Protection of the Environment through Criminal Law – New Directive on Environmental Crime

Background and the 2008 Directive

Environmental crime is a lucrative, growing business and is a serious, organised criminal activity globally and also within the European Union (EU). 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, Directive 2008/99/EC (the 2008 Directive) is the primary law dealing with environmental crime within the EU. The objective of the 2008 Directive was to ensure more effective protection of the environment and the directive sought to achieve this goal by way of harmonised criminal legislation and ensuring strong enough sanctions for any breaches of same. 

An evaluation of the 2008 Directive was conducted in 2020 by the European Commission and found that, although some progress had been made in meeting the aims of the Directive, significant gaps remained. The evaluation found that there was significant divergence between Member States regarding the 2008 Directive including in terms of the application of criminal penalties, the transposition of legal terms, and the detection, investigation and prosecution of environmental crime. The evaluation found that there were “major deficiencies in all Member States and at all levels of the law enforcement chain that prevent[ed] criminal environmental law from being effective”. As a result of these findings and an increased focus of EU political priorities on organised crime including environmental crime, the European Commission issued a proposal to revise the 2008 Directive on 15 December 2021. The European Parliament and the Council reached political agreement on the Commission’s proposal on 16 November 2023, with the Parliament adopting the Directive on Protection of the Environment through Criminal Law (the New Directive) on 27 February 2024. The Council then formally adopted the New Directive on 26 March 2024.

The New Directive

The New Directive is due to be published in the Official Journal shortly and will enter into force twenty days after being published. Member States will then have two years in which to transpose the rules into domestic law.

Increased list of crimes from 9 to 18

The 2008 Directive criminalised violations of certain obligations contained in EU environmental legislation which was annexed to the 2008 Directive. The New Directive does not contain this annexed legislation and sets out an increased list of 18 crimes (up from 9 in the 2008 Directive) including the following:

  • the discharge or emission of materials or energy into the air, soil or water which causes or is likely to cause death or serious injury to any person or substantial damage to the environment
  • certain waste offences including the improper collection, transport, recovery and disposal of waste which cause or are likely to cause death or serious injury to any person or substantial damage to the environment
  • the abstraction of surface water or groundwater which causes or is 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
  • certain offences surrounding the illegal trade in wildlife and plant species
  • certain offences regarding serious breaches of EU chemicals legislation

The European Commission is also expressly provided with powers to consider, on a regular basis, whether the crimes covered by the New Directive need to be amended. This is in recognition of the fact that this area is in flux and that, in order to remain effective, the New Directive will need to be able to encompass new and emerging environmental crimes as and when they arise.

Offence ‘comparable to ecocide’

The New Directive also provides for a ‘qualified offence’ where crimes are committed and result in wide-scale environmental damage which is either irreversible or long-lasting. The preamble to the New Directive suggests that such ‘qualified offences’ can encompass “conduct comparable to ‘ecocide.” Separate to the New Directive, a number of 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.

Clarification of certain legal terms

The 2008 Directive contained a number of terms which were open to interpretation and resulted in a divergence of interpretation in national transposing laws. The New Directive aims to clarify and provide guidance on the meaning of certain key terms to ensure a uniform framework applies to environmental crimes throughout the EU. For example, the New Directive now provides guidance in relation to the interpretation and meaning of the key term of ‘substantial damage’ which was not contained in the 2008 Directive. The New Directive provides that in assessing whether ‘substantial damage’ has occurred or is likely to occur, certain factors must be taken into account including at least one of the following: the baseline condition of the affected environment; the lasting nature of the damage; the extent of the damage and the reversibility of the damage.

Enhanced cross-border co-operation

The New Directive also provides for enhanced co-operation between Member States and various European bodies and agencies including Eurojust, Europol, the European Public Prosecutor’s Office and the Commission. The New Directive also contains rules on establishing jurisdiction which are envisaged to foster cross-border co-operation.

Enhanced supports and resources

Member States are required to ensure that national authorities involved in the investigation, prosecution and adjudication of the crimes under the New Directive are sufficiently resourced and that specialised and regular training is provided to all parties involved in the enforcement chain at a domestic level. Member States are also required to establish and publish national strategies on combatting environmental crime.

Increased penalties

The New Directive provides for penalties for both legal persons and natural persons and imposes an obligation on Member States to provide for “effective, proportionate and dissuasive criminal penalties”. Penalties for natural persons include 10 years in prison for the most serious intentional crimes covered by the New Directive, 8 years for qualified offences, 5 years for most offences committed with serious negligence resulting in death, and most offences committed intentionally with no resulting death, and 3 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.

Member States are also required to ensure that non-criminal penalties are provided for including obligations to restore or pay compensation for damage to the environment; fines; disqualification from holding certain positions and publications of details of convicted persons in certain exceptional circumstances.

The New Directive also requires Member States to take necessary measures to trace, freeze and confiscate the proceeds of crimes covered by the New Directive.

Looking Ahead          

Certain MEPs have advocated for an extension of the mandate of the European Public Prosecutor’s Office (EPPO) to encompass environmental crime. They argue that the ability of the EU to investigate and prosecute environmental crime will become increasingly important given the progressively stricter green agenda being pursued at an EU level. EPPO only started operation in June 2021 and currently deals with crimes against the financial interests of the EU including fraud, corruption and money laundering. It remains to be seen whether EPPO’s mandate will be expanded to include environmental crime in the future.

As set out above, national transposing legislation will be required to be enacted within the next two years and these measures will be awaited with interest. The effectiveness, or otherwise, of the New Directive will then fall to be assessed once the new rules have been enacted throughout the various Member States and enforcement of the environmental crimes under the New Directive gets underway.

For more information in relation to this topic, please contact Rachel Kemp, Knowledge Lawyer, or Jason Milne, Partner.

Date published: 27 March 2024