Commission wins powers to force prosecution of eco-offenders

Case C-176/03, Commission of the European Communities v Council of the European Union

Following a ruling of the European Court of Justice (ECJ) this month, in Commission of the European Communities v Council of the European Union (Case C-176/03), the European Community now has the power to require Member States to lay down criminal penalties for the purpose of protecting the environment.

In a Council Framework Decision (2003/80/JHA) on the protection of the environment, agreed upon in early January 2003, certain conduct, particularly detrimental to the environment, was to be regarded as criminal.

The Council intended to use the Framework Decision in order to deal with the increase in offences posing a threat to the environment, while leaving the choice of the criminal penalties to the Member States, though these still had to meet the requirements of being “effective, proportionate and dissuasive”.

The decision was adopted by the Council as an aspect of police and judicial cooperation between governments in criminal matters, the “third pillar” of the Maastricht Treaty.

It was therefore agreed by European ministers that the matter should be left in the hands of governments who would have the power of veto.

However, the Commission claimed that the aim and content of the Framework Decision were within the scope of the European Community’s powers on the environment, and therefore could not be adopted on the basis of the provisions of the Treaty concerning police and judicial cooperation in criminal matters.

The ECJ agreed with the Commission regarding what should have been the correct legal basis of the Framework Decision and has therefore annulled the Decision in its entirety.

This will effectively leave it open to the European Commission to force Member States to introduce criminal sanctions for environmental polluters and waters down the power of member states, involving all three European Institutions (Commission, Council and Parliament) instead, while Member States will lose their national veto.

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