The Single European Act entered into force in 1987, devoting a title to the environment governed by Articles 191 and 193 TFEU, and Article 192 TFEU of which provides for a specific competence in environmental matters or for achieving the objectives set out in Article 191 Article 191 TFEU. Criminal law of the environment from the point of view of European Union law has developed through infringements in specific fields and for specific policies. The issue was brought to the table on the occasion of a problem of defining the competence of the European Commission and the European Council.

First, a proposal for a Framework Decision from Denmark in February 2000 drawing on the 1998 Strasbourg Convention of the Council of Europe. She based on Articles 31 and 34 (2) (b) of the Treaty on European Union (third pillar on cooperation in criminal matters), now Article 83 TFEU. At the same time, the European Commission presented a proposal for a Directive on environmental protection for criminal law, based on Article 175 (1) of the EC Treaty (on the first pillar on co-decision). On 27 January 2003, the Council of Ministers adopted the draft framework decision of Denmark. The Commission, being opposed to this project, applied to the Court of Justice of the European Community (ECJ) in order to annul the Framework Decision. In a judgment delivered on 13 September 2005 the Court upheld the Commission's application and annulled the Framework Decision by holding that this decision based on Title VI of the Treaty on European Union infringes on the powers conferred on it by Article 175 of the EC Treaty (now Article 192 TFEU) confers on the Community. The text is then amended to be compatible with a decision of the Court dated 23 October 2007, in which the Court specified that the Community could require the imposition of "criminal sanctions; effective, proportionate and dissuasive 'to ensure the effectiveness of Community law, but must leave it to the Member States to determine their nature and level.

Following the annulment by the Court in 2005 of Framework Decision 2003/80 / JHA on the protection by the criminal law initiated by the Council, the Commission presented a proposal for a Directive which became Directive 2008/99 / EC under the first pillar in accordance with the ordinary legislative procedure provided for in Article 192 § 1 TFEU. The Directive is an instrument of harmonization which does not prescribe the form or the means to implement an outcome but leaves the freedom to the sweating states to choose it. The aim of the Directive is certainly not to unify the repressive legislation of the Member States. Its rationale is set out in the preamble, which states, on the one hand, that the progression of infringements is increasingly confined to the borders of the States in which the infringements are committed and, on the other, that the "existence of penal sanctions that reflect a disapproval of the company" that are different from administrative sanctions and civil indemnifications. It consists of sixteen recitals and sixteen articles, as well as two annexes A and B. As regards incriminations, three categories of acts are provided for in the Directive, for which the Directive obliges states to criminalize 'unlawful' acts "," Intentionally committed by negligence at least serious ", and obliges States to establish" measures in relation to criminal law ". The first category of acts comprises seventy sectoral acts provided for in Annex A which are offenses defined in relation to texts adopted on the basis of Article 192. The second category is governed by Article 2 (a) (ii), this concerns three directives adopted on the basis of the EURATOM Treaty. Finally, the third category of acts is provided for in Article 2 (a) (iii), which concerns national regulations or decisions "giving effect to Community legislation". The illegality of the infringements will be assessed mainly in relation to the acts falling within the third category. The following are some of the offenses set out in the Directive: for example, committing "one of the acts enumerated in Article 3 which lists the nine offenses contained in the Directive", "intentionally or by negligence at least serious". That Directive applies only to infringements provided for by Community law set out in the Annex. In other words, infringement of the directives and regulations referred to in the Annex is unlawful; this concerns pollution of air, soil, water or the storage and transport of nuclear material. In most of these categories, conditions of serious damage to life, health or the natural environment must be met.

Moreover, the substantive environmental law is not fully covered by this Directive as the 2008 REACH Regulation on air quality, Regulation 1072/2008 on classification, labeling or labeling, packaging were omitted.

The directive e determines neither the level nor the type of penalty, this is likely to compromise the effectiveness of European law. Article 5 of the Directive provides that criminal penalties must be 'effective, proportionate and dissuasive'. The liability of legal persons and the penalties imposed on them "where the failure to supervise or control" has made the commission of the offense possible.