Environmental criminal law in the first pillar: A positive development for environmental protection in the European Union?

Summary: The quest for a “high” level of environmental protection1 in the European Union (EU) is dependent on the successful implementation and enforcement of EU legislation by Member States. Thus, despite the fact that the Community did not originally have a mandate to impose the choice of instrument of implementation of Community Law on Member States, the decision of the European Court of Justice (ECJ) of 13 September 2005 (Case C-176/03 Commission v Council) has finally established that while the Community does not have competence in criminal matters per se, the Community institutions may require Member States to introduce criminal sanctions for the protection of the environment. The ECJ has therefore annulled a Framework Decision of the Council which aimed at harmonising the criminal sanctions for protection of the environment of Member States under the third pillar of the EU, rather than the first pillar (which allows the Commission and ECJ to exercise stronger enforcement powers). These developments demonstrate that for the first time a supranational institution may be able effectively to enforce an obligation on national authorities to enact penal sanctions for environmental protection. The objective of this paper will be to discuss whether the harmonisation of environmental criminal standards may lead to better environmental protection within the EU