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The following information has been received regarding the enforcement of the provisions of the Birds and Habitats Directives and CITES regulations which make serious infringements criminal offences.

On 6 December 2008, Directive 2008/99/EC on the Protection of the Environment through Criminal Law was published in the Official Journal of the EU, L 328/28 – see attachment. This publication follows the final adoption in the Justice & Home Affairs Council on 24 October 2008. The adoption in the Council was not preceded by any debate and followed an agreement with the European Parliament. 

The Directive shall enter into force twenty days following its publication in the Official Journal. For additional information on the background of this Directive, see also our CC/2007-006 of 18.04.2007, CC/2008-08 of 27.02.2008 and CC/2008-017 of 04.06.2008.

The published Directive obliges Member States to impose criminal penalties in their national legislation in respect to serious infringements of Community legislation explicitly mentioned in the Directive’s Annexes A (including for instance the Birds and Habitats Directives, as well as the EU CITES Framework Regulation) and B (for EURATOM legislation), as well as national legislation implementing these Directives and Regulations. 

In this connection and according to the Directive’s Article 3 (Offences), Member States shall ensure that, inter alia, the following conducts constitute criminal offences, when unlawful and committed intentionally or by at least serious negligence:

the killing, destruction, possession or taking of specimens of protected wild fauna or flora species (defined by Article 2 [Definitions] as those listed in Annex IV to the Habitats Directive and those listed in Annex I to, and referred to in Article 4[2] of the Birds Directive), except for cases where the conduct concerns a negligible quantity of such specimens and has a negligible impact on the conservation status of the species (paragraph f);
trading in specimens of protected wild fauna or flora species or parts or derivatives thereof (defined by Article 2 as those listed in Annex A or B to the EU CITES Framework Regulation, 338/97), except for cases where the conduct concerns a negligible quantity of such specimens and has a negligible impact on the conservation status of the species (paragraph g);
any conduct which causes the significant deterioration of a habitat within a protected site [defined by Article 2 as any habitat of species for which an area is classified as a special protection area pursuant to Article 4[1] or [2] of the Birds Directive, or any natural habitat or a habitat of species for which a site is designated as a special area of conservation pursuant to Article 4[4] of the Habitats Directive) (paragraph h).

Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 26 December 2010, inter alia by ensuring that the abovementioned offences are “punishable by effective, proportionate and dissuasive criminal penalties”.

Johan SVALBY
Legal Affairs Officer