I.Introduction

Directive 2008/99/EC on the protection of the environment through criminal law is the EU’s main instrument in the field of criminal law on the environment. It requires the criminalisation of unlawful conduct that causes or is likely to cause damage to the environment or to flora and fauna, or the death or serious injury of individuals. Conduct is defined as ‘unlawful’ when it infringes obligations set out in the 72 pieces of EU legislation listed in the two annexes to the Directive or in any act of the Member States giving effect to such legislation.

The evaluation found that the Directive has not fully met its objectives and that – despite some progress – significant divergence remains between Member States.

II.Methodology and challenges

The lack of consistent and/or reliable statistical data on environmental crime (detection, investigations, prosecutions, convictions, levels of sanctions imposed, cases dismissed, and environmental crimes dealt with by administrative sanctioning systems) was one of the major challenges. This made it impossible to establish a full picture, based on statistical data, of trends in the practical implementation of the Directive in individual Member States. Instead, the evaluation relied on the screening, assessment and triangulation of existing studies, reports, articles and other documents in the area, the results of a public and a targeted consultation, and interviews with stakeholders to fill in the gaps.

It must be noted, that numerous external factors and neighbouring policies play a role in any strategy to reduce crime. Success cannot be reached through criminal law instruments alone. Therefore, criminal law measures must be viewed as one component of concerted action bringing together a series of measures and instruments designed to reinforce each other. Moreover, the way in which the Directive is implemented, on which the Directive itself has no influence, plays a major role in determining its effectiveness.

III. Effectiveness

Level playing field - Creating an EU framework for tackling environmental crime

There is evidence of some progress towards this objective of the Directive. The Directive provided a set of common definition of what can constitute environmental crime which facilitates cross-border cooperation. However, the Directive’s definitions contain a number of legal terms (such as ‘negligible quantity’ and ‘significant damage/deterioration’) that have led to different interpretations in the Member States, which could hamper cross-border cooperation.

The Directive has ensured that legal persons can be held liable for breaches of environmental law in the Member States. However, the decision as to whether liability should be criminal or non-criminal has been left to individual Member States’ discretion. Non-criminalisation in some Member States with regard to offences committed by legal persons could impede cross-border cooperation.

Level playing field – deterrent sanctions

The fact that the Directive requires effective, proportionate and deterrent sanctions has resulted in progress towards a level playing field by ensuring the existence of sanctions for the crimes concerned in all Member States. A number of Member States have raised their maximum sanction levels. Despite this progress, there is a significant degree of variation in the levels of sanctions provided for in national legislation. Some EU Member States still have particularly low levels of maximum sanctions in their national laws.

Independently of the Directive, the legal systems of most Member States provide for additional types of sanctions such accessory sanctions, administrative and civil sanctions. However, this set of available sanctions and its application varies across Member States. The availability of a broad range of sanction types and their application and combination in individual cases contributes to the overall deterrent effect of an environmental enforcement regime and may help develop a level playing field in a way that takes account of different national legal traditions.

Reduction of illegal trade

With regard to the Directive’s impact on illegal trade, stakeholders recognise the importance of the Directive in tackling illegal trade. However, there is insufficient data to establish whether trends in this area are positive. There are individual successful cases in this area, where the Directive – especially the common definition of environmental crime – might have facilitated the coordination of Member States action.

Judicial cooperation

Although there is no statistical evidence of any significant increase in cross-border cooperation, cross-border platforms and initiatives (at both EU and Member State level) to encourage cooperation among Member States have emerged since the Directive was adopted. These initiatives and the Directive reinforce each other.

Practical enforcement