The ecocrime directive and its translation into legal practice

AuthorGiovanni F. Perilongo,Emanuele Corn
Publication Date01 June 2017
Date01 June 2017
DOI10.1177/2032284417711577
SubjectArticles
Article
The ecocrime directive
and its translation into
legal practice
EU green offences and their impact at national level
according to the results of a recent survey
Giovanni F. Perilongo
University of Trento, Italy
Dr. Emanuele Corn
University of Antofagasta, Chile
Abstract
Directive 2008/99/EC, on the protection of the environment through criminal law, was approved
after fierce dispute among European institutions. Its aim was to harmonise the definition of
environmental offences in the EU and to ensure that they would be punished with ‘proportionate,
effective and dissuasive’ criminal sanction. The authors, after having outlined the notion of envi-
ronmental crime that the harmonisation instrument wishes to combat, critically assess its policy
objectives and investigate the legal and practical outcomes of its implementation. In the final
paragraph, they discuss the challenges faced by national authorities when trying to translate such
supranational legislation into court practices.
Keywords
Environmental crime, directive 2008/99/EC, criminal sanctions, administrative sanctions, legal
practice
Introduction
The protection of the environment is a fundamental issue in EU policy. Primary EU law requires
that environmental protection be integrated into the definition and implementation of all European
policies, ‘‘with a view to promoting sustainable development’’ (Article 11 TEU). European insti-
tutions are also given an express mandate to contribute to ‘‘protectingand improving the quality of
Corresponding author:
Giovanni F. Perilongo, University of Trento, Trento, Italy.
E-mail: gf.perilongo@unitn.it
New Journal of European Criminal Law
2017, Vol. 8(2) 236–255
ªThe Author(s) 2017
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DOI: 10.1177/2032284417711577
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the environment’’ and to ‘‘promoting measures at international level to deal with regional and
worldwide environmental problems’’, as well as ‘‘protecting human health’’ and ensuring ‘‘the
prudent and rational utilisation of natural resources’’ (Article 191 TFEU). Though it could be
argued that the fundamental objectives of European environmental policy reflect an economy-
oriented approach, environmental harm does represent a major concern of European institutions
and the contrast therefore a primary target of European policy.
In recent years, environmental protection has grown particularly important in the context of
European criminal law. In the early 2000s, at the initiative of the Kingdom of Denmark, Eur-
opean institutions initiated the procedure for the approval of a harmonised text on the protection
of the environment through criminal law, which ultimately led to enactment of Directive 2008/
99/CE (hereinafter, the ‘Ecocrime Directive’). The approval of the Ecocrime Directive was
marked by a harsh contrast between European institutions, as both the Council and the Com-
mission had initially issued two different proposals with a conflicting legal basis. The Council
proposed a framework decision
1
(which it later adopted), arguing that criminal law fell beyond
the scope of EC competence and that any harmonised text in this domain had to be adopted
through intergovernmental cooperation (EC third pillar). The Commission issued a directive
proposal
2
, submitting that the use of criminal law was essential to the implementation of the EC
environmental policy and was therefore comprised withi n the environmental mandate of the
Community (EC first pillar). The competence dispute was settled by two landmark decisions of
the European Court of Justice (hereinafter, the ‘ECJ’), which annulled the Framework decision
adopted by the Council and reaffirmed the EC competence in the field of criminal law, though
partially limiting its scope
3
.
The conflict over the competence of supranational environmental criminal law is essential in
order to understand both the content and the rationale underpinning the Ecocrime Directive. At the
time of the Directive’s approval, protecting the environment had become a question of competence
rather than a question of policy: environmental crime had become the battlefield on which the EC
fought to acquire a role as primary actor in the domain of criminal law. In this respect, the
importance attached to the Ecocrime Directive reflected the political relevance of the competence
issue more than the actual relevance of environmental crime for criminal justice systems. The
emphasis placed by the Commiss ion on the need for criminal law as a means to protect the
environment reflected the urgency of justifying the adoption of a harmonised text under the EC
first pillar, in terms of subsidiarity and proportionality, rather than genuine concerns for environ-
mental protection
4
. Though there was at the time–as there is now–a widespread awareness of the
negative impact of this type of crime on human health and biodiversity, it is fair to say that green
1. Initiative of the Kingdom of Denmark with a view to adopting a Council framework Decision on combating serious
environmental crime (OJ C 39, 11 February 2000, p. 4–7), later adopted as Council Framework Decision 2003/80/JHA
of 27 January 2003 on the protection of the environment through criminal law (OJ L 29, 5 February 2003, p. 55–58).
2. Proposal for a Directive of the European Parliament and of the Council on the Protection of the Environment through
Criminal Law /* COM/2001/0139 final – COD 2001/0076 */ (OJ C 180E, 26 June 2001, pp. 238–243). The proposal was
later amended.
3. Case 176/03 Commission of the European Communities v Council of the European Union (Environmental Legislation
Litigation) [2005], ECR I-7879; Case 440/05, Commission of the European Communities v. Council of the European
Union (Ship Source Pollution) [2007] I-9097.
4. In general on this aspect, Wendy De Bondt, ‘Evidence Based EU Criminal Policy Making: In Search of Matching Data’,
European Journal of Criminal Policy and Research 20(23) (2014), p. 49.
Perilongo and Corn 237

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