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[2008] 3 Env. Liability : The emergence of European Union environmental criminal law – Part I : Hedemann-Robinson 8989
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In particular, Article 10(1) specifies that parties are greater European legal integration in the sphere of
required to ensure that their environmental protection environmental crime. It has been rightly pointed out that
authorities cooperate with the relevant authorities the primary value underpinning the treaty’s text is state
responsible for investigating and prosecuting environmental sovereignty, although this is not expressly stated to be the
offences by, on their own initiative, providing the latter case in the Convention. In many respects, the CPECL
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with information they suspect constitutes a commission of reflects an era when intergovernmentalist approaches to
an offence under Article 2, as well as providing law addressing international issues of environmental crime at
enforcement agencies with information upon request. European level were especially dominant.
Disappointingly, this information exchange obligation is
rather meek, in the sense that active provision of I.3.3. The Danish initiative for a third pillar EU measure
information must only relate to suspected cases of on environmental crime
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intentionally committed crime and that parties may While it was fairly clear that for the most of the 1990s the
decide to opt out of these obligations partially or Council of Europe seemed to many EU Member States to
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altogether. Finally, Article 11 CPECL stipulates that be an appropriate forum for negotiating the development
parties may declare that they will grant rights to of common approaches to the subject of environmental
environmental NGOs to participate in criminal criminal conduct, it was evident that by 1998 there was
proceedings. However, this provision is largely symbolic, also willingness among Member States to foster cooperation
given that it does not have the status of a treaty obligation. under the auspices of the third pillar.
Whereas Section II of the Convention addresses the The European Council first indicated that it wished to
internal regulation of environmental crime within each develop intra-EU cooperation on environmental crime at
Contracting Party, Section III seeks to address the subject its summit in December 1998. It endorsed an action plan, 162
of international cooperation in relation to cross-border agreed to by the Council of the EU and European
crime. Disappointingly, Section III contains only a single Commission, on the implementation of the ToA agenda of
article, with minimal provision for cooperation between realising an area of freedom, security and justice within
Member States involved in the prosecution of the Union. This action plan specifically recommended that
environmental crime which concerns more than a single environmental crime, with its ‘strong cross-border
state. Specifically, Article 12(1) CPECL imposes a vague implications’ should be approached in an equally effective
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obligation on parties to afford each other ‘the widest manner across the EU. At a later summit in Tampere in
measure of cooperation’ in investigations and judicial October 1999, the European Council called for efforts to
proceedings relating to criminal offences established by the focus on obtaining agreement on ‘common definitions,
Convention, with Article 12(2) making it optional for incriminations and sanctions’ within the area of
parties to do the same in relation to the acts specified in environmental crime as part of the Union’s freedom,
Article 4 which are not covered by the definitions of security and justice agenda. No specific details of a
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intentional and negligent offences in Articles 2–3. prospective legislative programme accompanied these
Accordingly, the CPECL fails to address a number of key political commitments on environmental crime, from either
issues liable to arise in relation to the handling of cross- the European Commission or Council. In fact, it was the
border crime including, among others, provision for the Danish government which took the lead on the issue, by
exchange and handling of data and other forms of mutual independently proposing a specific third pillar legislative
assistance between police forces and prosecutors and initiative in 2000.
recognition and enforcement of judgments on criminal In February 2000, the Danish government’s proposal
liability. As mentioned earlier, to some extent Article 5 for a Council framework decision on combating serious
addresses questions in connection with jurisdictional environmental crime was published in the EU’s Official
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competence in the event of environmental impairment Journal. Based upon provisions in the third pillar,
affecting more than one party.
Bearing in mind its limitations, uncertainties and
caveats, it is clear that, if it ever enters into force, the 161 Selin ‘Your Money or Your Life’ (n 122) p 106.
CPECL would offer only a limited way forward towards 162 Vienna Action Plan (OJ 1999 C19/1).
163 ibid point 18.
164 Point 48 of the Presidency Conclusions of the European
Council (Tampere 16 October 1999).
165 Initiative of the Kingdom of Denmark with a view to
159 Article 10(1)(a) CPECL. adopting a Council Framework Decision on combating serious
160 Article 10(2) CPECL. environmental crime (OJ 2000 C39/4).

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