PROTECTION OF THE ENVIRONMENT THROUGH
CRIMINAL LAW (6297/07)
Letter from the Chairman to Gerry Sutcliffe
MP, Parliamentary Under Secretary of State, Home Office
This proposal has been considered by Sub-Committee
E which decided to retain the proposal under scrutiny. As you
will be aware, the Committee examined the issues raised by Case
C-176/03 in its Report, The Criminal Law Competence of the
European Community (42nd Report, 2005-06) and we are holding
under scrutiny a number of First Pillar proposals where the Commission
is proposing the definition of criminal offences and/or the imposition
of criminal sanctions. We are therefore not surprised to learn
that the Government have serious difficulties with the present
proposal.
We are grateful for the information provided
in your Explanatory Memorandum and in particular for clarification
of the position being taken by the Government in the Ship source
pollution case. We share a number of the concerns you identify
in relation to the present proposal. We agree that the definition
of "unlawful" in Article 2(a) raises questions of vires
and also of subsidarity and we would be interested to learn
whether other Member States share these concerns.
The removal of the list of Regulations and Directions
(by which the scope of the Commission's original proposal was
limited) also raises questions of definition in relation to Article
3 (offences). Are you proposing that the text follows the approach
taken in the Commission's original draft Directive where there
was a list of relevant EC Regulations and Directives? We also
note that the Government have questioned whether there is competence
to provide a tariff of minimum maximum sanctions as proposed in
Article 5. Again we would be interested to know whether it is
only the UK raising this issue.
You say that negotiations, at least in the Council,
are likely to proceed on a conditional basis, following the precedent
of the proposed IP Directive. Given the fundamental objections
raised by the Government (and given the number of interventions
in the litigation before the ECJ) we wonder how feasible such
an approach is in the present context. We would be grateful if
you would keep us informed of developments.
The Committee decided to retain the proposal
under scrutiny.
13 March 2007
Letter from Gerry Sutcliffe MP to the
Chairman
Thank you for your letter of 13 March. I note
that the proposal remains under scrutiny for the reasons you give
and I am pleased that you share the concerns that we identified
in the Explanatory Memorandum.
You asked if other Member States shared our
concerns about the effect of the definition of the "unlawful"
in Article 2(a). The draft instrument was first discussed at a
meeting of the substantive criminal law working group in Brussels
on 16 March 2007. Around 15 Member States made the point that
the instrument should not stray into purely domestic national
law but should be restricted to community rules and implementing
national law.
As regards Article 3, we agree that the absence
of the list of relevant EC instruments as included in the Commission's
original proposal of 2001 is disappointing. At the working group
meeting of 16 March we suggested that the adoption of the list
approach to scope should be explored further. Some Member States
supported this approach.
As regards the provision in Articles 5 and 7
dealing with minimum maximum penalty levels many Member States
joined the UK in doubting that the EC has competence, on a proper
interpretation of the European Court of Justice case C-176/03,
to be so prescriptive. The UK and some other Member States also
questioned whether, irrespective of competence, such prescription
is desirable as a matter of policy.
It is apparent that many Member States are concerned
about the utility of conducting negotiations on a conditional
basis when so much of the draft could fall within the scope of
pending judgment of the ECJ in the ship source pollution case.
The UK suggested that it would be beneficial to continue to look
at the whole instrument so that the various provisions of the
proposal could be debated as a matter of policy irrespective of
the final determination of the scope of EC legal competence. The
consensus within the group was, however, in favour of focussing
only on Article 3 and Article 2(a) pending the ECJ judgment. This
will at least allow for a robust examination of the need to restrict
the scope to community law and will also allow an assessment of
utility of allowing administrative sanctions as an alternative
to reliance only on criminal ones.
We will of course continue to keep you informed
of any significant developments during the course of negotiations.
28 March 2007
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