Environmental Crime Directive: EU introduces new offences and penalties

The revised Environmental Crime Directive (“revised ECD”) was published in the Official Journal of the EU on 30 April 2024 and comes into force on 20 May 2024. 

The revised ECD 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. 

Member States will need to adopt the necessary national measures to transpose the revised ECD by 21 May 2026.

Background

The revised ECD forms part of the European Green Deal and is the result of a lengthy process which began with the Commission’s observation that the prosecution of environmental crimes remained low in the EU. The Commission’s key proposed changes to the existing rules date back to 15 December 2021 and include refining of the list of environmental crimes, clarifying undefined terms, strengthening statutory penalties and power of the competent authorities, as well as recognition of the role of civil society (see our previous blog post). 

The proposal initially received a lukewarm reception from the public and NGOs which denounced the notable absence of the so-called “ecocide” offence in the Commission’s proposal. This perceived gap was, however, somewhat remedied by the European Parliament and the Council’s political agreement of 16 November 2023, which introduced the concept of “qualified offences” (see our previous blog post). 

The new regime in a nutshell 

The revised ECD defines new environmental offences and new penalties that will need to apply across the EU. It also  introduces measures to prevent and combat environmental crime and ensure effective enforcement of EU environmental law. A key objective of the revised ECD is to bolster prevention and deterrence strategies against environmental crime, ensuring that both businesses and individuals align themselves with practices that promote environmental sustainability. New environmental offences can be prosecuted both before criminal jurisdictions and administrative authorities.

The revised ECD is applicable to all EU Member States, except for Ireland and Denmark due to specific treaty provisions. Its scope spreads across different facets of environmental protection, including air quality, water, soil, and ecosystem preservation, among others.

The revised ECD will replace the Environmental Crime Directive 2008 (“current ECD”) as well as Directive 2009/123/EC on ship-source pollution. 

This new Directive is part of a broader context where some EU Member States have introduced or are exploring the introduction of “ecocide” offences, while environmental NGOs are willing to pursue litigation based on existing domestic criminal law against corporates for their alleged impact on the environment (see our previous blog post). 

New offences

The revised ECD doubles the list of conducts that can constitute a criminal offence at EU level, including illegal deforestation or forest degradation, 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. 

For listed conducts to constitute environmental crimes at EU level, they must: 

• be unlawful (i.e., in breach of EU environmental law or of national laws giving effect to such EU law); and
• be intentional or, in certain cases, committed with serious negligence.

The revised ECD does not define “serious negligence” but according to Recital 27: “the notion of ‘serious negligence’ should be interpreted in accordance with national law, taking into account relevant case law of the Court of Justice. This Directive does not require the introduction in national law of the notion of ‘serious negligence’ for each constituent element of the criminal offence, such as possession, sale or offering for sale, placing on the market and similar elements. In such cases, it is possible for Member States to decide that the notion of ‘serious negligence’ is relevant for elements of the criminal offence such as the protection status, ‘negligible quantity’, or the ‘likelihood’ of the conduct to cause substantial damage”.  

For certain listed conducts, they will only be considered environmental crimes if they cause (or (are likely to cause) death or serious injury (i.e., any form of physical harm, but excluding mental health) to a person or substantial damage to air, water, soil, ecosystem, animals or plants. 

Some of these offences require that the unlawful conduct concerns a “negligible quantity”. A notable case is illegal deforestation or forest degradation, as referred to in the EU Deforestation Regulation (see our previous briefing). Illegal deforestation or forest degradation is also part of the list of conducts which constitute a criminal offence when committed with at least serious negligence.

Any of the listed conducts must be considered “qualified criminal offences” and, therefore, be punished with more severe penalties, whenever they cause:

• “the destruction of, or widespread and substantial damage which is either irreversible or long-lasting to, an ecosystem of considerable size or environmental value or a habitat within a protected site”; or
• “widespread and substantial damage which is either irreversible or long-lasting to the quality of air, soil or water”.

As per the revised ECD, these qualified criminal offences can encompass conducts comparable to ‘ecocide’, which is already covered by the law of certain Member State – such as France (see our previous blog post) and Belgium (see our previous blog post) – and which is being discussed in international fora (see our previous blog post).

Inciting, and aiding and abetting intentional commission of a (qualified) criminal offence is also punishable. Attempt is only punishable for certain listed conducts.

These rules apply to both natural and legal persons (but not public bodies, unless Member States decide to). Even when a legal person is held liable, this does not preclude natural persons (including corporate board members) from also being held liable.

Member States can adopt or maintain more stringent rules in the area of criminal law.

New penalties

The revised ECD also provides for tougher (criminal) penalties for both natural and legal persons:

“Most serious offences” encompass all the listed unlawful conducts, except the depletion of water, the import of invasive species, the deterioration of a habitat within a protected site, and the disturbance of animal species.

In addition, Members States must ensure certain accessory (non-)criminal penalties, such as an obligation to restore the environment or compensate, fines, exclusion from access to public funding, an obligation to establish due diligence schemes for enhancing compliance with environmental standards, publication of the judicial decision, etc. Proceeds of crimes must be frozen and confiscated.

Finally, the revised ECD sets out a list of non-exhaustive aggravating and mitigating circumstances for national judges to consider.

Whistleblowing protection

The revised ECD makes it clear that whistleblowers will benefit from the protection granted by Directive (EU) 2019/1937 on the protection of persons who report beaches of Union law.

Private enforcement

Although the revised ECD does not affect civil liability under national law, Member States must ensure that civil society and NGOs that promote environmental protection that are affected (or are likely to be affected) by the aforementioned conducts, have appropriate procedural rights in civil liability proceedings concerning those offences.

Jurisdiction

Member States are required to assert jurisdiction under the following conditions: if the offence took place within their territory, on a ship or aircraft they register, if the resulting damage occurred within their territory, or if the perpetrator is a national. 

Member States must also notify the Commission if they choose to extend jurisdiction to offences committed outside their territory in cases where the offender resides there, the offence benefits a local legal entity, it is committed against a national or resident, or it poses a significant environmental risk within their territory. 

When multiple Member States have jurisdiction over an offence, cooperation is required to decide on the relevant prosecution authority, possibly involving Eurojust.

When will the new regime apply?

The revised ECD comes into force on 20 May 2024. Member States will then need to adopt the necessary national measures to transpose the revised ECD by 21 May 2026.

What does it mean in practice?

In addition to widening the type of activities that qualify as an environmental crime and providing for more stringent penalties, the revised ECD also calls for the relevant national authorities to take swift action in instances of environmental crimes. 

This revised ECD comes at a time when criminal complaints are being filed across the EU against businesses for their alleged impact on the environment (see our previous blog post). Businesses should therefore strive to adapt their operating procedures to comply with the new Directive.

Finally, the expansion of the list of EU environmental crimes under the ECD also entails an extension of the notion of “criminal activity” under the Anti-Money Laundering (AML) Directive (EU) 2018/1673, as “criminal activity” 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.

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.

To stay on top of the latest climate and other ESG litigation developments, click here to sign up for the Linklaters ESG Disputes Bulletin.