New EU Directive on the protection of the environment increases offenses under criminal law

Introduction

With the exponential increase in crimes damaging the environment, the EU has stepped up to the plate and approved the new Directive (EU) 2024/1203. It repeals Directives 2008/99/EC and 2009/123/EC and was formally adopted by the Council of the European Union on 26 March 2024. It was published in the Official Journal of the European Union on 30 April 2024.¹

The legislation is deemed essential because of the catastrophic consequences caused by unscrupulous conduct that’s rarely effectively addressed by the justice systems of Member States. The new directive aims to confront profit-driven activities in Europe that harm the environment.

The new legislation:

• provides a definition of an ecosystem;
• lists new environmental offences;
• identifies special qualified offences;
• establishes aggravating and mitigating circumstances;
• provides tailor-made penalties (including ancillary penalties binding also legal entities); and
• provides for a prescription period aimed at optimizing the prosecution of environmental crimes.

As is clear from Article 1, the Directive has a minimum harmonization intent by leaving wide implementation options to Member States. This may provide for more stringent provisions in tackling environmental crimes in transposing the Directive.

 

Defining an ecosystem

Article 2 of Directive (UE) 2024/1203 reports an all-encompassing definition of an ecosystem from a criminal law standpoint. According to the Directive, an ecosystem is a dynamic complex of communities of plants, animals, fungi and microorganisms and their nonliving environment that, through their interaction, form a functional unit, and includes habitat types, species habitats and species populations.

Recital 13 of the Directive states that an ecosystem should also include both ecosystem services, through which an ecosystem contributes directly or indirectly to human well-being, and ecosystem functions, which refer to the natural processes of an ecosystem.

The fact that there’s a definition of ecosystem and frequent references to it in the criminal offenses punished by the new Directive is a great innovative feature. It’s no longer only the depletion of individual environmental resources that’s considered harmful to the environment, but also how environmental resources interact with each other. For example, reckless and unregulated withdrawal of surface water can harm the animal and plant species that live on the bordering land.

This means it’s possible to punish not only individual harmful actions but also actions that, although apparently referring to a single environmental resource, have much broader repercussions because of the interrelationships between living species and the environment.

 

New environmental offences

The essential element of the legislation is that it identifies a whole new set of environmental crimes, often linked to other specific European regulations. The list of environmental offences has doubled under European criminal law, from 9 to 18 compared to the former Directive 2008/99/EC. Among the offences provided for by Article 3 of the new Directive, the following stand out in terms of relevance and probable frequency of applicability:

• Discharging, emitting, or introducing (including through the placing on the market of a product) of a quantity of matter, substance, energy, or radiation into the air, soil or water. ²
• Placing on the market of chemicals banned or restricted by the REACH Regulation³ or in a manner that does not comply with the CLP Regulation⁴ or the Persistent Organic Pollutants Regulation.⁵
• Realising projects without the required environmental authorisation (ie an Environmental Impact Assessment (EIA)), including evaluation of all the aspects potentially affecting the environment.
• Unauthorized or non-compliant management of waste if it’s in large quantities of hazardous waste or, being non-hazardous waste, could cause death or serious injury to persons or significant damage to the environment or the ecosystems.
• Unauthorized or non-compliant transnational shipment of waste with reference to the new Regulation (EU) 2024/1157.⁶
• Illegal timber trafficking and placing products or raw materials associated with deforestation or forest degradation on the European market within the meaning of Regulation (EU) 2023/1115.⁷
• Discharging pollutants into the sea by ships outside the cases permitted by law (eg discharge of wastewater that has been comminuted and disinfected in accordance with a system approved by the authority at a distance of more than three miles from the coast or even in the absence of comminution and disinfection if more than 12 miles from the coast, subject to the requirements of proper storage, discharge while underway, and the use of a certified wastewater treatment system).
• Unauthorized or substandard extraction of surface water or groundwater, if it causes or could cause significant damage to the ecological status of surface water bodies or the quantitative status of groundwater bodies.
• Poaching, possession or commercialization of protected wildlife and plant species.
• Deterioration of a protected site habitat and any significant disturbance of protected species in protected habitats.

The Directive allows Member States to provide for specific offences other than those regulated under the Directive itself.

Almost all the stipulated offences, with the important exception of setting up facilities without the necessary environmental permit, can be integrated even if the relevant conduct occurred due to gross negligence, increasing the range of punishment.

According to Article 4 of Directive (EU) 2024/1203, these crimes can also be punished as attempts (with the exception of the implementation of a project without an EIA) and instigation, aiding and abetting.

 

Qualified offences

Article 3 (3) of Directive (EU) 2024/120, identifying specific instances aggravated by the extensive harm caused, provides for the special case of qualified offences. They’re when the abovementioned offences factually:

• cause destruction to a large or valuable ecosystem (eg ecosystems capable of providing relevant ecosystem services useful for the replenishment of resources for humans or for their essentiality to natural balance, such as wetlands) or habitat of a protected site; or
• cause substantial damage, which is irreversible and/or lasting (eg damage that has long-lasting consequences to the point that the environmental resource cannot be restored even by anthropogenic remedial activities, such as environmental clean-up), to the abovementioned ecosystems or habitats.

This provision was adopted because environmental damage is often irreversible. And, while the damage may occur in a particular area, it can cause widespread damage to the ecosystem, harming the ecosystem and how it functions.

These qualified offences can be applied to each of the offences provided for in Article 3 of the Directive depending on the harm caused. They’re comparable to so-called ecocide, a criminal figure that’s already regulated by law in some Member States (eg France and Belgium) and is being discussed in international fora. In this sense, EU has become the first supranational regional body to criminalize cases of large-scale and serious destruction of the environment, comparable to ecocide.

 

Aggravating and mitigating circumstances related to the new offences

The new Directive provides for specific aggravating and specific mitigating circumstances.

For example, under Article 8 of new Directive, aggravating circumstances are provided whenever the offences:

• cause irreversible destruction or damage to an ecosystem;
• are committed in the context of a criminal organisation (so-called ecomafia); or
• cause substantial financial benefits or significant reduction in costs or expenses.

Mitigating circumstances are less peculiar with regard to the environmental law standpoint inasmuch as they concern phenomena of industrious repentance. According to Article 9 of Directive (EU) 2024/1203, a mitigating circumstance is when the offender restores the state of the environment (eg by remediation or environmental restoration) without being obligated to do so (eg by an authority’s order compelling remediation) and before the beginning of a criminal investigation.

 

Penalties related to the new offences

Main Penalties

Generally speaking, for natural persons (including business legal representatives and corporate executives), a minimum sentence of three to five years imprisonment will be imposed by transposing Member States for the environmental offences provided for by Directive (EU) 2024/1203.

There are very severe penalties for crimes characterized as particularly serious because of the consequences they’ve caused. If an environmental offence results in the death of a person, a maximum penalty of at least ten years is applied. For the qualified crimes as identified above, a maximum penalty of at least eight years is provided.

For legal entities (whenever the environmental crime is committed for the benefit and interest of the entity itself), pursuant to Article 6 of Directive (EU) 2024/1203, Member States must implement penalties that refer either to a percentage of worldwide turnover or to a fixed percentage:

• For certain offences (eg illegally releasing chemicals, implementing a project without an EIA, illegal waste management), the maximum fine cannot be less than 5% of the worldwide turnover or, alternatively, EUR40 million.
• For other offences (eg those related to wildlife trafficking and deterioration of a protected habitat or disturbance of a protected species), the edict ceiling cannot be less than 3% of the world turnover or EUR24 million.

Such large penalties for causing environmental crimes relates to the European “polluter pays” principle. According to this principle, the person responsible for the environmental damage has to remedy or pay compensation. Criminal law principles also state that a fine must be proportional to the offender's economic capacity.

Ancillary Penalties

Directive (EU) 2024/1203 covers a whole range of ancillary sanctions, which Member States can impose along with the main sanctions.

Member States can impose ancillary penalties of restoring the environment (eg through remediation operations under Title IV, Part V of Legislative Decree 152/2006), if the damage is reversible, or of compensation for damage to the environment (pursuant to Part V-bis of Legislative Decree 152/2006), for irreversible damage.

Member States can also impose other ancillary sanctions, including:

• exclusion from access to public funding, administrative tenders and concessions;
• disqualification from holding an apical position in a legal entity (for natural persons);
• withdrawal of permits and authorisations;
• subjection to judicial supervision; and
• publication of the judgment of conviction.

Legal persons can also be subject to:

• temporary or permanent disqualification from engaging in a particular business activity;
• judicial orders of dissolution;
• closure of the premises used to commit the offence; and
• the obligation to establish due diligence systems to strengthen compliance with environmental standards (the latter provision must be read in light of the requirements in the new CS3D Directive).⁸

The instrumental assets and proceeds of the environmental offence can also be frozen or confiscated.

 

Prescription period

According to Article 11 of Directive (EU) 2024/1203 the prescription period for the prosecution of crimes is:

• at least ten years from when the offence was committed (or from when the authority discovers the offence) for offences punishable by a maximum sentence of at least ten years’ imprisonment;
• at least five years from when the offence was committed (or from when the authority discovers the offence) for offences punishable by a maximum sentence of at least five years’ imprisonment.

 

Conclusions

Member States have until 21 May 2026 to transpose the new Directive.

With specific reference to Italy, the Italian government has already provided for the transposition of Directive (EU) 2024/1203 within the European Delegation Law (Legge di Delegazione Europea), the draft law of which was approved by the Council of Ministers on May 24, 2024. At this stage, the bill will be submitted in the near future to the Parliament, which must approve it first in the House of Representatives (Camera dei Deputati) and then in the Senate. Following parliamentary approval, the government will have the delegated legislative power to issue a regulatory act that will substantively transpose the new Directive and provide for the relevant sanctions.

The environmental offenses referred to in the new Directive will almost certainly be transposed into Legislative Decree No. 231/2001. This will increase the cases where liability of legal persons can be triggered for causing damage to the environment from the perspective of the entity's economic benefit and advantage, through imposing administrative sanctions (that are substantially criminal).