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72 The emergence of European Union environmental criminal law – Part I : Hedemann-Robinson [2008] 3 Env. Liability
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will be formally adopted by the Community legislature accountable, within the context of the wider agenda on the
before the end of 2008. part of Member States to reform the EU’s constitutional
This two-part article tracks as well as appraises the framework. The fourth section approaches the debate
gradual emergence of an agreed EU strategy on cooperation surrounding the legitimacy of EU action on environmental
in the area of environmental crime. It is divided into four crime beyond the purely legal question of determining the
principal sections. The first two of these focus on the extent of the EU’s attributed powers. It considers the impact
chronological development of EU policy. The first section, of broader discussions that have arisen in connection with the
which follows here, focuses on the initial phase in the EU’s political legitimacy of the role of the EU in the field of
history during which the dominant view held among EU environmental criminal policy, with particular reference to
Member States and the Union’s political institutions was the relevance of the principles of subsidiarity and
that cooperation between Member States on the subject of proportionality that underpin the EU’s legal system.
crime could only take place on an intergovernmental basis The article concludes with some brief reflections on
outside the supranational legal framework of the the current state of play.
Community treaties. This phase, which lasted until 2001,
witnessed the growth of political will among national I The initial phase of the EU’s approach
governments in Europe to cooperate over fighting serious towards crime and the environment: the
environmental crime, culminating in a regional European rise of intergovernmentalist strategies prior
Convention on environmental crime signed in 1998 within to 2001
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the forum of the Council of Europe and supplemented by
an EU intergovernmental initiative proposed by the Danish The ECJ has confirmed only relatively recently in its case
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government in 2000. The impact of the early jurisprudence law that the EC has legal competence to adopt legislative
of the ECJ on the interpretation of Community law in measures in relation to environmental crime, starting with
relation to the national criminal legal systems of the EU its 2005 judgment in Environmental Crimes. The impact of
Member States is also considered in this section. this ECJ jurisprudence is discussed in some detail in section
The second, third and fourth sections are contained in II (to follow in the next issue). However, it is useful first
Part II of this article, which will be published in the next to reflect upon the legal and historical backdrop relevant
issue of Environmental Liability. The second section turns to to addressing the nature of the relationship between the
consider a change of political direction and a new phase in EU and criminal policy. Specifically, it is important to
EU institutional approaches to environmental crime, consider the extent to which the Union’s constitutional
triggered when the European Commission decided to framework has provided clear guidance on the question as
challenge the orthodox interpretation of Community law to what extent, if at all, the EU is empowered to take policy
competence favoured by the Council of the EU and formally decisions on criminal policy, an area traditionally thought
propose a legislative instrument to be adopted under the to be a core element of the sovereign make up of a nation
aegis of the EC Treaty in 2001. It tracks the subsequent state.
inter-institutional legal and political battles between
Commission and Council over the question of Community I.1 Background: The Union as a tripartite structure
legal competence which led ultimately to the very recent The constitutional structure of the EU is founded upon a
achievement of political agreement on a legislative text in tripartite structure. The first pillar is composed of the law
May 2008. pertaining to the provisions contained within the original
The third and fourth sections of this article consider how European Community treaties still in force, specifically the
EU political developments in the area of environmental crime European Community Treaty 1957 and European Atomic
relate to and tie in with broader discussions concerning the Energy (Euratom) Treaty 1957, as amended. The second
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legitimacy of EU activities. Specifically, the third section focuses and third pillars, which were introduced as constituent
on recent attempts to render the issue of EU legislation on elements of the EU’s framework by virtue of the Treaty on
criminal matters more transparent and democratically European Union (TEU) 1992, are composed of two parts
of the TEU, namely Title V (Provisions on a Common
Foreign and Security Policy) and Title VI (Provisions on
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5 1998 Convention on the Protection of the Environment
through Criminal Law (CETS No 172).
6 Initiative of the Kingdom of Denmark with a view to adopting 7 Since 2002, the European Coal and Steel Community Treaty
a Council Framework Decision on combating serious 1951 is no longer in force.
environmental crime (OJ 2000 C39/4). 8 Articles 11–28 EU.

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