 The draft Directive aims to establish
criminal offences for certain acts relating to the environment,
whether committed intentionally or through serious negligence,
and in breach of Community law protecting the environment. It
would oblige Member States to set effective, dissuasive and proportionate
penalties for these offences, including imprisonment, in serious
cases.
4.3 In its explanatory memorandum, the Commission
states:
"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 175EC, 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 [sic], there is therefore no room for
an instrument according to Article 34 of the EU Treaty."
The Government's view
4.4 The Minister of State at the Home Office
(Mrs Barbara Roche) tells us that the Government fully supports
proposals designed to protect the environment. It considers that
measures defining prohibited conduct in the context of environmental
protection are within Community competence, and that actions to
combat environmental crime must be consistent with existing EC
environmental law.
4.5 She continues:
"Nevertheless, the Government
considers that criminal law aspects of environmental protection
remain within the competence of Member States (subject to any
measures taken under the third pillar). The Government acknowledges
that there are precedents where Community law has defined prohibited
conduct and has required Member States to impose appropriate sanctions,
such as the Directives on money laundering and insider trading.
Nonetheless, these instruments have not provided that the conduct
must be treated as criminal offences or that only criminal sanctions
must be imposed."
4.6 The Minister does not think that the
draft Directive is likely to require changes to current legislation.
However, if it were to be adopted, certain parts of UK criminal
law would be brought within Community competence and made subject
to interpretation by the European Court of Justice. She tells
us that the Government does not consider that the provisions on
penalties in the draft Directive require Member States to make
offences currently subject to fines punishable by imprisonment.
It takes the view that the requirement applies in general terms
to serious offending, rather than to serious examples of each
individual offence.
4.7 Finally, the Minister confirms that
the Presidency has asked the working group on Substantive Criminal
Law to examine the Commission's proposal, alongside the existing
Framework Decision.
Conclusion
4.8 The Minister's comments confirm the
serious difference of opinion between the Commission and Member
States on whether a first or third-pillar measure is appropriate.
It is not easy to understand how the Presidency thinks this will
be resolved by asking the relevant working groups to consider
whether the Framework Decision should be "complemented"
(in the words of the Council Press Release) in the light of the
Directive.
4.9 We support the Minister's stance.
Contrary to the Commission's arguments, Articles 24 and 47 EU
do not, in our view, "confer clear priority to Community
law". They simply provide that action under the EU Treaty
is without prejudice to the EC Treaty. No criminal law competence
for the Community is to be inferred from these provisions.
4.10 We will maintain the draft Directive
under scrutiny until we learn more from the Minister about the
progress of negotiations. At that time, we should also like to
know:
- whether the Minister's interpretation of the
provisions on penalties in the proposal is shared by other Member
States; and
- what level of resources she considers would
be needed to implement this Directive and (at EU level) to monitor
its implementation, and how that would compare with the level
of resources required to implement the framework decision and
monitor its implementation.
4.11 We do not clear the document.
4 (22017) 14880/00; see headnote to this paragraph. Back
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