Introduction of strong sanctions for Environmental Crime through new Directive

Environmental crime, a lucrative and expanding business, is considered a serious, organised criminal activity both globally and within the European Union (EU). According to Europol, environmental crime encompasses activities that violate environmental legislation and pose significant harm or risk to the environment and human health.

Directive 2008/99/EC, known as the 2008 Directive, currently serves as the primary law addressing environmental crime within the EU. The objective of this directive was to ensure more effective environmental protection by harmonising criminal legislation and establishing strong sanctions for violations.

In 2020, the European Commission conducted an evaluation of the 2008 Directive and found that while some progress had been made, significant gaps remained. Major deficiencies were identified in all Member States and at all levels of the law enforcement chain, undermining the effectiveness of criminal environmental law.

As a response to these findings and due to an increased focus on organised crime, including environmental crime, the European Commission proposed a revision of the 2008 Directive on December 15, 2021. This proposal was politically agreed upon by the European Parliament and the Council on November 16, 2023. Subsequently, the Directive on Protection of the Environment through Criminal Law, also known as the New Directive, was formally adopted by the Council on March 26, 2024.

The New Directive:

The New Directive is set to be published shortly in the Official Journal and will come into force twenty days after its publication. Member States will then have two years to transpose the rules into domestic law.

Key Changes and Features:

1.        Increased List of Crimes

The New Directive expands the list of crimes from 9 to 18, including offenses such as:

·      Discharge or emission of materials or energy into air, soil, or water causing death, serious injury, or substantial environmental damage.

·      Waste offenses

·      Illegal ship recycling

·      Iillegal trade in timber, wildlife, and plant species

·      Serious breaches of EU chemicals legislation

2.        Offense Comparable to Ecocide

The New Directive introduces a 'qualified offense' for crimes resulting in wide-scale, irreversible, or long-lasting environmental damage, comparable to 'ecocide.'

3.        Clarification of Legal Terms

Certain key terms are clarified to ensure a uniform framework for environmental crimes throughout the EU.

4.        Enhanced Cross-Border Cooperation

The New Directive promotes enhanced cooperation between Member States and various European bodies and agencies, including Eurojust, Europol, the European Public Prosecutor’s Office, and the Commission. It also contains rules on establishing jurisdiction.

5.        Enhanced Supports and Resources

Member States are required to ensure that national authorities involved in investigating, prosecuting, and adjudicating environmental crimes are adequately resourced. National strategies for combating environmental crime must be established and published.

6.        Increased Penalties

The New Directive introduces penalties for both legal and natural persons, ensuring they are effective, proportionate, and dissuasive.

Penalties for natural persons include up to 10 years in prison for the most serious intentional crimes, and fines for legal persons can be up to 3% to 5% of the company's annual worldwide turnover or fixed amounts of €24 million or €40 million.

The New Directive marks a significant step towards strengthening the legal framework for combating environmental crime within the EU. The effectiveness of the New Directive will be assessed once it is enacted throughout the various Member States and enforcement of environmental crimes begins. There are ongoing discussions about expanding the mandate of the European Public Prosecutor’s Office (EPPO) to include environmental crime, reflecting the increasing importance of investigating and prosecuting environmental offenses at the EU level.

About the author: Sinéad Leahy is a trainee solicitor with Dermot G. O’Donovan Solicitors.