The proposal for a directive on the protection of the environment through criminal law has a long history.
Council of Europe
On 4 November 1998 the Council of Europe adopted a Convention on the protection of the environment through criminal law (CETS No.: 172)
The text of the convention and the explanatory report can be found on the Council of Europe's website: https://conventions.coe.int/
Danish initiative in Council
On the basis of the Council of Europe Convention Denmark presented a proposal for a third pillar framework decision to be adopted by Council on the basis of Article 31 and 34(2) of the EU Treaty :
The Commission did not agree that the article on cooperation in criminal matters in the EU Treaty was the correct legal basis for this act and on 13 March 2001 adopted a Proposal for a Directive of the European Parliament and of the Council on the protection of the environment through criminal law based on Article 175 of the EC Treaty.
The European Parliament discussed both the proposed framework decision and the proposed directive:
European Parliament recommendation on criminal sanctions and Community law (OJ C 140 E, 13/6/2002, P 0524).
Report on the draft Council framework decision on the protection of the environment through criminal law (15525/2001 - C5-0022/2002 - 2000/0801(CNS)). European Parliament, Committee on Citizens' Freedoms and Rights, Justice and Home Affairs. Rapporteur: Giuseppe Di Lello Finuoli.
Report on the proposal for a European Parliament and Council directive on the protection of the environment through criminal law (COM(2001) 139 . C5-0116/2001 . 2001/0076(COD)). European Parliament, Committee on the Environment, Public Health and Consumer Policy. Rapporteur: Ria G.H.C. Oomen-Ruijten
European Parliament legislative resolution on the proposal for a European Parliament and Council directive on the protection of the environment through criminal law (COM(2001) 139 – C5-0116/2001 – 2001/0076(COD))
Taking into account the proposals of the European Parliament the Commission presented an Amended Proposal for a Directive of the European Parliament and of the Council on the protection of the environment through criminal law.
The Council did not take up the Commission's proposal, but instead adopted the Framework Decision.
European Court of Justice
Following the adoption of the Framework Decision the European Commission decided to take action in the Court of Justice, asking the Court to annul the Framework Decision because its legal basis (Articles 29, 31e and 34(2) of the EU Treaty) was not correct. In the Commission's opinion certain of the measures contained in the Framework Decision could have been adopted under Article 175 of the EC Treaty (legal basis for environment policy).
Case C 176/03 Summary published in Official Journal (OJ EC C135/21, 07/06/2003)
Press Release (IP/03/461, 31/03/2003)
Report for the hearing (in French only) - Rapport d'audience (en français seulement)
The European Court of Justice issued its judgment on 13 September 2005. In this judgment the Court annulled the Framework Decision because the measures it contained could have been adopted under the EC Treaty.
In particular the Court stated that although “as a general rule, neither criminal law nor the rules of criminal procedure fall within the Community’s competence”, “the last-mentioned finding does not prevent the Community legislature, when the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities is an essential measure for combating serious environmental offences , from taking measures which relate to the criminal law of the Member States which it considers necessary in order to ensure that the rules which it lays down on environmental protection are fully effective.
In its Communication on the consequences of the Court's judgment in case C-176/03, the Commission explained its interpretation of the judgment and the measures deemed necessary as a consequence of the judgment.
The European Parliament also gave its opinion on the judgment:
European Parliament resolution on the consequences of the judgment of the Court of 13 September 2005 (C-176/03 Commission v Council) (2006/2007(INI))
On 23 November the Commission decided to appeal to the Court of Justice for the annulment of the Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution as it also impinged on the competences of the Community (Case C-440/05).
The European Court of Justice rendered its judgment on this issue on 23 October 2007, annulling the Framework Decision because certain measures it contained could have been adopted under the EC Treaty. In this judgment the Court, however, stated that the Community's competence did not include the definition of types and levels of sanctions.