The European Commission will decide soon whether to resubmit a proposal requiring member states to criminalise deliberate environmental damage.
The implications of the test case stretch far beyond the environment
The Commission's power to legislate in the area of criminal law was established in a landmark ruling by the EU Court of Justice on Tuesday.
Member states rejected the Commission's proposal in 2001, arguing that it was exceeding its powers.
A Commission spokeswoman said officials were now "keen" to re-submit their law.
However, she added that Environment Commissioner Stavros Dimas would probably not take a final decision for a "couple of weeks".
The court's ruling was a blow to 11 member states, including France, Germany and the UK, which wanted the Commission to keep out of criminal law.
A UK government spokesman in Brussels said: "We believe that criminal law is a matter for member states' intergovernmental co-operation."
STATES OPPOSED TO RULING
The case began before the EU's enlargement in 2004
The test case in the European Court of Justice was brought by the Commission in 2003 after EU member states - acting collectively as the Council of the European Union - introduced EU-wide criminal penalties for pollution, similar to those proposed earlier by the Commission.
The Court ruling said the Council could not bypass the Commission and the European Parliament by taking unilateral decisions in this area, and annulled the member states' 2003 decision.
The Commission made clear it regarded the result as an "important precedent for Community law in general".
It listed other areas where it would have the right to propose that violation of EU policies should be treated as criminal: "Internal market... data protection, protection of intellectual property, monetary matters etc."
Experts in European law say the member states can still block Commission initiatives affecting criminal law, if they can garner the required majority of votes.
However, this will mean that no further steps can be taken to harmonise the application of criminal law across the EU.
"They can block it if there are enough of them. The issue then would be how strongly they feel about the policy objective as against the idea of resisting Community encroachment in the field of criminal law," Professor Tony Arnull, of Birmingham University, told the BBC News website.
He added that when considering this "political equation" some countries might think that a given measure was so important that they would bury their reservations.
The head of the EU's Legal Service, Michel Petite, said the European Court of Justice had established a clear principle.
"If member states agree, as they did [in 2003], that for major environmental infractions only criminal law is apt to be dissuasive, and they want to make it a law across the board, they will have to do it through a directive [proposed by the Commission]," he said.
"If they reject it for institutional reasons, because the proposal comes from the Commission and not from themselves, this is not logical."