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The EU has taken the ambitious step and enacted the revised Environmental Crime Directive (“revised ECD).
The revised ECD forms part of the European Green Deal, which pledged to preserve and protect the biodiversity and ecosystems, reduce pollution and improve waste management. Its scope extends to many facets of environmental protection, including air quality, water, soil, and ecosystem preservation, among others.
Historically, the prosecution of environmental crimes in the EU has been low. To facilitate more effective enforcement, the revised ECD defines new environmental offences and introduces new penalties that will apply across the EU. It also introduces measures to prevent and combat environmental crime and ensure effective enforcement of EU environmental law. A key objective of the revised ECD is to bolster prevention and deterrence strategies against environmental crime, ensuring that both businesses and individuals align themselves with practices that promote environmental sustainability. New environmental offences can be prosecuted both before criminal jurisdictions and administrative authorities.
The revised ECD will replace the Environmental Crime Directive 2008 as well as Directive 2009/123/EC on ship-source pollution.
The new offences introduced by the revised ECD include:
For conduct to constitute environmental crimes at EU level, it must be unlawful (i.e., in breach of EU environmental law or of national laws giving effect to such EU law), and be intentional or, in certain cases, committed with serious negligence.
In some cases, conduct will only be considered to be an environmental crime if it causes (or is likely to cause) death or serious injury to a person or substantial damage to air, water, soil, ecosystem, animals or plants. More severe penalties may be imposed where the conduct results in the destruction of or widespread and substantial damage to a sizeable, valuable or protected ecosystem, or causes widespread and substantial damage which is either irreversible or long-lasting.
Criminal penalties may be imposed on the perpetrators of illegal conduct (both natural and legal persons are in scope), as well as non-criminal penalties, such as an obligation to restore the environment or compensate for the damage, fines, exclusion from access to public funding, an obligation to establish due diligence schemes for enhancing compliance with environmental standards, publication of the judicial decision, and so on. Criminal proceeds resulting from the conduct must be frozen and confiscated.
In addition, civil society and NGOs that promote environmental protection are to be given appropriate procedural rights to bring civil proceedings in relation to such offences.
The revised ECD was published in the Official Journal of the EU on 30 April 2024 and came into force on 20 May 2024. Member States (apart from Ireland and Denmark, for which different rules apply) will need to transpose the revised ECD into their national law by 21 May 2026, although they remain free to adopt or maintain more stringent rules in the area of criminal law.
We have published a full review of the revised Directive and its likely impact on our Sustainable Futures blog. Please click here to read our full report.
24 May 2024
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