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Eco-crime directive targets ‘lucrative’ business

Environmental crime is a lucrative, growing business and is a serious, organised criminal activity globally and in the European Union, an ALG briefing note has said.

Europol defines environmental crime as covering “the gamut of activities that breach environmental legislation and cause significant harm or risk to the environment, human health, or both.”

Currently, the 2008 directive 2008/99/EC is the primary law dealing with environmental crime within the EU, but a 2020 evaluation of it by the European Commission found that significant gaps remained, the ALG lawyers state.

Evaluation

The evaluation found significant divergence between member states in terms of:

• Application of criminal penalties,
• Transposition of legal terms, and
• Detection, investigation and prosecution of environmental crime.

Major deficiencies in all member states, and at all levels of the law-enforcement chain were also found.

As a result, the European Commission issued a proposal to revise the 2008 directive on 15 December 2021, with political agreement on 16 November 2023.

The Directive on Protection of the Environment through Criminal Law was formally adopted on 26 March, and will be published shortly in the official journal, entering into force 20 days thereafter.

Member states will then have two years in which to transpose the rules into domestic law.

Increased list of crimes

It sets out an increased list of 18 crimes (up from nine in the 2008 directive), including:

• Discharge or emission of materials or energy into air, soil or water that causes death or serious injury or substantial damage to the environment,
• Waste offences – including the improper collection, transport, recovery and disposal of waste – that cause, or are likely to cause, death or serious injury or substantial damage to the environment,
• Abstraction of surface water or groundwater likely to cause substantial damage to the ecological status of water bodies,
• Offences related to illegal ship recycling,
• Offences related to the illegal trade in timber,
• Offences surrounding the illegal trade in wildlife and plant species,
• Offences regarding serious breaches of EU chemicals legislation.

The European Commission is also expressly provided with powers to regularly consider whether the crimes covered need to be amended.

Offence ‘comparable to ecocide’

It also provides for a ‘qualified offence’ where crimes are committed and result in wide-scale environmental damage that is either irreversible or long-lasting. Separately, some member states are currently looking into introducing a criminal offence of ‘ecocide’, following on from France placing the crime on a legislative footing in 2021.

The 2008 directive contained a number of terms that were open to interpretation and resulted in a divergence of interpretation in national transposing laws. Certain key terms are now clarified to ensure a uniform framework applies to environmental crimes throughout the EU.

Enhanced cross-border co-operation

Enhanced co-operation between member states and various European bodies – including Eurojust, Europol, the European Public Prosecutor’s Office, and the Commission – is also planned, with rules on establishing jurisdiction.

Member states are required to ensure that authorities are sufficiently resourced.

A new obligation for “effective, proportionate and dissuasive criminal penalties” has also been included.

Penalties include ten years in prison for the most serious intentional crimes, eight years for qualified offences, five years for most offences with serious negligence, and three years for certain other offences.

Legal persons may be fined up to either 3% or 5% of the company's annual worldwide turnover, or fixed amounts of €24 million or €40 million.

Member states are left with the choice of whether to set the fines at a percentage rate of turnover or a set monetary amount.

Non-criminal penalties are provided for – including obligations to restore or pay compensation for damage to the environment, such as fines, director disqualification, and publications of details of conviction.

Asset-tracing and freezing is also included, the ALG lawyers state.