The evolution of European Union criminal law (1957-2012)

The Court decided with the Commission in this dispute and annulled the Framework
Decision. 472 It based its reasoning on Article 47 TEU(A) which provided that nothing in
the TEU(A) should affect the ECT(A). 473 It noted that the protection of the environment
constitutes one of the essential objectives of the Community. This was derived from
Article 2 of the ECT(A), which stated that the Community was tasked to promote a high
level of protection and improvement of the quality of the environment; and from Article
3 of the ECT(A) which provided for the establishment of a policy in the sphere of the
environment. 474 The Court further observed that in proposing a Framework Decision on
the subject, the Council was concerned with the rise in environmental crime and its
impact, which was increasingly extending beyond the border of State in which the
offences are committed. Thus, it concluded that a ‘though response’ and a ‘concerted
action to protect the environment under criminal law’ were necessary. 475
This led the Court to revisit its ‘formula’, according to which, as a general rule, criminal
law and the rules of criminal procedure do not fall within the Community’s
competence. 476 Nonetheless, the Court further elaborated that
“ (…) the last-mentioned finding does not prevent the Community legislature, when the
application of effective, proportionate and dissuasive criminal penalties by the
competent national authorities is an essential measure for combating serious
environmental offences, from taking measures which relate to the criminal law of the
Member States which it considers necessary in order to ensure that the rules which it
lays down on environmental protection are fully effective.” 477
Accordingly, the Court found that the Articles of the Framework Decision, which
determined that a certain conduct particularly detrimental to the environment ought to be
criminal, could have been properly adopted under Article 175 EC (which defines the
basis of the Community environmental policy). 478
With this decision, the Court departed considerably from its previous case law and
deeply reshaped previous understandings about the role of criminal law within the entire
EC/EU context. It suggested that, although, in general, criminal law and criminal
procedure continue to fall outside the realm of the EC’s competence, exceptions could
472 For details on the facts see, for instance, S. White, “Harmonization of Criminal Law under the
First Pillar” supra note 454, 81-83.
473 Case C-176/03, supra note 464, para 38.
474 Ibid., para 41.
475 Ibid., para 46.
476 Ibid., para 47.
477 Ibid., para 48.
478 Ibid., para 49-51.
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