Criminal Sanctions in the Field of EU Environmental Law
| Published date | 01 December 2011 |
| DOI | 10.1177/203228441100200406 |
| Date | 01 December 2011 |
| Author | Jacob Öberg |
| Subject Matter | Analysis and Opinions |
402 Intersent ia
CRIMINAL SANCTIONS IN THE FIELD
OF EU ENVIRONMENTAL LAW
J Ö*
Keywords: deterrent eect; environmenta l crimes
1. INTRODUCTION
e debate on the use of crimin al sanctions in EU environmental law enforcement is
more intense now than ever. At the centre of public attention is in par ticular the
question as to whether environmenta l criminals should be sent to prison. Is it mora lly
unjust to send individual oenders to ja il for a minor steali ng oence, but impose a
mere monetary sanction on oenders of some egregious violations that caused
signicant environmental harm?1 Before entering this complex and contested issue,
let us take a step back and have a look at the legal background of the enforcement of
environmental law in the Eu ropean Union.
Prior to the European Cour t of Justice’s (CJEU, ‘Court’) judgment in the
Environmental Crime Case 2 it was perceived among commentators that the principle
of sovereignty in conjunction with t he absence of express power of the Community in
the EC Treaty was an obstacle for the Com munity to introduce criminal sa nctions to
enforce Commu nity law.3 e contention that crimina l law is the exclusive business of
the sovereign state has, however, been challenged by the latest developments in EU
* PhD Researcher at t he European Univer sity Institut e, Florence. E-mai l: Jacob.Oberg@EUI.eu .
Postal addres s: Villa Schifa noia, Via Boccaccio 121, 1–501 33 Firenze/Ita ly. An extended version of
this contribut ion was presented at t he “2nd ECLAN PhD Sem inar on the EU Are a of Crimina l
Justice”, on 29November 2011 in Luxembou rg. Special than ks to Professor Giorgio Mont i, EUI, for
his superv ision, support and constr uctive comments.
1 See German i, R., Environmental Law and Econo mics in U.S. and E.U.: A Common Ground?, June
2004, p.10. Available at www.cems.ac.uk/documents/research-34.pdf.
2 See Case C-176/03, Commission of the European Communities v Council of the European Union, ECR
[2005], p.I-7879.
3 See Case C-4 40/05, Commission of the European Communities v Council of the European Union,
ECR [2007] p. I-0909., Opinion of G eneral Advocate Maz ak, para. 72; S ee House of Lords Europea n
Union Committee , “e Criminal Law C ompetence of the European Com munity”, 42nd Report of
Session 2005 –2006 (28July 2006), HL Paper 227 Hou se of Lords, para. 13.
Crimina l Sanctions in the Fiel d of EU Environmental Law
New Journal of Eur opean Crimina l Law, Vol. 2, Issue 4, 2011 403
law, both in terms of treaty amendments4 and in case law of the Cour t. In the
Environmental Crime Case5, w hich concerned legislation in the area of envi ronmental
policy, the Court held that, under Article175 EC (now 192 TFEU), the Community
had the power to require Member States to enact cri minal law measures if such
measures would be ‘essential ’ to ensure that the rules on envi ronmental protection are
‘fully eective’.6 ere are several questions in relation to the Court’s case law and
Article175 EC:
1) What is meant by ‘eectiveness’ of Union law?
2) How can the Union legislator be sure t hat criminal sanc tions are the most eective
measure to enforce Union environmental law?
3) Does empirical evidence suppor t the assertion that criminal sanctions are more
deterrent than other sa nctions?
Despite these concerns, the Commission and the Community legislator have
proceeded to adopt the Environmental Crime Directive on the basis of the case law
referred to.7 In summa ry, the Directive requires that a minimum set of ser ious
environmental oences be est ablished that should be considered crimina l throughout
the Union when committed intentionally or with at least serious negligence.8 ese
oences should be punishable by eective, proportionate and dissuasive cri minal
sanction s.9
e aim of this contribut ion is to analyse whet her the adoption of the Environmenta l
Crime Directive wa s an appropriate decision from a crim inal policy perspective. e
basic question asked in th is contribution is whether the Union should enforce Union
environmental law by means of cri minal sanctions. In particu lar, this contribution
examines whet her criminal law measures are suitable for the enforcement of Union
environmental rules and secondly if there are ot her measures which are equa lly
eective.
4 See Article8 3(2) of the Treaty of the Functioning of t he European Union.
5 is judgment has b een analysed by inter alia: Wasmeier, M. and Twaites, N., “e “ battle of the
pillars”: does t he European Community have t he power to approximate national cri minal laws?”,
E.L. Rev. 2004, 29(5), 613–635; Tobler, C., ‘Case-note’, 43 Common Mark et Law Review 835 (2006);
Herlin-Karnel l, E., “Commission v. Counc il: Some Reection s on Criminal Law i n the First Pilla r”,
European Public L aw (2007), pp.69–84.
6 See Case 176/03, the Commis sion of the European Commun ities v the Council of the E uropean Union,
supra note 2, pa ra. 48.
7 Directive 20 08/99/EC of the European Pa rliament and of the Cou ncil of 19November 2008 on the
protection of the env ironment through cri minal law, OJ L 328/28 of 06–12–2008 (‘Envi ronmental
Crime Direct ive’); Commiss ion Proposal of 9 February 2007, COM (2007)51 nal, 20 07/0022
(COD).
8 See Article3 o f the Environmental C rime Directive.
9 See Article5 o f the Environmental C rime Directive.
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