COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT REPORT Accompanying the document Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the protection of the environment through criminal law and replacing Directive 2008/99/EC
Date: 2021-12-15
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: criminal liability, cross-border cooperation, environmental law, environmental offence, environmental protection, environmental statistics, fight against crime, judicial cooperation in criminal matters in the EU, penalty, pollution control measures

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   EUROPEAN COMMISSION  Brussels, 15.12.2021  SWD(2021) 466 final  COMMISSION STAFF WORKING DOCUMENT  EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT REPORT  Accompanying the document Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  on the protection of the environment through criminal law and replacing Directive 2008/99/EC   {COM(2021) 851 final} - {SEC(2021) 428 final} - {SWD(2021) 465 final}  
 
 
Executive Summary sheet 
Impact Assessment for the review of the Environmental Crime Directive (Directive 2008/99/EC) 

A.  Need for action 

What is the problem and why is it a problem at EU level? 

This impact assessment follows the evaluation of the Environmental Crime Directive (ECD). Environmental crime 
has negative ecological, social and economic impacts and is the fourth most profitable area of crime globally, with 
total profits for criminals estimated to be around USD 260 billion every year. The ECD is the main horizontal EU 
instrument to protect the environment through criminal law. The  evaluation – finalised in 2020 – showed that the 
ECD  established  a  common  EU  framework  of  key  environmental  crime  categories,  but  that  in  practice  it  did  not 
have an effect. The ECD did not increase the number of convictions or the level of imposed sanctions in the Member 
States. The evaluation identified the following key specific problems:  
1) The scope of the ECD (defined in two annexes to the ECD and in a list of offences in Article 3 of the ECD) is 
outdated  and  is  defined  in  a  complex  way,  hindering  effective  investigations,  prosecutions  and  cross-border 
cooperation. 
2) Definitions of what environmental crime is are unclear and hinder effective investigation, prosecutions and cross- 
border cooperation between and within Member States. 
3) Sanction levels are not effective and dissuasive in all Member States.  
4) Cross-border cooperation is too limited. 
5)  Policymakers  and  practitioners  lack  awareness  of  the  nature  and  scale  of  environmental  crime  and  the 
effectiveness of law enforcement measures due to limited collection, processing and sharing of statistical data. 
6)  There  is  an  ineffective  enforcement  chain  on  environmental  crime,  inter  alia,  due  to  lack  of  training  and 
specialisation,  and  insufficient  coordination  and  cooperation  between  the  different  levels  of  environmental  law 
enforcement.  

What should be achieved? 

The initiative aims to achieve better protection of the environment through more effective detection, investigation, 
prosecution and sanctioning of environmental crime.  
More specifically, the objectives are to: 
1)  improve  the  effectiveness  of  investigations  and  prosecutions  by  updating  the  scope  of  the  Directive  and  by 
including a feasible and simple mechanism to keep the Directive up to date;  
2) improve the effectiveness of investigations and prosecutions by clarifying or eliminating vague terms used in the 
definitions of environmental crime in Article 3;  
3) ensure effective, dissuasive and proportionate sanction types and levels for environmental crime;  
4) improve the effectiveness of cross-border cooperation on environmental crime;  
5) improve informed decision-making on environmental crime through improved collection and sharing of statistical 
data; and  
6) improve the effectiveness of national enforcement chains (investigations, prosecutions, sanctioning).  

What is the value added of action at the EU level (subsidiarity)? 

Environmental crimes, such as serious forms of pollution of water and air, maritime pollution and the trafficking of 
chemicals,  waste  and wildlife typically  have cross-border effects.  Combating these cross-border  crimes requires a 
level  playing  field  across  the  EU  on  the  definition  of  environmental  crime  and  sanctions.  This  would  facilitate 
judicial cooperation between relevant Member State authorities. Perpetrators, including corporate offenders, would 
no longer be able to go unpunished by, for instance, choosing to operate from Member States with the most lenient 
legislation. 

B.  Solutions 

What are the various options to achieve the objectives? Is there a preferred option or not? If not,  
why not? 

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The Commission has developed a number of legislative and non-legislative policy  options. The following options 
were considered and discarded at an early stage: (1) to repeal the Directive; or (2) to address the identified problems 
through non-binding measures only, such as EU guidance on the interpretation of definitions and levels of sanctions.    
Based  on  the  assessment,  the  only  realistic  option  to  achieve  the  specific  objectives  identified  is  to  revise  the 
Directive.  This  would  not  exclude  supporting  non-legislative  measures  (‘main  option’).  Under  this  main  policy 
option,  the  following  sub-options  (‘options’)  have  been  identified  and  assessed  in  full  detail  in  the  impact 
assessment so as to address each specific objective. 

Objective 1 

  Option  1a:  Update  the  existing  list  of  legislation  in  the  annexes,  add  new  relevant  crime  categories  to 

Article 3; introduce the comitology procedure to keep the annexed updated. 

  Option  1b:  Refer  to  relevant  sectoral  legislation  in  general  terms  and  remove  the  annexes;  refine  the 
definition  of  what  constitutes  environmental  crime  in  the  Article  3  offences  and  add  new  relevant  crime 
categories.  

  Option 1c: Define environmental crime in the Directive without the requirement of a breach of relevant EU 

sectoral legislation. 

The preferred option is option 1b, as it adds more legal clarity on which breaches of sectoral legislation constitute 
environmental crime. In the future, the Directive must – as today – be updated by the European legislator, as a more 
simple mechanism – namely the comitology procedure – is not applicable to essential components of the Directive. 
The definition of environmental crime is an essential component.  

Objective 2  

  Option 2a: Define unclear terms in the Directive (e.g. ‘substantial damage’) more precisely. 
  Option  2b:  Eliminate  vague  terms,  such  as  for  example  ‘substantial  damage’,  and  criminalise  ‘risky 

behaviour’ (endangerment crime). 

  Option 2c: A combination of options 2a and 2b. 

The preferred option is option 2c.  

 Objective 3  

  Option 3a: Introduce minimum and maximum sanctions levels. 
  Option 3b: Option 3a plus aggravating circumstances and accessory sanctions. 
  Option 3c: Option 3b plus an obligation to link the level of fines to the financial situation of legal persons 

and/or illegal profits. 

The preferred option is option 3c.  

Objective 4  

A  package  of  provisions  directly  fostering  cross-border  cooperation,  such  as  harmonised  effective  investigative 
tools, an obligation to cooperate through Europol, Eurojust and OLAF, and rules on jurisdiction.  

Objective 5 

  Option 5a: Oblige Member States to  collect  and regularly report statistical data  on environmental crime to 

the Commission. 

  Option 5b: Option 5a plus an obligation on the Member States to collect and report statistical data according 

to harmonised common standards. 

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The preferred option is option 5b. 

Objective 6 
A package of obligations to foster practical implementation, such as the provision of targeted and regular training at 
all  levels  of  the  enforcement  chain,  overarching  national  environmental  crime  strategies  and  awareness-raising 
measures.  
What are different stakeholders' views? Who supports which option? 

The large majority of stakeholders, such as law enforcement practitioners and their EU level networks, EU agencies 
like Eurojust and Europol, NGOs, Member States, business and academia, agrees that the ECD needs improvements 
and  that  EU  action  is  necessary.  They  favour  revising  the  ECD  over  introducing  non-binding  measures  or  just 
updating the ECD’s scope. Almost all stakeholders agree with the options proposed under each specific objective, 
with one exception concerning the scope of the ECD (objective 1, option 1c – not chosen as preferred option, see 
above).This option would define environmental crime in the ECD independently of a breach of administrative law.  
However,  the  Member  States  and  academia  consulted  and  a  significant  number  of  industry  stakeholders  consider 
that the link between criminal law and administrative law is necessary to ensure legal certainty for businesses that 
comply  with  sectoral  legislation.  Other  stakeholders  support  decoupling  environmental  crime  from  sectoral 
legislation,  to  prevent  perpetrators  who  have  caused  very  severe  environmental  harm  from  escaping  criminal 
liability.  

C. Impacts of the preferred option 

What are the benefits of the preferred option (if any, other than the main ones)? 

According to the assessment, the preferred package of options would be effective in addressing the main problems 
and  in  meeting  the  general  and  specific  objectives.  More  effective  detection,  investigation,  prosecution  and 
sanctioning of environmental crime is likely to help reduce the impact of environmental crime as compared to the 
baseline scenario. Since quantitative data on impacts is limited, the likely impact of the options is based on the views 
of experts and stakeholders, where possible supplemented by data.  

Under objective 1, removing the annexes and instead refining the definition of what constitutes environmental crime 
in  Article  3  and  adding  new  environmental  crime  categories  under  the  same  article  is  likely  to  improve  the 
effectiveness  of  investigations  and  prosecutions  of  environmental  crime,  especially  with  regard  to  cross-border 
cooperation. However, in the future there would also be a need to regularly update the Directive through legislative 
procedure if new environmental crime areas are to be added to the Directive’s scope. There is no simpler way to do  
this, as the definitions of environmental crime categories are an essential component of the Directive and require a 
decision by the European legislator.   

Under objective 2, both endangerment crime and crime that requires the manifestation of damage are necessary to 
respond adequately to environmental offences. The current Directive is built on a combination of these two types of 
crime definition. The proposal will have to add new endangerment crime categories and specify more exactly which 
behavior  is  criminalised;  it  will  also  have  to  add  information  enabling  it  to  be  determined  what  can  constitute 
environmental damage.  

More precise definitions of unclear terms – such as ‘substantial damage’ and ‘negligible or non-negligible quantity’ 
–  will  improve  the  clarity  of  the  Directive.  The  focus  on  endangerment  crime  and  risky  behaviour  will  allow 
effective  sanctioning  in  cases  where  it  is  difficult  to  establish  the  actual  damage  or  where  no  damage  occurred. 
Hence,  the  combined  application  of  both  options  may  lead  to  the  increased  effectiveness  of  investigations  and 
prosecutions of environmental crime.  

The preferred option under objective 3 will lead to more effective, proportionate, dissuasive and uniform sanction 
levels  across  the  EU  and  in  practice  across  the  EU.  In  addition,  the  minimum  maximum  levels  of  imprisonment 

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sanctions  will  give  law  enforcement  practitioners  access  to  investigative  tools  which  are  only  available  for  crime 
punishable by a certain  minimum maximum level of penalties. This will lead to more effective investigations and 
facilitate cross-border cooperation.   

The measures under objective 4 will directly foster cross-border cooperation, complement and reinforce each other 
and  lead  to  investigations  that  are  more  effective,  as  many  environmental  crime  cases  can  only  be  successfully 
conducted cross-border.  

The preferred option under objective 5 will lead to a commonly defined minimum standard for the collection of data 
on environmental crime procedures and thus to statistical data that is comparable across the EU.  

The  package  of  measures  proposed  under  objective  6  will  have  a  positive  influence  on  the  effectiveness  on  the 
ground at all levels of the enforcement chain (inspectors, police, prosecution, criminal judges). 

What are the costs of the preferred option (if any, apart from the main ones)? 

The  current  proposal  has  negligible  budgetary  implications  both  for  Member  States  and  for  the  Commission. 
Specific  information  on  the  financial  implications  for  the  Commission  can  be  found  in  the  legislative  financial 
statement attached to this legislative package.  

The European Commission  

The Commission has two kind of costs: one-off, and recurring.  

The  first  financial  implications  for  the  Commission  are  linked  to  the  fifth  objective  of  the  revision:  improving 
statistical  data  collection  and  reporting  on  environmental  crime.  The  overall  cost  is  divided  into  three  kind  of 
expenditure: 

  Definition of minimum standards: around EUR 110 000 (one-off cost)  
  Maintenance of standards: around EUR 16 000 (recurring cost) 
  Biennial report on Member State data from the Commission: around EUR 25 000 (recurring cost). 

Besides  the  costs  linked  with  the  revision’s  fifth  objective,  the  Commission  will  also  need  to  provide  for  another 
kind of one-off cost, that of its reporting obligations. The legislative proposal states that the Commission will have 
to produce two reports:  

  Member States’ transposition of the Directive: will cost EUR 405 000 (one-off cost) 
  Study on the effectiveness of the Directive with a certain series of indicators: will cost around EUR 420 000 

(one-off cost). 

Member States  

The Directive’s financial implications for Member States are linked with three objectives of the revision: improving 
effective  cooperation  and  coordination  between  Member  States  (objective  4),  improving  statistical  data  collection 
and reporting on environmental crime (objective 5) and improving the effective operation of the enforcement chain 
(objective 6).  

Regarding objective 4, the costs for all Member States are two-pronged: the cost of investigative tools and the cost 
of setting up national contact points.  

Investigative tools: the data were not available to enable a first assessment of the cost  

 
  Setting  up  of  national  contact  points:  the  cost  for  all  Member  States  will  vary  between  EUR 475  000  and 

EUR 792 000  

Regarding objective 5, several kinds of cost for Member States can be identified:  

  Setting up of national coordination procedure: would cost EUR 146 000 for all Member States  
  Definition of minimum standards: would cost EUR 281 000  

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  Maintaining of those standards for all Member States: this should cost EUR 35 000.  
  Coordination, collection and reporting: will cost EUR 220 000 for all Member States.  

Regarding objective 6:  

  Training costs for all Member States will cost around EUR 8 000 000  
  National strategies  

  One-off cost around EUR 864 000 for all Member States  
  Recurring cost around EUR 324 000 for all Member States  

 

Increase of staff linked with this Directive estimated at EUR 4 million  for all Member States.  

What are the impacts on SMEs and competitiveness? 

Businesses are likely to benefit from effective law enforcement, as it will protect them from unfair competition from 
illegally operating  businesses.  Likewise,  reputational  damage  for a  whole industry that  can be caused by  criminal 
activities  will  be  reduced  for  compliant  businesses.  Effective  criminal  law  enforcement  would  not  create  an 
additional financial burden, as compliance costs stem from sectoral legislation and not from the Directive.  
Will there be significant impacts on national budgets and administrations? 

There will be a moderate increase in administrative burden and costs due to the collection of statistical data and the 
costs of units and training along the enforcement chain. The revision of the Directive aims to foster a more effective 
enforcement chain. This is expected to lead to an increase in cases that are picked up and effectively investigated 
and convicted. This in turn might lead to the need to employ or shift additional staff (police and prosecutors) to the 
environmental crime law enforcement field. 

Will there be other significant impacts? 

The  reduction  of  environmental  crime  is  expected  to  have  beneficial  impacts  on  health  (e.g.  through  reduced 
pollution),  economy  (through  the  reduction  of  unfair  competition  and  tax  loss),  and  biodiversity.  The  initiative  is 
likely  to  have  a  positive  impact  on  fundamental  rights  through  an  improvement  of  environmental  protection 
(Article 37 of the Charter) and improvement in the areas of dignity, health and well-being (Articles 1, 2, 3, 24, 31, 
34, 35). 

Proportionality? 

In accordance with the principle of proportionality, the proposed measures will not go beyond what is necessary in 
order to achieve the objectives. The preferred options under objectives 4, 5 and 6 would entail costs for the Member 
States, but would also improve the effective protection of environment through criminal law. Overall, the balance of 
the preferred options is  positive,  as  the result will be positive impacts  on the environment  itself as well as on the 
economy and society. 
D.  Follow-up 

In addition to regularly producing reports based on the statistics provided by the Member States, the Commission 
will evaluate the implementation of the initiative to assess whether the policy objectives have been achieved. 

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