Council of theEuropean Union
Brussels, 1 December 2023
(OR. en)16069/23
Interinstitutional File:
2021/0422(COD)

LIMITE
COPEN 420
DROIPEN 170
JAI 1574
ENV 1393
CODEC 2299

'I' ITEM NOTE
From:
To:

Presidency/General Secretariat of the Council
Permanent Representatives Committee (Part 2)

No. Cion doc.:
No. prev. doc.:

14459/21 + COR 1
16026/23

Subject:

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- Confirmation of the final compromise text with a view to agreementI.

INTRODUCTION

1.

On 15 December 2021, the Commission submitted to the Council and the European
Parliament a proposal for a Directive of the European Parliament and of the Council on theprotection of the environment through criminal law and replacing Directive 2008/99/EC.1

114459/21 + COR 1 + ADD 1 + ADD 2 REV 1 + ADD 3.

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LIMITEEN2.

The proposal aims to improve the effectiveness of Directive 2008/99/EC on the protectionof the environment through criminal law. It defines environmental crime more precisely,adds new environmental crime categories under its scope, and introduces various newprovisions, including on minimum maximum sanctioning levels for natural and legal
persons.

3.

The draft Directive is based on Article 83(2) of the Treaty on the Functioning of theEuropean Union (TFEU) (ordinary legislative procedure).

4.

On 9 December 2022, the Council reached a general approach2 on the proposal, whichconstituted the mandate for negotiations with the European Parliament in the context of theordinary legislative procedure.3

5.

On 16 November 2023, a provisional agreement was reached between co-legislators,
resulting in the final compromise text as set out in the Annex to this note.

6.

After verification of this compromise text by the Commission, the Presidency and theEuropean Parliament, it was submitted for verification to the COPEN Working Party(16026/23). In the light of the comments made by delegations, a few minor (editing)refinements were made in the text, marked by bold type.

2
316171/22.
The European Parliament defined its position in April 2023 (8318/23). Antonius Manders(NL, EPP) was appointed rapporteur of the lead committee (JURI). Four committees (LIBE,
DEVE, ENVI, PETI) made advisory opinions.

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CONCLUSION

7.

The Permanent Representatives Committee is therefore invited to:(a)confirm agreement on the final compromise text as set out in the Annex to this notewith a view to reaching an agreement at first reading with the European Parliament;(b)authorise the Chair of the Permanent Representatives Committee to send a letter toinform the Chair of the European Parliament’s JURI Committee that, should theEuropean Parliament adopt its position at first reading on the text of the proposal in
the exact form as set out in the annex to this note, and subject to revision of that text
by the lawyer-linguists of both institutions, the Council will approve the European
Parliament’s position and the act will be adopted in the wording which corresponds
to the European Parliament’s position.

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ANNEX
2021/0422 (COD)

Draft
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on the protection of the environment through criminal law and replacing Directive
2008/99/EC

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article
83(2) thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Having regard to the opinion of the European Economic and Social Committee1,
Acting in accordance with the ordinary legislative procedure,1

OJ C, , p. .

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Whereas:(1)

According to Article 3(3) of the Treaty on European Union (TEU) and Article 191 of theTreaty on the Functioning of the European Union (TFEU), the Union is committed toensuring a high level of protection and improvement of the quality of the environment. The
environment should be protected in a wide sense, as set out under Article 3(3) TEU and
Article 191 TFEU, covering all natural resources - air, water, soil, ecosystems, including
ecosystem services and functions, wild fauna and flora including habitats, as well as
services provided by natural resources.

(1a)

According to Article 191(2) of the Treaty on the Functioning of the European Union(TFEU), Union policy on the environment should aim at a high level of protection taking
into account the diversity of situations in the various regions of the Union. It should bebased on the precautionary principle and on the principles that preventive action should betaken, that environmental damage should as a priority be rectified at source and that thepolluter should pay. Considering that the impact of environmental crime affects also
fundamental rights, the fight against environmental crime at Union level is crucial toensure the protection of these rights.

(2)

The Union continues to be concerned with the rise in environmental criminal offences andtheir effects, which undermine the effectiveness of Union environmental legislation. These
offences are moreover increasingly extending beyond the borders of the Member States inwhich the offences are committed. Such offences pose a threat to the environment andtherefore call for an appropriate and effective response, which often requires effective
cross-border cooperation.

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LIMITEEN(3)The existing systems of penalties under Directive 2008/99/EC of the European Parliamentand of the Council2 and environmental sectoral law have not been sufficient in allenvironmental policy area to achieve compliance with Union law for the protection of theenvironment. Compliance should be strengthened by the availability of effective,
proportionate and dissuasive criminal penalties corresponding to the seriousness of theoffences, which demonstrate social disapproval of a qualitatively different naturecompared to administrative penalties. Complementarity of criminal and administrative law
is crucial to prevent and deter unlawful conduct that damages the environment.

(4)

The effective detection, investigation, prosecution and adjudication of environmental
criminal offences should be improved. The list of environmental criminal offences whichwere set out in Directive 2008/99/EC should be revised and additional categories ofoffences based on the most serious breaches of Union environmental law should be added.
Provisions on sanctions and penalties should be strengthened in order to enhance theirdeterrent effect as well as the enforcement chain in charge of detecting, investigating,prosecuting and adjudicating environmental criminal offences.

(5)

Member States should criminalise offence categories and provide for greater precision on
the definitions of the offence categories, and harmonisation concerning sanction types andlevels.

(5a)

Failure to comply with a legal duty to act can have the same negative effect to theenvironment and human health as active behaviour. Therefore, the definition of offences inthis Directive should cover both acts and omissions, where applicable.

2

Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008
on the protection of the environment through criminal law (OJ L 328, 6.12.2008, p. 28).

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(6)Member States should provide for criminal penalties in their national legislation in respectof serious infringements of provisions of Union law concerning protection of theenvironment. In the framework of the common fisheries policy, Union law provides forcomprehensive set of rules for control and enforcement under Regulation (EC)No 1224/20093 and Regulation (EC) No 1005/2008 in case of serious infringements,
including those that cause damage to the marine environment. Under this system theMember States have the choice between administrative and/or criminal sanctioning
systems. In line with the Communication from the Commission on the European Green
Deal4 and the EU Biodiversity Strategy for 20305, certain intentional unlawful conduct
covered under Regulation (EC) No 1224/2009 and Regulation (EC) 1005/20086 should beestablished as criminal offences.

3

4

5

6

Commission Implementing Regulation (EU) No 404/2011 of 8 April 2011 laying down
detailed rules for the implementation of Council Regulation (EC) No 1224/2009 establishinga Community control system for ensuring compliance with the rules of the Common
Fisheries Policy (OJ L 112, 30.4.2011, p. 1–153).
COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT,THE EUROPEAN COUNCIL, THE COUNCIL, THE EUROPEAN ECONOMIC AND
SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS The European Green
Deal, COM/2019/640 final.
COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT,THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND
THE COMMITTEE OF THE REGIONS EU Biodiversity Strategy for 2030 Bringing natureback into our lives, COM/2020/380 final
Council Regulation (EC) No 1005/2008 of 29 September 2008 establishing a Community
system to prevent, deter and eliminate illegal, unreported and unregulated fishing, amending
Regulations (EEC) No 2847/93, (EC) No 1936/2001 and (EC) No 601/2004 and repealing
Regulations (EC) No 1093/94 and (EC) No 1447/1999, (OJ L 286, 29.10.2008, p. 1–32).

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(7)In order to constitute an environmental offence under this Directive, conduct should be
unlawful under Union law which contributes to the pursuit of one of the objectives of theUnion's policy on the environment as set out in Article 191 (1) TFEU, irrespective of its
legal basis, for instance, acts adopted on the basis of Articles 91, 114, 168 or 192 TFEU, or
under national laws, administrative regulations or decisions giving effect to that Union law.
The conduct which constitutes each category of criminal offence should be defined and,
where appropriate, a threshold which needs to be met for the conduct to be criminalised
should be set. Such conduct should be considered a criminal offence when committed
intentionally and, in certain cases, also when committed with at least serious negligence. In
particular, illegal conduct that causes death or serious injury of persons, substantial damage
or a considerable risk of substantial damage for the environment or is considered otherwise
as particularly harmful to the environment should also constitute a criminal offence whencommitted with at least serious negligence. This Directive does not require the introductionof the notion of at least serious negligence for each constituent element of the offence, suchas for possession, sale or offering for sale, placing on the market and similar elements. In
these cases, Member States may decide that the notion of at least serious negligence relates
to such elements of the offence as the protection status, negligible quantity, or the
likelihood of the act to cause substantial damage. Member States remain free to adopt ormaintain more stringent criminal law rules in that area.

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(8)A conduct should be considered unlawful also when it is carried out under an authorisation
by a competent authority in a Member State if such authorisation was obtained, inter alia,
fraudulently, or by corruption, extortion or coercion. Further, being in possession of suchan authorisation should not preclude the criminal liability of the holder of the authorisation,
where the authorisation is manifestly contrary to substantive legal requirements. In thiscontext, ‘in manifest breach of relevant substantive legal requirements’ should refer to an
obvious and substantial contradiction with substantive legal requirements. This does notinclude breaches of procedural requirements or minor elements covered under theauthorisation. This does not shift the duty to ensure legality of authorisations fromcompetent authorities to operators. Moreover, where an authorisation is required, the factthat the authorisation is lawful does not preclude criminal proceedings against the holder of
the authorisation who does not comply with all specific obligations of the authorisation orwith other relevant legal obligations not covered by the authorisation.

(8a)Moreover, operators should take the necessary steps to comply with the legislative,
regulatory and administrative provisions concerning the protection of environment
applicable when they carry out the respective activity, including by complying with their
obligations, as laid down in applicable EU and national laws, in procedures governing
amendments or updates to existing authorisations. This should also cover obligations of the
duty-holder to update and renew such authorisations.

(8c)With regard to offences and sanctions provided for in this Directive, legal persons should
be understood as not including States or public bodies exercising State authority and public
international organisations. As this Directive provides for minimum rules, Member States
could adopt more stringent rules in national law, including rules on criminal liability for
public bodies.

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(9)Some criminal offences in this Directive include a qualitative threshold requiring that the
conduct causes death or serious injury to any person or substantial damage to air, water orsoil quality, or to an ecosystem, animals or plants. In order to protect the environment to
the fullest extent possible, this qualitative threshold should be understood in a wide sense
including, where relevant, substantial damage to fauna and flora, habitats, to services
provided by natural resources and by ecosystems as well as to ecosystem functions. An
ecosystem should be understood as a dynamic complex of plant, animal, fungi andmicroorganism communities and their non-living environment, interacting as a functional
unit, and should include habitat types, habitats of species and species populations. An
ecosystem should also include ecosystem services, through which an ecosystem
contributes directly or indirectly to human wellbeing, and ecosystem functions, which referto natural processes in an ecosystem. Smaller units such as a beehive, an anthill or a stump
can be a part of an ecosystem but should not be considered as an ecosystem on its own forthe purposes of this Directive.

(9a)

The term injury used in the definition of certain offences in this Directive should beunderstood in a broad sense, covering any form of physical harm to a person, including achange in body function or cell structure, temporary, fatal or chronic disease, malfunctionof the body, deterioration of human physical health, but excluding mental health.

(9b)

The introduction of different forms of energy, such as heat, sources of thermal energy,
noise (including underwater noise) and other sources of sound energy, vibrations,electromagnetic fields, electricity or light, into the environment can cause substantial
damage to the quality of air, water or soil or substantial damage to an ecosystem, animals
or plants, or death or serious injury to persons. Various instruments of Union
environmental law regulate on the introduction of energy into the environment, forexample in the area of protection of water, the marine environment, noise control, waste
management and industrial emissions. Therefore, in such cases, unlawful introduction ofenergy into the environment should constitute an offence under this Directive if it causes oris likely to cause substantial damage to the environment or human health.

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LIMITEEN(9c)When offences defined in this Directive cover conduct such as making available or placing
on the market, sale, offering for sale or trading, this should include conduct committed bymeans of information and communication technologies (online trade).

(9d)This Directive defines as an offence the placing on the market, in breach of a prohibition or
another requirement aimed at protecting the environment, of a product, the use of which
results in the discharge, emission or introduction of a quantity of materials or substances,energy or ionising radiation into air, soil or water, which causes or is likely to cause
substantial damage to the environment or human health as a result of the product's use on alarger scale. In this context, a prohibition or another requirement aimed at protecting theenvironment should refer to Union law which has, among its stated objectives or aims theprotection of environment, including preserving, protecting and improving the quality ofthe environment, protecting human health, prudent and rational utilisation of natural
resource or combating the climate change, or promoting measures at international level todeal with regional or worldwide environmental problems. On the contrary, if the statedobjective of Union law concerns only one or more other areas of Union law, for example
protection of workers' health and safety, the conduct should not be covered under thisoffence. In this context, the use on a larger scale refers to the combined effect of the use of
the product by several users, notwithstanding their number, as long as the offence causes oris likely to cause damage to the environment or human health.

(9da)

Unlawful collection, transport and treatment of waste, the lack of the supervision of suchoperations and the after-care of disposal sites, including action taken as a dealer or a broker(waste management) may cause devastating effects to the environment and human health.
This includes situations when such unlawful conduct concerns harmful waste frompharmaceutical products or narcotics, including narcotic drugs, chemicals, waste
containing acids or bases or waste containing toxins, heavy metals, oil, grease, electricaland electronic waste, end-of-life vehicles or plastic waste. Therefore, Member Statesshould ensure that unlawful waste management constitutes a criminal offence when suchconduct concerns hazardous waste in a non-negligible quantity or other waste, and in suchlatter case when it causes or is likely to cause substantial damage to the environment orhuman health.

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LIMITEEN(9e)Concerning the offence on recycling of ships falling within the scope of Regulation (EU)
1257/2013 of the European Parliament and of the Council, it should be noted that in thecurrent state of Union law, the obligations set out in that Regulation only lay on shipowners, as defined in Article 3(1), point 14, of that Regulation.

(9f)

With regard to the determination of whether the quantity of a relevant product or relevant
commodity associated with deforestation or forest degradation is negligible or nonnegligible, Member States could take into account for example the quantity in net mass, or,where applicable, volume or number of items or the negligible scale of the activity inquestion in terms of quantity. Such assessment could also take into account, where
relevant, other criteria listed in this Directive, including the conservation status of thespecies concerned or the cost of restoration of environmental damage.

(9fa)

Criminal conduct defined under Article 3(2) of this Directive may lead to catastrophic
results, such as widespread pollution, industrial accidents with severe effects to theenvironment or large-scale forest fires. Where such an environmental offence causes thedestruction of, or widespread and substantial damage, which is either irreversible or longlasting, to an ecosystem of considerable size or environmental value, or to a habitat withina protected site, or to the quality of air, the quality of soil, or the quality of water, thecausation of this catastrophic result should be considered as a qualified offence and,
consequently, punished with more severe penalties. This qualified offence includes cases
comparable to ecocide, which is already covered by the legal systems of certain Member
States and which is being discussed in international fora.

(9g)

Where, for the purpose of assessing whether a conduct concerns non-negligible quantity,
this Directive refers to the extent to which the regulatory threshold, value or anothermandatory parameter is exceeded, this should among other things cover assessment of
hazardousness and toxicity. In particular, the more hazardous or toxic the material or
substance is, the sooner this threshold would be reached, as for particularly hazardous andtoxic substances or materials even a very small quantity can cause substantial damage tothe environment or human health.

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LIMITEEN(10)The acceleration of climate change, biodiversity loss and environmental degradation,paired with tangible examples of their devastating effects, have led to the recognition of
the green transition as the defining objective of our time and a matter of intergenerational
equity. The references in this Directive to the relevant terms in Union environmental law
used for the purpose of defining unlawful conducts should be construed, where applicable,in accordance with definitions provided in Union environmental law covered by thisDirective. This Directive should therefore also cover any Union acts amending provisions
or requirements relevant to defining unlawful conduct which falls within the scope of
criminal offences defined under this Directive. When drafting such amending Union acts,
the legislators are encouraged to include a reference to this Directive. However, when new
categories of unlawful conduct not yet covered by the scope of this Directive are defined inUnion environmental law, an amendment to this Directive should be required to include
those new categories of unlawful conduct in its scope.

(10a)Without prejudice to the dynamic nature of this Directive explained above, in the light ofwhich this Directive should also cover any Union acts amending provisions or
requirements relevant to defining unlawful conduct which falls within the scope of
criminal offences defined in this Directive, the Commission should regularly and where
necessary consider if there is a need to amend the definitions of offences set out in thisDirective, in particular when new categories of unlawful conduct not yet covered by thescope of this Directive are defined in Union environmental law.

(11)

Qualitative and quantitative thresholds used to define environmental criminal offences
should be clarified by providing a non-exhaustive list of circumstances which should betaken into account, where relevant, when assessing such thresholds by authorities which
detect, investigate, prosecute and adjudicate offences. This should promote the coherent
application of the Directive and a more effective fight against environmental crimes aswell as provide for legal certainty. However, such thresholds or their application should
not make the detection, investigation, prosecution or adjudication of criminal offences
excessively difficult.

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(11a)

Where an unlawful conduct provided for in this Directive, committed intentionally, causes
the death to any person, the intention should be interpreted in accordance with nationallaws, taking into account relevant case law of the Court of Justice of the European Union.
Therefore, it could be understood, for the purposes of this Directive, as the intention tocause death, or it could also cover the situation in which the perpetrator has acted, or
refrained from acting, voluntarily and in violation of a particular obligation, but without
wanting or accepting the death of any person that nevertheless occurred. The same logic
applies where an unlawful conduct provided for in this Directive, committed intentionally,
causes serious injury to any person, or the destruction of, or widespread and substantial
damage, which is either irreversible or long-lasting, to an ecosystem of considerable size orenvironmental value, or to a habitat within a protected site, or to the quality of air, thequality of soil, or the quality of water.

(11b)

With regard to the criminal offences provided for in this Directive, the notion of at least
serious negligence should be interpreted in accordance with national law, taking into
account relevant case law of the Court of Justice of the European Union.

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(12)In criminal proceedings and trials, due account should be taken of the involvement oforganised criminal groups operating in ways that negatively impact the environment.
Criminal proceedings should address corruption, money laundering, cyber-crime anddocument fraud and – in relation to business activities – the intention of the offender tomaximise profits or save expenses, where these occur in the context of environmental
crime. These crime forms are often interconnected with serious environmental crime forms
and should therefore not be dealt with in isolation. They are also in particular prone tocausing substantial damage to the environment and human health, including causing
devastating effects to the nature and local communities. Also, it is of particular concernthat some environmental crimes are committed with the tolerance or active support of thecompetent administrations or officials performing his/her public duty. In certain cases, thiscan even take the form of corruption. Examples of such behaviours are turning a blind eyeor remaining silent on the infringement of laws protecting the environment following
inspections, deliberately omitting inspections or controls for example with regard towhether the conditions of a permit are being respected by the permit-holder, resolutions orvotes in favour of granting illegal licences or issuing falsified or untrue favourable reports.

(13)

Inciting, and aiding and abetting the criminal offences committed intentionally should also
be punishable. An attempt to commit a criminal offence that causes death or serious injury
of a person, substantial damage to the environment or is likely to cause substantial damage
to the environment or is otherwise considered particularly harmful should also constitute a
criminal offence when committed intentionally. An attempt should be established inaccordance with national law. For the purpose of offence defined in letter (d) of Article
3(2), the execution of a project without a development consent should be understood ascomprising already the start of implementation of such project, including for example
starting works to prepare the ground for construction or other intervention to theenvironment. Therefore, this Directive does not list this offence among offences for whichattempt should be punishable as a criminal offence.

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(14)Sanctions for the offences should be effective, dissuasive and proportionate. To this end,
minimum levels for the maximum term of imprisonment should be set for natural persons.
The maximum terms of imprisonment provided for in this Directive for the offencesreferred to therein should apply at least to the most serious forms of such offences. The
criminal law systems of all Member States include provisions on homicide, either
committed intentionally or with serious negligence. Member States should be able to haverecourse to those general provisions, including provisions on aggravating circumstances,when transposing the provisions in this Directive relating to offences that cause death toany person, whether committed intentionally or with serious negligence.

(14a)

Accessory sanctions or measures are often seen as being more effective than financial
sanctions especially for legal persons. Additional sanctions or measures should betherefore available in the relevant proceedings. Those sanctions or measures could include
the obligation to reinstate the environment, temporary or permanent exclusion from accessto public funding, including tender procedures, grants and concessions and withdrawal of
permits and authorisations. This is without prejudice to the discretion of judges or courts incriminal proceedings to impose appropriate sanctions in the individual cases.

(14b)

Accessory sanctions or measures could, without prejudice to the requirements of Directive
2004/35/EC, include a requirement to reinstate the environment where the damage isreversible and a requirement to provide compensation where the damage is irreversible or
the perpetrator lacks the capacity to carry out a reinstatement.

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(15)Insofar as conduct constituting an environmental offence is attributable to legal persons,such legal persons should be liable for environmental criminal offences, as defined in thisDirective. Member States whose national law provides for the criminal liability of legal
persons should ensure that their national laws provide for criminal effective, dissuasive andproportionate sanction types and levels as laid down in this Directive in order to achieve its
objectives. Member States whose national law does not provide for the criminal liability oflegal persons should ensure that their national laws provide for non-criminal effective,
dissuasive and proportionate sanction types and levels as laid down in this Directive inorder to achieve its objectives. The maximum levels of fines provided for in this Directive
for the offences referred to therein should apply at least to the most serious forms of suchoffences. The seriousness of the conduct, as well as the individual, financial and othercircumstances of the legal persons, should be taken into account to ensure theeffectiveness, dissuasiveness and proportionality of the sanction imposed. With regard to
maximum levels of fines in national law, Member States may either use a percentage of thetotal worldwide turnover of the legal person concerned, or they may determine themaximum level of fines in absolute amounts. Member States should decide whichalternative they choose when transposing this Directive.

(15a)

Where, with regards to the determination of fines to be imposed on legal persons, Member
States opt to implement the criterion of the total worldwide turnover of a legal person, theyshould decide whether to calculate the total worldwide turnover based on either thebusiness year preceding the one in which the offence was committed, or the business year
preceding the fining decision, when transposing this Directive. They should also consider
providing for rules for cases where it is not possible to determine the amount of a fine on
the basis of the total worldwide turnover of the legal person in the business year preceding
the one in which the offence was committed, or in the business year preceding the fining
decision. In such cases, it should be possible to take into account other criteria, such as thetotal worldwide turnover in one of the other preceding business years. Where those rules
include the setting of amounts of fines in absolute numbers, then the maximum levels ofthese should not have to reach the levels established in this Directive as the minimum
requirement for the maximum level of fines determined in absolute amounts.

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(15b)

Where Member States opt for maximum level of fines determined in absolute amounts,
such levels should be laid down in national law. The highest levels of such fines should
apply to the most serious forms of offences provided for in this Directive, which arecommitted by financially strong legal persons. Member States may decide on the methodof calculation of those levels of fines including specific conditions for the highest levels of
those fines. Member States should be invited to regularly review the levels of fines
determined in absolute amounts with regard to rates of inflation and other fluctuations inmonetary value, in line with procedures set out in their national law. Member States that do
not have the euro as their currency should provide for maximum levels of fines in theircurrency corresponding to the levels determined in this Directive in euro on the date ofadoption of this Directive. Those Member States are invited to regularly review the levels
also with regard to the development of the exchange rate.

(15c)

The definition of the maximum level of fines is without prejudice to the discretion ofjudges or courts in criminal proceedings to impose appropriate sanctions in the individual
cases. As this Directive does not set out any minimum levels of fines, the judges or courts
should, in any case, impose appropriate sanctions taking into account the individual,
financial and other circumstances of the legal person concerned and the seriousness of the
conduct.

(15ca) Member States should take the necessary measures to ensure that legal persons held liable
for the qualified offence referred to in this Directive, are punishable by more severe
criminal or non-criminal sanctions or measures. For the purpose of this provision, Member
States should, in accordance with their national law, provide for a higher level of criminal
and non-criminal fines than the maximum level of fines set out in this Directive or provide
for more severe sanctions or measures otherwise, including criminal or non-criminal
sanctions or measures, or a combination thereof.
(15d)

Liability of legal persons under this Directive should not exclude criminal proceedings
against natural persons, who are perpetrators, inciters or accessories in the offencesreferred to in this Directive. Where the conditions for criminal liability are met, such
persons should also include corporate board members.

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(15e)

Member States should consider developing sanctions or measures alternative to
imprisonment in order to contribute to the restoration of the environment.

(16)

A further approximation and effectiveness of sanction levels imposed in practice should be
fostered through common aggravating circumstances that reflect the severity of the crimecommitted. The notion of aggravating circumstances should be understood either as facts
allowing the judge to pronounce a higher sentence for the same offence than the one
normally incurred without these facts, or as the possibility of retaining several offences
cumulatively in order to increase the level of sanction. Therefore, Member States should
not be obliged to provide for specific aggravating circumstances where national law
provides for separate criminal offences and this may lead to more severe sanctions.

(16a)

Member States should provide for the possibility of at least one of the aggravating andmitigating circumstances provided for in this Directive in accordance with applicable rules
established by their legal system. In any case, it should remain within the discretion of thejudge or the court to determine whether to increase or to decrease the sentence, taking into
account all the circumstances of the individual case.

(17)

This Directive should apply without prejudice to the general rules and principles ofnational criminal law on the sentencing or the application and execution of sentences inaccordance with the specific circumstances in each individual case. With regard toadditional sanctions or measures the Member States should decide which type of sanctions
or measures should be seen as appropriate. In particular, concerning the obligation toreinstate the environment within a given period, provided that the damage is reversible,
this Directive does not require that a judicial authority, if entitled to impose this obligationaccording to national law, should also be responsible for monitoring the execution of thisobligation. Likewise, concerning the withdrawal of permits and authorisations to pursue
activities which have resulted in committing the offence, if such a sanction can be imposed
under national law, Member States should ensure that national judicial authorities shouldbe able to either impose it themselves in their own proceedings, or that another competentauthority is informed and can act according to its national procedural rules.

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(17a)

This Directive should not affect civil liability in accordance with national law or the
obligation to compensate for harm or damage caused as a result of a specific offence
referred to in this Directive in accordance with Union or national law.

(17b)

The publication of personal data of convicted persons contained in judicial decisions
should only occur in duly justified exceptional cases following a case-by-case assessment,
weighing the public interest against the rights to privacy and protection of the personal dataof the convicted person as provided for in Articles 7 and 8 of the Charter respectively.
Therefore, the publication of personal data should only be considered in cases of serious
offences and where strong dissuasive effects are needed. The case-by-case assessment
could take into account elements such as the seriousness of the damage caused to theenvironment and/or the harm suffered by natural persons, whether the offence has beencommitted repeatedly in a specific environmental sector, whether the offence wascommitted by or for the benefit of a large corporation active in several Member States oran important market player in the specific sector. Any processing of personal data in thecontext of this Directive should comply with the applicable Union and Member States dataprotection legislation, in particular Regulation (EU) 2016/679 on the protection of natural
persons with regard to the processing of personal data and on the free movement of suchdata, and Directive (EU) 2016/680. on the protection of natural persons with regard to theprocessing of personal data by competent authorities for the purposes of the prevention,
investigation, detection or prosecution of criminal offences or the execution of criminal
penalties, and on the free movement of such data. This includes an obligation for Member
States to provide for appropriate safeguards for the rights and freedoms of data subjects
when publishing all or part of the judicial decision that relates to the criminal offence
committed and the sanctions or measures imposed. Additionally, the publication of thedecision imposing the sanctions or measures upon a legal person should be applied without
prejudice to the national rules governing the anonymization of court decisions or theduration of publication.

(18)

The obligations in this Directive to provide for criminal penalties should not exempt
Member States from the obligation to provide for administrative sanctions and othermeasures in national law for breaches established in Union environmental legislation.

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(19)Member States should define the scope of administrative and criminal law enforcement
clearly with regard to environmental offences according to their national law. In theapplication of national law transposing this Directive, Member States should ensure thatthe imposition of criminal sanctions and of administrative sanctions respects the principlesof the Charter of Fundamental Rights of the European Union, including the prohibition of
ne bis in idem.

(20)

Furthermore, judicial and administrative authorities in the Member States should have attheir disposal a range of criminal penalties and sanctions and other measures, including
preventive measures, to address different types of criminal behaviour in a tailored, timely,
proportionate and effective manner.

(21)

Where the crimes are of a continuing nature, they should be brought to an end as soon as
possible. Member States are encouraged to enable the competent authorities to order theimmediate cessation of unlawful conduct or to prevent the execution of such conduct.

(21b)

Where offenders have made financial gains, such gains should be confiscated. Member
States should take the necessary measures to allow that frozen and confiscated proceeds
and instrumentalities are appropriately managed, in line with their nature. Member Statesshould consider taking measures allowing confiscated property to be used, where possible,
to finance restoration of the environment or remediation of any damage caused, or toprovide compensation for the environmental damage, in accordance with national law.

(22)

Member States should lay down rules concerning limitation periods necessary in order toenable them to counter environmental criminal offences effectively, without prejudice tonational rules that do not set limitation periods for investigation, prosecution andenforcement. As a general rule, the start of a limitation period should be the moment when
the offence was committed. However, as this Directive sets minimum rules, Member States
could provide in their national legislation that the limitation period starts later, at the
moment when the offence was discovered, provided that such moment is clearly defined inaccordance with national law. Where Member States are permitted to derogate from thelimitation periods, provided that the period may be interrupted or suspended in the event ofspecified acts, such acts may be defined in accordance with the legal system of each
Member State.

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(23)Given, in particular, the mobility of perpetrators of illegal conduct covered by thisDirective, together with the cross-border nature of offences and the possibility of crossborder investigations, Member States should establish jurisdiction in order to counter suchconduct effectively. Member States should also cooperate with Eurojust, in particular on
the basis of Regulation (EU) 2018/1727 of the European Parliament and of the Council7, incases where conflicts of competence may arise. Jurisdiction established over offences
committed on board of a ship or an aircraft registered in it or flying its flag should takeaccount of related standards already existing under pertaining international conventions.
This Directive does not oblige Member States to newly establish such jurisdiction overoffences that, due to their nature, may not be committed on board of a ship or an aircraft.

(23a)

Member States are also obliged to establish jurisdiction over offences defined in thisDirective when the damage forming part of the constituent elements of the offence
occurred on their territory. In accordance with national law, this form of jurisdiction may
be covered under jurisdiction established over offences committed in whole or in part on
its territory, in line with the territoriality principle.

(23b)

To ensure successful enforcement, Member States should make available effective
investigative tools for environmental offences such as those which exist in their nationallaw for combating organised crime or other serious crimes, if and to the extent that the useof those tools is appropriate and proportionate to the nature and gravity of the offences as
defined in national law. Tools such as the interception of communications, covert
surveillance including electronic surveillance, controlled deliveries, the monitoring of bankaccounts and other financial investigation tools could be included. These tools should beapplied in line with the principle of proportionality and in full respect of the Charter ofFundamental Rights of the European Union. The right to the protection of personal data
must be respected.

7Regulation (EU) 2018/1727 of the European Parliament and of the Council of 14 November
2018 on the European Union Agency for Criminal Justice Cooperation (Eurojust), andreplacing and repealing Council Decision 2002/187/JHA (OJ L 295, 21.11.2018, p. 138–183).

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(24)Environmental criminal offences harm nature and society. Persons reporting breaches ofUnion environmental law perform a service of public interest and play a key role in
exposing and preventing such breaches, and thus safeguarding the environment and thewelfare of society. Individuals in contact with an organisation in the context of their workrelated activities are often the first to know about threats or harm to the public interest andthe environment. Persons who report irregularities are known as whistleblowers. Potential
whistleblowers are often discouraged from reporting their concerns or suspicions for fearof retaliation. Such persons benefit from balanced and effective whistleblowers protection
set out under Directive (EU) 2019/1937 of the European Parliament and of the Council8,
which includes Directive 2008/99/EC and Directive 2009/123/EC within its scope.
Following the replacement of Directives 2008/99/EC and 2009/123/EC by this Directive,
whistleblowers should, by virtue of this Directive, continue to benefit from that protection
from the Member States bound by it.

8

Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October
2019 on the protection of persons who report breaches of Union law (OJ L 305/17).

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(25)Other persons may also possess valuable information concerning potential environmental
criminal offences. They may be members of the community affected or members of society
at large taking an active part in protecting the environment. Such persons who reportenvironmental crimes as well as persons who cooperate with the enforcement of suchoffences should be provided with the necessary support and assistance in the context ofcriminal proceedings, so that they are not disadvantaged for their cooperation but
supported and assisted. The necessary support and assistance measures should be available
to such persons in accordance with their procedural rights in the national legal system andshould include at least all support and assistance measures available to persons having
corresponding procedural rights in criminal proceedings concerning other criminal
offences. Those persons should, in accordance with their procedural rights in the national
legal system, also be protected from being persecuted for reporting such offences or theircooperation in the criminal proceedings. The content of the necessary support andassistance measures is not defined by this Directive and should be determined by Member
States. Member States should not be required to make available the support and assistancemeasures to persons who are suspected or accused in the context of the criminal
proceedings concerned.

(25a)Member States should assess the need to enable persons to report environmental offences
anonymously, where such possibility does not yet exist.

(26)

Since nature cannot represent itself as a victim in criminal proceedings, for the purpose ofeffective enforcement members of the public concerned, should have the possibility to act
on behalf of the environment as a public good, within the scope of the Member States’
legal framework and subject to the relevant procedural rules.

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(26a)

This Directive should not require Member States to introduce new specific proceduralrights for the members of the public concerned. However, when such procedural rights formembers of the public concerned exist in a Member State in equivalent situations
concerning other criminal offences, for example where they have the right to participate asa civil party, such procedural rights should also be granted to the members of the publicconcerned in the proceedings concerning environmental offences defined in this Directive.
Rights of the members of the public concerned are without prejudice to the rights ofvictims as defined in Directive 2012/29/EU of the European Parliament and of theCouncil9. This Directive acknowledges that members of the public concerned and victims
remain two distinct concepts and does not require Member States to apply victims’ rights
to members of the public concerned. This Directive should not require Member States togrant to the public concerned the procedural rights in criminal proceedings that they grant
to categories of persons other than the public concerned.

9

Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012
establishing minimum standards on the rights, support and protection of victims of crime,and replacing Council Framework Decision 2001/220/JHA, (OJ L 315, 14.11.2012, p. 57–
73).

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(26b)

Member States should take appropriate action, such as information and awareness-raising
campaigns targeting relevant stakeholders both from the public and private sector andresearch and education programmes, aimed at reducing overall environmental criminal
offences, raising public awareness and reducing the risk of an environmental criminal
offence. Where appropriate, Member States should act in cooperation with thesestakeholders. In this context, actions aiming to improve prevention of environmental
offences could include promoting compliance and due diligence schemes, encouraging
operators to have compliance officers to help ensuring compliance with Union
environmental law, and promoting transparency in order to strengthen compliance withenvironmental law. Also, accessory sanctions to legal persons under this Directive may
include an obligation of companies to install due diligence schemes for enhancing
compliance with environmental standards, which also contributes to prevention of further
environmental offences. Moreover, Member States could consider establishing a fund tosupport prevention measures which effectively supports tackling environmental offencesand devastating consequences caused by them.

(27)

Lack of resources and enforcement powers for national authorities which detect,investigate, prosecute or adjudicate environmental criminal offences creates obstacles forthe effective prevention and punishment of environmental crimes. In particular, theshortage of resources is capable of preventing authorities from taking any action at all or
limiting their enforcement actions, allowing offenders to escape liability or to receive
punishment does not correspond to the gravity of the offence. Therefore, minimum criteria
concerning resources and enforcement powers should be established.

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LIMITEEN(28)The effective functioning of the enforcement chain depends on a range of specialist skills.
As the complexity of the challenges posed by environmental offences and the technicalnature of such crime require a multidisciplinary approach, a high level of legal knowledge,
technical expertise and financial support as well as a high level of training andspecialisation within all relevant competent authorities are necessary. Member Statesshould provide training appropriate to the function of those who detect, investigate,prosecute or adjudicate environmental crime. Where appropriate, Member States should,
taking into account the constitutional traditions and structure of their legal system, as wellas other national circumstances, including the size of the Member State concerned, assess
the need to strengthen specialisation of these authorities in the area of environmental
offences, in accordance with national law. Where the Member State concerned is small andhas only a limited number of competent authorities, the assessment could observe that inview of that limited number specialisation is not possible or advisable. In particular, tomaximise the professionalism and effectiveness of enforcement chain, Member Statesshould also consider assigning specialised investigation units, prosecutors and criminal
judges to deal with environmental criminal cases. General criminal courts could provide
for specialised chambers of judges. Technical expertise should be made available to all
relevant enforcement authorities.

(30)

To ensure an effective, integrated and coherent enforcement system that includes
administrative, civil and criminal law measures, Member States should organise internal
cooperation and communication between all actors along the administrative and criminal
enforcement chains and between punitive and remedial sanctioning actors. Following theapplicable rules, Member States should also cooperate through EU agencies, in particularEurojust and Europol, as well as with EU bodies, including the European Public
Prosecutor’s Office (EPPO) and the European Anti-Fraud Office (OLAF), in theirrespective areas of competence.

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(30a)

Without prejudice to the rules on cross-border cooperation and mutual legal assistance incriminal matters, there is a need for appropriate provision to be made for cooperation toensure effective action against the criminal offences defined in this Directive, including
technical and operational assistance provided, where appropriate, by Eurojust to thecompetent national authorities as they may need to coordinate their investigations. The
Commission could, where appropriate, provide assistance. Such assistance should notentail the participation of the Commission in the investigation or prosecution procedures ofindividual criminal cases conducted by the national authorities and should not be
understood as including financial support or any other budgetary commitment by theCommission.

(30b)

Member States should ensure the exchange of information between national authorities on
persons convicted for the offences referred to in this Directive in accordance with Council
Framework Decision 2009/315/JHA.

(31)

To ensure a coherent approach to combating environmental offences, Member Statesshould adopt, publish, implement and periodically review a national strategy on combating
environmental crime, establishing objectives, priorities and corresponding measures andresources needed. The national strategy should address, among other areas, the objectives
and priorities of national policy in this area of offence, the methods of coordination andcooperation between the competent authorities, the procedures and mechanisms for regularmonitoring and evaluation of the results achieved, and the assistance of European networks
working on matters directly relevant to combating environmental offences and related
infringements. Member States may decide on the appropriate format of such strategy
which may take into account their constitutional traditions in terms of separation of powers
and competences and may be either sectorial or a part of a broader strategical document.
Without prejudice to whether the Member States provide for the adoption of one or morestrategies, their overall content should encompass the territory of the entire Member State.

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LIMITEEN(32)To effectively tackle the criminal offences referred to in this Directive, it is necessary thatcompetent authorities in the Member States collect accurate, consistent and comparable
statistical data on environmental offences. Member States should therefore be obliged toensure that an adequate system is in place for the recording, production and transmission ofexisting statistical data on the offences referred to in this Directive. Those statistics should
be used to serve the operational and strategic planning of enforcement activities, to analyse
the scale of and trends in environmental offences, as well as for providing information to
citizens. Member States should transmit to the Commission relevant statistical data on
environmental crime proceedings collected from such data that already exist at a
centralised level or a decentralised level throughout the whole Member State. The
Commission should regularly assess and publish the results based on the data transmitted
by the Member States.

(33)

The statistical data collected under this Directive on environmental offences should becomparable between the Member States and collected on the basis of common minimum
standards. In order to ensure uniform conditions for the implementation of this Directive,
implementing powers should be conferred on the Commission to define the standard
format for statistical data transmission. Those powers should be exercised in accordancewith Regulation (EU) No 182/2011 of the European Parliament and of the Council10.

(33a)

Statistical data on types and levels of sanctions – including information on the related
crime categories – that are transmitted to the Commission in accordance with Article 21
should be determined under the Committee procedure provided for in this Directive.

10

Regulation (EU) No 182/2011 of the European Parliament and of the Council of
16 February 2011 laying down the rules and general principles concerning mechanisms forcontrol by the Member States of the Commission's exercise of implementing powers(OJ L 55, 28.2.2011, p. 13).

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LIMITEEN(34)The obligations under this Directive are without prejudice to Union law on proceduralrights in criminal proceedings. In implementing this Directive, Member States should
ensure that the procedural rights of suspected or accused persons in criminal proceedings
are fully respected.

(35)

In accordance with Articles 1 and 2 and Article 4a(1) of Protocol No 21 on the position of
the United Kingdom and Ireland in respect of the area of freedom, security and justice,annexed to the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol,
Ireland is not taking part in the adoption of this Directive and is not bound by it or subject
to its application.

(36)

Directive 2005/35/EC of the European Parliament and of the Council11 was supplemented
by Directive 2009/123/EC of the European Parliament and of the Council12 with provisions
on criminal offences and penalties for ship-source discharges of polluting substances. Suchoffences and penalties should fall within the scope of this Directive. Therefore, forMember States bound by this Directive, Directive 2009/123/EC should be replaced. That
replacement should be without prejudice to the obligation of those Member States withregard to the date for transposition of that Directive into national law. Accordingly, withregard to the Member States bound by this Directive, references to those provisions of
Directive 2005/35/EC which were added or replaced by Directive 2009/123/EC should beconstrued as references to this Directive. As regards Member States not bound by thisDirective, they will remain bound by Directive 2005/35/EC as amended by
Directive 2009/123/EC.

11

12

Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005
on ship-source pollution and on the introduction of penalties for infringements (OJ L 255,
30.9.2005, p. 11).
Directive 2009/123/EC of the European Parliament and of the Council of 21 October 2009amending Directive 2005/35/EC on ship-source pollution and on the introduction ofpenalties for infringements (OJ L 280, 27.10.2009, p. 52).

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(38)In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark annexedto the TEU and to the TFEU, Denmark is not taking part in the adoption of this Directive
and is therefore not bound by it or subject to its application.

(39)

Since the objectives of this Directive, namely to ensure common definitions ofenvironmental criminal offences and the availability of effective, dissuasive andproportionate criminal sanctions for serious environmental offences, cannot be sufficiently
achieved by the Member States but can rather, by reason of the scale and effects of thisDirective, be better achieved at Union level, the Union may adopt measures, in accordancewith the principle of subsidiarity as set out in Article 5 TEU. In accordance with theprinciple of proportionality, as set out in that Article, this Directive does not go beyond
what is necessary to achieve that objective.

(40)

This Directive respects the fundamental rights and observes the principles recognised inparticular by the Charter of Fundamental Rights of the European Union, including theprotection of personal data, the freedom of expression and information, the freedom to
conduct a business, the right to an effective remedy and to a fair trial, the presumption of
innocence and right of defence, the principles of legality and proportionality of criminal
offences and penalties, and the right not to be tried or punished twice in criminal
proceedings for the same offence. This Directive seeks to ensure full respect for thoserights and principles and should be implemented accordingly.

(40a)This Directive should not have the effect of modifying the obligation to respect thefundamental rights and legal principles as enshrined in Article 6 of the TEU, including theprinciple of nullum crimen, nulla poena sine lege,

HAVE ADOPTED THIS DIRECTIVE:

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Article 1
Subject matter
This Directive establishes minimum rules concerning the definition of criminal offences andsanctions in order to protect the environment more effectively, as well as measures to prevent andcombat crime in the field of the environment and to effectively enforce the Union’s environmentallaw.

Article 2
Definitions
The terms used in this Directive for the purpose of defining the offences listed in Article 3(2) and(3) shall be construed, where applicable, in accordance with definitions provided in legal acts
referred to in Article 3(1) points (a) or (b).
For the purpose of this Directive ‘legal person’ means any legal entity having such status under theapplicable national law, except for States or public bodies exercising State authority and for public
international organisations.

Article 3
Offences
1.

Member States shall ensure that the conducts referred to in paragraphs 2 and 3 constitutecriminal offences when they are unlawful.
For the purpose of this Directive the ‘unlawful’ conduct shall mean a conduct infringing
one of the following:

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(a)Union law which contributes to the pursuit of one of the objectives of the Union's
policy on the environment as set out in Article 191(1) TFEU;(b)a law, an administrative regulation of a Member State or a decision taken by acompetent authority of a Member State that gives effect to the Union law referred
to in point (a).

The conduct shall be deemed unlawful even if it is carried out under an authorisation by acompetent authority in a Member State when the authorisation was obtained fraudulently
or by corruption, extortion or coercion, or is in manifest breach of relevant substantive
legal requirements.
2.

Member States shall ensure that the following conduct constitutes a criminal offence when
it is committed intentionally:(a)the discharge, emission or introduction of a quantity of materials or substances,energy or ionising 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, thequality of soil or the quality of water, or to an ecosystem, animals or plants;(b)

the placing on the market, in breach of a prohibition or another requirement aimed at
protecting the environment, of a product, the use of which results in the discharge,
emission or introduction of a quantity of materials or substances, energy or ionisingradiation into air, soil or water, which causes or is likely to cause death or serious
injury to any person or substantial damage to air, water or soil quality, or to an
ecosystem, animals or plants as a result of the product's use on a larger scale;(c)the manufacture, placing or making available on the market, export or use of
substances, whether on their own, in mixtures or in articles, including theirincorporation into articles, when:16069/23
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LIMITEEN(i)this conduct is restricted pursuant to Title VIII and Annex XVII of Regulation(EC) No 1907/2006 of the European Parliament and of the Council13; or(ii)

this conduct is prohibited pursuant to Title VII of Regulation (EC) No
1907/2006; or(iii) this conduct is not in compliance with Regulation (EC) No 1107/2009 of theEuropean Parliament and of the Council14; or(iv) this conduct is not in compliance with Regulation (EC) No 528/2012 of theEuropean Parliament and of the Council15; or(v)

this conduct falls under Regulation (EC) No 1272/2008 of the European
Parliament and of the Council16; or(vi) this conduct is prohibited pursuant to Annex I to Regulation (EU) 2019/1021 of
the European Parliament and of the Council17,

13

14

15

16

17

Regulation (EC) No 1907/2006 of the European Parliament and of the Council of
18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction ofChemicals (REACH), establishing a European Chemicals Agency, amending Directive
1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission
Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission
Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ L 396, 30.12.2006,
p. 1).
Regulation (EC) No 1107/2009 of the European Parliament and of the Council of
21 October 2009 concerning the placing of plant protection products on the market andrepealing Council Directives 79/117/EEC and 91/414/EEC, (OJ L 309, 24.11.2009, p. 1–
50).
Regulation (EU) No 528/2012 of the European Parliament and of the Council of 22 May
2012 concerning the making available on the market and use of biocidal products (OJ L 167,
27.6.2012, p. 1–123).
Regulation (EC) No 1272/2008 of the European Parliament and of the Council of
16 December 2008 on classification, labelling and packaging of substances and mixtures,
amending and repealing Directives 67/548/EEC and 1999/45/EC, and amending Regulation(EC) No 1907/2006 (OJ L 353, 31.12.2008, p. 1).
Regulation (EU) 2019/1021 of the European Parliament and of the Council of 20 June 2019
on persistent organic pollutants (OJ L 169, 25.6.2019, p. 45).

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and it 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 an
ecosystem, animals or plants;(ca)manufacture, use, storage, import or export of mercury, mercury compounds andmixtures of mercury and mercury-added products in breach of the requirements set
out in Regulation (EU) 2017/852 of the European Parliament and of the Council
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 an
ecosystem, animals or plants;(d)the execution of projects referred to in Article 1(2)(a) and 4(1) and (2) and listed in
Annex I or II of Directive 2011/92/EU of the European Parliament and of theCouncil18, without a development consent and which causes or is likely to cause
substantial damage to the quality of air, the quality of soil or the status of water, or toan ecosystem, animals or plants;(e)the collection, transport or treatment of waste, the supervision of such operations andthe after-care of disposal sites, including action taken as a dealer or a broker (waste
management), when such conduct:(i)

concerns hazardous waste as defined in Article 3(2) of Directive 2008/98/EC
of the European Parliament and of the Council19 and when it concerns a nonnegligible quantity;(ii)

concerns other waste than referred to in point (i) and causes or is likely tocause death or serious injury to any person or substantial damage to the qualityof air, the quality of soil or the quality of water, or to an ecosystem, animals orplants;18

19

Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011
on the assessment of the effects of certain public and private projects on the environment(OJ L 26, 28.1.2012, p. 1).
Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008
on waste and repealing certain Directives (OJ L 312, 22.11.2008, p. 3).

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LIMITEEN(f)the shipment of waste, within the meaning of Article 2(35) of Regulation (EC) No
1013/2006 of the European Parliament and of the Council20 when such shipment
concerns a non-negligible quantity, whether executed in a single shipment or inseveral shipments which appear to be linked;(g)

the recycling of ships falling within the scope of Regulation (EU) No 1257/2013 of
the European Parliament and of the Council21, without complying with therequirements referred to in Article 6(2), point (a) of that Regulation, which impose
recycling at ship recycling facilities which are included in the European Listestablished under Article 16 of that Regulation;(h)the ship-source discharge of polluting substances falling within the scope of Article 3
of Directive 2005/35/EC of the European Parliament and of the Council, into any of
the areas referred to in Article 3(1) of that Directive, provided that such ship-source
discharge does not satisfy the exceptions set in Article 5 of that Directive, and whichcauses or is likely to cause deterioration in the quality of water or damage to themarine environment.

20
21

Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June
2006 on shipments of waste (OJ L 190, 12.7.2006, p. 1).
Regulation (EU) No 1257/2013 of the European Parliament and of the Council of
20 November 2013 on ship recycling and amending Regulation (EC) No 1013/2006 andDirective 2009/16/EC (OJ L 330, 10.12.2013, p. 1).

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LIMITEEN(i)the operation or closure of an installation in which a dangerous activity is carried out
or in which dangerous substances or mixtures are stored or used, when such a
conduct and such a dangerous activity, substance or mixture fall within the scope of
Directive 2012/18/EU of the European Parliament and of the Council22 or of
Directive 2010/75/EU of the European Parliament and of the Council23 , and whensuch a conduct 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, orto an ecosystem, animals or plants;(ia) the construction, operation and dismantling of an installation, when such a conduct
and such an installation fall within the scope of Directive 2013/30/EU of theEuropean Parliament and of the Council24, and when such a conduct causes or is
likely to cause death or serious injury to any person or substantial damage to thequality of air, the quality of soil or the quality of water, or to an ecosystem, animals
or plants;

22

23

24

Directive 2012/18/EU of the European Parliament and of the Council of 4 July 2012 on thecontrol of major-accident hazards involving dangerous substances, amending andsubsequently repealing Council Directive 96/82/EC Text with EEA relevance (OJ L 197,
24.7.2012, p. 1–37).
Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010
on industrial emissions (integrated pollution prevention and control) (OJ L 334, 17.12.2010,
p. 17–119).
Directive 2013/30/EU of the European Parliament and of the Council of 12 June 2013 onsafety of offshore oil and gas operations and amending Directive 2004/35/EC (OJ L 178,
28.6.2013, p. 66–106).

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LIMITEEN(j)the manufacture, production, processing, handling, use, holding, storage, transport,
import, export or disposal of radioactive material or substances, when such a conduct
and such a material or substance fall within the scope of Council Directive
2013/59/Euratom25, Council Directive 2014/87/Euratom26 or Council Directive
2013/51/Euratom27, and when such a conduct causes or is likely to cause death orserious injury to any person or substantial damage to the quality of air, the quality ofsoil or the quality of water, or to an ecosystem, animals or plants;(k)the abstraction of surface water or groundwater within the meaning of Directive
2000/60/EC28 which causes or is likely to cause substantial damage to the ecologicalstatus or potential of surface water bodies or to the quantitative status of groundwater
bodies;

25

26

27

28

Council Directive 2013/59/Euratom of 5 December 2013 laying down basic safety standards
for protection against the dangers arising from exposure to ionising radiation, and repealing
Directives 89/618/Euratom, 90/641/Euratom, 96/29/Euratom, 97/43/Euratom and2003/122/Euratom (OJ L 13, 17.1.2014, p. 1–73).
Council Directive 2014/87/Euratom of 8 July 2014 amending Directive 2009/71/Euratom
establishing a Community framework for the nuclear safety of nuclear installations(OJ L 219, 25.7.2014, p. 42–52).
Council Directive 2013/51/Euratom of 22 October 2013 laying down requirements for theprotection of the health of the general public with regard to radioactive substances in water
intended for human consumption (OJ L 296, 7.11.2013, p. 12–21).
Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000
establishing a framework for Community action in the field of water policy (OJ L 327,
22.12.2000, p. 1).

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LIMITEEN(l)the killing, destruction, taking of, possession, sale or offering for sale of a specimen
or specimens of wild fauna or flora species listed in Annexes IV or V (when species
in Annex V are subject to the same measures as those adopted for species in AnnexIV) to Council Directive 92/43/EEC29 and the species referred to in Article 1 of
Directive 2009/147/EC of the European Parliament and of the Council30, except forcases where the conduct concerns a negligible quantity of such specimens;(m) trading in specimens of wild fauna or flora species or parts or derivatives thereof
listed in Annexes A and B to Council Regulation (EC) No 338/9731, and imports ofspecimens of such species, parts or derivatives thereof listed in Annex C of that
Regulation, except for cases where the conduct concerns a negligible quantity ofsuch specimens;(n)the placing or making available on the Union market or the export from the Union
market of relevant commodities and relevant products in breach of the prohibition set
out in Article 3 of Regulation (EU) 2023/1115 of the European Parliament and of theCouncil of 31 May 2023, except for cases where the conduct concerns a negligible
quantity;

29
30
31

Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and ofwild fauna and flora (OJ L 206, 22.7.1992, p. 7–50).
Directive 2009/147/EC of the European Parliament and of the Council of 30 November
2009 on the conservation of wild birds (OJ L 20, 26.1.2010, p. 7–25).
Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species ofwild fauna and flora by regulating trade therein (OJ L 61, 3.3.1997, p. 1).

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LIMITEEN(o)any conduct which causes the deterioration of a habitat, or the disturbance of animal
species listed in Annex II (a) of Council Directive 92/43/EEC32, within a protectedsite, within the meaning of Article 6(2) of that Directive , when this deterioration or
disturbance is significant. Habitat within a protected site means any habitat of species
for which an area is classified as a special protection area pursuant to Article 4(1) or(2) of Directive 2009/147/EC of the European Parliament and of the Council33, or
any natural habitat or habitat of species for which a site is designated as a special
area of conservation in accordance with Article 4(4) of Council Directive 92/43/EEC
or for which a site is listed as site of Community importance in accordance with
Article 4(2) of Council Directive 92/43/EEC;(p)

bringing into the territory of the Union, placing on the market, keeping, breeding,transport, use, exchange, permitting to reproduce, grow or cultivate, releasing into
the environment, or spread of invasive alien species of Union concern when:(i)the conduct breaches restrictions set out in Article 7(1) of Regulation (EU)No 1143/2014 of the European Parliament and of the Council34 and causes or is
likely to cause death or serious injury to any person or substantial damage tothe quality of air, the quality of soil or the quality of water, or to an ecosystem,
animals or plants;

32
33
34

Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and ofwild fauna and flora (OJ L 206, 22.7.1992, p. 7).
Directive 2009/147/EC of the European Parliament and of the Council of 30 November
2009 on the conservation of wild birds (OJ L 20, 26.1.2010, p. 7).
Regulation (EU) No 1143/2014 of the European Parliament and of the Council of
22 October 2014 on the prevention and management of the introduction and spread ofinvasive alien species (OJ L 317, 4.11.2014, p. 35).

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LIMITEEN(ii)the conduct breaches a condition of permit issued under Article 8 or of
authorisation granted under Article 9 of Regulation (EU) No 1143/2014 andcauses 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 an
ecosystem, animals or plants;(q)

production, placing on the market, import, export, use, or release of ozone depleting
substances as referred to in Article 2(1) of Regulation [No XX] of the European
Parliament and of the Council on substances that deplete the ozone layer andrepealing Regulation (EC) No 1005/2009 or of products and equipment containing or
relying on such substances as referred to in Article 2(2) of that Regulation;(r)

production, placing on the market, import, export, use, or release of fluorinatedgreenhouse gases as referred to in Article 2(1) of Regulation [No XX] of theEuropean Parliament and of the Council on fluorinated greenhouse gases, amending
Directive (EU) 2019/1937 and repealing Regulation 517/201435 or of products andequipment containing or relying on such gases as referred to in Article 2(2) of that
Regulation, or putting into operation of such products and equipment.

2a.

Member States shall take the necessary measures to ensure that offences referred to in
Article 3(2), are considered a qualified offence if they cause destruction of, or widespreadand substantial damage, which is either irreversible or long-lasting, to an ecosystem ofconsiderable size or environmental value, or to a habitat within a protected site, or to thequality of air, the quality of soil, or the quality of water.

35

Regulation (EU) No 517/2014 of the European Parliament and of the Council of 16 April
2014 on fluorinated greenhouse gases and repealing Regulation (EC) No 842/2006(OJ L 150, 20.5.2014, p. 195–230).

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For the purposes of this paragraph 2a, (i) a habitat within a protected site shall have thesame meaning as defined in letter (o) of paragraph 2 of this Article; (ii) an ecosystemmeans a dynamic complex of plant, animal, fungi and microorganism communities andtheir non-living environment, interacting as a functional unit, and includes habitat types,
habitats of species and species populations.
2b.

In addition to the offences defined in paragraph 2 of this Article, Member States may, in
accordance with their national law, define additional criminal offences in order to protect
the environment.

3.

Member States shall ensure that the conduct referred to in paragraph 2, points (a), (b), (c),(ca), (e), (f), (h), (i), (ia), (j), (k), (l), (m), (n), (o), (p)(ii), (q), (r) also constitutes a criminal
offence, when committed with at least serious negligence.

4.

Member States shall ensure that in order to assess whether the damage or likely damage issubstantial concerning the offences referred to in paragraph 2, points (a) to (d), (e) (ii), (i),(ia), (j), (k) and (p), one or more of the following elements shall be taken into account,where relevant:(a)the baseline condition of the affected environment;(b)whether the damage is long-lasting, medium term or short term;(c)spread of the damage;(d)reversibility of the damage.

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5.

Member States shall ensure that in order to assess whether the activity is likely to cause
damage to the quality of air, the quality of soil or the quality or status of water, or to an
ecosystem or to animals or plants, concerning the offences referred to in paragraph 2,
points (a) to (d), (e) (ii), (h), (i), (ia), (j), (k) and (p) one or more of the following elements
shall be taken into account, where relevant:(a)the conduct relates to an activity which is considered as risky or dangerous for theenvironment or human health, and requires an authorisation which was not obtainedor complied with;(b)

the extent to which the values, parameters or limits set out in one of the acts listed
under paragraph 1, points (a) or (b), or in an authorisation issued for the activity areexceeded;(c)whether the material or substance is classified as dangerous, hazardous or otherwise
listed as harmful to the environment or human health.

6.

Member States shall ensure that in order to assess whether the quantity is negligible or
non-negligible within the meaning of paragraph 2, points (e) (i), (f), (l), (m), (n), one ormore of the following elements shall be taken into account, where relevant:(a)the number of items subject to the offence;(b)

the extent to which a regulatory threshold, value or another mandatory parameter
foreseen in one of the acts listed under paragraph 1, points (a) or (b), is exceeded;(c)the conservation status of the fauna or flora species concerned;(d)the cost of restoration of environmental damage, when feasible to assess.

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Article 4
Inciting, aiding and abetting and attempt1.

Member States shall ensure that inciting, and aiding and abetting the commission of any of
the criminal offences committed intentionally referred to in Article 3(2) are punishable ascriminal offences.

2.

Member States shall take the necessary measures to ensure that an attempt to commit
intentionally any of the criminal offences referred to in Article 3 (2) points (a), (b), (c),(ca), (e), (f), (h), (i), (ia), (j), (k), (m), (n), (p), (q), (r) is punishable as a criminal offence.

Article 5Penalties for natural persons
1.

Member States shall take the necessary measures to ensure that the offences referred to in
Articles 3 and 4 are punishable by effective, proportionate and dissuasive criminal
penalties.

2.

Member States shall take the necessary measures to ensure that offences referred to in
Article 3(2) points (a), (b), (c), (ca), (e), (i), (ia), (j), and (p) are punishable by a maximum
term of imprisonment of at least ten years if they cause death to any person.

3.

Member States shall take the necessary measures to ensure that offences referred to in
Article 3(3), in so far as it refers to Article 3(2) points (a), (b), (c), (ca), (e), (i), (ia) and (j),are punishable by a maximum term of imprisonment of at least five years if they cause
death to any person.

3a.

Member States shall take the necessary measures to ensure that the offence referred to in
Article 3(2a) is punishable by a maximum term of imprisonment of at least eight years.

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4.

Member States shall take the necessary measures to ensure that the offences referred to in
Article 3(2) points (a) to (j), (n), (q), and (r) are punishable by a maximum term of
imprisonment of at least five years.

5.

Member States shall take the necessary measures to ensure that the offences referred to in
Article 3(2) points (k), (l), (m), (o), and (p) are punishable by a maximum term of
imprisonment of at least three years.

6.

Member States shall take the necessary measures to ensure that natural persons who havecommitted the offences referred to in Articles 3 and 4 may be subject to additional criminal
or non-criminal sanctions or measures which may include:(a)obligation to reinstate the environment within a given period, provided that thedamage is reversible, or, the obligation to compensate for the damage to theenvironment if the damage is irreversible or if the perpetrator is not in a capacity tocarry out such a reinstatement.

(b)fines, which shall be proportionate to the seriousness of the conduct and to theindividual, financial and other circumstances of the natural person concerned. Where
relevant, due account shall also be taken of the gravity and duration of the damage
caused to the environment and of the financial benefits generated from the offence;(c)

exclusions from access to public funding, including tender procedures, grants,
concessions and licences;(d)disqualification from exercising a leading position within a legal person of the typeused for committing the offence;(e)

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LIMITEEN(g)where there is a public interest, publication of all or part of the judicial decision that
relates to the criminal offence committed and the sanctions or measures imposed
following a case-by-case assessment. The personal data of convicted persons may be
published only in duly justified exceptional cases.

Article 6
Liability of legal persons
1.

Member States shall ensure that legal persons can be held liable for offences referred to in
Articles 3 and 4 where such offences have been committed for their benefit by any person
who has a leading position within the legal person, acting either individually or as part ofan organ of the legal person, based on:

2.

(a)

a power of representation of the legal person,(b)

an authority to take decisions on behalf of the legal person, or(c)an authority to exercise control within the legal person.

Member States shall also ensure that legal persons can be held liable where the lack ofsupervision or control by a person referred to in paragraph 1 has made possible thecommission of an offence referred to in Articles 3 and 4 for the benefit of the legal person
by a person under its authority.

3.

Liability of legal persons under paragraphs 1 and 2 shall not exclude criminal proceedings
against natural persons who are perpetrators, inciters or accessories in the offences referred
to in Articles 3 and 4.

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Article 7
Sanctions for legal persons
1.

Member States shall take the necessary measures to ensure that a legal person held liablepursuant to Article 6(1) or (2) is punishable by effective, proportionate and dissuasive
criminal or non-criminal sanctions or measures.

2.

Member States shall take the necessary measures to ensure that sanctions or measures forlegal persons held liable pursuant to Article 6(1) or (2) for the offences referred to in
Articles 3 and 4 shall include criminal or non-criminal fines and may include othercriminal or non criminal sanctions or measures, such as:(a)obligation to reinstate the environment within a given period, provided that thedamage is reversible, or, the obligation to compensate for the damage to theenvironment if the damage is irreversible or if the perpetrator is not in a capacity tocarry out such a reinstatement;(b)exclusion from entitlement to public benefits or aid;(c)exclusion from access to public funding, including tender procedures, grants,
concessions and licences(d)temporary or permanent disqualification from the practice of business activities;(e)

withdrawal of permits and authorisations to pursue activities which have resulted incommitting the offence;(f)placing under judicial supervision;(g)

judicial winding-up;(h)closure of establishments used for committing the offence;

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LIMITEEN(i)obligation of companies to install due diligence schemes for enhancing compliancewith environmental standards;(j)where there is a public interest, publication of all or part of the judicial decision that
relates to the criminal offence committed and the sanctions or measures imposed,
without prejudice to rules on privacy and the protection of personal data.

3.

Member States shall take the necessary measures to ensure that, at least for legal persons
held liable pursuant to Article 6(1), offences referred to in Article 3(2) are punishable bycriminal or non-criminal fines, the amount of which shall be proportionate to theseriousness of the conduct and to the individual, financial and other circumstances of thelegal person concerned. Member States shall take the necessary measures to ensure that the
maximum level of the fines is not less than:(a)5% of the total worldwide turnover of the legal person, either in the business year
preceding the one in which the offence was committed, or in the business year
preceding the fining decision, for offences referred to in Article 3(2) points (a) to(j), (n), (q), and (r), and 3% of the total worldwide turnover of the legal person,
either in the business year preceding the one in which the offence was committed,
or in the business year preceding the fining decision, for offences referred to in
Article 3(2) points (k), (l), (m), (o), and (p);or, alternatively(b)

an amount corresponding to EUR 40 million for offences referred to in Article
3(2) points (a) to (j), (n), (q), and (r), and EUR 24 million for offences referred toin Article 3(2) points (k), (l), (m), (o), and (p).
When providing for fines pursuant to Article 7(3) point (a), Member States may
provide for rules for cases where it is not possible to determine the amount of thefine on the basis of the total worldwide turnover of the legal person in thebusiness year preceding the one in which the offence was committed, or in thebusiness year preceding the fining decision.

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5a.

Member States shall take the necessary measures to ensure that legal persons held liablepursuant to Article 6 for the offence referred to in Article 3(2a), are punishable by more
severe criminal or non-criminal sanctions or measures.

Article 8
Aggravating circumstances
In so far as the following circumstances do not already form part of the constituent elements of thecriminal offences referred to in Article 3, Member States shall take the necessary measures toensure that, in relation to the relevant offences referred to in Articles 3 and 4, one or several of thefollowing circumstances may, in accordance with the relevant provisions of national law, beregarded as aggravating circumstances:(a)the offence caused destruction or irreversible or long-lasting substantial damage to an
ecosystem as defined in Article 3(2a), second subparagraph of this Directive;(b)the offence was committed in the framework of a criminal organisation within the meaningof Council Framework Decision 2008/841/JHA36;(c)

the offence involved the use by the offender of false or forged documents;(d)the offence was committed by a public official when performing his/her duties;(e)the offender has previously been definitively convicted of offences of the same nature
under Article 3 or 4;(f)

the offence generated or was expected to generate substantial financial benefits, or avoided
substantial expenses, directly or indirectly, to the extent that they can be determined;

36

Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight againstorganised crime, OJ L 300/42.

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LIMITEEN(g)the offender destroys evidence, or intimidates witnesses or complainants;(h)the offence was committed within an area classified as a special protection area pursuant to
Article 4(1) or (2) of Directive 2009/147/EC of the European Parliament and of theCouncil, or a site designated as a special area of conservation in accordance with Article
4(4) of Council Directive 92/43/EEC or a site listed as site of Community importance inaccordance with Article 4(2) of Council Directive 92/43/EEC.

The aggravating circumstance referred to in letter (a) of this Article does not apply to the criminal
conduct referred to in Article 3(2a).

Article 9
Mitigating circumstances
Member States shall take the necessary measures to ensure that, in relation to the relevant offencesreferred to in Articles 3 and 4, one or several of the following circumstances may, in accordancewith the relevant provisions of national law, be regarded as mitigating circumstances:(a)the offender restores nature to its previous condition, when this is not an obligation underDirective 2004/35/EC37, or, before the start of a criminal investigation, takes steps tominimize the impact and extend of the damage or remediates the damage;(b)

the offender provides the administrative or judicial authorities with information which theywould not otherwise have been able to obtain, helping them to:

37

(i)

identify or bring to justice the other offenders;(ii)find evidence.

Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on
environmental liability with regard to the prevention and remedying of environmental
damage (OJ L 143, 30.4.2004, p. 56–75).

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Article 10
Freezing and confiscation
Member States shall take the necessary measures to enable the tracing, identifying, freezing andconfiscation of instrumentalities and proceeds from the criminal offences referred to in Articles 3
and 4.
Member States bound by Directive 2014/42/EU of the European Parliament and of the Council38
shall do so in accordance with that Directive.

Article 11
Limitation periods for criminal offences
1.

Member States shall take the necessary measures to provide for a limitation period thatenables the investigation, prosecution, trial and judicial decision of criminal offencesreferred to in Articles 3 and 4 for a sufficient period of time after the commission of thosecriminal offences, in order for those criminal offences to be tackled effectively.

2.

Member States shall take the necessary measures to enable the investigation, prosecution,
trial and judicial decision:(a)of offences referred to in Articles 3 and 4 which are punishable by a maximum
sanction of at least ten years of imprisonment, for a period of at least ten years fromthe time when the offence was committed;

38

Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on thefreezing and confiscation of instrumentalities and proceeds of crime in the European Union(OJ L 127, 29.4.2014, p. 39).

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LIMITEEN(b)of offences referred to in Articles 3 and 4 which are punishable by a maximum
sanction of at least five years of imprisonment, for a period of at least five years fromthe time when the offence was committed;(c)of offences referred to in Articles 3 and 4 which are punishable by a maximum
sanction of at least three years of imprisonment, for a period of at least three years
from the time when the offence was committed.

3.

Member States shall take the necessary measures to enable the enforcement of:(a)(i) a penalty of more than five years of imprisonment; or alternatively(ii) a penalty of imprisonment in the case of a criminal offence which is punishable
by a maximum sanction of at least ten years of imprisonment,
imposed following a final conviction for a criminal offence referred to in Articles 3
and 4, for at least ten years from the date of the final conviction;(b)(i) a penalty of more than one year of imprisonment; or alternatively(ii) a penalty of imprisonment in the case of a criminal offence which is punishable
by a maximum sanction of at least five years of imprisonment,
imposed following a final conviction for a criminal offence referred to in Articles 3
and 4, for at least five years from the date of the final conviction and(c)(i) a penalty of up to one year of imprisonment; or alternatively(ii) a penalty of imprisonment in the case of a criminal offence which is punishable
by a maximum sanction of at least three years of imprisonment,
imposed following a final conviction for a criminal offence referred to in Articles 3
and 4, for at least three years from the date of the final conviction.

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4.

By way of derogation from paragraphs 2 and 3, Member States may establish a limitation
period that is shorter than ten years, but not shorter than five years, provided that the period
may be interrupted or suspended in the event of specified acts.

Article 12
Jurisdiction
1.

Each Member State shall take the necessary measures to establish its jurisdiction over theoffences referred to in Articles 3 and 4 where:(a)the offence was committed in whole or in part on its territory;(b)

the offence was committed on board a ship or an aircraft registered in it or flying its
flag;

(c)

the damage forming part of the constituent elements of the offence occurred on its
territory;(d)2.

the offender is one of its nationals.

A Member State shall inform the Commission where it decides to extend its jurisdiction to
one or more offences referred to in Articles 3 and 4 which have been committed outside its
territory, where:(a)the offender is one of its habitual residents;(aa) the offence is committed for the benefit of a legal person established on its territory;(b)

the offence is committed against one of its nationals or its habitual residents;(c)the offence has created a severe risk for the environment on its territory.

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Where an offence referred to in Articles 3 and 4 falls within the jurisdiction of more than
one Member State, these Member States shall cooperate to determine which Member State
shall conduct criminal proceedings. The matter shall, where appropriate and in accordancewith Article 12 of Council Framework Decision 2009/948/JHA39, be referred to Eurojust.
3.

In cases referred to in paragraph 1, points (c) and (d), Member States shall take thenecessary measures to ensure that the exercise of their jurisdiction is not subject to thecondition that a prosecution can be initiated only following a denunciation from the Stateof the place where the criminal offence was committed.

Article 13
Investigative tools
Member States shall take the necessary measures to ensure that effective and proportionate
investigative tools are available for investigating or prosecuting offences referred to in Articles 3
and 4. Where appropriate, these tools shall include special investigative tools, such as those which
are used in countering organised crime or other serious crime cases.

39

Council Framework Decision 2009/948/JHA of 30 November 2009 on prevention andsettlement of conflicts of exercise of jurisdiction in criminal proceedings (OJ L 328,
15.12.2009, p. 42).

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Article 14
Protection of persons who report environmental offences or assist the investigation
Without prejudice to Directive (EU) 2019/1937, Member States shall take the necessary measures
to ensure that any persons reporting offences referred to in Articles 3 or 4 of this Directive,
providing evidence or otherwise cooperating with competent authorities, have access to support andassistance measures in the context of criminal proceedings, in accordance with national law.

Article 15
Publication of information in the public interest and access to justice for the public concerned
Member States shall ensure that the persons affected or likely to be affected by the offences referred
to in Articles 3 or 4 of this Directive, persons having sufficient interest or maintaining theimpairment of a right, as well as non-governmental organisations promoting environmental
protection and meeting requirements under national law have appropriate procedural rights inproceedings concerning offences referred to in Articles 3 and 4 of this Directive, where suchprocedural rights for the public concerned exist in the Member State in proceedings concerning
other criminal offences, for instance as a civil party. In such cases, Member States shall also ensure,in accordance with their national laws, that the information on the progress of the proceedings isshared with the public concerned, where this is also done in proceedings concerning other criminal
offences.

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Article 16
Prevention
Member States shall take appropriate action, such as information and awareness-raising campaigns
targeting relevant stakeholders both from the public and private sector and research and education
programmes, aimed at reducing overall environmental criminal offences, raising public awarenessand reducing the risk of an environmental criminal offence. Where appropriate, Member Statesshall act in cooperation with these stakeholders.

Article 17
Resources
Member States shall ensure that national authorities which detect, investigate, prosecute or
adjudicate environmental offences have a sufficient number of qualified staff and sufficientfinancial, technical and technological resources necessary for the effective performance of theirfunctions related to the implementation of this Directive. Member States shall, taking into accountthe constitutional traditions and structure of their legal system, as well as other national
circumstances, assess the need to strengthen specialisation of these authorities in the area ofenvironmental criminal law, in accordance with national law.

Article 18
Training
Without prejudice to judicial independence and differences in the organisation of the judiciary
across the Union, Member States shall take necessary measures to ensure that specialised regulartraining is provided to judges, prosecutors, police, judicial staff and competent authorities’ staff
involved in criminal proceedings and investigations with respect to the objectives of this Directive
and appropriate to the functions of the involved staff and authorities.

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Article 19
Coordination and cooperation between competent authorities within a Member State
Member States shall take the necessary measures to establish appropriate mechanisms for
coordination and cooperation at strategic and operational levels among all their competentauthorities involved in the prevention of and the fight against environmental criminal offences.
Such mechanisms shall be aimed at least at:(a)ensuring common priorities and understanding of the relationship between criminal andadministrative enforcement;(b)exchange of information for strategic and operational purposes, within the limits set out inapplicable rules;(c)consultation in individual investigations, within the limits set out in applicable rules;(d)the exchange of best practices;(e)assistance to European networks of practitioners working on matters relevant to combating
environmental offences and related infringements,and may take the form of specialised coordination bodies, memoranda of understanding between
competent authorities, national enforcement networks and joint training activities.

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Article 19a
Cooperation between the Member States and the Commission, and other Union institutions, bodies,
offices or agencies
Where the environmental offences are suspected to be of a cross-border nature, the competentauthorities of the Member States shall consider referring the information related to these cases toappropriate competent bodies. Without prejudice to the rules on cross-border cooperation andmutual legal assistance in criminal matters, the Member States, Eurojust, Europol, the European
Public Prosecutor’s Office, the European Anti-Fraud Office (OLAF) and the Commission shall,
within their respective competences, cooperate with each other in the fight against the criminal
offences referred to in Articles 3 and 4. To that end Eurojust shall, where appropriate, provide suchtechnical and operational assistance as the competent national authorities need to facilitate
coordination of their investigations. The Commission may, where appropriate, provide assistance.

Article 20
National strategy
1.

Member States shall establish and publish a national strategy on combating environmental
criminal offences by [ one year after the transposition period of this Directive is over ]Member States shall take measures to implement such strategy without undue delay. The
national strategy shall as a minimum address the following:(a)the objectives and priorities of national policy in this area of offences, including incross-border cases, and arrangements for regular evaluation of their attainment;

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this type of offence, including in terms of coordination and cooperation between thecompetent authorities and competent EU bodies and in terms of assistance ofEuropean networks working on matters directly relevant to combating environmental
offences, including in cross-border cases;(c)how specialisation of enforcement professionals will be supported, and an estimationof resources allocated and an evaluation of future needs in this regard.

2.

Member States shall ensure that the strategy is reviewed and updated at regular intervals nolonger than 5 years, on a risk-analysis-based-approach, in order to take account of relevant
developments and trends and related threats regarding environmental crime.

Article 21
Data collection and statistics
1.

Member States shall ensure that a system is in place for the recording, production andprovision of anonymised statistical data measuring the reporting, investigative and judicial
phases concerning the offences referred to in Articles 3 and 4 in order to monitor theeffectiveness of their systems to combat environmental criminal offences.

2.

The statistical data referred to in paragraph 1 shall, as a minimum, include existing data on:(a)the number of offences registered and adjudicated by the Member States;(aa) the number of dismissed court cases, including due to the expiry of the limitation
period;(b)the number of natural persons that are(i) prosecuted,(ii) convicted;

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the types and levels of sanctions imposed.

Member States shall ensure that a consolidated review of their statistics is published atleast every three years.

4.

Member States shall annually transmit to the Commission the statistical data referred to inparagraph 2 in a standard, easily accessible and comparable format established inaccordance with Article 22 within 36 months of the entry into force of this Directive.

5.

The Commission shall at least every three years publish a report based on the statistical
data transmitted by the Member States. The report shall be published for the first time three
years after the standard format referred to in Article 22 has been determined.

Article 22
Implementing powers
1.

The Commission shall be empowered to adopt implementing acts establishing the standard
format for data transmission referred to in Article 21(4). Those implementing acts shall be
adopted in accordance with the examination procedure referred to in Article 23(2).

2.

For the purposes of the transmission of statistical data, the standard format shall containthe following elements:(a)a common classification of environmental crimes;(b)a common understanding of counting units;(c)a common reporting format.

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Article 23
Committee procedure
1.

The Commission shall be assisted by a committee. That committee shall be a committee
within the meaning of Regulation (EU) No 182/2011.

2.

Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shallapply.

3.

Where the committee delivers no opinion, the Commission shall not adopt the draft
implementing act and Article 5(4), third subparagraph, of Regulation (EU) No 182/2011
shall apply.

Article 24
Transposition
1.

Member States shall bring into force the laws, regulations and administrative provisions
necessary to comply with this Directive by [24 months after the date of entry into force of
the Directive]. They shall immediately inform the Commission thereof.

2.

When Member States adopt those measures, they shall contain a reference to this Directive
or shall be accompanied by such reference on the occasion of their official publication. The
methods of making such reference shall be laid down by Member States. Member Statesshall communicate to the Commission the text of the main measures of national law which
they adopt in the field covered by this Directive.

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Article 25
Evaluation, reporting and review
1.

The Commission shall by [two years after the transposition period of this Directive isover], submit a report to the European Parliament and to the Council assessing the extent towhich the Member States have taken the necessary measures to comply with this Directive.
Member States shall provide the Commission with the necessary information for the
preparation of that report.

2.

By [five years after the transposition period of this Directive is over], the Commission
shall carry out an evaluation of the impact of this Directive addressing the need to update
the list of environmental criminal offences and submit a report to the European Parliament
and to the Council. Member States shall provide the Commission with necessary
information for the preparation of that report, including a summary about theimplementation and actions taken in accordance with Articles 16 to 20 and statistical data,with particular attention to cross-border cooperation. The report shall be accompanied by alegislative proposal, if necessary.

3.

The Commission shall regularly consider if there is a need to amend the offences definedin Article 3(2) of this Directive.

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Article 26
Replacement of Directive 2008/99/EC
Directive 2008/99/EC is replaced with regard to the Member States bound by this Directive,
without prejudice to the obligations of those Member States with regard to the date for transpositionof that Directive into national law. With regard to the Member States bound by this Directive,references to Directive 2008/99/EC shall be construed as references to this Directive. As regards
Member States not bound by this Directive, they shall remain bound by Directive 2008/99/EC.

Article 27
Replacement of Directive 2009/123/EC
Directive 2009/123/EC, amending Directive 2005/35/EC, shall be replaced with regard to theMember States bound by this Directive, without prejudice to the obligations of those Member Stateswith regard to the date for transposition of that Directive into national law.
With regard to the Member States bound by this Directive, references to those provisions of
Directive 2005/35/EC which were added or replaced by Directive 2009/123/EC shall be construed
as references to this Directive.
Member States not bound by this Directive shall remain bound by Directive 2005/35/EC as
amended by Directive 2009/123/EC.

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Article 28
Entry into force
This Directive shall enter into force on the twentieth day following that of its publication in the
Official Journal of the European Union.

Article 29
Addressees
This Directive is addressed to the Member States in accordance with the Treaties.
Done at Brussels,

For the European Parliament

For the Council

The President

The President

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EN