Judicial Training and research on EU crimes against
environment and maritime pollution
Carlo Ruga Riva, University of Milano
Criminal sanctions in pollution cases:
Problems arising from transposition of EU
Directive 2088/99 in Italy, Adriatic Sea
Countries and Bulgaria
26/29 June - Dipartimento di Scienze Giuridiche
UniSalento
Room R27
Lecture plan
1) briefly history of competence and power
on criminal matter at the EU level, and
more specifically on environmental criminal
law;
2) the content of the directive 2008/99
regarding environmental crimes;
3) discussion of some cases relating to
problems of interpretation arising from the
transposition in some Countries.
CASE 1
Someone kill one protected wild animal
(a bear, a dolphin)
Should be punished the killing of one or a few
specimen
of
protected
wild
animals?
Reasoning on the clause of “except for cases of
negligible quantity of specimen of protected wild
animals”, according to art. 3 Directive 2008/99 EC .
See Bulgarian and Italian CL, which don’t criminalise
the minor cases, so that in principle act such this could
not
be
punished.
See Montenegrin CC (art. 309, par. 2), which does not
mention
the
minor
cases
clause.
CASE 2
 Should be punished the taking abroad or one or a
few specimen of protected plants?
Still Reasoning on the minor cases-clause of
“Negligible quantity of specimen of protected
plants”
 See Art. 312 and art. 9 Montenegrin CC
Case 3
Shipment of negligible quantity of waste
(cross border expedition)
 Shipping of negligible quantity of waste is not to
punish pursuant art. 3 Directive 2008/99, as well
pursuant some national disposition (see art. 353, lett. d.
Bulgarian CC);
 anyway other legislation, such as the Italian and the
Albanian one (art. 202), doesn’t provide any exception
relating to negligible quantity.
Case 4
What does mismanagement of waste”
mean?
Reasoning about european law and
comparative law oriented interpretation
 The Bulgarian case
(art. 353 b. and 353 c Bulgarian CC)
Case 5
Mens rea and
non serious negligence
 art. 3 Directive 2008/99 and art. 4 directive 2009/123
require Member Stats to punish some conducts, if
committed intentionally or with at least serious
negligence.
 See italian env. Law and and croatian CC, (art. 250, or
art. 193 new CC), which don’t specific which kind of
negligence is required (so what happens in case of not
serious negligence?).
CASE 6
If the national law doesn’t comply with the
directive what judge should do?
 Reasoning on remedies when the national law doesn’t
comply with EU law.
 Constitutional Court?
 Preliminary ruling to ECJ?
 Direct application of european law (supremacy of EU
law)?
 Application of national law not conform to EU law?
Before Lisbon Treaty: who has the
power on criminal law?
ECJ, 13 September 2005, Grand Chamber,
C- 176/03, Commission vs. Council).
EC has the power to strengthen some
matters of the first pillar, like Environment,
providing criminal sanctions, even without a
specific power mentioned in the Treaty on
criminal matter.
What ECJ requires
 that criminal law is the necessary mean in
ensuring an effective protection of such
matter: so called criterion of need,
depending inter alia on aim and content of
the discipline.

What directive can not do
(ECJ 23.9. 2007, Grand Chamber, C440/05),
EC, through Directive, can not impose
type and level of criminal sanctions.
Something new: directive 2008/99 on
environmental crimes
 For the first time EC obliged Member States to
criminalize some conducts producing harms or danger
for the environment and human health
After Lisbon legislative power in criminal law
 Art. 83 TFEU
 environmental crimes included in the “open list” of
“serious crime with a cross-border dimension resulting
from the nature or impact of such offenses or from a
special need to combat them on a common basis”,
which could be added to the list by the Council
(unanimously), after obtaining the consent of EP.
Art. 83, par. 2 TFEU
 Environmental crime also fall in “an area
which has been subject to harmonisation
measures, if the approximation of criminal
laws and regulations of the Member
States proves essential to ensure the
effective implementation of a Union
policy.
What Courts should do
 The ECJ must control whether national laws
comply with the Directive 2008/99, namely if
they provide effective, proportionate and
dissuasive criminal sanctions and if national
crimes comply with the elements of crime
included in art. 3 of the Directive 2008/99 (and
with art. 3 Directive 2005/35/CE as emended
by Directive 2009/123 EC).
How national judges
should interpret the derivate law
 Domestic Judges have the duty to interpret the
domestic law in accordance with european law (with
some limits);
 ECJ: the domestic judges have a duty “to interpret as
far as possible national legislation in the light of the
wording and purpose of a relevant Directive”.
What happens is an interpretation conform
to EU law is not clear or not possible
 Judge Power to disapply the national law?
 Submitting a reference to ECJ for a preliminary ruling?
 Submitting a question of constitutionality to his/her own
Constitutional Court?
 Duty to apply the national law even in not conform to
EU law?
 See italian experience: art. 117 Cost.
Content of Directive 2008/99 EC on
environmental crimes
 the rationale of the dispositions: to ensure effective
protection of, respectively, environment and maritime
safety, presuming that criminal law is more effective
than administrative or civil law (because of his stronger
deterrence function).
 Also strengthening of cooperation and better crime
investigation between Member States, through
common rules and dispositions
Rationale and Aim of the Directive
2008/99
 According to Article 174(2) of the Treaty, Community policy on the
environment must aim at a high level of protection.
 (2) The Community is concerned at the rise in environmental
offences and at their effects, which are increasingly extending
beyond the borders of the States in which the offences are
committed. Such offences pose a threat to the environment and
therefore call for an appropriate response.
 (3) Experience has shown that the existing systems of penalties
have not been sufficient to achieve complete compliance with the
laws for the protection of the environment.
 Such compliance can and should be strengthened by the
availability of criminal penalties, which demonstrate a social
disapproval of a qualitatively different nature compared to
administrative penalties or a compensation mechanism under civil
law.
Directive 2009/123 on ship source pollution
 Criminal penalties … should be sufficiently severe to dissuade all
potential polluters.
 The existing system of sanctions for illicit ship-source discharges of
polluting substances… needs to be further strengthened by the
introduction of criminal penalties. Common rules on criminal penalties
make it possible to use more effective methods of investigation and
effective cooperation within and between Member States.
 Since the objectives of this Directive cannot be sufficiently achieved
by the Member States acting alone, by reason of the cross-border
damage which may be caused by the behaviour concerned, and, by
reason of scale and effects of the proposed action, can therefore be
better achieved at Community level, the Community may adopt
measures…
 See art. 83 TFEU

Art. 3 Directive 2008/99
Member States shall ensure that the following conduct
constitutes a criminal offence, when unlawful and committed
intentionally or with at least serious negligence:
(a) the discharge, emission or introduction of a quantity of
materials or ionising radiation into air, soil or water, which
causes or is likely to cause death or serious injury to any
person or substantial damage to the quality of air, the
quality of soil or the quality of water, or to animals or plants;
(b) the collection, transport, recovery or disposal of waste,
including the supervision of such operations and the
aftercare of disposal sites, and including action taken as a
dealer or a broker (waste management), which causes or is
likely to cause death or serious injury to any person or
substantial damage to the quality of air, the quality of soil or
the quality of water, or to animals or plants;
Others environmental crimes
 (c) the shipment of waste, where this activity
falls within the scope of Article 2(35) of
Regulation (EC) No 1013/2006 of the European
Parliament and of the Council of 14 June 2006
on shipments of waste and is undertaken in a
non-negligible quantity, whether executed in a
single shipment or in several shipments which
appear to be linked;
Others environmental crimes
 Other conduct relating:
 the operation of a plant in which a dangerous activity is
carried out;
 the production, processing, handling, use, etc. of nuclear
materials.
 Many dispositions include a damage or concrete danger-
clause. The conduct shall be punished if “causes or is likely
to cause death or serious injury to any person or substantial
damage to the quality of air, the quality of soil or the quality
of water, or to animals or plants.

Damage or concrete danger-clause
 The judge should prove case by case the causation link
between the conduct and the effect on the environment
or human health, or at least the endangerment of these
interests.
 Problems of proof
 Ambitous model, but maybe not so realistic
Italians do it different
 We had an still have another model, based on abstract
danger environmental crimes: no matter of real,
concrete consequences of the conduct
 Acting without permission
 Water discharge, emission of hazardous substances
into air, soil ecc, beyond the limits set by law or
Environment agencies
 Simplified burden of proof: presumpion of danger
based on scientific knowledge
So what do we need? (Europeans
have to do it better)
 Maybe we need an integrated sanction system,
founded on both of punishment models above
mentioned.
 For minor cases administrative sanctions or mild
criminal sanctions in order to punish abstract
endargment of environment or human health
 For significant pollution (damages or concrete dangers
to the environment or to human health) the EU
punishment model
The “offensiveness” clause
 Some EU environmental crimes except minor
cases
 See Article 3 requiring Member States to punish
conducts relating to the killing, destruction,
possession ecc. of specimens of protected wild
fauna or flora species (lett. f), and
 trading in specimens of protected wild fauna or
flora species or parts ….(lett. g), except, in both
dispositions, for cases where the conduct
concerns a negligible quantity of such
specimens and has a negligible impact on the
conservation status of the species.
 Albania and Montenegro don’t comply?
The power of discretion (assessment) of the
national legislator in the transposition
 Art. 3 Directive 2008/99, lett. A) (serious injury to any person or
substantial damage to quality of air…
 See art. 250 “old” Croatian CC “within a wide area and to an extent
which can worsen living conditions for humans or animals, or
endanger the existence of forests, plants and other vegetation,
 See art. 303 Montenegrin CC (“to a larger extent or in a wider
area”
 See art 193 Croatian CC 2011:
 Whoever, contrary to legal rules, discharges, introduces or emits
such quantity of substances, or ionizing radiation into air, soil,
subsoil, water or sea, which could permanently or in a significant
amount endanger its quality or could in a significant amount or on
a wider area endanger animals, plants or fungi, or could endanger
the life or health of humans,shall be punished by imprisonment for
a period of 6 months up to five years.
Lett. H)
 Any conduct wich causes the
significant deterioration of a habitat
within a protected site
 Lack of normative elements to fill the
concept of significance
 Large margin of discretion for legislative
dispositions, and much more for
national judges
Need to harmonise criminal sanctions
(type and level)
 Italian law (art. 733-bis CC) Whoever, except in the circumstances
permitted, destroys a habitat within a protected site or otherwise
deteriorates it by compromitting his conservation status, shall be
punished with imprisonment of up to eighteen months and a fine of
not less than 3. 000 E.
 Art. 201 Croatian new CC
 1) Whoever, contrary to legal rules, destroys or causes significant
deterioration of a habitat of protected species of animals, plants or
fungi, or destroys or causes significant deterioration of a type of
habitat,
shall be punished by imprisonment for a period up to 1 year.
(2) Whoever commits the criminal offence from paragraph 1 of this
Article towards a habitat, or a breeding area, area in which cubs
are being raised, migration area, area of hibernation of a strictly
protected wild species of animals, plants or fungi,shall be punished
by imprisonment for a period from 6 months up to 5 years.