Serious environmental crime

The Council aims to protect the environment through criminal law and to establish police, criminal justice and administrative cooperation between Member States to combat serious environmental offences.

ACT

Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law.

SUMMARY

The Council, concerned by environmental offences, wishes to protect the environment under criminal law, to step up exchanges of information between Member States and to establish effective cooperation between national authorities. The Framework Decision is based on the Council of Europe's 1998 Convention on the Protection of the Environment through Criminal Law.

In March 2001 the Commission presented a proposal for a Directive of the European Parliament and of the Council on the protection of the environment through criminal law. According to the Commission, environmental crime comes within the remit of the Community and there is therefore no call to adopt a Framework Decision on the basis of Title VI of the Treaty on European Union. The Council has incorporated into its Framework Decision several provisions from the Commission's proposal. However, the amended proposal for a Directive, presented in October 2002, was not incorporated.

Serious environmental crime is defined as acts which cause, or risk causing:

• pollution of air, water, soil or subsoil;
• storage or disposal of waste or similar substances.

The fact that the act cannot be considered part of the normal, everyday operation of a lawful activity, that the offence is major in scale or that financial gain was obtained or sought are all aggravating circumstances.

In assessing the scale of the offence, significance will be attached to whether it was systematic and/or planned in advance and whether an attempt was made to conceal the pollution or storage, thereby increasing the damage.

Member States will take measures to ensure that serious environmental crime is punishable under criminal law in a way which is effective and commensurate with the offence, acts as a deterrent and may entail extradition. It should also be possible to hold legal persons criminally liable for this type of crime.

It should be possible to seize and confiscate equipment and proceeds in connection with serious environmental crime. In general, this type of crime is covered by the principles set out in the Council of Europe Convention of 8 November 1990 on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime.

Anyone convicted of serious environmental crime will be precluded or disqualified from engaging in an activity requiring official authorisation where there is a risk that the situation might be abused. Similarly, where circumstances so dictate, anyone convicted of serious environmental crime may be disqualified from exercising their activity or occupying certain functions (founder, manager or director of a company or certain bodies). Lastly, rules must be drawn up governing compensation.

Powers and methods of inquiry are available whereby national authorities can investigate and prosecute offences committed:

• on their territory, including on vessels registered in the Member State concerned;
• by natural persons who are nationals of or permanently resident in the Member State concerned;
• by legal persons based on their territory.

Each Member State must ensure that the efforts by the competent national authorities to combat offences of this type are properly coordinated. Member States must cooperate in investigating and prosecuting serious environmental crime. Letters rogatory regarding this type of offence must be processed rapidly and cooperation must be effective. Member States must assist one another as extensively as possible and exchange information on an unsolicited basis where this is useful for the investigation or prosecution of environmental crimes and for clean-up or preventive measures to be taken.

To facilitate coordination and exchanges of information, one or more contact points will be designated in each Member State. The General Secretariat of the Council is currently responsible for keeping a list of these contact points and a register of special skills or know-how with regard to combating serious environmental crime. However, it is planned to transfer this task to Europol in the event of its being assigned responsibility for dealing with environmental crime.

Member States will take the necessary measures to comply with the provisions of this framework Decision by the end of 2000. The Council will assess before 30 June 2001 whether Member States have complied with the Decision.

For more information on this subject, see the proposal for a Directive from the European Parliament and from the Council relating to the Protection of the Environment through Criminal Law.

RELATED ACTS

Judgment of the Court (Grand Chamber) of 13 September 2005 Commission of the European Communities v Council of the European Union [Case C-176/03]. This judgment annuls Decision 2003/80/JHA on the grounds that it should have been adopted on the basis of the EC Treaty and not the Treaty on European Union (EU Treaty). The Court thus finds in favour of the Commission, explaining that the latter may take measures that relate to the criminal law of the Member States in cases where the application of criminal penalties is an essential measure for combating serious environmental offences.

Last updated: 03.04.2006