EUROPEAN COMMISSION

Brussels, 15.12.2021

SWD(2021) 465 final/2

CORRIGENDUM
This document corrects SWD(2021) 465 of 15.12.2021.
Removal of formatting issues.
The text shall read as follows:

COMMISSION STAFF WORKING DOCUMENT

IMPACT ASSESSMENT REPORT

Accompanying the document

Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on the protection of the environment through criminal law and replacing Directive 2008/99/EC

{COM(2021) 851 final} - {SEC(2021) 428 final} - {SWD(2021) 466 final}

Table of Contents

1    Introduction: Political and legal context    

1.1    The Environmental Crime Directive    

1.2    Evaluation of the Environmental Crime Directive    

1.3    EU context    

1.4    International context    

2    Problem definition and Drivers    

2.1    What are the problems and drivers that the review of the Directive seeks to address?    

2.1.1    Problem 1: The Directive’s scope is outdated and defined in a complex way, hindering effective investigations, prosecutions and cross-border cooperation.    

2.1.2    Problem 2: Unclear definitions of environmental crime which may hinder effective investigations, prosecutions and cross-border cooperation    

2.1.3    Problem 3: Sanction levels are not sufficiently effective and dissuasive in all Member States    

2.1.4    Problem 4: Insufficient cross-border cooperation.    

2.1.5    Problem 5: lack of statistical data    

2.1.6    Problem 6: ineffective enforcement chain    

2.2    How will the problems evolve without intervention (baseline)?    

3    Why should the EU act?    

3.1    Legal basis    

3.2    Subsidiarity: Necessity of EU action and added value of EU action    

4    Objectives: What is to be achieved?    

4.1    General objectives    

4.2    Specific objectives    

5    What are the available policy options?    

5.1    Options discarded at an early stage    

5.1.1    Repeal the Directive    

5.1.2    Address the identified problems only through non-binding measures    

5.2    Relevant policy option: replacing the Directive    

6    Description, Assessment and comparison of the sub-options under the Option to amend the Directive    

6.1    Objective 1: Updating the scope of the Directive; introduce a simple mechanism to keep the Directive up-to-date also in the future    

6.1.1    Option 1 a): Update the existing list of legislation in the annexes, add new relevant crime categories to Article 3    

6.1.2    Option 1 b) Change the approach to define ‘unlawfulness’ and define more precisely which breaches of sectoral legislation are criminally relevant.    

6.1.3    Option 1 c): Define environmental crime in the Directive without the requirement of a breach of relevant EU sectoral legislation    

6.1.4    Comparison of the options/preferred option    

6.2    Objective 2: Clearer definitions of environmental crime    

6.2.1    Option 2 a): Define unclear terms more precisely in the Directive    

6.2.2    Option 2 b): Eliminate undefined terms, including by criminalising risky behaviour (endangerment crime)    

6.2.3    Option 2 c): a combination of option 2a) and 2b)    

6.2.4    Stakeholder opinions    

6.2.5    Comparison of the options/Preferred option    

6.3    Objective 3: Improving the proportionality and dissuasiveness of sanction types and levels    

6.3.1    Option 3 a): Introduce minimum maximum sanctions levels    

6.3.2    Option 3 b): Option 3a) plus aggravating circumstances and accessory sanctions    

6.3.3    Option 3 c): Option 3 b) plus an obligation to link the level of fines to the financial situation of legal person and/or illegal profits    

6.3.4    All options: non-binding guidance e.g. on determining of illegal benefits, calculation of illegal profits, financial situation of legal persons etc.    

6.3.5    Coherence with EU sectoral legislation - relationship between criminal and administrative sanctioning systems    

6.3.6    Stakeholder opinions    

6.3.7    Comparison of the options/preferred option    

6.4    Objective 4: Improving the effective cooperation and coordination between Member States    

6.4.1    Option – introducing a package of provisions directly fostering cross-border cooperation    

6.4.2    Effectiveness, legal feasibility and coherence    

6.4.3    Efficiency    

6.4.4    Conclusion    

6.5    Objective 5: Improving data collection, statistics and reporting on environmental crime    

6.5.1    Option 5 a): Oblige Member States to collect and regularly report to the Commission statistical data on environmental crime proceedings combined with further supporting measures    

6.5.2    Option 5 b): Option 5 a) plus an obligation of the Member States to collect and report statistical data according to harmonised common standards    

6.5.3    Efficiency    

6.5.4    Comparison of the options/preferred option    

6.6    Objective 6: Improving the effective operation of the enforcement chain    

6.6.1    Insert in the Directive obligations that directly strengthen the effectiveness of the law enforcement chain    

6.6.2    Stakeholder opinions    

6.6.3    Efficiency    

6.6.4    Conclusion    

7    Indirect Impacts of a more effective Environmental Crime Directive    

8    Preferred package    

9    Monitoring Measures    

Annexes

ANNEX 1: PROCEDURAL INFORMATION    

ANNEX 2A: METHODS    

ANNEX 2B: ANALYTICAL MODELS - COSTS    

ANNEX 3: WHO IS CONCERNED AND HOW?    

ANNEX 4: BASELINES    

ANNEX 5: ENVIRONMENTAL, SOCIAL AND ECONOMIC IMPACTS    

ANNEX 6: COMPARATIVE TABLE PROVISIONS ON PRACTICAL IMPLEMENTATION    

ANNEX 7: PUBLIC CONSULTATION REPORT    

Annex 8: Stakeholder consultation –synopsis report    

ANNEX 9: INTERVENTION LOGIC    

ANNEX 10: OPTIONS TABLE    

List of tables for the Impact Assessment

Glossary

1Introduction: Political and legal context

Environmental crime is a growing concern causing significant damage to the environment and to citizens’ health within and beyond the Union. 2 Providing perpetrators with very high profits and relatively low risks of detection, organised crime groups operating across the Union’s internal and external borders are increasingly attracted to environmental crime activities. Perpetrators often go unpunished despite the seriousness of the economic, social and environmental impacts environmental crime can have.

Over the past decade, the need of environmental protection has become a major concern for the EU, which gradually stepped up its efforts to combat offences that are harmful to the environment. The Commission has acknowledged that crimes like illegal deforestation, water, air and soil pollution, traffic in ozone-depleting substances, poaching, overfishing and other offences heavily damage biodiversity, harm human health and destroy whole ecosystems. Environmental crime often comes with corruption, money laundering, violence, organised crime and documents forgery.

Environmental crime also causes high economic costs including too low market prices and the loss of business of legal operators due to unfair competition from illegal operators (e.g. in the waste management sector). This further entails the loss of fiscal revenues.

According to estimates of UNEP and Interpol, 3  published in June 2016, the annual loss related to environmental crime has been estimated to range between US$ 91–258 billion. This makes environmental crime the fourth largest criminal activity in the world after drugs trafficking, human trafficking, and counterfeiting. It is growing at annual rates of between 5 and 7%. The top four environmental crimes are illegal trafficking in waste and in wildlife species, pollution crimes, and illegal trading in hazardous substances. 4

 Figures for the EU and the Member States are scattered and not collected according to comparable standards and are available only for certain sub-markets. A recently published study 5  provides estimates on the most profitable criminal markets in the EU among which are illicit waste trafficking and illegal wildlife trade (glass eels only). According to the study, in 2019 annual revenues deriving from illicit non-hazardous waste trafficking (both within national boundaries and abroad) range between EUR 1.7 billion and EUR 12.9 billion. For hazardous waste trafficking, annual revenues range between EUR 2.1 billion and EUR 2.4 billion. 6  

A 2017 EUIPO study found that for the EU as a whole, the estimated total sales lost by legitimate manufacturers of pesticides due to counterfeiting amounted to 13.8% of sales or EUR 1.3 billion each year. 7 As an indirect economic impact, i.e. resulting from lost sales in other sectors as well, the study estimated an additional annual loss of EUR 1.5 billion. 8 Trade in illicit pesticides impacts government revenue as well (household income taxes, social security contributions and corporate income taxes), which were roughly estimated at EUR 238 million. 9  

1.11.1    1.1    The Environmental Crime Directive

The Environmental Crime Directive 10 (hereafter ‘the Directive’) is the main horizontal EU instrument to protect the environment through criminal law. The Directive’s approach to defining a set of EU environmental crimes requires an infringement of relevant sectoral legislation as listed in two annexes to the Directive. Article 3 of the Directive describes additional constituent elements for various environmental crime categories that make infringing sectoral legislation an environmental crime.

The Directive obliges Member States to ensure effective, proportionate and dissuasive sanctions for environmental crime (Article 5). Determining the type and level of criminal penalties did not fall within EC competence at that time (pre-Lisbon). The Directive does not require criminal liability of legal persons (Arts. 6, 7).

1.21.2    1.2    Evaluation of the Environmental Crime Directive

The Commission has evaluated the Directive in 2019/20 and published its results in October 2020. 11  It has found that the Directive had added value, as it defined for the first time a common legal framework for environmental criminal offences and required effective, dissuasive and proportionate sanctions. However, the Directive did not have much effect on the ground: the number of environmental crime cases successfully investigated and sentenced stayed at a very low level and generally did not show any significant upward trends over the past 10 years.

Figure: Number of convictions for environmental crime in HR, CZ, DE, LV, PT and ES 12  from 2008 to 2018. 13

Moreover, the sanction levels imposed were too low to be dissuasive and cross-border cooperation did not take place in a systematic manner.

The Directive’s lack of effectiveness in practice is partly due to the generic nature of its provisions. This can be explained by the EC-legislator’s limited competences in the field of criminal law under pre-Lisbon conditions, which did not allow going into more detail, especially on sanctions. 14  

In addition, poor enforcement in the Member States contributes largely to the Directive not having much effect on the ground. The evaluation found considerable enforcement gaps in all Member States and at all levels of the enforcement chain (police, prosecution and criminal courts). Deficiencies in the Member States include a lack of resources, specialised knowledge, awareness and prioritisation, cooperation and information sharing and an absence of overarching national strategies to combat environmental crime involving all levels of the enforcement chain and a multi-disciplinary approach 15 . 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 prevents national policy-makers and practitioners from monitoring the effectiveness of their measures.

Based on the results of the evaluation, the Commission decided to review the Directive. The Commission Work Programme 2021 schedules a legislative proposal for the revision of the Directive 16 in December 2021.

1.31.3    1.3    EU context

The current Commission adopted the Green Deal Communication along with a Biodiversity strategy. In July 2021, the Commission presented a package with concrete proposals for a Green New Deal, aimed at reducing emissions by 55% by 2030 and at making Europe climate neutral by 2050 17 . It states that ‘the Commission will (…) promote action by the EU, its Member States and the international community to step up efforts against environmental crime’.

In 2016, the Commission adopted the EU Action Plan against Wildlife Trafficking 18 to improve environmental compliance in the field of wildlife trafficking. This was followed in 2018 by an Action Plan to improve environmental compliance and governance. 19  In this context, the Commission set up the Environmental Compliance and Governance Forum as a high-level expert group to steer the Action Plan’s implementation and to serve as a platform for exchanges. Participants of the Forum are European networks of environmental inspectors (IMPEL), 20  specialised police (EnviCrimeNet), environmental prosecutors (ENPE), 21 judges (EUFJE) 22  focusing on national environmental crime strategies, specialised training of practitioners, sharing information and best practices, and cross-border cooperation. 

The EU Serious and Organised Crime Threat Assessment (EU SOCTA) 2021 has identified “environmental crime” amongst the key crime threats facing the EU. 23 On this basis, environmental crime has been included in the EMPACT 2022 – 2025. 24  

The new EU Strategy to tackle Organised Crime covering the period from 2021 to 2025 – presented by the Commission in April 2021 – keeps environmental crime as one of the future priorities of the EU’s fight against organised crime. 25  

The EU Security Union Strategy 26 presented by the Commission in June 2020 also identifies environmental crime as an increasingly profitable business for organised crime, requiring further actions

1.41.4    1.4    International context

EU action in the area of environmental crime takes place in a wider context of international agreements and moves to combat crime, such as the UN Convention against Transnational Organised Crime (UNTOC) 27 and the UN Conventions against corruption 28 and money laundering 29 . The UNTOC e.g. sets a framework for international cooperation to combat transnational organised crime groups. It applies to crimes that according to national law are punishable by a maximum sanction of at least four years. 30  However, most Member States do not provide for the required level of sanctions 31  and thus the Convention is not applicable to most environmental crimes. 

The Council of Europe (CoE) is currently reviewing 32 its 1998 Environmental Crime Convention. The Convention has been the first international instrument to define environmental crime and require adequate sanctions. 33

More recently, the UN General Assembly has called on its Member States 34 to make illicit trafficking in protected species of wild fauna and flora a serious crime to ensure that effective international cooperation takes place under the UN Convention.

Further, the G7 countries recently committed to strengthening international and transboundary cooperation to tackle and address illegal wildlife trade as a serious crime. 35

The G20 countries recently reiterated their determination to step up efforts to end illicit threats to nature and crimes, including illegal logging and illegal wildlife trade, as well as to intensify cooperation to combat illicit financial flows deriving from crimes that affect the environment, by implementing, inter alia, the global standards and recommendations of the Financial Action Task Force (FATF). 36

A number of environmental sectors are regulated by international agreements and instruments notably the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), 37 the Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention) 38 or the Convention for Prevention of Pollution from Ships (MARPOL). 39  These international instruments have been transposed into EU sectoral legislation. Serious violations of these rules have been addressed by EU criminal law, including the Environmental Crime Directive and sanctions provisions in sectoral legislation. 40 In general, sectoral legislation leaves it to the Member States to decide whether the sanctioning regime for violations should be criminal or non-criminal.

2Problem definition and Drivers 

2.12.1    2.1    What are the problems and drivers that the review of the Directive seeks to address?

The review seeks to address six main problems inherent in the Directive’s current limited scope and content that were identified during the evaluation of the Directive and which contribute to the Directive’s ineffectiveness. These six main problem are described in more detail below, along with their regulatory and practical drivers. The order of presentation follows the structure of the current Directive and does not necessarily correspond to the importance of the problems in terms of their effects. Actually, the problems interact and have a cumulative impact on the Directive’s (lack of) effectiveness.

2.1.12.1.1    2.1.1    Problem 1: The Directive’s scope is outdated and defined in a complex way, hindering effective investigations, prosecutions and cross-border cooperation.

Criminal offences as defined by the Directive presuppose ‘unlawful’ behaviour defined as a breach of EU sectoral legislation listed in two annexes to the Directive. The listed legislation is linked to nine categories of environmental criminal offences described under Article 3 of the Directive (including pollution, waste management, shipment of waste, operation of a plant involving dangerous activities or materials, the handling of hazardous materials, wildlife crime, the handling of ozone-depleting substances). Most of these crime categories require further material elements that make a breach of sectoral legislation a crime - such as substantial damage to the environment or serious injury to persons. Some crime categories criminalise the violation of relevant sectoral obligations without requiring any damage to be caused, e.g. Article 3 c) regarding the shipment of waste, or Article 3 i) regarding ozone-depleting substances, which both exclude negligible cases.

The corresponding environmental legislation in the annexes is largely outdated, as 46 out of the 72 pieces of listed legislation meanwhile have been repealed or replaced. New Union legislation, such as the Reach Regulation on chemical products or the Plant Protection Regulation on pesticides, and new crime categories, such as forestry crime, illegal logging and timber trade, ship-source pollution or trade in f-gases, have not been included since the Directive entered into force.

Independently of the Directive, Member States are generally required to have sanctions for infringements of EU sectoral legislation 41 , but they can choose to have administrative-law sanctions or criminal-law sanctions or a combination of these. EU environmental legislation does not, and cannot, set specific levels and types of criminal sanctions, only a criminal law directive can based on Article 83 TFEU.

In addition, where crime areas are not covered by the Directive, it is for the Member States to decide whether or not to provide for criminal liability in their national legal frameworks and how to define the crime. 42  Where Member States do not at all criminalise a given environmental crime area, cross-border cooperation becomes difficult for lack of dual criminality. Thus, criminal investigations initiated in one Member State have to be discontinued or limited. The same issue occurs where Member States define differently an environmental crime category.

This situation adds to the complexity of environmental criminal law already driven by its dependency on administrative legislation. Law enforcement practitioners are confronted with a complex and scattered legal framework at both EU-and national level, which lacks an internal logic. This leads to environmental crime proceedings rather not being initiated, as the applicable rules are confusing and thus the prospects of success of a criminal investigations – in particular with regard to cross-border implications – are hard to evaluate.

There are no statistics on how many environmental crime cases were not successfully investigated due to this issue. Statistics, however, evidence that the number of investigations and convictions has remained at a very low level across Member States over the past decade. A large majority of the practitioners and their networks confirmed, within the targeted stakeholder consultations that gaps in and uncertainties about the scope and the complexity of environmental crime as described above contribute to the ineffectiveness of the Directive.

The Directive has not been updated in line with the development of EU environmental law and it does not respond to current challenges and new trends in environmental crime. It does not cover categories of offences linked to EU environmental legislation adopted after 2008 (see examples below).

In particular, the Directive does not cover such activities harmful to the environment and to human health as illegal trade in timber, unlawful manufacture, importation of placement on the market of chemical substances, including those which are banned or restricted, placing on the market of products breaching standards, which as a result of the product’s mass use cause damage to the environment or human health, illegal execution of development projects which cause substantial damage, illegal recycling of ships, illegal abstraction of water, intentional introduction or spread of invasive alien species of Union concern, illegal placing on the market of fluorinated greenhouse gases. The acceleration of climate change, biodiversity loss and environmental degradation, paired with tangible examples of their devastating effects, have led to the necessity to step up enforcement action against illegal harmful activities accelerating such harmful effects. In these areas, even if sectoral law is advanced, there is still an important gap in terms of enforcement (see examples below). Infringers often face low risks of detection, and even lower risks of prosecution and sanctioning, while financially gaining from the avoidance of environmental safeguards. This also gives rise to organised crime harming the environment.

Also, for some offences under the current Directive, the protection is of limited scope and thus do not have the desirable effect to protect the environment. For example, this concerns offences linked to the protection of wildlife. In the last four decades, global wildlife populations fell by 60% as a result of human activities 43 . Globally, up to one million species are threatened with extinction. Biodiversity loss and ecosystem collapse are one of the biggest threats facing humanity in the next decade.

Example: Ship Recycling Regulation

The adoption of Regulation (No) 1257/2013 on ship recycling (SRR) introduced obligations for ship owners regarding the recycling of large commercial seagoing vessels flying the flag of EU Member States. This Regulation is aimed to ‘prevent, reduce, minimise and, to the extent practicable, eliminate accidents, injuries and other adverse effects on human health and the environment caused by ship recycling’. 44 It seems, however, that the SRR has had so far limited effects because ship owners have managed to circumvent their legal obligations 45 . As the Regulation only applies to ship registered under EU/EEA flag, ship owners could easily re-flagged their ship and avoid any sanction for non-compliance with the previously mentioned regulation. Re-flagging appears in fact, to be the major problem of ship recycling according to recent data (OECD report, 2019). 46  This has consequences for the economy, the environment and human health. Non-compliance with Article 6(2)(a) of that Regulation which requires the ship-owners to ensure that their ships destined for recycling are only recycled in the specific facilities included on the EU List of ship recycling facilities is currently not a subject to a strong regulative response.

The use of ‘flag of convenience’ has allowed ship owners to avoid the sanctions under SRR Regulation 47 . Besides, the level of sanctions has not deterred ship owners from such practice as most Member States have favoured administrative sanctions over criminal ones (e.g. Lithuania, Hungary, Latvia, Belgium). 48  Illegal ship recycling is sometimes linked to other criminal conducts such as money laundering and terrorism. The transboundary nature of the offences requires a stronger legal framework at EU level to ensure greater responsibility and justifies using criminal sanctions. 

Example: EU Timber Regulation

Illegal logging and related illegal timber trade represent a persistent problem with global consequences as it leads to deforestation. These crimes belong to the most profitable crimes worldwide and cause costs valued at US$51–152 billion annually according to a recent WWF report. 49 According to another WWF report, 50 the EU is responsible for almost EUR 3 billion of losses due to illegal logging, with an import of around 20 million cubic meters of illegal timber every year. These undermine efforts to reduce emissions from the forest sector and support sustainable management of forests. 51  An analysis of available statistics shows that especially illegal logging is a frequent offence in Member States like BG, RO, HU, LV, and LT. 52  To combat illegal timber trade, the EU has adopted the Timber Regulation (EUTR), 53 which prohibits the placing of illegally harvested timber and products and includes a provision on sanctions. However, the EUTR is not included in the annexes of the Directive and there is no relevant offence in Article 3 ECD. Member States have put in place different types of sanctions, including criminal sanctions introduced in some Member States. However, there are large disparities 54 and too low sanctions are imposed in practice, which hinders the effectiveness and the credibility of the national enforcement systems 55 and undermines the effective implementation of EUTR.   

Example: chemicals legislation

Numerous reports point out problems with the enforcement chemicals legislation, such as REACH 56 , CLP 57 and POPs 58 , and risks for human health and environmental which require a stronger legal framework. 59  

Enforcement challenges and low sanctions imposed for breaches hamper the effectiveness of legislation and are an obstacle for a level playing field. For instance, regarding REACH and CLP, there are large disparities between national sanctioning systems and in several Member States the most serious infringements are addressed by relatively low administrative sanctions only. A study from 2020 showed clear differences in the enforcement practices of the Member States, with two countries, namely Germany and Sweden, accounting for two thirds of the total referrals to the state prosecutor office, and one country imposing 40% of the administrative fines in the Union in the reporting period. 60  

The enforcement shortcomings prompted the Commission to commit to a ‘zero tolerance approach to non-compliance’ 61 as outlined in the Chemicals Strategy for Sustainability. In this regard, extending the scope of chemicals offence under the Environmental Crime Directive is crucial as ‘currently almost 30% of the alerts on dangerous products on the market involve risks due to chemicals, with almost 90% of those products coming from outside the EU and imported articles and online sales representing a particular challenge. 62 Hence, EU action appear to be necessary to ensure harmonization of the national enforcement systems and to strengthen the enforcement of REACH at the EU’s borders. 63

Example: Invasive Alien Species Regulation

The illegal spread of Invasive Alien Species (IAS) can seriously harm the environment (e.g. extinction of indigenous species) and the economy (e.g. reducing yields from agriculture, forestry and fisheries). IAS cost the European economy 12 billion euros per year 64 and are risky for the human health (e.g. serious allergies and skin problems; burns caused by the giant hogweed). IAS is one of the five major causes of biodiversity loss in Europe and in the world. According to the IUCN Red List, among the 1872 species considered as threatened in Europe, 354 are directly affected by IAS. 65  The increase of IAS is linked to intentional introduction (e.g. pets, horticulture) and absence of effective control measures.

Article 15 of the IAS Regulation provides that Member States shall have in place fully functioning structures to carry out the official controls necessary to prevent the intentional introduction of IAS of Union concern but several challenges appear in practice.

Article 30 of the IAS Regulation requests MS to ensure that infringements of IAS related offences are punished by penalties, 66 including fines, seizure of the non-compliant invasive alien species of Union concern or immediate suspension or withdrawal of a permit. Some Member States have introduced criminal sanctions but there are serious discrepancies among them concerning the types and levels of criminal penalties. For example, the lowest maximum imprisonment penalty is one month (Luxembourg) while Italy and Belgium (Flanders) provide for the highest maximum imprisonment term of three years and five years, respectively. 67 Sanctions are not comparable and in many instances not dissuasive which can hamper tackling illegal IAS related activities and effective cross-border cooperation. Challenges exist also as regards detection of breaches and identification of offenders.

Drivers

There are two drivers to the problem of the Directive becoming outdated over time and not covering all relevant legislation.

·The approach of the Directive to define environmental law is based on the breach of sectoral legislation referred to in the annexes. Although this reference is a dynamic one and refers to the legislation in annexes in its up-to-date form, new relevant sectoral legislation is not automatically covered.

·There is no easy and functioning mechanism to update the Directive and its annexes and bring new legislation under its scope.

Currently, recital 15 of the Directive states “Whenever subsequent legislation on environmental matters is adopted, it should specify where appropriate that this Directive will apply. Where necessary, Article 3 should be amended.” In practice, although new legislation has been adopted since 2008, it does not refer to the Environmental Crime Directive nor has Article 3 ever been amended to include such new crime categories. Instead, sectoral environmental legislation includes its own rules on sanctioning and penalties that are often generic and leave the choice of whether and when criminal sanctions should apply to the Member States. Ultimately, this is an issue of incoherence between the Directive and sectoral legislation that is addressed below under section 6.3.5.

2.1.22.1.2    2.1.2    Problem 2: Unclear definitions of environmental crime which may hinder effective investigations, prosecutions and cross-border cooperation

Definitions in Article 3 contain flexible but unclear legal terms such as ‘substantial damage’, ‘non-negligible quantity’, ‘negligible quantity’, ‘dangerous activity’, and ‘significant deterioration‘, and thus leave much room for interpretation. Their meaning also depends on the circumstances of the individual case and the environmental crime area concerned.. Differences in interpretation do not only occur between Member States, but even within Member States. 68  Uncertainty about the meaning of terms used to define environmental crime can lead to environmental crime investigations not be taken up 69 . Different views of what is a crime can also lead to investigations coming to a halt, hampering cross-border cooperation, for example that a European Investigation Order or European Arrest Warrant is not executed. 70  This contributes to a situation in 2020 where environmental crime - although deemed the fourth most profitable criminal activity in the world - only accounted for 1% of the cases dealt with by Eurojust 71 , while only 2148 out of 1,2 million (0.2%) messages exchanged through Europol’s SIENA platform 72 were related to environmental crime. There are no statistics on environmental crime cases that were not investigated or were stopped due to uncertainty about the legal terms used to define environmental crime. Yet, practitioners and their networks in the targeted stakeholder consultations confirmed that this problem is real. 

Drivers

Member States have mostly not defined these terms further in their transposing laws. For example, the term ‘substantial damage’ that is used under Article 3 a), b), d) and e) has been transposed by most Member States either literally or by using similar wording such as ‘significant damage’ or ‘substantial harm’, without further refining its meaning 73 . Where Member States did define this term, they did so in different ways. Some defined it financially (e.g. with regard to profits lost or to money needed to restore the status quo ante), while others focused on the quality of the environmental loss (e.g. in terms of size of the geographic area polluted or destroyed, in terms of the time and effort needed to restore the damage, in terms of damage duration) 74 .  

2.1.32.1.3    2.1.3    Problem 3: Sanction levels are not sufficiently effective and dissuasive in all Member States 

Although after the Directive entered into force, sanction levels went up significantly in the Member States, there are still Member States that do not provide for maximum sanction levels that ensure effectiveness, dissuasiveness and proportionality- as shown in more detail below.

Maximum sanction levels available in Member States national law vary largely and are often not dissuasive.

The following graph illustrates large differences in available maximum fines for e.g. Article 3(h) offenses.

Figure: Maximum levels of criminal fines, applicable to natural persons (EUR) in EU Member States for Article 3(h) offense, and median fine 75

The levels of maximum prison penalties also vary significantly. The graph below illustrates large differences for crimes covered by Article 3(h). A common understanding of what are effective and dissuasive sanction levels has not emerged.

Figure. Maximum criminal prison sentences available in national law for Article 3 (h) offenses. 50 years=life imprisonment (Source: Evaluation report)

Natural persons

FR, IT, LT provide for maximum levels of financial penalties for natural persons below EUR 100 000 for some Article 3 criminal offenses, while BG, NL, RO, and SE provide for maximum fines below this threshold for all Article 3 offenses. The evaluation found that this amount was well below the average of all Member States together and unlikely to be dissuasive in all circumstances, given that environmental crime causes enormous harm and illegal profits can amount to millions of euros.

Also with regard to prison penalties, a number of Member States only provide maximum penalties of 3 years or less in their national law for environmental crimes. These penalty levels are low compared to minimum levels for maximum sanctions in other Directives on serious crimes, such as the Anti-Money laundering Directive (4 years), 76 the Counterfeiting Directive (5 to 8 years, depending on the crime), 77 or serious drug trafficking offenses listed in the Council Framework Decision (5 to 10 years, depending on the crime). 78  

Table 1, Number of article 3 offences per maximum prison sanction per Member States

Legal persons

Legal persons typically have much more financial flexibility and capacity to compensate financial penalties than natural persons, as the potential risk of financial penalties can be calculated and passed on to consumers.

As with sanctions for natural persons, maximum levels of fines for legal persons diverge significantly across Member States. E.g. maximum fines for offenses under Article 3(c), range from around MEUR 0.2 in LU to MEUR 250 in SE. Overall, many Member States remain at or below MEUR 0.5 for a number of Article 3 offences (BE, BG, CY, EL, FR, IT, LU, RO).

Moreover, although linking the level of fines to the level of illegal profits or the financial situation of the legal person can be an effective way to define proportionate sanction levels, only a few Member States use this approach in their national laws: NL, PL and AT base the level of fines on the annual turnover or income of the legal person 79 . HU takes into account the financial advantage gained from the offence or the financial situation of the legal persons.

Sanction levels imposed in practice are too low to be dissuasive.

Even where national criminal law provides for high maximum sanction levels, criminal judges do not make full use of the available sanction range, but rather stay in the lowest segment. Imprisonment sanctions are rare, and suspended in practice. 80

Example: Smuggling in Rotterdam

In 2019, in the NL, the prosecution required an unsuspended prison sentence of 20 months for the import of six containers of illegal and environmentally harmful crop protection products of an estimated value of MEUR 5 and an estimated potential illegal profit above MEUR 4. The judge imposed a suspended sentence of 6 months and a fine of EUR 400 000 81 , while the smuggling of small amounts of drugs in the NL is typically sanctioned by a year imprisonment.

Statistical data on the level of fines imposed are scarce (problem 5); notably some data exists for FR, IE and LV on average fines. For natural persons, in 2016, levels of fines for environmental crime were in the order of EUR 5500 in FR, EUR 3500 in IE, and EUR 2000 in LV. 82  In IE, between 2004 and 2014, average fines of EUR 1400 83  were imposed. In FI and FR, average prison sentences of 5 months were given in 2016, whilst it was 21.5 months in LV. 84  

For legal person, several studies (on DE 85 and other Member States 86 ) raised doubts on the sanction levels imposed in practice. In IE, for the period 2004-2014, average fines amounted to EUR 7000 87 . In 2016, average fines were EUR 21 000 in FI, EUR 16 000 in FR and EUR 3500 in IE. In NL, the average criminal fine for companies was less than 1% of annual profit in 90% of cases 88 . Given the high profits for environmental crimes that can amounting to millions of Euros, these levels are inappropriate.

Additional consequences for cross-border cooperation (objective 4)

Access to special investigative techniques such as surveillance of telecommunications and undercover investigations is normally conditional on the seriousness of the environmental crime defined by a certain minimum or maximum level of penalties that is available for the suspected crime. Member States that regard environmental offences as minor will only have the standard investigative tools at their disposal. This can prevent cross-border cooperation, 89 for example if surveillance measures, which are often linked to the penalty threshold, ordered in one Member State cannot be continued or complemented in another Member State involved.

Low maximum sanction levels can also hamper the use of EU- or international cooperation instruments. For example, the UNTOC – that sets out a framework for international cooperation for serious crime – makes the use of investigative tools provided therein subject to a maximum penalty of at least 4 years of imprisonment, and the European Arrest Warrant to a maximum penalty of at least 1 year of imprisonment. Here also, effective criminal proceedings and cross-border cooperation can be hampered, if not made impossible.

Stakeholders

Stakeholders consider that fines and imprisonment sanction levels imposed in practice are not dissuasive: 65% of public consultation respondents did not find sanction levels sufficiently deterring and only 10% considered them satisfactory 90 . Whilst law enforcement practitioners repeatedly pointed out the low, non-dissuasive sanction levels imposed in practice. 91

Drivers

The main problem driver is the lack of specificity of the Directive, which only requires sanctions to be ‘effective, proportionate and dissuasive’. Pre-Lisbon, 92  the EC legislator did not have the competence to regulate on sanction types and levels. This is now possible under the new Article 83 (2) TFEU. Hence, EU criminal law instruments adopted after the entry into force of the Lisbon Treaty contain minimum maximum levels of fines and prison sentences. For legal persons, there is often a catalogue of possible accessory sanction that Member States should make available, such as exclusion from public procurement procedures and grants.

In addition, lack of awareness of the harmfulness of environmental crime contributes to criminal judges imposing non-dissuasive sanctions (see below problem 6), as confirmed by the police and judiciary. Thus, many cases are dismissed in court, or only very lenient sanctions imposed. 93

2.1.42.1.4    2.1.4    Problem 4: Insufficient cross-border cooperation.

The Directive did not prove to be a decisive element for fostering cross-border cooperation in practice. Environmental crime cases currently amount to only 1% of total Eurojust cases, 94 although environmental crime is the fourth most profitable criminal activity globally, and important environmental crime categories, such as waste trafficking and wildlife trafficking, frequently involve criminal activity in several Member States. 95  Europol and Eurojust reported small improvements in cooperation in recent years, but these remain overall insufficient.  For example, while in 2020 Eurojust reported 1264 new cases on swindling and fraud, 595 on money laundering and 562 on drug trafficking, only 20 new cases on environmental crime were opened. In the same year, only 3 out of 74 newly signed Joint Investigation Teams and 6 out of 260 existing Joint Investigation Teams related to environmental crime. 96

Cooperation and coordination are also necessary within Member States, since detection, investigation and prosecution may all involve different authorities. Weak domestic cooperation and coordination are also an issue mentioned under problem 6 below.

Drivers

The lack of a more harmonized approach to fight environmental crime creates legal and operational obstacles to Member State authorities to effectively cooperate and jointly investigate transnational, cross-border environmental crime. In particular, intrusive investigative tools are not available in all Member States. Further, as demonstrated above the limited scope of the Directive and vague terms used in the Directive to define environmental crime can result in dual criminality issues during cross-border investigations. The Directive does not contain provisions directly fostering cross-border cooperation such as harmonised rules on jurisdiction, investigative tools or the set-up of national contact points. 97

The Directive does not include any provision obliging Member States to work better together, e.g. through Europol, Eurojust, OLAF and the professional networks during investigations. These agencies and bodies play a key role in facilitating cross-border cooperation on crime, including environmental crime. However, Eurojust as the main operational body to foster cross-border judicial cooperation depends on Member States requesting their support. Stakeholders confirm a lack of knowledge of practitioners of the role of Eurojust and Europol and of how to use the existing tools, such as Joint Investigations Teams.

Only few environmental crime cases lead to few cross–border cooperation. As shown further below, the lack of implementation contributes largely to this situation.

2.1.52.1.5    2.1.5    Problem 5: lack of statistical data 

In all Member States, there is a lack of statistical data on investigations, prosecutions, convictions, dismissed cases, number of legal persons involved, and the level and type of sanctions imposed. This was shown in the evaluation of the Directive and in the results of the 8th Mutual Evaluations on the effectiveness of EU policies on environmental crime. At EU level, Eurostat has a mandate to develop comparable statistics on crime and criminal justice, but the national authorities are responsible for the official figures sent to Eurostat according to their own methodologies and documentation systems.

A lack of statistical data results in limited information on the entire flow of cases over the whole law enforcement chain, from administrative inspections and police and prosecution services to the criminal courts. Against this backdrop, Member States’ performance cannot be compared. Such lack of data also makes it difficult for policymakers and practitioners to monitor the effectiveness of their policies, to identify obstacles in the law enforcement chain and to take targeted and informed decisions 98 . The evaluation found this lack of statistical data to drive other problems, notably the general public’s lack of awareness of the scale and impacts of environmental crime, the lack of political prioritisation of environmental crime and the lack of the necessary budget, human and financial resources for law enforcement authorities. 99  

Drivers

Also this problem has several drivers. Firstly, in most Member States, relevant statistics are fragmented and based on multiple individual statistical sources, as they are collected separately by each individual authority involved in preventing and combating environmental crime, without coordination or integration. 100

Secondly, each Member State establishes its own criminal laws, crimes, legal proceedings and justice responses, as well as specifications for official crime statistics. Such methodological differences make it very difficult to compare statistical data. The crime and criminal justice related metadata and quality reports 101 detail these key methodological differences: 

·different stages of data collection (input, process or output statistics for offences recorded by the police; or before and after appeal for court statistics);

·different accounting units (offence, case, incident for police statistics, or number of people charged or proceedings for court statistics);

·counting rules for multiple (serial) offences of the same type;

·counting rules when an offence is committed by more than one person;

·use of principal offence rule, and others.

Thirdly, perpetrators are often prosecuted under other crime categories, 102 , such as organised crime, fraud, falsification of documents, trafficking of goods or economic crime. Serious environmental wrongdoing is thus often hidden in existing statistics and its impact on the environment is seldom the focus of prosecutions. 103  

The Directive does not include any provision to address collection and reporting of statistical data, or provide a framework to collect data in a comparable manner across Member States.

2.1.62.1.6    2.1.6    Problem 6: ineffective enforcement chain

Effective crime detection, investigation, prosecution and adjudication (“the enforcement chain”) are essential for the Directive to be effective in practice. The evaluation found that offences under the Directive are not sufficiently investigated, prosecuted and tried in practice. Numerous studies (see evaluation report, section 5.1.4. – ‘practical implementation’) have identified the need for improvement at all levels of the enforcement chain (detection, investigation, prosecution, conviction) and in all Member States. Recently, the European Parliament in a 2021 Resolution on the liability of legal person for environmental damage stressed the need to ensure the effective enforcement of existing legislation on environmental crime (Recommendation 11). 104  

According to the results of the 2019 Council 8th Mutual Evaluations, all Member States have shortcomings in one or more points of the criminal law enforcement chain. 105 Every single point is important for the functioning of the enforcement chain as a whole. An overview on the situation in the individual Member States is provided in annex 4. 106

Specific issues important for effective implementation such as cross-border cooperation, the collection of statistical data, the availability of appropriate investigate tools and adequate sanctioning in practice are addressed separately above under problems 3, 4 and 5.

Drivers

The reasons driving the problems concerning detection, investigation and prosecution of environmental crime in the Member States stem from weaknesses of enforcement efforts, lack of awareness and political prioritisation.

First, as described under problem 5, the lack of statistics on environmental crime and a lack of specialised knowledge of many law enforcement authorities on the harmfulness of environmental crime leads to a lack of awareness of the harmfulness and size of environmental crime with decision makers on both political and implementation level. This in turn leads to a lack of prioritisation. Necessary resources and efforts are allocated to other crime areas.

Enforcement authorities do not have the necessary financial and human resources, there is a lack of training and specialisation, data – and information collection and sharing. Integrated strategies tying together all levels of the enforcement chain (detection, investigation, prosecution, sanctioning) are missing in most Member States.

Eurojust reports a the lack of specialised knowledge and experience, along with a lack of resources and the existence of other priorities. 107 The evaluation of the Directive also confirmed that also judges lack specialised knowledge and awareness of the harmful effects of environmental crime. This leads to judges unduly dismissing cases or imposing very lenient sanctions even where more severe sanctions are available. 108

Training and specialisation have been mentioned by all practitioners and their EU-wide networks as being of paramount importance for successful investigations, especially as in the field of environmental crime often potentially large-scale, complex and international investigations are necessary and specialised knowledge is required. Training activities at national level are seen by practitioners as far from being sufficient, tailored and well-organised. The EU support to training, e.g. via the European Judicial Training Network, the relevant practitioners’ networks and some LIFE and ISF-Police projects, is considered in general useful, in particular concerning establishing common understanding, identification of good practices and preparation of training materials, but not sufficient to compensate for the shortcomings at national level.

Although Member States have already today an obligation not only to transpose EU law by letter but also to ensure implementation in practice, the described problems have been long lasting. Therefore, the need for binding provisions on strengthening the enforcement chain was particularly stressed during the consultations by enforcement practitioners and other stakeholders, in particular as regards ensuring adequate resources and specialisation/training, cooperation, coordination, data collection and strategic approaches.

2.22.2    2.2    How will the problems evolve without intervention (baseline)?

As further described below, in recent years have efforts were made at EU level to improve environmental criminal law enforcement. Hence, improvements are likely in some areas. In others, in particular on problems deriving due to the Directive being outdated, the issues will worsen over time.

a)Relevant emerging crime areas remain unregulated at EU level, while legal uncertainty persists regarding certain crime definitions (problems 1 and 2)

The issues of the Directive’s scope being out of date and not containing all environmentally relevant areas and the vagueness of some of its crime definitions will continue to hamper its effectiveness and thus the effective enforcement against environmental crime on the ground. New environmental crime areas under the Article 3 and the annexes of the Directive can only be introduced through legislative action. As legislation in the environmental area is fast evolving, the problem of the Directive becoming outdated would further accelerate in the future.

Guidelines at Member State level on undefined legal terms, as recommended by the Council’s 8th mutual evaluation report, may lead to a certain extent to a greater common understanding between Member States and help facilitate the work of law enforcement authorities. 109 However, national guidelines on interpretation would – in any event – not be binding for others and would also not solve the problem of differing interpretations of the Directive in national law.

b)Insufficient sanctioning would persist resulting in limited deterrence (problem 3)

There are large differences between the criminal sanctions provided for environmental crimes in Member States. The existing criminal sanctions are not sufficiently stringent to ensure a high level of environmental protection throughout the Union. As a result, sanctioning practice will continue to diverge across the EU in the absence of further intervention at Union level. The Commission issued ‘Guidance 110 on combating environmental crimes and related infringements’ (endorsed by the Environmental Compliance and Governance Forum in 2021) describes inter alia good practices in sentencing. The publication and promotion of this document may contribute to raise awareness on the importance of dissuasive penalties and more harmonised sanctioning in practice. So may the work of the Forum and its sub-group on sanctioning, created in 202, and the work of the European environmental enforcement networks, such as IMPEL, EnviCrimeNet, ENPE and EUFJE.

c)Legal and operational obstacles for effective cross-border cooperation among Member States would remain (problem 4)

Several initiatives helped to step up cross-border cooperation over the past few years.

Environmental crime became an EU Crime Priority within the current EMPACT 2018-2021. 111  In that context, Europol has set up a focal point and developed a multi-annual strategic plan and an operational action plan to facilitate cooperation in the area of environmental crime. Due to the increasing need for cooperation, Europol’s environmental cases and messages exchanged through SIENA 112 increased sharply since the first operational year under the EU policy cycle (2018). Environmental crime remains also a priority also in the subsequent EMPACT 2022 – 2026.

Eurojust has issued a report on its environmental crime cases with the aim to highlight obstacles of judicial cooperation in this area and to share the best practices to overcome them.

The ‘Guidance on combating environmental crimes and related infringements’ mentioned above under b) devotes a chapter to cooperation and coordination mechanisms, including at European and international levels. Promotion of this Guidance can contribute to better awareness of existing tools and mechanisms. However, this cannot completely address the difficulties related to divergences between national legislation.

Digitalisation of communication and data exchange in judicial cooperation including criminal law proceedings should further facilitate cross-border cooperation. The Commission is working on a regulation, which will make the digital channel the default means of communication in cross-border judicial cooperation. 113  

Cross-border judicial cooperation is increasingly required by national authorities to address the complex and international set up of organized crime groups behind environmental crime. 114  But without further intervention at the Union level, legal and operational obstacles will however persist in cross-border cooperation among Member States’ administrative, law enforcement and judicial authorities across Member States particularly regarding the increasing phenomenon on organised, transnational environmental crime.

d)The lack of deterrent law enforcement and the impunity of criminals may persist (problems 5 and 6)

The Council’s 8th round of mutual evaluations addressed the issue of proper implementation of European policies on prevention and combating environmental crime. It found that law enforcement was deficient in various areas under scrutiny (such as statistical data collection, financial resources, national strategies to combat environmental crime, cross-border cooperation etc.). In its 2019 final report, it recommended that Member States improve implementation. At the point of finalising this Impact Assessment, 13 Member States have replied so far to inform on measures.

The Commission has also taken steps to improve the effectiveness of Member States’ efforts to combat environmental crime. In 2018, the Commission set up a high-level expert group on environmental compliance, the Environmental Compliance and Governance Forum. It also adopted an Action Plan, which supports the work of the European environmental enforcement networks mentioned above. In this context, the ‘Guidance on combating environmental crimes and related infringements’ mentioned above under b) and c) was issued. It describes in detail good practices relevant to all parts of the enforcement chain from detection to sentencing and its intended publication and dissemination should help strengthen the operation of the enforcement chain. The LIFE Regulation and the Internal Security Fund-Police also provide financial support to the European enforcement networks and national authorities, as they can raise awareness, share good practices and develop practical tools.

e)Conclusion

Overall, independent of this review, a range of non-binding measures and guidance already in place could be further developed to support effective criminal law enforcement. However, without further legislative intervention at EU level, the lack of a deterring enforcement system and impunity for environmental crime are likely to persist in EU Member States (see also below: section 5.1.2 –discarded options – non-binding measures).

3Why should the EU act?

3.13.1    3.1    Legal basis

The legal bases for the proposed Directive are Articles 82(2) and 83(2) TFEU. Article 83(2) sets out the Union’s competence to establish minimum rules with regard to the definition of criminal offences and sanctions in Union policy areas, which have been subject to harmonization measures, if this is necessary for the effective enforcement. Article 82(2) TFEU sets out the Union’s competence to establish minimum rules necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension. It is relevant for provisions on rights of individuals in criminal procedure.

The current Directive is as a pre-Lisbon instrument adopted on the basis Article 175 TEC (now Article 192 TFEU) which had been a legal basis for EU policy on environment protection. According to an ECJ judgment this article comprised also the competence to ensure full compliance with Community legislation through criminal law (judgment of 13 September 2005, C-176/03, paragraph 48). In a second judgment, the ECJ clarified that the definition of types and levels of criminal penalties does not fall within the Community’s sphere of competence (judgment of 23 October 2007, C-440/05, paragraph 70). But with the Lisbon Treaty, the Union has received a genuine competence for criminal law measures in EU policy areas, including the definition of sanction types and levels. (Article 83(2)).

3.23.2    3.2    Subsidiarity: Necessity of EU action and added value of EU action

Necessity of EU action

Criminal activities related to the environment very often have a cross-border dimension, as an environmental crime can impact several countries (for example the illicit trafficking of waste, wildlife or chemicals or the pollution of air, water and soil, see above section 1 – introduction) or have cross-border effects (e.g. in case of cross-border pollution). 115  Cross-border cooperation between law enforcement and judicial authorities is therefore essential.

The existing Directive aimed to provide such harmonised framework to facilitate cross-border cooperation. However, as detailed in the evaluation report, despite the progress in creating an EU-wide common set of definitions of environmental crimes and requiring more dissuasive sanction levels, Member States on their own have not been able to reconcile their respective understandings of environmental crime within the room for maneuver the Directive has left. Similarly, the insufficient sanction levels in a number of Member States prevent a level playing field across the EU and mutual recognition instruments from applying (such as the EAW and the EIO).

Despite the Directive, the number of cross-border investigations and convictions in the EU of environmental crime did not grow substantially. In the meantime, in contrast, environmental crime is growing at annual rates of 5 to 7% globally 116 , creating lasting damage for habitats, species, health of citizens and revenues of governments and businesses.

Added value of EU action

With a more effective Directive, the EU can provide the harmonised framework for a common understanding of definitions of environmental crimes and for effective access to cross-border investigative tools. By providing more clarity on legal definitions and by approximating sanction levels, as well as by providing tools and obligations for cross-border cooperation among Member States, the revised Directive will create a more even level playing field with equivalent criminal law protection for the environment across the EU and facilitate cross-border cooperation on investigations and prosecutions. By facilitating cross-border investigations, prosecutions and convictions, EU action will provide for clear added value on countering environmental crimes which typically have transnational dimensions compared to what Member States acting alone can achieve.

As environmental crime often undermines legal and tax paying businesses, who share an unknown but likely large share of the estimated annual global loss related to environmental crime of between USD 91 and 259 billion 117 , an effective EU legislative framework on environmental crime will have an effect on the functioning of the EU single market as well. Without such EU wide legislation, companies operating in Member States with limited definitions of environmental crimes or lenient enforcement regimes can have a competitive advantage over the companies established in Member States with stricter legal frameworks.

An effective EU wide policy on environmental crime may also benefit other EU policy objectives. Environmental crimes are often linked to other forms of crime such as money laundering, terrorism, tax fraud, forgery or other forms of organised crime 118 against which the EU has adopted a range of legislation in recent years. A more effective EU legislation on environmental crime would contribute to effective criminal law enforcement strategies, at EU- and national level that address all relevant aspects of criminal interaction.  

4Objectives: What is to be achieved? 

The methodological challenges encountered during the evaluation of the Directive, which also was subject to a Regulatory Scrutiny Board’s opinion , provided valuable lessons for this impact assessment: Ultimately, the policy ambition is to better protect the environment. This fundamental ambition objective drives all EU legislation in the area of environmental legislation and it applies to criminal law measures as well. The concrete objectives, however, must be goals that can be achieved through criminal law and which allow to measure progress through appropriate indicators. This led us to drop the original general objective of reducing environmental crime and the specific objectives of reducing illegal trade, protecting fair competition and preventing ‘safe havens’ in the EU for criminals. Success of these objectives could not be measured against a baseline, as the amount of undetected environmental crime or illegal trade before and after the Directive is unknown. For the same reason, the extent of progress towards the former objectives of protecting fair playing businesses and preventing ‘safe havens’ was difficult to assess. Moreover, as explained in detail in the evaluation report, these objectives are influenced by many factors other than criminal law. The numbers of environmental crime and illegal trade and the prevention of ‘safe havens’ depend on the development of global trade (with steep upwards trends), on new opportunities through digitalisation and the interplay of criminal sanctioning systems with civil- and administrative sanctioning systems in the Member States.

Therefore, the focus of this review will be narrowed to what could be achieved by means of criminal law in the first place. As there is consensus that environmental crime is driven by high profits combined with a low detection risk, the objectives of this review must be to foster effective investigations, prosecutions and sanctioning.

Success will be measured through the numbers of environmental law cases successfully investigated and prosecuted, the numbers of convictions, and the type and levels of sanctions imposed that must become more effective, dissuasive and proportionate in practice. Developments have to be interpreted in context: today, in the Member States, there are only few environmental crime cases completed successfully and sanction levels are systematically too low. There have been no upward-trends in the past decade (see above, section 1.2 – ‘evaluation of the Directive ‘and the evaluation final report). In this situation, stable upwards trends in environmental cases in all Member States would point to the Directive’s effectiveness. As environmental crime is growing globally at percentage between 5 and 7 % globally, 119  a matching growth rate of successful investigations and convictions would be considered a success. By contrast, if - at a later stage - environmental cases were to decrease, this might indicate that the Directive was successful in deterring criminals.

The evaluation has, however, also shown that statistical data on the numbers of investigations, prosecutions, convictions, dismissed cases and sanctions imposed needed as indicators to evaluate and monitor success of EU-environmental crime policies either do not exist, or are fragmented, not collected according to uniform standards or inaccurate. Improving statistical data collection must therefore also be an objective of the Directive (see also section 8 on monitoring the success of the Directive). The table below shows existing EU objectives as defined for the current version of the Directive versus the objectives proposed for the review of the Directive:

Table 2, EU objectives in the current version of the Directive versus the objectives proposed for the review of the Directive

4.14.1    4.1    General objectives

The general objective of Directive is to contribute to the protection of the environment through criminal law by way of effective detection, investigation, prosecution and sanctioning of environmental crime. By this, it should ultimately contribute to the reduction of environmental crime, as effective law enforcement increases the risks of detection and punishment for criminals and reduces the chance to get away with the profits. Less environmental crime will help to preserve or restore a healthy and intact environment (see chapter 7 - impacts). Thus, the Directive will ultimately contribute to the overall goals set out in Article 191 TFEU and the Green Deal and the Biodiversity Strategy to improve the state of nature and the environment and to protect human health.

The general objective is supported by a number of specific objectives that aim at more effective investigation, prosecution and sanctioning at different levels:

4.24.2    4.2    Specific objectives

The following specific objectives have been identified:

1.Improve the effectiveness of investigations and prosecutions by updating the scope of the Directive and by inserting a feasible mechanism to keep the Directive up-to-date in the light of the European Green Deal.

2.Improve the effectiveness of investigations and prosecutions by clarifying or eliminating vague terms used in the definitions of environmental crime

3.Ensure effective, dissuasive and proportionate sanction types and -levels for environmental crime 

4.Foster cross-border investigation and prosecution

5.Improve informed decision-making on environmental crime through improved collection and dissemination of statistical data

6.Improve the operational effectiveness of national enforcement chains to foster investigations, prosecutions, sanctioning

5What are the available policy options?

In addition to the baseline of taking no further EU action on environmental crime (section 2.2), three possible main options have been considered. Two of them have been discarded (see below).

5.15.1    5.1    Options discarded at an early stage 

5.1.15.1.1    5.1.1    Repeal the Directive

This option is a "roll-back" option repealing the criminal law measures of the Environmental Crime Directive. The sanctioning of breaches of legislation designed to protect the environment would be left to EU sectoral legislation and to national law. Sectoral legislation contains mostly only generic provisions on penalties, only requiring that sanctions be effective, proportionate and dissuasive (standard penalty clause). 120 Moreover, sectoral law leaves it to the Member States whether these penalties are criminal or administrative.

Compared to only administrative sanctioning systems, complementary criminal law enforcement systems would provide for more effective tools. Firstly, criminal sanctions are more dissuasive as they include imprisonment penalties, which are not available under administrative law. With regard to legal persons, as they can better neutralise potential fines by passing on these costs to their customers and the costs of fines are often offset by the potential profits accrued through the violation, 121  the social stigma of criminalisation is important to enhance the deterrent effect as it brings about reputational damage that companies want to avoid. Secondly, criminal law also provides for more effective investigative tools such as controlled deliveries, wiretapping, surveillance and the confiscation of proceeds of crime, all this under judicial control. As environmental offences are often committed in the context of organised crime, corruption, fraud or money laundering 122  these tools must also be available for environmental crime as well to ensure effective investigations covering all aspects.

It is the unanimous position of all Member States and stakeholders that criminal law is indispensable to protect the environment. Repealing the Directive would send the wrong signal. It would deny the seriousness of this crime form, which causes enormous harm and globally generates illegal profits of an amount that equals organised crime. It would also counteract the growing awareness and prioritisation of the need to protect the environment and undermine the effectiveness of environmental protection which that can be strengthened only through concerted action and a holistic approach that includes criminal law.

Similarly, maintaining the Directive as such, i.e. without any change, would not address the shortcomings identified nor achieve any improvements at Union level, although guidance may help with its interpretation from the Union’s perspective. Neither can one put into sectoral environmental legislation the substance of the Directive as the sectoral legislation is not based on Article 83(2) TFEU and hence would not be appropriate for criminal law measures, e.g. to define the level and type of criminal sanctions.

5.1.25.1.2    5.1.2    Address the identified problems only through non-binding measures

The second option would be to maintain the status quo or introduce only non-legislative measures such as EU guidance on interpreting definitions and sanction levels. This option corresponds largely to the baseline as detailed above under section 2.2. A number of non-binding measures have already been taken as detailed above under section 2.2. - ‘baseline’. Additional guidance on interpreting vague terms in crime definitions and on data collection could further complement such measures.

However, the effectiveness of soft-law alone is uncertain and gaps in Member States’ implementation are likely to remain. Moreover, legal clarity in the field of criminal law is fundamental and especially the definitions of environmental crime cannot be left to non-binding instruments. But also in the other problem areas, the effectiveness of non-binding measures is limited, precisely because they are non-binding. For example, on the individual recommendation to Member States during the Council’s 8th Mutual Evaluations (see above under section 2.2.) so far only 13 Member States have reacted with different levels of ambition. Therefore, given the serious problems in the area, which have lasted for years, non-binding measures cannot be the appropriate response to the shortcomings of a Directive that includes mostly very generic provisions.

This is also the stance of the large majority of stakeholder, which consider non-binding measure useful or very useful but only in combination with anchoring binding provisions in the Directive. All groups and especially practitioners and NGOs have urged the Commission to be ambitious and improve the Directive revising the annexes.

Non-binding measures and guidance are, however, an important element for effective law enforcement. In the following, they are considered as an intrinsic part of any legislative option.

5.25.2    5.2    Relevant policy option: replacing the Directive

The only realistic option is to adopt a new Directive. An overview of the sub-options and cumulative measures under each specific objective can be found in the annex 10 (option table). The intervention logic is attached as annex 9.

6Description, Assessment and comparison of the sub-options under the Option to amend the Directive

Hereunder, the sub-options will be referred to as’ options’.

Approach to the structure of section 6:

Under each objective, several options to achieve them have been identified. Their detailed description is provided under section 6 along with the assessment of the options. This approach provides the reader with a description of the option in close connection with the respective assessment. The options are assessed against the following criteria:

·Effectiveness: To what extent is the option likely to contribute to the objective? Are the options sufficiently clear to lead to harmonised transposition and implementation in the Member States and to comply with the principle of legal clarity?  

·Coherence: To what extend the different options interact with other relevant areas and instruments of EU and international policy?

·Efficiency: What are the costs of each option and are they justified by the benefits?

It should be noted, that these criteria are not equally relevant for each of the options, so that not all of them will be assessed to the same extent under each option.

Approach to efficiency

To assess efficiency, cost are expected in relation to:

1.Measures proposed for each objective to lead to higher effectiveness and thus more environmental crime investigations, requiring additional staff in the Member States;

2.Broadening the scope of the Directive to include new environmental crime areas under the Directive which may lead to an increase in the number of environmental crime cases, also requiring additional staff;

3.The implementation of options such as enhanced training, improved cross-border cooperation, statistical data collection, strategy development and awareness raising measures which may cause some implementation costs but the expected mid- and long-term benefits would clearly prevail. 

The presentation of the efficiency assessment is organised as follows:

·Transposition costs will not be presented for the individual options per objective. They are similar for all options and will therefore not play a role for the comparison of the options. Under section 6 for objectives 1, 2 and 3 efficiency is not assessed, as these objectives are considered not to incur costs further than for transposition costs. (see, however, costs of additional staff, bullet point below).

·For objectives 4, 5 and 6, direct costs related to implementation of the proposed measures are presented (i.e. those linked to cost category 3 above).

·The costs of additional staff (category 1 and 2 above) are presented under objective 6. However, these costs are to be understood as stemming from a more effective Directive based on the concerted effects of all measures taken under all objectives. Also the cost of additional staff required to handle the additional workload from the broadening of the scope of the Directive (objective 1) will be calculated under objective 6, as these costs cannot realistically be separated from costs for the additional staff needed for more cases due to improved effectiveness of the Directive. 123  As it is not possible to attribute shared costs of additional staff needed to individual options or objectives or to specific new legislation that will be included under the Directive these costs will not play a role for the comparison of the options.

·Benefits under efficiency are understood in terms of positive environmental, social and economic impacts and are discussed in section 7, as there will be no measureable differences between the options that could influence their comparison.

·The economic impact on businesses and SME is generally addressed in section 7, and more specifically under those options that have a specific impact on businesses.

A more detailed analysis of the methodology and results of the costs calculation can be found in Annex 2B for each of the options considered in the following part.

6.16.1    6.1    Objective 1: Updating the scope of the Directive; introduce a simple mechanism to keep the Directive up-to-date also in the future

The options under the first objective seek to ensure that the Directive covers all relevant sectors of EU-legislation and to provide for a simple and flexible mechanism to update the Directive in the light of the European Green Deal.

6.1.16.1.1    6.1.1    Option 1 a): Update the existing list of legislation in the annexes, add new relevant crime categories to Article 3

Description

This option would maintain the current approach of Directive to define the scope of the Directive through sectoral legislation listed in annexes. Accordingly, the annexes would need to be updated by considering changes in legislation already included therein and new sectoral legislation that came into force after the adoption of the Directive.

In addition, corresponding new crime categories would have to be added to Article 3 where serious breaches of obligations deriving from new sectoral legislation do not fall under the crime categories in the current Directive. To illustrate, the EU Timber Regulation 124 prohibiting illegal timber trade is currently not listed in the annexes. Article 3 does not contain a crime category addressing this type of crime, either. It would therefore not be sufficient to add the Timber Regulation to the annexes. A corresponding new crime definition would have to be added in Article 3.

In the future, if new relevant EU sectoral legislation is adopted, it must be added to the Directive’s annexes through legislative procedure. In the same legislative procedure, a corresponding new crime category may have to be added under Article 3, if the sectoral act is not covered by one of the existing crime categories under Article 3. 125  

Introducing comitology procedure would be possible only for non-essential elements in the Directive. However, it would be essential to enlarge the scope of a criminal law legislative instrument and add new environmental offences. According to Articles 290 and 83(2) TFEU, it is for the Union legislator to take such a decision

Similarly, where an amendment (or replacement) of legislation already listed in the annexes would amounts to a substantial change of obligations and related infringements 126 , the Union legislator will have to re-assess whether an effective implementation of the “new” obligation requires that infringements are to be considered a criminal offence, i.e. it will have to adapt and/or amend the relevant references in the Annexes ( or possibly adopt a new act based on Article 83(2) TFEU.

Effectiveness

This option would therefore not be more effective than the current Directive with regard to future updates of the annexes and Article 3 definitions.

The Commission will have to become more pro-active in proposing to co-legislators amendments to keep the Directive up-to-date through legislative procedure (the status quo) and to ensure coherence with fast evolving sectoral legislation. The Commission would need to propose with sectoral legislative proposals also changes to the Directive, which would be based on a different legal base.

6.1.26.1.2    6.1.2    Option 1 b) Change the approach to define ‘unlawfulness’ and define more precisely which breaches of sectoral legislation are criminally relevant.

Description

Under this option, a generic reference to the relevant EU and national transposing legislation would be combined with a more precise offence definition without using annexes. The conducts that constitute the criminal offences would be described in specific provisions which, to ensure legal clarity, would entail both refinement of existing offence definitions and introduction of new offences (e.g. illegal timber trade) mirroring trends in environmental crime and legislative developments  The annexes would be replaced by a ‘general reference’ to relevant sectoral legislation. 127 ).

Effectiveness – Legal clarity

This approach would avoid the shortcomings of using a legal technique with annexes that become more and more outdated over time and not suitable to ensure legal certainty. 128  

Experience showed that references to legislation listed in an extensive annex (even without specifying the relevant deriving obligations) cannot guarantee the legal clarity principle. It is unclear which of the obligations and prohibitions have to be enforced by criminal sanctions and which ones are sufficiently protected through administrative sanctioning systems. In line with the principles of the proportionality of sanctions and the use of criminal law as ‘ultima ratio’ not every infringement of an administrative rule can and should be considered a criminal offence. Therefore, the unspecified reference to a list of EU-sectoral legislation does not add to legal clarity.

Instead, it should be defined more precisely under Article 3 which of the breaches of obligations deriving from relevant sectoral EU legislation could constitute environmental crime.

An approach for defining the scope of the Directive by a refined definition of “unlawfulness” and more precise description of the offences would ensure the necessary clarity, including for the Member States when transposing the Directive and for practitioners.

6.1.36.1.3    6.1.3    Option 1 c): Define environmental crime in the Directive without the requirement of a breach of relevant EU sectoral legislation

Description

This option would define environmental crime without the element ‘unlawful’ or ‘illegal’, thus without a reference to sectoral legislation. Instead, the damage caused to the environment or human health would be constituent for a criminal offence. Precedents at supranational level are the (repealed) 2003 Council Framework Decision that did not require unlawful behaviour in its Article 2 (a) 129 in case of serious harm for a person or death. The Council of Europe Convention on the Protection of the Environment through Criminal Law (1998) defines environmental crime as a stand-alone offence independent of a breach of sectoral law 130 for the most serious forms of crime. 131 The concept of ‘ecocide’ that is currently debated can also be understood as an approach to define serious environmental crime independently from breaches of sectoral legislation.  

Effectiveness

This option would be effective in preventing the Directive from becoming outdated, as non-compliance with sectoral legislation would not be a crime-constituting element.

Proportionality

However, option 1 c) would have impacts that go further than ensuring that the Directive does not become outdated in the future. It could increase the level of environmental protection, but would mean a paradigm shift in loosening the administrative dependence of environmental crime, which has been the predominant approach in the EU. Thus, additional cases would be criminalised that are currently not covered by the Directive. However, some businesses, in particular SMEs, would not have the capacity to carry out extensive risk assessments or take other mitigation measures.

Economic impacts on businesses

Criminalising environmental impacts independently from sectoral law could increase the business risks for enterprises and result in higher costs for due diligence and legal capacity, issues currently driven only by administrative legislation. This risk could be elevated for SMEs as described above. Businesses also claim that issues with administrative permissions being issued too easily and administrative law favouring the interest of an industry over the health of the citizens must be solved by stricter rules at the administrative level and not compensated for by criminal law at the expense of the businesses.

6.1.46.1.4    6.1.4    Comparison of the options/preferred option

Option 1 a) is effective only in updating the Directive in the course of this review. It does not spare the EU legislator future updates of the annexes and Article 3 to include new crime legislation and corresponding crime categories.

Option 1 c) would change the approach to define environmental crime by eliminating the link to sectoral legislation and thus remove the cause for the Directive becoming outdated. However, it would come at higher costs for legal businesses, although this option could probably help reduce negative social and environmental impacts (see also section 7 below). However, this option could only be justifiable and proportionate; in cases where very serious harm was caused that goes beyond what could be justifiable by permits or other administrative authorisations. It could therefore not replace, but only complement offences linked to breaches of sectoral legislation. Thus, it cannot be generally effective in preventing the Directive from becoming outdated.

Option 1 b) would remove the annexes and thus the need to update them. Legal clarity would be ensured by adding more precision to the crime definitions under the Directive, in particular with regard to the element ‘unlawful’ that must describe in more detail which types of obligations in sectoral are essential to be enforced by criminal law (see below under objective 2).

Also Option 1 b) does not provide for a simple mechanism to apply if new crime categories under Article 3 should be added, e.g. following the adoption of new sectoral legislation The definition of new environmental crime categories must be done, as under the current Directive, by the European legislator.

Conclusion

Option 1 b) is the preferred option.

6.26.2    6.2    Objective 2: Clearer definitions of environmental crime

The definitions of environmental crime categories under Article 3 use terms such as ‘substantial damage’, or ‘negligible or non-negligible quantity’ that make the existence of environmental crime dependent of the severity of the damage caused. As there is no common understanding how to delineate e.g. substantial damage from non-substantial damage, these terms leave much room for different interpretations (see above section 2.1.2)

Less ambiguous crime definitions would also have positive impact on other specific objectives. They would facilitate cross-border cooperation (objective 4), but also cooperation between different authorities along the law enforcement chain within a Member State (objective 6). A similar understanding of the scope of an environmental crime definition would also foster the collection of comparable statistical data in the Member States and thus contribute to objective 5.

The options assessed below are mutually exclusive, insofar as only one option can apply per crime category under Article 3. However, as Article 3 comprises several crime categories, the options can exist in parallel as different approaches to define environmental crime might be chosen for different crime categories.

6.2.16.2.1    6.2.1    Option 2 a): Define unclear terms more precisely in the Directive 

Description

The option to define environmental crime more clearly in the Directive would foster a common understanding of how to determine the amount of damage that constitutes environmental crime. It would be necessary to explain in more detail the meaning of vague terms such as ‘substantial damage’, and ‘non-negligible quantities’.

Under this option, the Directive could include general criteria to better determine notions, such as ‘substantial damage’, ‘negligible quantity’ or ‘non-negligible quantity’. The following criteria are an indication of what would be relevant:

·baseline condition of the affected environment;

·severity and spread of the damage;

·amount of material losses (in terms of tax losses, or legal profits, or restoration costs)

·non-material value of natural objects, rareness of the natural objects impacted or destroyed,

·degree and duration of the negative impact on the environment,

·reversibility of the damage and costs of restoration;

·extent to which relevant regulatory thresholds are exceeded;

·conservation status of species concerned.

In addition, under this option, it should be carefully considered whether all terms used in the crime definitions of Article 3 must be defined or whether some of them could be eliminated.

Effectiveness

This option would improve the clarity of the Directive. However, it is not possible – nor would it be desirable – to come up with too detailed definitions that would produce unambiguous results in any given set of circumstances. Such definitions would lack flexibility and thus be prone to creating loopholes. For example: defining a precise threshold for financial losses (in terms of lost taxes, legal profits, or costs to restore the financial damage) that would constitute ‘substantial damage’ would not take into account the economic situation in the Member States and would not adapt to fluctuations of currencies over time. Eventually, in practice it is not always possible to attribute a value to the environmental harm or loss.

6.2.26.2.2    6.2.2    Option 2 b): Eliminate undefined terms, including by criminalising risky behaviour (endangerment crime)

Description

Environmental criminal offences could be defined without the constituent element of a damage or the risk of such damage. This approach would be relevant in cases where an activity is considered per se as dangerous and harmful so that it would be justified to criminalised it as a risky behaviour. The offence description would then be based on relevant prohibitions, binding requirements and other obligations defined in sectoral law. For example, sending big ships for recycling in unauthorized facilities (or the illegal recycling activity) could be seen as such a generally prohibited dangerous and risky activity which could be criminalized without a requirement of causing damage or likelihood of causing damage.

Effectiveness

Article 3 c), f), g) and i) of the current Directive already include variations of endangerment crimes that address certain actions considered per se risky for the environment. It could not be observed that these crime forms are successfully investigated more often than other crime forms. It must, however, be noted that changes of just one element - such as the definition of environmental crime – are not expected to measurably translate into higher numbers of prosecutions and convictions. As could be demonstrated in the evaluation, the effectiveness of environmental crime investigations depends on many factors (reflected by the six objectives in this review) and a multipolar approach is needed to improve the situation.

This option would also alleviate the burden of proof. In practice, it has always been difficult to establish whether a substantial damage has occurred and whether the offender acted with the intention to cause serious damage. Moreover, proving the causal link between action and damage is often problematic in practice, for example if a company releases dangerous substances into a nearby river already polluted or where the damage becomes manifest only over time. In practice, these obstacles have led to environmental crime not being investigated. Under this option is would also be possible to prosecute cases of pollution that do not have an immediate effect but which might lead to damage in the long term. Endangerment crimes are therefore the preferred option of practitioners. Especially, Europol advocates for this option.

However, this approach has its limits, because defining all environmental crime as endangerment crime would not fit all situations and objectives, this approach would therefore not be suitable for all possible scenarios and crime categories under Article 3 of the Directive.

Economic impacts on businesses

Businesses have reservations on the definition of endangerment crimes that criminalize violations of administrative provisions or the breach of conditions of an authorization. They claim that overstepping rules can happen accidentally and without the purpose of gaining illegal profits at the expense of the environment. It would mean a disproportionate burden for otherwise legally operating businesses – especially for SMEs – as being the subject of criminal proceedings. This would be the case already today, as e.g. in the field of illegal shipment of waste mistakes in accompanying documents and certificates are criminalized. Businesses suggest that only those companies disrespecting administrative rules systematically, repeatedly and with the intention to gain illegal profits, should be held criminally liable. For other companies, administrative sanctions would be sufficient.

6.2.36.2.3    6.2.3    Option 2 c): a combination of option 2a) and 2b)

This option is a combination of option 2 a) (clarification of undefined notions in the Directive) and 2 b) (eliminating or reducing the use of undefined terms) for the various crime categories under Article 3.

Option 2a) appears to be indispensable for cases in which great harm is produced that can be proven in environmental crime proceedings. Endangerment crimes would catch cases where the legislator has decided that the infringement of sectoral rules would put the environmental at an intolerable risk even without damage or likelihood of damage occurring from each individual infringement.

Both types of description of criminal offences are used in the current Directive, and thus option 2c would maintain the current architecture. It would have to be carefully analysed which approach should be used for any new criminal offences to be possibly introduced in a revised Directive.

6.2.46.2.4    6.2.4     Stakeholder opinions

Overall, the vast majority of stakeholders supported clarifying undefined terms in the Directive itself. At the same time, a large majority also favoured providing (complementary) non-binding guidance. A significant number of the industry stakeholders (about one-third) considered the option of providing non-binding guidance not useful.

Most Member States endorsed legally binding definitions in the Directive itself but also acknowledged that it might be difficult to strike a balance between sufficiently clear definitions and the need to maintain a necessary degree of flexibility to cover all possible scenarios. A large majority of the Member States welcomed (additional) soft law measures.

Europol advised to clarify or even remove undetermined concepts and stressed that it may not be realistic to require that the Directive contains all possible definitions. NGOs agreed that the revised Directive should provide clear definitions on key terms and opted for additional non-binding guidance documents. According to many academic stakeholders, it would need detailed and clear definitions to enable national legislators to formulate clear offences.

6.2.56.2.5    6.2.5    Comparison of the options/Preferred option

The preferred option is option 2c), as the combination of different techniques for the definition of criminal offences allows a tailored approach to different type of environmentally harmful activities and risky behaviour.

As indicated above, a refined definition of “unlawfulness” would continue to represent part of the legal technique used for the definition of criminal offence and the scope of the Directive. It would clarify that criminal offences under the Directive are serious breaches of EU legislation related to the protection of the environment as well as relevant national law or administrative regulation or decision giving effect to this legislation. The combination of a refined definition of “unlawfulness” and the more precise definition of criminal offences would ensure fulfilment the requirements of the principle of legal certainty.

6.36.3    6.3    Objective 3: Improving the proportionality and dissuasiveness of sanction types and levels

The current Directive requires ’effective, dissuasive and proportionate sanctions’ without further specification. This generic approach has not led to sufficient harmonisation of sanction levels in the Member States. Sanction levels available at national level are not in all cases effective and dissuasive. Therefore, maintaining the Directive as such, i.e. without any change in the area of approximation of sanctions, would not address the shortcomings identified nor achieve any improvements at EI level.

The following options are not mutually exclusive but could reinforce each other:

6.3.16.3.1    6.3.1    Option 3 a): Introduce minimum maximum sanctions levels

Description

Minimum maximum sanctions define maximum sanctions that Member States must at least provide for in their national law concerning a specified offence. They must be distinguished from minimum sanction levels that oblige criminal judges to not hand down sanctions below that threshold. The latter are more effective in ensuring an appropriate level of sanctions imposed in practice and are part of a number of Member States legislations. However, in other Member States such minimum threshold would meet constitutional problems as they do not allow the judge to remain below that level even if that would be justified a given case. Member States have therefore strongly resisted attempts to introduce such minimum sanction levels into their national law. As Article 82 para. 2 TFEU requires respect for the Member States legal traditions and systems in the field of criminal law, a possible option to propose minimum sanction levels was dismissed from the start.

By contrast, minimum maximum sanctions in criminal law instruments are an established practice for harmonising sanctions in EU criminal law (see PIF Directive, Market Abuse Directive, Euro counterfeiting Directive).

More specifically, the proposed minimum-maximum level of sanctions will be graduated according to the severity of the criminal offences referred to in Article 3, so that the Directive will provide for more severe penalties where the conduct has caused or is likely to cause death or serious injury to persons. Furthermore, the Commission will take into account the sanction thresholds in other criminal law Directives adopted on the basis of Article 83(1) and (2) TFEU and the significance of the legal interests protected to ensure coherence.

Coherence

Minimum maximum sanction thresholds would ensure coherence of the Directive with other instruments in the criminal area. These instruments often apply only to serious crime defined by the level of maximum sanctions available according to national law. 132  

·The European Arrest Warrant does not currently apply to environmental crimes if national law does not provide for a maximum level of at least 1 year imprisonment sanction (or if a sentence has been handed down of less than 4 months). Maximum penalties in BE, IT, LU, and SE are lower than 1 year for some Article 3 offences. 133   

·The Directive on the European Investigation Order (EIO) does not set any penalty level for the issuing of an order. Nevertheless, Article 6(2) provides that “the investigative measure(s) indicated in the EIO could have been ordered under the same conditions in a similar domestic case”; therefore if the issuing Member State provides in its national law for a maximum penalty level to be met in order for an investigative measure to be carried out, this applies also in the case of the EIO.

·The 2000 UN Convention against Transnational Organised Crime (UNTOC) that promotes effective investigations including confiscation and seizure as well as international cooperation to combat serious crime that is transnational in nature and involves an organised criminal group. The UNTOC would only apply to environmental crime where it is punishable by a maximum of at least 4 years of imprisonment. This threshold is not reached in a number of Member States and for a number of environmental crime areas under Article 3 (see annex 4 - baseline).

Effectiveness

Experience with other EU criminal law instruments is that minimum maximum – although sending a strong signal that the respective crime category is considered as serious - have limited effect on sanction levels imposed in practice. Also with regard to environmental crime, even in Member States, which provide for high maximum sanction levels, sanction levels imposed remain too often in the lowest segment of the available scale. 134  

Therefore, this option would not be effective, if not supported by other measures.

6.3.26.3.2    6.3.2    Option 3 b): Option 3a) plus aggravating circumstances and accessory sanctions

Description

Therefore, in addition to option 3a), defining aggravating circumstances and accessory sanctions could contribute to harmonising sanction levels also in practice and thus ensure their effectiveness.

Examples of aggravating circumstances in other criminal and non-criminal instruments include the severity of the damage done, 135 the amount of illegal profits generated or expected, the involvement of organised crime groups 136 or corruption, action taken by the offender to obstruct administrative controls, the use of false or forged documents, intentional or reckless action, committing the crime with the intention to generate illegal profit, or repeated illegal action of the same nature. 137   

Article 19(2)(a) of the Timber Regulation (EUTR) gives some indication of the criteria that Member States can take into account in determining the type and level of financial penalties to apply to EUTR breaches. The list includes environmental damage, value of the timber products placed on the market, tax losses, economic detriment and economic benefits resulting from the infringement.

Examples of accessory sanctions are also found in other EU criminal law instruments that entered into force post-Lisbon. Accessory sanctions can include temporary or permanent closure of sites used to commit a crime, the winding up of a legal entity involved in the crime. confiscation of proceeds and seizure of instruments used to commit the crime, exclusion from public procurement procedures and grants, publication of a criminal conviction, withdrawal of permits and authorisations, the disqualification of directors, compensation of victims, the obligation of companies to install due diligence schemes, placing under surveillance of legal entities involved in the crime. Especially with regard to environmental crime, the obligation to restore damaged nature could play a decisive role. In the following, two accessory sanctions are presented in more detail:

The restoration of nature as accessory sanction – coherence with the ELD

The obligation to restore nature has no precedence in other EU criminal legislation and would be a sanction typically connected to environmental crime. The 4 Networks (IMPEL, EnviCrimeNet, ENPE, and EUFJE) in a common statement on 21 May 2021 have strongly recommended that in all Members States, criminal judges should be entitled to impose, apart from financial penalties and imprisonment sanctions, also remedial sanctions such as the restoration of nature 138 . This would imply an integrated approach of both administrative and criminal sanction types creating systemic coherence. Such an integrated approach including especially the restoration of nature has also been called for in a 2021 resolution of the European Parliament 139 , as well as by NGOs. 140

Such an approach exists in some jurisdictions:

Australia has adopted a model of ‘reparative justice’ through the New South Wales Land and Environment Court Act, which provides a combination of punitive and reparative sanctions, the latter including the obligation for the offending company to publicise the offence and its consequences, to carry out specified projects for restoration or the enhancement of the environment, to pay a specified amount to the Environmental Trust, or to organise a training course for its employees. Source: UNEP 141

Under current EU legislation, the restoration of environmental damage is provided for in the Environmental Liability Directive (ELD). 142 The ELD establishes a framework of environmental liability, based on the "polluter-pays" principle, to prevent and remedy environmental damage by obliging the operator to restore nature to its previous condition.

An obligation to restore damage under the Environmental Crime Directive could overlap with the ELD. It is therefore important to ensure coherence between the two instruments. The conditions under which the obligation to restore nature are different under the two instruments, the latter requiring a criminal conviction. In addition, the environmental scope of application of the two instruments overlap but are not identical. However, there is a high potential for synergies: the ELD includes procedural rules and the obligation for Member States to appoint a competent authority to enforce the ELD. It also contains a definition of the concept ‘restoration of the environment’ and how to achieve it. 143 These definitions and structures could also be used, if the obligation to restore damage were to be imposed during criminal proceedings/by a criminal judge. The Environmental Crime Directive could make reference to the ELD in this regard.

The confiscation of proceeds coherence with the Freezing and Confiscation Directive

Practitioners but also other stakeholders have particularly emphasised that effective and dissuasive sanctioning would require that the enormous illegal profits and other benefits are removed in full. This can be achieved by ensuring that the Directive is coherent with Directive 2014/42 EU (the Freezing and Confiscation Directive). Currently, the scope of the Freezing and Confiscation Directive’s scope does not include environmental crimes. However, it does apply to legal instruments that reference the Freezing and Confiscation Directive. It would therefore be sufficient to include a simple reference in the Environmental Crime Directive to make it coherent with the Freezing and Confiscation Directive and improve its effectiveness with regard to sanctioning.

Effectiveness

Accessory sanction and aggravating circumstances will directly impact the sanctioning in practice. The existence of aggravating circumstances can contribute to judges imposing higher and more dissuasive sanction, using the full range up to the maximum sanction threshold, where appropriate. In the same way, aggravating circumstances could also lead to a more harmonised sanction practice across the EU.

Accessory sanction will also contribute to more effective and dissuasive and proportionate sanctions, as they provide the criminal judge with a toolbox from which he could choose the most appropriate and dissuasive ones adapted to the individual case. Accessory sanctions could be even more dissuasive than financial penalties, in particular with regard to legal persons. For example: confiscation or forfeiture can serve as a very dissuasive tool, as the value of property and assets confiscated can reach amounts surpassing the benefits of a crime.

Case study – glass eels

6.3.36.3.3    6.3.3    Option 3 c): Option 3 b) plus an obligation to link the level of fines to the financial situation of legal person and/or illegal profits

Description

A provision could be included into the Directive obliging Member States to take into account the annual turnover of a company and illegal profits generated or expected when determining the appropriate level of a financial penalty. 144  

Effectiveness

The financial situation of legal persons generally differs considerably from that of natural persons. Legal persons/companies to a higher degree than natural persons are able to outbalance financial fines, e.g. by off-setting them against the illegal profits generated/expected or as counting them as part of operating expenses. 145  The ECJ has held on several occasions that a dissuasive sanctioning system must take account of the financial situation of the offender 146 . Similar arrangements exist for example in EU (non-criminal) competition law 147 or in sectoral legislation, but also in national environmental criminal law. 148  

Council Regulation (EC) No. 1005/2008 of 29 September 2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing lists certain behaviours as serious infringements. For this category of infringements, Article 44(2) of the Regulation provides for an approximation of the maximum levels of administrative fines foreseen in relation to serious infringements, requiring Member States to impose a maximum sanction of at least five times the value of the fishery products obtained by committing the serious infringement.

For environmental offenses covered by the Directive committed by legal persons, some Member States already link criminal fines to the financial situation of the offender. In HU, the maximum level of fine for all Article 3 offenses is three times the financial benefit gained or expected. If the benefit gained or expected through the criminal act is not a financial advantage, the court imposes the fine considering the financial situation of the legal entity. In NL a fine may be imposed up to a maximum of 10 % of the annual turnover of the legal person in the business year preceding the judgment or decision [3].

In PL and AT, maximum fines are limited by the income or profit of the legal entity. PL sets a maximum fine of 1,250,000, but this fine should not exceed 3% of the yearly income of the entity for all Article 3 offenses. AT makes a distinction between fines for for-profit (between EUR 50 and 10,000 per day) and non-profit (between EUR 2 and 500 per day) legal persons for all Article 3 offenses, with maximum fines of 7,200,000 (or 720 daily units) for all Article 3 offenses except for 3(g) offenses (which have a maximum fine of 3,600,000). 149  

Impact on businesses

Sanction systems linked to economic parameters (such as the financial situation of a company) can result in higher fines for large companies. This represents a risk for legitimate businesses that accidentally cause damage through their operations. However, such sanction systems are already in place in several Member States for environmental criminal or administrative law. 150 Additionally, more harmonisation between administrative and criminal sanction systems contributes to creating a more even playing field for legitimate businesses across Europe. In the public consultation, businesses said that a blanket approach based on the financial situation of companies, independent of the type of conduct involved would not be appropriate. Instead, the nature, degree of culpability, frequency, harm caused, any previous warnings from a regulator and seriousness of non-compliance should all be considered to define the appropriate sanction.

6.3.46.3.4    6.3.4    All options: non-binding guidance e.g. on determining of illegal benefits, calculation of illegal profits, financial situation of legal persons etc.

The option to harmonise sanction levels only through non-binding measures was discarded above under section 5.1.2. Guidelines and benchmarking could, however, complement binding anchor provisions in the Directive and contribute to further harmonising sanctioning of environmental crime and its effectiveness in practice.

Sanctioning principles have been formulated in the context of the Commission’s Action Plan to foster environmental compliance and governance. 151 These could be further developed. Special guidance could also be necessary to harmonise sanction levels of financial penalties through e.g. adopting a methodology how to take into account illegal profits and the financial situation of a legal person. For example, if not already regulated in the legislative text (see example above), such guidelines could determine the minimum- or average percentage of the product value or of the economic benefit resulting from the infringement and/or of the annual turnover of a company. Guidance could also be necessary to help determine the value of a benefit or profit obtained from the criminal activity. As such guidelines already exist or are planned for, e.g. in the context of the Environmental Liability Directive, this could lead to synergies. Stakeholders in general have expressed great support for a combination of binding and non-binding measures to improve and harmonise sanctions.

6.3.56.3.5    6.3.5    Coherence with EU sectoral legislation - relationship between criminal and administrative sanctioning systems

As illustrated above, the provisions on sanctions in the Directive can overlap with penalty clauses used in sectoral legislations listed in the Directive’s annexes or other administrative national or EU-legislation. These instruments do not contain any provisions on the relationship of parallel administrative and criminal sanctioning tracks that would ensure their coherence and the ne-bis-in-idem principle 152 :

The Commission is currently reviewing a number of these sectoral instruments. 153 This gives the opportunity to ensure their mutual coherence and coherence with the Environmental Crime Directive. To prevent overlaps and diverging rules with regard to sanctioning, EU sectoral legislation should only regulate administrative sanctioning systems. 154  Administrative sanctioning systems would continue to apply according to the sectoral legislation or according to the national law of the Member States. The combination of administrative and criminal sanctions should not breach the ne-bis-in idem principle (see for this issue also under section 6 – heading overarching national strategies). 

The Environmental Crime Directive and EU sectoral legislation should provide for corresponding accessory sanctions types. This would ensure that under both sanctioning tracks there is sufficient flexibility to react appropriately to the individual case.

6.3.66.3.6    6.3.6    Stakeholder opinions

All measures are supported by a large majority of the stakeholders. A large majority sees a need for provisions on minimum maximum sanction level, aggravating circumstances and accessory sanctions. The usefulness guidance material, compilation of best practices and enhanced and better tailored training was also largely confirmed.

Almost all Member States could endorse the introduction in the Directive of minimum levels for maximum sanctions for environmental crimes. Some Member States have reservations against the definitions of aggravating circumstances and accessory sanctions as well as linking the level of imposed penalties to the profits or turnover of a company.

For one third of the practitioners responding to the public consultation the minimum maximum sanction levels are not useful. One third of the industry stakeholder considers the minimum maximum sanction levels to be not useful. The four networks in a joint statement highlight the need of minimum maximum sanction levels. In Eurojust’s view, cross-border investigations and prosecutions of environmental crime in the EU would benefit from the application of more uniform and dissuasive penalties for such crimes across the EU. According to Eurojust, it is essential to remove/confiscate the proceeds of environmental crime more systematically.

A large majority of the Member States, the practitioners and of NGOs advocate for linking the level of imposed penalties to the profits or turnover expected or the profits generated and to the financial situation of business involved in committing the crime. A minority of the industry stakeholders favours this option. One third of the industry stakeholders does not consider this option or the definition of aggravating circumstances and accessory sanctions, to be helpful.

The academic stakeholders strongly support new forms of sanctions for companies, such as the obligation to repair the damage to the environment. Academia have long advocated that a toolkit of administrative and traditionally criminal sanctions be made available to criminal judges. The Fundamental Rights Agency emphasises that sanctions against legal entities must be sufficiently dissuasive, stipulated in national law and effectively implemented.

6.3.76.3.7    6.3.7    Comparison of the options/preferred option

The preferred option is option 3 c), which includes the other two options. Each individual option can only develop its full potential with regard to effectiveness, if flanked and complemented by the other options. While minimum maximum sanction levels ensure that a common sanction level is available in the Member States that appropriately reflects the harmfulness of environmental crime, aggravating circumstances aim at imposing appropriate sanction levels also in practice. Accessory sanctions introduce sanction types other than the fines and imprisonment and target in particular legal persons, which often find accessory sanctions more dissuasive than criminal or administrative fines. They can be of different nature and designed to remove the illegal profits from the offender, or to stop future activities e.g. by seizing the means, which were used to commit the crime. To increase also the dissuasiveness of fines, the level of fines imposed will have to take account of the financial situation of legal person, at least where this appears appropriate. Finally, as it is particularly important to remove illegal profits, which can be enormous and are a key incentive to commit environmental crime, fines must at least reach the level of the profits generated. In this way, a full EU criminal sanction system can be created that has all tools at its disposal to come to the most effective and suitable sanction or mix of sanction in the individual case.

6.46.4    6.4    Objective 4: Improving the effective cooperation and coordination between Member States

Practitioners highlighted that effective cross-border cooperation is essential for investigations of environmental crime 155 to succeed. The current Directive does not contain provisions targeting cross-border cooperation.

In the following, a package of measures that support each other will be assessed. We have chosen not to discuss each of these measures as an individual option as each measure tackles different aspects of the problem area and therefore cannot be regarded as alternative options. They are different elements of the same bundle, parts of a package, to address properly all facets of the objective.

We could not identify additional options or alternative packages of options. All conceivable measures as suggested by stakeholders and have been included in the package below. Also in other criminal law instruments there were no other solutions with regard to the problem at hand.

6.4.16.4.1    6.4.1    Option – introducing a package of provisions directly fostering cross-border cooperation

The Directive could contain additional provisions directly fostering cross-border cooperation. Examples of such measures exist in other criminal law instruments 156 and oblige Member States to  

a.provide for investigative tools for organised crime and other serious crime forms (such as telephone interceptions, video surveillance, tracking, undercover agents and controlled deliveries); Member States which currently do not allow to use these investigative tools for environmental crime investigations would be obliged to do so.

b.cooperate through EU-agencies and other bodies mandated to facilitate cross-border cooperation such as Europol, OLAF, Eurojust and professional networks such as ENPE, IMPEL and EnviCrimeNet.

c.install national contact points for cross-border cooperation. National contacts points could facilitate coordination, information sharing and joint planning at national level as well as contact and cooperation through Europol and Eurojust.

6.4.26.4.2    6.4.2    Effectiveness, legal feasibility and coherence 

Investigative tools

Access to the most effective investigative tools in all Member States would facilitate effective cross-border cooperation, such investigative tools are normally conditional on the seriousness of the crime and in some Member States conditional on whether the environmental crime is linked to organised crime. Under this option, there would be no further conditions to apply investigative tools also to environmental crime. Effectiveness is limited insofar, as this provision does not harmonise the investigative tools available for environmental crime overall. Member States would therefore only obliged to make available tools that exist already in their national law. This is justified for proportionality considerations and the principle to respect Member States legal traditions and systems when harmonising rules to facilitate judicial cross-border cooperation (Art. 82 (2) TFEU).

Cooperation through EU-agencies like Eurojust, Europol and OLAF

An obligation to involve EU-agencies that are mandated with facilitating cross-border cooperation could help increasing the frequency of cross-border cooperation and thus contribute to investigations that are more effective. These agencies may only act when requested by the Member States.

National contact points

The creation of national contact points could help further foster intense and regular EU-wide contacts on the operational level and tear down barriers that existed to so far in tackling cross-border environmental crime cases. This measure could build on the existing professional networks of environmental law enforcement practitioners and prosecutors whose work has already paved the way for better cross-border contacts at national level. 157

Stakeholder opinions

All measures are supported by a large majority of most stakeholder groups. However, the large majority of businesses that replied to the public consultation do not consider harmonisation measures are necessary. The joint statement of the four networks emphasises the need for cross-border cooperation within the EU. NGOs support the use of existing mechanisms of cooperation with European Agencies (Eurojust, Europol).

6.4.36.4.3    6.4.3    Efficiency

Investigative tools

Should the specialised investigative tools be used more widely also due to the broader scope of environmental crime, or due to an overall increase in awareness about environmental crime and prioritisation of such investigations, additional costs for the use of these tools are likely. There is no quantitative data available on the costs of using investigative tools available in the Member States. However, prosecution officers from two Member States noted in interviews that these techniques can be costly, particularly for translation and telecommunication services. Media reports have also noted the relatively high cost of wiretapping efforts, mostly linked to telecommunication services. The benefits in terms of improvements in the efficiency of investigations and prosecution and the further social and environmental impacts (see section 7) would nevertheless be very high, hence this measure is deemed efficient.

Cooperation through EU-agencies and bodies mandated to facilitating cross-border cooperation such as Europol, OLAF and Eurojust; install national contact points for cross-border cooperation;

Using reference data from previous impact assessments, a range of 12 – 20 days per contact point annually was estimated. Contact points are assumed to be required in five different areas (administrative authorities, police, customs, prosecution and courts) per Member State. Costs are presented in the table below.

Table 3, estimated annual costs of establishing and maintaining focal points in the Member States

Many Member States have representatives in professional networks of law enforcement practitioners specialised in environmental crime (i.e. IMPEL, ENPE, EUFJE and EnviCrimeNet). These representatives could formally take on the role of national contact points, so that synergies could be used and cost reduced.

6.4.46.4.4    6.4.4    Conclusion

The measures proposed under this option are each effective on their own merits, but combined they support and reinforce each other. As shown above under section 2.2 - baseline, mandatory provisions in the Directive are necessary to support the effectiveness of already numerous existing non-binding measures and trainings that support cross-border cooperation. 158  

6.56.5    6.5    Objective 5: Improving data collection, statistics and reporting on environmental crime

The options to improve data collection and dissemination and statistics in the Member States are:

Legislative options:

Option 5 a): Oblige Member States to collect data, prepare statistics and actively disseminate them, and regularly report to the Commission statistical data related to environmental crime.

Option 5 b): Oblige Member States to collect and report statistical data according to harmonised common standards

Further measures to support both options:

·Provide for EU-guidelines on the collection, sharing and reporting of statistical data on environmental crime.

·Provide for non-binding EU guidelines on developing common standards for collecting, sharing and reporting of statistical data.

·Professional training for national law enforcement authorities on the collection, sharing and reporting of statistical data. based on EU-training modules

·Provide for a common EU platform to be used by Member States for sharing and reporting of statistical data/use of the existing e-justice portal.

6.5.16.5.1    6.5.1    Option 5 a): Oblige Member States to collect and regularly report to the Commission statistical data on environmental crime proceedings combined with further supporting measures

Description

Under this option, Member States would be obliged to collect and process relevant data, compile statistics, and report such statistical data themselves to the European Commission, but they can choose how they will do it.

Efficiency

Provisions obliging Member States to collect data on scale of environmental crime and efforts to combat it, prepare statistics and report to the Commission specific statistical data on criminal proceedings exist in other Directives. 159  The legal concepts, criminal justice systems, data and methods of crime statistics vary greatly between European countries, as well as the efforts to collect accurate and complete statistical data at all. The lack of standardised instruments and methodology limit the comparability of crime statistics.

Supporting measures

The option could therefore be supported by non-binding measures such as guidelines and training. Such measures already exist today and could be stepped up. E.g. the ‘Guidance on combating environmental crime and related infringements’ 160  provides guidance on data collection and information sharing. Although this helps Member States to get understand techniques and best practices, it is does not ensure that all Member States comply.

An EU-format or platform at EU level to share and report to the EU the statistical material collected could make it easier for Member States to share and report their statistical data. A platform would use standard IT tools and a common reporting format. Especially, combined with an obligation of the EU to publish annual reports on the developments of law enforcement proceedings in the Member States based on the statistical data reported could lead Member States to see the benefits of reliable, accurate and comparable data in the field of environmental crime. Synergies with existing EU-portals disseminating crime statistics could be used. Such portals exist for example at: Eurojust, Europol, Eurostat (section on Crime and Criminal Justice statistics ), EMCDDA (European Monitoring Centre for Drugs and Drug Addiction).

However, without a standardised format, it will be difficult to compile comparable statistical data on a European level given the language differences, the different procedural rules at each stages of criminal proceedings and the variations e.g. on the conditions for dismissing a case across Member States. Although 19 Member States already publish data on environmental crime in various national publications 161 , this data collection is fragmented across different authorities in each country, without much central national coordination The Directive would therefore have to go further and be more specific in its demands, to be really effective. 162  

6.5.26.5.2    6.5.2    Option 5 b): Option 5 a) plus an obligation of the Member States to collect and report statistical data according to harmonised common standards 

Under this option, Member States would be obliged to collect and process relevant information and data, compile statistics and transmit statistical data according to minimum common standards 163  for the annual collection, compilation and transmission to a national coordinating office. The exact definition of minimum standards as opposed to fully harmonised standards could be determined at EU level with participation of Member States using comitology procedure. 

Feasibility and effectiveness

This option would be feasible, given that current crime and criminal justice statistics systems in most Member States already have experience in reporting crime and criminal justice data to Eurostat. Thus, the majority of Member States have achieved already some level of data standardisation. Data following minimum common standards would still provide limited comparability among countries. 164 However, if data on persons suspected and convicted for trafficking in species referred to the same counting units, the same category of crime and the same reporting standards across countries, trends in conviction rates for trafficking in species would be reliable and comparable. 165  

Effectiveness could be fostered further through transparency resulting from the dissemination of statistical data. Thus, it would be public which Member States are not providing comparable statistical data. Moreover, regular Commission reports on the results and interpretation of the statistical data on environmental crime proceedings in the Member States provide valuable information and could be an incentive for Member States to step up their efforts in collecting comparable statistical data.

Political support

As Member States will have to invest in adjusting their data collection systems and workflows, and will have to participate actively in setting up and defining common standards, this option is, however, dependent on the political will in the Member States to do so. As the lack of statistical data in the area of environmental crime has been a well-known challenge in the past decade and addressing these shortcomings was also recommended by the 8th Mutual Evaluation, there is a momentum to take steps towards more effective data collection. But Member States were in the past very reluctant to accept obligations to harmonise criminal statistics.

Stakeholder opinions

All improvement options are supported by a large majority of stakeholders; almost all of the respondents to the public consultation are in favour of obliging Member States to collect and regularly report statistical data, of developing common standards at EU-level, establishing a common platform to collect and exchange statistical data and of boosting professional training and awareness raising. A large majority is also in favour of non-binding guidelines on data collection as well as of developing common EU standards on the collection of statistical data. But the majority of the Member States is not in favour of any legal obligation for Member States, although one third of the Member States supports the establishment of a common platform to collect statistical data.

For half of the practitioners non-binding guidelines as well as the combination of binding and non-binding measures are not useful. The majority of the practitioners thinks a legal obligation is necessary. The four networks stressed the need for consistent reliable data. Europol agrees with obliging Member States to collect and share data and to establish a common platform, for instance that it would host. The NGOs favour setting up a centralised system for data sharing purposes.

6.5.36.5.3    6.5.3    Efficiency

Option 5 a): Oblige Member States to collect and regularly report to the Commission statistical data related to environmental crime.

To establish a baseline for effort required from Member States to centralise the collection of their existing statistical data on environmental crime, Member States have been grouped into six categories based on the number of agencies currently involved with statistical data on environmental crime. To account for differences among the Member States, the number of days estimated to implement this option is based on the number of agencies within the Member State that would need to provide data. The definition of implementation activities and approximate effort in person days has been developed based on expert judgement by practitioners with experience in crime statistics and are detailed in the supporting study.

The overall costs would be approximately 909 person days or EUR 312 338 of one-off costs for the set-up and annual costs of 588 person days and EUR 198 610, as broken down in the following tables by Member State and at EU-level.

Table 4, Member State cost for Option 5a)

* 2 persons for 2 round tables (1 day each) per agency

** 1 day per agency

*** 3 days per agency

Option 5 b): Oblige Member States to collect and report statistical data according to harmonised common standards to be defined by the Commission.

This option differs from the previous by emphasising the application of minimum common standards for the collection, compilation and reporting of statistics on environmental crime. It assumes the setting up of an EU Task Force of independent and EU experts to define and maintain the common standards, and work directly with Member States to ensure implementation, as well as a Member State working group to handle national specificities. The same baseline used in Option 5 a) is also used to distinguish between efforts required in different Member States. The overall costs would be approximately 1 948 person days or EUR 689 789 of one-off costs for the set-up and continuous costs of 1 165 person days or EUR 412 999 per year, as broken down in the following table.

Table 5, Member State costs for Option 5 b)

* Round tables: 1 person for 2 round tables (1 day each) per MS + Reviewing results by task force: 4 days per MS + Translating/ transposing standards: 3 days per MS + Round table for feedback: 1 day per agency

** Preparation: 3 days per agency + Minor changes in current statistics: 3 days per agency + Round table before start of reporting: 2 persons for 1 day each per agency

*** Reporting: 1 day per agency + collection: 1 day per agency + validation: 2 days per agency

Costs are estimated for the Commission to determine minimum standards for data collection via preparation of an implementing act and assisted by a Commission consisting of representatives of the Member States. The following activities would be required over a 9-month period:

1.Preparation of a draft design or proposal for statistical standards, building on the existing study prepared by the contractor for the impact assessment

2.Three meetings of the MS working group to review drafts

3.Bi-lateral meetings with those Member States (approximately 10) who would require additional input / negotiation to harmonise their current statistical data collection activity

4.Review and revision of the draft and preparation of an interim (draft final) version of the standards

5.EU level inter-service review of the standards and expected results

6.Finalising the document

There are two possibilities for the Commission to carry out these activities. The Commission could choose to have the work carried out by an external Intra-muros, Full-time costs are estimated using the average monthly salary for AD8 plus an overhead cost. The total estimated cost is EUR 86 508.

The Commission could also engage a contractor via an ongoing framework contract. Costs are estimated using the average typical framework contract rates proposed by contractors for the current DG JUST Lot 1 contract and include all overheads and associated costs. The total estimated set-up cost are EUR 138 771.

Recurrent costs would stem from maintaining the standards and the production of regular reports based on the statistical data transmitted by Member States, estimated at EUR 12 861 (24 days) and EUR 21 238 (40 days) = EUR 34 188. (64 days).

6.5.46.5.4    6.5.4    Comparison of the options/preferred option

The preferred option is option 5 b). This option is more costly and demands more engagement of the Member States and the Commission, but it is more effective than option 5 a). The problem of incomplete, inaccurate and incomparable data has persisted for a long time and hindered the evaluation, monitoring and informed decision-making with regard to environmental crime. The simple obligation to collect and report statistical data on crime as present in other EU-legislation has not lead to a sufficient improvement of the situation, even if combined with some guidelines and training. Therefore, more efforts are required at EU-level to binding common standards for the data collection in Member States.

6.66.6    6.6    Objective 6: Improving the effective operation of the enforcement chain

As outlined in the 2020 evaluation report, there are large deficits in detection, investigation, prosecution and adjudication of environmental crimes covered by the Directive in all Member States. Generally, it is primarily a Member States responsibility to take the necessary action to implement EU law effectively. 166  However, the problem has long been persisting and existing non-binding guidance and other supportive measures have so far not led to tangible results (see above section 2.2. - baseline).

The effective enforcement at national level is crucial for successfully combating environmental crime whereas the evaluation of the Directive has identified the lack of effective enforcement at national level as a serious obstacle to combating environmental crime and a reason for the Directive to be not effective on the ground. The 8th round of the Council Mutual Evaluations also came to this result, as well as numerous studies and reports in the field over the past years. Recently, the EP has called for better practical implementation in the field of environmental crime.

6.6.16.6.1    6.6.1    Insert in the Directive obligations that directly strengthen the effectiveness of the law enforcement chain

Description

As under objective 4 (see above 6.4.), a set of provisions aimed at ensuring effectiveness of the enforcement chain is assessed. As under objective 4, the individual measures are not treated as separate options because they address different aspects of the objective and are to be seen as mutually supportive. The measures are inspired by input from enforcement practitioners and similar provisions in other EU-criminal law instruments (see annex 6). The Directive would include provisions to oblige Member States to

a.support specialisation among the enforcement chain, including the setting up of specialised units in police and prosecution services; establish specialised court chambers

b.provide regular and appropriate training along the enforcement chain,

c.ensure effective cooperation and coordination between relevant authorities within and between MS, including exchange of information

d.take measures to raise public awareness of the harmfulness of environmental crime,

e.set-up a national strategy 167 to combat environmental crime which help, inter alia, to ensure coherence between administrative and criminal enforcement and sanctioning.

This does not exclude developing guidance material on issues related to detection, investigation, prosecution and sanctioning of environmental crime and develop training materials for specialised training and specialisation of law enforcement officials, judges and prosecutors. In this regard, the existing European environmental enforcement networks, such as IMPEL, EnviCrimeNet, ENPE and EUFJE, can play an important role. Already existing guidelines could be further developed (see above section 2.2. - baseline).

Specialisation

In particular, the creation of specialised units in police and prosecution as well as specialised chambers at criminal courts would be most effective for improving environmental crime law enforcement. This has unanimously been emphasised by practitioners, their networks and –EU-agencies in stakeholder consultations. In ES, the specialisation of the police and prosecution is considered as one of the determining factors in achieving successful convictions of environmental crime 168  (see table under section 1.1) However, it is a core Member States competence to decide how to structure their respective law enforcement systems. Therefore, only recommendations to the Member States would be possible. 

Training

The widespread lack of appropriate regular training and specialisation along the enforcement chin calls for strengthening training activities. Although some Member States currently provide some form of training in relation to combating environmental crime, (see more information in annex 4), practitioners in consultations had emphasised the strong need for more and better targeted training for all practitioners along the enforcement chain as well as the need to ensure that this is priority. They stressed that the current level of training does not ensure sufficient expertise in the highly technical and complex field of environmental crime. It is therefore assumed that all Member States, will need to provide additional training on environmental crime for all practitioner groups.

Effective training must be targeted, regular, practice oriented and follow high quality standards across professions and Member States. Ideally, national training for law enforcement and the judiciary would be complemented by sessions bringing together cross-professional audience from different Member States. Training would have to cover all the above mentioned objectives of the Directive. Training in the Member States could be supported by the EU through further development of existing and creation of new training modules on combating environmental crime, with involvement of the European environmental enforcement networks. Examples of existing obligations to provide training in EU-criminal law instruments can be found in annex 6. An overview of the baseline on training provided by each Member State is given in annex 4.

Awareness raising

The range of awareness raising activities is wide. It includes public information campaigns in media, schools and businesses, creating channels for citizens to report environmental crime to the public authorities the organisation of events, seminars and the fostering of research projects.

Today, according to the country reports of the 8th mutual evaluations, AT, CZ, IE, IT, NL and SE provide information to both the general public and private businesses. DE, FI, LV, PT and SK take actions targeting private enterprises or public, including the installation of communication channels to report environmental crime. BE, BG, DK, FR, LT, LU, PL take some action to educate children. CY, EE, EL, ES, HR, HU, MT, RO, SI_carry out little or no awareness raising activities.

Overarching crime strategies – coherence between administrative and criminal sanctioning systems

A national strategy on combating environmental crime would set out clear priorities and a framework for cooperation between different actors involved in fighting environmental crime. It would also assign responsibilities and structured mechanisms for cooperation and coordination. It would also define targets for furthering expertise through training and establishment of specialised units and running of awareness raising activities, ensuring sufficient resources and developments of supporting tools for practitioners.

Such a strategy would also have to ensure administrative and criminal sanctioning tracks as part of an overall approach to combat environmental offences. 169 Member States must provide for clear rules on communication, information sharing and delineation of tasks between administrative and judicial authorities.

Effectiveness of the measures

Each of the individual measures is effective towards reaching objective 6. They are closely interconnected and the implementation of one measure may significantly facilitate and reinforce the effect of other measures. E.g., awareness raising of the harmfulness of environmental crime can foster the developing national strategies on environmental crime and vice versa. Creating specialised units can be spurred by an obligation to develop overarching crime strategies. As a package, these measures support each other and amplify mutually their impacts.

Binding provisions on better implementation are most likely be accepted by Member States, as there are precedents in other recent EU criminal law- and other legislative instruments. 170  Additional EU guidance could provide Member States with best practices and thus step up the effectiveness of this option. Existing guidelines such as the ones developed under the Environmental Compliance and Governance Forum, and practical tools, such as the ones developed by the European professional networks (see above under baseline), could be further developed.

6.6.26.6.2    6.6.2    Stakeholder opinions

All proposed measures are supported by a large majority of the stakeholders, which in the pubic consultation requested and welcomed legal obligations in the Directive to take specific enforcement related measures strengthening the role of the enforcement chain. 171  In addition, a large majority supports also non-binding EU guidance, e.g. training and specialisation along the enforcement chain. Almost all practitioners (Europol, Eurojust, joint statement of the four networks) recommended the specialisation at every stage of the enforcement chain and enhanced regular training as the most important measure. As environmental crimes are often not in the focus and hidden as part of other crime categories such as organised crime there would be a need for establishing dedicated teams to detect and investigate them. The NGOs and academic stakeholder almost anonymously agree to further specialisation in the field and exchange of best practice.

6.6.36.6.3    6.6.3    Efficiency

In the following the costs for Member States and where relevant for the EU are assessed for measures that could be envisaged under option 6 b). For details, see the annex 2B and the supporting study.

Training

Most Member States already provide training on environmental crime to some or all of the targeted practitioners, as detailed in the annex 4. This existing training would need to be stepped up and offered to a larger group of practitioners. Based on the level of training already provided in the Member States, additional training between 1 to 3 days per year is assumed to be necessary The cost estimates provided here represent an ambitious form of in-person training, with full annual updates of the content. Costs are expected to decrease through the provision of online training courses/e-learning modules and over time as less new content needs to be developed. It is expected that initial investments will lead to greater benefits over time.

Table 6, Member States cost estimates for additional training along the enforcement chain 172

A reduction of these costs for the Member States can be expected, as training is organised by organisations e.g. CEPOL or professional national networks such as ENPE and EJTN as well as Eurojust which cover the bulk of their costs from supranational funds such as the LIFE Programme, the Internal Security Fund (ISF) Police and the Justice Programme. Some Member States currently directly use EU funds, including technical assistance funds from the European Structural and Investing Funds (ESIF) and grants from the LIFE programme Training material developed at EU level could be adapted and used at national level which would also save costs.

Further reduction of the costs for Member States can be achieved by greater focus on virtual training and the development of online training modules 173 . Moreover, synergies could further reduce costs, if the numerous, but isolated and fragmented training activities along the law enforcement chain would be better coordinated at national level. 

Specialisation/ improving cooperation and information exchange within Member States

Several Member States already have specialised units dealing with environmental crimes in police and prosecution. 174  The cost of setting up specialised units would stem from staffing them with either existing personal or with newly recruited ones, who would have to be trained regularly. Specialiation would already per se foster better cooperation and information exchange between the different levels of the enforcement chain in Member States. The costs of additional staff and training have been taken into accout below (additional staff) and above (training).

Awareness raising measures

For targeted awareness raising measures, it is assumed that Member States will carry out information campaigns addressing businesses whose activity may have a strong impact on the environment and the public. 11 Member States report that they already carry out awareness raising activities on environmental crime, including educational activities; cooperation and collaboration with external bodies or organisations; creating channels for the public to report environmental crime; information aimed at the public and businesses; organisation of events – more details are provided in the annex 4. It can be assumed that all Member States would make additional effort. Indicative costs for individual activities based on the experience of the ENPE and reference data from other impact assessments in the area of criminal law are provided in the table below.

Table 7, Reference data about the costs of awareness raising activities

National strategies on combating environmental crime

According to the 8th Round of Mutual Evaluations country reports, a national strategy on combating environmental crime is a very useful tool but well developed strategies exist currently only in a few Member States, such as Finland, the Netherlands, CZ and SK. . Costs for developing an environmental crime strategy would be limited because the relevant activities, such as consultations, preparation of documents, organisation of workshops to get input from experts, are not costly.

Table 8, estimated cost of developing national strategies in the Member States

Costs of an increase in staff in Member State police and prosecution offices

As explained at the beginning of section 6, costs stemming from more effective investigations and from a broader scope of the ECD would mainly be the need for additional staff in the Member States to carry out the investigation and prosecution of additional environmental crime cases. To calculate costs, it is assumed that a higher volume of cases would primarily impact the practitioners along the enforcement chain dealing with investigation, prosecution and conviction. Using the lowest percentages of the total police and prosecutors in the Member States (0,02% respectively 0,17%) as a proxy for the amount of additional capacity that each Member State would be likely to add, based on the current numbers of police and prosecutors in each country, annual costs have been estimated at EUR 4,069, 175 in total for all Member States. 178  

6.6.46.6.4    6.6.4    Conclusion 

All measures assessed are effective and in a package of measures support each other to achieve the objective. We have chosen not to discuss each of these measures as an individual option. The reason is that each measure tackles different aspects of the problem area and therefore cannot be seen as alternative options. They are different elements of the same bundle to address properly all facets of the objective.

7Indirect Impacts of a more effective Environmental Crime Directive

As outlined above, the options above are effective and efficient with regard to improving the Directive’s overall effectiveness on environmental protection through criminal law. More and more effective investigations, prosecutions and convictions are supposed to contribute to reducing environmental crime. The impact of a more effective Directive on the environment, economy and social life will be overall positive. The impacts as described in this chapter were taken into account for the efficiency assessment (cost/benefit analyses) in section 6.6.5, as the positive impacts of reduced environmental crime can be regarded as benefits.

Criminal law is only a part in a comprehensive EU strategy to protect and improve the status of the environment, which is a priority for the current Commission. The Green Deal Communication and the Biodiversity Strategy set out a whole range of measures of environmental protection that will pull together in a holistic approach, reinforce and influence each other. Criminal law measures will come in as a last resort when other measures have not been sufficient to ensure compliance. Therefore, environmental indicators on e.g. the degree of air pollution or biodiversity would rather measure the effectiveness of the overall strategy to improve the environmental status, not just of the approach on environmental crime.

Therefore, in this impact assessment there will be no quantification of the impacts of an isolated instrument such as this Directive. Instead, hereunder there will be a qualitative description of the impacts and benefits of an improved environmental protection to which the reviewed Directive will contribute. Positive impacts and benefits on life on earth are immeasurable and beyond quantification. A more detailed outlook is presented in annex 5.

Environmental impacts

A more effective Directive that leads to better law enforcement by criminal law will contribute to an improved environment through its preventive effects of high rates of detection and effective sanctioning of environmental crime. Where there is an effective criminal law system in place, environmental crime does not pay out.

Social Impacts

The positive environmental impacts of better environmental crime law enforcement would have immediate positive social impacts on human life, health and well-being. 179  Moreover, e.g. the reduction of wildlife crimes can have positive consequences for specific countries, where organised crime and terrorist groups use illegal wildlife trafficking to finance illegal arm trade and terrorism. Their activities destabilise whole societies. Moreover, in source countries, residents and rangers protecting biodiversity often suffer threats of violence. 180

Economic impacts on society and businesses

Overall, the estimated profits of between USD 91 and 259 billion globally from environmental crimes are losses to societies through losses of tax revenue, revenue loss for fair playing businesses and undermining of governance. 181  

Businesses confirmed that stepping up criminal liability for companies would not produce additional compliance costs further to the costs necessary for investments to receive certifications or authorisations according to sectoral legislation and requirements from the strict liability regime set out in the Environmental Liability Directive. Businesses have confirmed that effective criminal law enforcement would protect them against unfair competition from illegal business whose activities affect negatively prices and profits in the whole sector.

Fundamental Rights impacts

The Directive is likely to have a positive impact on the level of environmental protection, which is the subject of Article 37 of the Charter of Fundamental Rights of the European Union. Improving the environment will contribute to the improvement of physical well-being (health) of citizens, that is comprised by Article 1 of the Charter 182 on human dignity. Therefore, it will also positively influence the right to life (Article 2 of the Charter), the right to physical integrity (Article 3), the children care and well-being (Article 24), the right to healthy working conditions (Article 31) and the right to preventive and other health care (Article 35). 183  

This Directive – being a criminal law instrument – will have to be transposed into national law respecting the fundamental rights and observing the principles in the Charter of Fundamental Rights of the European Union (the Charter) as recognised in the TEU. Specifically, it should be transposed and applied with due respect for the right to protection of personal data (Article 8), the freedom to conduct a business (Article 16), the presumption of innocence and right of defence (Article 48), the principles of legality and proportionality of criminal offences and penalties (Article 49), and the right not to be tried or punished twice in criminal proceedings for the same offence (Article 50). In implementing this Directive, Member States should ensure procedural rights of suspected or accused persons in criminal proceedings. Their obligations under this Directive are without prejudice to their obligations under Union law on procedural rights in criminal proceedings

8Preferred package 

Which options can best achieve the specific and general objectives?

Under Objective 1, option 1 a) is the preferred option. It proposes to amend the Directive by updating its annexes and adding new relevant legislation. New crime categories under Article 3 of the Directive will have to be created under Article 3 that correspond to the new legislation in the annexes. However, it is not possible to ensure further updates in the future through comitology. The Commission will have to optimise its internal process to ensure parallel updates of the Directive following relevant developments of sectoral legislation.

Under Objective 2, both assessed options will be combined. Thus, there are no changes to current architecture of Article 3. However, more precision on the definitions of environmental crime (option 2 a)), such as ‘substantial damage’ and ‘negligible or non-negligible quantity’, will improve the clarity of the Directive. The criminalization of risky behaviours (endangerment crimes – option 2 b)) will have the further beneficial effect to alleviate the burden of proof in cases whether it is difficult to establish the actual damage. It will have to be considered with the relevant sectoral units of the Commission which new endangerment crime categories could be added that would correspond to new legislation to be added under the annexes. Hence, both options combined will increase the effectiveness of investigations and prosecutions of environmental crime.

Under Objective 3, the package of measures on sanctions (option 3 c)) – minimum maximum sanctions, aggravating circumstances, accessory sanctions, dependency of the level of fines of illegal profits and financial situation of the offender) will lead to more effective and more uniform sanction levels in national penal codes and in practice. In addition, the minimum maximum levels of imprisonment sanctions will allow for access to investigative tools, which only are available for crime that is punishable by a certain minimum maximum level of penalties. This leads to more effective investigations and facilitates cross-border cooperation.

Under Objective 4, the package of measures under option 4 b) (approximation of investigative tools, obligation to cooperate through EU-agencies, installation of national contact points) will complement and reinforce each other and lead to more effective investigations as many environmental crime cases have transnational aspects and can only be successfully conducted cross-border.

Under Objective 5, option 5 b) will lead to a commonly defined minimum standard for the collection of data on environmental crime procedures and thus facilitate the collection of accurate, complete and data that is comparable across the EU.

Under Objective 6, the package of implementing measures proposed (option 6 b) – training/specialization, awareness raising, overarching national strategies) are likely to have positive effects on the effectiveness at all levels (inspectors, police, prosecution, criminal judges) of the enforcement chain.

As the Directive needs improvement in all six problem areas, it is considered that the combined preferred options under each objective results in the best overall package. We therefore decided to assess the options for each problem area individually and did not assess different combinations of packages.

In combination, the preferred options can reach cumulative impacts that go beyond what could be achieved by the individual preferred options

Cross-border cooperation will be fostered not only by the measures under objective 4 but also through the broader scope of the Directive that allows such cooperation in more environmental areas. More precise definitions of what constitutes environmental crime under objective 2 will reduce different perceptions in the Member States that so far hampered or even ended cooperation. The definition of maximum sanction levels does not only ensure more dissuasive sanctioning but also opens the door for effective cross-border investigative tools provided for in legislative instruments that require a certain sanction level for a crime category to be applicable. Under objective 6, better training and specialisation according to the same standards in the Member States also directly facilitate cross-border cooperation.

The ability of law enforcement practitioners to better anticipate a case’s chances for success, leading to more cases being picked up, is strengthened by more precise definitions of environmental crime (objective 2) and better training and specialisation under objective 6. Improved cross-border cooperation (objective 4) and the availability of more dissuasive sanction types and –levels (objective 3) are further factors that could facilitate the decision to invest the considerable resources needed to tackle environmental crime cases.

The effectiveness and dissuasiveness of environmental criminal investigations will not only be achieved through more appropriate sanctioning through the preferred option under objective 3. Also, more and more effectiveness investigations through the combined effects of the preferred options under objectives 1, 2, 4 and 6 as described above will contribute to a deterrent criminal system with regard to environmental crime.

In this way the preferred options do not only serve best the respective objectives but cumulated strengthen also the other specific objectives thus strengthening the overall effectiveness of the Directive beyond each individual specific objective.

Cost Impact of the preferred package

Table 9, Cost for the Commission implied by the Directive

Table 10, Costs for Member States implied by the Directive

REFIT potential

This impact assessment did not identify any potential to simplify the Directive or to reduce unnecessary costs.

The Directive – being a criminal law instrument – does not produce any additional costs for citizens, business and SME. That has been confirmed during the stakeholder consultations.

The proposal will contain a number of additional provisions aimed to add precision to the currently only very generic Directive, clarify its scope, crime definitions and ensure the effectiveness, proportionality and dissuasiveness of penalties. This will simplify and facilitate practical implementation by Member State authorities and thus ensure the Directive will reach its objectives.

The proposal also contains new provisions obliging Member States to take specific measures to ensure the Directive’s effective implementation in practice (especially to provide training, awareness raising measures and strengthen cross-border cooperation, provide the necessary resources etc.). Although this appears to be new obligations that produce costs for the Member States, these provisions actually only explicitly requires what is in any event a Member State obligation: Member States are not only obliged to transpose the Directive into national law. They also have to take the necessary practical implementation measures. The evaluation has shown that practical implementation is deficient in all Member States and along the whole enforcement chain. The obligations in the Directive are therefore necessary to ensure Member States compliance. The implementation measures required in the proposal are measures, which practitioners have identified as most pertinent to enable them to enforce the Directive. Especially training has been mentioned as essential need to improve law enforcement with regard to environmental crime

9Monitoring Measures

The general objective of the Directive – to which all specific objectives contribute - is to protect the environment through criminal law by effective investigations, prosecutions and convictions. The effectiveness of the Directive must thus be measured against the number of investigations, prosecutions, convictions and sanction levels in each Member State. Objective 5 – ‘collection of complete, accurate and EU-wide comparable data’ aims at fostering effectiveness of law enforcement through the transparency resulting from the dissemination of statistical data which at the same time serve to measure the success of the Directive. The table below provides suggestions of monitoring indicators:

The Directive should contain a provision obliging Member States to regularly report to the Commission the statistics they will be obliged to collect under objective 5. The Commission would then be able to provide regular reports to the European Parliament and the Council highlighting trends. After a sufficient period of time, an evaluation support study could be commissioned to evaluate success based on the indicators above. The professional networks could assist in monitoring the application and the success of the Directive and be encouraged to produce regular reports.

Given that the process of producing comparable statistical data in the Member States could take some time, Member States should be encouraged to introduce internal processes to gather information to monitor and evaluate progress. This could be done in the framework of the obligation under objective 6 to produce national overarching strategies to combat environmental crime.

ANNEX 1: PROCEDURAL INFORMATION

1. Lead DG, Decide Planning

Lead DG: DG JUSTICE AND CONSUMERS (“DG JUST”)

Associated DG: DG ENVIRONMENT (“DG ENV”)

Decide Planning: PLAN/2020/8802

2. Organisation and timing

Procedural Steps:

·The Inception Impact Assessment was published on 1 December 2020.

·An upstream meeting with the Regulatory Scrutiny Board was held on 15 February 2021.

·A public consultation was launched on 8 February 2021 and concluded on 3 May 2021. Targeted Stakeholder Consultation were conducted from February 2021 to July 2021.

ISSG Meetings:

An Inter-Service Steering Group (ISSG) was set up to support this initiative. The ISSG was chaired by the Directorate-General Justice and Consumers (JUST). The following DGs and services participated in the Inter-Service Steering Group: Environment (ENV), Migration and Home Affairs (HOME), European anti-fraud office (OLAF), Mobility and Transport (MOVE), Maritime Affairs and Fisheries (MARE), Climate Action (CLIMA), Energy (ENER), Health and Food Safety (SANTE), Internal Market, Industry, Entrepreneurship and SMEs (GROW) International Cooperation and Development (DEVCO), the Legal Service (SJ) and the Secretariat-General (SG).

The ISSG met virtually three times in the period from December 2020 to July 2021, while further ISSG were held by written procedure, where the ISSG members were invented to submit their comments:

·19 November 2020 (written procedure)

·18 December 2020 (virtual meeting)

·25 January 2021 (written procedure)

·12 April 2021 (virtual meeting)

·17 May 2021 (written procedure)

·25 June (written procedure)

·14 July 2021 (virtual meeting)

The last ISSG meeting before the submission of the Impact Assessment to the Regulatory Scrutiny Board on 1 September 2021 was held virtually on 14 July 2021, as indicated above with a possibility to submit further comments on the draft IA in writing by 26 July 2021.

3. Evidence, sources and quality

For the purposes of this impact assessment, the Commission collected data through various sources and consultation stands.

The impact assessment relies and builds on the Evaluation of the Directive, which took place in 2019/2020. To this end, the Commission published an Evaluation Staff Working Document ({SEC(2020) 373 final} - {SWD(2020) 259 final}), and an Executive Summary of the Evaluation in October 2020. The Evaluation of the Directive received a positive opinion from the RSB 184 .

The Commission gathered also evidence following a consultation strategy, which included an open public consultation 185 and a stakeholder consultation 186 .

More details can be found in annexes 2A and 2B on the methodology.

4. External Study

The Impact Assessment has been supported by a study commissioned under framework contract No JUST/2020/PR/03/0001-04 – Lot 1, which was conducted between April 2021 and October 2021. The study done by a consortium led by Milieu Consulting SRL aimed at assessing the impacts of different options, mainly with regard to their financial and economic impacts.

5. Regulatory Scrutiny Board

A draft Impact Assessment has been sent to the Regulatory Scrutiny Board (RSB) and a hearing took place on 29 September 2021. The RSB issued a positive opinion, subject to reservations on 1 October 2021. The Impact Assessment was improved taking account of the recommendations of the RSB.

ANNEX 2A: METHODS

The present Impact Assessment has not used any forecasting model technique, developed either in-house or by an external developer, as this was not deemed the most suitable tool to analyse the issues at hand.

The methodology used to perform this Impact Assessment has been the standard Impact Assessment methodology used by the Commission.

The different steps of the Impact Assessment, from the definition of problems and their drivers, to the definition of possible policy options and the analysis of their impact and their importance was based on the evaluation report (published October 2019), a range of extensive desk research and stakeholder consultations ().. Stakeholder consultations comprised a number of targeted consultations and workshops with businesses, Member States, practicioners, NGOs, practicioner’s networks and academia at national and EU level and a public consultation (see Annex 6: - results of the public consultations and Annex 7 – stakeholder consultations synopsis report).

In addition to the review of the literature, numerous written statements from stakeholders, e.g. from Eurojust, Europol, professional networks, practitioners, Member States, NGOs and businesses were analysed. Desk research also covered the review of European Parliament positions, such as the report on the liability of companies for environmental damage (2020/2027(INI)) of Committee on Legal Affairs. Results from working groups, such as the country survey for the 2nd meeting of the Council of Europe’s Working Group on the Environment and Criminal Law on 15 June 2021, have also been taken into account.

In addition to a series of targeted workshops and interviews with stakeholder groups, the Commission has also taken the opportunity to present the considered options and seek stakeholder input at externally organised expert events, such as conferences of professional networks, roundtables and seminars. Due to the Covid 19-crisis this was done remotely. The online-conferences did not hamper the livelyness of discussions and the value of the input and feedback received.

Three main assessment criteria that guided the ex-ante evaluation of the envisaged measures have been: a) effectiveness (degree to which the options are likely to meet the initiative’s objectives), b) efficiency (costs benefits and their distribution across stakeholders) and c) coherence (with other main EU policies/legislation). The assessment took into account social and economic impacts for different stakeholder groups.

Legal analysis of measures focussed on coherence with EU law and selected instruments of international law. It also inventorised obstacles as well as existing practices at the national level. Legal coherence was assessed through a literature review and review of legal cases in particular in order to inventorise obstacles as well as existing practices at the national level, such as the “Black Mass” Judgment, Court of appeal, Gota Hovratt 09.09.2021.

Costs and benefits analyses included costs for companies, the EU and Member States as well as generally environmental, economic and social impacts for all relevant stakeholder groups. The Commission took particular account of the findings of the "Study to supply the Impact Assessment of the Directive 2008/99/EC on the protection of the environment through criminal law", which was commissioned by DG JUST and developed by a contractor. The identification of the problems and of the proposed solutions also used extensively the findings of the evaluation of the Directive 2008/99/EC. The results of the multiple perspectives – environmental, social and economic – are integrated to provide a final overall assessment for each option. (More information on the appraoch used for the cost/benefit analyses can be found in Annex 2).

It is therefore worth highlighting that the sources of information used to identify and analyses the problems, as well as assess the impact of proposed policy options have been particularly broad.

ANNEX 2B: ANALYTICAL MODELS - COSTS

Introduction and overall methodological approach

This annex provides the methodological approach, assumptions and analytical models used to estimate the costs of the proposed measures and sub-options for which an efficiency assessment is made in the impact assessment report. For the assessment of efficiency, implementation costs have been quantified wherever possible.

As explained in the impact assessment report, three main categories of cost are expected:

1.All of the proposed measures would lead to more effective investigations of environmental crime, requiring additional staff in the Member States;

2.Broadening the scope of the Directive and clarifying terms would lead to an increase in the number of environmental crime cases taken up, also requiring additional staff;

3.Certain measures, such as training, improved cross-border cooperation, statistical data collection, strategy development and awareness raising measures would have direct implementation costs over and above the need for additional staff.

For cost categories 1 and 2, it is not possible to attribute a specific share or percentage of the need for additional staff to individual proposed policy objectives or measures, as it is impossible to reliably quantify the degree to which the different improvements to the Directive would deliver in terms of the effectiveness of investigations or the volume of new cases. It is also not possible to draw realistic assumptions about the number of new environmental crime cases that would arise as a result of the extended scope of the Directive, as there is no clear understanding of the baseline or the current number of cases in the Member States, nor is it possible to accurately predict the type and location of future environmental crime cases. Therefore, to assess this cost an estimate of the number of additional police and prosecutors that Member States are likely to need add to their current workforce work on environmental crime cases has been prepared. The assumptions and analytical models used to develop these estimates are presented in Section 6 of this annex.

Sources of information

A very targeted literature review was carried out building on the desk research carried out for the Evaluation study of Directive 2008/99/EU, looking in particular at relevant literature on the magnitude and impacts of environmental crime; and the 8th Round of Mutual Evaluation country reports and summary reports to understand where individual Member States are with regard to the implementation of the activities likely to be required under the revised Directive. Baselines across the Member States for different elements of ECD implementation were then developed; details are in the annex on baselines. Statistical data are mainly from Eurostat and other official sources; these are documented in footnotes.

In addition, the research covered other EU criminal legislation and associated impact assessments, to understand the types of legislative provisions that could be envisaged as the result of legislative policy options, and associated impacts to check for reference methodologies and data.

Finally, additional information was collected through consultation activities both to shed light on the actual baseline and to verify the assumptions made for cost estimates. These activities are detailed in the table below.

Table 1: Consultation activities carried out to support the development of cost estimates

Standard Cost Model and estimation of labour costs

Many of the implementation costs entail human resource costs at the EU level (European Commission, EU agencies) and the Member State level (competent authorities, practitioners). Costs associated with administrative burden have been estimated using the Commission’s Standard Cost Model (SCM), outlined in the Better Regulation toolbox3. The SCM expresses costs as the ‘price per action’ (usually expressed as labour costs) multiplied by the ‘quantity’ of actions carried out (in this case implementation activities and the person days for implementation). 

To calculate these costs, a standard estimate of the daily labour cost has been applied for all activities. This approach mirrors the approach taken in recent impact assessments for criminal law initiatives 187 , using the latest available data and methods detailed in the EU Better Regulation Guidelines (in particular Tool #60 The standard cost model for estimating administrative costs). The approach is detailed in the box below.

Box 1: Approach to calculating labour costs for EU and Member State administration

Limitations

The accuracy of cost estimates is very much dependent upon the baseline situation in the Member States – e.g. how much training they already do for different practitioner groups, or how many personnel they already have devoted to environmental crime. No specific surveys were carried out to ascertain these details for all Member States, information was mainly collected from the 8th Mutual Evaluation Member State reports and, where available, letters they submitted as a follow-up to the evaluation process. Some additional information was collected via consultation, but as the consultation was not extensive across all Member States, the consultation activities were mainly used to validate EU-wide assumptions. While the 8th Mutual Evaluation reports were consistent in the type of information requested from Member States, not all Member States provided the same level of detail in the reports, meaning that in some cases an omission in a country report could be misinterpreted as the lack of action in a certain area. The cost calculations are therefore estimates and in some cases Member States may in reality incur less cost than projected as they already have taken steps to implement the proposed measures.

Transposition and the development of EU-level guidance documents

As explained in section 6.1 of the impact assessment report, costs for the transposition of legislation by Member States and for the preparation of EU-level guidance documents were not presented for the individual options per objective nor taken directly into account in the assessment of efficiency. While the costs are relatively minor compared to other elements of the proposed modifications, indicative cost assessments are presented here.

Transposition of legislation

Any legislative option that involves amendments to the ECD would entail some costs for the Member States to transpose the new legislation into their national settings. The cost of the transposition is human resource costs and is likely to be the same or comparable for transposing a legislative option for one of the policy objectives, several or all of them. Furthermore, these costs are one-off costs as the transposition is a single activity that does not entail continuous or recurring expenses.

In order to estimate the cost of the human resources, reference data about the amount of person days needed for transposition is taken from the Impact Assessment of the Directive on combating fraud and counterfeiting of non-cash means of payment 193 . This average amount per Member State is assumed to be between 20 and 60 person days. Using the Member State daily labour cost defined in section 6.1 (i.e. EUR 294), the overall cost of transposition is estimated to be in the range of EUR 5 872 – 17 615 per Member State as summarised in the table below.

Table 2: Estimated costs of transposition of new legislation in the Member States

Preparation of EU-level guidance

Some EU-level guidance already exists with regard to environmental crime 194 . It is possible that the European Commission would prepare and adopt additional guidance documents specifically linked to the ECD modifications, for example to further support the clarification of terms 195 . The main cost would be the human resource costs that the European Commission services need to invest to prepare, adopt and disseminate the material (any implementation costs for Member States or other stakeholders are considered separately). These costs would be one-off as no recurring costs are likely once the document is adopted. The costs are estimated as a unit cost per document and can be considered under different policy objectives or sub-options, as shown in Table 2 (Section 3.1).

In order to estimate the cost of a non-legislative guiding document, reference data about the amount of person days needed for development and publication of, for instance, an implementation report, guidebook on national legislation or a communication, is taken from the Impact Assessment of the Directive on combating fraud and counterfeiting of non-cash means of payment 196 . The necessary effort is assumed to be between 30 and 60 person days. Using the EU daily labour cost defined in section 6.1 (i.e. EUR 534), the overall cost of developing one non-legislative guiding document is estimated to be in the range of EUR 16 026 – 32 052 at the EU level as summarised in the table below.

Table 3: Estimated costs of developing and publishing a non-legislative guiding document at the EU level

Costs related to options under Objective 4 of improving the effective cooperation and coordination between relevant authorities

Option 1, which would require no further action beyond those under objectives 1 to 3, would not entail any direct additional costs. Option 2 would introduce a package of provisions requiring Member States to take actions directly fostering cross-border cooperation. There are three proposed measures; details on the cost estimates for each are considered in the following sections.

Investigative tools

Under this measure, Member States would be required to allow the use of investigative tools for environmental crime cases in the same way that they are allowed for use in organised crime or other serious crime cases, according to the provisions in national law. Investigative tools and techniques used in criminal investigations are likely to include wiretapping; controlled deliveries; telephone interceptions; video surveillance; tracking or undercover agents; as well as laboratories and equipment, and online and geospatial tools for intelligence gathering. While some Member States already do this, many do not and would need to change their practice for environmental crime cases.

According to the 8th Round of Mutual Evaluation country reports and as shown in the baseline annex, 5 Member States specified that they require authorisation from a magistrate or judge to use special environmental techniques for environmental crime, and 14 Member States noted that the use of such techniques requires a link to a severe crime, such as organised crime. A few others noted that such operations are rare or are not used due to a lack of environmental cases. The proposed provision would not harmonise the tools available but would ensure that they are made available more easily. Given this, and the expectation that additional and more serious environmental crime cases would be detected in the Member States as a result of the revised ECD overall, it can be expected that specialised investigative techniques would be used more widely.

Comprehensive quantitative data on the costs of the use of investigative tools in the Member States is not available. However, representatives of prosecution offices from two Member States noted in interviews that these techniques can be costly, particularly for translation and telecommunication services. Media reports have also noted the relatively high cost of wiretapping efforts, mostly linked to telecommunication services. Indicatively, Belgium spent EUR 6 million on 7 475 wiretaps in 2017, giving an average cost of approximately EUR 800 per wiretap 197 . The number of wiretaps used has consistently increased in the preceding years, partially due to terrorism investigations. In the UK, at least GBP 6.7 million (EUR 7.9 million) was paid in 2014 by British police forces and government authorities to telecommunications companies for data on customers (data not including the call or message content) 198 . This amount increased each year between 2008 and 2014, probably due to increasing reliance on this data. It was calculated that in 2014 each request cost approximately GBP 50 (EUR 58).

Focal points, cooperation with EU agencies

Member States would be required to install national focal points for cross border cooperation and to ensure cooperation through relevant EU agencies. The main cost of these provisions would be labour costs associated with the human resources needed.

This is subject to several assumptions:

·All Member States would need to establish such focal points. Even though some countries may already have a workforce that is to a certain extent dedicated to environmental crime, the inclusion of such requirements in the ECD would require that such structures are formalised resulting in additional human resource time and costs compared to the baseline.

·The focal or contact points would be needed for cooperation and coordination activities both within the Member States and cross-border and it is assumed that the ‘focal point’ elements of their cost would only be part time; the rest of their time would be dedicated to other activities.

·One focal point would be established per institution along the enforcement chain implying the creation of focal points within the administrative authorities, police, customs, prosecution and courts (according to the European Commission’s guidance on combating environmental crime and related infringements 199 ). For simplicity, it is assumed that each focal point would be represented by one staff member working part -time on environmental crime.

The cost assessment for implementing new provisions in the ECD requiring the establishment of focal points, specialised units or other entities that would be necessary for facilitating cross-border and intra-EU cooperation on environmental crime in the Member States is based on reference data about the establishment of contact points in similar EU criminal law and the labour costs defined in Section 1.2.

Reference data about the amount of person days needed for focal points in the five relevant institutions along the law enforcement chain is taken from the Impact Assessment of the Directive on combating fraud and counterfeiting of non-cash means of payment 200 . The Directive on combating fraud and counterfeiting of non-cash means of payment contains a similar provision about contact points and can thus be used as a reference point. Therefore, the average amount of time needed for a focal point is assumed to be between 12 and 20 person days in a year per institution per Member State. Using the Member State daily labour cost defined in section 6.1 (i.e. EUR 294), the overall cost of establishing and maintaining contact or focal points, including those needed for cross-border coordination, is estimated to be in the range of EUR 17 615 – 29 358 per year per Member State as summarised in the table below.

Table 4: Estimated annual costs of establishing and maintaining focal points in the Member States

Costs related to options under objective 5: improving statistical data collection and reporting with regard to environmental crime

Baseline and assumptions for costs of options 1 and 2

Member State statistics on environmental crime are fragmented. They are often kept by different types of stakeholders along the enforcement chain or by environmental authorities and centralised collection of statistics does not take place. None of the EU Member States has a single body with a central coordinating function for all data on environmental crime.

To establish a working baseline for the purposes of understanding the efforts different Member States would need to undertake if they were required to collect and report statistics on environmental crime, information was collected from available desk sources, including the 8th Round of Mutual Evaluation country reports and others 201 .

The systematic collection and reporting of statistical data, including a certain degree of output harmonisation, would primarily require coordination across the various agencies that currently collect data; the desk research suggests all Member States have some environmental crime data available within different institutions. The number of agencies that would need to be coordinated differs across Member States. In some Member States, data are widely dispersed among various institutions or agencies, are not available in a centralised data base, and/or are dispersed in various federal or autonomous entities of the country. In others, there is already a good level of central reporting from only a few responsible agencies and/or a few central agencies that already compile some statistics in one or a few common database(s). As those Member States with many different agencies are assumed to require greater effort than those with fewer agencies, this can be considered a reasonable proxy for the differences across Member States

Although the effort needed across Member States to report statistical data on environmental crime may also be impacted by the quality or standards of the data currently available, the information obtained through desk research is not sufficient to make reasoned assumptions about which Member States would require more or less time to revise their existing standards for data collection on environmental crime.

For instance, some of the data available in the reviewed sources is already presented in a format that looks harmonised (e.g. ‘investigations/prosecutions/convictions for waste trafficking’), but it remains unclear what data is behind these common headlines. It is possible that Member States produced these data in a different format and then reported them under these headings or that the data were compiled at the EU level.

In any case, the assumption is that coordination and collection activities would constitute the bulk of the additional administrative burden resulting from requirements on statistical data collection.

Based on these considerations, for the baseline assessment the Member States can be divided into six groups based on the number of agencies currently involved with statistical data on environmental crime as summarised below.

Table 5: Baseline for statistical data collection – number of agencies providing data in each Member State

Following the SCM approach, in order to estimate the administrative burden associated with each sub-option, a set of implementation activities for each sub-option has been defined together with an estimation of the person days in fulltime equivalent (FTE) necessary to implement them. The definition of implementation activities and approximate effort in person days has been developed based on expert judgement by practitioners with first-hand experience with the practical activities and tasks associated with data collection and reporting for crime statistics 202 . The estimates defined in the following analysis are approximations for standard activities based on rough evaluation of past data collections. The estimates are assumed to provide a good representation of the minimum amount of effort necessary, but they do not take into account possible variations that may occur between Member States beyond those represented by differences in coordination costs which are accounted for through the number of relevant institutions. Nevertheless, it can be assumed that any possible variations are unlikely to significantly impact the overall implementation costs.

Option 1: Oblige Member States to collect and regularly report to the Commission statistical data related to environmental crime in combination with further supporting measures

The assumption behind this option is that Member States are required to collect and report the existing statistical data they currently collect on environmental crime to the EU without further efforts at harmonisation. The estimate of resource requirements for this option assumes that no additional time for the collection of the data within the agencies will be spent and all additional efforts are related to coordination and data compilation activities at a central (national) level and at EU level. It is further assumed that only basic data validation is carried out at the national and EU levels (e.g. checking data for completeness and consistency, but not for accuracy or relevance). No data analysis or report writing efforts are included.

The activities required to implement this option at the national and EU levels entail some one-off efforts for set-up and then continuous activities such as annual collection and transmission of the data. The main implementation activities include:

National level:

·Setting up a central reporting system or procedure in order to put in place the common reporting platform, communicate with agencies, provide guidelines for national level reporting, develop templates etc.

·Round tables to discuss and confirm approach across the agencies before the start of the reporting.

·Annual collection, compilation and transmission of data from the agencies to the national coordinating office, including reporting from each relevant agency, collection at the central level as well as basic data validation, checking, feedback and revisions at the central level.

EU level:

·Setting up an EU level reporting procedure in order to set up the common reporting platform, communicate with national competent authorities, provide guidelines for EU level reporting, develop templates etc.

·Round tables to discuss and confirm the approach across Member States before the start of the reporting.

·Annual collection, validation and revision of data received from the Member States, including collection of the data from each Member State as well as data validation, checking, feedback and revision.

Total cost estimates as provided in the main impact assessment report are shown below for reference.

Table 6: Member State costs for Option 1

* 2 persons for 2 round tables (1 day each) per agency

** 1 day per agency

*** 3 days per agency

Table 7: EU-level costs for Option 1

* 1 person for 2 round tables (2 day each) per MS

** 1 day per MS for collecting data + 3 days per MS for data validation/ checking/ feedback/ revision

Option 2: Oblige Member States to collect and report statistical data according to harmonised common standards

This sub-option differs from the previous in that it emphasizes the application of minimum common standards for the collection, compilation and reporting of statistics on environmental crime. These are broadly defined as standards that do not entail deep and costly changes in the data collection systems of the Member State – for example, by necessitating a major redesign of data entry and recording systems at the level of law enforcement authorities/police or requiring a complete overhaul of the judicial recording systems. Such minimum standards set at EU level, as practiced in other areas of EU data collection, would allow for some, limited comparability of the data, while not (yet) aiming at full data harmonisation across Member States.

Estimating the resource requirements and cost of applying common standards is highly dependent on the scope and the contents of these standards. The exact distinction between minimum and full data harmonisation could be determined at EU level with participation of Member States in a working group and a task force on the methodology of data collection. For the purposes of this work, minimum harmonisation should reflect the key dimensions necessary for limited data comparability, including:

·Application of common counting units (e.g. offences rather than investigations or cases).

·Use of a common classification of environmental crime to be prepared by the EU working group (ECECS – European Classification of Environmental Crime for Statistical Purposes which should be a satellite classification of the ICCS 203 ) for reporting purposes – this requires Member States that do not already collect data according to a common crime classification to carry out a detailed mapping of existing crime categories to the ECECS and report data according to these common categories.

·Reporting of common indicators according to common reporting standards (e.g. persons convicted for waste crime; number of custodial sentences for pollution offences; number of fines for pollution offences exceeding threshold of X Euro, etc.).

·Counting rules will only be harmonised if this can be done on the basis of data already collected within electronic databases and/or if the application of common counting rules does not require major changes to data collection systems. Some tentative examples could be:

opersons suspected for several offences (of different crime types) should be counted for each type separately;

opersons convicted for serial offences should be counted only once;

opersons prosecuted for several crimes should be counted for each crime separately.

Data that do not fulfil these minimum standards should be reported to the EU level with a clear indication where these standards have not been met, but may not be included in EU level comparative analysis (e.g. overall trends in recorded waste crimes).

The different considerations, alternatives and consequences of the application or non-applications of these standards will be analysed further in the separate activity (ToR point 3.3), however, for the purposes of conducting a high-level cost estimate, we have made the following assumptions regarding these common standards:

·No statistics are foreseen for the total number of offences committed.
This means that only offences that came to the attention of law enforcement authorities are considered. For this cost estimate no victim surveys or other methods to estimate the so-called ‘dark number’ of environmental crime will be part of the requirement.

·Infractions/misdemeanors/administrative offences are not part of the required standards.
This means that it is up to Member States whether to include these or not. Each Member State will probably take this decision on practical grounds (what is easily available).

·If and in what way prosecution statistics are included are not part of the standards.
Many Member States do not have any prosecution statistics. Those that do exist are often collected on a very aggregate level and apply completely different counting principles. The assumption is that at this point, available data per crime type (which are often not collected) are used without modifications.

·Only offences that are explicitly registered as an environmental crime are included in the statistics. Offences that are basically environmental but are registered as another crime (e.g. falsification of documents) are not part of the statistics

·Metadata are explicitly part of the statistics. Since the common standards may not be binding or fully implemented by Member States, all reporting entities and Member States have to provide metadata in order to show where deviations from the standards occur.

In order to estimate the effort needed (both at EU level and national level) to implement minimum common standards and reporting, the following set-up and continuous activities are assumed:

EU level:

·Definition of common standards: the definition of common standards (i.e. indicators, classification, counting units, counting rules and reporting templates) would mainly consist of independent and/or EU experts (both on statistics and on environmental crime) and would be responsible for meetings, drafting of technical documents, guidelines, standards setting, bilateral discussions/missions to Member States to assess capacities and capabilities, coordination with other EU environmental crime statistics users, support/ ad-hoc advice on standards implementation.

·Annual maintenance of common standards: this would be ensured by regular (e.g. annual) meetings of the Task Force to discuss issues, feedback or necessary updates to the standards.

·Annual collection and review of the data: this activity includes the collection, review, analysis and interpretation of the data delivered by Member States. Basically this includes data checking and feedback to the Member States.

·Annual reporting and dissemination: this activity refers to the preparation of a dedicated publication at the EU level and associated maintenance costs.

National level:

·Setting up a national coordination procedure, including: designation of a national coordinating office that leads the process of standardization, data collection and reporting facilities in the Member States and coordinates contacts with the different agencies within the Member States and the EU. A representative from this office should be part of the Working Group with other Member States (see below).

·Member States Working Group: it would support the definition of common standards at the Member State level. The work of the Working Group would include meetings and discussions, reviewing technical documents, translation. An important and often neglected issue of standardization across European countries and jurisdictions is the language issue. While the EU Task Force defining standards would likely use one language (probably English), the results have to be translated into the language of the Member State. And because the terms to be translated are judicial terms defined within a specific jurisdiction this cannot be a purely linguistic translation. Therefore, translating (‘transposing’) common standards will be a specific task for the Working Group where each Member State would be represented.

·Setting up the common standards: this would require minor changes in current statistics and coordination across the agencies involved in environmental crime statistics in each Member State. In practices, the activities might include round tables between all agencies in the Member States, development of templates, revisions and feedback before the reporting starts.

·Annual coordination: similarly to the EU level, in each Member State efforts will be required to maintain the coordination system (e.g. coordinating office) and contacts with national agencies, other Member States and the EU.

·Annual maintenance of common standards: this would require some regular coordination across the agencies and implementation of feedback if necessary (e.g. updates received from the EU Task Force).

·Annual collection and reporting: this would entail the coordinated collection and compilation of data from the different agencies in the Member States, validation and other necessary quality checks and transmission/reporting of the data to the EU.

Total cost estimates as provided in the main report are shown below for reference.

Table 8: Member State costs for Option 2

* Round tables: 1 person for 2 round tables (1 day each) per MS + Reviewing results by task force: 4 days per MS + Translating/ transposing standards: 3 days per MS + Round table for feedback: 1 day per agency

** Preparation: 3 days per agency + Minor changes in current statistics: 3 days per agency + Round table before start of reporting: 2 persons for 1 day each per agency

*** Reporting: 1 day per agency + collection: 1 day per agency + validation: 2 days per agency

Table 9: EU-level costs for Option 2

Costs related to objective 6: improving the effective operation of the enforcement chain

Option 1, which would require no further action beyond those under objectives 1 to 5, would not entail any direct additional costs. Option 2 would insert into the Directive obligations that directly strengthen practical implementation; details on the cost estimates for each are considered in the following sections.

Set-up specialised units in police and prosecution services; establish specialised court chambers and improving cooperation and information exchange within Member States

This measure would consist of recommendations to Member States, e.g. in the non-binding recitals to the Directive. As detailed in the baseline annex, many Member States already do have units specialised in environmental crime within the policy, public prosecution office; a few also have dedicated courts and administrative authority divisions. For those Member States who do not, and would wish to set up such structures, the main additional cost would be related to new staff working on environmental crime. The approach to estimating these costs is provided in Section 6 of this Annex.

Provide training along the enforcement chain

The cost assessments for training assume a combination of training provided at EU level by organisations such as CEPOL or the European Judicial Training Network (EJTN) as well as training provided directly by Member State authorities for its own practitioners. Cost estimates are calculated separately for training at national level (Section 5.2.1) and training at EU level (Section 5.2.2), based on different assumptions and reference data. A thorough investigation of desk research sources was conducted to establish a baseline of what training already exists, and cost assumptions were validated with stakeholders. Section 5.3.3 looks at who is likely to bear the costs of different types of training.

Training provided by Member State authorities

The amount of additional training each Member State would need to carry out in response to a training requirement in the ECD would depend upon the amount of training already carried out. To establish a working baseline to define these assumptions, Member States have been grouped according to the relative amount of training they already carry out. This is done first for each practitioner group based on the available information and then collectively across all groups as information was not always completely available for some groups. Detailed research findings are provided in the annex on baselines.

Four groups of practitioners have been identified as the primary recipients of training on environmental crime: judges, police and prosecutors, customs agents and administrative authorities responsible for environmental inspection. Member States currently provide varying degrees of training for each group. It is assumed that training for all practitioners would be necessary, as the lack of necessary expertise in one or more parts of the enforcement chain may produce a vicious circle and undermine efforts in other parts of the chain 204 . It may also be desirable to provide common training to different types of practitioners in one group, to foster better cooperation across institutions within a Member State.

For the judicial branch, all Member States have a specialised body, such as a national institute or academy, which organises training for judges and/or prosecutors. Continuous professional training of judges is optional in the majority of Member States.

Based on the country reports of the 8th Round of Mutual Evaluation and follow-up comments, three groups of Member States could be identified in terms of the extent of training already provided for the judicial branch at national level.

·Group A: Member States in this group offer training opportunities for practitioners in the judicial branch in relation to environmental crime on a regular basis – i.e., at least one course per year. For example, in Germany, the German Judicial Academy regularly offers a four-day conference on current issues in relation to environmental criminal law and regular training activities are also held at regional (Länder) level. (AT; BE; BG; CZ; DE; ES; FI; FR; IT; PT; SE).

·Group B: Member States in the group offer limited/ad hoc training for practitioners in the judicial branch, which based on the available information does not seem to occur on a regular basis (EE; EL; HU; NL; PL; RO).

·Group C: Member States in this group do not organise any training activities on environmental crime at national level for the judicial branch. The only training available to practitioners in these Member States is at EU level (CY; DK; HR; IE; LT; LV; LU; MT; SI; SK).

For the police and public prosecutors, the bodies responsible for providing training are usually spread out across the different institutions/units - with each institution/unit responsible for the training of its respective staff. In France, Poland and Spain the training on environmental crime is provided by a body specialised in environmental issues, namely, the Institute for Environmental Training (IFORE) in France, the Chief Inspectorate of Environmental Protection in Poland, and the Nature Protection Service (SEPRONA) of the Spanish Civil Guard. The majority of Member States provide some form of training on environmental crime for the law enforcement branch, although the extent of the training and the bodies covered vary greatly from one Member State to another. Three categories of Member States could be identified in terms of the level of training provided for the law enforcement branch at national level.

·Group A: Member States in this group provide a degree of both initial and continuous training on environmental crime to law enforcement practitioners (AT; CZ; DE; EE; ES; FI; FR; IT; PL). Finland can be taken as an example of best practice; the Police University College coordinates a national training programme on environmental criminal law, which covers police, customs and border guard, environmental authorities (both state and municipal) as well as prosecutors. The training consists of six thematic modules in the form of lectures that are live-streamed across the country and last around two days each over a period of 18 months. The Police University College also organises annually a one-week course on environmental crime covering a wide range of subjects, including one afternoon on forensic sampling.

·Group B: Member States in this group provide some degree of training on environmental crime as part of the initial training of officers/new recruits. However, no opportunities for continuous training could be identified in the country reports (BE; BG; IE; LV; MT; NL; PT; RO; SE).

·Group C: Member States in this group either provide training on environmental crime on an ad hoc basis with no clear training programme, or do not provide any training on environmental crime at national level (the only training available is provided by EU level organisations) (CY; DK; EL; HR; HU; LT; LU; SI; SK).

For customs and administrative authorities, very limited information is available on the current level of training on environmental crime provided at national level. The following groups of Member States could be identified, based on the information available in the some of the country reports of the 8th Round of Mutual Evaluation:

For customs:

·Group A: Member States in this group provide a degree of both initial and continuous training on environmental crime to customs (CZ; DE; FI; FR)

·Group B: Member States in this group provide a degree of training on environmental crime as part of the initial training of customs officers/new recruits or ad hoc training only (BG; EE; IE)

·Group C: Member States in this group provide no training to customs (CY; DK; HR; HU; LT; LU; SI; SK)