Explanatory Memorandum to COM(2021)851 - Protection of the environment through criminal law

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This page contains a limited version of this dossier in the EU Monitor.

dossier COM(2021)851 - Protection of the environment through criminal law.
source COM(2021)851 EN
date 15-12-2021


1. CONTEXT OF THE PROPOSAL

• Reasons for and objectives of the proposal

The current EU legislation that provides common minimum rules to criminalise environmental crime is Directive 2008/99/EC on the protection of environment through criminal law.

The Commission evaluated the Directive in 2019/20 and published its findings in October 2020 1 . It found that the Directive did not have much effect on the ground: over the past 10 years the number of environmental crime cases successfully investigated and sentenced remained very low. Moreover, the sanction levels imposed were too low to be dissuasive and cross-border cooperation did not take place in a systematic manner.

The evaluation found considerable enforcement gaps in all Member States and at all levels of the enforcement chain (police, prosecution and criminal courts). It also identified deficiencies in the Member States in terms of resources, specialised knowledge, awareness, prioritisation, cooperation and information sharing, and found there were no overarching national strategies to combat environmental crime involving all levels of the enforcement chain and a multi-disciplinary approach 2 . Moreover, the lack of coordination between administrative and criminal law enforcement and sanctioning often hinders effectiveness.

It was also noted that the lack of reliable, accurate and complete statistical data on environmental crime proceedings in the Member States not only hampered the Commission’s evaluation but also prevents national policy-makers and practitioners from monitoring the effectiveness of their measures.

Based on the evaluation findings, the Commission decided to revise the Directive. The 2021 Commission Work Programme schedules a legislative proposal for revision of the Directive 3 in December 2021.

It is proposed to replace Directive 2008/99/EC. This proposal is accompanied by a Communication 4 explaining its policy objectives. To address the problems identified, the proposal has six objectives.

Contents

1.

1. Improve the effectiveness of investigations and prosecution by updating the scope of the Directive.


2.

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.

3.

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 and sanctioning.

• Consistency with existing policy provisions in the policy area

The objectives of this proposal are consistent with the following policy and legislative provisions:

·Council Framework Decision 2002/584/JHA on the European Arrest Warrant and the surrender procedures between Member States

·Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union

·Directive 2014/41/EU regarding the European Investigation Order in criminal matters

·Council Framework Decision 2005/214/JHA on the application of the principle of mutual recognition to financial penalties

·Council Framework Decision 2009/948/JHA on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings

·Council Framework Decision 2009/315/JHA on the organisation and content of the exchange of information extracted from the criminal record between Member States

·Regulation (EU) 2016/794 on Europol

·Council Regulation (EU) 2017/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’)

·Regulation (EU, Euratom) No 883/2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF)

·Directive (EU) 2017/1371 on the fight against fraud to the Union's financial interests by means of criminal law

·Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law.

• Consistency with other EU policies

Criminal law is one part of a comprehensive EU strategy to protect and improve the status of the environment, a priority for the European Commission. The Green Deal communication and the biodiversity strategy set out a whole range of environmental protection measures that reinforce and influence each other, bringing them together in a holistic approach. Criminal law measures come in as a last resort when other measures have not sufficed to ensure compliance. Thus, environmental indicators on e.g. the degree of air pollution or biodiversity would measure the effectiveness of the overall strategy to improve the environment, not just the effectiveness of the new approach towards environmental crime.

In addition, the EU Security Union Strategy and the EU Strategy to tackle Organised Crime 2021-2025 include the assessment and revision of the Directive as part of the key actions identified to fight environmental crime.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

• Legal basis

The legal basis for the proposed Directive is Article 83(2) TFEU. Article 83(2) TFEU sets out the EU’s competence to establish minimum rules with regard to the definition of criminal offences and sanctions in EU policy areas which have been subject to harmonisation measures, if this is necessary for effective enforcement:

‘If the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, directives may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned. Such directives shall be adopted by the same ordinary or special legislative procedure as was followed for the adoption of the harmonisation measures in question, without prejudice to Article 76.’

• Subsidiarity (for non-exclusive competence)

Criminal activities related to the environment often have a cross-border dimension, while some environmental crimes usually impact several countries (for example the illicit trafficking of waste, of protected species or of wildlife products, see Section 1 – Introduction) or have cross-border effects (e.g. in the case of cross-border pollution of air, water and soil) 5 . Cross-border cooperation between law enforcement and judicial authorities is therefore essential.

The existing Directive aimed to provide a harmonised legal framework of criminal offences 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 reconciled their respective understandings of environmental crime within the room for manoeuver left by the Directive. Similarly, the insufficient sanction levels in a number of Member States prevent a level playing field across the EU and the application of mutual recognition instruments (such as the European Arrest Warrant and the European Investigation Order).

There is a growing gap between the criminal justice response to environmental crime and the criminological situation on the ground. Despite the current Directive, the number of cross-border investigations and convictions in the EU for environmental crime has not grown substantially. In the meantime, in contrast, environmental crime is growing at annual rates of 5% to 7% globally 6 , creating lasting damage for habitats, species, people’s health, and the revenues of governments and businesses.

• Proportionality

In accordance with the principle of proportionality, as set out in Article 5 i TEU, the proposed revision of Directive 2008/99/EC is limited to what is necessary and proportionate to adapt existing legislation on offences in this area to new threats. Measures on the use of investigative tools and information exchange are included only to the extent needed for the proposed criminal law framework to function effectively.

The proposal defines the scope of the criminal offences to cover all relevant conduct while limiting it to what is necessary and proportionate. The new directive includes new environmental offence categories to the extent required by the underlying environmental legislation. Both the offences and sanctions are limited to serious breaches of environmental law and thus respect proportionality.

• Choice of the instrument

In accordance with Articles 83(2), minimum rules with regard to the definition of criminal offences and sanctions in EU policy areas which have been subject to harmonisation measures may only be established by means of a Directive of the European Parliament and the Council adopted in accordance with the ordinary legislative procedure.

There is still a need for criminal sanctions to ensure effective implementation in the areas covered by the 2008 Environmental Crime Directive. Therefore, the Commission proposes to carry over the list of offences included in Article 3 of the 2008 Directive, with the necessary precisions and modifications, that includes: serious pollution offences; illegal waste management and waste shipments; the operation of installations in which dangerous activities are carried out or dangerous substances are stored or used; offences related to manufacture, production, processing, handling, use, holding, storage, transport, import, export or disposal of radioactive material; wildlife crimes, including illegal killing, destruction, possession or taking of specimens of wild fauna and flora species, illegal wildlife trafficking and habitats deterioration; illegal production, placing on the market, import, export, use, emission or release of ozone depleting substances.

The need to combat these offence categories by criminal sanctions was confirmed by the Council conclusions setting the EU’s priorities for the fight against serious and organised for the European multi-disciplinary platform against criminal threats (EMPACT) 2022-2025 7 .

As regards waste crime in particular, the 2021 European Union Serious and Organised Crime Threat Assessment report 8 states that “waste management is a lucrative and fast-developing industry, which increasingly attracts criminals. The majority of the reported waste trafficking cases involved individuals working in or operating waste management companies as managers or staff, who violate national and international legislation and standards regulating the collection, treatment and disposal of waste to maximise profits. The most successful waste traffickers are those who control the entire processing cycle, from source to destination countries. Criminals trafficking waste between different countries primarily use legal business structures to orchestrate waste crimes. Often multiple companies are owned by the same individuals or by strawpersons. The legal business structures frequently change leadership and are often terminated after a short period of activity, as a new trading entity takes over the business. Companies operating different stages in the waste cycle are often located in different jurisdictions. Waste trafficking is strongly linked to other offences such as document fraud, economic fraud, tax evasion, corruption, money laundering, as well as theft and the dumping of waste from illegal drug production”.

In addition, the Commission has identified a need for criminal sanctions to ensure the effective implementation of EU policies on protection of the environment, in relation to the following offence categories currently not covered by the Directive:

·placement on the market of products which, in breach of mandatory requirements, cause substantial damage to the environment because of product’s use on larger scale;

·serious breaches of EU chemicals legislation causing substantial damage to the environment or human health;

·illegal ship recycling;

·illegal water abstraction;

·source discharge of polluting substances from ships (it is proposed that this offence category is taken over from Directive 2005/35/EC 9 , to consolidate the legal framework);

·illegal trade in timber;

·serious breaches of rules on introduction and spread of invasive alien species with Union concern;

·serious circumvention of requirements to do an environmental impact assessment;

·illegal production, placing on the market, import, export, use, emission or release of fluorinated greenhouse gases.

These conducts have a potential high risk to human health and the environment and can lead to particularly serious negative impacts on the environment and the society. Despite the actually occurring and potentially possible detrimental consequences, currently the enforcement of the relevant rules is not sufficiently effective. The adoption of and reliance on administrative sanctions by Member States has, to date, proven to be insufficient to ensure compliance with the rules on protection of the environment which calls for stronger measures on preventing and fighting environmental crime.

For example, as regards the EU Timber Regulation 10 , while all Member States have included sanctions for offenders in national legislation, the types of sanctions and maximum levels vary across Member States significantly: administrative fines and seizures can be imposed in 23 Member States, criminal fines in 16, imprisonment in 17, suspension of trade in 15 and other types of penalties in 11. Fines applicable to infringements of the EU Timber Regulation range from EUR 50 to an unlimited amount 11 . These discrepancies between Member States’ sanction regimes applicable to violation of the EU Timber Regulation and the fact that sanctions are deemed in many cases too low to truly have a deterrent effect on illegal behaviours, coupled with uneven enforcement across the EU, bear a risk of trade diversion. Moreover, the disparities in sanction regimes and the lack of uniform implementation across Member States undermine the level playing field by putting the operators who strictly comply with the requirements at a disadvantage. This can be addressed through harmonized criminalization and through an approximation of sanction levels across the EU in the Environmental Crime Directive.

It is clear that administrative sanctions are inadequate in circumstances such as those that resulted in the murders of two forest rangers in one Member State who had been investigating problems related to illegal timber harvesting. The underline pattern of timber-related infringements are of such a serious nature that authorities must have the means of criminal enforcement to tackle them. On timber related issues, the Commission had launched an infringement procedure against that Member State concerning the lack of effective checks on operators and failure to apply appropriate sanctions. In the meantime, that Member State introduced criminal penalties for specific misconducts which were previously subject to administrative sanctions only which were insufficient to ensure compliance.

The serious breaches of prohibitions on the use of defeat devises in motor vehicles uncovered since 2015 demonstrate that even large established companies may not be deterred from infringements if they perceive that the only enforcement will be of administrative nature.

Another example relates to illegal water abstraction which contributes to serious depletion of water resources, a problem set to worsen as a result of climate change. In its 2021 Special Report on “Sustainable water use in agriculture: CAP funds more likely to promote greater rather than more efficient water use”, the Court of Auditors documents the ineffectiveness of administrative measures to address over-abstraction of water and stresses that checks are infrequent and sanctions too low to ensure effective implementation and compliance with relevant obligations 12 . The report refers to shortcomings in sanctioning regimes in individual Member States. 13 .

Furthermore, a limited number of Member States have introduced sanctions applicable to developers under the Environmental Impact Assessment Directive. For example, developers are not targeted in a systematic manner in cases where they fail to undertake an environmental impact assessment for a given project or execute projects prior to finalisation of respective procedures or without proper permits. Breaches of these obligations may lead to significant negative consequences to the environment, while the existing level of sanctions do not deter sufficiently such offences.

It is essential that compliance with the EU rules on activities with impact on the environment and on environmentally sensitive goods is strengthened by the availability of criminal sanctions which demonstrate a stronger form of social disapproval compared to administrative penalties. Establishing criminal offences for serious breaches of Union rules, which irrespective of their legal basis contribute to the Union policy of protecting the environment, sets clear boundaries for types of behaviour that are considered to be particularly unacceptable and sends a message to the public and to potential offenders that competent authorities take such behaviour very seriously. This seems particularly appropriate having regard to the explicit reliance on the preventive and precautionary principles in this policy area.

Common minimum rules on definition of environmental criminal offences and sanctions would also make it possible to use more effective methods of investigation and enable more effective cooperation within and between Member States. This has been recognised as particularly important as regards combating waste and wildlife trafficking (including illegal timber trade), given the relationship with the internal market and EU trade policy.

Given the possible devastating impacts of environmental crimes on the environment and human health, it is important that potential perpetrators do not perceive parts of the EU as operating a lighter and less effective regulatory regime. The imposition of criminal sanctions for the most serious environmental misconduct will have an increased deterrent effect on potential offenders. The introduction by all Member States of criminal sanctions is therefore essential to ensure the effective implementation of Union policy on environmental protection.

With regard to the inclusion of negligent conduct within the scope of offences, it is important to stress the extent of the reliance of EU environmental rules on preventive and precautionary measures. The Treaty explicitly (Article 191 (2) TFEU) provides that environmental policy is based on these principles. The importance of a high standard of care is necessary for the conduct of activities which are inherently dangerous because of the use of hazardous materials and/or processes. In such context, negligent conduct can have major and even catastrophic repercussions, making it necessary to underline society’s position that negligent conduct should be treated as sufficiently grave to be criminalised. Criminal law is intended to have a deterrent effect, and inclusion of negligence should of itself disincentives any inclination towards such conducts, for example in order to obtain a financial gain through underinvestment or corner cutting.

The environmental acquis includes an important number of instruments, such as the Industrial Emission Directive 14 , the Seveso Directive 15 , the REACH Regulation 16 and waste legislation which focus on ensuring that dangerous or high risk activities and substances are treated with a high level of technical safeguards.

With regard to the frequency of occurrence of certain offences, regrettably, organised crime is recognised as undermining the management of waste 17 . Problems of defiance of wildlife prohibitions are also a long recognised problem, as demonstrated by the focus of the Bern Convention 18 on work related to combating wildlife crime, for instance. Also against this background and due to the nature of the relevant conduct, it is necessary that also negligent behaviour is covered by this Directive.

3. RESULTS OF EX POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

• Ex post evaluations/fitness checks of existing legislation

The Commission carried out an evaluaton of the current Directive in 2019/2020 (published in October 2020), which concluded that the Directive did not have much effect on the ground. The ex post evaluation of the Directive was guided by four main assessment criteria: (a) effectiveness (evaluation of whether the objectives of the Directive have been achieved), (b) efficiency (evaluation of whether the benefits of having and implementing the Directive justify the costs), (c) coherence (with other relevant EU criminal and environmental legislation and policies, as well as with the EU’s international obligations) and (d) relevance (relevance of the Directive’s original objectives in the light of current and future needs). The evaluation also took into account social and economic impacts for different stakeholder groups.

The evaluation identified six main problems that have resulted in the Directive’s lack of effectiveness in practice:

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

2. The Directive contains several unclear definitions used for the descriptions of environmental criminal offences, which may hinder effective investigations, procecutions and cross-border cooperation.

3. Sanction levels are not sufficiently effective and dissuasive in all Member States under the current Directive.

4. Insufficient internal and cross-border cooperation and coordination on environmental crime among Member States hinder effective investigations and prosecutions.

5. The lack of reliable, accurate and complete statistical data on environmental crime proceedings in the Member States prevents national policy-makers and practitioners from monitoring the effectiveness of their measures.

6. Ineffective enforcement chain: environmental crime is not effectively prioritised, detected, investigated, prosecuted and sanctioned due to ineffective operation of the enforcement chain. Enforcement gaps in all Member States and at all levels of the enforcement chain (inspectors, police, prosecution and criminal courts) have been identified, including a lack of resources, insufficient training and lack of specialised knowledge, a lack of awareness and prioritisation, and weak cooperation and information sharing.

Based on the findings of the evaluation, the European Commission decided to revise the Directive and conducted an impact assessment. The various steps of the impact assessment, from the definition of problems and their drivers to the identification of objectives and possible policy options, relied on the findings of the evaluation report.

• Stakeholder consultations

The Commission conducted fruitful public and targeted stakeholder consultations to benefit from external expertise and understand the concerns of the wider public. Moreover, it aimed to ensure that the options considered for the review of the Directive represent the most appropriate ways to increase its effectiveness and support the work of practitioners on the ground. The consultations were conducted as widely as possible to receive relevant input, evidence and explanation of the relevant and actual needs of different categories of stakeholders about the six main objectives:

·Clarify and update the scope of the Environmental Crime Directive;

·Clarify legal terms used to define environmental criminal offences;

·Improve availability of dissuasive and comparable sanction types and levels;

·Improve cross-border cooperation;

·Improve the collection and dissemination of information and statistical data; and

·Improve the functioning of the enforcement chain (training, coordination and cooperation, resources, strategic approach).

The consultations were conducted at an early stage and sought views from a wide range of stakeholders, such as members of the public, experts, practitioners (police services, inspectors, prosecutors and judges), networks of practitioners (IMPEL, ENPE, EUFJE, EnvirCrimeNet), public authorities from Member States (Ministries of Justice and Ministries of Environment), European agencies (Europol and Eurojust), environmental non-governmental organisations (NGOs), business organisations, individual companies and academics. All these were consulted on their expectations and concerns about the need for and content of a possible review of the Environmental Crime Directive.

During the consultation process, the Commission applied a variety of methods and forms of consultation. They included:

·The consultation on the inception impact assessment and a 12-week open public consultation, which sought views from all interested parties.

·A series of online targeted thematic workshops and expert group meetings, including meetings of the Environmental Compliance and Governance Forum and its Working Group on sanctioning of environmental offences. Dedicated questionnaires and discussion papers were sent out in advance to prepare for the meetings hosted by the Commission.

·A number of online conferences in which the Commission participated and presented its work in this area gathered feedback on the six main options from other conference participants and invited additional participants in the expert process and the public consultation.

·Bilateral online meetings with a wide range of stakeholders organised at the initiative of the Commission or stakeholders.

·Position papers and analytical papers from European agencies, practitioners, professional networks (e.g. the joint statement of IMPEL/ENPE/EUFJE and EnviCrimeNet adopted at a conference in May 2021 devoted to combating environmental crime and the revision of the ECD), industry representatives, public authorities from Member States, NGOs, civil society and academia.

In total, the dedicated consultation activities lasted more than 6 months, from February 2021 to July 2021.

The consultation was designed to follow the same logical sequence as the impact assessment, starting with the problem definition and allowing for gradual development of the possible options and their impacts:

·The majority of the respondents confirmed the need to update the scope of the Environmental Crime Directive and to clarify legal terms.

·Most of the contributions from NGOs and business associations identified environmental areas or specific legislation which are not covered by the current Environmental Crime Directive but whose inclusion should be considered.

·The majority of the respondents considered it appropriate to include provisions on minimal levels for maximum sanctions and for aggravating circumstances. The inclusion of a provision on confiscation along with legislation against legal persons are considered useful in some cases.

·Several parties advocated for better collection and transmission of information by Member States. Concerns were raised that this would mean complex IT adjustments, a difficult and lengthy process which puts a heavy administrative burden on law enforcement authorities, the Public Prosecution Office and the judiciary.

·The large majority of stakeholders confirmed the pressing need to improve the effectiveness of the enforcement chain in practice and the need for provisions on training, resources, cooperation and coordination, together with strategic approaches for combating environmental crime.

The Commission took all responses into consideration when deciding which options should be favoured. More information on the consultations can be found in the annexes to the impact assessment (Annexes 7 and 8).

• Collection and use of expertise

To ensure the availability of the necessary evidence for its impact assessment, the Commission drew on a wide spectrum of expertise. The expert opinions considered can be divided into two main categories: state of the art studies on the subject, and stakeholder consultations.

First, the Commission evaluated the current Directive in 2019/20 and published its findings in October 2020. The evaluation helped the Commission to understand the benefits and drawbacks of the current legislation. It paved the way for the review of the Directive, as the evaluation clearly underlined that the current legislation had only negligible effects on the ground. After the evaluation, the Commission contracted a study to support the impact assessment; the study was conducted between April 2021 and October 2021. It aimed to assess the impacts of different options, mainly their financial and economic impact.

Besides the two studies, the Commission conducted a comprehensive review of existing literature on the subject. This is reflected by the numerous references used in the impact assessment. In addition, a large number of written statements from stakeholders, e.g. 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 the Committee on Legal Affairs. Findings 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, were also taken into account.

Relevant work of the main European Environmental Enforcement Networks (IMPEL, EnviCrimeNet, ENPE, EUFJE) has also been carefully considered.

The outcomes of the eighth round of the Council’s mutual evaluations on combating environmental crime have also been taken into account.

• Impact assessment

The legislative proposal is based on an impact assessment. The Regulatory Scrutiny Board (RSB) issued a positive opinion (with reservations) on 1 October 2021. Annex I to the impact assessment explains how the RSB comments were addressed.

An evaluation showed that the Directive, although establishing a common EU framework of key environmental crime, did not have much effect in practice;

It did not affect the number of convictions or the level of imposed sanctions in the Member States. In particular, the evaluation identified the following specific key problems:

1. The scope of the ECD (defined in two annexes to the ECD and a list of offenses in Article 3 of the ECD) is outdated and it is defined in a complex way, hindering effective investigations, prosecutions and cross-border cooperation.

2. Definitions of what constitutes ‘environmental crime’ are unclear and hinder effective investigation, prosecutions and cross border cooperation between and within Member States.

4.

3. Sanction levels are not effective and dissuasive in all Member States.


4. Cross-border cooperation is too limited;

5. Policymakers and practitioners lack awareness of the nature and scale of environmental crime and the effectiveness of law enforcement measures due to limited collection, processing and sharing of statistical data.

6. The enforcement chain for combating environmental crime, inter alia, is ineffective owing to lack of training and specialisation, as well as insufficient coordination and cooperation between the different levels of environmental law enforcement.

The Commission has developed a number of legislative and non-legislative policy options. The options considered and discarded at an early stage were: to repeal the Directive; or to address the identified problems through non-binding measures only, such as EU guidance on the interpretation of definitions and levels of sanctions.

Based on the assessment, the only suitable option for achieving the specific objectives identified is to revise the Directive. This would not exclude supporting non-legislative measures (hereinafter: ‘main option’). In the context of the main policy option, the following sub-options (hereinafter: ‘Options’) have been identified and assessed in full detail in the Impact Assessment to address each specific objective:

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

·Option 1a: Update the existing list of legislation in the annexes, add new relevant crime categories to Article 3, and introduce the comitology procedure to keep the annexe updated.

·Option 1b: Refer to relevant sectoral legislation in general terms and remove the annexes; refine the definition of what constitutes environmental crime in the Article 3 offences, and add new relevant crime categories.

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

The preferred option is 1b, as it adds more legal clarity concerning which breaches of sectoral legislation constitute environmental crime. In the future, the European legislator would have to, update the Directive (similarly to the current situation), as a simpler mechanism – namely the comitology procedure – is not applicable to essential components of the Directive. The definition of environmental crime is an essential component. The offences in Article 3 would be defined by reference to an expanded definition of what is ‘unlawful’ and would also contain an updated list of crime categories based on serious breaches of current environmental legislation.

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

·Option 2a: Define unclear terms in the Directive (e.g. ‘substantial damage’) more precisely.

·Option 2b: Eliminate vague terms as for example ‘substantial damage’, including by criminalising risky behaviour (endangerment crime).

·Option 2c: A combination of options 2a and 2b.

The preferred option is 2c, because for the sake of clarity the legislator should clarify in the Directive itself (option 2a) the unclear definitions identified and should also add more offences based on the concept of risk, essential for cases entailing great harm that can be proved in environmental crime proceedings. Endangerment crimes would catch cases where the legislator has decided that the infringement of sectoral rules would put the environment at intolerable risk.

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

·Option 3a: Introduce minimum maximum sanction levels.

·Option 3b: Option 3a plus aggravating circumstances and accessory sanctions.

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

The preferred option is 3c, as all measures address different aspects of effective sanctioning and reinforce each other.

Objective 4: Foster cross-border investigation and prosecution.

A package of provisions directly fostering cross-border cooperation, such as harmonised effective investigative tools, the obligation to cooperate through Europol, Eurojust and OLAF, and rules on jurisdiction.

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

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

·Option 5b: Option 5a plus an obligation on the Member States to collect and report statistical data according to harmonised common standards.

The preferred option is 5b.

Objective 6: Improve the operational effectiveness of national enforcement chains to foster detection, investigation, prosecution and sanctioning.

A package of obligations to foster practical implementation, such as the provision of targeted and regular training at all levels of the enforcement chain, overarching national environmental crime strategies and awareness-raising measures.

5.

Preferred package


Under objective 1, removing the annexes and instead refining the definition of what constitutes environmental crime in Article 3 and adding new environmental crime categories under the same article is likely to improve the effectiveness of investigations and prosecutions of environmental crime, especially with regard to cross-border cooperation. However, in the future there would be also a need to regularly update the Directive through legislative procedure, if new environmental crime areas are to be added to the Directive’s scope. There is no simpler way to do this, as the definitions of environmental crime categories are an essential component of the Directive and require a decision by the European legislator.

Under objective 2, both endangerment crime and crime that requires the manifestation of damage are necessary to respond adequately to environmental offences. The current Directive is built on a combination of these two types of crime definition. The proposal will have to add new endangerment crime categories and specify more exactly which behaviour is criminalised; it will also have to add information enabling it to be determined what can constitute environmental damage.

More precise definitions of unclear terms – such as ‘substantial damage’ and ‘negligible or non-negligible quantity’ – will improve the clarity of the Directive. The focus on endangerment crime and risky behaviour will allow effective sanctioning in cases where it is difficult to establish the actual damage or where no damage occurred. Hence, the combined application of both options may lead to the increased effectiveness of investigations and prosecutions of environmental crime.

Under objective 3, the package of measures on sanctions (option 3c – minimum maximum sanctions, aggravating circumstances, accessory sanctions, dependency of the level of fines on illegal profits and the financial situation of the offender) will lead to more effective, proportionate, dissuasive and uniform sanction levels across the EU and in practice across the EU. In addition, the minimum maximum levels of imprisonment sanctions will give law enforcement practitioners access to investigative tools, which are only available for crime punishable by a certain minimum maximum level of penalties. This will lead to more effective investigations and facilitate cross-border cooperation.

The measures under objective 4 (approximation of investigative tools, obligation to cooperate through EU-agencies, setting up of national contact points) will directly foster cross-border cooperation, complement and reinforce each other and lead to investigations that are more effective as many environmental crime cases can only be conducted successfully cross-border.

The preferred option under objective 5 will lead to a commonly defined minimum standard for the collection of data on environmental crime procedures and thus to statistical data that is comparable across the EU.

The package of measures proposed under objective 6 (training/specialisation, cooperation and coordination requirements, awareness raising, national strategies) will have a positive influence on the effectiveness on the ground at all levels of the enforcement chain (inspectors, police, prosecution, criminal judges).

As the Directive needs improvement in all six problem areas, the combination of the preferred options under each objective should result in the best overall package. 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 Directive’s broader scope allowing such cooperation in more environmental areas. More precise definitions of what constitutes environmental crime under objective 2 will reduce the different perceptions in the Member States that have so far hampered or even ended cooperation. The definition of maximum sanction levels not only ensures more dissuasive sanctioning, it also opens the door to effective cross-border investigative tools provided for in legislative instruments that can only apply as of a certain sanction level for a given crime category. Under objective 6, better training and specialisation according to comparable standards in the Member States will also directly facilitate cross-border cooperation.

The ability of law enforcement practitioners to better anticipate a case’s chances of success, leading to more cases being prosecuted, 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 resources needed to tackle environmental crime cases.

The effectiveness and dissuasiveness of environmental criminal investigations will be achieved not just through more appropriate sanctioning by means of the preferred option under objective 3. More effective investigations through the combined effects of the preferred options under objectives 1, 2, 4 and 6 as described above will also contribute to a criminal justice system that deters environmental crime.

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

6.

Who is impacted by the Directive?


Member States and public authorities

Provisions on the implementation of the ECD are expected to strengthen the effectiveness of the enforcement chain and ensure comparability of efforts to combat environmental crime across the EU. They may create some costs for environmental, law enforcement and judicial authorities in the Member States, both one-off and ongoing. However, the mid and long-term benefits will greatly outweigh these. National authorities will need to provide additional human and material resources (mainly in the police and prosecution offices, as the institutions most often responsible for investigation and prosecution of environmental crime). Equally, an obligation for Member States to collect and report statistical data according to new and more harmonised standards could create an additional administrative burden: in terms of possibly adapting the systems in place to record cases, and in terms of elaborating those statistics at national level before transmitting them to the EU. All Member States would need to provide some degree of additional training to relevant professionals along the enforcement chain, taking into account the revised terms of the Directive and additional personnel. The resources required depend on the extent to which Member States already provide regular training on environmental crime. Finally, there are some additional costs associated with the setting up of national focal points in various institutions and the development of national strategies to combat environmental crime.

7.

EU businesses


There are no direct costs for EU businesses associated with the Directive; their compliance costs stem from administrative environmental law. More effective law enforcement in the area of environmental crime would protect legally-operating businesses from unfair competition stemming from illegal business activity. Furthermore, reputational damage for an industry (e.g. waste management, chemical production) that is impacted by illegal activity would be reduced, providing additional benefits for compliant businesses. As environmental crime will continue to be linked to a breach of administrative laws, there is limited risk that businesses could be sanctioned for environmental activity that is permitted under administrative law, with the exception of specific and well-defined situations mentioned in the Directive.

8.

SMEs


SMEs may face somewhat higher pressure due to less capacity to pay fines and/or engage legal expertise and carry out due diligence activities. The option of linking fines to the financial situation of a company, in addition to other circumstantial aspects of the crime, could reduce the vulnerability of SMEs to such fines.

9.

EU citizens


More effective enforcement of environmental criminal legislation is expected to have a positive impact on society at large. In addition to the quality of life benefits associated with environmental protection, reduction in criminal activity supports better governance, reduced corruption and reduction of the risks posed by large organised criminal groups.

• Regulatory fitness and simplification

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

The Directive – being a criminal law instrument – does not produce any additional costs for citizens, businesses and SMEs. This was confirmed during the stakeholder consultations.

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

The proposal also contains new provisions requiring Member States to take specific measures that will ensure the Directive is effectively implemented in practice (training measures, awareness-raising measures, measures to strengthen cross-border cooperation, measures to provide the necessary resources, etc.). Although these appear to be new obligations that produce costs for the Member States, the provisions in question actually only explicitly lay down what is in any event a Member State obligation. Member States are not only required to transpose the Directive into national law, they also have to take the necessary practical implementation measures. The evaluation showed 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 State compliance. The implementation measures required in the proposal are measures that practitioners have identified as most pertinent to enable them to enforce the national provisions transposing the Directive. Training in particular has been referred to as an essential need to improve law enforcement with regard to environmental crime.

• Fundamental rights

The Directive is likely to have a positive impact on the level of environmental protection, the subject of Article 37 of the Charter of Fundamental Rights of the European Union. Improving the environment will help improve the physical well-being (health) of citizens– this is covered by 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 care and well-being of children (Article 24), the right to healthy working conditions (Article 31) and the right to preventive and other health care (Article 35).

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 of the Charter), 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 that the procedural rights of suspected or accused persons in criminal proceedings are observed. The obligations under this Directive are without prejudice to Member State obligations under EU law on procedural rights in criminal proceedings.

4. BUDGETARY IMPLICATIONS

The current proposal has negligible budgetary implications for Member States and for the Commission. Specific information on the financial implications for the Commission can be found in the legislative financial statement attached to this legislative package.

The Commission has two kinds of costs: one-off, and recurring. The first financial implications for the Commission are linked to the fifth objective of the revision: improving statistical data collection and reporting on environmental crime. The Commission’s costs for this objective are EUR 155 000 in 2025. This overall cost is divided into three kinds of expenditure. First, the definition of minimum standards will cost EUR 110 000and is a one-off cost which will occur only in 2025. The second cost is linked with the maintenance of standards and is an annual recurring cost of EUR 16 000. The last cost associated with this objective is the biennial report on Member States data from the Commission, which is also an annual recurring cost of EUR 25 000.

Besides those costs for the fifth objective of the revision, the Commission will also need to provide for another one-off cost for its reporting obligations. The legislative proposal states that the Commission will have to produce two reports. The first is about the Member States’ transposition of the Directive and will cost EUR 405 000 divided between the cost of hiring a contractor to produce the study, i.e. EUR 350 000, and the review of it by Commission staff, i.e. EUR 54 600. The second report that the Commission has to produce is a study that will analyse the effectiveness of the Directive with a certain series of indicators. This study, which will happen after the end of the current MFF, will cost EUR 420 000.

Hence, the costs for the Commission in 2025 all included would be EUR 560 000 and the recurring annual costs linked with the Directive would be EUR 45 000. This evaluation does not include the costs of the report on the effectiveness of the Directive, which would happen after the current MFF.

The financial implications of the Directive for Member States are linked with three objectives of its revision: improving effective cooperation and coordination between Member States (objective 4), improving statistical data collection and reporting on environmental crime (objective 5), and improving effective operation of the enforcement chain (objective 6).

Regarding objective 4, there will be two sets of costs for all Member States: for investigative tools, and for setting up national contact points. On investigative tools, the data were not available to enable an initial assessment of the cost. However, for the setting up of national contact points, the cost for all Member States will vary between EUR 475 600 and EUR 792 700 depending on the option chosen by the Member States.

Regarding objective 5, several kinds of costs for Member States can be identified. Two of them are one-off costs: for the setting up of a national coordination procedure, which would cost EUR 146 200 for all Member States, and for defining minimum standards, which would cost EUR 280 000. Two costs linked with objective 5 are not one-off but recurring. First, Member States will have to maintain the standards, and for all Member States this should cost EUR 35 000. Coordination, collection and reporting will cost EUR 220 000 for all Member States. This means the overall amount of the costs for Member States for objective 5 is around EUR 683 000.

Regarding objective 6, Member States would again have several kinds of costs: for training, raising public awareness, defining and implementing national strategies and increasing staff. As training is one of the main support measures of the Directive, it has been estimated that for all Member States training will cost EUR 7 800 000. The cost related to national strategies should be divided into one-off and recurring costs. The definition and first implementation of national strategies will cost EUR 864 000 for all Member States. Once this first part is completed, Member States will have recurring costs which have been estimated at EUR 325 000 for all Member States. Finally, the increase in staff linked with this Directive has been estimated at EUR 4 million for all Member States. Hence, all the costs for objective 6 come to around EUR 13 million for all Member States.

Those costs should be assessed against how much loss environmental crimes account for. According to UNEP and Interpol estimates, published in June 2016, the annual loss caused by environmental crime is between USD 91 billion and USD 258 billion.

5. OTHER ELEMENTS

• Implementation plans and monitoring, evaluation and reporting arrangements

The proposal seeks to correct the deficiencies of the current Directive and therefore sets out various measures for implementation, monitoring, evaluation and reporting.

First, after the entry into force of the Directive, minimum standards for the reporting and collection of statistical data on environmental crimes will need to be established through an implementing act. No later than one year after the Directive’s entry into force, Member States will have to develop a national strategy to combat environmental crime and set up an action plan to transpose the Directive. This will enable the Commission to assess both the revised Directive’s transposition by Member States, and their commitment to fighting environmental crime more efficiently.

The implementation plan and evaluation and reporting arrangements do not stop after the Directive’s entry into force. Member States will have 18 months after the entry into force of the Directive to transpose it into national legislation. Two years after the end of this transposition period, the Commission will have to produce a report on how Member States transposed the Directive. Five years after the end of the transposition period, the Commission must produce a study on the Directive’s effectiveness to evaluate its added value. In addition to these monitoring procedures, every two years Member States must produce a report containing information relating to the Directive, such as their national strategy or their coordination and cooperation measures. On the basis on the data transmitted by Member States, the Commission will also produce statistical reports on environmental crime.

• Detailed explanation of the specific provisions of the proposal

10.

Article 1: Subject matter


This provision sets out the purpose of the Directive, and in particular its aim of supporting the protection of the environment by laying down criminal offences and sanctions.

11.

Article 2: Definitions


This provision contains definitions of terms used in the Directive, including a refined definition of ‘unlawfulness’ for the purpose of defining environmental criminal offences.

12.

Article 3: Offences


This provision describes the criminal offences covered by this Directive. Some of the offences are from the current Directive, some are amended and clarified versions of existing ones, and some are new offences. Furthermore, terms used in the definition of offences are clarified in that they specify elements that need to be taken into account when investigating, prosecuting and adjudicating criminal offences: in particular, ‘substantial damage’, ‘likely’ to cause damage and ‘negligible quantity’.

13.

Article 4: Inciting, aiding and abetting and attempt


Article 4 criminalises inciting, and aiding and abetting the commission of criminal offences referred to in Article 3(1). Also, attempt to commit certain criminal offences, listed in Article 4, are criminalised.

14.

Article 5: Penalties for natural persons


This article provides minimum standards to ensure that the offences referred to in Articles 3 and 4 are punishable by effective, proportionate and dissuasive criminal penalties. In addition, the proposal requires that Member States introduce specific sanction levels and types for environmental criminal offences. The categorisation proposed reflects the seriousness of the offences. For instance, paragraph 2 states that offences referred to in Article 3 should be punishable by a maximum term of imprisonment of at least ten years if they cause or are likely to cause death or serious injury to any person.

Paragraph 5 aims at Member States taking measures to ensure that the offences referred to in Articles 3 and 4 can be subject to additional sanctions and measures to allow for a tailored response to different types of criminal behaviour.

15.

Article 6: Liability of legal persons


This article contains obligations to ensure the liability of legal persons for offences referred to in Articles 3 and 4 where such offences have been committed for their benefit. This article also provides that Member States should make sure that legal persons can be held accountable for a lack of supervision and control that has made possible the commission of an offence referred to in Article 3 and 4 for the benefit of the legal person. Furthermore, the liability of the legal person should not exclude criminal proceedings against natural persons.

16.

Article 7: Sanctions for legal persons


This article sets out sanctions applicable to legal persons involved in the criminal offences covered by this proposal.

17.

Article 8: Aggravating circumstances


This article sets out the aggravating circumstances to be taken into account when sanctions are applied to an offence referred to in Articles 3 and 4.

18.

Article 9: Mitigating circumstances


This article sets out mitigating circumstances to be considered when sanctions are applied to an offence referred to in Articles 3 and 4.

19.

Article 10: Freezing and confiscation


This provision makes sure that Member States give the opportunity to competent authorities to freeze and confiscate the proceeds derived from offences covered by this proposal.

20.

Article 11: Limitation periods for criminal offences


This article lays down provisions on limitation periods in order to allow the competent authorities to investigate, prosecute and adjudicate the criminal offences covered by this proposal during a certain time period.

21.

Article 12: Jurisdiction


This article lays down provisions on jurisdiction to make sure that Member States establish jurisdiction for offences covered by the proposal and that they inform the Commission if they decide to extend this jurisdiction in specific cases where the offence is committed outside their territory.

22.

Article 13: Protection of persons who report environmental offences or assist the investigation


This provision concerns the protection of persons such as whistleblowers, environmental defenders and others reporting information or providing evidence to an investigation relating to environmental criminal offences.

23.

Article 14: Rights for the public concerned to participate in proceedings


This provision concerns procedural rights to participate in criminal proceedings, which should be granted to the public concerned as set out in Article 2.

24.

Article 15: Prevention


This provision requires Member States to take preventive actions to reduce environmental offences.

25.

Article 16: Resources


This provision aims at ensuring that national authorities which detect, investigate, prosecute or adjudicate environmental offences have a sufficient number of qualified staff and sufficient financial, technical and technological resources necessary to perform their roles effectively.

26.

Article 17: Training


This provision aims at enhancing training activities along the enforcement chain to ensure that all parties involved have the necessary specialised skills and abilities to perform their roles effectively.

27.

Article 18: Investigative tools


This provision lays down that special investigative tools must be made available for the investigation of the offences referred to in Articles 3 and 4.

28.

Article 19: Coordination and cooperation between competent authorities within Member States


This provision requires Member States to ensure coordination and cooperation at strategic and operational level among all their competent authorities involved in the prevention of and fight against environmental crime.

29.

Article 20: National Strategy on combating environmental crime


This provision aims at ensuring a strategic approach to combating environmental crime and includes aspects to be addressed by a national strategy which will need to be established in each Member State.

30.

Article 21: Data collection and statistics


This provision addresses the need to systematically collect information on efforts to combat environmental crime and to provide statistical data on environmental crime. It requires Member States to collect, publish and send relevant statistical data to the Commission. It also establishes an obligation for the Commission to regularly publish a report based on the statistical data provided by the Member States. This provision also aims to help address the current limited availability of environmental crime data which would assist in evaluating the effectiveness of national systems in fighting environmental criminal offences.

31.

Article 22: Implementing powers


This provision complements Article 25 and aims at strengthening the obligation of Member States to send statistical data to the Commission, by requiring the Commission to adopt an implementing act defining minimum common standards for the reporting of statistical data.

32.

Article 23: Committee Procedure


This provision addresses the need for the Commission to be assisted by a Committee in order to adopt the draft implementing act.

33.

Articles 24, 25, 26, 27, 28, 29


These articles contain further provisions on transposition by Member States, reporting by Member States, evaluation and reporting by the Commission, entry into force and application of Directive 2005/35/EC and replacement of Directive 2008/99/EC by this Directive.