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[2008] 3 Env. Liability : The emergence of European Union environmental criminal law – Part I : Hedemann-Robinson 7575
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provide judicial interpretation of third pillar measures 27 law. However, the ECJ has declared that these provisions
31
as compared with its powers under the first pillar. 28 constitute legal bases for the adoption of sanctioning powers
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by Community institutions only, and accordingly do not
I.2 The European Community’s initial provide any textual guidance on the issue of whether
relationship with criminal policy: 1957–2000 Community law may approximate national criminal law or
Since the inception of the original three Community treaties require Member States to enact criminal law sanctions for
in the 1950s, the extent to which European Community the implementation of EC obligations.
legislation could be adopted, imposing obligations on
Member States affecting the administration of criminal I.2.1 Initial attitudes of EU political institutions in
justice at national level, has been a matter of dispute. Until relation to criminal policy
the European Commission decided in 2003 to take a test Until the turn of the millennium, there appeared to be
case before the ECJ in order to clarify the parameters of broad if not complete agreement among the EU’s political
legal competence under the first pillar, the matter had remained institutions that the first pillar did not provide any implied
a largely dormant issue in the context of European legal powers to the Community to take legislative action on
integration. criminal matters. Prior to the 2005 Environmental Crimes
The treaty texts comprising the first pillar of the EU judgment, the position of the Council of the EU in reflecting
legal order have always provided very little in the way of the interests of Member States was to deny that the
specific guidance as to the extent of the European Community had any competence to involve itself in the
Community’s powers to impose legislative obligations on field of criminal policy. This was a matter considered instead
Member States in the field of criminal policy. Only two to be within the exclusive sovereign domain of Member
sources of primary Community law expressly oblige States and unaffected by the establishment of the
Member States to undertake criminal law measures, and Community legal order. Prior to the United Kingdom’s
only in very specific and narrow circumstances. Specifically, accession to the EEC in 1972, the UK government
Article 194 of the Euratom Treaty requires Member States published its opinion on the constitutional implications of
to prosecute persons who disclose state secured nuclear EEC membership in the following unambiguous terms:
secrets. In addition, Article 30 of the Statute of the Court ‘Nothing in Community law would […] materially affect
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of Justice requires Member States, at the instance of the the general principles of criminal law’. 33
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ECJ, to prosecute witnesses and experts who perjure The UK government’s view was endorsed by the
themselves before the court. Council in various documents and steps taken over the
In all other respects, the Community treaties are silent course of the first 50 or so years of the EU’s history, namely
on the powers of the Community to intervene in relation affirming that criminal policy had remained outside the
to the area of criminal policy. The environmental sector is remit of the first pillar apart from those areas in which the
no different. Title XIX of the EC Treaty, which comprises Community has been awarded express powers to take action
the treaty’s provisions on a common environmental policy, on crime. The Council was of the view that, unless otherwise
is silent on the extent to which, if at all, the Community agreed, it would be for individual Member States to
may adopt policy measures to combat environmental crime.
In the absence of revision to the EC Treaty regarding the
issue of competence, a long-standing issue has been whether
the Community has implied legal power to develop a 31 See art 83(a) EC foreseeing the provision of fines and periodic
criminal law dimension to its common environmental penalty payments for the enforcement of the competition treaty
provisions in articles 81–82 EC (as implemented by reg 1/2003
policy. The EC Treaty contains a couple of provisions which (OJ 2003 L1/1)), and art 229 EC foreseeing the possibility of the
refer to the subject of sanctions to enforce Community ECJ being provided with unlimited jurisdiction with regard to
penalties.
32 Case C–240/90 Commission v Germany [1992] ECR I-5383, at
para 34 of judgment. It is doubtful whether the court is correct on
this point with regard to art 83(a) EC which has never been solely
directed at developing EC institutional sanctioning powers. See art
27 See arts 33 and 35 EU. 5 of the implementing reg 1/2003 (OJ 2003 L1/1) which
28 See arts 220–245 EC. stipulates various sanctioning powers for national competition
29 An unofficial consolidated version of the EAEC Treaty 1957, as authorities.
amended, is provided online at the following official EU website: 33 Legal and Constitutional Implications of UK Membership of
http://eur-lex.europa.eu/en/treaties/index.htm#founding. the European Communities (1967) Cmnd 3301 at para 25. The UK
30 Protocol (No 6) on the Statute of the Court of Justice, government presented a similar view to the UK Parliament on the
annexed to the TEU as well as EC and EAEC Treaties (OJ 2006 eve of accession in its document The United Kingdom and the
C321E/211). European Communities (1971) Cmnd 4715, especially para 31.

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