04 Apr '24
The Council of the EU has adopted the “Directive on the protection of the environment through criminal law”. The Directive replaces earlier versions (2008/99 and 2009/123). The new Directive will become effective three weeks after publication, which has not taken place yet. Subsequently, member states will have two years to implement the Directive into national legislation.
Even though it will take some more time before national authorities will be able to enforce the new rules, we want to give a preview. After all, environmental criminal law is an increasing force to be reckoned with.
With this we mean that the sanctions that are given in the Netherlands are tending to get higher. As an example we refer to a recent verdict from the court in Oost-Brabant of 30 January 2024 (ECLI:NL:RBOBR:2024:306). In this case, a company was convicted and it received a fine of EUR 10,000,000 (the public prosecutor had asked for EUR 25,000,000). A penalty that is unprecedented in the Netherlands.
In addition, the Dutch Parliament will be discussing a new proposal that aims to make “ecocide” a criminal offence. This also shows the increasing popularity of environmental criminal law – just like a number of criminal complaints that have recently been filed against companies that are allegedly polluting the environment do.
Back to the Directive. The Directive also mentions higher sanctions. The starting point in European law was already that sanctions need to be effective and deterring. That starting point is maintained. For the most serious offences, legal entities may receive penalties up to EUR 40.000.000 of at least 5% of their annual turnover. Natural persons may get a prison sanction that may amount to 10 years or even more – in cases where someone has lost his life due to one of the offences that are mentioned in the Directive.
In addition, the Directive prescribes that national law contains provisions that may force offenders to restore environmental damage or to financially compensate any damages. Or to withdraw environmental permits.
The Directive also determines that 20 specific offenses will need to become part of national criminal law. The earlier Directives mentioned only 9. New offences are for instance timber trafficking, the illegal recycling of polluting components of ships and serious breaches of legislation on chemicals.
We foresee that the Directive will be one of more aspects that play a part in the increasing amount of environmental criminal investigations that we expect to be initiated in the near future. We also expect that the adapted legislation will increasingly be used to base criminal complaints on. All in all, there is ‘climate change’ in criminal law.
Do you have any questions about the Directive or about related subjects? Please contact Jouko Barensen of Hugo van Aardenne.
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