Environmental crime is growing at an annual rate of 5% to 7% globally, creating lasting damage to habitats, species, people’s health, and the revenues of governments and businesses. Appropriate sanctions and effective dissuasive measures are needed, including criminal and civil measures.
The EU is proposing to replace Directive 2008/99/EC with a directive that has six objectives:
- Improve the effectiveness of investigations and prosecutions by updating the scope of the Directive.
- Improve the effectiveness of investigations and prosecutions by clarifying or eliminating vague terms used in the definitions of environmental crime.
- Ensure effective, dissuasive, and proportionate sanction types and levels for environmental crime.
- Foster cross-border investigation and prosecution.
- Improve informed decision-making on environmental crime through improved collection and dissemination of statistical data.
- Improve the operational effectiveness of national enforcement chains to foster investigations, prosecutions, and sanctioning.
The summary of the salient provisions includes:
The commission proposes imprisonment of 10, 6, or 4 years depending on the nature of the environmental crime.
Article 6 proposes that legal persons can be held liable for offences where such offences have been committed or, as a result of a lack of supervision or control, 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) a power of representation of the legal person.
(b) an authority to take decisions on behalf of the legal person.
(c) an authority to exercise control within the legal person.
- Article 7 proposes that Member States shall take the necessary measures to ensure that a legal person held liable pursuant to Article 6(1) is punishable by effective, proportionate and dissuasive sanctions, which can include:
(a) criminal or non-criminal fines*
(b) the obligation to reinstate the environment within a given period.
(c) exclusion from entitlement to public benefits or aid.
(d) temporary exclusion from access to public funding, including tender procedures, grants and concessions.
(e) temporary or permanent disqualification from the practice of business activities.
(f) withdrawal of permits and authorisations to pursue activities which have resulted in committing the offence.
(g) placing under judicial supervision.
(h) judicial winding-up.
(i) temporary or permanent closure of establishments used for committing the offence.
(j) obligation of companies to install due diligence schemes for enhancing compliance with environmental standards.
(k) publication of the judicial decision relating to the conviction or any sanctions or measures applied.
*Depending on the nature of the offence, such fines, the maximum limit of which shall be between 3 and 5% of the total worldwide turnover of the legal person [undertaking] in the business year preceding the fining decision.
Article 3 & 5 - Offences and Related sanctions
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· Punishable by a maximum term of imprisonment of at least six years. · Punishable by fines, maximum limit of which shall be not less than 5% of the total worldwide turnover of the legal person [/undertaking] in the business year preceding the fining decision. |
· Punishable by a maximum term of imprisonment of at least four years. · Punishable by fines, maximum limit of which shall be not less than 3% of the total worldwide turnover of the legal person [/undertaking] in the business year preceding the fining decision. |
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Or punishable by a maximum term of imprisonment of at least ten years where any of the offences below cause or are likely to cause death or serious injury to any person |
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(a) the discharge, emission or introduction of a quantity of materials or substances or ionising radiation into air, soil or water which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants. (b) the placing on the market of a product which, in breach of a prohibition or another requirement, causes or is likely to cause death or serious injury to any person or substantial damage to air, water or soil quality, or to animals or plants as a result of the product's use on a larger scale. (c) the manufacture, placing on the market or use of substances, whether on their own, in mixtures or in articles, including their incorporation into articles, when: (i) this activity is restricted pursuant to Title VIII and Annex XVII of Regulation (EC) No 1907/2006 of the European Parliament and of the Council; or (ii) this activity is prohibited pursuant to Title VII of Regulation (EC) No 1907/2006. (iii) this activity is not in compliance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council; or (iv) this activity is not in compliance with Regulation (EC) No 528/2012 of the European Parliament and of the Council. (v) this activity falls under Regulation (EC) No 1272/2008 of the European Parliament and of the Council; or (vi) this activity is prohibited pursuant to Annex I to Regulation (EU) 2019/1021 of the European Parliament and of the Council, and it causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants. (d) the execution of projects referred to in Article 1(2)(a) of Directive 2011/92/EU of the European Parliament and of the Council without a development consent or an assessment with regard to their effects on the environment, which causes or is likely to cause substantial damage to the factors defined in Article 3(1) of Directive 2011/92/EU. (e) the collection, transport, recovery or disposal of waste, the supervision of such operations and the aftercare of disposal sites, including action taken as a dealer or a broker (waste management), when an unlawful conduct: (i) concerns hazardous waste as defined in Article 3(2) of Directive 2008/98/EC of the European Parliament and of the Council and is undertaken in a non-negligible quantity. (ii) concerns other waste than referred to in point (i) and causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants. (f) the shipment of waste, within the meaning of Article 2(35) of Regulation (EC) No 1013/2006 of the European Parliament and of the Council when such shipment is undertaken in a non-negligible quantity, whether executed in a single shipment or in several shipments which appear to be linked. (g) the recycling of ships falling within the scope of Regulation (EU) No 1257/2013 of the European Parliament and of the Council, without complying with the requirements of Article 6(2), point (a) of that Regulation. (h) the ship-source discharges of polluting substances referred to in Article 4(1) of Directive 2005/35/EC of the European Parliament and of the Council on ship source pollution and on the introduction of penalties, including criminal penalties, into any of the areas referred to in Article 3(1) of that Directive, provided that the ship-source discharges do not satisfy the exceptions set in Article 5 of that Directive; this provision shall not apply to individual cases, where the ship-source discharge does not cause deterioration in the quality of water, unless repeated cases by the same offender in conjunction result in deterioration in the quality of water. (i) the installation, operation or dismantling of an installation in which a dangerous activity is carried out or in which dangerous substances, preparations or pollutants are stored or used falling within the scope of Directive 2012/18/EU of the European Parliament and of the Council , Directive 2010/75/EU of the European Parliament and of the Council or Directive 2013/30/EU of the European Parliament and of the Council and which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants; (j) the manufacture, production, processing, handling, use, holding, storage, transport, import, export or disposal of radioactive material falling within the scope of Council Directive 2013/59/Euratom, Council Directive 2014/87/Euratom or Council Directive 2013/51/Euratom, which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants; (n) the placing or making available on the Union market of illegally harvested timber or of timber products that were made of illegally harvested wood, falling within the scope of Regulation (EU) No 995/2010 of the European Parliament and of the Council , except for cases where the conduct concerns a negligible quantity; [If a Regulation on the making available on the Union market as well as export from the Union of certain commodities and products associated with deforestation and forest degradation and repealing Regulation (EU) No 995/2010 is adopted before this Directive, point (n) to be replaced with a criminal offence within the scope of Article 3 of that Regulation. (q) production, placing on the market, import, export, use, emission or release of ozone depleting substances as defined in Article 3 (4) of Regulation (EC) No 1005/2009 of the European Parliament and of the Council or of products and equipment containing or relying on such substances. (r) production, placing on the market, import, export, use, emission or release of fluorinated greenhouse gases as defined in Article 2 (1) of Regulation 517/2014 of the European Parliament and of the Council or of products and equipment containing or relying on such gases. |
(k) the abstraction of surface water or groundwater which causes or is likely to cause substantial damage to the ecological status or potential of surface water bodies or to the quantitative status of groundwater bodies. (l) the killing, destruction, taking of, possession, sale or offering for sale of a specimen or specimens of wild fauna or flora species listed in Annexes IV and V (when species in Annex V are subject to the same measures as those adopted for species in Annex IV) to Council Directive 92/43/EEC49 and the species referred to in Article 1 of Directive 2009/147/EC of the European Parliament and of the Council50, except for cases where the conduct concerns a negligible quantity of such specimens. (m) trading in specimens of wild fauna or flora species or parts or derivatives thereof listed in Annexes A and B to Council Regulation (EC) No 338/9751, except for cases where the conduct concerns a negligible quantity of such specimens. (o) any conduct which causes the deterioration of a habitat within a protected site, within the meaning of Article 6(2) of the Directive 92/43/EEC, when this deterioration is significant.
(p) introduction or spread of invasive alien species of Union concern when: (i) the conduct breaches restrictions set out in Article 7(1) of Regulation (EU) No 1143/2014 of the European Parliament and of the Council. (ii) the conduct breaches a condition of permit issued under Article 8 or of authorisation granted under Article 9 of Regulation (EU) No 1143/2014 and causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants.
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