CHAPTER VII

THE EUROPEAN UNION

7.1 Introduction
In 1951, Belgium, Italy, Germany, France, the Netherlands and Luxembourg were
faced with the after effects of World War Two. They banded together to promote economic
progress and created the European Coal and Steel Community. This turned out to be the
foundation of the European Union. By delegating their collective steel and coal production to
a single entity, they chose to start a forum for greater European integration. The idea of
European integration was further pushed by the terms of the European Atomic Energy
Community and the European Economic Community . This was done with the initial goals
of establishing a common market, common competition and economic policies. 1
In 1957, the Treaty of Rome articulated the goals of the free movement of goods, people,
services and capital, but it would take years for those goals to become reality. To facilitate the
accomplishment of these benchmarks, the customs union was achieved in 1968. Still, more
was needed to be done to move from a customs union into an integrated market without
internal borders.
The Single European Act was the legal foundation for the start of the single market. The
states that were privy to this act fully dismantled all their national borders, and they began a
single market in which goods, capital, and services can move freely. Today, citizens of
member states are free to move and live anywhere in the E.U. The last bastion of traditional
borders was removed by the signing of the Schengen-Agreement, which established the free
movement of people entirely.
The Treaty on European Union enhanced the mechanism of the integration of the
European community, and it brought member states closer to a modern economic and
political structure. This treaty and its kin have laid the roots for the introduction of the single
currency system. The combined efforts of multiple nations have setup a new, largely
intergovernmental political structure, in the form of a single institutional.

1
Treaty of Rome, March 25, 1957

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7.2 The Union's Contemporary Legal Environment
The European Union is a group of independent countries that envision a collective that
respects human rights. These principles have formed the bedrock of their treaties policies and
political goals. The European Union is empowered with sovereign authority, its own
sovereign rights and an independent legal power. This legal framework results in the citizens
residing within the borders of the E.U. to be subject to the jurisdiction and laws of the
international body. The longer the European integration occurs, the greater the amount of
domestic rights that will be surrendered to the central order.
The legal foundation of the Union is not established in a constitution, but it is
compromised by the totality of rules and basic values found in its treaties. These doctrines
form the political and legal system that establishes organization’s procedural mechanisms for
rulemaking and the basic rights of the member states.
The main functioning body of the European Union is the European Council. 2This entity
within the E.U. is composed of the leaders of the member states. Although the Council does
not have any legislative power, the Treaty of Lisbon defines their charge to set forth “the
general political directions and priorities” of the Union. 3
Their main purpose is to provide
guidelines for the envisioned European integration. With the Council at the helm of E.U.
planning, substantive legislative items receive significant influence from its decisions and
recommendations.
Since the Council consists of numerous national leaders, domestic political parties fall
into the analysis E.U. decision making. Within each governing entity of the E.U., there are a
wide variety of politicians, many from the leading political parties of their home countries.
This creates a complicated political stage for moving forward a legislative agenda. For
example, if a political a minister who belongs to the German Christlich Demokrastische
Union votes in support of a conservative regulatory scheme, would their fellow CDU party
members vote similarly? In certain cases, voting takes place along national party lines, and in
other instances, members of the governing apparatus vote in accordance with their opinion on
continental government.4

2
supra note 4 at Article D.
3
Treaty of Lisbon, December
4
Id.

102
 The European Council however has bucked the notion of domestic party influence
through recent studies. The natural assumption would be that agreements would be hard
sought with such varying degrees of political backgrounds of the European leaders. The
Council however has created a “culture of consensus. Decisions made by the body are only
contested one-third of the time. This is due in part to the negotiation tactics used by the
Institution. When topics are discussed and deliberated, the Council goes to extra lengths to
include all of the member states and their political representatives. This in turn has created a
Council capable of making decisions with a vast array of political players.
The E.U. is also composed of a legislative body called the Parliament. This institution
is composed of the General Secretariats, Staff of the European Parliament’s Political Groups,
5
and the Members of European Parliament. MEPs are selected by the citizens of the E.U.
through a democratic election process. Member states are allowed a formulized number of
representatives in accordance with their current population. The parliament has been charged
with the responsibility of formulating legislation to govern under the Council’s long-term
direction. This governing body has the mechanism for producing rules that will govern its
member states.
The commission performs the executive functions of the European Union. 6 This
institution safeguards the ratified treaty, and it also promulgates legislation across Europe.
The commission is akin to the administrative organs seen domestically in the U.S.
Enforcement powers rest within the authority of the commission, and individual parties who
break rules can be brought to justice within the European system. Employees who serve
within the executive body must receive the consent and approval of the European Parliament.
The law is interpreted by the Union’s judicial branch, also known as the Court of Justice.
This branch is the sole authority that is empowered to interpret and answer questions of law
for the European Union. This court, as the sole judicial body, delivers legally binding orders.
Its case load is first prioritized by the Court of First Instance and it is regulated for optimal
efficiency.
Throughout the 1970’s the European Court of Justice engaged in judicial activism that
helped establish the Treaty of Rome as a supranational constitution granting rights to citizens
within the E.U.

5
. “Publishes leading research on European public policy and European politics, including public policy
developments and political processes and policies. “ V” Vol. 20.
6
See supra note 4 at art. 155-163.

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 This in turn has allowed the Treaty of Rome to stand as one of the premier international
bodies of law that support and propel environmental protection. The E.C.J.’s ability to co-opt
domestic judges and lawyers, serves as another driving force in European integration.
Domestic legal systems that have developed in a construction that is against their own
interests are now routed through an international judicial entity that supports the interests of
the entire European body. The E.C.J. has continued to rule against the interests of the most
powerful and influential bodies within the E.U. This institution serves as a beacon of
supranational authority and functioning integration.
A recent example of the E.C.J. paving the way for European integration beyond its
economy is the matter of the European Commission v. Italy (C-297/08). The Court found that
found Italy in breach of Article 4 and 5 of Directive 2006/12/EC when it incorrectly disposed
of wastes. 7This not only shows the power of the E.C.J. to hold member states accountable,
but it also shows the power of a judicial institution in creating integration on an international
scale beyond the economy.
The Union’s acts are structured to provide boundaries for individual autonomy of the
states. These formulas are careful to safeguard states’ rights as independent and functioning
actors, with pathways to retain their own sole laws and regulations. Individual state autonomy
allows members to execute their own administrative tasks. Generally, the European Union
will only be allowed to exercise its jurisdiction when the autonomy of the individual state is
not threatened. This is an area where environmental criminal law legislation fits perfectly. In
the enactment of such laws, member states would be relinquishing independence for the
betterment of the entire environment, by allowing a supranational organization to police
illegal conduct. This would be the appropriate course of action since individual states find
great challenges in handling these particular crimes autonomously.
Decisions made within the E.U. create controlling regulations for member states. These
laws establish the principles that guide European nations when administering rules. Upon the
ratification of legislation within the E.U., member states are given the authority to enforce the
related provisions. This form of implementation is appropriate for the problem of
international environmental crimes. The E.U. can articulate the criteria for a crime and the
minimum penalties. Furthermore, the act of sanctioning can be left to the member states. This

7
Consideration of European Commission v Italy. Vol. 24, Issue 3, Journal of Environmental Law, Jan 1, 2012,
p535-546, 12p.

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type of mechanism can allow member states to abandon jurisdiction to the E.U. and the
Court of Justice to adjudicate any particular claim that may be difficult for a state to
prosecute.
Upon its formation, the European Commission was the sole enactor of Union law. The
Parliament was merely granted an advisory function. Through the passage of time, new
procedures were adopted because of the need for more efficient promulgation of laws.
These new procedures allow the Parliament to amend laws by providing review and
policy assessments. The Parliament has the discretion to reject these policies by motions, and
they can assert comments for amendment. These procedures are similar to the Notice and
Comment approach provided by the Administrative Procedure Act . that is utilized by
Federal administrations who engage in the promulgation of rulemaking. Similar to the APA,
the E.U.’s procedures address rules in a far reaching spectrum of issues, including economic
and environmental concerns.
Law is created in the European Union pursuant to the procedures outlined above. The
correct application of these laws are controlled and adjudicated by the European Court of
Justice. This court is the proper adjudicatory organ for complaints of international
environmental crimes. It has the authority given by community, in a supranational forum.
This type of forum will bind the states to a certain order of regulation, and this is necessary in
response to the factual realities of environmental crimes.
What is attractive about this model for implementing environmental criminal
provisions is the breadth that these laws provide. The legislation, with authority from its
organic treaties, imposes affirmative duties on the individual member states and their citizens.
The aim is for the community to act as a union, for the betterment of the group as a whole. 8
The European Court of Justice enforces principles laid down by the community, and they
are applied to the member states uniformly. This direct application is the type of enforcement
that is needed to deter and sanction environmental criminals. The proper mechanism for this
type of enforcement is a strong and united supranational forum that articulates clear
regulations and while simultaneously enforcing any breaches of its law.
It is especially promising that in the case of a conflict of law, the court requires that the
Union’s law to be controlling over the domestic laws of the member states. Union members
have willingly relinquished some of their rights in order to allow Union law, as principal, to

8
supra note 4 at art. 48, 52, 59.

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have been bribed or forced to accept pollution against their interests. The Union has the
capacity to override this coercion and properly execute the laws it is legally bound to impose.

7.3 Criminal Law Provisions for Environmental Crimes: History and Structure
The European Community promulgated decisions that are written to protect the
environment through the use of criminal sanctions. These decisions are structured to
safeguard the environment through the use of several avenues, including the use of criminal
sanctions. Member states also provide feedback which is appropriate to reach the goals
established by the collectivehe increasing number of international mechanisms prescribing
penalties for environmental infractions comes during an era where law makers are
internationally embracing their role as the protectors of the environment. This is a stark
change from past politicians following the traditional cost-benefit analysis. Growing social
and public pressure has pushed this view as obvious environmental damage continues to
mount. To adhere to the public pulse, the European Union has put the enforcement power
back into environmental protection by formulating environmental laws that prescribe criminal
sanctions.
Currently, there exists minimal international environmental enforcement provisions.
There is however existing sanctions enumerated by the environmental laws of the European
Union . An introduction of penal provisions and standards from the European Union will be
helpful in taking a more holistic approach to environmental protection.
Legal principles suggest that the E.U. adopts baseline laws. This puts into place a
foundation that shall provide stability and uniformity for which member states must conform
with and abide. These provisions are important for instructing member states on what acts of
environmental pollution will rise to the level of criminal conduct. Such laws must be enacted
to promulgate the appropriate level of criminal sanctions that encompass the vision policy
makers had when they drafted such provisions. 9
The implementation of these regulations find their justification from the numerous
environmental crimes that are international in nature; crimes that continue to impact nature
across national borders. The uniformity of criminal sanctions is needed so that perpetrators
cannot take advantage of weak national laws, and the differences between domestic legal
provisions. It seems the E.U. must face its problems head on regarding international
environmental damage. Its directive asserts that provisions are important where the crimes

9
SEC Treaty, art. 5.

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have damaging results or are acted out in a forum of criminal mechanisms that play an
important role in environmental crime. In response to organized environmental crime, the
Directive requires strict criminal provisions by clearly articulating the disapproval of the
malice mens rea requirement.

7.4 Legal Structure of Criminal Provisions of International Environmental Crimes

A sound and firm legal structure is needed to combat international environmental
crimes. An instructive piece of international legislation which forms a basis for the proper
mechanism for criminal provisions is found in the 2007 Directive Proposal.10
This Proposal aims to formulate a set of grave environmental crimes to be labeled as
criminal conduct throughout the E.U. The provisions are applicable to water, soil, and living
beings animals, plants, and it also encompasses the conservation of certain species. The
Directive enumerates the list of acts that constitute criminal offenses.
This list is instructive for an international organization who aims to criminally
sanction environmental crimes. It includes offenses that incorporate the discharge of
emissions or materials into a natural medium; the unlawful discharge of emissions or
materials into a natural medium that will likely cause death or injury; the unlawful handling
of waste that will likely cause death or injury; the unlawful operation of an electrical plant;
the unlawful handling of nuclear materials; the unlawful handling of animals; and the
unlawful act of degrading a protected habitat.

7.4.1 Analysis of the Crimes

This Directive states that a particular act is criminal in nature if it causes an enumerated
result. Furthermore, a “significant” risk that may cause damage to the environment is to be
punished, as is an omission to act if there is an affirmative duty to act.
An unlawful commission of an act is required to violate this directive. This is an act that
impinges on controlling legislation, administrative provisions, or opinions proscribed by
proper authorities that seek to protect the environment. The lone exception is the particular
offences. Enumerated in Article 3(a). This provision touches on an end result that is nothing
less than devastation (death, disease, etc.), rather than the illegality of the act. The mens rea
requirement for these offenses are satisfied when the act is performed with intent or with

10
Commission Proposal for a Directive of the European Parliament and of the Council on the Protection of the
Environment through Criminal Law, COM (2007) 51

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gross negligence. Aiding and abetting the offense is equally criminal and will be
sanctioned.11

7.4.2 Corporate Criminal Liability

Nations that are members of this Directive must make certain that corporations can
and will be held criminally liable for offenses committed on their behalf by employees and
agents. The Directive provides the choice to enforce criminal sanctions against corporations.
This was a policy compromise that attempted to downplay the concerns of certain states that
do not provide for criminal liability for corporations. Some nations have articulated that the
12
criminal sanctioning of corporations goes against their legal statutes. What is needed to
truly combat the harmful emissions of corporations is the establishment of a Directive that
binds all states to criminally sanction corporations. Corporations continue to use the
dishonorable trade of bribery and monetary pressure. These international sanctions can help
strike a balance between international governance and domestic failures. Binding sanctions
that are uniformly applied seems to be the best way to fight back against strong corporations
and deter them from future pollution.

7.4.3 Criminal Sanctions and Fines

The enumerated criminal offenses are to be deterred by basic criminal doctrines. The
punishment should be effective and proportionate for both citizens and corporations. For
certain crimes performed under certain parameters, such as causing severe and long lasting
damage, the level of criminal punishment for the actors, regardless of if the actor is a citizen
or a corporation, should be within a specified range of punishment. This range of punishment
is necessary in order to deter criminals from exploiting the differences in national criminal
laws. This scheme is an effective method in deterring environmental crimes from occurring.
Uniformity across all nations, bound together, will ensure the successful application of
sanctions.
This particular Directive contrasts primary criminal sanctions and collateral criminal
sanctions. Primary punishments include imprisonment and certain fines against citizens or
corporations. Prison time and its proposition approximate a certain balance that correlates to
the conclusion of the Justice and Home Affairs Council.

11
Id.
12
Celia Wells, “ Corporate Criminal Liability in Europe and Beyond,” 39 NEW S. WALES L. SOC'TY J. 62,
62-66 (2001).

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 This scale encompasses the criminal structure that defines incarceration times, based
on the illegal conduct. The exact terms depend on the mens rea of the actor, combined with
the totality of the circumstances. This structure also provides for crimes that are conducted
by organized bodies by making punishment much steeper. It must be noted that these
criminal sanctions and their application must not be left to the individual nation to
implement. This problem arises frequently when attempting to establish an adjudicatory
process. The international community must be willing and able to enforce these provisions,
which require unison among countries. Providing a forum for the several nations to effectuate
a uniform application of environmental criminal laws would be optimal. It must not however
be left to the individual nation.

7.4.4 Secondary Sanctions and Measures

The directive provides articles enumerating lists for restitution that will hopefully
stymie future environmental acts of degradation from occurring. Also, ancillary punishment
is listed for environmental criminals. This gives powers to states to disbar businesses from
activities that require official approval. This sanction is enforced when the criminal’s activity
presents a probable chance of repeat breaches of law, and this may be accompanied by a
requirement to repair the damage done to the environment. Also, sanctions exist that may bar
a criminal from public benefits and effectively disqualifying them from certain business
practices. This forces them to adopt safety provisions to manage and repair damage already
done to the environment.

7.5) Implementing the Directive

Past civil sanctions have not been effective in curing the issue of environmental
crimes, which is why criminal sanctions are necessary. Promulgating such criminal sanctions
is seen to be the appropriate method for deterring future environmental crimes. Civil
sanctions have continued to fall short in being effective. One of the main reasons for this
revolves around the monetary penalty principle itself. When a company is asked to pay a civil
fine, the corporation will automatically engage in a cost benefit analysis. This balancing of
the scales allows the Government.
Adopting criminal sanctions will alter this analysis. Polluters will now be forced to
factor in criminal sanctions when choosing their actions. Furthermore, unified criminal laws
will be symmetrical across all member states. It will deter polluters from planning illegal

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actions in countries that do not criminalize such conduct. This is crucial in the
implementation of criminal sanctions.

7.6 Current Analysis of the European Union’s Impact on Environmental Protection

At the center of various E.U. treaties, including the 1992 Treaty on European Union,
is a strong push for the protection of the natural environment. This prioritization is focused on
the long term sustainability of the human habitat. The 1992 Treaty was especially important
because it provided for an express enumeration of environmental goals. It asserted that the
E.U. should “aim at a high level of protection” for the environment. The 2007 Treaty of
Lisbon continued this push by forming the structure of legal goals encompassing
environmental protection.
The European Union has shown a deep enthusiasm for a continental scheme for
environmental protection. This however is challenged by the goals of individual states and
economic integration. The first major balancing test that the E.U. faces in creating such laws
revolves around the need to protect the environment versus the protection of free trade
principles. The E.C.J. has created a proportionality test to protect regulations that come into
13
conflict with free movement priorities. There is also the larger balancing test that includes
the interests of domestic governments with their own environmental protection schemes
versus the creation of a universal European law designed to protect the same interests on a
larger scale. Although the E.U. has faced these conflicting interests, they have continued to
push forward regulations that have created an international impact.
Through regulation, subsequent European Law has formulated environmental
protective measures. These laws have given signed treaties a more defined role as they used
to create controlling law in prosecuting future crimes. A calling card for Union legislation
surrounds its regulatory provisions that are legal doctrines, created at an international level.
These pieces of international agreements have been integrated and implemented on the
domestic governmental.
In particular, these laws have been designed to merge domestic and European Union
regulations to create a proper structure for environmental protection. It also allows for the
individualized enforcement of relevant legislation by national governments. Currently, there
are more than 175 different forms of regulations that expressly speak to the protection of the
environment. These provisions control different forms of pollution including water, air,

13
Procureur de la République v. Association de Défense des Brûleurs d’Huiles
Usagées (1985) ECR 531

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waste, and nuclear discharge. Furthermore, being held responsible for environmental damage
has led the Union to promulgate laws that will control other important arenas of
environmental protection.
The E.U.’s environmental laws have been influential in shaping legislation passed on
the domestic level for its member states. A glowing example is that of the United Kingdom.
This nation has seen an 80% increase in their environmental regulations since they joined the
E.U. Additionally, other countries within Europe have been required to adopt all existing
environmental legislation into their national legal system in order to obtain E.U. membership.
This requirement is coupled with the mandate of effective enforcement to the prevailing
standards.
A helpful mechanism in the proliferation of E.U. environmental policy has been the
E.C.J.’s willingness as a judiciary to create case law that assists in the strengthening of
international protection. In the ADBHU case, the court incorporated environmental priorities
into a supranational context. Paragraph 12 of the judgment stated “that the principle of
freedom of trade is not to be viewed in absolute terms but is subject to certain limits justified
by the objectives of general interested pursued by the Community provided that the rights in
14
question are not substantively impaired. Rulings like this continue to define the thin line
between free trade interests in environmental protection. As seen in this ruling however,
concerns such as environmental protection, are given superior status in certain circumstances.
The E.C.J. has also strengthened the plaintiff’s position in litigation against polluters.
In Handelskwekerij GJ Bier v. Mines de Potasses d’Alsace, the Court dealt a polluter that
discharged tens of thousands of tons of chloride into the Rhine River. The Court ruled that
victims of trans boundary pollution may bring suit in the jurisdiction of their choice that is
either where the harm occurred, or within the country where the event that gave rise to the
harm occurred. Although legal scholars argue that this promoted forum shopping, it is
undeniable that parties wishing to bring suit against polluters have been empowered to bring
accountability to environmental polluters in the E.U. 15
Legislation aimed at the protection of the natural environment is another expansion of
positive environmental regulations within the European Union over the past two decades. A
provision that is in line with this growth, Directive 2008/99/EC, articulates the enforcement

14
Procureurde la République v. Association de Défense des Brûleurs d’Huiles
Usagées {1985} ECR 531
15
Cichowski, RA.” Integrating the Environment: the European Court and the Construction of Supranational
Policy.” Issue 3, Vol. 5, Journal of European Public Policy, Jan 1, 1998, p387-405, 19p.

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of criminal law in relation to environmental protection. This is an important nexus between
criminal and environmental law. The application of criminal law upon members has largely
been shielded from the European Union’s jurisdiction. Criminal justice, including
environmental criminal justice, is an arena in which European Union effectiveness has fallen
short. Through the various treaties and covenants established by the E.U., under this sphere of
law, member states have not granted full power over such matters to the Union. Nevertheless,
cooperation among and between the Member States and the E.U. is at an all-time high,
resulting in effective implementation of environmental criminal law provisions.
European Criminal Law is a new body of legal provisions, and its use has become
increasingly noteworthy. It is a well-known fact that cooperation on forums previously
foreign to the competence of the Union is currently one of the most exciting zones of E.U.
legislation and policy formations. The criminal justice system is within this area, and the
European Court of Justice has been interpreting and adjudicating cases that have been
brought under this field of law. This is a positive development for the E.U., as it exerts its
jurisdiction over national actors to effectively protect the environment.

7.7 Current Concerns with European Union’s Policing of Environmental Crimes and
Solutions
The E.U. is a leader in international policy formation, and it is during global
conventions that it thrusts its political power with large international entities. World leaders
are aware of the Union’s power, and they must be keen to the possibility that Union policies
will be pressed upon individual states.
The European Union is a mix of many components, including the right of members to
partake in treaty drafting. Its authority has been developed by separate treaties that define
and allocate power to the Union.16 It is important it note that member states remain
independent with powers outside those enumerated within the E.U.
While sovereignty of the members is a prevailing concern, the E.U. has gained
considerable power from the member states. This can be seen in the ECJ, where the court
submits orders that are to be followed by all member states and even if it overrides decisions
by the independent countries. The rationale behind this power of the ECJ, revolves around the
need for a substantive norm of law to govern Europe in certain areas of concern.583 When a

16
Id

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single judiciary governs multiple states, individuals residing in the many nations effectively
become citizens of the larger body.
The Parliament is the legislative branch of the E.U., but it is striking to see that this
body has very limited decision making powers. This organ cannot promulgate law, lacks the
power of the purse, and it cannot elect representatives who can perform legislative duties.585
The limited power vested in this E.U. organ primarily rests in its veto powers. The reason for
this limited authority is clear; member states are not willing to establish a central power that
will be authoritative over their domestic governments. The E.U.’s controlling votes remain
entrenched in the several administrations that are comprised of officials from the member
states. The format of voting allows for a minority of states to retain veto powers over matters
that could affect the entire group.
The fragmentation of control could pose a problem in addressing environmental
crimes. The need to act quickly when an environmental crime occurs is almost always
necessary. Having a system that is not self-aware of what mechanisms it can use to act and
with what authority, can hinder the whole operation. It is also crucial to outline the level of
enforcement authority available to allow for effective implementation of regulations.
A fundamental problem the E.U. faces comes from the divided interests its member
17
states face when they vote in favor of the entire body and their domestic interests. The
system creates pressure that is placed upon the sovereign states to gain additional votes for
their favored legislation. This is evidenced by the U.S. Senate demanding that the U.S. be
allocated additional votes, equal to Great Britain in 1919.
The Soviet Union demanded the same compensation to equalize their share with those
totaled by the United States in the mid 1940’s. Maintaining voting power that is equal to
opponents creates a major issue. This causes conflict when attempting to advance the
interests of environmental protection.
The protection of the environment is an important issue that is discussed greatly
among international leaders. The E.U. has taken the opportunity to promulgate
environmental policy. Concurrently, the United States has disfavored the Union’s attempts to
protect these vital interests. Regardless, European leaders have paved the way for law and
policy in the field of environmental law.
Another important aspect of this international body is its member states ability to
assert their individualized policy concerns. This is illustrated by the divided perspectives and

17
Iyiola Solanke, ”Diversity and Independence in the European Court of Justice”, 15 COLUM. J. EUR. L. 89
(2009).

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priorities for enhancing environmental protection. Support is strong in Germany and
Scandinavia but less in Portugal and Ireland. Regardless of individual state preferences, the
Union has promulgated strict environmental policies by impressing high standards of
environmental health upon all countries. 18
The E.U. has shifted towards regulating environmental policy that affects its entire
member pool. Environmental policy however, exists for issues that are not international in
nature. An example of this is the European model for solid waste disposal. Though the E.U. is
furthering the application of its regulation equally, it becomes frustrated when attempting to
impose costs upon business and producers in fair divisions.
NGOs have become an accepted and promoted aspect within Europe. They have been
a part of the decision making process within the Union since its inception. Recommendations
and reports appear alongside E.U. policy implementation and legislation as NGOs employ
multi-level lobbying strategies when they address the European Commission and European
Parliament. Their role within the E.U. has been one of great import given the lack of
information that the European Commission operates with. The disappearance of NGOs from
the policy creation process would be similar to “driving with eyes shut. Throughout the
history of the European project, these international organizations have led to the growth of
democracy and intelligent planning for the continent.
NGOs have taken a foothold in the field of environmental protection. There exists an
NGO which is comprised of several environmental support administrations called the
European Environmental Bureau. This NGO is financially supported by the E.U., and it helps
to promulgate policy that the E.U. supports.
In addition to NGOs, Europe has developed other organizations to help spread its
environmental policies throughout the continent. These organizations in conjunction with the
E.U., have been a positive force in overseeing the environment through regulations developed
at the transnational level. These policies are often pressed forward by the individual member
states that are in support of additional environmental protections.

18
David Vogel, “Trading Up: Consumer and Environmental Regulation in a Global Economy,” 97 (Harvard
1995).

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 An example of the E.U.’s influence on environmental regulation can be seen by their
far reaching efforts in reducing greenhouse gas emissions during the 1997 Kyoto Protocol
19
negotiations. During these talks, Europe communicated a growing concern in reference to
the emissions of greenhouse gases. They called for all developed states to reduce their
greenhouse gas emission by 15% from levels emitted in 1990. Several countries did not
accept that reduction number and agreed to a lower percentage. The E.U. was the most
ambitious in its proposed reductions, which is encouraging in light of the great harm that
these emissions inflict upon the environment.
Analogous to the enforcement agreements seen in the wake of the 1997 Kyoto
Protocol is the European effort to create an international enforcement agency. The E.U. is a
leader in this field as it has defined international enforcement agencies which require member
states to adhere to regulation. These agencies are well respected and followed by the
European population. This is the key component in maintaining high environmental standards
through enforcement mechanisms.
The E.U. is now seen as the transnational organization that is given the authority to
promulgate environmental policy and law that will be binding upon all member states. That is
the correct approach and the best method to remedy and sanction environmental disasters.

7.8 The European Union as a Model for a Global Union

The European Union is a model for more comprehensive global cooperation in an
effort to protect the environment. The European method has laid down a foundation to
prosecute and remedy crimes of transnational environmental import. The E.U. model has
implemented environmental criminal provisions for environmental crimes by imposing duties
on its institutions, member states, and private citizens. A very similar model is needed in
order to deal with the realities of environmental crimes and their transnational character on a
global scale.
The European Union model for addressing environmental crimes has been outlined
previously in this Chapter. This process can guide world leaders in adopting a global union to
combat environmental crimes. There are several aspects of the E.U. that make a global union
an attractive option for combating global environmental degradation. However, there are
drawbacks that must be factored in.

19
Kyoto Protocol to the United Nations Framework Convention on Climate Change, United Nations Framework
Convention on Climate Change, Conference of the Parties, 3d Sess., U.N. Doc. FCCC/CP/1997/L.7/Add.1
(1997).

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7.8 1 Positive aspects of the European Union as a model for a Global Union
Prior to the eastern expansion beginning in 2004, the E.U. was a smaller international
government with less member states and conflicting interests. After 2007, the European
institution almost doubled in size. Scholars immediately began to forecast a divided and
sluggish government that would be unable to strike concord between the many nations.604
However, the E.U. stayed relatively the same, passing laws and effectively enforcing them as
it did prior to 2004. This has been credited to the in formalization of European negotiation,
20
where proposed policies are debated and hashed out prior to large votes and decisions. A
Global Union can also use the same model of negotiation and policy development that has
been in effect since the eastern expansion. Such a scheme of negotiation and legislation can
be effectively used for a large body of member states that can encompass an international
government that exceeds the size of the E.U.
There are also several positive aspects that can be pinpointed when observing the
European model of international integration. For our purposes, the most attractive aspect of
this model is its ability to review and penalize environmental criminals. The E.U. is known as
21
a Community of Laws which bases its regulations on the provisions articulated in Article
6(1) of the Treaty of the European Union. The Global Union should be structured with
modified with guidance from the European Union as it presents the most advanced system for
a practical international diplomacy and institutionalized enforcement mechanisms. A
recommendation for this expansion can be summarized briefly in several points.
First, the EU model should be considered for its effective ability to achieve diplomatic
consensus. The E.U. acts in large part by its ability to come to agreement on a wide array of
issues. Unlike domestic legislatures that bicker and cease government operations, as seen in
the United States with their recent 2013 government shutdown, the E.U. climbs above their
differences to institute effective laws that benefit the commons. In context of the
environment, the Global Union could follow this by instituting the same mechanisms used to
achieve such cooperation when making decisions for the environment.
Next, the E.U. provides individuals standing to bring suit against parties across the
European Union. Jurisdictional boundaries have been limited and rules of jurisdictional
exercise have allowed courts to reach farther than before when adjudicating cases. Within the
Global Union, a similar approach will allow for individual parties to bring violators of

20
Id.
21
Les Verts v. European Parliament, Case 294/83, 1986 E.C.R. 1339

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international regulation to justice. It will avoid the limitations of courts and allow for more
cases to be adjudicated in venues favorable to common citizen litigants.
The European Union is also ahead of its American in Chinese counterparts in
standards stretching from manufacturing to energy consumption. In essence, the highest
standards in the world are their minimum. The Global Union can attempt to achieve such
standards while balancing the interest of economic growth. However, the analysis will be
shifted away from business and towards sustainability, which in the long run will boost
human prosperity.
The Libson Treaty is a recent attempt by the E.U. to emulate a form constitution that
establishes and sets out authority for its institutions on a cohesive and single agreement. The
Global Union must create a constitution to serve as its core document to govern its
institutions, and set forth its principles. The right to a clean environment would be one of the
fundamental rights set forth in this constitution. Courts and laws that are created under the
Global Union could not violate this fundamental right, and a court inside the Union would
adjudicate such issues by interpreting the constitution.
This court or courts will be charged with rendering fair and balanced decisions, in line
with the mission set forth at the founding of the Union. The job of the Courts will be to
determine the meaning of the constitution and set out orders that require states and citizens to
comply with them. A proposed method of establishment would involve multiple courts in
different fields of law. For instance, an International Environmental Supreme Court would be the
international court of last resort in the area of environmental law. Courts under the hierarchy
can be assigned to already existing courts, such as domestic high courts.

7.9 Conclusion
Over recent years, the weakness of the E.U. has taken center stage during the
economic recession that was started in 2008 by a melt-down of the global financial system.
Shortly after the world entered into the “great recession,” certain European states have found
it difficult to maintain current payments on their public debt. None has been as prevalent as
Greece which totaled over €363 billion in public debt during the year 2011. 22
Traditionally, a single state that defaults on their public debt payments could be contained
depending on the size of the country, and the nature of their debts. Within the E.U. however,
each state is inextricably tied the other member states through their common currency, the

22
Wood, Steve.” The Euro Crisis. “Vol. 28, Issue 1, Policy,

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Euro. A default in Greece could have resulted in a total collapse of the European project or
pushed the political mechanisms that bind the E.U. to the brink of dysfunction. A Global
Union would have to take a clear lesson from recent world events so it may create the
infrastructure to protect itself against near calamity.
It is worth noting however, that even though the E.U. has faced severe issues with
member states being overburdened by their public debt. The economic bloc’s GDP per capita
in purchasing power is three times that of Brazil’s, four times that of China, and nine times
that of India. Scholars have argued that the E.U. is not in absolute decline, but in a relative
drawback as the entire global economy has slowed. It is imperative for a global union to be
decentralized economically and committed jointly to the goal of sustainable development, in
order to protect the progress in environment protection from the utter effects of economic
drawbacks.
Additional drawbacks to following Europe as a model for a Global Union revolve
around the notion that globalization has been an economic force that has imposed unwilling
nations to unwanted policies and influences. Resistance to globalization, whether through
terrorist violence like that directed at the World Trade Center in 2001, or through
increasingly oppressive immigration and detention policies directed against noncitizens.
May preventing the continuing development of a global order. The United States
has a strong interest in facilitating this development and ensuring a global order incorporates
a strong commitment to human rights, including environmental protection. It is difficult to
distinguish between policies and practices that “impose” values on unwilling cultures, and
policies and practices that foster communication, consensus, and adherence to particular
values. However, characterizing efforts to develop communication and consensus on national
and global adherence to human rights norms such as environmental protection and
criminalizing against those protection as “imposition” of values, serves only to frustrate
communication and changes.
It seems that Western Cultures have a leading interest in encouraging and nudging the
development of a world order that outlines that a strong commitment to human rights. These
rights would include the protection of environmental. A key aspect to the Global Union
would be an enforcement mechanism to penalize criminals who violate environmental
regulations. It is very difficult to separate the difference between policies that impose ideas
on unwilling societies and ideas that are in place to further communication and adherence to
certain basic fundamental rights. Another concern centers on the capability of an effective
judicial body adjudicating cases of environmental crimes.

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 It has been argued that fundamental rights without access to judicial review would
have little enforcement power and be dismissed as irrelevant. To have this model work
properly, sovereign states would have to give up some power over domestic matters to a court
that would have international jurisdiction. This is necessary for this Global Union to properly
enforce its goal of protecting the environment and criminally penalizing those who act in an
interest against the global good. If a court can be established, and a proper enforcement
mechanism adopted, the world’s nations can put to rest concerns of an international body
being incapable of handling such a vast undertaking. An impartial court, with prosecutors,
judges, and enforcement officials would be able to effectively control the contamination of
our water, land and air. In this chapter I have discussed about environmental crimes and
enforcement law in Europe Union.

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