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74 The emergence of European Union environmental criminal law – Part I : Hedemann-Robinson [2008] 3 Env. Liability
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second pillar activities or provide judicial interpretation • European Parliament influence: while the EP has joint
regarding measures adopted under the second pillar. decision-making powers with the Council under the
For several years, the extent of the EU’s legal first pillar for environmental matters, it has limited
competence to adopt measures intended to approximate consultation rights under the third pillar. 23
aspects of national criminal laws of the Member States has • Democratic accountability and governance: affirmation
been unclear. Due to the ambiguity of the relevant treaty of Community competence over criminal law raises
texts underpinning the Union’s legal framework, it has been profound issues about how this may impact on the
far from straightforward to identify a clear legal base for relationship between citizen and government,
21
the development of Union policy in this field. While the specifically the degree of accountability of the latter to
first pillar treaty texts have remained silent as to whether the former in relation to what extent government may
the European Community has power to adopt legislative take steps to forfeit the liberty of individuals who act
measures to combat crime including in relation to the in contravention of legislatively prescribed minimum
environment sector, pillar three contains specific provisions standards of conduct. Supranational competence means
concerning the possibility of common action among that traditional statal sources of governance (national
Member States in the fields of police and judicial and sub-national governments and parliaments)
cooperation in criminal matters. However, until the ECJ’s relinquish their exclusive powers to develop criminal
2005 judgment in Environmental Crimes, the extent to which policy vis-à-vis the inhabitants located with the state.
pillar three had an impact on the question of legal The crafting of criminal liability legislation becomes a
competence for the Community to taken action on crime task shared among a set of supranational legislative
was uncertain; the relevant EU treaty texts are not clear. institutions whose activities national electorates and
Determination of the appropriate site of legal representatives may control collectively but not
competence within EU law is crucial for both legal and individually.
political reasons, the key ones summarised as follows: • European Commission enforcement powers: under the
first pillar, the Commission has a specific mandate 24
• Member State influence in policy-making: under the and powers to take enforcement proceedings before
25
first pillar, the common policy on the environment may the ECJ against Member States who fail to implement
be decided on the basis of QMV within the Council of Community legislation on time and correctly,
the EU (Article 175 EC). Measures decided under pillar ultimately with the possibility of requesting the ECJ to
three are determined on the basis of Council unanimity. impose financial penalties in cases of protracted non-
Hence, if the Community is found to have competence compliance with EC law. Neither the Commission nor
to adopt legislation on environmental crime under the other parties have such enforcement powers in respect
auspices of Article 175 EC, individual Member State of measures adopted under the second or third pillars;
governments which oppose such a legislative proposal Member States are effectively solely responsible for
may be outvoted and be bound under Community law their implementation at national level.
to implement the adopted legislative instrument. • Legal effects of measures: while the ECJ has clarified
• European Commission powers in policy development: that, under certain circumstances, individuals may rely
while the Commission has an exclusive right to present upon and enforce first pillar norms directly before
legislative proposals in the environmental sphere at national courts and authorities of the Member States,
Community level, this power is shared with Member the legal doctrine of ‘direct effect’ does not apply within
States in pillar three. 22 the current framework of the second and third pillars. 26
• ECJ powers: as mentioned earlier, the ECJ has relatively
limited jurisdiction to review pillar three activities or

21 As pointed out by several commentators. See eg M Delmas-
Marty ‘The European Union and Penal Law’ (1998) 1 European
Law Journal p 88; H Sevenster ‘Criminal Law and EC Law’ (1992)
29 Common Market Law Review p 29; E Roger France ‘The 23 Article 39 EU.
Influence of EC Law on the Criminal Law of the Member States’ 24 Article 211 EC.
(1994) 2 European Journal of Crime Criminal Law and Criminal 25 Articles 226 and 228 EC.
Justice p 324; M Wasmeier M and N Thwaites ‘The “Battle of the 26 Direct effect is specifically ruled out in relation to legislative-
Pillars”: Does the EC Have the Power to Approximate National type instruments that may be adopted under the auspices of the
Criminal Laws?’ (2004) European Law Review p 613. third pillar, namely framework decisions and decisions (Articles
22 Article 34(2) EU. 34(2)(b)-(c) EU).

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