EUROPEAN UNIONTHE EUROPEAN PARLIAMENT

THE COUNCIL
Brussels, 13 March 2024
(OR. en)2021/0422 (COD)

PE-CONS 82/23

COPEN 444
DROIPEN 180
JAI 1641
ENV 1474
CODEC 2451
LEGISLATIVE ACTS AND OTHER INSTRUMENTS
Subject:

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on the protection of the environment through criminal law and replacing
Directives 2008/99/EC and 2009/123/EC

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ENDIRECTIVE (EU) 2024/…
OF THE EUROPEAN PARLIAMENT AND OF THE COUNCILof …
on the protection of the environment through criminal law
and replacing Directives 2008/99/EC and 2009/123/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 procedure2,

1
2

OJ C 290, 29.7.2022, p. 143.
Position of the European Parliament of 27 February 2024 (not yet published in the Official
Journal) and decision of the Council of ….

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Whereas:(1)

Pursuant 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, in a wide sense, should be protected, as follows from Article 3(3) TEU and
Article 191 TFEU, covering all natural resources, including air, water, soil, ecosystems,
including ecosystem services and functions, and wild fauna and flora, including habitats, aswell as services provided by natural resources.

(2)

Pursuant to Article 191(2) TFEU, Union policy on the environment is to aim at a high levelof protection taking into account the diversity of situations in the various regions of theUnion. That policy is to be based on the precautionary principle and on the principles thatpreventive action is to be taken, that environmental damage should as a priority be rectified
at source and that the polluter should pay. Considering that environmental crime also
affects fundamental rights, the fight against environmental crime at Union level is crucial
to ensuring that those rights are protected.

(3)

The rise in environmental criminal offences and their effects, which undermine theeffectiveness of Union environmental law, is a matter of continuing concern in the Union.
Such offences increasingly extend beyond the borders of the Member States in which they
are committed. Such offences pose a threat to the environment and therefore necessitate an
appropriate and effective response, which often requires effective cross-bordercooperation.

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(4)

The existing rules on penalties under Directive 2008/99/EC of the European Parliamentand of the Council3 and under Union environmental sectoral law have not been sufficientto achieve compliance with Union law concerning protection of the environment. Suchcompliance should be strengthened by the availability of effective, proportionate anddissuasive criminal penalties that correspond to the gravity of the offences and can convey
more social disapproval than the use of administrative penalties. Complementarity ofcriminal and administrative law is crucial to prevent and deter unlawful conduct thatdamages the environment.

(5)

The list of environmental criminal offences in Directive 2008/99/EC should be revised andadditional criminal offences based on the most serious breaches of Union environmental
law should be added. Penalties should be strengthened in order to enhance their deterrent
effect, and the effectiveness of the detection, investigation, prosecution and adjudication ofenvironmental criminal offences should be improved.

(6)

Member States should criminalise certain unlawful conduct, provide for greater precision
with regard to the definition of relevant criminal offences and harmonise types and levelsof penalties.

(7)

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

3

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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(8)

Member States should provide for criminal penalties in their national law in respect ofserious infringements of Union law concerning protection of the environment. In theframework of the common fisheries policy, Union law provides for a comprehensive set ofrules for control and enforcement under Council Regulations (EC) No 1224/20094 and(EC) No 1005/20085 in the event of serious infringements, including those that cause
damage to the marine environment. Under that set of rules, Member States have the choiceof using administrative or criminal penalties, or both. In line with the communications of
the Commission of 11 December 2019 on ‘The European Green Deal’ and 20 May 2020
on ‘EU Biodiversity Strategy for 2030. Bringing nature back into our lives’, certain
intentional unlawful conduct covered by Regulation (EC) No 1224/2009 and Regulation(EC) No 1005/2008 should be established as a criminal offence.

45

Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Union control
system for ensuring compliance with the rules of the common fisheries policy, amending
Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005,(EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No
676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing
Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006(OJ L 343, 22.12.2009, p. 1).
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).

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(9)

In order for conduct to constitute an environmental criminal offence under this Directive, it
should be unlawful. In order for conduct to be unlawful, it should breach Union law which
contributes to pursuit of one of the objectives of the Union's policy on the environment as
set out in Article 191(1) TFEU, irrespective of the legal basis of such Union law, which
could include, for example, Article 91, 114, 168 or 192 TFEU, or should breach laws,
regulations or administrative provisions of a Member State, or decisions taken by acompetent authority of a Member State, giving effect to such Union law. This Directive
should specify which unlawful conduct is capable of constituting a criminal offence and,
where appropriate, set a quantitative or qualitative threshold necessary for such conduct toconstitute a criminal offence. Such conduct should constitute a criminal offence when it isintentional and, in certain cases, also when carried out with at least serious negligence. In
particular, unlawful conduct that causes the death of, or serious injury to, persons,
substantial damage or a considerable risk of substantial damage to the environment or isconsidered otherwise to be particularly harmful to the environment should also constitute a
criminal offence when carried out with at least serious negligence. Member States canadopt or maintain more stringent rules in the area of criminal law.

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(10)

Conduct should be unlawful even where it is carried out under an authorisation issued by acompetent authority of a Member State if such authorisation was obtained fraudulently or
by corruption, extortion or coercion. Furthermore, holding such an authorisation should notpreclude the holder from being held criminally liable, where the authorisation is inmanifest breach of relevant substantive legal requirements. ‘In manifest breach of relevant
substantive legal requirements’ should be interpreted as referring to an obvious andsubstantial breach of relevant substantive legal requirements, and is not intended to include
breaches of procedural requirements or minor elements of the authorisation. This does notshift the duty to ensure that authorisations are lawful from competent authorities tooperators. Moreover, where an authorisation is required, the fact that the authorisation is
lawful does not preclude criminal proceedings against the holder of the authorisation wherethat holder does not comply with all obligations of the authorisation or with other relevant
legal obligations not covered by the authorisation.

(11)

Moreover, it is necessary that operators take the necessary steps to comply with legislative,
regulatory and administrative provisions concerning the protection of the environment
applicable when they carry out the respective activity, including by complying with their
obligations, as laid down in applicable Union and national law, in relation to proceduresfor the amendment or updating of existing authorisations. This should also coverobligations of the holder of the authorisation to update and renew such authorisation.

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(12)

With regard to offences and penalties defined in this Directive, the term ‘legal persons’should be understood as not including States or public bodies exercising State authority or
public international organisations. As this Directive establishes minimum rules, Member
States can adopt more stringent rules, including rules on criminal liability for publicbodies.

(13)

Some criminal offences defined in this Directive include a qualitative threshold for the
conduct to constitute a criminal offence, namely that such conduct causes the death of, orserious injury to, a person or substantial damage to the quality of air, water or soil, or to an
ecosystem, animals or plants. In order to protect the environment to the fullest extent
possible, that qualitative threshold should be understood in a broad 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. The term ‘ecosystem’
should be understood as a dynamic complex of plant, animal, fungi and microorganism
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 refer to natural processes inan ecosystem. Smaller units such as a beehive, an anthill or a stump can be a part of an
ecosystem but should not be considered to be an ecosystem in its own right for the
purposes of this Directive.

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(14)

For the purposes of this Directive, the term ‘injury’ should be understood in a broad sense,that is as covering any form of physical harm to a person, including a change in bodyfunction or cell structure, a temporary, chronic or fatal disease, a malfunction of the bodyor other deterioration of physical health, but excluding mental health.

(15)

The introduction of different forms of energy, such as heat, sources of thermal energy,
noise, including underwater noise, and other sources of acoustic 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 the death of, or serious injury to, persons. Various instruments of Union
environmental law regulate the introduction of energy into the environment, for example in
the areas of protection of water, the marine environment, noise control, waste management
and industrial emissions. In light of those instruments, the unlawful introduction of energy
into the environment should constitute a criminal offence under this Directive if it causes
or is likely to cause substantial damage to the environment or human health.

(16)

Where criminal offences defined in this Directive relate to conduct such as making
available or placing on the market, sale, offering for sale or trading, conduct carried out bymeans of information and communication technologies should be included.

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(17)

This Directive introduces the criminal offence of the placing on the market, in breach of aprohibition or another requirement aimed at protecting the environment, of a product theuse of which on a larger scale results in the discharge, emission or introduction of aquantity of materials or substances, energy or ionising radiation into air, soil or water, andcauses or is likely to cause substantial damage to the environment or human health. In that
context, a prohibition or another requirement aimed at protecting the environment should
be one that is laid down in the area of Union law which has among its stated objectives, or
has as an aim, the protection of the environment, including preserving, protecting andimproving the quality of the environment, protecting human health, prudent and rational
utilisation of natural resources or combatting climate change, or promoting measures atinternational level to deal with regional or worldwide environmental problems.
Conversely, where such a prohibition or requirement is laid down in other areas of Union
law which have other objectives, for example protection of workers’ health and safety, theconduct should not be covered under that criminal offence. For the purpose of thisDirective, ‘use on a larger scale’ refers to the combined effect of the use of the product byseveral users, regardless of their number, provided that the conduct causes or is likely tocause damage to the environment or human health.

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(18)

Unlawful collection, transport and treatment of waste and the lack of supervision of suchoperations and of the after-care of disposal sites, including action taken as a dealer or abroker, can cause devastating effects on the environment and human health. Such effects
can be caused by unlawful conduct which concerns harmful waste from pharmaceuticalproducts, narcotic drugs, including components to produce narcotic drugs, chemicals,
waste containing acids or bases or waste containing toxins, heavy metals, oil, grease,
electrical and electronic waste, end-of-life vehicles or plastic waste. Member States should,
therefore, ensure that unlawful waste management constitutes a criminal offence wheresuch conduct concerns hazardous waste in a non-negligible quantity, or it concerns otherwaste and such other waste causes or is likely to cause substantial damage to theenvironment or human health.

(19)

For the purpose of the criminal offence introduced by this Directive in relation to recyclingof ships falling within the scope of Regulation (EU) No 1257/2013 of the European
Parliament and of the Council6 it is to be noted that, currently under Union law, theobligations set out in that Regulation only apply to ship owners, as defined in that
Regulation.

6

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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(20)

With regard to the assessment of whether the quantity of a relevant product or relevant
commodity associated with deforestation or forest degradation as referred to in Regulation(EU) 2023/1115 of the European Parliament and of the Council7, is negligible, Member
States could take into account, for example, the quantity of the relevant commodity or
product expressed in net mass, or, where applicable, in volume or as a number of items, orwhether the scale of the activity in question is negligible in terms of quantity. For suchassessment, Member States could also take into account, where relevant, other elements
listed in this Directive for certain criminal offences, including the conservation status of
the species concerned or the cost of restoration of the environment.

(21)

Criminal offences relating to intentional conduct listed in this Directive can lead tocatastrophic results, such as widespread pollution, industrial accidents with severe effects
on the environment or large-scale forest fires. Where such offences cause the destructionof, or widespread and substantial damage which is either irreversible or long-lasting to, anecosystem of considerable size or environmental value or a habitat within a protected site,or cause widespread and substantial damage which is either irreversible or long-lasting to
the quality of air, soil, or water, such offences, leading to such catastrophic results, should
constitute qualified criminal offences and, consequently, be punished with more severe
penalties than those applicable in the event of other criminal offences defined in thisDirective. Those qualified criminal offences can encompass conduct comparable to‘ecocide’, which is already covered by the law of certain Member States and which is
being discussed in international fora.

7

Regulation (EU) 2023/1115 of the European Parliament and of the Council of 31 May 2023
on the making available on the Union market and the export from the Union of certain
commodities and products associated with deforestation and forest degradation andrepealing Regulation (EU) No 995/2010 (OJ L 150, 9.6.2023, p. 206).

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(22)

Where, under this Directive, conduct constitutes a criminal offence only if it concerns a
non-negligible quantity, corresponding to the exceeding of a regulatory threshold, value orother mandatory parameter, in assessing whether that threshold, value or other parameterhas been exceeded, the hazardousness and toxicity, inter alia, of the material or substanceshould be taken into account because the more hazardous or toxic the material or substanceis, the sooner that threshold, value or other parameter is reached and, in the case ofparticularly hazardous and toxic substances or materials, even a very small quantity cancause substantial damage to the environment or human health.

(23)

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. Where this Directive, in order to define criminal offences, uses terms defined inUnion environmental law to describe unlawful conduct, such terms should be understoodwithin the meaning of the corresponding definitions laid down in the relevant Union legal
acts covered by this Directive. This Directive should also cover any Union acts that amend
provisions or requirements relevant to describing unlawful conduct which falls within thescope of criminal offences defined in this Directive. When drafting such amending Unionacts, it would be appropriate to include a reference to this Directive. However, where new
types of unlawful conduct, not yet covered by the scope of the offences defined in thisDirective, are introduced in Union environmental law, this Directive should be amended toinclude such new types of unlawful conduct within its scope.

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(24)

Without prejudice to that dynamic nature of this Directive, the Commission should
regularly, and where necessary, consider if there is a need to amend the description in thisDirective of conduct capable of constituting a criminal offence under this Directive. The
Commission should also consider if there is a need to define other criminal offences when
new types of unlawful conduct not yet covered by the scope of this Directive are
introduced in Union environmental law.

(25)

This Directive should provide a non-exhaustive list of elements which should be taken into
account, where relevant, by the competent authorities, in assessing whether the qualitativeand quantitative thresholds used to define environmental criminal offences have beenreached. Providing such a list should facilitate the coherent application of this Directive
and a more effective fight against environmental crime as well as provide for legal
certainty. However, such assessment elements or their application should not make thedetection, investigation, prosecution or adjudication of criminal offences excessively
difficult.

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(26)

Where this Directive provides that an unlawful conduct only constitutes a criminal offence
where it is carried out intentionally and causes the death of a person, the notion of‘intention’ should be interpreted in accordance with national law, taking into accountrelevant case law of the Court of Justice of the European Union (the ‘Court ofJustice’).Therefore, for the purposes of this Directive, ‘intention’ could be understood as
the intention to cause the death of a person, or it could also cover a situation in which theoffender, despite not wanting to cause the death of a person, nevertheless accepts thelikelihood of causing it, and acts, or refrains from acting, voluntarily and in violation of aparticular obligation, thereby causing the death of a person. The same understanding as
regards the notion of ‘intention’ should apply where unlawful conduct described in thisDirective, which is intentional, causes serious injury to any person, or the destruction of, orwidespread and substantial damage which is either irreversible or long-lasting to, anecosystem of considerable size or environmental value or a habitat within a protected site,or causes widespread and substantial damage which is either irreversible or long-lasting to
the quality of air, soil, or water.

(27)

With regard to the criminal offences defined in this Directive, the notion of ‘serious
negligence’ should be interpreted in accordance with national law, taking into accountrelevant case law of the Court of Justice. This Directive does not require the introduction innational law of the notion of ‘serious negligence’ for each constituent element of thecriminal offence, such as possession, sale or offering for sale, placing on the market andsimilar elements. In such cases, it is possible for Member States to decide that the notion of‘serious negligence’ is relevant for elements of the criminal offence such as the protection
status, ‘negligible quantity’, or the ‘likelihood’ of the conduct to cause substantial damage.

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(28)

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 for environmental offences should address corruption, money
laundering, cyber-crime and document fraud and, in relation to business activities, theintention of the offender to maximise profits or save expenses. Such forms of crime areoften interconnected with serious forms of environmental crime and should therefore not
be dealt with in isolation. They are also prone, in particular, to causing substantial damage
to the environment and human health, including devastating effects on nature and local
communities. In addition, it is of particular concern that some environmental criminal
offences are committed with the tolerance or active support of the competentadministrations or officials performing their public duty. In certain cases, this can eventake the form of corruption. Examples of such behaviour are turning a blind eye to, or
remaining silent on, the infringement of environmental law following inspections,deliberately omitting inspections or controls such as with regard to whether the conditionsof a permit are being respected by the permit-holder, supporting resolutions or voting infavour of granting illegal licences, or issuing falsified or untrue favourable reports.

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(29)

Inciting, and aiding and abetting intentional commission of a criminal offence should also
be punishable. An attempt to commit a criminal offence that causes or is likely to cause thedeath of, or serious injury to, any person or causes 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. The notion of ‘attempt’ is interpreted inaccordance with national law. With regard to the criminal offence defined in this Directive
in relation to the execution of a project without a development consent, since the executionof a project is to be understood as including the start of the implementation of such a
project, for example works to prepare the ground for construction or other intervention
with effects on the environment, this Directive does not list that offence among criminal
offences for which an attempt should be punishable as a criminal offence.

(30)

Penalties for the criminal offences defined in this Directive should be effective, dissuasive
and proportionate. To that end, minimum levels for the maximum term of imprisonment
should be set for natural persons. The maximum terms of imprisonment provided for inthis Directive for the criminal offences committed by natural persons should apply at least
to the most serious forms of such offences. The criminal law of all Member States includes
provisions on homicide, either committed intentionally or with serious negligence.
Member States should be able to have recourse to those general provisions, including
provisions on aggravating circumstances, when transposing the provisions in this Directivethat relate to criminal offences that cause the death of a person, whether committed
intentionally or with serious negligence.

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(31)

Accessory penalties or measures are often seen as being more effective than financial
penalties, especially for legal persons. Accessory penalties or measures should be therefore
available in the relevant proceedings. Those penalties or measures could include theobligation to restore the environment, the exclusion from access to public funding,including tender procedures, grants and concessions, and the withdrawal of permits andauthorisations. This is without prejudice to the discretion of judges or courts in criminal
proceedings to impose appropriate penalties in individual cases.

(32)

Accessory penalties or measures could, without prejudice to the requirements of Directive
2004/35/EC of the European Parliament and of the Council8, include a requirement torestore the environment where the damage is reversible and a requirement to provide
compensation where the damage is irreversible or the offender lacks the capacity to carryout such restoration.

8

Directive 2004/35/EC 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, 30.04.2004, p. 56).

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(33)

To the extent that conduct constituting an environmental criminal offence as defined in thisDirective is attributable to legal persons, such legal persons should be held liable for suchan offence. In order to achieve the objectives of this Directive, Member States whose law
provides for the criminal liability of legal persons should ensure that their law provides for
effective, dissuasive and proportionate types and levels of criminal penalties as laid downin this Directive. In order to achieve the objectives of this Directive, Member States whose
law does not provide for the criminal liability of legal persons should ensure that their law
provides for effective, dissuasive and proportionate types and levels of non-criminal
penalties as laid down in this Directive. The maximum levels of fines provided for in thisDirective for the criminal offences defined in it should apply at least to the most serious
forms of such offences. The gravity of the conduct, as well as the individual, financial andother circumstances of the legal persons concerned, should be taken into account to ensurethat the penalty imposed is effective, dissuasive and proportionate. Member States shouldbe able to set the maximum levels of fines either as a percentage of the total worldwide
turnover of the legal person concerned, or in fixed amounts. Member States should decide
which of those two options they will use, when transposing this Directive.

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(34)

Where Member States, in the determination of fines to be imposed on legal persons, opt to
implement the criterion of the total worldwide turnover of a legal person, they should
decide whether to calculate that turnover based on the business year preceding that inwhich the criminal offence was committed, or on the business year preceding that of thedecision to impose the fine. 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 that in which the criminal
offence was committed, or in the business year preceding that of the decision to impose thefine. In such cases, Member States should be able to take into account other criteria, suchas total worldwide turnover in a different business year. Where those rules include thesetting of fixed amounts of fines, it should not be necessary for the maximum levels of
those amounts to reach the levels established in this Directive as the minimum requirement
for the maximum level of fines set in fixed amounts.

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(35)

Where Member States opt for a maximum level of fines set in fixed amounts, such levels
should be laid down in national law. The highest levels of such fines should apply to themost serious forms of criminal offences defined in this Directive committed by legal
persons of financial strength. Member States should be able to determine the method of
calculation of those highest levels of fines, including specific conditions therefor. Member
States are invited to regularly review the levels of fines set in fixed amounts having regard
to rates of inflation and other fluctuations in monetary value, in accordance withprocedures laid down in their national law. Member States that do not have the euro as
their currency should provide for maximum levels of fines in their currency that
correspond to the levels determined in this Directive in euro on the date of its entry into
force. Those Member States are invited to regularly review the levels of fines also withregard to the development of the exchange rate.

(36)

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

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(37)

Member States should ensure that the criminal or non-criminal penalties or measuresapplicable to legal persons held liable for qualified criminal offences as defined in thisDirective are more severe than those applicable in the event of other criminal offences
defined in this Directive. To that end, Member States should, in accordance with theirnational law, provide for a higher level of criminal and non-criminal fines than the
maximum level of fines established in this Directive or otherwise provide for more severe
penalties or measures, including criminal or non-criminal penalties or measures, or a
combination thereof.

(38)

The fact that legal persons are held liable under this Directive should not preclude criminal
proceedings being taken against natural persons who commit, incite or are accessories tothe criminal offences defined in this Directive. Where the conditions for criminal liability
are met, such natural persons should be understood to include corporate board members.

(39)

It is necessary that Member States consider introducing penalties or measures that are analternative to imprisonment in order to contribute to the restoration of the environment.

(40)

Penalty levels imposed should be further approximated and the effectiveness of such levels
should be fostered through introducing common aggravating circumstances that reflect thegravity of the criminal offence committed. The notion of ‘aggravating circumstances’
should be understood either as facts enabling the judge to pronounce more severe
sentences for the same criminal offence than the sentence normally imposed without suchfacts, or as the possibility to treat several criminal offences cumulatively in order toincrease the level of penalty. Therefore, Member States are not obliged to provide for
specific aggravating circumstances where national law already provides for separate
criminal offences that can lead to more severe penalties.

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(41)

Member States should ensure that at least one of the aggravating and mitigating
circumstances provided for in this Directive is provided for as a possible aggravating or
mitigating circumstance in accordance with applicable rules in their legal system. In any
case, it should remain within the discretion of the judge or the court to determine whether
to increase or to decrease the sentence, taking into account the specific circumstances ineach individual case.

(42)

This Directive should apply without prejudice to the general rules and principles ofnational criminal law on the sentencing or the execution of sentences in accordance withthe specific circumstances in each individual case. It should be possible for Member Statsto determine the most appropriate types of accessory penalties or measures. In particular,
where national law provides for the possibility to impose an obligation to restore theenvironment within a given period, provided that the damage is reversible, this Directive
does not require that a judge or a court also be responsible for monitoring the execution ofsuch obligation. Similarly, if the withdrawal of permits and authorisations to pursue
activities that resulted in the relevant criminal offence can be imposed as a penalty undernational law, Member States should ensure that judges or courts are able to either impose
such a penalty themselves or that another competent authority is informed and can act inaccordance with national procedural rules.

(43)

This Directive should not affect civil liability under national law or the obligation tocompensate, in accordance with Union or national law, for harm or damage caused as aresult of a given criminal offence defined in this Directive.

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(44)

The publication of the personal data of convicted persons contained in judicial decisions
should only be possible in duly justified exceptional cases following a case-by-caseassessment, weighing the public interest against the rights to respect for private life andprotection of the personal data of the convicted person provided for in Articles 7 and 8 of
the Charter of Fundamental Rights of the European Union (the ‘Charter’), respectively.
The publication of those personal data should therefore only be possible in cases of serious
criminal offences and where strong dissuasive effects are needed. The case-by-caseassessment could take into account elements such as the gravity of the damage caused tothe environment, the harm suffered by natural persons, or both, whether the criminal
offence has been committed repeatedly in the same environmental sector, and whether thecriminal offence was committed by or for the benefit of a large company active in several
Member States or by an important market player in a specific environmental sector. Anyprocessing of personal data in the context of this Directive should comply with theapplicable Union and national data protection legislation, in particular Regulation(EU) 2016/679 of the European Parliament and of the Council9 and Directive(EU) 2016/680 of the European Parliament and of the Council10. That data protection
legislation 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 penalties or measures
imposed. Additionally, the publication of the decision imposing the penalties or measuresupon a legal person should be applied without prejudice to the national rules governing theanonymisation of judicial decisions or the duration of publication.

910

Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016
on the protection of natural persons with regard to the processing of personal data and on thefree movement of such data, and repealing Directive 95/46/EC (General Data Protection
Regulation) (OJ L 119, 4.5.2016, p. 1).
Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on
the protection of natural persons with regard to the processing of personal data by competentauthorities 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 suchdata, and repealing Council Framework Decision 2008/977/JHA(OJ L 119, 4.5.2016, p. 89).

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(45)

The obligation provided for in this Directive to provide for criminal penalties should notexempt Member States from the obligation to provide for administrative penalties andother measures in national law for breaches of Union environmental law.

(46)

Member States should define the scope of administrative and criminal law enforcement
clearly with regard to environmental offences, in accordance with their national law. In theapplication of national law transposing this Directive, Member States should ensure thatthe imposition of criminal penalties and of administrative penalties respects the principlesof the Charter, including the prohibition of proceedings that do not respect the principle ofne bis in idem.

(47)

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

(48)

Where criminal offences are of a continuing nature, they should be brought to an end assoon as possible. Member States are encouraged to enable the competent authorities toorder the immediate cessation of the unlawful conduct or to prevent such conduct.

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(49)

Where offenders have made financial gains, such gains should be confiscated. Member
States should take the necessary measures to allow frozen and confiscated proceeds andinstrumentalities to be 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.

(50)

Member States should lay down rules concerning limitation periods necessary to combat
environmental crime effectively, without prejudice to national rules that do not set
limitation periods for investigation, prosecution and enforcement. As a general rule, alimitation period runs from the point in time the criminal offence was committed.
However, as this Directive establishes minimum rules, Member States can provide for thelimitation period to start later, namely from the point in time the criminal offence was
detected, provided that such point in time of detection is clearly determined in accordancewith national law. Member States are permitted under this Directive to establish limitation
periods shorter than those laid down in this Directive, provided that in their legal systems it
is possible to interrupt or suspend such shorter limitation periods in the event of acts which
can be specified in accordance with national law.

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(51)

Given, in particular, the mobility of offenders, together with the cross-border nature of
criminal offences defined in this Directive and the possibility of cross-borderinvestigations being carried out, Member States should establish jurisdiction in order tocombat such offences effectively. Member States should cooperate with Eurojust, inparticular on the basis of Regulation (EU) 2018/1727 of the European Parliament and of
the Council11, in cases where conflicts of jurisdiction could arise. A given Member Stateshould establish jurisdiction over criminal offences committed on board a ship or anaircraft registered in that Member State, or flying its flag, taking into account related
standards under relevant international conventions. Member States should not be obliged
under this Directive to establish for the first time such jurisdiction over criminal offences
that, due to their nature, cannot be committed on board a ship or an aircraft.

(52)

Member States should establish jurisdiction over criminal offences defined in thisDirective where the damage which is one of the constituent elements of the criminal
offence occurred on their territory. In accordance with national law, and in line with theterritoriality principle, a Member State could establish jurisdiction over criminal offences
committed in whole or in part on its territory.

11

Regulation (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).

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(53)

To ensure successful enforcement of environmental criminal law, Member States shouldmake available to competent authorities effective investigative tools for environmental
criminal offences such as those available under their national law for combatting organised
crime or other serious criminal offences, if and to the extent that the use of those tools isappropriate and proportionate to the nature and gravity of the criminal offences as provided
for in national law. Such tools could include the interception of communications, covert
surveillance, including electronic surveillance, controlled deliveries, the monitoring ofbank accounts and other financial investigation tools. Those tools should be used in linewith the principle of proportionality and in full respect of the Charter. It is imperative thatthe right to the protection of personal data be respected.

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(54)

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 in safeguarding the environment and thewelfare of society. Individuals in contact with an organisation in the context of theirwork-related activities are often the first to know about threats or harm to the public
interest and the environment. Persons who report irregularities are known as‘whistleblowers’. Potential whistleblowers are often discouraged from reporting theirconcerns or suspicions for fear of retaliation. Such reporting persons benefit from balanced
and effective protection under Directive (EU) 2019/1937 of the European Parliament andof the Council12, which includes Directives 2008/99/EC and 2009/123/EC13 of theEuropean Parliament and of the Council within its scope. Following the replacement of
Directives 2008/99/EC and 2009/123/EC by this Directive, persons who report breaches ofUnion environmental law should, by virtue of this Directive, continue to benefit from that
protection from the Member States bound by it.

12

13

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, 26.11.2019, p. 17).
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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(55)

Persons other than those who report breaches of Union law under Directive(EU) 2019/1937 could also possess valuable information concerning potential
environmental criminal offences. They could be members of the community affected or
members of society as a whole taking an active part in protecting the environment. Suchpersons who report environmental criminal offences as well as persons who cooperate withregard to the enforcement of such offences should be provided with the necessary support
and assistance in the context of criminal proceedings, so that they are not disadvantaged asa result of their cooperation but supported and assisted. The necessary support andassistance measures should be available to such persons in accordance with theirprocedural rights in national law and should include, at least, all support and assistancemeasures available to persons having corresponding procedural rights in criminal
proceedings concerning other criminal offences. Those persons should, in accordance with
their procedural rights in national law, also be protected from being persecuted forreporting environmental criminal offences or for their cooperation in the criminal
proceedings. The content of the necessary support and assistance measures is notestablished by this Directive and should be determined by Member States. Member States
are not required to make available the support and assistance measures to persons who aresuspected or accused in the context of the criminal proceedings concerned.

(56)

Member States should assess the need to enable persons to report environmental criminal
offences anonymously, where such possibility does not already exist.

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(57)

Since the environment cannot represent itself as a victim in criminal proceedings, for the
purpose of effective enforcement, members of the public concerned should have thepossibility of acting on behalf of the environment as a public good, in accordance withnational law and subject to the relevant procedural rules.

(58)

This Directive does not require Member States to introduce new procedural rights for themembers of the public concerned. However, when such procedural rights for members of
the public concerned exist in a Member State in equivalent situations concerning criminal
offences other than those provided for pursuant to this Directive, such as the right toparticipate in proceedings as a civil party, such procedural rights should also be granted tothe members of the public concerned in proceedings concerning the environmental
criminal offences defined in this Directive. The rights of the members of the publicconcerned are without prejudice to the rights of victims as set out in Directive 2012/29/EUof the European Parliament and of the Council14. The notion of ‘members of the publicconcerned’ and of ‘victims’ should remain distinct and Member States should not be
required to apply victims’ rights to members of the public concerned. This Directive does
not require Member States to grant to members of the public concerned the proceduralrights in criminal proceedings that they grant to categories of persons other than membersof the public concerned.

14

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).

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(59)

Member States should take appropriate measures, such as information andawareness-raising campaigns targeting relevant stakeholders both from the public andprivate sector, as well as research and education programmes, that aim to reduce overall
environmental criminal offences and the risk of environmental crime. Where appropriate,
Member States should act in cooperation with such stakeholders. In that context, measuresthat aim to improve prevention of environmental criminal offences could include
promoting compliance and due diligence schemes, encouraging operators to havecompliance officers to help ensuring compliance with Union environmental law, andpromoting transparency in order to strengthen compliance with environmental criminal
law. In addition, accessory penalties imposed on legal persons under this Directive could
include an obligation on companies to install due diligence schemes for enhancing
compliance with environmental standards, which also contributes to prevention of further
environmental criminal offences. Moreover, Member States could consider establishing afund to support prevention measures in respect of environmental criminal offences andtheir devastating consequences.

(60)

Lack of resources and enforcement powers for national authorities which detect,investigate, prosecute or adjudicate environmental criminal offences creates obstacles forthe effective prevention and sentencing of those offences. In particular, the shortage ofresources is capable of preventing authorities from taking any action or limiting theirenforcement actions, allowing offenders to escape liability or to receive a sentence that
does not correspond to the gravity of the criminal offence. Therefore, minimum criteria
concerning resources and enforcement powers should be established.

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(61)

The effective functioning of the enforcement chain depends on a range of specialist skills.
As the complexity of the challenges posed by environmental criminal offences and thetechnical nature of such offences require a multidisciplinary approach, a high level of legal
knowledge and technical expertise, 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 functions of those in charge of detecting,investigating, prosecuting or adjudicating environmental crime. Where appropriate,
Member States should, taking into account their constitutional traditions and structure of
their legal systems, as well as other circumstances, including the size of the Member State
concerned, assess the need to increase the level of specialisation of such authorities in thearea of environmental criminal offences, in accordance with national law. Where theMember State concerned is small and has only a limited number of competent authorities,
the assessment might conclude that, in view of that limited number, specialisation is notpossible or advisable. In particular, to maximise the professionalism and effectiveness ofthe enforcement chain, Member States should also consider assigning specialised
investigation units, prosecutors and judges to deal with environmental criminal cases.
General criminal courts could provide for specialised chambers of judges. Technicalexpertise should be made available to all relevant enforcement authorities.

(62)

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 their competent authorities involved inadministrative and criminal enforcement, including all authorities exercising preventive,
penal and remedial functions.

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(63)

In accordance with applicable rules, Member States should also cooperate between themthrough Union agencies, in particular Eurojust and Europol, as well as with Union bodies,including the European Public Prosecutor’s Office and the European Anti-Fraud Office, in
their respective areas of competence. Without prejudice to the rules on cross-bordercooperation and mutual legal assistance in criminal matters, such cooperation should be
provided to ensure effective action against the criminal offences defined in this Directive,
and include technical and operational assistance provided, where appropriate, by Eurojust
to the national competent authorities as needed by those authorities to coordinate theirinvestigations. The Commission could, where appropriate, provide assistance. Suchassistance should not entail the participation of the Commission in the investigation orprosecution procedures of individual criminal cases conducted by the national competentauthorities and should not be understood as including financial support or any otherbudgetary commitment by the Commission.

(64)

Member States should ensure that information on persons convicted for the criminal
offences defined in this Directive is exchanged between national competent authorities inaccordance with Council Framework Decision 2009/315/JHA15.

15

Council Framework Decision 2009/315/JHA of 26 February 2009 on the organisation andcontent of the exchange of information extracted from the criminal record between Member
States (OJ L 93, 7.4.2009, p. 23).

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(65)

To ensure a coherent approach to combatting environmental crime, Member States should
adopt, publish, implement and periodically review a national strategy on combatting
environmental criminal offences, establishing objectives, priorities and the corresponding
measures and resources needed. That national strategy should address, in particular, theobjectives and priorities of national policy in the area of environmental crime, the methodsof coordination and cooperation between the competent authorities, the procedures andmechanisms for regular monitoring and evaluation of the results achieved, and theassistance of European networks working on matters directly relevant to combatting
environmental criminal offences and related infringements. It should be possible forMember States to determine the appropriate form for that strategy which could take into
account their constitutional traditions in terms of separation of powers and competences,and be either sectoral or a part of a broader strategic document. Irrespective of whether
Member States provide for the adoption of one or more strategies, their overall content
should encompass the territory of the entire Member State.

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(66)

To effectively tackle the environmental criminal offences defined in this Directive, it isnecessary that competent authorities in the Member States collect accurate, consistent andcomparable statistical data on those offences. Member States should therefore ensure thatan adequate system is in place for the recording, production and transmission of existingstatistical data on the offences defined in this Directive. Those statistical data should be
used by Member States to serve the strategic and operational planning of enforcement
activities, to analyse the scale of and trends in environmental criminal offences, as well as
for providing information to citizens. Member States should transmit to the Commission
relevant statistical data on environmental crime proceedings, extracted from data that
already exist at a centralised or decentralised level within the whole Member State. The
Commission should regularly assess and publish in a report the results of its assessment
based on the statistical data transmitted by the Member States.

(67)

The statistical data transmitted under this Directive on environmental criminal offences
should be comparable between the Member States and extracted on the basis of common
minimum standards. In order to ensure uniform conditions for the implementation of thisDirective, implementing powers should be conferred on the Commission to establish thestandard format for the transmission of statistical data. Those powers should be exercisedin accordance with Regulation (EU) No 182/2011 of the European Parliament and of theCouncil16.

16

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 Member States of the Commission’s exercise of implementing powers(OJ L 55, 28.2.2011, p. 13).

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(68)

The standard format for the transmission to the Commission of statistical data on types andlevels of penalties, including information on the related offence categories, in accordancewith this Directive should be established in accordance with the committee procedureprovided for in this Directive.

(69)

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.

(70)

In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark,annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of thisDirective and is not bound by it or subject to its application.

(71)

This Directive aims to amend and expand the provisions of Directive 2008/99/EC. Since
the amendments to be made are substantial in number and nature, Directive 2008/99/EC,
should, in the interests of clarity, be replaced in its entirety in relation to the Member Statesbound by this Directive.

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(72)

Directive 2005/35/EC of the European Parliament and of the Council17 was supplemented
by Directive 2009/123/EC with provisions on criminal offences and penalties forship-source discharges of polluting substances. Such offences and penalties should fallwithin the scope of this Directive. Therefore, for Member 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 with regard to the date for transposition of that
Directive into national law. Accordingly, with regard to the Member States bound by thisDirective, references to those provisions of Directive 2005/35/EC added or replaced by
Directive 2009/123/EC should be construed as references to this Directive. Member States
not bound by this Directive should remain bound by Directive 2005/35/EC as amended by
Directive 2009/123/EC.

(73)

Since the objectives of this Directive, namely to provide common definitions ofenvironmental criminal offences and the availability of effective, dissuasive andproportionate criminal penalties for serious offences, cannot be sufficiently achieved by theMember States but can rather, by reason, inter alia, of the cross-border damage which canbe caused to the environment by the unlawful conduct concerned and by reason of scaleand effects of the response needed, be better achieved at Union level, the Union may adopt
measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In
accordance with the principle of proportionality as set out in that Article, this Directive
does not go beyond what is necessary to achieve those objectives.

17

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, including criminal penalties,
for pollution offences (OJ L 255, 30.9.2005, p. 11).

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(74)

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

(75)This Directive respects the fundamental rights and observes the principles as recognised inparticular by the Charter, including the protection 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 betried or punished twice in criminal proceedings for the same offence. This Directive seeks
to ensure full respect for those rights and principles and should be implemented
accordingly,

HAVE ADOPTED THIS DIRECTIVE:

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Article 1
Subject matter
This Directive establishes minimum rules with regard to the definition of criminal offences andpenalties in order to protect the environment more effectively, as well as with regard to measures toprevent and combat environmental crime and to effectively enforce Union environmental law.

Article 2
Definitions
1.

The terms used in this Directive for the purpose of describing conduct listed in Article 3(2)shall be construed, where applicable, in accordance with definitions provided for in Union
law as referred to in Article 3(1), point (a).

2.

For the purposes of this Directive, the following definitions apply:(a)‘legal person’ means any legal entity having such status under the applicable nationallaw, except for States or public bodies exercising State authority and for public
international organisations;

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(b)

‘habitat within a protected site’ means any habitat of species for which an area isclassified as a special protection area pursuant to Article 4(1) or (2) of Directive
2009/147/EC, or any natural habitat or habitat of species for which a site isdesignated as a special area of conservation in accordance with Article 4(4) of
Directive 92/43/EEC or for which a site is listed as a site of Community importancein accordance with Article 4(2) of Directive 92/43/EEC;(c)‘ecosystem’ means a dynamic complex of plant, animal, fungi and microorganism
communities and their non-living environment, interacting as a functional unit, andincludes habitat types, habitats of species and species populations.

Article 3
Criminal offences
1.

Member States shall ensure that conduct listed in paragraphs 2 and 3 of this Article, where
it is intentional, and conduct referred to in paragraph 4 of this Article, where it is carriedout with at least serious negligence, constitutes a criminal offence where that conduct isunlawful.
For the purpose of this Directive, conduct shall be unlawful where it breaches:(a)Union law which contributes to pursuit of one of the objectives of the Union’s policyon the environment as set out in Article 191(1) TFEU; or

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(b)

a law, regulation or administrative provision of a Member State, or a decision taken
by a competent authority of a Member State, which gives effect to the Union law
referred to in point (a).

Such conduct shall be unlawful even where it is carried out under an authorisation issued
by a competent authority of a Member State if such authorisation was obtained
fraudulently or by corruption, extortion or coercion, or if such authorisation is in manifest
breach of relevant substantive legal requirements.
2.

Member States shall ensure that the following conduct constitutes a criminal offence where
it is unlawful and intentional:(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
the death of, or serious injury to, any person or substantial damage to the quality of
air, soil or water, or substantial damage 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 on a larger scale, namely
the use of the product by several users, regardless of their number, results in the
discharge, emission or introduction of a quantity of materials or substances, energy
or ionising radiation into air, soil or water and causes or is likely to cause the deathof, or serious injury to, any person or substantial damage to the quality of air, soil orwater, or substantial damage to an ecosystem, animals or plants;

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(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, where such conduct causes or is likely to cause the deathof, or serious injury to, any person, substantial damage to the quality of air, soil orwater, or substantial damage to an ecosystem, animals or plants and:(i)is restricted pursuant to Title VIII of and Annex XVII to Regulation(EC) No 1907/2006 of the European Parliament and of the Council18;(ii)

is prohibited pursuant to Title VII of Regulation (EC) No 1907/2006;(iii) is not in compliance with Regulation (EC) No 1107/2009 of the European
Parliament and of the Council19;(iv) is not in compliance with Regulation (EU) No 528/2012 of the European
Parliament and of the Council20;

18

19

20

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).
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).

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(v)

is not in compliance with Regulation (EC) No 1272/2008 of the European
Parliament and of the Council21; or(vi) is prohibited pursuant to Annex I to Regulation (EU) 2019/1021 of theEuropean Parliament and of the Council22;(d)the manufacture, use, storage, import or export of mercury, mercury compounds,
mixtures of mercury, and mercury-added products where such conduct is not incompliance with the requirements set out in Regulation (EU) 2017/852 of theEuropean Parliament and of the Council23 and causes or is likely to cause the deathof, or serious injury to, any person, substantial damage to the quality of air, soil orwater, or substantial damage to an ecosystem, animals or plants;

21

22
23

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).
Regulation (EU) 2017/852 of the European Parliament and of the Council of 17 May 2017
on mercury, and repealing Regulation (EC) No 1102/2008 (OJ L 137, 24.5.2017, p. 1).

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(e)

the execution of projects within the meaning of Article 1(2)(a), as referred to in
Article 4(1) and (2), of Directive 2011/92/EU of the European Parliament and of theCouncil24, where such conduct is carried out without a development consent andcauses or is likely to cause substantial damage to the quality of air or soil, or thequality or status of water, or substantial damage to an ecosystem, animals or plants;(f)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, wheresuch conduct:(i)

concerns hazardous waste as defined in Article 3(2) of Directive 2008/98/EC
of the European Parliament and of the Council25 and it concerns a
non-negligible quantity of such waste; or(ii)concerns waste other than that referred to in point (i) and causes or is likely tocause the death of, or serious injury to, any person or substantial damage to thequality of air, soil or water, or substantial damage to an ecosystem, animals orplants;24

25

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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(g)

the shipment of waste, within the meaning of Article 2, point (26), of Regulation(EU) 2024/ … of the European Parliament and of the Council26+, where such conduct
concerns a non-negligible quantity, whether executed in a single shipment or inseveral shipments which appear to be linked;(h)the recycling of ships falling within the scope of Regulation (EU) No 1257/2013,
where such conduct is not in compliance with the requirements referred to in
Article 6(2), point (a), of that Regulation;(i)the ship-source discharge of polluting substances falling within the scope of Article 3
of Directive 2005/35/EC into any area referred to in Article 3(1) of that Directive,
except where such ship-source discharge satisfies the conditions for exceptions set
out in Article 5 of that Directive, which causes or is likely to cause deterioration in
the quality of water or damage to the marine environment;

26+

Regulation (EU) 2024/... of the European Parliament and of the Council of … 2024 on
shipments of waste, amending Regulations (EU) No 1257/2013 and (EU) 2020/1056 andrepealing Regulation (EC) No 1013/2006 (OJ L, …, ELI: ...).
OJ: Please insert in the text the number of the Regulation contained in document
PE-CONS No 84/23 (2021/0367(COD)), and insert the number, date and OJ reference ofthat Regulation in the footnote.

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(j)

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, where such conduct
and such dangerous activity, substance or mixture fall within the scope of Directive
2012/18/EU of the European Parliament and of the Council27 or of Directive
2010/75/EU of the European Parliament and of the Council28, and such conduct
causes or is likely to cause the death of, or serious injury to, any person or substantial
damage to the quality of air, soil or water, or substantial damage to an ecosystem,
animals or plants;(k)the construction, operation and dismantling of an installation, where such conduct
and such an installation fall within the scope of Directive 2013/30/EU of theEuropean Parliament and of the Council29, and such conduct causes or is likely tocause the death of, or serious injury to, any person or substantial damage to thequality of air, soil or water, or substantial damage to an ecosystem, animals or plants;

27

28

29

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 (OJ L 197, 24.7.2012, p. 1).
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).
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).

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(l)

the manufacture, production, processing, handling, use, holding, storage, transport,
import, export or disposal of radioactive material or radioactive substances, wheresuch conduct and such a material or substances fall within the scope of Council
Directives 2013/59/Euratom30, 2014/87/Euratom31 or 2013/51/Euratom32, and suchconduct causes or is likely to cause the death of, or serious injury, to any person or
substantial damage to the quality of air, soil or water, or substantial damage to an
ecosystem, animals or plants;(m) the abstraction of surface water or groundwater within the meaning of Directive
2000/60/EC of the European Parliament and of the Council33, where such conduct
causes or is likely to cause substantial damage to the ecological status or ecologicalpotential of surface water bodies or to the quantitative status of groundwater bodies;

30

31

32

33

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).
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).
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).
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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(n)

the killing, destruction, taking of, possession, sale or offering for sale of a specimen
or specimens of a species of wild fauna or flora listed in Annex IV, or in Annex V
where species in that Annex are subject to the same measures as those adopted forspecies in Annex IV, to Council Directive 92/43/EEC34 and of a specimen or
specimens of the species referred to in Article 1 of Directive 2009/147/EC of theEuropean Parliament and of the Council35, except where such conduct concerns anegligible quantity of such specimens;(o)the trade of a specimen or specimens, or parts or derivatives thereof, of a species ofwild fauna or flora, listed in Annexes A and B to Council Regulation(EC) No 338/9736, and import of a specimen or specimens, or parts or derivatives
thereof, of such species listed in Annex C to that Regulation, except where suchconduct concerns a negligible quantity of such specimens;(p)

the placing or making available on the Union market or the export from the Union
market of relevant commodities or relevant products, in breach of the prohibition set
out in Article 3 of Regulation (EU) 2023/1115, except where such conduct concernsa negligible quantity;

34
35
36

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).
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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(q)

any conduct which causes the deterioration of a habitat within a protected site, or the
disturbance of animal species listed in Annex II, point (a), to Directive 92/43/EEC
within a protected site, within the meaning of Article 6(2) of that Directive, wheresuch deterioration or disturbance is significant;(r)

the bringing into the territory of the Union, placing on the market, keeping, breeding,transporting, using, exchanging, permitting to reproduce, growing or cultivating,releasing into the environment, or the spreading of invasive alien species of Union
concern, where such conduct breaches:(i)

restrictions set out in Article 7(1) of Regulation (EU) No 1143/2014 of theEuropean Parliament and of the Council37 and causes or is likely to cause thedeath of, or serious injury to, any person or substantial damage to the quality of
air, soil or water, or substantial damage to an ecosystem, animals or plants; or(ii)

a condition of a permit issued under Article 8 of Regulation(EU) No 1143/2014 or of an authorisation granted under Article 9 of that
Regulation and causes or is likely to cause the death of, or serious injury to,any person or substantial damage to the quality of air, soil or water, or
substantial damage to an ecosystem, animals or plants;

37

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 of invasive
alien species (OJ L 317, 4.11.2014, p. 35).

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(s)

the production, placing on the market, import, export, use, or release of ozone
depleting substances, whether alone or as mixtures, as referred to in Article 2,
point (a), of Regulation (EU) 2024/590 of the European Parliament and of theCouncil38, or the production, placing on the market, import, export or use of products
and equipment, and parts thereof, containing ozone-depleting substances or whosefunctioning relies upon those substances as referred to in Article 2(b) of that
Regulation;(t)

the production, placing on the market, import, export, use, or release of fluorinatedgreenhouse gases, whether alone or as mixtures, as referred to in Article 2, point (a),of Regulation (EU) 2024/573 of the European Parliament and of the Council39 or the
production, placing on the market, import, export or use of products and equipment,
and parts thereof, containing fluorinated greenhouse gases or whose functioning
relies upon those gases as referred to in Article 2, point (b), of that Regulation, or theputting into operation of such products and equipment.

38

39

Regulation (EU) 2024/590 of the European Parliament and of the Council of 7 February
2024 on substances that deplete the ozone layer, and repealing Regulation (EC)No 1005/2009 (OJ L, 2024/590, 20.02.2024, ELI: http://data.europa.eu/eli/reg/2024/590/oj).
Regulation (EU) 2024/573 of the European Parliament and of the Council of 7 February
2024 on fluorinated greenhouse gases, amending Directive (EU) 2019/1937 and repealing
Regulation (EU) No 517/2014 (OJ L, 2024/573, 20.02.2024, ELI:
http://data.europa.eu/eli/reg/2024/573/oj).

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3.

Member States shall ensure that criminal offences relating to conduct listed in paragraph 2
constitute qualified criminal offences if such conduct causes:(a)the destruction of, or widespread and substantial damage which is either irreversible
or long-lasting to, an ecosystem of considerable size or environmental value or ahabitat within a protected site, or(b)widespread and substantial damage which is either irreversible or long-lasting to thequality of air, soil or water.

4.

Member States shall ensure that the conduct listed in paragraph 2, points (a) to (d), points(f) and (g), points (i) to (q), point (r)(ii), and points (s) and (t), constitutes a criminal
offence where that conduct is unlawful and carried out with at least serious negligence.

5.

In addition to the criminal offences relating to conduct listed in paragraph 2, Member
States may, in accordance with their national law, provide for additional criminal offencesin order to protect the environment.

6.

Member States shall ensure that, in assessing whether the damage or likely damage issubstantial, as regards conduct listed in paragraph 2, points (a) to (e), point (f)(ii), points (j)to (m), and point (r), one or more of the following elements is 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;

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7.

(c)

the extent of the damage;(d)the reversibility of the damage.

Member States shall ensure that, in assessing whether conduct listed in paragraph 2,
points (a) to (e), point (f)(ii), points (i) to (m), and point (r), is likely to cause damage tothe quality of air or soil, or the quality or status of water, or to an ecosystem, animals orplants, one or more of the following elements is taken into account, where relevant:(a)the conduct relates to an activity which is considered to be risky or dangerous for theenvironment or human health, and requires an authorisation which was not obtainedor complied with;(b)

the extent to which a regulatory threshold, value or another mandatory parameter set
out in Union or national law referred to in paragraph 1, second subparagraph,points (a) and (b), or in an authorisation issued for the relevant activity is exceeded;(c)whether the material or substance is classified as dangerous, hazardous or otherwise
listed as harmful to the environment or human health.

8.

Member States shall ensure that in assessing whether a quantity is negligible or
non-negligible for the purposes of paragraph 2, point (f)(i), and points (g), (n), (o) and (p),one or more of the following elements is taken into account, where relevant:(a)the number of items concerned;

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(b)

the extent to which a regulatory threshold, value or another mandatory parameter set
out in Union or national law referred to in paragraph 1, second subparagraph,points (a) and (b), is exceeded;(c)the conservation status of the fauna or flora species concerned;(d)the cost of restoration of the environment, where it is feasible to assess that cost.

Article 4
Inciting, aiding and abetting, and attempt1.

Member States shall ensure that inciting, and aiding and abetting the commission of acriminal offence covered by Article 3(2) and (3) is punishable as a criminal offence.

2.

Member States shall ensure that an attempt to commit a criminal offence covered by
Article 3(2), points (a) to (d), points (f) and (g), points (i) to (m), and points (o), (p), (r), (s)and (t), is punishable as a criminal offence.

Article 5Penalties for natural persons
1.

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

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2.

Member States shall take the necessary measures to ensure that:(a)criminal offences covered by Article 3(2), points (a) to (d), and points (f), (j), (k), (l)and (r), are punishable by a maximum term of imprisonment of at least ten years ifthey cause the death of any person;(b)criminal offences covered by Article 3(3) are punishable by a maximum term of
imprisonment of at least eight years;(c)criminal offences covered by Article 3(4), where that paragraph refers to
Article 3(2), points (a) to (d), and points (f), (j), (k) and (l), are punishable by amaximum term of imprisonment of at least five years if they cause the death of any
person;(d)criminal offences covered by Article 3(2), points (a) to (l), and points (p), (s) and (t),are punishable by a maximum term of imprisonment of at least five years;(e)criminal offences covered by Article 3(2), points (m), (n), (o), (q) and (r), arepunishable by a maximum term of imprisonment of at least three years.

3.

Member States shall take the necessary measures to ensure that natural persons who havecommitted criminal offences referred to in Articles 3 and 4 may be subject to accessory
criminal or non-criminal penalties or measures which may include the following:(a)an obligation to:(i)restore the environment within a given period, if the damage is reversible, or

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(ii)

pay compensation for the damage to the environment, if the damage isirreversible or the offender is not in a capacity to carry out such restoration;(b)fines that are proportionate to the gravity of the conduct and to the individual,
financial and other circumstances of the natural person concerned and, where
relevant, that are determined taking due account of the gravity and duration of thedamage caused to the environment and of the financial benefits generated from theoffence;(c)exclusion from access to public funding, including tender procedures, grants,
concessions and licences;(d)disqualification from holding, within a legal person, a leading position of the same
type used for committing the offence;(e)

withdrawal of permits and authorisations to pursue activities that resulted in therelevant criminal offence;(f)

temporary bans on running for public office;(g)where there is a public interest, following a case-by-case assessment, publication of
all or part of the judicial decision that relates to the criminal offence committed andthe penalties or measures imposed, which may include the personal data of convictedpersons only in duly justified exceptional cases.

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Article 6
Liability of legal persons
1.

Member States shall ensure that legal persons can be held liable for criminal offencesreferred to in Articles 3 and 4 where such offences have been committed for the benefit ofthose legal persons by any person who has a leading position within the legal person
concerned, acting either individually or as part of an organ of that 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 take the necessary measures to ensure that legal persons can be held
liable where the lack of supervision or control by a person referred to in paragraph 1 has
made possible the commission of a criminal 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 of this Article shall not preclude
criminal proceedings against natural persons who commit, incite or are accessories to thecriminal offences referred to in Articles 3 and 4.

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Article 7
Penalties 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 penalties or measures.

2.

Member States shall take the necessary measures to ensure that penalties or measures forlegal persons held liable pursuant to Article 6(1) or (2) for the criminal offences referred toin Articles 3 and 4 shall include criminal or non-criminal fines and may include othercriminal or non-criminal penalties or measures, such as:(a)an obligation to:(i)restore the environment within a given period, if the damage is reversible, or(ii)

pay compensation for the damage to the environment, if the damage isirreversible or the offender is not in a capacity to carry out such restoration;(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 that resulted in therelevant criminal offence;

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(f)

placing under judicial supervision;(g)

judicial winding-up;(h)closure of establishments used for committing the offence;(i)an obligation to establish due diligence schemes for enhancing compliance withenvironmental standards;(j)where there is a public interest, publication of all or part of the judicial decision
relating to the criminal offence committed and the penalties 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), criminal offences covered by Article 3(2) arepunishable by criminal or non-criminal fines, the amount of which shall be proportionate to
the gravity 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 such fines is not less than:(a)for criminal offences covered by Article 3(2), points (a) to (l), and points (p), (s) and
(t):
(i)

5 % of the total worldwide turnover of the legal person, either in the businessyear preceding that in which the offence was committed, or in the business year
preceding that of the decision to impose the fine, or

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(ii)
(b)

an amount corresponding to EUR 40 000 000;for criminal offences covered by Article 3(2), points (m), (n), (o), (q) and (r):(i)

3 % of the total worldwide turnover of the legal person, either in the businessyear preceding that in which the offence was committed, or in the business year
preceding that of the decision to impose the fine, or(ii)

an amount corresponding to EUR 24 000 000.

Member States may establish rules for cases where it is not possible to determine theamount of the fine on the basis of the total worldwide turnover of the legal person in thebusiness year preceding that in which the offence was committed, or in the business year
preceding that of the decision to impose the fine.
4.

Member States shall take the necessary measures to ensure that legal persons held liablepursuant to Article 6 for the criminal offences covered by Article 3(3) are punishable bymore severe criminal or non-criminal penalties or measures than those applicable for thecriminal offences covered by Article 3(2).

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Article 8
Aggravating circumstances
To the extent that the following circumstances do not 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 criminal offences referred to in Articles 3 and 4, one or moreof the following circumstances can, in accordance with national law, be regarded as an aggravating
circumstance:(a)the offence caused the destruction of, or irreversible or long-lasting substantial damage to,an ecosystem;(b)

the offence was committed in the framework of a criminal organisation within the meaningof Council Framework Decision 2008/841/JHA40;(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 or her duties;(e)the offender has previously been convicted by a final judgment of offences of the same
nature as those referred to in 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 such benefits or expenses canbe determined;

40

Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight againstorganised crime (OJ L 300, 11.11.2008, p. 42).

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(g)

the offender destroyed evidence, or intimidated 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, or a site designated as a special area ofconservation in accordance with Article 4(4) of Directive 92/43/EEC or a site listed as siteof Community importance in accordance with Article 4(2) of Directive 92/43/EEC.

The aggravating circumstance referred to in point (a) of this Article shall not apply to the criminal
offences covered by Article 3(3).

Article 9
Mitigating circumstances
Member States shall take the necessary measures to ensure that, in relation to the relevant criminal
offences referred to in Articles 3 and 4, one or more of the following circumstances can, in
accordance with national law, be regarded as a mitigating circumstance:(a)the offender restores the environment to its previous condition, where such restoration is
not an obligation under Directive 2004/35/EC, or, before the start of a criminal
investigation, takes steps to minimise the impact and extent of the damage or remediates
the damage;

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(b)

the offender provides the administrative or judicial authorities with information which theywould not otherwise have been able to obtain, helping them to:(i)identify or bring to justice other offenders;(ii)find evidence.

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 Council 41
shall take the measures referred to in the first paragraph in accordance with that Directive.

Article 11
Limitation periods
1.

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

41

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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Member States shall take the necessary measures to provide for a limitation period thatenables the enforcement of penalties imposed following a final conviction for criminal
offences referred to in Articles 3 and 4 for a sufficient period of time after that conviction.
2.

The limitation period referred to in paragraph 1, first subparagraph, shall be as follows:(a)at least ten years from the commission of a criminal offence punishable by amaximum term of imprisonment of at least ten years;(b)at least five years from the commission of a criminal offence punishable by amaximum term of imprisonment of at least five years;(c)at least three years from the commission of a criminal offence punishable by amaximum term of imprisonment of at least three years.

3.

The limitation period referred to in paragraph 1, second subparagraph, shall be as follows:(a)at least ten years from the date of the final conviction in the following cases:(i)a penalty of imprisonment of more than five years, or alternatively(ii)

a penalty of imprisonment for a criminal offence punishable by a maximum
term of imprisonment of at least ten years;

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(b)

at least five years from the date of the final conviction in the following cases:(i)a penalty of imprisonment of more than one year, or alternatively(ii)

a penalty of imprisonment for a criminal offence punishable by a maximum
term of imprisonment of at least five years; and(c)at least three years from the date of the final conviction in the following cases:(i)a penalty of imprisonment of up to one year, or alternatively(ii)

a penalty of imprisonment for a criminal offence punishable by a maximum
term of imprisonment of at least three years.

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 such
limitation 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 thecriminal offences referred to in Articles 3 and 4 where:(a)the offence was committed in whole or in part within its territory;(b)

the offence was committed on board a ship or an aircraft registered in the Member
State concerned, or flying its flag;

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(c)

the damage which is one 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 criminal offences referred to in Articles 3 and 4 which have been committed
outside its territory, where:(a)the offender is a habitual resident in its territory;(b)

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

Where a criminal offence referred to in Articles 3 and 4 falls within the jurisdiction of
more than one Member State, those Member States shall cooperate to determine which
Member State is to conduct the criminal proceedings. The matter shall, where appropriate
and in accordance with Article 12(2) of Council Framework Decision 2009/948/JHA42, bereferred to Eurojust.

42

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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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 criminal offences referred to in
Articles 3 and 4. Where appropriate, those tools shall include special investigative tools, such as
those used in combatting organised crime or in other serious crime cases.

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

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Article 15
Publication of information in the public interest
and access to justice for the public concerned
Member States shall ensure that persons affected or likely to be affected by the criminal offencesreferred to in Articles 3 and 4 of this Directive and persons having a sufficient interest or
maintaining the impairment of a right, as well as non-governmental organisations that promote
environmental protection and meet requirements under national law, have appropriate proceduralrights in proceedings concerning those offences, where such procedural rights for the publicconcerned exist in the Member State in proceedings concerning other criminal offences, for instanceas a civil party. In such cases, Member States shall also ensure, in accordance with their nationallaw, that the information on the progress of the proceedings is shared with the public concerned,
where that is done in proceedings concerning other criminal offences.

Article 16
Prevention
Member States shall take appropriate measures, such as information and awareness-raising
campaigns targeting relevant stakeholders from the public and private sector, as well as researchand education programmes, which aim to reduce environmental criminal offences and the risk ofenvironmental crime. Where appropriate, Member States shall act in cooperation with suchstakeholders.

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Article 17
Resources
Member States shall ensure that national authorities which detect, investigate, prosecute or
adjudicate environmental criminal offences have a sufficient number of qualified staff and sufficientfinancial, technical and technological resources for the effective performance of their functions
related to the implementation of this Directive. Member States shall, taking into account theconstitutional traditions and structure of their legal system, as well as other national circumstances,assess the need to increase the level of specialisation of those 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 and judicial staff and to competent authorities’
staff involved in criminal proceedings and investigations with regard to the objectives of thisDirective and appropriate to the functions of such judges, prosecutors, police and judicial staff andcompetent authorities’ staff.

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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 Union and national law;(c)consultation in individual investigations, within the limits set out in applicable Union andnational law;(d)the exchange of best practices;(e)providing assistance to European networks of practitioners working on matters relevant tocombatting environmental criminal offences and related infringements.

The mechanisms referred to in the first paragraph 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 20
Cooperation between Member States and the Commission,and Union bodies, offices or agencies
Where environmental criminal offences are suspected to be of a cross-border nature, the competentauthorities of the Member States concerned shall consider referring the information related to those
offences to appropriate competent bodies.
Without prejudice to the rules on cross-border cooperation and mutual legal assistance in criminal
matters, the Member States, Eurojust, Europol, the European Public Prosecutor’s Office, theEuropean Anti-Fraud Office 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 the technical and operational assistanceneeded by the competent national authorities to facilitate coordination of their investigations. The
Commission may, where appropriate, provide assistance.

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Article 21
National strategy
1.

Member States shall establish and publish a national strategy on combatting environmental
criminal offences by … [three years from the date of entry into force of this Directive].
Member States shall take measures to implement their national strategy without undue
delay. The national strategy shall address at least the following:(a)the objectives and priorities of national policy in the area of environmental criminal
offences, including in cross-border cases, and arrangements for regular evaluation ofwhether they are being attained;(b)

the roles and responsibilities of all the competent authorities involved in combatting
environmental criminal offences, including as regards coordination and cooperation
between the national competent authorities as well as with the competent Union
bodies and as regards providing assistance to European networks working on matters
directly relevant to combatting those offences, including in cross-border cases;(c)how specialisation of enforcement professionals will be supported, an estimation of
the resources allocated to combat environmental crime and an evaluation of futureneeds in that regard.

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2.

Member States shall ensure that their national strategy is reviewed and updated at regularintervals which are no longer than five years, on the basis of a risk-analysis-based
approach, in order to take account of relevant developments and trends and related threats
regarding environmental crime.

Article 22
Statistical data
1.

Member States shall ensure that a system is in place for the recording, production andprovision of anonymised statistical data on the reporting, investigative and judicial stages
in relation to the criminal offences referred to in Articles 3 and 4 in order to monitor theeffectiveness of their measures 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 criminal offences registered and adjudicated by the Member States;(b)

the number of dismissed court cases, including on the grounds of expiry of thelimitation period for the criminal offence concerned;(c)the number of natural persons that are:(i)prosecuted,(ii)

convicted;

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(d)

(e)
3.

the number of legal persons that are:(i)prosecuted,(ii)

convicted or fined;

the types and levels of penalties 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 of this Article in the standard format referred to in Article 23.

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 23 has been established.

Article 23
Implementing powers
1.

By … [three years from the date of the entry into force of this Directive], the Commission
shall establish, by means of implementing acts, a standard, easily accessible andcomparable format for the transmission of statistical data referred to in Article 22(4).
Those implementing acts shall be adopted in accordance with the examination procedurereferred to in Article 24(2).

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2.

The standard format for the transmission of statistical data shall comprise the following
elements:(a)a classification of environmental criminal offences;(b)counting units;(c)a reporting format.

A common understanding of the elements referred to in the first subparagraph shall beensured.

Article 24
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.

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Article 25
Evaluation, reporting and review
1.

By … [ four years from the date of entry into force of this Directive], the Commission shallsubmit 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 … [ seven years from the date of the entry into force of this Directive], the Commission
shall carry out an evaluation of the impact of this Directive addressing the need to update
the list of environmental criminal offences referred to in Articles 3 and 4 and submit areport to the European Parliament and to the Council. Member States shall provide theCommission with necessary information for the preparation of that report, including asummary of the implementation of this Directive and actions taken in accordance with
Articles 16 to 21, and statistical data, with particular attention given to cross-bordercooperation. Where necessary, that report shall be accompanied by a legislative proposal.

3.

The Commission shall regularly consider if there is a need to amend the criminal offences
covered by Article 3(2).

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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 shall be 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.
With regard to the Member States bound by this Directive, references to those provisions of
Directive 2005/35/EC 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
Transposition
1.

Member States shall bring into force the laws, regulations and administrative provisions
necessary to comply with this Directive by … [two years from the date of entry into forceof this Directive]. They shall immediately inform the Commission thereof.
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.

2.

Member States shall communicate to the Commission the text of the main measures ofnational law which they adopt in the field covered by this Directive.

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Article 29
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 30
Addressees
This Directive is addressed to the Member States in accordance with the Treaties.
Done at …,

For the European Parliament

For the Council

The President

The President

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