Environmental crime in the EU: Is there a need for further harmonisation or for new enforcement tools?

Author:Mircea Dutu
Position:Director of the Legal Research Institute of the Romanian Academy, President of the Ecological University of Bucharest
Pages:75-90
SUMMARY

Criminal approach of the environmental issues is both an innovative and a necessary evolution of a much wider field of regulation, at an international, European, and national level; hence, it is but part of the legal action taken by societies, in order to assess and partly solve the environmental crisis, and also to limit its impact on human life. Assuming a dominant position regarding the environmental aspects, the European Union has adopted a framework regulation regarding the protection of the environment through criminal law, as a tool for harmonizing national regulations of the member States, in order of creating a unitary legal approach of incriminating behaviours dangerous for the environment. Despite its generous purpose and its relatively recent date, the 2008/99/EC Directive is considered to be a useful, but still limited and even inefficient instrument, demanding for further improvement and completion, both at a EU and member State level.

 
CONTENT
Environmental crime in the Eu: is there a need for further harmonisation… 75
EUROPEAN UNION LAW
ENVIRONMENTAL CRIME IN THE EU: IS THERE A NEED
FOR FURTHER HARMONISATION
OR FOR NEW ENFORCEMENT TOOLS?
Prof. univ. dr. Mircea DUŢU
Director of the Legal Research Institute of the Romanian Academy
President of the Ecological University of Bucharest
Abstract
Criminal approach of the environmental issues is both an innovative and a necessary
evolution of a much wider field of regulation, at an international, European, and national
level; hence, it is but part of the legal action taken by societies, in order to assess and partly
solve the environmental crisis, and also to limit its impact on human life.
Assuming a dominant position regarding the environmental aspects, the European
Union has adopted a framework regulation regarding the protection of the environment
through criminal law, as a tool for harmonizing national regulations of the member States,
in order of creating a unitary legal approach of incriminating behaviours dangerous for the
environment. Despite its generous purpose and its relatively recent date, the 2008/99/EC
Directive is considered to be a useful, but still limited and even inefficient instrument,
demanding for further improvement and completion, both at a EU and member State level.
Key words: EU, criminal law, environment, environmental law, regulation, harmonization.
Introduction
The necessity and the importance of the criminal law intervention in order to
protect the environment are obvious today. Ensuring a healthy and ecologically
balanced environment is found among the stakes and objectives of the human
fundamental rights, and express social values that are already legally undertaken
and protected, which suppose also a consolidation of the repression of the actions
that actually endanger or harm the same. From such perspective at national level, a
series of criminal incriminations crystallised in the environmental field, with a
tendency to become autonomous and increasingly affirm their nature. Most times,
the legal element is not mentioned in the Criminal Code but, either in the
framework laws and the special laws, or in the specialised codes (Environmental
Code, Rural Code, and so on, where available). The material element is seldom
Law Review vol. I, issue 1, Januar
y
-June 2016, p. 75-90
76 MIRCEA DUŢU
foreseen specifically, as most often it is determined by the references of a general
incrimination clause to civil, administrative or international provisions. We talk
about criminal offences that suppose an action or omission and not necessarily
involving an actual environmental offence.
At the same time, a repression exists often in two stages: firstly, the failure to
comply with the legal provisions in this field represents an offence penalised
administratively, and then the failure to execute the penalty thus enforced
represents a criminal offence. As regards the subjective (moral) element, it is rarely
required to prove it, since the general incrimination clause relies on a simple
“material fault” resulted from the inobservance of the pertinent legal regulations.
As for the substance, at the level of the general legal regime of liability one
may see, on one hand, the systematic search of reinstating the prior condition or
restoring the environment, and on the other hand, the criminal liability being
incurred in case of serious or irreversible prejudice caused to the environment,
including in the event of wilful or reiterated abstention from acting. At their turn,
the specific criminal penalties have the tendency to evolve depending on the
importance of the damages caused to the environment; to this effect, we may
distinguish from irreversible damages which entail “a proven and irreparable
alteration”, reversible offences only on long term and those reparable “within a
reasonable interval”.
Despite such notable evolutions in this field, the national environmental laws
are still lacking a sufficient proper harmonisation both as regards the
incriminations presented, and as regards the penalties and repression mechanisms,
which vary according to the legislation. Such deficiencies have, unfortunately, a
global nature, meaning that they occur from the reasoning of the legal concept and
expression of the incriminations, to each stage of implementation of the concerned
legislation: preliminary stage of ascertaining, of formulating the accusation, of
notifying the judge, of the legal inquiry, of the decision and execution of
punishments.
Simultaneously, as a reaction to such realities and with the intention to have a
better adequacy and clarification of the criminal response, the harmonisation is
sought both of the procedural rules of investigation and ascertainment of criminal
offences, as well as the punishment mechanisms offered to the judge. Even if, using
such ways, a certain harmonisation and consolidation of the repression ensemble
are generally reached, we cannot talk yet about the initiation of a process laying
down the bases of a new criminal law of the environment, able to fully manifest its
necessary specificity and efficiency. We rather stay in the preliminary stage of such
substantial approach, being characterised by priorities, such as: covering the
deficiencies and surpassing the obvious gaps of the current legal system.
Unfortunately, the opportunities and several attempts made within such
context have remained without result. Thus, in the most common situations, to
enact new criminal codes or to review those enacted after 2008 were not provisions
Environmental crime in the Eu: is there a need for further harmonisation… 77
that led to the simplification and harmonisation of the criminal legislation
concerning the environment, as at the best this was limited to establishing a
common trunk of the repression provisions which are enforceable, whenever when
possible, to all fields regulated by the sector legislation. Also, the rare codifications
of this field did not mean a full and proper reform of the environmental criminal
law, as the inconsistencies and lack of correlations were not surpassed, and a full
harmonisation was not accomplished. Under such circumstance, the consolidation
of the internal regimes of criminal liability in the ecology field tried to fulfil itself,
on one hand, at a general level, by using the international criminal law, and on the
other hand and in extension to this one, by opening a new chapter corresponding
to the EU policies, strategies and law1. Indeed, the EU environmental criminal law
has its premises, obviously, in the Council of Europe Convention of 4 November
1998 on the protection of the environment through criminal law (which is not yet
in force) that, at its turn, is in extension of other similar interstate legal instruments.
Such continuity is seen both as concerns the description of the punishable
conducts, the determination of the illicit nature and the extension of the moral
element to the criminal offence perpetrated by negligence. The use in the end of the
legal instrument of the Directive for the purpose of regulating this field at the
European Union level had for result the limitation of the area of incriminations to
aspects that are governed by EU law, which has as (apparently) paradoxical effect
the incrimination or not of certain similar conducts, depending on how these ones
prejudice or not elements regulated at the European Union level.
From such perspective, the answer to the question whether the status of the
environmental crimes in the European Union requires the extension of the
harmonisation or new enforcement instruments involves a more complex
approach, starting from the status of the European Union regulation, the manner
of transposing it in domestic laws, the experiences had while enforcing pertinent
provisions and the requirements having priority in covering the gaps and
developing the actual progresses.
1. Opportunity and need for the criminal regulation to intervene at
European Union level
The relevance of an intervention at the EU level which, without fully
harmonising the regime of illegal harms caused to the environment, sets a minimal
framework likely to facilitate the cooperation between Member States and ensure
an analogue treatment in severe cases of ecological criminality, was subject to a
quite long process of legal acceptance and expression.
The older EU directives and regulations in the environment field were
generally limited to providing that the Member States were compelled to
1 For the policies, see: S. Baziadoly, La politique européenne de l’environnement, Ed. Bruylant,
Bruxelles, 2014, p. 160-161.
78 MIRCEA DUŢU
undertake “proper and necessary measures”, of an administrative and/or
legislative nature for transposing or, as the case may be, organising the
enforcement of the concerned European Union legislative deed. More recently, the
legal text of the EU provides that the Member States have to determine a regime of
proper and proportionate penalties, possibly adding also the requirement to be
efficient and dissuasive.
The case law of the European Union Court of Justice has already determined
that, within such framework, Member States are entitled to provide criminal
penalties, only if these are equivalent to those enforceable in case of infringements
of national law, with a similar nature and importance, and that the same should
always have an effective, proportionate and dissuasive nature.2
According to the comparative law, in order to be so, besides the possibility of
being enforced by the judge, such penalties should be selected by the legislator,
according to their nature and amount, taking into account: a) the intentional nature
or not of the anti-ecological conduct; b) the nature of the environmental offence,
the seriousness of the damage caused in this way – following the pattern mutatis
mutandis of the punishments provided by law for involuntary harms caused to a
person’s integrity.
It’s true that criminal law has several advantages which recommend it for
being used as instrument for the environmental protection; on one hand, due to its
ethical size, the incrimination means the fact that certain environmental assets have
a special social value, which deserves a superior protection, and, on the other
hand, due to its repressive function and its subsequent preventive function.
Practically, there are three reasons deemed to be major for an intervention at
European Union level in the criminal field for the environmental protection:
- the enforcement of criminal penalties expresses a “social disapproval
superior” to the one caused by administrative penalties or by a civil indemnity;
- it is more discouraging, given the possibility to use even the punishment by
imprisonment and, in any case, more severe penalties;
- it authorises the use of more efficient investigation methods, able to lead to a
decision being ruled by an independent and impartial court.3
Criminal intervention in the field of environmental law is subject to two
significant EU regulations: Directive 2008/99/EC of 19 November 2008 on the
protection of the environment through criminal law, which provides a general
regime in this field and, respectively, Directive 2009/123/EC of 21 October 2009
amending Directive 2005/35/EC on ship-source pollution and on the introduction
of penalties for infringements, both of them having for purpose the harmonisation
among the EU Member States the criminal penalties enacted thereunder, especially
2 CJEC, decision of 2 September 1996, S.Gallotti, joined cases C-58/95, C-75/95, C- 112/95.
3 Exposé des motifs de la proposition de directive à la protection de l’environnement par le droit pénal,
présenté par la Commission, COM (2007) 53 final, 9 févr. 2007, M. Duţu, Introducere în dreptul penal
al mediului, Editura Hamangiu, București, 2013, p. 140-156.
Environmental crime in the Eu: is there a need for further harmonisation… 79
for making efficient the MARPOL Convention. After the oil-tanker “Erika” broke
apart and the French shores were massively polluted, and under their legal impact,
the European Union enacted several texts (forming the so-called “Erika” package)
concerning the consolidation of the legal regime for the marine environmental
protection against ship-source pollution, containing also several measures of
criminal nature.
2. Legal regime related to Directive 2008/99/EC
The decisions made by the European Council in Tampere (Finland) on 15-16
October 1999 on the creation of an area of freedom, security and justice required
the intensification of efforts for enacting definitions, incriminations and penalties
in the most significant fields of criminality, among which the environmental
criminality was mentioned too.4 But for its use, the Community institutions
developed two competitive initiatives. Thus, on one hand, the Commission drafted
a proposition for a directive in order to penalise the infringements of the
provisions of the main Community directives in this field, in September 2002; on
the other hand, upon proposition of Denmark, the Council enacted on 27 January
2003 the Framework decision no. 2003/80 JAI on the protection of the environment
through criminal law, whereby the States were compelled to provide
incriminations for certain inobservances of their environmental regulations.5
Besides the opposition between an integrated approach and the interstate
dynamics, this international conflict expressed the issue of the legal basis for the
Community action in this field. Thus, the Commission acted pursuant to art. 174-
176 of former EC Treaty which, in the Commission’s opinion, would have raised
the environmental protection to the rank of Community competencies, while the
Council invoked art. 29, 31 and 34 of the EU Treaty which allowed, in order to give
the citizens a high level of protection in an area of freedom, security and justice
(third pillar), to establish a jurisdictional collaboration especially by making close
the national provisions regarding the elements that form the criminal offences. The
4 For a general presentation of European criminal law, see: D. Flore, Droit pénal européen, Les
enjeux d’une justice pénale européenne, 2e éditions, Ed. Larcier, Bruxelles, 2014, p. 236-241.
5 Taking note of the Convention of the European Council of 4 November 1998 and integrating
some of the provisions of a proposition for directive with the same subject which was presented by
the Commission in March 2001, the document distinguished between the criminal offences
perpetrated intentionally or with negligence, every Member State was to undertake the necessary
measures in order to assimilate the latter ones instead of the first ones, at least in case of serious
fault. The participation and instigation had to be punished (art. 4). The provided criminal penalties
were to be “effective, proportionate and dissuasive” and “include, at least in the more serious cases,
punishments involving deprivation of liberty which might result in extradition” (art. 5). It was also
established the criminal liability of legal persons in the field of environment. The framework
decision invited the Member States to ensure, when necessary, either sanction of the authors of the
concerned criminal offences, or their extradition to the Member State where the criminal offence
has been perpetrated (art. 9). See also: M. Duţu, Principii şi instituţii fundamentale de drept comunitar
al mediului, Editura Economică, Bucureşti, 2005, p. 254-255.
80 MIRCEA DUŢU
conflict was put to an end, by consensus with the data of the EU law at that time,
by two decisions of the Court of Justice of EC (CJEC): one of 13 September 2005,
which annulled the Framework decision no. 2003/80 JAI of the Council for
infringing art. 47 of EU Treaty6 and another one ruled on 23 October 2007, which
censored the Framework decision enacted for the consolidation of the criminal
legislative package in the particular field of marine pollution.7
In order to decide in this way, the court in Luxemburg showed that if criminal
law does not fall, as a principle, within the Community’s competence, but this
thing would not have prevented the Community legislator to intervene “when the
application of effective, proportionate and dissuasive criminal penalties by the
competent national authorities is an essential measure for combating serious
environmental offences, from taking measures which relate to the criminal law of
the States” (point 48 of C-176/03 and point 66 of C-440/05). Therefore, in other
words, if the integrity of the legal order required a criminal answer in a certain
case, the Community was able to determine the nature of the mechanisms to be
applied in the Member States. But the exercise of such “instrumental” competence
in order to serve the effectiveness of the Community law was limited; once the
constant incriminations were introduced, the national legislator was the one which,
given their knowledge about the legal and sociological particularities of the social
order, chose the type and level of the penalties to be applied (points 70 and 71 of C-
440/05). So, the Community could not intervene unless it was absolutely necessary
and only to the extent the States kept a margin for action.
Under such circumstances, the Commission enacted another proposition of
directive, which entered into force on 19 November 2008, directive 2008/99/EC on
the protection of the environment through criminal law.8 This one represents an actual
progress in this field, as it was the first major regulatory deed of the EU on the
environmental criminal law. Its enactment marks the climax of certain evolutions
of the Community regulations and of C.J.E.C. (C.J.E.U.) case law for the
establishment of a minimal common framework for criminal measures meant to
provide a more efficient protection of the environment and at the same time a
starting point for its development from the perspectives of the need to adapt the
criminal reaction to the particularities of the environmental criminality and to the
specific nature of the EU law.
Starting from the idea that the compliance with the laws on the environmental
protection may be consolidated by instituting certain specific criminal penalties,
reflecting the society’s disapproval of the anti-ecological human actions, the
directive has for object the establishment of “measures of criminal nature in order
6 CJEC, decision of 13 September 2005, case C- 176/03.
7 CJEC, decision of 23 October 2005, case C-440/05.
8 For a presentation of the directive see: M. Duţu, Implicaţii ale transpunerii în dreptul român a
directivei 2008/99/CE din 19 noiembrie 2008 privind protecţia mediului prin intermediul dreptului penal, in
“Dreptul” nr. 6/2010, p. 210-225.
Environmental crime in the Eu: is there a need for further harmonisation… 81
to ensure a more efficient protection of the environment” (art. 1). Therefore, the
purpose is thus to harmonise the criminal offences (the incriminations) and the
criminal penalties applicable in the environmental field as provided by the
legislations of the Member States, so that it is avoided that the authors of such
criminal actions benefit from differences (discrepancies) of regulation and in this
manner take advantage of “the criminal paradise”. The document offers an
“ecocentric” vision in the sense that it concerns the environmental protection as
value per se; according to reason 5, “there is a particular need for more dissuasive
penalties for environmentally harmful activities, which typically cause or are likely
to cause substantial damage to the quality of air, including the stratosphere, to soil,
water, animals or plants, including to the conservation of species”.
At the same time, the document inclines to offer an European model for the
environmental protection through criminal law, with major implications for the
evolutions of the Member States’ domestic laws9, in which the directive has been
transposed (the deadline for this being 26 December 2010)10, as well as for the
international initiatives in this field.
3. Content of Directive 2008/99/EC
Directive 2008/99/EC (hereinafter the Directive) sets forth minimum
standards for the environmental protection through criminal law in relation to
several activities that are actually or potentially prejudicial, as EU Member States
are able to undertake or maintain more strict measures in this field, provided that
these are compatible with the provisions of the constitutive treaty. Besides the
condition that the concerned criminal penalties be effective, efficient, proportionate
and dissuasive, the document provides the actions that must represent criminal
offences and mentions some aspects regarding the natural persons and the legal
persons whose criminal liability may be incurred.
4. Criminal offences
Article 3 of the Directive lists the actions in relation to which the Member
States must be sure constitute criminal offences “when unlawful and committed
intentionally or with at least serious negligence”. At the same time, penalty should
be applied also on inciting, aiding and abetting such actions committed
intentionally (as “criminal offences”).
9 Art. 8 contains, to this effect, the following mention for transposition: when Member States
adopt deeds with power of law and administrative deeds necessary for this operation, they shall
contain a reference to this Directive or be accompanied by such a reference at the date of their
official publication.
10 See D. Roets, Naissance du droit pénal européen de l’environnement (À propos de la directive
2008/99/CE du Parlement et du Conseil du 19 novembre 2008, relative à la protection de l’environnement
par le droit pénal) in “Revue européenne de droit de l’environnement”, no.3/2009, p. 271-283.
82 MIRCEA DUŢU
Therefore, the incrimination of those actions is conditional upon the illegal
nature at European (Community) level, in the sense that the same represent
“serious infringements of provisions of Community law on the protection of the
environment” (whereas 10 of the Preamble). Pursuant to art. 2 (“Definitions”),
“unlawful” means infringing: a) the legislation adopted pursuant to the EC Treaty
and listed in Annex A (a total of 69 Community regulatory deeds, out of which 8
are regulations and 61 are directives); or b) with regard to activities covered by the
Euratom Treaty, the legislation adopted pursuant to the Euratom Treaty (listed in
annex B, 3 directives) and c) a law, an administrative regulation of a Member State
or a decision taken by a competent authority of a Member State that gives effect to
the Union (Community) legislation referred to in both annexes.
5. Material element of the criminal offences
Being preoccupied by the complete compliance with the requirements of the
principle of the incrimination’s lawfulness, the Union (Community) legislator
described in detail the actions or omissions that must be deemed criminal offences
and punished as such. According to the number, the most important category of
incriminated actions is represented by the polluting activities “which cause or are
likely to cause death or serious injury to any person or significant (substantial)
damage to the quality of air, the quality of soil or the quality of water, or to animals
or plants, namely:
- the discharge, emission or introduction of a quantity of materials or ionising
radiation into air, soil or water [art. 3 letter a)];
- the collection, transport, recovery or disposal of waste, including the
supervision of such operations and the aftercare of disposal sites, and including
action taken as a dealer or a broker (waste management) [art. 3 letter b)];
- the operation of a plant in which a dangerous activity is carried out or in
which dangerous substances or preparations are stored or used and which, outside
the plant, may cause the general consequences related to this category of actions
[art. 3 letter d)];
- the production, processing, handling, use, holding, storage, transport, import,
export or disposal of nuclear materials or other hazardous radioactive substances
[art. 3 letter e)]”.
As for the incriminatory aspects, in a manner being tributary to the classical
approach, people’s health is protected along with the environment stricto sensu, as
human being is deemed integrant part thereof. Of course, should the
environmental damages consist in actual consequences, the reference to “death”
and “serious injury of a person” would seem somehow unnecessary to the extent
that the domestic criminal laws of the Member States traditionally incriminate the
offences to life and human being’s integrity. Such reference has however an
interest concerning the conducts endangering another one which are, per se,
repressed only in some EU Member States, such as Spain and France.
Environmental crime in the Eu: is there a need for further harmonisation… 83
The other categories of actions which must be incriminated are:
- shipment of waste, in the event such activity is included in the field of
application of art. 2 para. (35) of Regulation (EC) No. 1013/2006 of the European
Parliament and of the Council, of 14 June 2006, on shipments of waste11 and is
undertaken in a non-negligible quantity, whether executed in a single shipment or
in several shipments which appear to be linked [art. 3 letter c)]; the incrimination
concerns one illegal waste transfer, made by failure to observe the provisions of
that regulation and this independently from the impact of said transfer on the
environment. The illegal nature of the waste transfer, even if it is a prerequisite for
the criminal offence, does not entail ipso facto its perpetration, as it is necessary to
fulfil also the condition that the wastes subject to transfer are “in the quantity
which cannot be ignored”, a fact that leaves a wider margin of appreciation of the
domestic legislator to this effect;
- the killing, destruction, possession or taking of specimens of protected wild
fauna or flora species, except for cases where the conduct concerns a non-negligible
quantity of such specimens and has a negligible impact on the conservation status
of the species [art. 3 letter g)]; obviously, this text must be linked to the
requirements of the Convention on International Trade in Endangered Species of
Wild Fauna and Flora12;
- any conduct which causes the significant deterioration of a habitat within a
protected site [art. 3 letter h)];
- the production, importation, exportation, placing on the market or use of
ozone-depleting substances [art. 3 letter i)];
- inciting, aiding and abetting the intentional conduct referred to in art. 3 of the
Directive.
As regards the incrimination technique, the directive insists in the existing
relation between the pollution actions and the effects damaging the natural
elements of the environment. It requires the incrimination of either the damage
caused, confirmed, or an actual risk of damage, that is an immediate and
substantial damage the existence of which must be proved and assessed during the
process. Indeed, from such perspective, such system seems to us less efficient,
given the fact that the proof of the causal relation between the incriminated
conducts and the damages caused to the natural elements of the environment may
be difficult, even impossible to establish during the legal proceedings.
6. Subjective side
The actions mentioned at art. 3 and 4 of Directive 2008/99/EC must be
incriminated if, as regards the subjective side, “are committed intentionally or with
11 See “European Union Official Journal” L 190 of 12 July 2006, p. 1.
12 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES),
enacted in Washington on 3 March 1973; Romania adhered to this convention by Law no. 69/1994,
published “Off. G., Part I, no. 211 of 12 August 1994.
84 MIRCEA DUŢU
at least serious negligence”. Such more restrictive qualification of the fault seems
more adapted to an international system for the environmental protection,
allowing, on one hand, to take into consideration the specific elements related to
the category of actors ad typology of the caution and security obligations, and on
the other hand the tendency to determine the “slipping” of the simple fault of
criminal suppression towards civil indemnity. It should be also noticed that the
term “at least serious fault (negligence)” referred to in the Directive marks a
regression compared to art. 3 para. 1 of the European Council Convention on the
protection of environment through criminal law of 4 November 1998, referring to
criminal offences “committed with negligence”.
Therefore, without having an evolution similar to that in the field of civil
liability for the ecological prejudice, where objective liability, independent of the
fault became rule, the criminal liability keeps its traditional objective nature, as the
author of an environmental damage cannot incur a criminal penalty unless their
liability concerns the imputation of transgressing the law by their will. It is
necessary at the same time to have a relation between the infringement of criminal
law and the will of the damage’s author, such relation representing the subjective
side of the criminal offence.
7. Enforceable penalties
When transposing Directive 2008/99/EC, the EU Member States must take the
measures necessary to ensure the application, for the criminal offences perpetrated
by a natural person, of “effective, proportionate and dissuasive criminal penalties
for the criminal offences mentioned at articles 3 and 4” (art. 5).
The criminal offences perpetrated by a legal person are however subject only
to “effective, proportionate and dissuasive penalties” (art. 7). Therefore, the
Directive does not require establishing criminal penalties for the legal persons,
which may be explained mostly by the intention not to compel some Member
States to amend their domestic legislation in a sense that is unfamiliar to their legal
culture, reluctant to accepting the criminal liability of the legal person. Of course,
nothing prevent them however, given such reluctances are inexistent, to provide
such penalties also as regards legal persons.
Please notice that, initially, the European Commission intended to require the
Member States to provide the punishment by imprisonment or serious fine for the
criminal offences perpetrated “under aggravating circumstances”, respectively
with extremely serious consequences, such as “a substantial damage caused to the
environment”13. Their proposition was amended though by the European
Parliament in the sense of art. 5 and 7 of the Directive, in order to take into
consideration C.J.E.C. decision of 23 October 2008 which, by acknowledging the
13 Proposition de directive du Parlement Européen et du Conseil relative à la protection de
l’environnement par le droit pénal, COM (2007), 51 final, 9 février, 2007, p. 18.
Environmental crime in the Eu: is there a need for further harmonisation… 85
competence of the Community to require the Member States to apply criminal
penalties those liable for damages caused to the environment, has mentioned that
it is not the Union which decided the type and level of the criminal penalties to be
applied. For enforcing such case law, all the provisions concerning the punishment
by imprisonment or the amount of the fine were eliminated from the final version
of the directive enacted on 19 November 2008.
8. Liability of legal persons
Pursuant to art. 6 and 7 of the Directive, the criminal liability of legal persons
may also be incurred in this field. Thus, these ones may be held liable for the
criminal offences mentioned at art. 3 and 4, in the event the same were perpetrated
to their benefit, by any person who held a management position therein and acted
either individually, or as member of a body within the legal person, based on: a) a
mandate granted by the legal person; b) a prerogative to make decisions on behalf
of the legal person; or c) a prerogative of control within the legal person. In
addition, art. 6 para. (2) shows that legal persons must be able to be held liable
where the lack of supervision or control, by a person referred to above made
possible the perpetration of a criminal offence referred to in art. 3 and 4, for the
benefit of the legal person by a person under its authority (a combination of
mechanisms of the legal person’s criminal liability and of the criminal liability so-
called “for the actions of another person”). Finally, para. (3) of art. 6 of the
Directive provides that “liability of liability of legal persons under paragraphs (1)
and (2) shall not exclude criminal proceedings against natural persons who are
perpetrators, inciters or accessories in the offences referred to in Articles 3 and 4”.
Given the legal regime under the Directive regarding the applicable penalties
and the precaution taken in this way for limiting the harmonisation of the criminal
liability of the legal persons in the field of environment, some clarifications are
needed. The declared objective of Directive (art. 1) is to establish “measures
relating to criminal law in order to protect the environment more effectively”. The
measures provided are, on one hand, the incrimination for the criminal offences
listed at art. 3 and 4, and, on the other hand, the provision of the related penalties
at art. 5 and 7 of the Directive.
The discrepancy between the criminal nature of the actions and the nature not
defined at Union (Community) level of the penalties that must be applied by the
domestic legislation concerning the legal persons, starts from the differences
existing in the field of criminal offences’ system in the domestic law of the EU
Member States. Thus, when dividing these ones in three categories: offences,
crimes and murders, the range of the criminal penalties, meaning punishment
(imprisonment, criminal fine, and so on) is wider. On the contrary, according to a
“monist” concept, criminal action may be only a criminal offence, and the penalty
only a criminal penalty, a series of quantitative adjustments are required,
regardless the criminal or administrative nature, which is formally established in
the domestic law.
86 MIRCEA DUŢU
9. Extended harmonisation or new enforcement instruments?
As their cross-cutting vocation and a more precise repressive content are
acknowledged, the European texts in this field are however criticised, firstly
because they remain accessories to and dependent on the environmental
administrative rules.
Thus, the European Council Convention of 4 November 1998 does not provide
autonomous incriminations, except for the actions perpetrated intentionally, of
discharge, emissions or introduction of substances or ionising radiation into air,
soil or water, which cause death or serious injuries to persons.
The other foreseen criminal offences are tributary to the domestic regulations,
meaning that they depend on a prerequisite for the criminal offence, which may
vary according to each State14.
By enacting Directive 2008/99/EC, EU law took-over such a legislative
technique, and established repressive common rules for the environmental
protection, but maintained the accessory nature of the criminal offences: defined at
EU level, the incriminations that the 28 Member States must transpose concern
conducts that are already qualified as illegal by the domestic law, which leaves a
wide margin of appreciation to the Member States when finalising the related
criminal legislation.
From such perspective, the conclusion reached is that, as regards the
substance, this EU directive does not have for object either the harmonisation of
the environmental criminal law, or the provision of minimal criminal penalties in
order to protect the ecosystem, but purely and simply to better ensure the defence
of the existing European environmental rules, of an administrative nature, which
are wrongly transposed in the Member States15.
Thus, even the objective of the European Union criminal text (whereas 14)
established thus the absence of an autonomy of the regulations contained therein.
Nevertheless, the unifying vocation of Directive 2008/99/EC cannot be entirely
denied, at least as concerns the obligation provided for the Member States to
undertake criminal measures for the listed actions affecting the environment (art.
3), which establish the criminal liability and prosecution of the legal persons (art. 6)
and take note of the international, cross-border size resulting either from the
seriousness, or the cross-border nature of the environmental crimes.
Besides these remarks and findings, we may affirm that by Directive
2008/99/EC, in the 28 EU Member States, a crystallisation process started for a
common law of the environmental protection through criminal law. This
document summarises the conducts that the Member States must qualify as
14 G. Gaudicelli-Delage, Le droit pénal de l’environnement, l’exception européenne, RSC, 2005,
p. 767.
15 P. Beauvais, Les limites de l’internationalisation du droit pénal de l’environnement, in: L. Neyret
(sous la direction), „Des écocrimes à l’écocide. Le droit pénal au secours de l’environnement”,
Editions Bruylant, Bruxelles, 2015, p. 13-14.
Environmental crime in the Eu: is there a need for further harmonisation… 87
(criminal) offences, and as regards the punishments, the Member States are invited
to apply “effective, dissuasive and proportionate” penalties, leaving the States a
national margin for appreciation and consequently limiting only partial the risk of
environmental dumping.
This approach could continue even through the reform of the system
established under the directive of 2008, in the sense of consolidating the
harmonisation level, pursuant to art. 83 (1) of the Treaty on the functioning of the
EU which provides the possibility to set forth “minimum rules concerning the
definition of criminal offences and sanctions in the areas of particularly serious
crime with a cross-border dimension resulting from the nature or impact of such
offences or from a special need to combat them on a common basis”, given that, for
instance, in the field of organised criminality, sometimes the money gained are
“invested” in environmental criminality. At the same time, it would be possible to
have in view an extension of EU competences in the field of environmental
protection through criminal law, by adding environmental crimes on the list of
types (categories) of criminality mentioned at art. 83 (1) of TFEU as expressing a
consolidated competence and which includes already fields such as: terrorism,
money laundering, computer crime, or organised crime.
As the doctrine has also noticed, this movement of unification/harmonisation
initiated and about to be promoted at European level should be continued or, at
least, connected to the one existing or foreseen at international level, all the more so
that the environmental criminality is global in many respects and necessarily
involves, in order to be efficiently prevented and combated, becoming close to all
domestic laws.
Several arguments plead to this effect, and to draft and enact an international
convention on the fight against environmental crimes, conceived in addition to and
by taking-over certain elements asserted as valid at European level, could represent
a reasonable solution. Firstly, the existence of such international instrument would
allow mentioning the path for the incrimination of the reduced environmental
offences, as a mean to protect it, where the current texts are seldom refer to criminal
law and where the system of existing penalties is not sufficient to limit the growth of
such criminality. Then, an international treaty in this field would allow regrouping,
in a sole instrument, the conducts for which the States should provide a criminal
answer, given that the international law of environmental offences is disseminated
today in several instruments. Finally, a convention dedicated to the fight against the
environmental criminality would represent the opportunity to establish a common
law of environmental protection through criminal law, gradually, depending on
common criteria concerning the importance of the values being protected, on the
seriousness of the damage, the illegality of the conduct of the criminal offence’s
author or the seriousness of the guilt.
From the perspective of the legal and political realism and in order to be able
to ensure the adhesion of many States to such international convention, it would be
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advisable to leave them a sufficient minimum national margin of appreciation,
resulted from the right to be different and the need to observe the acceptable
national specificities. Thus, it would be allowed to have an internal accompanying
system, lawful and efficient, for the criminal environmental protection.
Where certain offences to the environment are deemed acceptable by the
international community, based on criteria of tolerance, of public, social, economic
or cultural order, the agreement may be reached and the cooperation may be
developed; on the contrary, the negotiation and the concessions cannot be accepted
where the essential interest of the planet and of human kind would be prejudiced.
Conclusions
Unlike other fields, the environmental protection through criminal law is still
mainly marked by the principle of national sovereignty. However, in this field too,
the State’s margin of action started to meet significant constraints, as effect of
undertaking obligations resulting from pertinent international law and case law.
Currently, no general rule exists at international level to incriminate the offences
against the environment, as the only legal texts are limited to provide
incrimination obligations of a sectorial nature (sea, certain species).
At European regional level, the Convention of the European Council of 4
November 1998 and Directive 99/2008/EC are a singular example of
harmonisation of the criminal legal regime for the environmental protection, but
their efficiency remains uncertain, since the first document has never entered into
force, and the contents of the second one is still far from being transposed fully and
properly in the domestic laws of the 28 Member States, in the letter and the spirit of
it. In addition, and especially at international level, but also at the European
Union’s level, the environmental protection through criminal law is still essentially
based on accessory, dependent incrimination rules.
Given the insufficiency of the harmonisation measures adopted at
international and European Union level, the centre of gravity of such
preoccupations moved into the domestic laws. Firstly, because it represents a
superior social interest, the right to a healthy and ecologically balanced
environment being recognised as a fundamental human right, the environmental
protection through criminal law requires an enhanced consolidation, worthy of the
legislative and constitutional rank of that value. But facing the abundance of the
existing incriminations, spread in various special sector regulations, accompanied
by diverse procedural and repressive mechanisms, the criminal answer remains
chaotic and, therefore, still less efficient.
Unfortunately, the transposition of directive 2008/99/EC in the domestic laws
of the 28 EU Member States did not mean an actual reform of the environmental
criminal law, fitting the ambitions of the European Union text. This operation was
most often expressed through the enactment of a special regulatory deed risking
Environmental crime in the Eu: is there a need for further harmonisation… 89
thus to remain “foreign matter”, a document for “showcase” regarded and
perceived as such, respectively, rather a reference framework of the legislator and
less of the judge, a “model law”, and not a “common law”, enforceable as any
national legal provision. This did not represent the opportunity, as it could and
should have been, for a review and restructure of the entire environmental
criminal legislation, by eliminating the regulations that were not in line with the
EU acquis to the extent these are imperatively required by the specific nature of
this field and other pertinent circumstances, as well as representative creative
developments.
Therefore, the rule was, this time too, the way of a minima transposition,
everything being reduced especially to simple adjustments and partial complements
of the internal legislations in this field, dispersed, mentioning the pre-existing
situation, far from the coherence, proportionality and efficiency required from the
condition of making autonomous, of expressing and using the specific nature of a
criminal law of the common (European) environment. Thus, the transposition meant
rather a simple fulfilment of an obligation at European Union level, missing a major
opportunity for a substantial reform of the law in this field.
However, we cannot ignore also the positive impact of directive 2008/99/EC
on the environmental criminal law of the Member States, which was mainly
expressed through the establishment of new incriminations, the diversification and
aggravation of the penalties applied, the express provision of the criminal liability
to be incurred by the public officers with duties in the field of environment or the
generalisation of the criminal liability of legal persons in this field.
Under such circumstance, wishing to ensure a more efficient suppression of
ecological delinquency in some Member States of the EU, some actions were
undertaken for the simplification and harmonisation of the pertinent domestic
legislation16. At the same time, in the same sense of adequacy and clarification of
the criminal reaction, there are actions undertaken also for establishing a general
incrimination for the environmental protection, with specific developments in the
sector, of harmonising, on one hand, the procedural rules of prosecution and
ascertainment of ecological crimes, and on the other hand of the suppression
mechanisms available to the judge. Indeed, even if it is possible, in general, to
reach in this way a harmonisation and recovery of the repressive arsenal, it is not
however a reform on its substance, which could transform the existing regulations
into a genuine criminal law of the environment. For founding an approach able to
get to such major result, a determinant part is played by the complex scientific
16 As, for example, in France the ordinance no. 2012-34 of 11 January 2012 on the
simplification, reform and harmonisation of the provisions of the Environmental Code concerning
the administrative and judicial police; for theoretical considerations, see: V. Jawarski, La volet pénal
de l’ordonnancé no. 2012-34 du 11 janvier 2012, in „Revue juridique de l’environnement”, no. 2/2013,
p. 221-236.
90 MIRCEA DUŢU
researches that, further to a systematic approach, may formulate coherent
propositions concerning the establishment of a new criminal legal response,
articulated at national, European Union and international level, properly and
efficiently, to the ecological criminality17.
17 It is the case, for instance, of the French group of jurists-researchers, lawyers, magistrates –
coordinated by Prof. L. Neyret, who suggested a graduate and efficient system of environmental
protection through criminal law, from a double perspective, both national and international, which
was the subject of the paper Des écorimes à l’écocide. Le droit pénal au secours de l’environnement (Ed.
Bruylant, Brussels, 2015). The research ended up formulating 35 propositions for a better
penalisation of the crimes against environment, regrouped in a report for the concerned parties and
formally expressed in two drafts of international conventions, one on the fight against common
environmental crimes, called “eco-crimes”, and another on the extraordinary environmental
crimes, such as ecocide. The evolutions foreseen by the work group go towards a simplification of
the international criminal law and an internationalisation of the environmental protection through
criminal law. At national level, the proposition is to decriminalise the criminal offences against the
environment that are simply administrative, the establishment of a general criminal offence against
the environment, as well as the setting-up of an independent High environmental authority. At
international level, it is deemed to be opportune to establish an ecocide crime, to make liable the
transnational enterprises, to facilitate the access of the civil society to justice and, more widely, to
prepare the ground for a global environmental criminal justice by means of, inter alia, appointing an
International prosecutor for the environment, thinking on the idea to create a Group of Research
and Enquiry on the Environment (GREEN), as well as creating an International indemnity fund for
environment and public health. These propositions are intended to serve as “a force to encourage
the construction of a criminal law of the future, or the utopia to see the environment “secured” by
the criminal law, become reality”.