Brussels, 13/03/2001 (Agence Europe) - While a framework decision on the criminalisation of damage to the environment is on the agenda of the Justice Council on 15 March, the European Commission adopted, on Tuesday, a competitive proposal that aims to have this initiative adopted on the basis of Community law. Agreeing on the objective and on a large part of the content of the proposal - the need to ensure that environmental damage is punished as a crime, with crimes defined at the level of the EU but sanctions freely chosen by each Member State - the Commission and a majority of Member States are opposed over its legal basis. Infringements that should be the subject of criminal penalties, according to the Commission proposal, would bear on the whole of Community environmental legislation (water and air pollution, substantial degradation of protected habitats …). The Council's project, together with certain nuances on content, does not refer to the Community legislation.
The draft framework decision, drafted on an initiative by Denmark, is based on the EU Treaty, that is, on an intergovernmental approach, with the unanimous adoption by the Member States alone. The Commission, however, considers that the adoption of common rules on the penal protection of the environment must be on the basis of the Treaty of the European Communities, that is, with the adoption by the Council by qualified majority, in co-decision with the European Parliament. Since the aim is to protect the environment, which is part of the acquis communautaire, the protection of this environment - and hence the introduction of penal sanctions to ensure respect of the acquis - must be on the basis of the Community law, states the Commission. It recalls that the Fifteen had decided, at the European Council of Tampere, to include the harmonisation of penal protection of the environment in the scoreboard for the creation of an area of freedom, security and justice within the EU.
For some diplomats, this is a new attempt by the European Commission to create a precedent to enter the private preserve of criminal legislation for Member States. The issue has not yet been settled within the Member States but a large majority is opposed, as things stand, to the question of penal sanctions being introduced into a directive, Presidency sources also say. It would seem, however, that the Council's legal service shares the Commission's opinion. "One must consider this question with great caution, reflecting on the consequences that it could have", stress Swedish sources, adding that it is necessary above all to ask whether all the initiatives tackled at the Tampere Summit should be the subject of a directive, from the moment that they concern a subject under the Treaty's first pillar.