By Josepha Close, PhD in International Law
Part 1 – Criminalising and sanctioning environmental offences
The revised directive on the protection of the environment through criminal law entered into force on 21 May 2024 in the European Union (EU), placing its member states under a two-year transposition obligation. The objective of this legal instrument is to ensure a more effective prevention and repression of environmental crime, the fourth largest criminal activity in the world. This article analyses the content of the revised directive and some of the changes introduced, both in terms of improving the law and ensuring that it is applied on the ground. The first part examines environmental offences and mandatory sanction levels under EU law; it also questions whether the directive marks a change of approach in environmental protection. The second part focuses on ecocide-level offences and the critical issue of enforcement.
The original Environmental Crime Directive
The new directive replaces Directive 2008/99/EC adopted on 19 November 2008, which created nine environmental offences under EU law including wild-life trafficking, pollution and waste crimes.[1] It required EU member states to criminalise these offences and ensure that persons responsible are punished by ‘effective, proportionate and dissuasive criminal penalties.’[2] Yet, it fell short of establishing specific sanction levels.[3]
The 2008 directive permitted the creation of a common legal framework for environmental crimes in the EU. However, it largely failed to improve the prevention and repression of these crimes. According to the European Commission in its 2021 revision proposal, ‘the Directive did not have much effect on the ground: over the past 10 years the number of environmental crime cases successfully investigated and sentenced remained very low.’[4]
A 2021 report of the Commission evaluating the Environmental Crime Directive identified a series of ‘major deficiencies in all Member States and at all levels of the law enforcement chain that prevent criminal environmental law from being effective’.[5] One such deficiency is that sanction levels are low, undermining the deterrent effect of the law and failing to reflect the scale and impact of environmental crimes.[6] Owing to this low gravity threshold, the investigation and prosecution of environmental offences is not prioritised and law-enforcement authorities are not allocated sufficient resources to tackle this highly technical and complex form of criminaliy.[7]
The revised Environmental Crime Directive
Directive 2024/1203 (‘the directive’) was adopted on 11 April 2024 following a lengthy legislative process.[8] It provides for minimum rules regarding the definition and sanctioning of an expanded list of twenty – instead of nine – environmental offences.[9] Member states must establish jurisdiction over these twenty offences when they are committed on their territory or when the offender is one of their nationals.[10] As the directive provides only minimum rules, member states are free to adopt more stringent norms to achieve its objective of ensuring a better protection of the enviroment.[11]
Rather than establishing an autonomous crime against the environment of general application, the new directive maintains the administrative dependence of environmental crime by criminalising a list of conducts corresponding to serious infringements of sectoral legislation. It must therefore be read in conjunction with a myriad pieces of sectoral legislation, which certainly does not improve the clarity and accessibility of EU environmental law. In its impact assessment of 2021, the Commission considered that an autonomous environmental crime ‘could increase the level of environmental protection, but would mean a paradigm shift in loosening the administrative dependence of environmental crime, which has been the predominant approach in the EU.’[12]
The twenty environmental crimes object of the directive are enumerated in article 3(2) – points (a) to (t). Member states must criminalise these conducts when they are unlawful and committed with the requisite mental element, ie intent or serious negligence.[13] Article 3(1) defines unlawful conducts as those infringing EU environmental law or national laws and decisions giving effect to such law.[14] This broadly-conceived unlawfulness criterion tied to EU environmental policy marks a progress compared to the 2008 directive by ensuring that the revision adapts to the evolution of EU environmental law.[15]
Crimes of conduct and crimes of result
Environmental crimes listed in article 3(2) are either crimes of conduct or crimes of result. Crimes of conduct refer to acts and omissions that are prohibited regardless of their result.[16] Crimes of result, on the other hand, refer to lawful conducts that are criminalised only to the extent that they cause or are likely to cause a prohibited result.
Crimes of conduct under the directive generally refer to the infringement of a specific EU law prohibition, like the interdiction to produce, commercialise, use or release ozone-depleting substances and fluorinated greenhouse gases.[17] Alternatively, some conduct crimes involve a failure to comply with applicable legal requirements when carrying out specific activities likely to have significant effects on the environment, such as the recycling of ships or the treatment of hazardous waste.[18] In most cases, the directive further specifies a ‘quantitative threshold’ which needs to be crossed for criminal responsibility to arise, generally phrased in terms of a ‘non-negligible quantity’.[19] For example, article 3(2)(o) prohibits the trade of specimens of protected species ‘except where such conduct concerns a negligible quantity of such specimens’.
By contrast with conduct crimes, crimes of result are criminalised only to the extent that they cause a specific result or involve a significant risk of causing this result. The directive refers to this as a ‘qualitative threshold’ requiring the criminalisation of conducts which cause or are likely to cause one of the following results:
- the death of, or serious injury to, any person;
- substantial damage to the quality of air, soil or water;
- substantial damage to an ecosystem, animals or plants.[20]
For example, ‘the manufacture, placing or making available on the market, export or use’ of certain chemical substances under article 3(2)(c) does not entail criminal liability per se but only in so far as it causes or is likely to cause ‘the death of, or serious injury to, any person or substantial damage to the quality of air, soil or water, or substantial damage to an ecosystem, animals or plants.’[21]
The first category of prohibited results (death of, or serious injury to, any person) is traditionally human-centred. The second and third are more ground-breaking as they concern damage to ecosystems, animals and plants or to the quality of air, soil or water, without requiring direct harm to any person. While these types of damage may be qualified as ecocentric, they will often have direct or indirect implications for human health.[22]
To limit the reach of ecocentric offences, the definitions of result crimes specify that environmental damage must be ‘substantial’ in order to give rise to criminal liability.[23] Pursuant to article 3(6), this should be determined on the basis of factors including the extent of the damage, its reversibility or long-lasting character. Where the damage is substantial, widespread and long-lasting or irreversible, it may fall under the definition of a ‘qualified criminal offence’ under article 3(3) and entail a more severe sanction. The preamble explains that qualified offences corespond to the crime of ecocide as developed in international law and some national legal systems.[24]
The requirement of unlawfulness will also limit the reach of ecocentric offences. In practice this means that, as long as operators comply with the conditions of a permit, their activities will not be considered unlawful even though they cause substantial environmental harm. In other words, environmental criminal law is dependent on administrative law and the discretion of administrative authorities. The new directive has, however, introduced a departure from this principle which has been described as ‘revolutionary’ by EU law experts.[25] According to the last sub-paragraph of article 3(1), authorised conducts may be deemed unlawful if the permit was obtained through fraud, corruption, extortion or coercion or ‘if such authorisation is in manifest breach of relevant substantive legal requirements.’ By enabling criminal liability for conducts complying with a permit, this last sentence provides some autonomy to environmental criminal law and reinforces the duty of public authorities to ensure that permits comply with relevant legal norms. Indeed, the preamble confirms that:
‘[T]he fact that the authorisation is lawful does not preclude criminal proceedings against the holder of the authorisation where that holder does not comply with all obligations of the authorisation or with other relevant legal obligations not covered by the authorisation.’[26]
Sanction levels
The directive establishes two different sanction regimes for environmental crimes depending on whether the offender is a natural person or a legal person.[27] Within each category, it makes further distinctions based on criteria including the level of culpability of the offender (whether the offence was intentional or reckless) and the type of damage caused.
With respect to natural persons, article 5 provides that environmental offences committed intentionally must be punished by a maximum term of imprisonment of at least:
- 10 years if they cause the death of any person;
- 8 years for ecocide-level offences;
- 5 years as a default rule;
- 3 years for purely ecocentric offences (m, n, o, q and r).[28]
With regard to offences carried out with serious negligence, member states are required to criminalise them (in most cases) but the directive does not provide for minimum sanction levels, thus leaving the matter to the discretion of national authorities.[29]
The question of the liability of legal persons is critical for the purpose of deterring environmental crime since, according to the EU Commission, legal entities are responsible for up to 75% of environmental crimes.[30] However, significant disparities exist between member states regarding the penalties applicable to legal persons.[31] Some member states do not recognise the criminal liability of companies at all, the only applicable sanctions being administrative in nature.[32] The EU legislator has controversially chosen to accomodate these member states by allowing them to opt for ‘non-criminal’ penalties with respect to legal persons.[33]
According to article 6, companies should be held liable where an environmental offence was committed for their benefit in two types of circumstances: when the offence was committed by (a) a person in a leading position within the company or (b) a person subject to the company’s authority when the commission of the offence was enabled by a lack of supervision or control by a person in category (a). While the directive requires that sanctions include fines in both scenarios, it only sets minimum levels of maximum fines for offences committed in scenario (a).[34] Although there are no mandatory sanction levels in scenario (b), member states must ensure that the fines imposed are ‘effective, dissuasive and proportionate’ taking into account the gravity of the conduct and the personal, financial and other circumstances of the company.[35]
Where an environmental crime was committed directly by a company’s director, article 7(3) requires that the maximum level of the fine should not be less than 5 % of the company’s total worldwide turnover in the preceding business year or, alternatively, 40 million euros.[36] These fine levels have been criticised by the European Environmental Bureau for being too low (lower than for breaches of competition law) thus showing that EU law values the internal market more than the environment.
Still, the directive provides several means to amplify the effect of sanctions and tailor them to the crime. First, pursuant to the so-called ‘toolbox approach’, it introduces a series of accessory sanctions, including an obligation to restore the environment or compensate irreversible damages.[37] Second, article 10 requires member states to enable the confiscation of criminal proceeds in all cases. Third, article 8 provides a list of aggravating circumstances, including the substantial financial benefits expected or generated by the offence. Finally, the directive requires that legal persons responsible for a qualified criminal offence are punished by more severe penalties than those applicable for other offences, thus pemitting to raise the maximum fine levels specified in article 7(3).[38]
Discussion
The directive has both anthropocentric and ecocentric aspects. The hierarchical value system it establishes in terms of sanction levels – ranking human death as graver than the devastation of an entire ecosystem – is clearly human-centred.[39] Yet, the approach of the directive may be seen as ecocentric in its essence since its intended effect is to institute (or reaffirm), through the threat of criminal sanctions, a duty of care and prudence towards nature (specifically the air, water and soil, flora, fauna and ecosystems) owed by individuals as well as legal entities. On a symbolic level, the directive also marks a break with the absolute dependence of environmental criminal law on administrative law. On these bases, it may be seen as a stepping stone towards a paradigm shift in the legal apprehension and protection of nature. However, its impact on the ground will thoroughly depend on implementation in each member state.
Photo by Guillaume Périgois on Unsplash
[1] Directive 2008/99/EC on the protection of the environment through criminal law (adopted 19 November 2008, entered into force 26 December 2008) (‘the 2008 directive’).
[2] Article 5 of the 2008 directive (n 1).
[3] Directive 2008/99/EC was adopted prior to the entry into force of the Lisbon Treaty on 1 December 2009, which strengthened the EU competence for criminal law measures in the field of environmental protection, including the definition of sanction types and levels.
[4] European Commission, ‘Proposal for a directive on the protection of the environment through criminal law and replacing Directive 2008/99/EC’ (15 December 2021) COM(2021) 851 final (‘Commission’s proposal, 2021’) 1.
[5] European Commission staff working document, ‘Evaluation of Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law’ (28 October 2020) SWD (2020) 259 final (‘Commission’s evaluation report’) 33.
[6] Commission’s proposal 2021 (n 4) 8; Commission’s evaluation report (n 5) 33-34 and 47-49.
[7] Ibid. See also Commission staff working document impact assessment report, Accompanying the document ‘Proposal for a directive on the protection of the environment through criminal law and replacing Directive 2008/99/EC’ (15 December 2021) SWD(2021) 465 final/2 (Commission’s impact assessment) 66-69.
[8] Directive 2024/1203 on the protection of the environment through criminal law and replacing Directives 2008/99/EC and 2009/123/EC (adopted 11 April 2024, entered into force 20 May 2024) (‘the directive’). The legislative process started with the Commission’s proposal of 2021 (n 4).
[9] Article 1 and 3 of the directive (n 8).
[10] Member states may also extend their jurisdiction over offences committed abroad in certain circumstances, including when the offence was committed for the benefit of a legal person established in their territory, see article 12(2) of the directive (n 8).
[11] Preambular para 12 of the directive (n 8).
[12] Commission’s impact assessment (n 7) 44. This view was apparently influenced by business stakeholders who argued that creating an autonomous crime ‘could increase the business risks for enterprises and result in higher costs for due diligence and legal capacity’, see p 44.
[13] See article 3(1) and 3(4) of the directive (n 8).
[14] Article 3(1) refers to ‘Union law which contributes to pursuit of one of the objectives of the Union’s policy on the environment as set out in Article 191(1) TFEU’, ie: ‘preserving, protecting and improving the quality of the environment — protecting human health — prudent and rational utilisation of natural resources — promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.’ See preambular para 9 of the directive (n 8).
[15] Under article 2(a) of the 2008 directive (n 1), unlawful conducts corresponded to those infringing sectoral legislation listed in the annexes to the directive.
[16] See preambular para 7 of the directive (n 8).
[17] See article 3(2)(s) and (t) of the directive. See also article 3(2)(g), (n), (o), (p) and (q).
[18] See article 3(2)(f)(i) and (h).
[19] See article 3(2) points (f)(i), (g), (n), (o) and (p). Article 3(8) provides a list of factors to take into account when assessing whether a quantity is negligible or not.
[20] See preambular para 13 of the directive (n 8). Some result crimes require that the conduct causing (or likely to cause) a prohibited result also breaches specific legal requirements, such as the obligation to conduct an environmental impact assessment mentioned in article 3(2)(e).
[21] The prohibited result is phrased more precisely in some result crimes referring to a specific component of the environment, such as article 3(2)(m) prohibiting the abstraction of water which ‘causes or is likely to cause substantial damage to the ecological status or ecological potential of surface water bodies or to the quantitative status of groundwater bodies’.
[22] On the ‘anthropocentric’ and ‘ecocentric’ articulations of environmental law, see Vito De Lucia, ‘Beyond anthropocentrism and ecocentrism: a biopolitical reading of environmental law’, Journal of Human Rights and the Environment (8:2) (September 2017) 181.
[23] Article 3(2) of the directive (n 8).
[24] Preambular para 21. On the international crime of ecocide, see https://ecocidelaw.com/
[25] See Michael Faure, ‘Une nouvelle directive relative à la protection de l’environnement par le droit pénal’ Dalloz AJ Pénal 05/2024, 243.
[26] Preambular para 10 (italics added).
[27] See articles 5 and 7.
[28] The offences on the lowest echelon are: (m) the abstraction of water; (n and o) wildlife offences; (q) the deterioration of a habitat or disturbance of protected animal species within a protected site; (r) the introduction of invasive alien species, see article 5(2)(e).
[29] See article 2(4).
[30] Commission’s evaluation report (n 5) 36.
[31] Commission’s evaluation report (n 5) 39-40.
[32] Bulgaria, Germany, Greece, Latvia and Sweden do not recognise the criminal liability of legal persons, see the evaluation report (n 5) 39.
[33] See article 7(1)-(2) and preambular para 33.
[34] See article 7(2) and (3).
[35] See article 7(1) and preambular para 33.
[36] This is lowered to 3% of the company’s worldwide turnover or 24 million euros for offences considered less serious (m, n, o, q and r), see article 7(3)(b).
[37] Articles 5(3) and 7(2). See Michael Faure, ‘The Development of Environmental Criminal Law in the EU and its Member States’ Review of European Community & International Environmental Law 26(2) 2017, 139.
[38] See preambular para 37 and article 7(4).
[39] See article 5(2)(a) and (b) in light of article 3(3): the destruction of, or widespread and substantial damage which is either irreversible or long-lasting to, an ecosystem of considerable size or environmental value (qualified offence) is punishable by a maximum prison term of at least 8 years while ‘ordinary’ prohibited offences carry 10 years when they cause the death of any person.