Select Committee on European Scrutiny Thirteenth Report


COM(01) 139

Draft Directive on the protection of the environment through criminal law.
Legal base: Article 175 (1) EC; co-decision; qualified majority voting
Document originated: 13 March 2001
Forwarded to the Council: 16 March 2001
Deposited in Parliament: 17 April 2001
Department: Home Office
Basis of consideration: EM of 23 April 2001
Previous Committee Report: None; but see (22017) 14880/00: HC 28-vii (2000-01), paragraph 13 (28 February 2001)
To be discussed in Council: No date set
Committee's assessment: Legally and politically important
Committee's decision: Not cleared; further information requested


  4.1  In February, we cleared a Framework Decision on the protection of the environment through criminal law.[4] At the Justice and Home Affairs Council on 15 and 16 March, provisional agreement was reached on the objectives and, in principle, the content of that proposal. However, the relevant working groups were instructed to consider whether it needed to be "complemented" by a first-pillar (i.e. EC) measure, in the light of the Commission's proposal for a Directive (the current document).

The document

  4.2  The draft Directive aims to establish criminal offences for certain acts relating to the environment, whether committed intentionally or through serious negligence, and in breach of Community law protecting the environment. It would oblige Member States to set effective, dissuasive and proportionate penalties for these offences, including imprisonment, in serious cases.

  4.3  In its explanatory memorandum, the Commission states:

    "The Commission takes the position that an acquis communautaire on environmental crime can and must be established by Community law. In particular, this is true for the definition of polluting activities which shall be subject to criminal sanctions and also for the Member States' general obligation to provide for criminal sanctions. Those matters fall into the Community competence according to Article 175EC, because they are aiming at protection of the environment. In its Articles 47 and 29, the EU Treaty confers clear priority to Community law. Insofar [sic], there is therefore no room for an instrument according to Article 34 of the EU Treaty."

The Government's view

  4.4  The Minister of State at the Home Office (Mrs Barbara Roche) tells us that the Government fully supports proposals designed to protect the environment. It considers that measures defining prohibited conduct in the context of environmental protection are within Community competence, and that actions to combat environmental crime must be consistent with existing EC environmental law.

  4.5  She continues:

    "Nevertheless, the Government considers that criminal law aspects of environmental protection remain within the competence of Member States (subject to any measures taken under the third pillar). The Government acknowledges that there are precedents where Community law has defined prohibited conduct and has required Member States to impose appropriate sanctions, such as the Directives on money laundering and insider trading. Nonetheless, these instruments have not provided that the conduct must be treated as criminal offences or that only criminal sanctions must be imposed."

  4.6  The Minister does not think that the draft Directive is likely to require changes to current legislation. However, if it were to be adopted, certain parts of UK criminal law would be brought within Community competence and made subject to interpretation by the European Court of Justice. She tells us that the Government does not consider that the provisions on penalties in the draft Directive require Member States to make offences currently subject to fines punishable by imprisonment. It takes the view that the requirement applies in general terms to serious offending, rather than to serious examples of each individual offence.

  4.7  Finally, the Minister confirms that the Presidency has asked the working group on Substantive Criminal Law to examine the Commission's proposal, alongside the existing Framework Decision.


  4.8  The Minister's comments confirm the serious difference of opinion between the Commission and Member States on whether a first or third-pillar measure is appropriate. It is not easy to understand how the Presidency thinks this will be resolved by asking the relevant working groups to consider whether the Framework Decision should be "complemented" (in the words of the Council Press Release) in the light of the Directive.

  4.9  We support the Minister's stance. Contrary to the Commission's arguments, Articles 24 and 47 EU do not, in our view, "confer clear priority to Community law". They simply provide that action under the EU Treaty is without prejudice to the EC Treaty. No criminal law competence for the Community is to be inferred from these provisions.

  4.10  We will maintain the draft Directive under scrutiny until we learn more from the Minister about the progress of negotiations. At that time, we should also like to know:

  • whether the Minister's interpretation of the provisions on penalties in the proposal is shared by other Member States; and

  • what level of resources she considers would be needed to implement this Directive and (at EU level) to monitor its implementation, and how that would compare with the level of resources required to implement the framework decision and monitor its implementation.

  4.11  We do not clear the document.

4  (22017) 14880/00; see headnote to this paragraph. Back

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