Criminal Environmental Law and Community Competence

Abstract

Summary: The Treaty on European Union is divided into “pillars”: the original pillar of Community law (the “first pillar”), and two pillars establishing intergovernmental co-operation between Member States on the matters which they cover: common foreign and security policy (the “second pillar”) and police and judicial co-operation in criminal matters (the “third pillar”). There should be no conflict between the respective competencies defined under each of the three pillars. Indeed, the Treaty lays down a number of rules to prevent this. Nonetheless, this is precisely what has occurred in the conflict between the Commission and the Council over the issue of protection of the environment through criminal law. In 2001 the Commission adopted a proposal for a Directive on protection of the environment through criminal law under provisions of the “first pillar”. In 2003, the Council adopted a Framework Decision on the same subject under provisions of the “third pillar”. The two parallel texts have given rise to a serious inter-institutional conflict. The main point at issue is under which provisions of the Treaty a requirement to provide for criminal penalties for breaches of Community environmental law can be imposed on Member States. Following the adoption of the Framework Decision, the Commission decided to commence proceedings before the Court of Justice, seeking to establishing that the Council had breached the rules governing the division of powers between the first and third pillar.