The Council of the European Union is currently holding decisive discussions concerning its participation in the negotiations on the draft Council of Europe Convention on the Protection of the Environment through Criminal Law. With this in mind, on 1 June the Council of the European Union sent a document to the Member States asking them a number of questions about the arrangements for the forthcoming discussions.
The project presented by the Council of Europe Committee on Crime Problems (CDPC) on 17 May aims to strengthen legal standards for environmental protection in Council of Europe Member States.
The CDPC has invited Council of Europe Member States to submit their written comments on the draft convention by 28 July. The first substantive discussions on this text are scheduled to take place in Strasbourg from 16 to 18 October. In submitting its draft, the CDPC secretariat took into account the previous and current work carried out by other international and supranational organisations in the field of environmental protection through criminal law, in particular that of the EU and the United Nations.
In accordance with Article 218 of the Treaty on the Functioning of the EU (TFEU), the Commission intends to adopt a recommendation for a Council decision by the end of June 2023, authorising its participation in the negotiations on behalf of the EU. The Commission is also likely to propose negotiating directives to guide the discussions.
In this sense, the Member States are asked to consider the question of competence to conduct negotiations within the Council of Europe. Given that some elements of the draft convention are already covered by EU legislation, in particular the Environmental Crime Directive - the revision of which is currently being negotiated (see EUROPE 13190/12) - it is necessary to determine whether the Commission has exclusive competence for the negotiations or whether they fall within the joint competence of the Commission and the Member States.
They are also asked to consider the appropriate legal basis for the Council decision, for which it is crucial to consider whether it includes provisions of Part Three, Title V of the TFEU (Area of freedom, security and justice), such as Article 83(2). And with good reason: if this were the case, the provisions of Protocols 21 and 22, concerning the participation and non-participation of the EU, would also have to be taken into account.
Finally, Member States must consider how best to respond to the CDPC’s invitation to comment on the draft convention by 28 July 2023. Coordination and discussion between the Commission and the Member States will be essential to ensure the EU’s effective participation in and constructive contribution to the convention.
To read the document sent to the Member States: https://aeur.eu/f/789 (Original version in French by Nithya Paquiry)