EU strengthens its arsenal in fight against environmental crime

The Council of the European Union adopted a revised directive on environmental crime in March that substantially broadens the scope of offences covered by environmental criminal law and increases the penalties for those who commit them.

Global scourge

The EU has viewed environmental crime as a global scourge to be taken seriously. Interpol and the UN Environment Programme have estimated that it was the fourth biggest criminal activity worldwide – after the trafficking of drugs, arms trafficking and human beings – growing by between 5% and 7% a year worldwide and worth up to $258 billion a year to criminals, the EU agency Eurojust reported in 2021. However, the number of cross-border investigations and convictions has not increased in the EU in line with this growth.

It was against this backdrop that the Council of the EU adopted the Directive on the protection of the environment through criminal law on 26 March, following the European Parliament's adoption on 27 February. This replaces Directive 2008/99/EC of 19 November 2008 and strengthens European legislation on environmental crime by incorporating more criminal offences and providing for tougher penalties.

A broader list of offences

The 2008 directive established a list of criminal offences relating to the protection of the environment through criminal law. The new directive includes an updated list of criminal offences, such as illegal timber trafficking, depletion of water resources, serious breaches of legislation on chemical substances, and pollution caused by ships.

The revised legislation introduces the concept of "qualified" offences, which are intended to criminalise the most serious environmental damage. Qualified offences include large-scale forest fires or widespread pollution, illegal water abstraction, industrial accidents as well as others. Although the crime of "ecocide" has not been formally included in the directive, the qualified offences are very similar.

Tougher penalties

From now on, polluting company executives may be held liable, as may the company itself. The penalties for environmental crimes include prison sentences that vary according to the seriousness of the damage caused. For example, the prison sentence could be up to eight years for qualifying offences and up to 10 years for those causing death. Other offences will be punishable by up to five years' imprisonment.

Fines for companies will be calculated as a percentage of their annual worldwide turnover or as a fixed amount, depending on the nature of the infringement. The maximum fines applicable to companies committing the most serious offences must not be less than 5% of their worldwide turnover or, failing that, €40 million.

Offenders may also be deprived of public funding and required to make good any damage and compensate victims.

Osborne Clarke comment

Member States will be responsible for organising specialised training, collecting data on environmental offences and putting in place national strategies to combat environmental crime. They will also have to offer support to whistleblowers who report environmental offences.

The directive has yet to be published in the EU's Official Journal but Member States will have two years to transpose the legislation into national law.

Victor Audubert, an Intern with Osborne Clarke, contributed to this Insight.