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[2008] 3 Env. Liability : The emergence of European Union environmental criminal law – Part I : Hedemann-Robinson 8585
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While for the first time in EU history the amended third Council of Europe’s Committee of Ministers and
pillar appeared to introduce a viable legal framework recommending the development of common guidelines for
dedicated to addressing the subject of cooperation between the purpose of combating environmental impairment. 122
EU Member States on aspects of criminal policy, it was not The objective of CPECL is both broad and bold in scope,
clear what legal impact this would have on the question namely the pursuit of a common criminal policy aimed at
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regarding the extent of the Community’s legal competence, the protection of the environment. The CPECL does not
if any, to adopt measures to combat crime (including simply focus on enhancing international cooperation with
environmental crime). On the one hand, the general respect to the prosecution of environmental offences of a
intentions of the Member States appeared to be clear, directly cross-border nature, where law enforcement
namely to house policy discussions on crime under the agencies and jurisdictions of more than one state are
intergovernmental umbrella of the third pillar. However, involved. It also contains a number of provisions intended
the provisions of the TEU had not been crafted clearly or to achieve a common understanding among CoE Member
rigorously enough to ensure that the EC Treaty would not States on the minimum that would be expected in principle
be capable of providing a basis for Community measures to constitute a criminal offence in respect of conduct
to be adopted on crime. perpetrating damage to the environment. By the end of
Specifically, provisions in the TEU state that the second July 2008 14 CoE Member States had signed CPECL; 13
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and third pillars are without prejudice to the scope and of these are EU Member States. CPECL has not yet
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application of the provisions of the first pillar, including entered into force, given that only one state, Estonia, has
the common environmental policy of the Community under so far ratified the Convention; its entry into force requires
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Articles 174–176 EC. Accordingly, the extent to which the at least three states to have ratified or signed without
third pillar may be used as a legal framework for the reservation as to subsequent internal ratification, acceptance
development of EU policy on environmental crime is or approval. 126
dependent upon the extent of the Community’s Ten years after being opened for signature, the entry
competence to adopt measures on the basis of Article 175 into force of CPECL looks remote. Events subsequent to
EC. As discussed earlier, the question of the extent of 1998 have ultimately led to the emergence of EU legislation
Community competence in the criminal policy sector has on environmental crime. This has had the effect, both
never been satisfactorily addressed in the first pillar treaties. politically and legally speaking, of diverting the EU
However, for several years this issue did not need to be membership’s focus away from the Council of Europe as a
resolved at EU institutional level, given that a specific EU site for the development of policy cooperation. In addition,
legislative proposal on the subject of environmental crime CPECL has a number of inherent structural weaknesses
was only placed on the table for negotiation in 2000. In which have been the subject of substantial comment
any event, during the 1990s Member States appeared to elsewhere. Several of these weaknesses either do not
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select the forum of the Council of Europe rather than the apply at all or do not appear to be relevant in as marked a
EU to develop European intergovernmental cooperation fashion with respect to EU legislative instrumentation,
on addressing the subject of environmental crime. particularly with regard to first pillar measures. In
particular, it is apparent that even if the CPECL were to
I.3.2 The 1998 Council of Europe Convention on the
Protection of the Environment through Criminal Law
The Council of Europe Convention on the Protection of
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the Environment through Criminal Law (CPECL), signed 122 Resolution No 1 of the 17th Conference of Ministers of
Justice (1990 Istanbul). See s I (Historical Background) of the
on 9 September 1998, was the first significant attempt to explanatory report accompanying the convention, available on the
secure regional cooperation over the combating of Council of Europe’s website (n 121). Prior to the 1990 ministerial
resolution, the Council of Europe had studied possibilities of
environmental crime at a European level. The official origins developing a criminal dimension to environmental protection; see
of the Convention may be traced to the establishment of a C Selin ‘Your Money or Your Life: A Look at the Convention on the
selected committee of experts in 1991, set up in the wake Protection of the Environment through Criminal Law’ (2001)
10(1) Review of Community and International Environmental Law
of a 1990 resolution adopted under the auspices of the p 106.
123 Recital 2 of CPECL.
124 Austria, Belgium, Denmark, Estonia, Finland, France,
Germany, Greece, Iceland, Italy, Luxembourg, Romania and
Sweden. The non-EU signatory state is the Ukraine.
120 See arts 29 and 47 EU. 125 Estonia ratified on 26 April 2002.
121 1998 CETS 72. The Convention is available for inspection on 126 Article 13 CPECL.
the Council of Europe’s website: http://conventions.coe.int. 127 See eg Selin ‘Your Money or Your Life’ (n 122).

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