üA reference to the ne bis in idem principle could be included directly in the Directive and thus exclude dual sanctions under certain circumstances, in accordance with CJEU case-law.

Guidance could describe synergies and complementarity of administrative and criminal sanctions, and provide criteria for deciding when conduct is criminal in nature and should be prosecuted. It could also address ne bis in idem issues. Such guidance could draw on ECJ case-law and guidance or details in legislation at national level.

üMember States could be encouraged to clarify the relationship between administrative and criminal sanction systems. The EU could assist Member States facilitating the collection of best practices, leaving discretion to the Member States to accommodate national legal structures and traditions.

Many Member States rely on administrative sanctions in addition to criminal sanctions to address environmental offences, but this is often done without clear criteria on choosing one of the two systems. This results in overlapping regimes, unclear competences, and a risk of violating the ne bis in idem (double jeopardy) principle prohibiting an offender from being penalised twice for the same offence or a risk of ineffective proceedings due to a lack of coordination and clarity on the use of different types of sanctions.

10. The relationship between criminal and administrative sanctions could be clarified

Public awareness has an impact on the prioritisation of environmental issues and the allocation of necessary resources at national level. This is particularly important where the lack of prioritisation of environmental crime has restricted its effective enforcement in some Member States.

The specialisation of practitioners could be encouraged and facilitated. This could be done, inter alia, by providing training on the specificities of environmental crime at EU level, encouraging or requiring Member States to provide training at national level, or by supporting the practitioner networks to provide training to their members.

The investigation, prosecution and sanctioning of environmental crime requires expertise in both environmental issues and criminal justice.

üThe role of the networks at EU level in improving cooperation across different practitioner groups through memoranda of understanding, joint conferences and training should also be supported. Practitioner networks could be encouraged to consider collaboration with practitioners in the field of financial crime.

üThe Commission could encourage Member States to improve cooperation between the different national authorities involved in enforcement. Cooperation between judicial, environmental and other relevant authorities (such as customs authorities and police) is essential to address environmental crime. This cooperation should also extend to competent authorities working in the area of money laundering, fraud and organised crime. This would ensure that investigations benefit from expertise in environmental law, criminal justice and finance. This is particularly important where profit is often the sole motivation for committing an environmental offence.

The challenge faced by the relevant environmental, judicial and other control and enforcement authorities to successfully work together has had an impact on the achievement of the objectives of the Directive. Cooperation with authorities working in other areas such as financial investigations and money laundering could also help the environmental and judicial authorities within the Member States to effectively address financial elements of environmental crime.

Practical implementation (‘Input’, see Section 2.3. – ‘Intervention Logic’) is essential for the Directive to be effective. Numerous studies (see Section 5.1.4. – ‘Practical Implementation’) have identified much room for improvement at all levels of the enforcement chain in the Member States. Based on these findings, the lessons learned and possible actions are set out below under point 7 to 11:

üFinally, the work of the practitioner networks in providing informal contact points in Member States for immediate cooperation could be further supported.

üA cross-reference to the Anti-money-laundering Directive could be inserted into the Directive, to make available financial investigation tools for combating environmental crime in the whole EU.

üCross-border cooperation can also be facilitated by an approximation of investigative tools available for environmental crime.

üSpecific provisions on cooperation could be added to the Directive, requiring competent authorities to cooperate with each other on environmental crimes with a cross-border dimension. The degree of prescription of such provisions should be considered. They could include requirements on sharing information, collaborating on the investigation of environmental crime or cooperation in relation to which Member State should prosecute. This provision could include a specific reference to the role of Eurojust and OLAF. OLAF already works with national authorities in EU and non-EU countries on mutual administrative assistance cases of illicit imports/exports, and prevents illicit products from entering the single market. In the same way, OLAF contributes to the enforcement of the Timber Regulation and the CITES Regulations and has conducted coordination cases that have prevented illicit trade of protected species into the EU.

üTraining or guidance on the role of Eurojust, Europol and OLAF in coordinating Member State enforcement actions on environmental crime could be provided by the Commission, Eurojust, OLAF or Europol itself, EU-level training bodies such as Cepol, EJTN, EU-level networks, or national training bodies or networks.

Cross-border cooperation seems to have increased since the adoption of the Directive, it is difficult to see this as a direct effect of the Directive but it has in any event provided for a common legal framework regarding environmental crime and has created new political impetus. In addition to formal cross-border cooperation through European arrest warrants and joint investigation teams, and the actions taken under the EU policy cycle, practitioner networks such as IMPEL, ENPE, EnviCrimeNet and EUFJE have developed and are active in the area of combating environmental crime. These networks have, to some extent, increased the degree of specialisation of practitioners in environmental crime. These networks also complement the more formal mechanisms of Eurojust and Europol by providing immediate contact points within Member States, thus facilitating informal cross-border cooperation. There is, however, still room for improvement.

üAssess possibilities to refine and improve the legal technique used for defining the scope of the Directive

The Directive’s approach to make criminalisation dependent on breaches of the underlying EU legislation listed in its annexes leads to a number of practical problems and inconsistencies. New relevant legislation is not automatically covered, not all infringements of environmental Union law is criminalised, and conduct that has caused substantial environmental harm is not covered if the conduct has not breached EU legislation listed in the annexes.

5. The legal technique used for defining the scope of the Directive

üWith regard to confiscation and freezing measures, the inclusion of a provision cross-referencing the Confiscation Directive could be considered. This would reinforce the importance of confiscation and freezing measures within the context of environmental crime.

üMember States could be encouraged to take account of synergies and complementarity with administrative sanctions other than fines within their own national legal frameworks and traditions.

·naming and shaming also of those natural or legal persons who were in conscious cooperation with the infringing natural or legal person, e.g. by administering profits gained by crime.

·publication of court judgements or summaries of them or of administrative decisions concerning infringements;

·temporary or permanent closure of a certain facility or of activities in total;

·confiscation of profits, rights and items obtained directly or indirectly on the basis of the infringement;

·ban from certain (internet) trading platforms (ideally accompanied by the empowerment to request the trading platforms to eliminate the offender);

üAccessory sanctions required by the Directive could improve the level playing field in relation to the types of sanction available to the judiciary in EU countries. Such provisions could be prescriptive or optional. They could be extended to legal persons responsible for infringements committed by the offenders, e.g. to mother companies using the infringing company as a shield, and to “partners in crime”. They could also be extended to mother, daughter or sister companies indirectly taking profit from the infringement. Among others, the following accessory sanctions and measures could be considered:

Most Member States have some complementary sanctions and measures, either accessory sanctions within their criminal law or administrative sanctions and measures other than fines. These sanctions have the potential to improve the deterrent effect of traditional criminal sanctions i.e. fines or imprisonment. The sanctions available, and their use, are not consistent across the Member States.

The development of EU guidance on the level of criminal sanctions imposed in the Member States could be considered based on existing guidance and practice in the Member States. Such guidance could give examples and best practices for criteria ensuring the effectiveness, proportionality and dissuasiveness of sanctions.

A requirement to take account of aggravating and/or mitigating circumstances, also providing options for Member States, could also be considered. Aggravating circumstances could for example address the role of organised crime.

üThe criteria to be taken into account for the level of sanctions imposed could be harmonised. These could include a provision linking the amount of the fine to the profit made or losses avoided as a result of the offence and/or the extent of environmental damage or cost of remediation. Given that environmental crime is often committed by legal persons, the level of fines could be linked to the annual turnover or take the financial situation of the legal persons into account.

üMinimum maximum sanctions could be set out in the Directive.

There are still significant differences as to the level of sanctions for the same environmental offence in different Member States and, in some instances, sanctions appear very low. Although penalties and sanctions have to be considered in the context of other available sanctioning types and systems (accessory sanctions, administrative sanctions, and civil sanctions), penalties and sanctions according the Directive must offer sufficient scope to judges and other decision-makers if they are to play their role in the overall approach.

üFinally, Member States could also be encouraged to share their environmental prosecutions and judgments in databases. By providing examples and insights into the interpretation of undefined terms in the different Member States, such databases can become a useful tool for practitioners such as judges, prosecutors and police officers.

üThe Commission could provide guidance on the interpretation. This guidance could draw on relevant case law, best-practices and support tools existing in the Member States, work of environmental compliance assurance networks, and academic literature.

üMore explicit definitions could be inserted in the Directive’s recitals or provisions.

Although the Directive was successful in creating an EU-wide common set of definitions of environmental crimes, these definitions include a number of legal terms such as ‘substantial damage’, ‘non-negligible quantity’, ‘negligible quantity’ and ‘negligible impact’, ‘dangerous activity’ and ‘significant deterioration’ which need further clarification in practice. They are often seen by stakeholders as an obstacle in practice because of the differences in interpretation in individual Member States and authorities, which may lead to inconsistencies and negatively impact cross-border cooperation. These undefined terms may need further clarification.

üAn alternative would be to explore synergies with possibly existing reporting obligations for Member States under the EU sectoral legislation listed in the annexes to the Directive.

üIn order to address the lack of consistent data, specific provisions on data collection, publication and/or reporting could be included in the Directive. These provisions could require Member States to gather, analyse and use for enforcement purposes annual statistics on the investigation, prosecution and sanctioning of individual categories of environmental crime, committed by individuals or legal persons. Furthermore, such a requirement could specify or, at least, indicate the exact nature of data to be collected, analysed and reported to the wider public and possibly to the Commission. This would ensure that the data and statistics are consistent and comparable across the Member States.

Data and statistics on environmental crimes and enforcement actions in Member States are very limited and, when available, they are often fragmentary and are neither consistent nor comparable with data in other Member States. It was therefore difficult to establish whether the Directive had achieved its specific objectives, in particular whether it resulted in a level playing field in relation to investigation, prosecution and sanctioning across Member States, or whether national enforcement and sanctioning systems are a deterrent in practice. The lack of information on the scale of environmental crime may also result in a lack of awareness about this type of crime and its scale and impact, its prioritisation, and the allocation of necessary resources.

1. Consistent statistics and data in relation to environmental crime could be gathered across the Member States, made publicly available and possibly reported to the Commission

Lessons learned and some possible actions are set out below. They should not be understood as exhaustive or binding. These recommendations should be understood as food for thought based on the findings of this evaluation and should not prejudge any decision to review the Directive.

These findings are confirmed by the results of the public consultation: Nearly all (95%) respondents consider that EU action is important to provide a framework for effective cross-border cooperation with regard to environmental crime, and 75% agree to a large extent with that statement. Furthermore, 44% believe that the Member States could not have reached the same result by national criminal legislation if there was no EU action on environment crime, or would have done so to only to a small extent (24%).

Stopping EU action would also create problems for the level playing field for companies and protection against safe havens. Uneven levels of criminalisation of environmental offences could lead to safe havens for criminals, because certain types of behaviour might not constitute a criminal offence in all Member States or because sanction levels would differ considerably between them. Although this evaluation found that there was still a risk of safe havens even with the Directive, this does not contradict the EU added value of the Directive, but rather calls for more EU action in this regard.

Considering the persisting differences between Member States on investigation, prosecution and conviction systems for environmental crimes, the different legal frameworks and traditions, and the different sensitivities to environmental issues, it is very likely that breaches of environmental legislation would be dealt with in a very uneven manner across Member States. Such a change would negatively affect the cross-border dimension of combating environmental crime. As was confirmed by the consulted stakeholders, cross-border cooperation is crucial for successfully fighting environmental crime.

There is consensus among consulted stakeholders that stopping EU-level action on the topic would be likely to have negative effects. It would remove the general framework for approximation of laws, and national legislation, without the need to be aligned with an EU framework, would become increasingly divergent over time.

This points to the need for a continued and strengthened EU approach to the fight against environmental crime.

This evaluation shows that the Directive has not fully achieved all its objectives. In particular, there is room to improve the level playing field with regard to sanctions that have a deterrent effect, but also regarding the definitions of environmental crime in Article 3 of the Directive . This is supported by the vast majority of the respondents to the public consultation, although only 33% of responding businesses considered further EU action to be necessary.

The consulted stakeholders agree that environmental crime is continuing and evolving, and pointed to an increase in the involvement of legal persons and organised crime and to a growing number of crimes with a cross-border dimension.

Consulted stakeholders do consider that the Directive has played a role in establishing a deterrent regime to address breaches of environmental legislation. The Directive established a minimum level playing field for environmental offences and affirmed the role of criminal sanctions. Nevertheless, any implementation of the notion of a ‘deterrent regime’ relies on the national sanctioning system and in particular on the interplay between, and complementarity of, criminal and administrative sanctions for environmental crimes. The absence of stated minimum and maximum levels of sanctions applicable to these crimes leaves systems open to significant disparities between Member States on levels of fines and imprisonment applicable to natural persons, and the types of fines applicable to legal persons. A large share of the respondents identified this discrepancy as a major cause of the limited effectiveness of the Directive.

The majority of consulted stakeholders agreed that the criminalisation of breaches of environmental law and liability of legal persons would have been likely even without the Directive. However, the analysis shows that before the Directive entered into force, Member States had very different approaches to prosecuting environmental criminal offences, and many of them introduced adaptations to their legal framework to implement the Directive. For example, some Member States (e.g. CZ, IT, LU, SK and ES) introduced criminal liability for legal persons.

Overall, the consulted stakeholders consider that action at EU level has provided added value, above and beyond what could have been achieved at national level, for the creation of a minimum level playing field, including a common minimum sanctions regime, to address breaches of environmental legislation.

20. What would be the consequences of stopping targeted EU action on environmental crime?

19. To what extent is EU action still necessary to stimulate, complement, leverage and create synergies with national actions?

18. What has been the added value of the Directive compared to what could be achieved by Member States at national and/or regional levels, and to what extent do the issues addressed by the Directive continue to require action at EU level?

This section focuses on the value resulting from EU-level actions compared to what could reasonably have been expected from action at national level only. It also considers whether EU action is still necessary, and what would happen if action on environmental crimes at EU level stopped.

·Stakeholders have identified areas of environmental crime that have gained importance, such as a.o. illegal fishing, illegal logging and timber trade, and man-made forest fires. Although these areas can be regarded as covered by the needs, and general and specific objectives, they are not listed in the Directive’s annexes and are thus not within the scope of the Directive.

·Objectives are not always supported by provisions in the legislative text. There are no provisions directly fostering cross-border cooperation, neither are there provisions addressing the threats by organised crime.

·The original specific objectives of the Directive are still relevant to needs.

In this context, the dimension of environmental crime beyond EU-borders should be noted Illicit traffic especially in wildlife and waste outside the EU is also due to an increase in demand from European consumers and to the expansion of global value chains. This would require cross-border cooperation with countries outside the EU.

Finally, and closely linked to organised crime, the cross-border dimension of environmental crime remains an important challenge . The Directive does not contain any particular provisions to facilitate cross-border cooperation by law enforcement authorities, although the creation of an EU framework of common environmental offences has been an important step forward. However, there is a lack of explicit rules such as an obligation to provide for investigative tools available in Member States to investigate serious crime.

The need to cover organised crime is supported by the results of the public consultation. Only 12% of respondents believe that the Directive ensures that the challenges of tackling the involvement of organised crime are met, against 55% who believe that the Directive lacks provisions to oblige Member States to treat environmental crime committed in the context of organised crime as an aggravating circumstance,

Academics and stakeholders have argued that environmental crime committed by, or with the involvement of, organised crime groups and networks remains an important issue that needs to be more effectively addressed . Eurojust, in its November 2014 report on the Strategic Project on Environmental Crime stated that environmental crime is often linked to organised crime, in particular illegal trafficking or dumping of waste and trafficking in endangered species. The EnviCrimeNet along with Europol in 2015 issued a report on its Intelligence Project on Environment Crime with particular focus on the involvement of organised crime groups. The 2015 European Agenda on Security also identified serious and organised cross-border crime as one of its three key priorities, pointing out that ‘serious and organised cross-border crime is finding new avenues to operate, and new ways to escape detection. There are huge human, social and economic costs – from crimes such as […] environmental crime’ .

·Man-made forest fires: illegal forest fires – meaning forest fires induced by humans – are an increasing source of concern around the world, especially in the context of climate change (there are recent examples in the Amazon rainforest and in Australia). They also constitute a serious problem in the EU, particularly in Mediterranean countries where there has been an increase in forest fires over the past 25 years. Between 2003 and 2012, forest fires resulting from deliberate actions and negligent behaviour accounted for 66% of the total number of forest fires in Italy and 64% in Spain. In Poland, between 2003 and 2012, forest fires due to deliberate actions and negligent behaviour accounted for 57% of the total number of forest fires. In 2019, the Finnish Presidency of the Council included forest fires as one of the areas which Member States considered as particularly frequent and serious.

In 2015, the Environmental Investigation Agency (EIA) revealed that illegal logging is destroying Romania’s ancient forests and national parks, including Natura 2000 areas. An Austrian timber company, Holzindustrie Schweighofer, profits from these illegal activities. The Romanian police raided Schweighofer’s facilities and suppliers as part of an investigation into illegal logging, tax evasion and links to organised crime in May 2018, estimating the damage caused to be at EUR 25 million. In early 2020, illegal logging in Natura 2000 areas and UNESCO buffer zones appears to be continuing. Data from November 2019 reveals that more than 20 million m3 are logged illegally each year, estimated to be worth at least EUR 4 billion over the past 4 years. As a result, nearly two-thirds of Romania’s Carpathian Mountain forests have been lost in the past decade alone.

·Illegal logging and timber trade: illegal logging refers to the harvesting, processing, transporting, buying or selling of timber in contravention of national and international laws. It is closely connected to the illegal timber trade and the illegal trade in endangered species. Illegal logging is an important source of concern. Around the world, every two seconds, an area of forest the size of a football field is clear-cut by illegal loggers. In some countries, up to 90% of all logging is illegal. Estimates suggest that illegal logging generates approximately USD 10–15 billion annually worldwide. According to the EnviCrimeNet, illicit timber trade is one of the most financially rewarding transnational criminal activities, generating an estimated USD 7 billion . In the EU, an analysis of available statistics shows that illegal logging is a common environmental crime in some countries, including RO, HU, LV, and LT.

·Illegal fishing : the United Nations Office on Drugs and Crime (UNODC), refers to a range of illegal activities in the fisheries sector, which are often transnational and organised in nature, such as illegal fishing, related document fraud and money laundering. Organised crime often engages in fisheries crime due to low risk, high profit, and uncoordinated, ineffective domestic and cross-border law enforcement . According to the EnviCrimeNet, illicit fish trade is one of the most financially rewarding transnational criminal activities, generating between USD 4.2 and 9.5 billion per year . In the EU, which is the world’s largest single market for fisheries and aquaculture products, the illegal import of fishing products has been estimated to be worth EUR 1.1 billion per year . Illegal fishing crime may have substantial adverse environmental, social and economic impacts. Large-scale illegal fishing depletes valuable fish stocks and threatens the long-term marine sustainability and food security of the most vulnerable countries. It further deprives EU countries of economic revenue, while illegal operators benefit from a competitive advantage, creating unfair economic conditions and pushing law-abiding businesses out of the market . Global annual losses due to illegal, unreported and unregulated (IUU) fishing have been estimated at around USD 10-23.5 billion. In view of this situation, the EU common fishery policy establishes an elaborate sanctioning system including a regulatory frame for the fight against IUU fishing , a list of serious infringements, provisions on administrative and criminal sanctions, minimum levels of sanctions and a point systems for fishing licence holders and masters of fishing vessels . The Commission is proposing to further strengthen the EU fisheries sanctioning system by bringing further harmonisation in particular concerning serious infringements and minimum sanctions.

Stakeholders, Member States, professional networks and academia have particularly pointed to the areas listed below, but this list is not exhaustive:

This section assesses whether needs may have evolved and whether the objectives of the Directive still correspond to these needs. This requires an analysis of the trends in environmental crime since the adoption of the Directive, and in particular whether areas of environmental crime not covered by the Directive so far have become a growing source of concern or whether new types or patterns of environmental crime have emerged.

6.4.2Evolving needs and objectives since the adoption of the Directive

The continued need to protect the environment by means of criminal law has been confirmed by the large majority of all stakeholder groups. Also, the separate assessment undertaken by the EESC to inform this evaluation showed that an overwhelming majority of consulted stakeholders (business and industry organisations, trade unions, NGOs, municipalities, law enforcement practitioners and other civil organisations) believe the Directive is still relevant, either to a large extent (57%) or to some extent (35%), even if the majority of these stakeholders sees large room for improvement, in particular as regards the practical implementation of the Directive.

When the ‘Dieselgate’ – scandal came to light in 2015, Volkswagen had to admit that it illegally fitted special software on 11 million cars to trick emission tests before putting the cars on the market. The scandal affected many countries where Volkswagen sold its cars. The case has been treated under different crime categories in different countries. While in the US the matter was considered as an environmental crime, in Europe, charges concentrated on economic crime, fraud, tax evasion and false testimony. In some European countries, the case was dealt with by administrative law (for example under unfair competition) and/or by civil action. This example shows that the same action might have particularly adverse environmental effects in more than one Member State, but that uneven approaches under different crime categories potentially lead to wrongdoings going unpunished in some countries or resulting in only small fines, depending on the crime category applied in the Member States. An overarching approach with coordinated prosecution in the Member States concerned would not be possible under such circumstances. Moreover, the environmentally harmful impact as such is not captured by any of the traditional crime categories.

Similar observations apply with regard to the Directive’s added value over environmental crime being dealt with under other crime categories such as fraud, tax fraud, trafficking, organised crime or falsification of documents. In addition, where environmental crime is dealt with under different crime categories, the dimension and inherent harm of environmental crime is not captured and remains invisible.

These impacts could not have been achieved through the 72 individual and unrelated pieces of sectoral legislation containing sector-specific provisions and different levels of detail with regard to sanctioning breaches of environmental obligations. Stringent law enforcement at all levels of the law-enforcement chain is, however, indispensable if the Directive is to reach its full potential. Here, there is still much room for improvement.

One of its main practical achievement was the definition of an EU framework of environmental crimes, which is necessary for cross-border cooperation, although, as many stakeholders and practitioners have repeatedly stressed, more can be done.

The relevance of fighting environmental offences through criminal law cannot be measured only against conviction data or reduced environmental crime numbers. The Directive has raised the visibility and awareness of environmental crime in many Member States, which is a prerequisite for the necessary political support and allocation of resources needed for effective law enforcement. The criminalisation of environmental offences required by the Directive sends a strong signal of social disapproval to the general public and duty holders, thus helping to prevent crime.

The Directive adds value by defining criminal offences requiring criminal sanctions for serious violations of all these 72 instruments. Criminal law expresses social disapproval of a qualitatively different nature than administrative penalties or a compensation mechanism under civil law.

The 72 sectoral EU instruments are a source for obligations for duty holders whose activities may have an impact on the environment (plant operators, ship-owners, individuals, companies, industry, and businesses). These sectoral instruments sometimes include general obligations for the Member States to provide for appropriate sanctions if these obligations are disregarded. These sanctions need not necessarily be of a criminal nature.

As shown under Section 6 – ‘Analysis and answers to the evaluation questions’ there is only little evidence that the Directive might have had an impact on the reduction of environmental crime. The question might arise whether the Directive has had any added value over the 72 sectoral pieces of EU legislation which already regulated the areas covered by the Directive before its entry into force.

17. To what extent are the general and specific objectives of the Directive still appropriate?

16. To what extent have the (original) general and specific objectives proven to be appropriate in view of the needs?

Under this criterion, the evaluation assessed whether the original objectives of the Directive are still relevant in relation to current and future needs. This part looks into whether or not the measures included in the legislation remain necessary and appropriate, and if the objectives and requirements set out in the Directive are still valid in protecting the environment by reducing environmental crime.

·The Directive does not address the challenges and severity of environmental crime committed within the framework of organised crime. This is not coherent with the acknowledged links between organised and environmental crime, especially as regards wildlife crime. The UN has recently (2016) officially acknowledged this connection in a Resolution.

·The Anti-money laundering Directive and the Confiscation Directive are not applicable to all environmental crime, as their application depends on the penalty levels in the Member States. The fight against environmental crime, therefore, does not in all instances and in all Member States benefit from the approaches and tools provided in these Directives to combat crime more effectively.

·As a pre-Lisbon instrument, the Directive could benefit from the possibilities offered by the Lisbon Treaty to introduce more detailed provisions similar to those in other EU criminal law instruments, for example on sanction types and levels, the use of investigative tools and data collection.

·The Directive does not address the interplay between environmental criminal sanction systems and environmental administrative sanctions systems in the Member States.

·The legal technique used in the Directive to define its scope, by referring to environmental instruments in its annexes, leads to unclarity, as the many of the referenced pieces of legislation are outdated. New legislation does not systematically reference the Directive, thereby falling outside its scope. Over time, these inconsistencies may even grow, as environmental legislation is constantly changing. Inconsistencies could also occur where serious ecological damage goes unpunished by criminal sanctions, because it was caused without violating any environmental legislation listed in the annexes to the Directive.

The UN General Assembly in 2016 adopted a resolution which, for the first time, recognised environmental crime as part of other transnational organised crimes. The Directive does not meet the particular challenges posed by the links between organised and environmental crime, nor does it contain any provisions addressing organised crime.

An analysis of the coherence of the Directive with international obligations is therefore also a question of coherence with other EU environmental law (see above). The inclusion of other legislation/areas under the scope of the Directive (some of which might relate to other international obligations not currently reflected in the legislation included in the annexes to the Directive) is dealt with under Section 6.4.2 - ‘Evolving needs and objectives since the adoption of the Directive’.

·the Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol) implemented by Regulation (EC) No 1005/2009 (the Ozone Regulation) .

·the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), implemented by the CITES Basic Regulation and implementing regulations;

·the Basel Convention on the control of transboundary movements of hazardous wastes and their disposal, implemented by the Waste Shipment Regulation, adopted 1989;

The Directive applies to infringements of the legislation listed in its annexes. This legislation reflects the obligations stemming from key international conventions to which the EU is a party. These international conventions include:

·In 2020, the EU has adopted a new Circular Economy Action Plan setting norms for circularity and sustainable products, at all stages of the value chain. It also supports consumers’ information and responsible consumption, as well as the sustainable and safe disposal of hazardous materials, therefore helping tackle environmental crime and notably illegal waste discharge, within and outside Europe.

The EFFACE Research Project identified differences with regard to the conditions under which liability emerges. For example, in the ELD, strict liability is not dependent on breaches in obligations of administrative legislation, but it is connected to an activity that is dangerous for human health or the environment (such dangerous activities which establish strict liability are listed in Annex III of the ELD). The EFFACE report concludes that the ELD and the Directive are considered ‘sister directives’ complementing each other.

·The Environmental Liability Directive (ELD) aims to ensure that certain types of damage to the environment are remedied by the company that caused the damage. Currently, new Commission guidelines on the interpretation of the term ‘environmental damage’ under the ELD are in preparation,

·EU level networks of environmental practitioners, such as ENPE (prosecutors), IMPEL (inspectors), EUFJE (judges) and EnviCrimeNet (police and other enforcement officers) facilitate sharing good practices, developing practical tools for detection, and investigation and training. These networks now work together with the Commission’s support.

·In 2018, the Commission adopted an action plan on environmental compliance assurance . The new Environmental Compliance and Governance Forum established under this action plan brings together Member State representatives and representatives of practitioner networks, such as IMPEL and ENPE. Several actions focus on the development of tools to support environmental enforcement on the ground, such as the preparation of guidance documents, complaint handling, compliance assurance in rural areas, combating environmental crime with a focus on waste and wildlife crime, use of geospatial intelligence, and training and capacity-building activities at all levels of the enforcement chain. The various activities under this action plans contribute to the Directive’s effectiveness which depends on the practical efforts on the ground concerning detection, investigation, prosecution and adjudication and on good cross-border cooperation among Member States.

·The EU Biodiversity Strategy for 2030 provides that the Commission will take a number of steps to crack down on illegal wildlife trade, including by revising the EU action plan against wildlife trafficking in 2021.

·In February 2016, the European Commission adopted a Communication on the EU action plan against wildlife trafficking . It sets out a comprehensive set of measures against wildlife crime inside and outside the EU. The action plan runs until 2020 and is being implemented jointly by the EU and its Member States. In October 2018, the Commission adopted a progress report and the overall results are being evaluated.

·On 27 March 2017, the Council decided to continue the EU policy cycle for organised and serious international crime for 2018-2021. This multi-annual policy cycle aims to tackle the most important threats posed to the EU by organised and serious international crime in a coherent and methodological manner by improving and strengthening cooperation between the relevant services of the Member States, EU institutions and EU agencies as well as third countries and organisations, including the private sector. One of the priorities is to fight and disrupt organised crime groups involved in environmental crime, more particularly wildlife and illicit waste trafficking .

·In the 2016 Council Conclusions on countering environmental crime , the Council recommended a number of measures to ensure effective law enforcement with regard to environmental crime, including close cooperation between relevant authorities, information gathering and exchange, and the allocation of sufficient resources.

The Directive is part of a broad EU-approach to protecting the environment and strengthening compliance with existing EU legislation. Actions on different levels complement and reinforce each other, thereby contributing to raise awareness and accelerate efforts in the Member States to tackle environmental crime. Some examples of related developments in the EU’s environmental policy are set out below.

The 5th Anti-money laundering Directive is aimed at preventing the financial system from being used for criminal activities. Among other things, it enhances the powers of Member States’ financial intelligence units and facilitates their cooperation. Contrary to the recommendations of the Financial Action Task Force of the Organisation for Economic Co-Operation and Development , environmental crime is not expressly mentioned as ‘criminal activity’ in Article 3(4) of the Anti-money laundering Directive, and is therefore only covered if punishable by a minimum prison sentence of more than 6 months or a maximum of more than 1 year, depending on the case (see Article 3(4)(f) of the Anti-money Laundering Directive). Not all Member States meet this threshold.

Although the link between environmental crime and organised crime is well established, the Directive does not contain any reference to organised crime, for example by defining its involvement as an aggravating circumstance requiring higher sanction levels, by including rules on coordinated prosecution, or by harmonising the use of special investigative tools in case of the involvement of organised crime. In turn, the Framework Decision does not refer to environmental crime. Its Article 1 only defines offences punishable by a maximum of at least 4 years’ imprisonment as falling under its scope. This excludes environmental crime in Member States where this threshold is not met.

The Directive could be more coherent with the EU’s policy aim to fight and disrupt organised crime groups and networks connected to environmental crime. These aims have been stressed by the 2016 Council conclusions and in the current EU policy cycle.

However, there is a lack of links between the Directive and neighbouring criminal law instruments, which prevents synergies.

The EU Agenda on Security (2015) highlighted the link between environmental crime and organised crime. It sets out that ‘The Commission will consider the need to strengthen compliance monitoring and enforcement, for instance by increasing training for enforcement staff, support for relevant networks of professionals, and by further approximating criminal sanctions throughout the EU’, and that the Commission would be ‘reviewing existing policy and legislation on environmental crime’. It recognised the link between environmental crime and organised crime, as well as the link between environmental crime, money laundering and terrorist financing.

The differences are due to the pre-Lisbon character of the Directive, with only limited competences of the EC with regard to criminal law under the first pillar. After the entry into force of the Lisbon Treaty, the Article 83 (2) TFEU regulates explicitly the EU competences with regard to approximating criminal laws including environmental criminal laws to ensure the effective implementation of a Union policy.

The Directive contains fewer and less detailed provisions regarding a number of elements, as illustrated in the table below:

Below, the Directive is compared to other and more recent EU criminal law, namely the Euro Counterfeiting Directive (2014), the Anti-money laundering Directive and the Abuse Directive (2014).

In conclusion, coherence between national criminal sanctioning systems according to the Directive and administrative law enforcement and sanctioning systems could be improved, to create synergies and foster an overarching approach among all parts of the law enforcement chain to effectively combat environmental crime.

With regard to prevention and detection of crime, administrative environmental law contributes to a large extent by provisions on stringent and frequent administrative monitoring, controls and inspections. In some Member States, administrative environmental authorities are mainly responsible for identifying environmental offences. In most Member States, administrative authorities, law enforcement authorities and prosecutors collaborate in either a formal or an informal manner in order to detect and investigate environmental crimes. However, informal cooperation may be insufficient, as it usually depends on the attitude of those in charge.

By contrast, a well-balanced and clearly regulated interplay of the two regimes can be mutually reinforcing and enhance the effectiveness of law enforcement with regard to environmental crime: the possibility to use administrative and criminal enforcement tools provides for flexibility and a tailored approach to different categories of offences; administrative accessory sanctions can complement criminal sanctions to create a sanctioning system that is a deterrent overall (at least in national systems, which do not provide for accessory sanctions under criminal law). In many Member States, minor environmental cases are dealt with through administrative law only, thus relieving the criminal justice system (where proceedings are typically lengthier, more complex and more demanding with regard to the level of proof required for a conviction) and leaving space for the most serious cases.

Independent of the approach taken, in many Member States the delineation and interplay of the two systems is unclear, with no clear criteria or guidelines. Therefore, conflicts of competences, legal uncertainty and delays in proceedings that hamper effective law enforcement are likely to occur . Procedural safeguards to prevent double sanctioning are not always in place. Some Member States have communicated that in practice environmental criminal law in not applied in their country, but environmental offences are rather dealt with through the existing administrative sanction systems. The reasons are national systems where administrative sanction levels are higher than criminal ones, lower requirements with regard to evidence, and less complicated and time-consuming procedures. Administrative sanctions, however, do not contain the same degree of social disapproval as criminal sanctions, and the majority of the consulted stakeholders have confirmed that the availability of criminal sanctions is indispensable to complement administrative sanction systems.

Member States have taken different approaches to determining how administrative and criminal sanctioning systems should interact:

Historically, the protection of the environment has been addressed by administrative law in most Member States. The Directive pays tribute to this history by only criminalising conduct harmful to the environment if there is a breach of environmental legislation. Consequently, after the transposition of the Directive in the Member States, two parallel sanctioning systems exist for environmental offences. The Directive does not rule on the interaction between these two systems. Recital 11 explicitly states that the Directive ‘is without prejudice to other systems of liability for environmental damage under Community law or national law’.

Ultimately, the approach of protecting the environment through criminal law only if the harm caused is linked to a breach of legislation could in itself be considered as not coherent with the EU policy goal of protecting the quality of the environment. An alternative could be to define conduct that has caused particularly serious damage to the environment as criminal, independently of whether or not other legislation has been breached. In any event, the identified inconsistencies make it difficult for duty holders and law enforcement authorities to recognise the behaviour that would constitute a crime, thus undermining legal clarity and equal application of environmental criminal law.

This illustrates that the legal technique used for the definition of the scope of the Directive, which criminalises only conducts that breach obligations deriving from legislation listed in the annexes, is complex and appears to be rather impracticable. From the start, the Directive only covered a part of existing legislation containing provisions to protect the environment. New legislation has not been systematically included under the Directive. This has led either to some environmental areas not being protected by criminal law at all or to sectoral criminal law being developed at EU level independent of the Directive (the Ship Source Pollution Directive). These inconsistencies tend to grow over time as environmental sectoral legislation change.

Moreover, out of the 72 pieces of EU legislation in the Directive’s annexes, 46 have been repealed and/or replaced since the entry into force of the Directive. Although, where new legislation repeals a previous act, it usually determines that references to the old act should be read as referring the new one, it could be doubted whether this approach meets the requirements of legal clarity and transparency in a criminal law context.

In other cases, sectoral criminal law provisions were introduced later to pre-existing environmental legislation. The 2005 Ship-Source Pollution Directive was amended in 2009 to introduce criminal law provisions similar to the ones in the Directive regarding illegal discharges of polluting substances from ships, based on international rules .

The annexes do not contain all environmental legislation that existed at the time of the adoption of the Directive, leading to the situation that not all environmental offences are treated the same way. For example, fishery or illegal logging/timber trade offences are not covered by the Directive.

However, new EU legislation, such as the Regulation on invasive alien species or the REACH Regulation does not make such reference to the Directive.

‘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.’

The Directive criminalises certain types of conduct only if committed ‘unlawfully’ (see above Section 2.2. – ‘Description of the Intervention’), i.e. if obligations deriving from legislation in the two annexes to the Directive have been breached.

Approach to link criminalisation to a breach of environmental legislation listed in the annexes to the Directive

The evaluation reviews how key provisions of the Directive are interlinked and how the Directive functions as a whole. The main issue in this respect is whether the legal technique of the Directive to define its scope by referring to a set of legislation in its annexes has worked in practice and has ensured the internal coherence of the Directive.

17. To what extent is the Directive coherent with the international obligations of the EU and/or Member States?

16. To what extent is the Directive coherent with other environmental legislation and policy? To what extent is the Directive and its horizontal approach coherent with the otherwise sectoral approach in the area of environmental legislation?

15. To what extent is the Directive coherent with other criminal legislation and policy such as financial crime, terrorism, organised crime, confiscation or freezing of proceeds of crime, Charter of Fundamental Rights, market abuse, counterfeiting and ship-source pollution?

The coherence criterion is used to assess how the Directive interacts with other relevant areas and instruments of EU policy, and whether there are significant contradictions or conflicts that stand in the way of their effective implementation or which prevent the achievement of their objectives. The following section presents the assessment of the extent to which the Directive is coherent internally, with other relevant EU criminal and environmental legislation and policies, as well as with the EU’s international obligations.

As no considerable costs for implementing the Directive could be identified, the evaluation questions on benefits and cost/benefits analysis are not relevant.

Overall, no considerable increase in costs attributable to the Directive could be established across the EU or in particular Member States. Where investments have been stepped up, this was attributed to a generally higher awareness of the need to better protect the environment rather than to the Directive itself. However, one can conclude from the information gathered that the Directive – and thus the criminalisation of environmental offences through EU law – contributes to this overall higher level of awareness and may have led to more efforts and investments with regard to law enforcement and judicial follow-up of environmental offences.

A follow-up project (EU IPA 2011 Twinning Light Project) was launched in 2011 to improve ‘capacity building of the environmental inspection and other relevant authorities and institutions for preventing, recognizing, investigating and prosecuting offences against environment’.

In the aftermath of the project, the role of ‘investigator’ was created following changes in the Croatian Criminal Procedures Act. The investigator is appointed by the State Attorney to perform certain actions. Environmental inspectors can also be appointed as investigators within their jurisdiction and competence. Furthermore, a National Environmental Security Task Force was created, on the initiative of Interpol, to coordinate preventive action at national and international level.

As part of the IPA 2008 project, training was given to environmental protection inspectors and to staff in other ministries, as well as judicial, police and customs authorities. Information toolkits were created for prosecutors and judges. Standardised methods were created for cooperation between environmental protection inspectors and other authorities, to make it easier to mount prosecutions, and a manual now lays down guidelines for coordinated enforcement.

In the context of its accession to the EU, Croatia started a project in 2008 aimed at strengthening enforcement of the new Environmental Protection Act, harmonised with EU legislation for criminal offences against the environment. Although criminal offences against the environment were already punishable under the Criminal Act and tackled by the new Environmental Protection Act, the project aimed to ‘improve the overall system of environmental protection with special focus on enforcement (inspections, misdemeanour and criminal cases) by setting up the administrative structures necessary for the implementation of the Directive’, ‘increase enforcement capacity of the administrative bodies, including inspection services, related to misdemeanour and criminal offences against the environment’, and ‘improve cooperation among key stakeholders’. The total cost of the project was EUR 1 100 000, 95% financed by the European Commission under the 2008 instrument for pre-accession assistance (IPA) programme and co-financed by the Republic of Croatia.

Substantial changes in capacities and structures following the EU acquis, including the Directive, have been identified in HR, where a project was conducted as part of the country’s accession to the EU, aimed at training local authorities and practitioners, fostering cooperation and developing material to facilitate the enforcement of environmental crime legislation. The total cost of the project was EUR 1.1 million.

Although some Member States have put in place specialised units or staff within their law enforcement authorities or other public authorities and judiciary for dealing with environmental crime, in most cases this did not happen due to the Directive.

Interviews with practitioners from across the Member States suggest that in some of them more training has been provided since the introduction of the Directive, in particular in relation to wildlife and waste criminality. However, the data provided indicate that training costs per individual involved in environmental crime enforcement are not significant. According to the interviewees, only a small proportion of those costs could be attributed to the Directive. It could not be demonstrated that, where training was stepped up, it was due to the Directive.

Interviews with stakeholders from Member States where an increase in staff was observed were not able to determine the level of such increases or confirm that the increase had been caused by the Directive.

Figure 10: Question 5: In your opinion, has the Directive resulted in an increase in the number of staff in your country involved in enforcing environmental crime?

Almost 70% of respondents to the targeted consultation felt the Directive did not bring about any change in the number of staff involved in enforcing the protection of the environment through criminal law. This includes Member States that introduced additional environmental criminal offences into their national law when transposing the Directive (e.g. CY, EL, IT). An increase in such staff has been observed in seven Member States.

Publicly available information on budgets allocated to the protection of the environment is very limited and no comparison is possible between the period before and after the entry into force of the Directive. Moreover, where budgets related to the protection of the environment could be identified, such budgets could not be fully attributed to the implementation of the Directive. Typically, both administrative and criminal law enforcement measures are covered by such budgets, including inspection and monitoring activities. It was not possible to obtain details on the share of the budget allocated to investigate, prosecute or litigate criminal activities related to the environment specifically.

The Directive itself has not generated significant additional costs for businesses or the public, as the duty to comply with environmental obligations does not stem from the Directive as such, but from compliance with the underlying administrative environmental legislation to which the Directive refers. Even if the results of the public consultation indicate that the Directive may have helped improve duty holders’ compliance with environmental law and reduced illegal trade (of waste, wildlife, dangerous material), those costs are not primarily related to the Directive, but to the underlying environmental legislation as such.

12. Is there potential for the EU and Member States to simplify or reduce the administrative burden without undermining the intended objectives of the intervention?

10. What have Member States done as a result of the Directive to prevent and tackle environmental crime?

9. What are the costs and the benefits of the Directive – in the individual Member States and overall?

Efficiency considers the relationship between the resources used to implement the Directive and the changes observed. This part of the report aims to provide an understanding of the extent to which the benefits of having and implementing the Directive justify the costs.

Progress towards the achievement of the objectives of the Directive has been supported by increased public awareness and concern about environmental issues, as well as the creation and development of practitioner networks, while shortcomings in enforcement, in particular a lack of resources and prioritisation, are still an obstacle. The reduction of crime as a general objective does not depend only on the Directive, which has to be considered as only one element in a holistic approach to reducing crime.

There are indications of more cross-border cooperation, but this is not directly attributable to the Directive, which does not contain any specific provisions addressing cross-border cooperation in particular. However, the criminalisation of environmental offences through the Directive has contributed to attract higher public awareness and enabled more effective cross-border cooperation by creating an EU-wide set of environmental crimes that can be prosecuted in all Member States.

There is no evidence that the Directive has reduced illegal trade in environmentally sensitive goods. Growing numbers of detections and seizures of illegal trade are likely to reflect the overall growth in international trade and increasingly efficient administrative controls. On the other hand, growing numbers of detections of illegal trade and individual success stories are also positive developments which can be built on further.

However, significant disparities between Member States persist. This is because the Directive uses legal terms for environmental criminal offences that risk to lead to different interpretations to the Member States, and only requires sanction levels that are ‘effective, dissuasive and proportionate’, without giving any further orientation.

·overall higher sanction levels than before the Directive in the law of the Member States, at least with regard to natural persons;

There is evidence of progress towards the achievement of the objectives of the Directive:

As explained under Section 2.3. – ‘Intervention Logic’, the Directive must be considered as an element in a broader range of concerted measures that contribute to fighting and reducing environmental crime. The achievement of its specific objectives is most important in this regard.

However, an overall majority of the respondents to the public consultation, the targeted consultation and the stakeholders consulted by the EESC felt that the criminalisation of environmental crime does help protect the environment. It was, however, difficult to link any improvements in environmental protection to the Directive. Respondents to the public consultation confirmed improvement in the EU overall, rather than in their respective Member State. This suggests that stakeholders perceive a general higher awareness and willingness to combat environmental crime rather than concrete improvements in their neighbourhoods. Positive impacts observed concerned individual cases rather than the overall picture. Practitioners have pointed to improved trans-border cooperation (in individual cases) facilitated by a common understanding of what conduct can constitute environmental crime, Generally, police officers and inspectors were more positive about the impact of the Directive than judges and prosecutors. NGOs and business representatives did not think that the Directive made any difference.

With regard to the general objective to reduce environmental crime, no direct effect could be measured due to the unknown amount of environmental crime and the many factors outside the Directive’s scope that influence the level of crime (see under Section 2.3. – ‘Intervention Logic’). The growing international trade in environmentally sensitive goods and the high level of organised crime involved in environmental crime rather suggest that the level of environmental crime has been increasing.

8. To what extent can achievements be credited to the Directive? What other factors have influenced possible achievements observed? Which factors hamper or reduce the Directive’s effectiveness?

Although there is progress towards cross-border cooperation, the Directive has not proved to be a decisive element in boosting cross-border cooperation in practice. This cannot be a surprise, as the Directive does not contain any specific provisions to directly encourage and foster cross-border judicial cooperation. The creation of an EU framework for environmental crime through the Directive is a necessary factor for such cooperation, but – as shown - it is not sufficient to make a clear difference.

The majority of the respondents to the targeted consultation questionnaire took the view that the Directive has resulted in increased cooperation between Member States. With regard to the public consultation, a large proportion of the respondents to it thought that insufficient cross-border cooperation between Member State authorities could be improved, and a significant minority of respondents (31%) identified a lack of support at EU level from bodies such as Eurojust. The impact of the professional networks was more visible to stakeholders. More than 60% of the respondents to the targeted consultation agreed that more cross-border cooperation has been established, but did not attribute this to the Directive. Interviews with practitioners supported the limited influence of the Directive.

At Member State level, a number of practitioners’ cross-border networks have been established representing all levels of the enforcement chain. Networks focussing on combating environmental crime are the European Network of Prosecutors for the Environment (ENPE) and EnviCrimeNet for the police. IMPEL and EUFJE also do relevant work on tackling environmental crime. The networks are growing, delivering reports on selected issues, sharing learning and best practice, establishing good case-law and developing training opportunities in relation to fighting environmental crime across the EU. Their expertise and knowledge is substantial. The networks are members of the Environmental Compliance and Governance Forum established under the 2018 action plan to improve environmental governance and compliance. The development of these professional networks cannot be directly attributed to the Directive. These networks, however, play a role in facilitating cross-border cooperation in investigating and prosecuting environmental crime, and thus have been supporting the Directive’s overall effective implementation

Although these activities cannot be directly attributed to the Directive, the improved cross-border cooperation through the creation of a common framework of EU environmental crime has facilitated these actions.

The operational analysis of data from national law enforcement authorities, including data on ongoing investigations, is one of Europol’s core missions. In this context, it is highly dependent on information provided by Member States. Europol has supported some operations aimed at tackling environment crime in recent years . It also coordinates the activities of EnviCrimeNet, an informal network of law enforcement authorities active in the field of environmental crime, which was set up in 2011. However, despite some positive examples, the number of cases in which Member States have requested support from Europol remains low, and no official statistics are available.

By contrast, Eurojust confirmed that the number of European arrest warrants and joint investigations related to environmental crime has increased since the adoption of the Directive. However, Eurojust attributed this to the implementation of the EU Action Plan against Wildlife Trafficking rather than to the Directive. However, such action would not be possible without the harmonised criminal offences and sanctions as required by the Directive.

In addition, Eurojust’s involvement in environmental crime cases shows only a slight upward trend, as illustrated by the tables below.

From 1 January 2004-30 April 2017, Eurojust dealt with 64 cases of environmental crime out of a total of 18,777 cases . The number of cases fluctuated between two and nine per year over the reporting period. The most frequently involved Member States in such type of cases were DE (26) and NL, followed by the UK (22) and FR (21). In 2018, Eurojust opened 24 new cases, and in 2019, 11 new cases, based on requests from Member States. Environmental crime is the crime category for which Eurojust’s support is least requested. According to Eurojust, many cases involving environmental crime have been registered under other crime categories.

At EU level, in particular Europol and Eurojust are both mandated to facilitate cross-border cooperation with regard to crime, including environmental crime. These cases systematically involve at least two EU countries or an EU country and a non-EU country. However, both EU agencies depend on Member States requesting their support, and have no independent investigatory or prosecutorial roles. OLAF (the European Anti-Fraud Office) also works with national authorities in EU and non-EU countries to prevent illicit products from entering the single market. This contributes to the enforcement of the Timber Regulations and the CITES regulations.

UNEP and Interpol’s assessment of the rise of environmental crime noted that ‘the sheer financial scale and sophistication of environmental crimes now require an entirely different scale of coordinated responses and international collaboration, working across ministries and jurisdiction at the national level, to international cross-UN and trans-border collaboration’.

In conclusion, there is little evidence that illegal trade in wildlife and waste is being reduced through the Directive. Nonetheless, the Directive helps combat these forms of environmental crime by providing an EU framework for such crime, facilitating cross-border cooperation. As outlined under Section 2.3. – ‘Intervention Logic’, given the many trends outside the Directive that influence criminal activities, the Directive was not expected to cause a reduction in environmental crime by itself, but to play its role as criminal law instrument in an approach to combating environmental crime that must be more comprehensive.

Success stories can be identified with regard to specific cases. For example, with regard to glass eel trafficking, although glass eels are marked as ‘critically endangered’ on the IUCN Red List, the European population of glass eels appears to show signs of recovery which might indicate that illegal trade in this specific species has been reduced. The extent of glass eel trafficking was identified as one of the main threats to the eel population. Transnational enforcement actions, such as Operation LAKE initiated by Europol, aimed at the reduction of eel trafficking can therefore be an important factor in protecting the glass eel population.

This result was also confirmed in interviews with practitioners who said the Directive had enabled coordinated action against illegal trade by providing a common framework, although they attribute improved coordination in the first place to a generally higher awareness regarding the need to fight environmental crime.

In the targeted consultation, respondents have confirmed that the approximation of the regulatory framework has generally facilitated success in fighting illegal trade.

The exact number of waste and wildlife crimes, and its development over the years, is unknown. Conclusions on effectiveness can only be drawn from indirect information and trends. Upward trends in seizures or detection of illegal activities could point to an increase in wildlife and waste crime rather than a reduction. This interpretation is also supported by growing global trade and internet trade fuelling forms of illegal trade. This interpretation is further supported by the interest of organised crime in these sectors (see above). Therefore, it might be concluded that the Directive did not achieve its objective to reduce environmental crime. However, stakeholders stressed on the positive impacts of the creation of a common legal framework on environmental crime by the Directive, and the resulting facilitated cross-border cooperation.

IT has noted that in many cases, legal businesses are involved in waste crime, making it an ‘anomalous form of serious organised crime’ . Sources from Belgium and the UK confirmed this finding, although they also stated that criminal organisations involved in other types of crime are now moving into environmental crime. BE indicated in its response to the Finnish Presidency questionnaire that environmental crimes are committed by legitimate businesses that increase their profit through fraud . The UK review indicated that organised criminals in the waste sector are more likely to operate behind legal businesses than organised crime groups involved in other types of crime. Several other sources confirm the permeability between legal and illegal waste activities .

Although many Member States indicated in their national report for the 8th Round of Mutual Evaluationsthat the involvement of organised crime was low or non-existent, several noted increasing involvement of organised crime groups in waste crime. In IT, the illegal management of waste is considered a growing activity, with an increasing transnational dimension, in part as a result of the involvement of organised crime groups. The UK ‘Independent review into serious and organised crime in the waste sector’ also noted a ‘steady rise in organised, large-scale waste crime’, mostly coming from existing organised crime groups that are already involved in other types of crime and are now getting involved into the waste and recycling markets . SI has also indicated that the involvement of organised groups committing environmental crime is increasingly visible since 2017 .

The EU is a transit and destination region for the trafficking of endangered species, which are moved on to destination countries in Asia and North America. These species include glass eels, reptiles, exotic birds, pangolin, fish, narwhal meat, shells, corals, date mussels, timber and ivory . According to Europol, the number of organised crime groups involved in the trafficking of endangered species is low, but increasing and highly specialised .

Another indicator for the negative development of waste crime and wildlife crime is the persisting and increasing interest of organised crime groups.

Those involved in trafficking of waste and endangered species are mainly organised crime. The most profitable transnational criminal activities linked to environmental crime include illicit wildlife trafficking, illicit timber trading, and illicit fish trading.

An earlier report from TRAFFIC for 2007-2011 provided higher seizure records per year compared to those in the above table for the year 2011 and subsequent years (i.e. 12,486 seizure records for the period, with relatively constant numbers per year varying from 2,300 and 2,800 records). This report gathered data from EU-TWIX, i.e. the same source as the 2017 data in the table above. It is striking that data coming from EU-TWIX provide higher seizure records than those provided in the seizure reports submitted by EU Member States to the European Commission. Data from the EU-TWIX (2007-2011 and then 2017) also tend to show an upward trend in seizures between the end of the 2000 and 2017.

The data compiled by the NGO TRAFFIC of CITES-related seizures reported by Member States show an upward trend in the number of seizures taking place in the EU and at EU external borders from 2011 to 2017 . Although the number of reporting Member States has increased over the years, the largest share of seizures affects a relatively constant group of Member States. This suggests that the increase is not only due to more reporting Member States but also indicates an increase in the number of seizures for the period 2011-2016.

Some Member States have pointed out that there is a correlation between the growth of cross-border legal waste shipments and the number of waste crimes. For instance, in DE, the increase in cross-border waste shipments since the 1990s correlated with an increase of the number of cases of waste trafficking detected . According to Eurostat, exports of all notified waste (hazardous and non-hazardous) tripled between 2001 and 2016, from 6.3 million tonnes in 2001 to 21.6 million tonnes in 2016. Within these, the amount of hazardous waste shipments from EU Member States to either other EU countries or non-EU countries increased by 63%, from 4.0 million tonnes in 2001 to 6.5 million tonnes in 2016, and hazardous waste shipments are largely intra-EU. This increase might indicate, if the correlation between the growth in legal and illegal waste shipments is correct, that criminal waste activities are increasing in the EU.

However, these figures mainly concern cases of missing or incomplete formalities and/or other violations that do not necessarily constitute environmental crime.

Results from IMPEL-TFS enforcement actions related to shipment of waste in 2008-2011 (EA II), 2012-2013 (EA III) and 2014-2015 (EA IV) also provide an indication of the Waste Shipment Regulation violation rate. In 2014-2015, 77% of illegal shipments were intra-EU. The proportion was similar in the previous project (70% intra-EU).

Source: Commission reports of 17 December 2015 and 22 November 2018 on the implementation of Regulation (EC) No 1013/2006 of 14 June 2006 on shipments of waste - Generation, treatment and transboundary shipment of hazardous waste and other waste in the Member States of the European Union (2010-2012; 2013-2015).

As part of their reporting obligations to the Commission pursuant to Article 51(2) of the Waste Shipment Regulation, Member States provided their records of illegal waste shipments per year. Reported illegal shipments of waste by Member States show a slightly decreasing trend in the period 2010-2012, followed by a slight increase from 2013 to 2015 (with a peak in 2014). The amount of illegal waste shipments reported varies significantly from one Member State to another. However, the number of detected illegal waste shipments remains in the range of 700-1,000 in the EU from 2010 to 2015. These figures are likely not to reflect the real picture as many cases go undetected.

As explained above under Section 4 – ‘Baseline and Points of Comparison’ – this evaluation assesses in particular trends in wildlife and waste crime, as they belong to the best-documented and largest areas of illegal trade.

However, in a number of Member States the maximum levels of available financial sanctions are very low, so that even if complemented by sanctions other than fines, their deterrent effect could be doubted. This is true especially for legal persons, where the majority of Member States do not link the financial penalties to the financial situation of the legal person, or the financial gain that was obtained through the criminal offence.

Based on the available data and the views of the stakeholders, it can be concluded that the effectiveness of the Directive with regard to a dissuasive sanction system is dependent on its practical implementation. It must be kept in mind that criminal law can only be part of an overall effective, proportional sanction system also involving administrative law and civil law.

Despite the growing involvement of legal persons in environmental crime, the majority of respondents to the targeted consultation questionnaire considered that the Directive resulted in practice in no, or only a minimal, increase in the imposition of liability for environmental crime on legal persons.

Although information suggests an upward trend in the imposition of liability on legal persons, the available statistical data cover fewer than a quarter of Member States.

The manner in which legal persons are held liable for environmental offences is essential for the effectiveness of the Directive. 60% of respondents to the targeted consultation questionnaire observed an increase in the involvement of legal persons in environmental crime, and one stakeholder estimated that 75% of environmental crime is committed by legal persons. This is also in line with the findings of a number of studies and reports in the area from different stakeholders such as NGOs, Europol, EFFACE reports and professional networks.

In conclusion, there are no common trends in the Member States. Conviction trends appear to be influenced by a number of factors other than the availability of criminal sanctions, such as the quality of the practical implementation of the Environmental Crime Directive in the respective Member State or the extent to which environmental crime is dealt with under administrative law. Some Member States have indicated that they rely on administrative sanctions. These, however, do not contain the same degree of social disapproval as criminal sanctions, and the majority of the stakeholders consulted has confirmed that criminal sanctions are indispensable to complement administrative sanction systems.

The reasons behind the trends in the individual Member States are diverse, and reflect the uneven level of enforcement and prioritisation of environmental crime across Member States. In PT the upwards trend might be explained by the existence of specialised police bodies, the efficient use of digitalisation, the active participation of NGOs in criminal proceedings, and proactive cooperation with Spain and Brazil. In ES, town planning and land-use planning crimes are considered as priorities and constitute the majority of environmental crimes for which there is a conviction. However, these are not necessarily environmental crimes covered by the Directive. In CZ, where the trend has remained quite stable, the total number of criminal prosecutions of waste crimes is extremely low: the vast majority of cases of environmental violations are dealt with under administrative law (99%). In LV, the number of environmental crime cases is very small and remains stable: most cases are classified as economic crimes or administrative cases. The main types of environmental crime are illegal hunting, illegal cutting and illegal fishing, and there are no specific national programmes with regard to waste crime. In HR, where there is a decrease in the number of convictions, waste crime is not a priority and is often categorised as a misdemeanour. There are no measures to address environmental crime, such as a national strategy, specialisation, budget, international cooperation, and the use of special investigation techniques. However, HR has made an effort in capacity building, but the enforcement chain seems to collapse at the level of judges. In DE, several sources confirm that the number of reported environmental crimes has decreased . The decline was attributed to an enforcement deficit, e.g. ineffective controls, resource constraints, and prioritisation of other issues .

In two Member States – ES and to a lesser extent PT – the number of convictions for environmental crime has shown an upward trend since the adoption of the Directive, based on the figures provided by the national authorities. In other Member States, such as HR and DE, there has been a decrease in the number of convictions for environmental crime, and in Member States such as CZ or LV, the number of convictions has remained quite stable from 2008 to 2018.

Source: Member States data sheet, provided by national ministries for HR, CZ, DE, LV, PT, and, for ES: 8th Round of Mutual Evaluations - 'The practical implementation and operation of European policies on preventing and combating Environmental Crime'. Report on Spain, 2019, p.24.

The graph below illustrates the trends in the total number of convictions for environmental crimes before and after the adoption of the Directive in a sample of six Member States. The Member States selected provided statistical material on conviction data for the period from 2008 to 2010 (the baseline) and for the period afterwards up to 2016 - 2018. The Member States were also selected to demonstrate the variety of trends (most visible upward and downward trends, and stable numbers of convictions over the period) across the EU.

Also, the levels of detection, prosecution and conviction of environmental crimes can be an indicator of whether a criminal sanctioning system is a deterrent in practice and is effective in tackling environmental crime (see evaluation question No. 5).

Therefore, although there are strong indications that sanction levels are not a deterrent in a number of Member States, especially for legal entities, the Commission has not launched any infringement procedures against Member States. The Commission, following the findings of the 2013 Milieu Implementation Report flagging a number of Member States for non-compliant sanction levels, did launch informal proceedings against nine Member States. As a result, six Member States raised their sanction levels. For three Member States, the Commission accepted the explanations given. Further action, such as infringement procedures according to Article 258 TFEU, does not appear to have any prospects of success, in the absence of precise minimum or maximum sanction levels defined in the Directive.

As mentioned above, there is an agreement that the effectiveness and proportionality of a criminal sanction system depend not only on the financial penalties and prison sentences, but also on accessory sanctions and the interplay with administrative and civil sanctions in each Member State. In addition, the economic and social situation in each Member State and their respective legal traditions determine what level of criminal sanction can be regarded as a deterrent there. The Advocates-General, with regard to the annulments of two Framework Decisions in the field of environmental law by the CJEU, have expressed that Member States are generally better placed than the Community to ‘translate’ the concept of effective, proportionate and dissuasive sanctions into their respective legal systems and social contexts.

Stakeholders from the police and judiciary in particular said that sanction levels in theory were sufficient, but the problem was practical application by the judicial authorities, due to a lack of knowledge of the harmfulness of environmental crime and to specialisation. The deterrent effect is undermined if many cases are dismissed or only very lenient sanctions are imposed even if more severe sanctions are available under national law or where sentences handed down are suspended . In an interview, Europol highlighted the importance of ensuring that offenders actually serve their sentence.

According to the 2019 Finnish Presidency Report, Member States would rather improve the situation by supporting measures to improve practical implementation rather than further harmonise sanction levels.

In its report to inform this evaluation, the EESC points out that most categories of stakeholders consulted (employers, workers and other civil society organisations) hold that to be a deterrent, a sanctioning system must include accessory sanctions such as removing the criminal proceeds and an obligation to repair the environmental damage. Unlike the other stakeholder groups, only business representatives consider that the criminal sanctions in place are effective, proportionate and dissuasive and do not need to be improved. The EESC recommends introducing minimum sanction levels for natural and legal persons.

The results of the targeted consultation questionnaire show that respondents considered sanctions for legal persons for waste offences and other environmental offences as a deterrent to only a moderate extent, and not even that with regard to wildlife offences .

If the prison sentences contained in the initial proposal for this Directive are taken as a benchmark, the 5-year threshold is not met by several Member States under each Article 3 offence, for which this threshold was required (Article 3(a)–(f) offences).

Prison sentences are available in all Member States, except

The initial proposal of the Directive contained a minimum maximum prison sentence of at least 5 years for the most serious forms of Article 3 criminal offence.

·BG in general and in particular for Article 3(c) offences;

From a comparison of fines provided for across all Member States, it could be concluded that a maximum fine below EUR 100 000 is, under all circumstances, unlikely to be dissuasive given that environmental crime can generate enormous profits: the table under Section 5.1.2 – ‘Sanctions applicable to natural persons’ shows that almost all Member States provide for maximum levels considerably above EUR 100 000. The graph under Section 6.1.1. – ‘Level Playing Field’ under the heading ‘financial fines’ illustrating Member States sanctions levels for Article 3(h) offences shows that the median is around EUR 300 000. Moreover, the most lenient minimum maximum fine for legal persons provided for in the initial proposal of the Directive was EUR 300 000.

A number of Member States even remain under the EUR 500 000 threshold for serious cases as defined in the initial proposal – at least for some offences (RO, FR for Article 3(e) offences, IT)

·IT for all Article 3(c), (f), (g), (h) offences, in addition to the fact that no sanction is set in relation to Article 3(d) offences;

·IE in relation to all offences, except Article 3(a) and (b) offences;

In this evaluation, the initial proposal of this Directive was consulted, as it contained definitions of minimum maximum levels of sanctions, which can be used as a benchmark for what could be regarded as effective, proportionate and dissuasive. According to the proposal, for legal persons, the criminal or non-criminal minimum maximum sanction levels for the most serious forms of crime – committed intentionally or entailing the death or serious injury of a person – should be EUR 750 000. The initial proposal also suggested linking the amount of the sanction to be imposed to the financial situation of the legal entity or the financial gain it has achieved through the offence.

A number of factors could be considered to measure the effectiveness, proportionality and dissuasiveness of financial fines, such as their level as compared to the level of fines for other crime categories in a national system, the relation of the level of the available maximum fine to the national minimum wage, or the role which financial fines play in the range of all penalties available to judicial authorities in a national system (financial fine, imprisonment, accessory sanctions).

Dissuasiveness: criminal sanctions prevent the offender from repeating the offence, and prevent other potential offenders from committing a similar offence. It is also important that the sanctions more than outweigh the benefits/gains expected by the offender.

Proportionality: criminal sanctions adequately reflect the gravity of the violation and do not go beyond what is necessary to achieve the desired objective. Taking account of the existence of aggravating and mitigating circumstances is essential in this respect, along with other elements that provide the criminal judge with the necessary tools to adapt the actual sanctions to the circumstances of the case.

Effectiveness: criminal sanctions are sufficient to ensure compliance with law. Criminal sanctions should, however, be considered as part of a sanctioning system that also includes administrative and civil sanctions, as well as accessory sanctions.

Article 5 of the Directive requires that criminal offences are punishable by effective, proportionate and dissuasive criminal penalties. The criteria of effectiveness, proportionality and dissuasiveness have been the subject of much debate. Based on case-law and literature, the following definitions apply:

5. To what extent has the Directive resulted in a dissuasive criminal sanctioning system in the Member States in practice and a more effective tackling of environmental crime?

Sanction levels have been stepped up in most Member States following the Directive. However, large differences in sanction levels persist.

However, the undefined legal terms included in the definitions of the criminal offences, combined with the leeway given to Member States when it comes to the liability of legal persons, leave much room for different approaches and practices. This does not ensure that Member States always have a common understanding of the kind of conduct that is criminal. Some form of guidance appears to be necessary, to facilitate the work of practitioners and to ensure smooth cross-border cooperation.

The Directive has created a level playing field, with an EU framework of a common set of criminalised offences.

As a result, there are no indications that individual Member States can be singled out as ‘safe havens’. Even if particular Member States may have particular low sanction levels, there are many other factors regarding sanctioning that play together in creating or preventing a safe haven situation. As statistical data on the sanctioning practice in the Member States is not available, an in-depths comparative analyses could not be done. In any event, as set out in the Council 8th Mutual Evaluations final report, there are many practical implementation issues in all Member States that hinder effective law enforcement. Therefore, efforts in all Member States are necessary to improve the situation.

According to the results of the Council 8th Mutual Evaluations, all Member States have shortcomings at one or more points of the criminal law enforcement chain, with each missing point alone leading to inefficiencies in the fight against environmental crime.

Opinions of businesses and industry representatives were sought through several means throughout the evaluation process . Businesses did not report any issues with particular Member States. Overall, businesses were more positive on the effectiveness of the Directive than other stakeholder groups, maybe because they focus primarily on the impact of administrative law and the resulting administrative burden for businesses. NGOs advocating for the protection of the environment were consulted on the particular issue of safe havens. None was aware of individual safe havens in the EU, but all pointed to enforcement deficits in most Member States. We do not have evidence that companies are moving to Member States because of their low sanction levels.

As with enforcement of the Directive, the quality of administrative law enforcement depends on sufficient resources, training, specialisation, cooperation and information sharing between the competent authorities. However, the assessment of this situation in the different Member States was outside the scope of this evaluation.

The prevention of environmental crime and safe havens depends not only on the quality of criminal law enforcement but also on environmental administrative law enforcement. Environmental administrative law contains rules and safeguards to ensure compliance and prevent environmental offences, such as common standards, licensing, controls, inspections and other compliance monitoring. For example, following the big accidents where the seagoing vessels Erika (France 1999) and Prestige (Spain 2002) caused significant oil pollution of coastal areas, maritime safety rules have been heavily stepped up and more stringent inspection, control and enforcement and control procedures have been put in place. Similar disasters have been able to be prevented.

As has been stated above, systematic statistical data on implementation, in particular on the type and level of sanctions imposed, are not available in most Member States.

The Court also sentenced certain offenders to a 5-year ban on carrying out a professional activity related to fishing glass eels. Property, assets and bank accounts of an amount of EUR 700 000 were confiscated, including a boat, a motorbike, a car, a luxury watch and more than EUR 300 000 . The imposed financial penalty only amounted to EUR 30 000.

The Regional High Court of Nantes, in a decision of 7 February 2019, sentenced the traffickers to 2 years imprisonment and to fines of between EUR 5 000 and EUR 30 000.

In addition, confiscation or forfeiture can serve as a very dissuasive tool, as the value of property and assets confiscated can reach amounts surpassing the benefits of a crime. Such measures are regulated as part of national environmental legislation in some Member States.

On the other hand, Member States with low legal penalties might provide for additional accessory sanctions to be imposed in criminal proceedings. These can even be more of a deterrent than the actual criminal sanction. In FR, although the sanctions applicable to natural persons can be rather low for some environmental crime categories, the criminal judge would typically also order the remedy of the environmental damage and confiscation of the proceeds and benefits of the crime.

In Member States with higher sanction levels, criminal judges do not always make full use of the available sanction range. Prison sentences may be handed down but suspended in practice . Also – depending on the practice in the Member States – prison sentences may systematically not be fully served. Some states do not provide for prison sentences for environmental crime at all (see below under 6.1.2. – BG, SE and UK for some categories of environmental crime). High criminal sanction levels are also not meaningful in Member States where environmental cases are mainly dealt with under administrative law, or where most cases remain undetected or do not make it to the criminal courts.

In fact, in several Member States sanction levels appear low, given that illicit gains from environmental crime can amount to millions of euros. This is certainly the case when the maximum fine applicable to natural persons is below EUR 100 000, or for legal persons below EUR 500 000 (see explanations and graphs under Section 6.1.2. – ‘A Dissuasive Sanctioning System’ under the headings ‘sanctions for legal persons’ and ‘financial sanctions for natural persons’).

Approaches on how to determine the fine differ considerably between Member States. Only few Member States link sanction levels to the financial gain of the offender or turnover of the legal person (HU, NL) or the damage caused (ES). PL limits the amount to not more than 3% of the annual turnover. Other Member States calculate on the basis of day units. The highest maximum fine can be imposed in CZ (almost EUR 60 million) and the lowest in EL, RO, CY, BG, FR and LU for some offences and FI (below EUR 1 million, or even below EUR 500 000).

For the offences for which the prescribed punishment for a natural person is under three years of imprisonment, the maximum fine is EUR 500,000. For the offences for which the prescribed punishment for a natural person is over three years, only the minimum fine of EUR 50,000 is prescribed for the legal person, which means that the maximum amount may reach EUR 1,000,000.

The daily fine unit is set by the court, between EUR 100 and 10,000.

Fine between EUR 250 and 1,250,000, but not higher than 3% of the annual turnover of the entity

Pursuant to the Act on Economic Offences, fine up to EUR 870,000. If the offence is punishable by a fine in the sixth category and that category does not permit an appropriate penalty, a fine may be imposed up to a maximum of 10% of the annual turnover of the legal person in the business year pre