13 Colum. J. Eur. L. 747 (2007)

Dionysia-Theodora Avgerinopoulou. LL.M., J.S.D. Candidate, Columbia University School of Law.

The objective of environmental protection requires an integrated approach employing a variety of instruments appropriate to influence conduct, ranging from public participation  to the  use of sanctions. Regulatory environmental administrative law remains at the heart of European Union (EU) Member States’ instruments for environmental protection. Recently, the European Community (EC) issued a proposal for a new Directive on the Protection of the Environment through Criminal Law (2007 Directive Proposal, Directive Proposal), which follows the example of both the Council of the European Union and the Council of Europe (Council).  Proliferation of international instruments prescribing criminal law sanctions comes within an era, which finds legislators throughout the world renouncing their protective role and instead moving towards the “carrot” side allowing financial incentives and cost-benefit analyses to guide the behavior of corporations and other major polluters. In the European region, though, rising social awareness created by increasing evidence of environmental deterioration counterbalances the trends towards deregulation: European regulatory bodies bring the “stick” back into the fray by adopting criminal environmental laws.

Taking into account the lack of international environmental enforcement mechanisms and the existing mild sanctions prescribed by environmental laws of the EU Member State(with comparison to the disastrous effects of the behavior they criminalize), evaluation of the introduction of minimum penal standards by the European Community could only be positive from a policy point of view. From a legal point of view, however, the competence of the EC to issue criminal legislation is highly contested. This is because the approximation of criminal legislation-has been explicitly entrusted to the Council of the European Union under the Treaty on European Union’s (EU Treaty) Third Pillar processes. The Directive in question contests the boundaries of the two Pillars. Through it, the European Commission (Commission) exercises for the first time far-reaching criminal competence in an effort to protect the environment effectively.

Part I of this Legislative Development presents both the historical background that led to the adoption of the 2007 Directive Proposal and the relevant case that acknowledges the Commission’s competence to issue the Directive. Part II discusses the specifics of the Directive and concludes with an evaluation of its content and suggestions regarding future regulation.