Environmental damage is now punishable internationally - attracting fines and jail sentences. But europe-wide sanctions can be hard to enforce, and may prove problematic in other areas of the law, writes June O'Keeffe


When it comes to championing the green cause on the international stage, the EU and the European Commission in particular, do comparatively well. The commissioners might spend a lot of their time flying about the world and being driven around in limos, but they offset these carbon emissions with policy activity to promote the environment.



Most challenges in this field do not respect national boundaries, so the EU can indeed add value in ensuring environmental protection across Europe. Hence there is a need for international co-operation, as has been demonstrated by the Kyoto protocol and, more dramatically, by Al Gore in his cinematic debut, 'An Inconvenient Truth'.



In the summer of last year, a British chartered vessel was involved in an incident in which chemicals were off-loaded off the coast of west Africa. The incident allegedly led to the deaths of 12 locals as well as causing injury to more than 50,000 people. This turn of events led to mass resignations of local politicians and is currently the subject of a class action before the High Court. When damage to the environment has such devastating effects, it seems only right that someone should be punished, if only to deter others.



The European Commission has the power to impose fines on EU countries that fail to live up to their obligations. So far, these powers have mainly been used in regard to states' failures in the field of environmental law. In December, the commission started legal proceedings to impose a ¤20 million (£13.5 million) fine against Italy for failure to clean up illegal landfills and a ¤38 million fine against France for failure to give effect to a European law on the release of genetically modified organisms into the environment.



However, the commission cannot fine individuals or companies for causing environmental damage, nor can it bang people up. That is strictly the preserve of member states, or so one might have thought. This month, however, the commission proposed a directive to harmonise certain environmental crimes and the penalties member states impose for them. Mostly they aim to address offences that cause the death of or harm to people.



The commission has obviously been emboldened in its ambition by a controversial judgment from the European Court of Justice in 2005, which basically acknowledged that the European Community, rather than the member states of the EU, has the power to prescribe criminal offences and sentences in this area whenever 'the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities is an essential measure for combating serious environmental offences... which it considers necessary in order to ensure that the rules which it lays down on environmental protection are fully effective'.



So far, the commission has used these powers sparingly, having only brought forward one other proposal that would attract criminal sanctions - aimed at tackling counterfeiting and piracy. But there are indications that further such proposals could be brought forward in other fields. A recent consultation on timeshare rules asked about the appropriateness of harmonising criminal sanctions for the most fraudulent traders. Those employing illegal immigrants may also get collared by the long, and Euro-harmonised, arm of the law in years to come.



While there is general agreement on the need for concerted action in the field of the environment, the idea of European-wide sanctions does not meet with unanimous approval. Trespassing on national sensitivities when it comes to criminal law raises the usual questions about sovereignty. Neither is it completely clear how far the community can go in harmonising criminal law measures. The court's ruling was reasonably clear as to what the member states could not do, but significantly less clear on what the commission could propose in a directive.



While several EU countries, notably the UK, already impose hefty fines and even jail sentences for those breaking environmental laws, the penalties vary throughout the EU. The commission concludes that criminals are exploiting the differences. Acutely sensitive to inevitable accusations of competence grab in this area, it has been at pains to point out that such sanctions will only apply to 'serious' environmental crimes. However, as The Sun newspaper pointed out recently, the proposal does extend to picking protected species of flowers, leading to the headline: 'Flower pickers to be criminals.'



The planned legislation enumerates nine serious environmental crimes, which include fairly obvious and uncontroversial offences such as: the unlawful treatment, transport, export or import of waste, including hazardous waste; the unlawful trade in endangered species; and the unlawful operation of a plant in which a dangerous activity is carried out. Sanctions would range from fines of up to ¤1.5 million to prison sentences of up to ten years for offences leading to death.



Setting aside the institutional squabbling about competence, which looks set to run and run,

there is a logic to having consistent enforcement in the EU. However, the question is often one of enforcement capability, rather than the uniformity of sanctions. if people are serious about tackling this problem, they will have to put their money where their mouth is.



June O'Keeffe is head of the Law Society's Brussels office. Email: brussels@lawsociety.org.uk.