EU Environmental Crime Directive
Revision of the Directive
In December 2021, the Commission proposed a revision of the Environmental Crime Directive, and the proposal was successfully adopted in 2024. The 2024 Environmental Crime Directive (2024/1203) aims to elucidate some of the pivotal yet ambiguous terms and concepts, notwithstanding their thorough integration and application within the respective legal systems of the Member States. The Directive incorporates an updated catalogue of environmental crime offences, harmonised types and levels of penalties, measures to fortify international investigation and prosecution efforts, advancements in the collection of statistical data, and initiatives designed to enhance national enforcement chains.
The Directive includes a comprehensive up-to-date list of conducts to be established as criminal offences in the national legal order of Member States. Compared to the 2008 Directive, several new offence categories have been introduced, such as:
- illegal timber trade;;
- illegal ship recycling;
- illegal water abstraction from ground water or surface water;
- serious breaches of EU chemicals legislation;
- serious breaches related to dealing with fluorinated greenhouse gases.
In addition, Member States are obliged to establish as qualified offences cases where particularly serious damage to and destruction of the environment is caused by committing one of the offences listed in the Directive. These qualified offences shall be subject to more severe penalties for natural and legal persons than the ones for the other offences.
The primary penalties for criminal offences encompass imprisonment and fines. The Directive acknowledges that, in specific circumstances, additional penalties and measures may prove appropriate and necessary. The revised framework introduces ancillary penalties, such as permit revocation, disqualifications, and exclusion from accessing public funding. Notably, the Directive accords particular significance to the restoration of the damaged environment [Art. 5(3)(a), Art. 7(2)(a)].
For intentional offences resulting in a person's death, the maximum prison sentence shall be no less than ten years. Member States retain the discretion to establish even harsher penalties within their national legislation. Other offences will incur imprisonment of up to five years. The maximum prison term for aggravated offences will amount to a minimum of eight years. For companies, the fines will be no less than 5% of their total global turnover for the most serious offences, or alternatively €40 million. For all other offences, the maximum fine will be at least 3% of turnover or alternatively €24 million [Art. 7(3)].
Regarding penalties for legal persons, the new Directive mirrors the 2008 Directive by acknowledging national legal traditions. It grants Member States the flexibility to introduce penalties for legal persons that can also be non-criminal in nature [Art. 7(1)]. The revision, therefore, recognises the implementation of a "toolbox approach" in many countries, signifying the deployment of a diverse array of remedies. This fosters a comprehensive and harmonised strategy that transcends the efficacy of the new approach and encompasses a broader spectrum of environmental indicators.
To guarantee the effectiveness, proportionality, and appropriateness of punishment, the 2024 Directive establishes mitigating and aggravating circumstances. Aggravating circumstances encompass, inter alia, the severity of the environmental damage inflicted, the involvement of organised crime, and the illegal profits generated or anticipated [Art. 8]. Conversely, mitigating circumstances include, inter alia, providing authorities with valuable information they would not have otherwise obtained [Art. 9].
The 2024 Directive also mandates Member States to provide for adequate training, resources, cooperation, communication, and information sharing amongst enforcement agencies [Art. 18, 19]. Furthermore, it bolsters the role of the public by incorporating measures to support and assist individuals who report environmental offences and cooperate with enforcement efforts. Additionally, under specific conditions, the Directive facilitates the public's qualified presence in proceedings linked to the prosecution of environmental crimes, subject to the regulations established by each Member State [Art. 14, 15].
A crucial aspect of the 2024 Directive involves the requirement for Member States to establish and publish national strategies for combating environmental criminal offences. These strategies necessitate a comprehensive analysis of the current state of affairs. In this vein, the Commission will gather statistical data on, amongst other elements, the types and levels of penalties imposed [Art. 22(2)e)]. Subsequently, Member States will be obligated to publish a consolidated review of these statistics at least every three years [Art. 22(3)].