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[2008] 3 Env. Liability : The emergence of European Union environmental criminal law – Part I : Hedemann-Robinson 7171
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The emergence of European Union

environmental criminal law:
a quest for solid foundations – Part I

Martin Hedemann-Robinson
Senior Lecturer in European Law, University of Kent

1
On 21 May 2008, the European Union’s political institutions Community treaties, the Member States as well the
reached agreement on the contents of a prospective European political institutions of the Union appeared to subscribe to
Union (EU) legislative instrument intended to combat the view that the area of criminal policy remained a matter
environmental crime. Specifically, after some seven years of essentially outside the remit of Community law. The
political negotiations, the Council of the EU and the European establishment of an intergovernmental framework for the
Parliament have finally secured political accord on the development of agreements between Member States on
provisions of a prospective European Community directive on promoting certain aspects of police and judicial cooperation
the protection of the environment law through criminal law. in criminal matters by virtue of the Treaty on European
For the first time it appears likely that a supranational legal Union (TEU) 1992 did not alter the orthodox view that
instrument will be adopted in 2008 on the subject of criminal supranational Community measures could not be taken in
policy. Such a step will be a profound constitutional moment the field of criminal policy. It was not until the European
for the EU, given that for much of the time until now the Court of Justice (ECJ) decided in its famous Environmental
2
orthodox position has been to deny that the EU possesses legal Crimes ruling of 2005 that the Community has implied
competence to enact such measures in a policy area which has competence under the auspices of the provisions of the EC
always been regarded as being within the exclusive domain of Treaty on the Community’s common environmental policy
individual Member States. The aim of this two-part article is to enact measures to combat environmental crime. Until
to provide an analysis of the emergence of EU legislation the ruling, Member States had fiercely contested the
intended to combat environmental crime. In particular, it European Commission’s view that Community legislation
focuses on the extent to which the EU has provided adequate on environmental crime could be validly adopted and had
legal and political justification for the promulgation of resisted participating in negotiations over an EC legislative
supranationally adopted legislation. As will become apparent, text proposed by the Commission in 2001. 3
the path towards the adoption of such legislation has been However, in the wake of Environmental Crimes,
protracted, controversial, complex and unpredictable. subsequent judicial guidance from the ECJ and substantial
Part I of this article examines the initial phase in the modification by the Commission of its 2001 legislative
development of an EU policy on environmental crime, proposal for a Community directive, the EU’s Member
specifically until 2000. This phase was dominated by concerns States governments have radically changed their stance.
on the part of EU Member States to ensure any agreements Specifically, they did not block the Council of the EU’s
over that policy should remain based on an intergovernmental participation in legislative negotiations and struck a political
footing, so that European cooperation would be subject to the agreement on 21 May 2008 with the Council’s legislative
consent of all Member States. Part II of this article will consider partner, the European Parliament, over the adoption of a
the most recent phase of the EU’s development of a policy on Community measure. It is anticipated that the EC directive
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environmental crime.

1 Namely the 1951 European Economic and Steel Community,
Introduction 1957 European Economic Community Treaty and 1957 European
Atomic Energy (Euratom) Treaty. The EEC Treaty was renamed as
For several years after the entry into force of the treaties the European Community (EC) Treaty in 1992, by virtue of the
Treaty on European Union 1992.
founding the EU, namely the original three European 2 Case C–176/03 Commission v Council [2005] ECR I-7879.
3 COM(2001)139 (13 March 2001).
4 As noted in p 13 of the minutes of the 2874th Council Meeting
(Environment) (Luxembourg 5 June 2008) (Council Doc 9959/08
(Presse 149)).

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