Protecting the environment through criminal law

KEY POINTS

Criminal offences

The directive mandates that Member States criminalise intentional acts that harm the environment, including in some cases those committed with at least serious negligence. These include:

• pollution: intentionally causing or likely causing serious harm or death through discharging, emitting or introducing a quantity of materials or substances, energy or ionising radiation into the air, soil or water;
• product-related offences: placing products on the market that are in breach of a prohibition or another requirement aimed at protecting the environment, resulting in substantial damage to the environment;
• chemical offences: manufacturing, placing or making available on the market, exporting or using substances regulated in EU regulations, such as those on chemicals, leading to serious ecological or health impacts;
• mercury offences: violating laws through the manufacture, use, storage, import or export of mercury, mercury compounds, mixtures of mercury or mercury-added products;
• the unlawful execution of projects: executing projects within the meaning of the environmental impact assessment directive, where such conduct is carried out without development consent and causes or is likely to cause substantial damage to the environment;
• the unlawful management of waste and illegal shipment of waste: unlawfully collecting, transporting or treating waste, including hazardous waste, supervising such operations and managing the aftercare of disposal sites, along with illegally shipping waste;
• illegal ship recycling and ship-source pollution: breaching the obligation to recycle ships at ship-recycling facilities included on the European List and discharging pollutants from ships that adversely affect water quality or marine ecosystems;
• dangerous installations: unlawfully operating or closing an installation in which a dangerous activity is carried out or in which dangerous substances or mixtures are stored or used, or unlawfully constructing, operating and dismantling an off-shore installation, risking significant harm or ecological damage;
• nuclear-related offences: unlawfully handling radioactive material or radioactive substances;
• the unlawful abstraction of water: illegally abstracting surface water or groundwater;
• wildlife offences: killing, destroying, taking, possessing, offering for sale, selling or illegally trading a protected species recognised under the Convention on Trade in Endangered Species of Wild Fauna and Flora regulation (CITES), causing the deterioration of habitats within a protected site or committing timber-trade offences;
• invasive species: bringing into the EU territory, placing on the market, keeping, breeding, transporting, using, exchanging, permitting to reproduce, growing, cultivating, releasing into the environment or spreading invasive alien species of EU concern;
• ozone-depleting substances and fluorinated gases: unlawfully handling substances that deplete the ozone layer or fluorinated gases.

Qualified criminal offences. More severe penalties apply if the unlawful acts listed above cause irreversible or long-lasting damage to an ecosystem of considerable size or substantially harm air, soil or water quality.

Serious negligence. Activities that result in substantial environmental damage due to serious negligence are also criminalised under the directive.

Member States must ensure that inciting or aiding and abetting these crimes is also punishable as a criminal offence. Additionally, an attempt to commit an offence is punishable for most of the crimes covered by the directive.

Penalties for individuals and legal persons

• In severity and scope, the directive mandates effective, proportionate and dissuasive penalties.
• Individuals face penalties including imprisonment for severe offences, particularly those resulting in death or significant environmental damage. They may also face accessory penalties or measures, such as fines or disqualification or the obligation to restore the environment or pay compensation for the damage they have caused to the environment.
• Legal persons (entities recognised in national law, but excluding state bodies and international organisations) can be held liable for crimes committed for their benefit by individuals in leading positions, with penalties including significant fines and accessory penalties or measures, including operational restrictions and compulsory remedial measures.
• Aggravating circumstances include the scale of damage, involvement in organised crime and previous convictions.
• Mitigating circumstances include efforts to restore the environment and cooperation with the legal authorities.

Jurisdiction and enforcement

• Jurisdiction. Member States have jurisdiction over offences committed within their territories, on their registered vessels or aircraft or when the offender is a national.
• Cooperation between Member States and other competent bodies, institutions and authorities. The directive requires collaboration among Member States and with EU bodies such as the European Union Agency for Criminal Justice (Eurojust) and the European Public Prosecutor’s Office within their respective jurisdictions to tackle cross-border environmental crimes effectively. In addition, the directive includes a set of rules that will help to considerably improve the effectiveness of all actors along the enforcement chain to combat environmental crime. This includes obligations for ensuring adequate resources and investigative tools, regular specialised training and the establishment of national strategies on combating environmental crime. National strategies must be developed and implemented by May 2027, with regular updates and evaluations based on a risk-analysis approach.

Data collection and reporting

The directive mandates that Member States collect and publish data on environmental crimes to assess the effectiveness of the implemented measures.

The directive also includes provisions on:

• freezing and confiscation, including measures to trace and confiscate the means of and proceeds from crimes;
• limitation periods, designed to ensure timely prosecution and enforcement of penalties;
• investigative tools to be used in prosecuting environmental crimes;
• resources to be ensured for national authorities to be able to perform their functions effectively related to the implementation of this directive;
• training to be provided to judges, prosecutors, the police and judicial staff and to competent authorities’ staff involved in criminal proceedings and investigations with regard to the objectives of this directive;
• recognition of the role of civil society and its procedural rights, including rights for affected individuals and non-governmental organisations, to allow them to participate in legal proceedings and access judicial decisions.

Implementation and review

• Deadlines are set for transposing the directive into national law and for Member States to report on implementation.
• Regular reviews and updates are mandated to adapt to changing environmental and legal landscapes.