Environmental crimes, the new EU directive

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environmental crimes

The European Parliament approved the new EU directive to combat environmental crimes with 499 votes in favour, 100 against and 23 abstentions. Introducing new cases, compared to the text agreed with the Council on 16 November 2023, which member states will have to punish with criminal and administrative sanctions. (1)

1) Environmental crimes, introduction

Interpol and the United Nations indicate environmental crimes as the fourth largest criminal activity on a global level, as well as one of the main sources of income for organized crime. (2) The new EU directive seems aimed at tackling this phenomenon, thanks to:

  • affirmation of the ‘polluter pays’ principle and definition of ‘qualified crimes’, equated to the concept of ecocide
  • fight against cross-border crime in a European dimension, with harmonized and dissuasive sanctions that prevent new environmental crimes‘. (3)

2) The new environmental crimes introduced by the legislation

Different cases, ‘if illicit and committed intentionally‘ – that is, with intent or gross negligence – ‘constitute a crime‘ (4). These include:

  • the import and use of mercury, fluorinated greenhouse gases and other pollutants
  • the treatment and trade of hazardous waste
  • the importation of invasive species (5)
  • the illegal depletion of water resources
  • pollution caused by ships
  • any conduct that causes deterioration of a habitat within a protected site.

The ‘qualified crimes’ occur when such conduct, either active or omissive, causes:

(a) the destruction of an ecosystem of considerable size or environmental value or a habitat within a protected site or widespread and significant, irreversible or long-lasting damage to such an ecosystem or habitat;

b) widespread and significant, irreversible or long-lasting damage to the quality of air, soil or water.

In fact, the legislator introduced the crime of ‘ecocide’, i.e. the damage and destruction of ecosystems (article 3.3). Some examples of ecocides, which have been recorded and often go unpunished for decades, concern deforestation, oil spills from ships, and the dispersion of toxic chemicals. (6)

3) Criminal sanctions

Member States will have to introduce effective, proportionate and dissuasive criminal sanctions to punish the crimes introduced by the new directive, against natural persons and representatives of the organizations to which they may be attributed.

Prison sentences must include maximum statutory sanctions of at least:

  • 10 years, if the environmental crime causes the death of one or more people
  • 8 years, for qualified crimes
  • 5 years for other crimes.

The determination of the penalty must consider the severity, the temporal extension and the reversibility of the damage.

3.1) Ancillary measures and financial sanctions

Member States may decide to provide additional measures, such as:

– ‘obligation to restore the environment within a certain period if possible’

– ‘compensate for damage to the environment, if the damage is irreversible or if the perpetrator is unable to carry out such restoration‘.

Other ancillary measures contemplate:

  • pecuniary sanctions, proportionate to the seriousness of the conduct and the personal, financial and other circumstances
  • interdictory measures, such as exclusion from access to public funding, tenders or grants, prohibition from exercising prominent positions, withdrawal of permits and authorizations for the exercise of activities which allowed the commission of crimes, bans temporary candidates to run for public office
  • full or partial publication of the sentence, in cases of public interest (art. 5.3).

4) Responsibility of entities

Legal persons and entities are in turn responsible for environmental crimes committed by subjects with a position of pre-eminence or who in any case are part of it, if the offenses have brought an advantage to the legal persons and entities themselves (art. 6).

The entities responsible for environmental crimes must be subjected to effective, proportionate and dissuasive sanctions. Which include:

  • the obligation to restore the environment, if the damage is reversible, or its compensation
  • pecuniary sanctions‘the amount of which is proportionate to the seriousness of the conduct and the individual, financial or other situation of the legal person concerned‘. Not lower, in relation to the seriousness of the crimes, than:
  • 5% of the total annual turnover, globally, or 40 million euros, i.e
  • 3% of the worldwide annual turnover or an amount corresponding to 24 million euros
  • interdictory measures (art. 7).

5) ‘Whistleblower’

The MEPs have obtained the introduction of support and protection tools for people who report environmental crimes envisaged by the directive. In fact, it may happen that a person aware of an environmental crime does not report the perpetrators for fear of repercussions on him or her.

The ‘whistleblower’ – the person who provides evidence or collaborates with the competent authorities – must therefore be protected and assisted throughout the criminal proceedings, with specific measures whose implementation falls under the responsibility of the Member States (art. 14). (7)

6) Training, cooperation, reporting

The concrete application of the directive depends on the Member States, who will have to:

  • organize specialized training courses for judges, prosecutors and law enforcement
  • strengthen cooperation and coordination between authorities within national borders and with other European countries
  • publish reports every 3 years with statistical data on investigations initiated and convictions for environmental crimes.

7) Final provisions

The entry into force of the directive is expected on the twentieth day following its publication in the Official Journal of the European Union. Member States will have 2 years to transpose its contents into national laws.

Further environmental crimes can be introduced into national laws, at the discretion of the Member States they can provide for further crimes. In Italy, law 68/2015 on eco-crimes is still in force, which introduced into the penal code the crimes of pollution, environmental disaster, trafficking of radioactive material, failure to clean up and impediment of control.

8) Perspectives

The ‘Ecomafia’ report (Legambiente, 2023) indicates 637 charges for environmental crimes in Italy in 2022, with the reporting of 1.289 people and 56 arrests and the seizure of 115 assets worth over €333,5 million (+47% compared to the 227 million euros of assets seized in 2021). (8)

The European directive on environmental crimes approved by the European Parliament contains new offences, starting with the definition of massacre, a tightening of sanctions, greater protection for those who report and, as proposed by Legambiente, the commitment to facilitate access to justice for associations.

An important step at a European level for the contrast and fight against environmental illegalities which will allow us to strengthen what has already been foreseen since 2015 thanks to the introduction of crimes against the environment in the Criminal Code. Also for this reason, Italy can set a good example by becoming the first European state to implement the new directive’. (Stefano Ciafani, Legambiente, president).

Dario Dongo and Alessandra Mei

Footnotes

(1) Legislative resolution of the European Parliament of 27 February 2024 on the proposal for a directive of the European Parliament and of the Council on the protection of the environment through criminal law, replacing Directive 2008/99/EC  https://www.europarl.europa.eu/doceo/document/TA-9-2024-0093_IT.html#title2

(2) European Council. Infographics – the EU’s fight against environmental crime https://www.consilium.europa.eu/it/infographics/eu-fight-environmental-crime-2022

(3) European Parliament. Environmental crimes: MEPs adopt expanded list of crimes and sanctions. 27.2.2024  https://www.europarl.europa.eu/news/en/press-room/20240223IPR18075/environmental-crimes-meps-adopt-extended-list-of-offences-and-sanctions

(4) The crime occurs when the conduct (active or omissive) is carried out with ‘intention’. That is to say with:
– awareness and will to cause the unlawful act (malice)
– awareness and acceptance of the risk of the event occurring (possible fraud)
– gross negligence, imprudence, incompetence (serious negligence. Article 3.2 of the directive)

(5) Dario Dongo. Invasive alien species, an overlooked threat. IPBES reportGIFT (Great Italian Food Trade). 10.1.24

(6) Stop Ecocide https://www.stopecocidio.it/cose-lecocidio

(7) The protection of ‘whistleblowers’ has also been provided for in the proposed ‘Corporate Sustainability Due Diligence Directive’ (CSDDD). See paragraph 4.2 in the previous article by Dario Dongo and Elena Bosani. Due diligence and ESG, social and environmental sustainability of companies, the proposed EU directiveGIFT (Great Italian Food Trade). 20.4.22

(8) Legambiente. European directive on environmental crimes approved. 4.3.2024 https://noecomafia.legambiente.it/2024/03/04/approvata-la-direttiva-europea-sui-crimini-ambientali/

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Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.

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Graduated in Law from the University of Bologna, she attended the Master in Food Law at the same University. You participate in the WIISE srl benefit team by dedicating yourself to European and international research and innovation projects.