European Commission proposes new directive to crack down on environmental crime

On 15 December 2021, the European Commission published its long-awaited proposal (the “Proposal”) for a directive on the protection of the environment through criminal law (the “revised Directive”) replacing the Environmental Crime Directive of 19 November 2008 (the “current Directive”), with the same objective of supporting the protection of the environment by laying down criminal offences and related sanctions for the most harmful and serious environmental crimes. 

The Proposal, which is part of the wider package of EU legislative initiatives under the European Green Deal, is underpinned by the European Commission’s finding that there is “a real need to strengthen the protection of the environment through criminal law” as “current rules do not tackle them effectively enough”.

The Proposal is accompanied by a Communication, Q&A, summary guide, guidance document and a press release.   

Background

In 2019 and 2020, the European Commission carried out an evaluation of the implementation of the current Directive, which concluded 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 in the EU remained very low, due to low sanction levels, lack of cooperation between authorities, considerable enforcement gaps and other deficiencies.

Based on these findings, the European Commission decided in 2021 to replace the current Directive with a view to making the rules more effective and capable of tackling the most serious environmental offences, thereby contributing to the European Green Deal’s overall goals of tackling the climate crisis, environmental degradation, pollution and loss of nature.

As expressed by EU Commissioner for Justice Didier Reynders:

“There is no time to lose. We must improve our EU rules on fighting environmental crime to protect the environment and ultimately our planet. The proposal today builds on lessons learned and experience gained over the past years and will directly address root-causes that have prevented the protection of the environment from being as effective as it should be.”

The Proposal provides a harmonised framework to address environmental crimes through the EU by setting minimum standards to be adopted by each Member State, which remains free to adopt or to maintain more stringent rules and sanctions.

Key proposed changes

Updating and refining the list of criminal offences

Compared with the current Directive, the Proposal introduces a wider range of offences and provides more specific and clear descriptions of the existing criminal offences.

New categories of criminal offences proposed in the revised Directive are:

• illegal timber trade;
• illegal ship recycling;
• illegal water abstraction from ground- or surface water;
• serious breaches of EU chemicals legislation;
• serious breaches related to dealing with fluorinated greenhouse gases;
• serious breaches of legislation on invasive alien species with European Union concern;
• serious circumvention of requirements to get a development consent and to do environmental impact assessment causing substantial damage; and
• source discharge of polluting substances from ships.

In order to constitute an environmental offence under the revised Directive, the conduct should be unlawful under EU law protecting the environment or national laws, administrative regulations or decisions giving effect to that EU law.

The Proposal further states that such conduct should be considered a criminal offence when committed intentionally and, in certain cases, also when committed with serious negligence. Illegal conduct that causes death or serious injury of persons, substantial damage or a considerable risk of substantial damage to the environment or is considered otherwise as particularly harmful to the environment constitutes a criminal offence when committed with serious negligence.

The Proposal also clarifies undefined legal terms used to describe environmental crime in the current Directive, such as “substantial damage”. Finally, the Proposal requires Member States to make it a criminal offence to incite, aide and abet, and attempt to commit the criminal offences covered by the new Directive.  

Surprisingly, the Proposal does not recognise the crime of ecocide, despite the European Parliament having called on the EU Member States to recognise ecocide as an international crime (see our previous blog post). The crime of ecocide is only mentioned once in the Proposal, in its recitals, which state that “(…) when an environmental criminal offence causes substantial and irreversible or long-lasting damage to an entire ecosystem, this should be an aggravating circumstance because of its severity, including in cases comparable to ecocide”. However, as indicated, the revised Directive does not prevent EU Member States from going further. France, for instance, included ecocide in its domestic legislation.

Regarding illegal timber trade, the EU Parliament and Council had already adopted on 20 October 2010 the Regulation (EU) 995/2010 laying down the obligations of operators who place timber and timber products on the market. The Proposal now intends to harmonise sanction levels for that particular offence across the EU.

As for deforestation, the European Commission specifically foresees the inclusion of a criminal offence in respect of the making available on the EU market as well as the export of certain commodities and products associated with deforestation and forest degradation if the EU proposal for a regulation on deforestation-free products of 17 November 2021 is adopted (see our previous blog post).

Finally, regarding international jurisdiction, the Proposal states that each Member State shall take the necessary measures to establish the jurisdiction of its domestic courts where: (i) the offence was committed in whole or in part on its territory; (ii) the offence was committed on board a ship or an aircraft registered in it or flying its flag; (iii) the damage occurred on its territory; and (iv) the offender is one of its nationals or habitual residents. Member States must inform the European Commission if  they decide to extend jurisdiction to offences committed outside their territory.

Updating the provisions on sanctions

The Proposal provides for sanctions for both natural and legal persons.

As for natural persons, 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 ten years. Some offences are punishable by a maximum term of imprisonment of at least six years, and others of at least four years. The Proposal also introduces additional sanctions and measures, such as the restoration of the environment, fines, withdrawal of permits, disqualifications, exclusion from access to public funding, etc.

As for legal persons, the Proposal states that Member States shall ensure that legal persons can be held liable for offences covered by the revised Directive where such offences have been committed for their benefit by any person who has a leading position within the legal person, acting either individually or as part of an organ of the legal person, based on a power of representation, an authority to take decisions or an authority to exercise control within the legal person. The European Commission also intends to hold liable legal persons where the lack of supervision or control by a person having a leading position within the legal person has made possible the commission of an offence for the benefit of the legal person by a person under its authority. Finally, the Proposal provides that liability of legal persons does not exclude criminal proceedings against natural persons who are perpetrators, inciters or accessories in the offences.

Similarly to natural persons, the Proposal introduces sanctions and measures for legal persons liable under the revised Directive. Such sanctions and measures include criminal or non-criminal fines, the restoration of the environment, temporary or permanent closure of the establishment, disqualifications, etc. The Proposal also states that fines should not be less than 3% to 5% of the total worldwide turnover of the legal person in the business year preceding the decision to impose a fine, and that Member States must ensure that the illegal profits generated from the offence and the annual turnover of the legal person are taken into account when determining the appropriate fine to be imposed.

The Proposal also includes aggravating circumstances (e.g. the severity of the damage done, the involvement of organised crime, the illegal profits generated or expected) and mitigating ones (e.g. providing the authorities with useful information that they would not otherwise have obtained) to be taken into consideration by national judges when deciding whether they should impose the maximum punishment provided for in the revised Directive.

Finally, EU Member States should ensure that national authorities have the power to freeze or confiscate the proceeds derived from the commission of the offence.

Improving the effectiveness of investigations and criminal proceedings

The Proposal intends to facilitate the practical implementation of the new provisions and 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 European 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.

The proposal also addresses cross-border investigation and prosecution, as the European Commission recognises that environmental crimes often impact several countries (e.g. the illicit trafficking of wildlife) or have cross-border effects (e.g. cross-border pollution of air, water and soil).

Finally, the European Commission has indicated that it will continue to promote international cooperation in this area, as environmental crime is a global phenomenon.

Recognising and strengthening the role of citizens and civil society 

The Proposal includes measures to support and assist whistleblowers who report environmental criminal offences, as well as those who cooperate with the enforcement. It also enables, under certain conditions, the concerned individuals to be present in proceedings linked to the prosecution of criminal offences where appropriate, pursuant to the rules set out in Member States.

Next steps?

The Proposal will now be debated by the European Parliament and the Council. It will take several months before MEPs and Member States’ ministers reach an agreement on a final text, which may vary from the Proposal. 

Several NGOs have, for instance, already announced that they will continue pushing for the introduction of the crime of ecocide in the revised Directive.