The EU steps nearer to tougher regime to fight environmental crime

The European Commission has adopted (15 December 2021) its proposal for a new EU Directive on the protection of the environment through criminal law, which will now be submitted to the European Parliament and the Council.

The current EU legislation that provides common minimum rules to criminalise environmental crime is Directive 2008/99/EC on the protection of environment through criminal law. Following an evaluation of this Directive in 2019-20, the European Commission found that it did not have much effect on the ground: over the past 10 years the number of environmental crime cases successfully investigated and sentenced remained very low. Moreover, the sanction levels imposed were too low to be dissuasive and cross-border cooperation did not take place in a systematic manner.

The new proposal is expected to increase the likelihood of serious environmental offences being discovered and successfully prosecuted. In the longer term, it should also deter companies and individuals from committing environmental offences, reduce the incidence of environmental abuses and contribute to a culture of compliance with EU environmental rules across the Union.

Green Deal materialised 

The proposal also materialises commitments made in the European Green Deal. The priorities of the deal's policy initiatives include the protection of biodiversity, the reduction of air, water and soil pollution, and the improvement of waste management. The European Commission views the enforcement and effective delivery of environmental rules as crucial to achieve the deal's priorities, and has committed to promote action by the EU, Member States and the international community to step up efforts against environmental crime. 

The new proposal focusses on four aspects: new environmental criminal offences, sanctions for environmental crimes, more effective investigations and criminal proceedings, and cross-border cooperation.

Criminal offences 

The proposal sets new EU environmental criminal offences, including illegal timber trade, illegal ship recycling and illegal abstraction of water. Some offences that were already included in the existing directive have been clarified to increase legal certainty by the use of terms such as "substantial damage", "likely" to cause damage and "negligible quantity".

The incitement and the aiding and abetting of the commission of environmental criminal offences would now become an offence in itself. Also an attempt to commit an environmental criminal offence, when committed intentionally, shall be punishable as a criminal offence.

Sanctions for crimes

The Commission's proposal sets out a minimum, common denominator  for sanctions for environmental crimes. Where offences cause or are likely to cause death or serious injury to any person, Member States have to provide at least for imprisonment of up to 10 years. Aggravating and mitigating circumstances are also listed.

The liability of legal persons is reconfirmed where the offences have been committed for their benefit, or where a lack of supervision and control on their part has made possible the commission of the offence for the benefit of that legal person by a person under its authority. The liability of the legal person should not exclude criminal proceedings against natural persons.

Both natural and legal persons can be subject to additional sanctions or measures, such as the exclusion from access to public funding and procurement procedures or the withdrawal of administrative permits. Legal persons can also be sanctioned with a temporary or permanent closure of business, being placed under judicial supervision and the obligation to install due diligence schemes for enhancing compliance with environmental standards.

More effective enforcement

The proposal also aims at making  relevant investigations and criminal proceedings more effective. It provides for support of inspectors, police, prosecutors and judges through training, investigative tools, coordination and cooperation, as well as better data collection and statistics. The Commission proposes that each Member State develops national strategies that ensure a coherent approach at all levels of enforcement and the availability of the necessary resources.

Member States will also be required to collect statistical data to monitor the effectiveness of their systems to combat environmental criminal offences, to regularly publish a consolidated review of their statistics. The statistical data must also be submitted annually to the Commission, which will regularly publish an EU-wide report.

Cross-border cooperation

Since environmental crimes often impact multiple countries (for example, the illicit trafficking of wildlife) or have cross-border effects (for example in the case of cross-border pollution of air, water and soil), the new proposal finally requires Member States to establish jurisdiction where:

• the offence was committed in whole or in part on its territory;
• the offence was committed on board a ship or an aircraft registered in it or flying its flag;
• the damage occurred on its territory;
• the offender is one of its nationals or habitual residents. 

Where an offence falls within the jurisdiction of more than one Member State, these Member States shall cooperate to determine which Member State shall conduct criminal proceedings. As the case may be, the matters shall also be referred to Eurojust (the European Union Agency for Criminal Justice Cooperation).