Protecting the environment through criminal law: It is time for new provisions
According to estimates by Interpol and the United Nations Environment Programme, environmental crime is the fourth-largest area of criminality in the world. Offences against the environment are also a major source of income for organised crime. Countering these phenomena requires developing a common approach at the European level.
Current solution: Directive 2008/99/EC
In EU law, the concept of a common approach to environmental crime is not new. The Environmental Crime Directive or ECD (Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law), now in force, introduces new types of criminal acts and regulates the liability of legal entities. The current ECD also obliges the member states to adopt the necessary measures to ensure that new types of crimes are subject to effective, proportionate and deterrent criminal sanctions.
The Polish parliament implemented the directive in the Act of 25 March 2011 Amending the Criminal Code and Certain Other Acts. This expanded the liability for violations of provisions protecting the environment to include criminal sanctions in addition to the existing administrative sanctions. It seems that the main aim of the new criminal provisions was to deter potential violators. Previously, the catalogue of administrative sanctions was mainly based on fines. The directive added a requirement for prison terms for these offences.
However, as a study published in 2020 on the functioning of Directive 2008/99/EC demonstrated, its provisions have only limited practical application. As the European Commission points out, the number of environmental crime cases in which pretrial proceedings were conducted and convictions were obtained has remained very low. Usually, the sanctions imposed have been too low to act as a deterrent, and cross-border cooperation has proved ineffective and insufficient.
New provisions
The review of the existing directive showed that the ECD needs to be reformed. The Commission’s proposal to do this was published on 15 December 2021, in the form of a draft directive on environmental protection through criminal law to replace Directive 2008/99/EC. The explanatory memorandum pointed out the problems identified under the existing regime. It stressed that the problems with enforcement involve both law enforcement authorities (police and prosecutors) and the courts. The objective of the reform includes:
- Clarifying and updating the scope of the Environmental Crime Directive
- Clarifying legal terms used to define environmental crimes
- Ensuring sufficiently high and dissuasive levels of sanctions
- Strengthening international cooperation
- Improving the collection and dissemination of information and statistics
- Improving the functioning of the law enforcement system (training, coordination, cooperation, resources, strategic approach).
During the rest of the legislative process, the Council of the European Union and the European Parliament worked on the project. This led to a preliminary agreement on the draft directive announced on 16 November 2023. The final text of the new provisions in Polish has not been published yet, but the most important changes have already been outlined in press reports, available on the websites of the European Commission, the Council and the European Parliament. An English-language version of the proposed directive has also been published.
First, the number of crimes subject to EU law will be increased from nine to eighteen. Among the new types of prohibited acts are illegal timber trafficking, illegal recycling of polluting ship parts, and serious violations of provisions on chemicals. These are activities that have a particularly harmful impact on the environment.
Clauses have also been drafted on aggravated offences. A criminal act covered by the new directive will be considered an aggravated offence if it is committed intentionally and causes destruction or irreversible, widespread, serious damage, or long-term, widespread, serious damage to an ecosystem of significant size or significant environmental value or to a natural habitat in a protected area, or to air, soil or water quality.
The new provisions will also address sentences for crimes. In the case of natural persons, the proposal calls for the member states to impose a maximum sentence for:
- An intentional offence resulting in the death of a person—imprisonment for at least 10 years
- An aggravated offence with catastrophic consequences—imprisonment for at least 10 years
- An offence resulting from at least gross negligence resulting in the death of a person— imprisonment for at least 5 years
- Other intentional offences—imprisonment for at least 5 years or at least 3 years (depending on the offence).
Under the proposal, legal persons are to be sanctioned in relation to their total worldwide turnover. For the most serious offences, the maximum fine imposed on a legal person will be at least 5% of its total annual worldwide turnover (alternatively, EUR 40 million). For other offences, the maximum fine will be at least 3% of global turnover, or EUR 24 million. Under the proposal, legal persons can be ordered to restore the environment to its previous state or to pay damages. Also, the catalogue of criminal sanctions is to include loss of access to public funding and withdrawal of permits and authorisations.
The revised directive would also apply to the activities of state bodies involved in prosecuting environmental crimes. The proposal would require the member states to provide effective training for police, prosecutors and judges. The next step will be to ensure that these entities have adequate resources (including money) to effectively carry out the tasks assigned to them. Importantly, the directive also foresees the need to provide support to persons reporting environmental violations.
The proposal also mentions campaigns to raise public awareness of environmental crimes. Member states could consider establishing a special fund to support preventive measures and proactively counter the effects of environmental crimes. Member states would also be obliged to cooperate in cross-border matters and prepare national strategies to combat environmental crime.
The functioning of the new provisions is to be supervised by the European Commission, which will supplement the list of crimes against the environment, if necessary based on statistical data provided by member states.
Conclusion
It is too early to draw definitive conclusions regarding the proposed new provisions. The final Polish version of the proposal has not been published. The proposal has to be approved by the European Parliament and the Council, and then implemented by the Polish parliament, within 24 months of entry into force of the new directive. Only from that moment will the new provisions apply in Poland. Therefore, the prospect of their entry into force is several years away.
In principle, the indicated direction of change seems right. There is no doubt that harmonisation of the definition of offences, as well as sanctions for offenders, should have a positive and dissuasive effect.
But tougher sanctions are only one aspect of effective environmental protection through criminal law. Effective detection, prosecution and trial of environmental offenders will be crucial. This cannot be achieved solely through criminal regulations in the narrow sense. It also takes time, people and money. In Poland, there are well-founded fears that this kind of support will not be provided to police, prosecutors or courts.
Karol Maćkowiak, Environment practice, Wardyński & Partners
