European Union law against environmental crime

SUMMARY OF:

Directive 2008/99/EC – protecting the environment by means of criminal law

WHAT IS THE AIM OF THE DIRECTIVE?

It defines a number of serious offences that harm the environment.
It requires EU Member States to introduce effective and proportionate penalties constituting a deterrent for such offences, regardless of whether they are committed intentionally or through serious negligence.

KEY POINTS

Types of unlawful* behaviour harmful to human health or the environment that are subject to penalties include:

discharging, emitting or otherwise releasing dangerous materials into the air, soil or water;
collecting, transporting, recovering or disposing of hazardous waste;
shipping noticeable quantities of waste;
operating an industrial plant that conducts dangerous activities or stores dangerous substances (e.g. factories producing paints or chemicals);
manufacturing, treating, storing, using, transporting, importing, exporting or disposing of nuclear material and hazardous radioactive materials;
killing, possessing or trafficking in noticeable amounts of protected animal and plant species;
damaging protected habitats;
producing, trading in or using substances that deplete the ozone layer (e.g. chemicals in fire extinguishers or cleaning solvents).

Penalties

Member States must ensure that the offences or types of unlawful behaviour listed in Article 3 of the directive are punishable by effective and proportionate criminal penalties constituting a deterrent and applicable to individuals.
Member States must establish that legal persons* can be held liable for offences committed for their benefit by individuals acting in a leading position based on a power of representation, on an authority to take decisions on behalf of the legal person or to exercise control within the legal person. Legal persons are also held liable if the lack of supervision or control by such an individual in a leading position has made it possible to commit the offence.
Liability of legal persons does not exclude criminal proceedings against individuals who are perpetrators, inciters or accessories in the offence referred to in the directive.
Depending on the legal system applicable in the Member State concerned, the liability of legal persons may be criminal or non-criminal.
This directive builds upon Directive 2004/35/EC (see summary), which lays down rules on environmental liability as regards preventing and remedying environmental damage.
Member States are responsible for prosecuting environmental crime. Because legal systems differ among Member States, criminals can exploit any lack of cooperation and coordination between national authorities. Networks of environmental professionals, such as the EU Network for the Implementation and Enforcement of Environmental Law, the EU Forum of Judges for the Environment and the European Network of Prosecutors for the Environment, play an important role in sharing best practices and developing methodologies for effective enforcement.

Review

The directive is currently being revised.

FROM WHEN DOES THE DIRECTIVE APPLY?

It has applied since 26 December 2008 and had to become law in the Member States by 26 December 2010.

BACKGROUND

For further information, see:

Combating environmental crime (European Commission).

KEY TERMS

Unlawful. In this context, refers to breach of EU or national laws that give effect to the EU legislation referred to in the Annexes to Directive 2008/99/EC.

Legal person. A non-human entity, such as a company, that is treated as a person for limited legal purposes. A legal person can sue, be sued, own property and enter into contracts.

MAIN DOCUMENT

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 (OJ L 328, 6.12.2008, pp. 28–37).

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