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

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.

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.

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.

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.

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:

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;

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;

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;

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;

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 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 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 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 2

Or. en

Justification

There is a need to underline that environmental crimes also have negative effects on the well-being of citizens, for example in cases when the crime leads to health issues of people residing in the nearby area. In addition, cross-border cooperation needs to be sufficiently reflected in the text, since it is crucial for the implementation of the Directive.

Amendment 2

Proposal for a directive

Recital 5

Or. en

Justification

Such guidelines will help the Member States to apply the same level of penalties for the same crimes and by doing so better achieve the objectives of this Directive. 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.

Amendment 3

Proposal for a directive

Recital 14

Or. en

Justification

Same level of applicability of accessory sanctions is a way to prevent jurisdiction-shopping for criminals, who might hide themselves in jurisdictions where less strict penalties are applied. Consistent penalties across EU Member States will dissuade the criminals who still consider such activities as low-risk and high-gain. It is more appropriate to use “finance and complete the restoration ”, rather than "restore", since crime perpetrators do not have the competence and the knowledge to restore the destroyed area.

Amendment 4

Proposal for a directive

Recital 17

Or. en

Justification

The revenue obtained through environmental crime should be used to finance the nature conservation measures, the measures to fight environmental crime and the compensation to the victims. Such financing will give more resources for achieving the objectives of the Directive.

Amendment 5

Proposal for a directive

Recital 22

Or. en

Justification

Equal penalties for the same crime will make the implementation of this Directive easier and more efficient. It will also facilitate the work of judicial authorities in cross-border situations.

Amendment 6

Proposal for a directive

Recital 24

Or. en

Justification

Instead of "people" it is more appropriate to talk about NGOs, as well as ordinary EU citizens who witness potential offences against environment and can help in reporting and investigating on the environmental crime, due to their proximity to the issues on the ground and their valuable testimony. By speaking of "citizens and GNOs" we underline the agency they have in reporting the crime.

Amendment 7

Proposal for a directive

Recital 30

Or. en

Justification

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 competences and tools, this is the institution that is best placed to coordinate and support the efforts of the Member States. EU Green Prosecutor will provide MS with investigative support, coordinate cross-border operations, bring the criminals to justice, share information and best practices, introduce innovation in law enforcement. It will also have a deterrent effect on potential offenders.

Amendment 8

Proposal for a directive

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 9

Proposal for a directive

Recital 32

Or. en

Justification

Financial cost of the crime is an important indicator of the crime scope, which is both necessary for the estimation of the penalties and of the restoration efforts. Member States should be bound by the Commission to submit the data on the environmental crime, as it has economic and security consequences going far beyond the borders of one State.

Amendment 10

Proposal for a directive

Article 1 – paragraph 1

Or. en

Justification

It is necessary to underline that this Directive recast is not limited to the definitions, but brings us further in combatting the crime and gives us more solid tool, compared to the current Directive 2008/99/EC.

Amendment 11

Proposal for a directive

Article 3 – paragraph 1 – point l

Or. en

Justification

"Negligible" quantity leaves margin for interpretation, therefore it is better to avoid this term. Wild fauna or flora species, even when not explicitly protected, are part of the ecosystem and i.a. contribute to the life cycles of protected species, and therefore their killing should be considered as an offence.

Amendment 12

Proposal for a directive

Article 3 – paragraph 1 – point n

Or. en

Justification

Not only the marketing of illegally cut wood should be considered as a criminal offense, but also the initial act of illegal harvesting, which is a deliberate and unlawful action playing the role of the first element in the criminal chain. Illegal logging product could only be placed on the market if the initial act of illegal logging took place.

Amendment 13

Proposal for a directive

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

Or. en

Justification

When the fire is put to the forest in an illicit way or as a consequence of negligence this should be considered as a serious offence, and imply proportionate penalty measures.

Amendment 14

Proposal for a directive

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

Or. en

Justification

Systematically cruel treatment of animals should be considered as an offence and imply proportionate penalties for the perpetrators.

Amendment 15

Proposal for a directive

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

Or. en

Justification

Poisoning and the unregulated use of explosives can lead to serious damages to the flora and fauna. In many cases, domestic animals may become victims of poisoned baits.

Amendment 16

Proposal for a directive

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

Or. en

Justification

The cost of restoring the damaged nature is an important indication of how substantial the damage is. In the context where the restauration is paid from public resources, its cost should be considered for the investigation, prosecution and adjudication, in order to apply adequate punishment measures. The damage has consequences for the public, but the restauration financing too. In addition, a monetary estimation of the crime is a push factor for the Member State authorities to take action, since currently the restoration mainly involves public resources.

Amendment 17

Proposal for a directive

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

Or. en

Justification

It is an important indicator of the crime scale and the tools to be used to prevent and combat it. Estimation of financial gains is also necessary to attribute a penalty level.

Amendment 18

Proposal for a directive

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

Or. en

Justification

The definition of the cross-border dimension of the crime is needed to define the tools for investigation and prosecution of such crime.

Amendment 19

Proposal for a directive

Article 3 – paragraph 4 – introductory part

Or. en

Justification

It is appropriate to underline that entire ecosystems can be affected by environmental crime.

Amendment 20

Proposal for a directive

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

Or. en

Justification

Financial gains obtained by the perpetrators represent an important indicator of the crime scale and the tools to be used to prevent and combat it. It is also instrumental to attributing a penalty level.

Amendment 21

Proposal for a directive

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

Or. en

Justification

Environmental crimes, especially in large scale, are often linked to other serious criminal offences. This link needs to be identified and addressed.

Amendment 22

Proposal for a directive

Article 4 – paragraph 2

Or. en

Justification

All the points under Art3 (1) should be subject to the punishment as criminal offence. The exceptions to this are not justified.

Amendment 23

Proposal for a directive

Article 5 – paragraph 5 – introductory part

Or. en

Justification

It is a matter of justice to make the criminals pay for the restoration of the affected nature and deny the access to public funding and procedures that were misused during the crime. Making the measures under Art 5.5 optional would have less of a dissuasive effect on the criminals, therefore the word "shall" is preferential.

Amendment 24

Proposal for a directive

Article 5 – paragraph 5 – point a

Or. en

Justification

Crime perpetrators do not always have the competences to reinstate the environment themselves, this is why they need to rather finance the restoration until it’s finished. This provision will also act as a dissuasive factor.

Amendment 25

Proposal for a directive

Article 5 – paragraph 5 – point b

Or. en

Justification

The fine should be proportionate to the crime. Higher fines will have a deterrent effect on the perpetrators who intend to commit significant crimes.

Amendment 26

Proposal for a directive

Article 7 – paragraph 2 – point b

Or. en

Justification

Crime perpetrators do not always have the competences to reinstate the environment themselves, this is why they need to rather finance the restoration until its finished. This provision will also act as a dissuasive factor.

Amendment 27

Proposal for a directive

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

Or. en

Justification

Environmental crimes, especially in large scale, are often linked to other serious criminal offences. 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

Amendment 28

Proposal for a directive

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

Or. en

Justification

Offences within EU protected areas should be considered as an aggravating factor for the establishment of a penalty.

Amendment 29

Proposal for a directive

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

Or. en

Justification

The damage to an area of cultural importance constitutes a negative externality of the environmental crime and should be considered as an aggravating factor.

Amendment 30

Proposal for a directive

Article 9 – paragraph 1 – point a

Or. en

Justification

The perpetrators do not always have the competence and the knowledge to restore the nature themselves, but they can facilitate and finance the restoration.

Amendment 31

Proposal for a directive

Article 10 – paragraph 1

Or. en

Justification

Proceeds from crimes should be used to repair damages caused, including compensating victims and financing measures aimed at combating similar crimes, and to ensure that criminals do not retain any benefits or profits from the crime.

Amendment 32

Proposal for a directive

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

Or. en

Justification

Legal entities connected to the environmental crime should be bound by this Directive too, in order to avoid loopholes, even when they are established in another jurisdiction.

Amendment 33

Proposal for a directive

Article 12 – paragraph 2 – subparagraph 1

Or. en

Justification

Criminal proceedings on environmental crime should be also referred to Europol, as it would help the law enforcement in other Member States. Europol plays an important role in addressing the European angle of environmental crime and this is recognised in the revised Directive. But a stronger call on Member States to share information with Europol is necessary.

Amendment 34

Proposal for a directive

Article 12 – paragraph 3 a (new)

Or. en

Justification

As mentioned in the explanatory note, given the possible devastating impacts of environmental crimes on the environment and human health, it is important that potential perpetrators do not perceive parts of the EU as operating a lighter and less effective regulatory regime. This shows a need of a common tool to prosecute such crime in all the EU jurisdictions. An EU Green Prosecutor is necessary in order to provide investigative support, coordinate cross-border operations, bring the criminals to justice, share best practices. It will have a deterrent effect on potential offenders.

Amendment 35

Proposal for a directive

Article 13 – paragraph 1

Or. en

Justification

NGOs and associations exposing environmental crime can become victims of retaliation and need to be protected.

Amendment 36

Proposal for a directive

Article 13 – paragraph 2

Or. en

Justification

NGOs exposing environmental crime can become victims of retaliation and need to be protected.

Amendment 37

Proposal for a directive

Article 14 – paragraph 1

Or. en

Justification

It is necessary to prevent the dismissal by the judicial authorities of cases related to environmental crime. There is the need to guarantee civil society participation as per the transparency framework laid out in Article 13 of the Paris Agreement and the referrals brought by the members of public need to be duly addressed.

Amendment 38

Proposal for a directive

Article 15 – paragraph 1

Or. en

Justification

To prevent environmental crime, we need to address low-risk/high-gain logic. The mere fact of the establishment of the EU Green Prosecutor will by itself act a s a deterrent. Systematic application of high penalties will work as a prevention measure too.

Amendment 39

Proposal for a directive

Article 16 a (new)

Or. en

Justification

The broad and complex scope of environmental crime requires specialized and dedicated law enforcement units. These units must be well trained and equipped with the necessary financial and technical resources to carry out their duties. The Proposal recognizes these requirement on a macro level by including specific articles on resources, training, investigative tools and coordination between competent authorities. However, the revised Directive still lacks the clear and mandatory requirement for Member States to set up specialized units in law enforcement agencies.

Amendment 40

Proposal for a directive

Article 18 – paragraph 1

Or. en

Justification

We have to use the existing EPPO structure with its tools and working methods, because these tools appear efficient in financial crime they should also be instrumental for achieving the objectives of this directive. SatCen has the capacity to deliver satellite data to the Member States to help in the assessment of the damage extent, as well as in the localisation of the criminal activity.

Amendment 41

Proposal for a directive

Article 19 – title

Or. en

Justification

Cross-border cooperation among the EU Member States and coordination across the whole of the EU is essential to the achieving of the objectives of this directive, given that the environmental crime is becoming increasingly cross-border.

Amendment 42

Proposal for a directive

Article 19 – paragraph 1 – introductory part

Or. en

Justification

The broad and complex scope of environmental crime requires specialized and dedicated law enforcement units. The revised Directive still lacks the clear and mandatory requirement for Member States to set up specialized units in law enforcement agencies. It would be big step forward, if the establishment of specialized units would be legally regulated.

Amendment 43

Proposal for a directive

Article 19 – paragraph 1 – subparagraph 2

Or. en

Justification

For the purpose of realisation of action listed in art 19, EU Green Prosecutor is the best suited option, as it would allow to coordinate the efforts taking into account different tendencies and realities on the ground in all the Member States.