Brussels, 29/01/2003 (Agence Europe) - Three years after it had been proposed by Denmark, the EU Council has adopted the framework decision relating to protection of the environment through criminal law. Member States have two years to include sanctions in their legislation for offences against the environment, whether such damage is intentional or due to negligence, by a natural or a legal person. The framework decision comprises a precise definition of such environmental offences which come within its scope when such offences cause or are likely to cause serious damage to persons, protected monuments, animals or plants. They include: the dumping, emission or introduction of a quantity of substances or ionising radiation into the atmosphere, the soil or water; the illegal elimination, processing, storage, transport, and export or import of waste; the illegal operation of a factory in which a dangerous activity is being carried out; the illegal manufacture, processing, storage, use, transport and import or export of nuclear matter or other dangerous radioactive substances; the illegal possession, capture, degrading, death or trade in protected animal or plant species; and the illegal trade in substances that deplete the ozone layer.
For natural persons, these offences should be liable to effective criminal sentences, which are proportionate to the crime and dissuasive and which include, at least in the most serious cases, prison sentences that may lead to extradition. Such sanctions may be accompanied by other measures, especially withdrawal of the right to carry out an activity requiring an official authorisation or approval, or to be the founder, director or member of the board of a company or foundation, if there is evidence to show there is a manifest risk that the person concerned may pursue the same kind of activity. Legal persons held responsible for such offences should be liable to criminal or non-criminal fines, and possibly other penalties, especially measures of exclusion from an advantage or from public aid, or measures placing a temporary or permanent ban on carrying out an industrial or commercial activity.
The Council had already reached a political agreement on the content of this framework decision in March 2001 (EUROPE of 17 March) but took nearly two years to confirm the agreement, largely due to the opposition between member States and the Commission on the legal basis of this text. The Commission hoped that the principle of sanctioning environmental offences would be based on Community environmental competence (first pillar, Community), even if it means that harmonisation of sanctions is based on European Union competence in judiciary cooperation (third pillar, intergovernmental). The Commission had therefore submitted a first proposal rivalling that of Denmark in March 2001, reviewed in October 2002 (EUROPE of 14 March, 2001). Member States were opposed to this, considering that, in so doing, the Commission was seeking to institute Community competence in criminal law. The Council stresses in the preamble to the framework decision that it considered the present framework decision, based on Article 34 of the Treaty on European Union, constituted an appropriate instrument for making it an obligation for Member States to foresee criminal sanctions. The amended proposal presented by the Commission was not of a kind to modify the Council's position on this issue.