On 11 March 2008, the European Commission presented a proposal for a directive which establishes acts of intentionally committed maritime pollution or following serious negligence as criminal infringements. That was the final chapter in a saga which began five years beforehand and saw the EU Court of Justice decide in favour of the Commission at the end of a Homeric struggle with the Council of ministers over the right to demand that EU member states punish this deliberate harm to the environment.

THE ‘THIRD PILLAR’ ARGUMENT

In March 2003, a proposal for a directive qualified maritime pollution committed in certain circumstances as “criminal infractions”. The proposal was minimal: it contented itself to qualify these acts as criminal infractions, but, in no case did it define the type or level of sanctions to be applied. These essential definitions were supposed to be established in an EU Council framework decision, which should have been adopted at the same time, but falling under an intergovernmental decision (the ‘third pillar’ of the Treaty of Nice).

This approach went too far for the EU27, which, for more than 18 months, asserted that even the principle of criminal sanctions could not be decreed by a Community legislative act (‘first pillar’). Put clearly, that a directive could not oblige member states to qualify certain infractions as criminal. Before this deadlock, the Commission and the Parliament decided to give up and Directive 2005/35/EC that was finally adopted contented itself to state that certain acts of maritime pollution must be considered infractions and sanctioned appropriately. It is the Framework Decision 2005/667/JHA, adopted at the same time, which qualifies these infractions as “criminal,” specifying the nature, type and the level of sanctions. However, it was a question of a ‘third pillar’ decision, therefore without the possibility of appeal to the Court of Justice in the event of shortcomings from a member states. This was an incontestable weakness in the eyes of the Commission and Parliament, for whom a directive mute on criminal sanctions would never have the dissuasive effect that they had hoped for.

SEPTEMBER 2005: THE TURNING POINT

However, things did not stay this way. On 13 September 2005, exactly two months after the adoption of the controversial directive, the EU Court of Justice annulled a framework decision of the Council on the protection on the environment by criminal law (Case C-176/03). Reason: this act reserves the decision to use criminal sanctions to the member states alone, since it is an act falling under the ‘third pillar’. Now, states the Court, nothing prevents the Community legislator from taking measures which force the member states to intervene at a criminal level if it is necessary to combat the serious harm to the environment. This was a decisive ruling as it finally recognised the competence of the Community in criminal matters.

The opportunity was clearly too good for the Commission which, in its wake, decided to lodge an action for annulment of the Framework Decision on maritime transport (Case C-440/05). Coherent, the Court ruled in its favour, on 23 October 2007. The obligation to criminally sanction intentional maritime pollution or maritime pollution following serious negligence should have been decreed, said the judge, in the framework of the Common Transport Policy. And therefore be in a directive, and not in a framework decision.

Moreover, the Court went a step further in defining this competence. The 2005 ruling left open the delicate question of the circumstance in which the Community is competent to demand criminal sanctions. The Court pasted over this lacuna: the Community legislator can impose criminal sanctions if they are necessary to ensure the effectiveness of environment protection norms and on condition that they are indispensable in the fight against serious environmental infractions. This is clearly the case with the fight against maritime pollution.