EU법상 환경책임의 형사제재 강화 가능성

Abstract

This paper aimed to review on the possibility of the strengthening criminal sanctions for environmental liability in the EU. For this, this article provides, beside the Directive 2004/35/EC, an in-depth analysis of the environmental protection measures through the criminal law in the EU. And then this article examine the cases such as Commission v. Council (Case C-176/03) and Commission v. Council (Case C-440/05). The Directive 2004/35/EC establishes a framework for environmental liability based on the 'polluter pays' principle, with a view to preventing and remedying environmental damage. The first EU legislation whose main objectives include the application of the 'polluter pays' principle, this Directive establishes a common framework for liability with a view to preventing and remedying damage to animals, plants, natural habitats and water resources, and damage affecting the land. The liability scheme applies to certain specified occupational activities and to other activities in cases where the operator is at fault or negligent. The public authorities are also responsible for ensuring that the operators responsible take or finance the necessary preventive or remedial measures themselves. The Directive 2008/99/EC aims at obliging Member States to impose 'criminal penalties' on certain behaviour which is seriously detrimental to the environment. This minimum threshold for harmonization will allow environmental legislation to be better applied, in line with the objective for the protection of the environment laid down in Article 191 TFEU(ex 174 EC). This Directive defines a minimum number of serious environment-related offences and requires Member States to provide for more dissuasive criminal penalties for this type of offence when committed intentionally or as a result of gross negligence. However, the Commission adopted a Proposal for a Directive on the protection of the environment through 'criminal law' in 2001. And, in 2003, the Council adopted Framework Decision 2003/80/JHA based on the provisions of the EU Treaty on cooperation between Member States in terms of 'criminal law'. But this Framework Decision was annulled in 2005 by the European Court of Justice because its legal basis was not correct. The measures contained in the Framework Decision could have been taken by the Union under its environmental protection policy. The Commission then adopted a new Proposal on 12 February 2007, which led to the adoption of this Directive, namely Directive 2008/99/EC. In Commission v. Council (Case C-176/03), the entire Framework Decision 2003/80/JHA, being indivisible, infringes Article 47 EU(new 40 TEU) as it encroaches on the powers which Article 175 EC(192 TFEU) confers on the Union. In addition, in Commission v. Council (Case C-440/05), the Framework Decision 2005/667 to strengthen the 'criminal-law' framework for the enforcement of the law against ship-source pollution, which requires Member States to apply criminal penalties to certain forms of conduct, is, as is demonstrated by its preamble and Articles 2, 3 and 5 thereof, intended to enhance maritime safety and improve protection of the marine environment against pollution and could, at least as regards those provisions, have been validly adopted on the basis of Article 80(2) EC, with the result that it infringes Article 47 EU(new 40 TEU). Provisions such as Articles 4 and 6 of the Framework Decision 2005/667, which relate to the 'type' and 'level' of criminal penalties, do not fall within the Union’s sphere of competence and could not therefore have been validly adopted by it. Since there is an inextricable link between Articles 4 and 6 of Framework Decision 2005/667 and Articles 2, 3 and 5 of that framework decision, and between all those articles and Articles 7 to 12 of the latter, the said framework decision must be annulled in its entirety. In conclusion, though the EU did not entire integrate as a state, the Union must discuss all sides of a question to arrange the legal basis to overcome that problem for the more effective environmental protection.