EU’s new rules to protect the environment through criminal law entered into force on May 20, to help achieve European Green Deal objectives by fighting against the most serious environmental offences.
The new Directive provides a list of environmental offences addressing the most serious breaches of environmental obligations. Member States will have to ensure that these breaches constitute criminal offences in their national law. The Directive introduces several new offence categories, such as unlawful ship recycling, unlawful water abstraction, serious breaches of EU chemicals and mercury legislation, serious breaches related to dealing with fluorinated greenhouse gases, and serious breaches of legislation on invasive alien species.
The revised Directive
As Alexandra N. Couvadelli, Senior Lawyer Defence Global, Gard P&I club explains, the new and revised Directive aims to establish a framework that is similar in all EU member states and is designed to increase the effectiveness of investigation and prosecution of environmental crime across the EU.
The scope of the Directive is now also much wider, with the number of criminal categories increasing from 9 to 18. Of relevance to the shipping community, the offenses include:
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the ship-source discharge of polluting substances,
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ship recycling that does not comply with EU regulations,
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the introduction and dissemination of invasive alien species on EU territory,
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the illegal shipment of waste.
Additionally, the Directive calls on Member States to criminalize the incitement, aiding or attempt to commit any of the crimes above. The Directive also still includes corporate liability for specific pollutant behaviors.
Tougher penalties
One of the goals of the revised Directive is to harmonize penalty levels across all Member States. It also seeks to establish minimum penalty levels, proportionate to the crime, Alexandra N. Couvadelli notes.
For natural persons, the maximum prison sentence is up to 10 years for offences which may have caused or are likely to cause death or serious injury. For legal persons, the minimum penalty should be no less than 3% of the total worldwide turnover of the corporation in the business year preceding the fining decision.
The revision also introduces certain ancillary penalties and measures for both natural and legal persons including obligation to rehabilitate polluted or damaged areas.
Obligations at a national level
Since the new Directive entered into force on 20 May 2024, Members States now have two years to take the necessary actions to incorporate the directive into their national laws.
Each Member State is obligated to present annual statistics that include the number of environmental crime cases reported as well as the respective national strategies for combating environmental offenses, Alexandra N. Couvadelli reminds.
