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: Directive 2008/99/EC on the protection of the environment through criminal law: a point of arrival for sanctions in EU sectoral law or rules to be fine-tuned?

As in many other areas of environmental law, the EU enacted its specific legislation on criminal sanctions for severe damages to the environment following the adoption of an international convention on the same topic. This is also the case for the ECD provisions which are intended to implement and enhance the contents of the 1998 Strasbourg Convention on the protection of the environment through criminal law adopted by the Council of Europe.[1]

At that time, i.e. prior to the Lisbon Treaty, the competences conferred to the Union under criminal law fell within the so-called third pillar. For this reason, the EU legislator opted to implement the contents of the Strasbourg Convention by means of a Framework Decision under Articles 29, 31(e) and 34(2)(b) EU, rather than through a Directive, whose legal basis would have been Article 175 EC (now Article 191 TFEU).

This ‘cautious’ approach was, however, struck down by the CJEU in the famous Protection of the environment through criminal penalties case: once again, the Court demonstrated a proactive approach in having the EU environmental policy and law strongly implemented, and declared that, even though, as a general rule, neither criminal law nor the rules of criminal procedure fell within the Community’s competence, this

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. '*

The above judgment was the origin of the ECD, whose main features can be summarised as follows.

The introduction of criminal penalties ‘demonstrate^ a social disapproval of a qualitatively different nature compared to administrative penalties or a compensation mechanism under civil law’.[2] Along this line of reasoning, the objective of the ECD is to introduce nine behaviours that are classified as criminal offences when they are committed intentionally or at least with serious negligence in breach of EU law or national measures implementing EU law.

The ECD further sanctions with criminal penalties the behaviours of inciting, aiding and abetting the nine environmental crimes. In order to complete the picture with sanctioning schemes, a system of criminal liability for legal persons is also envisaged, which Member States are bound to introduce in their national legislations.[3] This latest provision is very important, given that environmental crimes are not infrequently carried out in the interest of firms: if the latter are also likely to suffer negative consequences from crimes committed by their managers, it goes without saying that the deterrent effect of the ECD also operates in relation to their shareholders and in general the stakeholders of the firms involved.

Despite the criminal offences being clearly listed, the ECD lacks precision in determining the sanctions that Member States are bound to introduce into their criminal laws. This does not come as a surprise as the ECD was enacted before the Lisbon Treaty, i.e. when the EU did not yet have truly enforceable power in establishing criminal sanctioning provisions. In such a situation, the ECD is construed in the same terms as the model adopted for the directives referred to in the previous paragraphs; consequently, it neither specifies the typology nor establishes directly specific criminal sanctions; rather, it only requires Member States to introduce ‘effective, proportionate and dissuasive’ criminal penalties."

Unfortunately, the Member States have displayed very different interpretations of the notion of effective, proportionate and dissuasive penalties; this has occurred from several viewpoints.

Firstly, as regards criminal penalties by typology, some Member States have sanctioned (with differing degrees of severity depending on the crime concerned) the offences listed in Article 3 ECD with imprisonment, with imprisonment and fines, with imprisonment or fines, or simply with fines.

Secondly, as far as some serious offences are concerned, i.e. those listed in Article 3, letters a), d) e) and i) ELD,' the period of imprisonment varies from a one-month jail sentence to life imprisonment; the same is true for the offences listed in Article 3, letters b) and c), where the sanctions vary from a 6-month prison sentence to, again, life imprisonment. Even given the fact that we are talking about six different behaviours, it seems self-evident that the range of severity chosen by Member States appears to be far from harmonised.

In such a situation, it hardly seems debatable that the aim of the ELD to achieve the implementation of homogeneous criminal sanctions at EU level has not been achieved. This might have prospective negative consequences on overall ELD enforcement throughout the EU: in particular, in those instances where an act might have negative effects for the environment affecting more than one Member State, the remarkable differences in sanctioning that act might risk jeopardising the achievement of the goal of implementing a high level of environmental protection, and having a harmonised system of penalties applicable to offenders.

It is perhaps too early to assess whether the concerns expressed above are well-founded, and whether in the EU there will, therefore, be diverging sanctioning policies at domestic level for the same EU environmental crimes. If this were the case, however, after the Lisbon Treaty a remedy might be envisaged.

Reference is made to Article 83(1) TFEU. This provision lists ten ‘Euro crimes’ ('particularly serious crime with a cross-border dimension'), which, nevertheless, have a tenuous connection with environmental protection. Yet, the same provision empowers the Council '[o]n the basis of developments in crime... [to] adopt a decision identifying other areas of crime'.

However, even more than Article 83(1), the contents of Article 83(2) TFEU may serve the purpose of filling the gaps that currently characterise the sanctioning side of the ECD. Under this provision,

If the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonization measures, directives may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned.

Undoubtedly, Article 83(2) TFEU could become the legal basis for further enforcement of the ECD as far as its sanctioning side is concerned. Hopefully, there will be no need to complete the ECD with the adoption of a directive establishing sanctions for eco-crimes. That said, once again, EU law demonstrates its capability to implement serious rules and sanctions for the protection and promotion of the environment.

: Concluding remarks

While this article focuses on sanctions to secure the implementation of EU environmental law, a final caveat is warranted in order to avoid missing out on the real objective of environmental protection and promotion.

Tellingly, sanctions are important from any legal perspective: any breach of obligations or prohibitions established statutorily cannot go unpunished. However, when it comes to protecting the environment, a legal reasoning based solely on sanctions would clearly be limited and misleading: the preservation and promotion of the environment requires a radical change in the behavioural patterns of individuals on earth, in general, and within the EU more specifically. In particular, it requires a totally new approach to how people enforce their existing ‘rights’ (to consume, to eat, to move, to procreate, and so on), with a view to limiting the enjoyment of these ‘rights’ for the benefit of the earth and of future generations, whose ‘rights’ cannot yet be invoked (or enforced), but must be considered before they are substantially nullified.[4]

This entails an extraordinary need to build capacity on the existing world population as well as immense educational efforts at all levels to change well-rooted cultural ideas and to understand that life as we know it on our planet is likely to be destroyed by humans, unless they voluntarily and convincingly decide to change their way of living. Evidence of the above is contained in the Paris Climate Agreement, and specifically in its Article 11, but is valid throughout all legal systems.

Institutions can help with this necessary turnaround, and the EU will probably remain at the forefront of the most active decision-making entities in this respect. However, sanctions will probably only be a single course on the menu... and not even the main one.

  • [1] The text and information on the convention (which has been ratified by many, but not all, Member States) can be found at treaty/172. On the ECD and its application see, inter alia, M.G. Faure, The Revolution in Environmental Criminal Law in Europe (2017) 35 Virginia Environmental Law Journal 321; G.F. Peri-longo and E. Corn, 'The ecocrime directive and its translation into legal practice: EU green offences and their impact at national level according to the results of a recent survey’ (2017) 8 New Journal of European Criminal Law 236; G.M. Vagliasindi, 'The European Harmonisation in the Sector of Protection of the Environment through Criminal Law: The Results Achieved and Further Needs for Intervention’ (2012) 3 New Journal of European Criminal Law 320; M.G. Faure, 'The implementation of the Environmental Crimes Directives in Europe’ in J Gerardu, D Grabiel, MR Koparova, K Markowitz and D Zaelke (eds), 9th International Conference on Environmental Compliance and Enforcement (INECE, 2011) 360; H.E. Zeitler, 'Happy end of a long saga -Agreement on the Directive for the Protection of the Environment through Criminal Law’ (2008) 5 Journal for European Environmental & Planning Law 281. 2 More precisely, Framework Decision 2003/80/JHA (Of 2003 L 29/55). 3 C-176/03, Commission v. Council, ECLI:EU:C:2005:542. See, inter alia, M, Wasmeier, and N, Twaites, 'The “battle of the pillars”: does the European Community have the power to approximate national criminal laws?’ (2004) 29 ELRev. 613; F. Comte, ‘Criminal environmental law and Community competence’ (2003) 12 European Environmental Law Review 147.
  • [2] Commission v. Council, supra note 64, para. 48. 2 See recital 3 ECD. 3 "Article 3 ECD envisages the following environmental crimes: (a) the discharge, emission or introduction of a quantity of materials or ionising radiation into air, soil or water, which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants; (h) the collection, transport, recovery or disposal of waste, including the supervision of such operations and the after-care of disposal sites, and including action taken as a dealer or a broker (waste management), which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants; (c) the shipment of waste, where this activity falls within the scope of Article 2(35) of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste and is undertaken in a non-negligible quantity, whether executed in a single shipment or in several shipments which appear to be linked; (d) the 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, the quality of soil or the quality of water, or to animals or plants; (e) the production, processing, handling, use, holding, storage, transport, import, export or disposal of nuclear materials or other hazardous radioactive substances which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants; (f) the killing, destruction, possession or taking of specimens of protected wild fauna or flora species, except for cases where the conduct concerns a negligible quantity of such specimens and has a negligible impact on the conservation status of the species; (g) trading in specimens of protected wild fauna or flora species or parts or derivatives thereof, except for cases where the conduct concerns a negligible quantity of such specimens and has a negligible impact on the conservation status of the species; (h) any conduct which causes the significant deterioration of a habitat within a protected site; (i) the production, importation, exportation, placing on the market or use of ozone-depleting substances. 4 '4 Article 4 ECD.
  • [3] Article 6 ECD. 2 See paras 6 and 7. 3 See Articles 5 and 7 ECD. 4 7sSee the 2016 ENEC Study on the implementation of Directive 2008/99/EC on the Protection of the Environment Through Criminal Law, available at http:/Avww.lawyersfomature.euAvp-content/ uploads/2016/05/Study-on-the-implementation-of-Directive-2008_99_ENEC_SEO_BirdLife_May2016.pdf. The information below is all drawn from this ENEC study. 5 See supra note 73. 6 Generally, the study mentioned in note 78 indicates that sanctions are much less severe in Luxembourg, whereas Austria, Malta and the Netherlands have chosen an opposite approach as to the severity of punishment.
  • [4] 1 had already suggested this necessary approach which now, fortunately, appears to be seen at the forefront of any environmental discourse in my book with Lorenzo Schiano di Pepe, supra note 2, see, in particular, at 113 et seq.
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