Note on Issues of EU Environmental Law and Transposition into UK Domestic law Analysis of the Draft Directive 1. Essentially, the aim of the Draft Directive in question (no 11002/07) is to ensure the provision of criminal offences, carrying sufficient sanctions, in the national criminal law of member states. These offences would criminalise breaches of certain provisions of EU environmental law. This is made clear in its Article 1, which reads: “This Directive establishes measures relating to criminal law in order to protect the environment more effectively”. 2. The context of this Draft Directive (and the consultation process to which this note is directed towards) is the view that the EU is entitled to specify that breaches of environmental law should be dealt by member states with as criminal offences. The ‘guidance’ provided cites the recent ECJ decision in the ‘Ship-Source’; Commission v Council case (C440/05) as authority for this principle. I would also draw attention to, as part of this contextual background, the ECJ decision of Commission v Council (C 176/03). 3. The Draft Directive only requires the existence of criminal law provisions in respect of 9 types of environmentally-harmful conduct (Article 3). In summary, the specified conduct pertains to: a. [offence deleted from Draft Directive] b. Release of substances or ionising radiation which causes or is likely to cause death/injury/damage to environment c. Dealings with waste which causes or is likely to cause death/injury/damage to environment d. Operation of a plant dealing with dangerous activities/substances which causes or is likely to cause death/injury/damage to environment outside of the plant e. Illegal shipment of waste for profit/commercial purposes which causes or is likely to cause death/injury/damage to environment 1 f. Dealings with nuclear/radioactive materials which causes or is likely to cause death/injury/damage to environment g. Intentional dealings with protected wild fauna or flora; and intentional damaging or killing of such species for commercial purposes/habitually, except when within a permitted professional activity h. Significant deterioration of a protected habitat i. Trade/use of ozone-depleting substances j. Causing of noise which causes or is likely to cause death/injury/damage to environment 4. As to the criminal liability which would be required to attach to the above conduct, I would suggest that the Draft Directive’s requirements are fivefold: a. That criminal liability should attach when the conduct represents a breach of EU law (being thereby ‘unlawful’ for the purposes of the Directive) (Article 3) b. That criminal liability should attach when the conduct was committed either intentionally or with at least serious negligence, unless specified otherwise (Article 3) c. That this criminal liability should be extended to persons who aid, abet and incite the offences listed in Article 3 (Article 4) d. That this criminal liability should be extended to legal persons (Article 6) e. That this criminal liability on the part of individuals and legal persons should be met with sanctions which are at least of the level specified in the Directive, and which are “effective, proportionate and dissuasive” (Article 5 & 7). 5. It must be borne in mind that the Directive only requires the criminalisation of ‘unlawful’ conduct, i.e. conduct which is a breach of EU environmental law. The Draft Directive includes an annexe of the Directives and Regulations pertaining to EU environmental law, breach of which will render conduct ‘unlawful’ for the purposes of the Directive. 6. I will now, for each of the 9 types of conduct specified in Article 3, analyse the requirements of the Draft Directive and the existing content of the domestic law. Discharge of substances into the air 2 Review of the Requirements of the Draft Directive 7. As per Article 3(b), the Draft Directive requires the criminalisation of the discharge of substances into the air which might cause death/serious injury/damage to the environment when such discharges are also a breach of EU Law. The EU law in question is said to be based upon the following directives (as listed in Annexe II): a. 70/220 (emissions from engines) b. 72/306 (emissions from engines) c. 77/537 (emissions from engines) d. 84/360 (emissions from industrial plants) e. 94/63 (emissions from storage of petrol) f. 96/61 (integrated pollution prevention and control) g. 97/67 (emissions from engines) h. 99/13 (emissions from solvents) i. 2000/53 (end-of-life vehicles) j. 2001/80 (emissions from industrial plants) k. 2003/87 (greenhouse gas emission allowance trading) l. 2005/55 (emissions from engines) m. 2005/78 (emissions from engines) Review of the content of UK law on these issues 8. Three separate schemes are in place in UK law to deal with the discharge of problematic substances into the air: a. The Integrated Pollution Prevention and Control Scheme (hereafter ‘IPPC’ scheme) b. Various statutes and statutory instruments dealing with air quality generally; c. And various instruments dealing with the particular sources of emissions highlighted in the aforementioned directives. 9. As to IPPC, this scheme is provided for by the Pollution Prevention and Control Regulations 2000 (SI 2000/1973) which were made under the Pollution Prevention and Control Act 1999, and was designed to implement Directive 96/61. The scheme essentially regulates certain industrial activities which pose a potential threat to the environment and sets up a permit system. For this purpose, ‘environmental pollution’ is 3 defined in s1(2) as pollution of the air, water or land which may give rise to any harm; and ‘harm’ is defined in s1(3) as including harm to the health of human beings, or other living organisms, harm to the quality of the environment as a whole or to the quality of the air, water or land and other impairment/interference with the ecological systems; offence to the senses of human beings; damage to property; and the impairment of or inference with amenities of other legitimate uses of the environment. Thus, it is obvious that processes which could possibly result in emissions into the air which are harmful to the environment will be controlled by the IPPC Scheme. It is also of note that Directives 96/61, 94/63, 99/13, 2000/53 and 2001/80 are all relevant directives for the purposes of Schedule 1 PPCA 19991. 10. The important aspect of this scheme for present purposes is that it does make use of criminal law sanctions. Regulation 32 of the PPC Regulations provides for a number of criminal offences for breaches of the requirements of the legislation (SI 2000/1973). As to sentencing, it seems that all of these offences can be tried summarily or on indictment. The offences listed in Reg 32(1)(a),(b),(d) and (i) when tried summarily can be subject to a fine not exceeding £50,000 or to a term of imprisonment for a term not exceeding 12 months or both and when tried on indictment to a fine or to imprisonment for a term not exceeding five years or both (Reg 32(2); as amended by s105 Clean Neighbourhoods and Environment Act 2005). The offences listed in Reg 32(1)(c) and (e) – (h) when tried summarily can be subject to a fine not exceeding the statutory maximum2 and when tried on indictment to a fine or a to imprisonment for a term not exceeding two years or both (Reg 32(3)). 11. As to various statutory authorities dealing with the quality of air, one first turns to the Clean Air Act 1993. This makes provision, inter alia, for the control of smoke from industrial and domestic premises via a smoke control order issued under s18(1) and the control of the emission of dark smoke. The emission of dark smoke is an offence under s1(1) and (2) CAA 1993; an offender being liable, on summary conviction, to a fine either 1 See the Pollution Prevention and Control (Designation of Directives)(England and Wales) Order 2007; SI 2007/2247, The Pollution Prevention and Control (Designation of Council Directives on Large Combustion Plants, Incineration of Waste and National Emission Ceilings) Order 2002, 2002/2528 etc 2 Statutory maximum for fines is currently set at £5,000 4 of level 33 (for s1(1) offence) or level 54 (for s1(2) offence) on the standard scale. It is also an offence to breach a smoke control order issued under s20(4) CAA 1993: an offender being liable, on summary conviction, to a fine of level 3 on the standard scale. Furthermore, the Environment Act 1995 provided power to prescribe standards as to air quality by way of regulations (ss87 and 91): see Air Quality (England) Regulations 2000 (SI 2000/928) and Air Quality Limit Values Regulations 2003 (SI 2003/2121) (note that the relevant standards often represent a transposition of the requirements of EU directives). 12. As to the additional instruments which deal with specific types of emissions into the air, I will deal with the following examples: d. As to emissions from motor vehicle engines, see the Motor Vehicles (Type Approval) Regulations 1980 and later amending regulations and the Road Vehicle (Construction and Use) Regulations. As to Directives 2005/55 and 2005/78 see Motor Vehicle (EC type approval)(Amendment No 4) Regulations 2006 (SI 2006/2816). e. As to emissions from solvents, see: Pollution Prevention and Control (England and Wales) Regulations 2000; Solvent Emissions (England and Wales) Regulations 2003; Solvent Emissions (Scotland) Regulations 2004; Solvent Emissions (Northern Ireland) Regulations 2004 and Volatile Organic Compounds in Paints, Varnishes and Vehicle refinishing products regulations 2005 f.