Understanding the Polluter Pays Principle and Liability in Environmental Resource Management

1. Polluter Pays Principle and Liability Gyula Bándi

3. OECD 1972 • „The principle to be used for allocating costs of pollution prevention and control measures to encourage rational use of scarce environmental resources and to avoid distortions in international trade and investment is the so-called Polluter Pays Principle. • This principle means that the polluter should bear the expenses of carrying out the above mentioned measures decided by the public authorities to ensure that the environment is in an acceptable state. In other words, the cost of these measures should be reflected in the cost of goods and services which cause pollution in production and/or consumption.”

4. EC 1975 • “Charging the polluters the costs of action taken to combat the pollution which they cause encourages them to reduce that pollution and to endeavour to find less polluting products or technologies thereby enabling a more rational use to be made of the resources of the environment. Moreover it satisfies the criteria of effectiveness and equitable practice.”

5. OECD reference 1993 • The ‘polluter pays’ principle ... implies that in general it is for the polluter to meet the costs of pollution control and prevention measures, irrespective of whether those costs are incurred as a result of the imposition of some charge or pollution emission, or are debited through some other suitable economic mechanisms, or are in response to some direct regulation leading to some enforced reduction in pollution.” (J. McLoughlin - E. G. Bellinger)

6. 75

12. Case 293/97 - Standley and Metson • “43 Second, they submit that the Directive infringes the polluter pays principle laid down in Article 130r(2) of the EC Treaty, on the ground that farmers alone bear the cost of reducing the concentration of nitrates in waters to below the threshold of 50 mg/l even though agriculture is acknowledged to be only one of the sources of those nitrates, while the other sources escape all financial burden. … • 51 As regards the polluter pays principle, suffice it to state that the Directive does not mean that farmers must take on burdens for the elimination of pollution to which they have not contributed. • 52 As has been pointed out in paragraphs 46 and 48 of this judgment, the Member States are to take account of the other sources of pollution when implementing the Directive and, having regard to the circumstances, are not to impose on farmers costs of eliminating pollution that are unnecessary. Viewed in that light, the polluter pays principle reflects the principle of proportionality on which the Court has already expressed its view (paragraphs 46 to 50 of this judgment).”

13. Proportionality Joint application of three control methods: • whether the measure at issue serves properly the legitimate objective; • the measure needs to be necessary, paying primary attention to the fact that there is no less restrictive measure in order to achieve the set objective; • the measure has to be proportionate and well-balanced in the sense that any violation or restriction caused by the measure should be in a proper balance with the gained advantages without allowing any discrimination.

14. Case No. 309/02 „75. In accordance with settled case-law, national measures capable of hindering intra-Community trade may be justified by overriding requirements relating to protection of the environment provided that the measures in question are proportionate to the aim pursued (Commission v Denmark, paragraphs 6 and 9, and Case C-389/96 Aher-Waggon [1998] ECR I-4473, paragraph 20). 76. The obligation to establish a deposit and return system for empty packaging is an indispensable element of a system intended to ensure that packaging is reused (Commission v Denmark, paragraph 13). … 79. However, in order for such rules to comply with the principle of proportionality, it must be ascertained not only whether the means which they employ are suitable for the purpose of attaining the desired objectives but also whether those means do not go beyond what is necessary for that purpose (see Case C-284/95 Safety Hi-Tech [1998] ECR I-4301, paragraph 57). … • 81. Legislation, such as the VerpackV, that makes the establishment of a deposit and return system dependent on a packaging reuse rate, which is certainly advantageous from an ecological point of view, complies with the principle of proportionality only if, while encouraging the reuse of packaging, it gives the producers and distributors concerned a reasonable transitional period to adapt thereto and ensures that, at the time when the packaging-waste management system changes, every producer or distributor concerned can actually participate in an operational system.”

15. Responsibility - liability BusinessDictionary: responsibility • A duty or obligation to satisfactorily perform or complete a task (assigned by someone, or created by one's own promise or circumstances) that one must fulfill, and which has a consequent penalty for failure. law.com: liability • liability means legal responsibility for one's acts or omissions. Failure of a person or entity to meet that responsibility leaves him/her/it open to a lawsuit for any resulting damages or a court order to perform (as in a breach of contract or violation of statute). In order to win a lawsuit the suing party (plaintiff) must prove the legal liability of the defendant if the plaintiff's allegations are shown to be true. This requires evidence of the duty to act, the failure to fulfill that duty and the connection (proximate cause) of that failure to some injury or harm to the plaintiff. Liability also applies to alleged criminal acts in which the defendant may be responsible for his/her acts which constitute a crime, thus making him/her subject to conviction and punishment.

16. Responsibility – example: CSR Investopedia.com Corporate social responsibility, often abbreviated "CSR," is a corporation's  initiatives to assess and take responsibility for the company's effects on environmental and social wellbeing. The term generally applies to efforts that go beyond what may be required by regulators or environmental protection groups. Wikipedia: Corporate social responsibility (CSR, also called corporate conscience, corporate citizenship or responsible business)[1] is a form of corporate self-regulation integrated into a business model. CSR policy functions as a self-regulatory mechanism whereby a business monitors and ensures its active compliance with the spirit of the law, ethical standards and national or international norms.[2] With some models, a firm's implementation of CSR goes beyond compliance and statutory requirements, which engages in "actions that appear to further some social good, beyond the interests of the firm and that which is required by law"

18. Seveso III directive in EU (12) Operators should have a general obligation to take all necessary measures to prevent major accidents, to mitigate their consequences and to take recovery measures. Where dangerous substances are present in establishments above certain quantities the operator should provide the competent authority with sufficient information to enable it to identify the establishment, the dangerous substances present and the potential dangers. The operator should also draw up and, where required by national law, send to the competent authority a major-accident prevention policy (MAPP) setting out the operator’s overall approach and measures, including appropriate safety management systems, for controlling major-accident hazards. When the operators identify and evaluate the major-accident hazards, consideration should also be given to the dangerous substances which may be generated during a severe accident within the establishment. (15)In order to demonstrate that all that is necessary has been done to prevent major accidents, and to prepare emergency plans and response measures, the operator should, in the case of establishments where dangerous substances are present in significant quantities, provide the competent authority with information in the form of a safety report. That safety report should contain details of the establishment, the dangerous substances present, the installation or storage facilities, possible major-accident scenarios and risk analysis, prevention and intervention measures and the management systems available, in order to prevent and reduce the risk of major accidents and to enable the necessary steps to be taken to limit the consequences thereof. The risk of a major accident could be increased by the probability of natural disasters associated with the location of the establishment. This should be considered during the preparation of major-accident scenarios.

19. Seveso cont’d (16)To prepare for emergencies, in the case of establishments where dangerous substances are present in significant quantities, it is necessary to establish internal and external emergency plans and to establish procedures to ensure that those plans are tested and revised as necessary and implemented in the event of a major accident or the likelihood thereof. The staff of an establishment should be consulted on the internal emergency plan and the public concerned should have the opportunity to give its opinion on the external emergency plan. Sub-contracting may have an impact on the safety of an establishment. Member States should require operators to take this into account when drafting a MAPP, a safety report or an internal emergency plan. (17)When considering the choice of appropriate operating methods, including those for monitoring and control, operators should take into account available information on best practices. Article 1 • Subject matter • This Directive lays down rules for the prevention of major accidents which involve dangerous substances, and the limitation of their consequences for human health and the environment, with a view to ensuring a high level of protection throughout the Union in a consistent and effective manner.

20. Red mud Hungary

22. Erin Brockovich • The case alleged contamination of drinking water with hexavalent chromium (also written as "chromium VI", "Cr-VI" or "Cr-6") in the southern California town of Hinkley. At the center of the case was a facility, the Hinkley compressor station, built in 1952 as a part of a natural-gas pipeline connecting to the San Francisco Bay Area. Between 1952 and 1966, PG&E used hexavalent chromium in a cooling tower system to fight corrosion. The wastewater was discharged to unlined ponds at the site, and some percolated into the groundwater, affecting an area near the plant approximately 2 by 1 mile (3.2 by 1.6 km).[6] The Regional Water Quality Control Board (RWQCB) put the PG&E site under its regulations in 1968. • The case was settled in 1996 for US$333 million, the largest settlement ever paid in a direct-action lawsuit in U.S. history. Masry & Vititoe, the law firm for which Brockovich was a legal clerk, received $133.6 million of that settlement, and Brockovich herself was given a bonus of $2.5 million.[7] • A study released in 2010 by the California Cancer Registry showed that cancer rates in Hinkley "remained unremarkable from 1988 to 2008".[8] An epidemiologist involved in the study said that the 196 cases of cancer reported during the most recent survey of 1996 through 2008 were fewer than what he would expect based on demographics and the regional rate of cancer.[8] However, a June 2013 Mother Jones magazine article featured an extensive critique from the Center for Public Integrity of the author's work on the later epidemiological studies.[9]

23. Environmental Liability Directive of the EU • The purpose of the Environmental Liability Directive (“ELD”) is to establish a framework of environmental liability, based on the "polluter-pays" principle, to prevent and remedy environmental damage. • The ELD aims at ensuring that the financial consequences of certain types of harm caused to the environment will be borne by the economic operator who caused this harm. Insofar as the ELD provides for the financial responsibility of an operator, it lays down a framework, based on the “polluter-pays” principle, which can be qualified as one of “environmental liability”, even though liability under the ELD has few in common with standard civil liability rules.

24. ELD cont’d Operator means any natural or legal, private or public person who operates or controls the damaging occupational activity or, where this is provided for in national legislation, to whom decisive economic power over the technical functioning of such an activity has been delegated, including the holder of a permit or authorisation for such an activity or the person registering or notifying such an activity. There are three categories of environmental damage under the ELD: • (a) “damage to protected species and natural habitats”, which is any damage that has significant adverse effects on reaching or maintaining the favourable conservation status of such habitats or species. • (b) “water damage”, which is any damage that significantly adversely affects the ecological, chemical and/or quantitative status and/or ecological potential, • (c) “land damage”, which is any land contamination that creates a significant risk of human health being adversely affected as a result of the direct or indirect introduction, in,on or under land, of substances, preparations, organisms or micro-organisms.

25. ELD cont’d The ELD provides for two liability regimes: Strict: • Under the first liability regime, operators of certain activities deemed to be of actual or potential concern, listed in Annex III to the ELD, can be held liable in the event of damage to protected species and natural habitats, water damage and land damage • The ELD does not require, as a prerequisite, that fault or negligence be established on the part of the operator for him to be held liable. There are, however, circumstances in which the operator may be relieved of his financial responsibility. For instance, the ELD does not apply to cases where environmental damage or an imminent threat of such damage is caused by an act of armed conflict, hostilities, civil war or insurrection, or a natural phenomenon of exceptional, inevitable and irresistible character

26. ELD cont’d • The second liability regime provided for by the ELD applies to damage to protected species and natural habitats caused by any occupational activities other than those listed in Annex III, and to any imminent threat of such damage occurring by reason of any of those activities, whenever the operator has been at fault or negligent. • Where environmental damage has not yet occurred but there is an imminent threat of such damage occurring, the operator shall, without delay, take the necessary preventive measures and, in certain cases, inform the competent authority of all relevant aspects of the situation, as soon as possible. • Where environmental damage has occurred, the operator shall, without delay, inform the competent authority of all relevant aspects of the situation and take: • (a) all practicable steps to immediately control, contain, remove or otherwise manage the relevant contaminants and/or any other damage factors in order to limit or to prevent further environmental damage and adverse effects on human health or further impairment of services, and • (b) the necessary remedial measures, in accordance with the relevant provisions of the ELD (its Annex II in particular).

27. ELD cont’d The operator liable under the ELD must bear the cost of the necessary preventive or remedial measures. He will do so either directly or indirectly: • In the first case, the operator pays for the measures he takes himself or he entrusts a specialised undertaking to take them on his behalf. • In the second situation, where a competent authority has acted, itself or through a specialised undertaking, in the place of the liable operator, that authority shall recover the costs it has incurred from the operator. The competent authority may initiate cost recovery proceedings against the operator • The ELD requires Member States to take measures to encourage the development of financial security instruments and markets with the aim of enabling operators to use financial guarantees to cover their responsibilities

28. Liability conditions • Unlawful act or omission (many problems of understanding, such as definitions, etc.) • Negative effect (environmental harm, health, injury, damage, etc.) • Causal link between the above two • Fault, strict or absolute liability

29. ‘Significant effect’ The case between the Commission and Ireland in the matter of implementation of the impact assessment rules Case C- 392/96, Commission vs. Ireland, September 21, 1999. • “22 The second factor is that the legislation fails to take account of the cumulative effect of projects. A number of separate projects, which individually do not exceed the threshold set and therefore do not require an impact assessment may, taken together, have significant environmental effects. … • 64 As far as the objection to thresholds is concerned, although the second subparagraph of Article 4(2) of the Directive confers on Member States a measure of discretion to specify certain types of projects which are to be subject to an assessment or to establish the criteria or thresholds applicable, the limits of that discretion lie in the obligation set out in Article 2(1) that projects likely, by virtue inter alia of their nature, size or location, to have significant effects on the environment are to be subject to an impact assessment (Kraaijeveld, cited above, paragraph 50)

30. Significant effect • 65 Thus, a Member State which established criteria or thresholds taking account only of the size of projects, without also taking their nature and location into consideration, would exceed the limits of its discretion under Articles 2(1) and 4(2) of the Directive. • 66 Even a small-scale project can have significant effects on the environment if it is in a location where the environmental factors set out in Article 3 of the Directive, such as fauna and flora, soil, water, climate or cultural heritage, are sensitive to the slightest alteration. • 67 Similarly, a project is likely to have significant effects where, by reason of its nature, there is a risk that it will cause a substantial or irreversible change in those environmental factors, irrespective of its size. … • 76 That would be the case where a Member State merely set a criterion of project size and did not also ensure that the objective of the legislation would not be circumvented by the splitting of projects. Not taking account of the cumulative effect of projects means in practice that all projects of a certain type may escape the obligation to carry out an assessment when, taken together, they are likely to have significant effects on the environment within the meaning of Article 2(1) of the Directive.”

31. Definitions - waste • Council Directive 75/442/EEC , later Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste “Article 1 1. For the purposes of this Directive: (a) "waste" shall mean any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard;” Case C‑188/07, preliminary ruling Commune de Mesquer v Total France SA, Total International Ltd, 24 June 2008  • 24      On 12 December 1999 the oil tanker Erika, flying the Maltese flag and chartered by Total International Ltd, sank about 35 nautical miles south-west of the Pointe de Penmarc’h (Finistère, France), spilling part of her cargo and oil from her bunkers at sea and causing pollution of the Atlantic coast of France.

33. 39      The Court has also held that, in view of the aim pursued by Directive 75/442, the concept of waste cannot be interpreted restrictively … • 40      That concept can cover all objects and substances discarded by their owner, even if they have a commercial value and are collected on a commercial basis for recycling, reclamation or reuse … • 41      In this respect, certain circumstances may constitute evidence that a substance or object has been discarded or of an intention or requirement to discard it within the meaning of Article 1(a) of Directive 75/442. That will be the case in particular where the substance used is a production residue, that is to say, a product not sought as such (ARCO Chemie Nederland, paragraphs 83 and 84). The Court has thus said that leftover stone from extraction processes of a granite quarry which is not the product primarily sought by the operator in principle constitutes waste (Palin Granit, paragraphs 32 and 33). • 45      In addition to the criterion of whether a substance constitutes a production residue, a second relevant criterion for determining whether or not the substance is waste within the meaning of Directive 75/442 is thus the degree of likelihood that the substance will be reused without prior processing. If, in addition to the mere possibility of reusing the substance, there is also an economic advantage to the holder in so doing, the likelihood of such reuse is high. In that case, the substance in question can no longer be considered a substance which its holder seeks to ‘discard’ and must be regarded as a genuine product (see Palin Granit, paragraph 37).

34. 56      Where the substance or object in question is a production residue, that is to say, a product which is not itself wanted for subsequent use and which the holder cannot reuse on economically advantageous terms without prior processing, it must be regarded as a burden which the holder ‘discards’ (see Palin Granit, paragraphs 32 to 37, and Van de Walle, paragraph 46). • 59      It is common ground that the exploiting or marketing of such hydrocarbons, spread or forming an emulsion in the water or agglomerated with sediment, is very uncertain or even hypothetical. It is also agreed that, even assuming that it is technically possible, such exploiting or marketing would in any event imply prior processing operations which, far from being economically advantageous for the holder of the substance, would in fact be a significant financial burden. It follows that such hydrocarbons accidentally spilled at sea are to be regarded as substances which the holder did not intend to produce and which he ‘discards’, albeit involuntarily, while they are being transported, so that they must be classified as waste within the meaning of Directive 75/442 (see, to that effect, Van der Walle, paragraphs 47 and 50).

35. Waste Case C- 206/88 and Case C- 207/88, preliminary ruling which was initiated by Pretura di Asti (Italy) in the criminal case against the G. Vessoso and G. Zanetti waste sites, March 28, 1990. • “9 The answer to the first part of the question must therefore be that the concept of waste within the meaning of Article 1 of Council Directive 75/442 and Article 1 of Council Directive 78/319 is not to be understood as excluding substances and objects which are capable of economic reutilization. Case C- 2/90, Commission vs. Belgium, July 9, • 28 It must therefore be concluded that waste, whether recyclable or not, is to be regarded as "goods" the movement of which, in accordance with Article 30 of the Treaty, must in principle not be prevented.”

36. Waste The Palin Granit case - Case C- 9/00, preliminary ruling submitted by Korkein hallinto-oikeus (Finland) in a case between Palin Granit Oy and the Vehmassalon kansanterveystyön kuntayhtymän hallitus, April 18, 2002 The essense of the issue is the fate of the leftover stone and breakstone excavated from a granite mine on the surface and awaiting further reuse, as well as its legal judgement. • „32 … As the Commission observes, in the case at issue in the main proceedings the production of leftover stone is not Palin Granit's primary objective. The leftover stone is only a secondary product and the undertaking seeks to limit the quantity produced. According to its ordinary meaning, waste is what falls away when one processes a material or an object and is not the end-product which the manufacturing process directly seeks to produce. • 33 Therefore, it appears that leftover stone from extraction processes which is not the product primarily sought by the operator of a granite quarry falls, in principle, into the category of [r]esidues from raw materials extraction and processing under head Q 11 of Annex I to Directive 75/442.

37. Waste • 37 It therefore appears that, in addition to the criterion of whether a substance constitutes a production residue, a second relevant criterion for determining whether or not that substance is waste for the purposes of Directive 75/442 is the degree of likelihood that that substance will be reused, without any further processing prior to its reuse. If, in addition to the mere possibility of reusing the substance, there is also a financial advantage to the holder in so doing, the likelihood of reuse is high. In such circumstances, the substance in question must no longer be regarded as a burden which its holder seeks to discard, but as a genuine product.

38. Waste - recovery • ASA decision is also significant - Case C- 6/00, preliminary ruling submitted by the Verwaltungsgerichtshof, Austria in a legal dispute between Abfall Service AG (ASA) and Bundesminister für Umwelt, Jugend und Familie, February 27, 2002, • The facts of the ASA case are briefly as follows: • “19 According to that notification, the waste in question was slag and ashes produced as a by-product in the operation of waste incinerators and transformed into a 'specific product at a waste-treatment plant in Vienna, Austria. The waste was to be deposited in a former salt mine at Kochendorf, Germany, to secure hollow spaces (mine-sealing). • 20 In the notification documents, Abfall Service classified the treatment of the waste to be shipped as a 'recovery operation coming within the scope of the operation referred to in R5 of Annex II B to the Directive.”

39. Waste • “58 It must be observed, at the outset, that neither the Regulation nor the Directive contains a general definition of disposal or recovery of waste, but merely refers to Annexes II A and II B to the Directive, in which various operations falling within the scope of those concepts are listed. • 59 As is stated in the introductory note to Annexes II A and II B to the Directive, each of those annexes is intended to list disposal or recovery operations as they occur in practice. Moreover, it is clear from the wording of the operations in those annexes that some of them are described in very general terms and in fact cover categories of operations, with examples of operations sometimes provided to illustrate the relevant category of operation. • 60 It must therefore be concluded that the intention of Annexes II A and II B to the Directive is to list the most common disposal and recovery operations and not precisely and exhaustively to specify all the disposal and recovery operations covered by the Directive.

40. Waste • 63 Therefore, for the purpose of applying the Directive and the Regulation, it must be possible to classify any waste treatment operation as either a disposal or a recovery operation, and a single operation may not be classified simultaneously as both a disposal and a recovery operation. … • 71 In view of the considerations set out above, …the deposit of waste in a disused mine does not necessarily constitute a disposal operation within the meaning of D 12 of Annex II A to the Directive. The deposit must be assessed on a case-by-case basis to determine whether the operation is a disposal or a recovery operation within the meaning of that Directive. Such a deposit constitutes a recovery if its principal objective is that the waste serve a useful purpose in replacing other materials which would have had to be used for that purpose.”

41. ERG spot

42. C‑378/08, preliminary ruling Raffinerie Mediterranee (ERG) SpA, etc. • Where, in a situation entailing environmental pollution, the conditions for the application ratione temporis and/or ratione materiæ of Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage are not met, such a situation is governed by national law, in compliance with the rules of the Treaty, and without prejudice to other secondary legislation. • Directive 2004/35 does not preclude national legislation which allows the competent authority acting within the framework of the directive to operate on the presumption, also in cases involving diffuse pollution, that there is a causal link between operators and the pollution found on account of the fact that the operators’ installations are located close to the polluted area. However, in accordance with the ‘polluter pays’ principle, in order for such a causal link thus to be presumed, that authority must have plausible evidence capable of justifying its presumption, such as the fact that the operator’s installation is located close to the pollution found and that there is a correlation between the pollutants identified and the substances used by the operator in connection with his activities.

43. Articles 3(1), 4(5) and 11(2) of Directive 2004/35 must be interpreted as meaning that, when deciding to impose measures for remedying environmental damage on operators whose activities fall within Annex III to the directive, the competent authority is not required to establish fault, negligence or intent on the part of operators whose activities are held to be responsible for the environmental damage. On the other hand, that authority must, first, carry out a prior investigation into the origin of the pollution found, and it has a discretion as to the procedures, means to be employed and length of such an investigation. Second, the competent authority is required to establish, in accordance with national rules on evidence, a causal link between the activities of the operators at whom the remedial measures are directed and the pollution.

44. Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment (Lugano, 1993) • The objective of the convention is to ensure adequate compensation for damage resulting from activities dangerous to the environment and provide for means of prevention and reinstatement. Summary • Article 2.1 defines dangerous activity to cover various activities performed professionally and associated with dangerous substances, genetically modified organisms, micro-organisms or wastes. The Convention imposes liability on the operator of a dangerous activity for the damage caused by the activity as a result of incidents at the time or during the period when he was exercising the control of that activity (art. 6.1) and on the operator of a site for the permanent deposit of waste, at the time when damage caused by waste deposited at that site becomes known (art. 7.1). The Convention exempts the operator from liability for damages in certain circumstances, such as an act of war or natural disaster or pollution at tolerable levels under local relevant circumstances (art. 8). It contains provisions giving due consideration to the fault of the person who suffered the damage, the causal link between the incident and the damage, and circumstances where several installations or several sites are involved in incidents (arts. 9, 10 and 11).

45. Lugano 2 • Each Party undertakes to ensure that operators conducting a dangerous activity on its territory be required to participate in a financial security scheme or to have and maintain a financial guarantee to cover the liability under the Convention (art. 12). The Convention provides a right of public access to information relating to the environment held by public authorities or by bodies with public responsibilities for the environment (arts. 14 and 15). It further enables persons concerned to request the court to order access to specific information held by an operator if this is necessary to establish the existence of a claim for compensation or the extent of an operator's liability (art. 16.1 and 16.2). Actions for compensation and other claims are limited in time (art. 17.2). Non- governmental environmental organizationsmay request the prohibition of an unlawful dangerous activity posing a grave threat of damage to the environment or seek orders requiring operators to carry out preventative or reinstatement measures (art. 18). Actions for compensation under the Convention may only be brought within a Party at the court of place where the damage was suffered; the dangerous activity was conducted or the defendant has his habitual residence (art. 19.1).

46. Criminal liability Convention on the Protection of the Environment through Criminal Law (Strasbourg, 4.XI.1998) • common criminal policy • environmental violations having serious consequences must be established as criminal offences subject to appropriate sanctions • effective measures • imposing criminal or administrative sanctions on legal persons Draft directive. (COM [2001]139 final). • Council framework decision Council Framework Decision 2003/80/JHA of January 27, 2003 on the protection of the environment through criminal law • When presenting the directive, the Council voiced its concerns which are contained also in the preamble to the framework decision: „7 The Council has considered this proposal but has come to the conclusion that the majority required for its adoption by the Council can not be obtained. The said majority considered that the proposal went beyond the powers attributed to the Community by the Treaty establishing the European Community.”

47. The Directive (Directive 2008/99/EC) Why? • The extensive body of EU Environmental law • Effective implementation (6th EAP on implementation - serious environmental offences, adequate, and dissuasive functions • Large differences between the criminal sanctions provided for environmental offences in the Member States. Minimum requirements • a list of environmental offences, if committed intentionally or with serious negligence • inciting, aiding and abetting the commission of these offences must be punishable as a criminal offence as well • legal persons can be held liable • effective, proportionate and dissuasive criminal sanctions • a minimum standard of environmental protection through criminal law • no procedural part

48. Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law Preamble • (1) According to Article 174(2) of the Treaty, Community policy on the environment must aim at a high level of protection. • (3) ... existing systems of penalties have not been sufficient to achieve complete compliance with the laws for the protection of the environment. ... criminal penalties, ... demonstrate a social disapproval of a qualitatively different nature compared to administrative penalties or a compensation mechanism under civil law. • (5) ... more dissuasive penalties.

49. (6) Failure to comply with a legal duty to act can have the same effect as active behaviour and should therefore also be subject to corresponding penalties. • (7) ... when committed intentionally or with serious negligence. • (8) The legislation listed in the Annexes to this Directive contains provisions which should be subject to criminal law measures ... • (10) This Directive obliges Member States to provide for criminal penalties in their national legislation ...This Directive creates no obligations regarding the application of such penalties, or any other available system of law enforcement, in individual cases. • (11) This Directive is without prejudice to other systems of liability for environmental damage under Community law or national law. • (12) As this Directive provides for minimum rules,