Considerations on COM(2021)851 - Protection of the environment through criminal law - Main contents
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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. |
|---|---|
| document | COM(2021)851  |
| date | April 11, 2024 |
| (2) | Pursuant to Article 191(2) TFEU, Union policy on the environment is to aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. That policy is to be based on the precautionary principle and on the principles that preventive action is to be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay. Considering that environmental crime also affects fundamental rights, the fight against environmental crime at Union level is crucial to ensuring that those rights are protected. |
| (3) | The rise in environmental criminal offences and their effects, which undermine the effectiveness of Union environmental law, is a matter of continuing concern in the Union. Such offences increasingly extend beyond the borders of the Member States in which they are committed. Such offences pose a threat to the environment and therefore necessitate an appropriate and effective response, which often requires effective cross-border cooperation. |
| (4) | The existing rules on penalties under Directive 2008/99/EC of the European Parliament and of the Council (3) and under Union environmental sectoral law have not been sufficient to achieve compliance with Union law concerning protection of the environment. Such compliance should be strengthened by the availability of effective, proportionate and dissuasive criminal penalties that correspond to the gravity of the offences and can convey more social disapproval than the use of administrative penalties. Complementarity of criminal and administrative law is crucial to prevent and deter unlawful conduct that damages the environment. |
| (5) | The list of environmental criminal offences in Directive 2008/99/EC should be revised and additional criminal offences based on the most serious breaches of Union environmental law should be added. Penalties should be strengthened in order to enhance their deterrent effect, and the effectiveness of the detection, investigation, prosecution and adjudication of environmental criminal offences should be improved. |
| (6) | Member States should criminalise certain unlawful conduct, provide for greater precision with regard to the definition of relevant criminal offences and harmonise types and levels of penalties. |
| (7) | Failure to comply with a legal duty to act can have the same negative effect on the environment and human health as active conduct. Therefore, the definition of criminal offences in this Directive should cover both acts and omissions, where applicable. |
| (8) | Member States should provide for criminal penalties in their national law in respect of serious infringements of Union law concerning protection of the environment. In the framework of the common fisheries policy, Union law provides for a comprehensive set of rules for control and enforcement under Council Regulations (EC) No 1224/2009 (4) and (EC) No 1005/2008 (5) in the event of serious infringements, including those that cause damage to the marine environment. Under that set of rules, Member States have the choice of using administrative or criminal penalties, or both. In line with the communications of the Commission of 11 December 2019 on ‘The European Green Deal’ and 20 May 2020 on ‘EU Biodiversity Strategy for 2030. Bringing nature back into our lives’, certain intentional unlawful conduct covered by Regulation (EC) No 1224/2009 and Regulation (EC) No 1005/2008 should be established as a criminal offence. |
| (9) | In order for conduct to constitute an environmental criminal offence under this Directive, it should be unlawful. In order for conduct to be unlawful, it should breach Union law which contributes to pursuit of one of the objectives of the Union’s policy on the environment as set out in Article 191(1) TFEU, irrespective of the legal basis of such Union law, which could include, for example, Article 91, 114, 168 or 192 TFEU, or should breach laws, regulations or administrative provisions of a Member State, or decisions taken by a competent authority of a Member State, giving effect to such Union law. This Directive should specify which unlawful conduct is capable of constituting a criminal offence and, where appropriate, set a quantitative or qualitative threshold necessary for such conduct to constitute a criminal offence. Such conduct should constitute a criminal offence when it is intentional and, in certain cases, also when carried out with at least serious negligence. In particular, unlawful conduct that causes the death of, or serious injury to, persons, substantial damage or a considerable risk of substantial damage to the environment or is considered otherwise to be particularly harmful to the environment should also constitute a criminal offence when carried out with at least serious negligence. Member States can adopt or maintain more stringent rules in the area of criminal law. |
| (10) | Conduct should be unlawful even where it is carried out under an authorisation issued by a competent authority of a Member State if such authorisation was obtained fraudulently or by corruption, extortion or coercion. Furthermore, holding such an authorisation should not preclude the holder from being held criminally liable, where the authorisation is in manifest breach of relevant substantive legal requirements. ‘In manifest breach of relevant substantive legal requirements’ should be interpreted as referring to an obvious and substantial breach of relevant substantive legal requirements, and is not intended to include breaches of procedural requirements or minor elements of the authorisation. This does not shift the duty to ensure that authorisations are lawful from competent authorities to operators. Moreover, where an authorisation is required, the fact that the authorisation is lawful does not preclude criminal proceedings against the holder of the authorisation where that holder does not comply with all obligations of the authorisation or with other relevant legal obligations not covered by the authorisation. |
| (11) | Moreover, it is necessary that operators take the necessary steps to comply with legislative, regulatory and administrative provisions concerning the protection of the environment applicable when they carry out the respective activity, including by complying with their obligations, as laid down in applicable Union and national law, in relation to procedures for the amendment or updating of existing authorisations. This should also cover obligations of the holder of the authorisation to update and renew such authorisation. |
| (12) | With regard to offences and penalties defined in this Directive, the term ‘legal persons’ should be understood as not including States or public bodies exercising State authority or public international organisations. As this Directive establishes minimum rules, Member States can adopt more stringent rules, including rules on criminal liability for public bodies. |
| (13) | Some criminal offences defined in this Directive include a qualitative threshold for the conduct to constitute a criminal offence, namely that such conduct causes the death of, or serious injury to, a person or substantial damage to the quality of air, water or soil, or to an ecosystem, animals or plants. In order to protect the environment to the fullest extent possible, that qualitative threshold should be understood in a broad sense including, where relevant, substantial damage to fauna and flora, habitats, to services provided by natural resources and by ecosystems as well as to ecosystem functions. The term ‘ecosystem’ should be understood as a dynamic complex of plant, animal, fungi and microorganism communities and their non-living environment, interacting as a functional unit, and should include habitat types, habitats of species and species populations. An ecosystem should also include ecosystem services, through which an ecosystem contributes directly or indirectly to human wellbeing, and ecosystem functions, which refer to natural processes in an ecosystem. Smaller units such as a beehive, an anthill or a stump can be a part of an ecosystem but should not be considered to be an ecosystem in its own right for the purposes of this Directive. |
| (14) | For the purposes of this Directive, the term ‘injury’ should be understood in a broad sense, that is as covering any form of physical harm to a person, including a change in body function or cell structure, a temporary, chronic or fatal disease, a malfunction of the body or other deterioration of physical health, but excluding mental health. |
| (15) | The introduction of different forms of energy, such as heat, sources of thermal energy, noise, including underwater noise, and other sources of acoustic energy, vibrations, electromagnetic fields, electricity or light, into the environment can cause substantial damage to the quality of air, water or soil or substantial damage to an ecosystem, animals or plants, or the death of, or serious injury to, persons. Various instruments of Union environmental law regulate the introduction of energy into the environment, for example in the areas of protection of water, the marine environment, noise control, waste management and industrial emissions. In light of those instruments, the unlawful introduction of energy into the environment should constitute a criminal offence under this Directive if it causes or is likely to cause substantial damage to the environment or human health. |
| (16) | Where criminal offences defined in this Directive relate to conduct such as making available or placing on the market, sale, offering for sale or trading, conduct carried out by means of information and communication technologies should be included. |
| (17) | This Directive introduces the criminal offence of the placing on the market, in breach of a prohibition or another requirement aimed at protecting the environment, of a product the use of which on a larger scale results in the discharge, emission or introduction of a quantity of materials or substances, energy or ionising radiation into air, soil or water, and causes or is likely to cause substantial damage to the environment or human health. In that context, a prohibition or another requirement aimed at protecting the environment should be one that is laid down in the area of Union law which has among its stated objectives, or has as an aim, the protection of the environment, including preserving, protecting and improving the quality of the environment, protecting human health, prudent and rational utilisation of natural resources or combatting climate change, or promoting measures at international level to deal with regional or worldwide environmental problems. Conversely, where such a prohibition or requirement is laid down in other areas of Union law which have other objectives, for example protection of workers’ health and safety, the conduct should not be covered under that criminal offence. For the purpose of this Directive, ‘use on a larger scale’ refers to the combined effect of the use of the product by several users, regardless of their number, provided that the conduct causes or is likely to cause damage to the environment or human health. |
| (18) | Unlawful collection, transport and treatment of waste and the lack of supervision of such operations and of the after-care of disposal sites, including action taken as a dealer or a broker, can cause devastating effects on the environment and human health. Such effects can be caused by unlawful conduct which concerns harmful waste from pharmaceutical products, narcotic drugs, including components to produce narcotic drugs, chemicals, waste containing acids or bases or waste containing toxins, heavy metals, oil, grease, electrical and electronic waste, end-of-life vehicles or plastic waste. Member States should, therefore, ensure that unlawful waste management constitutes a criminal offence where such conduct concerns hazardous waste in a non-negligible quantity, or it concerns other waste and such other waste causes or is likely to cause substantial damage to the environment or human health. |
| (19) | For the purpose of the criminal offence introduced by this Directive in relation to recycling of ships falling within the scope of Regulation (EU) No 1257/2013 of the European Parliament and of the Council (6) it is to be noted that, currently under Union law, the obligations set out in that Regulation only apply to ship owners, as defined in that Regulation. |
| (20) | With regard to the assessment of whether the quantity of a relevant product or relevant commodity associated with deforestation or forest degradation as referred to in Regulation (EU) 2023/1115 of the European Parliament and of the Council (7), is negligible, Member States could take into account, for example, the quantity of the relevant commodity or product expressed in net mass, or, where applicable, in volume or as a number of items, or whether the scale of the activity in question is negligible in terms of quantity. For such assessment, Member States could also take into account, where relevant, other elements listed in this Directive for certain criminal offences, including the conservation status of the species concerned or the cost of restoration of the environment. |
| (21) | Criminal offences relating to intentional conduct listed in this Directive can lead to catastrophic results, such as widespread pollution, industrial accidents with severe effects on the environment or large-scale forest fires. Where such offences cause the destruction of, or widespread and substantial damage which is either irreversible or long-lasting to, an ecosystem of considerable size or environmental value or a habitat within a protected site, or cause widespread and substantial damage which is either irreversible or long-lasting to the quality of air, soil, or water, such offences, leading to such catastrophic results, should constitute qualified criminal offences and, consequently, be punished with more severe penalties than those applicable in the event of other criminal offences defined in this Directive. Those qualified criminal offences can encompass conduct comparable to ‘ecocide’, which is already covered by the law of certain Member States and which is being discussed in international fora. |
| (22) | Where, under this Directive, conduct constitutes a criminal offence only if it concerns a non-negligible quantity, corresponding to the exceeding of a regulatory threshold, value or other mandatory parameter, in assessing whether that threshold, value or other parameter has been exceeded, the hazardousness and toxicity, inter alia, of the material or substance should be taken into account because the more hazardous or toxic the material or substance is, the sooner that threshold, value or other parameter is reached and, in the case of particularly hazardous and toxic substances or materials, even a very small quantity can cause substantial damage to the environment or human health. |
| (23) | The acceleration of climate change, biodiversity loss and environmental degradation, paired with tangible examples of their devastating effects, have led to the recognition of the green transition as the defining objective of our time and a matter of intergenerational equity. Where this Directive, in order to define criminal offences, uses terms defined in Union environmental law to describe unlawful conduct, such terms should be understood within the meaning of the corresponding definitions laid down in the relevant Union legal acts covered by this Directive. This Directive should also cover any Union acts that amend provisions or requirements relevant to describing unlawful conduct which falls within the scope of criminal offences defined in this Directive. When drafting such amending Union acts, it would be appropriate to include a reference to this Directive. However, where new types of unlawful conduct, not yet covered by the scope of the offences defined in this Directive, are introduced in Union environmental law, this Directive should be amended to include such new types of unlawful conduct within its scope. |
| (24) | Without prejudice to that dynamic nature of this Directive, the Commission should regularly, and where necessary, consider if there is a need to amend the description in this Directive of conduct capable of constituting a criminal offence under this Directive. The Commission should also consider if there is a need to define other criminal offences when new types of unlawful conduct not yet covered by the scope of this Directive are introduced in Union environmental law. |
| (25) | This Directive should provide a non-exhaustive list of elements which should be taken into account, where relevant, by the competent authorities, in assessing whether the qualitative and quantitative thresholds used to define environmental criminal offences have been reached. Providing such a list should facilitate the coherent application of this Directive and a more effective fight against environmental crime as well as provide for legal certainty. However, such assessment elements or their application should not make the detection, investigation, prosecution or adjudication of criminal offences excessively difficult. |
| (26) | Where this Directive provides that an unlawful conduct only constitutes a criminal offence where it is carried out intentionally and causes the death of a person, the notion of ‘intention’ should be interpreted in accordance with national law, taking into account relevant case law of the Court of Justice of the European Union (the ‘Court of Justice’).Therefore, for the purposes of this Directive, ‘intention’ could be understood as the intention to cause the death of a person, or it could also cover a situation in which the offender, despite not wanting to cause the death of a person, nevertheless accepts the likelihood of causing it, and acts, or refrains from acting, voluntarily and in violation of a particular obligation, thereby causing the death of a person. The same understanding as regards the notion of ‘intention’ should apply where unlawful conduct described in this Directive, which is intentional, causes serious injury to any person, or the destruction of, or widespread and substantial damage which is either irreversible or long-lasting to, an ecosystem of considerable size or environmental value or a habitat within a protected site, or causes widespread and substantial damage which is either irreversible or long-lasting to the quality of air, soil, or water. |
| (27) | With regard to the criminal offences defined in this Directive, the notion of ‘serious negligence’ should be interpreted in accordance with national law, taking into account relevant case law of the Court of Justice. This Directive does not require the introduction in national law of the notion of ‘serious negligence’ for each constituent element of the criminal offence, such as possession, sale or offering for sale, placing on the market and similar elements. In such cases, it is possible for Member States to decide that the notion of ‘serious negligence’ is relevant for elements of the criminal offence such as the protection status, ‘negligible quantity’, or the ‘likelihood’ of the conduct to cause substantial damage. |
| (28) | In criminal proceedings and trials, due account should be taken of the involvement of organised criminal groups operating in ways that negatively impact the environment. Criminal proceedings for environmental offences should address corruption, money laundering, cyber-crime and document fraud and, in relation to business activities, the intention of the offender to maximise profits or save expenses. Such forms of crime are often interconnected with serious forms of environmental crime and should therefore not be dealt with in isolation. They are also prone, in particular, to causing substantial damage to the environment and human health, including devastating effects on nature and local communities. In addition, it is of particular concern that some environmental criminal offences are committed with the tolerance or active support of the competent administrations or officials performing their public duty. In certain cases, this can even take the form of corruption. Examples of such behaviour are turning a blind eye to, or remaining silent on, the infringement of environmental law following inspections, deliberately omitting inspections or controls such as with regard to whether the conditions of a permit are being respected by the permit-holder, supporting resolutions or voting in favour of granting illegal licences, or issuing falsified or untrue favourable reports. |
| (29) | Inciting, and aiding and abetting intentional commission of a criminal offence should also be punishable. An attempt to commit a criminal offence that causes or is likely to cause the death of, or serious injury to, any person or causes or is likely to cause substantial damage to the environment or is otherwise considered particularly harmful should also constitute a criminal offence when committed intentionally. The notion of ‘attempt’ is interpreted in accordance with national law. With regard to the criminal offence defined in this Directive in relation to the execution of a project without a development consent, since the execution of a project is to be understood as including the start of the implementation of such a project, for example works to prepare the ground for construction or other intervention with effects on the environment, this Directive does not list that offence among criminal offences for which an attempt should be punishable as a criminal offence. |
| (30) | Penalties for the criminal offences defined in this Directive should be effective, dissuasive and proportionate. To that end, minimum levels for the maximum term of imprisonment should be set for natural persons. The maximum terms of imprisonment provided for in this Directive for the criminal offences committed by natural persons should apply at least to the most serious forms of such offences. The criminal law of all Member States includes provisions on homicide, either committed intentionally or with serious negligence. Member States should be able to have recourse to those general provisions, including provisions on aggravating circumstances, when transposing the provisions in this Directive that relate to criminal offences that cause the death of a person, whether committed intentionally or with serious negligence. |
| (31) | Accessory penalties or measures are often seen as being more effective than financial penalties, especially for legal persons. Accessory penalties or measures should be therefore available in the relevant proceedings. Those penalties or measures could include the obligation to restore the environment, the exclusion from access to public funding, including tender procedures, grants and concessions, and the withdrawal of permits and authorisations. This is without prejudice to the discretion of judges or courts in criminal proceedings to impose appropriate penalties in individual cases. |
| (32) | Accessory penalties or measures could, without prejudice to the requirements of Directive 2004/35/EC of the European Parliament and of the Council (8), include a requirement to restore the environment where the damage is reversible and a requirement to provide compensation where the damage is irreversible or the offender lacks the capacity to carry out such restoration. |
| (33) | To the extent that conduct constituting an environmental criminal offence as defined in this Directive is attributable to legal persons, such legal persons should be held liable for such an offence. In order to achieve the objectives of this Directive, Member States whose law provides for the criminal liability of legal persons should ensure that their law provides for effective, dissuasive and proportionate types and levels of criminal penalties as laid down in this Directive. In order to achieve the objectives of this Directive, Member States whose law does not provide for the criminal liability of legal persons should ensure that their law provides for effective, dissuasive and proportionate types and levels of non-criminal penalties as laid down in this Directive. The maximum levels of fines provided for in this Directive for the criminal offences defined in it should apply at least to the most serious forms of such offences. The gravity of the conduct, as well as the individual, financial and other circumstances of the legal persons concerned, should be taken into account to ensure that the penalty imposed is effective, dissuasive and proportionate. Member States should be able to set the maximum levels of fines either as a percentage of the total worldwide turnover of the legal person concerned, or in fixed amounts. Member States should decide which of those two options they will use, when transposing this Directive. |
| (34) | Where Member States, in the determination of fines to be imposed on legal persons, opt to implement the criterion of the total worldwide turnover of a legal person, they should decide whether to calculate that turnover based on the business year preceding that in which the criminal offence was committed, or on the business year preceding that of the decision to impose the fine. They should also consider providing for rules for cases where it is not possible to determine the amount of a fine on the basis of the total worldwide turnover of the legal person in the business year preceding that in which the criminal offence was committed, or in the business year preceding that of the decision to impose the fine. In such cases, Member States should be able to take into account other criteria, such as total worldwide turnover in a different business year. Where those rules include the setting of fixed amounts of fines, it should not be necessary for the maximum levels of those amounts to reach the levels established in this Directive as the minimum requirement for the maximum level of fines set in fixed amounts. |
| (35) | Where Member States opt for a maximum level of fines set in fixed amounts, such levels should be laid down in national law. The highest levels of such fines should apply to the most serious forms of criminal offences defined in this Directive committed by legal persons of financial strength. Member States should be able to determine the method of calculation of those highest levels of fines, including specific conditions therefor. Member States are invited to regularly review the levels of fines set in fixed amounts having regard to rates of inflation and other fluctuations in monetary value, in accordance with procedures laid down in their national law. Member States that do not have the euro as their currency should provide for maximum levels of fines in their currency that correspond to the levels determined in this Directive in euro on the date of its entry into force. Those Member States are invited to regularly review the levels of fines also with regard to the development of the exchange rate. |
| (36) | The establishment of the maximum level of fines is without prejudice to the discretion of judges or courts in criminal proceedings to impose appropriate penalties in individual cases. As this Directive does not establish any minimum levels of fines, the judges or courts should, in any case, impose appropriate penalties taking into account the individual, financial and other circumstances of the legal person concerned and the gravity of the conduct. |
| (37) | Member States should ensure that the criminal or non-criminal penalties or measures applicable to legal persons held liable for qualified criminal offences as defined in this Directive are more severe than those applicable in the event of other criminal offences defined in this Directive. To that end, Member States should, in accordance with their national law, provide for a higher level of criminal and non-criminal fines than the maximum level of fines established in this Directive or otherwise provide for more severe penalties or measures, including criminal or non-criminal penalties or measures, or a combination thereof. |
| (38) | The fact that legal persons are held liable under this Directive should not preclude criminal proceedings being taken against natural persons who commit, incite or are accessories to the criminal offences defined in this Directive. Where the conditions for criminal liability are met, such natural persons should be understood to include corporate board members. |
| (39) | It is necessary that Member States consider introducing penalties or measures that are an alternative to imprisonment in order to contribute to the restoration of the environment. |
| (40) | Penalty levels imposed should be further approximated and the effectiveness of such levels should be fostered through introducing common aggravating circumstances that reflect the gravity of the criminal offence committed. The notion of ‘aggravating circumstances’ should be understood either as facts enabling the judge to pronounce more severe sentences for the same criminal offence than the sentence normally imposed without such facts, or as the possibility to treat several criminal offences cumulatively in order to increase the level of penalty. Therefore, Member States are not obliged to provide for specific aggravating circumstances where national law already provides for separate criminal offences that can lead to more severe penalties. |
| (41) | Member States should ensure that at least one of the aggravating and mitigating circumstances provided for in this Directive is provided for as a possible aggravating or mitigating circumstance in accordance with applicable rules in their legal system. In any case, it should remain within the discretion of the judge or the court to determine whether to increase or to decrease the sentence, taking into account the specific circumstances in each individual case. |
| (42) | This Directive should apply without prejudice to the general rules and principles of national criminal law on the sentencing or the execution of sentences in accordance with the specific circumstances in each individual case. It should be possible for Member Stats to determine the most appropriate types of accessory penalties or measures. In particular, where national law provides for the possibility to impose an obligation to restore the environment within a given period, provided that the damage is reversible, this Directive does not require that a judge or a court also be responsible for monitoring the execution of such obligation. Similarly, if the withdrawal of permits and authorisations to pursue activities that resulted in the relevant criminal offence can be imposed as a penalty under national law, Member States should ensure that judges or courts are able to either impose such a penalty themselves or that another competent authority is informed and can act in accordance with national procedural rules. |
| (43) | This Directive should not affect civil liability under national law or the obligation to compensate, in accordance with Union or national law, for harm or damage caused as a result of a given criminal offence defined in this Directive. |
| (44) | The publication of the personal data of convicted persons contained in judicial decisions should only be possible in duly justified exceptional cases following a case-by-case assessment, weighing the public interest against the rights to respect for private life and protection of the personal data of the convicted person provided for in Articles 7 and 8 of the Charter of Fundamental Rights of the European Union (the ‘Charter’), respectively. The publication of those personal data should therefore only be possible in cases of serious criminal offences and where strong dissuasive effects are needed. The case-by-case assessment could take into account elements such as the gravity of the damage caused to the environment, the harm suffered by natural persons, or both, whether the criminal offence has been committed repeatedly in the same environmental sector, and whether the criminal offence was committed by or for the benefit of a large company active in several Member States or by an important market player in a specific environmental sector. Any processing of personal data in the context of this Directive should comply with the applicable Union and national data protection legislation, in particular Regulation (EU) 2016/679 of the European Parliament and of the Council (9) and Directive (EU) 2016/680 of the European Parliament and of the Council (10). That data protection legislation includes an obligation for Member States to provide for appropriate safeguards for the rights and freedoms of data subjects when publishing all or part of the judicial decision that relates to the criminal offence committed and the penalties or measures imposed. Additionally, the publication of the decision imposing the penalties or measures upon a legal person should be applied without prejudice to the national rules governing the anonymisation of judicial decisions or the duration of publication. |
| (45) | The obligation provided for in this Directive to provide for criminal penalties should not exempt Member States from the obligation to provide for administrative penalties and other measures in national law for breaches of Union environmental law. |
| (46) | Member States should define the scope of administrative and criminal law enforcement clearly with regard to environmental offences, in accordance with their national law. In the application of national law transposing this Directive, Member States should ensure that the imposition of criminal penalties and of administrative penalties respects the principles of the Charter, including the prohibition of proceedings that do not respect the principle of ne bis in idem. |
| (47) | Furthermore, judicial and administrative authorities in the Member States should have at their disposal a range of criminal and non-criminal penalties and other measures, including preventive measures, to address different types of criminal conduct in a tailored, timely, proportionate and effective manner. |
| (48) | Where criminal offences are of a continuing nature, they should be brought to an end as soon as possible. Member States are encouraged to enable the competent authorities to order the immediate cessation of the unlawful conduct or to prevent such conduct. |
| (49) | Where offenders have made financial gains, such gains should be confiscated. Member States should take the necessary measures to allow frozen and confiscated proceeds and instrumentalities to be appropriately managed, in line with their nature. Member States should consider taking measures allowing confiscated property to be used, where possible, to finance restoration of the environment or remediation of any damage caused, or to provide compensation for the environmental damage, in accordance with national law. |
| (50) | Member States should lay down rules concerning limitation periods necessary to combat environmental crime effectively, without prejudice to national rules that do not set limitation periods for investigation, prosecution and enforcement. As a general rule, a limitation period runs from the point in time the criminal offence was committed. However, as this Directive establishes minimum rules, Member States can provide for the limitation period to start later, namely from the point in time the criminal offence was detected, provided that such point in time of detection is clearly determined in accordance with national law. Member States are permitted under this Directive to establish limitation periods shorter than those laid down in this Directive, provided that in their legal systems it is possible to interrupt or suspend such shorter limitation periods in the event of acts which can be specified in accordance with national law. |
| (51) | Given, in particular, the mobility of offenders, together with the cross-border nature of criminal offences defined in this Directive and the possibility of cross-border investigations being carried out, Member States should establish jurisdiction in order to combat such offences effectively. Member States should cooperate with Eurojust, in particular on the basis of Regulation (EU) 2018/1727 of the European Parliament and of the Council (11), in cases where conflicts of jurisdiction could arise. A given Member State should establish jurisdiction over criminal offences committed on board a ship or an aircraft registered in that Member State, or flying its flag, taking into account related standards under relevant international conventions. Member States should not be obliged under this Directive to establish for the first time such jurisdiction over criminal offences that, due to their nature, cannot be committed on board a ship or an aircraft. |
| (52) | Member States should establish jurisdiction over criminal offences defined in this Directive where the damage which is one of the constituent elements of the criminal offence occurred on their territory. In accordance with national law, and in line with the territoriality principle, a Member State could establish jurisdiction over criminal offences committed in whole or in part on its territory. |
| (53) | To ensure successful enforcement of environmental criminal law, Member States should make available to competent authorities effective investigative tools for environmental criminal offences such as those available under their national law for combatting organised crime or other serious criminal offences, if and to the extent that the use of those tools is appropriate and proportionate to the nature and gravity of the criminal offences as provided for in national law. Such tools could include the interception of communications, covert surveillance, including electronic surveillance, controlled deliveries, the monitoring of bank accounts and other financial investigation tools. Those tools should be used in line with the principle of proportionality and in full respect of the Charter. It is imperative that the right to the protection of personal data be respected. |
| (54) | Environmental criminal offences harm nature and society. Persons reporting breaches of Union environmental law perform a service of public interest and play a key role in exposing and preventing such breaches, and thus in safeguarding the environment and the welfare of society. Individuals in contact with an organisation in the context of their work-related activities are often the first to know about threats or harm to the public interest and the environment. Persons who report irregularities are known as ‘whistleblowers’. Potential whistleblowers are often discouraged from reporting their concerns or suspicions for fear of retaliation. Such reporting persons benefit from balanced and effective protection under Directive (EU) 2019/1937 of the European Parliament and of the Council (12), which includes Directives 2008/99/EC and 2009/123/EC (13) of the European Parliament and of the Council within its scope. Following the replacement of Directives 2008/99/EC and 2009/123/EC by this Directive, persons who report breaches of Union environmental law should, by virtue of this Directive, continue to benefit from that protection from the Member States bound by it. |
| (55) | Persons other than those who report breaches of Union law under Directive (EU) 2019/1937 could also possess valuable information concerning potential environmental criminal offences. They could be members of the community affected or members of society as a whole taking an active part in protecting the environment. Such persons who report environmental criminal offences as well as persons who cooperate with regard to the enforcement of such offences should be provided with the necessary support and assistance in the context of criminal proceedings, so that they are not disadvantaged as a result of their cooperation but supported and assisted. The necessary support and assistance measures should be available to such persons in accordance with their procedural rights in national law and should include, at least, all support and assistance measures available to persons having corresponding procedural rights in criminal proceedings concerning other criminal offences. Those persons should, in accordance with their procedural rights in national law, also be protected from being persecuted for reporting environmental criminal offences or for their cooperation in the criminal proceedings. The content of the necessary support and assistance measures is not established by this Directive and should be determined by Member States. Member States are not required to make available the support and assistance measures to persons who are suspected or accused in the context of the criminal proceedings concerned. |
| (56) | Member States should assess the need to enable persons to report environmental criminal offences anonymously, where such possibility does not already exist. |
| (57) | Since the environment cannot represent itself as a victim in criminal proceedings, for the purpose of effective enforcement, members of the public concerned should have the possibility of acting on behalf of the environment as a public good, in accordance with national law and subject to the relevant procedural rules. |
| (58) | This Directive does not require Member States to introduce new procedural rights for the members of the public concerned. However, when such procedural rights for members of the public concerned exist in a Member State in equivalent situations concerning criminal offences other than those provided for pursuant to this Directive, such as the right to participate in proceedings as a civil party, such procedural rights should also be granted to the members of the public concerned in proceedings concerning the environmental criminal offences defined in this Directive. The rights of the members of the public concerned are without prejudice to the rights of victims as set out in Directive 2012/29/EU of the European Parliament and of the Council (14). The notion of ‘members of the public concerned’ and of ‘victims’ should remain distinct and Member States should not be required to apply victims’ rights to members of the public concerned. This Directive does not require Member States to grant to members of the public concerned the procedural rights in criminal proceedings that they grant to categories of persons other than members of the public concerned. |
| (59) | Member States should take appropriate measures, such as information and awareness-raising campaigns targeting relevant stakeholders both from the public and private sector, as well as research and education programmes, that aim to reduce overall environmental criminal offences and the risk of environmental crime. Where appropriate, Member States should act in cooperation with such stakeholders. In that context, measures that aim to improve prevention of environmental criminal offences could include promoting compliance and due diligence schemes, encouraging operators to have compliance officers to help ensuring compliance with Union environmental law, and promoting transparency in order to strengthen compliance with environmental criminal law. In addition, accessory penalties imposed on legal persons under this Directive could include an obligation on companies to install due diligence schemes for enhancing compliance with environmental standards, which also contributes to prevention of further environmental criminal offences. Moreover, Member States could consider establishing a fund to support prevention measures in respect of environmental criminal offences and their devastating consequences. |
| (60) | Lack of resources and enforcement powers for national authorities which detect, investigate, prosecute or adjudicate environmental criminal offences creates obstacles for the effective prevention and sentencing of those offences. In particular, the shortage of resources is capable of preventing authorities from taking any action or limiting their enforcement actions, allowing offenders to escape liability or to receive a sentence that does not correspond to the gravity of the criminal offence. Therefore, minimum criteria concerning resources and enforcement powers should be established. |
| (61) | The effective functioning of the enforcement chain depends on a range of specialist skills. As the complexity of the challenges posed by environmental criminal offences and the technical nature of such offences require a multidisciplinary approach, a high level of legal knowledge and technical expertise, financial support, as well as a high level of training and specialisation within all relevant competent authorities, are necessary. Member States should provide training appropriate to the functions of those in charge of detecting, investigating, prosecuting or adjudicating environmental crime. Where appropriate, Member States should, taking into account their constitutional traditions and structure of their legal systems, as well as other circumstances, including the size of the Member State concerned, assess the need to increase the level of specialisation of such authorities in the area of environmental criminal offences, in accordance with national law. Where the Member State concerned is small and has only a limited number of competent authorities, the assessment might conclude that, in view of that limited number, specialisation is not possible or advisable. In particular, to maximise the professionalism and effectiveness of the enforcement chain, Member States should also consider assigning specialised investigation units, prosecutors and judges to deal with environmental criminal cases. General criminal courts could provide for specialised chambers of judges. Technical expertise should be made available to all relevant enforcement authorities. |
| (62) | To ensure an effective, integrated and coherent enforcement system that includes administrative, civil and criminal law measures, Member States should organise internal cooperation and communication between all their competent authorities involved in administrative and criminal enforcement, including all authorities exercising preventive, penal and remedial functions. |
| (63) | In accordance with applicable rules, Member States should also cooperate between them through Union agencies, in particular Eurojust and Europol, as well as with Union bodies, including the European Public Prosecutor’s Office and the European Anti-Fraud Office, in their respective areas of competence. Without prejudice to the rules on cross-border cooperation and mutual legal assistance in criminal matters, such cooperation should be provided to ensure effective action against the criminal offences defined in this Directive, and include technical and operational assistance provided, where appropriate, by Eurojust to the national competent authorities as needed by those authorities to coordinate their investigations. The Commission could, where appropriate, provide assistance. Such assistance should not entail the participation of the Commission in the investigation or prosecution procedures of individual criminal cases conducted by the national competent authorities and should not be understood as including financial support or any other budgetary commitment by the Commission. |
| (64) | Member States should ensure that information on persons convicted for the criminal offences defined in this Directive is exchanged between national competent authorities in accordance with Council Framework Decision 2009/315/JHA (15). |
| (65) | To ensure a coherent approach to combatting environmental crime, Member States should adopt, publish, implement and periodically review a national strategy on combatting environmental criminal offences, establishing objectives, priorities and the corresponding measures and resources needed. That national strategy should address, in particular, the objectives and priorities of national policy in the area of environmental crime, the methods of coordination and cooperation between the competent authorities, the procedures and mechanisms for regular monitoring and evaluation of the results achieved, and the assistance of European networks working on matters directly relevant to combatting environmental criminal offences and related infringements. It should be possible for Member States to determine the appropriate form for that strategy which could take into account their constitutional traditions in terms of separation of powers and competences, and be either sectoral or a part of a broader strategic document. Irrespective of whether Member States provide for the adoption of one or more strategies, their overall content should encompass the territory of the entire Member State. |
| (66) | To effectively tackle the environmental criminal offences defined in this Directive, it is necessary that competent authorities in the Member States collect accurate, consistent and comparable statistical data on those offences. Member States should therefore ensure that an adequate system is in place for the recording, production and transmission of existing statistical data on the offences defined in this Directive. Those statistical data should be used by Member States to serve the strategic and operational planning of enforcement activities, to analyse the scale of and trends in environmental criminal offences, as well as for providing information to citizens. Member States should transmit to the Commission relevant statistical data on environmental crime proceedings, extracted from data that already exist at a centralised or decentralised level within the whole Member State. The Commission should regularly assess and publish in a report the results of its assessment based on the statistical data transmitted by the Member States. |
| (67) | The statistical data transmitted under this Directive on environmental criminal offences should be comparable between the Member States and extracted on the basis of common minimum standards. In order to ensure uniform conditions for the implementation of this Directive, implementing powers should be conferred on the Commission to establish the standard format for the transmission of statistical data. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (16). |
| (68) | The standard format for the transmission to the Commission of statistical data on types and levels of penalties, including information on the related offence categories, in accordance with this Directive should be established in accordance with the committee procedure provided for in this Directive. |
| (69) | In accordance with Articles 1 and 2 and Article 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol, Ireland is not taking part in the adoption of this Directive and is not bound by it or subject to its application. |
| (70) | In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application. |
| (71) | This Directive aims to amend and expand the provisions of Directive 2008/99/EC. Since the amendments to be made are substantial in number and nature, Directive 2008/99/EC, should, in the interests of clarity, be replaced in its entirety in relation to the Member States bound by this Directive. |
| (72) | Directive 2005/35/EC of the European Parliament and of the Council (17) was supplemented by Directive 2009/123/EC with provisions on criminal offences and penalties for ship-source discharges of polluting substances. Such offences and penalties should fall within the scope of this Directive. Therefore, for Member States bound by this Directive, Directive 2009/123/EC should be replaced. That replacement should be without prejudice to the obligation of those Member States with regard to the date for transposition of that Directive into national law. Accordingly, with regard to the Member States bound by this Directive, references to those provisions of Directive 2005/35/EC added or replaced by Directive 2009/123/EC should be construed as references to this Directive. Member States not bound by this Directive should remain bound by Directive 2005/35/EC as amended by Directive 2009/123/EC. |
| (73) | Since the objectives of this Directive, namely to provide common definitions of environmental criminal offences and the availability of effective, dissuasive and proportionate criminal penalties for serious offences, cannot be sufficiently achieved by the Member States but can rather, by reason, inter alia, of the cross-border damage which can be caused to the environment by the unlawful conduct concerned and by reason of scale and effects of the response needed, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary to achieve those objectives. |
| (74) | The obligations under this Directive are without prejudice to Union law on procedural rights in criminal proceedings and Member States should ensure that the procedural rights of suspected or accused persons in criminal proceedings are fully respected. |
| (75) | This Directive respects the fundamental rights and observes the principles as recognised in particular by the Charter, including the protection of personal data, the freedom of expression and information, the freedom to conduct a business, the right to an effective remedy and to a fair trial, the presumption of innocence and right of defence, the principles of legality and proportionality of criminal offences and penalties, and the right not to be tried or punished twice in criminal proceedings for the same offence. This Directive seeks to ensure full respect for those rights and principles and should be implemented accordingly, |