COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE EVALUATION of the DIRECTIVE 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law (ENVIRONMENTAL CRIME DIRECTIVE)
Date: 2020-10-28
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: criminal law, environmental liability, environmental offence, environmental protection, pollution control measures

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 28.10.2020  SWD(2020) 260 final  COMMISSION STAFF WORKING DOCUMENT  EXECUTIVE SUMMARY OF THE EVALUATION  of the       DIRECTIVE 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law    (ENVIRONMENTAL CRIME DIRECTIVE) {SEC(2020) 373 final} - {SWD(2020) 259 final}  
 
 
I. 

Introduction 

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

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

II.  Methodology and challenges 

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

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

III. 

  Effectiveness 

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

There is evidence of some progress towards this objective of the  Directive.  The Directive  
provided  a  set  of  common  definition  of  what  can  constitute  environmental  crime  which 
facilitates cross-border cooperation. However, the Directive’s definitions contain a number of 
legal  terms  (such  as  ‘negligible  quantity’  and  ‘significant  damage/deterioration’)  that  have 
led  to  different  interpretations  in  the  Member  States,  which  could  hamper  cross-border 
cooperation.   
The Directive has ensured that legal persons1 can be held liable for breaches of environmental 
law in the Member States. However, the decision as to whether liability should be criminal or 
non-criminal  has  been  left  to  individual  Member  States’  discretion.  Non-criminalisation  in 
some Member States with regard to offences committed by legal persons could impede cross-
border cooperation.  

1 As opposed to natural persons. A  legal person is a corporate entity that is distinct from its members and  has 
been granted certain rights by law.  

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Level playing field – deterrent sanctions 

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

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

Reduction of illegal trade 

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

Judicial cooperation 

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

Practical enforcement  

The  Directive’s  effectiveness  depends  largely  on  how  effectively  it  is  implemented  at 
Member State level. A number of factors play a significant role in effective law enforcement 
on the ground such as: the level of prioritisation, training and specialisation, the allocation of 
resources;  cooperation  and  the  exchange  of  relevant  information,  the  existence  of  an 
overarching  national  strategy  to  combat  environmental  crime  involving  all  levels  of  the 
enforcement chain; the interplay of administrative and criminal sanctioning systems as well 
as cross-border cooperation.  

The  statistical  data  available  on  enforcement  and  the  imposition  of  penalties  for 
environmental  crimes  are  very  limited.  However,  implementation  in  practice  is  deficient 
across the whole chain of enforcement levels, as many studies and reports in this field have 
demonstrated.  

Efficiency  

Overall, there has not been any noteworthy increase in costs (budget, training, staffing levels) 
across  the  EU  or  in  particular  Member  States  that  might  be  attributable  to  the  Directive. 
Member States that have set up specialised units or recruited specialist staff have done so not 
in response to the Directive, but rather because of a generally greater awareness of the need 
level  of  practical 
for  better  environmental  protection.  The  currently 
implementation suggests that investment and the resources allocated could be levelled up.  

inadequate 

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Relevance  

Before  the  adoption  of  the  Directive,  there  was  a  need  to  combat  growing  environmental  
crime  and  its  adverse  effects  on  water,  air,  soil,  habitats,  people,  flora  and  fauna,  which 
extend  beyond  the  borders  of  individual  Member  States  and  the  EU.  Existing  sectoral 
administrative  law  to  protect  the  environment  was  deemed  inadequate,  as  environmental 
crime was still on the increase. Criminal law adds a large measure of social disapproval and 
therefore acts as a more effective deterrent than administrative law alone. This need and the 
corresponding objectives of the Directive remain relevant.  

The  Directive  lacks  provisions  to  support  its  specific  objectives.  Currently,  there  are  no 
provisions  to  foster  cross-border  cooperation.  Nor  are  there  any  provisions  to  address 
organised  crime.  Equally,  a  functioning  mechanism  for  including  emerging  types  of 
environmental crime or areas of crime which have become a source of greater concern (such 
as man-made forest fires, illegal logging or the illegal timber trade), is missing. 

Coherence  

The  annexes  defining  the  material  scope  are  largely  outdated  and  a  feasible  mechanism  to 
ensure  that  new  relevant  legislation  comes  under  the  scope  of  the  Directive  is  missing;  the 
Directive does not cover instruments such as the EU Timber Regulation, the Invasive Species 
Regulation  and  the  REACH  Regulation.  Such  inconsistencies  might  grow  over  time,  as 
environmental 
is  constantly  changing.  Inconsistencies  also  occur  where 
substantive ecological damage goes unpunished because it did not violate any environmental 
legislation. 

legislation 

The Directive is  generally consistent with other EU criminal law legislation. However, as a 
pre-Lisbon  instrument,  it  could  benefit  from  the  possibilities  the  Lisbon  Treaty  offers  for 
introducing more and more detailed rules, to achieve its objectives. Such rules might apply, 
for instance, to types and levels of sanctions, investigative tools, and jurisdiction.  

The Framework Decision on organised crime, the Anti-Money Laundering Directive and the 
Confiscation Directive, e.g.,  cover environmental crime only under certain conditions, which 
are not met in all Member States.  

EU added value  

The Directive has provided added value beyond what  could  have been achieved at  national 
level. It has created a basic level playing field as regards definitions of environmental crime, 
to  tackle  breaches  of  environmental  legislation.  This  is  a  prerequisite  for  cross-border 
cooperation,  which  is  essential  for  successfully  combating  environmental  crime.  EU  action 
remains  necessary,  as  –  given  the  different  national  traditions  of  criminal  law  and  constant 
changes  in  EU  environmental  legislation  –  a  joint  EU  framework  on  environmental  crime 
cannot be expected to endure without action at EU level. The finding that the Directive has 
not fully met its objectives and that – despite some progress – significant divergence remains 
between the Member States suggests that continued EU action is necessary and that it should 
be based on the EU’s new competences in the field of criminal law under the Lisbon Treaty.  

IV.  Room for improvement 

1  Measures could be considered to gather statistics and data on environmental crime in a 
consistent manner throughout the European Union and reported to the Commission. 

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2  The interpretation of some legal terms needing further definition in practice could be 

facilitated. 

3  More could be done to standardise the level of sanctions across the Member States, in 
respect of the Member States’ national legal traditions and criminal law systems. 

4  Additional sanctions and sanctions linked to the financial situation of legal persons could 

be considered. 

5  The Directive’s scope is linked to the environmental instruments in its annexes. This 

approach could be reconsidered. 

6  The scope of the Directive could be extended to cover more or new areas of environmental 

crime. 

7  The Directive could do more to address cross-border cooperation and organised crime.  
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It could be considered to clarify the relationship between criminal and administrative 
sanctions. 

9  Measures to improve practical implementation could be considered (e.g. specialisation of 

practictioners).  

10  More measures to heighten public awareness of environmental crime could be considered. 

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