European environmental criminal law: do we really need it?

Article abstract:

The Commission argues that the criminal law needs to be used to punish offences in breach of Community law protecting the environment. The Commission believes that only by using the criminal law can the implementation deficit effectively be remedied. In this article the author argues that this duty towards criminal enforcement seems ineffective and can potentially even be counter productive. The traditional model for implementation of European legislation is still that European environmental law will draft the norms, but that Member States remain free in their choice of the implementation techniques. European legislation and case law has reacted in various ways with effective remedies to cope with the implementation deficit. However, the idea has never been that the implementation deficit would be cured by forcing Member States to impose a specific type of sanction. This would remove the traditional freedom to choose the correct implementation instrument by the Member State and in that sense it seems non-European. Moreover, the argument that the criminal law would be necessary to guarantee a correct implementation of European environmental law seems to neglect all the instruments that European law has developed so far to force Member States towards compliance. The author opines that the Commission, at least in the directive it proposed in 2001, neglected the important question of a correct theoretical foundation for a European intervention in the area of environmental criminal law. This contribution does not aim to provide a formal institutional-legal basis for a European environmental criminal law, but rather critically addresses whether such a European environmental criminal law would anyway be necessary. The focus is mostly on the proposal for a directive presented by the Commission in 2001. If the European Court of Justice were to adopt arguments concerning the lack of competence of the Council we may assume that one day the initiative taken by the Commission in 2001 will be continued.