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The EU Fight against Environmental Crime – Directive 2008/99

The EU Fight against Environmental Crime – Directive 2008/99 . Helge Elisabeth Zeitler DG Justice, Criminal Law. Background . Prior legislation on European level Council of Europe Convention 1998 First Commission Directive proposal 2001 Framework Decision on Danish initiative 2003.

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The EU Fight against Environmental Crime – Directive 2008/99

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  1. The EU Fight against Environmental Crime – Directive 2008/99 Helge Elisabeth Zeitler DG Justice, Criminal Law

  2. Background • Prior legislation on European level • Council of Europe Convention 1998 • First Commission Directive proposal 2001 • Framework Decision on Danish initiative 2003

  3. Political Background – Institutional fight on criminal law competence • Pre-Lisbon – Criminal law in the „first“ or „third“ pillar? • ECJ judgement 176/03 of 13 September 2005 – Commission v. Council (Grand Chamber) • New Directive proposal COM (2007) 51 of 9 February 2007 • ECJ judgement 440/05 of 23 October 2007 – Commission v. Council (Grand Chamber)

  4. Legislative Procedure • Discussions in Council (Working Group on Substantive Criminal Law) from March 2007 to March 2008 • European Parliament (rapporteur – Hartmut Nassauer, Legal Affairs Committee –Environmental Committee accociated) – report in April 2008 • Political Agreement between Council and EP in May 2008 • Formal Adoption 19 November 2008

  5. Scope of liability in the Directive • Agreed list of offences • Intent and „at least serious negligence“ • Natural and legal persons • Inciting, aiding and abetting

  6. Applicable Sanctions • COM proposal • Approximation of minimum maximum sanctions (imprisonment and fines for legal persons) • Aggravating circumstances • ECJ judgement 440/05 • Adopted Directive 2008/99 • „effective proportionate and dissuasive criminal penalties“ • Criminal or non-criminal penalties for legal persons • Relation with administrative sanction systems

  7. Current State of Play • Implementation deadline ended on 26 December 2010 • Implementation check has started • Currently in the non-communication stage – 12 Member States have submitted full transposition measures so far • Conformity study • Challenge – how to control „effective, proportionate, dissuasive penalties“

  8. Situation under the Lisbon Treaty • New Article 83 (2) TFEU • Directives may establish minimum rules on „definition of offences“ and „sanctions“ • If „essential“ to ensure the effective implementation of a harmonised Union policy • Ordinary legislative procedure, but: emergency brake • Full judicial control • DK not participating, UK and Ireland opt-in right

  9. Open questions for future criminal law legislation • Approximation of sanction types and levels • Mitigating / aggravating circumstances • Minor cases • General notions of criminal law • Criminal liability of legal persons • Jurisdiction clauses

  10. Thank you for your attention. Questions or comments? helge-elisabeth.zeitler@ec.europa.eu

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