EUROPEAN COMMISSION Brussels, 15.12.2021 SWD(2021) 465 final COMMISSION STAFF WORKING DOCUMENT



IMPACT ASSESSMENT REPORT

Accompanying the document Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL



on the protection of the environment through criminal law and replacing Directive 2008/99/EC











{COM(2021) 851 final} - {SEC(2021) 428 final} - {SWD(2021) 466 final}



Table of Contents 1 Introduction: Political and legal context 1.1 The Environmental Crime Directive 1.2 Evaluation of the Environmental Crime Directive 1.3 EU context 1.4 International context 2 Problem definition and Drivers 2.1 What are the problems and drivers that the review of the Directive seeks to address? 2.1.1 Problem 1: The Directive’s scope is outdated and defined in a complex way, hindering effective investigations, prosecutions and cross-border cooperation. 2.1.2 Problem 2: Unclear definitions of environmental crime which may hinder effective investigations, prosecutions and cross-border cooperation 2.1.3 Problem 3: Sanction levels are not sufficiently effective and dissuasive in all Member States 2.1.4 Problem 4: Insufficient cross-border cooperation. 2.1.5 Problem 5: lack of statistical data 2.1.6 Problem 6: ineffective enforcement chain 2.2 How will the problems evolve without intervention (baseline)? 3 Why should the EU act? 3.1 Legal basis 3.2 Subsidiarity: Necessity of EU action and added value of EU action

4 Objectives: What is to be achieved? 4.1 General objectives 4.2 Specific objectives 5 What are the available policy options? 5.1 Options discarded at an early stage 5.1.1 Repeal the Directive 5.1.2 Address the identified problems only through non-binding measures 5.2 Relevant policy option: replacing the Directive 6 Description, Assessment and comparison of the sub-options under the Option to amend the Directive 6.1 Objective 1: Updating the scope of the Directive; introduce a simple mechanism to keep the Directive up-to-date also in the future 6.1.1 Option 1 a): Update the existing list of legislation in the annexes, add new relevant crime categories to Article 3 6.1.2 Option 1 b) Change the approach to define ‘unlawfulness’ and define more precisely which breaches of sectoral legislation are criminally relevant. 6.1.3 Option 1 c): Define environmental crime in the Directive without the requirement of a breach of relevant EU sectoral legislation 6.1.4 Comparison of the options/preferred option 6.2 Objective 2: Clearer definitions of environmental crime 6.2.1 Option 2 a): Define unclear terms more precisely in the Directive 6.2.2 Option 2 b): Eliminate undefined terms, including by criminalising risky behaviour (endangerment crime) 6.2.3 Option 2 c): a combination of option 2a) and 2b) 6.2.4 Stakeholder opinions 6.2.5 Comparison of the options/Preferred option

6.3 Objective 3: Improving the proportionality and dissuasiveness of sanction types and levels 6.3.1 Option 3 a): Introduce minimum maximum sanctions levels 6.3.2 Option 3 b): Option 3a) plus aggravating circumstances and accessory sanctions 6.3.3 Option 3 c): Option 3 b) plus an obligation to link the level of fines to the financial situation of legal person and/or illegal profits 6.3.4 All options: non-binding guidance e.g. on determining of illegal benefits, calculation of illegal profits, financial situation of legal persons etc. 6.3.5 Coherence with EU sectoral legislation - relationship between criminal and administrative sanctioning systems 6.3.6 Stakeholder opinions 6.3.7 Comparison of the options/preferred option 6.4 Objective 4: Improving the effective cooperation and coordination between Member States 6.4.1 Option – introducing a package of provisions directly fostering cross-border cooperation 6.4.2 Effectiveness, legal feasibility and coherence 6.4.3 Efficiency 6.4.4 Conclusion 6.5 Objective 5: Improving data collection, statistics and reporting on environmental crime 6.5.1 Option 5 a): Oblige Member States to collect and regularly report to the Commission statistical data on environmental crime proceedings combined with further supporting measures 6.5.2 Option 5 b): Option 5 a) plus an obligation of the Member States to collect and report statistical data according to harmonised common standards 6.5.3 Efficiency 6.5.4 Comparison of the options/preferred option 6.6 Objective 6: Improving the effective operation of the enforcement chain 6.6.1 Insert in the Directive obligations that directly strengthen the effectiveness of the law enforcement chain

6.6.2 Stakeholder opinions 6.6.3 Efficiency 6.6.4 Conclusion 7 Indirect Impacts of a more effective Environmental Crime Directive 8 Preferred package 9 Monitoring Measures Annexes ANNEX 1: PROCEDURAL INFORMATION ANNEX 2A: METHODS ANNEX 2B: ANALYTICAL MODELS - COSTS ANNEX 3: WHO IS CONCERNED AND HOW? ANNEX 4: BASELINES ANNEX 5: ENVIRONMENTAL, SOCIAL AND ECONOMIC IMPACTS ANNEX 6: COMPARATIVE TABLE PROVISIONS ON PRACTICAL IMPLEMENTATION ANNEX 7: PUBLIC CONSULTATION REPORT Annex 8: Stakeholder consultation –synopsis report ANNEX 9: INTERVENTION LOGIC ANNEX 10: OPTIONS TABLE

List of tables for the Impact Assessment Number and name of the Table Page of the Table Table 1, Number of article 3 offences per maximum prison sanction per Member States P.23 Table 2, EU objectives in the current version of the Directive versus the objectives proposed for the review of the Directive P.35 Table 3, estimated annual costs of establishing and maintaining focal points in the Member States P.57 Table 4, Member State cost for Option 5a) P.61 Table 5, Member State costs for Option 5 b) P.63 Table 6, Member States cost estimates for additional training along the enforcement chain P.68 Table 7, Reference data about the costs of awareness raising activities P.69 Table 8, Estimated cost of developing national strategies in the Member States P.70 Table 9, Cost for the Commission implied by the Directive P.74 Table 10, Costs for Member States implied by the Directive P.75 Glossary Term or acronym Meaning or definition ADR European Agreement concerning the International Carriage of Dangerous Goods by Road CEPOL European Union Agency for Law Enforcement Training CITES Convention on International Trade in Endangered Species of Wild Fauna and Flora CJEU Court of Justice of the European Union CoE Council of Europe CPS UK’s Crown Prosecution Service CZK Czech koruna DG Directorate-General DGT Directorate-General for Translation Duty holder Person or entity bound by environmental legislation EA Enforcement Action EC European Community ECJ European Court of Justice EEB European Environmental Bureau EESC European Economic and Social Committee EFFACE European Union Action to Fight Environmental Crime EIO European Investigation Order EJTN European Judicial Training Network ELD Environmental Liability Directive ENCA European Nature Conservancy Agency ENEC European Network against Environmental Crime ENPE European Network of Prosecutors for the Environment EnviCrimeNet Environmental Crime Network EMPACT European Multidisciplinary Platform Against Criminal Threats EPA Network Network of Heads of Environment Protection Agencies ESTAT European Statistics EU European Union EUFJE European Union Forum of Judges for the Environment EUR Euro Eurojust European Union Agency for Criminal Justice Cooperation Europol European Union Agency for Law Enforcement Cooperation EUTR EU Timber Regulation GENVAL Working Party on General Matters including Evaluations GNR/SEPNA Nature and Environmental Protection Service of the Republican National Guard IFJ Judicial Training Institute IMO International Maritime Organisation IMPEL European Union Network for the Implementation and Enforcement of Environmental Law Interpol The International Criminal Police Organization IPA Croatia’s Instrument for Pre-accession Assistance IPEC Intelligence Project Environmental Crime ISF Internal Security Fund ISF-P Internal Security Fund (Police) IUU fishing Illegal, unreported and unregulated fishing JHA Justice and Home Affairs KPI key performance indicator Market Abuse Directive Directive 2014/57/EU of the European Parliament and of the Council of 16 April 2014 on criminal sanctions for market abuse (market abuse directive) MARPOL The International Convention for the Prevention of Pollution from Ships Montreal Protocol Montreal Protocol on Substances that Deplete the Ozone Layer MS Member States NGO Non-Governmental Organisation N/A not available or not applicable OECD Organisation for Economic Co-operation and Development OJ Official Journal of the European Union OLAF European Anti-Fraud Office OPC Open Public Consultation OWiG German Administrative Offences Act (Ordnungswidrigkeitengesetz) Ozone Regulation Regulation (EC) No 1005/2009 of the European Parliament and of the Council of 16 September 2009 on substances that deplete the ozone layer PIF-Directive Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union's financial interests by means of criminal law PoPs Regulation Regulation (EU) 2019/1021 of the European Parliament and of the Council of 20 June 2019 on persistent organic pollutants PSP Public Security Police REACH Registration, Evaluation, Authorisation and Restriction of Chemicals REFIT European Commission's regulatory fitness and performance programme RIA Regulatory Impact Assessment RSB Regulatory Scrutiny Board SEO/BirdLife Sociedad Española de Ornitología – BirdLife (Spanish Society of Ornithology – BirdLife) Stockholm Convention Stockholm Convention on Persistent Organic Pollutants SWD Staff Working Document TECUM Tackling Environmental Crime through Standardised Methodologies Project TFEU Treaty on the Functioning of the European Union TFS Transfrontier Shipment of Waste UN United Nations UNEP United Nations Environment Programme UNODC United Nations Office on Drugs and Crime USD United States Dollar WEEE Waste electrical and electronic equipment 1Introduction: Political and legal context Environmental crime is a growing concern causing significant damage to the environment and to citizens’ health within and beyond the Union. Providing perpetrators with very high profits and relatively low risks of detection, organised crime groups operating across the Union’s internal and external borders are increasingly attracted to environmental crime activities. Perpetrators often go unpunished despite the seriousness of the economic, social and environmental impacts environmental crime can have. Over the past decade, the need of environmental protection has become a major concern for the EU, which gradually stepped up its efforts to combat offences that are harmful to the environment. The Commission has acknowledged that crimes like illegal deforestation, water, air and soil pollution, traffic in ozone-depleting substances, poaching, overfishing and other offences heavily damage biodiversity, harm human health and destroy whole ecosystems. Environmental crime often comes with corruption, money laundering, violence, organised crime and documents forgery. Environmental crime also causes high economic costs including too low market prices and the loss of business of legal operators due to unfair competition from illegal operators (e.g. in the waste management sector). This further entails the loss of fiscal revenues. According to estimates of UNEP and Interpol, published in June 2016, the annual loss related to environmental crime has been estimated to range between US$ 91–258 billion. This makes environmental crime the fourth largest criminal activity in the world after drugs trafficking, human trafficking, and counterfeiting. It is growing at annual rates of between 5 and 7%. The top four environmental crimes are illegal trafficking in waste and in wildlife species, pollution crimes, and illegal trading in hazardous substances. Figures for the EU and the Member States are scattered and not collected according to comparable standards and are available only for certain sub-markets. A recently published study provides estimates on the most profitable criminal markets in the EU among which are illicit waste trafficking and illegal wildlife trade (glass eels only). According to the study, in 2019 annual revenues deriving from illicit non-hazardous waste trafficking (both within national boundaries and abroad) range between EUR 1.7 billion and EUR 12.9 billion. For hazardous waste trafficking, annual revenues range between EUR 2.1 billion and EUR 2.4 billion. A 2017 EUIPO study found that for the EU as a whole, the estimated total sales lost by legitimate manufacturers of pesticides due to counterfeiting amounted to 13.8% of sales or EUR 1.3 billion each year. As an indirect economic impact, i.e. resulting from lost sales in other sectors as well, the study estimated an additional annual loss of EUR 1.5 billion. Trade in illicit pesticides impacts government revenue as well (household income taxes, social security contributions and corporate income taxes), which were roughly estimated at EUR 238 million. 1.11.1 The Environmental Crime Directive The Environmental Crime Directive (hereafter ‘the Directive’) is the main horizontal EU instrument to protect the environment through criminal law. The Directive’s approach to defining a set of EU environmental crimes requires an infringement of relevant sectoral legislation as listed in two annexes to the Directive. Article 3 of the Directive describes additional constituent elements for various environmental crime categories that make infringing sectoral legislation an environmental crime. The Directive obliges Member States to ensure effective, proportionate and dissuasive sanctions for environmental crime (Article 5). Determining the type and level of criminal penalties did not fall within EC competence at that time (pre-Lisbon). The Directive does not require criminal liability of legal persons (Arts. 6, 7). 1.21.2 Evaluation of the Environmental Crime Directive The Commission has evaluated the Directive in 2019/20 and published its results in October 2020. It has found that the Directive had added value, as it defined for the first time a common legal framework for environmental criminal offences and required effective, dissuasive and proportionate sanctions. However, the Directive did not have much effect on the ground: the number of environmental crime cases successfully investigated and sentenced stayed at a very low level and generally did not show any significant upward trends over the past 10 years.

Moreover, the sanction levels imposed were too low to be dissuasive and cross-border cooperation did not take place in a systematic manner. The Directive’s lack of effectiveness in practice is partly due to the generic nature of its provisions. This can be explained by the EC-legislator’s limited competences in the field of criminal law under pre-Lisbon conditions, which did not allow going into more detail, especially on sanctions. In addition, poor enforcement in the Member States contributes largely to the Directive not having much effect on the ground. The evaluation found considerable enforcement gaps in all Member States and at all levels of the enforcement chain (police, prosecution and criminal courts). Deficiencies in the Member States include a lack of resources, specialised knowledge, awareness and prioritisation, cooperation and information sharing and an absence of overarching national strategies to combat environmental crime involving all levels of the enforcement chain and a multi-disciplinary approach. Moreover, the lack of coordination between the administrative and criminal law enforcement and sanctioning tracks often hinders effectiveness. It was also found that the lack of reliable, accurate and complete statistical data on environmental crime proceedings in the Member States did not only hamper the Commission’s evaluation but also prevents national policy-makers and practitioners from monitoring the effectiveness of their measures. Based on the results of the evaluation, the Commission decided to review the Directive. The Commission Work Programme 2021 schedules a legislative proposal for the revision of the Directive in December 2021. 1.31.3 EU context The current Commission adopted the Green Deal Communication along with a Biodiversity strategy. In July 2021, the Commission presented a package with concrete proposals for a Green New Deal, aimed at reducing emissions by 55% by 2030 and at making Europe climate neutral by 2050. It states that ‘the Commission will (…) promote action by the EU, its Member States and the international community to step up efforts against environmental crime’. In 2016, the Commission adopted the EU Action Plan against Wildlife Trafficking to improve environmental compliance in the field of wildlife trafficking. This was followed in 2018 by an Action Plan to improve environmental compliance and governance. In this context, the Commission set up the Environmental Compliance and Governance Forum as a high-level expert group to steer the Action Plan’s implementation and to serve as a platform for exchanges. Participants of the Forum are European networks of environmental inspectors (IMPEL), specialised police (EnviCrimeNet), environmental prosecutors (ENPE), judges (EUFJE) focusing on national environmental crime strategies, specialised training of practitioners, sharing information and best practices, and cross-border cooperation. The EU Serious and Organised Crime Threat Assessment (EU SOCTA) 2021 has identified “environmental crime” amongst the key crime threats facing the EU. On this basis, environmental crime has been included in the EMPACT 2022 – 2025. The new EU Strategy to tackle Organised Crime covering the period from 2021 to 2025 – presented by the Commission in April 2021 – keeps environmental crime as one of the future priorities of the EU’s fight against organised crime. The EU Security Union Strategy presented by the Commission in June 2020 also identifies environmental crime as an increasingly profitable business for organised crime, requiring further actions 1.41.4 International context EU action in the area of environmental crime takes place in a wider context of international agreements and moves to combat crime, such as the UN Convention against Transnational Organised Crime (UNTOC) and the UN Conventions against corruption and money laundering . The UNTOC e.g. sets a framework for international cooperation to combat transnational organised crime groups. It applies to crimes that according to national law are punishable by a maximum sanction of at least four years. However, most Member States do not provide for the required level of sanctions and thus the Convention is not applicable to most environmental crimes. The Council of Europe (CoE) is currently reviewing its 1998 Environmental Crime Convention. The Convention has been the first international instrument to define environmental crime and require adequate sanctions. More recently, the UN General Assembly has called on its Member States to make illicit trafficking in protected species of wild fauna and flora a serious crime to ensure that effective international cooperation takes place under the UN Convention. Further, the G7 countries recently committed to strengthening international and transboundary cooperation to tackle and address illegal wildlife trade as a serious crime. The G20 countries recently reiterated their determination to step up efforts to end illicit threats to nature and crimes, including illegal logging and illegal wildlife trade, as well as to intensify cooperation to combat illicit financial flows deriving from crimes that affect the environment, by implementing, inter alia, the global standards and recommendations of the Financial Action Task Force (FATF). A number of environmental sectors are regulated by international agreements and instruments notably the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), the Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention) or the Convention for Prevention of Pollution from Ships (MARPOL). These international instruments have been transposed into EU sectoral legislation. Serious violations of these rules have been addressed by EU criminal law, including the Environmental Crime Directive and sanctions provisions in sectoral legislation. In general, sectoral legislation leaves it to the Member States to decide whether the sanctioning regime for violations should be criminal or non-criminal. 2Problem definition and Drivers

2.12.1 What are the problems and drivers that the review of the Directive seeks to address? The review seeks to address six main problems inherent in the Directive’s current limited scope and content that were identified during the evaluation of the Directive and which contribute to the Directive’s ineffectiveness. These six main problem are described in more detail below, along with their regulatory and practical drivers. The order of presentation follows the structure of the current Directive and does not necessarily correspond to the importance of the problems in terms of their effects. Actually, the problems interact and have a cumulative impact on the Directive’s (lack of) effectiveness. 2.1.12.1.1 Problem 1: The Directive’s scope is outdated and defined in a complex way, hindering effective investigations, prosecutions and cross-border cooperation. Criminal offences as defined by the Directive presuppose ‘unlawful’ behaviour defined as a breach of EU sectoral legislation listed in two annexes to the Directive. The listed legislation is linked to nine categories of environmental criminal offences described under Article 3 of the Directive (including pollution, waste management, shipment of waste, operation of a plant involving dangerous activities or materials, the handling of hazardous materials, wildlife crime, the handling of ozone-depleting substances). Most of these crime categories require further material elements that make a breach of sectoral legislation a crime - such as substantial damage to the environment or serious injury to persons. Some crime categories criminalise the violation of relevant sectoral obligations without requiring any damage to be caused, e.g. Article 3 c) regarding the shipment of waste, or Article 3 i) regarding ozone-depleting substances, which both exclude negligible cases. The corresponding environmental legislation in the annexes is largely outdated, as 46 out of the 72 pieces of listed legislation meanwhile have been repealed or replaced. New Union legislation, such as the Reach Regulation on chemical products or the Plant Protection Regulation on pesticides, and new crime categories, such as forestry crime, illegal logging and timber trade, ship-source pollution or trade in f-gases, have not been included since the Directive entered into force. Independently of the Directive, Member States are generally required to have sanctions for infringements of EU sectoral legislation , but they can choose to have administrative-law sanctions or criminal-law sanctions or a combination of these. EU environmental legislation does not, and cannot, set specific levels and types of criminal sanctions, only a criminal law directive can based on Article 83 TFEU. In addition, where crime areas are not covered by the Directive, it is for the Member States to decide whether or not to provide for criminal liability in their national legal frameworks and how to define the crime. Where Member States do not at all criminalise a given environmental crime area, cross-border cooperation becomes difficult for lack of dual criminality. Thus, criminal investigations initiated in one Member State have to be discontinued or limited. The same issue occurs where Member States define differently an environmental crime category. This situation adds to the complexity of environmental criminal law already driven by its dependency on administrative legislation. Law enforcement practitioners are confronted with a complex and scattered legal framework at both EU-and national level, which lacks an internal logic. This leads to environmental crime proceedings rather not being initiated, as the applicable rules are confusing and thus the prospects of success of a criminal investigations – in particular with regard to cross-border implications – are hard to evaluate. There are no statistics on how many environmental crime cases were not successfully investigated due to this issue. Statistics, however, evidence that the number of investigations and convictions has remained at a very low level across Member States over the past decade. A large majority of the practitioners and their networks confirmed, within the targeted stakeholder consultations that gaps in and uncertainties about the scope and the complexity of environmental crime as described above contribute to the ineffectiveness of the Directive. The Directive has not been updated in line with the development of EU environmental law and it does not respond to current challenges and new trends in environmental crime. It does not cover categories of offences linked to EU environmental legislation adopted after 2008 (see examples below). In particular, the Directive does not cover such activities harmful to the environment and to human health as illegal trade in timber, unlawful manufacture, importation of placement on the market of chemical substances, including those which are banned or restricted, placing on the market of products breaching standards, which as a result of the product’s mass use cause damage to the environment or human health, illegal execution of development projects which cause substantial damage, illegal recycling of ships, illegal abstraction of water, intentional introduction or spread of invasive alien species of Union concern, illegal placing on the market of fluorinated greenhouse gases. The acceleration of climate change, biodiversity loss and environmental degradation, paired with tangible examples of their devastating effects, have led to the necessity to step up enforcement action against illegal harmful activities accelerating such harmful effects. In these areas, even if sectoral law is advanced, there is still an important gap in terms of enforcement (see examples below). Infringers often face low risks of detection, and even lower risks of prosecution and sanctioning, while financially gaining from the avoidance of environmental safeguards. This also gives rise to organised crime harming the environment. Also, for some offences under the current Directive, the protection is of limited scope and thus do not have the desirable effect to protect the environment. For example, this concerns offences linked to the protection of wildlife. In the last four decades, global wildlife populations fell by 60% as a result of human activities. Globally, up to one million species are threatened with extinction. Biodiversity loss and ecosystem collapse are one of the biggest threats facing humanity in the next decade. Example: Ship Recycling Regulation The adoption of Regulation (No) 1257/2013 on ship recycling (SRR) introduced obligations for ship owners regarding the recycling of large commercial seagoing vessels flying the flag of EU Member States. This Regulation is aimed to ‘prevent, reduce, minimise and, to the extent practicable, eliminate accidents, injuries and other adverse effects on human health and the environment caused by ship recycling’. It seems, however, that the SRR has had so far limited effects because ship owners have managed to circumvent their legal obligations . As the Regulation only applies to ship registered under EU/EEA flag, ship owners could easily re-flagged their ship and avoid any sanction for non-compliance with the previously mentioned regulation. Re-flagging appears in fact, to be the major problem of ship recycling according to recent data (OECD report, 2019). This has consequences for the economy, the environment and human health. Non-compliance with Article 6(2)(a) of that Regulation which requires the ship-owners to ensure that their ships destined for recycling are only recycled in the specific facilities included on the EU List of ship recycling facilities is currently not a subject to a strong regulative response. The use of ‘flag of convenience’ has allowed ship owners to avoid the sanctions under SRR Regulation . Besides, the level of sanctions has not deterred ship owners from such practice as most Member States have favoured administrative sanctions over criminal ones (e.g. Lithuania, Hungary, Latvia, Belgium). Illegal ship recycling is sometimes linked to other criminal conducts such as money laundering and terrorism. The transboundary nature of the offences requires a stronger legal framework at EU level to ensure greater responsibility and justifies using criminal sanctions. Example: EU Timber Regulation Illegal logging and related illegal timber trade represent a persistent problem with global consequences as it leads to deforestation. These crimes belong to the most profitable crimes worldwide and cause costs valued at US$51–152 billion annually according to a recent WWF report. According to another WWF report, the EU is responsible for almost EUR 3 billion of losses due to illegal logging, with an import of around 20 million cubic meters of illegal timber every year. These undermine efforts to reduce emissions from the forest sector and support sustainable management of forests. An analysis of available statistics shows that especially illegal logging is a frequent offence in Member States like BG, RO, HU, LV, and LT. To combat illegal timber trade, the EU has adopted the Timber Regulation (EUTR), which prohibits the placing of illegally harvested timber and products and includes a provision on sanctions. However, the EUTR is not included in the annexes of the Directive and there is no relevant offence in Article 3 ECD. Member States have put in place different types of sanctions, including criminal sanctions introduced in some Member States. However, there are large disparities and too low sanctions are imposed in practice, which hinders the effectiveness and the credibility of the national enforcement systems and undermines the effective implementation of EUTR. Example: chemicals legislation Numerous reports point out problems with the enforcement chemicals legislation, such as REACH , CLP and POPs , and risks for human health and environmental which require a stronger legal framework. Enforcement challenges and low sanctions imposed for breaches hamper the effectiveness of legislation and are an obstacle for a level playing field. For instance, regarding REACH and CLP, there are large disparities between national sanctioning systems and in several Member States the most serious infringements are addressed by relatively low administrative sanctions only. A study from 2020 showed clear differences in the enforcement practices of the Member States, with two countries, namely Germany and Sweden, accounting for two thirds of the total referrals to the state prosecutor office, and one country imposing 40% of the administrative fines in the Union in the reporting period.

The enforcement shortcomings prompted the Commission to commit to a ‘zero tolerance approach to non-compliance’ as outlined in the Chemicals Strategy for Sustainability. In this regard, extending the scope of chemicals offence under the Environmental Crime Directive is crucial as ‘currently almost 30% of the alerts on dangerous products on the market involve risks due to chemicals, with almost 90% of those products coming from outside the EU and imported articles and online sales representing a particular challenge. Hence, EU action appear to be necessary to ensure harmonization of the national enforcement systems and to strengthen the enforcement of REACH at the EU’s borders. Example: Invasive Alien Species Regulation The illegal spread of Invasive Alien Species (IAS) can seriously harm the environment (e.g. extinction of indigenous species) and the economy (e.g. reducing yields from agriculture, forestry and fisheries). IAS cost the European economy 12 billion euros per year and are risky for the human health (e.g. serious allergies and skin problems; burns caused by the giant hogweed). IAS is one of the five major causes of biodiversity loss in Europe and in the world. According to the IUCN Red List, among the 1872 species considered as threatened in Europe, 354 are directly affected by IAS. The increase of IAS is linked to intentional introduction (e.g. pets, horticulture) and absence of effective control measures. Article 15 of the IAS Regulation provides that Member States shall have in place fully functioning structures to carry out the official controls necessary to prevent the intentional introduction of IAS of Union concern but several challenges appear in practice. Article 30 of the IAS Regulation requests MS to ensure that infringements of IAS related offences are punished by penalties, including fines, seizure of the non-compliant invasive alien species of Union concern or immediate suspension or withdrawal of a permit. Some Member States have introduced criminal sanctions but there are serious discrepancies among them concerning the types and levels of criminal penalties. For example, the lowest maximum imprisonment penalty is one month (Luxembourg) while Italy and Belgium (Flanders) provide for the highest maximum imprisonment term of three years and five years, respectively. Sanctions are not comparable and in many instances not dissuasive which can hamper tackling illegal IAS related activities and effective cross-border cooperation. Challenges exist also as regards detection of breaches and identification of offenders. Drivers There are two drivers to the problem of the Directive becoming outdated over time and not covering all relevant legislation. ·The approach of the Directive to define environmental law is based on the breach of sectoral legislation referred to in the annexes. Although this reference is a dynamic one and refers to the legislation in annexes in its up-to-date form, new relevant sectoral legislation is not automatically covered. ·There is no easy and functioning mechanism to update the Directive and its annexes and bring new legislation under its scope. Currently, recital 15 of the Directive states “Whenever subsequent legislation on environmental matters is adopted, it should specify where appropriate that this Directive will apply. Where necessary, Article 3 should be amended.” In practice, although new legislation has been adopted since 2008, it does not refer to the Environmental Crime Directive nor has Article 3 ever been amended to include such new crime categories. Instead, sectoral environmental legislation includes its own rules on sanctioning and penalties that are often generic and leave the choice of whether and when criminal sanctions should apply to the Member States. Ultimately, this is an issue of incoherence between the Directive and sectoral legislation that is addressed below under section 6.3.5. 2.1.22.1.2 Problem 2: Unclear definitions of environmental crime which may hinder effective investigations, prosecutions and cross-border cooperation Definitions in Article 3 contain flexible but unclear legal terms such as ‘substantial damage’, ‘non-negligible quantity’, ‘negligible quantity’, ‘dangerous activity’, and ‘significant deterioration‘, and thus leave much room for interpretation. Their meaning also depends on the circumstances of the individual case and the environmental crime area concerned.. Differences in interpretation do not only occur between Member States, but even within Member States. Uncertainty about the meaning of terms used to define environmental crime can lead to environmental crime investigations not be taken up . Different views of what is a crime can also lead to investigations coming to a halt, hampering cross-border cooperation, for example that a European Investigation Order or European Arrest Warrant is not executed. This contributes to a situation in 2020 where environmental crime - although deemed the fourth most profitable criminal activity in the world - only accounted for 1% of the cases dealt with by Eurojust , while only 2148 out of 1,2 million (0.2%) messages exchanged through Europol’s SIENA platform were related to environmental crime. There are no statistics on environmental crime cases that were not investigated or were stopped due to uncertainty about the legal terms used to define environmental crime. Yet, practitioners and their networks in the targeted stakeholder consultations confirmed that this problem is real. Drivers Member States have mostly not defined these terms further in their transposing laws. For example, the term ‘substantial damage’ that is used under Article 3 a), b), d) and e) has been transposed by most Member States either literally or by using similar wording such as ‘significant damage’ or ‘substantial harm’, without further refining its meaning. Where Member States did define this term, they did so in different ways. Some defined it financially (e.g. with regard to profits lost or to money needed to restore the status quo ante), while others focused on the quality of the environmental loss (e.g. in terms of size of the geographic area polluted or destroyed, in terms of the time and effort needed to restore the damage, in terms of damage duration). 2.1.32.1.3 Problem 3: Sanction levels are not sufficiently effective and dissuasive in all Member States Although after the Directive entered into force, sanction levels went up significantly in the Member States, there are still Member States that do not provide for maximum sanction levels that ensure effectiveness, dissuasiveness and proportionality- as shown in more detail below. Maximum sanction levels available in Member States national law vary largely and are often not dissuasive. The following graph illustrates large differences in available maximum fines for e.g. Article 3(h) offenses.

Figure: Maximum levels of criminal fines, applicable to natural persons (EUR) in EU Member States for Article 3(h) offense, and median fine The levels of maximum prison penalties also vary significantly. The graph below illustrates large differences for crimes covered by Article 3(h). A common understanding of what are effective and dissuasive sanction levels has not emerged. Figure. Maximum criminal prison sentences available in national law for Article 3 (h) offenses. 50 years=life imprisonment (Source: Evaluation report) Natural persons

FR, IT, LT provide for maximum levels of financial penalties for natural persons below EUR 100 000 for some Article 3 criminal offenses, while BG, NL, RO, and SE provide for maximum fines below this threshold for all Article 3 offenses. The evaluation found that this amount was well below the average of all Member States together and unlikely to be dissuasive in all circumstances, given that environmental crime causes enormous harm and illegal profits can amount to millions of euros. Also with regard to prison penalties, a number of Member States only provide maximum penalties of 3 years or less in their national law for environmental crimes. These penalty levels are low compared to minimum levels for maximum sanctions in other Directives on serious crimes, such as the Anti-Money laundering Directive (4 years), the Counterfeiting Directive (5 to 8 years, depending on the crime), or serious drug trafficking offenses listed in the Council Framework Decision (5 to 10 years, depending on the crime). Table 1, Number of article 3 offences per maximum prison sanction per Member States Legal persons Legal persons typically have much more financial flexibility and capacity to compensate financial penalties than natural persons, as the potential risk of financial penalties can be calculated and passed on to consumers. As with sanctions for natural persons, maximum levels of fines for legal persons diverge significantly across Member States. E.g. maximum fines for offenses under Article 3(c), range from around MEUR 0.2 in LU to MEUR 250 in SE. Overall, many Member States remain at or below MEUR 0.5 for a number of Article 3 offences (BE, BG, CY, EL, FR, IT, LU, RO). Moreover, although linking the level of fines to the level of illegal profits or the financial situation of the legal person can be an effective way to define proportionate sanction levels, only a few Member States use this approach in their national laws: NL, PL and AT base the level of fines on the annual turnover or income of the legal person. HU takes into account the financial advantage gained from the offence or the financial situation of the legal persons. Sanction levels imposed in practice are too low to be dissuasive. Even where national criminal law provides for high maximum sanction levels, criminal judges do not make full use of the available sanction range, but rather stay in the lowest segment. Imprisonment sanctions are rare, and suspended in practice. Example: Smuggling in Rotterdam In 2019, in the NL, the prosecution required an unsuspended prison sentence of 20 months for the import of six containers of illegal and environmentally harmful crop protection products of an estimated value of MEUR 5 and an estimated potential illegal profit above MEUR 4. The judge imposed a suspended sentence of 6 months and a fine of EUR 400 000, while the smuggling of small amounts of drugs in the NL is typically sanctioned by a year imprisonment. Statistical data on the level of fines imposed are scarce (problem 5); notably some data exists for FR, IE and LV on average fines. For natural persons, in 2016, levels of fines for environmental crime were in the order of EUR 5500 in FR, EUR 3500 in IE, and EUR 2000 in LV. In IE, between 2004 and 2014, average fines of EUR 1400 were imposed. In FI and FR, average prison sentences of 5 months were given in 2016, whilst it was 21.5 months in LV. For legal person, several studies (on DE and other Member States ) raised doubts on the sanction levels imposed in practice. In IE, for the period 2004-2014, average fines amounted to EUR 7000 . In 2016, average fines were EUR 21 000 in FI, EUR 16 000 in FR and EUR 3500 in IE. In NL, the average criminal fine for companies was less than 1% of annual profit in 90% of cases. Given the high profits for environmental crimes that can amounting to millions of Euros, these levels are inappropriate. Additional consequences for cross-border cooperation (objective 4) Access to special investigative techniques such as surveillance of telecommunications and undercover investigations is normally conditional on the seriousness of the environmental crime defined by a certain minimum or maximum level of penalties that is available for the suspected crime. Member States that regard environmental offences as minor will only have the standard investigative tools at their disposal. This can prevent cross-border cooperation, for example if surveillance measures, which are often linked to the penalty threshold, ordered in one Member State cannot be continued or complemented in another Member State involved. Low maximum sanction levels can also hamper the use of EU- or international cooperation instruments. For example, the UNTOC – that sets out a framework for international cooperation for serious crime – makes the use of investigative tools provided therein subject to a maximum penalty of at least 4 years of imprisonment, and the European Arrest Warrant to a maximum penalty of at least 1 year of imprisonment. Here also, effective criminal proceedings and cross-border cooperation can be hampered, if not made impossible. Stakeholders Stakeholders consider that fines and imprisonment sanction levels imposed in practice are not dissuasive: 65% of public consultation respondents did not find sanction levels sufficiently deterring and only 10% considered them satisfactory . Whilst law enforcement practitioners repeatedly pointed out the low, non-dissuasive sanction levels imposed in practice. Drivers

The main problem driver is the lack of specificity of the Directive, which only requires sanctions to be ‘effective, proportionate and dissuasive’. Pre-Lisbon, the EC legislator did not have the competence to regulate on sanction types and levels. This is now possible under the new Article 83 (2) TFEU. Hence, EU criminal law instruments adopted after the entry into force of the Lisbon Treaty contain minimum maximum levels of fines and prison sentences. For legal persons, there is often a catalogue of possible accessory sanction that Member States should make available, such as exclusion from public procurement procedures and grants. In addition, lack of awareness of the harmfulness of environmental crime contributes to criminal judges imposing non-dissuasive sanctions (see below problem 6), as confirmed by the police and judiciary. Thus, many cases are dismissed in court, or only very lenient sanctions imposed. 2.1.42.1.4 Problem 4: Insufficient cross-border cooperation. The Directive did not prove to be a decisive element for fostering cross-border cooperation in practice. Environmental crime cases currently amount to only 1% of total Eurojust cases, although environmental crime is the fourth most profitable criminal activity globally, and important environmental crime categories, such as waste trafficking and wildlife trafficking, frequently involve criminal activity in several Member States. Europol and Eurojust reported small improvements in cooperation in recent years, but these remain overall insufficient. For example, while in 2020 Eurojust reported 1264 new cases on swindling and fraud, 595 on money laundering and 562 on drug trafficking, only 20 new cases on environmental crime were opened. In the same year, only 3 out of 74 newly signed Joint Investigation Teams and 6 out of 260 existing Joint Investigation Teams related to environmental crime. Cooperation and coordination are also necessary within Member States, since detection, investigation and prosecution may all involve different authorities. Weak domestic cooperation and coordination are also an issue mentioned under problem 6 below. Drivers The lack of a more harmonized approach to fight environmental crime creates legal and operational obstacles to Member State authorities to effectively cooperate and jointly investigate transnational, cross-border environmental crime. In particular, intrusive investigative tools are not available in all Member States. Further, as demonstrated above the limited scope of the Directive and vague terms used in the Directive to define environmental crime can result in dual criminality issues during cross-border investigations. The Directive does not contain provisions directly fostering cross-border cooperation such as harmonised rules on jurisdiction, investigative tools or the set-up of national contact points. The Directive does not include any provision obliging Member States to work better together, e.g. through Europol, Eurojust, OLAF and the professional networks during investigations. These agencies and bodies play a key role in facilitating cross-border cooperation on crime, including environmental crime. However, Eurojust as the main operational body to foster cross-border judicial cooperation depends on Member States requesting their support. Stakeholders confirm a lack of knowledge of practitioners of the role of Eurojust and Europol and of how to use the existing tools, such as Joint Investigations Teams. Only few environmental crime cases lead to few cross–border cooperation. As shown further below, the lack of implementation contributes largely to this situation. 2.1.52.1.5 Problem 5: lack of statistical data In all Member States, there is a lack of statistical data on investigations, prosecutions, convictions, dismissed cases, number of legal persons involved, and the level and type of sanctions imposed. This was shown in the evaluation of the Directive and in the results of the 8th Mutual Evaluations on the effectiveness of EU policies on environmental crime. At EU level, Eurostat has a mandate to develop comparable statistics on crime and criminal justice, but the national authorities are responsible for the official figures sent to Eurostat according to their own methodologies and documentation systems. A lack of statistical data results in limited information on the entire flow of cases over the whole law enforcement chain, from administrative inspections and police and prosecution services to the criminal courts. Against this backdrop, Member States’ performance cannot be compared. Such lack of data also makes it difficult for policymakers and practitioners to monitor the effectiveness of their policies, to identify obstacles in the law enforcement chain and to take targeted and informed decisions. The evaluation found this lack of statistical data to drive other problems, notably the general public’s lack of awareness of the scale and impacts of environmental crime, the lack of political prioritisation of environmental crime and the lack of the necessary budget, human and financial resources for law enforcement authorities. Drivers Also this problem has several drivers. Firstly, in most Member States, relevant statistics are fragmented and based on multiple individual statistical sources, as they are collected separately by each individual authority involved in preventing and combating environmental crime, without coordination or integration. Secondly, each Member State establishes its own criminal laws, crimes, legal proceedings and justice responses, as well as specifications for official crime statistics. Such methodological differences make it very difficult to compare statistical data. The crime and criminal justice related metadata and quality reports detail these key methodological differences: ·different stages of data collection (input, process or output statistics for offences recorded by the police; or before and after appeal for court statistics); ·different accounting units (offence, case, incident for police statistics, or number of people charged or proceedings for court statistics); ·counting rules for multiple (serial) offences of the same type; ·counting rules when an offence is committed by more than one person; ·use of principal offence rule, and others.

Thirdly, perpetrators are often prosecuted under other crime categories, , such as organised crime, fraud, falsification of documents, trafficking of goods or economic crime. Serious environmental wrongdoing is thus often hidden in existing statistics and its impact on the environment is seldom the focus of prosecutions. The Directive does not include any provision to address collection and reporting of statistical data, or provide a framework to collect data in a comparable manner across Member States. 2.1.62.1.6 Problem 6: ineffective enforcement chain Effective crime detection, investigation, prosecution and adjudication (“the enforcement chain”) are essential for the Directive to be effective in practice. The evaluation found that offences under the Directive are not sufficiently investigated, prosecuted and tried in practice. Numerous studies (see evaluation report, section 5.1.4. – ‘practical implementation’) have identified the need for improvement at all levels of the enforcement chain (detection, investigation, prosecution, conviction) and in all Member States. Recently, the European Parliament in a 2021 Resolution on the liability of legal person for environmental damage stressed the need to ensure the effective enforcement of existing legislation on environmental crime (Recommendation 11). According to the results of the 2019 Council 8th Mutual Evaluations, all Member States have shortcomings in one or more points of the criminal law enforcement chain. Every single point is important for the functioning of the enforcement chain as a whole. An overview on the situation in the individual Member States is provided in annex 4. Specific issues important for effective implementation such as cross-border cooperation, the collection of statistical data, the availability of appropriate investigate tools and adequate sanctioning in practice are addressed separately above under problems 3, 4 and 5. Drivers The reasons driving the problems concerning detection, investigation and prosecution of environmental crime in the Member States stem from weaknesses of enforcement efforts, lack of awareness and political prioritisation. First, as described under problem 5, the lack of statistics on environmental crime and a lack of specialised knowledge of many law enforcement authorities on the harmfulness of environmental crime leads to a lack of awareness of the harmfulness and size of environmental crime with decision makers on both political and implementation level. This in turn leads to a lack of prioritisation. Necessary resources and efforts are allocated to other crime areas. Enforcement authorities do not have the necessary financial and human resources, there is a lack of training and specialisation, data – and information collection and sharing. Integrated strategies tying together all levels of the enforcement chain (detection, investigation, prosecution, sanctioning) are missing in most Member States. Eurojust reports a the lack of specialised knowledge and experience, along with a lack of resources and the existence of other priorities. The evaluation of the Directive also confirmed that also judges lack specialised knowledge and awareness of the harmful effects of environmental crime. This leads to judges unduly dismissing cases or imposing very lenient sanctions even where more severe sanctions are available. Training and specialisation have been mentioned by all practitioners and their EU-wide networks as being of paramount importance for successful investigations, especially as in the field of environmental crime often potentially large-scale, complex and international investigations are necessary and specialised knowledge is required. Training activities at national level are seen by practitioners as far from being sufficient, tailored and well-organised. The EU support to training, e.g. via the European Judicial Training Network, the relevant practitioners’ networks and some LIFE and ISF-Police projects, is considered in general useful, in particular concerning establishing common understanding, identification of good practices and preparation of training materials, but not sufficient to compensate for the shortcomings at national level. Although Member States have already today an obligation not only to transpose EU law by letter but also to ensure implementation in practice, the described problems have been long lasting. Therefore, the need for binding provisions on strengthening the enforcement chain was particularly stressed during the consultations by enforcement practitioners and other stakeholders, in particular as regards ensuring adequate resources and specialisation/training, cooperation, coordination, data collection and strategic approaches. 2.22.2 How will the problems evolve without intervention (baseline)? As further described below, in recent years have efforts were made at EU level to improve environmental criminal law enforcement. Hence, improvements are likely in some areas. In others, in particular on problems deriving due to the Directive being outdated, the issues will worsen over time. a)Relevant emerging crime areas remain unregulated at EU level, while legal uncertainty persists regarding certain crime definitions (problems 1 and 2) The issues of the Directive’s scope being out of date and not containing all environmentally relevant areas and the vagueness of some of its crime definitions will continue to hamper its effectiveness and thus the effective enforcement against environmental crime on the ground. New environmental crime areas under the Article 3 and the annexes of the Directive can only be introduced through legislative action. As legislation in the environmental area is fast evolving, the problem of the Directive becoming outdated would further accelerate in the future. Guidelines at Member State level on undefined legal terms, as recommended by the Council’s 8th mutual evaluation report, may lead to a certain extent to a greater common understanding between Member States and help facilitate the work of law enforcement authorities. However, national guidelines on interpretation would – in any event – not be binding for others and would also not solve the problem of differing interpretations of the Directive in national law. b)Insufficient sanctioning would persist resulting in limited deterrence (problem 3) There are large differences between the criminal sanctions provided for environmental crimes in Member States. The existing criminal sanctions are not sufficiently stringent to ensure a high level of environmental protection throughout the Union. As a result, sanctioning practice will continue to diverge across the EU in the absence of further intervention at Union level. The Commission issued ‘Guidance on combating environmental crimes and related infringements’ (endorsed by the Environmental Compliance and Governance Forum in 2021) describes inter alia good practices in sentencing. The publication and promotion of this document may contribute to raise awareness on the importance of dissuasive penalties and more harmonised sanctioning in practice. So may the work of the Forum and its sub-group on sanctioning, created in 202, and the work of the European environmental enforcement networks, such as IMPEL, EnviCrimeNet, ENPE and EUFJE.

c)Legal and operational obstacles for effective cross-border cooperation among Member States would remain (problem 4) Several initiatives helped to step up cross-border cooperation over the past few years. Environmental crime became an EU Crime Priority within the current EMPACT 2018-2021. In that context, Europol has set up a focal point and developed a multi-annual strategic plan and an operational action plan to facilitate cooperation in the area of environmental crime. Due to the increasing need for cooperation, Europol’s environmental cases and messages exchanged through SIENA increased sharply since the first operational year under the EU policy cycle (2018). Environmental crime remains also a priority also in the subsequent EMPACT 2022 – 2026. Eurojust has issued a report on its environmental crime cases with the aim to highlight obstacles of judicial cooperation in this area and to share the best practices to overcome them. The ‘Guidance on combating environmental crimes and related infringements’ mentioned above under b) devotes a chapter to cooperation and coordination mechanisms, including at European and international levels. Promotion of this Guidance can contribute to better awareness of existing tools and mechanisms. However, this cannot completely address the difficulties related to divergences between national legislation. Digitalisation of communication and data exchange in judicial cooperation including criminal law proceedings should further facilitate cross-border cooperation. The Commission is working on a regulation, which will make the digital channel the default means of communication in cross-border judicial cooperation. Cross-border judicial cooperation is increasingly required by national authorities to address the complex and international set up of organized crime groups behind environmental crime. But without further intervention at the Union level, legal and operational obstacles will however persist in cross-border cooperation among Member States’ administrative, law enforcement and judicial authorities across Member States particularly regarding the increasing phenomenon on organised, transnational environmental crime. d)The lack of deterrent law enforcement and the impunity of criminals may persist (problems 5 and 6) The Council’s 8th round of mutual evaluations addressed the issue of proper implementation of European policies on prevention and combating environmental crime. It found that law enforcement was deficient in various areas under scrutiny (such as statistical data collection, financial resources, national strategies to combat environmental crime, cross-border cooperation etc.). In its 2019 final report, it recommended that Member States improve implementation. At the point of finalising this Impact Assessment, 13 Member States have replied so far to inform on measures. The Commission has also taken steps to improve the effectiveness of Member States’ efforts to combat environmental crime. In 2018, the Commission set up a high-level expert group on environmental compliance, the Environmental Compliance and Governance Forum. It also adopted an Action Plan, which supports the work of the European environmental enforcement networks mentioned above. In this context, the ‘Guidance on combating environmental crimes and related infringements’ mentioned above under b) and c) was issued. It describes in detail good practices relevant to all parts of the enforcement chain from detection to sentencing and its intended publication and dissemination should help strengthen the operation of the enforcement chain. The LIFE Regulation and the Internal Security Fund-Police also provide financial support to the European enforcement networks and national authorities, as they can raise awareness, share good practices and develop practical tools. e)Conclusion Overall, independent of this review, a range of non-binding measures and guidance already in place could be further developed to support effective criminal law enforcement. However, without further legislative intervention at EU level, the lack of a deterring enforcement system and impunity for environmental crime are likely to persist in EU Member States (see also below: section 5.1.2 –discarded options – non-binding measures). 3Why should the EU act? 3.13.1 Legal basis The legal bases for the proposed Directive are Articles 82(2) and 83(2) TFEU. Article 83(2) sets out the Union’s competence to establish minimum rules with regard to the definition of criminal offences and sanctions in Union policy areas, which have been subject to harmonization measures, if this is necessary for the effective enforcement. Article 82(2) TFEU sets out the Union’s competence to establish minimum rules necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension. It is relevant for provisions on rights of individuals in criminal procedure. The current Directive is as a pre-Lisbon instrument adopted on the basis Article 175 TEC (now Article 192 TFEU) which had been a legal basis for EU policy on environment protection. According to an ECJ judgment this article comprised also the competence to ensure full compliance with Community legislation through criminal law (judgment of 13 September 2005, C-176/03, paragraph 48). In a second judgment, the ECJ clarified that the definition of types and levels of criminal penalties does not fall within the Community’s sphere of competence (judgment of 23 October 2007, C-440/05, paragraph 70). But with the Lisbon Treaty, the Union has received a genuine competence for criminal law measures in EU policy areas, including the definition of sanction types and levels. (Article 83(2)). 3.23.2 Subsidiarity: Necessity of EU action and added value of EU action Necessity of EU action Criminal activities related to the environment very often have a cross-border dimension, as an environmental crime can impact several countries (for example the illicit trafficking of waste, wildlife or chemicals or the pollution of air, water and soil, see above section 1 – introduction) or have cross-border effects (e.g. in case of cross-border pollution). Cross-border cooperation between law enforcement and judicial authorities is therefore essential. The existing Directive aimed to provide such harmonised framework to facilitate cross-border cooperation. However, as detailed in the evaluation report, despite the progress in creating an EU-wide common set of definitions of environmental crimes and requiring more dissuasive sanction levels, Member States on their own have not been able to reconcile their respective understandings of environmental crime within the room for maneuver the Directive has left. Similarly, the insufficient sanction levels in a number of Member States prevent a level playing field across the EU and mutual recognition instruments from applying (such as the EAW and the EIO).

Despite the Directive, the number of cross-border investigations and convictions in the EU of environmental crime did not grow substantially. In the meantime, in contrast, environmental crime is growing at annual rates of 5 to 7% globally , creating lasting damage for habitats, species, health of citizens and revenues of governments and businesses. Added value of EU action With a more effective Directive, the EU can provide the harmonised framework for a common understanding of definitions of environmental crimes and for effective access to cross-border investigative tools. By providing more clarity on legal definitions and by approximating sanction levels, as well as by providing tools and obligations for cross-border cooperation among Member States, the revised Directive will create a more even level playing field with equivalent criminal law protection for the environment across the EU and facilitate cross-border cooperation on investigations and prosecutions. By facilitating cross-border investigations, prosecutions and convictions, EU action will provide for clear added value on countering environmental crimes which typically have transnational dimensions compared to what Member States acting alone can achieve. As environmental crime often undermines legal and tax paying businesses, who share an unknown but likely large share of the estimated annual global loss related to environmental crime of between USD 91 and 259 billion, an effective EU legislative framework on environmental crime will have an effect on the functioning of the EU single market as well. Without such EU wide legislation, companies operating in Member States with limited definitions of environmental crimes or lenient enforcement regimes can have a competitive advantage over the companies established in Member States with stricter legal frameworks. An effective EU wide policy on environmental crime may also benefit other EU policy objectives. Environmental crimes are often linked to other forms of crime such as money laundering, terrorism, tax fraud, forgery or other forms of organised crime against which the EU has adopted a range of legislation in recent years. A more effective EU legislation on environmental crime would contribute to effective criminal law enforcement strategies, at EU- and national level that address all relevant aspects of criminal interaction. 4Objectives: What is to be achieved? The methodological challenges encountered during the evaluation of the Directive, which also was subject to a Regulatory Scrutiny Board’s opinion , provided valuable lessons for this impact assessment: Ultimately, the policy ambition is to better protect the environment. This fundamental ambition objective drives all EU legislation in the area of environmental legislation and it applies to criminal law measures as well. The concrete objectives, however, must be goals that can be achieved through criminal law and which allow to measure progress through appropriate indicators. This led us to drop the original general objective of reducing environmental crime and the specific objectives of reducing illegal trade, protecting fair competition and preventing ‘safe havens’ in the EU for criminals. Success of these objectives could not be measured against a baseline, as the amount of undetected environmental crime or illegal trade before and after the Directive is unknown. For the same reason, the extent of progress towards the former objectives of protecting fair playing businesses and preventing ‘safe havens’ was difficult to assess. Moreover, as explained in detail in the evaluation report, these objectives are influenced by many factors other than criminal law. The numbers of environmental crime and illegal trade and the prevention of ‘safe havens’ depend on the development of global trade (with steep upwards trends), on new opportunities through digitalisation and the interplay of criminal sanctioning systems with civil- and administrative sanctioning systems in the Member States. Therefore, the focus of this review will be narrowed to what could be achieved by means of criminal law in the first place. As there is consensus that environmental crime is driven by high profits combined with a low detection risk, the objectives of this review must be to foster effective investigations, prosecutions and sanctioning. Success will be measured through the numbers of environmental law cases successfully investigated and prosecuted, the numbers of convictions, and the type and levels of sanctions imposed that must become more effective, dissuasive and proportionate in practice. Developments have to be interpreted in context: today, in the Member States, there are only few environmental crime cases completed successfully and sanction levels are systematically too low. There have been no upward-trends in the past decade (see above, section 1.2 – ‘evaluation of the Directive ‘and the evaluation final report). In this situation, stable upwards trends in environmental cases in all Member States would point to the Directive’s effectiveness. As environmental crime is growing globally at percentage between 5 and 7 % globally, a matching growth rate of successful investigations and convictions would be considered a success. By contrast, if - at a later stage - environmental cases were to decrease, this might indicate that the Directive was successful in deterring criminals. The evaluation has, however, also shown that statistical data on the numbers of investigations, prosecutions, convictions, dismissed cases and sanctions imposed needed as indicators to evaluate and monitor success of EU-environmental crime policies either do not exist, or are fragmented, not collected according to uniform standards or inaccurate. Improving statistical data collection must therefore also be an objective of the Directive (see also section 8 on monitoring the success of the Directive). The table below shows existing EU objectives as defined for the current version of the Directive versus the objectives proposed for the review of the Directive: Table 2, EU objectives in the current version of the Directive versus the objectives proposed for the review of the Directive 4.14.1 General objectives The general objective of Directive is to contribute to the protection of the environment through criminal law by way of effective detection, investigation, prosecution and sanctioning of environmental crime. By this, it should ultimately contribute to the reduction of environmental crime, as effective law enforcement increases the risks of detection and punishment for criminals and reduces the chance to get away with the profits. Less environmental crime will help to preserve or restore a healthy and intact environment (see chapter 7 - impacts). Thus, the Directive will ultimately contribute to the overall goals set out in Article 191 TFEU and the Green Deal and the Biodiversity Strategy to improve the state of nature and the environment and to protect human health. The general objective is supported by a number of specific objectives that aim at more effective investigation, prosecution and sanctioning at different levels: 4.24.2 Specific objectives The following specific objectives have been identified: 1.Improve the effectiveness of investigations and prosecutions by updating the scope of the Directive and by inserting a feasible mechanism to keep the Directive up-to-date in the light of the European Green Deal. 2.Improve the effectiveness of investigations and prosecutions by clarifying or eliminating vague terms used in the definitions of environmental crime 3.Ensure effective, dissuasive and proportionate sanction types and -levels for environmental crime

4.Foster cross-border investigation and prosecution 5.Improve informed decision-making on environmental crime through improved collection and dissemination of statistical data 6.Improve the operational effectiveness of national enforcement chains to foster investigations, prosecutions, sanctioning 5What are the available policy options? In addition to the baseline of taking no further EU action on environmental crime (section 2.2), three possible main options have been considered. Two of them have been discarded (see below). 5.15.1 Options discarded at an early stage 5.1.15.1.1 Repeal the Directive This option is a "roll-back" option repealing the criminal law measures of the Environmental Crime Directive. The sanctioning of breaches of legislation designed to protect the environment would be left to EU sectoral legislation and to national law. Sectoral legislation contains mostly only generic provisions on penalties, only requiring that sanctions be effective, proportionate and dissuasive (standard penalty clause). Moreover, sectoral law leaves it to the Member States whether these penalties are criminal or administrative. Compared to only administrative sanctioning systems, complementary criminal law enforcement systems would provide for more effective tools. Firstly, criminal sanctions are more dissuasive as they include imprisonment penalties, which are not available under administrative law. With regard to legal persons, as they can better neutralise potential fines by passing on these costs to their customers and the costs of fines are often offset by the potential profits accrued through the violation, the social stigma of criminalisation is important to enhance the deterrent effect as it brings about reputational damage that companies want to avoid. Secondly, criminal law also provides for more effective investigative tools such as controlled deliveries, wiretapping, surveillance and the confiscation of proceeds of crime, all this under judicial control. As environmental offences are often committed in the context of organised crime, corruption, fraud or money laundering these tools must also be available for environmental crime as well to ensure effective investigations covering all aspects. It is the unanimous position of all Member States and stakeholders that criminal law is indispensable to protect the environment. Repealing the Directive would send the wrong signal. It would deny the seriousness of this crime form, which causes enormous harm and globally generates illegal profits of an amount that equals organised crime. It would also counteract the growing awareness and prioritisation of the need to protect the environment and undermine the effectiveness of environmental protection which that can be strengthened only through concerted action and a holistic approach that includes criminal law. Similarly, maintaining the Directive as such, i.e. without any change, would not address the shortcomings identified nor achieve any improvements at Union level, although guidance may help with its interpretation from the Union’s perspective. Neither can one put into sectoral environmental legislation the substance of the Directive as the sectoral legislation is not based on Article 83(2) TFEU and hence would not be appropriate for criminal law measures, e.g. to define the level and type of criminal sanctions. 5.1.25.1.2 Address the identified problems only through non-binding measures The second option would be to maintain the status quo or introduce only non-legislative measures such as EU guidance on interpreting definitions and sanction levels. This option corresponds largely to the baseline as detailed above under section 2.2. A number of non-binding measures have already been taken as detailed above under section 2.2. - ‘baseline’. Additional guidance on interpreting vague terms in crime definitions and on data collection could further complement such measures. However, the effectiveness of soft-law alone is uncertain and gaps in Member States’ implementation are likely to remain. Moreover, legal clarity in the field of criminal law is fundamental and especially the definitions of environmental crime cannot be left to non-binding instruments. But also in the other problem areas, the effectiveness of non-binding measures is limited, precisely because they are non-binding. For example, on the individual recommendation to Member States during the Council’s 8th Mutual Evaluations (see above under section 2.2.) so far only 13 Member States have reacted with different levels of ambition. Therefore, given the serious problems in the area, which have lasted for years, non-binding measures cannot be the appropriate response to the shortcomings of a Directive that includes mostly very generic provisions. This is also the stance of the large majority of stakeholder, which consider non-binding measure useful or very useful but only in combination with anchoring binding provisions in the Directive. All groups and especially practitioners and NGOs have urged the Commission to be ambitious and improve the Directive revising the annexes. Non-binding measures and guidance are, however, an important element for effective law enforcement. In the following, they are considered as an intrinsic part of any legislative option. 5.25.2 Relevant policy option: replacing the Directive The only realistic option is to adopt a new Directive. An overview of the sub-options and cumulative measures under each specific objective can be found in the annex 10 (option table). The intervention logic is attached as annex 9. 6Description, Assessment and comparison of the sub-options under the Option to amend the Directive Hereunder, the sub-options will be referred to as’ options’.

Approach to the structure of section 6: Under each objective, several options to achieve them have been identified. Their detailed description is provided under section 6 along with the assessment of the options. This approach provides the reader with a description of the option in close connection with the respective assessment. The options are assessed against the following criteria: ·Effectiveness: To what extent is the option likely to contribute to the objective? Are the options sufficiently clear to lead to harmonised transposition and implementation in the Member States and to comply with the principle of legal clarity? ·Coherence: To what extend the different options interact with other relevant areas and instruments of EU and international policy? ·Efficiency: What are the costs of each option and are they justified by the benefits? It should be noted, that these criteria are not equally relevant for each of the options, so that not all of them will be assessed to the same extent under each option. Approach to efficiency To assess efficiency, cost are expected in relation to: 1.Measures proposed for each objective to lead to higher effectiveness and thus more environmental crime investigations, requiring additional staff in the Member States; 2.Broadening the scope of the Directive to include new environmental crime areas under the Directive which may lead to an increase in the number of environmental crime cases, also requiring additional staff; 3.The implementation of options such as enhanced training, improved cross-border cooperation, statistical data collection, strategy development and awareness raising measures which may cause some implementation costs but the expected mid- and long-term benefits would clearly prevail. The presentation of the efficiency assessment is organised as follows: ·Transposition costs will not be presented for the individual options per objective. They are similar for all options and will therefore not play a role for the comparison of the options. Under section 6 for objectives 1, 2 and 3 efficiency is not assessed, as these objectives are considered not to incur costs further than for transposition costs. (see, however, costs of additional staff, bullet point below). ·For objectives 4, 5 and 6, direct costs related to implementation of the proposed measures are presented (i.e. those linked to cost category 3 above). ·The costs of additional staff (category 1 and 2 above) are presented under objective 6. However, these costs are to be understood as stemming from a more effective Directive based on the concerted effects of all measures taken under all objectives. Also the cost of additional staff required to handle the additional workload from the broadening of the scope of the Directive (objective 1) will be calculated under objective 6, as these costs cannot realistically be separated from costs for the additional staff needed for more cases due to improved effectiveness of the Directive. As it is not possible to attribute shared costs of additional staff needed to individual options or objectives or to specific new legislation that will be included under the Directive these costs will not play a role for the comparison of the options. ·Benefits under efficiency are understood in terms of positive environmental, social and economic impacts and are discussed in section 7, as there will be no measureable differences between the options that could influence their comparison. ·The economic impact on businesses and SME is generally addressed in section 7, and more specifically under those options that have a specific impact on businesses. A more detailed analysis of the methodology and results of the costs calculation can be found in Annex 2B for each of the options considered in the following part. 6.16.1 Objective 1: Updating the scope of the Directive; introduce a simple mechanism to keep the Directive up-to-date also in the future The options under the first objective seek to ensure that the Directive covers all relevant sectors of EU-legislation and to provide for a simple and flexible mechanism to update the Directive in the light of the European Green Deal.

6.1.16.1.1 Option 1 a): Update the existing list of legislation in the annexes, add new relevant crime categories to Article 3 Description This option would maintain the current approach of Directive to define the scope of the Directive through sectoral legislation listed in annexes. Accordingly, the annexes would need to be updated by considering changes in legislation already included therein and new sectoral legislation that came into force after the adoption of the Directive. In addition, corresponding new crime categories would have to be added to Article 3 where serious breaches of obligations deriving from new sectoral legislation do not fall under the crime categories in the current Directive. To illustrate, the EU Timber Regulation prohibiting illegal timber trade is currently not listed in the annexes. Article 3 does not contain a crime category addressing this type of crime, either. It would therefore not be sufficient to add the Timber Regulation to the annexes. A corresponding new crime definition would have to be added in Article 3. In the future, if new relevant EU sectoral legislation is adopted, it must be added to the Directive’s annexes through legislative procedure. In the same legislative procedure, a corresponding new crime category may have to be added under Article 3, if the sectoral act is not covered by one of the existing crime categories under Article 3. Introducing comitology procedure would be possible only for non-essential elements in the Directive. However, it would be essential to enlarge the scope of a criminal law legislative instrument and add new environmental offences. According to Articles 290 and 83(2) TFEU, it is for the Union legislator to take such a decision Similarly, where an amendment (or replacement) of legislation already listed in the annexes would amounts to a substantial change of obligations and related infringements , the Union legislator will have to re-assess whether an effective implementation of the “new” obligation requires that infringements are to be considered a criminal offence, i.e. it will have to adapt and/or amend the relevant references in the Annexes ( or possibly adopt a new act based on Article 83(2) TFEU. Effectiveness This option would therefore not be more effective than the current Directive with regard to future updates of the annexes and Article 3 definitions. The Commission will have to become more pro-active in proposing to co-legislators amendments to keep the Directive up-to-date through legislative procedure (the status quo) and to ensure coherence with fast evolving sectoral legislation. The Commission would need to propose with sectoral legislative proposals also changes to the Directive, which would be based on a different legal base. 6.1.26.1.2 Option 1 b) Change the approach to define ‘unlawfulness’ and define more precisely which breaches of sectoral legislation are criminally relevant. Description Under this option, a generic reference to the relevant EU and national transposing legislation would be combined with a more precise offence definition without using annexes. The conducts that constitute the criminal offences would be described in specific provisions which, to ensure legal clarity, would entail both refinement of existing offence definitions and introduction of new offences (e.g. illegal timber trade) mirroring trends in environmental crime and legislative developments The annexes would be replaced by a ‘general reference’ to relevant sectoral legislation. ). Effectiveness – Legal clarity This approach would avoid the shortcomings of using a legal technique with annexes that become more and more outdated over time and not suitable to ensure legal certainty. Experience showed that references to legislation listed in an extensive annex (even without specifying the relevant deriving obligations) cannot guarantee the legal clarity principle. It is unclear which of the obligations and prohibitions have to be enforced by criminal sanctions and which ones are sufficiently protected through administrative sanctioning systems. In line with the principles of the proportionality of sanctions and the use of criminal law as ‘ultima ratio’ not every infringement of an administrative rule can and should be considered a criminal offence. Therefore, the unspecified reference to a list of EU-sectoral legislation does not add to legal clarity. Instead, it should be defined more precisely under Article 3 which of the breaches of obligations deriving from relevant sectoral EU legislation could constitute environmental crime. An approach for defining the scope of the Directive by a refined definition of “unlawfulness” and more precise description of the offences would ensure the necessary clarity, including for the Member States when transposing the Directive and for practitioners. 6.1.36.1.3 Option 1 c): Define environmental crime in the Directive without the requirement of a breach of relevant EU sectoral legislation Description

This option would define environmental crime without the element ‘unlawful’ or ‘illegal’, thus without a reference to sectoral legislation. Instead, the damage caused to the environment or human health would be constituent for a criminal offence. Precedents at supranational level are the (repealed) 2003 Council Framework Decision that did not require unlawful behaviour in its Article 2 (a) in case of serious harm for a person or death. The Council of Europe Convention on the Protection of the Environment through Criminal Law (1998) defines environmental crime as a stand-alone offence independent of a breach of sectoral law for the most serious forms of crime. The concept of ‘ecocide’ that is currently debated can also be understood as an approach to define serious environmental crime independently from breaches of sectoral legislation. Effectiveness This option would be effective in preventing the Directive from becoming outdated, as non-compliance with sectoral legislation would not be a crime-constituting element. Proportionality However, option 1 c) would have impacts that go further than ensuring that the Directive does not become outdated in the future. It could increase the level of environmental protection, but would mean a paradigm shift in loosening the administrative dependence of environmental crime, which has been the predominant approach in the EU. Thus, additional cases would be criminalised that are currently not covered by the Directive. However, some businesses, in particular SMEs, would not have the capacity to carry out extensive risk assessments or take other mitigation measures. Economic impacts on businesses Criminalising environmental impacts independently from sectoral law could increase the business risks for enterprises and result in higher costs for due diligence and legal capacity, issues currently driven only by administrative legislation. This risk could be elevated for SMEs as described above. Businesses also claim that issues with administrative permissions being issued too easily and administrative law favouring the interest of an industry over the health of the citizens must be solved by stricter rules at the administrative level and not compensated for by criminal law at the expense of the businesses. 6.1.46.1.4 Comparison of the options/preferred option Option 1 a) is effective only in updating the Directive in the course of this review. It does not spare the EU legislator future updates of the annexes and Article 3 to include new crime legislation and corresponding crime categories. Option 1 c) would change the approach to define environmental crime by eliminating the link to sectoral legislation and thus remove the cause for the Directive becoming outdated. However, it would come at higher costs for legal businesses, although this option could probably help reduce negative social and environmental impacts (see also section 7 below). However, this option could only be justifiable and proportionate; in cases where very serious harm was caused that goes beyond what could be justifiable by permits or other administrative authorisations. It could therefore not replace, but only complement offences linked to breaches of sectoral legislation. Thus, it cannot be generally effective in preventing the Directive from becoming outdated. Option 1 b) would remove the annexes and thus the need to update them. Legal clarity would be ensured by adding more precision to the crime definitions under the Directive, in particular with regard to the element ‘unlawful’ that must describe in more detail which types of obligations in sectoral are essential to be enforced by criminal law (see below under objective 2). Also Option 1 b) does not provide for a simple mechanism to apply if new crime categories under Article 3 should be added, e.g. following the adoption of new sectoral legislation The definition of new environmental crime categories must be done, as under the current Directive, by the European legislator. Conclusion Option 1 b) is the preferred option. 6.26.2 Objective 2: Clearer definitions of environmental crime The definitions of environmental crime categories under Article 3 use terms such as ‘substantial damage’, or ‘negligible or non-negligible quantity’ that make the existence of environmental crime dependent of the severity of the damage caused. As there is no common understanding how to delineate e.g. substantial damage from non-substantial damage, these terms leave much room for different interpretations (see above section 2.1.2) Less ambiguous crime definitions would also have positive impact on other specific objectives. They would facilitate cross-border cooperation (objective 4), but also cooperation between different authorities along the law enforcement chain within a Member State (objective 6). A similar understanding of the scope of an environmental crime definition would also foster the collection of comparable statistical data in the Member States and thus contribute to objective 5. The options assessed below are mutually exclusive, insofar as only one option can apply per crime category under Article 3. However, as Article 3 comprises several crime categories, the options can exist in parallel as different approaches to define environmental crime might be chosen for different crime categories. 6.2.16.2.1 Option 2 a): Define unclear terms more precisely in the Directive

Description The option to define environmental crime more clearly in the Directive would foster a common understanding of how to determine the amount of damage that constitutes environmental crime. It would be necessary to explain in more detail the meaning of vague terms such as ‘substantial damage’, and ‘non-negligible quantities’. Under this option, the Directive could include general criteria to better determine notions, such as ‘substantial damage’, ‘negligible quantity’ or ‘non-negligible quantity’. The following criteria are an indication of what would be relevant: ·baseline condition of the affected environment; ·severity and spread of the damage; ·amount of material losses (in terms of tax losses, or legal profits, or restoration costs) ·non-material value of natural objects, rareness of the natural objects impacted or destroyed, ·degree and duration of the negative impact on the environment, ·reversibility of the damage and costs of restoration; ·extent to which relevant regulatory thresholds are exceeded; ·conservation status of species concerned. In addition, under this option, it should be carefully considered whether all terms used in the crime definitions of Article 3 must be defined or whether some of them could be eliminated. Effectiveness This option would improve the clarity of the Directive. However, it is not possible – nor would it be desirable – to come up with too detailed definitions that would produce unambiguous results in any given set of circumstances. Such definitions would lack flexibility and thus be prone to creating loopholes. For example: defining a precise threshold for financial losses (in terms of lost taxes, legal profits, or costs to restore the financial damage) that would constitute ‘substantial damage’ would not take into account the economic situation in the Member States and would not adapt to fluctuations of currencies over time. Eventually, in practice it is not always possible to attribute a value to the environmental harm or loss. 6.2.26.2.2 Option 2 b): Eliminate undefined terms, including by criminalising risky behaviour (endangerment crime) Description Environmental criminal offences could be defined without the constituent element of a damage or the risk of such damage. This approach would be relevant in cases where an activity is considered per se as dangerous and harmful so that it would be justified to criminalised it as a risky behaviour. The offence description would then be based on relevant prohibitions, binding requirements and other obligations defined in sectoral law. For example, sending big ships for recycling in unauthorized facilities (or the illegal recycling activity) could be seen as such a generally prohibited dangerous and risky activity which could be criminalized without a requirement of causing damage or likelihood of causing damage. Effectiveness Article 3 c), f), g) and i) of the current Directive already include variations of endangerment crimes that address certain actions considered per se risky for the environment. It could not be observed that these crime forms are successfully investigated more often than other crime forms. It must, however, be noted that changes of just one element - such as the definition of environmental crime – are not expected to measurably translate into higher numbers of prosecutions and convictions. As could be demonstrated in the evaluation, the effectiveness of environmental crime investigations depends on many factors (reflected by the six objectives in this review) and a multipolar approach is needed to improve the situation. This option would also alleviate the burden of proof. In practice, it has always been difficult to establish whether a substantial damage has occurred and whether the offender acted with the intention to cause serious damage. Moreover, proving the causal link between action and damage is often problematic in practice, for example if a company releases dangerous substances into a nearby river already polluted or where the damage becomes manifest only over time. In practice, these obstacles have led to environmental crime not being investigated. Under this option is would also be possible to prosecute cases of pollution that do not have an immediate effect but which might lead to damage in the long term. Endangerment crimes are therefore the preferred option of practitioners. Especially, Europol advocates for this option.

However, this approach has its limits, because defining all environmental crime as endangerment crime would not fit all situations and objectives, this approach would therefore not be suitable for all possible scenarios and crime categories under Article 3 of the Directive. Economic impacts on businesses Businesses have reservations on the definition of endangerment crimes that criminalize violations of administrative provisions or the breach of conditions of an authorization. They claim that overstepping rules can happen accidentally and without the purpose of gaining illegal profits at the expense of the environment. It would mean a disproportionate burden for otherwise legally operating businesses – especially for SMEs – as being the subject of criminal proceedings. This would be the case already today, as e.g. in the field of illegal shipment of waste mistakes in accompanying documents and certificates are criminalized. Businesses suggest that only those companies disrespecting administrative rules systematically, repeatedly and with the intention to gain illegal profits, should be held criminally liable. For other companies, administrative sanctions would be sufficient. 6.2.36.2.3 Option 2 c): a combination of option 2a) and 2b) This option is a combination of option 2 a) (clarification of undefined notions in the Directive) and 2 b) (eliminating or reducing the use of undefined terms) for the various crime categories under Article 3. Option 2a) appears to be indispensable for cases in which great harm is produced that can be proven in environmental crime proceedings. Endangerment crimes would catch cases where the legislator has decided that the infringement of sectoral rules would put the environmental at an intolerable risk even without damage or likelihood of damage occurring from each individual infringement. Both types of description of criminal offences are used in the current Directive, and thus option 2c would maintain the current architecture. It would have to be carefully analysed which approach should be used for any new criminal offences to be possibly introduced in a revised Directive. 6.2.46.2.4 Stakeholder opinions Overall, the vast majority of stakeholders supported clarifying undefined terms in the Directive itself. At the same time, a large majority also favoured providing (complementary) non-binding guidance. A significant number of the industry stakeholders (about one-third) considered the option of providing non-binding guidance not useful. Most Member States endo