Companies will be responsible for the actions of their employees and severe penalties will be increased up to 5% of the total worldwide turnover or 40 million euros. For the rest of the offenses, the maximum fine will be 3% of the turnover or 24 million euros.
The European Union will sanction environmental offender companies with fines that will amount up to 5% of the total worldwide turnover for the most serious offenses or alternatively, up to 40 million euros. For the rest of the offenses, the maximum fine will be at least 3% of the turnover or alternatively, 24 million euros, as established in the text of the Environmental Protection Directive through criminal law, which updates Directive 2008/99/EC, which has been accepted by the European Council and Parliament.
The proposal clarifies some of the terms contained in the current directive and includes an updated list of environmental offenses, harmonized types and levels of sanctions, measures to strengthen international investigation and prosecution, improvements in the collection of statistical data, and measures to improve national policies. The review is designed to increase the effectiveness of the investigation and prosecution of these environmental offenses throughout the European Union (EU).
Illegal trafficking of waste and wildlife species, pollution offenses, and illegal trade in hazardous substances are the most common environmental crimes, according to Eurojust data. In most cases, environmental crime is not an isolated crime, but is related to organized crime, involving offenses such as fraud, document forgery, cybercrime, and money laundering. Criminal proceedings for environmental crimes must address corruption, money laundering, document fraud, cybercrime, all in relation to business activities, as the intention of the offender is to maximize profits or avoid expenses.
New types of sanctions
According to data provided by Brussels, environmental crimes are the fourth largest criminal activity (in terms of value) in the world. This criminal activity grows at an annual rate of between 5% and 7% annually, with estimated annual related revenues worldwide in 2016 in a range between 91 billion dollars and 258 billion dollars. In the EU, the illicit waste market generated an estimated average annual income of between 3.7 billion euros and 15.3 billion euros between 2014 and 2016. Environmental law enforcement is a multidisciplinary area that requires specialization and knowledge, as it combines administrative functions and criminal approaches, and involves a variety of specialized national authorities, along with police and prosecutors. The existence of different perceptions on key legal concepts of EU environmental policy has been generating difficulties in cross-border cooperation.
The Twenty-Seven, in addition, must include in their national regulations sanctions for individuals and companies with additional measures, such as the obligation for the offender to restore the environment to its original state or compensate for the damage, as well as exclude them from access to public financing and the withdrawal of permits and authorizations. It is even envisaged the temporary prohibition of running for public office and where there is a public interest, after an assessment of the specific case, the judicial resolution with the personal data of the convicted persons may be published.
Intentional crimes causing the death of a person will be punished with a maximum prison sentence of up to ten years (Member States may include even harsher penalties in their national legislation). Other offenses will result in imprisonment of up to five years.
Qualitative threshold
The Future Directive includes a qualitative threshold for behavior to constitute a crime. It means that the conduct causes death or serious harm to any person or substantial damage to air quality, water, or soil quality, or substantial damage to an ecosystem, animals, or plants. The maximum prison sentence for qualified offenses will be eight years.
To protect the environment to the fullest extent possible, this qualitative threshold must be understood in a broad sense, including substantial damage to wildlife and flora, habitats, and services made possible by natural resources and ecosystems, as well as ecosystem-based functions.
The profitability of environmental crimes, according to the EU institution, denounces that they make them very attractive to organized crime groups involved in smuggling, terrorism, money laundering, and corruption. In addition, the low detection rate of environmental crimes and weak sanctions are incentivizing offenders to commit environmental crimes.
Environmental crimes committed by organized crime not only undermine the rule of law, but also the social, economic, and political frameworks of the EU and its Member States. For example, legitimate companies generate lower incomes, resulting in a loss of tax revenue, which in turn negatively affects societies and services for EU citizens.
It is considered a crime of the utmost punishable severity, the discharge, emission, or introduction of a quantity of materials or substances, energy, or ionizing radiation into the air, soil, or water which causes or may cause death or serious injury to any person or substantial damage to air quality, soil quality or water quality, or to an ecosystem, animals or plants.
Thus, among the nine new types of offenses, some prominent ones are included, such as illegal logging, depletion of water resources, or violations of EU legislation on chemicals.
It also introduces the so-called qualified offense of causing the destruction of an ecosystem, such as large-scale forest fires, and therefore comparable to ecocide, defined by experts as any illicit or arbitrary act carried out knowingly with a high probability of causing serious, extensive, or lasting damage to the environment.
The importance of marketing
Thus, the marketing that is carried out by infringing a ban or other requirement intended to protect the environment, of a product whose use leads to the discharge, emission, or introduction of a quantity of materials or substances, energy, or ionizing radiation into the air, soil or water, that causes or may cause death or serious injury to any person or substantial damage to air quality, water or soil, or an ecosystem, animals, or plants as a result of the product’s use on a larger scale gains special importance.
Similarly, a wide punitive regulation is introduced on the manufacture, marketing, export or use of substances, alone, in mixtures, or in articles, including their incorporation into articles in various compliance situations.
These forms of crime are often interconnected with serious forms of environmental crime and, therefore, should not be treated in isolation. In particular, they also tend to cause substantial damage to the environment and human health, including devastating effects on nature and local communities. Furthermore, it is especially worrying that some of these crimes are committed with the tolerance or active support of administrations or competent officials in the performance of their public duties.
In some cases, such support even extends to the networks of corruption. Some examples of these behaviors include turning a blind eye or remaining silent in the face of environmental law violations after inspections; deliberately omitting inspections or controls, for example, regarding whether the permit holder is complying with its conditions; supporting resolutions or voting in favor of granting illegal licenses or issuing favorable reports that are falsified or detached from reality.
In the current line of corporate criminal liability, it is foreseen that Member States must take necessary measures to ensure that legal entities can be held responsible when the lack of oversight or control by the responsible individual has made it possible for a person under their authority to commit, for the benefit of the legal entity, any of the crimes included in the regulation.
