Select Committee on European Scrutiny Second 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
Department: Home Office
Basis of consideration: Minister's letter (undated)
Previous Committee Report: HC 28-xiii (2000-01), paragraph 4 (2 May 2001)
To be discussed in Council: No date set
Committee's assessment: Legally and politically important
Committee's decision: Not cleared; progress report requested


6.1 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.

6.2 When we considered this document, in May, we left it uncleared. We agreed with the Government that the criminal law aspects of environmental protection were matters for Member States (subject to any measures taken under the EU's Third Pillar),[5] and not within the competence of the Community. We asked to be kept informed of the progress of negotiations, and raised two further questions related to the document.

The Minister's letter

6.3 We have now received an undated letter from the Parliamentary Under- Secretary of State for Anti-drugs Co-ordination and Organised Crime at the Home Office (Mr Bob Ainsworth). The Minister begins by telling us that the document has been discussed only once, at Working Group level, since it was deposited for scrutiny. He then addresses our questions.

6.4 Our first question was whether the Government's interpretation on penalties was shared by other Member States. In reply, the Minister says:

    "Our interpretation is that the requirement in Article 4 to provide imprisonment for serious cases applies in general terms to serious offending, rather than to serious examples of each individual offence. The interpretation was shared by the Swedish Presidency and other Member States in the criminal law working group."

6.5 We also asked what level of resources would be needed to implement and monitor (at EU level) the draft Directive, compared with those that would be required to implement and monitor the Framework Decision. The Minister replies:

    "The Government considers that the cost of implementation would inevitably be affected by the changes necessary to United Kingdom law....The assessment of the necessary changes is ongoing; therefore, the Government cannot place a figure on the likely costs. An assessment of EU monitoring costs has yet to be made."

6.6 The Minister also expands on the Government's position as regards the extent to which First Pillar[6] instruments can be used to define criminal laws and stipulate the nature and level of sanctions. He says:

    "We continue to think that there is no such competence in criminal matters under the First Pillar.

    "It is of course clear that a First Pillar instrument can stipulate that certain conduct is to be prohibited, and may in certain cases specify the sanctions which Member States must impose for the breach of its provisions. In the context of the Common Agricultural Policy, for example, the ECJ [European Court of Justice] has confirmed that the Community legislature has the power to require the imposition of administrative sanctions of various forms (Case C-240/90 Germany v Commission), without expressing a view on whether the Community has a power to require 'penal', that is to say 'criminal', sanctions (see paragraph 24 of the judgment).

    "We take the view, however, that the approximation of laws relating to criminal offences is a matter exclusively for Title VI of the Treaty on European Union. Conversely, the scheme of the EC Treaty militates against the existence of a power to harmonise criminal laws or criminal sanctions. We understand that this position is at present shared by a number of other Member States.

    "Of course, the adoption of Community rules, and indeed general Treaty principles such as non-discrimination, may have an indirect impact on the criminal laws of the Member States, as will the principle that infringements of Community rules must be penalised by effective and dissuasive sanctions which are at least as severe as those imposed for breaches of comparable national provisions. But we are not at present persuaded that a measure can be adopted under the Environmental Title of the EC Treaty which would have as its aim the approximation of laws relating to environmental crime."


6.7 We thank the Minister for his response, and for expanding on the Government's position in relation to Community competence in criminal matters. We reiterate our agreement with his stance.

6.8 There does not seem to have been much progress on the document since it was deposited. We ask to be kept informed about developments, especially in relation to the competence issue. Meanwhile, we do not clear the document.

5   i.e. inter-governmental co-operation in the field of Justice and Home Affairs.  Back

6  The EU's First Pillar is the European Communities, as opposed to the two inter-governmental pillars.  Back

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