Directive on the protection of the environment through criminal law

[EC.Europa.EU]. Environmental crime covers acts that breach environmental legislation and cause significant harm or risk to the environment and human health. The most known areas of environmental crime are the illegal emission or discharge of substances into air, water or soil, the illegal trade in wildlife, illegal trade in ozone-depleting substances and the illegal shipment or dumping of waste. Environmental crimes cause significant damage to the environment in Europe and the world. At the same time they provide for very high profits for perpetrators and relatively low risks of detection. Very often, environmental crimes have a cross border aspect. Environmental crime is a serious and growing problem that needs to be tackled at European level.

The problem of environmental crime has been discussed in many international and European fora for many years. Building on this work, the European Commission adopted a proposal for a directive aiming to ensure the protection of the environment through criminal law.

After lengthy institutional discussions and two judgments of the European Court of Justice on the extent of the Community’s competence in the area of criminal law, the Council and the European Parliament agreed on the text of the directive on the protection of the environment through criminal law.

The Justice and Home Affairs Council formally adopted the directive on 24 October 2008.

The Directive should be transposed by Member States by December 2010.

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

Why a Directive to protect the environment through criminal law?

  • EC Environmental law has existed for 30 years. More than 200 directives in the field of environment are today in force. However, there are still many cases of severe non- observance of Community environmental law(implementation website).
  • Environmental law needs to be implemented in an effective way. That is the reason why the Commission proposed a directive which requires the Member States to provide for criminal sanctions for the most serious environmental offences because only this type of measures seems adequate, and dissuasive enough, to achieve proper implementation of environmental law.
  • The available information shows that there are large differences between the criminal sanctions provided for environmental offences in the Member States. The existing criminal sanctions are not sufficiently stringent to ensure a high level of environmental protection throughout the Community (see studies carried out by the Commission)

Main content of the Directive: minimum requirements to be implemented in national criminal laws

  • The proposed directive lays down a list of environmental offences that must be considered criminal offences by all Member States, if committed intentionally or with serious negligence. The proposed directive does not create a list of new illegal acts. The existing law already provides for these prohibitions. The Member States, by transposing this directive will only have to attach to these existing prohibitions some criminal sanctions.
  • Inciting, aiding and abetting the commission of these offences must be punishable as a criminal offence as well.
  • Member States must ensure that legal persons can be held liable for offences committed for their benefit. This responsibility can be of criminal or other nature.
  • Member States must ensure that the commission of the offences is subject to effective, proportionate and dissuasive criminal sanctions. For legal persons the sanctions can be of a non criminal nature.
  • The proposed directive only sets a minimum standard of environmental protection through criminal law to be adopted by the Member States. The Member States are free to maintain or introduce more stringent protective measures.
  • The proposed directive does not lay down measures concerning the procedural part of criminal law nor does it touch upon the powers of prosecutors and judges.