1. The EU Fight against Environmental Crime – Directive 2008/99 Helge Elisabeth Zeitler DG Justice, Criminal Law

2. Background Background Prior legislation on European level –Council of Europe Convention 1998 –First Commission Directive proposal 2001 –Framework Decision on Danish initiative 2003

3. Political Background – Institutional fight on criminal law competence Pre-Lisbon – Criminal law in the „first“ or „third“ pillar? ECJ judgement 176/03 of 13 September 2005 – Commission v. Council (Grand Chamber) New Directive proposal COM (2007) 51 of 9 February 2007 ECJ judgement 440/05 of 23 October 2007 – Commission v. Council (Grand Chamber)

4. Legislative Procedure Discussions in Council (Working Group on Substantive Criminal Law) from March 2007 to March 2008 European Parliament (rapporteur – Hartmut Nassauer, Legal Affairs Committee – Environmental Committee accociated) – report in April 2008 Political Agreement between Council and EP in May 2008 Formal Adoption 19 November 2008

5. Scope of liability in the Directive Agreed list of offences Intent and „at least serious negligence“ Natural and legal persons Inciting, aiding and abetting

6. Applicable Sanctions COM proposal –Approximation of minimum maximum sanctions (imprisonment and fines for legal persons) –Aggravating circumstances ECJ judgement 440/05 Adopted Directive 2008/99 –„effective proportionate and dissuasive criminal penalties“ –Criminal or non-criminal penalties for legal persons Relation with administrative sanction systems

7. Current State of Play Implementation deadline ended on 26 December 2010 Implementation check has started Currently in the non-communication stage – 12 Member States have submitted full transposition measures so far Conformity study Challenge – how to control „effective, proportionate, dissuasive penalties“

8. Situation under the Lisbon Treaty New Article 83 (2) TFEU - Directives may establish minimum rules on „definition of offences“ and „sanctions“ - If „essential“ to ensure the effective implementation of a harmonised Union policy - Ordinary legislative procedure, but: emergency brake - Full judicial control - DK not participating, UK and Ireland opt-in right

9. Open questions for future criminal law legislation Approximation of sanction types and levels Mitigating / aggravating circumstances Minor cases General notions of criminal law Criminal liability of legal persons Jurisdiction clauses

10. Thank you for your attention. Questions or comments? helge-elisabeth.zeitler@ec.europa.eu