The Environmental Crime Directive
Directive 2008/99/EC on the protection of the environment through criminal law (the Directive) was adopted on 24 October 2008. Member States had to transpose the Directive into national law by December 2010.
The Directive aims at supplementing existing administrative sanction system with criminal law penalties to strengthen compliance with the laws for the protection of the environment. Criminal penalties demonstrate a social disapproval of a qualitatively different nature compared to administrative penalties or a compensation mechanism under civil law.
Content of the Directive
The Directive stipulates criminalisation of serious violations of 72 environmental pieces of legislation in the environmental field and requires effective, proportionate and dissuasive sanctions.
More precisely, the Directive:
- defines environmental offences that Member States must criminalise the most serious infringements of rules aiming at protecting the environment,
- requires liability of both natural and legal persons. The liability of legal persons can be of criminal or non-criminal nature.
- requires Member States to ensure criminal liability also with regard to inciting, aiding and abetting such offenses;
- seeks to approximate criminal sanctions levels by requiring effective, proportionate and dissuasive criminal penalties for environmental crimes.
The Directive only sets a minimum standard of environmental protection through criminal law to be adopted by Member States. Member States are free to maintain or introduce more stringent protective measures.
The Directive does not contain more detailed requirements on the types and levels of the penalties. It does not lay down measures concerning the procedural part of criminal law nor does it touch upon the powers of prosecutors and judges.
The evaluation of the Directive
DG Justice and Consumers has evaluated the Directive during 2019 and 2020 and published its results in October 2020.
It was found that the Directive did not have much effect in practice. The number of environmental crime cases successfully investigated and sentenced has remained at a very low level. Sanction levels imposed were often too low to be dissuasive and cross-border cooperation was insufficient. There are also considerable enforcement gaps in all Member States and at all levels of the enforcement chain (police, prosecution and criminal courts). Moreover, the lack of coordination between the administrative and criminal law enforcement and sanctioning tracks often hinders effectiveness. It was also found that the lack of reliable, accurate and complete statistical data on environmental crime proceedings in the Member States did not only hamper the Commission’s evaluation but also prevent national policy-makers and practitioners from monitoring the effectiveness of their measures.
Revision of the Directive
Based on the results of the evaluation, the Commission decided to revise the Directive. A legislative proposal to replace the Directive was adopted on 15 December 2021. The proposal addresses six objectives aiming to improve the effectiveness of criminal investigations and prosecution.
- Clarify terms used in the definitions of environmental crime that leave too much room for interpretation (e.g. ‘substantial damage’).
- Update the Directive by bringing new environmental crime sectors under its scope.
- Define sanction types and -levels for environmental crime
- Foster cross-border investigation and prosecution
- Improve informed decision-making on environmental crime through improved collection and dissemination of statistical data according to common standards in all Member States.
- Improve the l effectiveness of national enforcement chains
The proposal is accompanied by a Communication. Council negotiations have started in January 2022.