EUROPEAN COMMISSION Brussels, 15.12.2021 COM(2021) 814 final COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on stepping up the fight against environmental crime



1.INTRODUCTION The success of the European Green Deal hinges to a large extent on rules aimed at curbing pollution, managing waste and safeguarding biodiversity. Environmental crime seriously undermines these aims and efforts must be stepped up to combat it. Environmental crime is a growing concern causing significant damage to the environment and to human health within and beyond the EU and to the economy. According to Interpol and the United Nations Environment Programme, environmental crime is the fourth largest criminal activity in the world after drugs trafficking, human trafficking, and counterfeiting, growing at a rate between 5%-7% per year . According to Eurojust, illegal trafficking in waste and in wildlife species, pollution crimes, and illegal trading in hazardous substances belong to the most serious environmental crimes . Recent studies estimate that the annual revenues derived only from the illicit waste market in the EU range between EUR 4 billion and EUR 15 billion. Transgressions to be addressed by criminal law include: serious illegal pollution of air, water and soil; mismanagement of waste; illegal trade in wildlife; illegal extraction of minerals; illegal persecution of wild animals and birds; and land-clearance in wildlife sites. All these reduce the quality of air and water, contaminate land, harm wild species and damage or destroy precious natural habitats. Individuals and society as a whole suffer the effects of environmental degradation, including damage to health. The circular economy is adversely affected, fair competition is undermined and government revenues are reduced. The victims are future generations as well as current ones. Despite the harm transgressors cause, their risk of detection is often low and the risks of prosecution and sanctioning are even lower, while they gain financially from the avoidance of environmental safeguards. This situation helps explain the involvement of organised crime. In May 2017, as part of the rolling EU policy cycle to tackle serious and organised crime, the Council included fighting environmental crime as one of the crime-combating priorities for 2018-2021. In 2021, this priority was renewed for 2022-2025 . Combating environmental crime is an aspect of what the United Nations terms the ‘environmental rule of law’ . This describes a situation in which laws are widely understood, respected and enforced and the benefits of environmental protection are enjoyed by people and the planet. Since the adoption in 2008 of the Environmental Crime Directive , a deeper understanding has emerged of the challenges and best means of combating environmental crime. In 2019, following a round of mutual evaluations of the practical implementation and operation of European policies on preventing and combating environmental crime, the Council produced a report with a series of recommendations, covering (among other matters) the adoption of national strategies, inter-agency cooperation and coordination, training and statistics . To tackle environmental crime effectively, the legal framework needs to respond to the current challenges and provide a solid legal basis for addressing them. There will be no lasting improvement in tackling transgressions if the state does not put the fight against environmental crime high on the enforcement agenda, both nationally and cross-border across the EU. Where there is a low likelihood of facing criminal sanctions, transgressors will not be deterred from environmental crime, even if the legislative framework is improved. It is against this background that the Commission is inviting both the EU co-legislators and Member States to give priority to measures aimed at reinforcing the fight against environmental crime. 2. STRENGTHENING THE EU LEGAL FRAMEWORK The adoption of the Environmental Crime Directive in 2008 was an important step in recognising the role of criminal law in protecting the environment effectively. That Directive has ensured that a set of commonly agreed serious environmental offences are considered as crimes in all EU Member States. However, the 2020 Commission evaluation shows that the current Environmental Crime Directive has significant limitations and shortcomings. The Directive has not been updated in line with the development of EU environmental law and does not respond to current challenges. For example, it does not cover categories of offences such as illegal timber trade or illegal ship recycling. In terms of its practical effects, the Directive requires, in a rather general manner, national legislation to include provisions on criminal sanctions; it does not cover the levels and types of sanctions, nor issues related to the detection or prosecution of environmental crime. Moreover, there is a need to improve clarity concerning definitions of environmental offences and key concepts used in the Directive, such as ‘substantial damage’. The evaluation also demonstrates that sanction levels differ greatly among Member States and their application in practice appears not to be dissuasive. There has been no clear improvement of cross-border cooperation since the Directive came into force. Advice from practitioners working on the ground suggests that, for the fight against environmental crime to be effective, it is necessary to: ·treat environmental offences as part of a wider phenomenon of environmental infringements and use both administrative and criminal law; ·ensure prevention and detection of environmental crimes as well as punishment and remediation of damage; ·engage multiple skill sets, disciplines and specialisations; ·ensure a high level of coordination and cooperation between practitioners; ·ensure collection and effective use of data; and ·allocate sufficient human and financial resources. To address the current shortcomings of the Directive, take account of new developments and trends in environmental crime, and support key demands from practitioners, the Commission proposes that the new Environmental Crime Directive: ·Update and refine the list of criminal offences. The list of criminal offences covered by the current Directive will be updated and new offences will be added to reflect the current state of EU environmental law and better address the most harmful unlawful activities. The revision will increase legal certainty by providing specific and clear descriptions of criminal offences. The criminal offences covered by the proposal represent serious breaches of obligations in sectorial legislation as it stands on the date of this proposal . The Commission continues to deliver legislative proposals under the European Green Deal. Examples include proposals on minimising the risk of deforestation and forest degradation associated with products placed on the EU market, and an upcoming proposal on nature restoration law. The Commission invites the co-legislators to consider further extending the scope of the Environmental Crime Directive in line with such impending new legislation. This should ensure that the most serious offences covered by the new legislation are also reflected in an evolving Environmental Crime Directive. New categories of offences proposed in the new Environmental Crime Directive include: ·illegal timber trade; ·illegal ship recycling; ·illegal water abstraction causing substantial damage to water resources; ·serious breaches of EU chemicals legislation causing substantial damage to the environment or human health; ·placement on the market of products which, in breach of mandatory requirements, cause substantial damage to the environment or people’s health because of the product’s use on a larger scale; ·source discharge of polluting substances from ships; ·serious breaches of legislation on invasive alien species with Union concern; ·serious circumvention of requirements to get a development consent and to do environmental impact assessment causing substantial damage; ·serious breaches related to dealing with fluorinated greenhouse gases.

·Strengthen the provisions on criminal sanctions. The proposed provisions on the approximation of types and levels of sanctions will enhance their deterrent effect and help ensure more consistent application across the EU, providing a level playing field for businesses. Ancillary sanctions and measures are proposed to ensure that national judges and prosecutors have a toolbox allowing sanctions to be imposed in a tailored manner. Provisions on aggravating circumstances will ensure more effective sanctioning, including by taking account of links with organised crime, the compliance history of perpetrators, and obstruction of inspection and enforcement activities. ·Recognise and strengthen the enforcement chain. Effective criminal-law enforcement depends on the capacities, skills and performance of each link in a chain that connects the roles of environmental inspectorates, police and other law enforcement agencies, prosecution services and the judiciary. The proposal envisages the adoption of national strategies with the shared priority of mobilising efforts to combat environmental crime in the most effective way. To strengthen the enforcement chain, the proposal aims at ensuring the availability of appropriate specialist training, effective investigation tools, and mechanisms for cooperation among enforcers in a Member State. These measures would allow more effective and comparable efforts to tackle environmental crime across the EU. The proposal also recognises the role of European networks of enforcers. ·Recognise and strengthen the role of citizens and civil society. Effectively combating environmental crime also requires the mobilisation of citizens and civil society as well as ensuring public confidence in the national enforcement systems. Those who blow the whistle and report environmental criminal offences as well as those who cooperate in criminal proceedings should be protected and supported. The public concerned should be able to take part in criminal proceedings, on the basis of national procedural rules, for example as a civil party. Environmental crime is a complex phenomenon and effectively addressing it requires a holistic strategic approach at different levels. It is therefore particularly important to ensure the effective implementation of environmental criminal law in Member States. 3.ENSURING THE EFFECTIVE IMPLEMENTATION OF ENVIRONMENTAL CRIMINAL LAW IN THE MEMBER STATES Having a strong and clear criminal-law legislative framework is necessary but not sufficient for success. Effective systems of law enforcement are also needed. The proposal sets out minimum standards for criminal enforcement concerning environmental offences, such as investigation tools, resources and cooperation. The Commission can also contribute to this goal in several other ways. Coherence with wider environmental compliance assurance programmes and provisions on sanctions in EU environmental legislation The use of criminal law relates ultimately to a broader objective: ensuring general compliance with EU environmental laws. In 2018, the Commission presented this objective in terms of ‘environmental compliance assurance’ . This means the combination of measures that competent authorities use to secure compliance. It includes promotion of compliance, prevention of infringements, verification of compliance, discovery of infringements and the use of administrative as well as criminal-law enforcement measures. As noted, practitioners stress the importance of the use of criminal-law measures that are coherent with wider compliance assurance and links to administrative enforcement. All infringements of EU law require sanctions , not just infringements justifying criminal-law sanctions – which is why Commission legislative proposals include provisions on sanctions. Determining what kind of sanctions are appropriate in specific circumstances requires the capacity to make case-by-case choices. Sometimes the decision will be to prosecute an environmental crime; sometimes it will be to use administrative sanctions. It may be necessary to apply both administrative-law and criminal-law measures – as in situations where an activity constituting criminal misconduct also gives rise to a liability to remedy environmental damage, as long as these measures do not amount to a double penalty. The Commission will contribute to ensuring coherence through: ·a more detailed focus on provisions on sanctions in sectorial EU legislation, both at the time they are formulated and in their transposition into national law. Among other things, the Commission will assess whether, in addition to such provisions on sanctions, amendments to existing and future new environmental law provisions need to be accompanied by adjustments to the offences set out in the Environmental Crime Directive to ensure effective implementation and enforcement; ·an increased level of cooperation with Member States and law enforcement professionals in the area of environmental compliance and governance, notably through the Environmental Compliance and Governance Forum . This cooperation framework will enable it to address cross-cutting issues in the use of criminal law and administrative law in enforcement . Supporting the enforcement chain Weak links in the enforcement chain render entire systems ineffective. Poor detection means crimes going undiscovered; over-stretched or ill-trained prosecution services mean detected crimes not being prosecuted at all or being poorly addressed at trial; and court systems lacking capacity or understanding of the dynamics of environmental crime mean trial delays and unsatisfactory outcomes. At EU level, European Anti-Fraud Office (OLAF) (concerning administrative enforcement), Europol and Eurojust represent forms of coordination and support for the enforcement chain. Voluntary European networks of environment agencies, inspectors, police, prosecutors and judges also support the chain by facilitating the sharing of knowledge and experience among enforcement and justice professionals. Apart from the proposed new provisions, the Commission will seek to support the enforcement chain by: ·encouraging voluntary professional networks to use the Environmental Compliance and Governance Forum to share insights on the operation of the chain as criminal-law enforcement evolves and, where appropriate, seek closer ties with EU agencies such as Eurojust; ·helping to develop tools and approaches that make the fight against environmental crime effective, for example supporting the use of geo-spatial and artificial intelligence to collect and collate evidence of crimes such as illegal waste disposal and destruction of protected habitats ; ·encouraging use of the LIFE Regulation to develop more effective ways of combating environmental crime and to support the operation of several key networks ;

·considering whether future legislative proposals should include provisions on compliance verification and detection of infringements to reinforce provisions on sanctions and strengthen overall compliance assurance; ·improving the coverage of environmental criminal law in the rolling training programme for cooperation with national judges and prosecutors, within the EU and beyond; ·promoting and contributing to the European Multidisciplinary Platform Against Criminal Threats (EMPACT) as a security initiative driven by Member States to identify, prioritise and address threats posed by organised and serious international crime, including environmental crime as a key priority for 2022-2025 and concrete operational actions. Also, the Commission will consider the possible extension of OLAF’s mandate in sectorial legislation to conduct administrative investigations of environmental offences. It is vital that Member States also contribute to supporting the enforcement chain at EU level, notably by enabling and encouraging participation of their professionals in the European voluntary networks. Without this, it will be more difficult to ensure a cohesive and even approach to fighting environmental crime across the EU. Capitalising on the knowledge of enforcement professionals Combating environmental crime is complex in terms of the required knowledge of law, procedures and human interactions with the environment. Relevant knowledge is held by individual practitioners as well as by law enforcement and justice agencies and institutions. The European Judicial Training Network (EJTN) delivers high-quality training and distributes essential knowledge to judicial practitioners in this area. The Council’s completion of the eight rounds of mutual evaluations is an example of capitalising on such knowledge. So is the approval by the Environmental Compliance and Governance Forum in 2021 of guidance on combating environmental crimes and related infringements . The latter was the result of extensive collaboration between the Commission, Member States and professional networks. Other examples include work done by professional networks on subjects such as risk-based inspections as well as good practices and gravity factors in prosecutions and sentencing . The evolution of criminal-law provisions and practices will create opportunities to further capitalise on such professional knowledge. The Commission will seek to play its part by: ·actively disseminating and promoting work already done in collaboration with practitioners, including via the EJTN; ·encouraging practitioners’ networks to identify areas of concern and practical advice on how to address these. Supporting environmental defenders, whistleblowers and victims The burden of combating environmental crime falls to public authorities, but the role of environmental defenders and whistleblowers also deserves recognition, as does the position of victims. The fight against wildlife crime benefits considerably from the work of specialist non-governmental organisations (NGOs), who uncover criminality, gather evidence of it and highlight its effects. More generally, civil society, including a range of NGOs, plays a vital role in alerting authorities to problems such as illegal waste disposal. Whistleblowers can play a key role in uncovering corporate criminal conduct. The first-ever EU strategy on victims' rights (2020-2025) covers environmental crime victims among other things, noting that victims of environmental crime may be particularly susceptible to secondary victimisation, intimidation and retaliation, notably if environmental crime is a form of organised crime. The Commission will further seek to support environmental defenders, whistleblowers and victims through: ·encouraging use of the LIFE Regulation for projects involving the participation of environmental defenders in the combating of environmental crime; ·encouraging Member States to have effective complaint-handling systems that enable civil society to safely inform the competent authorities about environmental crimes ; ·as announced in the Commission Work Programme 2021, a proposal for legislation against abusive litigation targeting journalists and rights defenders will be adopted, including environmental defenders. Enhancing corporate responsibility Addressing environmental offences and damage done by them raises a wide set of issues, including liability for environmental damage and corporate responsibility in a context where markets involve supply chains that are vulnerable to criminal and other misconduct .

The Commission acknowledges that the fight against environmental crime will be more effective if it is part of a wider effort to enhance corporate responsibility and ensure adherence to the “polluter pays” principle. In parallel to work on environmental crime, the Commission will: ·carry out the second evaluation of the Environmental Liability Directive 2004/35/EC which will examine how to improve the application of the polluter pays principle to environmental damage. While both directives (the Environmental Crime Directive and the Environmental Liability Directive), aim at strengthening the protection of the environment, the Environmental Crime Directive concerns addressing individual breaches of environmental law and the Environmental Liability Directive concerns remedial measures to be taken in order to restore environmental damage; ·as announced in the Commission Work Programme 2021, put forward a proposal for legislation on sustainable corporate governance to foster long-term sustainable and responsible corporate behaviour. 4.LOOKING OUTWARD: INTERNATIONAL DIMENSION

The fight against environmental crime has also an international dimension. Wildlife trafficking may originate in countries outside the EU, and both waste and wildlife trafficking generate serious adverse effects, including outside of the EU’s borders. The global nature of supply chains means that the EU may find itself importing goods and services which involve serious environmental abuses. The global character of the climate and biodiversity crises means that the EU itself will be adversely affected by environmental crime taking place elsewhere on the planet, especially where it is vast in scale and puts the global commons in danger. Internationally, growing attention is being given to addressing the problems of environmental crime and there is an increasing understanding that lasting change can be achieved by acting together. Hence, it is important to continue fostering international cooperation in this area. There is also growing attention to abuses that occur on a large scale and with severe or long-term damage to the environment (also called ‘ecocide’) and the new Environmental Crime Directive contributes to addressing that by strengthening the fight against environmental crimes. Environmental crime may contribute to fuelling conflict and instability, as it is often associated with the funding of armed groups and civil conflicts as well as environmental degradation. Indeed, the value of environmental crime makes it the fourth largest form of crime in the world, as explained in the introduction. Wildlife trafficking, illegal logging and related illegal trade in timber, as well as illegal waste trafficking have become a serious threat to the security, political stability, economy, natural resources and cultural heritage of many countries and regions. In addition to the environmental impacts, there is growing evidence that the corruption that derives from it and enables it to flourish feeds a spiral that undermines the rule of law, fosters other criminal activities and fuels insecurity. At the same time, the destruction and degradation of the environment, either by being used as weapon of war or damaged from attacks and conflict-sustaining activities, ultimately hinders the recovery of conflict-affected populations who depend on natural resources for their livelihoods and well-being. It is important to advocate globally for the protection of the natural environment in armed conflict in line with international humanitarian law. To help tackle environmental crime at global level, the EU has been a major supporter of the International Consortium on Combating Wildlife Crime (ICCWC), a partnership involving the Convention on International Trade in Endangered Species of Wild Fauna and Flora secretariat, the International Criminal Police Organization (INTERPOL), UN Office on Drugs and Crime, the World Bank and the World Customs Organization. The Consortium works to bring coordinated support to national wildlife law enforcement agencies and related sub-regional and regional networks. The Union should also increase its support to training law enforcement staff and members of the judiciary in the countries involved in environmental crime at global level. Common Security and Defence Policy activities can also contribute to these efforts. It is equally important for the EU to address issues linked to environmental crime in its bilateral relations with partner countries. Stepping up the fight against environmental crime is and should be increasingly part of the EU’s political and policy dialogues and an area of bilateral and regional cooperation. Tackling environmental crimes in the EU has broad global relevance, being necessary among other things for the delivery of the Sustainable Development Goals. Strengthening it within the EU will help the EU lead by example and be an effective global partner. The Commission and the High Representative will: ·promote the fight against environmental crime at international level, including by working with UNEP and in the context of multilateral environmental agreements; ·revise the EU action plan against wildlife trafficking in the light of experience with its implementation so far; ·continue to engage in global multilateral fora and with relevant international and regional organisations (such as UNEP, Interpol, UNODC) to increase international cooperation against wildlife trafficking and forest crime and harness the transnational dimension of the problem; build on the cooperation with the ICCWC with the aim of strengthening police, judicial systems and border controls of countries prone to illegal wildlife and forest trade; ·enhance effort to include in political dialogues with partner countries, as appropriate, issues linked to tackling environmental crime, particularly with those where environmental crimes are most serious or recurrent; ·continue to enhance cooperation with partner countries to reduce wildlife (including poaching) and forest crime for example through building the capacity of, and exploring the relevant stakeholders working along the value/supply chain, from retailers to international traders and consumers while looking at the root causes of environmental crimes; ·continue EU support to partner countries in implementing related Multilateral Environment Agreements concerning waste and pollution-related issues, upgrading regulations and strengthening capacities to enforce them; ·closely follow international developments concerning the definition of and possible responses to ecocide; ·develop options for setting up training programmes in the EU’s neighbourhood and partner countries on the prevention and fight against environmental crime, both for law enforcement and judicial practitioners. Common Security and Defence Policy activities could contribute to these efforts; ·continue its direct support to human rights defenders at risk worldwide, including environmental rights defenders, through the ‘EU Human Rights Defenders Mechanism’;