It is time to reinforce environmental criminal law, says the EESC

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CESE Session Plèniere Décembre 2019

The EESC considers it crucial to improve implementation of the Environmental Crime Directive to ensure the best possible environmental protection in the EU

The Commission is reviewing the Environmental Crime Directive (ECD) under "better regulation" procedures, and is currently in the consultation phase. The European Economic and Social Committee (EESC) was asked to draft an information report to assess the results of the Environmental Crime Directive over its lifetime (2011-2018), focusing on its effectiveness and relevance, and the added value of involving civil society.

There were several reasons behind the adoption of the ECD in 2008, including contributing to more effective protection of the environment and ensuring a level playing field in the Member States by harmonising criminal offences. But most importantly, the ECD had the scope to ensure effective, proportionate and dissuasive criminal penalties in all EU countries.

If the aim of the ECD was to harmonise EU environmental law, why does the transposition of the directive and its implementation present so many discrepancies between the Member States?

The ECD is a "minimum standards directive", in other words it only sets out a minimum level of environmental protection that the Member States have to ensure through criminal law. The countries are then free to maintain or introduce stricter protective measures.

This meant, for example, that France decided not to transpose the ECD, as it considered that the French legal system already met the requirements of the Directive. On the one hand, this decision resulted in gaps in the criminalisation and sanctioning of air pollution. On the other hand, the environmental criminal system is effective and has a strong deterrent effect with regard to water and marine pollution, as France applies the "compensation for environmental damage" principle.

What are the problems with EDC implementation, and how can they be solved?

Based on the data collected during its five fact-finding missions to France, the Czech Republic, Hungary, Portugal and Finland, the EESC identified a number of flaws in implementation that appear to be common to all Member States.

For instance, in Finland, only 4% of all alleged environmental crimes are prosecuted. The low conviction rate suggests that environmental crimes are not taken sufficiently seriously. Administrative sanctions are also considered ineffective in punishing and preventing crimes, leading to a sense of impunity among perpetrators.

In Hungary, representatives of environmental organisations and public authorities also mentioned that there was a need to raise awareness among judges and public prosecutors of issues relating to environmental crimes and preventative measures.

Training for the judiciary (prosecutors and judges) has therefore been highlighted as a real and urgent need. The EESC believes it would be useful to have specialised courts, which would be a cost-effective way of allowing magistrates to increase their competence and to be better able to deal with environmental cases.

In the Czech Republic, the need to create specialised bodies for environmental crimes, or strengthen existing ones, was stressed, as stakeholders considered it difficult to collect sufficient evidence for criminal court cases due to the police's lack of resources. For this reason, there is a need for expert knowledge, as well as specialised laboratories.

We lack human and financial resources!, says EESC rapporteur Arnaud Schwartz. We need a police force specialised in environmental crime, conducting independent investigations that could assist the courts with environmental expertise, particularly in defining and monitoring remedial measures.

This becomes even more striking when it comes to investigating cross-border environmental crimes. Indeed, major criminal networks normally operate across several countries.

Since there are no physical boundaries for environmental crimes, all Member States should use the same procedures, and business should have the same responsibilities in all countries in which they operate. The lack of a centralised environmental crime unit is also seen as an obstacle for investigating international environmental crime incidents.

The need to improve cross-border relations in this area is seen as particularly urgent in Portugal, where three of the five major rivers that cross the country originate in Spain and water pollution is a big threat especially during years of severe drought.

The EESC also maintains that Member States should improve the conditions under which the victims of environmental damage may take collective legal action. The EESC would therefore have welcomed the inclusion of environmental criminal law issues in the European New Deal.

Finally, the EESC recommends that the ECD should be revised. Improvements could be based on:

  • the most recent EU treaties that allow the application of sanctions;
  • new types of criminal conduct (such as environmental cyber-crime);
  • a scale of minimum sanctions for natural and legal persons that actually play a deterrent role in preventing the commission of environmental crimes.

If the EU wants to take the lead and improve environmental protection through criminal law, it has to be more ambitious in its legislation as well as give the Member States the necessary judicial tools to make it a reality.

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