Judicial Training and research on EU crimes against environment and maritime pollution 26/29 June - Dipartimento di Scienze Giuridiche UniSalento Room R27 Carlo Ruga Riva, University of Milano Criminal sanctions in pollution cases: Problems arising from transposition of EU Directive 2088/99 in Italy, Adriatic Sea Countries and Bulgaria

Lecture plan 1) briefly history of competence and power on criminal matter at the EU level, and more specifically on environmental criminal law; 2) the content of the directive 2008/99 regarding environmental crimes; 3) discussion of some cases relating to problems of interpretation arising from the transposition in some Countries.

CASE 1 Someone kill one protected wild animal (a bear, a dolphin) Should be punished the killing of one or a few specimen of protected wild animals? Reasoning on the clause of “except for cases of negligible quantity of specimen of protected wild animals”, according to art. 3 Directive 2008/99 EC. See Bulgarian and Italian CL, which don’t criminalise the minor cases, so that in principle act such this could not be punished. See Montenegrin CC (art. 309, par. 2), which does not mention the minor cases clause.

CASE 2 Should be punished the taking abroad or one or a few specimen of protected plants? Still Reasoning on the minor cases-clause of “Negligible quantity of specimen of protected plants” See Art. 312 and art. 9 Montenegrin CC

Case 3 Shipment of negligible quantity of waste (cross border expedition) Shipping of negligible quantity of waste is not to punish pursuant art. 3 Directive 2008/99, as well pursuant some national disposition (see art. 353, lett. d. Bulgarian CC); anyway other legislation, such as the Italian and the Albanian one (art. 202), doesn’t provide any exception relating to negligible quantity.

Case 4 What does mismanagement of waste” mean? Reasoning about european law and comparative law oriented interpretation The Bulgarian case (art. 353 b. and 353 c Bulgarian CC)

Case 5 Mens rea and non serious negligence art. 3 Directive 2008/99 and art. 4 directive 2009/123 require Member Stats to punish some conducts, if committed intentionally or with at least serious negligence. See italian env. Law and and croatian CC, (art. 250, or art. 193 new CC), which don’t specific which kind of negligence is required (so what happens in case of not serious negligence?).

CASE 6 If the national law doesn’t comply with the directive what judge should do? Reasoning on remedies when the national law doesn’t comply with EU law. Constitutional Court? Preliminary ruling to ECJ? Direct application of european law (supremacy of EU law)? Application of national law not conform to EU law?

Before Lisbon Treaty: who has the power on criminal law? ECJ, 13 September 2005, Grand Chamber, C- 176/03, Commission vs. Council). EC has the power to strengthen some matters of the first pillar, like Environment, providing criminal sanctions, even without a specific power mentioned in the Treaty on criminal matter.

What ECJ requires that criminal law is the necessary mean in ensuring an effective protection of such matter: so called criterion of need, depending inter alia on aim and content of the discipline.

What directive can not do (ECJ , Grand Chamber, C- 440/05), EC, through Directive, can not impose type and level of criminal sanctions.

Something new: directive 2008/99 on environmental crimes For the first time EC obliged Member States to criminalize some conducts producing harms or danger for the environment and human health

After Lisbon legislative power in criminal law Art. 83 TFEU environmental crimes included in the “open list” of “serious crime with a cross-border dimension resulting from the nature or impact of such offenses or from a special need to combat them on a common basis”, which could be added to the list by the Council (unanimously), after obtaining the consent of EP.

Art. 83, par. 2 TFEU Environmental crime also fall in “an area which has been subject to harmonisation measures, if the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy.

What Courts should do The ECJ must control whether national laws comply with the Directive 2008/99, namely if they provide effective, proportionate and dissuasive criminal sanctions and if national crimes comply with the elements of crime included in art. 3 of the Directive 2008/99 (and with art. 3 Directive 2005/35/CE as emended by Directive 2009/123 EC).

How national judges should interpret the derivate law Domestic Judges have the duty to interpret the domestic law in accordance with european law (with some limits); ECJ: the domestic judges have a duty “to interpret as far as possible national legislation in the light of the wording and purpose of a relevant Directive”.

What happens is an interpretation conform to EU law is not clear or not possible Judge Power to disapply the national law? Submitting a reference to ECJ for a preliminary ruling? Submitting a question of constitutionality to his/her own Constitutional Court? Duty to apply the national law even in not conform to EU law? See italian experience: art. 117 Cost.

Content of Directive 2008/99 EC on environmental crimes the rationale of the dispositions: to ensure effective protection of, respectively, environment and maritime safety, presuming that criminal law is more effective than administrative or civil law (because of his stronger deterrence function). Also strengthening of cooperation and better crime investigation between Member States, through common rules and dispositions

Rationale and Aim of the Directive 2008/99 According to Article 174(2) of the Treaty, Community policy on the environment must aim at a high level of protection. (2) The Community is concerned at the rise in environmental offences and at their effects, which are increasingly extending beyond the borders of the States in which the offences are committed. Such offences pose a threat to the environment and therefore call for an appropriate response. (3) Experience has shown that the existing systems of penalties have not been sufficient to achieve complete compliance with the laws for the protection of the environment. Such compliance can and should be strengthened by the availability of criminal penalties, which demonstrate a social disapproval of a qualitatively different nature compared to administrative penalties or a compensation mechanism under civil law.

Directive 2009/123 on ship source pollution Criminal penalties … should be sufficiently severe to dissuade all potential polluters. The existing system of sanctions for illicit ship-source discharges of polluting substances… needs to be further strengthened by the introduction of criminal penalties. Common rules on criminal penalties make it possible to use more effective methods of investigation and effective cooperation within and between Member States. Since the objectives of this Directive cannot be sufficiently achieved by the Member States acting alone, by reason of the cross-border damage which may be caused by the behaviour concerned, and, by reason of scale and effects of the proposed action, can therefore be better achieved at Community level, the Community may adopt measures… See art. 83 TFEU

Art. 3 Directive 2008/99 Member States shall ensure that the following conduct constitutes a criminal offence, when unlawful and committed intentionally or with at least serious negligence:  the discharge, emission or introduction of a quantity of materials or ionising radiation into air, soil or water, which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants;  the collection, transport, recovery or disposal of waste, including the supervision of such operations and the aftercare of disposal sites, and including action taken as a dealer or a broker (waste management), which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants;

Others environmental crimes (c) the shipment of waste, where this activity falls within the scope of Article 2(35) of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste and is undertaken in a non-negligible quantity, whether executed in a single shipment or in several shipments which appear to be linked;

Others environmental crimes Other conduct relating: the operation of a plant in which a dangerous activity is carried out; the production, processing, handling, use, etc. of nuclear materials. Many dispositions include a damage or concrete danger- clause. The conduct shall be punished if “causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants.

Damage or concrete danger-clause The judge should prove case by case the causation link between the conduct and the effect on the environment or human health, or at least the endangerment of these interests. Problems of proof Ambitous model, but maybe not so realistic

Italians do it different We had an still have another model, based on abstract danger environmental crimes: no matter of real, concrete consequences of the conduct Acting without permission Water discharge, emission of hazardous substances into air, soil ecc, beyond the limits set by law or Environment agencies Simplified burden of proof: presumpion of danger based on scientific knowledge

So what do we need? (Europeans have to do it better) Maybe we need an integrated sanction system, founded on both of punishment models above mentioned. For minor cases administrative sanctions or mild criminal sanctions in order to punish abstract endargment of environment or human health For significant pollution (damages or concrete dangers to the environment or to human health) the EU punishment model

The “offensiveness” clause Some EU environmental crimes except minor cases See Article 3 requiring Member States to punish conducts relating to the killing, destruction, possession ecc. of specimens of protected wild fauna or flora species (lett. f), and trading in specimens of protected wild fauna or flora species or parts ….(lett. g), except, in both dispositions, for cases where the conduct concerns a negligible quantity of such specimens and has a negligible impact on the conservation status of the species. Albania and Montenegro don’t comply?

The power of discretion (assessment) of the national legislator in the transposition Art. 3 Directive 2008/99, lett. A) (serious injury to any person or substantial damage to quality of air… See art. 250 “old” Croatian CC “within a wide area and to an extent which can worsen living conditions for humans or animals, or endanger the existence of forests, plants and other vegetation, See art. 303 Montenegrin CC (“to a larger extent or in a wider area” See art 193 Croatian CC 2011: Whoever, contrary to legal rules, discharges, introduces or emits such quantity of substances, or ionizing radiation into air, soil, subsoil, water or sea, which could permanently or in a significant amount endanger its quality or could in a significant amount or on a wider area endanger animals, plants or fungi, or could endanger the life or health of humans,shall be punished by imprisonment for a period of 6 months up to five years.

Lett. H) Any conduct wich causes the significant deterioration of a habitat within a protected site Lack of normative elements to fill the concept of significance Large margin of discretion for legislative dispositions, and much more for national judges

Need to harmonise criminal sanctions (type and level) Italian law (art. 733-bis CC) Whoever, except in the circumstances permitted, destroys a habitat within a protected site or otherwise deteriorates it by compromitting his conservation status, shall be punished with imprisonment of up to eighteen months and a fine of not less than E. Art. 201 Croatian new CC 1) Whoever, contrary to legal rules, destroys or causes significant deterioration of a habitat of protected species of animals, plants or fungi, or destroys or causes significant deterioration of a type of habitat, shall be punished by imprisonment for a period up to 1 year. (2) Whoever commits the criminal offence from paragraph 1 of this Article towards a habitat, or a breeding area, area in which cubs are being raised, migration area, area of hibernation of a strictly protected wild species of animals, plants or fungi,shall be punished by imprisonment for a period from 6 months up to 5 years.