a) Background

2In February 2000, Denmark presented an initiative [1] for a Framework Decision (FD) on Environmental Crime In 2001, the European Commission followed with a proposal for a Directive on the Protection of the Environment through Criminal Law. [2] In this proposal, offences were defined as infringements of secondary environmental legislation, listed in an Annex, or implementing national legislation when committed intentionally or with serious negligence; instigation of and participation in such activities were also considered an offence. On sanctions, the proposal obliged Member States to provide for natural persons for criminal penalties, involving in serious cases deprivation of liberty. To impose fines on legal persons was only an obligation for Member States "where appropriate". The Directive proposal went through the first reading at the European Parliament, after which an amended proposal was adopted. However, Council never took up the proposal for discussion, but rather discussed the Danish FD proposal which was finally adopted in early 2003.

b) Framework Decision 2003/80/JHA

3The FD 2003/80/JHA on the protection of the environment through criminal law [3] builds substantively on the structure of the Council of Europe Convention on the Protection of the Environment through Criminal Law [4]. With the exception of one autonomous offence (Article 2 (a)), offences are defined including the requirement of "unlawful" behaviour, i.e. "infringing a law, an administrative regulation or a decision taken by a competent authority, including those giving effect to binding provisions of Community law aiming at the protection of the environment". Offences can be committed intentionally or "with negligence or at least serious negligence", as well as through instigation or participation.

4Member States have to ensure that penalties include, at least in serious cases, deprivation of liberty which can give rise to extradition, which means generally more than one year of imprisonment (Article 5). Article 6 of the FD defines the grounds on which legal persons must be held responsible for conduct committed for their benefit by persons having a leading position within their structure or when such a person is liable for lack of supervision or control. Sanctions for legal persons shall include criminal or non-criminal fines and may include other sanctions, such as exclusion from entitlement to public benefits, a judicial winding-up order etc.

5The FD obliges Member States to establish jurisdiction whenever the offence was entirely or partly committed in their territory or on board of a ship or an aircraft registered in it or flying its flag and provides for further optional jurisdiction grounds (Article 8). Additional rules on extradition and prosecution (Article 9), in particular on offences committed by own nationals outside the territory of a Member State, have lost their relevance with the introduction of the European Arrest Warrant.

c) Annulment of the FD & Perspectives

6As the presentation of two different, but on the substance similar proposals by the Commission for a directive and by Denmark for a FD proves, environmental criminal law has become the centre of a serious institutional fight between the European Commission and the Council about the possibility to include criminal-law related provisions in first pillar instruments. During the discussions of the FD in the Council, the Commission always upheld the view that a FD was not the appropriate legal instrument for provisions on environmental crime. Briefly after the adoption, in April 2003, the Commission sought therefore annulment of the FD before the European Court of Justice for wrong legal bases. The Commission was supported by the European Parliament, the Council by eleven Member States. The outcome of the proceeding was a clear victory for the view of the Commission. The Court annulled the FD and held that its Articles 1 to 7 could have been properly adopted on the bases of Article 175 TEC so that its adoption under the third pillar provisions infringed upon Article 47 TEU. [5]

7The essential statement was paragraph 48 of the judgment, where the Court said : "However, the last-mentioned finding [according to which generally criminal law is a matter of the EU Treaty] does 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…” This statement will involve significant changes for future legislation. Once the Commission will present the proposal for a new directive on environmental criminal law to replace the annulled FD, this directive can be adopted by the Council with qualified majority instead of unanimity, and the Parliament has to approve the proposal (for a FD the Parliament is only consulted). Moreover, if a directive is not properly transposed, the Commission can bring an infringement case against a Member State before the European Court of Justice which can end with severe penalties.

8The Commission has published a Communication on its interpretation of the implications of the judgment for existing and future legislation. [6] or a new directive proposal on environmental crime, to be adopted as soon as possible, the Commission will carefully consider which provisions relating to criminal law are necessary to be included in a first-pillar instrument in order to ensure the efficient protection of the environment.

a) Background

9The disaster of the tanker "Prestige" off the coast of Galicia in November 2002 highlighted the urgent need for joint EU action against ship-source pollution. The above-mentioned FD on environmental criminal law that was to be adopted approximately at the same time did not address specifically this issue. Political statements of the European Council were unanimous in calling for the rapid adoption of an EU legislative framework. In addition to proposals for technical regulations, the Commission presented therefore in spring 2003 two proposals on offences and sanctions, one for a Directive (based on Article 80 TEC, the rules on the common transport policy) and one for a FD (based on Articles 31 and 34 TEU, which form a unity. The discussions for both instruments were difficult. The FD 2005/667/JHA "to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution" [7] was finally adopted in July 2005, the Directive 2005/35/EC "on ship-source pollution and on the introduction of penalties for infringements" [8] n September 2005. Two instruments were considered necessary due to the above-mentioned institutional conflict whether criminal law provisions were acceptable in a first pillar instrument. The Commission had initially included most of the criminal law related provisions in its proposal for a directive, however, the Council decided to transfer the majority into the FD. In the interest of a rapid adoption of this important legislative instrument, the Commission and the Parliament decided not to block the adoption of the text. The two different legislative procedures that had to be followed partly explain the delay in adoption. Another reason was the division of Member States between those suffering on a regular basis from maritime pollution and the ones leading the maritime industry, who feared competitive disadvantages.

b) Offences (Articles 3,4 of the Directive, Articles 2,3 FD)

10The Directive and the FD provide for establishing the most serious illicit discharges in specified sea areas as criminal offences, when committed with intent, recklessly or by serious negligence, unless they are minor cases without damage to water quality. Aiding, abetting or inciting an offence is also punishable. The instruments also expand the level of liability beyond international law by including recklessness and serious negligence.

c) Sanctions (Article 8 of the Directive, Article 4 FD)

11While the Directive only requires “effective, proportionate and dissuasive” sanctions, the FD approximates the sanction level with regard to prison sentences and fines for legal persons. One of the essential elements of the texts is that sanctions should be applicable not only to the ship-owner or the master of the ships, but also to the owner of the cargo, the classification society or any other person involved.

12For imprisonment, the FD follows the conclusions of the Justice and Home Affairs Council of April 2002 by using a three-step system of approximation of the minimum level for maximum sentences : Member States shall foresee a maximum sentence imprisonment, at least for serious cases, of at least between 1 and 3 years; what constitutes a serious case, is left to the MS to interpret according to their legal traditions. This level becomes a maximum of at least between two and five years if the offence was committed intentionally and with particularly serious results, such as significant and widespread damage to water quality, to animal or vegetable species, or in the framework of a criminal organisation, or with only serious negligence but causing both significant and widespread damage to water quality, to animal or vegetable species and the death or serious injury of a person. The highest level of a minimum maximum sentence of between at least 5 and 10 years is provided for where the intentionally committed offence caused significant and widespread damage to water quality, to animal or vegetable species and the death or serious injury of a person.

13The levels of approximation are as such quite ambitious, but will have in reality a limited scope of application as the penalties giving rise to imprisonment only apply to offences committed on board of one of its own national’s vessel. The principles of Article 230 of the UN Convention of the Law of the Sea, limiting to monetary penalties the sanctions that may be imposed on foreign vessels, apply here. Prison sentences for foreign vessels are only allowed in cases of "wilful and serious" acts of pollution in the territorial sea of a Member State. The suggestion, presented in the course of discussions, that a ship flying the flag of another Member State should not be considered to be a "foreign" ship was not acceptable for all Member States. As a final compromise, the text foresees a possible revision on this point within five years after entering into force of the FD.

d) Legal Persons (Articles 5,6 FD)

14Legal persons shall be held liable for offences committed for their benefit by any person having a leading position within the legal person or when lack of supervision or control by one of these persons has made possible the offence for the benefit of a legal person by a person under their authority. It is explicitly stated that the liability of the legal person does not preclude proceedings against natural persons involved.

15Approximation is foreseen, for the first time in an EU instrument, for fines against legal persons, while Member States could not agree on extending the approximation to natural persons. The outcome is nevertheless an improvement : The level of fines has differed so far greatly from one Member State to the other and in some cases the implementation of the FD will involve a multiplication by 10 of the currently applicable fines. Accepting that not all national systems know the criminal liability of legal persons, it is left to Member States whether the fines will have a criminal or non-criminal character. The general minimum levels is of a maximum of at least between 150.000 euros and 300.000 euros, for the most serious cases, including at least intentionally committed offences, of a maximum of at least between 750.000 euros and 1.500.000 euros with the possibility for Member States to revert to a certain percentage of the turnover of the legal person concerned. Optional other sanctions for legal persons are mentioned as well, such as the obligation to adopt measures to eliminate the consequences of the offence or the disqualification from engaging in commercial activities.

e) Jurisdiction (Article 7 FD)

16The FD obliges the Member States to establish their jurisdiction, where the offence has been committed in relation to various connecting factors (such as its commission fully or in part in its territory; on board of a ship flying its flag; by one of its nationals etc, see Article 7). For offences committed by a national if the offence is punishable at the place where it was committed or if this place does not fall under any jurisdiction and for offences committed for the benefit of a legal person with a registered office in its territory, Member States may establish jurisdiction, but are not obliged to do so.

f) Perspectives

17The Member States have until 1 March 2007 to comply with the Directive and until January 2007 to comply with the FD. Meanwhile, in the aftermath of the above-mentioned judgment of the Court of Justice of September 2005, the Commission has brought a case for the annulment of the FD on ship-source pollution. It is of the view that according to the reasoning of this judgment, the content of the FD should have rather been included in a directive. The importance that all sides attach to this new case is underlined by the fact that 19 Member States have joined the case on the Council's side while the EP joined to support the Commission. A judgment can be expected in early 2008. In addition, the Directive is in the centre of a request for a preliminary ruling by the British High Court for alleged violation of the international law of the sea.