4 Protection of the environment through
criminal law
(28370)
6297/07
+ ADDs 1-2
COM (07) 51
| Draft Directive on the protection of the environment through criminal law
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| Legal base | Article 175(1) EC; codecision; QMV
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| Document originated | 9 February 2007
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| Deposited in Parliament | 16 February 2007
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| Department | Home Office |
| Basis of consideration | EM of 2 March 2007
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| Previous Committee Report | None; but see (27117) HC 34-xvi (2005-06), para 4 (25 January 2006)
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| To be discussed in Council | No date set
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| 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 The EC Treaty confers no express power on the Community to
adopt measures of criminal law and procedure. Whereas it is possible
for the EC Treaty and measures adopted under it (notably in relation
to the internal market) to have an effect on the criminal law
and procedure of the Member States, it was not thought possible
(at least by Member States) that new criminal law provisions could
be introduced under the EC Treaty.
4.2 On a number of occasions, the Commission has sought to include,
in proposals made under the EC Treaty, provisions requiring the
creation of criminal offences or criminal penalties, but these
have been removed in the course of discussions within the Council.[8]
In cases where the Council considered it necessary to provide
for criminal penalties, a Framework Decision has been adopted
in support of the measures adopted under the EC Treaty. In the
case of environmental offences, the Commission proposed a Directive
in 2001 on the protection of the environment through the criminal
law. The proposal was not agreed by the Council, which instead
adopted Framework Decision 2003/80/JHA.[9]
The then Committee agreed with the Government that the criminal
law aspects of environmental protection remained within the competence
of the Member States, and were subject to their ability to adopt
measures under the EU Treaty.
4.3 The Commission subsequently brought proceedings in April 2003
for the annulment of this EU Framework Decision on the grounds
that Articles 1 to 7 of the Framework Decision (which provided
for offences related to intentional or negligent acts causing
or likely to cause damage to the environment) fell within the
scope of the Community's powers under Articles 174 to 176 EC.
In its judgment of 15 September 2005 in Case No C176/03 Commission
v. Council the ECJ annulled the Framework Decision on the
grounds that its adoption infringed Article 47 EU[10]
by encroaching on the powers conferred on the Community by Article
175 EC. The ECJ found that the Framework Decision had as its objective
the protection of the environment and that it did entail partial
harmonisation of the criminal laws of Member States. The ECJ commented
that "as a general rule, neither criminal law nor the rules
of criminal procedure fall within the Community's competence",
but that this did not prevent "the Community legislature,
when the application of effective, proportionate and dissuasive
criminal penalties by the competent national authorities is an
essential measure for combating serious environmental offences,
from taking measures which relate to the criminal law of the Member
States which it considers necessary in order to ensure that the
rules which it lays down on environmental protection are fully
effective".
4.4 The Commission subsequently issued a communication
in which it described the ECJ judgment as laying down principles
which "go far beyond the case in question" and stated
that "when … the Commission considers that criminal
law measures are required in order to ensure that Community law
is fully effective, these measures may … include the actual
principle of resorting to criminal penalties, the definition of
the offence … and where appropriate the nature and level
of the criminal penalties applicable, or other aspects relating
to criminal law". We agreed with the then Minister that the
true scope of the ECJ judgment was not clear and that the Commission's
communication reflected the widest possible interpretation, which
would allow any criminal law measures to be adopted under the
EC Treaty if they are considered necessary in order to ensure
that the Community rules in question are effective. We pointed
out that the criminal law of a Member State could be altered under
the EC Treaty by means of qualified majority voting , with the
consequence that the criminal law of the United Kingdom could
be determined by the EC institutions against the wishes of Parliament
and thought this would be a matter of real public surprise and
concern. We recommended that the communication should be debated
in European Standing Committee, which debate took place on 28
March 2006.
The draft Directive
4.5 The proposal is intended to replace the Council
Framework Decision which was annulled by the ECJ in Case C176/03
Commission v. Council. It provides for various types of
conduct relating to the environment to be made a criminal offence
when committed intentionally or "with at least serious negligence".
Such conduct is to be made punishable by terms of imprisonment
ranging from two to ten years.
4.6 The scope of the Directive does not appear to
be limited to the enforcement of Community law. Article 1 of the
proposal states that it "establishes measures relating to
criminal law in order to protect the environment more effectively",
whilst the term "unlawful" in Article 2 is defined as
infringing Community legislation or "a law, an administrative
regulation or a decision taken by a competent authority in a Member
State aiming at the protection of the environment".
4.7 Article 3 prescribes the various kinds of conduct
which Member States are to be required to make criminal. These
include the discharge, emission or introduction of a "quantity
of materials or ionising radiation into air, soil or water"
which causes death or serious injury to any person (Article 3(a)),
or the unlawful discharge of 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". In
relation to waste, Article3 (c) provides for its unlawful treatment
to be made criminal where this 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.
4.8 Article 3(d) requires Member States to make criminal
the unlawful operation of a plant in which "a dangerous activity
is carried out" or in which dangerous substances or preparations
are stored or used 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.
4.9 Article 3(e) requires the illegal shipment of
waste, as defined in Article 2(35) of Regulation (EC) No 1013/2006[11]
to be made criminal when done for "profit and in a non-negligible
quantity".[12]
4.10 Article 3(f) provides for the unlawful manufacture,
treatment, storage, use, transport, export or import of nuclear
materials or other hazardous radioactive substances to be made
criminal where this 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.
4.11 Article 3(g) requires the unlawful possession,
taking, damaging, killing or trading of protected species or parts
or derivatives thereof to be made criminal. Article 3(h) similarly
requires the "unlawful significant deterioration[13]
of a protected habitat" to be made criminal, and Article
3(i) the unlawful trade in or use of ozone-depleting substances.
Article 4 requires participation in or instigation of any of the
conduct referred to in Article 3 to be made an offence.
4.12 Article 5 prescribes the penalties which Member
States are to be required to provide. These range from a maximum
of between one and three years for the offences under Article
3(b) to (h) where they are committed with "serious negligence"
and cause substantial damage to air, soil, water, animals or plants
to two to five years' imprisonment for the offence under Article
3(a), the offences under Article 3(b) to (f) where these cause
death or serious injury to any person, and the offences under
Article 3(b) to (h) where the offence is committed intentionally.
Article 3(4) requires the offences under Article 3(a) to be punishable
by a maximum term of at least between five and ten years' imprisonment
where the offence is committed intentionally, and — in the
case of the offences under Article 3(b) to (f) — where the
offence is committed intentionally and causes death or serious
injury to a person. No specific provision appears to have been
made for the offence under Article 3(i) relating to ozone-depleting
substances.
4.13 Articles 6 and 7 make provision for sanctions
to be imposed on legal persons and Articles 8 to 11 contain final
provisions.
The Government's view
4.14 In his Explanatory Memorandum of 2 March 2007
the Parliamentary Under-Secretary of State at the Home Office
(Gerry Sutcliffe) explains that the Government accepts that the
protection of the environment may require action by the Community,
but that it will be important to ensure that the level of detail
in the proposal does not go beyond what is necessary for this
objective. The Minister also explains that the Government agrees
with the Commission that the environment should attract a high
level of protection as laid down in Article 174(2)EC[14]
and adds "by the same token the Government also agrees that
provision requiring the Member States to apply the criminal law
to ensure the effectiveness of Community measures is an appropriate
response at the European level to the threats posed by serious
environmental crime".
4.15 The Minister nevertheless raises the issue of
Community competence, noting that since the judgment of the ECJ
in Case C176/03 Commission v. Council "there is no
doubt that the Community legislature has the competence to require
Member States to apply criminal sanctions to infringements of
Community measures on the protection of the environment, where
these sanctions are necessary to ensure the effective enforcement
of such measures". The Minister agrees that this latter requirement
would also apply to national law implementing the relevant Community
measures.
4.16 However, the Minister also states the following:
"The Government notes, however, that the definition
of 'unlawful' at Article 2 of the draft Directive has the effect
of extending competence beyond the effective enforcement of Community
laws. This definition would appear to broaden the scope of the
Directive so that it would embrace all national law dealing with
the offending conduct set out in Article 3, even where that law
is not implementing agreed Community measures. The Government
believes that this is outside the scope of EC competence and a
potential breach of subsidiarity. We will argue for the scope
to be restricted to Community law and any implementing national
laws."
4.17 The Minister also refers to the broader question
of the scope of Community competence to prescribe detailed minimum
standards on the type and severity of sanctions to be applied,
and explains that in the current proceedings on the Commission's
challenge to the Framework Decision on ship-source pollution the
UK has put the case for a restrictive interpretation of the ECJ's
judgment in Case C176/03 Commission v. Council to the effect
that Community competence extends to requiring Member States to
apply criminal sanctions that are effective, proportionate and
dissuasive. The Minister comments that the extent to which the
level of detail of minimum custodial and financial penalties is
necessary in order to ensure the effectiveness of Community measures
on the environment "clearly deserves close scrutiny".
In this connection, the Government notes that the proposal goes
much further than the annulled Framework Decision and much further
than the Commission's 2001 proposal.
4.18 The Minister considers it likely that the Council
will favour discussion of the proposal on a conditional basis,
pending the outcome of the proceedings on the Framework Decision
on ship-source pollution.
4.19 In the meantime, the Minister notes that clarification
of the precise meaning of some of the Commission's proposals must
await discussion at expert level, but offers a number of preliminary
comments. The Minister notes that the scope of offences covered
by Article3 is broadly similar to that of the annulled Framework
Decision, but that there is an additional provision relating to
the illegal shipment of waste and the unlawful manufacture, treatment,
storage, use, transport, export or import of nuclear materials
or other hazardous radioactive substances. The Minister notes
that this provision has no definitional provision and that this
may require attention "in order to ensure compatibility with
existing EU and other international instruments". The Minister
also notes the use of the term "serious negligence"
in Article 3 and informs us that the Government will seek an amendment
to a term which is more commonly used domestically such as "recklessness",
or for the use of language which will allow Member States to transpose
the term into the context of national law.
Conclusion
4.20 It is clear on the face of it that this proposal
greatly exceeds the scope of Community competence, even on the
most expansive of readings of the judgment of the ECJ in Case
C176/03 Commission v. Council. Of the 'offences'
referred to, only one — relating to the illegal shipment
of waste under Regulation (EC) 1013/2006- is clearly and exclusively
linked to an environmental measure adopted at EC level.
4.21 We agree with the Minister that the proposal
should not extend to all national laws relating to the environment
and that if it were to do so, it would be beyond the competence
of the Community. Even if the proposal were within Community competence,
the level of detail it prescribes for Member States raises serious
issues of subsidiarity.
4.22 As it stands, the proposal is far too vague
to serve as a basis for criminal law measures. It uses a number
of terms such as the "quality of animals and plants",
"dangerous activity" and "unlawful significant
deterioration" the meaning of which is far from clear. As
the proposal is in the form of a Directive, Member States will
have little flexibility in making sense of these terms in their
own legal systems, a point to which the Minister rightly alludes
in his criticism of the use of the term "serious negligence".
4.23 It is no answer that the definitions of the
conduct in question are to be found in national law when it makes
the conduct unlawful. This rests on the erroneous assumption that
the Community has competence to prescribe penalties in relation
to any provision of national law relating to the environment.
4.24 We therefore support the Minister in seeking
to limit the scope of the proposal to that which is clearly within
Community competence and ask him for an account in due course
of further negotiations to this end on this proposal.
8 See, for example, Directive 2004/48/EC on the enforcement
of intellectual property rights, OJ No. L 195, 2.06.04, p.16 and
Directive 2005/35/EC on ship-source pollution, OJ No. L 255, 30.9.05,
p.11. Proceedings brought by the Commission for the annulment
of the Framework Decision are now pending. Back
9
OJ No. L 29, 5.02.03, p.55 Back
10
Article 47 EU provides "Subject to the provisions amending
the Treaty establishing the European Economic Community with a
view to establishing the European Community, the Treaty establishing
the European Coal and Steel Community and the Treaty establishing
the European Atomic Energy Community, and to these final provisions,
nothing in this Treaty shall affect the Treaties establishing
the European Communities or the subsequent Treaties and Acts modifying
or supplementing them." Back
11
OJ No. L190, 12.07.06, p.1. Back
12
This appears to be the only offence linked specifically and exclusively
to a measure adopted at EC level. Back
13
It is hard to see how "deterioration" as such can be
made criminal, since it refers to consequences of behaviour, rather
than the behaviour itself. Back
14
This provides "Community policy on the environment shall
aim at a high level of protection taking into account the diversity
of situations in the various regions of the Community. It shall
be based on the precautionary principle and on the principles
that preventive action should be taken, that environmental damage
should as a priority be rectified at source and that the polluter
should pay." Back
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