EPPO and environmental crime
| Date | 01 June 2018 |
| Author | Costanza Di Francesco Maesa |
| Published date | 01 June 2018 |
| DOI | 10.1177/2032284418760264 |
| Subject Matter | Articles |
Article
EPPO and environmental
crime: May the EPPO
ensure a more effective
protection of the
environment in the EU?
Costanza Di Francesco Maesa
Max Planck Institute for Foreign and International Criminal Law, Freiburg im Breisgau, Germany
Abstract
Notwithstanding the adoption of European measures aimed at tackling environmental crime and
the possibilities offered by the new provisions set down in the Treaties, the environment in the
European Union is not yet satisfactorily protected, mainly because of an enforcement deficit.
Exploring the possibilities offered by the Treaties, this article examines the possibility of developing
the potential of Article 86 Treaty on the Functioning of the European Union (TFEU). The article
particularly scrutinizes whether the extension of the European Public Prosecutor’s Office’s
(EPPO’s) competence to environmental crime could ensure more effective protection of the
environment via the effective prosecution of perpetrators of serious environmental crime having a
cross-border dimension. To that purpose, firstly, it is ascertained whether and under which
conditions it is legally possible and practically feasible to extend the EPPO’s competence over
environmental crime. Secondly, it is assessed whether extending the EPPO’s competence to
environmental crime is desirable for solving the main problems which cause an enforcement deficit
of environmental rules and whether it represents an added value in ensuring the enforcement of
the Union’s environmental rules. The findings of the analysis are summarized in the conclusion.
Keywords
European Public Prosecutor’s Office, environmental crime, EU criminal law, effectiveness EU law,
environmental enforcement, EPPO’s competence
Corresponding author:
Costanza Di Francesco Maesa, Gu¨nterstalstraße 73, 79100, Freiburg i. Br., Germany.
E-mail: costanzaparigi@gmail.com
New Journal of European Criminal Law
2018, Vol. 9(2) 191–215
ªThe Author(s) 2018
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DOI: 10.1177/2032284418760264
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Introduction
Since time immemorial individuals and corporate entities have unlawfully exploited and polluted
the environment and the natural resources of the only planet we have. Given the mainly profit-
driven nature of environmental offences, they have particularly done this by avoiding costs pre-
scribed by environmental rules and by making illicit financial gains.
During the last decades legislation aimed at tackling environmental crime has been gradually
evolving at the European Union (EU) level. The Directive on environmental crime
1
and the
Directive on ship-source pollution
2
have been adopted in an attempt to harmonize the substantive
criminal law of EU Member States (hereinafter ‘MSs’) as far as environmental offences are
concerned.
However, the domestic legislations of MSs still bear significant differences with regard to the
nature and the level of penalties, as well as the formulation of environmental offences. The vague
definition of some environmental offences is mainly due to a specific feature of environmental
criminal law: its dependence upon administrative law. The interdependence between administra-
tive and criminal law, although entailing important consequences on the regulatory level, has
nevertheless even more considerable repercussions on the enforcement
3
of environmental rules.
As a result, due to enforcement deficit, the environment in the EU is not yet satisfactorily
protected.
4
In this context, to ensure a high level of security of EU citizens,
5
new provisions concerning
judicial cooperation in criminal matters were set out in the framework of Title V of the TFEU. In
particular, Articles 82–86 TFEU represent a major source of improvement of the protection of the
environment by providing various legal bases for fighting environmental crime more effectively.
In this regard, Article 83(2) TFEU assumes a particular relevance, as it represents the legal basis
which allows the EU legislator to establish minimum rules with regard to the definition of criminal
offences and sanctions.
6
Article 85 provides the legal basis necessary to grant Eurojust the
1. Directive 2008/99/EC on the protection of the environment through criminal law [2008] OJ L 328/28.
2. Directive 2009/123/EC on ship-source pollution and on the introduction of penalties for infringements [2009] OJ L 280/
52.
3. The term ‘enforcement’ is given the same meaning as given to it by J.A.E. Vervaele, ‘Community Regulation and
Operational Application of Investigative Powers, the Gathering and Use of Evidence with Regard to the Infringement of
EC Financial Interests’, in J.A.E. Vervaele, ed., Transnational Enforcement of the Financial Interests of the European
Union (Antwerpen/Groningen/Oxford: Intersentia, 1999), p. 54.
4. See A. Farmer et al., Evaluation of the Strengths, Weaknesses, Threats and Opportunities Associated with EU Efforts to
Combat Environmental Crime, EFFACE Research Project (2015). Available at: https://www.ecologic.eu/sites/files/
publication/2016/efface_swot_analysis.pdf (accessed November 2017); EnviCrimeNet, Report on Environmental
Crime (2016). Available at: http://www.envicrimenet.eu/EN/reports (accessed November 2017); V. Mitsilegas and F.
Giuffrida, The Role of EU Agencies in Fighting Transnational Environmental Crime, New Challenges for Eurojust and
Europol (Leiden: Brill, 2017), 39. For a description of the main causes of the environmental enforcement deficit, see
‘Causes for the enforcement deficit’ subsection.
5. Article 67(3) TFEU.
6. Article 83(2) TFEU codifies the jurisprudence of the ECJ, particularly Case C-176/03, Commission v. Council (Envi-
ronmental crime) [2005] ECR I-7879 and Case C-440/05, Commission v. Council (Ship-Source Pollution) [2007] ECR
I-9097. About the potential of Article 83 TFEU in relation to environmental crime, see G. Grasso, R. Sicurella and V.
Scalia, Articles 82–86 of the Treaty on the Functioning of the European Union and Environmental Crime, Study in the
framework of the EFFACE Research Project (2015) Catania: University of Catania". The document is available
at: https://www.ecologic.eu/sites/files/publication/2015/efface_art82-86tfeu_and_environmental_crime.pdf (accessed
November 2017).
192 New Journal of European Criminal Law 9(2)
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