The new European Commission’s Environmental Crime Directive (ECD).
On the 27th of February 2024 the European Parliament adopted a number of revolutionary environmental measures enshrined in the Environmental Crimes Directive that penalized environmental crimes much more stringently compared to the past. The Greens/EFA Group from the European Parliament called for the establishment of a serious criminal liability in the case of destruction or widespread and substantial damage which is long-lasting or irreversible to an ecosystem, a habitat or the quality of air, soil or water. More specifically, the MEP of the Greens/EFA Group stated that:
‘This new directive is a victory for the environment (...). The outdated 2008 directive needed to be revised as a matter of urgency. With this new text, the EU is adopting one of the world's most ambitious pieces of legislation to combat environmental crime. It will allow for a more effective and better protection of individuals who suffer as a result of such damage. The perpetrators of these crimes will therefore be prosecuted and punished more severely in the case of ‘qualified offences’, which encompass conduct comparable to ecocide. We also welcome the increase in the level of penalties and the introduction of significant additional sanctions (...).’
The global increase in environmental crime, ranging from 5% to 7% annually, is causing enduring harm to ecosystems, wildlife, human health, and the finances of both governments and businesses. As per estimates from UNEP and Interpol released in June 2016, the yearly financial impact of environmental crime is estimated to be between $91 billion and $258 billion. Despite this, the number of convictions for environmental crimes has not increased substantially.
The new directive clarifies to the Member States the definition of environmental offences and the punishment the offenders would suffer as a result. The new directive categorizes breaches of environmental obligations like illegal trade, handling of chemicals or mercury, and illegal ship recycling as criminal offences. The severity of punishment for offences related to illegal waste collection, transport, treatment, or the unauthorized sale of timber or timber products derived from illicitly harvested wood will not significantly vary between legal entities and individuals. Consequently, such actions could result in a imprisonment between 3 and 10 years in Member States. Additionally, companies engaging in such criminal offences would face fines equal to at least 5% of their global turnover or an amount equivalent to €24 or €40 million. In comparison to the 2008 directive, it raises the number of environmental crimes from 8 to 20 and establishes minimum requirements, allowing Member States to be more stringent.
Furthermore, the ECD elaborates under which category the commitment of serious environmental crimes would fall. That is within the term ‘aggravated offence’ that would lead to more severe sanctions. Furthermore, national legislators are to contemplate the inclusion of aggravating factors and supplementary sanctions and measures (in addition to monetary penalties) to enable a customized response to individual offences. Consequently, persons who cooperate with the enforcement authorities in identifying the offenders of such serious environmental crimes will benefit from the supporting measures in such criminal proceedings.
The identification of such crimes, the enforcement of criminal law, and the punishment of the offenders in environmental crimes would require the work of criminal law enforcement agencies, prosecutors, and courts. This would presuppose a strong criminal law response that would lead to effective criminal law enforcement. Special training, the sufficiency of resources, and the efficiency of criminal law tools will be developed for the criminal law professionals to gain the needed qualifications and skills when combating environmental crimes. Considering the global nature and the cross-border element of environmental issues the new directive requires cooperation and coordination between the Member States.
In regards to this, the Commissioner of Justice Didier Reynders shared her hopes regarding the new directive on the 16th of November 2023 saying that:
‘This political agreement between the European Parliament and the Council is a major step forward in combatting environmental crime, a growing concern. This shows that the EU takes decisive action against environmental damage: the new rules set EU-wide standards to ensure environmental protection while providing for effective and dissuasive sanctions for offenders.’ The Commissioner for Environment, Oceans and Fisheries, Virginijus Sinkevičius, added that ‘Environmental crime causes devastating damage to our environment, harms our health as well as our economy. For too long criminals have profited from weak sanctions and lack of enforcement. With this strengthened law the EU steps up its action. It will better ensure that the most severe breaches of environmental rules are considered as crimes, that enforcers are more effective on the ground, and that environmental defenders are more protected and acknowledged.’
Moreover, the European Crime Directive criminalises the so-called ‘ecocide’, according to those who want to make it the fifth international crime prosecuted by the International Criminal Court. The directive refers to ‘cases comparable to ecocide’ in its preamble, but does not use the word in the directive explicitly. Ecocide is defined as ‘unlawful or wanton acts committed knowing that those acts have a substantial likelihood of causing severe and either long-term or widespread damage to the environment.’ The term was developed in 2021 by twelve international solicitors and made public by Stop Ecocide International. Thus, the European Parliament suggested enshrining the term in European law last year.
In conclusion, the European Crime Directive showcases the new priorities of the Union revolving around the growing environmental problems. To what extent will the new European Crime Directive be implemented by the Member States and what effect it is going to exert on the ongoing environmental crisis remains to be seen.
