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A new EU directive, called one of the world’s “most ambitious” efforts to punish environmental crimes, allows polluters – individuals and companies – to be charged under criminal law and establishes that the maximum term of imprisonment should not be less than 10 years for serious environmental crimes.
After several years of legislative procedure and debates, the EU published the Directive On The Protection of the Environment Through Criminal Law and Replacing Directives 2008/99/EC and 2009/123/EC in April 2024. The directive establishes EU-wide rules on environmental offenses, which can be punishable by fines and imprisonment, exclusion from access to public funding, and withdrawal of permits and authorizations, among other sanctions.
The directive expands the list of nine offenses covered in Article 3 of Directive 2008/99/EC to include 20 criminal offenses (Article 3(2)) that can lead to prosecutions, sanctions, and fines.
It also covers crimes similar to ecocide as “qualified offenses” that are defined as the “destruction of, or widespread and substantial damage that is either irreversible or long-lasting to, an ecosystem of considerable size or environmental value or a habitat within a protected site or to the quality of air, soil, or water.”
Marie Toussaint, MEP and a Legal Affairs Committee member of The Greens/European Free Alliance, said that with this new directive, “The EU is adopting one of the world's most ambitious pieces of legislation to combat environmental crime. It will allow for a more effective and better protection of individuals who suffer as a result of such damage. The perpetrators of these crimes will therefore be prosecuted and punished more severely in the case of ‘qualified offenses,’ which encompass conduct comparable to ecocide.”
The new EU law replaces Directive 2008/99/EC, which was evaluated during 2019-2020. The review found multiple problems, including “considerable enforcement gaps in all member states and at all levels of the enforcement chain (police, prosecution, and criminal courts).”
A legislative proposal to replace the 2008 directive was adopted on 15 December 2021. Six key objectives were identified to improve the effectiveness of criminal investigations and prosecution. These include redefining environmental crime that left too much room for interpretation, creating new environmental crime sectors, defining sanction types and levels for environmental crimes, and fostering cross-border investigation and prosecution.
Expanded List of Environmental Offenses
The new Directive On The Protection of the Environment Through Criminal Law and Replacing Directives 2008/99/EC and 2009/123/EC, signed by the EU Parliament and EU Council in April 2024, defines offenses punishable by a maximum term of imprisonment of not less than 10 years if they cause or are likely to cause death or serious injury to any person.
While Article 3 of Directive 2008/99/EC on offenses listed 9 points (a-i), Article 3(2) of the new directives lists 20 criminal offenses from (a) to (t).
Grimanesa Till, Senior Chemical Business Advisor, Regulatory Consulting at 3E, explains, “The recently approved environmental crime directive shifts towards categorizing serious violations of chemical legislation, such as REACH and CLP, as criminal offenses, especially when non-compliance leads to significant harm to human health or the environment; currently, they have been handled as administrative offenses. The consequences for individuals and companies include prison and fines (polluter pays principle). This shows how the EU is acting to reinforce environmental compliance.”
Some of the offenses listed in the new directive include:
- The discharge, emission, or introduction of a quantity of materials or substances or ionizing radiation into air, soil, or water which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, the quality of soil, or the quality of water, or to animals or plants.
- The placing on the market of a product which, in breach of a prohibition or another requirement on environmental protection, causes or is likely to cause death or serious injury to any person or substantial damage to air, water, or soil quality, or to animals or plants as a result of the product's use on a larger scale.
- The manufacture, placing on the market, or use of substances (prohibited and restricted by current legislations), whether on their own, in mixtures, or in articles, including their incorporation into articles where such activities can lead to or are likely to cause the death of a person or severe injury to any person or substantial damage to the environment.
- The execution of projects referred to in Article 1(2)(a) of Directive 2011/92/EU, which were carried out without development consent and which cause or are likely to cause substantial damage to the environment, including the quality of air, soil, or water.
Illegal surface water abstraction causing substantial damage to water bodies and breaches related to manufacturing, importing, exporting, or releasing fluorinated greenhouse gases are also covered under criminal offenses.
Waste Management Offenses
Companies can come under the new law's radar for waste management offenses. The new directive criminalizes activities related to waste collection, transport, recovery, or disposal; the supervision of such operations; and the aftercare of disposal sites when such conducts cause or are likely to cause death or serious injury to any person or substantial damage to the environment, including air and water quality.
Crimes Against Wildlife
Criminal offenses under the law include the killing, destruction, possession of, or trade in protected wild animal or plant species as a criminal offense and the trade of specimens or specimens, or parts or derivatives thereof, of a species of wild fauna or flora.
“Having harmonized sanction levels across the entire European Union is a step in the right direction, but the current levels are not reflecting the gravity of environmental crimes,” said Audrey Chambaudet, Wildlife Trade & Wildlife Crime Policy Officer at WWF European Policy Office. “Thanks to the determination of the European Parliament, the inclusion of a qualified offense covering the most severe environmental crimes, punishable by higher sanctions, adds teeth to the law and will provide competent authorities with a new tool in their arsenal.”
Background: Increase in Environmental Crime
The new legislation was proposed in the wake of many studies indicating the exponential rise in environmental crimes.
According to a joint Interpol and United Nations Environmental Program (UNEP) report, “Environmental crime is the fourth-largest criminal activity in the world, growing at a rate of between 5 % and 7 % per year.”
According to a EUROPOL report, “Environmental crime is highly lucrative – it can be as profitable as illegal drug trafficking – but the sanctions are much lower, and it is harder to detect. These factors make it highly attractive for organized crime groups.” The report added that the annual value of transnational environmental crime is estimated to be worth USD 70 billion to 213 billion annually.”
Criminal Procedures Against Company Officials Responsible for Environmental Offenses
The new legislation also impacts CEOs and board members of companies that committed environmental crimes. Imprisonment and other punishments will be based on several factors, such as the death of a person, the extent of environmental damage, and aggravating circumstances.
Some points mentioned in the new legislation include:
- A maximum term of not less than 10 years for criminal offenses covered by Article 3(2), points (a) to (d), and points (f), (j), (k), (l), and (r), when they cause the death of any person.
- A maximum term of not less than eight years for offenses covered by Article 3(3).
- A maximum term of not less than five years for criminal offenses covered by Article 3(4), where that paragraph refers to Article 3(2), points (a) to (d), and points (f), (j), (k) and (l) when they cause the death of any person.
Financial Impact on Entities Causing Environmental Offenses
Companies found to have committed serious environmental crimes covered by the new directive could be fined at least 5% of the total worldwide turnover or €40 million.
For offenses such as the abstraction of surface water or groundwater causing substantial damage to the ecological status of groundwater bodies or the deterioration of habitat within a protected site, the maximum fine will be at least 3% of turnover or €24 million.
Additional sanctions may be used against individuals and companies responsible for environmental crimes, such as:
- An obligation to reinstate the environment or compensate for the damage
- Exclusion from access to public funding, including tender procedures, grants, concessions, and licenses
- Temporary or permanent disqualification from the practice of business activities
- Withdrawal of permits and authorizations to pursue activities that resulted in the relevant criminal offense
- Closure of establishments used for committing the offense
Offenses Despite Obtaining Lawful Authorizations
Holding a lawful authorization does not preclude companies or officials from being held criminally liable where the authorization is in manifest breach of relevant substantive legal requirements.
Under the new EU directive, “Individuals can be held liable if they were aware of the consequences of their decisions, and if they had the power to stop them,” remarked Antonius Manders, Dutch MEP from the European People's Party Group (Christian Democrats), according to a Euronews report.
Manders reportedly cited the example of per- and polyfluoroalkyl substances (PFAS), remarking, “Today, we know that the chemicals [PFAS] cause cancer and even death.” He noted that even a chemical company with the necessary permits to operate and produce products that include PFAS will need to stop producing certain chemicals or products when the new directive comes into force ”since it has been proved that PFAS harms people.”
Stronger EU-Wide Cooperation
The new law promotes increased cross-border coordination by asking member states to work with agencies such as Eurojust, Europol, the European Public Prosecutor’s Office, and the European Anti-Fraud Office in their respective areas of competence. EU member states will be required to share information about people convicted of the criminal offenses defined in this directive with national competent authorities.
Public Participation
The new directive allows public participation in environmental crime proceedings, stating that members of the public concerned should be able to act on behalf of the environment as a public good as per relevant rules.
Also, people affected or likely to be affected by criminal offenses or having a sufficient interest, including non-governmental organizations promoting environmental protection, will be granted appropriate procedural rights in proceedings concerning those offenses, subject to the provisions of the law.
Next Steps
From natural resource extraction to the supply chain, disposal of chemicals, and waste management, the new EU directive on the Protection of the Environment Through Criminal Law has far-reaching implications that can go beyond reputational risks, negative financial impacts, and the imprisonment of top officials to the shutdown of business units.
The EU member states are required to implement the laws, regulations, and administrative provisions necessary to comply with the new directive within two years of its entry into force.
Companies manufacturing, importing, using, or disposing of chemicals need to reassess and revise their compliance strategies, taking into account measures to identify, prevent, and immediately correct legislation breaches that can lead to environmental crimes.
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About the authors: Sandy Smith, Industry Editor, 3E, is an award-winning newspaper reporter and business-to-business journalist who has spent 20+ years researching and writing about EHS, regulatory compliance, and risk management and networking with EHS professionals. She is passionate about helping to build and maintain safe workplaces and promote workplace cultures that support EHS. She has presented at major conferences and has been interviewed about workplace safety and risk by The Wall Street Journal, CNN, and USA Today.
Shreeja Dayanand is an editor and reporter for the 3E proprietary news team, which provides up-to-the-minute news on regulatory action, legal decisions, and industry news covering chemicals, ESG, sustainability, and climate change. She has an 18-year career, including roles in editorial management, content management, CSR, and corporate communications. Shreeja has also been an S&P Global newswriter in the Europe and EMEA Financial Institutions team for three years and an editor of several books.
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