European Union: New Developments In The EU Criminal Competence Debate

Last Updated: 28 August 2008
Article by Clifford Chance Global Environmental Group

The publication by the European Commission of proposed amendments to Directive 2005/35/EC on Ship-Source Pollution (the Shipping Directive) marks a new chapter in the long running dispute between the EU Council of Ministers and the European Commission, as to which institution has the power to legislate on criminal matters.


The MARPOL Convention1 is one of the principal instruments in international law governing the protection of the environment from various types of pollution caused by poor shipping practices (and discharges in particular). Whilst this Convention has been in force since 1983, continuing evidence of shipping ignoring the rules and inadequate and uneven enforcement by Member States of the Convention, led to the Shipping Directive being adopted in 2005. This aims to create a level enforcement playing field by obliging Member States to enforce infringements of the MARPOL Convention by effective, proportionate and dissuasive penalties.

The Council of Ministers strengthened these provisions by adopting a Framework Decision (the Shipping Framework Decision) which required Member States to impose criminal penalties for breaches of the Shipping Directive and specified the type and level of penalties which, significantly, required levels of maximum fines and prison sentences to be imposed by Member States for certain offences.

The Legal Challenges

The European Commission challenged the Shipping Framework Decision claiming that the introduction of criminal penalties should be adopted under the European Community Treaty (i.e. Article 175 under which the Commission introduces legislative proposals) rather than the justice provisions of the EU Treaty (under which Member States acting through the Council of Ministers have competence).

A similar challenge was already underway in respect of a 2003 Council Framework Decision on Environmental Crime (the Crime Framework Decision) by the Council of Ministers which had been criticised by the Commission on the basis that a Commission-proposed Directive would be the appropriate route. In September 2005 the European Court of Justice (ECJ) ruled that the Commission had the required competence and annulled the Crime Framework Decision on the basis that whilst criminal law was not generally within the Commission's competence, measures relating to criminal law could be taken where necessary to ensure that provisions dealing with serious environmental pollution are effectively enforced2. Following that ruling, the Commission also challenged the Council's Framework Decision on Shipping Pollution for the same reasons.

In annulling the Shipping Framework Decision, the ECJ issued an important clarification which was that whilst the Commission had competence in this area to require criminalisation of conduct, the Commission could not itself set specific penalties for criminal offences.

The Amendments to the Shipping Pollution Directive

As a result of the latest ECJ ruling, the proposed amendments to the Shipping Pollution Directive will clarify that:

  • Breaches of the pollution prohibitions must be made criminal offences.
  • Inciting, aiding and abetting offending conduct must also be made criminal.
  • Penalties must be imposed that are criminal in nature for individuals (and dissuasive penalties for legal entities, which may or may not be criminal in nature).

However, the amendments do not specify the penalties to be established: these are left to be determined individually by Member States.

Interestingly, the ECJ's decision on the Shipping Framework Decision will also require the Commission now to revise the proposed Directive on Environmental Crime to remove the significant levels of prescription of criminal penalties contained in it.


The Commission has been partially vindicated in its use of criminal powers to back up the enforcement of legislation within its competence. However, without an ability to specify particular criminal penalties, this does not allow it to create a fully robust level playing field of enforcement in areas such as shipping pollution.

The recent Treaty of Lisbon may well come to the Commission's aid here as it provides new powers to introduce, by Directive, minimum rules for defining criminal offences and penalties in areas subject to community harmonisation (which would include environmental issues). This power is subject to special procedures if a Member State objects that such proposals affect fundamental aspects of its criminal justice system. These new powers are not likely to end the debate but they may well help prevent ongoing legal challenges which have considerably dogged the legislative processes in this sensitive area of criminal liability.


1. International Convention for the Prevention of Marine Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78).

2. This led to the Commission proposing a Directive on Environmental Crime which prescribes specific minimum levels of maximum penalties for a number of types of largely onshore-based serious environmental harm (including e.g. unlawful discharges and waste shipments); Member States would be required to impose these penalties on those causing the harm.

Copyright Clifford Chance 2008

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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