Proposal Directive on the Environmental Crime: what's new?

On 16 November 2023, following several months of discussions, the European Council and the European Parliament reached a provisional agreement regarding the proposed Directive on the protection of the environment through criminal law (the “ECD”) and replacing Directive 2008/99/EC. At the end of its legislative road, if adopted, the ECD would require EU Member States to ensure that their criminal laws punish a series of environmental offences and apply minimum penalties.

Background

The current European Union (“EU”) legislation that provides rules to criminalise environmental offences is the Directive 2008/99/EC on the protection of environment through criminal law (the “Current Directive”). Amongst its actions as part of the 2019 Green Deal, the European Commission (the “Commission”) decided to evaluate the Current Directive and published its findings in October 2020. According to the Commission, the Current Directive’s effect was limited as, over the past 10 years, (i) the number of environmental crime cases successfully investigated and sentenced was low; (ii) the sanctions were too low to be dissuasive and (iii) the cross-border cooperation was not effective (see here for more information).

Based on the evaluation findings, the Commission decided to revise the Current Directive and, back in December 2021, issued a proposal for a new EU Directive to strengthen criminal law to protect the environment. The ECD aims at updating the scope of the Current Directive and at clarifying the definition of criminal offences as well as increasing sanctions levels (see here for more information).

New offences

Whereas the Current Directive provides for 9 environmental offences, the ECD lists 18 offences. Amongst others, the new environmental offences include for instance:

• the placing on the market of a product which, in breach of a prohibition or another requirement, causes or is likely to cause death or serious injury to any person or substantial damage to air, water or soil quality, or to animals or plants as a result of the product's use on a larger scale;
• the abstraction of surface water or groundwater which causes or is likely to cause substantial damage to the ecological status or potential of surface water bodies or to the quantitative status of groundwater bodies; and
• the placing or making available on the EU market of illegally harvested timber or of timber products that were made of illegally harvested wood (See Article 3 of the ECD).

The ECD also provides for a “qualified offence” clause. Offences referred to in the ECD, and which would be committed intentionally, are considered under the ECD as a qualified offence if they cause destruction; irreversible, widespread and substantial damage; or long-lasting, widespread and substantial damage to an ecosystem of considerable size or environmental value, or to a natural habitat within a protected site, or to the quality of air, soil or water (See Article 4 of the ECD).

Sanctions levels

For individuals, the ECD proposes to set thresholds of maximum penalties, with the possibility for EU Member States to implement stricter sanctions. The ECD sets out the following penalties:

• a maximum prison term of at least 10 years in case of intentional offences causing death to any person;
• a maximum prison term of at least 8 years for the qualified offence causing catastrophic results;
• a maximum prison term of at least 5 years in case of offences committed with at least serious negligence causing death to any person; and
• a maximum prison term of either at least 5 years or at least 3 years for other intentional offences included in the ECD (See Article 5 of the ECD).

For corporates, the ECD sets out the following penalties:

• for the most serious offences, a maximum fine of at least 5% of the legal person’s total worldwide turnover, or alternatively €40 million; and
• for all other offences, a maximum fine of at least 3% of the legal person’s total worldwide turnover, or alternatively €24 million (See Article 7 of the ECD).

Moreover, the ECD mentions that EU Member States would be able, as appropriate, to freeze or confiscate, the proceeds derived from and instrumentalities used or intended to be used in the commission or contribution to the commission of the offences as referred to in the ECD (See Article 10 of the ECD).

Enforcement

In order to ensure a proper enforcement of the environmental offences, the ECD sets out provisions to make investigations and proceedings more efficient. In a nutshell, the ECD provides for:

• Minimum limitation periods of at least ten, six and four years from the time the offence was committed for offences punishable, respectively, by a maximum sanction of at least ten, six and four years of imprisonment (See Article 11 of the ECD);
• Protection for persons reporting criminal offences as granted by the EU 2019/1937 Whistleblower Directive (See Article 13 of the ECD); and
• Requirements regarding coordination and cooperation at strategic and operational levels between all competent authorities of a EU Member State involved in the prevention of and the fight against environmental criminal offences (See Article 19 of the ECD).

Next steps

Like any EU Directive, the ECD will now follow the formal adoption procedure. Once adopted, the ECD will need to be transposed into the Member States' national law. According to the ECD, from its date of entry into force, Member States will have 18 months to adopt national provisions.