|European Court judges stand accused of dabbling in law-making |
ON SEPTEMBER 13 the European Commission and the European Parliament won the right to demand that EU member states institute criminal sanctions for violation of European environmental legislation.
The decision by the European Court in Luxembourg paves the way for the resurrection of an older commission directive that was meant to prescribe minimum criminal sanctions for breaches of environmental law by individuals and companies. The directive and additions to it made by the European Parliament had been rejected by the European Council, which represents the union's 25 member states. The commission and the parliament took the case to court.
The amended directive was significantly beefed up by European Parliament environmental committee proposals that offenders should not only face prison sentences but also extradition and confiscation of profits made from illegal activities.
Environmental groups and European federalists welcomed the court's decision. "I believe that environmental law breaches should be handled as criminal law breaches. I can't think of an environmental offence that should be exempt from criminal law," Theodota Nantsou of the World Wide Fun for Nature (WWF) Greece tells the Athens News. "Especially in Greece the law does not foresee adequate sanctions in most cases, with the exception of arson that burns down forestland and seawater pollution," Nantsou says.
Dimitris Giotakos, member of Environment Commissioner Dimas' cabinet, explains how the new regime could change things: "The new rules could apply to serious cases as, for example, toxic waste. If we were to rewrite the directive regarding toxic waste, where it says that the member states have to find ways to handle this waste safely, the directive could also state that the companies that are involved in toxic waste production could also be considered responsible under criminal law in case of mismanagement of this waste... The decision achieves a better, more substantive enforcement level of environmental directives."
If such a rule had been in force during the last 15 years, the Greek authorities would have had to prosecute the tanneries and oil refineries that dumped dangerous toxic waste in Thriasio Pedio, western Attica, or find themselves accused in the European Court for not doing so. Greece has received a European Court conviction for not doing enough to prevent hazardous waste in Thriasio and might end up paying a hefty fine if it does not clean up its act.
However, many in the European Union feel the decision goes a step too far and runs against the spirit of democracy. Lina Kouskouna is a lecturer in international and environmental law at the University of Athens. "We can't just criminalise every aspect of human life. If progressively all offences become criminalised and possibly punishable with imprisonment, the state enters even more deeply into our private lives. This power should rest with the member states. Other questions also arise. For example, if it is a company that pollutes, who should go to prison?"
Giotakos thinks that the commission is unlikely to embrace the parliament's clauses and that it will be up to member states to determine the severity of the penalties they will apply. "The commission cannot stipulate what exactly the criminal sanctions will be. This is up to the member states and we couldn't have such a significant transfer of power from member states to the commission." Parliamentary amendments to the commission's proposals will be scrutinised by the council and a compromise will have to be reached.
Whatever the repercussions for environmental policy, everyone is in agreement that the court's judgement is a significant victory for the commission and for those in favour of "ever closer union" in the ongoing battle between supporters of further European integration and those that want member states to retain their authority at current levels. "Practically, the decision does not only apply to the environment, it has wider application for other policies too," says Giotakos.
Kouskouna agrees, but thinks that with the decision the court has overstepped its remit. "Criminal law is traditionally bound closely with the nucleus of the nation state and, as a result, national sovereignty. The European establishment until now discussed carefully these matters but had yet to touch upon criminal sanctions. The European Court has in this instance played an activist role. It is now not simply interpreting the law but making laws and being criticised by many sides for doing so. Courts should not legislate. They do so in the United State, Britain and Anglo-Saxon countries but not in continental Europe as a rule."
ZDROJ: Athens News