Domestic Level

In terms of what improvements have been made in recent years in member states’ legislation, it is worth mentioning that there are obvious differences between each member state, and it is impractical to discuss all changes in detail. Rather, I provide select examples of whether the place of environmental criminal law has changed (Sect. 5.3.1), whether there have been changes in the administrative dependence (Sect. 5.3.2) and whether there is an increasing place for administrative fines within environmental enforcement (Sect. 5.3.3).

The Place of Environmental Criminal Law

One can easily find examples of policy changes involving either the incorporation of environmental crime into the penal code or a codification of environmental law generally, whereby environmental crime also received a specific place in an environmental code. An example of the former has already been mentioned—Germany and the Netherlands were to some extent first movers, since Germany incorporated various criminal provisions in its penal code in 1980 (Heine 1994, p. 733) and the Netherlands in 1989 (Waling et al. 1994, pp. 1080-1082). Additional member states followed suite, particularly southern European countries. Portugal adopted similar provisions in Articles 278-281 of its Criminal Code. This new Portuguese Criminal Code, which came into force on 1 October 1995, includes crimes that cause damage to nature (Art. 278), pollution crimes (Art. 279), pollution causing public danger (Art. 280) and danger to fauna and flora (Art. 281; De Figueirdo 1993; Faure and Heine 2000, p. 283; Hunerfeld 1997; Rodrigues 1994).

Spain adopted a new Spanish Criminal Code in 1995 that contains a spectrum of ecological offences in Articles 325-331. These deal with illegal emissions but also crimes related to damaging cultural heritage, flora and fauna and others (Faure and Heine 2000, p. 293; Polaino Navarrete 1997).

Concerning the second development, examples can also be provided of the incorporation of criminal provisions into a code or special environmental law. In the 1990s, many countries developed environmental codes aiming at an integration of environmental law. Integration implies the bringing of different environmental statutes into one document (like an environmental code). Examples of this can be found in the Scandinavian countries, for example, the Environmental Protection Act of 1991 in Denmark (Faure and Heine 2000, pp. 86-88; Jepsen 1994). In Sweden, the major provisions concerning environmental crime can be found in the Environmental Code 1998 (Faure and Heine 2000, pp. 311-319). Recently, these criminal law provisions in this environmental code have been updated.

Likewise, Ireland and the UK already had relatively early general statutes aimed at protecting the environment that also included criminal offences. Ireland had those provisions in the 1992 Environmental Protection Agency Act (Faure and Heine 2000, pp. 192-195); the UK had offences in the 1995 Environment Act (Faure and Heine 2000, 359-360). However, both in Ireland and the UK, these Environment Acts did not completely harmonize or integrate all environmental statutes. Criminal provisions could still be found in other sectorial legislation. Interesting examples of integration of environmental criminal law can be found in the Flemish and Walloon Regions in Belgium.[1] In the Flemish Region, a Decree of 5 April 1995 already contained general provisions on environmental policy. In 2007, a Title XVI ‘Supervision, Enforcement and Safety Measures’ was added to this Decree, which entered into force on the first of May 2009. This is referred to as the ‘Environmental Enforcement Decree’. This Decree contains criminal sanctions that apply to all sectoral legislation (a long list of legislative provisions) which all fall under the scope of application of this Decree. That integration hence implies that the criminal provisions are harmonized into one document and no longer scattered over different decrees and statutes.

A similar process of integration took place in the Walloon Region with a Decree of 5 June 2008, which equally brought together all criminal provisions and sanctions into one single decree.[2]

  • [1] Environmental policy is a competence of the regions in Belgium as a result of which thelegislative instruments (referred to as decrees) have been drafted at the level of the regions.
  • [2] For an analysis of this Walloon Decree, see the contributions in Bosly et al. (2010).
 
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