EU Substantive Criminal Law, Ancillary Measures and Legal Basis

In December 2021, the European Commission submitted a proposal for a new, adjusted directive on environmental crime.1 At the time of writing this piece, a general approach has been adopted in the Council while the European Parliament’s first reading position is being waited for.2 The proposed directive seeks to strengthen the protection of the environment by means of measures in the field of criminal law. To a significant extent, these measures are proper substantive criminal law provisions, aiming for the harmonisation of offence definitions, penalty levels, penalty types available, and rules on jurisdiction (draft Articles 3–10, 12). Other measures are of a different nature, dealing with the protection of persons reporting environmental crimes or assisting in the criminal investigation of such crimes (draft Article 13), the procedural position of the public concerned (draft Article 14), and obligations with regard to prevention, sufficient resources, training of professionals, the establishment of coordination and cooperation mechanisms, the development and implementation of a national strategy, and the collection, publication, and transmission of statistical data regarding the actual fight against environmental crime (draft Articles 15–21). The proposed directive hereby contains varied types of measures. Still, the entire proposal has been based on Article 83(2) of the Treaty on the Functioning of the European Union (tfeu), one of the EU’s express criminalisation