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DRAFT OPINION (COM(2021)851 – C90466/2021 – 2021/0422(COD))

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

DEVE-PA-731806

Committee on Development · Rapporteur: Caroline Roose

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The Committee on Development's draft opinion on the proposed directive on protecting the environment through criminal law asks the Committee on Legal Affairs to take account of its amendments. It wants a human rights approach, a crime of ecocide, autonomous environmental offences, and an external dimension covering developing countries. The amendments add definitions of environment, severe, widespread and long-term damage, wanton and planetary boundaries, and broaden the definition of victim to include future generations, communities and the environment itself. They extend the offences to fisheries crime, illegal minerals, serious breaches of corporate due diligence and sustainability reporting rules, and exports of banned pesticides, and require Member States to establish jurisdiction over offences committed for the benefit of a legal person on their territory. They raise fines to at least 15% of worldwide turnover, set 15 to 30% for ecocide, add aggravating circumstances, remove the limitation period for ecocide, and require cooperation with developing countries and better data collection.

Committee position. The rapporteur welcomes the Commission proposal but proposes amendments to add a human rights approach, an external dimension for developing countries, autonomous environmental offences, a crime of ecocide, broader jurisdiction, higher sanctions and better data collection.

Key points

  1. The rapporteur welcomes the Commission proposal but says further changes are needed, starting with an external dimension reflecting the transboundary character of environmental crime and its impact on developing countries.
  2. Amendment 1 adds a recital stating that under Article 208 TFEU the Union must take account of development cooperation objectives in policies likely to affect developing countries.
  3. Amendment 19 amends Article 1 so the directive also aims to prevent human rights violations and abuses resulting from environmental criminal offences.
  4. Amendments 20 to 25 add definitions of environment, severe damage, widespread damage, long-term damage, wanton and planetary boundaries, based on the Independent Expert Panel for the Legal Definition of Ecocide published in June 2021.
  5. Amendment 28 broadens the definition of victim to include natural persons including future generations, relatives, legal persons and the environment itself.
  6. Amendments 29 and 30 add autonomous offences: exposing the environment to an immediate risk of substantial damage, and knowingly causing substantial damage to the environment.
  7. Amendment 50 requires Member States to introduce a crime of ecocide, defined as unlawful or wanton acts committed with knowledge of a substantial likelihood of severe and widespread or long-term damage to the environment.
  8. Amendments 34, 37, 38 and 39 extend the offences to exports of substances not complying with the pesticides directive, serious fisheries infringements, illegal mineral extraction and trade, and serious breaches of corporate due diligence and sustainability reporting obligations.
  9. Amendment 63 raises the maximum fine to not less than 15% of total worldwide turnover, and Amendment 65 sets fines for ecocide between 15 and 30% of worldwide turnover.
  10. Amendments 66 to 71 add aggravating circumstances including severe human rights impacts, effects on vulnerable groups, abuse of weaknesses in developing countries' rule of law, and gross violation of due diligence systems.
  11. Amendment 72 removes the limitation period for investigation, prosecution, trial and adjudication of ecocide offences.
  12. Amendment 80 requires Member States to cooperate with each other, with Union bodies such as Eurojust, Europol, the European Public Prosecutor's Office, CEPOL and the Fundamental Rights Agency, and with developing countries, and the Commission to support capacity building there.

Who is affected

  • Developing countries: the amendments add an external dimension, jurisdiction over offences benefiting EU legal persons, and development cooperation support.
  • Legal persons and companies: they can be held liable, face higher fines and be excluded from public funding, and must apply due diligence schemes.
  • Environmental defenders: they should benefit from protection measures and protection from abusive lawsuits.
  • Victims, including future generations, local communities and the environment itself: the definition of victim is broadened.
  • Member States: they must introduce ecocide as a crime, establish jurisdiction, train staff and collect data.

Figures and deadlines

  • Environmental crime is the fourth largest criminal sector in the world and grows two to three times faster than the global economy.
  • It represents one to twice the size of global official development assistance.
  • Fisheries crime represented between 11–23.5 billion USD of annual loss of resources in 2016.
  • Maximum fine of not less than 15% of total worldwide turnover for offences under Article 3(1).
  • Fines for ecocide between 15 and 30% of total worldwide turnover.
  • Maximum term of imprisonment of at least ten years for offences causing death or serious injury.
  • The Independent Expert Panel for the Legal Definition of Ecocide published its definition in June 2021.
  • France has banned exports of banned pesticides since 2022.

Legal basis: Article 208 of the Treaty on the Functioning of the European Union