Criminal law for more environmental protection

Despite the increasing public awareness of environmental and climate issues, environmental crime has risen sharply in recent years. Since its effects undermine the effectiveness of the European Union’s environmental policy and pose a serious threat to both the environment and human health, combating it is now also given high priority at EU level.

However, an evaluation of the existing provisions revealed that compliance with EU environmental law and the prevention of environmental crime were not sufficiently ensured.

In order to ensure effective environmental protection, the EU directive 2024/1203 of April 11th, 2024, on the protection of the environment through criminal law (hereinafter “directive”) – replacing directives 2008/99/EC and 2009/123/EC – was published in the Official Journal of the Union on April 30th, 2024, and finally entered into force on May 20th, 2024. Member states have until May 21st, 2026, to transpose the directive into their national law. The explicit aim of the directive is to ensure effective protection of the environment by combating environmental crime.

1 What is new?

1.1 Expansion of the catalog of criminal offences

The directive has extended the list of criminal offenses from 9 to 20. For example, the placing of environmentally harmful products on the market, the improper handling of waste, the illegal extraction of surface and ground water and illegal recycling have been made punishable. In addition to the offenses explicitly listed in the directive, the member states are free to impose criminal penalties for other environmentally harmful acts.

However, the directive’s criminal offenses require conduct that exceeds a certain threshold of severity, for example if the conduct causes at least serious bodily harm or significant damage to an ecosystem or is at least likely to cause such damage. Particularly severe environmental damages must be punished as qualified criminal offenses (such as the so-called “ecocide”).

Another key new element is that participation (incitement or involvement and aiding and abetting) in a criminal offense as well as the attempted commission of an intentional crime are punishable. This is in line with Austrian criminal law, according to which offenders are to be punished to the extent of their own guilt.

1.2 Sanctions

As with directive 2008/99/EC, the new directive requires member states to take measures to ensure that environmental offenses are punished with effective, proportionate and, in particular, deterrent criminal sanctions. What is new, however, is that directive 2024/1203 sets minimum standards with regard to the potential sanctions. The list of penalties ranges from a maximum prison sentence of at least ten years to fines that may not be less than 5% of total global turnover or, alternatively, EUR 40 million for certain serious offenses.

Member states may also provide for additional criminal and non-criminal sanctions, such as the exclusion of public funding or a temporary or permanent ban on doing business. Under strict conditions, even the publication of the court’s ruling may be possible.

1.3 Public access to the courts

Since the environment cannot represent itself, the directive provides for extensive participation of third parties as the “affected public.” This includes NGOs, environmental associations, and individuals who have a sufficient interest in asserting a violation of law. However, as the directive does not require the introduction of new procedural rights and Austrian criminal procedure law does not foresee public participation beyond the private involvement of victims, no changes are to be expected in this regard.

1.4 Investigation and prosecution – improvements and simplifications

The directive also provides simplifications for law enforcement authorities. Addressing one of the main criticisms from the 2021 survey, international cooperation in the prosecution of environmental crimes is to be improved with the help of a coordination body. To ensure the successful enforcement of environmental criminal law, authorities will also be given far-reaching investigative tools and powers, which will correspond to the severity of the offenses.

1.5 Whistleblower

Finally, without prejudice to the Whistleblower Directive (Directive [EU] 2019/1937), individuals who report environmental crimes as defined by the directive, provide evidence or otherwise cooperate with authorities in investigating environmental crimes must be granted access to support and assistance measures.

2. Outlook

It remains to be seen whether the directive can meet its ambitious goals of ensuring the effectiveness of environmental criminal law and improving (inter-)national environmental protection. However, the amendment to environmental criminal law certainly reflects the high priority the EU places on environmental protection.

For companies in particular, the directive entails an expansion of their responsibility, making the implementation of new internal compliance measures, as well as the adjustment of existing ones, all the more important to minimize liability risks and ensure compliance with the directive.

Finally, it is also to be expected that the directive will have an impact on the duration of administrative approval procedures, as the risk of committing a criminal offense will already exist at the planning stage. It remains to be seen how the directive will be transposed into Austrian law.

Our experts Xaver Meusburger and Thomas Baumgartner are happy to answer any further questions on this topic and provide assistance with practical implementation.

Disclaimer

This article is for general information only and does not replace legal advice. Haslinger / Nagele Rechtsanwälte GmbH assumes no liability for the content and correctness of this article.

16. September 2024