The revision of the Directive on the protection of the environment through criminal law: another step closer

Environmental Crime Directive 2008/99/EC and evaluation

The Environmental Crime Directive aims to protect the environment through criminal law, including through (uniform) prosecution of environmental crimes, appropriate sanctions and cross-border cooperation. The evaluation of the Environmental Crime Directive has shown that it falls short of expectations and has little effect in practice. Several factors are thought to underlies this, including the lack of political will or priority, lack of resources and personnel, insufficient knowledge and expertise, and lack of clarity on the interpretation and application of certain concepts.

Revision of the Environmental Crime Directive

The proposed revision of the Environmental Crime Directive seeks to address the current limitations and shortcomings of the Environmental Crime Directive. The Council’s negotiating mandate is largely in line with the European Commission’s legislative proposal, although it also differs in some respects.

Updating, expanding and concretizing EU environmental crimes

The proposed revision updates and expands the list of offenses. It also defines already existing EU environmental offenses more precisely by concretizing or deleting vague terms and definitions. The Council’s negotiating mandate, largely in line with as well as complementing the European Commission’s legislative proposal, defines 20 environmental offenses, including the following offenses:

• The placing on the market of a product which, in breach of a prohibition or another requirement, causes of 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;
• For the project developer: the execution of projects as referred to in Directive 2011/92/EU, which includes, inter alia, the execution of construction works or other installations or works as well as other interventions in the natural environment and landscape, including the extraction of minerals, without a development consent, and which causes or is likely to cause substantial damage to the quality of air, the quality of soil or the status of water, or to animals or plants;
• The abstraction of surface water or groundwater within the meaning of Directive 2000/60/EC 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;
• For the ship owner: illegal recycling of polluting ship parts (Directive 1257/2013).

Some of the criminalizations included in the proposed Directive are already found in the current Environmental Crime Directive or in EU regulations, such as the prohibition of placing illegally extracted timber or products derived from such timber on the EU market, as stipulated in Regulation 995/2010. These cases mainly involve an extension of member states’ obligations, minimum penalty requirements and rights of citizens and NGOs.

Minimum penalty requirements with respect to the environmental offences included in the Directive

The European Commission has proposed several minimum penalty requirements with respect to the environmental offences included in the Directive. The proposal also specifies what additional penalties and measures should be possible in appropriate cases, including:

• The obligation to reinstate the environment within a given time period, provided that the damage is reversible, or, where the damage is irreversible, the obligation to compensate costs linked to the damage to the environment;
• Exclusions from access to public funding, including tender procedures, grants and concessions;
• Disqualification from directing establishments of the type used for committing the offence (with respect to natural persons);
• Disqualification from the practice of business activities (with respect to legal persons);
• Judicial winding-up.

In the Council’s negotiating mandate, the agreed levels of penalties and sanctions are in some cases lower than those proposed by the European Commission. A number of additional penalties and measures have also been omitted from the negotiating mandate, including a temporary ban on running for elected or public office.

Aggravating or mitigating circumstances

The proposal lists as punitive aggravating circumstances that the offence resulted in destruction or irreversible or long-term substantial damage to the ecosystem or that false or forged documents were used in the offence. Mitigating circumstances are that the offender has restored nature to its former state or that the offender has provided the authorities with information that they would not otherwise have been able to obtain and that helps them to (i) identify or try the other offenders or (ii) find evidence.

Recognizing and strengthening the criminal justice chain and the role of citizens and NGOs

Finally, the proposed Environmental Crime Directive aims to strengthen the criminal justice chain and recognize and strengthen the role of citizens. To achieve this, Member States must, among other things, adopt a national strategy to combat environmental crime, allow persons affected by environmental crime as well as NGOs committed to environmental protection to participate in criminal proceedings (e.g. as aggrieved parties) under national procedural rules, and protect whistleblowers and witnesses.

Dutch position on the proposal

The Dutch Government welcomes the proposal and is positive about its content. However, it was pointed out, that in order to realize the ambitions of the revision, including by drawing up a national enforcement strategy, it is necessary for authorities to be able to deploy sufficient capacity in the environmental domains.

Next steps

The legislative proposal will now be submitted to the European Parliament and the Council. The fact that the Council agreed on a negotiating mandate, and thus a “general position”, prior to this may expedite the legislative procedure. We will keep you informed.

For questions on environmental criminal and sanctions law, please contact Jurjan Geertsma and Miranda de Mik.