EU to get tough on 'green crimes'

9 Feb 2007
By Alix Kroeger
BBC News, Brussels

Plans to turn environmental offences over to the criminal courts across the EU are set to be unveiled by the European Commission.

It marks an extension of the EU's powers, following a landmark ruling by the European Court of Justice in 2006.

It is one of the first times the EU would have the power to make criminal law and set penalties.

Most offences covered by the draft directive relate to the dumping, transport or treatment of waste.

This includes both nuclear material and radioactive substances.

Heavy fines

A draft of the proposal, leaked to the BBC, said "environmental crime often has a transboundary nature...offenders are therefore currently in a position to exploit the existing differences between member states".

The directive also takes in the illegal trade in endangered species, the "unlawful significant deterioration to a protected habitat", and the unlawful use of ozone-depleting substances.

Most of the offences would be punishable by one to three years in prison. However, that could rise to five years if there was negligence or if the offences caused death or serious injury.

And for offences committed intentionally, the maximum penalty foreseen is 10 years in prison. Fines could go as high as 750,000 euros (£500,000).

The environmental pressure group Greenpeace welcomes the plan but says it does not go far enough.

"It will make it easier for member states to prosecute criminal gangs, individuals and companies that make a business out of shady practices such as the trade in endangered species and in ozone-depleting substances," says Katherine Mill from Greenpeace.

But she says the fines are "minimal", compared with the penalties in EU internal-market cases.

"In comparison, 1.5m euros is the recommended starting fine for the release of radioactive material which causes death. This is peanuts for a large company."

The commission appears to agree with the principle, if not the criticism of the fines.

The draft says: "Only criminal penalties will have a sufficiently dissuasive effect...administrative or financial sanctions may not be dissuasive in cases where the offenders are impecunious or, on the contrary, very strong."

But that has set alarm bells ringing among those who fear the EU is taking over the powers of member states.

"It's a significant transfer of power to the commission," says Timothy Kirkhope, leader of the British Conservatives in the European Parliament.

"The decision on whether or not to criminalise offences in Britain should be a matter for Britain, not for the EU. We all support penalties against environmental vandals but this sets an alarming precedent."

Effective laws?

Britain supported earlier proposals to criminalise environmental offences, but on a different legal basis. This would have left it to the member states to set the penalties.

But that framework decision by the EU Council of Ministers was overturned by the European Court of Justice last year. Judges ruled that the EU's competence on environmental law overruled the member states' powers on criminal justice.

In their ruling, judges said: "The European Community has the power to require the member states to lay down criminal penalties for the purposes of protecting the environment."

But how effective would these new laws be? And are they really necessary?

One case recently in the spotlight is that of the Probo Koala. The tanker, chartered by Trafigura, a company based in the Netherlands, left Amsterdam in August, carrying a load of chemical waste.

The waste was offloaded in Ivory Coast by a local contractor. Most of it was dumped in open-air sites. The Ivorian government says 10 people died and tens of thousands needed medical attention. The public outcry forced the cabinet to resign.

Trafigura denies any wrongdoing, and says it is "distressed by the deaths and illnesses which have occurred in Abidjan".

'Normal' waste

It says the slops from the Probo Koala were made up of "spent caustic soda, gasoline residues and water.

"They resulted from normal maritime gasoline trade operations during June and July 2006 and were, as is usual, held in separate waste tanks aboard the ship."

Dutch lawyer Bob van der Goen is working together with British and French lawyers on a claim for damages for hundreds of Ivorians who say their health was damaged by the waste.

He says there are already laws which would cover the case of the Probo Koala, but they are not being properly enforced.

"There is a lot of window-dressing going on," he says. He believes it is a lack of political will, and not a gap in the legislation, which is the biggest barrier to punishing environmental offenders.