I. Introduction
Owing to its growing prevalence and detrimental effects, the prevention and combat of environmental crime is crucial. Ranked as the fourth-largest criminal activity in value globally [1], environmental crime boasts estimated annual revenues ranging from US$91 billion to US$258 billion in 2016 [1]. Alone, the illicit waste market within the EU generated an average annual revenue of €3.7 billion to €15.3 billion between 2014 and 2016 [2]. Complicating matters further, the detection of environmental crime proves challenging due to its hidden nature, while offenders are incentivized by low detection rates and weak sanctions [1].
Far beyond harming the environment, environmental crimes’ repercussions extend to the EU and its Member States’ social, economic, and political structures [1]. Legitimate businesses suffer financial losses, leading to decreased tax revenue and detrimental effects on society and services for EU citizens [1]. Recognizing the gravity of the issue, the Council has prioritized addressing environmental crime within the EU policy cycle for organized and serious international crime, reaffirming this priority in subsequent cycles [1].
However, apart from the ineffectiveness of cross-border cooperation, the initial Directive 2008/99/EC on Environmental Crime [18] encountered other significant limitations and challenges. Upon thorough review, it became apparent that the existing criminal sanctions outlined in the directive lacked sufficient deterrence for environmental crimes. The need for more robust and proportionate penalties was underscored by the low rates of prosecution. Moreover, the detection and prosecution of offenders, given the hidden nature and complexities involved in these offenses, posed considerable challenges [20]. These limitations stressed the urgent necessity for reform and subsequent revisions to the ECD, aimed at addressing these shortcomings and bolstering the governance of environmental crimes across the European Union.
The primary objective of the 2021 revision of this directive is to overcome its existing limitations and enhance the investigation and prosecution of environmental offenses across EU member states [1]. Achieving this goal involves strengthening national enforcement and sanctioning systems, fostering enhanced cooperation between enforcement authorities within member states [3], and emphasizing criminal law as a last resort when other measures prove inadequate [3]. Additionally, the proposed revision incorporates measures to improve statistical data collection, ensuring the availability of reliable information on environmental crimes [3]. The directive strives to rectify disparities in criminal legislation and appropriately respond to environmental threats [3], mandating member states to ensure that legal entities can be held accountable for offenses committed for their benefit by imposing effective, proportionate, and dissuasive sanctions [4].
II. Legal Analysis
The revised directive exhibits a high level of compatibility with EU law and international legal frameworks, demonstrating consistency with existing policy provisions, alignment with EU strategies, adherence to legal bases, and respect for principles of subsidiarity and proportionality [3].
The proposed objectives of the revision align harmoniously with various policy and legislative provisions already in place, including the Council Framework Decision on the European Arrest Warrant, the Convention on Mutual Assistance in Criminal Matters, and the Directive regarding the European Investigation Order [3]. This alignment ensures effective collaboration among Member States and reinforces the EU’s commitment to combatting environmental crimes.
The revised directive also integrates seamlessly with the EU’s environmental protection strategy, including the Green Deal communication and biodiversity strategy. It acknowledges that criminal law measures serve as a last resort, complementing alternative methods to address environmental offences [3]. By doing so, the directive contributes to a comprehensive and harmonized strategy that goes beyond the effectiveness of the new approach and considers broader environmental indicators.
Grounded in Article 83(2) of the Treaty on the Functioning of the European Union (TFEU), the revised directive adheres to a sound legal basis and ensures that its actions remain within the EU’s authority and established legislative procedures [5]. The adoption of the directive through the ordinary legislative procedure [3] guarantees democratic decision-making and robust scrutiny.
Recognizing the cross-border nature of environmental crimes, the proposed revision emphasizes the necessity for EU-level action to address these offences comprehensively. By embracing the principle of subsidiarity, the directive upholds the EU’s role in facilitating cross-border cooperation and strengthening the fight against environmental crimes [1].
The principle of proportionality guides the scope of the revised directive, ensuring that the measures introduced are necessary and proportionate to tackle emerging threats in the realm of environmental offences [3]. By maintaining a balanced approach, the directive empowers authorities to effectively combat serious breaches of environmental law while avoiding unnecessary intrusions.
The recent changes to the directive sought to modernize its scope and provide clearer definitions for environmental crimes.This was achieved by integrating sector-specific legislation and eliminating vague terms, creating what seemed like a more straightforward and comprehensive framework [3]. However, these changes carry the potential for legal disputes over their interpretation and application, even though some case law offers interpretations [22].
Beneath the surface of these well-intentioned revisions lies a nuanced reality. Examples from countries like Poland, the Czech Republic, and Germany illustrate the complexity of implementing these changes. Each nation, while aligning with the directive’s core principles, has tailored its approach differently. Poland, for instance, grapples with defining key aspects like ‘significant reduction in environmental components.’ In the Czech Republic, strict criteria such as area size and restoration cost have been added. Germany, while embracing EU standards, hasn’t fully clarified conditions for criminal responsibility in environmental offenses [21]. This uncertainty arises because environmental issues, by nature, can have diverse causes and manifestations, and while different cases may require different approaches to defining criminal liability, literal transposition often falls short of providing the necessary clarity [22].
This leads to a dual challenge: first, stakeholders and legal experts must decipher these varying definitions, navigating through a patchwork of national implementations. Second, debates and disputes are likely to emerge as different interpretations clash. What was meant to bring clarity might, in practice, foster contention.
The proposal aims to establish a more consistent and uniform system of sanctions across Member States, a commendable endeavour [3]. However, as it seeks to impose penalties that are proportional to the gravity of the offenses, it raises a fundamental question: how can we ensure that these penalties remain effective without unduly burdening the financial stability of those who commit these crimes?
An essential aspect of this challenge lies in the proposal’s provision linking fines to the financial situation of companies, particularly small and medium-sized enterprises (SMEs) [9]. The intent here is to protect the financial well-being of SMEs, recognizing their vulnerability to high fines. Nevertheless, this approach introduces a level of subjectivity in assessing a company’s financial health and capacity to pay fines, a subjectivity that could spark debates and legal challenges [9].
The proposal seeks to harmonize the types and levels of sanctions, ensuring a more even-handed application of the law across Member States [3]. However, it is crucial to ensure that these sanctions remain adaptable to the diversity of situations while achieving their intended deterrence. The introduction of aggravating and mitigating circumstances is a step in the right direction, allowing for a nuanced assessment of each case [3]. Yet, even here, the challenge lies in interpreting and applying these circumstances consistently.
Moreover, the freezing and confiscation of proceeds and assets related to environmental crimes, while vital for enforcement, must also strike a balance between punishment and the preservation of the offender’s financial stability [3].
In essence, while the proposal introduces important changes to environmental crime enforcement, it brings to the forefront the intricate challenge of aligning sanctions with financial viability. This challenge requires not only clear guidelines and objective criteria but also a nuanced understanding of the unique circumstances of each case. Striking this balance is pivotal to ensure that the penalties imposed are not only dissuasive but also just, upholding the principles of fairness and proportionality in environmental law enforcement.
Case Studies
Case studies of Portugal, the Netherlands, Sweden, and the United Kingdom provide valuable insights into the implementation of the current Directive, highlighting shortcomings and challenges that call for a revision to improve its effectiveness.
In Portugal and the Netherlands, discrepancies in the transposition and incorporation of offences into national legislation were observed. While Portugal directly transposed the offences into its Criminal Code, the Netherlands scattered them across different Acts, resulting in complexity and inconsistency [10]. In this case, the revised directive aims to define already existing EU environmental offenses more precisely, concretizing or deleting vague terms and definitions, ensuring consistent and coherent implementation across member states. The revised directive refines the definition of offenses and introduces new offenses, providing clearer terms and factors for investigation and prosecution. This clarification helps to facilitate consistent application and understanding of the directive’s provisions. Additionally, the proposed revision establishes effective, dissuasive, and proportionate sanctions for both natural and legal persons, with minimum and maximum levels of imprisonment and fines. By specifying these sanctions, the revised directive provides clearer guidelines and benchmarks for member states to follow, enhancing the alignment of sanctions with the severity of offenses. Moreover, the introduction of ancillary sanctions and measures, such as obligations to reinstate the environment and exclusion from public funding, further strengthens the enforcement framework. The provisions on limitation periods and jurisdiction contribute to a more consistent and effective enforcement of environmental crimes across member states. The revised directive also emphasizes the importance of sufficient resources, cooperation, coordination, and training in the enforcement chain. The requirements for data collection, publication, and reporting, as well as the adoption of a national strategy on combating environmental crime, promote consistent implementation and effective enforcement practices [19].
Additionally, both case studies demonstrate compliance with the requirements of liability for legal persons and accomplices. However, the effectiveness and dissuasiveness of the sanctions imposed present significant challenges. The lack of clarity within the Directive regarding what constitutes effective, proportional, and dissuasive sanctions hampers implementation [10]. The revised directive establishes minimum and maximum levels of sanctions for both natural and legal persons based on the severity of the offenses committed. For natural persons, there are minimum maximum levels of imprisonment, which vary depending on the offense, including cases where death or serious injury is caused or likely to be caused. For legal persons, the minimum and maximum fines are determined based on the annual worldwide turnover of the company. Additionally, the directive includes provisions on aggravating and mitigating circumstances, which can influence the level of sanctions imposed. These circumstances consider factors such as substantial damage to the ecosystem, involvement of a criminal organization, use of false or forged documents, financial benefits, or avoidance of expenses, and more. These factors ensure that the severity of the offense is duly considered when determining sanctions, aiming to align them with the gravity of the environmental crimes committed [19].
Enforcement capacity and challenges were apparent in both Portugal and the Netherlands. Despite the presence of specialized police units, issues related to proximity policing, inadequate staffing levels, and limited resources were observed. Moreover, the discretionary nature of prosecution led to low prioritization of environmental crimes and insufficient efforts to gather evidence [8]. A revised Directive could emphasize robust enforcement mechanisms, allocate necessary resources, and establish mandatory prosecution obligations to effectively address environmental crimes [3]. Regarding enforcement mechanisms, the proposed revision aims to strengthen the enforcement chain, ensuring sufficient human and financial resources, efficient cooperation and coordination, and the availability of effective investigative tools. This emphasis on enforcement mechanisms suggests a commitment to enhancing the enforcement capacity to effectively address environmental crimes. In terms of resource allocation, the revised directive recognizes the need for sufficient human and financial resources to combat environmental crimes. This acknowledgment indicates an understanding of the importance of allocating adequate resources to enable effective enforcement and prosecution. Furthermore, the establishment of mandatory prosecution obligations in the revised directive implies a commitment to ensuring that environmental crimes are consistently pursued and prosecuted. By making prosecution obligations mandatory, the directive seeks to address the discretionary nature of prosecution and promote more proactive efforts to gather evidence and prioritize environmental crime cases [19].
In Sweden, the evolution of laws through the addition of EU directives and other legislative changes was observed. The expansion of chemical management laws, influenced by Regulation (EU) 2019/1021 on persistent organic pollutants, resulted in stricter regulations on chemical production and sales. However, further examples and revisions indicate that the original Directive did not fully align with the EU’s environmental goals [11].
The proposed revision of the Directive in 2021 is also being discussed in the Swedish Riksdag. It aims to broaden the scope of the laws, introduce additional categories, and reassess penalties to better achieve the set goals. However, Sweden has raised concerns about certain aspects of the proposal, such as the idea of barring voting rights for those convicted of environmental crimes, which they view as potentially interfering with their democratic system and sovereignty [11].
In the United Kingdom, a study conducted in 2018 highlighted the limitations of minimal laws within the 2008 Directive, hindering member states’ ability to effectively combat environmental crimes. As the UK initially welcomed increased environmental regulations, its perspective evolved as Brexit approached. They considered drawing inspiration from the EU’s Directive while shaping their approach post-Brexit [11].
The case studies of Portugal, the Netherlands, Sweden, and the United Kingdom highlight the need for the revision of the current Directive to address shortcomings and improve effectiveness. The revised directive aims to provide clearer terms and definitions, establish effective and proportionate sanctions, strengthen the enforcement chain, allocate necessary resources, and establish mandatory prosecution obligations. It also takes into account aggravating and mitigating circumstances and introduces ancillary sanctions. The case studies underscore the importance of aligning the directive with environmental goals, addressing enforcement capacity challenges, and considering post-Brexit approaches. Overall, the revision seeks to enhance the governance of environmental crimes, promote consistency, and contribute to a more sustainable Europe.
III. Recommendations
In an effort to enhance the effectiveness of the revised Directive, improve enforcement measures, foster international cooperation, and establish a comprehensive framework for combating environmental crimes, the following recommendations have been outlined. It is imperative for the EU to intervene and harmonize criminal sanctions for environmental crimes, considering the frequent transnational nature of such offenses, the involvement of organized crime, and the role of corporations [8].
First and foremost, to prevent environmental crime from becoming obsolete in combating emerging offenses, it is recommended that the Directive be revised to recognize it as a self-standing concept [12]. Another important recommendation involves amending Article 3(a), (b), (c), and (d). The phrase “causes or is likely to cause” should be replaced with “causes or may cause” to prevent individuals from evading criminal sanctions [12].
Including serious fisheries and seafood market infringements within the scope of the Directive is highly recommended. This should align with the revised European legislation in the Common Fisheries Policy. Additionally, Member States should be allowed to apply administrative sanctions where appropriate, as they tend to be faster and more effective in halting offences and limiting environmental damage [12].
Establishing pre-defined, precise, and listed criteria is crucial to ensure that the level of sanctions is proportionate to the nature and seriousness of the infringement [12]. Harmonizing the level of sanctions while considering the specific nature of each infringement will equalize the odds across EU waters.
Differentiating non-compliance behaviours is essential. Tougher penalties should be applied for persistent and intentional non-compliance, while situations of inadvertent or accidental non-compliance should be treated differently. Proportionality should be ensured [4] by aligning sanctions with factors such as the nature of the offense, degree of culpability, harm caused, and previous warnings [13].
Balancing environmental protection principles with the legal framework established by the Aarhus Convention and EU Regulation 1367/2006 is crucial [14], since complying with international law obligations is of utmost importance in maintaining the integrity of the revised Directive.
To ensure the effectiveness of the comprehensive review of the Directive, it is important to consider various factors. This includes considering the ongoing review of related regulations, such as the assessment of regulations concerning timber and deforestation, as well as the recognition of ecocide as an international crime [12]. By incorporating these elements into the review process, the Directive can be updated to reflect the latest developments and align with international standards. Additionally, updating the annexes of the Directive to include all relevant existing environmental legislation [12] will broaden its scope and enhance its effectiveness in addressing a wide range of environmental offences.
Challenges and barriers may arise in the implementation of these recommendations as the perception of national sovereignty and the resistance to EU intervention based on the principle of national sovereignty may hinder the harmonization of criminal sanctions [17]. The limitations imposed by harmonized criminal sanctions may also be viewed as a violation of national prerogatives in determining criminal penalties [17].
The utility of harmonized criminal sanctions may be questioned in countries with a well-established environmental culture and effective enforcement, where high criminal penalties for environmental crimes may be seen as redundant [17]. Moreover, Article 83 of the Treaty on the Functioning of the European Union presents potential obstacles in enacting further approximation instruments for criminal penalties [17].
To address these challenges, constructive dialogue and a balanced approach are necessary. Engaging in discussions and addressing concerns regarding national sovereignty, freedom in assessing criminal behaviour, utility, and compliance with EU treaties will be crucial in ensuring the effective implementation of the recommended changes. Balancing the need for harmonized criminal sanctions with respect for national autonomy will help achieve the common goal of combatting environmental crimes at the EU level.
IV. Conclusion
Representing a substantial stride in tackling environmental crimes within the European Union, the revision of Directive 2008/99/EC concludes harmonization of criminal sanctions. This harmonization, specifically beneficial in countries constrained by inadequate provisions hindering effective enforcement, aims to guarantee adequate penalties for severe environmental crimes while reinforcing the fight against transnational offenses in alignment with the Council Framework Decision on organized crime [15].
Negative ramifications of environmental crimes span across society, affecting water, air, soil, habitats, climate, and human health. Furthermore, their global socio-economic devastation underscores the imperative of a robust legal framework capable of prevention and retribution. Seizing this opportunity, the revised directive effectively confronts these crimes.
To ensure effectiveness, consistent enforcement of sanctions across Member States assumes paramount importance, necessitating the appropriate allocation of resources. The strengthening of the existing legal framework through measures such as training for judiciary actors, specialized bodies, and enhanced data collection mechanisms should be pursued [13].
Collectively safeguarding the environment and combating environmental crime signifies a shared responsibility. Leveraging the revised directive as a potent preventive and deterrent tool calls for engagement from practitioners, citizens, and society at large. Though quantifying the overall impact may prove challenging, qualitative benefits are anticipated to result from an enhanced legal framework and effective enforcement [3].
Foreseen as a source of prevention and deterrence, the revised directive is expected to curtail the profitability of environmental crime, yielding favourable social effects on human life, health, and well-being [3]. Moreover, it stands to have a positive economic impact by curtailing illicit gains and mitigating adverse consequences for fair businesses and good governance. By promoting fair competition, fostering sustainable development, and redirecting resources toward legitimate and environmentally responsible activities, this economic impact will materialize [3].
Effective enforcement of the directive contributes to the preservation of natural resources, securing their long-term economic viability across various industries and sectors. While Directive 2008/99/EC represented a notable stride, its revision rectifies shortcomings and bolsters the legal framework against environmental crimes. Implementation of the recommended changes can significantly contribute to environmental protection and the promotion of sustainable practices within the European Union.
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