Verbatim report of proceedings

Monday, 19 May 2008 - Strasbourg

20. Protection of the environment through criminal law (debate)

  President. − The next item is the report (A6-0154/2008) by Mr Nassauer, on behalf of the Committee on Legal Affairs, on the proposal for a European Parliament and Council Directive on the protection of the environment through criminal law (COM(2007)0051 – C6-0063/2007 – 2007/0022(COD)).

  Hartmut Nassauer, rapporteur. − (DE) Mr President, the European Union is resorting to the instrument of criminal law. In other words, sentences are to be passed in future in the name of the European Union, and these powers are to be exercised initially in respect of infringements of environmental law. This is a far-reaching and remarkable step, because criminal law is actually outside the sphere of competence of the European Union. Indeed, it is one of the core areas of the Member States’ national sovereignty.

That is precisely why it took two rulings from the European Court of Justice to break the ground for this directive. That is curious in itself, because both the Council and the Commission and Parliament have long been in agreement that penal measures are a valid instrument for the enforcement of environmental law. It took several years, however, to establish where responsibility lay for such measures – with the Member States on the basis of framework decisions or with the Community on the basis of a directive.

The European Court of Justice endorsed the position adopted by the Commission, which is not surprising. Moreover, having now been defused, the conflict is unlikely to resurface, since the new Treaty of Lisbon addresses the problem and comes down more heavily in favour of the Community than the rulings of the ECJ.

This, indeed, is the reason why we concluded a first-reading agreement. We wanted to avoid having to restart the whole procedure from scratch if a solution did not materialise this year. Given a change in the substantive legal basis and in view of the forthcoming European elections, a considerable length of time might no doubt have elapsed before the appropriate legislation could be enacted. This is why we unanimously took the view that we must make every effort to reach a solution at first reading. When I say ‘we’, I mean the Slovenian Presidency – and I very much regret that it is not represented here, especially since I put on a tasteful tie in its honour – the Commission and the shadow rapporteurs, to whom I wish to pay special tribute for their amicable, constructive and informed cooperation. It was a joy to work with them.

The new directive rests on three pillars, which I should like at least to outline briefly. First of all, we have not only defined the criminal acts that would henceforth be punishable but also set out in an annex the specific provisions under which offenders may be charged. That accords with the principle of nulla poena sine lege. It is not just any criminal offence which would be punishable but the infringement of one of the legal provisions precisely defined in the annex. It was important to enshrine this principle in the legislation.

The second point is, to a certain extent, an incorporation of the proportionality principle. The purpose of the directive cannot be to throw the book at everyone who commits even the most trivial environmental transgression but rather to combat significant offences. For this reason, petty offences would not be punishable under the directive.

Thirdly, we also laid down that punishability would presuppose unlawful conduct. We unanimously enshrined these three principles in the draft. We also decidedly improved the definitions. I now keenly await the debate. Let me reiterate my thanks to all the Members of the House who have made this compromise possible.

  President. − Thank you, Mr Nassauer. You referred to the particular quality of your tie. I had noticed that too but did not venture to remark on it. Now that you have done so yourself, however, I gladly confirm that it had indeed come to my attention.

  Jacques Barrot, Vice-President of the Commission. − (FR) Mr President, Mr Nassauer and I may not be wearing entirely identical ties, but he nonetheless has my entire support for the work he has done – and my sincere thanks.

The Commission welcomes the outcome of the negotiations with Parliament and the Council, and the fact that agreement at first reading seems possible. This is yet another success for the three institutions and it demonstrates, Mr President, that the codecision procedure is very effective, even where the issues are complicated and difficult. I must say that Mr Nassauer, as rapporteur for the Committee on Legal Affairs, the draftsman of the Environment Committee’s opinion and the shadow rapporteurs all worked hard and constructively with the Council Presidency and the Commission to achieve this compromise from the informal trialogue, which is before you today.

Mr Nassauer has explained the issues well, so I shall be brief. It is true that efficient environmental protection depends on the effective and complete transposition of Community policy. Criminal law is an indispensable tool in that respect. When it comes to the most serious offences, the only real deterrent is the sharp sanction of criminal penalties, always bearing in mind, as you have pointed out, the need to respect the principle of proportionality.

While the Commission would have wished to approximate the level of penalties, the Court of Justice judgment of October 2007 makes that impossible on the legal basis of the Treaty, and the Court’s ruling must be respected. Even without approximating the level of penalties, however, the directive will contribute significantly to more efficient protection of the environment – not least through its deterrent effect. The Member States will agree on definitions of environmental offences, on the extent of corporate liability for such offences, and on the need to introduce effective, proportionate and deterrent sanctions.

We therefore hope and trust that, given the ground we have already covered, all this can be achieved. The Council of Europe Convention on the Protection of the Environment through Criminal Law was signed here in Strasbourg 10 years ago – and it has not yet come into force! It is thus high time that we created an effective European legal instrument concerning protection of the environment in criminal law. I am counting on Parliament’s support so that we may achieve our goal without delay, and I should like once again to thank the rapporteur.

In conclusion, the Commission is bound to make certain declarations which form part of the compromise agreed with the legislative institutions. I shall now read these declarations, Mr President.

‘Declaration No 1: the European Commission takes note of the following amendment, adopted by the Parliamentary Committee on Legal Affairs. “Where a continuing activity proves after a lapse of time to give rise to environmental damage which may in turn give rise to criminal liability under this Directive, the question whether or not the perpetrator of the damage acted intentionally or negligently should be determined by reference to the time when the perpetrator became aware, or should have been aware, of the facts constituting the offence and not to the time when the perpetrator commenced its activity. It should be borne in mind in this connection that the prior grant of an authorisation, licence or concession should not constitute a defence in such circumstances.” The Commission fully understands the concerns expressed in this amendment. These matters lie within the competence of the Member States and we are confident that the Member States will take these important questions into consideration.’

‘European Commission Declaration No 2: the secondary legislation associated with Annex B of this Directive, concerning health and safety and intended to protect the public and the environment against dangers arising from activities involving ionising radiation, was adopted on the basis of the Euratom Treaty. Member States’ obligations to introduce criminal penalties in application of the Directive therefore extend to unlawful behaviour in breach of the provisions of legislation adopted on the basis of the Euratom Treaty, and they must be determined with reference to that legislation.’

I am sorry that I had to read these two texts out, but I was required to do so. That done, Mr President, I now intend to give my full attention to the debate.

  Dan Jørgensen, draftsman of the opinion of the Committee on the Environment, Public Health and Food Safety. – (DA) Mr President, I would like to start by saying that there is not only reason to praise Mr Nassauer’s tie. There is also reason to say many nice things about his major contribution in connection with finding a compromise in this difficult matter. The decision that we are now taking is an extremely important one. One of the major problems with the EU’s environmental policy is that it is unfortunately not being implemented uniformly in the individual countries, and in particular is not being managed uniformly in the individual countries. This is therefore the problem that we are now seeking to resolve through this major step forward. In the future, we will ensure that the same breach is punished in the same way in all EU Member States, wherever it is committed. I am also very happy to note that we now have some definitions of what such breaches consist of. We now have a clear list, which we stress must not be static, but dynamic, and which shows when the fundamental principles of environmental policy are being breached. In the Committee on the Environment, Public Health and Food Safety, we have been very concerned about ensuring that habitat areas in particular are protected, and we are pleased that this has been included. We would also like to have had more details on how tough the penalties should be. This was unfortunately not possible on the basis of the current treaties, but overall we are very pleased about the result. It is a big step forward for environmental protection.

IN THE CHAIR: MR DOS SANTOS
Vice-President

  Georgios Papastamkos, on behalf of the PPE-DE Group. – (EL) Mr President, last summer Greece suffered one of the worst disasters it has known in recent times. More than 60 people perished, there were many casualties, and thousands of hectares were reduced to ashes. Such was the tragic toll of the fires of the Western Peloponnese, Attica and Evia. Similar disasters have been experienced in previous years by other Mediterranean EU countries such as Spain, Italy and Portugal.

Forest arson endangers human lives and the natural wealth of a region. It is undoubtedly one of the gravest and most heinous criminal acts of our times.

A Commission directive on the protection of the environment through criminal law has been proposed. The directive does not take into account the final outcome of the relevant legislative process, which will owe more to differences in legal technicalities than to substantive issues. However, a move is being made in the right direction; it will provide vital means of protecting the environment more effectively in the years to come.

I should personally like to thank the European Parliament’s rapporteur, Mr Nassauer, for the sensitivity he has shown in a conciliation amendment by adopting a provision billing the act of arson as a criminal offence. I also thank the members of the Spanish delegation of the Group of the European People’s Party (Christian Democrats) and European Democrats who have supported my amendment.

  Manuel Medina Ortega, on behalf of the PSE Group. − (ES) Mr President. I believe that, in a few years time, this European Parliament part-session will be seen to have established an important precedent in the development of European Union law.

In principle, the European Union has no competence in matters of criminal law, which lies with the Member States. As the rapporteur said, the two Court of Justice rulings have opened the way for a certain level of Community competence in criminal law, albeit limited.

Mr Jørgensen said this is not about harmonisation, but about the approximation of laws, and in this respect I believe that Parliament, through its rapporteur Mr Nassauer, the Council and the Commission, the Slovenian Presidency and Commissioner Barrot have all helped to promote an agreement that is acceptable to all.

As I said, we are talking about harmonisation and not legislative approximation. We are going to harmonise the categories of crimes, which is the principle of criminal law, and as Mr Nassauer said, with legal precision, criminal categories cannot be general or arbitrary in character.

We are respecting the principle of proportionality while eliminating minimum sanctions, and we are establishing the principle that you cannot prosecute conduct if there is no sanction available for such conduct.

I believe that the Commission's Declaration, especially what it said about negligence and the establishment of liability, will help us to continue making progress on this issue. For the moment, we can go no further, and I believe that we will only be able to do so if there are substantive changes to European Union law, with new constitutional rules. However, Parliament, along with the Council and the Commission, is doing everything it can to strengthen the law on the protection of the environment and the corresponding criminal regulations, in accordance with the old Council of Europe Convention, which provided for the establishment of criminal liability for breaches of environmental regulations. Thank you.

  Diana Wallis, on behalf of the ALDE Group. – Mr President, as has already been said, we should thank Mr Nassauer for his work on this first-reading agreement; also particular thanks should go to the Commission for helping us get there in the end.

As Mr Medina has just said, it has been and will be a noteworthy first-reading agreement. It is historic in the development of the codecision process and particularly for this House to be involved in setting penalties in relation to criminal law. It really is a noteworthy development. This directive will at last bring legal certainty in an area where in the past we have witnessed a rather undignified ping-pong between the European Court of Justice and the various arms of the European legislature. Now we have some certainty and some clarity.

Above all, it is a big plus for protection of the environment. Over the years, as a member of the Committee on Petitions, I have noted that it is damage to the environment that most frequently brings our citizens to seek our help in implementing what they see should be European law. Now at last we will be able to say that we have – or should have – the effective means to make sure that European environmental law is indeed implemented and enforced as our citizens expect across the European Union.

But not only that – there is another strong message for this Parliament here. One of the things we insisted on in this agreement was the so-called correlation tables. These would enable us to see, in this very complex piece of legislation, exactly where Member States insert European legislation into their national law. This is something that we are serious about as a Parliament and at last we have been heard. I think it goes a long way towards showing our competence and growing effectiveness as a legislature, which augurs well for the coming entry into force of the Lisbon Treaty.

  Monica Frassoni, on behalf of the Verts/ALE Group. – (IT) Mr President, ladies and gentlemen, my Group does not usually like first-reading agreements, because the quality of the law is often compromised in the rush and pressure to reach agreement. I have to say, Mr Nassauer, that if you had asked me a year ago whether in my opinion we would reach a bipartisan agreement on protection of the environment through criminal law, with Mr Nassauer as rapporteur and at first reading, I would probably not have believed it. Nevertheless it has happened, due to excellent teamwork, made possible through strict observance of the informal dialogue procedures with the Commission and the Council who, whenever possible, have involved the rapporteur and the shadow rapporteurs, and due also to the valuable work of the Environment Committee. I would therefore like to thank the rapporteur and his colleagues most sincerely because this is an important achievement, as indeed all the other speakers have said.

Mr President, the Court of Justice ruling has clearly prevented us from establishing penalties and this has clipped our wings somewhat but, as a result, I hope that after the vote we, the European Union, will collectively keep this issue in mind. I think we should pay serious attention to this matter when the Lisbon Treaty has been ratified.

Of course, as with everything in life, this directive is not perfect. For example, we are not very happy with the complicated annex which gives a long, albeit exhaustive, list of the directives to which this new law is to apply. We would have preferred simply to have a system proposed by the Commission and approved by the Environment Committee, which made it perfectly clear that a whole series of offences were automatically classed as punishable under criminal law in addition to the directives in question.

Nor are we all that happy with the fact that the transition period is two years. We feel that this could have been improved and, like Mrs Wallis, we are very pleased about the obligation placed on the Member States to provide correlation tables, in other words States must inform us swiftly of how they are applying the laws, which they often fail to do.

However, we fully support the move to ensure that a series of offences can no longer go unpunished. I come from a country, Italy, where there has been a temptation to do this, where it has actually been done, and I am pleased that this directive rejects the possibility and that the destruction of natural sites, vandalism and other similar matters will no longer go unpunished.

  Jens Holm, on behalf of the GUE/NGL Group. – (SV) There is no doubt that anyone who offends against environmental laws must be punished. The penalties must be severe and have a deterrent effect so that environmental crimes will not be repeated. But should we harmonise the criminal provisions? Should the EU say what the sanctions should be – custodial sentences, fines and other penalties? No, it is up to the Member States to decide on those matters.

The risk in harmonising legislation is always that progressive countries may be forced to lower the standard of their provisions. That is not acceptable. If we hand over the right to decide on these matters to the EU, what is the next step? Of course the EU must act to ensure that the Member States improve their environmental legislation. We can and must disseminate good practice, and we can help and support those Member States which for various reasons are lagging behind. Drawing up tables with concrete indicators by which Member States can be compared is an excellent example. In that way we create a system which has a high degree of legitimacy and is democratically anchored. That is also how we can work best to defend the environment.

  Aloyzas Sakalas (PSE). – Mr President, I would like to thank the rapporteur for collaborating so thoughtfully and to say how pleased I am that we managed to find a solution in our discussions which everyone could accept. Having said that, I would like to make three points.

Firstly, I fully support the idea this report has to be adopted before the Lisbon Treaty enters into force. This will mean that all Member States will have to apply criminal sanctions in accordance with the new directive sooner rather than later. The burning of forests in Greece should be very instructive for all of us.

Secondly, I would like to stress the desirability of the new wording for point ‘h’ of Article 3 in relation to any conduct which causes ‘the significant deterioration of a habitat within a protected site’. This represents a considerable improvement over the narrower wording originally proposed by the rapporteur.

Thirdly, our most controversial discussions concerned the annexes. In this connection, I note that the scope of Member States’ competence will not be limited thereby, with regard to Article 176 of the EC Treaty. In addition, a list of relevant Community legislation will provide the necessary legal certainty required in the context of the criminal law. This approach also avoids the need to define certain terms, such as water or waste, in the directive. For this reason, I support the introduction of the two annexes to the directive.

I fully support the document proposed by Mr Nassauer.

  Mojca Drčar Murko (ALDE). – (SL) We in the Environment Committee expected the creation of common standards for criminal prosecution in the case of environmental offences to go beyond this compromise and, in addition to Community law, to cover Member State legislation as well. However, it turns out that at the moment the compromise reached is the limit of what is acceptable. Nevertheless, it is a major step forward for environmental protection, since in the case of serious criminal offences against the environment as listed in the Annex, coordinated application of effective, commensurate and deterrent sanctions is provided for.

With regard to the criminal law policy of the individual states, which will develop on this basis, we should like to draw attention to the rules of modern criminal law, under which the level of the threatened penalties is less crucial than the reliability of criminal prosecution. The perpetrators can be certain that they will not find a safe haven anywhere in Europe.

  Hiltrud Breyer (Verts/ALE). – (DE) Mr President, it is really very heartening that the Commission did not let itself be unnerved by the Member States and has presented a proposal on the criminal liability of environmental offenders, because we cannot go on treating infringements of environmental law as mere peccadilloes. It is also encouraging, on the very day when the UN Biodiversity Conference opened, that the legislative proposal defines nature reserves better and more clearly and helps to spell out what constitutes an offence.

It is, however, regrettable that there are no sanctions and that there is no blanket treatment of offences as criminal acts. That, sadly, creates loopholes, especially with regard to the protection of flora and fauna, where offenders are not sentenced as a matter of course and many are able to escape by pleading ignorance. It would therefore have been logical and beneficial if this directive had covered genetic engineering too. Criminal conduct in environmental matters must be punished, and I hope that this directive will be a milestone and will demonstrate clearly that the environment is an asset which is worth protecting and that we must make every effort to ensure that infringements of environmental law do not go unpunished.

  Jacques Barrot, Vice-President of the Commission. − (FR) Mr President, this debate really has highlighted the fact that we are taking an important step into a new phase. Perhaps I should say we will be taking that step if, as we hope, this text – and I would again like to thank Mr Nassauer for his role in preparing it – makes clear, to borrow Ms Frassoni’s words, that ‘offences can no longer go unpunished’. That, I believe, is what matters. It is a genuine step forward. I would add that the Commission was not initially in favour of annexes; however, while the Commission still takes the view that this type of annex is not necessary, its inclusion, in accordance with the wish of most Member States, is acceptable. The annex as it is now tabled is comprehensive and includes all the major pieces of environmental legislation of potential relevance to the offences described in the Directive.

At the same time, of course, we cannot claim to have produced an exhaustive list, and indeed it would have been risky to claim that any such list was exhaustive. On the other hand, it is now my conviction – and I would simply like to share it with the Members of the House, Mr President – that, once the Directive has been adopted, the Member States will have 18 months to transpose its content into their national laws and it goes without saying that the Commission will scrutinise the transposition process in great detail. In the light of the legal framework, it will reassess the need to bring forward proposals for additional legislation.

I am convinced that particularly vigilant screening will be needed to ensure that the transposition properly reflects the spirit which, on the European Parliament’s part, has informed this legislation. I am told that the compromise time limit is 24 months. Yes, that is correct, 24 months is indeed the compromise. I was being rather more ambitious. That said, the Commission can assure you today that it will be keeping an extremely close eye on the transposition of this text, which does indeed signal major progress on environmental protection in Europe.

  Hartmut Nassauer, rapporteur. − (DE) Mr President, if I may begin with the last point, namely the transposition period, let me say that this directive sets a precedent. Mr Medina rightly pointed out that all of the environmental legislation in the Community will have to be screened for penal compatibility, as it were, in the light of the new definitions of criminal offences. This will be being done for the first time and is a very extensive undertaking. Accordingly, it makes sense to give the Member States 24 months rather than only 18.

The other thing I wanted to say is addressed to the Commission. This matter may not necessarily lie within your sphere of competence at the present time, Commissioner Barrot, but it will in the future. The Commission now has a new resource; it has a new set of instruments at its disposal which, as I have said, are essentially and fundamentally in the hands of the Member States. I believe that the Commission would be well advised to exercise caution in the use of these instruments. Penal screening of Community law, of course, is not solely applicable to environmental legislation but can, in principle, be applied to all other areas of Community activity. That is why I believe the Commission would be well advised to proceed with caution here, for criminal law is the last resort in the enforcement of legislation and not an instrument for everyday use. The Member States will not exactly be over the moon about all of this. Besides, to put it very delicately, legal scholars have been extremely hesitant to incorporate the judgments of the European Court of Justice into legal doctrine and jurisprudence.

My advice to the Commission is therefore to make cautious use of these instruments, and the directive will be all the more effective when it is subsequently applied in practice.

  President. − The debate is closed.

The vote will take place on Wednesday, 21 May 2008.