Updated Environmental Crime Directive to enter into force

Updated Environmental Crime Directive to enter into force on 20 May

According to European Commission, new rules to protect the environment through criminal law will enter into force on May 20.

As explained, the new Environmental Crime Directive will help achieve European Green Deal objectives by fighting against the most serious environmental offences, which can have devastating effects on both the environment and human health, through means of criminal law.

“What We Know About Maritime Environmental Crime” report, states that maritime environmental crime refers to criminality which takes place in the sea and that has a harmful impact on the marine environment. While this encompasses many different crimes, three of the most common and most significant are maritime pollution, illegal dredging and seabed mining, and illegal, unregulated, and unreported (IUU) fishing.

The new Directive will provide for a comprehensive and up-to-date 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.

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The new 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.

According to West of England P&I Club, for pollution caused by ships to constitute an environmental crime under the ECD, it must be unlawful and intentional, or in certain cases, committed with “serious negligence”. The revised ECD does not define “serious negligence”-Recital 27 provides that its meaning should be interpreted in accordance with national law.

As explained, this means that the liability threshold under the ECD does not align with MARPOL, which requires an “intent to cause damage or recklessly and with knowledge that damage would probably result” and UNCLOS, which provides vessels with a right of innocent passage in territorial waters unless an act of “wilful and serious pollution” occurs. This lower and less precise threshold could result in a lack of uniformity in approach across Member States. As all member States have implemented MARPOL into their national laws and have already provided sanctions (including criminal), these may continue to be applied in relevant cases.

The new rules further include provisions on strengthening the enforcement chain to combat environmental crime. Practitioners combating environmental offences shall have access to sufficient resources and appropriate training. The new Environmental Crime Directive will also ensure support and assistance to environmental defenders in criminal proceedings.

This landmark law is the first of its kind. It will ensure that the most severe breaches of environmental rules are considered as crimes and that the key role of environmental defenders is acknowledged.

…commissioner for the Environment, Oceans and Fisheries, Virginijus Sinkevičius, said.