Criminal Law As An Enforcement System Of The Environmental Acquis

Criminal Law As An Enforcement System Of The Environmental Acquis Presented by: Mr. Faure Date: 9 March 2023 The Costs Of Environmental Crime - Not only high costs; also high gains for perpetrators: - EUROJUST: annual revenues from illicit waste in the EU: € 4-15 billion/year - From illegal eel trade: € 4,7-31,4 million/year Task For The EU? - From an economic perspective: certainly! - Economic criteria for centralization: - • Cross-border externalities • Danger of a race-to-the-bottom Are there? • Cross-border externalities with environmental crime: certainly! • Race-to-the-bottom (MS competing to attract industry with inefficiently low standards or enforcement and industry reacting with re-localization): little data, but also likely Development Of Eu Environmental Law, But Lacking Implementation - Massive development of EU environmental acquis - But strong implementation deficit: - Between 1978 and 2016: 2.341 infringement cases related to environmental policy (Börzel) - Tip of the iceberg? - Environment is the champion! Hence: 2 Good Reasons For EU Involvement With Environmental Crime - Genuine concern with environmental crime, creating minimum level of environmental criminal law - And/or: - Criminal law as an enforcement system of the environmental acquis (i.o.w. as an instrument to improve implementation) But... Was There EU Competence? - In the 1990s: not obvious - For environmental policy: yes - Single European Act (1987) - For harmonizing environmental criminal law: less clear First Initiative: Not EU, But Council Of Europe - Council of Europe Convention (1998): on the protection of the environment through criminal law - Contents: minimum provisions on the protection of the environment through criminal law - A graduated punishment approach with a toolbox (administrative sanctioning/criminal enforcement) and an independent crime aimed at serious pollution - Not entered into force - Convention largely in line with predictions from environmental criminal legal doctrine What About The EU? - Before Lisbon, complicated pillar structure - First initiative: 2000 (Denmark) in the third pillar to target "serious environmental crime" - At the same time... EU COM Proposal (13 March 2001): a Directive on the protection of the environment through criminal law. Goal: a more effective application of community legislation (i.e. improving implementation) - Council (27.1.2003) Proposal for a framework decision (third pillar) on protection of the environment through criminal law Different Goals Are Obvious - Third pillar initiatives (Denmark + proposed framework decision): genuine protection of the environment (inspiration: Council of Europe Convention) - EU COM Proposal: criminal law as tool for more effective application of environmental acquis - Hence: conflict! The (Then) ECJ Decides - 13.9.2005: • "(Although) as a general rule neither criminal law, nor the rules of criminal procedures fall within the community competence... the last-mentioned finding does not prevent the community legislature, 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 Member States which it considers necessary in order to ensure that the rules which it lays down on environmental protection are fully effective". - But... 23.10.2007 • "By contrast and contrary to the submission of the Commission, the determination of the type and level of the criminal penalties to be applied does not fall within the community's sphere of competence". Outcome Of The Conflict: - Green light for an ECD! - When effective, proportionate and dissuasive criminal penalties are essential to combat serious environmental offences, criminal law may be prescribed if it is necessary to ensure compliance with the environmental acquis - But no competence to determine the type and level of the criminal penalties The ECD: Brief Sketch - Directive 2008/99 of 19.11.2008 - Art. 3: particular conducts should constitute a criminal offence "when unlawful and committed intentionally or at least with serious negligence" - Art. 2: unlawfulness is an act which violates European environmental directives or domestic (administrative) environmental law, implementing the directives - Strong belief in criminal law: Recital 3: • "Criminal penalties demonstrate a social disapproval of a qualitatively different nature compared to administrative penalties or a compensation mechanism under civil law" - So: no mention of administrative penalties/fines... Critical Points - Unlawfulness requirement: no autonomous, independent crime (allowing criminal liability in the absence of a violation of administrative obligations) - Compliance with permit/regulation: no criminal liability - No toolbox approach (advocated in literature and introduced in many MS, where criminal law is considered as ultima ratio) - No duty to collect data, so: • No info on:  Number of inspectors/inspections  Number of installations to be controlled  Number of violations  Number of sanctions imposed  Type and size of the penalties • - Result: (potential) race-to-the-bottom not cured! No harmonization of level and type of penalties: • Not the main issue • Lacking data on effective compliance more problematic • Even if penalties harmonized, differences will remain in practice, given (unavoidable) discretion - Evaluation November 2020 of ECD in SWD: problems with the effectiveness of the ECD in reducing environmental crime. Lisbon Treaty 2009 - Bad news: Art. 83(1): environmental crime is not a Euro-crime ("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") - But, for example money laundering, corruption, computer crime are... - Good news: Art. 83(2): legal basis for "minimum rules with regard to the definition of criminal offences and sanctions in the area concerned" New Proposal 15.12.2021 - Strong points: • Toolbox approach: Recital 22: "Judicial and administrative authorities in the Member States should have at their disposal a range of criminal sanctions and other measures to address different types of criminal behavior in a tailored and effective manner" - Focus on data - Proposed Art. 21 obliges MS to collect statistical data inter alia on: • Number of environmental crime cases • Average length of investigations • Convictions • Number of persons convicted • Cases dismissed • Types and level of sanctions - Harmonization of sanctions - But... "Without prejudice to the discretion of judges or courts in criminal proceedings" - But... still weaknesses - Unlawfulness still required (Art. 3). Only exception: "When the authorization was obtained fraudulently or by corruption, extortion or coercion". Very limited... - Art. 8 (aggravating circumstances), e.g. • Causing death or serious injury to a person • Causing destruction or irreversible or long-lasting substantial damage to an ecosystem - Only punishable when unlawful - Hence: ecocide not punishable when covered by a permit! - Council (9.12.2022) made it worse: • Struck out exception "when authorization was obtained fraudulently or by corruption, extortion or coercion" - Causing death or serious injury to a person removed as aggravating circumstance Back To The Beginning - Data: environmental crime leads to high social costs in the EU - There are still cases of serious pollution with health damage for the population where the criminal law cannot offer protection because of compliance with permit. - - Examples: • Tata Steel (Netherlands) • Chemours/Dupont (Netherlands) • Umicore (Belgium) • Bulgaria, Italy, Romania... Criminal liability should also be imposed in cases of serious environmental pollution leading to concrete danger to human health, even when emissions are covered by regulation or a permit - Hence: we need: Autonomous Environmental Crime - Criminal liability applicable in exceptional cases of serious pollution • - E.g. emissions causing concrete damage to human health (e.g. led poisoning) Could not be justified under administrative law, so regulatory failure - Independent intervention of criminal law important - Signaling effect and providing incentives to operators to do research to prevent harm, even when complying with permit - - Many examples of autonomous environmental crime: • In Council of Europe Convention (1998) • In MS (e.g. § 330a StGB) Criminalize in a smart way, i.e. compatible with lex certa principle Question Of Competence Might Pop Up Again - Can autonomous environmental crime be introduced in the (revised) ECD? - Is there an EU competence if no breach of environmental acquis? - Important argument to add environmental crime to list of Euro-crimes (Art. 83, al. 1) - A smart legislative formulation needed: • Still requiring breach of environmental acquis, but explicitly accepting (autonomous) criminal liability in case of serious environmental pollution/ecocide • Some cases may amount to human rights violations, hence a potential call on the Charter of Fundamental Rights Crucial Issues - On which EP is discussing as we speak - Of course, other alternatives possible to improve EU ECD to take environmental crime seriously My Wishlist/Recommendations - To include environmental crime in the list of Euro-crimes. Why would corruption/money laundering be more important than environmental crime? - But: unanimity in the Council + previous consent of the EP required - Introduce autonomous criminal provisions for (exceptional) cases of serious pollution (amounting to ecocide) - Ideally: if you want to solve implementation problem: provide powers to the EU level (EPA) to control compliance directly in Member States: • If possible for e.g. fisheries, why not for all environmental law? • If not, let EU level at least monitor inspections at MS level • How to do smart enforcement perfectly regulated in Recommendation 2001/331 (providing minimum criteria for environmental inspections in the MS). Turn that into a Directive! - Otherwise: • Danger that environmental crime will prevail and • There might be a race-to-the-bottom CONCLUDING - Criminal law plays limited, but important role in the toolbox - Can play a modest, but important role to enforce the environmental acquis - But also needed as a genuine remedy against environmental crime - New Proposal takes important steps in right direction, but... - All depends on whether MS want to take fight against environmental crime seriously - Environmental crime should be taken seriously to achieve: