What changed

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

SHORT JUSTIFICATION

on the proposal for a directive of the European Parliament and of the Council on the protection of the environment through criminal law and replacing Directive 2008/99/EC

Directive 2008/99/EC on the protection of the environment through criminal law, together with Directive 2004/35 on environmental liability and Regulation (EU) 2019/1010 on the transposition of information obligations in the field of environmental law, constitute the current threefold EU legislative reference on environmental crime. Their purpose is to make environmental offenders criminally liable and to leave to the Member States the type of penalty applicable, provided that they are effective, proportionate and dissuasive penalties for this type of crime, when committed intentionally or as a result of serious negligence.

(COM(2021)0851 – C90466/2021 – 2021/0422(COD)(COD))

However, as evidenced by the impact assessment carried out by the European Commission in 2020, the number of cases successfully prosecuted has been low, sanctions have been insufficient to be dissuasive and cross-border cooperation has been low. Moreover, given the differences between the legal systems of the various States, it has proved difficult to define indeterminate legal concepts. Shortcomings were also identified in the Member States in terms of resources, expertise, awareness raising, prioritisation, cooperation and information exchange, and it was found that there were no comprehensive national strategies to fight environmental crime at all levels of the implementation chain and a multidisciplinary approach. Moreover, the lack of coordination between the application of administrative and criminal laws and sanctions often leads to a lack of effectiveness. The lack of reliable, accurate and complete statistical data on environmental crime proceedings in the Member States prevented national policy-makers and practitioners from monitoring the effectiveness of their measures. Based on the results of the evaluation, the Commission decided to revise the Directive so that the legislative proposal to fight environmental crime meets one of the key commitments of the European Green Deal.

(Ordinary legislative procedure: first reading)

For its part, the Committee on Petitions has noted, through the petitions received, that environmental crimes jeopardise the objectives of the Green Deal both in terms of negative and often irreversible environmental effects and economic losses as it is often connected to money laundering, corruption, counterfeiting, trafficking, physical violence and murder, extending the effects beyond damage to the habitat. In addition, highly lucrative and low risk character of the environmental crime creates unfair competition for legal business activities. Indeed, the numerous petitions on environmental damage caused by human action often highlight the lack of efficiency and capacity of national authorities to detect, investigate and prosecute environmental crimes. In addition, criminal organisations and mafias threaten the conservation of biodiversity and environmental heritage.

The European Parliament,

Their devastating effects affect the health, safety and well-being of EU citizens, victims in various ways, who call for better cross-border cooperation, which is crucial for the effective implementation of the Directive. It should also be stressed that environmental crime can affect entire ecosystems and that these can include cross-border areas and that it is therefore of utmost importance to have a definition of the cross-border dimension of crime that serves to establish the tools for investigating and prosecuting it.

– having regard to the Commission proposal to Parliament and the Council (COM(2021)0851),

However, the ongoing amendment should not be limited to definitions, but should give us the opportunity to fight crime and to provide us with a stronger tool than the current Directive 2008/99/EC. The Rapporteur firmly believes that environmental crimes, especially in large scale, are often linked to other serious criminal offences, which jeopardises the EU security objectives, EU financial interest and the EU Greed Deal commitments. This link needs to be identified and addressed in light of Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime. The central axes of the PETI Committee’s contribution in the form of a legislative opinion are:

– having regard to Article 294(2) and Article 83(2) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C90466/2021),

to achieve the effectiveness and agility of the regulatory regime through the establishment of a system based on equal penalties for the same crime, so that potential perpetrators do not perceive that some EU States offer a lighter and less effective regulatory regime. The Rapporteur stresses that persistent difference in the penalty levels place to the hand of criminals as they can profit from judicial asymmetries and chose the less restrictive jurisdictions, which de facto constitutes an incentive for the perpetrators to commit crimes;

– having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

to consider as an aggravating fact that environmental damage affects EU protected areas or areas of cultural importance. The Rapporteur is of the view that consistent penalties across EU Member States will dissuade the criminals who still consider such activities as low-risk and high-gain;

– having regard to Rule 59 of its Rules of Procedure,

to take into account the financial cost of crime as an important indicator of its scale and the systematic application of high sanctions as a preventive measure, as well as the use of the proceeds of sanctions to finance nature conservation measures, measures to combat environmental crimes and compensation to victims. The Rapporteur considers more appropriate to use terms such as “finance and complete restoration”, rather than “reinstate”, as crime perpetrators might lack the competence and knowledge to restore the destroyed area and that such financing will give more resources for achieving the objectives of the Directive;

– having regard to the report of the Committee on Legal Affairs (A90000/2022),

to establish an EU Green Prosecutor by extending the competence of the European Public Prosecutor’s Office (in accordance with Article 86(4) TFEU) to include environmental crimes with known links to organised crime, as also requested by the European Parliament and suggested by the EESC. The Rapporteur believes that the example of the successful EPPO work on cross-border financial crime underlines the need of this body to deal with environmental crime. Thanks to its structure, competences, tools and working methods, it is the institution best placed to coordinate and support the efforts of the Member States, which in turn will be able to rely on the support of the Green Prosecutor for the investigation and coordination of cross-border operations, the exchange of information and the promotion of best practices;

1. Adopts its position at first reading hereinafter set out;

to highlight that cross-border cooperation between EU Member States and coordination across the EU are key to achieve the objectives as the wide and complex scope of environmental crime requires specialised police units with mutual assistance in criminal matters, joint investigation teams, exchange of criminal records and mutual recognition instruments (arrest warrant, fines, confiscation orders). These units must be well trained and equipped with the financial and technical resources necessary for the performance of their duties;

2. Approves its statement annexed to this resolution;

to promote the exchange of available data between the Member States and cooperation with European networks such as Europol and Eurojust to ensure that their national strategies take into account the latest available data and trends in the field of environmental crime. The Rapporteur argues that Europol plays an important role in addressing the European angle of environmental crime but a stronger call on Member States to share information with Europol is necessary;

3. Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

to support and to protect citizens, NGOs and associations that report environmental crime and can therefore become victims of retaliation. The Rapporteur says that by speaking of "citizens and NGOs" we underline the agency they have in reporting the crime.

4. Instructs its President to forward its position to the Council, the Commission and the national parliaments.

AMENDMENTS

The Committee on Petitions calls on the Committee on Legal Affairs, as the committee responsible, to take into account the following amendments:

Amendment 1

Proposal for a directive

Recital 1 a (new)

Or. en

Amendment 2

Proposal for a directive

Recital 1 ab (new)

Or. en

Amendment 3

Recital 2

Or. en

Amendment 4

Proposal for a directive

Recital 4

Recital 2 a (new)

Or. en

Amendment 5

Proposal for a directive

Recital 8

Recital 5 a (new)

Or. en

Amendment 6

Proposal for a directive

Recital 97

Or. en

Amendment 7

Proposal for a directive

Recital 10

Recital 8 a (new)

Or. en

Amendment 8

Proposal for a directive

Recital 11

Recital 8 b (new)

Or. en

Amendment 9

Proposal for a directive

Recital 149

Or. en

Amendment 10

Proposal for a directive

Recital 15

Recital 9 a (new)

Or. en

Amendment 11

Proposal for a directive

Recital 1511 a (new)

Or. en

Amendment 12

Proposal for a directive

Recital 16

Recital 11 b (new)

Or. en

Amendment 13

Proposal for a directive

Recital 1713

Or. en

Amendment 14

Proposal for a directive

Recital 18 a (new)

Recital 14

Or. en

Amendment 15

Proposal for a directive

Recital 18 b (new)

Recital 15

Or. en

Amendment 16

Proposal for a directive

Recital 2216

Or. en

Amendment 17

Proposal for a directive

Recital 2617

Or. en

Amendment 18

Proposal for a directive

Recital 2617 a (new)

Or. en

Amendment 19

Proposal for a directive

Recital 26 b (new)

Recital 19

Or. en

Amendment 20

Proposal for a directive

Recital 27

Recital 22 a (new)

Or. en

Amendment 21

Proposal for a directive

Recital 3024

Or. en

Amendment 22

Proposal for a directive

Article 1 – paragraph 1

Recital 24 a (new)

Or. en

Amendment 23

Proposal for a directive

Article 2 – paragraph 1 – point 1 – point a

Recital 25

Or. en

Amendment 24

Proposal for a directive

Article 2 – paragraph 1 – point 4

Recital 25 a (new)

Or. en

Amendment 25

Proposal for a directive

Article 2 – paragraph 1 – point 5 a (new)

Recital 25 b (new)

Or. en

Amendment 26

Proposal for a directive

Article 3 – paragraph 1 – point b

Recital 26

Or. en

Amendment 27

Proposal for a directive

Article 3 – paragraph 1 – point c – introductory part

Recital 26 a (new)

Or. en

Amendment 28

Proposal for a directive

Article 3 – paragraph 1 – point j

Recital 28

Or. en

Amendment 29

Proposal for a directive

Article 3 – paragraph 1 – point k

Recital 30 a (new)

Or. en

Justification

Member States should apply to the assistance of European networks to make sure their national strategies take into account the latest available data and tendencies in the area of environmental crime.

Amendment 30

Proposal for a directive

Article 3 – paragraph 1 – point l

Recital 30 b (new)

Or. en

Amendment 31

Proposal for a directive

Article 3 – paragraph 1 – point p – introductory part

Recital 30 c (new)

Or. en

Amendment 32

Proposal for a directive

Article 3 – paragraph 1 – point p – point i

Recital 31

Or. en

Amendment 33

Proposal for a directive

Article 3 – paragraph 1 – point p – point ii

Recital 31 a (new)

Or. en

Amendment 34

Proposal for a directive

Article 3 – paragraph 2

Recital 32

Or. en

Amendment 35

Proposal for a directive

Article 41 – paragraph 1

Or. en

Amendment 36

Proposal for a directive

Article 52 – paragraph 1 – point 1 – subparagraph 2

Or. en

Amendment 37

Proposal for a directive

Article 52 – paragraph 51 – point c1 a (new)

Or. en

Amendment 38

Proposal for a directive

Article 62 – paragraph 1 – introductorypoint part2 a (new)

Or. en

Amendment 39

Proposal for a directive

Article 62 – paragraph 1 – point a3

Or. en

Amendment 40

Proposal for a directive

Article 62 – paragraph 1 – point b5 a (new)

Or. en

Amendment 41

Proposal for a directive

Article 62 – paragraph 31 – point 5 b (new)

Or. en

Amendment 42

Proposal for a directive

Article 73 – paragraph 1-1 (new)

Or. en

Amendment 43

Proposal for a directive

Article 73 – paragraph 21 – introductory part

Or. en

Amendment 44

Proposal for a directive

Article 73 – paragraph 21 – point ba

Or. en

Amendment 45

Proposal for a directive

Article 73 – paragraph 21 – point kb

Or. en

Amendment 46

Proposal for a directive

Article 73 – paragraph 31 – point c – introductory part

Or. en

Amendment 47

Proposal for a directive

Article 73 – paragraph 41 – point c – point vi a (new)

Or. en

Amendment 48

Proposal for a directive

Article 73 – paragraph 51 – point c – subparagraph 2

Or. en

Amendment 49

Proposal for a directive

Article 83 – paragraph 1 – point fc a (new)

Or. en

Amendment 50

Proposal for a directive

Article 83 – paragraph 1 – point jc b (new)

Or. en

Amendment 51

Proposal for a directive

Article 83 – paragraph 1 – point–point jc ac (new)

Or. en

Amendment 52

Proposal for a directive

Article 83 – paragraph 1 – point jd ba (new)

Or. en

Amendment 53

Proposal for a directive

Article 83 – paragraph 1 – point jd cb (new)

Or. en

Amendment 54

Proposal for a directive

Article 93 – paragraph 1 – point ae – introductory part

Or. en

Amendment 55

Proposal for a directive

Article 93 – paragraph 1 – point ae a– (new)point i

Or. en

Amendment 56

Proposal for a directive

Article 103 – paragraph 1 – point e – point ii

Or. en

Amendment 57

Proposal for a directive

Article 113 – paragraph 21 – point ah

Or. en

Amendment 58

Proposal for a directive

Article 113 – paragraph 21 – point bi

Or. en

Amendment 59

Proposal for a directive

Article 113 – paragraph 21 – point cj

Or. en

Amendment 60

Proposal for a directive

Article 113 – paragraph 31 – point k

Or. en

Amendment 61

Proposal for a directive

Article 123 – paragraphParagraph 1 – point dk a (new)

Or. en

Amendment 62

Proposal for a directive

Article 133 – paragraph 21 – point l

Or. en

Amendment 63

Proposal for a directive

Article 143 – paragraph 1 – point m

Or. en

Amendment 64

Proposal for a directive

Article 153 – paragraph 1 – point n

Or. en

Amendment 65

Proposal for a directive

Article 163 – paragraph 1 – point n a (new)

Or. en

Amendment 66

Proposal for a directive

Article 173 – paragraph 1 – point n b (new)

Or. en

Amendment 67

Proposal for a directive

Article 183 – paragraph 1 – point o

Or. en

Amendment 68

Proposal for a directive

Article 203 – paragraph 1 – point ep – point ii

Or. en

Amendment 69

Proposal for a directive

Article 213 – paragraph 21 – point hr a (new)

Or. en

Amendment 70

Proposal for a directive

Article 213 – paragraph 51 – point r b (new)

Or. en

Amendment 71

Proposal for a directive

Article 253 – titleparagraph 2

Or. en

Amendment 72

Proposal for a directive

Article 253 – paragraph 32 a (new)

Or. en

Amendment 73

EXPLANATORY STATEMENT

Proposal for a directive

The rapporteur welcomes the Commission’s proposal for a Directive on the protection of the environment through criminal law and replacing Directive 2008/99/EC.

Article 3 – paragraph 3 – point e a (new)

Directive 2008/99/EC introduced an important principle to the Environmental Union legal framework that environmental crimes should be combatted and the offenders punished for them in all of the EU Member States. This was an essential element in making sure that the polluter pays principle is respected and the EU environmental acquis is followed.

Amendment 74

The Directive, despite the good intentions, has not delivered on all of its goals. It has not been revised until now and the Commission’s evaluation in 2020 showed fundamental problems in the application of the Directive across the Member States. Among the main issues, the Commission enumerated:

Proposal for a directive

 lack of comprehensive data on environmental crimes;

Article 3 – paragraph 3 – point e b (new)

 lack of clarity with regard to certain legal terms;

Amendment 75

 significant differences in sanctions applied by Member States, including accessory sanctions and sanctions for legal persons;

Proposal for a directive

 lack of flexibility in adapting the scope of the Directive;

Article 3 – paragraph 3 – point e c (new)

 shortcomings in the cross-border cooperation, including deficiencies in awareness among public prosecutors and judges.

Amendment 76

These issues also resulted in a lack of uniformity in legal and practical terms and differences in implementation and application of Union rules regarding environmental crime. This caused an unequal level playing field and impaired the proper functioning of the internal market. Therefore, the Commission’s proposal for a Directive on the protection of the environment through criminal law is very timely. The rapporteur proposes to address the lack of uniformity by calling for further harmonisation and considerations to complement this Directive with other policy fields, such as fully uniformity by means of a regulation.

Proposal for a directive

The existing problems in effective combatting environmental crimes created incentives in most of the Member States for offenders to circumvent EU or national legal provisions concerning environmental protection as the risk of conviction was low and sanctions often did not have the deterrent effect. Moreover, environmental crimes are frequently linked with organised criminal activities of cross-border dimension, such as illicit waste shipment or trade in protected species. For example, the annual revenue of illicit waste market is estimated between 4 billion euros and 15 billion euros .

Article 3 – paragraph 3 – point e d (new)

The rapporteur therefore proposes to:

Amendment 77

 improve the effectiveness of investigations and prosecution of environmental crimes;

Proposal for a directive

 clarifying relevant legal terms;

Article 3 – paragraph 4 – introductory part

 improve the collection of data;

Amendment 78

 ensure effective, dissuasive and proportionate sanction types and levels;

Proposal for a directive

 strengthen prevention measures.

Article 3 – paragraph 4 – point c a (new)

The rapporteur proposes to achieve this, inter alia, by raising fines for legal persons, so that the maximum limit is not less than 10 percent of the average worldwide turnover of the legal person in the last three business years, which is more in line with EU Competition Law. In addition, the rapporteur proposes to extend the limitation periods for environmental criminal offences, as it is often difficult to discover within a shorter period the committed crimes and the extent and harmful consequences thereof.

Amendment 79

Furthermore, in line with Article 191(2) of the Treaty on the Functioning of the European Union, the precautionary principle applies to Union policy on the environment and prevention is key. Important deterrents against environmental crime are comprehensive and effective prevention measures and dissuasive and proportionate criminal sanctions and penalties. The polluter should pay and bear the full costs of the environmental harm caused. The rapporteur proposes that the polluter pays targeted fines, which in part contribute to preventative measures. This makes it possible for one environmental crime that is committed to prevent other environmental crimes.

Proposal for a directive

It is also important to create more awareness about environmental crime and damage worldwide. This is necessary as the globalisation of business activities means that, for example, EU based companies could be involved in criminal activities outside the territory of the Union. Highlighting the active work by the United Nations, such as the efforts on strengthening the legal framework by including a definition of ecocide, is essential.

Article 3 – paragraph 4 – point c b (new)

The rapporteur is confident that through a strong position of the European Parliament this Directive will lead to the effective combatting of environmental crimes on EU and international level, leading to the desired prevention of environmental damage and strengthening of an equal level playing field for Union industry.

Amendment 80

Proposal for a directive

Article 3 – paragraph 5 – point b

Amendment 81

Proposal for a directive

Article 3 – paragraph 5 – point d a (new)

Amendment 82

Proposal for a directive

Article 3 – paragraph 5 – point d b (new)

Amendment 83

Proposal for a directive

Article 4 – paragraph 1

Amendment 84

Proposal for a directive

Article 4 – paragraph 2

Amendment 85

Proposal for a directive

Article 5 – paragraph 1 a (new)

Amendment 86

Proposal for a directive

Article 5 – paragraph 2

Amendment 87

Proposal for a directive

Article 5 – paragraph 4 a (new)

Amendment 88

Proposal for a directive

Article 5 – paragraph 5 – point a

Amendment 89

Proposal for a directive

Article 5 – paragraph 5 – point b

Amendment 90

Proposal for a directive

Article 6 – paragraph 3

Amendment 91

Proposal for a directive

Article 7 – paragraph 1

Amendment 92

Proposal for a directive

Article 7 – paragraph 1 a (new)

Amendment 93

Proposal for a directive

Article 7 – paragraph 2 – point b

Amendment 94

Proposal for a directive

Article 7 – paragraph 2 – point i a (new)

Amendment 95

Proposal for a directive

Article 7 – paragraph 2 – point k

Amendment 96

Proposal for a directive

Article 7 – paragraph 4

Amendment 97

Proposal for a directive

Article 7 – paragraph 5

Amendment 98

Proposal for a directive

Article 7 – paragraph 5 a (new)

Amendment 99

Proposal for a directive

Article 7 – paragraph 6 a (new)

Amendment 100

Proposal for a directive

Article 8 – paragraph 1– point b

Amendment 101

Proposal for a directive

Article 8 – paragraph 1 – point b a (new)

Amendment 102

Proposal for a directive

Article 8 – paragraph 1 – point f a (new)

Amendment 103

Proposal for a directive

Article 8 – paragraph 1 – point j a (new)

Amendment 104

Proposal for a directive

Article 9 – paragraph 1– point a

Amendment 105

Proposal for a directive

Article 10 – paragraph 1 a (new)

Amendment 106

Proposal for a directive

Article 10 – paragraph 1 a – point a (new)

Amendment 107

Proposal for a directive

Article 10 – paragraph 1 a – point b (new)

Amendment 108

Proposal for a directive

Article 10 – paragraph 1 a – point c (new)

Amendment 109

Proposal for a directive

Article 11 – paragraph 1

Amendment 110

Proposal for a directive

Article 11 – paragraph 1 a (new)

Amendment 111

Proposal for a directive

Article 11 – paragraph 2 – introductory part

Amendment 112

Proposal for a directive

Article 12 – paragraph 1 – point d a (new)

Amendment 113

Proposal for a directive

Article 12 – paragraph 2 – subparagraph 1 – point a

Amendment 114

Proposal for a directive

Article 12 – paragraph 2 – subparagraph 1 – point c

Amendment 115

Proposal for a directive

Article 12 – paragraph 2 – subparagraph 2

Amendment 116

Proposal for a directive

Article 12 – paragraph 3 a (new)

Amendment 117

Proposal for a directive

Article 13 – paragraph 1

Amendment 118

Proposal for a directive

Article 13 – paragraph 2

Amendment 119

Proposal for a directive

Article 13 – paragraph 2 a (new)

Amendment 120

Proposal for a directive

Article 14 – title

Amendment 121

Proposal for a directive

Article 14 – paragraph -1 (new)

Amendment 122

Proposal for a directive

Article 14 – paragraph 1

Amendment 123

Proposal for a directive

Article 14 – paragraph 1 a (new)

Amendment 124

Proposal for a directive

Article 15 – paragraph 1

Amendment 125

Proposal for a directive

Article 16 a (new)

Amendment 126

Proposal for a directive

Article 17 – paragraph 1

Amendment 127

Proposal for a directive

Article 18 – paragraph 1

Amendment 128

Proposal for a directive

Article 18 – paragraph 1 a (new)

Amendment 129

Proposal for a directive

Article 19 – paragraph 1

Amendment 130

Proposal for a directive

Article 19 a (new)

Amendment 131

Proposal for a directive

Article 20 – paragraph 1 – point d a (new)

Amendment 132

Proposal for a directive

Article 20 – paragraph 2

Amendment 133

Proposal for a directive

Article 21 – paragraph 3

Amendment 134

Proposal for a directive

Article 22 – paragraph 2 – point a a (new)

Amendment 135

Proposal for a directive

Article 25 – paragraph 3 a (new)

Amendment 136

Proposal for a directive

Article 25 – paragraph 3 b (new)

Amendment 137

Proposal for a directive

Article 27 a (new)

PROCEDURE – COMMITTEE ASKED FOR OPINION

FINAL VOTE BY ROLL CALL IN COMMITTEE ASKED FOR OPINION