In its 2021 work programme, the European Commission announced a revision of Directive 2008/99/EC on the protection of the environment through criminal law, which was scheduled for the fourth quarter of 2021.

Directive 2008/99/EC, adopted in 2008, aims at enhancing compliance with the EU environment protection legislation by providing for minimum common rules on criminalisation of serious violations of the environmental laws listed therein and requires effective, proportionate and dissuasive sanctions. It foresees liability of both natural and legal persons. The Directive encompasses a broad range of illicit activities such as the illegal emission or discharge of substances into air, water or soil, illegal wildlife trade, the illegal shipment or dumping of waste, as listed in the two annexes to the directive. 

The Commission conducted an evaluation of the directive during 2019 and 2020 which found the Directive had not fully met its objectives and that significant divergence remains between Member States.

In December 2020, the Commission published a roadmap of its initiative to improve EU rules on environmental protection through criminal law, including an inception impact assessment.

The Commission conducted a public consultation on ways to improve the 2008 Directive between February and May 2021, which gathered around 500 contributions. On 15 December 2021, the Commission issued a legislative proposal for a new Directive on the protection of the environment through criminal law, open for public consultation until 21 April 2022. The proposal, based on Article 83(2) TFEU, introduces new categories of environmental crimes, sets a minimum maximum level for sanctions, introduces ancillary sanctions and defines aggravating circumstances. It also aims to strengthen the enforcement chain, through more dedicated resources, training, effective investigation tools, cross-border coordination and cooperation but also between authorities within Member States. It also obliges Member States to collect reliable statistical data and to support and assist people who report environmental offenses and cooperate with law enforcement.

Within Parliament, the legislative proposal was assigned to the Committee on Legal Affairs (JURI), with MEP Antonius Manders (EPP, Netherlands) designated as rapporteur. On 12 October 2022, the rapporteur issued his draft report. The Committees on Environment, Public Health and Food Safety (ENVI), on Development (DEVE), on Petitions (PETI) and on Civil Liberties, Justice and Home Affairs (LIBE) provided opinions.

On 9 December 2022, the Council adopted its general approach, having agreed on the level of sanctions for natural and legal persons. For natural persons:

• for intentional offences causing death, a maximum prison term of at least ten years,
• for offences committed with at least serious negligence causing death, a maximum prison term of at least five years,
• for other intentional offences included in the legislation, a maximum prison term of either at least five years or at least three years.

For legal persons:

• for the most serious offences, a maximum fine of at least 5% of the legal person's total worldwide turnover, or alternatively €40 million,
• for other offences, a maximum fine of at least 3% of the legal person's total worldwide turnover, or alternatively €24 million.

The Council set the transposition deadline at 30 months, compared to 18 months in the Commission's proposal.

On 21 March 2023, the JURI Committee adopted its report unanimously. It added new offences to the list in the proposal, such as cultivation of genetically modified organisms, conduct causing forest fire and illegal, unreported and unregulated fishing. For natural persons, the report foresees at least 10 years imprisonment for offences leading to death or harm to health and substantial environmental damage, with others incurring four or six years depending on their extent, seriousness and duration. Legal persons may be punished  by fines of at least 10% of their average worldwide turnover in the three previous business years.

On 17 April 2023, the plenary of the Parliament confirmed the Committee decision to enter into interinstitutional negotiations based on the position expressed in the JURI report. 

At the latest trilogue meeting on 16 November 2023, the co-legislators reached a provisional agreement on the draft directive which:

• now includes an offence related to the manufacture, use, and trade of mercury and mercury products, but leaves out violation of GMO legislation, unauthorised and illegal fishing, and conduct causing forest fires;
• introduces a "qualified offence", which results in the destruction of or widespread and substantial damage of an ecosystem or habitat in a protected site, or to the quality of air, soil or water;
• provides that natural persons responsible for environmental offences causing death may be sentenced to 10 years in prison, that qualified offences will be punishable by 8 years imprisonment, and that for most other offences the penalty would be 5 years in prison;
• provides that legal persons may be fined up to 3% or 5% of the company's annual worldwide turnover, or with fixed amounts of 24 million EUR or 40 million EUR - a choice to be made by Member States.
• stipulates that the directive must be transposed into national law within 24 months of its entry into force.

The JURI Committee endorsed the provisional agreement on 11 December 2023 with 16 votes in favour and 4 against. The European Parliament adopted the agreement in plenary on 27 February 2024. The Council formally adopted the directive on 26 March 2024. The final act was signed on 11 April 2024 and published in the Official Journal on 30 April 2024. It entered into force on 20 May 2024.

References:

• European Parliament, Protection of the environment through criminal law, Legislative observatory, April 2024
• European Commission, 2021 Commission Work Programme, October 2020.
• European Commission, Proposal for a Directive of the European Parliament and of the Council on the protection of the environment through criminal law and replacing Directive 2008/99/EC
• Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law
• European Commission, Evaluation of the Environmental Crime Directive, 5 November 2020
• European Commission, Environmental crime – improving EU rules on environmental protection through criminal law, Roadmap, 1 December 2020
• European Commission, Environmental crime – improving EU rules on environmental protection through criminal law, Public consultation, 8/02/2021-03/05/2021
• European Parliament Legislative Observatory, Protection of the environment through criminal law, 2021/0422(COD)
• European Economic and Social Committee, Improving environmental protection through criminal law, 23 March 2022. 
• Council of the EU, Proposal for a Directive of the European Parliament and of the Council on the protection of the environment through criminal law and replacing Directive 2008/99/EC - Progress report, 12835/22, 30 September 2022.
• Council of the EU, Proposal for a Directive of the European Parliament and of the Council on the protection of the environment through criminal law - General approach, 15006/22, 25 November 2022.

Further reading:

• Revision of Directive 2008/99/EC: Protection of the environment through criminal 
  law, EPRS briefing, March 2023
• Revision of Directive 2008/99/EC on the protection of environment through criminal law, EPRS briefing, November 2021
• Environmental crime directive, EPRS briefing, Ex-ante impact assessment, April 2022.
• Fighting Environmental Crime in Europe - Preliminary Report, AMBITUS project, Istituto Affari Internazionali, 2020
• Victims of environmental crime, EP Library briefing, 2012

Author: Beatrix Immenkamp, Members' Research Service, legislative-train@europarl.europa.eu