Justice, consumers and gender equality

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

Overall state of play:

Fitness check/evaluation – Finalised on 28 October 2020; SWD (2020) 259
Commission Proposal – Adopted; 15 December 2021; COM(2021) 851 final.
Legal Act - Pending in legislative procedure.

State of play, main conclusions, outlook

The proposal is part of a wider package of initiatives under the European Green Deal. It aims to achieve better protection of the environment through more effective detection, investigation, prosecution and sanctioning of environmental crime.

The proposal defines new categories of environmental criminal offenses, including illegal timber trade, illegal ship recycling, illegal abstraction of water, serious breaches of EU chemicals legislation and illegal discharge of polluting substances from ships. In addition, it clarifies existing undefined terms of environmental crime in the current directive, such as the term of “substantial damage” and ‘risk’ of substantial damage.

Further, the proposal harmonises types and levels of sanctions for environmental crimes to ensure that environmental crimes are punishable by effective, proportionate and dissuasive crimminal penalties.

To improve the effectiveness of investigations and thus implementation on the ground, the proposal contains a number of provisions to strenghten the enforcment chain, for example through obliging Member States to provide for the adequate resources, training, investigative tools and national strategies to combat environmental crime.

Estimated savings and benefits

• The evaluation finalised in 2020 found areas for improvement from a simplification perspective, such as clarifying undefined legal terms or the relationship between criminal and administrative sanctions.

• The revision of the directive – being a criminal law instrument – will not produce any additional costs for citizens, businesses and SMEs, as confirmed during the stakeholder consultations.

• As the revision of the Directive aims to foster a more effective enforcement chain to better protect the environment through criminal law it is thus intended and expected that in the future more environmental crime investigations will be launched, investigated and convicted, entailing the need to employ new staff (police and prosecutors) to the environmental crime law enforcement field. There might also be a moderate increase in the administrative burden and -costs due to the obligation to report statistical data and to provide regular training along the enforcement chain.

State of Play

Finalised on 28 October 2020. SWD (2020) 259

Scope:

Evaluation of Directive 2008/99/EC.

Evaluation findings:

The findings of the evaluation are as follows:

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.

Estimated savings and benefits

It was found that the current Directive had no mesurable effect. Consequently, there was no considerable increase in costs attributable to the implementation of the Directive across the EU or in particular Member States. No considerable costs generated from implementing the directive could be identified.

State of Play

Adopted; 15 December 2021; COM (2021) 851.

Which objective(s) does the Commission pursue?

The Commission proposal aims to step up the protection of the environment through criminal law by fostering effective investigations.

The following specific objectives were identified to contribute to that end:

1) improve the effectiveness of investigations and prosecutions by updating the scope of the Directive and by including a feasible and simple mechanism to keep the Directive up to date;

2) improve the effectiveness of investigations and prosecutions by clarifying or eliminating vague terms used in the definitions of environmental crime in Article 3;

3) ensure effective, dissuasive and proportionate sanction types and levels for environmental crime;

4) improve the effectiveness of cross-border cooperation on environmental crime;

5) improve informed decision-making on environmental crime through improved collection and sharing of statistical data; and

6) improve the effectiveness of national enforcement chains (investigations, prosecutions, sanctioning).

State of Play:

Pending in ordinary legislative procedure.