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90 The emergence of European Union environmental criminal law – Part I : Hedemann-Robinson [2008] 3 Env. Liability
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specifically Articles 31 and 34(2)(b) EU, the legislative several respects it was designed to serve more as a
initiative appeared to be a move to consolidate the regional complementary intergovernmentalist measure. This was
European agreement struck over environmental crime underlined by the fact that the Danish proposal required
under the CPECL. Member States to ensure that they proposed ratification of
In broadly similar vein to the CPECL, the Danish CPECL by the beginning of 2001 to their respective national
proposal sought to secure broad agreement between states parliaments and that as far as possible no reservations on
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on the means to addressing the most serious instances of their part were entered against it. The Danish proposal
environmental crime. However, its approach to achieving sought to beef up several of the provisions of CPECL, in
this objective is substantially different to the one adopted areas where the latter merely contained a number of options
by the Convention. Specifically, it does not provide a core as opposed to legal requirements for Contracting Parties.
list of offences but instead requires Member States to For instance, a number of sanctions for offenders are set
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criminalise ‘serious environmental crime’. Serious out as mandatory in the Danish initiative, including in
environmental crime is defined as the perpetration of actual relation to the confiscation of equipment, proceeds and
or an obvious risk of substantial environmental damage assets of criminal activity, as well as environmental
caused by certain acts or omissions under ‘aggravating rehabilitation. The Danish initiative also goes further than
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circumstances’. The acts and omissions concern a CPECL, notably in stipulating for disqualification of
relatively narrow range of conduct as compared with offenders from activities requiring authorisation or from
CPECL, namely the pollution of environmental media 168 corporate management where there is, in particular, a risk
or the storage or disposal of waste or ‘similar substances’. 169 of recidivism. In addition, Member States are to ensure
The draft text uses the term ‘aggravating circumstances’ to that ‘effective compensation rules’ cover the criminal
limit considerably the scope of crime which it covers, by activity targeted by the legislative proposal. The Danish
defining it to mean that the conduct ‘cannot be considered proposal also contains a number of general provisions
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part of the normal, everyday operation of an otherwise designed to enhance the process of investigation and judicial
lawful activity’ and that either the offence is ‘major in procedure, both domestically within individual Member
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scale’ or that financial gain was obtained or sought. This States and between Member State authorities engaged
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effectively restricts the definition of serious environmental in law enforcement. For the most part, these provisions
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crime to a very narrow range of organised criminal activity. 172 substantially reiterate or underpin commitments contained
The Danish initiative is less anthropocentric in its in CPECL and in other Council of Europe conventions
approach than the CPECL, choosing to focus on related to regional cooperation over crime in general.
environmental impairment alone and leaving aside Innovatively, the proposal envisages the creation of a
questions concerning human health impacts of centralised pool of data on serious environmental crime to
environmental crime. It also sets out as a basic requirement be kept for the mutual benefit for Member States,
that Member States must criminalise serious environmental specifically a register of special skills and know-how that
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criminal conduct. Criminalisation is foreseen to be would ultimately fall under the auspices of Europol if it
mandatory, including in cases of offences perpetrated by were to become responsible for with dealing with
legal persons. 174 environmental crime. 178
Notwithstanding these differences and innovations, the For just over a year after its publication in the Official
Danish proposal did not seek to present itself as a rival Journal in February 2000, the Danish proposal appeared
international instrument to the Convention; rather, in to be on course to becoming adopted under the auspices of
the EU’s third pillar. During this period it did not appear

166 ibid art 2(1).
167 ibid art 1(1).
168 ibid art 1(1)(a). 175 ibid art 14.
169 ibid art 1(1)(b). 176 Specifically, the Danish proposal’s requirements that Member
170 ibid art 1(2) first subpara. States ensure law enforcement authorities are endowed with
171 The draft refers to certain factors to be taken into account in effective investigative powers (art 3) and appropriate coordination of
assessing whether the offence is major in scale, specifically whether national authority activity (art 5).
the crime is systematic or persistent, pre-meditated or has been the 177 Specifically, the Danish proposal’s provisions concerning
subject of attempts of concealment (art 1(2), second subpara). territorial jurisdiction (art 4), transnational cooperation between
172 The range of targeted behaviour is narrower than that agencies involved in investigation and prosecution (art 6), exchange
addressed under CPECL, which is mostly focused on behaviour of information (art 7), transfer of proceedings and enforcement of
considered unlawful under national level. criminal penalties (art 8), and the establishment of national contact
173 ibid art 2(1). points for collection and exchange of information on crime (art 9).
174 ibid art 2(1)(b). 178 ibid arts 10–13.

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