EU Commission proposes to strengthen criminal law to protect the environment | White & Case LLP

On December 15, 2021, the European Commission adopted a proposal for a new EU Directive1 It aims to tighten compliance with EU environmental laws through the introduction of new criminal offenses, increased penalties and better implementation (“Draft Directive”). If adopted, member states will have to ensure that their criminal laws cascade a series of environmental crimes, apply minimum penalties and additional penalties, and allocate sufficient resources to ensure effective implementation. This initiative, along with other recent laws such as the EU Whistleblower Directive,2 Emphasizes the importance of strong and effective regulatory compliance systems in the European Union.


Among the actions set forth in the 2019 Commission’s Green Deal3 It was a commitment to step up efforts against environmental crime. This objective is reinforced by its assessment of the current Directive 2008/99/EC on the protection of the environment through criminal law (“current routingThis assessment concluded that the practical impact of the current directive is limited because (1) convictions in member states for environmental crimes remain low, (2) penalties are too low to be dissuasive, and (3) cross-border cooperation is unsatisfactory.

Citing EU laws on illegal timber, the commission also noted that the types of penalties and maximum penalties vary widely across member states, and in many cases are too low to have a deterrent effect on illegal behaviour. He noted that disparities in sanctions and enforcement across member states undermine equal opportunity by putting operators who strictly comply with requirements at a disadvantage.4

The draft directive will: (i) update the scope of the existing directive; (2) Clarify existing definitions of crimes; (3) coordinating the types and levels of punishments for environmental crimes; (iv) improving cross-border cooperation; (5) ensuring better data collection and sharing of statistics; (6) Improving the effectiveness of national enforcement chains.5

Guidance Project Content

New environmental crimes and clarification of definitions of existing crimes

While the current directive only lists nine environmental offenses, the draft directive lists 18. new environmental crimes Includes: (i) the placing on the market of incompatible products or materials that cause or are likely to cause injury, death or significant environmental harm; (ii) illegal recycling of ships; (3) illegal extraction of water; (4) illegal timber trade; or (v) the illegal introduction or spread of invasive alien species.6

If the separate proposal by the Commission to replace its illegal timber legislation with a broader ban on the marketing of certain goods and products related to deforestation is adopted, unless it is confirmed that they are “deforestation free”,7 This would also be covered and subject to criminal penalties.

Guidance project also Shows Existing offenses, for example, with explicit references in the crime definition to other EU directives on the illegal management of waste, radioactive material or a sample of wild animals or plant species.8

Importantly, the draft guidance provides guidance for the concepts of: (i) “significant harm”;9 (ii) “An activity likely to cause damage to the quality of air, soil, water, animals or plants”;10 and (3) “a negligible or insignificant amount”11 In order to “promote the coherent application of [Draft Directive] and a more effective fight against environmental crime as well as providing legal certainty.”12

It is worth noting that the draft directive does not introduce the crime of ecocide, which in its January 2021 resolution encouraged the European Parliament to recognize as an international crime under the Rome Statute of the International Criminal Court.

Tougher penalties

Article 5 of the draft directive proposes setting limits for maximum penalties For natural persons, with the possibility of Member States implementing more stringent penalties. For crimes that cause or are likely to cause death or serious injury, it sets a maximum term of ten years imprisonment. If the crime did not cause, or is not likely to cause death or serious injury, the maximum penalty of six years imprisonment for 13 out of 18 offenses, as for the remaining five offenses, it is limited to four years. Article 5 also suggests that natural persons may also be subject to additional penalties or measures, such as fines and exceptions.

For legal persons, Article 7 of the draft directive requires penalties to include: criminal and non-criminal fines; the obligation to return the environment to its previous condition within a certain period of time; Exclusion from entitlement to public assistance or participation in procurement procedures; withdrawal of permits or licenses; Close institutions and commit to installing due diligence plans.

The draft directive would require the laws of member states to reflect:

  • ten Aggravating factorsAnd13 Such as: (i) the offense has caused irreversible or long-term destruction or damage to an ecosystem; (ii) the offense resulted or was expected to generate substantial financial benefits or avoid substantial expenses; or (iii) the perpetrator did not cooperate with or obstruct the investigation in any way, and
  • two extenuating circumstancesAnd14 Being the culprit: (1) restores nature to its previous state; and (2) it provides information that authorities cannot otherwise obtain to identify other criminals or find evidence.

Article 4 also states that any attempt 1515 Of the 18 offenses listed in the draft directive, they should be punished as a criminal offence. As in the current directive, abetting, aiding and abetting the commission of any of the offenses listed in the draft directive shall remain criminal.

Finally, Article 10 of the draft directive adds that proceeds derived from environmental offenses, as well as instruments used for this purpose, may be frozen or confiscation According to Directive 2014/42/EU.16

Strengthening enforcement powers

In order to speed up the enforcement of environmental crimes, the draft directive will introduce several provisions to make investigations and actions more coordinated and effective. Among other things, these can provide:

  • minimum Limitations At least ten years, six years and four years from the time the offense was committed for offenses punishable by a maximum penalty of ten years, six years and four years, respectively17
  • protect people Reports Environmental crimes according to the EU whistleblower directive18
  • Requirement that national enforcement authorities have a sufficient number of qualified personnel and sufficient resources to carry out their mission,19 Receive proper training20 and access to investigative tools21
  • Minimum requirements to ensure coordination and cooperation between the competent authorities of the Member States through the establishment of mechanisms for the exchange of priorities, strategic objectives, individual investigations or best practices22
  • Develop a national strategy by each member state23
  • Better data and statistics collection24

Next steps

The draft directive will follow the “ordinary legislative procedure”, which requires the approval of the European Council and Parliament. This process may entail amending the draft guidance, and usually takes about two years.

Once approved, member states will have 18 months to convert the content of the draft directive into national law.

1 Proposal for a directive of the European Parliament and of the European Council on the protection of the environment through criminal law and replacing Directive 2008/99/EC, 15.12.2021 COM (2021) 851 final.
2 Directive 2019/1937 of October 23, 2019 on the protection of persons who report violations of Union law.
3 Commission Letter of 11 December 2019, “European Green Deal”, COM (2019) 640 Final.
4 Proposal for Direction, p. 6.
5 Executive Summary of Impact Assessment Report, 15 December 2021, p. 1.
6 Art. 3 (1) (b), (g), (k), (n), (p) of the draft directive.
7 White & Case customer alert dated November 22, 2021 “EU targets global deforestation.”
8 Art. 3 (1) (e), (j), (l) and (m) of the draft directive.
9 Art. 3 (3) of the draft directive.
10 Art. 3 (4) of the draft directive.
11 Art. 3 (5) of the draft directive.
12 Recital 11 of the draft directive.
13 art. 8 of the draft guidance.
14 art. 9 of the draft directive.
15 Note that in addition to the offenses referred to in Art. 3 (1) Points (g), (l) and (o), this also does not apply to the offense referred to in Article. 3 (1) point (p) (i).
16 Directive 2014/42/EU of the European Parliament and of the European Council of 3 April 2014 on the freezing and confiscation of instruments and proceeds of crime in the European Union.
17 art. 11 (2) of the draft directive.
18 art. 13 of the draft directive.
19 Art. 16 of the draft directive.
20 art. 17 of the draft directive.
21 art. 18 of the draft directive.
22 art. 19 of the draft directive.
23 art. 20 of the draft guidance.
24 art. 21 of the draft directive.

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