Proposal for a Directive of the European Parliament and of the Council on the protection of the environment through criminal law {SEC(2007) 160} {SEC(2007) 161}
Date: 2007-02-09
Institutions: European Commission
Subjects: EU environmental policy, criminal law, criminal liability, environmental liability

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 9.2.2007 
COM(2007) 51 final 

2007/0022 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  

on the protection of the environment through criminal law 

(presented by the Commission) 

{SEC(2007) 160} 
{SEC(2007) 161} 

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EXPLANATORY MEMORANDUM 

1)  CONTEXT OF THE PROPOSAL 

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•  Grounds for and objectives of the proposal 

In  order  to  guarantee  a  high  level  of  protection  of  the  environment,  an  objective 
recognized  by  the  EC  Treaty  (Article  174  §2  EC),  the  increasing  problem  of 
environmental crime must be tackled.  

This proposal replaces the proposal for a Directive of the Parliament and the Council 
on  the  Protection  of  the  Environment  through  Criminal  Law  (2001/0076(COD))  as 
amended after the first reading of the European Parliament, in order to implement the 
findings  of  the  European  Court  of  Justice  in  its  judgment  of  13  September  2005  (C-
176/03, Commission v Council) which annulled the Framework Decision 2003/80/JHA 
on the protection of the environment through criminal law.  

According to the judgment, the Community may take measures relating to the criminal 
law of the Member States which it considers necessary in order to ensure that the rules 
it lays down on environmental protection are fully effective.  

The  Community  and  the  Member  States  have  adopted  numerous  acts  of  legislation 
aiming  at  protecting  the  environment.  However,  various  studies  show1  that  the 
sanctions  currently  in  place  in  the  Member  States  are  not  always  sufficient  to 
effectively implement the Community's policy on environmental protection. Criminal 
sanctions are not in force in all Member States for all serious environmental offences, 
even  though  only  criminal  penalties  will  have  a  sufficiently  dissuasive  effect  for 
several reasons:  

First,  the  imposition  of  criminal  sanctions  demonstrates  a  social  disapproval  of  a 
qualitatively different nature compared to administrative sanctions or a compensation 
mechanism under civil law.  

Secondly,  administrative  or  other  financial  sanctions  may  not  be  dissuasive  in  cases 
where the offenders are impecunious or, on the contrary, financially very strong. Prison 
penalties might be required in such cases.  

Furthermore, the means of criminal investigation and prosecution (and of mutual legal 
assistance between Member States) are more powerful than tools of administrative or 
civil law and can enhance the effectiveness of those procedures.  

Finally,  there  is  an  additional  guarantee  of  impartiality  because  investigating 
authorities, i.e. other authorities, than those administrative authorities that have granted 
exploitation  licences  or  authorisations  to  pollute  will  be  involved  in  a  criminal 
investigation.  

Apart from the fact that the types of sanctions applicable differ from Member State to 

1 

The  most  important  studies  can  be  found  on  the  DG  Environment's  environmental  crime  website  at 
http://ec.europa.eu/environment/crime/index.htm#studies.  

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Member  State,  there  are  also  significant  differences  regarding  the  levels  of  sanctions 
that  are  applied  to  similar  or  identical  offences.  Environmental  crime  often  has  a 
transboundary  nature  or  impacts.  Offenders  are  therefore  currently  in  a  position  to 
exploit the existing differences between Member States' legislation to their advantage. 
Therefore, the problem needs to be addressed through action at Community level.  

•  General context 

In  1998  the  Council  of  Europe  adopted  the  Convention  on  the  Protection  of  the 
Environment through Criminal Law. 

The European Council held in Tampere in October 1999 asked for efforts to agree on 
common definitions, incriminations and sanctions for a limited number of particularly 
relevant crime sectors, including environmental crime. 

In  February  2000,  the  Kingdom  of  Denmark  presented  an  initiative  for  a  Framework 
Decision on combating serious environmental crime.  

The  Justice  and  Home  Affairs  Council  agreed  on  28  September  2000  that  such  an 
acquis on environmental offences should be established.  

On 13 March 2001 the Commission adopted a proposal for a directive on the protection 
of the environment through criminal law. The purpose of the proposed directive was to 
ensure a more effective application of Community legislation on the protection of the 
environment by establishing throughout the Community a minimum set of offences.  

The European Parliament adopted its report on the proposal in first reading on 8 April 
2002. 

On  30  September  2002  the  Commission  adopted  an  amended  proposal  including 
several of the amendments proposed by the European Parliament. 

The  Council  did  not  discuss  the  Commission's  proposal,  but  instead  adopted  on  27 
January 2003, on the initiative of Denmark, the Framework Decision 2003/80/JHA on 
the protection of the environment through criminal law. 

The European Court of Justice annulled this Framework Decision in its judgment of 13 
September  2005  (C-176/03)  for  infringing  Article  47  EU,  holding  that  on  account  of 
both their aim and content, Articles 1-7 of that Framework Decision have as their main 
purpose the protection of the environment and could have been properly adopted on the 
basis of Article 175 EC. 

On 30 November 2005 the Commission adopted a Communication outlining its views 
on the consequences of the judgment in case C-176/03, including the need to adopt a 
new legislative proposal on environmental crime.  

In  the  light  of  the  judgment  it  is  necessary  to  withdraw  the  proposal  of  2001  for  a 
Directive on the Protection of the Environment through Criminal Law, and to present a 
new  proposal  making  provision  for  the  content  of  Articles  1  to  7  of  the  annulled 
Framework  Decision.  Certain  offences  will  need  to  be  modified,  taking  into  account 
developments  in  the  Community's  environmental  legislation.  Furthermore,  some 
additional  elements  considered  necessary  to  ensure  an  effective  protection  of  the 
environment have been included, notably the approximation of applicable sanctions for 
particularly serious environmental crimes. 

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As a follow-up to the ECJ case 176/03, the Commission intends to present, later in 
2007, a proposal for a directive amending Directive 2005/35/EC on ship-source 
pollution and on the introduction of penalties for infringements.  

•  Existing provisions in the area of the proposal 

Even  though  environmental  legislation  requires  in  various  cases  that  Member  States 
adopt  dissuasive, effective  and proportionate sanctions for breaches of environmental 
law,  there  are  no  provisions  that  require  Member  States  to  lay  down  specifically 
criminal sanctions for serious environmental offences. 

•  Consistency with the other policies and objectives of the Union 

The  proposed  Directive  respects  the  fundamental  rights  and  observes  the  principles 
recognised by the Charter of Fundamental Rights of the European Union. In particular, 
it has been drafted in accordance with the principles on justice as set out in Chapter VI 
of the Charter and seeks to promote the integration into Community policies of a high 
level  of  environmental  protection  in  accordance  with  the  principle  of  sustainable 
development as laid down in Article 37 of the Charter. 

2)  CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

•  Consultation of interested parties 

The  problem  of  environmental  crime  has  been  discussed  in  various  international  and 
European fora for many years. 

The Commission organised a public conference on environmental crime in November 
2003  and  supported  a  workshop  on  the  issue  held  by  Royal  Institute  of  International 
Affairs in London in 2002. Additional expert meetings on the specific crime of illegal 
trade  in  endangered  species  have  been  held  in  2001  in  Frankfurt  and  in  2004  in 
Budapest.  

Further consultation of interested parties was not deemed necessary and feasible in this 
case.  Since  the  annulment  of  Framework  Decision  2003/80/JHA  by  the  European 
Court of Justice on 13 September 2005 there has been a legal vacuum in the field of 
environmental crime that needed to be filled as quickly as possible.  

•  Collection and use of expertise 

A  number  of  workshops,  conferences  and  expert  meetings  have  been  held  on  the 
subject in the last years which provided information and helped to shape this proposal. 

•  Impact assessment 

Various options were considered in the impact assessment: the possibility of no action 
on  EU  level,  the  possibility  to  improve  cooperation  between  the  Member  States 
through  voluntary  initiatives,  the  possibility  of  full  harmonization  of  environmental 
criminal  law  and  finally  a  limited  approximation  of  the  national  legislation  on 
environmental crime in the Member States.  

The  lack  of  action  or  non-binding  action  by  the  Community  legislator  would  not 

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achieve any positive impact on the level of protection of the environment and would 
not tackle the existing difficulties in addressing environmental crime, difficulties which 
are  rooted  to  a  significant  extent  in  the  differences  between  the  laws  of  the  Member 
States.  

Full harmonization of environmental criminal law would go beyond what is necessary 
and would ignore the fact that national criminal law is still strongly influenced by the 
respective  cultural  values  of  each  Member  State  so  that  a  certain  flexibility  in  the 
implementation is required. 

For  a  limited  approximation,  three  different  possible  measures  were  considered: 
harmonization  of  a  list  of  serious  offences,  harmonization  of  the  scope  of  liability  of 
legal persons, and approximation of the sanction levels for offences committed under 
aggravating  circumstances.  In  all  three  cases,  the  possible  impact  on  the  level  of 
protection  of  the  environment  as  well  as  police  and  judicial  cooperation  have  been 
assessed  very  positively,  whereas  the  costs  for  business  and  the  burden  on  public 
authorities would not be significant. 

The Impact Assessment report is accessible on 
http://ec.europa.eu/governance/impact/index_en.htm. 

3)  LEGAL ELEMENTS OF THE PROPOSAL 

•  Summary of the proposed action 

The  proposed  directive  establishes  a  minimum  set  of  serious  environmental  offences 
that  should  be  considered  criminal  throughout  the  Community  when  committed 
intentionally or with at least serious negligence. Participation in and instigation of such 
activities  should  equally  be  considered  a  criminal  offence.  The  scope  of  liability  of 
legal persons is defined in detail. 

The offences should be punishable by effective, proportionate and dissuasive criminal 
sanctions  for  natural  persons,  whereas  criminal  or  non-criminal  sanctions  shall  be 
applied to legal persons. 

For  offences  committed  under  certain  aggravating  circumstances,  such  as  having 
caused a particularly serious result or the involvement of a criminal organization, the 
minimum  level  of  maximum  sanctions  for  natural  and  legal  persons  is  subject  to 
approximation, too. 

•  Legal basis 

The  provisions  of  this  Directive  relate  to  the  protection  of  the  environment. 
Consequently, the legal base chosen is Article 175(1) of the EC Treaty. 

•  Subsidiarity principle 

The  subsidiarity  principle  applies  insofar  as  the  proposal  does  not  fall  under  the 
exclusive competence of the Community. 

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The  objectives  of  the  proposal  cannot  be  sufficiently  achieved  by  the  Member  States 
for the following reasons. 

Tougher  sanctions  in  individual  Member  States  would  not  tackle  the  problem 
effectively  because  perpetrators  could  easily  circumvent  those  Member  States  and 
operate from places with a more lenient legislation. 

Community action will better achieve the objectives of the proposal for the following 
reasons. 

The proposal will provide for a minimum standard at Community level on constituent 
elements  of  serious  environmental  criminal  offences,  a  similar  scope  of  liability  for 
legal  persons  as  well  as  levels  of  penalties  for  particularly  serious  environmental 
crimes. This will ensure that serious cases of environmental crime are dealt with in a 
similar manner in all Member States and that perpetrators cannot take benefit from the 
existing  differences  in  national  legislation.  It  will  also  facilitate  cooperation  between 
Member States in cases with cross- border implications. 

Community policy for the protection of the environment needs to be fully implemented 
throughout the Community. For this purpose sanctions need to be approximated. 

Environmental crime usually has cross-border implications, as it often involves trans-
boundary activities and often has trans-boundary effects such as the resulting pollution 
of the environment.  

The proposed directive only sets a minimum level of harmonisation with regard to the 
activities that should be considered criminal offences and approximates the minimum 
levels of penalties that should apply in the most serious cases when the offence causes 
a particularly serious result or is committed under aggravating circumstances.  

The proposal therefore complies with the subsidiarity principle. 

•  Proportionality principle 

The proposal complies with the proportionality principle for the following reasons: 

The  action  chosen  is  a  directive,  which  leaves  Member  States  a  high  degree  of 
flexibility in the implementation. According to Article 176 EC, Member States are free 
to maintain or introduce more stringent measures than those foreseen in the directive. 
For  instance,  they  may  establish  additional  offences,  extend  the  level  of  criminal 
culpability  to  simple  negligence  and/or  add  additional  types  and  higher  levels  of 
penalties. 

The implementation of the directive entails no significant financial and administrative 
burden  as  the  criminal  law  and  judicial  structures  already  exist  in  Member  States. 
Some additional burden for the Member States could result from a potential increase in 
prosecutions  and  criminal  proceedings,  but  at  the  same  time,  the  deterrent  effect  of 
higher sanctions should lead to a decrease of offences committed and thus reduce the 
number of criminal proceedings in the long run.  

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•  Choice of instruments 

Proposed instrument: Directive. 

Other means would not be adequate for the following reasons: 

A  directive  is  the  appropriate  instrument  for  this  action:  it  sets  a  binding  minimum 
standard for environmental protection through criminal law but leaves flexibility to the 
Member States when implementing the directive into national criminal legislation.  

4)  BUDGETARY IMPLICATION 

The proposal has no implication for the Community budget. 

5)  ADDITIONAL INFORMATION 

•  Correlation table 

The  Member  States  are  required  to  communicate  to  the  Commission  the  text  of 
national  provisions  transposing  the  Directive  as  well  as  a  correlation  table  between 
those provisions and this Directive. 

•  European Economic Area 

The proposed act concerns an EEA matter and should therefore extend to the European 
Economic Area. 

•  Detailed explanation of the proposal 

1. 

Definition of offences 

The  definition  of  offences  corresponds  largely  to  the  definitions  set  out  in  the 
Framework Decision 2003/80/JHA while taking into consideration some amendments 
of the European Parliament made to the original directive proposal and accepted by the 
Commission after the first reading.  

The majority of the offences are made conditional on the activities' result, i.e. that they 
cause or are likely to cause serious harm to persons or the environment.  

All offences but one require their "unlawful" commission, "unlawful" being defined as 
infringing  Community  or  Member  States  legislation,  administrative  regulations  or 
decisions by a competent authority aiming at the protection of the environment. In the 
only  autonomous  offence,  Article  3  (a),  the  result,  i.e.  death  or  serious  injury  of  a 
person,  is  so  serious  that  this  requirement  of  unlawfulness  is  not  needed  in  order  to 
justify criminalization.  

In  contrast  to  the  Framework  Decision,  the  offences  refer  to  "material"  instead  of 
"substance" (Article 3 (a) and (b)) as this is a more comprehensive term. Accordingly, 
the Commission had already rejected an amendment of the European Parliament for the 
original Directive proposal.  

In  correspondence  with  the  original  proposal,  an  additional  offence  regarding  the 

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unlawful significant deterioration of a protected habitat has been added. Furthermore, a 
special  offence  regarding  illegal  shipments  of  waste  has  been  included,  taking  into 
account new Community legislation. Illegal shipments of waste should be considered 
as criminal offences only in the serious cases, i.e. when they are carried out in a non-
negligible quantity and for profit. 

Several  offences  contain  relatively  vague  terms  such  as  "substantial  damage"  or 
"serious injury". Those terms are not defined and their appraisal is left to each Member 
State to interpret in the light of its traditions and legal system.  

The  conduct  described  is  to  be  considered  a  criminal  offence  when  committed 
intentionally  or  with  at  least  serious  negligence,  including  the  commission  as 
participator or instigator. 

2. 

Liability of legal persons 

As stated in the Framework Decision, Member States should ensure that legal persons 
can be held liable for the offences committed for their benefit by certain persons acting 
on their behalf or when the lack of supervision or control enabled those persons to act.  

It is not specified whether the liability of legal persons should be a criminal one. Thus, 
Member  States  that  do  not  recognise  the  criminal  liability  of  legal  persons  in  their 
national law are not obliged to change their national system.  

3. 

Sanctions 

Sanctions applied against environmental offences must be effective, proportionate and 
dissuasive, both for natural and legal persons.  

In  addition  to  this  requirement,  the  current  significant  differences  in  sanctions  in  the 
national  legislation  of  the  Member  States  make  it  necessary  to  foresee,  at  least  for 
particularly serious cases, an approximation of the levels of penalties corresponding to 
the seriousness of the offence. Without such approximation, perpetrators could exploit 
loopholes in the national legislation of Member States.  

The aggravating circumstances for which an approximation of penalties is foreseen are 
the particularly serious result of an offence, such as death or serious injury to a person 
or  substantial  damage  to  the  environment,  or  the  commission  of  the  offence  in  the 
framework  of  a  criminal  organisation.  Those  circumstances  are  generally  already 
considered  particularly  serious  in  the  national  criminal  laws  of  Member  States  and 
have already been provided for by other EU instruments.  

imprisonment, 

the  proposed  approximation  on  a 

three-step  scale 
Regarding 
corresponds to the conclusions of the Justice and Home Affairs Council of 25-26 April 
2002. The scales depend on the mental element (serious negligence or intent) and the 
respective aggravating circumstance. The system of fines for legal persons follows as 
well  a  three-step  approach  corresponding  to  the  one  developed  by  the  Justice  and 
Home  Affairs  Council  for  prison  sentences.  The  range  of  amounts  for  fines  for  legal 
persons  is  similar  to  the  one  agreed  on  by  the  Council  in  the  Framework  Decision 
2005/667/JHA on ship-source pollution.  

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Alternative sanctions are suggested for both natural and legal persons. Such sanctions 
may  be  more  effective  than  imprisonment  or  fines  in  many  cases  and  include  the 
obligation to reinstate the environment, the placing under judicial supervision, the ban 
on engaging in commercial activities or the publication of judicial decisions.  

Even  though  in  many  cases  confiscation  of  crime-related  objects  will  be  an  essential 
tool, the inclusion of a specific provision has not been considered necessary, as most of 
the  serious  environmental  offences  will  be  covered  by  the  scope  of  Framework 
Decision 2005/212/JHA on Confiscation of Crime-Related Proceeds, Instrumentalities 
and Property.  

4. 

Implementation Period 

The implementation period for Member States is [18] months, taking into account that 
notably Articles 3, 4, and 6 make largely provision for the content of Articles 2 to 6 of 
the  annulled  Framework  Decision  2003/80/JHA.  The  implementation  period  for  this 
Framework  Decision  ended  on  27  January  2005  so  that  Member  States  will  already 
have done a significant part of the required implementation work for this Directive. 

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2007/0022 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  

on the protection of the environment through criminal law 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Article 
175(1) thereof, 

Having regard to the proposal from the Commission2, 

Having regard to the opinion of the European Economic and Social Committee3, 

Having regard to the opinion of the Committee of the Regions4, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty5, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

According  to  Article  174(2)  of  the  Treaty,  Community  policy  on  the  environment 
must aim at a high level of protection. 

The Community is concerned  at the  rise in environmental offences  and  their  effects, 
which  are  increasingly  extending  beyond  the  borders  of  the  States  in  which  the 
offences are committed. Such offences pose a threat to the environment and therefore 
call for an appropriate response. 

Experience has shown that the existing systems of sanctions have not been sufficient 
to achieve complete compliance with laws for the protection of the environment. Such 
compliance  can  and  should  be  strengthened  by  the  application  of  criminal  sanctions, 
which demonstrate a social disapproval of a qualitatively different nature compared to 
administrative sanctions or a compensation mechanism under civil law.  

Common rules on criminal sanctions make it possible to use more effective methods 
of investigation and assistance within and between Member States than are available 
under administrative co-operation.  

2 
3 
4 
5 

OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 

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(5) 

(6) 

(7) 

(8) 

(9) 

By entrusting judicial authorities, rather than administrative authorities, with the task 
of  imposing  sanctions,  responsibility  for  investigating  and  enforcing  the  respect  of 
environmental  regulations  falls  to  authorities  which  are  independent  of  those  which 
grant exploitation licences and discharge authorisations. 

In order to achieve effective protection of the environment, there is a particular need 
for more dissuasive sanctions for environmentally harmful activities, which typically 
cause or are likely to cause substantial damage to the air, including the stratosphere, 
soil, water, animals or plants, including to the conservation of species.  

Failure to comply with a legal duty to act can have the same effect as active behaviour 
and should therefore be subject to corresponding sanctions, as well. 

Therefore,  such  conduct  should  be  considered  a  criminal  offence  throughout  the 
Community when committed intentionally or with serious negligence. 

In  order  to  achieve  effective  protection  of  the  environment,  participation  in  and 
instigation of such activities should also be considered a criminal offence.  

(10)  Environmentally  harmful  activities  should  be  punishable  by  effective,  proportionate 
and dissuasive criminal sanctions, which should also apply to legal persons throughout 
the Community, because environmental  offences are committed, to a large extent, in 
the interest of legal persons or for their benefit. 

(11)  Furthermore, the significant differences in the level of sanctions in the Member States 
make it necessary to foresee, under certain circumstances, an approximation of those 
levels corresponding to the seriousness of the offence. 

(12)  Such  an  approximation  is  particularly  important  where  the  offences  have  serious 
results  or  the  offences  are  committed  in  the  framework  of  criminal  organisations 
which play a significant role in environmental crime. 

(13)  As  this  Directive  provides  for  minimum  rules,  Member  States  are  free  to  adopt  or 
maintain more stringent provisions regarding the effective criminal law protection of 
the environment. 

(14)  Member States should provide information to the Commission on the implementation 

of this Directive, in order to enable it to evaluate the effect of this Directive.  

(15)  Since  the  objectives  of  the  action  to  be  taken,  namely  to  ensure  a  more  effective 
protection of the environment, cannot be sufficiently achieved by the Member States 
and can therefore be better achieved at Community level, the Community may adopt 
measures, in accordance with the principle of subsidiarity as set out in Article 5 of the 
Treaty. In accordance with the principle of proportionality, as set out in that Article, 
this  Directive  does  not  go  beyond  what  is  necessary  in  order  to  achieve  those 
objectives. 

(16)  This  act  respects  fundamental  rights  and  principles  as  recognised  notably  in  the 

Charter of fundamental rights of the European Union. 

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HAVE ADOPTED THIS DIRECTIVE: 

Article 1 
Subject matter 

This  Directive  establishes  measures  relating  to  criminal  law  in  order  to  protect  the 
environment more effectively. 

For the purpose of this Directive 

Article 2 
Definitions 

(a) 

(b) 

"unlawful"  means  infringing  Community  legislation  or  a  law,  an  administrative 
regulation or a decision taken by a competent authority in a Member State aiming at 
the protection of the environment.  

“legal  person”  means  any  legal  entity  having  such  status  under  the  applicable 
national law, except for States or other public bodies acting in the exercise of their 
sovereign rights and for public international organisations. 

Article 3 
Offences 

Member  States  shall  ensure  that  the  following  conduct  constitutes  a  criminal  offence,  when 
committed intentionally or with at least serious negligence: 

(a) 

(b) 

(c) 

(d) 

the discharge, emission or introduction of a quantity of materials or ionising radiation 
into air, soil or water, which causes death or serious injury to any person; 

the unlawful discharge, emission or introduction of a quantity of materials or ionising 
radiation  into  air,  soil  or  water,  which  causes  or  is  likely  to  cause  death  or  serious 
injury to any person or substantial damage to the quality of air, soil, water, animals 
or plants; 

the unlawful treatment, including disposal and storage, transport, export or import of 
waste, including hazardous waste, which causes or is likely to cause death or serious 
injury to any person or substantial damage to the quality of air, soil, water, animals 
or plants; 

the  unlawful  operation  of  a  plant  in  which  a  dangerous  activity  is  carried  out  or  in 
which dangerous substances or preparations are stored or used and which, outside the 
plant, causes or is likely to cause death or serious injury to any person or substantial 
damage to the quality of air, soil, water, animals or plants; 

(e) 

the  illegal  shipment  of  waste  as  defined  in  Article  2(35)  of  Regulation  (EC)  No 
1013/2006  of  the  European  Parliament  and  Council6  for  profit  and  in  a  non-

6 

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negligible  quantity,  whether  the  shipment  is  executed  in  a  single  operation  or  in 
several operations which appear to be linked; 

the  unlawful  manufacture,  treatment,  storage,  use,  transport,  export  or  import  of 
nuclear materials or other hazardous radioactive substances which causes or is likely 
to cause death or serious injury to any person or substantial damage to the quality of 
air, soil, water, animals or plants; 

the  unlawful  possession,  taking,  damaging,  killing  or  trading  of  or  in  specimens  of 
protected wild fauna and flora species or parts or derivatives thereof; 

the unlawful significant deterioration of a protected habitat; 

the unlawful trade in or use of ozone-depleting substances. 

(f) 

(g) 

(h) 

(i) 

Article 4 
Participation and instigation 

Member  States  shall  ensure  that  participation  in  or  instigation  of  the  conduct  referred  to  in 
Article 3 constitutes a criminal offence. 

Article 5 
Sanctions 

1. 

2. 

3. 

Member  States  shall  ensure  that  the  commission  of  the  offences  referred  to  in 
Articles  3  and  4  is  punishable  by  effective,  proportionate  and  dissuasive  criminal 
sanctions. 

Member States shall ensure that the commission of the offences referred to in Article 
3  (b)  to  (h)  is  punishable  by  a  maximum  of  at  least  between  one  and  three  years 
imprisonment  where  the  offence  is  committed  with  serious  negligence  and  causes 
substantial damage to air, soil, water, animals or plants. 

Member  States  shall  ensure  that  the  commission  of  the  following  offences  is 
punishable by a maximum of at least between two and five years imprisonment:  

(a) 

(b) 

(c) 

the  offence  referred  to  in  Article  3(a),  where  the  offence  is  committed  with 
serious negligence;  

the offences referred to in Article 3 (b) to (f), where the offence is committed 
with serious negligence and causes the death of or serious injury to a person; 

the offences referred to in Article 3 (b) to (h) where the offence is committed 
intentionally  and  causes  substantial  damage  to  air,  soil,  water,  animals  or 
plants; 

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(d) 

the  offences  referred  to  in  Article  3,  where  the  offence  is  committed  in  the 
framework  of  a  criminal  organisation  within  the  meaning  of  Framework 
Decision [… on the fight against organised crime]7. 

4. 

Member  States  shall  ensure  that  the  commission  of  the  following  offences  is 
punishable by a maximum of at least between five and ten years imprisonment:  

(a) 

(b) 

the  offence  referred  to  in  Article  3  (a),  where  the  offence  is  committed 
intentionally; 

the offences referred to in Article 3 (b) to (f) where the offence is committed 
intentionally and causes the death of or serious injury to a person. 

5. 

The  criminal  sanctions  provided  for  in  this  article  may  be  accompanied  by  other 
sanctions or measures, in particular: 

(a) 

the disqualification of a natural person from engaging in an activity requiring 
official  authorization  or  approval,  or  founding,  managing  or  directing  a 
company or a foundation, where the facts having led to his conviction show a 
high risk that the same kind of criminal activity may be pursued again; 

(b) 

the  publication  of  the  judicial  decision  relating  to  the  conviction  or  any 
sanctions or measures applied; 

(c) 

the obligation to reinstate the environment. 

Article 6 
Liability of legal persons 

1. 

Member States shall ensure that legal persons can be held liable for offences referred 
to  in  Article  3  where  such  offences  have  been  committed  for  their  benefit  by  any 
person, acting either individually or as part of an organ of the legal person, who has a 
leading position within the legal person, based on 

(a) 

a power of representation of the legal person, or 

(b) 

an authority to take decisions on behalf of the legal person, or 

(c) 

an authority to exercise control within the legal person. 

Member  States  shall  also  ensure  that  legal  persons  can  be  held  liable  for  their 
involvement as accessories or instigators in the commission of the offences referred 
to in Article 3. 

2. 

Member States shall also ensure that a legal person can be held liable where the lack 
of supervision or control, by a person referred to in paragraph 1, has made possible 
the  commission  of  an  offence  referred  to  in  Article  3  for  the  benefit  of  that  legal 
person by a person under its authority. 

7 

OJ L , , p. . 

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3. 

1. 

Liability  of  a  legal  person  under  paragraphs  1  and  2  shall  not  exclude  criminal 
proceedings against natural persons who are perpetrators, instigators or accessories in 
the offences referred to in Article 3. 

Article 7 
Sanctions for legal persons 

Member States shall ensure that a legal person held liable for an offence pursuant to 
Article  6  is  punishable  by  effective,  proportionate  and  dissuasive  sanctions,  which 
shall include criminal or non-criminal fines. 

2. 

The fines provided for in paragraph 1 shall be: 

(a) 

of  a  maximum  of  at  least  between  EUR  300  000  and  EUR  500  000  in  cases 
where an offence referred to in Article 3 (b) to (h) is committed with serious 
negligence and causes substantial damage to air, soil, water, animals or plants. 

(b)  of  a  maximum  of  at  least  between  EUR  500  000  and  EUR  750  000  in  cases 

where: 

i) 

the  offence  referred  to  in  Article  3  (a)  is  committed  with  serious 
negligence, or 

(ii) 

an offence referred to in Article 3 (b) to (h):  

- 

- 

is  committed  with  serious  negligence  and  causes  the  death  or 
serious injury of a person, or  

is  committed  intentionally  and  causes  substantial  damage  to  air, 
soil or water or to animal or plants, or  

(iii)  an  offence  referred  to  in  Article  3  is  committed  intentionally  in  the 
framework of a criminal organisation within the meaning of Framework 
Decision [… on the fight against organised crime]; 

(c) 

of a maximum of at least between EUR 750 000 and EUR 1 500 000 in cases 
where: 

(i) 

an offence referred to in Article 3 (a) is committed intentionally, or  

(ii) 

an  offence  referred  to  in  Article  3  (b)  to  (f)  is  committed  intentionally 
and causes the death or serious injury of a person. 

Member States may apply a system whereby the fine is proportionate to the turnover 
of  the  legal  person,  to  the  financial  advantage  achieved  or  envisaged  by  the 
commission of the offence, or to any other value indicating the financial situation of 
the legal person, provided that such system allows for maximum fines, which are at 
least  equivalent  to  the  minimum  for  the  maximum  fines.  Member  States  that 
implement  the  Directive  in  accordance  with  such  a  system  shall  notify  the 
Commission that they intend to do so.  

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3. 

4. 

Member States in which the Euro has not been adopted shall apply the exchange rate 
between  the  Euro  and  their  currency  as  published  in  the  Official  Journal  of  the 
European Union on […]. 

The sanctions provided for in this article may be accompanied by other sanctions or 
measures, in particular: 

(a) 

the obligation to reinstate the environment; 

(b) 

the exclusion from entitlement to public benefits or aid; 

(c) 

the  temporary or  permanent disqualification  from the practice  of industrial or 
commercial activities; 

(d) 

the placing under judicial supervision; 

(e) 

a judicial winding-up order; 

(f) 

the  obligation 
the 
consequences  of  conduct  such  as  that  on  which  the  criminal  liability  was 
founded; 

to  adopt  specific  measures 

to  eliminate 

in  order 

(g) 

the  publication  of  the  judicial  decision  relating  to  the  conviction  or  any 
sanctions or measures applied. 

Article 8 
Reporting 

By … at the latest, and every three years thereafter, Member States shall transmit information 
to the Commission on the implementation of this Directive in the form of a report.  

On  the  basis  of  those  reports,  the  Commission  shall  submit  a  report  to  the  European 
Parliament and the Council.  

Article 9 
Transposition 

1. 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions  necessary  to  comply  with  this  Directive  by  at  the  latest.  They  shall 
forthwith  communicate  to  the  Commission  the  text  of  those  provisions  and  a 
correlation table between those provisions and this Directive. 

When  Member  States  adopt  those  provisions,  they  shall  contain  a  reference  to  this 
Directive  or  be  accompanied  by  such  a  reference  on  the  occasion  of  their  official 
publication. Member States shall determine how such reference is to be made. 

2. 

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

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Article 10 
Entry into force 

This Directive shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union. 

Article 11 
Addressees 

This Directive is addressed to the Member States. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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