What changed

SHORT JUSTIFICATION

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.

According to the UNEP and INTERPOL, environmental crime is rising and has become the fourth largest criminal sector in the world putting at risk the environment, the biodiversity and the climate. It deprives countries and populations from billions of euros of economic revenues annually, especially in developing countries, and threaten human rights.

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.

The current Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law aims primarily at improving environmental protection by means of harmonised criminal legislation. However, many shortcomings and loopholes have been identified, i.e. limited scope, inadequacy of sanctions, low levels of fines; lack of implementation and cooperation between Member States; lack of statistical data, etc.

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 rapporteur welcomes the proposal made by the European Commission, notably regarding the broadening of its scope; the strengthening of its provisions related to criminal sanctions and the provision of mechanisms to protect environmental defenders. However, Rapporteur believes that further changes are needed to tackle environmental crime effectively.

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.

First of all, an external dimension to the Directive should be introduced so as to take into account the transboundary character of environmental crime and its impacts on developing countries. The European Union has a particular responsibility in preventing and combating environmental offences in developing countries on several grounds. In some cases, the perpetrator is a European person or a person linked to the EU; the EU is an import or export area, a transition area and a major market, the value chains of some economic sectors is affected by these illegal activities and their leading companies are often headquartered in the EU.

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:

In light of this, and given that human rights violations are often linked to the commission of environmental offences, the rapporteur suggests to amend Article 1 to putt an human rights approach at the core of the Directive.

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;

The rapporteur proposes the inclusion of general and autonomous definitions of environmental offences. Despite the growing number of environmental crimes, a harmonised definition of environmental crimes does not yet exist either at the worldwide or at European and national level. Instead, the current system relies upon a list of secondary legislation, leaving out according large parts of EU environmental law. Therefore, criminalising autonomous crimes would enable criminal liability for serious cases of environmental harm and give rights to the nature. It is particularly relevant to tackle transnational organised environmental crime involving or taking place in developing countries.

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;

The rapporteur is also in favour of introducing a crime of ecocide, in order to criminalise the most serious crimes to the environment. The EU should defend the jurisdiction of the International Criminal Court to cover criminal acts that amount to ecocide. In parallel, the EU and its Member States should take the lead for its recognition. The introduction of a crime of ecocide in the remit of this Directive is of particular importance to preventing and prosecuting the most serious transnational environmental crimes taking place in developing countries. The definition used is the one developed by the Independent Expert Panel for the Legal Definition of Ecocide published in June 2021, a group of international criminal lawyers, environmental lawyers and legal scholars. It is the most comprehensive and recent definitional work available at the moment.

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;

The rapporteur also proposes to enlarge the scope of the Directive, notably to fisheries crime and the exploitation and trade of illegal minerals. Serious breaches of the future Corporate Sustainable due diligence obligations and of the CSRD should be also considered criminal offences.

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;

There is a significant amount of environmental crime linked to legal business and corporations and some corporations choose to be based in places with weak environmental regulations, as this is the case in many developing countries. Therefore, the rapporteur is of the opinion that Member States should have the obligation to establish their jurisdiction over offences committed for the benefit of a legal person established on their territory.

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;

To reinforce cooperation with third countries, a new article is introduced, in line with SDG 17. It is estimated that billions of euros in revenues and taxes are annually stolen from developing countries, causing major economic losses. Hence, there is a need to step up development cooperation through increased financial and technical support to address environmental crime in developing countries.

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;

To combat environmental crime effectively, the rapporteur suggests to introduce new provisions for assessing the damage to the environment as well as aggravating circumstances related i.e. to human rights violations, vulnerable groups and the rule of law systems. New sanctions shall equally be introduced, notably to compensate the damage made to the environment and to increase the maximum limits for penalties and sanctions to me them more dissuasive. Finally yet importantly, data collection and statistics must be improved.

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.

AMENDMENTS

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

Amendment 1

Proposal for a directive

RecitalRecitals 1 a (new)

Amendment 2

Proposal for a directive

Recital 2

Recital 1 c (new)

Amendment 4

Proposal for a directive

Recital 21 ad (new)

Amendment 5

Proposal for a directive

Recital 5 a (new)

Recital 2

Amendment 6

Proposal for a directive

Recital 73

Amendment 7

Proposal for a directive

Recital 83 a (new)

Justification

Despite the growing number of environmental crimes, an harmonised definition of environmental crimes does not yet exist either at the worldwide or at EU and national level. The Commission's proposal fails to propose a general definition of environmental crime, which is one of the greatest obstacle to the fight against such offences. The objective of this amendment is to provide a definition of environmental autonomous offences to overcome the weaknesses related to the Commission’s sectoral approach and prevent any conduct that could create an immediate risk of substantial damage.

Amendment 8

Proposal for a directive

Recital 8 b (new)

Recitals 6

Amendment 9

Proposal for a directive

Recital 9

Recital 6 a (new)

Amendment 10

Proposal for a directive

Recital 9 a (new)

Recital 8

Amendment 11

Proposal for a directive

Recital 11 b (new)

Recital 12

Amendment 13

Proposal for a directive

Recital 1314

Amendment 14

Proposal for a directive

Recital 14 a (new)

Amendment 15

Proposal for a directive

Recital 17

Recital 16 a (new)

Justification

On several occasions, the European Parliament has called for the establishment of ecocide as a criminal offence to safeguard human rights and democracy, biodiversity, the climate and environmental defenders. The definition used is the one developed by the Independent Expert Panel for the Legal Definition of Ecocide published in June 2021, a group of international criminal lawyers, environmental lawyers and legal scholars. It is the most comprehensive and recent definitional work available at the moment.

Amendment 18

Proposal for a directive

Recital 17 a (new)

Recital 19

Amendment 19

Proposal for a directive

Recital 1920

Amendment 20

Proposal for a directive

Recital 22 a (new)

Recital 23

Amendment 21

Proposal for a directive

Recital 24 a (new)

Amendment 22

Proposal for a directive

Recital 24 ab (new)

Amendment 23

Proposal for a directive

Recital 25

Recital 26 a (new)

Amendment 24

Proposal for a directive

Recital 2531 a (new)

Amendment 25

Proposal for a directive

Recital 2531 b (new)

Amendment 26

Proposal for a directive

Recital 2632

Amendment 27

Proposal for a directive

Recital 26 a (new)

Article 1 – paragraph 1

Amendment 28

Proposal for a directive

Recital 28

Article 2

Amendment 29

Proposal for a directive

Recital 30 a (new)

Article 3

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

Recital 30 b (new)

Article 3 a (new)

Amendment 31

Proposal for a directive

Recital 30 c (new)

Article 4

Amendment 32

Proposal for a directive

Recital 31

Article 5 – paragraph 1

Amendment 33

Proposal for a directive

Recital 31 a (new)

Article 5 – paragraph 2

Amendment 34

Proposal for a directive

Recital 32

Article 5 – paragraph 5

Amendment 35

Proposal for a directive

Article 16 – paragraph 12

Amendment 36

Proposal for a directive

Article 26 – paragraph 1 – point 1 – subparagraph 23

Amendment 37

Proposal for a directive

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

Article 7

Amendment 38

Proposal for a directive

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

Article 8

Amendment 39

Proposal for a directive

Article 29 – paragraph 1 – point 3a

Amendment 40

Proposal for a directive

Article 29 – paragraph 1 – point 5b a (new)

Justification

It is important to allow the reduction of the penalty if the offender admits his guilt in order to reduce the time of the investigations, the cost of the procedures and to conclude the process as soon as possible providing in this way timely justice to the victims and avoiding further suffering. The reduction of the penalty should be conditioned to a fair compensation to the victims and the environment.

Amendment 41

Proposal for a directive

Article 210 – paragraph 1 – point 5 ba (new)

Justification

As some States already do with assets seized in drug crime, the profits and instruments of environmental crime can be linked to the rehabilitation of natural spaces or the improvement of actions to prosecute environmental crimes, through the creation of social or environmental funds for confiscated assets. In this way, in addition, the fight against environmental crime is projected to society in a more direct and visible way.

Amendment 42

Proposal for a directive

Article 310 – paragraph -11 b (new)

Justification

Many environmental crimes committed in developing countries are linked to organised crime and money laundering. Target 16.4 of 2030 Agenda establishes the objective of “strengthening the recovery and return of stolen assets”. This directive represents an opportunity for the Union to contribute to achieving this goal by allowing the proceeds of environmental crimes committed in developing countries but prosecuted and judged in Member States to be returned to these countries while ensuring they are used for appropriate purposes.

Amendment 43

Proposal for a directive

Article 311 – paragraph 1 – introductory part

Amendment 44

Proposal for a directive

Article 311 – paragraph 1 – point a (new)

Amendment 45

Proposal for a directive

Article 311 – paragraph 1 – point b3

Amendment 46

Proposal for a directive

Article 312 – paragraph 1 – point c – introductory part

Amendment 47

Proposal for a directive

Article 312 – paragraph 1 – point c – point vi a (new)2

Amendment 48

Proposal for a directive

Article 312 – paragraph 1 – point c –3 subparagraphb 2(new)

Justification

Environmental crimes are very often cross-border in nature. To avoid the externalisation of environmental damage, it should be possible to prosecute a legal or natural person for crimes committed in a third country, in particular in the case of ecocide.

Amendment 49

Proposal for a directive

Article 313 – paragraph 1 – point c a (new)

Amendment 50

Proposal for a directive

Article 313 – paragraph 1 – point c b (new)2

Justification

Both natural and legal persons should be protected when they report environmental offences or assist the investigation. Civil Society Organisations (CSOs), which are often at the forefront of detecting environmental crime need to be protected as well.

Amendment 51

Proposal for a directive

Article 314 – paragraph 1 –point c c (new)

Amendment 52

Proposal for a directive

Article 314 – paragraph 1 – point d a (new)

Justification

A minimum level of rights should be awarded to the general public in its capacity of exercising representation of nature as a victim of an environmental crime.

Amendment 53

Proposal for a directive

Article 315 – paragraph 1 – point d b (new)

Amendment 54

Proposal for a directive

Article 315 – paragraph 1 – point e – introductorya part(new)

Amendment 55

Proposal for a directive

Article 3 – paragraph 1 – point e – point i

Article 15 a (new)

Amendment 56

Proposal for a directive

Article 316 – paragraph 1 – point e – point ii

Amendment 57

Proposal for a directive

Article 317 – paragraph 1 – point h

Amendment 58

Proposal for a directive

Article 318 – paragraph 1 – point i

Amendment 59

Proposal for a directive

Article 3 – paragraph 1 – point j

Article 19 a (new)

Amendment 60

Proposal for a directive

Article 320 – paragraph 1 – point ka

Amendment 61

Proposal for a directive

Article 320 – Paragraphparagraph 1 – point k a (new)b

Amendment 62

Proposal for a directive

Article 320 – paragraph 1 – point lc

Amendment 63

Proposal for a directive

Article 320 – paragraph 1 – point me

Amendment 64

Proposal for a directive

Article 320 – paragraph 1 – point nf

Amendment 65

Proposal for a directive

Article 320 – paragraph 1 – point ng a (new)

Amendment 66

Proposal for a directive

Article 321 – paragraph 1 – point n b (new)2

Amendment 67

Proposal for a directive

Article 3 – paragraph 1 – point o

Amendment 68

Proposal for a directive

Article 3 – paragraph 1 – point p – point ii

Amendment 69

Proposal for a directive

Article 3 – paragraph 1 – point r a (new)

Amendment 70

Proposal for a directive

Article 3 – paragraph 1 – point r b (new)

Amendment 71

Proposal for a directive

Article 3 – paragraph 2

Amendment 72

Proposal for a directive

Article 3 – paragraph 2 a (new)

Amendment 73

Proposal for a directive

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

Amendment 74

Proposal for a directive

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

Amendment 75

Proposal for a directive

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

Amendment 76

Proposal for a directive

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

Amendment 77

Proposal for a directive

Article 3 – paragraph 4 – introductory part

Amendment 78

Proposal for a directive

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

Amendment 79

Proposal for a directive

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

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

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