Environmental Crime Directive: European Parliament and Council agree to introduce an “offence comparable to ecocide”

In the lead up to UNFCCC’s COP28 on climate change, the European Parliament and the Council finally reached a political agreement on 16 November 2023 on the Commission’s proposal (the “Proposal”) for a Directive on the protection of the environment through criminal law, replacing the existing Environmental Crime Directive 2008 (the “current ECD”). 

The Directive provides for new environmental crimes and introduces a so-called “qualified offence” which is comparable to “ecocide”, as well as increased imprisonment sentencing and fines. The political agreement was reached in a context where some EU Member States have introduced or are exploring the introduction of so-called “ecocide” offences, while environmental NGOs are willing to pursue litigation under criminal law, based on existing domestic criminal law against corporates for their alleged impact on the environment. 

The revised text of the proposed Directive is not yet available. Meanwhile, the press releases from the European Parliament, Council and Commission (see here, here, and here) explain the key changes made to the Proposal. 

Key takeaways for business

Background

The revised Directive forms part of the European Green Deal. The political agreement, which overcame initial differences in the positions of the Parliament and the Council, is the result of a lengthy process which started back in 2019 with the Commission’s evaluation of the implementation of the current ECD. The Commission concluded in that review that prosecution of environmental crimes remained low in the EU and therefore proposed some amendments to the current ECD on 15 December 2021 (see our previous blog post). The Commission’s key proposed changes to the current ECD included refining of the list of environmental crimes, clarification of undefined terms, strengthening statutory penalties and power of the competent authorities, as well as recognition of the role of citizens and civil society. 

A notable absence from the Commission’s Proposal was the so-called “ecocide” offence, which the Commission chose not to add to the list of environmental crimes, despite the Parliament having called on Member States to recognise it as an international crime (see our previous blog post). 

The political agreement in a nutshell

• The political agreement reached on 16 November increases the list of environmental crimes at the EU level, from 9 (as provided for in the current ECD) to 18, including illegal timber trafficking, illegal collection, transport and treatment of waste, pollution caused by ships, the use of mercury and fluorinated greenhouse gases, the import of invasive species, the illegal depletion of water resources, as well as serious breaches of legislation on chemicals. One of the consequences of these changes is the extension of the notion of “criminal activity” under the Anti-Money Laundering (AML) Directive (EU) 2018/1673 as it explicitly refers to “environmental crime, including any offence set out” in the current ECD (for the UK perspective on this point, see our previous blog post).

The co-legislators agreed to include a “qualified offence”, comparable to a so-called “ecocide” offence. Under the revised ECD, a criminal offence would be recognised as “qualified” if it is committed intentionally and causes destruction or “irreversible, widespread and substantial damage” or “long-lasting, widespread and substantial damage” to an ecosystem of considerable size or environmental value, or to a natural habitat within a protected site, or to the quality of air, soil or water. However, it would appear that the revised ECD does not explicitly refer to the term “ecocide”.

The political agreement also provides for tougher penalties than the current ECD, by imposing minimum penalties (Member States may provide for even tougher imprisonment terms and fines). The text is said to harmonise penalties faced by legal persons across all EU Member States. According to the EU press releases, the criminal penalties would be as follows (although the press releases do not explicitly specify the scope of each category):

Additional measures may also be taken against the offenders such as the obligation to reinstate the environment or compensate for the damage, exclusion from access to public funding, withdrawal of permits/authorisations, or closure of businesses. The penalties for natural and legal persons are also subject to a harmonised list of aggravating and mitigating circumstances. 

The press releases are silent as to whether the revised ECD also includes rules in relation to criminal liability of directors, nor do they specify what the EU institutions agreed, in particular, on the time limitations and jurisdiction of criminal authorities. 

• Enforcement has also been a key focus, with reinforced training and resources for competent authorities. Among others, national authorities will be required to cooperate, in cross-border cases, among themselves and with other existing EU bodies, such as Eurojust, Europol or the EPPO. The press releases do not give details on the nature of cooperation which these institutions should provide, including for the EPPO which does not have jurisdiction in matter of environmental crimes. 
• Finally, the political agreement includes measures to support and assist whistle-blowers who report environmental crimes although the press releases do not give further details on this. 

Key legislative and enforcement developments in domestic legislation in the EU 

• In parallel to the discussions at the EU level on the revision of the ECD, a number of Member States have introduced or are exploring the introduction of “ecocide” as a criminal offence. 
• France has already included a so-called “ecocide” offence in its domestic legislation, although its scope is different from the one proposed by the revised ECD. Under Article L. 231-3 of the French Environment Code (“FEC”), “ecocide” is committed when:

1. the criminal offence of air and/or water pollution – as punished by Article L231-1 FEC – is committed intentionally; or
2. the criminal offence of pollution by waste – as punished by Article L231-2 FEC – is committed intentionally and results in "severe and lasting damage to health, flora, fauna or the quality of the air, soil or water”. “Lasting” means that the harmful effects on health or damage to flora, fauna or the quality of soil or surface or ground water that are likely to last at least seven years.

This type of offences entails tougher criminal penalties: up to 10 years’ imprisonment and a fine up to €4.5m for individuals and €22.5m for legal persons, or “ten times the amount of the advantage deriving from the commission of the offence” (whichever is higher). 

• Bills introducing so-called “ecocide” offences are also under discussions in Belgium (see previous briefing), the Netherlands and Spain. 

These legislative changes are discussed when criminal complaints against corporates for their alleged impact on the environment are being filed across the EU. As reported in our previous blog post, on 22 September 2023 four environmental NGOs filed a criminal complaint against a French major player in the energy sector based on alleged “failure to combat a disaster likely to endanger the safety of people”, “unintentional injury”, “destruction, degradation or deterioration of property belonging to others likely to create a danger to people”, and “manslaughter”. The non-public criminal complaint is reported to generally criticise the company’s impact on the environment over the past years. This shows that NGOs are willing to pursue litigation based on the existing criminal law of the Member States.

Next steps

The political agreement still needs to be formally adopted by the European Parliament and the Council before it can be published in the Official Journal of the EU and become EU law. Although we do not expect major changes in substance to happen in the process of the formal adoption, it is possible that there may yet be some tweaks to the final wording of the Directive.

Once adopted, the Directive would enter into force 20 days after its publication in the Official Journal. Member States would then still need to transpose it into their national laws within a set period of time which has not yet been disclosed (but which should be somewhere between 18 to 30 months after the date of entry into force). The current ECD would be replaced by the revised ECD from the date of its transposition. 

If you would like to discuss any aspect of the new regime, please reach out to the contacts on this post, or to your usual Linklaters contact.