2. A Paradigm Shift in Environmental Criminal Law

This chapter provides an overview of how environmentally harmful behaviour has become the subject of an intense debate about the pros and cons of criminalizing such behaviour. In general, criminalization of environmental harm generally is a relatively recent phenomenon not only at the EU level, but also in domestic law. Originally, the legal protection of the environment usually took place via administrative law, whereby criminal provisions were added at the end of specific legislation of an administrative nature. The goal of the criminalization in those cases was merely to back up administrative obligations (e.g. to obtain a permit). In the 1980s, an increasing awareness emerged especially in legal doctrine that this was not an appropriate way to protect the environment since environmental criminal law was in fact dependent upon administrative law and no direct or independent protection was accorded to the environment. In some national member states (Germany, the Netherlands, Spain and France) autonomous environmental crimes were created which were, moreover, in some cases incorporated into national penal codes in order to express the importance of environmental crime. This tendency could also be found in a convention of the Council of Europe of 1990 on the protection of the environment through criminal law which, however, never entered into force. Through this convention serious infringements against the environment were directly criminalized. Moreover, an initiative was taken at the EU level to harmonize environmental criminal law. Originally, the justification for this harmonization was (like in the case of the Council of Europe) to provide a minimum level of environmental criminal law. However, at the EU level, a different justification for criminalization emerged: criminalization was rather seen as an important tool in the fight against the implementation deficit within member states. With that goal, the EU tried to force member states towards criminalization of national legislation implementing European environmental law. However, a problem arose since it was debated whether directives could impose such a duty towards criminalization. In a milestone decision of 13 September 2005, the (then) European Court of Justice decided that this is possible, although in a subsequent decision the ECJ equally decided that directives could not impose a specific type or size of penalties. As a result of the opening provided by the decision of 13 September 2005, Council Directive 2008/99 on environmental criminal law was promulgated, forcing member states to impose effective, dissuasive and proportional criminal penalties on the violation of national legislation implementing the European environmental acquis. Moreover, since the entry into force of the treaty on the functioning of the European Union (TFEU), also referred to as the Lisbon Treaty, the European institutions can even force member states to criminalize with a particular size and level of penalties.