Environmental Crime in Europe 9781509914012, 9781509914005, 9781509913985

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ENVIRONMENTAL CRIME IN EUROPE The aim of this important new collection is to explore how environmental crime is controlled and environmental criminal law is shaped and implemented within the European Union and its Member States. It examines the legal framework, looking in particular at Directive 2008/99/EC, and the specific competences of the EU in this domain. In addition, it provides a detailed analysis of environmental criminal law in seven Member States, focusing inter alia on the basic legislation, the way in which environmental pollution is criminalised and the main actors in place to enforce environmental criminal law. In so doing, it provides a much needed explanation of the evolution of environmental criminal law in Europe at Union level and how this is implemented in selected Member States. Volume 82 in the Series Modern Studies in European Law

Modern Studies in European Law Recent titles in this series: Reconceptualising European Equality Law: A Comparative Institutional Analysis Johanna Croon-Gestefeld Marketing and Advertising Law in a Process of Harmonization Edited by Ulf Bernitz and Caroline Heide-Jörgensen The Fundamental Right to Data Protection: Normative Value in the Context of Counter-Terrorism Surveillance Maria Tzanou Republican Europe Anna Kocharov Family Reunification in the EU Chiara Berneri EU Liability and International Economic Law Armin Steinbach The EU and Nanotechnologies: A Critical Analysis Tanja Ehnert Human Rights Between Law and Politics: The Margin of Appreciation in Post-National Contexts Edited by Petr Agha The European Union and Social Security Law Jaan Paju The Rule of Law in the European Union: The Internal Dimension Theodore Konstadinides The Division of Competences between the EU and the Member States: Reflections on the Past, the Present and the Future Edited by Sacha Garben and Inge Govaere Unity in Adversity: EU Citizenship, Social Justice and the Cautionary Tale of the UK Charlotte O’Brien The Use of Force and Article 2 of the ECHR in Light of European Conflicts Hannah Russell For the complete list of titles in this series, see ‘Modern Studies in European Law’ link at www.bloomsburyprofessional.com/uk/series/modern-studies-in-european-law

Environmental Crime In Europe

Edited by

Andrew Farmer, Michael Faure and Grazia Maria Vagliasindi

OXFORD AND PORTLAND, OREGON 2017

Hart Publishing An imprint of Bloomsbury Publishing Plc Hart Publishing Ltd Kemp House Chawley Park Cumnor Hill Oxford OX2 9PH UK

Bloomsbury Publishing Plc 50 Bedford Square London WC1B 3DP UK

www.hartpub.co.uk www.bloomsbury.com Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA www.isbs.com HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published 2017 © The editors and contributors severally 2017 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, e­ lectronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www. nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1997–2017. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HB: 978-1-50991-401-2 ePDF: 978-1-50991-398-5 ePub: 978-1-50991-399-2 Library of Congress Cataloging-in-Publication Data Names: Farmer, Andrew (Andrew M.), editor.  |  Faure, Michael (Michael G.), editor.  |  Vagliasindi, Grazia Maria Veronica, 1974- editor. Title: Environmental crime in Europe / edited by Andrew Farmer, Michael Faure and Grazia Maria Vagliasindi. Description: Oxford : Portland, Oregon : Hart Publishing, an imprint of Bloomsbury Publishing Plc, 2017.  |  Series: Modern studies in European law ; volume 82  |  “This book is the result of a project that has been executed with European support under the EU 7th Framework Programme for Research and Innovation. The research project, which was coordinated by Ecologic Institute in Berlin, was called “European Union Action to Fight Environmental Crime” (EFFACE) and lasted from December 2012 to March 2016.”—ECIP Preface.  |  Includes bibliographical references and index. Identifiers: LCCN 2017038512 (print)  |  LCCN 2017039282 (ebook)  |  ISBN 9781509913992 (Epub)  |  ISBN 9781509914012 (hardback : alk. paper) Subjects: LCSH: Offenses against the environment—Law and legislation—European Union countries. Classification: LCC KJE8781.E58 (ebook)  |  LCC KJE8781.E58 E58 2017 (print)  |  DDC 345/.0245—dc23 LC record available at https://lccn.loc.gov/2017038512 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

Editorial Preface 1.  REASONS FOR THIS BOOK

Almost on a daily basis reports are presented on cases of illegal disposal of highly toxic waste, illegal dumping of waste water into rivers or illegal dumping and trafficking of hazardous waste. In addition, there are equally increasing reports on illegal transboundary shipment of waste and trade in endangered species. Notwithstanding the efforts that have been undertaken by many European Member States in combatting environmental crime it seems as if, at least in some Member States, environmental crime still flourishes. The criminogenic reasons explaining the origins of environmental crime are well-known: crimes against the environment are usually committed for monetary gain. Environmental crime can, to an important extent, be lucrative, as the probability of detection is relatively small and the reported sanctions imposed on the few that are caught and convicted do not seem to qualify as much of a deterrent. Few perpetrators are sentenced to gaol and the monetary fines imposed are often negligible compared to the profits made from environmental crime. Environmental crime can create substantial damage to the environment as well as to human and animal life. Of course domestic environmental law has to an important extent aimed at combatting environmental pollution. This has resulted in an elaborate legislative and regulatory network of domestic environmental laws in the European Member States. However, already back in the 1970s the European policy-maker realised that a lot of environmental pollution in fact has a transboundary character. As a result it would have made little sense for example to regulate the quality of a transboundary river just in one country if for example an upstream country might have more lenient standards and were thus able to contribute substantially to transboundary pollution. Moreover, the European policy-maker equally realised that there would be a substantial danger that Member States could engage in destructive competition in order to attract industry, thereby lowering environmental standards below efficient levels. A so-called raceto-the-bottom might be the result. For those reasons the European policy-maker has developed an elaborate set of rules (both regulations and directives) which together form European environmental law. The model of European environmental law largely consisted of a system whereby environmental standards were developed at the EU level (mostly laid down in directives), but where implementation had to take place via the Member States. However, by the end of the last century it was increasingly reported that (many) Member States had failed to execute their obligations to implement the

vi  Editorial Preface so-called environmental acquis. A large implementation deficit was the result, in the field of environmental law. Many initiatives have been taken, both at the legislative level as well as through case law, to remedy this implementation deficit. Although it was originally held that the EU institutions did not have the power to require EU Member States to use the criminal law to enforce legislation implementing European legislation, a decision of the (then) European Court of Justice at the beginning of this century decided differently and opened the door for European legislative action in the domain of criminal law. The first directive in that domain was Directive 2008/99/EC of 19 November 2008 on the protection of the environment through criminal law (the Environmental Crime Directive). Meanwhile Member States have implemented the obligations laid down in this Environmental Crime Directive. However, little was known of the way in which the Environmental Crime Directive affected the system of environmental criminal law in the Member States. Therefore it was necessary to publish this book examining how environmental criminal law in Europe is shaped, explaining the involvement of Europe in fighting environmental crime by the approximation of environmental criminal law of the EU Member States. This book therefore aims at a careful analysis not only of the origins and contents of the Environmental Crime Directive, but also of environmental criminal law in some Member States, thereby paying attention both to the existing domestic system of environmental criminal law and to the question of how that domestic legal system has been affected by the Environmental Crime Directive.

2.  HISTORY AND ORIGINS

This book is the result of a project that has been executed with European support under the EU 7th Framework Programme for Research and Innovation. The research project, which was coordinated by Ecologic Institute in Berlin,1 was called ‘European Union Action to Fight Environmental Crime’ (EFFACE)2 and lasted from December 2012 to March 2016. EFFACE brought together researchers from 11 universities and research institutes in six European countries. They broadly addressed the issue of environmental crime in a multidisciplinary manner, representing several academic fields, such as criminology, law, political science and economics. One research strand of EFFACE dealt with an identification and analysis of the instruments, actors and institutions involved in the fight against environmental crime.

1  2 

See http://ecologic.eu/. See http://efface.eu/.

Editorial Preface vii This book is a follow-up of the results of this research strand dealing with actors, instruments and institutions. The earlier research has been fundamentally rewritten according to a common structure with a view to providing an in-depth analysis of environmental criminal law in Europe wherein the Environmental Crime Directive obviously plays the most important role.

3. METHODOLOGY

As will be made clear below, the book consists of three parts, Part I dealing with the European legal background, Part II with the situation of environmental criminal law in individual countries and Part III providing a comparative analysis and concluding remarks. Several methods have been followed in this book. The first part, providing the background for the book and the European institutional legal framework, strongly relies on European legal methodology, thus, inter alia, paying attention to the question of the competences of the EU in the domain of the criminal law. That part largely relies on the relevant case law, provisions of the Treaty and opinions in legal doctrine concerning the competences of the EU with respect to (environmental) crime. The core of the book (both in terms of number of pages and in substance) undoubtedly consists of the second Part, which provides the analysis of environmental criminal law in seven countries; more particularly France, Germany, Italy, Poland, Spain, Sweden and the United Kingdom. The choice of countries was based on the fact that these are Member States in which environmental criminal law and also legal doctrine in this domain has been relatively well developed. It was obviously not possible to deal with all 28 Member States within the scope of this book. The selection of the seven Member States of course took into account different legal traditions (civil law and common law) and a reasonable geographical spread, for example including one typical outlier (the UK), one Nordic country (Sweden), two Southern countries (Italy and Spain), an Eastern European country (Poland) and two of the most ‘traditional’ Member States (France and Germany). This provides a strong representation of different Member States, also representing different levels of development of the institutional infrastructure with respect to the enforcement of environmental criminal law. The goal of our book is obviously not to check to what extent the Member States we examined have correctly implemented the Environmental Crime Directive. The European Commission has ordered a detailed study which has exactly performed that task. The results of the implementation study have of course been taken into account in the country chapters, but this book is providing more than a technical implementation study. The idea is to study implementation within the much broader context of the functioning of environmental criminal law in the wider context of the entire system of criminal law in each particular country.

viii  Editorial Preface The country chapters have been drafted according to a common methodology. A clear guide was provided to the authors of the country chapters, instructing them to address specific issues such as, inter alia: —— —— —— —— ——

The definition of environmental crime; Substantive criminal law principles; The structure of environmental crime; The transposition of the Environmental Crime Directive; Procedural provisions, the role of inspections, the prosecutor, courts and administrative sanctions; —— The applicable type and magnitude of sanctions. Moreover, the authors of the country chapters have also been asked to address not only material environmental crime, but also the way in which environmental crime is dealt with in practice, thus paying attention for example to the types of penalties imposed, the number of prosecutions, administrative sanctions imposed etc. The country chapters therefore specifically relate to ‘the law in action’, in other words to the nature of the enforcement policy. Thus the authors of the country chapters were expressly asked to provide data on enforcement of environmental criminal law where available and to provide a judgement (again, of course based on reliable sources) on the effectiveness of the enforcement practices. This comprehensive approach provides information that can be useful, inter alia, in addressing the question of the relationship between environmental criminal law and compliance. Although this issue is a complicated one and to some extent goes beyond the scope of this book, the extent to which an environmental violation is penalised in practice has been taken into account as something that is not only inherent to environmental criminal law, but also relevant in assessing the effects of the latter on compliance. The focus of this book is on environmental criminal law in general and more particularly on the relationship between the Environmental Crime Directive and domestic environmental criminal law. We decided on purpose not to focus on specific important areas of environmental criminality, such as for example trafficking in endangered species, habitat protection or illegal transport of waste. The main focus of the book is on which kind of instruments are available in environmental criminal law, how environmental interests in the particular Member States are protected and how environmental criminal law is enforced in practice. The clear focus therefore is on the structure of (domestic) environmental criminal law as well as on the question of how that structure has been affected by the Environmental Crime Directive. Obviously these findings also have their importance for specific areas of environmental criminality (like waste trafficking, habitat destruction, etc), but the clear purpose of the book is to focus on a discussion of environmental criminal law at a higher level rather than focusing on specific areas of criminality. The third part of the book is concerned with a functional comparative legal methodology. The comparison of environmental criminal law in the

Editorial Preface ix Member States takes place to an important extent according to a methodology that has been developed since the 1980s in the Max Planck Institute for Foreign and International Criminal Law in Freiburg im Breisgau (Germany), where a project was run under the title: ‘Environmental protection through the criminal law?’. That project asked critical questions on the ability of the criminal law to protect environmental interests, particularly in its relationship to administrative law. That particular way of looking at environmental criminal law (more specifically examining the ability of specific provisions to provide protection to environmental interests) has been shown to be a particularly useful method to critically compare criminal law in different legal systems. In that literature for example a distinction is made between the protection of environmental interests via so-called abstract endangerment, concrete endangerment and independent crimes, which distinction is also used for the functional comparison of the seven country chapters discussed in Part II. In addition to addressing the country chapters from the perspective of ­German legal doctrine with respect to environmental criminal law, several other approaches are employed as well. To some extent insights from green criminology, indicating the limits of criminal law in protecting the environment are used. Finally, the economic approach to (criminal) law has been employed, for example to point to the importance of proactive monitoring of environmental crime, given the fact that most of environmental crime is victimless. That means that often no single victim can be identified that would have sufficient incentives to discover that an environmental crime has been committed and that would thus report the environmental crime to the police. This combination of approaches allows a critical benchmark in order to analyse the country chapters.

4.  TOPICS AND STRUCTURE

The book is organised into three parts. The first part sketches the European legal framework. An introduction to European environmental law and environmental crime is provided as well as a critical discussion of the competences of the EU to legislate in matters of environmental crime after the entry into force of the Treaty on the Functioning of the European Union. This first part concludes with a detailed and critical discussion of the coming into being and contents of the Environmental Crime Directive. The core of the book consists of the second part, which contains the country chapters. As was explained above, following a similar methodological framework, environmental criminal law in seven Member States is presented. The methodological framework takes into account elements which are relevant to analyse the quality of criminal law in its ability to protect the environment. Thus attention is, for example, paid to the definition of environmental crime, to the types of environmental crimes contained in domestic legislation, but also to procedural provisions, the role of the specific actors involved and the delineation between

x  Editorial Preface administrative penalties and the criminal law. A core part of these country chapters of course deals with a critical review of the importance of the Environmental Crime Directive for their specific legal system. Part III provides the comparative and concluding remarks. One chapter in this part analyses the evolution of environmental criminal law in the seven discussed Member States from a comparative perspective. The final chapter provides an outlook on the state of affairs as far as environmental criminal law in Europe is concerned and sketches future perspectives. The three parts are strongly interrelated. Part I constitutes the foundations for the further analysis in the country chapters. Part I sketches the European legal background against which the Environmental Crime Directive, a core focus of this book, came into being. In Part II each of the country chapters analyses, inter alia, the way in which the Directive has affected environmental criminal law in their particular country. Specific attention is paid to the question whether on the whole the implementation of the Environmental Crime Directive in the specific country can be considered as having a positive effect on the effectiveness of the environmental criminal law system in that country. Part III then logically follows with a critical comparative analysis, addressing, inter alia, the question to what extent the implementation of the European legal framework has changed the effectiveness of the environmental criminal law in the specific Member States. The comparison equally provides indications on the particular strengths and weaknesses in the specific Member States. Finally, looking at the European legal background as a starting point in Part I and taking into account the experiences in the specific countries as presented in Part II, the final chapter in Part III summarises the state of affairs concerning environmental criminal law in Europe and indicates the main challenges for the future and equally formulates recommendations.

5. CONTRIBUTORS

As was made clear above, the contributors to this book all participated in the EFFACE project and come from various universities or other organisations in Europe. Two contributors come from the University of Granada in Spain: Teresa Fajardo del Castillo (who drafted Chapter one) and Juan Luis Fuentes O ­ sorio (who is affiliated to University of Jaén and drafted Chapter eight on Spain). ­Several ­contributors come from the University of Catania. This is for example the case for Grazia Maria Vagliasindi, who is one of the editors of this book, the author of Chapter three (on the EU Environmental Crime Directive) and Chapter six (on Italy) and the last chapter (twelve). Giovanni Grasso (the author of Chapter two on EU harmonisation competences in criminal matters and environmental crime) also comes from the University of Catania as do Floriana Bianco and Annalisa Lucifora, who drafted Chapter four on France. Stephan Sina from Ecologic Institute drafted Chapter five (on Germany). Niels Philipsen and Michael Faure (from the Maastricht European Institute of T ­ ransnational Legal Research (METRO)

Editorial Preface xi from Maastricht University) co-authored Chapter nine on Sweden. Michael Faure, one of the editors of this book, also authored the comparative conclusions in Chapter eleven and co-authored ­Chapter twelve. Several authors are connected to or come from Queen Mary ­University in London. This includes Carolina Jakovic who, jointly with Valsamis Mitsilegas and Malgosia Fitzmaurice, drafted Chapter seven on Poland as well as Elena Fasoli who drafted Chapter ten on the United Kingdom. Finally Andrew Farmer, from the Institute for European Environmental Policy is a co-editor of this entire book and co-author of the final Chapter twelve.

6. ACKNOWLEDGEMENTS

As editors we are grateful to the many people who made this book possible. We are especially grateful to all authors for their willingness to participate in this highly interesting and challenging project and for meeting the deadlines we imposed upon them. We are especially grateful to the entire EFFACE team and more particularly to the general coordinator of the EFFACE project, Christiane Gerstetter from Ecologic Institute, who coordinated the research that was at the origins of this book. We equally owe thanks to the administrative centre of METRO and especially to Marina Jodogne for editorial assistance in the preparation of this book for ­publication. Finally we are most grateful to our publisher Hart and more particularly to Sinead Moloney for their kind, professional and efficient support in the publication of this book. The texts were finalised in February 2017 and for that reason developments after that date have not been included. Andrew Farmer, Michael Faure & Grazia Maria Vagliasindi London/Maastricht/Catania, February 2017

xii 

Contents Editorial Preface����������������������������������������������������������������������������������������������������������v List of Contributors���������������������������������������������������������������������������������������������������xv List of Abbreviations���������������������������������������������������������������������������������������������� xvii

Part I: European Legal Background 1. European Environmental Law and Environmental Crime: An Introduction������������������������������������������������������������������������������������������������3 Teresa Fajardo 2. EU Harmonisation Competences in Criminal Matters and Environmental Crime�������������������������������������������������������������������������������������15 Giovanni Grasso 3. The EU Environmental Crime Directive�������������������������������������������������������31 Grazia Maria Vagliasindi Part II: Country Studies 4. Environmental Criminal Law in France��������������������������������������������������������59 Floriana Bianco and Annalisa Lucifora 5. Environmental Criminal Law in Germany����������������������������������������������������95 Stephan Sina 6. Environmental Criminal Law in Italy����������������������������������������������������������119 Grazia Maria Vagliasindi 7. Environmental Criminal Law in Poland������������������������������������������������������159 Karolina Jackowicz, Malgosia Fitzmaurice and Valsamis Mitsilegas 8. Environmental Criminal Law in Spain��������������������������������������������������������189 Juan Luis Fuentes Osorio 9. Environmental Criminal Law in Sweden�����������������������������������������������������221 Michael Faure and Niels Philipsen 10. Environmental Criminal Law in the United Kingdom�������������������������������243 Elena Fasoli

xiv  Contents Part III: Comparative Analysis and Concluding Remarks 11. The Evolution of Environmental Criminal Law in Europe: A Comparative Analysis�������������������������������������������������������������������������������267 Michael Faure 12. Environmental Crime in Europe: State of Affairs and Future Perspectives���������������������������������������������������������������������������������������������������319 Andrew Farmer, Michael Faure and Grazia Maria Vagliasindi

Bibliography������������������������������������������������������������������������������������������������������������333 Index�����������������������������������������������������������������������������������������������������������������������349

List of Contributors Floriana Bianco PhD in European Criminal Policies, University of Catania, Italy Teresa Fajardo Associate Professor of Public International Law and International Relations, University of Granada, Spain Andrew Farmer Director of Research, Head of Industry, Waste and Water Programme, Institute for European Environmental Policy (IEEP), London, United Kingdom Elena Fasoli Teaching Associate, Queen Mary University of London, United Kingdom Michael Faure Professor of Comparative and International Environmental Law at the Faculty of Law of Maastricht University and Professor of Comparative Private Law and ­Economics at the Erasmus School of Law, The Netherlands Malgosia Fitzmaurice Professor of International Law, Department of Law, Queen Mary University of London, United Kingdom Giovanni Grasso Professor of Criminal Law and European Criminal Law, University of Catania, Italy Karolina Jackowicz PhD candidate in Public International Law, Visiting Researcher at Department of Law, Queen Mary University of London, United Kingdom, Faculty of Law and Administration, Jagiellonian University in Kraków and Faculty of Law, ­University of Białystok, Poland Annalisa Lucifora PhD in European Criminal Policies, University of Catania, Italy Valsamis Mitsilegas Professor of European Criminal Law, Head of the Department of Law and Dean for Research (Humanities and Social Sciences), Queen Mary University of ­London, United Kingdom Juan Luis Fuentes Osorio Professor of Criminal Law (Contratado-Doctor), University of Jaén, Spain

xvi  List of Contributors Niels Philipsen Professor of Shifts in Private and Public Regulation at the Erasmus School of Law and Vice-Director of Research Institute METRO at the Faculty of Law of Maastricht University, The Netherlands Stephan Sina Senior Fellow, Ecologic Institute, Germany Grazia Maria Vagliasindi Researcher in Criminal law, University of Catania, Italy

List of Abbreviations BGBl BJagdG BKA BNatSchG BVerfGE CAA Cass Crim Cass Pen CC CCP CJEU COP COPFS CP CPA CPPO CPS DEFRA EA E&W EC ECD ECJ EEC ENPE ENPRO Env Code EnviCrimeNet EP EPL EU EU Charter EUFJE EWCA FMP

Bundesgesetzblatt (German Federal Law Gazette) Bundesjagdgesetz (German Federal Hunting Act) Bundeskriminalamt (German Federal Criminal Police Office) Bundesnaturschutzgesetz (German Federal N ­ ature Conservation Act) Entscheidungen des Bundesverfassungsgerichts (decisions of the German Federal Constitutional Court) Cour d’assises d’appel Cour de Cassation Chambre Criminelle Corte Suprema di Cassazione Sezione Penale Criminal Code Code of Criminal Procedure Court of Justice of the European Union Conference of the Parties Crown Office and Procurator Fiscal Service Código Penal Criminal Procedure Act Code on the Procedure for Petty Offences Crown Prosecution Service Department of Environment, Food and Rural Affairs Environment Agency England and Wales European Community Environmental Crime Directive European Court of Justice European Economic Community European Network of Prosecutors for the Environment Network of Prosecutors on Environmental Crime Environmental Code Environmental Crime Network European Parliament Environmental Protection Law European Union Charter of Fundamental Rights of the EU European Union Forum of Judges for the Environment England and Wales Court of Appeal Fixed Monetary Penalties

xviii  List of Abbreviations FGE GCC GG GMOs GVG IFAW JD IMPEL INE IPPC JORF LKA LO MEAs NGO NI NWCU OCLAESP ODS OECD OJ OWiG POC REMA

RESA RSPB RSPCA SC SCCourt SEK SEPA SEPA SSC 7EAP StGB StPO TEC

Fiscalía General del Estado German Criminal Code Grundgesetz (German Basic Law) Genetically Modified Organisms Gerichtsverfassungsgesetz (German Constitution of Courts Act) International Fund for Animal Welfare Judicial Decree EU Network for the Implementation and Enforcement of Environmental Law Instituto Nacional de Estadística Integrated Pollution, Prevention and Control Journal Officiel de la République Française Landeskriminalamt (German State Criminal Police Office) Ley Orgánica Multilateral Environmental Agreements Non-governmental Organisation Northern Ireland National Wildlife Crime Unit Office central de lutte contre les atteintes à l’environnement et à la santé publique Ozone-Depleting Substances Organisation for Economic Co-operation and Development Official Journal Ordnungswidrigkeitengesetz (German Administrative Offences Act) Petty Offences Code Riksenheten för Miljö- och Arbetsmiljömål vid Åklagarmyndigheten (National Environmental Crimes Unit, Sweden) Regulatory Enforcement and Sanctions Act Royal Society for the Protection of Birds Royal Society for the Prevention of Cruelty to Animals Spanish Constitution Sentence of the Constitutional Court Swedish Krona Scottish Environmental Protection Agency (in Chapter 10) Swedish Environmental Protection Agency (in Chapter 9) Sentence of the Supreme Court Seventh Environment Action Programme Strafgesetzbuch (German Criminal Code) Strafprozessordnung (German Code on Criminal Procedure) Treaty on the European Community

List of Abbreviations xix TEEC TEU TFEU UK UN UNEP VMP WWF

Treaty establishing the European Economic Community Treaty on European Union Treaty on the Functioning of the European Union United Kingdom United Nations United Nations Environment Programme Variable Monetary Penalties World Wildlife Fund

xx 

Part I

European Legal Background

2 

1 European Environmental Law and Environmental Crime: An Introduction TERESA FAJARDO*

1. INTRODUCTION

T

HIS CHAPTER PRESENTS European Union environmental primary law, analysed with a special focus on environmental crime in the light of the new relevance that the Lisbon Treaty accorded to the European Union acquis (EU). The examination of the history of the environmental legal bases through EU Treaties shows that every reform has brought changes to the environmental provisions and decision-making procedures. The wide interpretation of these provisions by EU institutions and, in particular, the Court of Justice of the European Union (ECJ) has made the protection of the environment possible through criminal law with the adoption of the Environmental Crime Directive.1 The Lisbon Treaty has brought about changes to EU environmental law that will be analysed both in their internal and external dimensions. The EU Seventh Environment Action Programme and its priority objectives are also set out.

2.  HISTORY OF THE EU ENVIRONMENTAL PROVISIONS THROUGH EU TREATIES

The protection of the environment was not a European priority or a concern in the early 1950s. The first actions to protect the environment, dating from the mid’60s, were subordinated to the achievement of the goals of the internal market. The Treaty establishing the European Economic Community (TEEC) did not contain any specific provisions on the environment that would allow the European Economic Community institutions (EEC) to intervene in matters related to *  This chapter is based on a previous EFFACE report: T Fajardo, ‘EU Environmental Law and Environmental Crime: An Introduction. Study in the Framework of the EFFACE Research Project’ (Granada, University of Granada, 2015). 1  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 [2008] OJ L328/28.

4  Teresa Fajardo environmental protection before it was amended by the Single European Act in 1986. In those early years, the first specific environmental actions carried out by the EEC were adopted under the extensive and teleological interpretation of the objectives set out in Article 2 TEEC, in conjunction with Articles 100 and 235 on the common market and the clause of implicit powers respectively. This broad interpretation would not have enabled the Community’s institutions to adopt environmental measures if it had not had approval at the highest political level; this approval was obtained at the Paris Summit of Heads of State and Government of 19–20 October 1972. This Summit took place four months after the United Nations Conference on the Human Environment, held in Stockholm, in which the European Commission and its Member States had represented the EEC. The Paris Summit recognised the need to include environmental protection as one of the Community’s tasks, and instructed the Commission to prepare a programme for action in this field. The first five-year programme was adopted on 19 July 1973. Since then these programmes have been renewed; the Seventh was adopted in November 2013 and will be in force until 2020.2

2.1.  The Single European Act In 1986, the Single European Act introduced major changes in the Treaties. In particular it included specific legal bases for the environment, which codified the practice developed until then: an explicit mention of the environment in Article 100A regarding the internal market and a separate title on the environment in Articles 130R–130T that introduced the environmental objectives and principles, the principle of subsidiarity for the exercise of the new shared competence, and unanimity for the decision-making procedure. Since then, every reform of the Treaties has brought changes to the environmental provisions and decisionmaking procedures.

2.2.  The Maastricht Treaty Environmental actions became a Community environmental policy with the Treaty of Maastricht (1993),3 incorporating new objectives and principles and changing decision-making procedures once again. The principles of sustainable

2  Decision No 1386/2013/EU of the European Parliament and of the Council of 20 November 2013 on a General Union Environment Action Programme to 2020: ‘Living well, within the limits of our planet’, [2013] OJ L354. 3  The Treaty on European Union (TEU), signed in Maastricht on 7 February 1992, entered into force on 1 November 1993.

EU Environmental Law: An Introduction 5 development and precaution were introduced under the influence of the Brundtland Report (1987) and the United Nations Conference on the Environment and Development (UNCED), held in Rio de Janeiro in 1992. The cooperation procedure was incorporated as the regular procedure, while unanimity was reserved for some sensitive fields such as water management, land use and planning, energy and fiscal measures. The Treaty of Maastricht also introduced a three-pillar structure in the treaties: two cooperation pillars were added to the pillar of integration exercised using the Community method. These dealt with the common foreign and security policy and police and judicial cooperation in criminal matters, ruled by an intergovernmental decision-making process that relied on unanimity.

2.3.  The Amsterdam Treaty The Treaty of Amsterdam (1999) introduced further changes on the environment. The principle of integration, formerly laid down in Article 130R of the Treaty of the European Community (TEC), was incorporated in Article 6 TEC and demanded that environmental protection requirements be integrated into the definition and implementation of the Community policies and activities referred to in Article 3 TEC on competences. The co-decision procedure was finally applicable to measures based on Article 175 TEC (now Article 192 TFEU), while unanimity was still applicable to some fields.

2.4.  The Treaty of Nice Regarding environmental protection, no great changes were made by the Treaty of Nice (2003). The unanimity requirements of Article 175.2 could not, as some sought, be changed to qualified majority voting, except for a minor change that restricted it on the case of water to those ‘measures affecting the availability of [water] resources’ and made it possible that measures concerning water in general could be adopted by qualified majority vote. This change was made possible subsequent to the case law of Kingdom of Spain v Council of the European Union.4

4  See Case C-36/98 Kingdom of Spain v Council of the European Union [2001] ECR I-779, regarding the Council decision approving the Convention on cooperation for the protection and sustainable use of the river Danube. Paragraph 55 of this judgment established that: ‘It follows from a consideration of those various factors, taken together, that the concept of “management of water resources” does not cover every measure concerned with water, but covers only measures concerning the regulation of the use of water and the management of water in its quantitative aspects’. This interpretation of the concept of management of water resources then led to the reform of Article 130S.

6  Teresa Fajardo EU Directive 2008/99/EC on the protection of the environment through criminal law (‘Environmental Crime Directive’), was adopted in 2008 and the struggle for its adoption raised the question whether the Community could demand that Member States should adopt criminal measures in order to enforce European environmental law. The ECJ settled the conflict between the Member States and the Commission on the legal basis to be used for its adoption and the scope of the foreseen sanctions. In its case on Environmental Crime the Court resolved the conflict between Framework Decision 2003/80 (proposed by Denmark and adopted under the Third Pillar of the EU Treaty) and the Commission’s proposal on the same topic under the First Pillar, acknowledging that 47. … As a general rule, neither criminal law nor the rules of criminal procedure fall within the Community’s competence … 48. However, the last-mentioned finding does not prevent the Community legislature, when the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities is an essential measure for combating serious environmental offences, from taking measures which relate to the criminal law of the Member States which it considers necessary in order to ensure that the rules which it lays down on environmental protection are fully effective.5

The Court annulled the Framework Decision and opened the door to the possibility of using criminal law for the protection of the environment. In its subsequent judgment in the case of Ship-source pollution,6 the Court streamlined the scope of the competence of the Community when applying criminal law to protect the environment. In this case, the Commission asked for the annulment of Framework Decision 2005/667/JHA to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution.7 This time, the Court reiterated its previous position8 but established a clear restriction: ‘By contrast, and contrary to the submission of the Commission, the determination of the type and level of the criminal penalties to be applied does not fall within the Community’s sphere of competence’.9 5  Judgment of the Court (Grand Chamber) of 13 September 2005, Case C-176/03, Commission v Council [2005] ECR I-7879, paras 47–48. 6 Judgment of the Court (Grand Chamber) of 23 October 2007, Case C-440/05, Commission v Council [2007] ECR I-9097. 7  It was adopted on the basis of Articles 31(1)(e) and 34(2)(b) of the TEU, see Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution, [2005] OJ L255/164. 8 In this case, the Court declared again that the Community was competent in the field of criminal law:

‘Although it is true that, as a general rule, neither criminal law nor the rules of criminal procedure fall within the Community’s competence … the fact remains that when the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities is an essential measure for combating serious environmental offences, the Community legislature may require the Member States to introduce such penalties in order to ensure that the rules which it lays down in that field are fully effective …’ para 66. 9 

Paragraph 70.

EU Environmental Law: An Introduction 7 This restriction was reflected in the final proposal for the adoption of the Environmental Crime Directive that seeks that Member States criminalise violations of EU environmental law when committed intentionally or with at least serious negligence, under the threat of effective, proportionate and dissuasive criminal penalties that Member States will choose. As its Article 1 says, it ‘establishes measures relating to criminal law in order to protect the environment more effectively’.

3.  THE LISBON TREATY

The Treaty of Lisbon came into force on 1 December 2009. It incorporates two Treaties: the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), which suppresses the previous pillar structure. Co-decision was renamed the ordinary legislative procedure. Article 194 TFEU introduces a competence in the field of energy that has to be carried out taking into account the environment, internal market and solidarity between Member States. The only change to the provisions dealing specifically with the protection of the environment is a small addition to Article 191(1) TFEU. That provision already stated that the EU can promote measures at international level to deal with regional or worldwide environmental problems, and the Lisbon Treaty adds that such measures can deal in particular with climate change. Although the Charter of Fundamental Rights of the EU (‘EU Charter’) is only attached to the Treaty, it has full and legally binding value by means of ­Article 6 TEU. The EU Charter lays down a high level of environmental protection and improvement that should be achieved following the environmental policy ­integration principle and the principle of sustainable development (Article 37 EU Charter).10 Regarding environmental crime, it can be considered that the acquis communautaire has configured the environmental competence as including criminal actions for its enforcement. As put by De Rijck, ‘“under Lisbon” one could also conclude that the competence in EU policy areas such as environmental law, to some extent implies a power to prescribe specific actions, also criminal’.11 The Area of Freedom, Security and Justice legal basis now in the TFEU may serve in the future for the adoption of measures to fight environmental crime and organised environmental crime if the unanimity required for expanding the list of crimes of Article 83 is met. 10  See M Lee, ‘The Environmental Implications of the Lisbon Treaty’ (2008) 10 Environmental Law Review 131. 11 See RMJ De Rijck, ‘Believing in criminal law. On how the European legislator of Directive 2008/99/EC deems strict criminal law necessary for the functioning of environmental legislation, but Member States consider it an expression of their sovereignty’, article originally published as ‘Geloven in het strafrech’ in (2013) 4 Tijdschrif voor sanctierecht & compliance voor ondernemingen 3, translation into English by Eurojust.

8  Teresa Fajardo The following table summarises the provisions concerning the environment in the EU Treaties. Environmental Provisions in the EU Treaties Treaty of the European Union Art 3(3) TEU (ex Art 2 TEU)

Aims of the EU (including sustainable development, high level of protection and improvement of quality of environment)

Art 21(2) (d) and (f) TEU (ex Art 36 TEU)

In external policies, the EU shall foster sustainable development and participate in the promotion of international measures aimed at preserving the quality of the environment

Treaty on the Functioning of the European Union Art 4 TFEU

Shared competence list, principle of sincere cooperation.

Art 11 TFEU (ex Article 6 TEC)

Principle of integration, sustainable development.

Art 13 TFEU (ex Protocol 10, annex to the Treaty of Amsterdam)

Integration of animal welfare.

Art 34 TFEU (ex Art 28 TEC)

Prohibition of quantitative restrictions on imports.

Art 36 TFEU (ex Art 30 TEC)

Exception to the prohibition of Art 34 in relation to the protection of health and life of humans, animals and plants.

Art 114 TFEU (ex Art 95 TEC)

Internal market

Art 191 (ex Art 174 TEC)

Protection of the environment: Principles and Goals

Art 192 (ex Art 175 TEC)

Legal basis for decision-making in environmental action

Art 193 (ex Art 176 TEC)

More stringent national measures and national funding of environmental measures.

3.1.  The Environmental Competence and the Principle of Subsidiarity The Lisbon Treaty introduces for the first time a list of competences in Article 4(2) of the TFEU that classifies the environment among the shared competences between the Union and the Member States whose exercise is informed by the subsidiarity principle.12 Now, the institutions of the Union shall apply the 12  The principle of subsidiarity was initially introduced by the Single European Act 1986 specifically for the exercise of the new environmental competence, before becoming a key principle inspiring the exercise of all shared competences in the Maastricht Treaty.

EU Environmental Law: An Introduction 9 principle as laid down in the Protocol on the application of the principles of subsidiarity and proportionality, attached to the Lisbon Treaty. National Parliaments will ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol. In the Treaties, the EU’s powers are defined not only from the point of view of their content or subject, but especially from the functional point of view, leading to a process of dynamic definition of competences inspired by aims and objectives without pre-set limits; so measures to fight environmental crime and transnational environmental crime could be considered as integral to these competences. In this dynamic process of defining the competence system, the ECJ has played a major role. Before the Lisbon Treaty, the ECJ ruling in the Environmental Crime judgment opened the door to the EU to legislate on environmental crime within limits as mentioned above. In the Environmental Crime and Ship-source Pollution cases, the ECJ exercised its jurisdiction over conflicts of competence that were raised between Member States, the Council and the Commission over the EU competence and its scope regarding the protection of the environment through criminal law, as examined above.

3.2.  The Objectives and Principles of EU Environmental Law As Krämer posits: the broad definition of objectives of EU environmental policy, as laid down in Articles 3 TEU and 191.1 TFEU, hardly leaves any area of environmental policy, as it is perceived in any one of the 28 Member States, outside EU competence. Measures to realise the objectives of the Union’s environmental policy may be based on any relevant article of the TFEU, although Articles 191 and 192 remain the most relevant provisions for EU environmental action.13

Thus, regarding environmental crime, future measures will be adopted using both provisions: those of the environment and those regarding the Area of Freedom, Security and Justice: Articles 67(3), 82, 83 and 84 of the TFEU. The choice of the legal basis is a key question, considering the often diverging positions of EU institutions and the Member States on the subject. It conditions the decision-making procedures to be applied and so the participation of EU institutions. The frequent intervention of the ECJ in the settlement of disputes between the European Commission and the Member States over the exercise of shared competences has led to the ‘judicialisation’ of these differences.

13 

See L Krämer, EU Environmental Law (London, Sweet and Maxwell, 2012) 5.

10  Teresa Fajardo 3.3.  Decision-making Procedures The Lisbon Treaty streamlines the EU’s decision-making procedures. The codecision procedure became the ‘ordinary legislative procedure’ after the Lisbon Treaty.14 Since 2014, Council decisions have required the support of 55 per cent of the Member States, representing at least 65 per cent of the European population. This is known as ‘the double majority’. At least four countries are needed to form a blocking minority. This system is considered to give double legitimacy to decisions: both that of Member States and that of their populations represented in this new requirement of the minimum 65 per cent. For the first time, national parliaments have a direct input into the European decision-making process. Under the Lisbon Treaty, all proposed EU laws have to be sent to national parliaments, which will ensure that they comply with the principle of subsidiarity. Any national parliament has eight weeks in which to argue the case if it considers that a proposal oversteps EU competence in matters that can best be dealt with at national, regional or local level. If enough national parliaments object, the proposal can be amended or withdrawn. In the case of the environment, unanimity is still reserved for some fields, while the ordinary legislative procedure is applied to most legislative measures and for the adoption of the Environment Action Programmes.

3.4.  The Seventh Environment Action Programme After the Lisbon Treaty, Article 192(3) of the TFEU now envisages that: General action programmes setting out priority objectives to be attained shall be adopted by the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions. The measures necessary for the implementation of these programmes shall be adopted under the terms of paragraph 1 or 2, as the case may be.

Ever since 1973, European environmental action has been guided by Environment Action Programmes that were adopted, at first, every five years, and since the fifth programme, for a period of 10 years. After a period of blockage, the Seventh Environment Action Programme (‘7EAP’) was finally approved in November 2013.15

14  Co-decision is the term for the European Parliament’s power to make laws jointly on an equal footing with the Council of Ministers. This means that EU decision-making will be based on the double legitimacy of the people (as represented by their MEPs in the European Parliament) and the Member States (as represented by the Ministers in the Council). 15  Decision No 1386/2013/EU of the European Parliament and of the Council of 20 November 2013 on a General Environment Action Programme to 2020: ‘Living well, within the limits of our planet’, [2013] OJ L354.

EU Environmental Law: An Introduction 11 It will be in force until 2020, setting out the priorities for the environment that the European political leaders should follow in times of economic crisis. However, the Lisbon Treaty has brought some changes that can be of great significance in the future. As Krämer considers: ‘the content of an EU action programme which was adopted under Article 192(3) TFEU will constitute a source of law’16 and moreover the interpretation of the subsidiarity principle will be influenced by decisions under Article 192.3: where a decision under this provision explicitly provides for an EU measure on a specific item, it will normally not be possible to object such an EU measure by invoking the subsidiarity principle—though much depends, of course, on the exact content of the measure.17

In its agenda, the 7EAP does not expressly address environmental crime or make any reference to the criminalisation of actions that can damage the environment. However, it adopts as its ‘Priority objective 4: The purpose of maximizing the benefits of Union environment legislation by improving implementation.’ Thus improving the implementation of the Union environmental acquis at Member State level should, therefore, be given top priority in the coming years.18 Non-judicial dispute resolution will also be promoted as an alternative to litigation. By 2020, the EU should ensure that national provisions on access to justice reflect the case law of the CJEU promoting non-judicial dispute resolution as a means of finding amicable and effective solutions for disputes in the environmental field. The external dimension of the environmental policy is reinforced in its ‘Priority objective 9: To increase the Union’s effectiveness in addressing international environmental and climate-related challenges.’ According to this priority objective, the EU will continue with its commitment to sustainable development and also with the goals and challenges accepted in the UN Conference on Sustainable Development of 2012, (‘Río + 20’). Moreover, ‘in addition to translating these commitments into action at local, national and Union level, the Union will engage proactively in international efforts to develop the solutions needed to ensure sustainable development globally’.19 Also many of the priority objectives set out in the 7EAP can only be fully achieved as part of a global approach and in cooperation with partner countries, and overseas countries and territories. That is why the Union and its Member States will engage in relevant international, regional and bilateral processes. These processes will become more important when developing action to

16  Krämer exemplifies this effect saying that ‘where for example the Sixth Environmental Action Programme, requests in Article 7.1. that “chemicals that are dangerous should be substituted by safer chemicals or safer alternative technologies not entailing the use of chemicals with the aim of reducing risks to man and the environment” this clearly constitutes the recognition of the substitution principle in EU environmental law, which may influence the interpretation of Arts. 34, 36, 114, 192 or 193 TFEU’, L Krämer, EU Environmental Law, n 13 above, 7–8. 17 Ibid. 18  Paragraph 57 of the 7th Environment Action Programme. 19  Paragraph 96 of the 7EAP.

12  Teresa Fajardo pursue the new Sustainable Development Goals adopted by the United Nations in September 2015, especially Goal 15 on life on land that calls for urgent action to end poaching and trafficking of protected species of flora and fauna and to address both the demand and supply of illegal wildlife products. The Union and its Member States [will] continue to promote an effective, rules-based framework for global environment policy, complemented by a more effective, strategic approach in which bilateral and regional political dialogues and cooperation are tailored towards the Union’s strategic partners, candidate and neighbourhood countries, and developing countries, respectively, supported by adequate finance.20

The Programme posits that the time span it covers (until 2020) ‘corresponds to key phases in international climate, biodiversity and chemical policy’.21

4.  EU ENVIRONMENTAL LAW EXTERNAL DIMENSION AFTER THE LISBON TREATY

Yet again the Lisbon Treaty makes no specific reference to environmental crime as one of the goals of its international action. As mentioned, the Lisbon Treaty incorporates climate change among the objectives of the EU external actions when Article 191(1) specifies that the EU will promote ‘measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change’ (emphasis added). In real terms, it is just the expression of a political commitment that does not change anything, since the competence to fight against climate change was implicit in the general goals and already being exercised by the European Union. Concerning the EU legal personality and EU representation, the Lisbon Treaty created great expectations for the European Commission because external representation is now attributed to the her and, in particular, the High Representative/ Vice-President of the Commission.22 The EU succeeded the European Community as party to the Multilateral Environmental Agreements (MEAs), and the

20 

Paragraph 98 of the 7EAP. Ibid, para 99. One of the most important goals of the EU external environmental action will be to address the global problem of illegal logging. For this, the EU will explore and enhance: 21 

—— ——

Provisions in its international trade agreements and the bilateral Forest Law Enforcement, Governance and Trade voluntary partnership agreements, which ensure that only legallyharvested timber enters the Union market from partner countries. Other policy options to reduce the impact of Union consumption on the global environment, including deforestation and forest degradation.

In this particular field the fight against environmental crime will be carried on through the specific provisions of Conventions such as CITES. 22  See T Fajardo, ‘Revisiting the External Dimension of the Environmental Policy. Some Challenges Ahead’ (2010) 7 Journal of European Environmental and Planning Law 365–90.

EU Environmental Law: An Introduction 13 Commission Delegations became the EU Delegations in Third States and at the United Nations (UN).23 In the case of most Conferences of the Parties (CoPs) of the MEAs, the EU is still represented by its Member States acting on its behalf in those treaties to which (as a non-state) it cannot be a party such as the MARPOL Convention. In the case of CITES, the entry into force of the Gaborone amendment in October 2013 permitted the accession of the EU on 8 July 2015 when the problems of representation were resolved both at the EU level and in the CoPs.24 Most MEAs are mixed agreements; the EU and its Member States are both signatories of these agreements and, after the Lisbon Treaty, they raise now the question whether the representation in their CoPs should be held exclusively by the European Commission or whether the old practice of double-hat representation should be respected, as the Council of Ministers and the Member States wish. According to this practice, the Commission and the Member State holding the EU rotating Presidency will share the representation. After an initial confrontation between the Commission and the Spanish Presidency in the case of the representation before the UN Conference on Mercury, where the Commission withdrew the mandate of negotiation on the spot, the subsequent practice has been more pragmatic and the old practice is maintained when the Member States’ representatives before the international institutions are required because of their statutes or their special expertise.25 23  In the case of the United Nations after the entry into force of the Lisbon Treaty, the Spanish Presidency led exploratory conversations to explain the changes and the conferral of new competences, which finally resulted in the Belgium Presidency’s request for a new status before the General Assembly. The High Representative/Vice President presented itself before the Security Council, asking to strengthen the partnership with the UN to reflect ‘the potential for even stronger cooperation due to the new Lisbon Treaty arrangements’. The Decision finally adopted by the General Assembly ­lowered the expectations, suppressing all references to the Lisbon Treaty and just revised EU’s observer status:

‘The representatives of the EU, for the purposes of participating effectively in the sessions and work of the General Assembly, including in the general debate, and its committees and working groups, in international meetings and conferences convened under the auspices of the Assembly, as well as in United Nations conferences, and in order to present positions of the European Union, shall be invited to speak in a timely manner, similar to the established practice for representatives of major groups, shall be permitted to circulate documents, to make proposals and submit amendments, to raise points of order, but not to challenge decisions of the presiding officer, and to exercise the right of reply, and be afforded seating arrangements which are adequate for the exercise of the aforementioned actions; the European Union shall not have the right to vote or to put forward candidates in the General Assembly’. See the Draft Resolution presented by the EU Member States, Participation of the European Union in the work of the UN, Doc A/64/L/67, 31 August 2010 and the Resolution finally adopted UNGA Res 65/276 of 3 May, A/65/L.64/Rev.1. 24 See Council Decision (EU) 2015/451 of 6 March 2015 concerning the accession of the European Union to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), [2015] OJ L75/1. 25 See E Morgera (ed), The External Environmental Policy of the European Union. EU and International Law Perspectives (Cambridge, Cambridge University Press, 2012).

14  Teresa Fajardo Regarding the UN Agenda reform, the EU has strongly supported the strengthening of the United Nations Environment Programme (UNEP). The EU considers that UNEP’s tasks have ‘grown steadily over the years without being matched by status, mandate and adequate resources’26 and has campaigned to transform it into a UN Environmental Organisation, with a strong mandate, based in Nairobi, with stable, adequate and predictable resources that enable the organisation to adequately deal with emerging issues and contemporary challenges.

5. CONCLUSIONS

EU environmental primary law has conceived competences with such a broad scope that almost any measure to protect the environment through criminal law at the internal or global level can be envisaged. However, the legal development of such a goal will require the addition of the legal provisions regarding the Area of Freedom, Security and Justice: Articles 67(3), 82, 83 and 84 of the TFEU. The choice of the legal bases will become a key question, considering, as mentioned above, the often-diverging positions of EU institutions and the Member States on the subject. In case of dispute among them, the Seventh Environment Action Programme after the Lisbon Treaty can play a decisive role to attribute the competence to the EU institutions, since one of its priorities is improving implementation of Union environment legislation. Whether this priority can be better achieved through criminal law is a question that will be determined in future legal developments or before the ECJ which on so many occasions has put an end to these disputes on the choice of legal bases.

26  EU Presidency Statement—UN General Assembly: Environmental Reform, Informal consultations of the UN General Assembly on Environmental Reform; Statement by Counsellor Albert Graf, German Mission to the United Nations, on behalf of the European Union, 18 January 2007, available at: http://www.eu-un.europa.eu/articles/en/article_6690_en.htm.

2 EU Harmonisation Competences in Criminal Matters and Environmental Crime GIOVANNI GRASSO

1.  PRELIMINARY REMARKS: THE HARMONISATION OF THE CRIMINAL PROVISIONS OF THE MEMBER STATES BEFORE THE LISBON TREATY

A

RTICLE 83 OF the Treaty on the Functioning of the European Union (TFEU) is the fundamental provision as far as the harmonisation of substantive criminal law is concerned. In order to understand this provision, a brief introductory remark is necessary. It seems appropriate to underline that the issue of the harmonisation of criminal law of the Member States through European Union regulation was laid down long before the Lisbon Treaty.1 Two different aspects have to be taken into account. First of all, the third pillar of the earlier European Union Treaty (TEU), after the amendments introduced by the Amsterdam Treaty, provided that police and judicial cooperation in criminal matters had the aim of realising an area of freedom, security and justice. Such an objective, according to Article 29 TEU, was to be achieved through different instruments, among which there was also the ‘approximation, where necessary, of rules on criminal matters in the Member States, in accordance with the provisions of Article 31(e)’. Article 31(e), in that respect, prescribed the adoption of ‘measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking’. The list of the areas subject to the approximation measures was not exhaustive; indeed, the broad interpretation of the notion of ‘organised crime’ and the suggestions emerging from the conclusions of the European Council of Tampere in October 1999 permitted the realisation of several interventions of harmonisation

1  See D Flore, Droit pénal européen. Les enjeux d’une justice pénale européenne (Brussels, Larcier, 2009).

16  Giovanni Grasso of criminal law of the Member States in different areas of crime.2 In particular, the Council has approved several framework decisions in which it establishes coordinated provisions for the punishment of certain types of conduct. In the sphere of financial crime, the following can be mentioned: Framework Decision 2000/383/ JHA on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro,3 as amended by the Framework Decision 2001/888/JHA;4 and Framework Decision 2001/500/JHA on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime.5 The combating of terrorism by means of criminal law is the subject-matter of Framework Decision 2002/475/ JHA,6 and the trafficking in human beings, that of Framework Decision 2002/629/ JHA.7 The protection of the victims of illegal immigration is addressed in Framework Decision 2002/946/JHA on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence.8 Framework Decision 2003/568/JHA harmonises national legal provisions for combating corruption in the private sector.9 Concerning the protection of environment, the Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law and the Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution have been adopted.10 It is necessary to underline that these framework decisions do not target only cases of transnational crimes; furthermore the areas of crime concerned are not all included in the list provided in Article 31(e). Under the earlier Maastricht Treaty (before the amendments introduced by the Amsterdam Treaty), a very important instrument of harmonisation of criminal 2 See L Salazar, ‘Art. 83 TFUE’ in C Curti Gialdino (ed), Codice dell’Unione Europea (Napoli, Simone, 2012) 916. 3 Council Framework Decision 2000/383/JHA of 29 May 2000 on increasing protection by ­criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro [2000] OJ L140/1. 4 Council Framework Decision 2001/888/JHA of 6 December 2001 amending Framework­ Decision 2000/383/JHA on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro [2001] OJ L329/3. 5  Council Framework Decision 2001/500/JHA of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime [2001] OJ L182/1. 6  Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism [2002] OJ L164/3. 7  Council Framework Decision 2002/629/JHA of 19 July 2002 on combating trafficking in human beings [2002] OJ L203/1. 8  Council Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence [2002] OJ L328/1. 9  Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector [2003] OJ L192/54. 10  See, respectively, Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law [2003] OJ L29/55, and Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution [2005] OJ L255/164.

Criminal Law Harmonisation Competences 17 law of the Member States was adopted, namely the Convention of 29 July 1995 concerning the protection of the financial interests of the European Communities, further supplemented by three Protocols. Secondly, academic legal thinking, in its majority, expressed the view that, under the first pillar, the Community bodies had the power to impose the harmonisation of the Member States’ criminal provisions or the introduction of uniform offences, provided that it was necessary for the purpose of achieving the Community objectives, in an area where the Treaties granted those bodies specific powers.11 Following this point of view, the European Commission introduced, in several proposals for directives, the obligation for the Member States to adopt criminal provisions to sanction illegal conduct.12 According to the view of the Commission, such obligations found their legal basis in the provisions which permitted the intervention of Community regulation in a specific area.13 Those proposals were never accepted in this form by the Council (before the judgment of the European Court of Justice of 13 September 2005). The adopted directives identified the forms of illegal conduct to be punished but they have not imposed any obligation concerning the nature of the offence or the type of the sanction.14 As for the sanction, the directives imposed the obligation to introduce sanctions which should be ‘appropriate’, ‘effective’ and ‘dissuasive’; however, they had a very limited impact on the criminal systems of Member States.15 Before the entry into force of the Treaty of Lisbon, the issue found a solution in two fundamental judgments of the European Court of Justice (ECJ). With the judgment of 13 September 2005 already mentioned, the ECJ recognised the power

11  See, among others, H Johannes, ‘Das Strafrecht im Bereich der Europäischen Gemeinschaften’ (1968) 1 Europarecht 63, 107 ff; G Grasso, Comunità europee e diritto penale (Milan, Giuffrè, 1989) 192 ff (also translated into Spanish: Comunidades Europeas y Derecho Penal. Las relaciones entre el ­ordenamiento comunitario y los sistemas penales de los Estados miembros (Cuenca, Ediciones de la Universidad de Castilla-La Mancha, 1993); G Grasso, ‘Harmonisation of the national penal systems: a possible objective for the European Union?’ in F Longo (ed), The European Union and the challenge of transnational organised crime. Towards a common police and judicial approach (Milano, Giuffrè, 2002) 97 ff; E Bacigalupo, ‘Möglichkeiten einer Rechtsangleichung im Strafrecht zum Schutz der ­Finanzinteressen der Europäischen Gemeinschaften’ in G Dannecker (ed), Die Bekämpfung des Subventionsbetrugs im EG-Bereich (Köln, Schriftenreihe der Europäischen Rechtsakademie Trier (ERA), 1993), 146 ff; Stefano Manacorda, ‘L’efficacia espansiva del diritto comunitario sul diritto penale’ [1995] V Foro italiano 55, 66 ff. 12  Proposal for a Council Directive on prevention of the use of the financial system for the purpose of money laundering, COM/90/106 FINAL [2000] OJ C106/6; Proposal for a Council Directive on coordinating regulations on insider dealing, COM/87/111 FINAL [1987] OJ C153/8. 13  On the position taken and the proposals presented by the Commission, see R Sicurella, Diritto penale e competenze dell’Unione europea. Linee guida di un sistema integrato di tutela dei beni giuridici soprannazionali e dei beni giuridici di interesse comune (Milano, Giuffrè, 2005) 204 ff. 14  Council Directive 91/308/EEC of 10 June 1991 on prevention of the use of the financial system for the purpose of money laundering [1991] OJ L166/77; Council Directive 89/592/EEC of 13 November 1989 coordinating regulations on insider dealing [1989] OJ L334/30. 15 A Bernardi, ‘Strategie per l’armonizzazione dei sistemi penali europei’ in S Canestrari and L Foffani (eds), Il diritto penale nella prospettiva europea. Quali politiche criminali per quale Europa (Milano, Giuffrè, 2005) 420–21.

18  Giovanni Grasso for the Community bodies to harmonise the criminal provisions of the Member States ‘where it is necessary in order to ensure the effectiveness of Community law’. According to the ECJ, the condition for such an intervention is that the measure adopted should be ‘necessary in order to ensure that the rules which it lays down on environmental protection are fully effective’ (in the case at stake the measure was ‘essential … for combating serious environmental offences’). The following judgment of the ECJ of 23 October 2007, in Case C-440/05 concerning ship-source pollution, reaffirmed the conclusions of the previous decision: the Community legislature may have the power to require Member States ‘to apply criminal penalties to certain forms of conduct’; however, the ECJ decided that ‘the determination of the type and level of the criminal penalties to be applied does not fall within the Community’s sphere of competence’.16 As a consequence, the ECJ declared void the two Framework Decisions (FD 2003/80/JHA of 27 January 2003 and FD 2005/667/JHA of 12 July 2005) that had imposed on Member States an obligation to prescribe criminal penalties, under the third pillar.17 Following the judgment of the ECJ, the Council adopted a directive ‘on the protection of the environment through criminal law’ (Directive 2008/99/EC of 19 November 2008).18 This directive requires Member States to introduce criminal penalties for specific forms of conduct, but the choice of the type and of the level of the penalty is left to the discretion of the Member States. The only provision concerning this issue is that the offences referred to in Articles 3 and 4 of the directive should be ‘punishable by effective, proportionate and dissuasive criminal penalties’.19 Further directives, which include the obligation to introduce criminal penalties, have been subsequently adopted.20 Through the judgments of the Court of Justice and the subsequent adoption of these directives, a competence of the European Community in criminal matters has been recognised. But it is an indirect criminal competence, which limits the discretion of the national legislator, but requires its intervention in order to introduce the criminal offences into the national criminal system.21

16  It has to be underlined that, according to this judgment of the Court of Justice, the criminal law provisions should have been adopted on the basis of art 80(2) TEC, devoted to the common transport policy (and consequently not on the basis of the provisions, such as art 175 TEC, concerning the protection of the environment). 17  On the two ECJ decisions, see V Mitsilegas, EU Criminal Law (Oxford and Portland OR, Hart Publishing, 2009) 70 ff. 18  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 [2008] OJ L328/28. 19 For more details on the directive 2008/99/EC of 19 November 2008 see GM Vagliasindi in chapter 3 of this volume. 20  Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals [2009] OJ L168/24. See also Directive 2009/123/EC of the European Parliament and of the Council of 21 October 2009 amending Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements [2009] OJ L280/52. 21  See G Grasso, ‘Relazione introduttiva’ in G Grasso and R Sicurella (eds), Per un rilancio del progetto europeo. Esigenze di tutela degli interessi comunitari e nuove strategie di integrazione penale (Milano, Giuffrè, 2008) 25; F Viganò, ‘Il diritto penale sostanziale’ [2011] Diritto penale e processo 22, 27.

Criminal Law Harmonisation Competences 19 2.  ARTICLE 83 TFEU AND THE HARMONISATION OF CRIMINAL LAW

As far as Article 83 TFEU is concerned, it must be underlined that the prescribed approximation of laws is an autonomous and fundamental instrument to establish the area of freedom, security and justice, although the wording of the first paragraph of Article 82 TFEU seems also to link such an approximation in the field of criminal law to judicial cooperation and to the mutual recognition of criminal judgments. Different harmonisation initiatives, which were totally independent of the needs of the judicial cooperation, had been previously taken within the third pillar:22 therefore, it is clear that such an acquis should not be lost. The approximation of laws, in fact, has significant purposes that go beyond a mere auxiliary function in the service of judicial cooperation.23 Article 83 lists the areas in which the approximation of laws can be realised and it distinguishes between the cases of ‘particularly serious crime with a crossborder dimension’ and the ones in which the approximation proves essential ‘to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures’. Therefore, thanks to these provisions, the legitimacy of obligations of criminal harmonisation (descending from EU law) has been recognised and a criminal competence of the EU has been introduced. However, it is not a direct power of incrimination of the European institutions: indeed, they can only adopt directives, which have to be subsequently implemented by national legislators. But the discretion of national Parliaments is obviously restricted in the choice of the legal interests to protect, the techniques for such protection and the definition of criminal offences, and in the choice of sanctions, too. For these features of the EU competence in this field, the definition of an indirect criminal competence has been considered more appropriate, insofar as such a competence limits the national legislator but requires its involvement.24 Rosaria Sicurella has used the expression ‘integrated criminal competence’.25 Therefore, Article 83 TFEU provides a context in which all the adopted harmonisation measures of national criminal laws can be referred to: both those which were adopted within the first pillar (related to supranational interests on the basis of the hints in the decision of the ECJ delivered on 13 September 2005) and those

22  See L Salazar, ‘La lotta alla criminalità nell’Unione: passi in avanti verso uno spazio giudiziario comune prima e dopo la Costituzione per l’Europa e il programma dell’Aia’ (2004) 11 Cassazione penale 3510, 3522–23. See the text above, section 1. 23  See G Grasso, ‘Il Trattato di Lisbona e le nuove competenze penali dell’Unione Europea’ in Studi in onore di Mario Romano (Napoli, Jovene, 2011) 2326. 24 See Viganò, ‘Il diritto penale sostanziale’ (n 21 above) 27; Grasso, ‘Il Trattatto di Lisbona’ (n 23 above) 2327. 25  R Sicurella, ‘“Prove tecniche” per una metodologia dell’esercizio delle nuove competenze concorrenti dell’Unione Europea in materia penale’ in G Grasso, L Picotti and R Sicurella (eds), L’evoluzione del diritto penale nei settori d’interesse del diritto europeo alla luce del Trattato di Lisbona (Milano, Giuffrè, 2011) 32–33.

20  Giovanni Grasso adopted within the third pillar (especially devoted to cross-border crime). In that respect, Italian academic legal thinking has distinguished two categories of legal interests which are affected by the EU legislation.26 Indeed, the properly supranational legal interests (ie the ‘institutional’ ones and the legal interests linked to EU activity, such as for example the protection of the environment and the repression of illegal immigration) have been differentiated from those of ‘common interest’; the latter are mostly national but at the same time they contribute to the implementation of some EU purposes (especially the establishment of an area of freedom, security and justice): this is the case, above all, of the need to tackle cross-border crime. The difference between these two categories of legal interests is embodied in two different paragraphs of Article 83: the first is devoted to the repression of serious crime with a cross-border dimension, the second to the protection of properly supranational interests. However, all the cases in which the obligation to criminalise will be introduced on the basis of the EU law should be found within Article 83 TFEU.27 Considering the two paragraphs of Article 83, the first one refers to ‘particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis’.28 The wording is quite generic; moreover, the second and third paragraphs list the areas concerned (terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime) and allow their extension through a decision adopted unanimously by the Council, with the previous consent of the European Parliament (EP). The fact that such an important decision (as well as that of extending the powers of the European Public Prosecutor’s Office) can be adopted by a procedure in which the role played by the EP is so limited (insofar as it has only to consent to the text prepared by the Council) is blameworthy.29 It is with reference to this very important issue alone that the ‘democratic deficit’—which has been finally overcome in the ordinary legislative procedure—continues to exist. As said before, the second paragraph of Article 83 TFEU is devoted to the cases of harmonisation descending from the need to protect the supranational legal

26 See, ex multis, Grasso, ‘Il Trattatto di Lisbona’ (n 23 above) 2326; Sicurella, Diritto penale (n 13 above) 227 ff and 463 ff. 27  With the exception of cases provided for in Article 325 TFEU, concerning the protection of the financial interest of the European Union, which constitutes an autonomous legal basis for harmonisation measures in this particular area. 28  On this issue, see G Corstens, ‘Criminal justice in the post-Lisbon era’ [2011] Cambridge Yearbook of European Legal Studies 23. 29  G Grasso, ‘La “competenza penale” dell’Unione europea nel quadro del Trattato di Lisbona’ in G Grasso, L Picotti and R Sicurella (eds), L’evoluzione del diritto penale nei settori d’interesse europeo alla luce del Trattato di Lisbona (Milano, Giuffrè, 2011) 697; C Sotis, ‘Le novità in tema di diritto penale europeo’ in P Bilancia and M D’Amico (eds), La nuova Europa dopo il Trattato di Lisbona (Milano, Giuffrè, 2009) 159.

Criminal Law Harmonisation Competences 21 interests which are linked to the activity of the European institutions. But this interpretation is not fully accepted, due to the wording of this paragraph, which allows the adoption of the approximation measures of criminal law only when this is ‘essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures’. Such a harmonisation in connection with criminal matters—which is based on the absolute necessity of these measures for the implementation of an EU policy— seems, then, to be conceived as an instrumental power in respect to harmonisation measures which have been adopted in a field different from the criminal one. In that respect, Alessandro Bernardi uses the expression ‘criminal accessory competence’.30 But the consequences of such a literal and restrictive interpretation of this provision would be paradoxical and, in practice, incomprehensible. For example, it could be argued that a harmonisation measure in criminal matters is not possible in the areas of exclusive competence of the EU (in the light of Article 3 TFEU), in which the EU never adopts such measures.31 Even in the areas of shared competence, a harmonisation measure should be excluded when the EU has adopted unification (and not simply harmonisation) measures. Therefore, the most correct solution seems to be admitting that in these cases the harmonisation competence exists a fortiori.32 Therefore, the provision should be interpreted in accordance with the meaning resulting from the proposals of the Praesidium of the European Convention (which elaborated the Draft Treaty establishing a Constitution for Europe), on the basis of the text which has been prepared by the working group on the area of freedom, security and justice: in fact, it allows the approximation of criminal laws in regard to crimes which affect a ‘common interest which is the subject of a Union policy’.33 The protection of the environment is undoubtedly one of the areas in which a harmonisation measure can be adopted on the basis of Article 83(2) TFEU (even in the most restrictive interpretation of this rule). On the one hand, indeed, the environment is a legal interest of supranational importance, as has been underlined, in particular, by the Conclusions of the Advocate General Ruiz JaraboColomer in Case C-176/03. On the other hand, environmental matters have been subject to several interventions of harmonisation. With regard to this aspect, it

30  A Bernardi, ‘Ombre e luci nel processo di armonizzazione dei sistemi penali europei’ in G Grasso, G Illuminati, R Sicurella and S Allegrezza (eds), Le sfide dell’attuazione di una Procura europea: definizione di regole e loro impatto sugli ordinamenti interni (Milano, Giuffrè, 2013) 221 ff. 31  For several interesting remarks, see E Rubi-Cavagna, ‘Réflexions sur l’harmonisation des incriminations et des sanctions pénales par le traité de Lisbonne’ (2009) 3 Revue de science criminelle et de droit pénal comparé 501, 506 ff. 32  Ibid 506 ff. 33  See, with regard to the corresponding provision of the Treaty establishing a Constitution for Europe, G Grasso, ‘La Costituzione per l’Europa e la formazione di un diritto penale dell’Unione Europea’ in G Grasso and R Sicurella (eds), Lezioni di diritto penale europeo (Milano, Giuffrè, 2007) 695.

22  Giovanni Grasso can be underlined that the protection of the environment (which is referred to in the judgment of the European Court of Justice of 13 September 2005) has even been the object of the first harmonisation measure realised by EU legislation in the field of criminal law with Directive 2008/99/EC of 19 November 2008 (see above, section 1). Therefore, a harmonisation measure is possible on the basis of Article 83(2) and it can have significant added value, as will be shown in the following paragraphs (see below, section 6).

3.  THE CONTENT OF THE POSSIBLE HARMONISATION MEASURES

As far as the content of the harmonisation measures is concerned, it must be highlighted that Article 83 TFEU refers to the adoption of ‘minimum rules concerning the definition of criminal offences and sanctions’. The same expression could be found in the previous version of Article 31 TEU and refers to a limited competence of the EU.34 In the past, Rosaria Sicurella has underlined this very issue, namely that ‘the adopted expression is technically unsuitable to give clear standards and binding guidelines concerning the level of incisiveness of the European legislation’.35 Therefore, it should be argued that such an intervention, first of all, must concern the structure of the type of offence which is dealt with in a given directive. In that respect, it should be possible also to propose legislative models in order to obtain a substantial unification of the type of offence in different Member States. Article 83 TFEU, moreover, solves one of the problems which emerged in the case-law of the ECJ, because it allows the legislative intervention of the EU to deal with the sanctions (such an intervention had been excluded in the decision of the Court of Justice of 23 October 2007, in Case C-440/05). Indeed, it has been underlined that the fact of deciding which behaviour had to be punished, without paying attention to the nature or the gravity of the sanctions themselves (as for example happened in the directive concerning insider trading)36 turned out to be too reductive: the pursued aim (namely the implementation of an internal European market of capital) can be hindered by an excessive difference in sanctions, even if all legal systems criminalise some behaviours.37

34  For more details, see R Sicurella, ‘Some Reflections on the Need for a General Theory of the Competence of the European Union in Criminal Law’ in A Klip (ed), Substantive Criminal Law of the European Union (Antwerpen-Apeldoorn-Portland, Maklu, 2011) 233 ff. 35 R Sicurella, ‘La tutela “mediata” degli interessi della costruzione europea: l’armonizzazione dei sistemi penali nazionali tra diritto comunitario e diritto dell’Unione europea’ in G Grasso and R Sicurella (eds), Lezioni di diritto penale europeo (Milano, Giuffrè, 2007). 36  Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse) [2003] OJ L96/16. 37  I have strongly supported this opinion throughout the years: see, eg G Grasso, ‘Introduzione: Diritto penale ed integrazione europea’ in G Grasso and R Sicurella (eds), Lezioni di diritto penale europeo (Milano, Giuffrè, 2007) 75–76.

Criminal Law Harmonisation Competences 23 On the other hand, the expression used in Article 83, ‘minimum rules’, does not imply that the harmonisation of issues of the general part of criminal law is prohibited. In fact, in a conference recently held at the University of Catania, Francesco Viganò has underlined that the uniform application of the provisions which criminalise given behaviours (the so called provisions of the ‘special part’ of criminal law) can be actually reached only if there is uniformity in the provisions of the general part, insofar the latter ones regulate the conditions of applicability of the former in each case.38

Indeed, a harmonisation which totally excludes the general part of criminal law will be unable to achieve the prescribed goals, because the proper range of the personal responsibility is also linked to the application of rules of the general part. Nevertheless, it has been underlined that the implementation of a directive regarding principles of general part could be hindered by the hostility of national scholars, insofar as each legal system is based on seminal choices of criminal policy which express the substance of each juridical tradition.39 Precisely because of these difficulties, in some recently adopted harmonisation directives,40 the obligation to criminalise behaviours of attempt and participation in the offence has been included, without an in-depth definition of such concepts. However, a certain degree of harmonisation could be triggered by the interpretative decisions of the ECJ, that would be requested to interpret the concepts of the general part of criminal law which are dealt with in the harmonisation directive (for example, attempt/participation) and to evaluate their correct implementation in the domestic legal systems. The areas of the general part of criminal law in which harmonisation measures seem more likely to be adopted are those relating to the statute of limitation and to the liability of legal persons. In that respect, the provisions of the Proposal for a directive on the fight against fraud to the Union’s financial interests by means of criminal law are highly meaningful:41 indeed, on the one hand, it is requested to criminalise both the attempt and the participation in the offence, without defining these concepts. On the other hand, relevant binding guidelines concern two issues of the general part of criminal law for which the need for harmonisation appears to be more relevant. Article 6 of the proposal refers to the liability of legal persons, pointing out the subjective and the objective criteria for such liability (which is referred to as

38 F Viganò, ‘Verso una “Parte generale europea”?’ in G Grasso, G Illuminati, R Sicurella and S Allegrezza (eds), Le sfide dell’attuazione di una Procura europea: definizione di regole e loro impatto sugli ordinamenti interni (Milano, Giuffrè, 2013) 123 ff. 39 Ibid. 40 Article 8 of the Directive 2013/40/EU of the European Parliament and of the Council of 12 August 2013 on attacks against information systems and replacing Council Framework Decision 2005/222/JHA [2013] OJ L218/8. 41  Proposal for a Directive of the European Parliament and of the Council on the fight against fraud to the Union’s financial interests by means of criminal law, COM(2012) 363 final.

24  Giovanni Grasso ‘criminal’), whereas Article 9 refers to the sanction types for legal persons. Moreover, Article 12 takes into account the statute of prescription, providing a minimum period and the necessity of regulating its interruption.42 As far as the intervention on the general part of criminal law is concerned, the adoption of a ‘horizontal’ directive which concerns all the areas which have been the subject of harmonisation measures can be envisaged. Another option could be that of introducing more precise rules of the general part of criminal law in each harmonisation directive. On the other hand, an intervention on the general part of criminal law, which is independent of the above-mentioned harmonisation measures provided in Article 83 TFEU (a sort of European criminal code of general part), does not seem likely to be allowed.

4.  THE ‘EMERGENCY BRAKE’ MECHANISM

According to Article 83(3) TFEU, Where a member of the Council considers that a draft directive as referred to in paragraph 1 or 2 would affect fundamental aspects of its criminal justice system, it may request that the draft directive be referred to the European Council.

In this case the ordinary legislative procedure is suspended.43 If the European Council does not reach a consensus within the timeframe of four months (then referring the draft back to the Council), at least nine Member States can ask to establish enhanced cooperation on the basis of the draft directive concerned; in such a case it is not necessary to obtain the authorisation to proceed with enhanced cooperation provided in Article 20(2) TEU and Article 329(1) TFEU, because the authorisation is deemed to be automatically granted. This provision establishes a very complex mechanism which allows each Member State to interrupt any legislative intervention aimed at the harmonisation of the national criminal law on the basis of the first and second paragraph of Article 83, when such an intervention is perceived as affecting the fundamental principles of its criminal justice system. The mechanism is woolly and cumbersome and it distorts the legislation procedure in the areas in which it can be adopted. The possible compensation is the possibility to establish a form of enhanced cooperation, but it is not effective: if a process of harmonisation is essential ‘in order to ensure the effective implementation of a Union policy’, it should necessarily concern all the Member States and not only a group of them.44

42  The general approach of the Council on the Proposal at stake decreases the extent of the harmonisation measure regarding the statute of prescription (Council Document no 10729/13). 43  JC Piris, The Lisbon Treaty. A Legal and Political Analysis (Cambridge, Cambridge University Press, 2010) 185. 44  Grasso, ‘Il Trattato di Lisbona’ (n 23 above) 2326.

Criminal Law Harmonisation Competences 25 5.  THE PRINCIPLES OF CRIMINAL POLICY TO BE EMPLOYED IN THE ELABORATION OF THE EUROPEAN CRIMINAL PROVISIONS

The problem of which principles of criminal policy should inspire EU intervention in the field of criminal law is hotly debated both in the legal academic thinking and in the European institutions. Indeed, Article 83(1) does not deal with such a problem. Moreover, the second paragraph of the same article requires only that ‘the approximation of criminal laws and regulation of the Member States proves essential to ensure the effective implementation of a Union policy’. This last requirement can be linked with the judgment of the ECJ delivered on 13 September 2005, which referred to the need ‘to ensure that the rules which it lays down in environmental protection are fully effective’. In other words, as has been underlined by Advocate General Mazák in his Opinion in Case C-440/05, the ruling of the Court of Justice is ‘fundamentally motivated by and born out of the concern to ensure the full effectiveness of Community law’: the power to impose criminal sanctions is conceived as an ‘instrumental power in the service of the effectiveness of Community law’.45 However, it is clear that this sole requirement cannot safeguard the nature of criminal law as a ‘subsidiary instrument for the protection of legal interests’.46 As a consequence, it has been feared that the EU indirect criminal competence can broaden the accessory criminal law in an unacceptable way.47 Although such fears are legitimate, they have been contradicted (or at least reduced) by the first EU legal documents adopted in this field—for example the Directive on the protection of the environment through criminal law—but they have, however, led to the establishment of a core of European criminal policy, in which both the scholars and the supranational institutions have taken part. In that respect, one should recall the ‘Council Conclusions on model provisions, guiding the Council’s criminal law deliberations’, issued by the Justice and Home Affairs Council of 30 November 2009, the Communication from the Commission ‘towards an EU Criminal Policy’ issued in 2011 and the Resolution of the ­European Parliament of 9 February 2012. One conclusion—which actually emerges from the documents of the European institutions—has to be clearly pointed out: the EU indirect criminal competence must rely on the same criteria which inspire the power of criminalisation in a 45  Advocate General Ruiz-Jarabo Colomer, Conclusions in the case C-176/03, Commission v Council [2005] ECR I-7879, delivered on 26 May 2005, para 84. 46  Sotis (n 29 above) 148. 47  See H Satzger, ‘Der Mangel an Europäischer Kriminal politik. Anlass für das Manifest der internationalen Wissenschoftler gruppe “European Criminal Policy Initiative”’ (2009) 12 Zeitschrift für Internationale Strafrechtsdogmatik 691, 693. See also M Pelissero, ‘Competenza della Procura europea e scelte di incriminazione: oltre la tutela degli interessi finanziari’ in G Grasso, G Illuminati, R Sicurella and S Allegrezza (eds), Le sfide dell’attuazione di una Procura europea: definizione di regole e loro impatto sugli ordinamenti interni (Milano, Giuffrè, 2013) 109 ff. The ambiguity of the concept of ‘effectiveness’ is underlined by E Herlin-Karnell, ‘What Principles Drive (or Should Drive) European Criminal Law?’ (2010) 10 German Law Journal 1115, 1122 ff.

26  Giovanni Grasso democracy founded on the rule of law.48 Bearing this in mind, the requirement that the approximation proves ‘essential’ to ensure the effective implementation of a Union policy is totally consistent with the proper needs of the supranational system (especially in the light of the principle of subsidiarity), on the one hand, but on the other hand, it does not exhaust the prerequisites of criminal policy for the power of criminalisation. Then, it means that the requirement referred to in Article 83(2) shall be evaluated before taking into account these other requirements, insofar as the latter ones will be dealt with by the EU legislator only after it has been proved that the given intervention is essential to ensure the aforementioned implementation.49 Now that I have briefly explained (and somehow reduced) the meaning of the wording of Article 83(2) and of the rulings of the ECJ—which have been useful to outline the EU indirect criminal competence—our attention can now be focused on the general principles which should underpin the EU criminal policy, in the light of the suggestions both of the scholars and of the EU institutions. The first requirement to be fulfilled is that the behaviour to be criminalised harms (or endangers) a legal interest. The above-mentioned Council Conclusions underline that the criminal provisions have to be adopted in order to grant a necessary protection of legal interests, too. Also in their Opinions, Advocates General Ruiz Jarabo-Colomer (in Case C-176/03) and Mazák (in Case C-440/05) have highlighted that criminal law is an instrument which is devoted to the protection of interests and fundamental values in a given society. The same path has to be followed by the EU institutions. The basic principle of extrema ratio is equally essential and it has been recalled both in the above-mentioned Council Conclusions and in the Stockholm Programme, where it is stated that ‘criminal law provisions should … be used only as a last resort’.50 In that respect, two aspects seem to be relevant in the EU decisions of criminalisation. First of all, it should be wondered what is the added value of the criminal intervention in comparison with other measures;51 the question involves especially the relations with the existing administrative sanctions, which can be divided into different categories and could even become more diffused.52 Secondly, the other fundamental aspect to be taken into account in the light of the principle of

48  In general terms, see ‘A Manifesto on European Criminal Policy. European Criminal Policy Initiative’, elaborated by a group of European criminal law experts and published in (2009) 12 Zeitschrift für Internationale Strafrechts dogmatik 707. 49  Grasso, ‘Il Trattato di Lisbona’ (n 23 above). 50  ‘The Stockholm Programme. An open and secure Europe serving and protecting citizens’ [2010] OJ C115/1, para 3.3.1; see also the Council Conclusions on model provisions (see above in the text of section 5). 51  Council Conclusions on model provisions (see above in the text) p 2. 52  See AM Maugeri, ‘I principi fondamentali del sistema punitivo comunitario, la giurisprudenza della Corte di Giustizia e della Corte europea dei diritti dell’uomo’ in G Grasso and R Sicurella (eds), Per un rilancio del progetto europeo (Milano, Giuffrè, 2008) 83 ff.

Criminal Law Harmonisation Competences 27 extrema ratio is that of equivalence in the protection of a given interest in different Member States. The importance of such concept has been specifically recalled by Article 325 TFEU (previous Article 280 TEC), in connection with the protection of the EU financial interests. It is clear, indeed, that diversity in the degree of protection of the same interest in the Member States can hinder the achievement of the goal pursued by a given provision or can even cause a distortion in the field of the competition.53 Then, the equivalence in the protection of a legal interest in different Member States has to be evaluated in considering whether the principle of extrema ratio has been respected. Finally, the focus shifts to the principle of proportionality, which firmly underpins the EU legal order, thanks also to a steady stream of ECJ case-law.54 Nowadays, it is also enshrined in Article 49 of the Charter of fundamental rights of the European Union, precisely in connection with its criminal aspects. The aforementioned Council Conclusions conveniently underline the need to be cautious with the category of the ‘abstract danger’, which should be justified only if the endangered legal interest is particularly important. The first EU harmonisation interventions in which the new indirect criminal competence has been exercised confirm that a careful evaluation of the relevant criteria of criminal policy has been undertaken. In spite of the above-mentioned fears, the EU institutions have not used the power of criminalisation in a broad or blameworthy way. Therefore, as far as the environment is concerned, Directive 2008/99/EC is not only linked with the protection of a supranational legal interest, but also shares the above-mentioned point of view according to which the obligations to criminalise are acceptable when the legal interests at stake are violated or endangered. Indeed, it states that the illegal conduct considered in the directive not only has to violate the administrative regulations but also ‘cause[s] or is likely to cause death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants’, as we can read in Article 3(a).55

6.  THE POSSIBLE IMPACT ON ENVIRONMENTAL CRIMINAL LAW

Article 83 TFEU could have an important impact on the protection of the environment. It is necessary to underline that, on the one hand, Directive 2008/99/EC imposes on the Member States an obligation to introduce criminal penalties in

53 

Grasso, ‘Il Trattato di Lisbona’ (n 23 above) 234 ff. Herlin-Karnell, ‘What Principles Drive’ (n 47 above) 1125. 55 This aspect was underlined in particular by GM Vagliasindi, ‘Obblighi di penalizzazione di fonte europea e principi di politica criminale: le indicazioni promananti dalla materia ambientale’ in G Grasso, L Picotti and R Sicurella (eds), L’evoluzione del diritto penale nei settori di interesse europeo (Milano, Giuffre, 2011) 140 ff. 54 

28  Giovanni Grasso order to impose sanctions in respect of several forms of conduct, such as, for example, ‘the discharge, emission or introduction of … materials … into air, soil or water, which causes or is likely to cause death or serious injury to any person or substantial damage to’ different environmental constituent elements; on the other hand, as far as the sanctions are concerned, the directive provides only that Member States shall take the necessary measures to ensure that the offences referred to in Articles 3 and 4 are punishable ‘by effective, proportionate and dissuasive criminal penalties’. Following the conclusions of the judgment of the Court of Justice of 23 October 2007, in the directive there is not any binding indication concerning the type and the level of the sanctions to be introduced. If we share the opinion that serious differences in the area of sanctions introduced for the offences provided in the directive could compromise the achievement of the aims of the directive, it is clear that the harmonisation of the sanctions—which is permitted on the basis of the second paragraph of Article 83 TFEU—could have a real added value. It has been highlighted that such differences could trigger ‘forum shopping’, which could reduce the deterrent effect of the criminal provisions introduced on the basis of the directive, when they concern criminal offences committed in the exercise of an economic enterprise or having a transnational nature.56 In general terms, an intervention of harmonisation which is limited to pointing out the behaviours to be punished (and also the criminal nature of the rules to introduce), without giving binding indications of the kind and the level of the sanctions, has been regarded as unsatisfactory. Although some behaviours are considered illicit in all the Member States, the aim pursued case by case (eg the creation of an European market of capital) can be hindered by an excessive difference in the prescribed sanctions. Practical reasons can suggest adopting measures with a certain degree of flexibility, insofar as it can be difficult to find exact equivalence among the penalties provided in each legal system for the significant differences in the general part of criminal law. It might be suggested that the EU adopts measures which point out the behaviours to be punished, the types of crimes and the sanctions, without an exact determination of their level: however, despite the absence of such an exact determination, the adoption of a ‘grid’ in which the minimum and maximum penalties should be included can be fostered.57 This is the solution which could be suggested in environmental matters. Furthermore, Article 83(1) TFEU could permit the introduction of specific criminal provisions in order to target environmental crimes committed by criminal organisations (or in which a criminal organisation is involved). In that respect, academic legal thinking has expressed the need to introduce criminalisation in order to target organised crime in the environmental sphere with criminal

56  See GM Vagliasindi, ‘La direttiva 2008/99/CE e il Trattato di Lisbona: verso un nuovo volto del diritto penale ambientale italiano’ (2010) 3 Diritto del Commercio internazionale 449, 466 ff. 57  Grasso, ‘Relazione introduttiva’ (n 21 above).

Criminal Law Harmonisation Competences 29 penalties.58 Therefore, Article 83(1) allows such an intervention, which was not possible under the previous rules of the Community law. In the environmental field, indeed, a peculiar criminal phenomenon (in Italy known as ‘ecomafia’) has progressively grown through the years: organised criminality operates, for example, in illicit trafficking in waste, in illicit waste disposal and in illicit trafficking in endangered species, usually with the support of companies (or company-like entities).59 Therefore, one might envisage a proposal of some aggravating circumstances linked with the involvement of the organised criminality in the commission of environmental crimes60 or the introduction of a rule which criminalises the ‘organised trafficking in waste’. Such a rule—whose model can be represented by Article 260 of the Italian law no 152/2006—should be then implemented in all the national legal systems by the competent legislative authorities. The harmonisation can involve also the statute of prescription (known as statutes of limitation in common law systems). The difficulty of the harmonisation measures involving the general part of criminal law has been already underlined; however, such a difficulty can be overcome when some specific rules (such as the statutory prescription, indeed)—rather than the core of the general part—are touched upon.61 With regard to this aspect, it has been already pointed out that the proposal for a Directive on the fight against fraud to the Union’s financial interests by means of criminal law includes some rules related to statutes of limitation.62 This intervention of harmonisation could find its legal basis in Article 83(1) (devoted to the fight against transnational criminality), in connection with Article 83(2) which concerns the protection of the supranational interests.

58 

Vagliasindi, ‘La direttiva 2008/99/CE’ (n 56 above) 474 ff. See GM Vagliasindi, ‘Istituzione di una Procura europea e diritto penale sostanziale: l’eventuale estensione della competenza materiale della futura Procura alla criminalità ambientale’ in G Grasso, G Illuminati, R Sicurella and S Allegrezza (eds), Le sfide dell’attuazione di una Procura europea: definizione di regole e loro impatto sugli ordinamenti interni (Milano, Giuffrè, 2013) 202–3. 60  Vagliasindi, ‘La direttiva 2008/99/CE’ (n 56 above) 474 ff. 61  See above, section 3. 62  See above n 42 above. 59 

30 

3 The EU Environmental Crime Directive GRAZIA MARIA VAGLIASINDI*

1. INTRODUCTION

E

NSURING A HIGH level of environmental protection and improvement is a key commitment for the European Union (EU), as is made clear by Article 11 of the Treaty on the Functioning of the EU (TFEU) as well as by Article 37 of the EU Charter of Fundamental Rights. Over the decades, this commitment has resulted in the enactment, on the basis of the European ­Community (EC) and later EU shared competences in environmental matters,1 of a very significant amount of secondary legislation covering in detail all areas of environmental protection (water, waste, air, biodiversity, noise, chemicals etc) as well as transverse issues such as environmental impact assessments and access to environmental information. Several factors are of decisive relevance to the effective achievement of the ambitious environmental protection objectives pursued by this extremely comprehensive body of law: among them are a correct transposition and implementation by EU Member States of the obligations arising from the EU legislation2 and

* This chapter is partly based on research undertaken within the framework of the research ­ roject ‘European Union Action to Fight Environmental Crime’ (EFFACE) funded by the European p ­Commission under the FP7. 1  It is worth recalling that before 1 December 2009, when the Lisbon Treaty entered into force, the European ‘architecture’ was based on different ‘pillars’: at that time, competences now belonging to the EU were spread between those belonging to the EC (first pillar, for example those on environmental matters) and those belonging to the EU (third pillar, for example those on the creation of a space of freedom, security and justice which encompassed judicial cooperation in criminal matters). The Lisbon Treaty eliminated the division into pillars and the term ‘Community’ was replaced by ‘Union’; hence the Union took the place of the Community. 2  In this respect it should be noted that the situation is unsatisfactory, as shown by the fact that around 20% of the numerous infringement procedures handled by the European institutions for failure by Member States to transpose and implement EU legislation, concern environmental rules. See Commission, ‘29th annual report on monitoring the application of EU law (2011)’ (Report) (COM(2012) 714 final), available at: http://ec.europa.eu/atwork/applying-eu-law/docs/annual_ report_29/sg_annual_report_monitoring_eu_law_121130.pdf; the report states that in 2009 there were 451 infringement cases related to EU environment legislation, with a further 299 reported in 2011, and an additional 114 new proceedings being initiated.

32  Grazia Maria Vagliasindi the adoption of actions aimed at ensuring compliance by natural and legal persons with this legislation,3 that is to say to promote compliance (for example, through financial incentives or technical assistance), to monitor compliance (for example, through governmental inspections) and, finally, to enforce compliance by taking action in response to non-compliance.4 As to the latter, it should be noted that, in accordance with the original institutional arrangements between the EC and its Member States, for many years the choices concerning how to react to breaches of environmental legislation of European origin were left to the discretion of the Member States. However, at the end of the twentieth century the issue of responses to environmental violations and the increasing problem of tackling environmental crime became a matter of concern of the European institutions. Several initiatives have been adopted in this respect, which culminated, after a long and very controversial institutional path, in the enactment of Directive 2008/99/EC on the protection of the environment through criminal law (Environmental Crime Directive, ECD).5 The ECD, which had to be transposed by Member States by 26 December 2010, aims to eliminate the differences among criminal laws of the Member States by which effect is given to the environmental protection requirements arising from EC environmental law. To this end, the ECD requires Member States to c­ riminalise serious environmental offences listed therein, when unlawful and committed intentionally or with at least serious negligence, and to take the necessary measures to ensure that these offences are punishable by effective, proportionate and dissuasive criminal penalties. The ECD also requires Member States to ensure that legal persons can be held liable for the above-mentioned offences when committed for their benefit, and to ensure that legal persons are punishable by effective, proportionate and dissuasive sanctions. Thus, the ECD—enacted when shared competences in criminal matters now provided for by Article 83 TFEU had not yet been conferred on the EU—sets a binding minimum standard for environmental protection through criminal law. A decade after its enactment, a critical assessment of the rationale and content of this instrument contributes to a better understanding of the potential and limitations of criminal law in the protection of the environment in the specific context of approximation of criminal law within the EU. At the same time, it provides the grounds to assess the actual impact of the ECD on Member States’ environmental

3  See R Macrory, ‘The enforcement of environmental law: challenges and opportunities’ in ­Science Communication Unit UWE, Environmental compliance assurance and combatting environmental crime (Science for Environment Policy, Thematic Issue 56 produced for the European Commission DG ­Environment, July 2016) 3, 3–5. 4  For this definition of environmental compliance assurance see the Organisation for Economic Co-operation and Development (OECD), Ensuring Environmental Compliance: Trends and Good ­Practices (Paris, OECD Publishing, 2009), available at: www.oecd. org/env/tools-evaluation/. 5  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 [2008] OJ L328/28.

The EU Environmental Crime Directive 33 criminal law and on the levels of environmental protection in the EU. Finally, also in the light of both the institutional developments at the EU level subsequent to its enactment, and the information on the current extent and characteristics of environmental crime as a criminal phenomenon, a critical assessment of the ECD allows better foundations for assessing which actions and systems should be put into place in order to deter environmental crime and to provide legitimate, appropriate and effective responses where environmental crime occurs. This chapter is structured as follows. First, the root of, and the path towards approximation of environmental criminal law in Europe are explored. On these grounds, the content and rationale of the ECD are described and analysed, and strengths and shortcomings are highlighted. This chapter concludes with considerations on the way forward.

2.  APPROXIMATION OF ENVIRONMENTAL CRIMINAL LAW IN EUROPE: ROOTS AND PATHWAY

At the European regional level, the debate on the role of criminal law within a common policy directed towards effective protection of the environment can be traced back to 1977, when the Council of Ministers of the Council of Europe approved Resolution (77) 28 on the contribution of criminal law to the protection of the environment.6 Resolution (77) 28, considers, inter alia, that the health of human beings, ­animals and plants and the beauty of landscapes must be protected by all possible means and that, while recourse to criminal law in this field should be a last resort, nevertheless use must be made of it when other measures are not observed or are ineffective or inadequate. On these grounds, Resolution (77) 28 recommends governments of Member States of the Council of Europe to examine carefully all the problems raised concerning environmental protection, with a view to adopting one or more of the measures proposed by the same Resolution, taking account of the fundamental principles of their constitutions and their criminal law. These measures, which concern both substantive and procedural criminal law, include: the introduction of targeted penalties and measures (such as suspended fines and conditional fines, or restoration of the former state of the environment possibly

6  Council of Ministers of the Council of Europe, Resolution (77) 28 on the contribution of criminal law to the protection of the environment, adopted by the Committee of Ministers on 28 September 1977, at the 275th meeting of the Ministers’ Deputies, available at: https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016804efa66. Obviously, it should be borne in mind that the Council of Europe (a regional intergovernmental organisation) is a different institution to the EU (a sui generis supranational organisation) and that the Member States of the Council of Europe do not coincide with the Member States of the EU (the former are more numerous than the latter). However, it is also worth recalling that no country has ever joined the EU without first belonging to the Council of Europe.

34  Grazia Maria Vagliasindi ordered in connection with a suspended custodial penalty), whilst maintaining the traditional penalties of fine and imprisonment (possibly conditional) in the most serious cases; re-examination of the principles of criminal liability, with a view, in particular, to the possible introduction in certain cases of the liability of corporate bodies, public or private; examination of the advisability of ­criminalising acts and omissions which intentionally or negligently expose the life or health of human beings or property of substantial value to potential danger; re-­examination of criminal procedure in matters of environmental protection, including creation of specialist branches of courts and offices of public prosecution to deal with ­environmental cases and means of giving persons or groups the right to become associated with criminal proceedings for the defence of the interests of the community. Finally, Resolution (77) 28 draws attention to the advantages which certain Member States may derive from gradually compiling, in a single collection in particular, the criminal provisions relating to environmental protection, with a view to subsequent consolidation at a national level, for example by codification, of the entire legislation on the environment in so far as this appears desirable or feasible, and an eventual future harmonisation of all legislation of the Member States of the Council of Europe in this field. As one can easily see, the measures recommended by Resolution (77) 28 as to the use of criminal law in environmental matters are extremely comprehensive and pervasive as to their scope and content. This is inherent in the nature of ­resolutions—since 1979, ‘recommendations’—issued by the Committee of ­Ministers of the Council of Europe: addressed to Member States’ governments, presenting guidelines for national legislation or administrative practice; unlike conventions, which are binding on ratifying Member States, recommendations are ‘policy statements’, which merely propose a common course of action to be followed.7 Thus, the results of a comparison between Resolution (77) 28 and the ECD would be undermined by the different institutional frameworks to which the ­Resolution and the ECD respectively belong and the mere ‘policy statement’ nature of the Resolution as compared to the binding nature of the ECD. ­Nevertheless, Resolution (77) 28 provides some remarkable insights. First of all one should highlight the explicit reference to the use of criminal law as a last resort and to the need to take into account the national constitutional and criminal law characteristics, together with the recommended use of sanctions like suspended fines for less serious cases; they demonstrate a well-grounded theoretical foundation in addressing the issue of a common policy for environmental crimes, together with an implicit concern for the legitimacy, feasibility and effectiveness of the adoption and enforcement of a given measure within the overall characteristics of a specific legal system. What is possibly even more important, the content of 7  See A Vercher, ‘The Use of Criminal Law for the Protection of the Environment in Europe: Council of Europe Resolution (77) 28’ (1989–1990) 10 Northwestern Journal of International Law & Business 442, 444.

The EU Environmental Crime Directive 35 Resolution (77) 28 is strikingly up to date and almost visionary for the time it was adopted, in that it addresses issues such as the links between environmental criminal law and remediation of pollution, specialisation of courts and prosecutors, access to justice and the right of individuals and groups to become associated with criminal proceedings for the defence of the interests of the community: all matters that have not yet been addressed in a satisfactory way by the EU and Member States’ national policy makers. Resolution (77) 28 also shows how in Europe the issue of a common policy on the use of criminal law for the purpose of protecting the environment has deep and remote roots. In this regard, it is worth mentioning that, as has been noted, the Committee of Ministers of the Council of Europe adopts recommendations on ‘subjects ill-suited for general conventions’.8 This consideration shows that the topic at stake was deemed to be mature enough to become the subject of a treaty 20 years later, when the Council of Europe adopted the Convention on the Protection of the Environment through Criminal Law (the Convention), which was opened for the signature of states in Strasbourg on 4 November 1998.9 The Convention—which is a non-self-executing treaty, holding legislative obligations for the states—provides for legislative obligations concerning substantive and procedural criminal law, therefore representing a harmonising mechanism of environmental criminal law of the Member States of the Council of Europe. In particular, with regard to substantive criminal law the Convention categorises intentional and negligent offences; the sanctions for these offences shall include imprisonment and pecuniary sanctions and may include reinstatement of the environment. Corporate liability shall also be enabled. Concerning procedural criminal law, the Convention foresees the territorial, flag, national and aut dedere aut judicare principles, and it aims at facilitating the participation of citizens in the trial (actio popularis) and at fostering international judicial cooperation; however, the Convention does not make reference to other debated issues such as international relapse or trans-border pollution.10 It is worth noting that the Convention recognises that criminal law is a means of last resort (ultima ratio); this is evident, inter alia, in the Preamble, where it is claimed that ‘whilst the prevention of the impairment of the environment must be achieved primarily through other measures, criminal law has an important part to play in protecting the environment’.11 8 

Vercher, ‘The Use of Criminal Law’, n 7 above, 444. Council of Europe Convention on the Protection of the Environment through Criminal Law, ETS No 172, available at: http://conventions.coe.int/Treaty/en/Treaties/Html/172.htm. On the Convention, see GM Vagliasindi, ‘Directive 2008/99/EC on Environmental Crime and Directive 2009/123/EC on Ship-source Pollution. Study in the Framework of the EFFACE Research Project’ (Catania, University of Catania, 2015) 1, 6–8. 10  See JL Collantes, ‘The Convention on the Protection of the Environment through Criminal law: Legislative Obligations for the States’ (2001) 6 Revista electrónica de derecho ambiental, available at: http://huespedes.cica.es/gimadus/collantes.html. 11  See Collantes, ‘The Convention on the Protection of the Environment’, n 10 above. 9 

36  Grazia Maria Vagliasindi The Convention never entered into force because of the lack of the necessary ratifications.12 Nevertheless, the Convention is significant in being the first international (regional) convention aiming at criminalising conduct which causes or is likely to cause damage to the environment:13 indeed, while the ‘paucity of international environmental criminal legislation’14 cannot be neglected, the Convention demonstrates the relevance of the issue of the fight against environmental crime at the international (regional) level.15 Scholars have identified several political reasons explaining the lack of success of the Convention.16 Among them it is convenient here to highlight that the Convention was somewhat overshadowed by the path towards approximation of environmental criminal law of the Member States of the EU to which the same Convention has indirectly contributed (see below, section 2.1).17 In this respect, the Convention represents a relevant instrument also in providing the roots of the subsequent EC and EU efforts towards approximation of environmental criminal law.

2.1. The Controversial Pathway towards Approximation of Environmental Criminal Law in the EU At the EC and EU level, the issue of approximation of environmental criminal law of Member States was laid down long before the Lisbon Treaty introduced the EU shared competences in criminal matters now provided for by Article 83 TFEU. 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.18 The first initiative adopted in this perspective was the ‘Initiative of the Kingdom of Denmark with a view to adopting a Council framework decision on combating

12  As of today, 14 Member States signed the Convention, but only 1 has ratified it (it is worth noting that only 3 ratifications were necessary for the Convention to enter into force). 13  See Collantes, ‘The Convention on the Protection of the Environment’, n 10 above. 14 F Mégret, ‘The Problem of an International Criminal Law of the Environment’ (2011) 36 C ­ olumbia Journal of Environmental Law 195, 200. 15  Vagliasindi, ‘Directive 2008/99/EC’, n 9 above, 6–7. 16  See R Pereira, Environmental Criminal Liability and Enforcement in European and International Law (Leiden, Brill, 2015), 20–21. 17  In fact, the main elements of the Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law [2003] OJ L29/55, were extracted from the Convention; see AO Dąbrowska, ‘The impact of EU on protection of the environment through criminal law in Poland’ (October 2010) 1, 3, available at: www.academia.edu/1156406/The_impact_ of_European_Union_on_protection_of_the_environment_through_criminal_law_in_Poland; see also Pereira, ‘Environmental Criminal Liability’, n 16 above, 26. 18  Tampere European Council 15 and 16 October 1999, Presidency Conclusions, para 48, available at: www.europarl.europa.eu/summits/tam_en.htm.

The EU Environmental Crime Directive 37 serious environmental crime’,19 drafted taking the main elements of the abovementioned Council of Europe Convention. The initiative included a proposal for a third pillar framework decision to be adopted by the Council on the basis of Articles 31 and 34(2) of the Treaty on European Union (TEU). The Justice and Home Affairs Council agreed on 28 September 2000 that such an acquis on environmental offences should be established.20 However, on 13 March 2001 the Commission adopted a proposal for a directive on the protection of the environment through criminal law.21 The purpose of the proposed directive, which was based on Article 175 of the Treaty on the European Community (TEC) concerning environmental policy, 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 criminal offences. The Council did not discuss the Commission’s proposal, but instead, on 27 January 2003, following the above-mentioned Initiative of the Kingdom of Denmark, adopted the Framework Decision 2003/80/JHA on the protection of the environment through criminal law. The Commission challenged the Framework Decision before the European Court of Justice (ECJ) on the grounds that it had been adopted on an incorrect legal basis. The ECJ, in its judgment of 13 September 2005 in Case C-176/03, annulled Framework Decision 2003/80/JHA for infringing Article 47 TEU, holding that, on account of both their aim and content, Articles 1–7 of that Framework Decision had as their main purpose the protection of the environment and could have been properly adopted on the basis of Article 175 TEC, and confirming that the Community had the competence to adopt criminal law measures related to the protection of the environment if this were necessary to ensure the effective implementation of its environmental policy.22 In the light of this judgment, the Commission withdrew the proposal of 2001 and, on 9 February 2007, presented a new proposal for a Directive on the protection of the environment through criminal law,23 based on Article 175 TEC and

19  Initiative of the Kingdom of Denmark with a view to adopting a Council Framework Decision on combating serious environmental crime [2000] OJ C39/4. It is worth recalling that framework decisions were instruments provided for by the TEU in the field of police and judicial cooperation in criminal matters. 20  Justice and Home Affairs 2288th Council meeting held in Brussels on 28 September 2000, 1, 11, available at: http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2011705%202000%20INIT. 21  Commission, Proposal for a Directive of the European Parliament and of the Council on the protection of the environment through criminal law (COM(2001) 139 final) [2001] OJ C180E/238. 22  ECJ (Grand Chamber) Case C-176/03 Commission of the European Communities v Council of the European Union [2005] ECR I-7879. 23  Commission, Proposal for a Directive of the European Parliament and of the Council on the protection of the environment through criminal law (COM(2007) 51 final), available at: http://eur-lex. europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52007PC0051.

38  Grazia Maria Vagliasindi covering the content of Articles 1 to 7 of the annulled Framework Decision. As compared to the original proposal of 2001, certain offences were modified in the new proposal in order to take into account intervening developments in EC environmental legislation. Furthermore, some additional elements considered necessary to ensure an effective protection of the environment were included in the 2007 proposal, notably the approximation of applicable sanctions for particularly serious environmental crimes. It is worth noting that a similar path was followed on the issue of sanctions for infringements of provisions on ship-source pollution. The Commission presented on 5 March 2003 a proposal for a directive,24 based on Article 80(2) TEC on the common transport policy,25 on ship-source pollution and on the introduction of sanctions, including criminal sanctions, for pollution offences and, on 2 May 2003, a proposal for a framework decision,26 based on Articles 29, 31 and 34(2)(b) TEU, to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution. The proposal for a directive provided that ship-source pollution should be considered a criminal offence subject to criminal penalties, while the proposal for a framework decision mainly aimed at approximating the levels of criminal penalties. The Commission—which had initially included most of the criminal-law-related provisions in its proposal for a directive—in order to allow the adoption of these relevant instruments, did not block the adoption of the framework decision when the Council moved criminal law provisions to the latter. Thus, two instruments were adopted: Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements,27 containing a precise definition of the infringements along with the rule that they will be subject to effective, proportionate and dissuasive penalties, which may include criminal or administrative penalties, and Framework Decision 2005/667/JHA,28 where the provisions on the nature, type or levels of criminal penalties were included. However, after the judgment in Case C-176/03, the Commission challenged Framework Decision 2005/667/JHA before the ECJ for the same reason as had been the case for the Framework Decision 2003/80/JHA on the protection of the environment through criminal law, ie having been adopted on an incorrect legal basis.

24  Commission, Proposal for a Directive of the European Parliament and of the Council on shipsource pollution and on the introduction of sanctions, including criminal sanctions, for pollution offences (COM(2003) 92 final). 25  Article 80(2) TEC granted the Community the power to promote environmental protection with regard to ‘measures to improve transport safety’ and ‘any other appropriate provisions’ in the field of maritime transport. 26  Commission, Proposal for a Council framework Decision to strengthen the criminal law framework for the enforcement of the law against ship source pollution (COM/2003/227 final), available at: http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=COM:2003:0227:FIN. 27  Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements [2005] OJ L255/11. 28 Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution [2005] OJ L255/164.

The EU Environmental Crime Directive 39 With the judgment of 23 October 2007 in Case C-440/05,29 the ECJ reaffirmed the conclusions of the previous judgment, stating that the Community legislature may have the power to require Member States ‘to apply criminal penalties to certain forms of conduct’. However, the Court decided that the determination of the type and level of the criminal penalties to be applied does not fall within the Community’s sphere of competence. It follows that the Community legislature may not adopt provisions such as Articles 4 and 6 of Framework Decision 2005/667, since those articles relate to the type and level of the applicable criminal penalties.

Consequently, the ECJ annulled the Framework Decision, ruling that its articles on the definition of the criminal offences and the nature of the penalties ­(Articles 2, 3 and 5) could have been adopted on the basis of Article 80(2) TEC and that the Framework Decision therefore violated Article 47 TEU by encroaching upon the powers of the Community. Following this convoluted institutional path, the ECD was finally adopted, albeit in a text that, in order to comply with the ECJ judgment in Case C-440/05, does not contain any reference to the type and levels of criminal penalties for natural persons and sanctions for legal persons. Thus, even before the Lisbon Treaty explicitly introduced shared competences in criminal matters of the EU, the environmental sector had been the subject of the first directive of approximation of Member States’ criminal legislation. Also Directive 2009/123/EC amending Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements,30 has clear and decisive links with environmental protection even though it has as a legal basis Article 80(2) TEC (concerning, as noted above, the Community policy on the theme of transport, now Article 100(2) TFEU).31 Indeed, the above overview of the institutional path leading to the adoption of the two directives shows the relevance of environmental protection at the EU level and the role this played within the wider issue of approximation of criminal laws of Member States. The need to ensure that systems in place in the Member States to respond to breaches of environmental law derived from the EU rely on criminal law for the most serious unlawful conduct, was perceived as being relevant enough to be the basis of an intervention by the EC institutions in criminal matters— traditionally, the maximum expression of national sovereignty—which was not yet explicitly allowed by the Treaties. 29  ECJ (Grand Chamber) Case C-440/05 Commission of the European Communities v Council of the European Union [2007] ECR I-9097. 30 Directive 2009/123/EC of the European Parliament and of the Council of 21 October 2009 amending Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements [2009] OJ L280/52. 31  GM Vagliasindi, ‘The European Harmonisation in the Sector of Protection of the Environment through Criminal Law: The Results Achieved and Further Needs for Intervention’ (2012) 3 New Journal of European Criminal Law 320, 321.

40  Grazia Maria Vagliasindi Concerning the ECD, on which this chapter solely focuses, the criminal law measures adopted are not uncontroversial as to their content and real added value in terms of increased levels of environmental protection (see below, section 4). However, the ECD, in pursuing the objective of ensuring the protection of the environment through the elimination of discrepancies among national criminal laws, represented a factor for potential renewal of environmental criminal laws of the Member States.32 As Michael Faure noticed in 2010 with regard to the ECD and Directive 2009/123/EC, For some Member States which already had elaborate environmental criminal law provisions, the directives will probably not change a great deal and implementation should be relatively easy. However, for those Member States which did not have elaborate environmental criminal law provisions, the Directives may bring important changes. Those Member States will have substantial work implementing them.33

3.  THE ECD: CONTENT

The Preamble of the ECD synthesises the grounds on which the approximation of environmental criminal law of Member States was deemed necessary. The starting point is the concern of the EC, which under the Treaties must aim to ensure a high level of protection of the environment, 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: since such offences pose a threat to the environment, they call for an appropriate response.34 As to the nature of this response, the Preamble only states that experience has shown that the existing systems of penalties have not been sufficient to achieve complete compliance with the laws for the protection of the environment: such compliance should therefore be

32  GM Vagliasindi, ‘Obblighi di penalizzazione di fonte europea e principi di politica criminale: le indicazioni promananti dalla materia ambientale’ in G Grasso, L Picotti and R Sicurella (eds), L’evoluzione del diritto penale nei settori d’interesse europeo alla luce del Trattato di Lisbona (Milano, Giuffrè, 2011) 133–70; see also L Siracusa, ‘La competenza comunitaria in ambito penale al primo banco di prova: la direttiva europea sulla tutela penale dell’ambiente’ (2008) 21 Rivista trimestrale di diritto penale dell’economia 863. 33  MG Faure, ‘The Implementation of the Environmental Crime Directives in Europe’ in J Gerardu, D Grabiel, MR Koparova, K Markowitz and D Zaelke (eds), 9th International Conference on Environmental Compliance and Enforcement (Washington, INECE, 2011) 360, 361. In the same sense, see GM Vagliasindi, ‘La direttiva 2008/99/CE e il Trattato di Lisbona: verso un nuovo volto del diritto penale ambientale italiano’ (2010) 24 Diritto del commercio internazionale 449, 454. It is worth mentioning that the European Commission has ordered studies on the national legislative implementation of Directive 2008/99/EC and Directive 2009/123/EC. The studies contain the opinion of the author (which does not necessarily reflect the official opinion of the Commission) and reflect the legal situations in Member States predominantly at the beginning of 2013 (and ahead of any additional legislative amendments undertaken by Member States after an exchange on the correct implementation with the Commission). The studies are available at: http://ec.europa.eu/justice/criminal/criminal-law-policy/ environmental-protection/index_en.htm. 34  Recital 2 of the ECD.

The EU Environmental Crime Directive 41 strengthened by the availability of criminal penalties which demonstrate a social disapproval of a qualitatively different nature compared to administrative penalties or a compensation mechanism under civil law,35 adding that common rules on criminal offences make it possible to use effective methods of investigation and assistance within and between Member States.36 On these grounds, and on the basis of Article 175 TEC (now Article 192 TFEU), the ECD establishes measures relating to criminal law in order to protect the environment more effectively (Article 1). In particular, as to natural persons, the ECD requires Member States to ensure that the conduct specifically listed in Article 3 constitutes a criminal offence when unlawful and committed intentionally or with at least serious negligence; on the basis of Article 4, even inciting, aiding and abetting the conduct referred to in Article 3 must be punishable as a criminal offence. It has to be recalled that, according to Article 2(a) ECD, for the purposes of the Directive, ‘unlawful’ means infringing the legislation adopted pursuant to the EC Treaty and listed in Annex A to the Directive, or, with regard to activities covered by the Euratom Treaty, the legislation adopted pursuant to the Euratom Treaty and listed in Annex B to the Directive or, finally, a law, an administrative regulation of a Member State or a decision taken by a competent authority of a Member State that gives effect to the previously mentioned legislation. This said, Article 3 ECD requires Member States to consider the following conduct a crime, when unlawful and committed with at least serious negligence: (a) the 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, the quality of soil or the quality of water, or to animals or plants; (b) the collection, transport, recovery or disposal of waste, including the supervision of such operations and the aftercare of disposal sites, and including action taken as a dealer or a broker (waste management), which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants; (c) the shipment of waste, where this activity falls within the scope of Article 2(35) of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste and is undertaken in a non-negligible quantity, whether executed in a single shipment or in several shipments which appear to be linked; (d) the 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 35  36 

Recital 3 of the ECD. Recital 4 of the ECD.

42  Grazia Maria Vagliasindi

(e)

(f)

(g)

(h)

(i)

person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants; the production, processing, handling, use, holding, storage, transport, import, export or disposal 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, the quality of soil or the quality of water, or to animals or plants; the killing, destruction, possession or taking of specimens of protected wild fauna or flora species, except for cases where the conduct concerns a negligible quantity of such specimens and has a negligible impact on the conservation status of the species; it has to be noted that, according to Article 2(b)(i) ECD, for the purposes of Article 3(f), ‘protected wild fauna and flora species’ are those listed in ‘Annex IV to Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora’ and those in ‘Annex I to, and referred to in Article 4(2) of, Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds’; trading in specimens of protected wild fauna or flora species or parts or derivatives thereof, except for cases where the conduct concerns a negligible quantity of such specimens and has a negligible impact on the conservation status of the species; it has to be noted that, according to Article 2(b)(ii) ECD, for the purposes of Article 3(g), ‘protected wild fauna and flora species’ are ‘those listed in Annex A or B to Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein’; any conduct which causes the significant deterioration of a habitat within a protected site; it has to be underlined that, according to Article 2(c) ECD, the expression ‘habitat within a protected site’ refers to any habitat of ­species for which an area is classified as a special protection area ‘pursuant to Article 4(1) or (2) of ­Directive 79/409/EEC, or any natural habitat or a ­habitat of species for which a site is designated as a special area of conservation pursuant to Article 4(4) of Directive 92/43/EEC’; the production, importation, exportation, placing on the market or use of ozone-depleting substances.

Concerning penalties, Article 5 ECD requires Member States to ensure that the offences referred to in Articles 3 and 4 are punishable by effective, proportionate and dissuasive criminal penalties. Following the above-mentioned judgment of the European Court of Justice of 23 October 2007 in Case C-440/05, the ECD does not contain provisions concerning the type and levels of criminal p ­ enalties; such provisions were on the contrary contained in the original proposal of 9 February 2007.37 37  Vagliasindi, ‘The European Harmonisation’, n 31 above, 327; Vagliasindi, ‘La direttiva 2008/99/CE’, n 33 above, 455 and 466 ff.

The EU Environmental Crime Directive 43 Articles 6 and 7 of ECD deal with the issue of liability of legal persons for environmental crimes. It has to be recalled that, according to Article 2(d) ECD, ‘“legal person” means any legal entity having such status under the applicable national law, except for States or public bodies exercising State authority and for public international organisations’; this is the standard definition of legal person within EC/EU documents. In particular, Article 6 requires Member States to ensure that legal persons can be held liable for offences referred to in Articles 3 and 4 where such offences have been committed for their benefit by any person who has a leading position within the legal person, acting either individually or as part of an organ of the legal person, based on (a) a power of representation of the legal person, (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 also have to ensure that legal persons can be held liable where the lack of supervision or control by a person having a leading position has made possible the commission of an offence referred to in Articles 3 and 4, for the benefit of the legal person, by a person under its authority. In order to avoid any unwanted decrease of the strength of the legal instruments for fighting environmental crimes, Article 6(3) ECD clarifies that ‘the liability of legal persons … shall not exclude criminal proceedings against natural persons who are perpetrators, inciters or accessories in the offences referred to in Articles 3 and 4’. Concerning sanctions for legal persons, Article 7 ECD requires Member States to ‘take the necessary measures to ensure that legal persons held liable pursuant to Article 6 are punishable by effective, proportionate and dissuasive penalties’.

4.  THE ECD: ANALYSIS AND ASSESSMENT

From a theoretical point of view, the first (and paramount) issue arising from the ECD is why the approximation of criminal law of Member States was deemed necessary. Due to the specific institutional context to which the ECD belongs, this issue involves not only the question of the role and effectiveness of criminal law in the protection of the environment, but also the way the EU should exercise its limited competences in criminal matters (recognised first by the ECJ case law and later by Article 83 TFEU). It also involves fundamental prerogatives of Member States, linked to the legal and political issues commonly related to enforcement. As for the latter, the legal challenges to approximation of criminal law arising from the principle of legality—which usually reserves to Parliaments of each state the choices of criminalisation—cannot nowadays be seen as an insuperable obstacle to approximation, since Member States agreed to conferring on the EU limited

44  Grazia Maria Vagliasindi and indirect competences in criminal matters. On the contrary, the political issues related to enforcement (for example, how to respond to infringements in the light of national legal and cultural traditions and overall legal systems, and how to allocate resources to enforcement authorities) are still affected by EU approximation of environmental criminal law (as with any other body of laws); this might have consequences for the effectiveness of the implementation of the ECD. In this framework, it is worth recalling that in the ECD, which aims to protect the environment more effectively, approximation of environmental criminal law is deemed necessary to respond to the rise of environmental crimes for the following reasons: the increasingly transnational nature of the effects of environmental crimes; the inadequacy, proven by experience, of other systems of sanctions to ensure full compliance with environmental protection laws; the consequential need to strengthen such compliance by criminal penalties, which feature a stronger social disapproval than administrative or civil sanctions; the added value of common rules on criminal offences in facilitating the use of effective investigative methods and assistance among Member States (Preamble of the ECD). These arguments were also contained in the explanatory memorandum of the proposal for a directive of 9 February 2007. However, it should be highlighted that the memorandum, in noting that criminal sanctions are not in force in all Member States for all serious environmental offences, also mentioned as reasons why only criminal penalties would have a sufficiently dissuasive effect: that administrative or other financial sanctions may not be dissuasive in cases where the offenders are impecunious or, on the contrary, financially very strong, thus custodial penalties might be required in such cases; that, apart from the fact that the types of sanctions applicable differ from Member State to Member State, there are also significant differences regarding the levels of sanctions that are applied to similar or identical offences, thus offenders are in a position to exploit the existing differences between Member States’ legislation to their advantage because of the transboundary nature or impacts of environmental crimes which must therefore be addressed through action at the EC level; finally, that there is an additional guarantee of impartiality because investigating authorities, ie other authorities than those administrative authorities that have granted exploitation licences or authorisations to pollute, will be involved in a criminal investigation. Thus, approximation of environmental criminal law is deemed necessary at the EU level mainly because it will strengthen compliance with EU environmental law and enhance the fight against environmental crimes which often have transnational nature and effects. In addressing the issue, it should be noted that, as one would expect, the statement of reasons in the Preamble of the ECD is much more limited than in the explanatory memorandum. However, this is due not only to their different functions, but also to the fact that the proposal for a directive also contained provisions on the type and levels of sanctions, later withdrawn because of the ECJ judgment in Case C-440/05. As a consequence, the overall rationale of the approximation measures appears more persuasive in the memorandum than in the Preamble of the ECD.

The EU Environmental Crime Directive 45 For instance, the grounds concerning the transnational nature and effects of environmental crime find a more rational response in approximation if approximation involves the type and levels of criminal penalties than if it only concerns the definition of the criminal offences; indeed, different types and levels of penalties still potentially allow perpetrators to exploit these differences to perform their criminal activities. It should be noted that, as is obvious, not all environmental crimes are transnational in their nature; thus the argument concerning the transnational nature of environmental crime and the consequential risk of forum shopping, while persuasive with regard to the majority of the conduct listed in Article 3 of the ECD (for example, the unlawful shipment of waste or the unlawful trade in ozone-depleting substances), is not as persuasive when it comes to other conduct listed therein (for example, the unlawful aftercare of waste disposal sites). However, in the latter cases the approximation of criminal law still maintains its rationality with regard to the argument of the (albeit potential) transnational effects of environmental violations in the light of the impact on the environment or life or health of people, to which the ECD subordinates the duty of criminalisation (Article 3(a), (b), (d) and (e)) as well as in the light of the exclusions of the duty of criminalisation in cases of negligible or non-significant impact (for example, Article 3(f) and (h)). In addition, it should be stressed that, since compliance with environmental legislation represents a relevant administrative and economic burden for the complying operator, discrepancies among Member States’ legislation as to the responses to environmental non-compliance may have an indirect impact on fair competition; thus, the need to ensure a level playing-field among the economic actors, albeit not explicitly mentioned in the ECD or in the explanatory memorandum to the proposal for a directive, certainly played a role in assessing the need for approximation of environmental criminal law. This said, it has to be stressed that, in general, the added value of criminal law in environmental matters in terms of increased deterrent effect is not uncontroversial in the literature;38 in addition, evaluation of the actual impact of environmental criminal law on environmental compliance is a difficult area. Both aspects would need to be grounded on actual data on the number of the administrative, civil and criminal violations and on the number and content of the sanctions imposed; these data were not available to the European institutions at the time of enactment of the ECD, nor are they available today. Moreover, in theory the same idea that national criminal law should be approximated in order to strengthen compliance with environmental legislation is questionable as to the conformity of such a choice with fundamental criminal law principles and criteria for criminalisation. In this respect, it should be underlined

38  See, for instance, E Pirjatanniemi, ‘Desperately Seeking Reason—New Directions for European Environmental Criminal Law’ (2009) 54 Scandinavian Studies in Law 409; J Öberg, ‘Criminal Sanctions in the Field of EU Environmental Law’ (2011) 2 New Journal of European Criminal Law 402.

46  Grazia Maria Vagliasindi that this consideration raises issues about the legitimacy of a so-called functional use of criminal law. Scholars have criticised the functionalist logic, in particular stressing that the mere strengthening of the implementation of EU policies cannot justify by itself the use of criminal law.39 Several authors have emphasised that, also at the EU level, the intervention of criminal law must: be based on the existence of a legitimate purpose of protection, be proportionate, and respect the principles of ultima ratio, guilt, legality, subsidiarity and coherence.40 A similar approach also emerges from the guidelines developed by the Council of the EU to ensure coherent use of criminal provisions in EU legislation41 and, partly, from the European Commission Communication on the implementation of European policies through criminal law.42 However, the ECD, despite the statement in its Preamble, seems to present on the whole sufficient elements of distance compared to a merely functionalist approach and, at the same time, sufficient elements of conformity with the abovementioned criminal policy criteria.43 In fact, the ECD ultimately aims to protect the environment, a supranational legal interest according to the literature.44 Several forms of conduct covered by the ECD (Article 3(a), (b), (d) and (e)) are to be criminalised by Member States only insofar as they cause or are likely to cause serious detriment of the environment as a protected interest or serious detriment to life and health of people; in the remaining cases, the ECD limits the duty of criminalisation by the provision of ‘criminal relevance thresholds of the fact’, requiring that the activity ‘is undertaken in a non-negligible quantity’ (Article 3(c)), excluding conduct which concerns a negligible quantity of specimens and has a negligible impact on the conservation status of the species (Article 3(f) and (g)) or, finally, referring to conduct which causes significant deterioration (Article 3(h)).45 Thus, the ECD only addresses serious environmental offences (transnational as to their nature or, potentially, their effects) which, as such, may legitimately require the introduction of common criminal rules; the 39  See R Sicurella, ‘“Eppur si muove!”: alla ricerca di un nuovo equilibrio nella dialettica tra legislatore comunitario e legislatore nazionale per la tutela degli interessi dell’Unione Europea’ in G Grasso and R Sicurella (eds), Per un rilancio del progetto europeo (Milano, Giuffrè, 2008) 191. 40  See, for instance, European Criminal Policy Initiative, ‘A Manifesto on European Criminal Policy’ (2009) Zeitschrift für Internationale Strafrechtsdogmatik 707, available at: www.zis-online.com/dat/ artikel/2009_12_383.pdf; G Grasso, ‘La “competenza penale” dell’Unione europea nel quadro del Trattato di Lisbona’ in G Grasso, L Picotti and R Sicurella (eds), L’evoluzione del diritto penale nei settori d’interesse europeo alla luce del Trattato di Lisbona (Milano, Giuffrè, 2011) 683, 706–13; Vagliasindi, ‘Obblighi di penalizzazione’, n 32 above, 133 ff. 41  Council, ‘Council Conclusions on model provisions, guiding the Council’s criminal law deliberations’, 2979th Justice and Home Affairs Council meeting, Brussels, 30 November 2009, available at: www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/en/jha/111543.pdf. 42  Commission, ‘Towards an EU Criminal Policy: Ensuring the Effective Implementation of EU Policies through Criminal Law’ (Communication) (COM(2011) 573 final), available at: http://eur-lex. europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0573:FIN:EN:PDF. 43  Vagliasindi, ‘The European Harmonisation’, n 31 above, 323–24; for a more detailed analysis, see Vagliasindi, ‘Obblighi di penalizzazione’, n 32 above, 143–61. 44  See R Sicurella, Diritto penale e competenze dell’Unione europea (Milano, Giuffrè, 2005) 346. 45  Vagliasindi, ‘Obblighi di penalizzazione’, n 32 above, 147–49.

The EU Environmental Crime Directive 47 response (administrative, civil or criminal) to the remaining (and numerous) breaches of EU environmental legislation, different from conduct identified in Article 3 of the ECD, is instead left to the discretion of Member States. The ECD also restricts the obligations of criminalisation, as defined previously, to conduct committed intentionally or with at least serious negligence. In doing so, the ECD further limits the area of criminal significance of environmental offences to those considered intolerably aggressive for the environment as a protected interest; in addition, this choice by the European legislator also offers a useful indication of the role, functional to the implementation of the ultima ratio principle, that a proper assessment of the subjective element of the crime can play in the selection of criminally relevant behaviour.46 As to the formulation of the offences, the use of notions such as ‘serious injury’, ‘substantial damage’, ‘non-negligible quantity’, ‘negligible impact’, ‘significant deterioration’ can be questionable, since the vagueness of these notions infringes the lex certa principle. However, it should be recalled that the approximation measures at stake are contained in a directive, an instrument that by definition leaves Member States discretion on how to reach the objectives established by the EU legislator through the directive. In addition, the peculiarity of the criminal matter should be taken into account; in this respect, a more stringent definition of the conduct by the ECD, which it is worth recalling was adopted within an institutional framework where competences in criminal matters had not yet explicitly been conferred on the EU, probably would have not reached political consensus by Member States due to the impact on national prerogatives that such an approach would have determined. Thus, as the explanatory memorandum to the proposal of a directive explicitly states, these notions were not defined in order to leave each Member State to interpret them in the light of its traditions and legal system. Of course, it cannot be underestimated that a different concretisation of these notions by Member States may negatively impact the objective of approximation of environmental criminal laws and ultimately of enhanced environmental protection through enhanced compliance with environmental legislation pursued by the ECD. As to the structure of the offences, it is worth recalling that conduct has to be criminalised when unlawful, ie when it violates EU environmental legislation or national implementing provisions. This shows a model of criminalisation where administrative dependence of criminal law plays a role. However, the intensity of administrative dependence varies greatly among the different forms of conduct covered by the ECD: strongest in the case of the production, importation, exportation, placing on the market or use of ozone-depleting substances (Article 3(i)), where no additional elements are included, it lowers slightly with regards to the conduct under Article 3(c), (f), (g) and (h) where relevance to the protected interest is indirectly and implicitly given through the references to the

46 

Vagliasindi, ‘Obblighi di penalizzazione’, n 32 above, 147.

48  Grazia Maria Vagliasindi non-negligible quantity, negligible quantity and negligible impact or significant deterioration contained therein; the intensity of administrative dependence further lowers for the conduct contemplated by Article 3(a), (b), (d) and (e), where explicit relevance to the protected interest (the components of the environment and/or life and health of people) is made.47 To this, and to a certain extent correlatively, it is worth adding that, while provisions concerning shipment of waste, trade in endangered species and products thereof and production, importation and other conduct in ozone depleting substances exclusively follow the model of abstract endangerment offences, the remaining provisions are conceived as concrete endangerment or harm-based offences. Of course, it should be recalled that the ECD only establishes a minimum standard of constituent elements of serious environmental offences that should be considered criminal by Member States. Therefore, Member States are free to adopt or maintain more stringent provisions regarding the effective criminal law protection of the environment, for example by criminalising abstract endangerment conduct in cases where the ECD only requires a criminal response to concrete endangerment or harm. However, for the low penalties normally attached to the abstract endangerment offence, this might result in a violation of the obligation for Member States to establish effective and dissuasive penalties; thus abstract endangerment offences could be provided by Member States only in addition to concrete endangerment or harm-based offences covering the most serious cases. The ECD does not require Member States to criminalise attempts.48 It is worth noting that the ECD requires Member States to ensure that not only natural persons, but also legal persons can be held liable for offences referred to in Articles 3 and 4, when such offences have been committed for their benefit by listed categories of natural persons. The obligation to introduce a form of liability of legal persons for environmental crime has to be positively assessed, since it requires Member States to address one of the main characteristics of environmental criminality: in fact, while environmental crime can be, and actually is, committed by individuals, corporations (even small and medium-size ones) play a predominant role in the commission of environmental crime, as it is often an ­economic-motivated crime. The possibility to address enforcement in environmental matters against legal persons, which in some Member States was introduced following the need to implement the ECD, implies a potentially increased deterrent effect of the punitive systems in place and a more correct allocation of responsibilities. In addition, from the perspective of the approximation of M ­ ember States’ legislation, common rules on liability of legal persons for environmental crime are also relevant in ensuring fair competition between

47 

Vagliasindi, ‘Obblighi di penalizzazione’, n 32 above, 150–52. As noted above (section 3), the ECD requires Member States to ensure that ‘inciting, aiding and abetting’ the intentional conduct listed therein is punishable as a criminal offence; thus, no reference is made to ‘attempting’. 48 

The EU Environmental Crime Directive 49 e­ conomic operators: since compliance with environmental legislation represents a significant economic and administrative burden for the complying operator and therefore non-compliance may result in significant cost-saving, the lack of punitive responses for corporate non-compliance in some Member States may affect a level playing-field among the operators. The ECD only requires that legal persons can be held liable for the offences listed therein, without requiring the liability to be criminal. This approach, which is the general approach followed by all EU instruments requiring Member States to introduce forms of liability of legal entities, has to be positively assessed; in fact, it facilitates the introduction of a form of corporate liability for environmental crime in those legal systems where the admissibility of a truly criminal liability of legal entities is constitutionally controversial. It is worth adding that with regard to sanctions, the ECD only requires Member States to ensure that legal persons are punishable by effective, proportionate and dissuasive sanctions, without requiring the sanctions to be criminal in nature. A different solution as to sanctions is provided by the ECD with regard to natural persons: for them, the ECD requires effective, proportional and dissuasive criminal penalties. Thus, in this case the ECD imposes binding obligations with regard to the nature of the penalties. However, this is the only sanction-related obligation, since no provisions on the type and levels of criminal penalties are contained in the ECD. As stated above, this is a consequence of the need for the Directive to comply with the ECJ judgment in Case C-440/05, where the Court stated that, in contrast to the establishment of the obligation for Member States to criminally sanction certain conduct, determining the type and level of sanctions was not within the competence of the Community. It is worth recalling that the original proposal for a directive of 9 February 2007 contained specific provisions also on the type and levels of criminal penalties. In particular, the proposal provided for grids of minimum levels of maximum custodial criminal penalties for the offences listed therein, graduated depending on the consequences of the offence in terms of damage to the environmental components or to life and health of people, as well as on the type and intensity of the mens rea. Minimum levels of maximum custodial penalties were also provided for all the offences listed in the proposal when, regardless of their consequences, they are committed in the framework of a criminal organisation. Finally, the proposal also provided for accessory sanctions or measures, namely the disqualification of a natural person from engaging in an activity requiring official authorisation or approval, or founding, managing or directing a company or a foundation, where the facts which led to the conviction show a high risk that the same kind of criminal activity may be pursued again; the publication of the judicial decision relating to the conviction or any sanctions or measures applied; and the obligation to reinstate the environment. It is worth adding that this earlier proposal for a directive also provided for graduated grids of minimum level of maximum fines for legal persons, which could be criminal or non-criminal fines; it also provided for accessory sanctions or measures for legal persons, namely the obligation to reinstate the environment; the exclusion from

50  Grazia Maria Vagliasindi entitlement to public benefits or aid; the temporary or permanent disqualification from the practice of industrial or commercial activities; the placing under judicial supervision; a judicial winding-up order; the obligation to adopt specific measures in order to eliminate the consequences of conduct such as that on which the criminal liability was founded; the publication of the judicial decision relating to the conviction or any sanctions or measures applied. Thus, contrary to the original intentions, as a consequence of the ECJ judgment in Case C-440/05 and institutional framework at the time of the adoption of the Directive, the ECD does not contain any binding indications on the type and levels of criminal penalties for natural persons and sanctions for legal persons. This solution leaves to the discretion of Member States any assessment on which sanction is effective, proportional and dissuasive. Bearing in mind that such an approach was the only legitimate one in the light of the institutional arrangements between the EU and its Member States at the time the ECD was adopted, this approach has a clear positive impact if one focuses on the prerogatives of Member States as well as on tailoring the type (custodial or non-custodial) and levels of criminal penalties and additional sanctions and measures (and the type and levels of main sanctions and additional sanctions and measures for legal persons) in terms of effectiveness, proportionality and dissuasiveness in accordance with the specific legal and cultural characteristics of a national system. However, the result of an assessment of the lack of minimum provisions on the type and levels of criminal penalties and sanctions can be significantly different if one focuses on the objectives pursued by the ECD. In fact, the objectives to strengthen environmental compliance and ultimately environmental protection by addressing the transnational nature and effects of serious environmental crimes through common rules, to facilitate judicial cooperation by the enforcement authorities and to avoid forum shopping by perpetrators (as well as the indirect and implicit aim to ensure fair competition), can be hindered by the lack of a minimum standard on the type and level of penalties.49 Given the variety of conduct covered by the ECD, this consideration holds particularly true with regard to conduct where the transnational component, related to the nature of the conduct and/or the characteristics of the involved actors and their modus operandi— corporations and organised crime—is more evident: this is the case for the ­shipment of waste, the trade in wildlife species and products thereof, and the trade in ozone-depleting substances. As to organised crime, it is worth noting that several studies released by EU actors and institutions show mounting evidence that environmental crimes frequently result from the coordinated activity of organised criminal networks or groups (either mafia-type or, more often, non-mafia-type organised criminal

49  Vagliasindi, ‘La direttiva 2008/99/CE’, n 33 above, 464; E Mullier, ‘Emergence of Criminal Competence to Enforce EC Environmental Law: Directive 2008/99 in the Context of the Case-Law of the European Court of Justice’ (2010) 6 Cambridge Student Law Review 94, 112.

The EU Environmental Crime Directive 51 groups) or otherwise feature the infiltration of the licit economy by organised crime. Waste crime (in the two forms of illegal management and illegal shipment of waste) and wildlife trafficking are regarded as the most prominent environmental crimes that feature the involvement of organised crime in the EU.50 In this regard, the fact that the ECD does not make any reference to organised crime can be regarded as a significant gap. As to the Framework Decision 2008/841/ JHA on the fight against organised crime,51 the possibility of according relevance to environmental crime in light of this instrument is hampered by the fact that most EU Member States do not provide maximum penalties of at least four years’ deprivation of liberty (or detention order) for environmental crimes, which is something that is required by the Framework Decision 2008/841/JHA for the crime to fall within its scope.52 It is worth adding that the main motive for crossborder organised crime is financial gain. Therefore, the availability of measures allowing confiscation of the proceeds of environmental crimes is necessary for a targeted response to the criminal phenomenon. Unfortunately, non-environmental EU legislation does not take into account this need. In particular, Directive 2014/42/EU on the freezing and confiscation of instrumentalities and proceeds of crime in the EU does not include environmental crime within the criminal offences covered by the Directive.53 It should be added that the inclusion of the Framework Decision 2008/841/JHA on the fight against organised crime within the scope of Directive 2014/42/EU cannot indirectly cover environmental crimes because of the low level of penalties for such crimes. Finally, the lack of proper consideration for the peculiarity and seriousness of environmental crime committed by or with the involvement of organised crime hinders the effectiveness of mutual assistance instruments among enforcement authorities,54 which, in fact, are a relevant enforcement tool against environmental crimes (which are often transnational in nature). These gaps in the ECD can be now addressed at the EU level on the basis of the shared competence in criminal matters conferred on the EU under the Lisbon Treaty. Article 83 TFEU provides the EU with shared competences in criminal 50  See, for instance, Europol, ‘Threat Assessment 2013. Environmental Crime in the EU’ (November 2013), available at: www.europol.europa.eu/content/threat-assessment-2013-environmental-crime-eu; Europol, ‘SOCTA 2013. EU Serious and Organised Crime Threat Assessment’ (2013), available at: www.europol.europa.eu/content/eu-serious-and-organised-crime-threat-assessment-socta, classified the involvement of organised crime in illicit waste trafficking as one of the emerging threats in the EU which requires increased monitoring; Commission, ‘EU Action Plan against Wildlife Trafficking’ (Communication) (COM(2016) 87 final), available at: http://eur-lex.europa.eu/legal-content/EN/ TXT/PDF/?uri=CELEX:52016DC0087&from=EN. 51  Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime [2008] OJ L300/42. 52  Vagliasindi, ‘La direttiva 2008/99/CE’, n 33 above, 477. 53  Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union [2014] OJ L127/39. 54  See G Giardi, ‘Fighting the European Ecomafia: Organised Trafficking in Waste and the Need for a Criminal Law Response from the EU’ (2015) 6 New Journal of European Criminal Law 229, 244.

52  Grazia Maria Vagliasindi matters in relation to particularly serious listed crimes with a cross-border dimension (paragraph 1), as well as in relation to cases where approximation is essential to ensure the effective implementation of a Union policy in an area which has been subject to administrative harmonisation measures (paragraph 2). Within these limits, Article 83 TFEU allows the EU to introduce—but only through ­directives—obligations for Member States to consider particular conduct to be a crime as well as to introduce—again only through directives—minimum provisions on criminal penalties. It should be stressed that EU competence in criminal matters is just an indirect competence;55 that is to say, in the limited areas of EU competence in criminal matters, crime and/or criminal penalties are not themselves directly created by the EU but by national legislators when they transpose those EU directives that provide for obligations to criminalise. With these limits, Article 83 TFEU provides the EU with the legal basis to adopt provisions relating to the types and levels of penalties for environmental offences if this is essential to implement the EU environmental policy. Article 83 also enables the EU to deal with environmental offences committed by or with the involvement of organised crime and to lay down appropriate minimum sanctions.56

5. CONCLUSIONS

The enactment of the ECD marks a milestone in the EU’s efforts to fight environmental crime. This holds particularly true when one focuses on the institutional framework at the time the ECD was adopted. In fact, the need to ensure a high level of environmental protection by strengthening compliance with environmental legislation was significant enough to allow the adoption of measures concerning the criminal laws of Member States, even if such competence had not yet been explicitly conferred by the Treaties. While this consideration marks the relevance of environmental protection at the EU level and the EU commitment against environmental crime, it also explains some choices that characterise the ECD and that can be regarded as gaps with respect to the objectives it pursued; these include the lack of indications on the type and levels of criminal penalties and the lack of any reference to environmental crimes committed within the framework of a criminal organisation. Article 83 TFEU now provides the EU with the legal basis to address these gaps. However, any new EU intervention on further approximation in environmental criminal matters (as in any field of criminal law) should comply with those

55  See Grasso, ‘La “competenza penale”’, n 40 above, 696, who underlines that the competence set out in Article 83 TFEU is an indirect one; at the same time, the Author stresses that such competence delimits and circumscribes the discretion of national legislators concerning the legal interest to protect, the techniques of protection, the formulation of the offence and the choices of sanctions. 56 Vagliasindi, ‘La direttiva 2008/99/CE’, n 33 above, 474; L Krämer, EU Environmental Law (London, Sweet and Maxwell, 2012), 413.

The EU Environmental Crime Directive 53 ­rinciples and criteria—among them, proportion and extrema ratio—whose p respect confers legitimacy on the choices of criminalisation. The added value of criminal law in environmental matters in terms of increased deterrent effect is not uncontroversial, and the evaluation of the actual impact of environmental criminal law on environmental compliance is a difficult area to assess. Thus, for any further EU intervention in the field to be legitimate and effective, both assessments need to be grounded on actual data on, among other factors, the number of administrative, civil and criminal violations committed and on the number and content of the sanctions imposed. The peculiar characteristics and relevance of environmental crime as a criminal phenomenon, identified following rigorous data collection and subsequent assessments, require targeted legislation and enforcement efforts. Environmental crime committed by or with the involvement of organised crime should be given attention at the EU level, for example, through an amendment of the ECD based on Article 83 TFEU, in order to (a) impose an obligation on ­Member States to introduce in their national legislation aggravating circumstances for cases of environmental crimes committed by or with the involvement of criminal organisations; and (b) establish minimum levels of maximum penalties for those serious environmental crimes for which empirical evidence shows the involvement of organised crime, such as wildlife trafficking and waste trafficking. In these cases, if a maximum of at least four years’ imprisonment were provided, the crimes would fall within the scope of Framework Decision 2008/841/JHA on the fight against organised crime. In this regard, it is extremely positive that the 2015 European Agenda on Security,57 in dealing with the objective of disrupting organised crime, specifically addresses environmental crimes and explicitly states that: ‘The Commission will consider the need to strengthening 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’;58 the Agenda includes ‘Reviewing existing policy and legislation on environmental crime’ among the actions to be taken.59 Thus, through the Agenda, the Commission, taking into account the activities for disrupting organised crime networks, commits to reviewing existing policy and legislation on environmental crime as well as to supporting other actions, such as training and networking, which are equally important in terms of enhancing implementation of environmental (criminal) law by Member States. Further developments can arise from the 2016 EU Action Plan against Wildlife ­Trafficking.60 The Action Plan, which is to be implemented jointly by the EU and

57  Commission, ‘The European Agenda on Security’ (Communication) (COM(2015) 185 final), available at: https://ec.europa.eu/anti-trafficking/sites/antitrafficking/files/eu_agenda_on_security_en.pdf. 58  Commission, ‘The European Agenda on Security’, n 57 above, 18. 59  Commission, ‘The European Agenda on Security’, n 57 above, 19. 60  Commission, ‘EU Action Plan against Wildlife Trafficking’, n 50 above.

54  Grazia Maria Vagliasindi its Member States until 2020, identifies a series of relevant commitments, including the review of the EU policy and legislative framework on environmental crime, in line with the European Agenda on Security, to assess whether the current EU legislative framework for tackling environmental crime, and particularly organised wildlife crime, is fit for purpose. Following a review of how the national rules transposing the ECD are applied in practice, the issue of existing discrepancies between criminal penalties for ­environmental crimes across Member States and weak criminal penalties for environmental crimes should be addressed, for example by introducing a minimum level of maximum penalties for selected serious environmental crimes, through an amendment of the ECD based on Article 83(2) TFEU to be transposed by Member States, or through soft law instruments such as sentencing guidelines. Approximation of criminal penalties would also contribute to equal treatment and to fair competition and a level playing-field for economic actors. Moreover, and bearing in mind that not only the criminalisation of conduct, but also the levels of criminal penalties, cannot be established on the grounds of functional needs only, if a maximum of at least three years’ imprisonment were provided for the most serious environmental crimes, mutual assistance instruments could be used.61 As to the specific content of measures concerning the type and levels of criminal penalties for serious environmental crimes, a working basis may be represented by the provisions contained in this regard in the proposal for a Directive on the protection of the environment through criminal law of 9 February 2007.62 However, it should not be underestimated that the enactment, on the basis of Article 83(2) TFEU, of a further approximation instrument concerning the type and level of the criminal penalties for all the forms of conduct covered by the ECD, might meet several obstacles. First of all, criminal law is still perceived as a core element of national sovereignty. Therefore, although the approximation of sanctions for environmental crime (for example, establishing a minimum level of maximum criminal penalties) would in any case be adopted in the form of a directive, as such needing the intervention of national legislators and not being of direct effect, a further EU intervention requiring Member States to limit their freedom in assessing the gravity of a criminal behaviour (also in comparison to the overall choices on penalties for crimes different from the ones considered by the eventual approximation instrument) might be perceived as a violation of the national prerogatives, particularly in those Member States whose institutions clearly stressed that ­criminal

61  It should be noted that between 1 January 2004 and 1 December 2015, Eurojust only dealt with 49 cases of environmental crime and the number of cases in which Member States have requested support from Europol is on average fewer than 10 per year; for this information, see Commission, ‘Analysis and Evidence in support of the EU Action Plan against Wildlife Trafficking’ (Staff Working Document) (SWD(2016) 38 final) 1, 49, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=C ELEX:52016SC0038&from=en. 62  Vagliasindi, ‘La direttiva 2008/99/CE’, n 33 above, 474.

The EU Environmental Crime Directive 55 law ultimately remains a core domain of the Member State63 at the time of transposition of Directive 2008/99/EC. Moreover, in those Member States where a welldeveloped environmental culture, together with a good level of enforcement of administrative environmental provisions and an overall criminal justice system assuring the effectiveness of the application of criminal sanctions to the perpetrators of the offences, lead the Member States to see as questionable the use of high criminal penalties for environmental crimes,64 the approximation of criminal penalties for environmental crimes might be perceived as lacking utility and therefore be difficult to agree to. More generally, criminal enforcement is just one (albeit an important one) of the issues that are of relevance in the achievement of the overall goal of increased environmental protection; thus, the significance of approximation of environmental criminal law should not overshadow the importance of an active commitment of the EU and its Member States as to promoting and monitoring environmental compliance, as well as to fostering enforcement also through means other than criminal law.

63  See in particular Bundesverfassungsgericht, 30 June 2009, BVerfGE 123, 267; see Vagliasindi, ‘La direttiva 2008/99/CE’, n 33 above, 465. 64  See, with reference to Scandinavian countries, Pirjatanniemi, ‘Desperately Seeking Reason’, n 38 above, 409 ff.

56 

Part II

Country Studies

58 

4 Environmental Criminal Law in France FLORIANA BIANCO AND ANNALISA LUCIFORA*

1. INTRODUCTION

F

RENCH ENVIRONMENTAL CRIMINAL law is the result of an evolutionary and dynamic process, influenced by the increasing challenges and social pressures related to the need to ensure an effective protection of the environment, as well as by the obligations arising from international and EU legislation. The Criminal Code (CC) of 1994 included among the fundamental interests of the Nation, ‘the balance of its natural surroundings and its environment’,1 ­enabling the legislature to protect the environment in the same way as other essential interests, such as the independence, or the security of the state. This provision was echoed in a recital of the Charter for the environment,2 adopted in 2005 and having constitutional value.3 Although recognising its privileged status as a superior social interest, neither the CC nor the Charter for the environment provide for an autonomous, reinforced penal protection of the environment.4 Therefore, the main source of the French environmental criminal law is the Environmental Code (Env Code), which foresees the core legal (partie législative) and regulatory (partie réglementaire) texts on environment. This specialised code is the outcome of a systemisation of legal provisions already contained in various legal acts (codification à droit constant), adopted by Ordinance No 2000-9145 and ratified by Law No 2003-591.6 The criminal provisions contained therein

*  Floriana Bianco, sections 1, 2.2 and 4; Annalisa Lucifora, sections 2.1, 3, 5 and 6. 1  Article 410-1 CC. 2  ‘Care must be taken to safeguard the environment along with the other fundamental interests of the Nation’. 3  Constitutional Law No 2005-205 of 1 March 2005 on the Charter for the Environment, JORF No 51 of 2 March 2005, 3697. 4  See G Giudicelli-Delage, ‘Le droit pénal française de l’environnement. Modèle de protection’ in M Papa (ed), La riforma della parte speciale del diritto penale. Verso la costruzione di modelli comuni a livello europeo (Torino, G Giappichelli editore, 2005) 76–77; V Jaworski, ‘La Charte constitutionnelle de l’environnement face au droit pénal’ (2005) Revue juridique de l’environnement 177, 178–79. 5  Ordinance No 2000-914 of 18 September 2000 on the legal part of the Env Code, JORF No 219 of 21 September 2000, 14792. 6  Law No 2003-591 of 2 July 2003 enabling the Government to simplify the law, JORF No 152 of 3 July 2003, 11192.

60  Floriana Bianco and Annalisa Lucifora are related to the protection of the different environmental components, such as physical environments (water and air), natural spaces, flora and fauna, and the prevention of pollution, risks and nuisance. As far as criminal law is concerned, however, the aim of systematisation had not been fully achieved. Not only were several criminal provisions still spread across other different codes (eg Rural Code, Public Health Code, Urban Planning Code, Forest Code, etc), but also the provisions contained in the Env Code resulted in a complex and heteroclite system, lacking an adequate level of harmonisation.7 In order to mitigate such inconsistencies, and in the light of the obligations deriving from Directive 2008/99/EC on the protection of the environment through criminal law,8 Ordinance No 2012-349 introduced a significant reform of the provisions contained in the Env Code. With the ambition of achieving greater coherence, this reform aimed at harmonising the legal provisions concerning both the procedural and substantive aspects of the penal protection of the environment.10 In the meanwhile other reforms have been approved (recently, through Law 2016-1087),11 attesting the continuous efforts of the French legislature to improve the legal framework, with the aim of attaining a better and more effective response to environmental crime.

2.  DEFINITION OF ENVIRONMENTAL CRIME AND SUBSTANTIVE CRIMINAL LAW PRINCIPLES

2.1.  Definition of Environmental Crime The French legal order lacks any criminal law provision specifically aimed at defining environmental crime. Although the Commission on Reform of the Criminal Code had proposed to devote an entire book to offences against the environment, the ‘new’ CC that entered into force on 1 March 1994 merely placed the ‘balance of natural resources and environment’ among the ‘fundamental interests of the

7 M-J Littmann-Martin, ‘Code de l’environnement, droit pénal et procédure pénale: quelques réflexions’ (2002) 27 Revue juridique de l’environnement 55 ff; V Jaworski, ‘L’état du droit pénal de l’environnement français: entre forces et faiblesses’ (2009) 3–4 Les Cahiers de Droit 898 ff. 8  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 [2008] OJ L328/28. 9  Ordinance No 2012-34 of 11 January 2012 on the simplification, reform and harmonisation of the provisions of the Environmental Code concerning the administrative and judicial police, JORF No 0010 of 12 January 2012, 564. 10 V Jaworski, ‘Le volet pénal de l’ordonnance n° 2012-34 du 11 Janvier 2012’ (2013) 38 Revue juridique de l’environnement 221 ff; see also C Cans, ‘La réforme, tant attendue, du droit répressif de l’environnement. Commentaire de l’ordonnance n° 2012-34 du 11 janvier 2012’ (2013) (1) Droit Administratif, paras 1 ff. 11  Law No 2016-1087 of 8 August 2016 for the recovery of biodiversity, nature and landscapes, JORF No 0184 of 9 August 2016.

Environmental Criminal Law in France 61 Nation’ (Article 410-1 CC) and did not foresee any provision directly punishing environmental damage or pollution. In the CC the only felony (crime)12 in any way related to environmental protection is ‘Ecologic terrorism’, set out under Article 421-2, although, on closer view, this provision does not aim at punishing ordinary pollution but rather acts of terrorism. Indeed, Article 421-2 CC was primarily introduced as a response to the fear of a terrorist movement using chemical or radioactive substances.13 It punishes by 20 years’ imprisonment and a fine of €350,000 the introduction— intentionally and in connection with an individual or collective undertaking aiming to seriously disturb the public order through intimidation or terror— into the atmosphere, on the ground, in the soil, in foodstuff or its ingredients, or in waters, including territorial waters, of any substance liable to imperil human or animal health or the natural environment.14 No punishment is set out in the French CC if the same acts are not related to a terrorist undertaking.15 In addition to Article 421-2, the CC contains various general provisions which could be used where damage to the environment occurs (for instance, Article 223-1 related to endangering other persons;16 or Articles 221-6 and 222-19 concerning involuntary offences against life or physical integrity of the person). For this reason, some authors highlight that using provisions not directly connected to the safeguarding of ecological values could reduce the symbolic dimension of environmental protection.17 Therefore, the ‘new’ CC does not punish damage to the environment independently; neither in the most serious cases, nor when it is committed by an organised group (bande organisée).18 So it seems timely to turn to tools specific to environmental matters, where the environment is defined as a ‘common heritage of all human beings’ (Preamble to the Environmental Charter) or a ‘common heritage of the Nation’ (Article L 110-1 of the Env Code);19 however, even in these instruments, despite the environment being invested with a superior social interest, the structure of its criminal protection has not been deeply modified.20

12 

On the distinction between felonies, misdemeanours or petty offences, see below 2.2.1. A Van Lang, Droit de l’environnement (Paris, Presses Universitaires de France, 2011) 498. Imprisonment for life and a fine of €750,000 apply where the ecological terrorism has entailed the death of one or more persons (Article 421-4 CC). 15  Giudicelli-Delage, ‘Le droit pénal français de l’environnement’, n 4 above, 77. 16  Article 223-1 CC can be used only where the direct exposure of another person to an immediate risk of death or injury likely to cause mutilation or permanent disability is caused by the ‘manifestly deliberate violation of a specific obligation of safety or prudence imposed by any law or regulation’. 17  Giudicelli-Delage, ‘Le droit pénal français de l’environnement’, n 4 above, 78. 18  C Courtaigne-Deslandes, ‘De l’utilité d’une ordonnance simplifiant, réformant et harmonisant les sanctions pénales du Code de l’environnement’ (2011) 35 Bulletin du Droit de l’Environnement Industriel 50. 19  Article L 110-1 of the Env Code also affirms that environmental protection, enhancement, restoration, rehabilitation and management are of general interest, and contribute to the objective of sustainable development which aims to satisfy the development needs and protect the health of current generations without compromising the ability of future generations to meet their own needs. 20  Giudicelli-Delage, ‘Le droit pénal français de l’environnement’, n 4 above, 71. 13  14 

62  Floriana Bianco and Annalisa Lucifora As regards the Environmental Charter, it does not provide for any criminal sanctions for environmental infringements and seems to be an expression of a more restorative than punitive approach;21 instead, the Env Code punishes through criminal sanctions the infringement of rules applicable to the different environmental components. But, except for a few cases that directly punish environmental pollution,22 the traditional model of environmental criminal law that results from the Env Code is mostly accessory to the administrative rules and consists in failing to comply with a court ruling or, more often, in failing to comply with an administrative decision or an administrative regulation.23 The French literature has often criticised the structure of environmental criminal provisions because of the strong administrative dependence of criminal law.24 The fact that many environmental criminal offences are defined by reference to regulations raises a question of compliance with the legality principle; it entails a reduction in the accessibility and foreseeability of the condemnation and the penalty imposed; and finally, it leads to a multiplication of the number of incriminations.25 As a result, several attempts to introduce the concept of ‘environmental crime’ into the French legal system have been made. In the 1970s Mireille Delmas-Marty first proposed the creation of a general environmental crime, committed by anyone who, without any justification of social interest, by negligence or for profit, carries out an action whose effect is to modify the ecological balance in a serious and irreversible way, or to impact human health or animal life, causing essential alteration of soil, air or water.26 Since then, the need to introduce a general provision on environmental crime has become increasingly urgent, especially following requirements from the EU for Member States to adapt their criminal reaction to the peculiarities of environmental crime and to the specific nature of EU law; as affirmed in the ‘Rapport Simoni’ in relation to the Framework Decision 2003/80/JHA on the protection of the environment through criminal law:27 [A]lthough France already has most of the legal instruments provided for by the Framework Decision, it would be appropriate to integrate our legal system through the creation of a general offence punishing the causation by negligence of a substantial damage to wildlife, flora, the environment or its physical components.28 21 

Jaworski, ‘La Charte constitutionelle de l’environnement face au droit pénal’, n 4 above, 177. See, for instance, Article L 216-6 concerning water pollution or Article L 432-2 concerning protection of farmed fish and their habitat. 23 It is worth noting that non-compliance with administrative laws is usually considered as a petty offence, while non-compliance with judicial or administrative decisions is considered as a misdemeanour. 24  See Jaworski, ‘L’état du droit pénal de l’environnement français’, n 7 above, 902; Giudicelli-Delage, ‘Le droit pénal français de l’environnement’, n 4 above, 73. 25  G Giudicelli-Delage (ed), Droit pénales des affaires en Europe (Paris, PUF, 2006) 482. 26  M Prieur, Droit de l’environnement (Paris, Dalloz, 2011) 1035. 27  Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law, [2003] OJ L29/55. 28  Renforcement et structuration des polices de l’environnement, February 2005, available at: http:// www.ladocumentationfrancaise.fr/var/storage/rapports-publics/054000633.pdf, p 66. 22 

Environmental Criminal Law in France 63 Once again, in 2008 the ‘Rapport Lepage’ stated that it was essential to introduce into French law a general offence of environmental crime, which did not exist and whose content could be inspired by the draft Directive. This general crime, enshrined in the CC, would have had to incorporate all special criminal offences already existing in the Env Code, without modifying their punishments. In particular, the ‘Rapport Lepage’ proposed the introduction into Article 521-1 CC of the general offence of ‘délinquance écologique’, punishing, among other things,29 the release, discharge, emission or introduction, with knowledge of risk, in the atmosphere, on the ground, in the soil, in foodstuff or its ingredients, or waters, including those of the territorial sea, of substances such as hazardous waste, oils, waste oils or sludge, or any substance likely to endanger human or animal health or the natural environment.30

The offence would have had to be punishable by 3 years’ imprisonment and a fine of €150,000 and by the specific additional penalty of restoration of polluted sites (for legal persons under conditions set out in Article 121-2 CC).31 In 2010 another proposal was drawn up, aiming, once again, to insert the general offence of environmental crime into the CC; according to it, the ‘délit d’atteinte à l’environment’ consisted of any activity whose effect is to modify the ecological balance in a serious and irreversible way, or to impact human health or animal and vegetal life, causing essential alteration of soil, air or water.32 The offences— punishable with the same penalties proposed in the Rapport Lepage—could be committed by recklessness, inattention, or negligence; they could also result from a breach of a particular safety or security obligation imposed by law, regulation, or a non-regulatory administrative act. 29 

The other forms of conduct included in the offence of ‘délinquance écologique’ were: —— the illegal treatment, disposal, storage, transport, export or import of hazardous waste; —— the possession, taking, damaging, processing, killing or illicit trade of living organisms or parts of these; —— causing the significant deterioration of a protected habitat; —— causing noise subject to specific regulations; —— the trade in Ozone-Depleting Substances (ODS); —— the offences involving the use of classified facilities; —— the use of unauthorised chemical and organic products or non-compliance with authorised standards or licensing requirements, conditions of production, operation, use, or experimental research of these products.

30  Mission Lepage, rapport final, phase I, February 2008, 59 ff, available at: http://www.ladocumentationfrancaise.fr/var/storage/rapports-publics/084000490/0000.pdf. In November 2007 the Minister for Ecology, Development and Sustainable Management had appointed Corinne Lepage to a mission concerning environmental governance, in view of the French Presidency of the European Union in the second half of 2008. In addition to ‘délinquance écologique’, the ‘Rapport Lepage’ proposed the introduction of the offence of ‘rétention d’information en matière environnementale’, defined as the act of providing with intent and awareness of risk, inaccurate or incomplete data or information, or the retention of data or information regarding any substance dangerous for human or animal health or the environment, regarding disposal, emissions or introductions, or regarding the evidence of the lack of dangerousness of such substances. 31  Sanctions would increase to five years’ imprisonment and €300,000 of fine where the offence has caused damage to the physical integrity of a person or to human health which results in a total inability to work for more than three months, or a partial, temporary disability of more than 10%, or a permanent disability, or an irreversible degradation of air, water, fauna and flora. 32  Amendment proposed by M Yves Cochet, M Mamère and M de Rugy, No 1533, 29 April 2010.

64  Floriana Bianco and Annalisa Lucifora All these attempts show that a criminal law provision specifically aimed at punishing environmental crime, with an aggravating circumstance where the damage to the environment occurs, has been long overdue in the French legal system, either in order to improve the ethical dimension of environmental protection or to comply with the EU requirements. Ordinance No 2012-34 of 11 January 2012 has partly answered this challenge.

2.2.  Substantive Criminal Law Principles Environmental criminal law, as with the other branches of French criminal law, relies on several substantive principles which are primarily enshrined in the ­Declaration of the Rights of Man and of the Citizen of 1789, the European ­Convention on Human Rights, and the CC. 2.2.1.  Legality Principle The legality principle (principe de légalité des délits et des peines) is set out in Article 8 of the Declaration of the Rights of Man and of the Citizen of 1789 (and has, therefore, constitutional status),33 in Article 7 of the European Convention on Human Rights, and in Articles 111-2 and 111-3 CC. According to Article 111-2 CC, the law defines felonies (crimes) and misdemeanours (délits), and determines the penalties applicable to their perpetrators, while the regulation defines petty offences (contraventions) and determines the penalties applicable to those who commit them, within the limits and according to the distinctions established by law. Article 111-3 CC states that no one may be punished for a felony or for a misdemeanour whose elements are not defined by a law, nor for a petty offence whose elements are not defined by a regulation. As regards the penalty, no one may be punished by a penalty which is not provided for by a law, if the offence is a felony or a misdemeanour, or by a regulation, if the offence is a petty offence. This ‘allocation of competences’ between laws and regulations—which is one of the peculiar features of the French criminal system34—is established under ­Articles 34 and 37 of the Constitution.35 33  The Declaration of the Rights of Man and of the Citizen of 1789 is recalled in the Preamble of the French Constitution and has the same legal value. 34  Two factors, however, ‘mitigate’ the impact of the regulatory power. First, the penalties for petty offences shall be set within the limits and according to the distinctions established by law. Second, imprisonment is not included among the penalties for petty offences, see S Manacorda, ‘Reato nel diritto penale francese (voce)’, Digesto delle Discipline Penalistiche XI (Torino, Utet, 1996) 311; F Palazzo and M Papa, Lezioni di diritto penale comparato, 3rd edn (Torino, G Giappichelli editore, 2013) 125–26. 35  Article 34 of the Constitution states that the law shall determine the rules concerning felonies and misdemeanours and the applicable penalties. According to Article 37, all the matters that are not explicitly allocated to parliamentary legislation shall be regulated by the government (eg petty offences). See A Giudicelli, ‘Le principe de légalité en droit pénal français. Aspect légistiques et ­jurisprudentiels’ (2007) 3 Revue de science criminelle et de droit pénal comparé 513–15.

Environmental Criminal Law in France 65 It is worth noting that a law often only states that the violation of a certain rule, generally of a regulatory nature, entails certain criminal sanctions. Thus, the offence is defined by reference to a regulation. This holds particularly true for environmental criminal offences.36 Although this kind of incrimination technique has been validated by the Constitutional Council (Conseil Constitutionnel), which stated that no constitutional principles prevent the legislature from criminalising the violation of an obligation not arising from the law,37 several concerns have been expressed with regard to the clarity and accessibility of the criminal provision, which are essential aspects of the legality principle.38 Other facets of the legality principle—closely related to the fundamental feature of the foreseeability of criminal law—are the strict interpretation of the law by the judge, set out in Article 111-4 CC,39 and the principle of non-retroactivity provided for in Article 112-1 CC. In particular, this article establishes that conduct is punishable only where it constituted a criminal offence at the time when it took place. Only those penalties legally applicable at the same date may be imposed. However, new provisions are applicable to offences committed before their coming into force and which have not led to a res judicata conviction, when they are less severe than the previous provisions.40 2.2.2.  Necessity of Criminal Law The principle of necessity of criminal law is established under Article 8 of the Declaration of the Rights of Man and of the Citizen of 1789 according to which ‘The law must prescribe only the punishments that are strictly and evidently necessary’. The principle of necessity entails that the criminal law provisions should be introduced when they are considered essential in order for the legal interests to be protected and, as a rule, should be used only as a last resort (ultima ratio). Particularly, the legislature needs to analyse whether less severe measures, eg sanctions of an administrative or civil nature, could effectively address the illicit conduct. 2.2.3. Causality The CC lacks a general provision explicitly aimed at defining causality as a key component of the material element (élément matériel) of the offence. In order to 36  P Chaumont, ‘Rapport de la Cour de cassation de France sur le droit pénal de l’environnement’ available at: http://www.ahjucaf.org/Rapport-de-la-Cour-de-cassation-de.html, para 1.1; D G ­ uihal, Droit répressif de l’environnement (Paris, Economica, 2008) 114; A Gogorza, ‘Le droit pénal de l’environnement’ (2013) 4 Droit Pénal 4; Van Lang, Droit de l’environnement, n 13 above, 489. 37  Conseil Constitutionnel, 10 November 1982, Decision No 82-145, JORF of 11 November 1982, 3393. 38  Giudicelli-Delage, ‘Le droit pénal française de l’environnement’, n 4 above, 72; Gogorza, ‘Le droit pénal de l’environnement’, n 36 above, 2; C Roca, ‘Le principe de légalité et l’incrimination pénale’ (2001) 2 Revue pénitentiaire et de droit pénal 282; Jaworski, ‘L’état du droit pénal de l’environnement français’, n 7 above, 899. 39  Article 111-4 CC ‘Criminal legislation is to be construed strictly’. 40  See D Rebut, ‘Le principe de légalité des délits et des peines’ (2001) 2 Revue pénitentiaire et de droit pénal 264–65; Roca, ‘Le principe de légalité et l’incrimination pénale’, n 38 above, 284.

66  Floriana Bianco and Annalisa Lucifora establish the causation between the conduct (criminal law act) and a result, French courts might apply three main tests of causation:41 —— According to the equivalence theory, the cause is the one representing a ­condicio sine qua non of the result; from this perspective, all the events that contributed to the occurrence of the result are equivalent. —— The proximate cause theory considers the cause as the condition which is the primary cause of a criminal offence; only the closest causes in point of time, which have a direct and immediate link with the result, are taken into account. —— Pursuant to the adequate cause theory the cause is the condition which, according to experience and having regard to the ordinary course of events, normally produces this type of result. After the adoption of the Law No 2000-674 of 10 July 2000, which modified Article 121-3 CC, causality—and specifically, the distinction between the direct or i­ndirect link of causality42—plays a significant role in influencing the mental element ­(élément moral) of the criminal offence, and in particular the criminal liability of individuals for negligence.43 Article 121-3 CC lays down that where the causal link is direct, recklessness, simple negligence, or failure to observe an obligation of due care or caution imposed by any law or regulation, is enough to give rise to criminal liability; where the causal link is indirect,44 a higher degree of fault is required, and criminal liability of individuals can be premised only upon evidence of gross negligence or of a manifestly deliberate violation of a law or regulation.45 Cases of indirect causation are defined by Article 121-3 CC as those where the defendant ‘has created or contributed to creating the situation that has resulted in

41  F Desportes and F Le Gunehec, Droit Pénal Général, 11th edn (Paris, Economica, 2004) 397 ff; J Pradel, Droit Pénal Général, 15th edn (Paris, Cujas, 2004) 357 ff; see also, Manacorda, ‘Reato nel diritto penale francese’, n 34 above, 313. 42  G Giudicelli-Delage, ‘L’analyse au regard du lien de causalité (Article 121-3 al 4 code pénal)’ (2004) 1 Revue pénitentiaire et de droit pénal 49. 43  E Fortis, ‘Les conséquences de la loi du 10 juillet 2000 en droit pénal’ (2001) 4 Revue de science criminelle et de droit pénal comparé 743 observed that ‘Le lien de causalité devient la clé de répartition de la responsabilité pénale entre les différent personnes physiques’. 44  Although indirect, the causal link needs to be always established by the judge with certainty: see D-N Commaret, ‘La loi du 10 juillet 2000 et sa mise en œuvre par la chambre criminelle de la Cour de cassation’ (2002) 103 Gazette du Palais 3, 4; F Desportes, ‘La responsabilité pénale en matière d’infractions non-intentionnelles. La loi du 10 juillet 2000 devant la Chambre criminelle’, available at: http://www.slideserve.fr/cour-de-cassation. 45  M Lacaze, ‘Triste bilan sur la causalité issue de la loi du 10 juillet 2000 tendant à préciser la définition des délits non intentionnels’ (2006) 5 Recherche & Travaux, Mèlanges DEA Université Montpellier I 103.

Environmental Criminal Law in France 67 damage’ or has ‘failed to take steps to avoid it’.46 However, the distinction between direct and indirect cause is not always easy to apply in practice.47 It is worth noting that the rules about indirect causation and gross negligence apply to natural persons only. Thus, legal persons are still in principle criminally liable for all the consequences of their simple negligence, however indirect.48 2.2.4.  Mens Rea Rules In French criminal law the basic rule for mens rea is that for all felonies and misdemeanours, guilt presupposes intention (intention) in the defendant. According to Article 121-3 para 1 CC ‘There is no felony or misdemeanour in the absence of an intent to commit it’. However there are exceptions to that rule, where expressly established by the law, for misdemeanours only. This is the case for the deliberate endangering of others (mise en danger délibérée de la personne d’autrui), which is a misdemeanour where the law so provides (Article 121-3 para 2 CC). In such a situation the individual, without wanting the specific result to occur, knowingly took the risk that it would occur. This case is referred to, by most scholars, as ‘dol éventuel’.49 A misdemeanour also exists, where a law so provides, in cases of recklessness, negligence, or failure to observe an obligation of due care or precaution imposed by any law or regulation, where it is established that the offender has failed to show normal diligence, taking into consideration, where appropriate, the nature of his role or functions, of his capacities and powers and of the means then available to him (Article 121-3 para 3 CC). This provision sets out cases of ‘simple negligence’ (faute simple), where a natural person is liable only for the consequences of his own act that are direct and immediate.50 To make a natural person criminally liable for the remote consequences of his act, an aggravated degree of fault (faute qualifiée) is required.51 According to­ 46  Some scholars observed that the reform entailed the acceptance of the proximate cause theory, see P Conte, ‘Le lampiste et la mort’ (2001) Droit Pénal 11; Lacaze, ‘Triste bilan sur la causalité, n 45 above, 109. By contrast, other authors affirmed that the adequate cause theory was adopted, see M-E Cartier, ‘La nouvelle définition des délits non intentionnels par la loi 10 juillet 2000. Introduction’ (2001) 4 Revue de science criminelle et de droit pénal comparé 728; Y Mayaud, ‘Retour sur la culpabilité non intentionnelle en droit pénal … (à propos de la loi n° 2000-647 du 10 juillet 2000)’ (2000) Dalloz 606. 47  Lacaze, ‘Triste bilan sur la causalité’, n 45 above, 110 ff; JR Spencer and M-A Brajeux, ‘Criminal Liability for Negligence—A Lesson from across the Channel?’ (2010) 1 International and Comparative Law Quarterly 15. 48  Spencer and Brajeux, ‘Criminal Liability for Negligence—A Lesson from across the Channel?’, n 47 above, 18. 49  See R Sicurella, ‘L’impervio cammino del principio di colpevolezza nel sistema penale francese’ (2001) 3 Rivista italiana di diritto e procedura penale 964 and references therein. 50  Spencer and Brajeux, ‘Criminal Liability for Negligence’, n 47 above, 14; see para 2.2.3 above. 51  Desportes, ‘La responsabilité pénale en matière d’infractions non-intentionnelles’, n 44 above, 1; Giudicelli-Delage, ‘L’analyse au regard du lien de causalité’, n 42 above, 54; C Ruet, ‘La responsabilité pénale pour faute d’imprudence après la loi n° 2000-647 du 10 juillet 2000 tendant à préciser la définition des délits non-intentionnels’ (2001) (1) Droit Pénal 4.

68  Floriana Bianco and Annalisa Lucifora Article 121-3 para 4 CC, in the case referred to in Article 121-3 para 3 CC, natural persons who have not directly contributed to causing the damage, but who have created or contributed to creating the situation which allowed the damage to happen or who failed to take steps enabling it to be avoided, are criminally liable where it is shown that they have broken a duty of care or precaution laid down by a law or regulation in a manifestly deliberate manner (faute délibérée), or have committed a specified piece of misconduct which exposed another person to a particularly serious risk of which they must have been aware (faute caractérisée) (Article 121-4 CC). The higher degree of the fault seems to be based on the need to ‘compensate’ for the minus of the indirect causation of the damage.52 With regards to environmental offences, it is worth noting that the Court of Cassation adapted the definition of faute caractérisée, replacing the reference to the risk caused to ‘another person’ with the risk incurred by the environment.53 A kind of strict liability is provided for petty offences, known also as ‘material offences’, in view of the fact that they are constituted by a mere physical act specified in the relevant criminal provision and exist, in principle, independently of any mental element.54 Article 121-3 para 5 CC codifies this idea, stating that ‘There is no petty offence in the event of force majeure’. Although some intentional petty offences exist, as well as petty offences which presuppose recklessness or a deliberate violation of a security obligation, they are particularly rare and the general principle is that the defendant is presumed liable for having committed the prohibited act.55 2.2.5.  Party to the Offences Rules In the French legal system the liability of accomplices is derived from the liability of the perpetrator, in accordance with the principle of the ‘derivative responsibility’ (emprunt de criminalité), which requires the existence of a principal crime in order for an accomplice to be criminally liable.56 The French CC defines the perpetrator of an offence as the person who commits the criminally prohibited act, or attempts to commit a felony or, in the cases provided for by law, a misdemeanour (Article 121-4 CC). According to the first paragraph of Article 121-7 CC the accomplice to a felony or a misdemeanour is the person who knowingly, by aiding or abetting, facilitates its preparation or commission (complicité par aide ou assistance).

52 

Sicurella, ‘L’impervio cammino’, n 49 above, 969. of Cassation, Criminal Chamber, 19 October 2004, 04-82.485, Bulletin Criminel No 247. See Chaumont, ‘Rapport de la Cour de cassation’, n 36 above, para 1.2. 54  J Pradel, ‘Criminal Law’ in George Bermann and Etienne Picard (ed), Introduction to French Law (The Netherlands: Kluwer Law International, 2008) 123. 55 Pradel, Droit Pénal Général, n 41 above, 471. 56  S Fournier, ‘Le nouveau code pénal et le droit de la complicité’ (1995) 3 Revue de science criminelle et de droit pénal comparé 481 ff; Pradel, Droit Pénal Général, n 41 above, 386. 53  Court

Environmental Criminal Law in France 69 Furthermore, the second paragraph states that any person who, by means of a gift, promise, threat, order, or an abuse of authority or power, provokes the commission of an offence or gives instructions to commit it, is also an accomplice (complicité par instigation). It is worth noting that while complicity to a felony or a misdemeanour is always punishable, complicity in connection with a petty offence can only be relevant in the case of complicity by incitement. The aiding or assistance to commit a petty offence will not be punishable unless expressly set forth by an autonomous ­provision.57 This circumstance implies that complicity by incitement is considered as more serious than complicity by aiding or abetting.58 Article 121-6 CC establishes that the accomplice to the offence is punishable as a perpetrator. Therefore, the French system combines a differentiated typology of complicity with a uniform treatment in terms of sanctioning.59 2.2.6.  Criminal Sanctions According to Article 130-1 CC, in order to ensure the protection of society, to prevent the commission of other offences and to restore social balance, while respecting the interests of the victim, the functions of the criminal sanction are the punishment of the perpetrator of the offence and the promotion of his reform, integration or reintegration.60 Criminal sanctions are imposed by the judge according to the principle of individualisation of punishment (principe de l’individualisation des peines). Article 132-1 CC, states that any sentence imposed by the court must be individualised. Within the limits laid down by law, the court shall determine the nature, the quantum and the regime of sentences imposed, according to the circumstances of the offence and the personality of the offender, as well as his material, family and social situation, in accordance with the purposes and functions of the penalty set forth in Article 130-1 CC. In the French criminal system, three main categories of criminal sanctions exist: major penalties (peines principales), alternative penalties (peines alternatives) and additional penalties (peines complémentaires).61 The major penalty applicable to natural persons for the commission of a felony is criminal imprisonment (réclusion criminelle) (Article 131-1 CC).62

57  Fournier, ‘Le nouveau code pénal’, n 56 above, 501–03; Pradel, Droit Pénal Général, n 41 above, 387. 58  M Delmas-Marty and C Lazerges, ‘À propos du nouveau Code pénal français’ (1997) Revue de droit pénal et de criminologie 146. 59  G Grasso, ‘Pre-Art. 110’ in M Romano and G Grasso, Commentario Sistematico del Codice Penale. Vol. II: Art. 85-149 (Milano, Dott A Giuffrè Editore, 2012) 137. 60  This Article was introduced by Law No 2014-896 of 15 August 2014 on the individualization of sanctions and enhancing the effectiveness of criminal sanctions, JORF No 189 of 17 August 2014. 61 Pradel, Droit Pénal Général, n 41 above, 520 ff. 62  Criminal detention (détention criminelle) is provided for political felonies.

70  Floriana Bianco and Annalisa Lucifora The maximum criminal penalty is life imprisonment, while the minimum period for a fixed term of criminal imprisonment is 10 years. The penalty of criminal imprisonment does not preclude the imposition of a fine and of additional ­penalties (Article 131-2 CC). A wide range of major penalties, listed in Article 131-3 CC, may be applied to natural persons for the commission of misdemeanours: imprisonment (emprisonnement); penal constraint (contrainte pénale); fine (amende); day-fine (jouramende); citizenship course (stage de citoyenneté); community service (travail d’intérêt général); penalties entailing a forfeiture or restriction of rights (peines privatives ou restrictives de droits); additional penalties (peines complémentaires); reparation penalty (sanction-réparation). The penalties incurred by natural persons for the commission of petty offences are: fine; penalties entailing a forfeiture or restriction of rights; and reparation penalties. These penalties do not preclude the imposition of additional penalties (Article 131-12 CC). Depending on the amount of the fine, petty offences are divided into five classes, according to Article 131-13 CC. Alternative penalties may be imposed by the courts instead of a prison sentence or a fine. Among these are the penalties listed in Article 131-6 CC, entailing forfeiture or restriction of rights63 (eg confiscation of the object which was used in, or was intended for, the commission of the offence, or of the object which is the product of it; prohibition to exercise any professional or social activity where the facilities afforded by such activity have knowingly been used to prepare or commit the offence, etc.). Additional penalties, in principle, are imposed in addition to other penalties where the law or the regulation so provides (eg penalty entailing prohibition, forfeiture, incapacity or withdrawal of a right; the impounding or confiscation of an object; the compulsory closure of an establishment, etc).64 However, the court may decide to impose one or more of the additional penalties as a main sentence.65 It is worth noting that additional penalties often apply to environmental crimes.66 Besides the additional penalties set forth in the general part of the CC, specific additional penalties are provided for by Article L 173-7 Env Code,67 eg public notice (affichage) and dissemination of the sentence; confiscation;68 prohibition to perform a professional activity. 63 

See Article 131-14 CC for petty offences of the fifth class. See Article 131-10 CC for felonies and misdemeanours; Articles 131-16 and 131-17 CC for petty offences; Article 131-43 CC, where the offender is a legal person. 65  See Articles 131-11 and 131-18 CC; Jean Pradel, Droit Pénal Général, n 41 above, 522–23. 66 Chaumont, ‘Rapport de la Cour de cassation’, n 36 above, para 2.3.1; Van Lang, Droit de l’environnement, n 13 above, 500. 67  Where the offender is a legal person, the additional penalties provided for by Article L 173-8 Env Code apply. 68 Confiscation is an additional penalty which could be potentially very effective in the fight against environmental crime: see C Courtaigne-Deslandes, ‘Propositions pour améliorer la protection de l’environnement et de la santé publique par le droit pénal’ (2015) 60 Bulletin du droit de l’environnement industriel 42. 64 

Environmental Criminal Law in France 71 Criminal sanctions can also be imposed on legal entities (personnes morales) with the exception of the state. Article 131-37 CC establishes that penalties for felonies and misdemeanours incurred by legal persons are a fine and, in the cases set out by law, penalties enumerated under Articles 131-39 and 131-39-2 CC; as it concerns misdemeanours, the reparation penalty is also foreseen. According to Article 131-38 CC,69 the maximum amount of a fine applicable to legal persons is five times that which is applicable to natural persons by the law sanctioning the offence.70 Where this is a felony for which no provision is made for a fine to be paid by natural persons, the fine incurred by legal persons is €1,000,000. Article 131-39 CC states that where a law so provides against a legal person, a felony or misdemeanour may be punished by one or more of the following penalties: dissolution; prohibition from exercising, directly or indirectly, one or more social or professional activities; placement under judicial supervision; permanent or temporary closure of one or more establishments; disqualification from public tenders; prohibition, either permanently or temporarily, from making a public appeal for funds; prohibition from drawing cheques, and the prohibition from using payment cards; confiscation; posting a public notice of the decision or disseminating the decision; confiscation of the animal used to commit the offence or against which the offence was committed and the prohibition of keeping an animal; the prohibition from receiving any public aid granted by the state, local governments, their institutions or groups as well as any financial assistance provided by a private person charged with a public service mission. The additional penalty of confiscation shall be applied for the felonies and misdemeanours punishable by imprisonment for a period exceeding one year. According to Article 131-40 CC the penalties incurred by legal persons for petty offences are a fine, the penalties entailing forfeiture or restriction of rights and the reparation penalty. These penalties do not preclude the imposition of one or more of the additional penalties. 2.2.7.  Liability of Legal Persons Considered as one of the main innovations of the CC of 1994, the recognition of the criminal responsibility of legal person is provided for by Article 121-2 CC, according to which legal persons, with the exception of the state, are criminally liable for the offences committed on their account by their organs or representatives. The criminal liability of legal persons does not exclude that of any natural persons who are perpetrators or accomplices to the same act. 69 

See Article 131-41 CC for petty offences. Courtaigne-Deslandes, ‘De l’utilité d’une ordonnance simplifiant’, n 18 above, 54, noted that the provision of the maximum amount of the fines limits to some extent their effectiveness when compared with the assets of large companies; moreover, the deterrent effect of the penalty could be ‘neutralised’ considering that the maximum amount of the fine is limited, whereas the profit generated by the offence is not. This holds particularly true for environmental crime. 70 

72  Floriana Bianco and Annalisa Lucifora A limitation is provided for local public authorities and their associations; they can incur criminal liability only for offences committed in the course of their activities which may be exercised through public service delegation conventions.71 While at the beginning this responsibility was limited to the cases expressly provided for by laws or regulations (responsabilité spéciale), the Loi Perben II72 extended it to any offence, and therefore also to environmental crimes. Scholars have highlighted that criminal liability of legal persons, as provided for by Article 121-2 CC, does not infringe either the principle of liability for one’s own acts (principe de la responsabilité du fait personnel) or the principle of the individual nature of penalties (principe de la personnalité des peines).73 In particular, the first principle is respected provided that the offence committed by a legal person is committed on its own account and by its organs or representatives. With regard to the second principle, it was highlighted that the legislature has introduced specific penalties for legal persons74 (see para 2.2.6 above).

3.  ENVIRONMENTAL CRIMINAL LAW AND TRANSPOSITION OF THE DIRECTIVE 2008/99/EC

Although the French authorities considered that the national legal framework was already in compliance with Directive 2008/99/EC,75 anyway the Ordinance No 2012-34 of 11 January 2012 introduced a number of provisions to comply with certain requirements of the Directive. In fact, the above-mentioned Ordinance aimed, on the one hand, to address the gaps of the Env Code and, on the other, to implement European law. As laid down in Article 256 of the Law ‘Grenelle II’ (Law No 2010-788 of 12 July 2010),76 the power to amend the legislative part of the Env Code through an Ordinance was given, among other things, in order to ‘ensure compliance of its ­provisions with Community law within the areas of natural spaces, fauna and flora, marine environment, air and atmosphere and in the area of pollution and risk prevention, in particular as regards waste’ (para 1°), to ‘achieve the harmonisation, reform and simplification of criminal law provisions of the Environmental Code …’ (para 4°) and to ‘remedy errors and inadequacies in codification and to adapt the code to legislative and regulatory developments since its publication’ (para 6°).

71 

Article 121-2, para 2 CC. See Pradel, Droit Pénal Général, n 41 above, 479. Law No 2004-204 of 9 March 2004, JORF No 59 of 10 March 2004, 4567. 73  Delmas-Marty and Lazerges, ‘À propos du nouveau Code pénal français’, n 58 above, 151. 74  Delmas-Marty and Lazerges, ‘À propos du nouveau Code pénal français’, n 58 above, 151–52. 75 According to the Ministry of Justice: ‘The criminalization of the infringement [of national legislation of EC origin], already provided for by the national laws (subject to certain reinforcement of penalties) thus corresponds to the sanction of a conduct liable to damage the environment, in line with the aims of Directive 2008/99/EC’. Ministry of Justice and Freedoms, Direction des affaires criminelles et des Grâces, Note sur les travaux de transposition de la Directive n° 2008/99/CE du parlement Européen et du Conseil du 19 novembre 2008 relative à la protection de l’environnement par le droit pénal, p 2. 76  Law No 2010-788 of 12 July 2010 on national commitment to the environment, JORF of 13 July 2010, 12905. 72 

Environmental Criminal Law in France 73 Wishing to ensure a more simplified and harmonised system of penalties set out in the Env Code, the Ordinance of 11 January 2012 introduced a new Title VII in Book 1 of the Code (Articles L 170-1 to L 174-1 Env Code) establishing a set of common penal provisions applicable to all areas covered by the Env Code;77 the three new chapters forming Title VII become the location for uniform rules on criminal sanctions and police controls concerning all offences of the Env Code.78 At the same time, the Ordinance abrogated the provisions of other Books which are now included in Title VII and harmonised legal texts outside the Env Code (the harmonisation refers to 11 codes and several special laws).79 As affirmed by the Report to the President of the Republic, harmonisation of sanctions achieved by the Ordinance was ‘justified by the nature of the infringements involved’ and, moreover, ‘consistent with the requirement laid down in Article 5 of Directive 2008/99/EC of 19 November 2008 on the protection of the environment through criminal law, to provide for effective, proportionate and dissuasive penalties’.80 In particular, the Ordinance, in addition to increasing the level of penalties provided for specific environmental offences (related to different environmental components, such as air, water, natural spaces and sites, fauna and flora), groups into two general categories set out in the new Title VII the environmental criminal offences spread across different books of the Env Code.81 The first one brings together in the new Article L 173-1 all acts, activities, operations, facilities and works subject to one of the administrative procedures (authorisation, registration, licensing, approval or certification) laid down in the Env Code, and consists of carrying out the activity without the required authorisation.82 The second one includes the execution of these actions in violation of a formal notice

77  Book 1 of the Env Code contains common provisions on environmental law; the following books concern the different environmental components and their protection: physical environments (water and air); natural spaces; flora and fauna; and the prevention of pollution, risks and nuisances. Books VI and VII deal with environmental law enforcement in New Caledonia, French Polynesia, Wallis and Futuna Islands, French Southern and Antarctic Territories, and Mayotte, as well as in Antarctica. The regulatory part follows the same structure as the legislative part. 78  For a comment on the Ordinance No 2012-34 of 11 January 2012), see Jaworski, ‘Le volet pénal’, n 10 above, 221–236. 79  See Title II of the Ordinance, 1st Chapter, Articles 22 to 27. 80  Report to the President of the Republic related to the Ordinance No 2012-34 of 11 January 2012 on simplification, reform and harmonisation of provisions of administrative police and judicial police of the Environmental Code, in JORF No 0010 of 12 January 2012, p 562. 81  Jaworski, ‘Le volet pénal’, n 10 above, 232. 82  Article L 173-1-I Env Code provides for a penalty of 1 year’s imprisonment and a fine of €75,000 for committing, without authorisation, registration, licensing, approval or certification referred to in Articles … required for any act, activity, operation, installation or structure, the act of:

1° committing such acts or carrying out that activity; 2° carrying out or performing this operation; 3° operating this facility or work; 4° establishing or participating in the establishment of such a facility or such a work.

74  Floriana Bianco and Annalisa Lucifora (Article L 173-2, Env Code).83 The main penalties provided for these offences resulting from ­various environmental policies have been harmonised and increased (1 year’s imprisonment and a fine of €75,000 for the first category and 1 year’s imprisonment and a fine of €15,000 for the second category); higher penalties (2 years’ imprisonment and a fine of €100,000) apply where the above-mentioned actions are committed in violation of a negative decision of the administration or the judge (Articles L 173-1-II and L 173-2-II, Env Code), since in this case the violation shows a stronger culpable intent on the part of its author and consequently justifies a more severe response.84 In addition to the harmonisation of sanctions and inspired by Article 3 of the Directive, the Ordinance No 2012-34 provided for a new criminal offence, which punishes by 2 years’ imprisonment and a fine of €75,000 the failure to comply with the administrative procedures provided for specific conduct when it results in e­nvironmental damage, with a serious attack on the health or safety of persons or substantial damage to fauna and flora or to the quality of air, soil or water (Article L 173-3, para 1° Env Code). More severe penalties from 3 to 5 years’ imprisonment and a fine of up to €300,000 apply when such damage has been caused in violation of the prefectoral formal notice (Article L 173-3, paras 2° and 3° Env Code). These new provisions aim mainly to sanction resistance to the measures ordered by the administrative authority, measures which are now applicable to all the policies of the Env Code.85 Although the introduction of common provisions is remarkable as a whole, the new system maintains the principle of criminal irresponsibility in the case of administrative authorisation; thus, if the administration authorises the emissions, the criminal judge cannot sentence the operator which has complied with administrative prescriptions even if these emissions could cause substantial damage to the environment. Moreover, some authors highlight that the lack of precision of the terms used (‘gravement’, ‘substantielle’) could make difficult the application of this provision by the judges;86 others complain that the aggravating circumstance only refers to the continuation of an activity in violation of a formal notice, without considering the same non-compliance when the activity is ended.87 In any case, the system put in place by the Ordinance of 2012 is a real harmonisation of the penalties incurred for most offences under the Env Code; this 83  Article L 173-2-I Env Code provides for a penalty of 1 year’s imprisonment and a fine of €15,000 for the continuation of an operation or activity, the operation of a facility or work or the performance of works subject to declaration, authorisation or derogation according to Articles … without complying with the formal notice enacted pursuant to Article L 171-7 or Article L 171-8 Env Code. 84  Jaworski, ‘Le volet pénal’, n 10 above, 232. 85  E Monteiro, L’ordonnance du 11 janvier 2012 et les orientations de la politique pénale actuelle en matière d’atteintes à l’environnement, available at: http://www.campusdelamer.fr/wp-content/ uploads/COM-MONTEIRO-SEMINAIRE-18-02-2014.pdf. 86  Jaworski, ‘Le volet pénal’, n 10 above, 233. 87  M-H Gozzi, ‘Harmonisation et simplification des dispositions administratives et répressives en matière d’environnement: l’ordonnance no 2012-34 du 11 janvier 2012 est entrée en vigueur’ (2013) 88 Revue Lamy Droit des Affaires 55.

Environmental Criminal Law in France 75 effort of coherence coincides with the increase of penalties provided for sectoral environmental offences, in compliance with the EU requirement to strengthen strategies and actions to tackle environmental crime.88 Indeed, although most of the serious environmental offences listed in Article 3 of the Directive were already punishable by the Env Code at the time of adoption of the Directive, there were however some inconsistencies that were not perfectly in line with EU requirements, especially as regards the level of sanctions. Thus the Ordinance increased the penalties originally provided for sectoral offences in order to ensure compliance with the standard of ‘effective, proportionate and dissuasive penalties’. The raising of penalties is not arbitrary but is consistent with the nature of the infringements involved and the penalties vary depending on the seriousness of the offence, in order to meet the requirement of proportionality of the sentence.

3.1.  Special Environmental Criminal Law According to Article L 170-1 Env Code, special provisions on controls and sanctions contained in other titles of Book 1 and in other Books of the Env Code make an exception for or supplement common rules included in Title VII. As regards the discharge, emission or introduction of a quantity of material or ionising radiation into air, soil or water (Article 3(a) of the Directive), in addition to the above-mentioned common provisions (Articles L 173-1, 173-2 and 173-3 Env Code), specific offences punish the infringement of the rules applicable to the different environmental components involved. Article L 226-9 Env Code punishes the emission of pollutant substances constituting atmospheric pollution into the air;89 atmospheric pollution is defined by Article L 220-2 Env Code (as modified by Law No 788 of 12 July 2010) as the direct or indirect introduction into, or the presence in the atmosphere and closed spaces, of chemical, biological or physical substances having detrimental consequences likely to put human health in danger, to damage biological resources and ecosystems, to influence climate change, to damage material goods, or to result in olfactory nuisance.

Although the criminal conduct expressly refers only to emission, it also includes the introduction of pollutant materials listed in Article 3 of the Directive. Moreover, it is worth noting that emission is not punished per se by Article L 226-9 but only when it is committed in violation of a formal notice pronounced by an administrative authority in application of Articles L 171-7 or L 171-8 Env Code.

88 

Jaworski, ‘Le volet pénal’, n 10 above, 233. Article L 226-9 Env Code rules that when an industrial, commercial, agricultural or services firm emits pollutant substances constituting atmospheric pollution, as defined by Article L 220-2, in violation of a formal notice pronounced in application of Articles L 171-7 or L171-8, the operator is punished by 2 years’ imprisonment and a fine of €75,000. 89 

76  Floriana Bianco and Annalisa Lucifora As regards air pollution, the Ordinance of 2012 increased the penalty (which was originally 6 months’ imprisonment and a fine of €7,500) to 2 years’ imprisonment and a fine of €75,000 in order to comply with Article 5 of the Directive. As for water, Article L 216-6 Env Code punishes by the same sanction of 2 years’ imprisonment and a fine of €75,000 two different forms of criminal conduct:90 the first is water pollution, consisting in the act of directly or indirectly disposing of, discharging in or letting flow into surface, groundwater and seawater within the limits of territorial boundaries, one or more substances of any kind whose actions or reactions cause, even if only temporarily, harmful effects on health or damage to fauna and flora … or significant modifications to the normal regimen of water supply or limitations in the use of bathing waters;

the second consists in ‘the discharge or abandonment of waste in large quantities in surface or underground waters or in seawater within the boundaries of territorial limits, on beaches or in coastal areas’.91 It is worth noting that Article L 216-6 Env Code directly punishes the damage to the environment. This model of criminalising environmental damage is also used by Article L 432-2 Env Code that punishes by 2 years’ imprisonment and a fine of €18,000 the ‘act of discharging, tipping or letting flow into the waters mentioned in Article L 431-3, directly or indirectly, substances whose action or reaction has killed fish or damaged their nutrition, reproduction or food value’.92 Judges have given a very extensive interpretation of this Article and, through its application also in cases where no mortality in fish has been found, have decided to sanction a risk of damage and not the damage itself. Indeed, only the introduction of an offence of criminal attempt would allow punishment of these acts while respecting the principle of legality, as envisaged by Article L 415-3, para 1°

90 On this provision see R Nérac-Croisier, Sauvegarde de l’environnement et droit pénal (Paris, L’Harmattan, 2005) 172. 91  Article L 216-6 Env Code states that the act of ‘directly or indirectly disposing of, discharging in or letting flow into surface, groundwater and seawater within the limits of territorial boundaries, one or more substances of any kind whose actions or reactions cause, even if only temporarily, harmful effects on health or damage to fauna and flora, with the exception of damage referred to in Articles L 218-73 and L 432-2 Env Code, or significant modifications to the normal regimen of water supply or limitations in the use of bathing waters, is punishable by 2 years’ imprisonment and a fine of €75,000. When the discharge is authorised by decree, the provisions are applicable only if the prescriptions of the aforementioned decree are not respected. The court may also oblige the convicted person to restore the aquatic environment in accordance with the procedure set out in Article L 173-9 Env Code. These same penalties and measures are applicable in the event of discharge or abandonment of waste in large quantities in surface or groundwater or in seawater within the boundaries of territorial limits, on beaches or in coastal areas. These provisions do not apply to discharges from ships at sea.’ The limitation period for the public prosecution of the offences referred to in this article runs from the discovery of the damage (added by Law No 2016-1087 of 8 August 2016). 92  Also for Article L 432-2 Env Code, Law No 2016-1087 of 8 August 2016 has specified that the limitation period runs from the discovery of the damage.

Environmental Criminal Law in France 77 Env Code punishing the attempt of infractions against protected species and their habitats.93 For this reason, some authors have wished for the introduction of attempt for all water pollution offences by the Ordinance;94 in this way, the French legal order would have fully complied with Article 3(a) of the Directive, requiring Member States to punish an act ‘which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants’. As for soil pollution, it may be now punishable through Articles L 173-1, 173-2 and 173-3 Env Code; instead, before the introduction of these provisions, the lack of a specific ‘soil pollution’ offence in the Env Code meant that such conduct could be prosecuted only in connection to water pollution or similar offences. As regards waste, in addition to the common provision of the new Title VII that covers conduct listed by Article 3(b) of the Directive, shipment of waste [Article 3(c)] is covered by Article L 541-46, para 11° Env Code, which punishes by 2 years’ imprisonment and a fine of €75,000 any act of carrying out or having carried out a transfer of waste without complying with administrative procedures.95 Also other criminal offences concerning waste, set out in Article L 541-46 Env Code, mostly depend on administrative rules and consist in failing to comply with an administrative decision or an administrative regulation. Common provisions set out by Articles L 173-1, 173-2 and 173-3 Env Code cover conduct listed by Article 3(d) of the Directive.

93 See Article 129 of the Law No 2010-788 of 12 July 2010 on national commitment to the environment. 94  Courtaigne-Deslandes, ‘De l’utilité d’une ordonnance simplifiant’, n 18 above, 51. 95  The actions punishable by Article L 541-46, para 11° Env Code are the following:

a) Carrying out or having carried out a transfer of waste without notification to French or foreigner competent authorities or without the preliminary consent of these authorities when notification and consent are necessary; b) Carrying out or having carried out a transfer of waste when the authorisation of the competent authorities involved is achieved by fraud; c) Carrying out or having carried out a transfer of waste when this transfer is not followed by the movement document provided by Article 4 of the Regulation (CE) No 1013/2006 of the European Parliament and Council of 14 June 2006 on shipments of waste; d) Carrying out or having carried out a transfer of waste when the producer, the addressee or the final installation of waste are not those mentioned in the notification or movement document provided by Article 4 of the above-mentioned Regulation; e) Carrying out or having carried out a transfer of waste of different nature than indicated in notification or movement documents provided by Article 4 of the above-mentioned Regulation, or regarding a significantly higher quantity of waste; f) Carrying out or having carried out a transfer of waste that has been validated or eliminated without fulfilling the European or international legislation; g) Exporting waste without fulfilling the dispositions of Articles 34, 36, 39 and 40 of the above mentioned Regulation;

78  Floriana Bianco and Annalisa Lucifora Specific provisions concern nuclear materials and protected species. As regards nuclear materials, Article L 596-11 Env Code, as modified by Ordinance No 2016-128 of 10 February 2016, punishes the creation, exploitation and other conduct related to basic nuclear installations as well as the transport of radioactive substances carried out without complying with administrative rules. As for protected species and their habitats, each form of conduct which could cause interference with the conservation of protected animal or plant species is taken into account by the French legislation.96 In fact, Article L 415-3 Env Code punishes, among other things, any act of interference with the conservation of nondomestic animal species, non-cultivated plant species or their natural habitats as well as the attempt of these crimes.97 It is worth noting that Law No 2016-1087 of 8 August 2016 has recently increased the range of sanctions from 1 year’s imprisonment and a fine of €15,000 (as modified by the Ordinance No 2012-34) to 2 years’ h) Importation of waste without fulfilling the dispositions of Articles 41 and 43 of the above mentioned Regulation; i) Carrying out a mixing of waste during the transfer without fulfilling Article 19 of the above mentioned Regulation; j) Violation of a formal notice based on Article L 541-42. 96 

See V Jaworski, ‘La protection pénale de la biodiversité, in Biodiversité et évolution du droit de la protection de la nature: réflexion prospective’ (2008) Revue Juridique de l’Environnement—special issue 39. 97  Article L 415-3 para 1° Env Code punishes ‘any act in violation of the prohibitions provided for by the provisions of Article L 411-1 and the regulations provided in Article L 411-2: a) interference with the conservation of a non-domestic animal species, other than intentional disturbances; b) interference with the conservation of non-cultivated plant species; c) interference with the conservation of natural habitats; d) destruction, alteration or degradation of sites of geological interest, in particular natural or artificial underground cavities, including the removal, destruction or degradation of fossils, minerals and concretions from these sites. The attempt of infractions referred from a) to d) is punished by the same penalties. 2° The wilful introduction into the natural environment, transport, peddling, use, putting up for sale, sale or purchase of an animal or plant species in violation of the provisions of Articles L 411-4 to L 411-6 or the regulations and individual decisions for its application; 3° Any act of producing, holding, transferring, using, transporting, introducing, importing, exporting or re-exporting all or part of the animals or plants in violation of the provisions of Articles L 411-6 and L 412-1 or the regulations and individual decisions for its application; 4° The running of a business, premises or any other establishment breeding, selling, hiring or transporting non-domestic animal species, or of any other establishment destined to present live specimens of fauna to the public, without holding the certificate of competence as provided in Article L 413-2; 5° The opening or operation of such an establishment in violation of the provisions of Article L 413-3 or the regulations and individual decisions for its application. When the infractions described in 1° and 2° are committed within a national park or a nature reserve, the fine is doubled. Where a person is convicted for an offence under this article, the court may oblige him to charge the costs of catching, taking, guarding or destroying specimens that are necessary’.

Environmental Criminal Law in France 79 imprisonment and a fine of €150,000. Moreover, when the offence is committed by an organised group, as defined by Article 132-71 CC, the penalty is 7 years’ imprisonment and a fine of €750,000 (Article L 415-6 Env Code, introduced by Law No 619 of 16 July 2013 and modified by Law No 2016-1087 of 8 August 2016). As for conduct listed by Article 3(i) of the Directive, it may be sanctioned through Article L 521-21, para 9° Env Code which punishes by 2 years’ imprisonment and a fine of €75,000 any act not respecting prohibitions or prescriptions issued in application of Regulation (EC) No 1005/2009, (EU) No 649/2012, (EC) No 850/2004 and (EU) No 517/2014.

3.2.  Before and After Directive 2008/99/EC Before the Directive, legal persons could already be held responsible for all environmental crimes laid down in the national law. In fact, the French legal system was among the first European continental systems to introduce and regulate, by the CC of 1994, the topic of criminal responsibility of legal persons. At the beginning, this responsibility was limited to cases expressly provided for by laws or regulations (responsabilité spéciale); after Law No 204 of 9 March 2004, known as Loi Perben II, it was extended to any offence.98 According to Article 121-2 CC, legal persons, with the exception of the state, are criminally liable for any offence committed on their account by their organs or representatives.99 Therefore, when the Directive was adopted, the French legal system was already in line with its Article 6 because all environmental criminal offences set out by national law could be applied to natural persons as well as to legal ones. The CC itself expressly provides that legal persons can be criminally liable for some infractions relevant to the environment, such as Articles 422-5 CC (ecological terrorism), 322-17 CC (destruction, defacement and damage) and R 635-8 CC (desertion of wrecks and vehicles). Also other provisions included in the CC, but unrelated to environmental protection can lead to prosecution against legal persons in the case of damage to the environment, like Article 223-1 (punishing the direct exposure of another person to an immediate risk of death or injury likely to cause mutilation or permanent disability by the manifestly deliberate violation of

98  In the case of facts committed prior to the Loi Perben II, it is necessary to verify whether a legal text specifically provided for criminal liability of legal persons. If it is not the case, legal persons cannot be prosecuted; in particular, this applies to provisions concerning the protection of fauna and flora (Article L 415-3 Env Code), parks and reserves (Article L 332-25 Env Code), advertising (Article L 581-34 Env Code), circulation of vehicles in natural spaces (Decree No 92-258 of 20 March 1992). Guihal, Droit repressif de l’environnement, n 36 above, 210. 99  On the notions of organs and representatives, see Nérac-Croisier, Sauvegarde de l’environnement, n 90 above, 103. It is worth noting that the Court of Cassation has admitted the uselessness of identifying the offender as a presumption of representation applies, therefore exempting the prosecutor from verifying whether the offender is an organ or a representative of the legal person (Cass Crim 1 December 2009, Dalloz 2010, 1663); this solution entails an extension of the scope of criminal liability of legal persons. On criminal liability of legal persons, see section 2.2.7.

80  Floriana Bianco and Annalisa Lucifora a specific obligation of safety or prudence imposed by any law or regulation) and Articles 221-6, 222-19 and 222-20 (concerning homicide and involuntary offences against the physical integrity of the person).100 In the Env Code, Article L 173-8, introduced by Ordinance No 2012-34, states that legal persons held criminally liable, under conditions laid down in Article 121-2 CC, for criminal offences set out by this Code will be subject, in addition to the fine in accordance with Article 131-38 CC, to the following penalties (provided for by paras 2°, 3°, 4°, 5°, 6°, 8° and 9° of Article 131-39 CC): prohibition to exercise, directly or indirectly one or more social or professional activities, either permanently or for a period of up to five years (para 2°);101 placement under judicial supervision for a period of up to five years (para 3°); permanent closure or closure for up to five years of the establishments, or one or more of the establishments, of the enterprise that was used to commit the offences in question (para 4°); disqualification from public tenders, either permanently or for a period of up to five years (para 5°); prohibition, either permanently or for a period of up to five years, to conduct a public offering of securities or to admit securities to trading on a regulated market (para 6°); confiscation under the conditions and procedures set out by Article 131-21 (para 8°); posting a public notice of the decision or disseminating the decision in the written press or using any form of communication to the public by electronic means (para 9°). As a whole, the French legal order fully complies with the obligations imposed by the Directive to introduce liability of legal persons for environmental crimes and to ensure that legal persons are punishable by effective, proportionate and dissuasive penalties. Instead, a feature with regard to which the French law seems to go beyond the requirements of the Directive concerns organised crime. In fact, Articles L 415-6 and L 541-46 Env Code provide for an aggravation of the penalties when the conduct described therein is committed by an organised group (bande organisée), as defined in Article 132-71 CC, according to which an organised group is ‘any group formed or association established with a view to the preparation of one or more criminal offences, preparation marked by one or more material actions’. In particular, according to Article L 415-6 Env Code, the commission in an organised manner of the conduct described in Article L 415-3, paras 1°, 2° and 3°, affecting non-domestic animal species, non-cultivated plant species and their habitats, is subject to 7 years’ imprisonment and a fine of €750,000 (ordinary cases are now punishable by 2 years’ imprisonment and a fine of €150,000). Article L 415-6 Env Code, introduced by the Law No 2013-619 of 16 July 2013 in order to enhance the fight against trafficking of protected animal and plant species committed in an organised manner,102 has been recently modified by the 100 See E Daoud and C Le Corre, ‘La responsabilité pénale des personnes morales en droit de l’environnement’, 2013, available at: www.vigo-avocats.com. 101  If applied, this penalty refers to the activity in the exercise, or in the course of the exercise, of which the offence was committed. 102  Law No 2013-619 of 16 July 2013 containing various provisions to comply with the law of the European Union in the field of sustainable development, JORF No 0164 of 17 July 2013, 11890.

Environmental Criminal Law in France 81 Law No 2016-1087 of 8 August 2016, which has increased the fine from €150,000 originally provided to €750,000. Article L 541-46 VII Env Code relating to waste also provides for a more severe penalty (7 years’ imprisonment and a fine of €150,000) when the conduct is committed by an organised group, while ordinary cases are punishable by 2 years’ imprisonment and a fine of €75,000 euro. Moreover, the reference of these provisions to Article 132-71 CC defining ‘organised group’ allows the application of Articles 706-73 ff of the Code of Criminal Procedure (CCP) concerning the procedures applicable to the inquiry, prosecution, investigation and trial of organised crime felonies,103 and this represents an important step forward in the fight against environmental organised crime.

4.  PROCEDURAL PROVISIONS, ACTORS AND INSTITUTIONS ENFORCING ENVIRONMENTAL CRIMINAL LAW

French criminal procedure is a ‘hybrid’ system which is mainly inquisitorial in nature, whilst containing accusatorial elements, in order to strike the balance between the public interest in repressing crime, the rights of the victim, and the fundamental rights of the individual.104 Judges (magistrats du siège) and prosecutors (magistrats du parquet) belong to a single judicial body, the magistrature. While the judges enjoy complete independence from the executive,105 the prosecutors are not fully independent, since they are answerable to the Minister of Justice,106 who has control over appointments and promotion of prosecutors, and may issue general instructions.107

103  In regard to organised crime felonies, it is worth noting that the French legislation does not give a comprehensive and unitary definition of ‘organised crime’, but, in Article 706-73 CCP, lists all the offences falling within the system of prosecution of organised crime. Among these offences only para 19°, which was introduced by the Law No 1029 of 15 November 2013, indirectly concerns environmental crime as it refers to the misdemeanour of unauthorised exploitation of a mine associated with environmental harm committed by an organised group when this conduct is linked to one of the offences listed in paras 1° to 17° of the same Article. However, Article 706-74 CCP rules that, where the law so provides, the procedure indicated therein is applicable to ‘felonies and misdemeanours committed by organised groups, other than those which come under Article 706-73’ and ‘to misdemeanours of participation in a criminal association under the second paragraph of Article 450-1 CC, other than those which come under 15° of Article 706-73 of the present Code’. 104  J Pradel, ‘La protection de la personne en France depuis les réformes de procédure pénale en 1993’ (1995) 1 La Revue juridique Thémis 161 ff. 105  Article 64 of the French Constitution states that ‘The President of the Republic shall be the guarantor of the independence of the Judicial Authority. He shall be assisted by the High Council of the Judiciary … Judges shall be irremovable from office’. 106  According to Article 5 of the Ordinance No 58-1270 dated 22 December 1958, ‘Prosecutors are under the direct control of their superiors and under the authority of the Minister of Justice’. 107  Article 30 CCP.

82  Floriana Bianco and Annalisa Lucifora 4.1. Courts According to the seriousness of the offence as provided for by the CC, a person charged with a criminal offence can be judged by: —— the Assize Court (Cour d’assises) which deals with felonies. This Court— presided over by three professional judges and a jury—judges the most severe crimes, carrying sentences up to life imprisonment. —— the Criminal Court (Tribunal correctionnel) which is competent for misdemeanours. Depending on the seriousness of the misdemeanours, this court is presided over by a judge sitting alone or three judges. —— the Police Court (Tribunal de police) which deals with petty offences that do not carry a sentence of imprisonment. —— the Court of Appeal (Court d’Appel) and the Assize Court of Appel (Cour d’assises d’appel), are courts of second instance. —— At the highest level, the Supreme Court (Cour de Cassation) hears appeals lodged against decisions made in the last resort. The Supreme Court does not judge the evidence, but only decides whether the lower court applied the law correctly. The French procedural system follows the principle of ‘free proof ’, since offences may be established by all means of proof—provided that they are in compliance with the rules on gathering, use and presentation of evidence at trial—and, in principle, except where the law otherwise provides,108 it is up to the discretionary judgement of the competent courts to evaluate the evidence submitted according to the their intimate conviction (intime conviction).109 In the French legal system there are no judges specifically in charge of environmental crime. The judges who deal with environmental crime also deal with other crimes. However, it is worth noting that specialised courts are competent with regard to ship-source pollution (Article L 218-29 Env Code).110 Moreover, within the Courts of Paris and Marseille there are specialised ­sections responsible for examining the most complex cases relating to public health (Pôles de santé publique de Paris et Marseille).111 In particular, pursuant to

108 

See for example, Articles 431 and 537 CCP, Article L 172-16 Env Code. See Article 427 CCP. courts are: the High Court of Le Havre for the North Channel area, the High Court of Brest for the Atlantic zone, and the High Court of Marseille for the Mediterranean area, as well as the High Court of Fort-de-France, the High Court of Saint-Denis de la Réunion and the High Court of Saint-Pierre-et-Miquelon (Articles D 47-13-1, 706-107 and 706-108 CPP). The High Court of Paris is competent to hear the most complex cases, for offences committed in the exclusive economic zone or in an area of ecological protection, and on the high seas for vessels flying the French flag. See Guihal, Droit répressif de l’environnement, n 36 above, 377; O Saumon, ‘La spécialisation en matière de pollution par les navires: le point de vue du praticien’ in A Cudennec (ed), Le droit pénal et la mer (Rennes, Presses Universitaires de Rennes, 2006) 111. 111  Decree No 2002-599 of 22 April 2002 establishing the list and jurisdiction of the specialised courts on health matters, JORF No 99 of 27 April 2002, 7619. 109 

110  These

Environmental Criminal Law in France 83 Article 706-2 CCP, these pôles are competent for the inquiry into, prosecution, investigation and, in misdemeanour cases, trial of the offences under the Env Code, in cases which are or appear to be particularly complex,112 involving health products, or food products intended for humans or animals, or products or substances to which humans are regularly exposed over a long period of time and which are regulated due to their effects or their dangerousness113 (eg asbestos, soil pollution or abandonment of hazardous waste).

4.2.  Public Prosecutor Within the prosecution service (parquet) there is a hierarchical structure, whereby the public prosecutor (procureur de la République) is answerable to the prosecutor general (procureur général). Article 31 CCP stipulates that the public prosecutor exercises the public action (action publique) and formally requests the law to be enforced, respecting the principle of impartiality to which he is bound. In the French system, the principle of prosecutorial discretion applies: the public prosecutor has a discretion whether to proceed with a case or to close it, although a decision to refuse to proceed may be appealed to the prosecutor ­general.114 Indeed, according to Article 40-1 CCP, where the prosecutor considers that the facts brought to his attention constitute an offence committed by a person whose identity and domicile are known, and for which there is no legal provision preventing the bringing of a public prosecution, he decides if it is appropriate: to initiate a prosecution; or to implement alternative proceedings to a prosecution; or to close the case without taking any further action, where the particular circumstances linked to the commission of the offence justify this. Scholars have highlighted that the principle of prosecutorial discretion, applied to environmental crime, often results in a limitation on the prosecution of environmental offences, whereby many cases are dismissed by the public prosecutor probably because of the disproportion between the considerable resources necessary for dealing with such technical and complex legislation and the low level of sanctions in the case of petty offences.115 In this regard, the Circular of 21 April 2015 issued by the Ministry of Justice and addressed to prosecutors, sets out guidelines of criminal policy concerning environmental crime (Circulaire du 21 avril 2015 relative aux orientations de politique

112  For example, in international cases, or cases involving technical aspects, or in consideration of the extent of the damage caused, as well as of the level of responsibility involved. See Circulaire du 10 juin 2015 relative aux échanges d’informations avec les pôles de santé publique, Bulletin Officiel du Ministère de la Justice No 2015-06 of 30 June 2015, 2. 113 See Circulaire du 21 avril 2015 relative aux orientations de politique pénale en matière d’atteintes à l’environnement, Bulletin Officiel du Ministère de la Justice No 2015-04 of 30 April 2015, p 9. 114  Article 40-3 CCP. 115  Van Lang, Droit de l’environnement, n 13 above, 492; see also Prieur, Droit de l’environnement, n 26 above, 1027.

84  Floriana Bianco and Annalisa Lucifora pénale en matière d’atteintes à l’environnement). According to the Circular, the principles that should guide the choice of the criminal response to environmental crime are, on the one hand, the systematic search for restoration of the environment and remedying of environmental damage, and on the other, the systematic prosecution (eg in cases of serious or irreversible damage to the environment, as well as in cases of repetitive behaviour, failure to comply with administrative requirements, obstruction of agents’ controls), or the application of alternative proceedings.116 The seriousness of the offence should be assessed taking into account also the reversibility of the damage,117 the economic gain resulting from the infringement of the environmental provisions, as well as the existence of an EU issue (eg EU litigation or infringement of an EU regulation).118 Among the alternative proceedings to a prosecution, it is worth mentioning conditional suspension (composition pénale) and mediation (mediation pénale). Conditional suspension is provided for by Article 41-2 CCP; prior to any prosecution being instituted, if the accused admits to having committed any misdemeanour or misdemeanours for which the main penalty is a fine or prison sentence not exceeding five years (as well as a petty offence), the public prosecutor may propose a conditional suspension, involving one or more measures to be complied with. Mediation (mediation pénale), set out in Article 41-1 CCP, is proposed where it appears that such a measure is likely to secure reparation for the damage suffered by the victim, or to put an end to the disturbance resulting from the offence or contribute to the rehabilitation of the offender. Although decided by the public prosecutor, mediation must be carried out by a mediator, with the necessary competence, independence and impartiality. The Circular of 21 April 2015 also makes reference to the ‘peculiar case’ of the transaction, provided for by Article L 173-12 Env Code,119 stating that the application of this measure should be limited to less serious offences, and excluded where the acts were committed in a manifestly deliberate manner, were repeated, or had caused significant damage to the environment or to the victims. Similarly, it should be excluded where victims have filed a complaint and claimed compensation for damages. 116 

Circulaire du 21 avril 2015, n 113 above, 10 ff. The concept of reversibility of the damage to the environment is clarified through the indication of three levels: irreversible damage to the environment, that is to say causing a clear and irreparable deterioration of the environment; damage which is reversible only after a long period, which varies according to the cycles of regeneration of environments and nature; damage repairable within a reasonable time; see Circulaire du 21 avril 2015, n 113 above, 11. 118  Circulaire du 21 avril 2015, n 113 above, 10–11. 119  Circulaire du 21 avril 2015, n 113 above, 12–13. The transaction was extended by Ordinance No 2012-34 of 11 January 2012 to all the offences provided for by the Env Code: this choice was strongly criticised by several scholars; see among others, Cans, ‘La réforme, tant attendue’, n 10 above, paras 33–35; Courtaigne-Deslandes, ‘De l’utilité d’une ordonnance simplifiant’, n 18 above, 55–56; M-P Maître and E Merlant, ‘Les nouvelles polices environnementales: un équilibre délicat entre le droit administratif et le droit pénal’ (2014) 3 Environnement et Développement durable, paras 35–44; E ­Monteiro, ‘Vers un droit répressif de l’écosystème?’ (2014) 39 Revue juridique de l’environnement 207–8. 117 

Environmental Criminal Law in France 85 A law dated 8 August 2016120 modified Article L 173-12 Env Code, narrowing its material scope of application.121 In its current version, Article L 173-12 Env Code states that, prior to any prosecution being instituted, the administrative authority may propose a ‘transaction’ in the case of petty offences, or misdemeanours punishable with a prison sentence not exceeding two years, which must be accepted by the offender and approved by the public prosecutor. The transaction takes into account the circumstances and the seriousness of the offence, the personality of its author and his resources and charges. The administrative authority fixes the transactional fine that the offender has to pay (whose amount cannot exceed a third of the amount of the fine provided for) and, if appropriate, certain obligations against the author, in order to stop the infraction, avoid its repetition, repair the damage or restore the site. It also fixes the deadline for payment and performance of obligations. The prosecution will be barred when the offender has executed these obligations. The appointment of one prosecutor in charge of environmental crime within the prosecution offices (parquets généraux and parquets), as a ‘privileged interlocutor’, already promoted by a circular of the Ministry of Justice of 23 May 2005, is likely to facilitate relations with administration—whose improvement is a key feature of the Circular of 21 April 2015—as well as the coordination and the assessment of criminal policy at local level.122

4.3. Police Judicial police operations (Police judiciaire) are carried on under the direction of the public prosecutor by the officers, civil servants and agents designated by the Code of Criminal Procedure (Article 12 CCP). The police and the other officers with the power to investigate, as well as any public body or civil servant in office, are required to notify the prosecutor of any crime that comes to their knowledge without delay.123 According to Article 14 CCP the judicial police are charged with the task of discovering violations of the criminal law, gathering evidence of such violations and identifying their perpetrators. Judicial police include: the judicial police officers; the judicial police agents and assistant judicial police agents; and the civil

120  Law No 2016-1087 of 8 August 2016 for the recovery of biodiversity, nature and landscapes, n 11 above. 121 Before the adoption of this law, the contradiction between the extension of the transaction to all environmental offences through Ordinance No 2012-34, and the indications given to the ­prosecutors in the Circular of 21 April 2015, was highlighted by V Jaworski, ‘Chronique de droit­ pénal de l’environnement (Septembre 2014 à Décembre 2015)’ (2016) 41 Revue juridique de l’environnement 374. 122  Circulaire du 21 avril 2015, n 113 above, 1. 123  Article 40 CCP. See Guihal, Droit répressif de l’environnement, n 36 above, 28–29.

86  Floriana Bianco and Annalisa Lucifora servants and agents to whom the law assigns certain judicial police functions (Article 15 CCP). A specialised inter-institutional unit, the National Agency for the Fight Against Environmental and Public Health Crime (Office central de lutte contre les atteintes à l’environnement et à la santé publique—OCLAESP), was created in 2004 as a service of the judicial police with a national competence, in charge of investigations of environmental crime, public health crimes and doping. The tasks of OCLAESP are to conduct and coordinate criminal investigations, to observe and analyse the most typical behaviour of offenders, to centralise information, to participate in training and information exchange, and to handle international requests for assistance relating to the areas of crime it covers.124 It is worth highlighting the added value of the multidisciplinary approach of OCLAESP, since it allows the investigators to work closely with four technical advisers, belonging to the National Agency for Hunting and Wildlife, the Sports Ministry, the Public Health Ministry and the Ministry of the Environment.125 4.3.1.  Environmental Inspectors The environmental inspectors (inspecteurs de l’environnement) are to be included among the category of civil servants and agents to whom the law assigns certain judicial police functions.126 Due to the technical nature of environmental offences, which often require in-depth knowledge and specialised competence, they play a significant role in detecting and investigating such infringements.127 Provided for by Article L 172-1 Env Code, introduced by Ordinance No 2012-34, the environmental inspectors are a unified category of specialised agents, entitled to investigate (rechercher) and detect (constater) infringements of environmental provisions. This category includes technicians, engineers and other civil servants and agents,128 belonging to the state services and other public bodies.129 Together with environmental inspectors, other officials specifically authorised by the Env Code are granted powers of the judicial police, and are therefore entitled to investigate and detect environmental offences (eg agents of nature reserves, coast-guards, rangers, agents of the national forests and customs officers, for which specific authorisations are maintained).130 124  See J Diacono, ‘Les réponses institutionnelles—le rôle de OCLAESP dans la lutte contre la criminalité environnementale’ (2016) 6 Défis 24; Guihal, Droit répressif de l’environnement, n 36 above, 19–20. 125  Diacono, ‘Les réponses institutionnelles’, n 124 above, 24. 126  Circulaire du 21 avril 2015, n 113 above, 15. 127  Jaworski, ‘Le volet pénal’, n 10 above, 225–226. 128 D Bergot, ‘L’inspection de l’environnement en pratique’ (2014) 39 Revue juridique de l’environnement 172–74. 129  The National Agency for Hunting and Wildlife, the National Office for Water and Aquatic Environments, the national parks, and the Marine Protected Areas Agency. See Cans, ‘La réforme, tant attendue’, n 10 above, para 17; Jaworski, ‘Le volet pénal’, n 10 above, 227. 130  Jaworski, ‘Le volet pénal’, n 10 above, 227.

Environmental Criminal Law in France 87 A common set of rules on investigation and detection of environmental offences is set forth in Articles L 172-4 to L 172-17 Env Code. These provisions establish the conditions for access to buildings (Article L 172-5), checking the identity of persons (Article L 172-7), collecting statements made by any person likely to furnish useful information (Article L 172-8), exchanging information (Article L 172-9), gathering evidence, collecting documents, seizing, sampling and analysis (Articles L 172-11 to L 172-14), among other things. According to Article L 172-16 Env Code, infringements of the provisions of the Env Code and its implementing texts are recorded in official reports (procèsverbaux) which shall be considered as prima facie authentic evidence, unless rebutted (font foi jusqu’à preuve contraire). The official reports must be sent to the prosecutor within five days after the report was filed. A copy of the official reports must be sent, within the same timeframe, to the competent administrative authority.131

4.4. NGOs French environmental law confers prerogatives on a number of NGOs active in the field of environmental protection. According to Article 142-2 Env Code, the officially approved associations for the protection of the environment (associations agréées de protection de l’environnement)—whose status, accreditation procedure, and rights are set forth in the Env Code (Articles 141-1 ff Env Code)—may exercise the rights recognised as those of a civil party with regard to acts which directly or indirectly damage the collective interests that they defend.132 This right is also granted, under the same conditions, to the associations which have been lawfully declared for at least five years at the date of the acts, and which by their charter propose the safeguarding of interests connected to water or classified facilities,133 with regards to the acts constituting an infringement of the related provisions.134 In addition to this right, Article L 142-3 Env Code grants any officially approved association the prerogative (in the same domains mentioned in Article 142-2 Env Code) to seek redress before any tribunal on behalf of persons who have suffered individual damage caused by the act of a single person and having a common 131 

Maître and Merlant, ‘Les nouvelles polices environnementales’, n 119 above, para 23. These acts should constitute an infringement of the legislative provisions relating to: the protection of nature and the environment, the improvement of the living environment, the protection of water, air, soils, sites and landscapes, urban planning, sea fishing, or those whose purpose is to fight against pollution and nuisance, nuclear safety and protection from radiation, business practices and misleading advertisements or advertisements which are likely to be deceptive, when these practices and advertisements include environmental information and the texts adopted to implement them. 133  Article 142-2 Env Code. These interests are listed, respectively, in Article L 211-1 and L 511-1 Env Code. 134 Guihal, Droit répressif de l’environnement, n 36 above, 70–71. 132 

88  Floriana Bianco and Annalisa Lucifora origin, if the association has been appointed by at least two of the persons concerned (action en réparation conjointe).135

5. SANCTIONS

Before Ordinance No 2012-34, the system of sanctions provided for environmental crimes was weak, with relatively low penalties in many cases. The level of sanctions did not have a dissuasive effect; moreover, sanctions for environmental crime were not proportionate compared to sanctions for other categories of crime. In practice, judges often resorted to convicting perpetrators of offences against property or offences against persons, in order to have a more adequate criminal sanction. The penalties also influenced the available investigation tools, as some special investigative techniques were only allowed in cases which could result in penalties higher than those provided for environmental crimes. As already pointed out, the Ordinance tries to remedy this situation, both harmonising upward common punitive provisions and increasing the level of penalties available for specific environmental offences. Wishing to pursue to this aim, the Ordinance reveals a clear intention to set out a hierarchy of penalties based on what may be considered more or less ‘serious’.136 However, some authors note that the effectiveness of deterrence is, indeed, due more to the certainty and speed of punishment than a high level of penalties; therefore, increasing the level of penalties would only apparently meet the requirements of the Directive without guaranteeing better protection of the e­ nvironment.137 Some criticism also concerns the new system of aggravation of penalties leading to 3 years’ imprisonment and a fine of €150,000 when conduct laid down in Articles L 173-1 and L 173-2-I has caused environmental damage, with serious attack on health or safety of persons or substantial damage to fauna and flora or to the ­quality of air, soil and water (Article L 173-3, para 2°). It is certainly a very high penalty, which raises doubts considering that maximum penalties were very rarely applied before the Ordinance No 2012-34.138 For instance, the Criminal Chamber of the Court of Cassation has recently confirmed a judgment of the Court of Appeal which had sentenced an accused for works in contravention of a formal notice, with a fine of €3,000, including €1,500 with deferment.139 In this case, the penalties imposed are quite far from the 2 years’ imprisonment and a fine of €150,000 provided at the time for such an offence.140

135 Prieur, Droit

de l’environnement, n 26 above, 1032. Cans, La réforme, tant attendue’, n 10 above, 4. 137  Courtaigne-Deslandes, ‘De l’utilité d’une ordonnance simplifiant’, n 18 above, 53. 138  Maître and Merlant, ‘Les nouvelles polices environnementales’, n 119 above, 4. 139  Cass crim, 15 October 2013, No 12-85.786: JurisData No 2013-022767. 140  Former Article L 216-10 Env Code (operation of a work or installation without complying with the order of formal notice). 136 

Environmental Criminal Law in France 89 Moreover, the fact that Ordinance No 2012-34 extends the ‘transaction’ procedure to all the felonies and misdemeanours of the fifth class laid down in the Env Code (Article L 173-12 Env Code)141 does not comply with EU obligations, since a transaction has not the dissuasive effect required by the Directive for sanctions against environmental crimes. Indeed, the extension of ‘transaction’ is a bad signal to send offenders, who thus escape any sanction in cases of recidivism as well as any additional penalty, without the moralising effect usually attached to a criminal sanction.142 For this reason, Law No 2016-1087 of 8 August 2016 has excluded from the scope of transaction environmental offences punishable by more than 2 years’ imprisonment. The same law has increased the penalties provided for offences against protected species and their habitats to 2 years’ imprisonment and a fine of €150,000, trying to remove inconsistencies persisting after Ordinance No 2012-34 between penalties applicable for pollution (€75,000) and those related to the destruction of protected species (€15,000). Given the close relationship between criminal and administrative law in the fight against environmental offences, it seems now timely to give a brief overview of administrative sanctions. For this reason, it is necessary to start by saying that the two systems of policing—administrative and judicial—into which the French environmental law is organised pursue two different aims: while the first is a ­preventive police enabling actions upstream, the judicial police aim toward the detection of offences in order to punish them.143 Each of these police systems has its own sanctions: ‘administrative sanctions which compel while providing solutions, and criminal sanctions, which solemnly recall the social values connected to the protection of the environment’.144

5.1.  Administrative Sanctions In France administrative sanctions are frequently used in the field of ­environmental protection, with a recent legislative activism which has led to the multiplication

141  Article L 173-12 Env Code rules that, with the exception of offences punishable by more than 2 years’ imprisonment, before public prosecution has been exercised, the administrative authority can propose a ‘transaction’, which must be accepted by the author of infraction and approved by the district prosecutor. The transaction takes into account the circumstances and the seriousness of infraction, the personality of its author and his resources and charges. The administrative authority fixes the transactional fine that the author will have to pay (whose amount cannot exceed one third of the amount of the fine provided for) and, if it is appropriate, certain obligations against the author, in order to stop the infraction, avoid its renewal, repair the damage or restore the site. It also fixes the deadline for payment and execution of obligations. The public prosecution will be barred when the author of the infraction has accomplished these obligations. 142  Cans, ‘La réforme, tant attendue’, n 10 above, 6. 143  Maître and Merlant, ‘Les nouvelles polices environnementales’, n 119 above, 1. 144  C Lepage, Extrait de la préface de l’ouvrage ‘Droit répressif de l’environnement’ de Guihal, n 36 above.

90  Floriana Bianco and Annalisa Lucifora of administrative sanctions concerning the protection of the environment and health.145 Ordinance No 2012-34 marks a relevant development for the environmental administrative offences system, extending the range of administrative measures available to the supervisory authorities in order to obtain compliance with environmental regulations.146 Indeed, the reform mainly concerns the traditional mechanisms that already existed and that had proved their effectiveness, like the formal notice, which has been for a long time the basis for administrative sanctions in the field of environmental law. As with the previous regime, the imposition of any administrative sanction must be always preceded by a formal notice issued by the competent administrative authority; the formal notice is applied either in order to obtain the regularisation of the situation (lack of authorisation, registration, approval, homologation, certification or declaration) or to obtain the observance of ­requirements of the Env Code within a certain deadline (Articles L 171-7 and L 171-8 Env Code). In the case of non-compliance with the formal notice within such a deadline, the administrative authority may resort to the following measures: the enforcement ex officio of the required measures, the suspension of the operation of the facility, the closure or suppression of the facility, and rehabilitation (only in case of non-compliance with the formal notice of regularisation of the administrative situation).147 Beyond these traditional administrative sanctions, the Ordinance of 2012 extends the administrative fine to all the areas covered by the Env Code; indeed, according to Article L 171-8, para 4° Env Code, if the formal notice has been not complied with, the administrative authority may order the payment of a pecuniary penalty of up to €15,000. The amount of the administrative fine will be defined on a ‘case-by-case’ basis, depending on the situation of the operator and the circumstances which led him to not comply with relevant provisions. The Circular of 19 July 2013 has stated that the administrative fine must comply with the following fundamental principles: the principle of non-retrospective application of more severe punitive provisions and retrospective application of those ‘more favourable’ to the accused, the principle of p ­ roportionality of

145 L Fonbaustier, ‘(L’efficacité de) la police administrative en matière environnementale’ in O Boskovic (ed), L’efficacitè du droit de l’environnement. Mise en oeuvre et sanctions (Paris, Dalloz, 2010) 115. 146  Administrative measures and sanctions are dealt with by the Second Section (Articles L 171-6 to L 171-12 Env Code) of the First Chapter of the new Title VII, which aims to harmonise the conditions for administrative controls regarding site visits, seizures, taking of evidence and declarations, and police requisitions; while the First Section sets out the conditions for access to facilities, operations, objects, devices and activities concerned (Articles L 171-1 to L 171-5-1 Env Code). 147  In accordance with administrative case-law, such administrative penalties may be applied at the same time (Cour d’assises d’appel Nantes, 10 October 1990, No 89NT00984, Goupil et Brumet-Beaumel c/ Ministre chargé de l’environnement: JurisData No 1990-649431).

Environmental Criminal Law in France 91 ­ unishment and the principle of personalisation of penalties. Moreover, it is p worth noting that the fine is the only administrative sanction with a pecuniary nature.148 In fact, the other administrative sanction whose scope has been enlarged by the Ordinance, namely the ‘astreinte’, is not a pecuniary sanction but a coercive measure; for this reason, the Code states that the administrative authority may order the payment of a daily pecuniary penalty of up to €1,500, applicable from the notification of the decision imposing the daily fine and until compliance with the formal notice (L 171-8, para 4° Env Code). All the above-mentioned measures seem to recognise a central role of the administrative police with regard to attacks on the environment, regardless of the areas involved.

6. CONCLUSIONS

When the Law ‘Grenelle II’ empowered the Government to amend environmental matters by an Ordinance, its Article 256 raised particular interest since it allowed a glimpse of possible reform of the environmental criminal law; reform that had been expected for more than 30 years. Except for some criticism with regard to compliance with the principle of legality of criminal offences, the choice to proceed to harmonisation, reform and simplification of the punitive provisions in the Env Code was, as a whole, welcomed, as these provisions had been not able to guarantee the effectiveness of environmental protection.149 For different reasons related to, inter alia, the codification of established law (codification à droit constant), environmental law had become extremely complex and unintelligible over the years; beyond this, the lack of consistency made compliance with Directive 2008/99/EC difficult. The obligation to transpose the Directive provided a good opportunity to revise the shortcomings of the French system, requiring the integration into the environmental criminal law of elements previously neglected, such as the gradation of severity of penalties according to the seriousness of the fault or the damage, and the criminalisation of attempt of material offences.150 However, Directive 2008/99/EC has not been fully transposed by the French legislature. Indeed, the Ordinance of 2012 has harmonised the system of administrative controls as well as the regime for the detection of infringements, and created a common core of punitive provisions applicable to all areas of the environment, regardless of whether they are covered by the Env Code or not. This has contributed to improving the structure of environmental law and to the elaboration of general principles, reducing partly the complexity which affected the Code. 148 

Maître and Merlant, ‘Les nouvelles polices environnementales’, n 119 above, 7. Monteiro, ‘L’ordonnance du 11 janvier 2012’, n 85 above, 1. 150  Courtaigne-Deslandes, ‘De l’utilité d’une ordonnance simplifiant’, n 18 above, 52. 149 

92  Floriana Bianco and Annalisa Lucifora ­ oreover, the Ordinance shows a real wish to take into account the latest decisions M of the Conseil d’Etat on administrative sanctions and criminal transaction,151 as well as of the Constitutional Council concerning the principle of legality of criminal offences.152 However, if the Ordinance achieves the harmonisation and strengthening of punishment, it is not an in-depth reformation, and this first step towards a new criminal environmental law shows that many gaps remain to be filled.153 One of the shortcomings consists in the lack of coordination between sanctions of different kinds (civil, criminal and administrative), which may undermine the effectiveness of criminal law.154 Also notable is the lack of a felony of organised activities for illegal trafficking in the environmental field, with proportionally aggravated penalties enabling authorities to have broader investigative powers. According to the literature, other gaps remain to be filled, such as, for example, an aggravation of penalties in cases of recidivism, the problematic nature of formal offences, and the creation of offences directly punishing environmental damage.155 Moreover, as regards the criminalisation of the risk required by the Directive, the Ministry of Justice had succeeded in convincing the European Commission that the French system in force at that time already met the EU requirements, since it punished the infringement of administrative regulations which aimed to prevent damage.156 But that is a minimal interpretation of the Directive, which requires Member States to criminalise also conduct which is likely to cause death or serious injury to any person or substantial damage to the quality of air, soil, water, animals or plants.157 Thus risk had been considered by the Ministry in an abstract manner, being assumed from the violation of disciplinary measures, while the Directive seems to require a concrete risk, basing the sentence on the evidence of a significant likelihood of harm.158 The absence of a general offence of ‘mise en danger’ of the environment is even more regrettable considering that the ‘Rapport Lepage’ had expressly proposed the introduction (in the Second Book of the CC) of the general offence of ‘délinquance écologique’, which fully complied with EU requirements. Moreover, the extension of ‘transaction’ to all felonies and misdemeanours of the fifth class set out by the Env Code did not comply with the Directive, which has a bias towards criminal penalties, which demonstrate a social disapproval of a qualitatively different nature compared to administrative penalties or the compensation mechanism under civil law.159

151 

Conseil d’Etat, 7 July 2006, No 283178, France Nature Environnement. Conseil Constitutionel, 4 May 2012, decision No 2012-240, JORF of 5 May 2012, 8015. See Jaworski, ‘Le volet pénal’, n 10 above, 221. 154  Cans, ‘La réforme, tant attendue’, n 10 above, 7. 155  See Jaworski, ‘Le volet pénal’, n 10 above, 235. 156  See n 75 above. 157  Monteiro, ‘L’ordonnance du 11 janvier 2012’, n 85 above, 5. 158  Courtaigne-Deslandes, ‘De l’utilité d’une ordonnance simplifiant’, n 18 above, 51. 159  Recital (3) of the Directive. 152  153 

Environmental Criminal Law in France 93 Finally, it is not certain that harmonisation in the hierarchy of penalties goes at the same speed as simplification; indeed, the process of classifying offences and then referring to other articles of the Code for the definition of their constitutive elements and the determination of penalties does not entail a simplification.160 Then, in order to be real, harmonisation and simplification require an effective enforcement of environmental criminal law. Given the highly technical nature of environmental matters and the complexity of the legislative framework, this calls for the introduction of specific training for judges and prosecutors as well as of dedicated judges. Thus specialisation is considered to be a key element to improve the efficiency of the fight against environmental crime; indeed, the lack of expertise and resources as well as the lack of awareness concerning the importance of environmental crimes is considered the main reason for the shortcomings concerning the enforcement of environmental criminal law. Therefore, it is up to the legislature—and not to the Government through an ordinance—to intervene in order to give more effectiveness to environmental criminal law, in full compliance with EU requirements.

160 

Jaworski, ‘Le volet pénal’, n 10 above, 233.

94 

5 Environmental Criminal Law in Germany STEPHAN SINA*

1. INTRODUCTION

I

N THEIR SECOND Period Report on Security, published in 2006, the Ministries of the Interior and of Justice stressed that the German government continues to consider criminal law as an important instrument to combat environmental offences, and welcomes the development of international criminal instruments to protect the environment.1 This statement is, to some extent, quite representative of the state of the art of environmental criminal law in Germany. On the one hand, Germany has a sophisticated set of rules on environmental crimes, which were developed primarily in the 1980s and 1990s.2 However, over the last decade there has seemingly been a decline in attention paid to environmental criminal law by the public authorities and researchers alike, as demonstrated by a substantially lower number of recorded environmental crimes, a lack of prominent environmental crime cases brought to trial, and a reduced number of scientific publications on the subject.3 On the other hand, environmental criminal law has been receiving more attention in Germany in connection with Directive 2008/99/EC on the protection of the environment through criminal law4 (Environmental Crime Directive, ECD),5 which was transposed into German law by the Law of 6 December 2011 (45. Strafrechtsänderungsgesetz).6

*  This chapter is based on S Sina, Fighting Environmental Crime in Germany: A Country Report. Study in the framework of the EFFACE research project (Berlin, Ecologic Institute, 2015), available at www.efface.eu. I would like to thank Ms Geraldine Westman, Anna Wiggeringloh and Patricia van de Wetering for their valuable support in re-structuring and updating the country report for this chapter. 1  Bundesministerium des Innern and Bundesministerium für Justiz, Zweiter Periodischer Sicherheitsbericht (Berlin, 2006) 279–80. 2 F Saliger, Umweltstrafrecht (München, Vahlen, 2012) paras 18–21; M Kloepfer and M Heger, Umweltstrafrecht, 3rd edn (München, CH Beck, 2014) paras 9–13. 3 Saliger, Umweltstrafrecht, n 2 above, introduction. 4 Saliger, Umweltstrafrecht, n 2 above, introduction and paras 22–23. 5  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, [2008] OJ L328/28. 6  Bundesgesetzblatt (BGBl) 2011 I, 2557.

96  Stephan Sina A total of 31,007 cases of environmental crime were recorded in 2015.7 Environmental crimes accounted for only 0.49 per cent of the total number of reported crimes. In the Uniform Police Statistics, the category of environmental crime includes offences against the environment set out in the Criminal Code (Strafgesetzbuch, StGB), but also offences contained in environmental, food- and medicine-related legislation. Considering only offences against the environment, 12,485 cases were recorded in 2015, a decrease of 7.9 per cent from 2014, with a clearance rate of 59.74 per cent. Among the offences against the environment, the unlawful treatment of dangerous waste accounted for the largest share, followed by water pollution and soil pollution. It is widely assumed that a considerable number of cases go unreported, which are therefore not reflected in official statistics.8 The number of reported crimes against the environment increased from the beginning of its statistical coverage, reaching its peak in 1998.9 From 1999 until 2013, absolute as well as relative numbers have been decreasing constantly, as shown in the figure below. 50,000

Environmental Crime

Number of Offences

40,000 Offences against the Environment 30,000 Offences contained in food and medical related legislation

20,000

10,000 Offences against other laws relevant for the environmental sector 2015

2014

2013

2012

2011

2010

2009

2008

2007

2006

2005

2004

2003

2002

2001

0

Figure 1:  Development of environmental crime numbers Source: Compilation by Ecologic Institute 2016, based on the diagram of the Bundeskriminalamt, Polizeiliche Kriminalstatistik Bundesrepublik Deutschland. Jahrbuch 2015 (Wiesbaden, BKA, 2015) (Uniform Police Statistics in Germany, Yearbook 2015) 361, and the figures in Bundesministerium des Innern, Polizeiliche Kriminalstatistik. Jahre 2001–2015 (Berlin, 2002–2016) (Uniform Police Statistics in Germany, reporting years 2001–2015). 7  For this and the subsequent data see Bundesministerium des Innern, Polizeiliche Kriminalstatistik 2015 (Berlin, 2016) (Uniform Police Statistics in Germany, reporting year 2015). 8  Deutscher Anwaltverein, Stellungnahme Nr 71/2010 zum Referentenentwurf eines Strafrechtsänderungsgesetzes (vom 13.10.2010) zur Umsetzung der Richtlinie des Europäischen Parlaments und des Rates über den strafrechtlichen Schutz der Umwelt vom 19.11.2008 (Berlin, 2010) 4; See also the references given by A Ransiek, ‘Vor §§ 324 ff.’ in U Kindhäuser, U Neumann and HU Paeffgen (eds), Nomos Kommentar Strafgesetzbuch (NK-StGB), vol 3, 4th edn (Baden-Baden, Nomos, 2013) para 34; Kloepfer and Heger, Umweltstrafrecht, n 2 above, para 429. 9  Bundesministerium des Innern and Bundesministerium für Justiz, Sicherheitsbericht, n 1 above, 264.

Environmental Criminal Law in Germany 97 There was an increase in 2014, in particular regarding the illegal cross-border shipment of waste, where the reported cases increased by 37.8 per cent from 2013 to 2014.10 However, in 2015 the number of reported cases decreased again. This overall constant decline since 1999 may be interpreted either as a success of the environmental criminal system, or as an indicator of its failure to diligently identify and report crimes which fall under this category.11 Among researchers, at least, there is widespread consensus that these numbers can be best explained as the result of an environmental crime enforcement deficit (see section 4 below).12

2.  DEFINITION OF ENVIRONMENTAL CRIME AND SUBSTANTIVE CRIMINAL LAW PRINCIPLES

2.1.  Definition of Environmental Crime The bulk of German environmental criminal law is incorporated into chapter 29 (sections 324–330d) of the Criminal Code as ‘offences against the environment’. The Criminal Code does not, however, provide a definition of ‘environmental offences’ or ‘environmental crimes’; nor does any other law. According to the legal literature, the offences against the environment in chapter 29 StGB constitute environmental criminal law in a narrow sense, whereas environmental criminal law in a wider sense is defined as including all legal provisions that impose a criminal sanction, such as a prison sentence, for acts against the environment.13 It is distinct from administrative penal law (Ordnungswidrigkeitenrecht), which merely imposes a fine for such conduct. Establishing environmental criminal law within the Criminal Code as ‘primary criminal law’ (Haupt- or Kernstrafrecht) demonstrates that environmental offences are not considered to be minor offences, but rather they are treated as serious criminal wrongdoing.14 Additionally, some environmental ‘offences causing a common danger’ are part of chapter 28 StGB (eg, nuclear- and radiation-related offences in sections 311 and 312). Finally, the remaining environmental offences were established by specific environmental laws, eg those in sections 71 and 71a of the Federal Nature Conservation Act (Bundesnaturschutzgesetz, BNatSchG). In these laws the criminal provisions function as supplements to environmental administrative law (‘secondary criminal law’, Nebenstrafrecht).

10  This was confirmed to the author in an interview with the Bundeskriminalamt (BKA) of 6 June 2014. 11  Ransiek, ‘Vor §§ 324 ff.’, n 8 above, para 34; B Hecker, G Heine, A Windolph et al, Abfallwirtschaftskriminalität im Zusammenhang mit der Osterweiterung. Eine exploratorische und rechtsdogmatische Studie (Cologne, Luchterhand, 2008) 55–63; both provide further references. 12  Bundesministerium des Innern and Bundesministerium für Justiz, Sicherheitsbericht, n 1 above, 278; Ransiek, ‘Vor §§ 324 ff.’, n 8 above, para 27; Saliger, Umweltstrafrecht, n 2 above, paras 60–61, all with further references; Kloepfer and Heger, Umweltstrafrecht, n 2 above, para 452. 13 Saliger, Umweltstrafrecht, n 2 above, para 9. 14  See, eg Saliger, Umweltstrafrecht, n 2 above, para 20, with further references.

98  Stephan Sina 2.2.  Substantive Criminal Law Principles German environmental criminal law is based on a set of substantive criminal law principles which constitute the general part of the Criminal Code and apply to all areas of criminal law. Some of these criminal law principles derive from fundamental principles of the German ‘constitution’, the Basic Law (Grundgesetz, GG). This subsection presents the principles that are most relevant to the transposition of the ECD into German criminal law. According to the principle of legality (Gesetzlichkeitsprinzip, nullum crimen, nulla poena sine lege), laid down in Article 103 paragraph 2 GG and section 1 StGB, an act can only be punished if a law provided for such punishment before the act was committed. This limits the scope of criminal law in a number of ways, for example by requiring that rules of criminal law shall be formulated with a sufficient degree of certainty (lex certa requirement, Bestimmheitsgebot).15 The principle of necessity of criminal law (Strafbedürftigkeit) requires that a type of conduct may only be made a crime if penalising that conduct is the only means by which to protect society against that conduct in an adequate way.16 Criminal law is thus the legislative means of last resort (ultima ratio) when limiting the general right to freedom protected by Article 2 paragraph 1 GG.17 In German criminal law, the accused can only be punished if he or she has committed a crime. Establishing this requires the fulfilment of three criteria. First, the accused’s behaviour must be among the acts that are listed under the specific offences of the Criminal Code or in some other statute (Tatbestandsmäßigkeit). This also requires that the relevant effect, eg the damage to a body of water, can be attributed to a particular act (Zurechnung). Second, the act or state of affairs in question must be unlawful (Rechtswidrigkeit). This requirement is not met if the accused is able to establish legally accepted grounds of justification (Rechtfertigungsgründe). Among potential justifications, the most important for environmental criminal law is the assertion that the action was permitted or authorised by an appropriate administrative authority (behördliche Genehmigung).18 Third, the accused’s behaviour must be culpable, meaning that it must be possible to hold him or her personally responsible for having fulfilled the elements of the crime (Schuld). This is not the case if the accused lacked the mental capacity to be held accountable for his or her actions (Schuldfähigkeit), or if any legal grounds for exemption (Entschuldigungsgründe) are applicable. The principle of personal

15  See generally HH Jescheck and T Weigend, Lehrbuch des Strafrechts. Allgemeiner Teil, 5th edn (Berlin, Duncker & Humblot, 1996) 137. 16  Jescheck and Weigend, Lehrbuch des Strafrechts, n 15 above, 50. 17  See especially the judgment of the Federal Constitutional Court (Bundesverfassungsgericht) in BVerfGE 39, 1, 47. 18  See, eg Saliger, Umweltstrafrecht, n 2 above, para 69.

Environmental Criminal Law in Germany 99 culpability also means that only natural persons—and not merely legal ones—are liable under criminal law (‘societas delinquere non potest’).19 Further substantive criminal law principles include mens rea rules, according to which most actions only lead to criminal liability if the perpetrator acted intentionally (section 15 StGB). If expressly provided for by law, simple negligence may also lead to criminal liability (section 15 StGB). In this case, the basis for criminal liability is an unlawful lack of due care. Moreover, in sections 25 to 31 StGB, the German Criminal Code sets out the rules on how to distinguish between perpetrators and non-perpetrating participants to a crime, and thus covers inciting and aiding. Finally, according to section 23 paragraph 1 StGB, the attempt of a felony, ie acts punishable by a term of imprisonment of at least one year, is always punishable whereas the attempt of a misdemeanour is only punishable if expressly provided by law.

3.  ENVIRONMENTAL CRIMINAL LAW AND TRANSPOSITION OF THE ENVIRONMENTAL CRIME DIRECTIVE

3.1.  Substantive Environmental Criminal Law As stated before, substantive environmental criminal law is either incorporated in the Criminal Code as ‘primary criminal law’ or enacted in specific environmental laws as ‘secondary criminal law’. Primary criminal law includes the following provisions: —— —— —— —— —— —— —— —— —— —— —— —— —— —— —— 19 

section 324 StGB—Water pollution section 324a StGB—Soil pollution section 325 StGB—Air pollution section 325a StGB—Causing noise, vibrations and non-ionising radiation section 326 StGB—Unauthorised handling of waste section 327 StGB—Unlawful operation of facilities section 328 StGB—Unlawful handling of radioactive substances, dangerous substances and goods section 329 StGB—Endangering protected areas section 330 StGB—Aggravated cases of environmental offences section 330a StGB—Causing a severe danger by releasing poison section 330b StGB—Preventing completion of the offence section 330c StGB—Deprivation order section 330d StGB—Definitions section 311 StGB—Releasing ionising radiation section 312 StGB—Construction of a defective nuclear facility See, eg Saliger, Umweltstrafrecht, n 2 above, para 157.

100  Stephan Sina Moreover, various criminal offences are spread between different environmental laws, where they function as annexes to environmental administrative law. The following examples of such secondary criminal law are particularly relevant to the transposition of the ECD: —— sections 71, 71a BNatSchG—penal provisions for offences against strictly protected and protected species; —— sections 38, 38a Federal Hunting Act (Bundesjagdgesetz, BJagdG)— penal ­provisions for the unauthorised killing and hunting of certain wild animals, and the possession of and trade in protected and strictly ­protected wild animals as defined by the Federal Game Conservation Act (Bundeswildschutzverordnung).

3.2.  Distinctive Features of German Environmental Criminal Law German environmental criminal law has some distinctive features: it is heavily dependent on administrative law; most provisions are designed as endangerment crimes; as a rule, negligent behaviour is punishable, while the attempt to commit a crime is often punishable.20 The principle of the dependency of environmental criminal law on environmental administrative law (Verwaltungsakzessorietät) is the core element of German environmental criminal law. According to this principle, behaviour cannot be criminalised if it complies with administrative law, eg with a permit issued by the relevant administrative authority. Conversely, disobedience to administrative law may lead to criminal sanctions. For example, in several provisions (sections 324a, 325, 325a StGB), the relevant action will constitute a criminal act only if it is undertaken ‘in violation of duties under administrative law’. Thus, instead of determining the requirements of criminal liability autonomously, German criminal environmental law relies on non-criminal provisions and decisions.21 The dependency on environmental administrative law also includes EU environmental law, either directly, as in the case of EU regulations with direct effect in German law, or indirectly, as with EU directives transposed into German environmental law.22 It is no surprise that the principle of the dependency of environmental criminal law on environmental administrative law has been criticised by academics and practitioners as ‘self-disempowerment’ by the legislature in matters of environmental crime.23 However, it would be contradictory if, for example, an operator had a permit but would not be able to avoid criminal liability for conduct covered

20 

See especially Saliger, Umweltstrafrecht, n 2 above, paras 50–59. 2 above, para 67. 22  See especially Kloepfer and Heger, Umweltstrafrecht, n 2 above, para 88. 23  See, eg the references in Saliger, Umweltstrafrecht, n 2 above, para 133. 21 Saliger, Umweltstrafrecht, n

Environmental Criminal Law in Germany 101 by the permit; therefore, there is no convincing alternative to making criminal sanctions dependent, in principle, on whether or not the act in question is in conformity with an authorisation under administrative law.24 Another typical feature of German environmental criminal law is the frequent use of endangerment crimes (Gefährdungsdelikte). There are mainly two reasons why the legislature did not always make criminal liability dependent on the outcome of an action (Erfolgsdelikt), eg the pollution of a body of water as in section 324 StGB.25 First, in order to contribute to effective protection of the environment, criminal law cannot wait until serious damage occurs, for example from particularly dangerous facilities in section 327 StGB. Secondly, due to the complexity of environmental criminal law, it is often difficult to establish sufficient evidence to be able to attribute particular damage, once it has occurred, to individual persons or acts. Depending on the level of endangerment, endangerment crimes can be concrete (konkretes Gefährdungsdelikt) as in section 330a StGB or abstract (abstraktes Gefährdungsdelikt) as in sections 326 and 327 StGB. Some crimes fall between these categories, for instance a crime that combines the violation of a certain legal interest (eg air quality) with the resulting endangerment of another protected legal interest (eg human health) as in section 325 paragraph 1 StGB.26 In contrast to other fields of German criminal law, criminal liability in environmental criminal law regularly includes negligent behaviour. For example, the penalty range in section 329 StGB depends on whether the offender endangers protected areas intentionally, negligently or with serious negligence (Leichtfertigkeit). Moreover, for numerous environmental crimes, the attempt to commit it is also punishable, for example in section 324 paragraph 2 and section 326 paragraph 4 StGB. In criminalising a wide range of environmentally harmful behaviour, German environmental criminal law is a typical example of a modern legal system based on prevention and risk assessment.27

3.3. Transposition of the Environmental Crime Directive into German Criminal Law Directive 2008/99/EC on the protection of the environment through criminal law (ECD) was transposed both into the StGB and secondary criminal law by the Law of 6 December 2011 (45. Strafänderungsgesetz).28 24  Kloepfer and Heger, Umweltstrafrecht, n 2 above, para 76; F Saliger, ‘Grundfragen des heutigen Umweltstrafrechts’ in M Kloepfer and M Heger (eds), Das Umweltstrafrecht nach dem 45. Strafrechtsänderungsgesetz (Berlin, Duncker & Humblot, 2015) 9, 16–19; Saliger, Umweltstrafrecht, n 2 above, para 134 with further references. 25  See especially Saliger, Umweltstrafrecht, n 2 above, paras 52–53. 26 Saliger, Umweltstrafrecht, n 2 above, paras 54–55. 27 Saliger, Umweltstrafrecht, n 2 above, para 59. 28  Bundesgesetzblatt (BGBl) 2011 I, 2557.

102  Stephan Sina According to the Government’s explanatory notes to the 2011 bill, German environmental criminal law already conformed by and large to this Directive and needed to be amended only in some parts.29 Although the German Association of Judges (Deutscher Richterbund) had issued a statement asking for a fundamental reform of German environmental criminal law,30 the law was passed without any debate in the lower house of the German Parliament (Bundestag).31 First, section 330d paragraph 2 StGB was introduced in order to comply with Article 2(a)(iii) ECD, stating that ‘unlawful’ also means infringing a law, an administrative regulation of a Member State, or a decision taken by a competent authority of a Member State that gives effect to Community legislation referred to in Article 2(a)(i) or (ii) ECD.32 According to the bill, this amendment was not strictly necessary, since the same result could have been obtained by interpreting the existing provisions of German environmental criminal law in accordance with the ECD, so as to include EU law and the law of other Member States.33 Based on this view, the new section 330d paragraph 2 StGB merely clarifies explicitly that for certain criminal offences (contained in sections 311, 324a, 325 to 328) committed in another EU Member State, duties under administrative law, procedures, interdictions, prohibitions, licensed facilities, permits, and planning approvals include those duties, procedures etc based on a law, an administrative regulation of a Member State, or on a decision taken by a competent authority of a Member State, if they give effect to Community legislation according to the ECD. Section 330d paragraph 2 StGB allows for environmental crimes, as defined by the ECD, that were committed in another Member State to be prosecuted in Germany if the other requirements of the Criminal Code concerning its applicability to crimes committed abroad are met (sections 5–9 StGB). In particular, this concerns environmental crimes committed by German citizens in another Member State. Secondly, various smaller amendments of the Criminal Code, the Federal Nature Conservation Act, and the Federal Hunting Act were introduced to

29 Deutscher Bundestag, Drucksache 17/5391. Entwurf eines Strafrechtsänderungsgesetzes zur Umsetzung der Richtlinie des Europäischen Parlament und des Rates über den strafrechtlichen Schutz der Umwelt (Berlin, 6 April 2011) 10. 30  Deutscher Richterbund, Stellungnahme Nr 48/10 zum Referentenentwurf eines Strafrechtsänderungsgesetzes zur Umsetzung der Richtlinie des Europäischen Parlaments und des Rates über den strafrechtlichen Schutz der Umwelt vom 19.11.2008 (Berlin, November 2010) 1. 31 Ransiek, ‘Vor §§ 324 ff.’, n 8 above, para 61; H Schall, ‘Das 45. StÄG: Echte Gesetzesreform oder auftragsgemäße Erledigung?’ in MA Zöller, H Hilger, W Küper and C Roxin (eds), Gesamte Strafrechtswissenschaft in internationaler Dimension. Festschrift für Jürgen Wolter zum 70. Geburtstag am 7. September 2013 (Berlin, Duncker & Humblot, 2013) 643, 644; see also Saliger, ‘Grundfragen des heutigen Umweltstrafrechts’, n 24 above, 11–12. 32  Deutscher Bundestag, Drucksache 17/5391, n 29 above, 20–21. 33 Deutscher Bundestag, Drucksache 17/5391, n 29 above, 11; see also K Meyer, ‘Führt § 330d Abs. 2 StGB zur endgültigen Europarechtsakzessorietät des deutschen Umweltstrafrechts?’ (2012) 31 Zeitschrift für Wirtschafts- und Steuerstrafrecht (wistra) 371, 372 with further references; for another opinion see U Weber, ‘Das deutsche Umweltstrafrecht nach dem 45. StrRG’ in M Heger, B Kelker and E Schramm (eds), Festschrift für Kristian Kühl (München, CH Beck, 2014) 747, 750.

Environmental Criminal Law in Germany 103 conform to the ECD.34 For example, section 326 StGB (unauthorised handling of waste) had to be adapted in several respects. In paragraph 1, domestic waste shipment was included, the terminology in paragraph 1 no. 2 was adapted to the ECD, and ‘waste management’ was introduced as the generic term in accordance with the Waste Framework Directive.35 Moreover, section 326 paragraph 2 StGB had to be adapted to Article 3(c) ECD by referring to the definition of waste in the Waste Shipment Regulation36 and requiring in paragraph 6 the shipment of a non-negligible quantity of such waste.37 In secondary criminal law, besides some changes to the existing rules, two new provisions were introduced to provide for the necessary amendments: section 71a BNatSchG includes criminal provisions in relation to protected species which had previously only been punishable according to administrative penal law;38 and section 38a BJagdG was introduced in order to penalise the trade in and possession of protected and strictly protected wild fauna specimens in conformity with Article 3(g) ECD.39 However, three of the amendments introduced to transpose the ECD raise serious problems of conformity with EU legislation or with substantive German criminal law principles: First, there are doubts whether the structure of section 324 StGB on water pollution fully transposes Article 3(a) ECD. Whereas section 324 only penalises actual damage to water, the ECD also encompasses the likelihood of damage. According to the Government’s explanatory notes to the 2011 bill, section 324 is considered sufficient to transpose the Directive, as any detrimental alteration of water quality already qualifies as ‘damage’.40 Furthermore, intentional endangerments of the protected legal interest are covered by paragraph 2, criminalising the attempt.41 In contrast to this official view, some legal scholars argue that the structure of section 324 StGB is insufficient to transpose the ECD, as it would not apply to a case involving a discharge of materials into water which was likely to cause substantial damage to the quality of water without detrimentally altering its qualities. According to this opinion, in such a case it would not help that attempted pollution was punishable since an attempt requires intentional behaviour, whereas the

34  Deutscher Bundestag, Drucksache 17/5391, n 29 above, 12–15. A detailed description of these amendments is outside the scope of this chapter. For details see Sina, Fighting Environmental Crime in Germany, n * above, chapter 5. 35  Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives, [2008] OJ L312/3. 36  Regulation (EC) no 1013/2006 of the European Parliament and of the Council of 14 June 2016 on shipments of waste, [2006] OJ L190/1, amended by Regulation (EC) no 660/2014 of the European Parliament and of the Council of 15 May 2014, [2006] OJ L189/135. 37  Deutscher Bundestag, Drucksache 17/5391, n 29 above, 13, 17–18. 38  Deutscher Bundestag, Drucksache 17/5391, n 29 above, 14, 21–22. 39  Deutscher Bundestag, Drucksache 17/5391, n 29 above, 14, 22–23. 40  Deutscher Bundestag, Drucksache 17/5391, n 29 above, 12. 41  Weber, ‘Das deutsche Umweltstrafrecht’, n 33 above, 747–48.

104  Stephan Sina ECD also includes ‘serious negligence’.42 In any case, it would have been safer to transform the existing structure requiring damage to water qualities into a structure requiring likelihood of danger (Eignungsdelikt).43 Secondly, the extension in section 330d paragraph 2 StGB, which now also covers unlawful conduct committed abroad in violation of the legal order of other Member States, has been strongly criticised for general and technical reasons.44 Both the German Association of Judges and the German Association of Advocates (Deutscher Anwaltverein) contested the necessity to enlarge the international jurisdiction of German criminal law concerning acts committed in other Member States, precisely because the ECD leads to the harmonisation of environmental criminal law in the EU, and they raised concerns that this extension might lead to problems in practice concerning the ne bis in idem requirement.45 As to the technical problems, researchers criticise that section 330d paragraph 2 StGB does not refer to all the criminal environmental provisions of the Penal Code, thus creating serious problems concerning the applicability of the remaining provisions.46 Finally, it has been questioned whether section 330d paragraph 2 is compatible with the lex certa requirement since it requires in-depth consideration of the administrative law of other Member States implementing EU environmental legislation.47 Thirdly, in sections 71 and 71a BNatSchG, as well as section 38a BJagdG, negligence is only punishable in combination with intentional behaviour, meaning that the offender has to act intentionally but may negligently fail to recognise that the relevant action is oriented to an animal or a plant of a protected species. Thus, the seriously negligent killing of a protected species is not covered. Arguably this does not fully conform to Article 3(f) ECD, which requires that killing a protected species constitutes a criminal offence when committed at least with serious negligence.48 42  M Heger, ‘Das 45. Strafrechtsänderungsgesetz—Ein erstes europäisiertes Gesetz zur Bekämpfung der Umweltkriminalität’ (2012) 13 Onlinezeitschrift für Höchstrichterliche Rechtsprechung zum Strafrecht (HRRS), available at: www.hrr-strafrecht.de, 211, 222. 43  Kloepfer and Heger, Umweltstrafrecht, n 2 above, para 60. 44 See especially Meyer, ‘Führt § 330d Abs. 2 StGB zur endgültigen Europarechtsakzessorietät’, n 33 above, 371; Saliger, ‘Grundfragen des heutigen Umweltstrafrechts’, n 24 above, 25–27 with further references. 45 Deutscher Richterbund, Stellungnahme Nr 48/10, n 30 above, 1–2; Deutscher Anwaltverein, Stellungnahme Nr 71/2010, n 8 above, 4–7. 46  Meyer, ‘Führt § 330d Abs. 2 StGB zur endgültigen Europarechtsakzessorietät’, n 33 above, 372–73; M Pfohl, ‘Das 45. StrÄndG—Neue Herausforderungen für die Praxis der Strafverfolgung in Umweltstrafsachen’ in M Kloepfer and M Heger (eds), Das Umweltstrafrecht nach dem 45. Strafrechtsänderungsgesetz (Berlin, Duncker & Humblot, 2015) 65, 77; see also G Heine and B Hecker, ‘§ 330d’ in A Schönke and H Schröder (eds), Strafgesetzbuch. Kommentar, 29th edn (München, CH Beck, 2014) para 40, who still consider an interpretation conforming to the ECD possible and necessary in order to prevent methodic contradictions; of the latter opinion is also Schall, ‘Das 45. StÄG’, n 31 above, 658–59, with further references. 47  Meyer, ‘Führt § 330d Abs. 2 StGB zur endgültigen Europarechtsakzessorietät’, n 33 above, 375. 48 See Heger and Kloepfer, Umweltstrafrecht, n 2 above, para 350, with further references; also M Möhrenschlager, ‘Bericht aus der Gesetzgebung: Regierungsentwurf zu einem 45.

Environmental Criminal Law in Germany 105 3.4. Impacts of the Transposition of the Environmental Crime Directive into German Criminal Law In spite of the limited changes, the ‘Europeanisation’ of German environmental criminal law through the ECD has some important general impacts. The dependency of environmental criminal law on administrative law has grown, since the latter more and more also includes environmental legislation by the EU or based upon EU legislation, including environmental legislation of other Member States.49 Thus, it has become even more difficult for the citizen to assess whether certain behaviour would constitute a criminal offence.50 It is no surprise that with respect to several of the amendments introduced in order to transpose the ECD, doubts have been raised whether the lex certa requirement is (still) met.51 Moreover, practitioners questioned whether the enforcement authorities would still be able to cope with the increasingly complex provisions, especially with those referring to environmental legislation of other Member States.52 Moreover, although the German legislature restricted itself to a minimum of necessary amendments, the ECD transposition has resulted in a wider criminalisation of environmentally harmful behaviour. In particular, whereas new criminal provisions introduced in order to comply with the ECD were restricted to conduct committed with serious negligence, necessary amendments to existing provisions have led to an extension to criminal conduct committed with mere negligence.53 In some cases, this has resulted in blurring the line between truly criminal behaviour and mere disobedience to environmental legislation, a line which corresponds to the general distinction between criminal offences and administrative penal offences (see section 5.3 below). Thus, the way Germany transposed the ECD corresponds to the general tendency to extend criminalisation in environmental criminal law.54 Arguably, it would have been preferable to limit all environmental criminal provisions to conduct committed either intentionally or with serious negligence, and possibly also to de-criminalise the attempt to commit environmental crimes.55 S­ trafrechtsänderungsgesetz über den strafrechtlichen Schutz der Umwelt (Fortsetzung)’ (2001) 20 Zeitschrift für Wirtschafts- und Steuerstrafrecht (wistra), R xxxvii, xxxix, who still considers the possibility of a restrictive interpretation of the ECD according to the German provisions. 49 

See Ransiek, ‘Vor §§ 324 ff.’, n 8 above, para 64. Meyer, ‘Führt § 330d Abs. 2 StGB zur endgültigen Europarechtsakzessorietät’, n 33 above, 375. See especially AM Szesny and L Görtz, ‘Das neue Umweltstrafrecht—Kritisches zur Umsetzung der Richtlinie Umweltstrafrecht’ (2012) 18 Zeitschrift für Umweltrecht (ZUR) 405, 407–8 and 410–11. More restrictive eg Saliger, ‘Grundfragen des heutigen Umweltstrafrechts’, n 24 above, 27–28. 52  Pfohl, ‘Das 45. StrÄndG’, n 46 above, 77–79; Deutscher Anwaltverein, Stellungnahme Nr 71/2010, n 8 above, 4–7. 53  Heger, ‘Das 45. Strafrechtsänderungsgesetz’, n 42 above, 222–23; Szesny and Görtz, ‘Das neue Umweltstrafrecht’, n 51 above, 405, 411. 54  Kloepfer and Heger, Umweltstrafrecht, n 2 above, para 450. 55  See Heger, ‘Das 45. Strafrechtsänderungsgesetz’, n 42 above, 222–23; concerning the former see also Deutscher Anwaltverein, Stellungnahme Nr 71/2010, n 8 above, 7, 9; Weber, ‘Das deutsche Umweltstrafrecht’, n 33 above, 748. 50 

51 

106  Stephan Sina 4.  PROCEDURAL PROVISIONS, ACTORS AND INSTITUTIONS IMPLEMENTING THE ENVIRONMENTAL CRIME DIRECTIVE

4.1.  Procedural Provisions in the Code of Criminal Procedure Rules regarding the investigation and prosecution of crimes are contained in the Code of Criminal Procedure (StPO). The relevant criminal procedure consists of the investigation proceedings (Ermittlungsverfahren) aimed at preparing public charges, the interim proceedings (Zwischenverfahren) in which the court decides whether to open main proceedings according to the bill of indictment, and the main proceedings (Hauptverfahren) in court. As a general rule, the public prosecutor’s office is obliged to take action in relation to all prosecutable criminal offences, provided there is a sufficient factual basis (section 152 paragraph 2 StPO, Legalitätsprinzip). In some cases explicitly provided by law (sections 153–154 StPO), however, the principle of discretionary prosecution applies (Opportunitäts­ prinzip), which means that the public prosecutor’s office takes only such action as it deems appropriate. Environmental criminal law and the law of criminal procedure are linked in two ways. First, there are procedural issues which are specific to environmental crimes. For example, several environmental laws oblige operators of certain facilities and other persons to provide certain information to the environmental authorities, eg from self-monitoring activities, raising the question whether the use of evidence gathered from such information against the accused is compatible with the principle that no man is bound to accuse himself (nemo tenetur se ipsum accusare).56 Second, there are procedural issues which are typically at stake in environmental crime cases, the most important being the problem of obtaining knowledge of suspected crimes and difficulties regarding proof of sufficient grounds to suspect the commission of a criminal offence. As soon as the public prosecutor’s office learns of a suspected criminal offence, it must investigate the facts to decide whether public charges are to be filed (section 160 paragraph 1 StPO). Thus, obtaining such knowledge is the first and most crucial step for the investigation proceedings which may ultimately lead to public charges. Concerning environmental crimes, this knowledge may be obtained mainly in two ways. First, individuals may file a report regarding a criminal offence or make an application for criminal prosecution with the public prosecutor’s office, with police authorities and officials, or with the Local Courts (section 158 paragraph 1 StPO). Although most of the criminal information stems from the general public, people are rather reluctant to file reports. The main reason is that, in the case of environmental crimes, people are either not directly affected by such offences, or there is an anonymous multitude of victims.

56  For more information refer to Sina, Fighting Environmental Crime in Germany, n * above, 72–73; Saliger, Umweltstrafrecht, n 2 above, paras 522–525, with further references.

Environmental Criminal Law in Germany 107 Thus, the ordinary citizen is rarely confronted with the infringement of his or her legal interests, which is often the decisive motivation for people to make a criminal complaint.57 Secondly, the public prosecutor’s office may obtain information on potential crimes from the environmental authorities. However, these authorities are also reluctant, if not unable, to provide the public prosecutor’s office with such information.58 On the one hand, the continuous task of the environmental authorities results in a rather cooperative relationship between them and the operators of potentially polluting facilities. Therefore they prefer to resolve conflicts with the means at their disposal rather than resort to criminal law.59 The State governments have issued administrative guidelines on the cooperation between the administrative authorities and the prosecutor concerning the fight against environmental crimes, instructing the administrative authorities to inform the public prosecutor’s office of any suspicion concerning a criminal offence, which is, however, partially dependent upon the authority’s administrative discretion.60 On the other hand and perhaps most importantly, in recent years the environmental agencies have not made adequate use of the pro-active monitoring instruments at their disposal, eg inspection of sites, in order to ensure compliance with the relevant legislation. They lack the resources, in particular staff and measuring instruments, to carry out regular controls that lead to relevant information.61 This situation is aggravated by the fact that, for financial reasons, in recent times environmental authorities have been reduced, eg by dissolving special authorities and transferring their competences to the lower administration authorities.62 According to sections 170 and 203 StPO, investigation proceedings may only lead to public charges if there are sufficient grounds to suspect that the accused has committed a criminal offence. This requires the likelihood that, according to a preliminary assessment, the accused will be convicted.63 In particular, due to the scientific complexity of the circumstances surrounding environmental crime cases, it is often difficult to find enough evidence against the accused. Particularly in decentralised large-scale enterprises, the division of work makes it difficult to

57  H Schall, ‘Umweltschutz durch Strafrecht: Anspruch und Wirklichkeit’ (1990), 42 Neue Juristische Wochenschrift (NJW) 1263, 1270; Saliger, Umweltstrafrecht, n 2 above, para 527, with further references to literature on criminology. 58  Schall, ‘Umweltschutz durch Strafrecht’, n 57 above, 1271; Saliger, Umweltstrafrecht, n 2 above, para 528, with further references to criminology; Hecker, Heine, Windolph et al, Abfallwirtschaftskriminalität, n 11 above, 61. 59  Schall, ‘Umweltschutz durch Strafrecht’, n 57 above, 1271, with further refererences; According to V Meinberg, ‘Praxis und Perspektiven des Umwelt-Ordnungswidrigkeiten-Rechts’ (1990) 42 Neue Juristische Wochenschrift (NJW) 1273, 1282, administrative authorities are reluctant to use any repressive means including administrative penal law. 60  See generally Kloepfer and Heger, Umweltstrafrecht, n 2 above, paras 121–122. 61  Hecker, Heine, Windolph et al, Abfallwirtschaftskriminalität, n 11 above, 60–61; Pfohl, ‘Das 45. StrÄndG’, n 46 above, 79. 62  See, eg Sachverständigenrat für Umweltfragen (SRU), Umweltverwaltungen unter Reformdruck: Herausforderungen, Strategien, Perspektiven. Sondergutachten (Berlin, Erich-Schmidt-Verlag, 2007). 63 Saliger, Umweltstrafrecht, n 2 above, para 534, with further references.

108  Stephan Sina attribute criminal liability to a particular person.64 In addition to these legal barriers, there are factual barriers, such as the insufficient resources and expertise of the prosecution service, and a corresponding dependency on experts’ reports.65 These legal and factual problems of proof are the main reason that the vast majority of environmental criminal proceedings are terminated due to insufficient grounds to proceed with public charges under section 170 paragraph 2 StPO. However, it seems that unlike some decades ago, the rate of termination of proceedings related to environmental crimes under section 170 paragraph 2 StPO does not significantly deviate from the rate of termination related to other criminal offences.66 Furthermore, the legal and factual barriers to obtaining proof often eliminate the public interest in prosecution and make the perpetrator’s guilt appear as if it is of minor extent (section 153 StPO), or at least allow for compensation of the public interest in prosecution through the imposition of certain conditions and instructions, eg payment of a certain sum of money to a not-for-profit institution or to the German government (section 153a StPO). Both provisions are examples for exceptions in which the principle of discretionary prosecution applies (Opportunitätsprinzip), enabling the public prosecutor’s office under certain conditions to drop or provisionally suspend the prosecution for misdemeanour crimes. Section 153a StPO aims at terminating criminal proceedings in a cooperative way, thereby combining aspects of economising on judicial resources and ­decriminalisation.67 As almost all environmental criminal offences are misdemeanours, sections 153 and 153a StPO are generally applicable. It has also to be taken into account that perpetrators of environmental crimes are regularly fully integrated into society. For these reasons, the termination of criminal proceedings according to sections 153 and 153a StPO by the public prosecutor’s office and the courts is considerable in environmental law.68 In spite of this, the rate at which proceedings terminated in environmental criminal law (60 per cent on average since 1998) and in criminal law in general (53 per cent on average) have converged.69 Concerning the transposition of the ECD into German criminal law, a highranking public prosecutor has observed that some cases resulting from the amendments adopted are likely to be terminated without prosecution in accordance with

64  MG Faure and G Heine, Criminal Enforcement of Environmental Law in the European Union (Dordrecht, Kluwer Law International, 2005) 47. 65 Saliger, Umweltstrafrecht, n 2 above, para 533, with further references. More information on resources and expertise of the prosecution authorities is provided in section 4.2. 66  According to Saliger, Umweltstrafrecht, n 2 above, para 534, with further references, the termination of proceedings related to environmental crimes according to section 170 para 2 StPO concerned 47.5% of all proceedings between 1982–1986 and diminished to 29% in 2003. However, he also mentions an analysis of 2007 which rather points to continuity to the results in the 1980s. 67 Saliger, Umweltstrafrecht, n 2 above, para 538. 68  According to Saliger, Umweltstrafrecht, n 2 above, para 540 with further references, the rate of terminations in environmental criminal proceedings in 2003 was 14% under section 153 StPO and 10% under section 153a StPO. 69 Saliger, Umweltstrafrecht, n 2 above, para 540 with further references.

Environmental Criminal Law in Germany 109 sections 170, 153 and 153a StPO. This could include, for example, minor offences of illegal waste shipment according to section 326 paragraphs 2 and 6 StGB. Another example could be cases in which an expert opinion would be necessary to determine whether the de minimis rule in section 71a paragraph 4 BNatSchG applies, which exempts criminal liability for acts involving a negligible quantity of certain specimen and having a negligible impact on the conservation status of the species.70 Additionally, the legal and factual complexity of environmental crime cases, the corresponding proof problems, and the usually strong representation of the defendant by a lawyer make these cases particularly suited for plea bargaining,71 which has been recently regulated in section 257c StPO.72

4.2.  Actors and Institutions for Enforcing Environmental Criminal Law German environmental criminal law is enforced by various actors and institutions, depending on the individual case and the different stages of the enforcement chain. As mentioned, individuals and environmental authorities play an important role in starting criminal investigations. Provisions concerning the institutions of criminal procedure, particularly the courts and the state prosecution service, are contained in the Constitution of Courts Act (Gerichtsverfassungsgesetz, GVG). The whole process of investigating criminal activities up to the stage of charging the accused with the crime is the business of the public prosecutor’s office (Staatsanwaltschaft), as is the presentation of the prosecutor’s case at trial (sections 141 et seq GVG).73 The public prosecutor’s office is a strictly neutral institution, which may, however, receive directives from the relevant minister of justice at the federal or State level. Being in charge of the investigations, the public prosecutor’s office makes use of and issues instructions to its auxiliaries, in particular the police (section 152 GVG). According to a study in 2008, an expert criticised that environmental crimes were unpopular with prosecutors at the local level and thus neglected.74 Special environmental departments have been set up only in some of the larger metropolitan areas (eg Berlin, Hamburg, Frankfurt am Main), which have several prosecutors at their disposal who are responsible for all environmental crimes, in addition to other topics.75 70 

Pfohl, ‘Das 45. StrÄndG’, n 46 above, 78–79. See Saliger, Umweltstrafrecht, n 2 above, para 542. 72  See generally Kloepfer and Heger, Umweltstrafrecht, n 2 above, paras 403–5. 73  See generally T Fröhlich et al, Organised environmental crime in the EU Member States. Final Report for the European Commission, DG Environment (Kassel, 15 May 2003), available at: ec.europa. eu, 515 ff. 74  Hecker, Heine, Windolph et al, Abfallwirtschaftskriminalität, n 11 above, 60. 75  Fröhlich et al, Organised environmental crime, n 73 above, 516. Concerning Berlin, an interview with the Berlin Public prosecutor’s office of 4 June 2014 confirmed that according to the annual plan of task division (Geschäftsverteilungsplan), two public prosecutors are responsible for environmental crimes. 71 

110  Stephan Sina In practice, the police conduct the vast majority of investigations independently of the public prosecutor’s office, and are thus the central authority in fighting environmental crime.76 In all the federal States, there is a basic difference between the protective forces (uniformed police), and the criminal police. Cases of serious environmental crime are generally transferred to the criminal police after initial investigation by the uniformed police force. In each State there is a State Criminal Police Office (Landeskriminalamt, LKA), securing the cooperation of the federation and the individual federal States in order to fight crime. Some of these offices have special divisions for environmental crimes. For example, the LKA Berlin has two divisions (Kommissariate) that deal exclusively with environmental crimes.77 Since Berlin is a metropolitan State, these units are able to investigate all environmental crimes, including the work at the scene. In addition, the LKA Berlin has its own Scientific-Technical Department, a unit which deals with environmental crimes and supports the investigating units. Thus, the LKA Berlin has the awareness, the expertise, the equipment, the experience and the time necessary to deal with environmental crimes in an appropriate way. Sometimes, however, the financial resources are lacking to provide for regular external training. Although not every element of this particular structure could be transferred to the larger federal States, let alone other (centralised) countries, the combination of specialist units exclusively responsible for environmental crimes and supporting scientifictechnical units can be considered as an example of best practice. At the federal level, the Federal Criminal Police Office (Bundeskriminalamt, BKA) in Wiesbaden is the central office for the cooperation between the federation and the federal States in criminal police matters, as well as the key office for international police cooperation. The fight against environmental crime is not at the core of the BKA’s tasks and duties.78 In practice, there are about 300 occasions per year to deal with cases concerning environmental and consumer protection offences.79 In cross-border environmental crime, especially wildlife crime, the Customs Investigations Services (Zollfahndungsämter) are also involved in criminal investigations, coordinated and steered by the Customs Criminal Investigation Agency (Zollkriminalamt, ZKA) in Cologne.80 In contrast to the economic offences divisions established by section 74c GVG, German law does not establish special divisions of the criminal courts for environmental criminal matters. By way of exception, the District Court of Hamburg has subsidiary jurisdiction for all criminal offences at sea outside German

76 

Fröhlich et al, Organised environmental crime, n 73 above, 518. This and the information that follow have been obtained through an interview with LKA Berlin of 28 May 2014. 78  See Fröhlich et al, Organised environmental crime, n 73 above, 491. 79  Interview with BKA of 6 June 2014. 80  A more detailed account of enforcement authorities in wildlife crime is provided by K Klaas, S Sina and G Gerstetter, Wildlife Crime in Germany. In-depth Analysis for the ENVI Committee (Brussels, European Parliament, 2016), available at www.europarl.europa.eu. 77 

Environmental Criminal Law in Germany 111 territory, including environmental offences, if no other court has jurisdiction (section 10a StPO). In practice, however, there is a tendency at the Regional Court level to establish special divisions for environmental criminal matters.81 Overall, experts generally criticise the low awareness of prosecution authorities about the importance of the fight against environmental crime, compared to other areas of crime, and a lack of qualified staff as well as technical and financial resources.82 According to a study, the decrease in reported environmental crimes corresponds to a decrease in funding for environmental investigations undertaken by authorities in some federal States, whereas in federal States without staff reduction the registered crimes remained constant.83 Concerning the transposition of the ECD into German criminal law, a high-ranking public prosecutor observed that the amendments adopted were often unknown by the investigating officers, and urged action on this.84

5. SANCTIONS

5.1.  Sanctions in Environmental Criminal Law As a rule, sanctions for environmental criminal offences committed intentionally range from a fine to up to three or five years in prison, depending on the provision in question. For especially serious cases of environmental crime according to sections 324–329 StGB, the sanction is imprisonment from six months to 10 years (section 330 paragraph 1 StGB). Typical examples of such cases include criminal offences leading to lasting damage to a population of a strictly protected animal or plant species, or motivated by financial gain. Except for minor cases, if the offender puts another person in serious danger or endangers the health of a large number of persons, the penalty is imprisonment from one to 10 years, and if she or he causes the death of another person, the penalty is imprisonment for at least three years (section 330 paragraph 2). If the offender acts negligently, the penalty ranges from a fine up to one, two or three years in prison. Thus, environmental crimes are usually misdemeanours, and only qualify as felonies in certain especially serious cases according to section 330 paragraph 2 StGB. They are therefore considered minor or moderate crimes.85

81 Saliger, Umweltstrafrecht, n 2 above, para 520; Kloepfer and Heger, Umweltstrafrecht, n 2 above, para 416. 82  Hecker, Heine, Windolph et al, Abfallwirtschaftskriminalität, n 11 above, 58–59; Pfohl, ‘Das 45. StrÄndG’, n 46 above, 78–79; Saliger, Umweltstrafrecht, n 2 above, para 533 with further references; see also Bundesministerium des Innern and Bundesministerium für Justiz, Sicherheitsbericht, n 1 above, 278. 83  Hecker, Heine, Windolph et al, Abfallwirtschaftskriminalität, n 11 above, 58. 84  Pfohl, ‘Das 45. StrÄndG’, n 46 above, 80. 85  Kloepfer and Heger, Umweltstrafrecht, n 2 above, para 148.

112  Stephan Sina According to general principles of sanctioning, in addition to fines and imprisonment, complementary sanctions apply to environmental crimes. Most importantly, benefits from the crime can be forfeited (sections 73 to 73e StGB), and objects used for or created by criminal activities can be permanently confiscated (sections 74 to 76 StGB). Moreover, the offender of an environmental crime may be disqualified from exercising his profession if he committed the offence in abuse of his profession or trade or in gross violation of his attendant duties, and if there is a risk that he will commit serious offences of that kind again (section 70 StGB).86 Criminal sanctions are recorded in the Federal Central Criminal Register (Bundeszentralregister). Offenders have a criminal record (Vorstrafe) if they have been sentenced to imprisonment for more than three months or to a fine exceeding 90 daily units.

5.2.  Sanctions in Practice Today the normal form of punishment for crimes in general is the imposition of a fine, with imprisonment only being applied in particularly severe cases.87 In addition, in most cases, imprisonment sentences of two years or less are suspended on probation.88 Following the Scandinavian example, German law measures fines in daily units (Tagessätze), an amount of money roughly corresponding to the sum which a given individual would earn from a day’s work, though it also can take into account other personal and economic circumstances (section 40 StGB). Compared to total crime, the level of sanctions for environmental crime appears particularly low. Imprisonment sentences are even rarer (three per cent compared to 16.3 per cent of total convictions in 2014), and probation is granted in even more cases than for total crime (94 per cent compared to 70 per cent of total imprisonment sentences in 2014), although the gap has been decreasing in recent years.89 If an offender is sentenced to imprisonment, the sentence is usually at the lowest level of the range, rarely going beyond one year (9.1 per cent compared to 40.2 per cent of total imprisonment sentences in 2014).90 However, in some

86 

See Kloepfer and Heger, Umweltstrafrecht, n 2 above, para 152. Jescheck and Weigend, Lehrbuch des Strafrechts, n 15 above, 744–46. 88  JM Jehle, Criminal Justice in Germany. Facts and Figures, 5th edn (Berlin, Federal Ministry of Justice, 2009) 30; Faure and Heine, Criminal Enforcement, n 64 above, annex 2 at 133. 89  Statistisches Bundesamt, Strafverfolgungsstatistik (StVSt) 2014. Rechtspflege. Strafverfolgung 2014 (Wiesbaden, 2014), available at: www.destatis.de, 92–93. For 2012 numbers see also Kloepfer and Heger, Umweltstrafrecht, n 2 above, paras 438–447; Bundesministerium des Innern and Bundesministerium für Justiz, Sicherheitsbericht, n 1 above, 276–77: 2.3% (81% on probation) compared to 16% (80% on probation) convicted for fraud (prosecution statistics for West Germany including Berlin of 2004); 3.5% according to C Almer and T Goeschl, ‘Environmental Crime and Punishment: Empirical Evidence from the German Penal Code’ (2010) 86 Land Economics 705, table 2 at 715. 90  Statistisches Bundesamt, Strafverfolgungsstatistik 2014, n 89 above, 157. According to the Second Report on Security of 2006, sentences to imprisonment beyond one year comprise 3% compared to 17% for fraud, Bundesministerium des Innern and Bundesministerium für Justiz, Sicherheitsbericht, 87 

Environmental Criminal Law in Germany 113 cases involving illegal disposal of wastes, imprisonment sentences exceed two years.91 Equally, the level of fines appears rather low; in 2014, only 4.6 per cent of those convicted (compared to 7.1 per cent in total crime) had to pay a severe fine which officially established a criminal record.92 Two of the reasons for the low level of sanctions could be the high percentage of crimes committed negligently, and that the percentage of those convicted with an existing criminal record is particularly low in environmental criminal law.93 Finally, although forfeiture could be often applied in environmental criminal law, it is rarely applied in practice.94 Thus, it can be said that in environmental criminal law, the tendency of the legislature to enlarge criminalisation is faced with the tendency of the judiciary to restrict sanctions in practice.95 This raises the question whether, overall, the level of sanctions in environmental criminal law conforms to Article 5 ECD that requires effective, proportionate and dissuasive penalties. In transposing the ECD, the legislature obviously assumed the general conformity, raising that point only once concerning section 38 BJagdG where the maximum penalty for negligent behaviour was increased from six months’ to one year’s imprisonment.96 According to a recent study, environmental criminal sanctions in Germany, in spite of being low on average, do have a deterrent effect.97 However, the deterrent effect was not achieved due to the severity of sanctions, but presumably by the public nature of the sanction, that is the reputational loss by standing trial in a public court of law.98 These findings contradict parts of the legal literature characterising the deterrent effect of environmental criminal law as negligible.99

n 1 above, 277; see also Ransiek, ‘Vor §§ 324 ff.’, n 8 above, para 29 for the conviction statistics in 2010, who even notices a more severe sentencing practice of the courts than formerly; for 2012: Kloepfer and Heger, Umweltstrafrecht, n 2 above, paras 442–43. 91  Kloepfer and Heger, Umweltstrafrecht, n 2 above, para 449; Pfohl, ‘Das 45. StrÄndG’, n 46 above, 79, both referring to a judgment of the Federal Court of Justice (BGH), published in Neue Juristische Wochenschrift (NJW) 2013, 950, that imposed a sentence of four years and three months in prison on the operator of an illegal landfill. 92  Statistisches Bundesamt, Strafverfolgungsstatistik 2014, n 89 above, 192. 6.4% according to Almer and Goeschl, ‘Environmental Crime and Punishment’, n 89 above, table 2 at 715. But see Kloepfer and Heger, Umweltstrafrecht, n 2 above, paras 445–447, who declare that the level of fines in 2012 was not much different from total crime. 93  Saliger, ‘Grundfragen des heutigen Umweltstrafrechts’, n 24 above, 15 with further references; concerning the latter also Faure and Heine, Criminal Enforcement, n 64 above, annex 2 at 133. 94  Kloepfer and Heger, Umweltstrafrecht, n 2 above, para 155. 95 See especially M Kloepfer and HP Vierhaus, Umweltstrafrecht, 2nd edn (München, 2002), para 214. But see the 3rd edition by Kloepfer and Heger, Umweltstrafrecht, n 2 above, paras 448–449, who do not adopt this conclusion, at least not explicitly. 96  Deutscher Bundestag, Drucksache 17/5391, n 29 above, 23. 97  Almer and Goeschl, ‘Environmental Crime and Punishment’, n 89 above, 708–9, 717–18, 721–22. 98  Almer and Goeschl, ‘Environmental Crime and Punishment’, n 89 above, 709, 719, 721. 99  Almer and Goeschl, ‘Environmental Crime and Punishment’, n 89 above, 721–22 with references at 710; further references in Saliger, Umweltstrafrecht, n 2 above, para 60.

114  Stephan Sina Irrespective of these considerations on the deterrent effect of criminal sanctions, Member States have considerable leeway with regard to ensuring that their level of criminal sanctions is effective, dissuasive and proportionate according to Article 5 ECD.100 One view in academic literature holds that, to conform to the dissuasiveness criterion, Member States need to provide imprisonment alongside criminal fines as sanctions.101 According to this standard, there is no indication that the level of sanctions in German environmental criminal law does not conform to Article 5 ECD.

5.3.  Sanctions in Administrative Penal Law Concerning the environmental matters covered by Article 3 ECD, the relevant environmental laws contain provisions enumerating a multitude of administrative penal offences (Ordnungswidrigkeiten), which complement criminal provisions in imposing a fine for non-compliance. For example, section 69 BNatSchG enumerates administrative penal offences concerning nature conservation. If the same conduct is punishable both as a criminal offence and as an administrative penal offence, only the former is applied according to section 21 of the Administrative Offences Act (Ordnungswidrigkeitengesetz, OWiG). Although the regular maximum fine is €1,000, environmental laws regularly levy much higher fines, usually up to €50,000, as section 17 paragraph 4 OWiG requires that the administrative penal fine exceeds the financial benefit that the perpetrator obtained by committing the offence. In contrast to criminal procedure, the principle of discretionary prosecution (Opportunitätsprinzip) applies to administrative penal procedure, allowing the authorities to make use of administrative penal fines only as a last resort. While in German criminal law only natural persons are liable (‘societas delinquere non potest’), administrative penal offences also apply to legal persons (section 30 OWiG). Following a report of the OECD raising doubts whether penalties against legal persons in Germany were effective, proportionate and dissuasive as required by Article 7 ECD,102 the legislature in June 2013 increased the maximum administrative fine for intentional conduct ten-fold,

100 

K Meßerschmidt, Europäisches Umweltrecht (München, CH Beck, 2011), § 5 para 269. Umweltrecht, n 100 above, § 5 para 268; a slightly different point of view from an economic theory perspective is put forward by MG Faure, ‘Effective, Proportional and Dissuasive Penalties in the Implementation of the Environmental Crime and Ship-source Pollution Directives: Questions and Challenges’ (2010) 19 European Energy and Environmental Law Review 256, 266: fines should be used for environmental crime as the primary penalty and non-monetary sanctions (like imprisonment) should only be used to the extent that an insolvency problem arises. 102 OECD, Deutschland: Phase 3. Bericht über die Anwendung des Übereinkommens über die Bekämpfung der Bestechung ausländischer Amtsträger im internationalen Geschäftsverkehr und der Empfehlung des Rats zur weiteren Bekämpfung der Bestechung ausländischer Amtsträger im internationalen Geschäftsverkehr (17 March 2011) 5–6, 45, 83. 101 Meßerschmidt, Europäisches

Environmental Criminal Law in Germany 115 from €1 million to €10 million and for negligent conduct from €500,000 to €5 million.103 In spite of this, there is a wide consensus among researchers that corporate sanctions should go beyond the existing provision of section 30 OWiG.104 However, there is no agreement whether such a sanction should be a criminal sanction or not, or on the details of the sanction.105 According to a study by Meinberg, the less important violations of environmental provisions are handled through administrative fines rather than criminal sanctions.106 However, in transposing the ECD, some of the offences had to be transformed into criminal offences, for example several provisions of the Federal Nature Conservation Act in relation to protected species.107 Most of the proceedings in administrative penal law with respect to environmental violations end with a decision to impose an administrative fine.108 The severity of the sanction is, however, on average lower than what would be imposed through criminal law.109 According to another study by Lutterer and Hoch, the administrative penal law has a higher probability of a sanction being imposed than the criminal procedure; however, the average fines imposed through the criminal system were higher than the average fines imposed through administrative penal law. For both cases, the formal statutory opportunities to impose much higher sanctions are rarely used.110 Thus, administrative fines may be more efficient for minor violations whereas criminal sanctions are more appropriate for the most serious of cases.111

6. CONCLUSIONS

Germany only had to introduce minor amendments in order to transpose the Environmental Crime Directive, because it already had in place a sophisticated

103  Bundesverband der Unternehmensjuristen (BUJ), Gesetzgebungsvorschlag für eine Änderung der §§ 30, 130 des Ordnungswidrigkeitengesetzes (OWiG) (Frankfurt am Main, April 2014) 4. 104  Ransiek, ‘Vor §§ 324 ff.’, n 8 above, paras 39–40 with further references. 105  Ransiek, ‘Vor §§ 324 ff.’, n 8 above, para 40 with further references; see Bundesverband der Unternehmensjuristen (BUJ), Gesetzgebungsvorschlag, 5. 106  V Meinberg, ‘Empirische Erkenntnisse zum Vollzug des Umweltstrafrechts’ (1998) 100 Zeitschrift für die gesamte Strafrechtswissenschaft 112–57. The text follows the account of main findings by MG Faure and K Svatikova, ‘Criminal or Administrative Law to Protect the Environment? Evidence from Western Europe’ (2012) 24 Journal of Environmental Law 1, 25. 107  Deutscher Bundestag, Drucksache 17/5391, n 29 above, 14, 21–22. 108  53% according to the table of W Lutterer, and HJ Hoch, Rechtliche Steuerung im Umweltbe­ reich: Funktionsstrukturen des Umweltstrafrechts und des Umweltordnungswidrigkeitenrechts; empirische Untersuchungen zur Implementation strafbewehrter Vorschriften im Bereich des Umweltschutzes (Freiburg im Breisgau, iuscrim, 1997), presented by Faure and Svatikova, ‘Criminal or Administrative Law’, n 106 above, 26; see also Meinberg, ‘Praxis und Perspektiven’, n 59 above, 1280. 109  Faure and Svatikova, ‘Criminal or Administrative Law’, n 106 above, 25 referring Meinberg, ‘Empirische Erkenntnisse’ n 106 above. 110  Faure and Svatikova, ‘Criminal or Administrative Law’, n 106 above, 26 citing Lutterer/Hoch, Rechtliche Steuerung, n 108 above. 111  Faure and Svatikova, ‘Criminal or Administrative Law’, n 106 above, 32–33; Ransiek, ‘Vor §§ 324 ff.’, n 8 above, para 36.

116  Stephan Sina set of rules regarding environmental crimes, consisting of offences against the environment in the Criminal Code (primary criminal law), and of various environmental offences spread over different environmental laws (secondary criminal law). However, the ‘Europeanisation’ of German environmental criminal law through the ECD has some important general impacts: the dependency of environmental criminal law on administrative law has grown, since the latter extends more and more to environmental legislation by the EU or based upon EU legislation, including environmental legislation of other Member States. Moreover, the ECD transposition has resulted in a wider criminalisation of environmentally harmful behaviour, in particular an extension to criminal conduct committed with mere negligence. So far it is not clear whether this transposition results in better protection of the environment. First, a few of the amendments introduced to transpose the ECD raise serious problems of conformity with EU legislation or with substantive German criminal law principles. Secondly, and more importantly, the enforcement deficits of German criminal law are likely to affect the amendments introduced to transpose the ECD. Reasons for these deficits include the low significance of the fight against environmental crime compared to other areas of crime, and a lack of qualified staff as well as technical and financial resources. In spite of the best practice example of the LKA Berlin, specialisation of enforcement authorities is not common. Moreover, environmental agencies have increasing difficulties in providing regular controls leading to relevant information to the prosecution authorities. These problems contribute to the problems of proof that are the main reason that the vast majority of environmental criminal proceedings are terminated for ‘insufficient grounds to proceed with public charges’ under section 170 paragraph 2 StPO, and why the termination of criminal proceedings by the public prosecutor’s office and the courts in cases when the principle of discretionary prosecution exceptionally applies (sections 153, 153a StPO) is significant in environmental law. The transposition of the ECD into German criminal law might even further exacerbate these enforcement deficits, by widening criminalisation of environmental harmful behaviour, further extending the application of the Criminal Code to crimes abroad, and increasing the complexity of environmental criminal law and thus the risk of faults.112 The result could be that some of the provisions that were introduced to transpose the ECD have merely symbolic value, which would be quite the opposite of what the ECD aimed at.113 Arguably, it would have been preferable to limit all environmental criminal provisions to conduct committed either intentionally or with serious negligence, and possibly also to de-criminalise

112  113 

See Saliger, Umweltstrafrecht, n 2 above, para 23. Pfohl, ‘Das 45. StrÄndG’, n 46 above, 80.

Environmental Criminal Law in Germany 117 attempts to commit environmental crimes.114 In any case, there is no statistical evidence that the transposition of the ECD has led to an increase in the number of prosecutions or to the imposition of more severe fines. There has been an increase in reported crimes in 2014, for the first time since 1999, mainly due to a substantial increase in recorded crimes concerning cross-border waste shipment. But already in 2015, the numbers have decreased again. Compared to total crime, the level of sanctions for environmental criminal law offences in practice is still rather low, but sufficient to be considered as effective, proportionate and dissuasive within the terms of the ECD. The less important violations of environmental provisions are handled through administrative fines rather than criminal sanctions, with a higher probability of a sanction being imposed.

114  See Heger, ‘Das 45. Strafrechtsänderungsgesetz’, n 42 above, 222–23; concerning the former see also Deutscher Anwaltverein, Stellungnahme Nr 71/2010, n 8 above, 7, 9; Weber, ‘Das deutsche Umweltstrafrecht’, n 33 above, 748.

118 

6 Environmental Criminal Law in Italy GRAZIA MARIA VAGLIASINDI*

1. INTRODUCTION

T

HIS CHAPTER DESCRIBES and analyses current Italian environmental criminal law, as (limitedly) shaped by the transposition of Directive 2008/99/EC on the protection of the environment through criminal law (Environmental Crime Directive, ECD)1 as well as by subsequent legislative developments.2 It explores the impact of the ECD on Italian environmental criminal law and assesses whether the current legislative framework provides effective protection to the environment as a protected legal interest. This chapter is structured as follows. First, an overview of the Italian constitutional framework is given. Then, the general criminal law principles applicable to environmental crime are highlighted and the notion of environmental crime is explored. On these grounds, environmental criminal law and the transposition of the ECD are analysed. Procedural provisions, actors and institutions relevant to the implementation of environmental criminal law are then addressed. Sanctions for environmental crimes in practice are explored. The chapter concludes with critical considerations.

1.1.  The Constitutional Framework The Constitutional Charter, which entered into force on 1 January 1948,3 defines the political and civil liberties of citizens and the organisation of the Italian

*  This chapter is partly based on research undertaken within the framework of the research project ‘European Union Action to Fight Environmental Crime’ (EFFACE) funded by the European Commission under the FP7. 1 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 [2008] OJ L 328/28. 2  The reader should be aware that no official English translation of most of the legal provisions mentioned in this chapter is available. The translation of the legal provisions is made by the author and it is not to be considered official. For the Italian Constitution, the author used the English translation available at: www.quirinale.it/qrnw/statico/costituzione/pdf/costituzione_inglese.pdf. 3  Since then, several sectoral reforms of the Constitutional Charter have been carried out. See also below section 2.2.

120  Grazia Maria Vagliasindi Republic. The Republic is composed of the Municipalities, the Provinces, the Metropolitan Cities, the Regions and the State. Pursuant to Article 117, paragraph 1, Constitution, legislative powers are vested in the State and the Regions in compliance with the Constitution and with the constraints deriving from European Union (EU) legislation and international obligations. The State has exclusive legislative powers in listed subject-matters, which encompass protection of the environment, the ecosystem and cultural heritage (Article 117, paragraph 2, Constitution). Concurring legislation applies to listed subject-matters, which encompass enhancement of cultural and environmental assets and promotion and organisation of cultural activities; in the subject-matters covered by concurring legislation legislative powers are vested in the Regions, except for the determination of the fundamental principles, which are laid down in State legislation (Article 117, paragraph 3, Constitution).4 However, it should be noted that the list of subject-matters set out by Article 117 Constitution created lot of uncertainty and caused many disputes between State and Regions,5 including in environmental matters.6 This also affects the exercise of administrative powers. In fact, administrative powers are vested in the State with respect to the ­subject-matters of exclusive legislation, subject to any delegations of such p ­ owers to the Regions. Administrative powers are vested in the Regions in all other subject-matters. Municipalities, Provinces and Metropolitan Cities carry out administrative functions of their own as well as the functions assigned to them by State or by regional legislation, according to their respective competences. The Constitution stresses the principle that the judiciary is independent of the legislative and the executive branches. The Italian judicial system consists of a series of courts and a body of judges who are civil servants. Judges and prosecutors belong to the same civil service sector. The judicial system is unified, with every court being part of the national network. As it has been noted, ‘Court judgments are an essential instrument for the implementation of the law itself but the judiciary does not have the law-making powers that are inherent to common law systems’.7 4  It is worth adding that, according to Article 117, para 4, Constitution, the Regions have legislative powers in all subject-matters that are not expressly attributed to State legislation. 5  See G Gardini, ‘Political and administrative organization of the Italian regions. Annual Report— 2011’ (March 2011) IUS-publicum network review 1, 6, available at: www.ius-publicum.com. It is worth recalling that, according to Article 127 Constitution, the Government may submit the constitutional legitimacy of a regional law to the Constitutional Court within 60 days from its publication, if it deems that the regional law exceeds the competence of the Region. A Region may submit the constitutional legitimacy of a State or regional law or act having the force of law to the Constitutional Court within 60 days from its publication, if it deems that said law or measure infringes upon its competence. 6  See, for instance, Corte Costituzionale, 22 July 2009, n° 225, available at: www.cortecostituzionale. it/actionSchedaPronuncia.do?anno=2009&numero=225. 7  Milieau, ‘Evaluation Study on the Implementation of Directive 2008/99/EC on the Protection of the Environment through Criminal Law by Member States—National Report for Italy’ (Brussels, Milieu Ltd, February 2012, published 2015) 1, 13, available at: http://ec.europa.eu/justice/criminal/ files/environment/nr_it_redacted_en.pdf.

Environmental Criminal Law in Italy 121 In fact, the Italian legal system is based on the continental system of codification and is composed of binding sources of law organised according to a hierarchical criterion (although a competence criterion is relevant when it comes to national and regional laws). With the Constitution at the pinnacle of the hierarchy, national primary sources are the ordinary law (legge ordinaria) enacted by the national Parliament and the so-called acts having force of law: these are decreto legge and decreto legislativo. In extraordinary cases of necessity and urgency, the Government has the power to approve a law decree (decreto legge), which has to be converted into law by the Parliament within 60 days from enactment; otherwise it loses effect ex tunc. Moreover, the Parliament can delegate the Government to enact—within the object, principles and deadline set out in the so-called parliamentary delegation law (legge delega)—a legislative decree (decreto legislativo); this often occurs in highly technical fields, such as environmental matters. As already mentioned, law decrees and legislative decrees are acts having the force of law. It is worth recalling that Parliament periodically approves a so-called ‘Community Law’ or ‘EU Law’, that is to say a delegation law which lists the EU directives to be transposed and delegates to the Government the enactment of one or more legislative decrees to transpose them. The Constitutional Court is responsible, inter alia, for verifying the constitutionality of laws of the State and of the Regions.8 Where a legal provision is declared unconstitutional by a ruling of the Constitutional Court, this provision ceases to apply as of the day after the ruling is published.

2.  SUBSTANTIVE CRIMINAL LAW PRINCIPLES AND DEFINITION OF ENVIRONMENTAL CRIME

2.1.  Substantive Criminal Law Principles The main substantive criminal law principles and rules relevant to environmental crime (as to any other crime) are set out in the Constitution and in the general part of the Codice penale (Criminal Code, CC). According to Article 27, paragraph 3, Constitution, ‘Punishments … shall aim at re-educating the convicted’. Each incriminating provision provides for the type (ie custodial, pecuniary, custodial or pecuniary, custodial and pecuniary) and minimum and maximum level of penalties for the specific offence. Article 133 CC states that the judge shall determine the actual punishment imposed in light of the seriousness of the offence committed and of the likelihood of the offender to commit other offences; as far as pecuniary penalties are concerned, the judge shall also take into account the economic conditions of the offender (Article 133-bis CC).

8 

See also above n 5.

122  Grazia Maria Vagliasindi The principle of legality (nullum crimen nulla poena sine praevia lege penali) is a fundamental principle of the Italian criminal law system. This principle is laid down in relation to crime and punishment by Article 25, paragraph 2, Constitution and by Article 1 CC. In particular, Article 25, paragraph 2, Constitution states that ‘No punishment may be inflicted except by virtue of a law in force at the time the offence was committed’, and Article 1 CC states that ‘No one shall be punished for an act that is not expressly considered a crime by the law, nor by sanctions that are not established by the law’. Corollaries of the principle of legality are that only the laws of the national Parliament and other sources with the force of law (legislative decrees and law decrees) can introduce criminal provisions; the retroactive application of a criminal law provision in malam partem for the offender is prohibited; filling a vacuum in the criminal legislation by the means of analogy in malam partem for the offender is prohibited; the law must provide a clear and unequivocal definition of the criminal offence.9 Concerning the duties of criminalisation arising from EU directives, only national laws or acts having the force of law—transposing the directives—shall determine the rules concerning the introduction of new criminal offences and provide for criminal sanctions. The legislator should choose to make criminal a certain form of conduct according to the principles of necessity and subsidiarity, that is to say that recourse to criminal sanctions is legitimate, only when other instruments, such as civil or administrative sanctions, appear to be insufficient to protect a specific legal interest and criminal sanctions appear to be an effective tool for the protection of the interest at stake (extrema ratio).10 This is a specification of the more general principle of proportionality, guiding the Italian legislator. Criminal offences are divided into two main categories: felonies (delitti) and misdemeanours (contravvenzioni). The criterion used to distinguish between the two types of criminal offences is a formal one and lies in the different penalties envisaged for the offence (Article 39 CC). Bearing in mind that in the Italian criminal system criminal sanctions are of two types, pene principali (main penalties) and pene accessorie (additional penalties), the distinction between felonies and misdemeanours depends on the main penalty established for the offence. According to Article 17 CC the main penalties provided for felonies are: ergastolo (life imprisonment), reclusione (imprisonment) and multa (heavy fine). The main penalties provided for misdemeanours are: arresto (jail sentence) and ammenda (lighter fine). It is worth recalling that the distinction between felonies and misdemeanours, which are, respectively, more serious and less serious offences, does not only concern the type and level of punishment. In fact, relevant differences in the applicable general rules arise from the qualification of a criminal offence as a felony or 9  On the principle of legality, see G Fiandaca and E Musco, Diritto Penale. Parte generale (Bologna, Zanichelli, 2014) 47–122. 10  Fiandaca and Musco, Diritto Penale, n 9 above, 29–32.

Environmental Criminal Law in Italy 123 as a misdemeanour: this is the case, for instance, for attempts (which are punishable only as they concern felonies), for the statute of limitations (which is considerably shorter in the case of a misdemeanour) and for the rules on mens rea (see below). This said, it should be noted that, according to Article 20 CC, the judge imposes the main penalties; the additional penalties are attached to the conviction by law, as criminal effects of it. The additional penalties provided for in Article 19 CC for felonies are: disqualification from holding public offices, or from exercising a profession or an art; legal disqualification; disqualification from the executive offices of collective entities and enterprises; the inability to contract with a public administration; the termination of an employment; and revocation or suspension of the exercise of parental responsibility. The additional penalties for misdemeanours are: the suspension from the exercise of a profession or an art, or from the executive offices of collective entities and enterprises. An additional penalty for both felonies and misdemeanours is the publication of the decision of conviction. Article 240 CC provides for confisca (confiscation) of criminal assets (instruments of crime and proceeds of crime); this is a security measure that the court, depending on the case, can apply or has to apply if a crime has been committed. It should be noted that, in addition to this general form of confiscation-security measure, the Italian legal system enables other forms of forfeiture and confiscation, including preventive ones applicable in the field of organised crime. Moreover, specific confiscation scenarios, also in the form of an equivalent amount of money, are provided for specific criminal offences. For a form of conduct to be punished, three elements must be ascertained by the judge:11 tipicità (the conduct must contain all the material elements required by the criminal provision, ie the actus reus), antigiuridicità (the lack of causes for justification, ie of circumstances, like self-defence, which authorise or allow a conduct which, per se, contains the required material elements of a crime) and colpevolezza (culpability or guilt, the act must have to be committed with the required mental element, ie the mens rea). As to the actus reus, Articles 40 and 41 CC provide for the rules on causality. In particular, Article 40 CC establishes that No one shall be punished for an act which is criminal according to the law, if the harmful or dangerous event on which the existence of the offence depends was not a consequence of his own act or omission. Failing to prevent an event which one has a legal obligation to prevent shall be equivalent to causing it.

11  According to the so-called tripartite conception of the crime; see, for instance, Fiandaca and Musco, Diritto penale, n 9 above, 190–93.

124  Grazia Maria Vagliasindi It is worth mentioning the decision of the Grand Chamber of the Supreme Court of Cassation (Corte Suprema di Cassazione) in the Franzese case,12 where the Court applied the theory of the condicio sine qua non based on the model of subsumption under scientific laws.13 According to this decision, each cause–effect relation should be subsumed under a ‘scientific law’ (universal or statistical); findings of causation and criminal liability cannot be based merely on increased risk or even a high statistical probability of causation, but rather require resort to a rationally credible ‘covering law’ and proof beyond a reasonable doubt, through ‘particularistic evidence’ specific to the occasion, of the real conditioning efficacy of the conduct at issue in the causal net. As to the causes of justification, those provided by the general part of the CC are: the consent of the person who can dispose of the right that is harmed or endangered by the criminal offence; exercising a right or complying with a duty; self-defence; legitimate use of weapons; and state of necessity. As to mens rea, it is worth mentioning Article 27, paragraph 1, Constitution, which states that ‘Criminal responsibility is personal’. This provision has been interpreted by the Constitutional Court as implicitly banning criminal responsibility based merely on the material element of the crime, and as requiring a culpable personal criminal responsibility; thus, at least negligence must cover the most significant elements of the crime (principle of culpability or guilt).14 Article 42 CC establishes that no one shall be punished for an act or omission designated by the law as a crime, if the act or omission is not voluntary (ie, if it is not committed with ‘coscienza e volontà’, the so-called suitas). No one shall be punished for a fact designated by the law as a felony if he has not committed it intentionally (ie, with ‘dolo’),15 except in cases of ‘beyond the intention’ felonies (delitti preterintenzionali) and negligent felonies (delitti colposi) expressly designated by the law. The law shall define those cases where an event will be otherwise attributed to the actor as a consequence of his act or omission. As to misdemeanours, a person shall

12 

Cass Pen, Sezioni Unite, 11 September 2002, n° 30328, Franzese (2002) Foro italiano 601. the Italian literature, see F Stella, Leggi scientifiche e spiegazione causale nel diritto penale (Milano, Giuffrè, 2000). 14  Corte Costituzionale, 24 March 1988, n° 364, available at: www.cortecostituzionale.it/actionSchedaPronuncia.do?anno=1988&numero=364; Corte Costituzionale, 13 December 1988, n° 1085, available at: www.cortecostituzionale.it/actionSchedaPronuncia.do?anno=1988&numero=1085. 15  It should be noted that dolo of different form and intensity exists: dolo intenzionale, dolo diretto, dolo indiretto, dolo eventuale; therefore the term dolo includes intent, willfulness, knowledge, recklessness. Unless differently specified in the single criminal provision (or unless the structure of the criminal provision implicitly requires a particular form of dolo), a crime is normally punishable when committed with one of the above mentioned declinations of dolo. For synthesis reasons, in this chapter reference will be made to a crime committed ‘intentionally’ or ‘with intent’, or to an ‘intentional conduct’, and this should be read as potentially including all the above mentioned declinations of dolo; no specification concerning the necessity of a particular declination of dolo implicitly arising from the interpretation of the structure of a certain offence will be made. When the criminal provision requires a dolo specifico (ie, a particular aim that the author has to pursue for the offence to be committed, but that is not necessary to be achieved), the expression ‘in order to’ will be used and reference to ‘specific intent’ will be made. 13 In

Environmental Criminal Law in Italy 125 be liable for his own voluntary act or omission, whether intentional or negligent. Article 43 CC establishes that A felony: is intentional, or according to intention, when the harmful or dangerous event which is the result of the act or omission, and on which the law makes the existence of the crime dependant, is foreseen and desired by the actor as a consequence of his own act or omission; is preterintentional, or beyond the intention, when the act or omission is followed by a harmful or dangerous event more serious than that desired by the actor; is negligent, or contrary to intention, when the event, even though foreseen, is not desired by the actor and occurs because of carelessness, imprudence or lack of skill, or of failure to observe laws, regulations, orders or instructions.

It is worth noting that no distinction is made in the legal definition of negligence between serious negligence and simple negligence. The punishment for a criminal offence can be aggravated or mitigated (generally, by one third) if aggravating or mitigating circumstances or factors exist. These circumstances are provided for in the general part of the CC (thus they are applicable to all crimes, provided that the structure of the crime is compatible with the circumstance) as well as by specific criminal provisions or with regard to a specific group of criminal provisions (thus they are only applicable to a specific crime or group of crimes). Concerning the rules on being party to an offence, Article 110 CC establishes that participants in the same crime shall each be subject to the punishment prescribed for that crime. According to the so-called ‘monistic model’, the relevant provisions in the CC do not define (neither they do differentiate between) the possible forms of participation. The judiciary applies Article 110 CC ff to any ‘relevant contribution’ (ie, according to the dominant literature and case law, a contribution which was a conditio sine qua non for the commission of the crime at stake),16 provided at any stage in the planning, organising and executing of a crime, which results in the crime being committed. Finally, it is worth recalling that Legislative Decree No 231 of 8 June 2001 provides for a system of administrative liability of legal persons and collective entities only for the crimes listed therein (in Articles 24 to 25-duodecies), when these crimes are committed in the interest of the legal persons or for their benefit, by an individual acting in a management position or by a person subject to the direction or supervision of the latter, within the corporate body (Article 5). Although expressly qualified as administrative by the legislator, such liability is

16  See G Grasso, ‘Art. 110’ in M Romano and G Grasso, Commentario sistematico del codice penale (Milano, Giuffrè, 2012) 159, 174–86; Cass Pen, Sezioni Unite, 20 September 2005, n° 33748, M ­ annino, available at: www.giurisprudenzapenale.com/wp-content/uploads/2013/09/concorso-esterno-Mannino-SU-33748_2005.pdf.

126  Grazia Maria Vagliasindi considered as having a substantial criminal nature by most of the scholars as well as by the courts.17 The liability does not apply to the State, to local public authorities, to other non-economic public entities or to entities carrying out functions of constitutional relevance (Article 1). The principle of autonomy of the collective entity’s liability should be borne in mind: according to Article 8, the liability of the entity exists even if the offender has not been identified or is not eligible, or if the offence is ruled out for a reason other than amnesty.

2.2.  Definition of Environmental Crime No legal definition of ‘environmental crime’ is provided by the Constitution, the CC or any other statute. Lacking a legal definition, this expression is used by scholars, practitioners and public institutions to refer to statutory offences against the environment punished by the criminal penalties provided by the relevant statute. The distinction between environmental crimes and environmental administrative offences is clear, since the latter are those statutory offences against the environment punished by the administrative sanctions provided by the relevant statute. However, using the concept of ‘environment’ to categorise the relevant criminal offences generates a certain level of ambiguity, which might impact, inter alia, on statistics collected on the environmental crimes investigated, prosecuted or sentenced, which, in turn, might affect the correct allocation of resources and the assessment of the effectiveness of environmental criminal law, particularly when information and data have to be analysed and elaborated at the EU level. This is due to the intrinsic ambiguity which characterises the notion of environment per se and as a legal interest protected by the means of criminal law. In fact, an unequivocal and unanimously accepted definition of ‘environment’ does not exist in Italy. The Constitution of 1948 did not expressly mention the environment among the values to which constitutional protection is granted; however, the Constitution contained some provisions that have allowed the literature and constitutional jurisprudence to develop a legal concept of ‘environment’ and to recognise it as a fundamental value. These provisions are: Article 2, stating that ‘The Republic recognises and guarantees the inviolable rights of the person, as an individual and in the social groups within which human personality is developed’; Article 9, paragraph 2, that safeguards ‘the natural landscape and the historical and artistic heritage of the Nation’; Article 32, that protects health ‘as a fundamental right of the individual and as a collective interest’.

17  On the issue, see G de Vero, La responsabilità penale delle persone giuridiche (Milano, Giuffrè, 2008); Cass Pen, 30 January 2006, n° 3615, Jolly Mediterraneo s.r.l., available at: www.altalex.com/ documents/news/2007/04/20/cassazione-penale-sez-ii-sentenza-30-01-2006-n-3615.

Environmental Criminal Law in Italy 127 Drawing on these provisions, the literature first developed the so-called ‘pluralist theories’.18 Among these theories, Giannini’s approach19 is worth mentioning. He proposed a tripartite classification of the concept of ‘environment’, distinguishing the following three areas: landscape-environment, which includes the protection of cultural heritage and landscape; natural-environment, which focuses on the protection of water, air and soil; and urban-environment, concerning territorial government.20 The increasing attention paid to environmental issues, both at international and European level, led to the development of a unitary notion of ‘environment’. The different elements (water, air, soil) and the different phenomena involved (urban development, landscape conservation) are considered in a unitary perspective; a unitary interest, that is to say the environment, is what is protected.21 The development of a unitary notion of the concept of ‘environment’ was facilitated (among other reasons) by the enactment of Law No 349 of 8 July 1986, establishing the Ministry for the Environment, which in Article 18 recognised, for the first time, the environment as a ‘unitary public interest’. This approach was also adopted by the Constitutional Court, which in two decisions, delivered in 1987, defined the environment as an ‘immaterial, unitary interest, which the legal system considers as a primary and absolute value, recognised and protected by the norms as a juridical interest’.22 In particular, the Constitutional Court, in the decision No 210 of 28 May 1987, expressly refers to the concept of environment as a legal interest, including in this concept all natural and cultural resources; according to this concept, the environment refers to the conservation, the rational management and the improvement of the natural conditions (air, water, soil and territory in all their components), the existence and preservation of the genetic heritage of land and sea, of all plant and animal species inhabiting it in the natural state, and, ultimately, the human person in all his manifestations.

Following Constitutional Law No 3 of 18 October 2001, the Italian Constitution now explicitly mentions the environment, but it does so only in a provision— Article 117—giving the State exclusive legislative powers in ‘the protection of the environment, the ecosystem and the cultural heritage’ (paragraph 2(s)) and at the same time entrusting the enhancement of the cultural and environmental assets to the concurrent competence of the State and the Regions (paragraph 3).23

18 

A Predieri, ‘Paesaggio’ in Enciclopedia del diritto, vol XXXI (Milano, Giuffrè, 1981) 503, 507 ff. See MS Giannini, ‘“Ambiente”: saggio sui diversi suoi aspetti giuridici’ (1973) 23 Rivista trimestrale di diritto pubblico 15–53. 20  On these theories and on the related criticisms, see B Caravita, Diritto pubblico dell’ambiente (Bologna, Il Mulino, 1990) 44. 21  L Siracusa, La tutela penale dell’ambiente (Milano, Giuffrè, 2007) 9 ff. 22  Corte Costituzionale, 28 May 1987, n° 210, available at: www.cortecostituzionale.it/stampaPronu nciaServlet?anno=1987&numero=210&tipoView=P; Corte Costituzionale, 30 December 1987, n° 641 (1987) Giurisprudenza Costituzionale 3788. 23  For more details, see N Lugaresi, ‘Introduction: Italian Environmental Law Framework’ (2010) IUCN Academy of Environmental Law 1; N Lugaresi, Diritto dell’ambiente (Padova, Cedam, 2012) 3. 19 

128  Grazia Maria Vagliasindi The Constitution (as amended) does not, indeed, provide a specific definition of ‘environment’; it only considers the environment as a legislative subject-matter and includes it in the system of division of legislative competences between the State and the Regions. However, the constitutional legislator—in giving the State exclusive legislative power in matters concerning the ‘protection of the environment’ and, at the same time, in considering as matters of concurrent competence those relative to ‘territorial government’ and ‘promotion of the environmental and cultural assets’—seems to adhere to a notion of environment that sees it as separate from other areas of law, such as the preservation of cultural heritage. Therefore, according to some legal scholars, Article 117 Constitution appears to provide for a concept of environment interpreted in an ‘ecological’ sense, including all the physical and chemical conditions existing in nature, necessary to ensure the survival of living organisms, without any consideration for artificial elements modified or created directly by humans.24 A wider notion of ‘environment’ arises from Legislative Decree No 152 of 3 April 2006 (the so-called Environmental Code). The Environmental Code represents a milestone in Italian environmental legislation, since it aimed to harmonise the sectorial laws that up to that moment had been regulating the main environmental issues: water protection, soil and waste management, air protection. The Environmental Code also covers environmental impact assessment, strategic environmental assessment and integrated environmental authorisation (the IPPC25 permit), as well as environmental liability. However, it should be noted that relevant environmental sectors, such as for example protection of flora and fauna, are covered by different statutes. This said, it is worth recalling Article 5(c) Environmental Code, which states that, for the purposes of the Code, ‘environmental impact’ is the direct or indirect, short or long term, permanent or temporary, single or cumulative, positive or negative qualitative and/or quantitative alteration of the environment, intended as a system of relationships between human, physical, chemical, natural, climatic, landscape, architectural, cultural and economic factors, as a result of the implementation in the territory of plans, programmes or projects related to particular installations, works or public or private interventions, as well as of the realisation of related activities (emphasis added).

However, it is worth noting that, although Article 5 gives the definition of environmental impact for the purposes of the Code, the definition is provided in the context of provisions specifically concerning environmental impact assessments; therefore it is highly questionable whether an autonomous and truly general definition of ‘environment’, relevant also for the purposes of criminal law, is contained in the Environmental Code. 24 Siracusa, La

tutela penale dell’ambiente, n 21 above, 29. required under Council Directive 96/61/EC of 24 September 1996 on integrated pollution prevention and control [1996] OJ L 257/26, later replaced by Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions [2010] OJ L 334/17. 25  As

Environmental Criminal Law in Italy 129 With specific reference to criminal law, it is worth recalling that until 2015 environmental crimes in Italy almost exclusively consisted of misdemeanours, provided for by the Environmental Code (as it concerns water, waste and air) as well as by numerous other statutes (see below, section 3.1.1). As to their structure, these misdemeanours consist of abstract endangerment offences that, for the most part, result from non-compliance with administrative provisions.26 According to some legal scholars, the interest protected by this kind of provision is not the environment per se, but rather the interest of the public administration in governing the territory.27 In this perspective, the interest of the public administration in governing the territory is the final protected interest, while the environment (or its components) is the intermediate protected interest; it is worth noting that, adhering to this interpretation might have consequences for the qualification of the structure of the criminal offence in terms of abstract endangerment, concrete endangerment or harm. Law No 68 of 22 May 2015 introduced into the CC a new chapter on felonies against the environment (see below, section 3.1.3). Bearing in mind that these felonies are additional to the pre-existing environmental crimes, it should be noted that some of these felonies punish the concrete endangerment of the environment or the actual harm to the environment. In particular, Article 452-bis CC punishes as ‘environmental pollution’ unlawfully (abusivamente) causing a significant and measurable compromise (compromissione) or deterioration (deterioramento): (i) of water or air, or of wide or significant portions of soil or subsoil; (ii) of an ecosystem, biodiversity, flora or fauna. In criminalising the pollution of the environment, Article 452-bis CC implicitly provides for a definition of environment as the material object of the conduct and interest protected by the means of criminal law. From this perspective, environmental crime could be defined as a crime affecting water, air, significant portions of soil or subsoil, an ecosystem, biodiversity, flora or fauna. It should be recalled that the conduct at stake (as well as that of environmental disaster and trafficking and abandonment of highly radioactive material) has to be committed ‘abusivamente’. This expression has been severely criticised by part of the literature, among other reasons, for excessively limiting the scope of the new provisions, as it would require the offender to act clandestinely, thus implying that conduct of environmental pollution (or environmental disaster) committed within an authorised activity would

26  On administrative dependence of environmental criminal law, see, among others, M Catenacci, La tutela penale dell’ambiente (Padova, Cedam, 1996) 51; Siracusa, La tutela penale dell’ambiente, n 21 above, 87; C Bernasconi, Il reato ambientale. Tipicità, offensività, antigiuridicità, colpevolezza (Pisa, ETS, 2008) 37. 27  See R Bajno, La tutela penale del governo del territorio (Milano, Giuffrè, 1980); P Patrono, Inquinamento industriale e tutela penale dell’ambiente (Padova, Cedam, 1980). On the concept of environment in a criminal law perspective, see F Giunta, ‘Il diritto penale dell’ambiente in Italia: tutela di beni o tutela di funzioni?’ (1997) Rivista italiana di diritto e procedura penale 1097.

130  Grazia Maria Vagliasindi not be punishable.28 According to a different interpretation, ‘abusivamente’ means unlawfully, ie it requires that the offender acts in violation of a normative provision or in violation of administrative prescriptions (for instance, those established in an environmental permit).29 Thus, this requirement, which expresses the administrative dependence of the newly introduced felonies, will have an impact on the interpretation of the criminal offences at stake. It is also worth recalling that Article 452-sexies CC punishes the ‘Trafficking and abandonment of highly radioactive material’; although the felony is structured as an abstract endangerment offence, one may argue that radioactive pollution is considered as falling under the category of environmental crime.

3.  ENVIRONMENTAL CRIMINAL LAW AND TRANSPOSITION OF THE ECD

In light of the previous considerations, it is now worth setting out the main environmental law provisions and explaining how these provisions transpose the ECD, including gaps in the transposition and those elements that are additional or go beyond the ECD.

3.1.  The Main Environmental Criminal Law Provisions Environmental criminal law in Italy can be analysed by using three points of reference: (a) the provisions already existing before the transposition of the ECD; (b) the additional provisions introduced by Legislative Decree No 121 of 7 July 2011 transposing the ECD as well as Directive 2009/123/EC (the Ship-source Pollution Directive);30 (c) the additional provisions introduced by Law No 68/2015. 3.1.1.  The Pre-existing Provisions A system of environmental criminal provisions, applicable to natural persons only, was already in force before the transposition of the ECD. Crimes concerning the violation of the provisions on integrated environmental authorisation (the IPPC permit) as well as crimes on water, waste management and air are mainly provided for by the Environmental Code; it is worth mentioning that the

28  See for instance, with regard to the draft Bill, G Amendola, ‘Delitti contro l’ambiente: arriva il disastro ambientale “abusivo”’ (17 March 2015) Lexambiente.it, available at: www.lexambiente.com/ materie/ambiente-in-genere/188-dottrina188/11372-ambiente-in-genere-delitti-contro-l-ambientearriva-il-disastro-ambientale-abusivo.html. 29  See C Ruga Riva, Diritto penale dell’ambiente (Torino, Giappichelli, 2016) 244–47. 30 Directive 2009/123/EC of the European Parliament and of the Council of 21 October 2009 amending Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements [2009] OJ L 280/52.

Environmental Criminal Law in Italy 131 Environmental Code does not contain all the criminal provisions relevant to those sectors (for instance, crimes concerning landfills are also provided for in other statutes). Numerous other environmental crimes falling under the scope of the ECD, for instance those on trade in endangered species of flora and fauna, or those on trading in ozone-depleting substances, are provided for in other statutes.31 It is worth noting that those crimes are, with a few exceptions in the sector of waste, misdemeanours; they are separately considered according to whether they affect or concern water, waste and soil pollution, air, protected species, ozonedepleting substances, genetically modified organisms (GMOs), etc. It should be noted that four different types of environmental misdemeanours can be identified: (1) crimes related to the exercise of an activity without the required permit or with a suspended or revoked permit (for instance, as to criminal provisions concerning water, Article 137, paragraph 1, Environmental Code; concerning waste, Article 256, paragraph 1, Environmental Code; and concerning air, Article 279, paragraph 1, Environmental Code); (2) crimes consisting of failure to provide relevant information to the public authority (see, for instance, Article 137, paragraph 7, Environmental Code, and Article 279, paragraph 3, Environmental Code concerning, respectively, water and air); (3) crimes consisting of exceeding the established pollutant thresholds (see, for instance, Article 137, paragraph 5, Environmental Code, and Article 279, paragraph 2, Environmental Code, concerning, respectively, water and air); (4) crimes related to the violation of an order issued by the public administration (see, for instance, Article 137, paragraph 12, Environmental Code, Article 256, paragraph 4, Environmental Code, and Article 279, paragraph 2, Environmental Code, concerning respectively water, waste and air). As to the structure, as previously mentioned, environmental misdemeanours consist of abstract endangerment crimes. The choice of the legislator to use the model of abstract endangerment offence can be explained by taking into account the difficulties in proving the causal link between the conduct and the event of concrete endangerment of, or harm to, the environment; difficulties that could lead in many cases to the inapplicability of harm or concrete endangerment-based criminal provisions. For the most part, environmental misdemeanours result from non-compliance with administrative provisions. According to some scholars, the dependency of criminal law on administrative law in the environmental field ensures a balance of the different interests involved by the administrative authority, which considers the value of environmental protection as well as the economic production needs.32 Other scholars have criticised this model of environmental 31  32 

For an overview, see Milieau, ‘Evaluation Study’, n 7 above, 16–18. See Catenacci, La tutela penale dell’ambiente, n 26 above, 106.

132  Grazia Maria Vagliasindi crime because of its non-compliance with fundamental principles of Italian criminal law, such as the requirement of a clear and express definition of the offence by law and the harm principle.33 Thus, before the transposition of the ECD, Italian environmental criminal law relied almost exclusively on abstract endangerment misdemeanours which fall outside the CC and do not constitute an organic system of provisions, being the result of several interventions of the Italian legislator in different environmentrelated fields. In relation to the ECD requirements, it should be noted that the model of abstract endangerment—in allowing the imposition of a criminal sanction without the need to prove a concrete endangerment or harm to the environment or to the life or health of people—in theory goes beyond what is required by several provisions of the ECD. In fact, Articles 3(a), 3(b), 3(d) and 3(e) ECD require Member States to criminalise the conduct listed therein (respectively: discharge, emission or introduction of a quantity of materials or ionising radiation into air, soil or water; the collection, transport, recovery or disposal of waste, including the supervision of such operations and the aftercare of disposal sites, and including action taken as a dealer or a broker; the operation of a plant in which a dangerous activity is carried out or in which dangerous substances or preparations are stored or used; the production, processing, handling, use, holding, storage, transport, import, export or disposal of nuclear materials or other hazardous radioactive substances) if they cause or are likely to cause ‘death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants’. Thus, the Italian abstract endangerment misdemeanours might be seen as providing a wider criminal protection than the minimum one required by the above-mentioned ECD provisions.34 However, this assumption should be read in light of the overall obligations arising from the ECD—which requires Member States not only to criminalise conduct listed therein, but also to provide for such conduct effective, proportional and dissuasive criminal penalties—as well as of the overall characteristics of Italian criminal law and criminal procedure. In Italy, as a general rule, custodial sanctions for misdemeanours cannot exceed three years. These can be exclusive, cumulative or alternative to a pecuniary criminal sanction; finally, a pecuniary criminal sanction can be the only sanction provided for an environmental misdemeanour. A few examples, concerning the water sector, can provide an idea of criminal penalties in the law. According to Article 137, paragraph 1, Environmental Code, except in the cases sanctioned

33 See F Giunta, ‘Ideologie punitive e tecniche di normazione nel diritto penale dell’ambiente’ (2002) 15 Rivista trimestrale di diritto penale dell’economia 845, 851. 34  For this position, see for instance C Ruga Riva, Diritto penale dell’ambiente (Torino, Giappichelli, 2011) 66 f.

Environmental Criminal Law in Italy 133 under Article 29-quattuordecies, paragraph 1, Environmental Code (concerning sites which fall under the IPPC rules), whoever opens or otherwise performs a new discharge of industrial wastewater without authorisation, or continues or maintains the discharges after the authorisation has been suspended or revoked, shall be punished by a jail sentence of between two months and two years or by a fine of €1,500 to €10,000. When the described conduct concerns the discharge of industrial wastewater containing dangerous substances indicated in tables five and 3/A of Annex 5 to part III of the Code, the penalty is a jail sentence of between three months and three years and a fine of €5,000 to €52,000 (Article 137, paragraph 2). Except in the cases sanctioned under paragraph 5 of this Article or under Article 29-quattuordecies, paragraph 3, Environmental Code, a jail sentence of up to two years applies in case of discharge of industrial wastewater containing dangerous substances indicated in tables five and 3/A of Annex 5 to part III of the Code, in violation of the requirements of the authorisation or the other requirements imposed by the competent authority (Article 137, paragraph 3). Unless the fact constitutes a more serious crime, whoever, in relation to the dangerous substances indicated in table five of Annex 5 to part III of the Code, in discharging industrial wastewater, exceeds the threshold limits indicated in tables three or four of Annex 5, or exceeds the stricter limits set out by the competent authority according to Article 107, paragraph 1 Environmental Code, is punishable by a jail sentence of up to two years and a fine from €3,000 to €30,000; in case of exceeding also the thresholds limits for the particularly dangerous substances indicated in table 3/A of Annex 5 to part III of the Code, the conduct is punishable by a jail sentence of between six months and three years and a fine from €6,000 to €120,000 (Article 137, paragraph 5). The violation of the prohibitions on discharge into the soil, underground water and groundwater is punishable by a jail sentence of up to three years (Article 137, paragraph 11). The discharge into the sea by ships and aircraft of substances prohibited from being spilled is punishable by a jail sentence of between two months and two years (Article 137, paragraph 13). While in theory these penalties can be considered appropriate to the content of the offences they refer to, in practice it cannot be underestimated that significant structural effects accompany the qualification of a crime as a misdemeanour. In particular, if the misdemeanour model, on the one hand, implies that criminal conduct is relevant when committed both intentionally and negligently, on the other hand it results in a restriction of the concrete imposition of criminal sanctions due to general rules, for example those on the statute of limitations, which negatively affects their deterrent effect.35 The sanctions for environmental misdemeanours are of uncertain practical application and therefore of limited

35  GM Vagliasindi, ‘The European Harmonisation in the Sector of Protection of the Environment through Criminal Law: The Results Achieved and Further Needs for Intervention’ (2012) 3 New Journal of European Criminal Law 320, 328 ff.

134  Grazia Maria Vagliasindi effectiveness from the perspective of a strong fight against environmental crimes.36 The misdemeanour nature of environmental crimes also implies a limitation of the investigation methods available to investigators (for instance, the use of wiretapping is not allowed) as well as the inapplicability of personal precautionary measures; it involves short limitation periods and the frequent possibility that the crime will be extinguished through the payment of a sum of money (oblazione comune or oblazione speciale, depending on the case) or a conditionally suspended sentence.37 Moreover, attempted violations are not punishable. Thus, the almost exclusively misdemeanour nature of the vast majority of environmental crime negatively affects the enforcement of environmental criminal law and compliance with the ECD obligations of effective, proportional and dissuasive criminal penalties for serious environmental violations. The choice of not classifying the most serious environmental offences as felonies (delitti) was therefore deemed to be one of the causes of the ineffectiveness of Italian environmental criminal law.38 Few felonies actually existed concerning waste, such as Article 260 Environmental Code on organised activities for the illegal trafficking of waste, providing for the imprisonment from one to six years of whoever, in order to achieve an unfair profit, with multiple operations and through the establishment of means and continuing organised activities, sells, receives, transports, exports, imports or otherwise improperly handles large quantities of waste (paragraph 1). If waste is highly radioactive, imprisonment from three to eight years applies (paragraph 2). According to paragraph 3, in case of conviction, the additional penalties set out in Articles 28, 30, 32-bis and 32-ter CC apply, with the limitations of Article 33 CC. The judge, in case of conviction or plea bargaining, orders the restoration of environmental status and may grant a conditional suspension of the sentence on condition of elimination of the damage or danger to the environment (paragraph 4). In addition, in the absence of specific criminal provisions covering the most serious cases of environmental pollution, the judiciary used general criminal provisions, for example felonies against public safety, to address serious cases of pollution which caused endangerment to public safety. This is the case for Articles 434 and 449 CC, a felony against public safety: the reference to ‘another disaster’ contained therein (so-called ‘unnamed disaster’, ‘disastro innominato’), has in several cases been used by the judiciary to cover the alleged causation of an environmental disaster;39 it should be noticed that this judicial trend has been criticised in the literature, for being both illegitimate and/or ineffective.40 36  See L Lotti, ‘Complessità degli illeciti ambientali ed evoluzione di metodi e strategie di accertamento’ in B Romano (ed), I reati ambientali alla luce del diritto dell’Unione europea (Padova, Cedam, 2013) 89, 103. 37  GM Vagliasindi, ‘Liability of Legal Persons and Collective Entities for Environmental Crimes in Italian Law’ (2012) 3 Eucrim 131. 38  Vagliasindi, ‘The European Harmonisation’, n 35 above. 39  GM Vagliasindi, Attività d’impresa e criminalità ambientale: La responsabilità degli enti collettivi (Catania, Torre, 2012) 28 ff. 40  See, ex multis, C Piergallini, Danno da prodotto e responsabilità penale: Profili dogmatici e politicocriminali (Milano, Giuffrè, 2004) 280; A Gargani, Reati contro l’incolumità pubblica in CF Grosso,

Environmental Criminal Law in Italy 135 In this framework, environmental criminal law was still, in some respects, characterised by a multitude of sectoral offences, sometimes focused on formal violations, and as such was far away from the idea of criminal law as an ultima ratio; in other respects, Italian environmental criminal law was inadequate, to the extent that individual criminal conduct that is very harmful to the environment could not be adequately punished and legal persons and other collective entities could not be held responsible for environmental crimes.41 3.1.2.  The Provisions Introduced by Legislative Decree No 121/2011 The legislation in place before the adoption of the ECD was not amended for transposition of the Directive, as the offences already provided by law were deemed sufficient to ensure conformity with Article 3(a), (b), (c), (d), (e), (g), (i) ECD. However, it should be noted that, as to Article 3(a), the violations of some of the directives listed in Annexes A and B to the ECD did not have a corresponding criminal offence under Italian law;42 moreover, the conduct listed in Article 3(g) ECD was only partially covered, since criminal offences were provided for unlawful trade in endangered species, but not for trade in derivatives thereof (for which administrative offences are provided).43 Legislative Decree No 121/2011, transposing the ECD and Ship-source Pollution Directive, introduced two new environmental misdemeanours into the CC— Articles 727-bis and 733-bis—to cover conduct respectively listed in Article 3(f) and (h) ECD, which were not yet criminalised under Italian environmental criminal law. According to Article 727-bis CC, unless the fact constitutes a more serious crime, whoever, except in permitted cases, kills, captures or possesses specimens of protected wild fauna shall be punished by a jail sentence of between one and six months or by a fine of up to €4,000, except for cases where the conduct concerns a negligible quantity of such specimens and has a negligible impact on the conservation status of the species. According to Legislative Decree No 121/2011, for the

T Padovani and A Pagliaro (eds), Trattato di diritto penale Parte speciale, vol IX, Tomo I (Milano, Giuffrè, 2008) 468 ff; G De Santis, Diritto penale dell’ambiente: Un’ipotesi sistematica (Milano, Giuffré, 2012) 166 ff; Vagliasindi, Attività d’impresa, n 39 above, 32; AL Vergine, ‘Il c.d. disastro ambientale: l’involuzione interpretativa dell’art. 434 cod. pen. (parte prima)’ (2013) Ambiente & Sviluppo 535; AL Vergine, ‘Il c.d. disastro ambientale: l’involuzione interpretativa dell’art. 434 cod. pen. (parte seconda)’ (2013) Ambiente & Sviluppo 644; E Rosi, ‘Brevi note in tema di “dis-astro” ambientale’ (16 Aprile 2015) Diritto penale contemporaneo 1, 8 ff, available at: www.penalecontemporaneo.it/ materia/3-/32-/-/3828-brevi_note_in_tema_di___dis_astro___ambientale/. The Constitutional Court, with the judgment 1 August 2008, No 327, available at: www.cortecostituzionale.it/actionSchedaPronuncia.do?anno=2008&numero=327, exhorted the legislator to introduce a specific criminal offence covering environmental disaster. 41 

Vagliasindi, ‘Liability of Legal Persons’, n 37 above, 132. See Milieau, ‘Evaluation Study’, n 7 above, 19–20. 43  See Milieau, ‘Evaluation Study’, n 7 above, 22–23. 42 

136  Grazia Maria Vagliasindi purposes of Article 727-bis CC, ‘protected wild animal or plant species’ are ‘those listed in Annex IV to Directive 92/43/EC and Annex I to Directive 2009/147/EC’. The expression ‘unless the fact constitutes a more serious crime’ refers to similar offences punished more severely, such as, for instance, Article 544-bis CC (killing of animals).44 According to the literature, the material scope of the new p ­ rovision is very limited; in particular, it seems to refer only to the negligent killing of animals committed while hunting; the only profile of increased protection with respect to the previous legislative framework is related to the negligent killing of protected wild fauna.45 Article 727-bis, paragraph 2, CC states that whoever, except in permitted cases, destroys, removes or holds specimens of protected wild plant species shall be punished by a fine of up to €4,000, other than in cases where the conduct concerns a negligible quantity of such specimens and has a negligible impact on the conservation status of the species. As mentioned above, Legislative Decree No 121/2011 specifies the concept of protected wild plant species. The provision fills a gap in the protection of protected wild plant species, since, before its introduction, under Italian law criminal offences concerning protected wild plant species punished only the different conduct of import, trade, etc, committed without the required authorisation and documentation.46 The protected legal interest in both paragraphs of Article 727-bis CC is the conservation status of the species.47 Legislative Decree No 121/2011 also introduced Article 733-bis CC, concerning habitats. According to this provision, whoever, except in permitted cases, destroys a habitat within a protected site, or otherwise deteriorates it compromising the state of preservation, shall be punished by a jail sentence of up to 18 months and a fine of not less than €3,000. In order to apply Article 733-bis CC, the expression ‘habitat within a protected site’ refers to any habitat of species for which an area is classified as a special protection area according to Article 4, paragraphs 1 or 2 of Directive 2009/147/EC, or any natural habitat or a habitat of species for which a site is classified as a special area of conservation under Article 4, paragraph 4 of Directive 92/43/EC. The provision contains two forms of criminal conduct: destruction of a habitat within a protected site, on the one hand, and deterioration compromising its state of preservation, on the other. The first one concerns cases where a habitat is completely destroyed; the second situation is more difficult to identify. Article 733-bis CC was inserted into Title II of Book III CC dealing with

44  C Ruga Riva, ‘Il decreto legislativo di recepimento delle direttive comunitarie sulla tutela penale dell’ambiente: nuovi reati, nuova responsabilità degli enti da reato ambientale’ (8 August 2011) Diritto penale contemporaneo 1, 2 f, available at: www.penalecontemporaneo.it/upload/RUGA%20RIVA%20 2011%20AMBIENTE.pdf. 45  See Ruga Riva, ‘Il decreto legislativo’, n 44 above, 3. 46  See Ruga Riva, ‘Il decreto legislativo’, n 44 above, 5. 47 See L Pistorelli and A Scarcella, ‘Novità legislative: D. lgs. 7 luglio 2011, n. 121’ (Relazione dell’Ufficio del Massimario presso la Corte Suprema di Cassazione, Roma, August 2011) 1, 9, available at: www.penalecontemporaneo.it/upload/Relazione%20Pisto%20Scarce.pdf.

Environmental Criminal Law in Italy 137 ‘misdemeanours concerning the social activity of the public administration’; this location has been criticised by some scholars, since Article 733-bis CC does not punish the violation of administrative regulations, but rather the damage (in case of destruction) or the concrete endangerment (in the other cases) of a ‘habitat within a protected site’, which represents the protected legal interest.48 In addition to the introduction of these new misdemeanours into the CC, Legislative Decree No 121/2011 also introduced the liability of legal persons and collective entities for environmental crimes. Legislative Decree No 121/2011 extends to some listed environmental crimes the system of administrative liability of legal persons and collective entities for crimes committed in their interest or for their benefit, as provided by Legislative Decree No 231/2001.49 In particular, Article 25-undecies of Legislative Decree No 231/2001, introduced by Legislative Decree No 121/2011, provides for the liability of collective entities in relation to some of the crimes referred to in Legislative Decree No 152/2006. This encompasses almost all crimes therein relating to waste management and the clean-up of contaminated sites, some crimes concerning the protection of waters against pollution, and one crime concerning air protection and the reduction of emissions into the atmosphere. Article 25-undecies, Legislative Decree No 231/2001, also provides for the liability of collective entities in relation to those environmental crimes already provided for by Italian law and deemed to meet the additional obligations imposed by the ECD and Ship-source Pollution Directive with regard to the protection of the ozone layer, trade in protected species, and pollution caused by ships. Article 25-undecies, Legislative Decree No 231/2001, finally, includes Articles 727-bis and 733-bis CC, introduced in order to comply with the obligations of criminal protection imposed by the ECD on protected wild animals and plant species and protected habitats. It is worth mentioning the exclusion from Article 25-undecies of criminal offences in the field of integrated environmental authorisation (the IPPC permit) and abandonment of waste.50 With regard to sanctions, Article 25-undecies, Legislative Decree No 231/2001, provides for a fine (sanzione amministrativa pecuniaria, pecuniary administrative sanction) in relation to all predicated offences listed therein. This system of pecuniary sanctions is based on so-called ‘shares’ (quote); it is inspired by, although it is not identical to, the German model of Tagessätze (daily units).51 The sentencing ranges prescribed by law are diversified according to the seriousness of such

48 

Ruga Riva, ‘Il decreto legislativo’, n 44 above, 5. For a more detailed analysis of this topic, see Vagliasindi, ‘Liability of Legal Persons’, n 37 above, 131–37, on which the considerations on Legislative Decree No 231/2001 are based; GM Vagliasindi, ‘Enti collettivi e reati ambientali tra responsabilità “penale” e “responsabilità sociale’ in B Montanari (ed), La costruzione dell‘identità europea. Sicurezza collettiva, libertà individuali e modelli di regolazione sociale, Tomo I (Torino, Giappichelli, 2012) 367–454 and literature referred to therein. 50  Vagliasindi, ‘Enti collettivi’, n 49 above, 417 ff. 51  C de Maglie, ‘Principi generali e criteri di attribuzione della responsabilità’ (2001) Diritto Penale e Processo 1348, 1349; de Vero, La responsabilità penale, n 17 above, 317. 49 

138  Grazia Maria Vagliasindi offences. It can be observed that, for the most part, the highest sanctions provided in relation to offences covered by Article 25-undecies are between 150 and 250 shares. In the light of the general criteria for the determination of each share (Article 10, Legislative Decree No 231/2001), the shares imply the applicability of sanctions, at a maximum between €232,350 and €387,250. Much more severe is the range from a minimum of 400 to a maximum of 800 shares, provided for the most serious crime listed in Article 25-undecies, namely the felony of organised activities for the illegal trafficking of radioactive waste (Article 260, paragraph 2, Environmental Code): this involves the applicability of a maximum fine of €1,239,200. Besides the fine, interdicting sanctions—a very important tool to discourage corporate environmental crime and to encourage environmental restoration—are provided, for a period not exceeding six months, in case of conviction for the crimes of unauthorised discharge of industrial wastewater containing dangerous substances; exceeding the thresholds given in table 3/A of Annex 5 to part III Environmental Code when discharging industrial wastewater; violation of the prohibition on discharge into the soil, groundwater, and underground water; construction and management of an unauthorised landfill of dangerous waste; organised activities for the illegal trafficking of waste; intentional discharge of pollutants at sea by vessels causing harm to the sea and negligent discharge of pollutants at sea by vessels causing harm to the sea. The interdicting sanctions, which are listed in Article 9, paragraph 2, Legislative Decree No 231/2001, are: the prohibition to carry out the activity at stake; the suspension or revocation of authorisations or permits connected to the perpetration of the crime; the prohibition to make agreements with the public administration (with the exception of those aimed at obtaining a public service); the barring from obtaining public subsidies and the eventual revocation of those already obtained; the prohibition of advertising goods and services. Definitive interdiction from carrying out the activity is provided for when the collective entity or one of its units is permanently used for the sole or main purpose of enabling or facilitating the commission of the crimes of organised activities for the illegal trafficking of waste and intentional spills of pollutants at sea by vessels. After a long time and having been advocated by many,52 the extension of the system of liability for collective entities to listed environmental crimes brought a very significant change to the Italian system of environmental protection, in that it provided for a relevant tool to tackle environmental crime more effectively, given the connection between environmental crimes and business activities.53 However, while a radical renovation of environmental criminal law was expected by the transposition of the ECD, environmental criminal law remained basi-

52 

See for instance Siracusa, La tutela penale dell’ambiente, n 21 above, 526. ‘Liability of Legal Persons’, n 37 above, 131; Vagliasindi, ‘Enti collettivi e reati ambientali’, n 49 above, 387 ff. 53 Vagliasindi,

Environmental Criminal Law in Italy 139 cally unchanged, except for the introduction into the CC of Articles 727-bis and 733-bis. This was due to the fact that one of the criteria of the delegation Law No 96 of 4 June 2010 concerned the kind and range of penalties, involving the creation of misdemeanours rather than felonies:54 Therefore, Italian environmental criminal law still lacked those ‘effective, proportionate and dissuasive’ criminal penalties required by the ECD, for unlawful conduct which causes a concrete endangerment or harm to the various components of the environment or to the life and health of people.55 3.1.3.  The New Provisions Introduced by Law No 68/2015 Further progress has been made by Law No 68/2015. As previously mentioned, Law No 68/2015 sets out a new chapter in the CC (Title VI-bis), introducing new felonies against the environment, and extends the regime of administrative liability of legal persons and collective entities for crimes committed in their interest or for their benefit to the newly-introduced environmental felonies; in addition, Law No 68/2015, inter alia, modifies the penalties for some environmental misdemeanours on wildlife trade and amends the Environmental Code by providing for the possibility of the extinction of some misdemeanours provided therein through their regularisation (see below, section 5). Among the newly-codified offences, as mentioned above (see section 2.2 above) Article 452-bis CC—‘environmental pollution’—punishes with imprisonment (from two to six years) and a fine (from €10,000 to €100,000) whoever unlawfully causes a significant and measurable compromise or deterioration: (i) of water and air, or of significant or wide portions of soil or subsoil; (ii) of an ecosystem, biodiversity, flora or fauna. The sentence is increased by up to one-third if the pollution occurs in a protected natural area, a zone subject to landscape, environmental, historic, artistic, architectural or archaeological restriction, or if it concerns endangered animal or plant species. If the environmental pollution causes deaths or bodily harm, sentences are harsher (Article 452-ter CC). Article 452-quater CC—‘environmental disaster’—punishes with imprisonment from five to 15 years whoever, except in cases provided for in Article 434 CC, unlawfully causes an ‘environmental disaster’. This term is defined as alternatively: (i) the irreversible alteration of the equilibrium of an ecosystem; (ii) the alteration of the equilibrium of an ecosystem whose elimination is particularly costly and can be undertaken only through exceptional measures; (iii) the offence to public safety, determined by reason of the relevance of the fact owing to the extent of the compromise or its harmful effects, or to the number of people affected or exposed to danger. Also in this case the sentence is increased by up to one-third if the pollution occurs in a protected natural area, a zone subject to landscape,

54  55 

Vagliasindi, ‘Liability of Legal Persons’, n 37 above, 131. Vagliasindi, ‘Liability of Legal Persons’, n 37 above, 132.

140  Grazia Maria Vagliasindi environmental, historic, artistic, architectural or archaeological restriction, or if it concerns endangered animal or plant species. According to Article 452-quinquies CC—‘felonies against the environment committed with negligence’—if environmental pollution or environmental disaster are committed with negligence, the sentence is reduced by between onethird and two-thirds. If there is a danger of environmental pollution or disaster, sentences are reduced by another third; thus concrete endangerment scenarios of environmental pollution and environmental disaster have been also introduced. Article 452-sexies CC—‘Trafficking and abandonment of highly radioactive material’—punishes with imprisonment for between two and six years and a fine of €10,000 to €50,000 whoever, unless the conduct constitute a more serious crime, unlawfully sells, purchases, receives, transports, imports, exports, provides to others, holds, transfers, abandons or unlawfully disposes of highly radioactive material. If a danger of environmental pollution arises from the conduct, the punishment is harsher, as it is if a danger to the life or the safety of people arises from the conduct. Article 452-septies CC—‘hindrance to controls’—punishes with imprisonment (for between six months and three years) whoever, unless the fact constitutes a more serious crime, impedes, creates obstacles to or avoids environmental and work place safety’s surveillance and control activities, or compromises the outcomes of such activities. According to Article 452-terdecies CC—‘Omitted clean-up’—whoever, bound by the law or by an order of the court or of a public authority, fails to clean-up, restore or recover the state of the premises, is punishable with imprisonment for between one and four years and with a fine of €20,000 to €80,000 (unless the fact constitutes a more serious criminal offence). Article 452-novies CC provides for an environmental aggravating circumstance; in particular, it operates when a fact already considered as a crime is committed in order to perform one or more of the felonies referred to in the new Title VI-bis CC on felonies against the environment, Legislative Decree No 152/2006 or other provision of law for the protection of the environment (aggravation from onethird to one half), or if the commission of the fact causes the violation of one or more provisions of Legislative Decree No 152/2006 or any other environmental protection law (aggravation by one-third). Article 452-octies CC features specific environmental aggravating factors for the felonies of participation in a criminal association and participation in a mafiatype criminal association, provided for by Articles 416 and 416-bis CC; thus, if the association aims at committing the newly introduced environmental felonies (or, in the case of the mafia-type association, also to obtain control of economic activities, authorisations, tenders or public services in environmental matters) the punishment is harsher than if it aims at committing other crimes (or to obtain the control of the above-mentioned activities in non-environmental matters). The sentence is further increased by one-third if public officers or people in charge of public services carrying out environmental tasks or functions participate in the

Environmental Criminal Law in Italy 141 criminal association or in the mafia-type criminal association. These aggravating circumstances have been introduced as a response to the involvement of organised crime in the commission of environmental crime in Italy; however, the sentences resulting from these aggravating circumstances appear not to be a fully reasonable response when compared to those for the involvement of organised crime in the commission of other serious (or even more serious) crimes. Article 452-decies introduces the principle of voluntary disclosure or active repentance for the newly introduced felonies, the environmentally aggravated participation in a criminal association and the felony provided for by Article 260 Environmental Code. In particular, whoever tries to prevent the criminal activity from resulting in further negative consequences or, before the trial of first instance begins, concretely provides for securing, clean-up and, if possible, restoration of the premises shall benefit from a reduction of the penalty by between one half and two-thirds. The judge may suspend the trial for up to three years in order to allow the above mentioned activities to be undertaken (and the statute of limitations is also suspended). It is worth noting that reclaiming polluted areas mitigates punishment (and excludes confiscation), but does not exclude punishability for the felonies (whereas, pursuant to paragraph 4 of Article 257 Environmental Code, reclaiming polluted areas according to the procedure set out in part IV of the Environmental Code excludes punishability for environmental misdemeanours).56 It is worth adding that a reduction of penalty is also provided for those who collaborate with the relevant authority in finding the offenders. Article 452-undecies CC establishes that, in case of conviction or plea bargain for the felonies of environmental pollution or disaster, trafficking and abandonment of highly radioactive material, hindrance to controls and environmentally aggravated participation in criminal associations, mandatory confiscation (also of an equivalent amount of money) of items which have been produced by, earned through or used for committing the felonies applies (unless such items belong to people not involved in the crime). Mandatory confiscation is now also established for the felony provided for by Article 260 Environmental Code. It is worth noting that, according to Article 452-undecies CC, confiscated proceeds of environmental crimes are made available to the competent environmental administrative authorities to be used for the clean-up of the premises; at the same time, confiscation is not possible if the offender effectively provided for securing and, if necessary, clean-up and restoration of the previous condition of the premises. Article 452-duodecies CC establishes that in the event of a conviction or plea bargaining for the newly introduced felonies, the judge must order the recovery and, if possible, the restoration of the previous condition of the premises, placing the entailed expenses on the convicted person. 56  See P Ficco, ‘Packaging: Environmental Changes in Waste Management’ in Renewable Matter, available at: www.renewablematter.eu/art/162/Packaging_Environmental_Changes_in_Waste_Management, who claims that, therefore, regarding environmental felonies, active repentance is unlikely to assure the disclosure of offences or encourage reclamation of polluted areas.

142  Grazia Maria Vagliasindi Disqualification from contracting with the public administration applies to those convicted of intentional environmental pollution and disaster, trafficking and abandonment of highly radioactive material and hindrance to controls, as well as to those convicted of organised activities for the illegal trafficking of waste under Article 260 Environmental Code. The statute of limitations for the newly introduced felonies is doubled as compared to the general time period established by the CC, but Law No 68/2015 did not provide for a similar rule with regard to the existing environmental misdemeanours, for which, as mentioned above (see section 3.1), the short limitation periods are a very significant source of ineffectiveness. It is worth adding that Law 68/2015 includes the newly introduced felonies into Article 25-undecies of Legislative Decree No 231/2001. Thus, corporations and collective entities may be held responsible for those felonies if the general requirements set up by Legislative Decree No 231/2001 are met. In detail, the felonies are: environmental pollution (250 to 600 shares; the application of interdicting sanctions, for a period not exceeding one year, is also provided); environmental disaster (400 to 800 shares; the application of interdicting sanctions, for a period not exceeding one year, is also provided); felonies of negligence (200 to 500 shares); trafficking and abandonment of highly radioactive material (250 to 600 shares); environmentally aggravated participation in a criminal association or mafia-type criminal association (300 to 1000 shares). It is worth noting that the felony of omitted clean-up has not been included among those for which corporations can be held responsible.

3.2.  Conclusions on the Transposition of the ECD It is worth recalling that the Evaluation Study on the implementation of the ECD, with regard to Italy concluded that The transposition can be considered as overall effective as regards the scope of the offences covered and as far as the subjective element is concerned. However, some of the offences covered by Article 3(a) and 3(g) are not covered by corresponding sanctions. Article 6 has also been incompletely transposed since not all offences covered by the Directive are applicable to legal persons. Finally Articles 5 and 7 on sanctions have been incorrectly transposed since the provisions do not ensure effective, proportionate and dissuasive sanctions as required by the Directive.57

As to Article 3(a) ECD, gaps in the transposition still exist since conduct contemplated therein still does not have corresponding criminal sanctions under Italian law with regard to the violation of some of the directives listed in the Annexes to the ECD. Gaps in the transposition also still exist concerning Article 3(g) ECD,

57 

Milieau, ‘Evaluation Study’, n 7 above, 30.

Environmental Criminal Law in Italy 143 since import, export or re-export of domestic or personal objects derived from specimens covered by the law are punishable only with an administrative sanction; however, it should be noted that both the levels of criminal sanctions for trade in protected species and those of administrative sanctions for trade in derivatives thereof have been increased by Law No 68/2015. As to the assessment of the transposition of the obligation of effective, proportional and dissuasive criminal penalties set out in Article 5 ECD, it should be noted that the deficiencies highlighted above concerning environmental misdemeanours have not been addressed by the Italian legislator. However, it should be noted that the level of statutory penalties provided for the new felonies against the environment, which cover the most serious cases of concrete endangerment and harm to the environment as well as to life and health of people, can be considered effective and dissuasive for the purposes of the Directive. As to the sanctions applicable to legal persons, the opinion expressed in the Evaluation Study that the transposition of Article 7 ECD is incorrect since fines are too low as compared to European benchmarks,58 cannot be fully shared. In fact, the sanctions introduced by Legislative Decree No 121/2011 cannot overall be considered as ineffective, disproportional and not dissuasive, in light of the overall characteristics of the Italian economic system which is mainly composed of small and medium enterprises, as well as in light of the levels of sanctions for legal persons provided for other crimes. In addition, it should be noted that the new felonies against the environment have been included in the list of crimes for which legal persons can be held responsible, and effective, proportional and dissuasive sanctions have been provided for legal persons for these cases. Some conduct covered by the ECD, mainly the abandonment of waste, is still not included in the list of crimes for legal persons; thus, currently the lack of conformity still concerns this limited area of offences (and related sanctions) for legal persons. It should be noted that the ECD requirement of the conduct being unlawful, although it has not been defined in the transposing provisions, has to be considered to be met, since the environmental misdemeanours punish the violation, in different forms, of environmental legislation, and the felonies of environmental pollution, environmental disaster and trafficking or abandonment of highly radioactive materials must be committed unlawfully (abusivamente). Article 414 CC—which states that publicly inciting a crime to be committed is punishable as such (ie whether or not the crime was committed afterwards) with imprisonment for between one and five years if the incitement concerns a felony and with imprisonment for up to one year or a fine of up to €206 if the incitement concerns a misdemeanour—is applicable to environmental crimes. General rules on being party to an offence (Article 110 ff CC) are also applicable to environmental crimes. Thus, the legal system meets the ECD obligations concerning inciting, aiding and abetting the conduct covered by the Directive.

58 

Milieau, ‘Evaluation Study’, n 7 above, 29.

144  Grazia Maria Vagliasindi The current Italian environmental legislation goes beyond what is required by the ECD with regard to the mens rea requirement, that is to say intention or serious negligence according to the ECD. In fact, all environmental misdemeanours as well as the felonies of environmental pollution and environmental disaster are punishable (by virtue respectively of general criminal law principles and of the specific provisions of Law No 68/2015) when committed with intent or with negligence; according to the general principles, the latter includes not only serious negligence but also simple negligence. Moreover, it should be noted that Italian environmental legislation goes beyond the ECD requirements also in that it provides for a system of provisions—eg the felony of organised activities for the illegal trafficking of waste and the (questionable) aggravating circumstances for participation in a criminal organisation or a mafia-type criminal organisation aimed at committing felonies against the environment (including a further aggravating circumstance for the case of civil servant participation)—which represent a comprehensive set of tools covering all possible degrees of involvement of organised crime in the commission of environmental felonies.

4.  PROCEDURAL PROVISIONS, ACTORS AND INSTITUTIONS

This section examines the main criminal procedural rules relevant also to environmental crime, as well as the actors and institutions involved in the enforcement of environmental criminal law.

4.1.  Criminal Procedure The Italian criminal procedure system is prevailingly accusatorial. There is a clearcut separation between pre-trial and trial proceedings as well as between the body responsible for investigating and prosecuting a crime and the body responsible for judging the case.59 In particular, according to Article 111 Constitution, jurisdiction is implemented through due process regulated by law. All court trials are conducted with adversarial proceedings and the parties are entitled to equal treatment before an impartial judge. The law provides for the reasonable duration of trials. In criminal law trials, the law provides that the alleged offender shall be promptly informed confidentially of the nature and reasons for the charges that are brought; moreover, the alleged offender shall have adequate time and shall be put in the position to

59  See E Amodio, ‘The Accusatorial System Lost and Regained: Reforming Criminal Procedure in Italy’ (2004) 52 American Journal of Comparative Law 489.

Environmental Criminal Law in Italy 145 prepare a defence. The defendant shall have the right to cross-examine or to have cross-examined before a judge the persons making accusations and to summon and examine witnesses for the defence under the same conditions as the prosecution, as well as the right to produce all other evidence in favour of the defence. In criminal law proceedings, the law of evidence is based on the principle of adversary proceedings; derogations from this principle are allowed only in specific cases—ie consent of the defendant, reasons of ascertained objective impossibility or proven illicit conduct—set out in the Constitution and regulated by the law. All judicial decisions shall include a statement of reasons. Appeals to the Court of Cassation in cases of violations of the law are always allowed against sentences and against measures affecting personal freedom pronounced by ordinary and special courts. Concerning prosecution, Article 112 Constitution states that ‘the public prosecutor has the obligation to institute criminal proceedings’. Indeed, under Italian criminal procedure a ‘duty to prosecute’ applies: the public prosecutor—who is responsible for investigations and institutes criminal proceedings (Articles 50 ff Code of Criminal Procedure, CCP)—has the obligation to institute criminal proceedings concerning any crime for which sufficient grounds to support a trial exist. The obligation to institute criminal proceedings applies to environmental crimes, as to any other crime.

4.2.  Actors and Institutions Several actors and institutions are involved in the enforcement of environmental criminal law. As to the police, in Italy it is composed of different police forces. The main national ones are the Polizia di Stato and the Carabinieri. The competences of the two police forces are similar. Both forces have duties and tasks in criminal investigations. Besides these two police forces, there are other specialised forces such as the Guardia di Finanza, operating as financial police. These police forces compose the Polizia giudiziaria (judicial police). According to Article 55 CCP, the members of the judicial police shall, also on their own initiative, acquire crime reports (notizia di reato or notitia criminis), prevent crimes from resulting in further consequences, search for the perpetrators, take the steps necessary to secure the sources of evidence and gather anything else that may serve for the application of the criminal law. Moreover, they shall conduct any investigation and activity requested of or delegated to them by the judicial authority. Following a notitia criminis, the judicial police must notify the public prosecutor of the facts and sources of proof without delay (Article 347 CCP). The judicial police operate under the direction of the public prosecutor, and should be available at any moment to receive assignments regarding a case under investigation (Articles 59 and 327 CCP). Most crime reports concerning environmental crimes are drafted by the judicial police.

146  Grazia Maria Vagliasindi According to Article 8, paragraph 4, of Law No 349/1986, for the prevention and repression of environmental offences, the Ministry of the Environment relies on the Carabinieri for the protection of the Environment (Comando Carabinieri per la Tutela dell’Ambiente),60 on the special departments of the Guardia di Finanza and Polizia, on the Capitanerie di porto (coast guard) and on the Corpo forestale dello Stato (the Forest Corp). It should be noted that, pursuant to Legislative Decree No 177 of 1 February 2016, the Corpo forestale merged with the Carabinieri, resulting in the Comando Unità per la Tutela Forestale, Ambientale e Agroalimentare dei Carabinieri: effective from 25 October 2016, it adsorbed the Comando Carabinieri per la Tutela dell’Ambiente,61 creating what is deemed to be the biggest specialised environmental police force in Europe. Specialised environmental police forces are important in the prevention and repression of environmental crimes. For instance, the table below presents data collected by the Italian Ministry of the Environment—Comando Carabinieri per la tutela dell’ambiente on the number of persons that were reported to the judicial authority for environmental offences and the number of persons that were arrested between 2011 and 2015.62 Year

Number of persons reported to the judicial authority for environmental offences

Number of persons arrested for environmental offences

2011

2,127

102

2012

1,955

49

2013

1,830

68

2014

1,302

33

2015

2,013

62

Investment in training of specialised police forces is highly desirable; in fact, investigations of environmental crimes, and particularly of some of the newly introduced felonies against the environment, are very complex, as they require specific technical knowledge normally lacking in the ordinary police forces. Concerning the prosecution of environmental crimes, the general rules apply (but see also below, section 5.1.2). In particular, prosecution is exercised by the Public Prosecutor’s Office (Articles 50 ff CCP), a body of magistrates who have

60 Originally, Nucleo

Operativo Ecologico dei Carabinieri. the Carabinieri per la tutela dell’ambiente, see GM Vagliasindi, ‘Effective networking, formal versus substantial compliance, conflicting powers: strengths and weaknesses of environmental criminal provisions enforcement networks in Italy’ in MG Faure, P De Smedt and A Stas (eds), ­Environmental Enforcement Networks. Concepts, Implementation and Effectiveness (Cheltenham/­ Northampton, MA, Edward Elgar, 2015) 430, 435–38. 62  Data available at: www.minambiente.it/pagina/controlli-effettuati-dal-comando-carabinieri-latutela-dellambiente. 61 On

Environmental Criminal Law in Italy 147 a status independent from the executive power and from any other power provided for by the Constitution (see above, section 1.2). The Public Prosecutor’s Office is a public office which acts in the collective interest. During the judicial investigations, the public prosecutor is, directly and continuously, in contact with the police, since he leads the investigations which are carried out by the judicial police. The public prosecutor is responsible for instituting criminal proceedings, regardless of whether they are initiated ex officio or after a complaint (querela). As already mentioned, according to the ‘duty to prosecute’, the public prosecutor is obliged to prosecute any crime for which sufficient grounds to support a trial exist. Therefore, when the preliminary investigation is completed, if there are not such sufficient grounds, the prosecutor will request the judge to dismiss the case (archiviazione); in the opposite case, he will formulate the charge and request the judge to go to trial. The creation, within the Public Prosecutor’s Office, of a pool of prosecutors to deal with environmental crime is recommended; such pools (gruppi di lavoro specializzati, specialised working groups) already exist in several Public Prosecutor’s Offices and are considered best practice. As to courts, they are the Tribunal (Tribunale), the Assise Court (Corte di assise), the Court of Appeal (Corte di appello), the Court of Assise of Appeal (Corte di assise di appello) and the Supreme Court of Cassation (Corte Suprema di ­Cassazione). In the first instance of trial, before the Tribunal or the Assise Court (which deals with the most serious felonies), three separate phases of procedure occur: the preliminary investigative phase, the preliminary hearing phase and the trial phase. During the pre-trial phase, the judge of the preliminary investigations is involved whenever the investigations may conflict with constitutional rights, such as the right to individual freedom; he guarantees the protection of individual rights while validating the arrest of suspects and authorising precautionary measures. At the end of the pre-trial phase, the judge, after a request by the public prosecutor (see above), decides whether to dismiss the case or to go to trial. The Court of Appeal reviews the decision of the Tribunal. The highest court in Italy is the Supreme Court of Cassation, which has a competence limited to reviewing ­decisions on points of law and cannot judge on the merit of the case. No special courts for environmental crime exist in Italy. However, a de facto specialisation exists in the sense that in each court environmental cases are dealt with by a certain judge or pool of judges. According to the statistics provided by the Supreme Court of Cassation in the wider context of all the criminal cases received by the same Supreme Court of Cassation (and thus not in the specific context of environmental crime), in 2015, with regard to categories that fall under or are related to environmental crimes the following number of criminal cases have been heard before the Supreme Court of Cassation: illegal building and urbanism: 647 cases; pollution and waste crimes: 580 cases; cultural and environmental assets: 116 cases; food and beverages: 89 cases; hunting: 25 cases; protected areas: 13 cases; fishing: 12; protected species: 3; dangerous substances and products: 0 cases; nuclear energy: 1 case;

148  Grazia Maria Vagliasindi public waters: 0 cases; animal protection: 0 cases.63 However, it should be recalled that the Supreme Court of Cassation judges only on points of law with regard to previous decisions of courts on the merit. Thus, while the above statistics provide information on the outcome of the case before the Supreme Court of Cassation (for example, a declaration of nullity of the previous decision and transfer of the case to a different court of merit, declaration of nullity without such transfer, inadmissibility, declaration of extinction under the statute of limitation etc), this does not provide relevant information as to the actual content of the decisions, since no information is provided on whether the referred decision was one of conviction or one of acquittal. Finally, it should be recalled that, over the years, the Italian Parliament has appointed Parliamentary Commissions to deal with specific categories of environmental matters. This is the case, for instance, for the Parliamentary Inquiry Commission on illegal activities relating to the waste cycle and related environmental offences, set up by Law No 1 of 7 January 2014. The Commission carries out several tasks: investigation of all illegal activities connected to the waste cycle and the involvement of organised crime in these activities; identification of the connections between illicit waste management activities and other economic activities; identification of specific activities related to the transnational shipment of waste, etc. On an annual basis, the Commission reports to Parliament on the results of its activities, greatly contributing to a better awareness of the phenomenon and better grounds for targeted action.

5. SANCTIONS

Sanctions in the law for environmental crimes have been highlighted above (see section 3 above).

5.1.  Sanctions in Practice Official figures and statistics on the actual sanction imposed for environmental crimes are not available; thus reliable information cannot be provided here. However, it can be highlighted that several provisions may, and actually do, impact on the actual sanctions imposed. 5.1.1.  General Substantive Criminal Law Rules and Sanctions in Practice First of all, in the Italian legal system criminal offences are indictable only within a certain period after they have been committed, except for the most serious 63  Corte Suprema di Cassazione—Ufficio di statistica, ‘La Cassazione penale Anno 2015’ 1, 49–51, available at: www.cortedicassazione.it/cassazione-resources/resources/cms/documents/AG2016_ penale.pdf.

Environmental Criminal Law in Italy 149 offences that have no time limitation. The period of limitation is regulated by Article 157 CC, which establishes that limitation extinguishes the crime if a final judgment is not adopted within the time corresponding to the maximum penalty prescribed by law, and in any case after not less than six years for felonies and four years for misdemeanours, even if these crimes are punishable with only a fine. The accused person may always expressly renounce the statute of limitation. Limitation is suspended or interrupted in certain circumstances, listed in Articles 159 and 160 CC. These circumstances are connected to the different phases and stages of the trial (for example, the period of limitation is interrupted when a first instance conviction is pronounced). The misdemeanour nature of numerous environmental crimes implies short limitation periods, which are considered by scholars64 and practitioners65 to be one of the causes of the ineffectiveness of environmental criminal law. In cases of misdemeanours which are punishable by a fine only, Article 162 CC (oblazione comune) allows the offender to pay, before the opening of the trial, or before the decree of conviction, an amount of money corresponding to the third part of the maximum penalty established by law for the committed offence, as well as the costs of the proceedings. The payment extinguishes the crime. Article 162-bis CC (oblazione speciale) establishes that, in cases of misdemeanours which are punishable alternatively by a jail sentence or a fine, the offender may be allowed to pay, before the opening of the trial, or before the decree of conviction, an amount of money corresponding to half of the maximum fine prescribed by law for the committed offence, as well as the costs of the proceedings. The payment extinguishes the crime. While not applicable to felonies or to misdemeanours punishable cumulatively with custodial and pecuniary penalties, in the other cases of environmental misdemeanours this mechanism may lead to results that do not comply with the EU standards of effective, proportionate and dissuasive criminal penalties.66 For instance, with regard to Article 727-bis, paragraph 2, CC, it is always possible to extinguish the crime under oblazione comune through the payment of €1,333. According to Articles 163–168 CC, probation (sospensione condizionale della pena) can be granted under the following conditions: imposition of imprisonment or a jail sentence not exceeding two years67 (Article 163 CC); the judge presumes that the convicted person will not commit further offences (Article 164, paragraph 1, CC). Probation cannot be granted when the convicted person has been already sentenced to imprisonment for a felony or if he is considered a habitual or professional offender (Article 164, paragraph 2, 1, CC) or if a personal security measure is to be added to the penalty imposed (Article 164, paragraph 2, 2, CC). The judge may impose obligations on the convicted person, according

64 

See above section 3.1.1. Interview with Italian prosecutor of 16 July 2014. Ruga Riva, ‘Il decreto legislativo’, n 44 above, 5. 67  Three years for minors; two years and six months for young persons from 18 to 21 years old and for persons over 70 years old. 65  66 

150  Grazia Maria Vagliasindi to its discretionary powers and considering the individual case. The obligations are provided for in Article 165 CC: the restitution or compensation for damage and the publication of the decision; the elimination of the harmful or dangerous consequences of the offence; and non-remunerated community work. The probation period is five years in case of conviction for a felony and two years in case of conviction for a misdemeanour (Article 163, paragraph 1, CC). Once this period elapses and the convicted person does not commit another felony or a misdemeanour of the same nature and complies with the obligations established by the judge, the crime is extinguished (Article 167 CC). Taking the above into consideration, in Italy a sentence to two years’ imprisonment for environmental crimes could mean and often does mean only probation. However, it is worth noting that some provisions of the Environmental Code establish that probation can be granted on condition of the elimination of the damage or danger to the environment (for instance, Article 260, paragraph 4, Environmental Code). 5.1.2. The Mechanism of Extinction of the Environmental Code Misdemeanours through their Regularisation Remarkably, Article 1, paragraph 9, Law 68/2015, added a new Part VI-bis to the Environmental Code, introducing an extinction procedure for some of the environmental misdemeanours through their regularisation. This procedure is not applicable to criminal proceedings already under way. The procedure is applicable if the following requirements are fulfilled: the crime committed is a misdemeanour provided for in the Environmental Code68 and, according to the prevailing interpretation, punished by a fine, exclusively or as an alternative to a jail sentence;69 the violation has not caused any harm or actual and concrete danger of harm to protected environmental, urban or landscape resources; the offender follows the instructions given by the surveillance authority (in its judicial police role) or by the judicial police and technically asseverated by the specialised competent authority, to remove the violation in a period not exceeding the time that is necessary to do so; once the offender has complied in a timely manner with the instructions given by the surveillance authority, he pays an amount of money corresponding to a quarter of the maximum fine provided by law for that misdemeanour. In case of extinction following this procedure, the public prosecutor requests the judge to dismiss the trial. In case of delay in performing the instructions of the authority

68  Ficco, ‘Packaging’, n 56 above, stresses as peculiar the fact that misdemeanours provided for in other environmental laws (for example, those concerning landfills) are not encompassed in the new procedure. 69  Thus, the provisions do not apply, for example, to the misdemeanour punished under Article 255, para 3, Environmental Code, carrying a jail sentence for failure to comply with the Mayor’s order to remove waste in case of abandonment.

Environmental Criminal Law in Italy 151 or in case of a performance different from the prescribed ones, the offender can benefit from a reduction in penalty upon demonstrating that the consequences of the violation have been removed. 5.1.3.  General Criminal Procedure Rules and Sanctions in Practice It is worth recalling that also general procedural provisions, and in particular the so-called alternative procedures, may lead to a reduction of the sanctions imposed. Among these, it is worth mentioning plea bargaining (Applicazione della pena su richiesta delle parti, the so-called ‘patteggiamento’). This procedure enables the parties to dispose of the case before the beginning of the trial. According to Article 444, paragraph 1, CCP, as modified by Law No 134 of 12 June 2003, the defendant and the public prosecutor may ask the judge for the application of a negotiated sentence. In particular, they may request the application of a substitute sanction or a pecuniary criminal sanction, reduced by up to one-third, or of a custodial criminal sanction when the latter, taking into account the circumstances, and reduced by up to one-third, does not exceed five years, alone or together with a pecuniary criminal sanction. This procedure does not apply, inter alia, in organised crime proceedings (paragraph 1-bis). If the two parties agree and the judge considers the proposed sentence appropriate, the judge’s ruling orders the application of the negotiated sentence (paragraph 2). It is worth noting that the judge can approve or reject the party’s request and he is not bound by it; however, if the judge accepts the request, he cannot modify it by amending the requested sentence. In case of a request for a custodial sanction of up to two years, the defendant can subordinate the request to the granting of probation (paragraph 3). Generally, the advantages for the defendants arising from this alternative procedure are the reduction by up to one-third of the sentence and the exclusion of the possibility of being subject to any security measures. Environmental misdemeanours fall under plea bargaining and, actually, this procedure is most likely to apply (however, see also above, sections 5.1.1 and 5.1.2). Also the newly introduced felonies against the environment may, depending on the circumstances, fall under plea bargaining. Although plea bargaining is the most wide-ranging procedure, there are other alternative procedures that can apply to environmental crimes and influence the level of the sanctions imposed. For instance, the ‘abbreviated proceedings’ (giudizio abbreviato) enables the defendant to request the case to be decided ex actis during the preliminary hearing (Article 438, paragraph 1, CCP). The outcome of the abbreviated proceedings can be of acquittal or conviction; in this case, the penalty is reduced by one-third. The consent of the public prosecutor is not needed and the defendant may also subordinate his request to an integration of evidence necessary to the decision; the judge has the discretional power to evaluate whether the integration is really necessary

152  Grazia Maria Vagliasindi to the decision, and whether it complies with the standards of procedural economy (Article 438, paragraph 5, CCP) and this judge’s decision is incontestable.70 Generally, the request for abbreviated proceedings may involve any crime, and thus also environmental crimes. Another alternative procedure is ‘proceeding by decree’ (procedimento per decreto). When the public prosecutor believes that a pecuniary criminal sanction alone should be applied—even if in replacement of a custodial one—he may ask the judge for the preliminary investigations to decide the case by decree (decreto penale di condanna); the public prosecutor’s request indicates the level of the sanction to be applied and has to be presented within six months from the date when the defendant’s name was written in the notitiae criminis register (Article 459, paragraph 1, CCP). The public prosecutor may ask for the application of a penalty reduced by up to half of the minimum level (paragraph 2). If the judge does not accept the request, he gives the case back to the public prosecutor (paragraph 3); if he accepts it, inaudita altera parte he issues a decree which contains the sentence at the level indicated by the public prosecutor. The defendant may appeal against the sentence within 15 days from the notification of the decree (Article 461 CCP).

5.2.  Administrative Sanctions As to environmental administrative sanctions, it should be recalled that the expression ‘environmental administrative offences’ refers to cases where ­violation of environmental legal provisions is sanctioned by the law with administrative penalties. In these cases, which generally concern less serious offences, the sanction is imposed by administrative authorities at the end of an administrative proceeding.71 Environmental administrative sanctions usually consist in the payment of a fine proportionate to the seriousness of the offence; if the law so provides, it is also possible to apply disqualification sanctions, such as the suspension or revocation of permits and the closure of the industrial plant. Among the administrative offences in the sectors listed by Directive 2008/99/EC, it is worth mentioning Article 255 Environmental Code, which punishes with a pecuniary administrative sanction of between €300 and €3,000 whoever abandons or deposits waste or introduces it into surface water or groundwater, in violation of the prohibitions laid down in Articles 192, paragraphs 1 and 2, 226, paragraph 2, and 231, paragraphs 1 and 2, Environmental Code. If the abandonment concerns dangerous waste, the administrative sanction is increased by up to double. If the author is the owner of an enterprise or the person in charge of an entity, criminal sanctions apply (Article 256, paragraph 2 Environmental Code). 70 

See Corte Costituzionale, 15 March 2002, n° 54 (2002) Giurisprudenza costituzionale 618. a detailed distinction between administrative and criminal offence, see S Maglia, Corso di legislazione ambientale (Milano, Ipsoa, 2008) 38. 71  For

Environmental Criminal Law in Italy 153 Moreover, administrative sanctions are provided for the incorrect or incomplete maintenance of registers of waste loading and unloading and of formularies concerning transported waste (Article 258 Environmental Code). Concerning air pollution, an administrative offence is set out in Article 279 Environmental Code, which—in case of failure to communicate a not substantial modification concerning an installation—provides for an administrative pecuniary sanction of €1,000. Concerning water pollution, Article 133 Environmental Code states that whoever—unless the fact constitutes a crime, and except for cases punishable under Article 29-quattuordecies, paragraphs 2 and 3—in a discharge exceeds the thresholds set out in the tables in Annex 5 to part III of the same Environmental Code, or the different thresholds set by the Regions in accordance with Article 101, paragraph 2, or those set by the competent authority in accordance with Article 107, paragraph 1, or Article 108, paragraph 1, shall be punished with an administrative sanction of between €3,000 and €30,000. If the failure to comply with the thresholds concerns discharges in areas of protection of water resources intended for human consumption referred to in Article 94, or in hydro-bodies placed in protected areas set out in the law, an administrative sanction of not less than €20,000 applies (paragraph 1). Other administrative sanctions are set out concerning discharge of domestic water or drainage systems without a permit, or with a suspended or revoked permit (paragraph 2) or failing to comply with the requirements indicated in the permit (paragraph 3). Administrative sanctions are imposed by administrative authorities, at the end of an administrative proceeding, through an act named order-injunction (ordinanza-ingiunzione).72 Concerning the competent authority, Article 17, paragraph 5, Law No 689 of 24 November 1981 states that the competent office is that of the area where the infringement has been committed. However, specific rules are provided for by the Environmental Code. For instance, as regards water protection, according to Article 135 Environmental Code, in the field of administrative offences, pecuniary administrative sanctions are imposed, through an order-injunction, by the Region (or the Autonomous Province) where the offence was committed, except for the sanctions provided for by Article 133, paragraph 8, Environmental Code for which the Municipality is competent, without prejudice to the powers assigned by the law to other public authorities. Therefore, the Regions cannot delegate to local authorities the competence to impose administrative sanctions in the water pollution sector; the reference to the ‘powers assigned by law to other public authorities’ exclusively concerns national laws. It has to be stressed that administrative offences and sanctions are subject to the principle of legality. The cases where the same facts constitute a crime punished

72  See S Pallotta, Manuale delle sanzioni amministrative ambientali (Santarcangelo di Romagna, Maggioli, 2011) 23.

154  Grazia Maria Vagliasindi by a criminal sanction and an administrative offence punished by an administrative sanction are regulated in general by Article 9 of Law No 689/81 (which states that in these cases the special provision should be applied) as well as, often, by the specific administrative offence (usually, by stating that the administrative offence is applicable unless the same facts constitute a crime). Moreover, it has to be recalled that the Public Prosecutor in Italy has the obligation to institute criminal proceedings if sufficient grounds exist to support a trial; thus, according to this principle, as well as according to the above-mentioned principle of legality and criteria regulating the relationship between criminal and administrative offences, in Italy, unlike in common law systems, it is not up to the prosecutor to decide whether to take the criminal route or let, for example, the environmental authority deal with the case administratively. No official statistics are available on the actual environmental administrative sanctions imposed. However, practitioners highlight that the enforcement of environmental administrative sanctions cannot be considered really effective73 and that pecuniary administrative sanctions are not effective in the fight against environmental offences, as the cost of the sanction to the offender is normally less than the economic benefit of the offence.74

6. CONCLUSIONS

Neither an unequivocal definition of ‘environment’ nor a legal definition of ‘environmental crime’ exists in the Italian legal system. The expression ‘environmental crime’ refers to environmental offences punished by criminal sanctions. Some of them are misdemeanours, which fall outside the CC and do not constitute an organic system of provisions, being the results of several interventions by the Italian legislator in different environment-related fields. Because of this stratification, and despite the creation of the so-called Environmental Code, the Italian legislation on environmental protection still partially lacks proper legal cohesion. The continuous enactment of new domestic environmental administrative legislation, often of EU-origin, indirectly influences the legislation on environmental crime, as the latter is largely characterised by a dependence on administrative law; the excessive proliferation of norms in this field should also be underlined. One of the consequences of the continuous changes in administrative environmental laws is that such changes require a constant updating of knowledge on the part of the enforcement authorities, and this might negatively affect the enforcement of environmental criminal provisions.

73  74 

Interview with Italian prosecutor of 16 July 2014. Interview with Italian judge of 2 September 2014.

Environmental Criminal Law in Italy 155 The enactment of the ECD75 raised lot of expectations among Italian scholars and practitioners. In fact, at that time Italian environmental criminal law consisted almost exclusively of misdemeanours (ie less serious criminal offences) of abstract endangerment, provided for in the environmental statutes. As a consequence of the low penalties attached to these misdemeanours and of the applicable general criminal law rules affecting the actual imposition of criminal sanctions for misdemeanours, those criminal offences were almost unanimously considered inadequate to deter and to proportionately punish the most serious cases of environmental pollution. Corporations could not be held responsible for environmental crimes, since such crimes were not included among the crimes for which corporations, under certain conditions, can be held responsible under Italian law. Thus, the introduction of felonies (ie more serious criminal offences) against the environment has been advocated by many and for a long time, as has the introduction of rules on responsibility of corporations for environmental crimes. Even though the obligations established by the ECD seemed to imply a substantial reform of Italian environmental criminal law, following the transposition of the ECD the legislation remained unchanged, except for the introduction into the CC of Article 727-bis and Article 733-bis. However, the transposition of the ECD brought relevant changes through the extension of the system of liability of legal persons and collective entities to (listed) environmental crimes:76 although incomplete (since some environmental misdemeanours, for example those on IPPC or that on abandonment of waste) were not extended to corporations, these changes are relevant since they began to fill a relevant gap in environmental criminal law in Italy. Law 68/2015 introduced felonies against the environment into the CC, resulting in the late transposition of those ECD provisions requiring effective and dissuasive penalties for conduct causing endangerment of or harm to the environment or life and health of people. Some features of Italian environmental criminal law have to be positively assessed, since they represent effective tools in targeting certain characteristics of environmental criminality. This is the case for the legislation addressing the involvement of organised crime in the commission of environmental crime, not covered by the ECD but relevant in light of the 2015 European Agenda on Security,77 which, in dealing with the objective of disrupting organised crime, specifically addresses environmental crimes. Under Italian legislation, reference should be made in particular to Article 260 Environmental Code on organised

75 

As well as, to a more limited extent, the enactment of the Ship-source Pollution Directive. Vagliasindi, ‘Liability of Legal Persons’, n 37 above, 131. 77  Commission, ‘The European Agenda on Security’ (Communication) COM(2015) 185 final, available at: https://ec.europa.eu/anti-trafficking/sites/antitrafficking/files/eu_agenda_on_security_en.pdf. 76 

156  Grazia Maria Vagliasindi activities for the illegal trafficking of waste. This provision proved to be very effective at national level, and could represent a significant model at the European level, as shown in the European Parliament Resolution of 25 October 2011 on organised crime in the European Union which, in point 42, calls on the Commission to develop innovative instruments for the prosecution of those who commit environmental offences in which organised crime plays a role, for example by submitting a proposal to extend to the EU Italy’s positive experience with the offence of ‘organised illegal waste trafficking’, since 2011 classed as an offence with a major social impact (and thus dealt with by the District Anti-mafia Bureau).78

The introduction, by Law No 68/2015, of a mechanism of extinction of certain environmental misdemeanours provided for in the Environmental Code might at first sight appear as going against the ECD. However, it should be noted that the ultimate objective of the ECD is to ensure compliance with environmental legislation, an objective that also animates the new mechanisms of extinction of misdemeanours through their regularisation: indeed, it operates when the environmental violation, which is criminalised by the law, is removed in conformity with the instruction enacted by the surveillance authority (in its judicial police role) or by the judicial police and technically asseverated by the specialised competent authority. Thus this mechanism is inspired by the goal of an effective protection of the environment and also results in conformity to the principle of extrema ratio of criminal law. The introduction, by Law No 68/2015, of felonies against the environment into the CC moves towards complying with obligations arising from the ECD, as it concerns effective and dissuasive sanctions for unlawful forms of conduct ­contemplated therein which cause endangerment of or harm to the environment or life and health of people. The felonies against the environment represent the latest step in the progressive recognition of the value and significance of the environment and the need to protect it adequately. In the law, this may have significant effects in terms of deterrence, since it increases the level of criminal penalties in view of the greater consideration given to the environment.79 However, it should underlined that the language used by the Italian legislator in drafting the new provisions is often unclear. For instance, in Article 452-quater CC language is ambiguous and the overall conformity of this criminal offence to the principle of proportionality is doubtful, as it appears to include situations which may not necessarily be as serious as the general understanding of what is considered a disaster. Therefore, judges will play a key role in ensuring that the

78  European Parliament, Resolution of 25 October 2011 on organised crime in the European Union (2010/2309(INI)) [2013] OJ C 131E/66. 79  See L Siracusa, ‘La legge 22 maggio 2015, n. 68 sugli “ecodelitti”: una svolta “quasi” epocale per il diritto penale dell’ambiente’ (9 July 2015) Diritto penale contemporaneo 1, 5, available at: www.penalecontemporaneo.it/upload/1436268186SIRACUSA_2015a.pdf2015.

Environmental Criminal Law in Italy 157 i­ mplementation of the new law is not limited by its imprecise formulations and is not undertaken in violation of the principle of proportionality. Moreover, and, to a certain extent, correlatively, some of the new provisions might be difficult to implement. This is the case for the felonies of environmental pollution and environmental disaster. Since they punish the causation of an event (pollution or disaster), the causal link between the conduct and the event has to be proved beyond any reasonable doubt. This might be difficult since, inter alia, the event is described in wide terms (for instance, ‘alteration of the equilibrium of an ecosystem’). While a substantial case law is not available yet, it can be argued that, most likely, this will lead to a further increase in the necessary level of specialisation of police, prosecutors and judges as well as to increase the need to rely on experts within the trials for environmental crimes. In turn, this will result in an increase of the resources needed to investigate, prosecute and sentence environmental crime. Finally, the provision introduced into the CC aiming at ensuring that, in case of conviction for felonies against the environment, recovery and, if possible, restoration of the previous condition of the premises are performed at the expense of the convicted have to be positively assessed, since they ensure that the criminal justice system takes care of the consequences of environmental crimes. The same holds true for the allocation of the confiscated proceeds of environmental felonies to the clean-up of the premises as well as for exclusion of confiscation if the offender effectively provided for securing and, if necessary, clean-up and restoration of the previous condition of the premises. More in general, both the pre-existing and new provisions on confiscation of proceeds of environmental crime are relevant instruments, as they tend to have a high deterrent effect with regard to crimes that, like the environmental ones, are mainly motivated by economic benefit. Also the provisions on the mitigation of punishment in case of voluntary disclosure have to be positively assessed, since they are in line with the principles of guilt and proportionality and, at the same time, they ensure that the negative consequences for the environment arising from environmental crimes are not further aggravated or that securing, clean-up and if possible restoration of the affected premises are undertaken.

158 

7 Environmental Criminal Law in Poland KAROLINA JACKOWICZ, MALGOSIA FITZMAURICE AND VALSAMIS MITSILEGAS

1. INTRODUCTION

T

HE CHAPTER WILL examine the transposition of the EU Directive on Environmental Crime (ECD)1 into Polish legislation. To do so, the chapter will place the transposition of the Directive within the broader legislative and institutional framework in Poland. Firstly, we present the Polish legal system and administrative context. Next, we set out the fundamental principles and sources of Polish criminal and environmental law. Then the area of criminal environmental law and the concept of ‘environmental liability’ is laid out—its position vis-a-vis administrative, civil and criminal liability, along with ‘environmental crime’—presenting some statutory provisions and the notion thereof. Further, we describe ‘corporate criminal liability’ in Polish law and focus on offences against the environment. At the core of this chapter lies the transposition of the ECD to the Polish legal system and its role in shaping the criminal liability for acts against, or to the detriment of, the environment. We track the legislative process resulting in amendments to the Criminal Code and various other statutes. Next, criminal sanctions for non-compliance are set out. The chapter concludes with the assessment of the implementation process, deemed overall to be effective. What appears challenging is the actual application of the available legal instruments by the institutions, such as law enforcement, prosecution and the courts. Hence we present postulates aimed at improving the actual effectiveness of the provisions for the protection of the environment through criminal law, inter alia, through further training and additional financing. Mainly, however, it can be observed that societal change is required, demonstrated for example in the rise in reporting of prohibited acts against the environment or a more punitive approach when sentencing. It is plausible that the ECD’s implementation, combined with the further amendments to the legal system, many of which are instigated by the EU, has already triggered this much needed process.

1  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 [2008] OJ L328/28.

160  Karolina Jackowicz, Malgosia Fitzmaurice and Valsamis Mitsilegas 1.1.  The Institutional Framework The Republic of Poland is a parliamentary democracy formed in accordance with the separation of powers principle. The legislative power is vested in the Parliament. The executive comprises the President and the Council of Ministers with the Prime Minister. The judicial power belongs to the courts and tribunals. Courts encompass the Supreme Court, the system of common courts (regional, district and appeal), administrative courts with the Supreme Administrative Court, and military courts. There are also the Constitutional Tribunal and the Tribunal of the State. The legal system of Poland represents the continental tradition of civil law. The catalogue of the sources of law consists of: the Constitution, statutes (acts), ratified international agreements, regulations and local laws, which are universally binding. Local laws—the enactments issued by the local government authorities and the local authorities of the governmental administration, issued if specifically authorised by a statute—have limited territorial jurisdiction and are binding only within the limits of the issuing body’s area of administration. Typically for a civil law country, there is no case law in Poland, in the proper meaning of the court’s judgments creating law. However, in practice, the jurisprudence stemming from the authority of the highest courts is carefully monitored by practitioners and the courts adapt to it.2 The hierarchy of norms is derived from the constitutional catalogue of the sources of law. The Constitution of the Republic of Poland of 2 April 1997 (Constitution) is the supreme act and primary source of law.3 However, in case of discrepancy between the statute and an international agreement ratified by the Parliament, such agreement overrides the statute in the conflicting area. Also, the law of the treaty constituting an international organisation might be applied directly, before the statutes, which refers mainly to the regulations of the EU.4 Poland is a unitary state divided into voivodeships, which are in turn divided into districts and these, further, into the basic administrative units of communes.5 The public administration in Poland represents a dual system. It consists of the central governmental administration—handling issues at a state level—and local administration—administering matters on the local and regional levels. The chief organs of the central governmental administration are the Council of Ministers, with the Prime Minister—as its head and representative—and ministers. Additionally, there are organs of the central governmental administration operating across the whole territory of the country and directly subordinate

2  D Szumiło-Kulczycka and S Waltoś, ‘Poland, principles of criminal procedure and their application in disciplinary proceedings in Poland’ (2003) 74 Revue International de Droit Penal 1041. 3  Constitution of the Republic of Poland of 2 April 1997, Journal of Laws (Dziennik Ustaw (JL)) of 1997, No 78, item 483 with further amendments. 4  See chapter III of the Constitution. 5  See chapter VII of the Constitution.

Environmental Criminal Law in Poland 161 to the chief organs of the central governmental administration, such as specific ministers6 or various inspectors, inspectorates and agencies.7 Voivods are appointed by the Prime Minister as representatives of the central governmental administration. They act as the regional heads of central governmental bodies and institutions within the area of their voivodeships (for example the Police or various regional inspectorates). On each level of the administrative division of Poland (in voivodships, districts and communes) there are also local bodies with prerogatives limited to the geographical area of each unit. The legislative power belongs to assemblies elected by and representing the local communities. The Ministry of the Environment is an organ which supervises the activities of authorities concerned with the protection of the environment. It has many subordinate bodies, like: —— central governmental organs (eg Chief Inspector for the Protection of the Environment8 or Chief Director for the Protection of the Environment);9 —— organisational units (eg National Fund for Environmental Protection and Water Management); —— research institutes (eg Polish Geological Institute); —— national parks; and —— teaching units, like schools and colleges, in the field of forestry led by the Minister of Environment. The Minister of Environment manages the policy of sustainable development, which preserves the national natural resources and Polish landscape. The Minister is also responsible for the rational forest economy and effective use of the national resources.

2.  CRIMINAL LAW PRINCIPLES

Substantive criminal law is a set of norms establishing the acts prohibited under the threat of penalty as criminal offences, setting forth the conditions of criminal liability for such offences and measures which are the reaction to committing such punishable offences (punishments, sanctions).10 In Poland it is primarily regulated by the Act of 6 June 1997—Criminal Code (CC).11 Petty offences, which 6  For example the Chief of the Police, who is subordinate to the Minister of the Interior and Administration. 7  For example the National Atomic Energy Agency. 8  Who inspects, evaluates and supervises compliance with environmental protection provisions and remediation of any breaches of these provisions. 9  Who ensures that the policies of environmental protection are effectively executed in practice and supervises the investment process and participates in the issuance of the Environmental Impact Assessments. 10  A Wróbel and A Zoll, Polskie prawo karne. Część Ogólna (Kraków, Znak, 2012) 22. 11  Unified Text (tekst jednolity, (UT)): JL of 2016, pos 1137.

162  Karolina Jackowicz, Malgosia Fitzmaurice and Valsamis Mitsilegas also belong to the criminal law,12 are regulated by the Act of 20 May 1971—the Petty Offences Code (POC).13 Furthermore there are various statutes which form the out-of-code criminal law.14 The area of Polish criminal law is additionally regulated by the Constitution and international agreements,15 all in accordance with the principle nullum crimen sine lege.16 EU criminal law is another influence on domestic criminal law in Poland.17 The Lisbon Treaty has intensified this influence.18

2.1.  Substantive Principles The majority of the fundamental principles of the Polish criminal law system might be inferred from Article 1 CC on the conditions of liability, which reads as follows: § 1. Only a person who commits an act punishable under the law in force at that time bears criminal liability. § 2. If the effects of a prohibited act on society are insignificant, it will not constitute an offence. § 3. If guilt cannot be attributed to the perpetrator of a prohibited act during this act, it will not constitute an offence.

The principles of the utmost importance implicit in Article 1 are: nullum crimen sine lege and nullum crimen sine periculo sociali. Equally paramount rules implied from this brief article are the principles of responsibility (criminal liability, specifically individual liability) and nullum crimen nulla poena sine culpa. Further, from the former general principle of nullum crimen sine lege stem other major principles, decoded either from the Criminal Code or the Constitution, such as nulla poena sine praevia lege poenali, nullum crimen nulla poena sine lege stricta/ certa and lex retro non agit. The primary principle of culpability-blameworthiness is also established in Article 46, Section 1 of the Constitution, which adds that acts constituting offences under international law at the moment of their commission are to be punishable. 12  A Marek (ed), System prawa karnego. Tom I: Zagadnienia ogólne (Warszawa, CH BECK, 2010) 34. Although it is also commonly understood that the criminal liability for committing petty offences has specific, accordingly diminished, legal consequences (ibid, 46). 13  UT: JL of 2015, pos 1094 with further amendments. 14  For example: the Act of 15 September 2000—the Code of Commercial Companies, UT: JL from 2016, pos 1578, the Act of 29 July 2005 on Prevention of Drug Abuse, UT: JL of 2016, pos 224 and 437. 15  Namely, acts of at least the same legal standing as statutes, in accordance with the principle of the exclusivity of the statutory sources of criminal law, eg the European Convention on Human Rights (1950). 16  As one of the primary principles, if not the primary one, of the Polish criminal law is the rule of exclusivity of the statutory law, it may be added—… sine lege scripta and lege certa. 17  See generally A Grzelak, M Królikowski and A Sakowicz, Europejskie prawo karne (Warszawa, CH Beck, 2012). 18  See V Mitsilegas, EU Criminal Law After Lisbon (Oxford, Hart, 2016).

Environmental Criminal Law in Poland 163 The system of Polish criminal law encompasses the major legal principles, such as legality and the rule of law, as well as those more specific to the criminal field, like humanitarianism. As presented by Wróbel and Zoll (influential professors and authorities in the field), in view of the Polish criminal law, an offence is understood as the behaviour of a person, which: —— is undertaken in the circumstances allowing for the mental steering of one’s actions, therefore an act; —— infringes the sanctioning norm in a situation where no circumstances excluding the unlawfulness of this act occur, therefore an unlawful act; —— fulfils all of the constituent elements (features) of an act prohibited under the threat of penalty where no circumstances excluding the punishability occur, therefore a punishable act; —— manifests a higher than insignificant level of social harm, therefore a reprehensible act; —— is undertaken in the circumstances in which it would be reasonable to expect behaviour in accordance with an order or a prohibition of law from a person able to be attributed the guilt—of punishable age and sane, therefore a culpable act.19 Provisions of the Criminal Code in regard to causality and the mens rea stipulate that a felony20 must involve intent, whilst a misdemeanour21 may be committed without intent, where stated by the law (Article 8 CC). A prohibited act is committed with intent when the perpetrator wants to commit such an act—with a desire to commit it or an acceptance of the foreseen possibility of committing such act (Article 9 § 1 CC). Lack of intent occurs when a prohibited act is committed and the perpetrator does not intend to commit such an act, but does so out of a failure to exercise due care under the circumstances, even though the possibility of committing the prohibited act was foreseen by him, or could have been foreseen (Article 9 § 2 CC).22 In order for criminal liability to be attributed the perpetrator must be of age— generally stipulated by the legislator as 17 years. As an exception to this general rule, for the most serious offences,23 it is possible that a minor of 15 years of age or above may be held liable. In regard to the provisions of ‘party to the offences’ rules the Criminal Code regulates perpetration, instigation, aiding and abetting (Article 18 CC).

19 

A Wróbel and A Zoll, Polskie prawo karne. Część ogólna, n 10 above, 180. An offence under the threat of penalty of imprisonment for a minimum of 3 years (art 7 § 2 CC). 21  An offence under the threat of penalty of a fine of over 30 daily units or PLN 5,000, restriction of liberty above one month, or imprisonment for over one month (art 7 § 3 CC). 22  Additionally, the perpetrator bears more severe liability, which the law makes dependent on certain consequences of a prohibited act, if the consequences were foreseen or could have been foreseen (art 9 § 3 CC). 23  This catalogue (of art 10 § 2 CC) does not include any offences against the environment. 20 

164  Karolina Jackowicz, Malgosia Fitzmaurice and Valsamis Mitsilegas What is important concerning criminality is that although the court might consider extraordinary mitigation of punishment, generally the penalty for aiding and abetting is within the limits of the penalty for the given offence (Article 19 CC). Furthermore, individual responsibility is considered by the court within the limits of individual intent (as non-accessory liability, Article 20 CC) and in light of each participant’s personal circumstances (Article 21 CC). In a case of ‘active repentance’ an accomplice to a prohibited act who voluntarily prevented it from being carried out is not subject to a penalty,24 whilst if the prevention was unsuccessful the court might apply an extraordinary mitigation of punishment (Article 23 CC). The legislator also provides for the circumstances excluding the unlawfulness of an act in the situation of: necessary self defence (Article 25 § 1), state of necessity (protective force, Article 26 § 1 CC)25 and experiment (allowable risk of innovation, Article 27 § 1 CC).26 Also, there are provisions excluding punishability, such as mistaken circumstances (error facti and error iuris, Article 28 § 1), mistake over the exclusion of guilt (Article 29 CC) or unlawfulness (Article 30 CC) and insanity or diminished sanity (Article 31 § 1 CC). A petty offence is an act prohibited by law which due to available sanction for its commission is not an offence.27 Like an offence it is an act punishable under the threat of penalty, culpable and socially harmful, yet to a lesser extent than an offence.28 Therefore the sanctions for the commission of a petty offence differ from those provided by the Criminal Code—as these are significantly less onerous. The catalogue, in accordance with Article 1 of the Code on the Procedure for Petty Offences provides for the arrest, restriction of liberty, fine and reprimand of the wrongdoer.

2.2.  Procedural Principles The main sources of the Polish procedural criminal law are:29 —— the Act of 6 June 1997—the Code of Criminal Procedure30 (CCP), which principally regulates the criminal trial;

24 

Therefore it is a circumstance lacking punishability. In the situation of art 26 § 2 the legislator excludes culpability. 26  Additionally, amongst the lawful excuses, there is the collision of duties regulated by art 26 § 5 (A Wróbel and A Zoll, Polskie prawo karne. Część ogólna, n 10 above, 369). 27  Ibid, 29. 28  A Marek (ed), System prawa karnego. Tom I: Zagadnienia ogólne, n 12 above, 46. The specific principles of liability are regulated by Chapter I of CPPO. 29  There are also some other acts constituting the sources of criminal and specifically procedural criminal law in some relevant circumstances, for example the Act of 26 October 1982—on the Proceedings in Cases of Juveniles Act, UT: JL of 2015, pos 1418 and 1707, the Act of 10 September 1999—the Financial Criminal Code, UT: JL of 2016 pos 178, 437, 1052 and 1228. 30  UT: JL of 2016, pos 1749. 25 

Environmental Criminal Law in Poland 165 —— the Act of 24 August 2001—the Code on the Procedure for Petty Offences31 (CPPO), which regulates the proceedings for petty offences; —— the Act of 6 June 1997—the Executive Criminal Code,32 which regulates the execution of the sanctions—for both offences and petty offences—and the executive proceedings; and —— the Constitution and international agreements. In the Polish doctrine and practice the term ‘criminal trial’ refers to the entirety of actions regulated by law, the aim of which is to establish in each specific case the following: whether the offence has been committed, who is the perpetrator, whether he/she is culpable and able to partake in the trial, whether and—if so— what kind of sanctions shall be imposed, and whether and—if so—how shall these sanctions be executed.33,34 The trial has distinct phases (stages) of proceedings, namely: —— —— —— ——

preparatory, principal, review, and executive.

The preparatory proceedings are initiated with the reporting of the offence to the Police or the Public Prosecutor which is a general duty for anyone aware of the possibility of an offence having been committed—or is initiated ex officio. The next step is that the relevant organs35 proceed with an investigation or an inquiry (in the most serious cases) firstly—in rem—and if possible—in personam. In ­general, in the Polish criminal procedural system there is a duty to prosecute, and the majority of offences are indictable.36 If the bill of indictment is issued the proceedings enter the main phase—principal proceedings before the court of first instance. As a result the court issues one of the following judgments: an acquittal, discontinuance (termination) of the proceedings, conditional discontinuance of the proceedings or conviction (sentencing) of the accused. Then, there are two categories of means available to amend or review such judgments—ordinary and extraordinary. The former category consists of the legal instruments forming the appeal procedures: an appeal and a complaint. Additionally there is an objection available for procedural decisions or orders and summary j­udgments.

31 

UT: JL of 2016, pos 1713. UT: JL of 2016, pos 428 and 437. 33  W Cieślak, Prawo karne. Zarys instytucji i naczelne zasady (Warszawa, Oficyna a Wolters Kluwer Business, 2010) 347. 34 The proceedings regarding petty offences have similar aim—respectively in regard to petty offences—and ‘simplified’ conduct vis-a-vis criminal trial, in accordance with the rules of CPPO. 35  Apart from the Prosecutor or the Police it may, in specific circumstances, be for example the Central Anticorruption Bureau, Border Control etc. See art 298 of CCP which further refers to specific statutes. 36  Only in some few cases is the opportunity principle applied (for example an offence committed by a family member). 32 

166  Karolina Jackowicz, Malgosia Fitzmaurice and Valsamis Mitsilegas The extraordinary means, allowing for the review (control) of the court of first instance’s judgments, are cassation brought before the Supreme Court and reopening of the proceedings. The final and binding judgments are executed. The Polish criminal trial is based on many principles, including: —— general principles of law, eg the rule of law or the societal participation (through lay judges and, in principle, public trial); —— the warranty principles, eg presumption of innocence,37 the right to defence, the right to remain silent; —— procedural dynamics principles, eg the legality principle and acting ex officio/ officially with exceptions for the principles of accusatorial procedure or opportunity, the adversarial proceedings and ne peius; —— evidentiary proceedings’ principles, eg free appraisal of evidence by the court, burden of proof on the prosecution, standard of proof—in dubio pro reo and ‘innocent until proven guilty’38 by establishing the factual circumstances which, based on the evidence, eliminate any other versions of thereof.39 Last but not least, it must be mentioned that the legislator in Poland amends statutory provisions frequently. This is due to, for example, requirements of EU legislation or the Constitutional Tribunal’s rulings, but also ‘modernisation’ of law, as well as ‘penal populism’ in case of criminal law. However in 2015–16 a process on an unprecedented scale occurred—the ‘great amendment’ of the criminal procedure, aimed towards a more adversarial procedure and providing many significant changes, was introduced—and shortly afterwards reversed by the succeeding government. The current government also instigated another systemic reversal by returning to the joint office of the Public Prosecutor General and Minister of Justice, which had been separated only in 2010.

3.  CORPORATE LIABILITY (THE SYSTEM OF CORPORATE CRIMINAL RESPONSIBILITY)

In line with the global, and especially OECD and EU, tendencies, the Polish legislator has introduced into the legal system the concept of corporate criminal liability for certain prohibited acts through the Act of 28 October 2002 on the liability of collective entities for acts prohibited under a threat of penalty40 (the ‘Liability Act’). This Liability Act, despite initial plans to include ‘criminal’ in its title, does not refer to criminal liability per se yet quasi-criminal. Although an aspect of culpability/blameworthiness is required, it regulates a specific form of liability: repressive but also subsidiary, conditional and indirect in its character,

37 

This is also a constitutional principle as per art 42 § 3. F Rosengarten, ‘In dubio pro reo’ (1973) Nr 12 Nowe Prawo 1783. Radlińska-Kostrubała, ‘O słuszności rozwiązania zawartego w art. 397 § 4 k.p.k.’ (2006) 7–8, Prokuratura i Prawo 33, 34. 40  UT: JL of 2016, pos 1541. 38 

39  J

Environmental Criminal Law in Poland 167 as liability is subject to the commission of a prohibited act (an offence) by an individual whose conduct resulted or might have resulted in the entity’s benefit from this act, even if non-pecuniary.41 So far the Polish Supreme Court has issued a few important rulings in regard to the interpretation of the Liability Act,42 as has the Polish Constitutional Tribunal, which has issued a decision triggering the amendment of the Act in 2005.43 Article 1 of the Act establishes its scope and purpose as setting forth the rules of liability for prohibited acts under the law as (criminal) offences or fiscal offences and the rules of proceedings in the subject of such liability.44 It defines a collective entity in its Article 2—generally referring to corporate entities, with the exception of the State Treasury or local government entities. Its objective scope in Article 3 refers to specific circumstances in which a collective entity may be held liable. Namely, these are offences committed, for example, by a person acting on behalf of the corporate entity or in its interest and within the scope of his/her powers or duty to represent it; a person who makes decisions on behalf of the entity or who exercises internal control, or who exceeds his/her powers or fails to perform his/her duty (a ‘manager’); a person given permission to act by the manager or a person acting on behalf of the corporate entity or in its interest with the consent or knowledge of the Manager; or a person being ‘an entrepreneur’ (a sole trader) who is involved in a direct business relationship with the corporate entity. Importantly, the liability occurs when such conduct resulted or might have resulted in the entity’s benefit from this act, even if in a non-pecuniary way. Additional criteria are presented in Articles 4 and 5, such as a requirement for the prior liability of the individual to be established by a final judgment of the court or an extended regime for liability of the entity sufficiently amounting to at least the lack of due diligence (reasonable care) in selecting the individual or proper supervision of his/her conduct or preventing the commission of an offence by the individual (a manager or an entrepreneur) or lack of proper structure, allowing for such unlawful conduct. The list of prohibited acts committed by an individual which trigger the liability of the entity is in Article 16 of the Act. The catalogue mainly refers to various acts of economic offences (such as money laundering or money counterfeiting). The offences against the environment are described in Section 1, Point 8(A)–(H) of Article 16 by further reference to: —— destruction of nature, destruction of the environment, offences regarding dealing with waste or substances, dereliction of duties regarding installations protecting the environment, destroying and/or damaging protected land or objects, damaging activities against the environment;45

41 

A Wróbel and A Zoll, Polskie prawo karne. Część ogólna, n 10 above, 181. example the decisions in: IV KK 427/2008 of 5 May 2009, V KK 27/11 and V KK 57/11 of 11 April 2011 and V KK 149/13 of 4 July 2013. 43  The judgment of 3 November 2004 in K 18/03, JL of 2004, No 243, pos 2442. 44  The proceedings differ from the ‘typical’ trial. 45  Arts 181–184 and 186–188 of CC. 42  For

168  Karolina Jackowicz, Malgosia Fitzmaurice and Valsamis Mitsilegas —— introducing to the market/environment mixtures or detergents endangering human health or the environment, export of chemicals or products including chemicals in breach of these provisions, breaches of law regarding surfactants;46 —— use of genetically modified micro-organisms or releasing genetically modified organisms (GMO) into the environment, causing danger to the life or health of many persons, dereliction of duties in case of failures, dereliction of duties concerning providing information of the GMO user, breaches of the act regarding safety;47 —— introducing to the market/environment or not removing off the market/ environment chemical substances, their mixtures or products in contravention of the decision of the sanitary inspector;48 —— breaches of law regarding possession of the protected species or animals, and trade in protected species;49 —— production, import, export or placing on the market or use of ozonedepleting substances or products and installations using controlled substances or dependent on them, issuance of certificates for personnel or businesses without authorisation;50 —— discharging from a ship dangerous polluting substances in such quantities or forms that it might cause degradation of water quality, endanger the life of many persons or their health or cause damage to the sea fauna and flora in sizeable quantities.51 The catalogue referring to the offences against the environment has been significantly extended since 2003, when the Liability Act entered into force, including as a result of transposing the ECD. The available sanctions are listed in Articles 7–12 of the Liability Act. The fines range from PLN 1,000 to PLN 5,000,000, yet cannot exceed three per cent of the entity’s revenue from the fiscal year in which the act giving rise to the liability of the entity was committed. There is also an obligatory forfeiture of the goods and/or objects or material benefits derived from committing the offence, as well as forfeiture of items used for its commission. There are as well some facultative measures such as public announcement of the court’s decision, prohibition of bidding for public contracts or applying for public material aid. These bans may be imposed for a period of one to five years.

46  Arts 31–34 of the Act of 25 February 2011 on Chemical Substances and Their Mixtures, UT: JL of 2015, pos 1203. 47  Arts 58–61 and art 64 of the Act of 22 June 2001 on Microorganisms and GMO, UT: JL of 2015, pos 806. 48  Art 37b of the Act of 14 March 1985 on State Sanitary Inspection, JL of 2015, pos 1412 with further amendments. 49  Arts 127a and 128a of the Act of 16 April 2004 on Nature Conservation, UT: JL of 2016, pos 2134. 50  Arts 52–53 of the Act of 15 May 2015 on Substances Depleting the Ozone Layer and Certain Chlorofluorocarbons (CFCs), JL of 2015, item 881. 51  Art 35a of the Act of 16 March 1995 on Protection of the Sea from Pollution from Ships, JL of 2015, pos 434 and 881.

Environmental Criminal Law in Poland 169 Although the regulations of the Liability Act have been in force for over 13 years they are generally considered ineffective. Firstly, there are very few proceedings taking place. The total number of corporate entities prosecuted under the Liability Act is 206.52 So far, out of these very few proceedings virtually none refer to acts against or to the detriment of the environment. What is more, if the initiated proceedings end with convictions the actual sanctions imposed are low and insignificantly vexatious—until 2014 in only 55 proceedings were fines imposed, with the highest fine being PLN 12,000.53 Other sanctions, like the possibility to publicise the judgment are also very rarely used or have not yet been used (like the prohibition of bidding for public contracts).54 Therefore, the Ministry of Justice in spring 2016 initiated the process of amendment and began consultations on the Bill, in order to introduce a more stringent and effective system.55 For example, the proposed amendment aims at eliminating the necessity for the prior criminal liability of an individual, established by a court judgment, as a precondition for considering the entity’s liability. The regime of the Liability Act does not preclude any other forms of liability either of the individual or of the legal person. Additionally, Article 52 of CC might be emphasised, as it has a ‘corporate liability’ aspect. This article provides that in case of a conviction for an offence which benefits a natural or legal person or organisational unit without legal personality, committed by a perpetrator acting on behalf or in the interest of the said person or unit, the court shall order the forfeiture of items derived from such an offence, including environmental, unless they are subject to return to the injured person or any other entity.

4.  ENVIRONMENTAL LAW

Polish environmental law only recently has become fully recognised, by the majority of Polish scholars, as a branch of law.56 It is understood as regulations

52  In a period from 2005 to 2015, according to the statistics of the Ministry of Justice of Poland— citing M Ciemiński and P Pogorzelski, ‘Poland’, in Clifford Chance, Corporate Criminal Liability (April 2016, online) 29, 30. 53  Ibid. 54  Ibid. 55  See further: https://bipkprm.gov.pl/kpr/form/r2359,Projekt-ustawy-o-zmianie-ustawy-oodpowiedzialnosci-podmiotow-zbiorowych-za-czyn.html. 56  This is not a unanimous perspective and there are some notable exceptions, for example Rakoczy, who presents environmental law as part of administrative law (see B Wierzbowski and B Rakoczy, Prawo ochrony środowiska (Wolters Kluwer 2015) 25) or Boć (see J Boć, E Samborska-Boć and K Nowacki, Ochrona środowiska (Wrocław, Kolonia Limited, 2008) 124). For the summary of the arguments for the overwhelming approach see B Iwańska, Koncepcja ‘skargi zbiorowej’ w prawie ochrony środowiska (Warszawa, Lex a Wolters Kluwer, 2013) 27–29 and 39. Similar academic debate centres around whether environmental law creates or should create a specific ‘system’, like civil, criminal or administrative law. What appears undisputable, however, is that Polish environmental law is—mainly—a part of public law and overwhelmingly administrative in its character.

170  Karolina Jackowicz, Malgosia Fitzmaurice and Valsamis Mitsilegas protecting the environment—generally referring to the broad definition as per Article 3 Point 3957 of the Act of 27 April 2001—the Law on Protection of the Environment (Environmental Protection Law, EPL).58 Its fundamental place in the Polish legal order stems from the Constitution59 and its roots belong to the administrative law, with further inclusion of norms and aspects of criminal, civil and international and EU law.60 The origins of twentieth-century environmental regulation in Poland derived from the protection of nature through statutes on nature conservation,61 which were later extended to protect natural resources, people and their surroundings. Modern beginnings can be attributed to the Act of 31 January 1980 on nature conservation and environmental planning,62 which introduced the term ‘environment’ next to the already used term ‘nature’. The next milestone in the development of Polish environmental law was the pre-accession period of 1997–2004, geared towards harmonisation with the acquis communautaire. The core statutes enacted in this process were the EPL and the Act of 16 April 2004 on Nature Conservation (Ustawa o ochronie przyrody). The EPL was originally enacted with the intention of providing a thorough, horizontal and consolidated system of protection of the environment integrating, extending and updating the previous laws and introducing relevant definitions63 and general principles.64 The EPL has a standing of lex generalis and is the primary act for the arena of environmental law with many legi speciali, in particular sectoral statutes which may derogate from the general provisions of the EPL. However, further needs for the protection of the environment as a consequence of the expansion of the EU environmental law provisions have resulted in the steady growth of the number of Polish acts regulating the field, currently amounting to over 15 significant statutes.65 Besides, as a typical feature of this area of law, there are many executive acts implementing these statutes (such as regulations) and

57  This definition is generally congruent with the widely accepted understanding of the environment functioning in the arena of international and EU law, referring to the complex system entailing both natural and human-made aspects. 58  UT: JL of 2013, pos 1232 with further amendments. 59  With direct reference to the environment and its protection in articles: 5 (sustainable development), 31 § 3 (proportionality), 68 § 4 (prevention of harmful for health consequences of environmental degradation), 74 § 2 (duty of public authorities to protect the environment) and 74 § 3 (right to the information about the environment) and 86 (common duty to protect the environment). 60  P Korzeniowski (ed), Prawo ochrony środowiska. Zagadnienia systemowe (Łódź, Wydawnictwo Uniwersytetu Łódzkiego) Introduction. 61  Acts of 10 March 1934 (JL No 31, pos 274) and 7 April 1949 (JL No 25, pos 180). 62  UT: JL of 1994 No 49, pos 196. 63  See art 3 of EPL—definitions and general rules in the glossary of terms. 64  See Title II of Chapter I of EPL. 65  For example: the Act of 18 July 2001—the Water Law, UT: JL of 2016, pos 352 and 1250), the Act of 14 December 2012 on Waste, UT: JL of 2016, pos 1987, the Act of 13 April 2007 on the Prevention of Damage to the Environment and its Remediation UT: JL of 2015, pos 277 and 1926, the Act of 28 April 2011 on the System of Trading in Greenhouse Gas Emission Allowances, UT: JL of 2013, pos 1238, the Act of 15 October 1995—the Game Law, UT: JL of 2016, pos 1082, the Act of 18 April 1985—the Law on Inland Fishery, UT: JL of 2015, pos 652.

Environmental Criminal Law in Poland 171 acts of local administration, as well as general substantive and procedural norms which are used in the process of applying environmental law (such as the Act of 30 August 2002—the Law on Procedure Before the Administrative Courts).66 As a result, Polish environmental law is diversified and very fragmented, as well as subject to frequent and extensive amendments.

5.  ‘ENVIRONMENTAL LIABILITY’

In Poland it is recognised that the state has a duty to protect the environment and to provide protection of rights, such as the right to the environment, and of the individuals—in both public and private dimension.67 As a result, and in light of the nature of the environment—as a complex system—the provision of this protection is delivered through complex and integrated regulations, involving instruments of administrative, civil and criminal law. In the national legislation, as on the EU level, the priority is given to prevention and to remedying any damage to the environment, in accordance with principles such as the ‘precautionary’ or ‘the polluter pays’ principles. However, simultaneously at the core of the protection system lies one of the most important instruments allowing for sanctions which safeguard the environment—liability for breaches of law. The core elements of liability in regard to the environment (‘environmental liability’) are: —— The subject liable (a natural or legal person or an organisational unit without legal personality); —— An occurrence or a state in the environment which is qualified as negative by the law (for example damage or creation of a threat of damage and/or a breach of law); —— The regime (rules) of responsibility for such occurrence or state (on the basis of culpability and/or risk);68 —— Negative consequences (sanctions) towards the liable subject for such occurrence or state (for example a fine, damages or arrest).69 In light of the EPL the separate regimes of environmental liability are not mutually exclusive, but independent and complementary. Hence it is possible that a liable

Despite the Waste Law there are also many legal acts specifically devoted to particular types of waste, for example: packaging, mining, used electronic equipment, used batteries or vehicles taken out of service. 66 

UT: JL of 2016, pos 718, 846, 996 and 1579. This duty stems from the Constitution, EU law and many international treaties. 68  In regard to civil liability it is also possible to apply the principle of fairness, although it has a much more limited application than the main principles of culpability and risk. 69  See J Stelmasiak, ‘Odpowiedzialność administracyjna w ochronie środowiska, zagadnienia podstawowe’ in A Przyborowski- Klimczak (ed), Ekologia i prawo. Materiały z sesji naukowej Lublin 7–8 czerwca 1997 (Lublin, Towarzystwo Naukwe, Katolickiego Uniwersytetu Lubelskiego, 1999) 209. 67 

172  Karolina Jackowicz, Malgosia Fitzmaurice and Valsamis Mitsilegas subject might incur any of or all administrative, criminal and civil sanctions— imposed in three separate proceedings before different organs—for the same act against or to the detriment of the environment. Simultaneously—if a subject is not found liable in one set of proceedings it does not imply the lack of liability in other proceedings, since on each occasion the circumstances and premises are established in accordance with the principles of a separate regime of, respectively, administrative, civil70 or criminal law. Furthermore triggering of one set of proceedings, especially the regimes applied ex officio, does not automatically result in other proceedings being initiated. Lastly, in most cases, these proceedings are initiated at different stages of the impairment of the environment (for example civil liability when the damage or a threat of it is occurring, or has occurred, and criminal liability when the result of the impairment or the threat of it has become apparent). The practice shows that effectively primacy is given to administrative liability,71 which performs preventive and restitutionary functions.72 Administrative environmental liability refers to the possibility of initiating a legal action, undertaken in the form and through proceedings specific to the administration, against a specified subject for its activity infringing the state of the environment.73 Such liability may arise when an obligated subject breaches the provisions of a final administrative decision or ex lege duties (and/or obligations) in the field of environmental protection.74 Most importantly such proceedings may be initiated—in the situation of real damage to the environment as well as when there is a risk of such a negative impact—by an administrative organ which, as a result, issues a decision. The rationale is to provide a less formalised and faster decision-making process of a warranty type—irrespective of culpability and establishing the size and scope of the damage or its causal link, hence providing more effective protection of the environment than through court proceedings.

70  With the exception of art 11 of the Code of Civil Proceedings, which states that the findings of a final judgment with a conviction of guilty where a criminal punishment is imposed are binding for the court in civil proceedings. 71  This is a result of not only an alignment with the ELD directive (Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage), but also mirrors the view of the majority of Polish doctrine and of the legislature—that environmental law, and hence protection of the environment, is predominantly administrative in its nature. 72  For further discussion see section 10 of this chapter (Sanctions). 73  J Stelmasiak (ed), Prawo ochrony środowiska (Warszawa, Lexis Nexis, 2010) 127, citing W Radecki, ‘Odpowiedzialność w ochronie środowiska’ in Komentarz do ustawy—Prawo ochrony środowiska (Wrocław, 2002) 119. 74 J Stelmasiak (ed), Prawo ochrony środowiska, n 73 above, 127, citing L Jastrzębski, ‘Odpowiedzialność administracyjna za naruszenie środowiska’ Organizacja—Metody—Technika w administracji państwowej (Warszawa, Instytut Administracji i Zarządzania, 1986) 10, 8–13.

Environmental Criminal Law in Poland 173 According to the EPL, in order to limit the negative impact on the environment, the following administrative decisions are available to the administrative organ as sanctions:75 I. An order stating the duty: 1) to limit the impact on the environment and the threat to it (Article 363 Section 1 Point 1 EPL); 2) to restore the environment to the proper state (Article 363 Section 1 Point 2 EPL). If the above is impossible then the organ may issue an order for the payment of allocated sums of money (Article 363 Section 2 EPL). II. To limit or cease the operations threatening the environment (Article 364 EPL). III. To limit or stop the operation of a plant (Article 365 EPL). Secondly, there is a regime of civil liability—considered to be of almost equal importance as the administrative regime and certainly of much more significance than criminal liability in the protection of the environment.76 This regime complements the administrative liability performing mainly a compensatory function, along with restitutionary and preventive functions.77 As Article 322 of EPL states—unless stated otherwise (by any statutory legi speciali) it is regulated by the provisions of the Civil Code.78 Specific instruments of the Civil Code regulating the individual interests in relation to the environment are amongst the law of delicts (torts),79 property law80 and protection of personal interests,81 as well as in general provisions safeguarding contracts.82 Furthermore many statutes in

75  Following the fulfilment of premises referred to in the respective articles—in art 363 the decision and sanction are discretionary, whilst in arts 364 and 365 they are obligatory. 76  B Rakoczy, ‘Komentarz do art. 322 ustawy Prawo ochrony środowiska’ in J Ciechanowicz-McLean, Z Bukowski and B Rakoczy, Prawo ochrony środowiska. Komentarz (Warszawa, Lexis Nexis, 2008) 510 citing E Czech, ‘Sytuacja prawna podmiotów dochodzących swych praw w związku z naruszeniem środowiska’ in Europeizacja Prawa Ochrony Środowiska (2011) 341, 343. The civil environmental liability is gaining importance and is applied much more frequently due to, for example, failures of the imposition of administrative or criminal environmental liabilities, insufficient sanctions for breaches of the environment or the general tendency of society becoming more prone to pursue litigation. 77  See J Stelmasiak, ‘Odpowiedzialność administracyjna w ochronie środowiska, zagadnienia podstawowe’, n 69 above, 136–38. 78  UT: JL of 2016, pos 380 and 585. 79  See art 415 CC stating the general obligation of restitution of any culpable damage and art 435 CC regulating the liability for the operation of an enterprise, as well as art 323 EPL—an instrument triggering liability separate from the Civil Code—referring to the operations of an enterprise which pose a direct threat of damage and therefore may be restricted. 80  See art 222 § 2 Civil Code in connection with art 144 Civil Code referring to nuisance (emissions on the property), such as noise. 81  See art 23—where the first of the stated protected values is health—and art 24 of the Civil Code. 82  See Book III of the Civil Code—‘The Obligations’, which are relevant to any contracts, including in the field of the environment, for example the collection of waste.

174  Karolina Jackowicz, Malgosia Fitzmaurice and Valsamis Mitsilegas the field of the environment contain specific provisions regulating environmental civil liability, for example there are specific regulations on ‘ecological damage’— which differ from the rules applied to ‘typical’ damage.83 Thirdly, there is the regime of environmental criminal liability, aimed at fulfilling first and foremost repressive and preventive functions, and performing compensatory and restitutionary functions only to a lesser extent. Therefore it is considered to be the ultima ratio, with only the most serious acts against, or to the detriment of, the environment being punishable through criminal instruments. In order for an offence to fall within the scope of the Criminal Code it generally has to be of an aggravated nature and cause substantial harm or danger, especially in regard to the environment (high level of danger or extent of damage, for example harm to the environment resulting in the loss of human lives). The punishable acts can be committed both intentionally and negligently. Despite being regulated in a very detailed manner the regime of environmental criminal liability is subsidiary in its character towards the administrative law.84 In order to establish whether an act fulfils the premises for criminal liability— either as an offence or petty offence—the process of legal interpretation must be supplemented with reference not only to criminal law but also—primarily—to administrative law (for example specific administrative decisions or general provisions and standards). Therefore the subject of protection is the proper fulfilment of administrative duties.85 This detailed regulation, as well as the constant expansion of criminal regulation in the field of environment, has given rise to the concept of ‘environmental criminal law’ (prawo karne środowiska). 6.  ENVIRONMENTAL CRIMINAL LAW

Just as there has been debate amongst the Polish scholars on whether environmental law can be distinguished as a branch of law, there is an ongoing discussion concerning the existence of environmental criminal law.86 Even in the event of a

83 

For example art 126 of the Act on Nature Conservation or arts 185–187 of the Water Law. J Boć, E Samborska-Boć and K Nowacki, Ochrona środowiska, n 56 above, 379. 85  Indirectly the protected interest is the environment which is safeguarded by the specific provisions of administrative law (such as general regulations and standards or individual administrative decisions). 86  This discussion follows the debate on the existence of environmental law, to which a positive answer is a sine qua non for the discussion on ‘environmental criminal law’. It also further mirrors the debate on the nexus of criminal and administrative law, especially around the nature of monetary penalties. Since they can be sometimes much more onerous on the perpetrator than the sanctions for petty offences, whether they shall be decided by courts, instead of the administrative organs. This would minimise the automaticity of the decision-making process towards the assessment of circumstances, eg in mitigation, and would be subject to the review process, rather than just control of the legality of the decision-making procedure by the administrative courts. Also there are some discrepancies regarding different regimes for the assessment of certain prohibited acts against the environment where the 84 

Environmental Criminal Law in Poland 175 positive outcome of this debate, a second issue has to be resolved—a question of the scope of environmental criminal law. Acts committed against the environment, regulated as criminal offences, constitute criminal environmental law sensu stricto. Petty offences against the environment belong to criminal environmental law sensu largo. The contested issue refers to the position of administrative offences, petty offences and delicts which are penalised by monetary penalties (‘administrative delicts’).87,88 The bone of contention is whether these are in fact criminal in nature and—if so—whether therefore they should form part of the criminal environmental law sensu largissimo.89 This view is predominantly rejected, therefore limiting the scope of environmental criminal law to offences and petty offences.90 In the case of environmental criminal law, it is criminal law protecting the environment; hence these are acts prohibited under the threat of penalty which specifically have the environment as an object of the act. These acts are regulated either by the Criminal Code—encompassing a dedicated Chapter XXII titled ‘Offences against the environment’—or in specific statutes. The Polish legislator had the intention to make an exhaustive list of the different types of environmental crimes in the Criminal Code.91 Nevertheless, there is a significant set of provisions of the out-of-code prohibited acts regulated by the specific articles of many sectoral statutes. These regulations are an indispensable part of environmental law and, as the liability is established in accordance with the criminal law and procedure, therefore they undoubtedly form part of environmental criminal law.

7.  ENVIRONMENTAL CRIME

There is no legal definition of ‘environmental crime’ in Polish law. Therefore the analysis for such classification is at least twofold. There is an environmental aspect—an act must be committed against the environment—as understood liability is different for natural and legal persons, which raises the questions of fairness. See further W Radecki, ‘Odpowiedzialność za wykroczenia jako środek prawny ochrony środowiska’ in B Rakoczy and M Pchałek (eds), Wybrane problemy prawa ochrony środowiska (Warszawa, Wolters Kluwer business 2010) 312–14. 87 

See further D Szumiło-Kulczycka, Prawo administracyjno-karne (Kraków, Zakamycze, 2004) 29. three forms of regulation of forbidden conduct were named by Radecki a ‘penal triad’ (W Radecki, ‘Regulacje penalne w systemie prawa ochrony środowiska’ in P Korzeniowski (ed), Prawo ochrony środowiska. Zagadnienia systemowe (Łódź, Wydawnictwo Uniwersytetu Łódzkiego, 2015) 82. 89  For the summary of discussion on administrative criminal law see W Radecki, Ochrona środowiska w polskim, czeskim i słowackim prawie karnym. Studium prawno porównawcze (Warszawa, LEX a Wolters Kluwer Business, 2013) 48; W Radecki, ‘Polskie prawo karne środowiska—próba spojrzenia syntetycznego’ in (2009) 1 Ius Novum 70–94, 70–71; W Radecki, ‘Odpowiedzialność za wykroczenia jako środek prawny ochrony środowiska’, n 86 above, 297–98. 90  J Stelmasiak, ‘Odpowiedzialność administracyjna w ochronie środowiska, zagadnienia podstawowe’, n 69 above, 154. 91  Report by the Network of Prosecutors of Environmental Crime (ENPRO), Manual on prosecuting environmental crime in the Baltic Sea region (revised 2016), 24. 88  These

176  Karolina Jackowicz, Malgosia Fitzmaurice and Valsamis Mitsilegas by environmental law. Further—in a general criminal aspect—such an act must be safeguarded by sanctions of criminal nature and therefore falls under criminal liability. In a concrete aspect of each individual case, established ad casum through the criminal procedure, this means that for establishing the specific criminal liability of an individual such an act must fulfil the general criminality criteria—it must be an unlawful, punishable, reprehensible and culpable act92 in the case of offences, or in the case of petty offences, it must fulfil similar criteria yet to a lesser extent. The criminal aspect of the analysis of an act is undertaken in light of the general provisions of the Criminal Code or Petty Offences Code, as well as the specific regulations stating the constituent elements of the said act. These specific provisions may be found either in the codified or out-of-code, statutory regulations of various sectoral acts. As stated above (in the section on ‘environmental liability’), frequently in the process of establishing individual criminal liability, those sectoral acts refer further to administrative regulations, for example governing the terms of a specific permit, or local laws the provisions of which were breached (ie Article 332 of ELP states criminal liability—as an act which is sanctioned by a fine—where the perpetrator does not fulfil the limits, orders or prohibitions in a resolution issued by the assembly of the voivodeship issued on the basis of Article 92 Section 1(c), which in turn refers to the list of entities using the environment to limit or cease certain harmful activities, for example introducing gases or dust from their installations to the environment).93 The codified criminal environmental law is regulated primarily in Chapter XXII—Articles 181–188 CC—entitled ‘Offences against the environment’. These provisions may be divided into two groups which respectively penalise acts causing: 1) destruction to fauna and flora (Articles 181, 187 and 188 CC); 2) pollution and/or infringements of regulations on waste and radiation (Articles 182–186 CC).94 These offences describe: 1) 2) 3) 4) 5) 6) 7) 92 

causing destruction in nature; polluting water, air or soil; unlawful handling of waste and/or substances; threat to nuclear safety; lack of due maintenance of the protective facilities; destruction or harm to protected areas or objects; unlawful actions on protected areas.95

Generally, these acts are of an aggravating nature and cause substantial harm or danger. Z Bukowski, E Czech, K Karpus and B Rakoczy, Prawo ochrony środowiska. Komentarz, 607. See further ibid, 603–52 entitled Criminal liability, referring to arts 329–361 of ELP. 94 W Radecki, in M Bojarski, M Filar, M Filipkowski and O Górniok (eds), Kodeks karny. Komentarz (Warszawa, LexPolonica, 2004), point III regarding Chapter XXII, citing J Stelmasiak (ed), Prawo ochrony środowiska, 162. 95  See further: W Radecki, ‘Przestępstwa przeciwko środowisku’ Rozdział XXII in Kodeksu karnego. Komentarz (Warszawa, 2001); W Radecki, ‘Polskie prawo karne środowiska—próba spojrzenia 93 

Environmental Criminal Law in Poland 177 Apart from Chapter XXII there are some other provisions in the Criminal Code relevant to the protection of the environment which also form part of the codified criminal environmental law, namely offences against: —— public safety (Articles 163–165 CC); —— the functioning of the public institutions and the local administration (Article 225 § 1 CC); —— property (Article 290 CC). Secondly, the Petty Offences Code lists a number of petty criminal offences concerning the environment. These are mainly listed in Chapter XIX, entitled ‘Damage to forestry, fields and gardens’, regulating the management and protection of the proper state of forests, fields and gardens (Articles 148–166 POC). Moreover there are many criminal provisions concerning the environment in the out-of-code statutory provisions. In regard to criminal liability there are 17 statutory acts96 regulating environmental offences such as EPL (Articles 329–361), the Nature Conservation Act (Articles 127–132), the Act on Microorganisms and GMO (Articles 57–65g) or the Game Law (Articles 51–54). In regard to petty offences— almost every statute regulating the environment contains such provisions.97 Finally, across many environmental statutory acts there are numerous regulations of administrative delicts.98

8.  TRANSPOSITION OF THE ENVIRONMENTAL CRIME DIRECTIVE

Poland has implemented the provisions of the ECD with a three-month delay, by the Act of 25 March 2011 on the Amendment of the Act—Criminal Code and some other Acts.99 On 10 May 2011 Poland presented the European Commission with the text of the final Act which entered into force on 10 June 2011.100 The main ground for amendments was the implementation of the provisions of the ECD, as provided in the reasons for the Bill,101 therefore to align the Polish legislation with the EU provisions for the purpose and expectation of the ‘better respect for the provisions of environmental protection’.102

syntetycznego’, n 89 above, 70–94; W Radecki, ‘Regulacje penalne w systemie prawa ochrony środowiska’, n 88 above, 81–99. 96  For a full list see W Radecki, ‘Regulacje penalne w systemie prawa ochrony środowiska’, n 88 above, 85–87 and W Radecki, ‘Odpowiedzialność za wykroczenia jako środek prawny ochrony środowiska’, n 86 above, 297–312. 97  See further Radecki, n 88 above, 87–88. 98  See further Radecki, n 88 above, 88–93. 99  JL No 94, pos 549. 100  S Raniszewski, ‘Dyrektywa Parlamentu Europejskiego i Rady w sprawie ochrony środowiska poprzez prawo karne oraz jej implementacja do polskiego porządku prawnego’ (2012) 2 Przegląd Prawa Ochrony Środowiska, 79. 101  Available as a Druk Sejmowy No 3755 at: www.sejm.gov.pl. 102 Full text available at: https:www.premier.gov.pl/wydarzenia/decyzje-rzadu/projekt-ustawy-ozmianie-ustawy-kodeks-karny-oraz-niektorych-innych-ustaw.html.

178  Karolina Jackowicz, Malgosia Fitzmaurice and Valsamis Mitsilegas Specifically, the introduced changes referred to the: —— Criminal Code; —— Nature Conservation Act; —— Act on Substances Depleting the Ozone Layer and Certain Chlorofluorocarbons (CFCs); and —— Liability Act. Chapter XXII of the Criminal Code, as a result of implementation of the ECD, had amendments introduced to Articles 182–186. In Articles 182, 183, 184 and 185 respectively new provisions were added. Their purpose was to add more precision by further specifying the unlawful acts. In particular, the additions state the specific consequences of the act of the perpetrator which might result in significant harm causing the threat of serious detriment to the health of a person/ people or death. The previous wording of ‘[an act] … which could endanger the life or health of many persons and/or cause destruction to plant or animal world of considerable size’ was in each case replaced with the wording of the ECD and currently states: ‘could endanger the life or health of a human being or cause considerable destruction to plant and animal world’, therefore changing ‘many persons’ into ‘a human being’ and ‘destruction’ into ‘considerable destruction’. The relevant act will be penalised if it is proven that the said act—for example as in Article 182, of a polluting substance introduced to the environment (water, air or soil)—might result in the endangerment of life or health and/or substantial damage to the quality of the environment (water, air or soil) and/or cause considerable destruction to plant and animal world.103 Amendments of Article 182 represent the adjustment to the provisions of Articles 3(a), (d) and (h) of the ECD. The legislator also added to Article 182 two new paragraphs—2 and 3—which refer to a newly introduced regulation of operating a plant within the company, previously unregulated.104 The amended Article 183 § 1 transposes the provisions of Articles 3(b) of the ECD, whilst Article 184 transposes those of Article 3(e) of the ECD, and Article 185 § 1, those of Article 3(a) and (d). In implementing Article 3(h) of the ECD Article 187 was changed, whereas the adjustments to Article 186 were mere terminological changes, giving uniformity to the terms used across the provisions of EPL and the Criminal Code, adjusted to the wording of the ECD. Changes in the Act on nature conservation are referred to in Articles 127a, 128a and 129. Article 127a transposes the provisions of Article 3(f) of the ECD and there is a discrepancy between the two. Specifically, Polish provisions refer to ‘entering into possession’ of specimens of protected wild fauna or flora species as

103  S Raniszewski, ‘Dyrektywa Parlamentu Europejskiego i Rady w sprawie ochrony środowiska poprzez prawo karne oraz jej implementacja do polskiego porządku prawnego’, n 100 above, 80–81. 104  As a subset within already existing regulations of separately operating a company and operating an installation, but not as an installation within a company (ibid, 82).

Environmental Criminal Law in Poland 179 opposed to ‘the killing, destruction, possession or taking of (the said) specimens’, therefore providing insufficient protection.105 Article 128, in turn, transposes the provisions of Article 3(g) of the ECD and prohibits trading in specimens of protected wild fauna or flora. The legislator had introduced liability for more significant trading, namely, that which has an impact on the proper conservation status of the traded species.106 Amendments to the Act on Substances Depleting the Ozone Layer and Certain Chlorofluorocarbons (CFCs) transpose the provisions of Article 3(i) of the ECD. The said Act, in its Articles 38–47, regulated petty offences. As a result of transposition Articles 46 and 47 were removed and instead, the modified provisions of the former were introduced in Article 47a, providing liability for the production, importation, exportation, placing on the market, or use of ozone-depleting substances.107 However, Article 47a was later removed from the text of the said Act and its provisions were transferred to Articles 52–53. Article 52 Section 1 currently refers to the specific provisions of Articles 4–13, 15, 17, 20 and 24 of Regulation (EC) No 1005/2009 and concerns the liability of those who produce, import, export, place on the market or use ozone-depleting substances. Amendments to the Liability Act implemented Articles 6 and 7 of the ECD. They expanded Article 16 Section 1, Point 8 by adding the provisions of ­Article 127a and Article 128a of the Nature Conservation Act and Article 47a (which later was amended to Articles 52–53) of the Act on Substances Depleting the Ozone Layer and Certain Chlorofluorocarbons (CFCs)108 as acts for the commission of which an entity might be held liable. The crucial difference in the regime of liability of collective entities—vis-a-vis the ECD—is the character of this liability. In Poland it is subsidiary, as a precondition of the liability of the entity is the prior criminal liability of an individual, established by a final court judgment. This is a departure from the ECD’s liability standard.109 However, as indicated in the ‘Corporate liability’ section, the legislator is working on amendments to these regulations based on elimination of this precondition.110 In general the implementation of the ECD was well received, as being executed in a clear, concise, logical and synthesised manner, with additional unifying of the terminology between various environmental statutes (for example the Criminal Code with EPL). However, a mistake or carelessness of the legislator has

105  S Raniszewski, ‘Dyrektywa Parlamentu Europejskiego i Rady w sprawie ochrony środowiska poprzez prawo karne oraz jej implementacja do polskiego porządku prawnego’, n 100 above, 86–87. 106  Ibid, 87. 107  Ibid, 87. 108  As described in section 3—‘Corporate liability’ in this chapter. 109  W Radecki, Ochrona środowiska w polskim, czeskim i słowackim prawie karnym. Studium prawno porównawcze, n 89 above, 305–06; S Raniszewski, ‘Dyrektywa Parlamentu Europejskiego i Rady w sprawie ochrony środowiska poprzez prawo karne oraz jej implementacja do polskiego porządku prawnego’, n 100 above, 86. 110  As described in section 3—‘Corporate liability’ in this chapter.

180  Karolina Jackowicz, Malgosia Fitzmaurice and Valsamis Mitsilegas been noted. Namely, in Article 185 §§ 2 and 3 the legislator created two types of offences—dividing a lesser included offence, (i) where a consequence is serious detriment to the health of a person and (ii) where the consequence of the offence is death of a person or serious detriment to the health of many persons. The potential sanction for a consequence of serious detriment to the health of a person was, in turn, reduced from the previous penalty from two to 12 years’ imprisonment to a new range of 1 to 10 years’ imprisonment. This division was deemed unnecessary and inconsistent with other provisions of Criminal Code.111

9.  PROCEDURAL PROVISIONS, ACTORS AND INSTITUTIONS IMPLEMENTING THE ENVIRONMENTAL CRIME DIRECTIVE

9.1.  Procedural Provisions on Environmental Crimes The implementation of the ECD did not trigger any changes in regard to criminal procedure. Since there have not been any specific procedural rules concerning environmental crimes the general provisions of the Code of Criminal Procedure apply. There are also no specialised divisions of the Police or Public Prosecution dedicated to combating environmental crime. Environmental crimes, as with most of the offences in the Polish criminal law, are indictable offences prosecuted ex officio—a Public Prosecutor has full discretion in pursuing environmental crimes and a duty to investigate. Correspondingly, there is a duty to report. Practically—in cases of serious crime with a significant threat to the environment this necessitates urgent reporting to the Police or Public Prosecution, enabling them to participate with the Environmental Inspection in preliminary examinations. Further, certain administrative authorities are able to commence criminal proceedings themselves for some infringements (such as forestry, fisheries or hunting offences and customs affairs).112 Also, in some more complicated cases, during the trial the Prosecution or the Police may be assisted by an expert on environmental issues or a competent institute.

9.2. Actors and Institutions Implementing the Environmental Crime Directive113 The main institutions responsible for administrative enforcement of environmental legislation are the Ministry of the Environment and its subordinate unit, the 111  S Raniszewski, ‘Dyrektywa Parlamentu Europejskiego i Rady w sprawie ochrony środowiska poprzez prawo karne oraz jej implementacja do polskiego porządku prawnego’, n 100 above, 88–89. 112 ENPRO, Manual on prosecuting environmental crime in the Baltic Sea region, n 91 above, 16, 19. 113  For the reporting on the law enforcement practice, see further V Mitsilegas, M Fitzmaurice and E Fasoli, Fighting Environmental Crime in Poland: A Country Report. Study in the Framework of the EFFACE Research Project (London: Queen Mary University of London, 2015) 19–24.

Environmental Criminal Law in Poland 181 General Inspectorate for Environmental Protection. The tasks of this Inspectorate are performed by the Chief Inspector for Environmental Protection assisted by the General Inspectorate for Environmental Protection and Voivodes, supported by Voivodeship Inspectors for Environmental Protection, as heads of Voivodeship Inspections for Environmental Protection, constituting a part of the combined voivodeship administration.114 These authorities have powers to control compliance with environmental legislation, examine the state of the environment under the programme of National Environmental Monitoring and are responsible for prevention of major accidents. These tasks are fulfilled by, for example: —— controlling compliance with decisions specifying the conditions of using the environment or the use of installations and facilities protecting the environment against pollution; —— participating in proceedings related to the location of investments or in the commissioning of structures or installations that may have a significant impact on the environment.115 In cases of environmental crimes, the Inspector of Environmental Protection has the right to participate in criminal proceedings with the rights of a Public Prosecutor, even when an indictment was made by a prosecutor himself (Article 14 of the Environmental Protection Inspection Act). The Inspectorate of Environmental Protection is obliged to cooperate with the Police, judiciary and the Head of the National Criminal Information Centre (Article 2 of the Environmental Protection Inspection Act), including cooperation during investigation and prosecution of environmental crimes. The Inspectorate of Environmental Protection is also in charge of executing administrative sanctions. In the case of petty offences and administrative proceedings in environmental cases, procedures from the Code on the Procedure for Petty Offences or the Code of Administrative Procedure are applied. In regard to the criminal trial, the Public Prosecutor is the main actor managing preparatory proceedings or supervising it if it is carried out by the Police. In the principal proceedings the Court becomes the host and manager of the process. Among the entities that participate in the criminal trial there are also the: —— —— —— —— ——

114  115 

Auxiliary Prosecutor; Victim; Accused; Defender (or criminal defence lawyer); Legal Counsel;

Ibid. Ibid, 20.

182  Karolina Jackowicz, Malgosia Fitzmaurice and Valsamis Mitsilegas —— Representative of the public (if there is a need to protect the public interest or important individual interests arise, the representative of the public may participate in the criminal process, provided that such participation is enumerated among the statutory tasks of the NGO that he/she represents). In specific cases, other bodies could also participate in criminal proceedings, such as: —— —— —— —— ——

the Police, Border Guard, Internal Security Agency, Customs Service, Central Anti-Corruption Bureau.

In practice, the bodies which discover and report conduct leading to criminal investigation are: —— Members of local communities, —— Representatives of public administration, in particular: the General Directorate for Environmental Protection and the General Inspectorate for Environmental Protection. An individual may act as an auxiliary prosecutor and NGO representatives may act as representatives of the public. Those entities cannot bring actions before criminal courts. However, NGOs may inform prosecutors of their suspicion of an environmental crime being committed and the prosecutor then has a duty to commence an investigation. 10. SANCTIONS116

10.1.  Sanctions in Criminal Law Polish criminal law provides for sanctions in both the Criminal Code and Petty Offences Code. There are two categories of sanctions: penalties (respectively Chapter IV and Article 32 CC, and Article 18 CPPO) and penal measures (respectively Chapter V and Article 39 CC, and Article 28 CPPO). The Criminal Code lists: I.

The penalties of: 1) fine; 2) restriction of liberty; 3) imprisonment; 4) 25 years’ imprisonment; 5) life imprisonment.

116  See also V Mitsilegas, M Fitzmaurice and E Fasoli, Fighting Environmental Crime in Poland: A Country Report. Study in the Framework of the EFFACE Research Project, n 113 above, 27–34.

Environmental Criminal Law in Poland 183 II. The penal measures of: 1) deprivation of public rights; 2) disqualification from specific posts, the exercise of specific professions or engagement in specific economic activities; 3) disqualification from activities involving raising, treating and educating minors, and taking care of them; 4) prohibition of being in certain communities and locations, a prohibition on contacting certain individuals or on leaving a specific place of residence without the court’s consent; 5) ban on entering mass events; 6) ban on entering gaming centres or participating in games of chance; 7) order to leave premises jointly occupied with the aggrieved party; 8) disqualification from driving; 9) monetary performance; and 10) announcement of the sentence publicly. Further, the next chapter (‘Forfeiture and compensational measures’) regulates: 1) forfeiture of goods (Article 44 CC); 2) forfeiture of monetary benefits (Article 45 CC); 3) obligation to remedy damage caused or compensate for harm done (Article 46 CC); and 4) exemplary damages (Article 47 CC). The Petty Offences Code in Chapter II, provides for: I. The penalties of: 1) arrest (from five to 30 days); 2) restriction of liberty (one month); 3) fine (from PLN 20 to 5,000, unless otherwise stated); and 4) reprimand. II. The penal measures of: 1) disqualification from driving; 2) forfeiture of goods; 3) exemplary damages; 4) obligation to remedy damage caused or compensate for harm done; 5) announcement of the sentence publicly in a special form; and 6) other penal measures provided by the statutes. 10.1.1.  Period of Limitation The statutory period of limitation depends on the gravity of the act—as reflected by the penalty provided in the Criminal Code and the actual penalty to which the perpetrator is sentenced: —— For the offences punishable by a penalty of imprisonment of over five years, the statutory period of limitation is 15 years (Article 101 § 1 Point 2a CC). For the sentences stating a penalty of imprisonment of over five years or a

184  Karolina Jackowicz, Malgosia Fitzmaurice and Valsamis Mitsilegas

—— ——

—— ——

——

more severe penalty, the period of limitation for the execution of penalties is 30 years (Article 103 § 1 Point 1 CC). For the offences punishable by a penalty of imprisonment of over three years the statutory period of limitation is 10 years (Article 101 § 1 Point 3 CC). For the sentences stating a penalty of imprisonment of less than five years the period of limitation for the execution of penalties is 15 years (Article 103 § 1 Point 2 CC). For the offences punishable by a penalty of imprisonment of over three years the statutory period of limitation is 10 years (Article 101 § 1 Point 3 CC). The statutory period of limitation for all the other misdemeanours (for example those punishable by a fine) is five years (Article 101 § 1 Point 4 CC), whilst the statutory period of limitation for the execution of penalties is 10 years (Article 103 § 1 Point 3 CC). If within the period of limitation, the proceedings in personam (with the act of indictment) have been initiated a period of 10 years (in cases stated in Article 101 § 1 CC) or five years (in all other cases) is added to the statutory period of limitation (Article 102 CC).

10.2.  Sanctions in Environmental Criminal Law Polish law does not create any offence against the environment to be a felony, since there is no regulation which states liability to at least three years’ imprisonment for any offences against or to the detriment of the environment. All of the environmental offences are misdemeanours. In the Criminal Code there are 27 types of environmental offence117 and as punishment for their commission there are various possible sanctions, namely: 1) 2)

sanctions other than imprisonment (Articles 181 § 5, 186 § 3, 187 § 2 CC); imprisonment for up to two years (Articles 181 §§ 2, 3 and 4, 183 § 6, 184 § 3, 186 §§ 1 and 2, 187 § 1 and 188 CC); 3) imprisonment for up to three years (Article 182 § 4 CC); 4) imprisonment for a term between three months and five years (Articles 181 § 1, 182 § 1, 183 §§ 1, 2, 3 and 4 and 184 §§ 1 and 2 CC); 5) imprisonment for a term between six months and eight years (Articles 182 § 3 and 185 § 1 CC); 6) imprisonment for a term between one year and 10 years (Article 185 § 2 CC); 7) imprisonment for a term between two years and 12 years (Article 185 § 3 CC).118

117  W Radecki, Ochrona środowiska w polskim, czeskim i słowackim prawie karnym. Studium prawno porównawcze, n 89 above, 297–98, 295. 118 Radecki, ibid, 295–96.

Environmental Criminal Law in Poland 185 All penalties of imprisonment for up to two years are accompanied by an alternative of a fine and restriction of freedom.119 The penal measures, generally, may be ordered together with, or instead of, the penalties. Additionally, as a specific compensational measure concerning the environment, Article 47 § 2 CC states ‘in the case of conviction for an offence against the environment, the court may impose a supplementary payment for a purpose of the National Fund for Environmental Protection and Water Management’. In regard to the transposition of the ECD’s requirements resulting in specific amendments concerning sanctions, there are some qualitative and quantitative changes.120 These, as previously stated, generally refer to the criteria of punishability.121 However, there is one ‘direct’ sanction amendment—of the scope of the penalty as a result of implementing the ECD—introducing changes in the aforementioned Article 185 CC (see section 8 above). This refers to the newly created division for an act the constituent elements of which are described in Article 185 § 2 CC and an act of Article 185 § 3 CC which differ in terms of the consequences of the prohibited act. Article 185 § 2 CC refers to the consequence of ‘serious detriment to the health of a person’, providing for potential imprisonment for a term between one year and 10 years, whereas Article 185 § 3 CC refers to the consequence of ‘death of a person or serious detriment to the health of many persons’, providing for potential imprisonment for a term between two years and 12 years. Therefore, in this single case of direct change to the penalty, there was a reduction from the previous provision of two to 12 years’ imprisonment to a new range of term of one to 10 years’ imprisonment. The highest potential penalty—the term of 12 years—remains the same, yet it now applies to different consequences of a prohibited act. In order to fully assess the deterrent effect of criminal measures apart from the severity of the potential sanction the categories of the criminalisation of nonreporting of a crime and the criteria for ‘active repentance’ are also analysed.122 In regard to environmental crimes none of the offences regulated by­ chapter XXII of the Criminal Code are further protected by Article 240 § 1 CC, which regulates criminal liability for the non-reporting of a prohibited act for which the perpetrator (of non-reporting) shall be liable to a penalty of imprisonment of up to three years. Therefore, the duty to report is only inferred from the general provision of Article 304 § 1 CCP stating the ‘common social duty to report’ any potential commission of an offence prosecuted ex officio.

119 Radecki, ibid, 297.

120 T Bojarski (ed), Kodeks Karny—komentarz (Wolters Kluwer), 433 citing: S Raniszewski, ‘Dyrektywa Parlamentu Europejskiego i Rady w sprawie ochrony środowiska poprzez prawo karne oraz jej implementacja do polskiego porządku prawnego’, n 100 above, 79–80. 121  See section 2.1 of this chapter (Substantive Principles). 122  According to W Radecki, Ochrona środowiska w polskim, czeskim i słowackim prawie karnym. Studium prawno porównawcze, n 89 above, 297.

186  Karolina Jackowicz, Malgosia Fitzmaurice and Valsamis Mitsilegas There are also no special provisions regarding environmental crimes concerning the criteria for active repentance, hence, the general criteria of Chapter II of the Criminal Code apply. Therefore, it transpires that the severity of punishment for environmental crimes in Poland is relatively mild judging by the provisions of criminal law. What is more, in practice, it appears that the severity and effectiveness of the protection of the environment through the means of criminal law is even more light and insignificant, not least because in principle, criminal sanctions are considered ultima ratio in the Polish system. The most commonly used penalties are administrative sanctions. They are imposed in accordance with the Code of Administrative Procedure (Kodeks postępowania administracyjnego)123 and generally are administrative fines and orders, for example to restore the lawful state of the environment, as in Article 363 Section 1, Point 2 EPL—to remediate the damage to the environment by restoration to the proper state.

11. CONCLUSIONS

In general the process of the transposition of the ECD in Poland, despite the three-month delay, was executed in a relatively smooth manner.124 From a legislative perspective it was also rather well received, resulting in mostly clear and synthesised regulations, which additionally instilled uniformity in the terminology between various national environmental statutes, hence providing a step towards much needed consistency. The implementation of the ECD’s provisions resulted in some qualitative and quantitative changes to the criminal provisions, yet overall was not of sizeable effect on the whole criminal system or the principles of liability, nor even specifically in the field of environmental law or environmental liability. However, these amendments, by providing that the consequence of an act of the perpetrator ‘might result’—instead of the previous ‘does result’—in harm or a threat of serious detriment to the health of ‘a person’—as opposed to the previous harm or serious detriment to the health of ‘many persons’—appear to be more stringent. Secondly, the additions in Article 182 CC—the newly introduced paragraphs 2 and 3 on operation of the plant within the company which pollutes the environment—create a new prohibited act, previously unregulated. This is considered a step towards increasing the liability for the entities using the environment,125

123 

UT: JL of 2016, pos 23 with further amendments. an initial proposal of the Bill, comments provided by the Legislative Commission by the Council of Ministers, initiated at the request of Minister for Environment and with a response of the Minister, neither of which raised any controversies. 125  A Baran, ‘Skuteczność norm prawa karnego w ochronie środowiska’ (2012) 41 Ekonomia i środowisko 210–21, 217. 124  With

Environmental Criminal Law in Poland 187 therefore in practice—mostly business entities. On the other hand, it remains an open question whether under the previous regulations such an act could not have been sanctioned, based on some other provisions, for example administrative, like breaches of either general standards, local laws or provisions of the specific environmental decisions. Undoubtedly, with this reshaped article, the actual penalisation of this type of pollution will be easier. Therefore, in theory, the amended regulations now provide a stricter, and hence potentially better, protection of the environment from many more types of negative impact. Some perceive these changes as very restrictive and this is a source of controversy,126 especially in light of further regulation of the liability of legal entities by, amongst other things, expanding the catalogue of punishable offences in the Liability Act as a result of the transposition of the ECD. The transposition of the provisions of the ECD, resulting in expanding the required harm to the environment to ‘substantial damage’ to the quality of water, air or soil, potentially poses a procedural hindrance. In each case the fact of the occurrence of the state of substantial damage will have to be examined and ascertained, highly likely by a specialist expert. This, in turn, might prolong the proceedings and increase its costs and result in creating impediments to achieving justice. At the same time, this reflects a general objection to protection of environment by criminal law. The proponents of protecting the environment through administrative law point out that it is much more effective, as it is exercised in a, generally, more expeditious and straightforward procedure and without undergoing the arduous process of establishing guilt or even a causal link as a precondition of liability. This view appears to be upheld by Polish practice, as the majority of proceedings for the infringements of the environment are still administrative ­proceedings. In the majority of them the sanctions issued entail reversal or annulment of administrative decisions and/or are accompanied by fines. Criminal provisions are applied extremely rarely. What is more, not many acts against or to the detriment of the environment are reported; fewer are investigated and then decided on by the court; and even fewer result in judgments. In many cases it is established that an act is not socially harmful to the extent which would justify its punishment, which leads to the discontinuations of proceedings (or closing or refusing to initiate the investigation). Further, even in cases where the investigation is initiated and the proceedings reach the principal stage before the court and then the phase of sentencing—the penalties imposed are insignificant in their effect. Amongst the reasons for this are: the general indifferent approach of society to environmental protection and criminalisation of acts against the environment, or to its detriment; and imperfections of the law enforcement system (frequently underfunded,

126 

Ibid, 218.

188  Karolina Jackowicz, Malgosia Fitzmaurice and Valsamis Mitsilegas understaffed, and without specialised units). Therefore in Poland the actual current effectiveness of the criminal provisions in the protection of the environment is poor. Potential forthcoming developments concern the field of the liability of collective entities and fighting economic crime. These relate to: plans for introducing ‘extended confiscation’, a result of the duty to implement the provisions of Directive 2014/42/EU on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union by October 2017; and removing the current precondition of the prior criminal liability of an individual established by a final court judgment in order to hold the corporate entity liable. Both are obligations arising on the ground of implementation of the EU directives and concern the field of criminal law. Simultaneously, the potential amendment of the Liability Act would bring the Polish legislation closer to the standard of an autonomous regime of liability established by the ECD, away from the current, subsidiary regime of the Polish law. This issue, however, potentially is subject to wider debate and further deliberation by the Constitutional Tribunal, which has already pondered on the topic of the essence of the principle of individual liability vis-a-vis the liability of collective entities in its judgment of 3 November 2004 in K 18/03. Therefore these are changes to criminal law that might affect the area of environmental law, whereas there are no known forthcoming changes to the field of criminal environmental law. For the improved effectiveness of criminal environmental law in Poland the mere application of the already existing provisions would be a development and a significant improvement.

8 Environmental Criminal Law in Spain JUAN LUIS FUENTES OSORIO*

1. INTRODUCTION

I

N RECENT DECADES, as a consequence of the rising awareness of the ­damage caused to the environment by economic development, the European legislator has resorted to using criminal law to enforce environmental ­protection. For instance, the guidelines settled by the Council of Europe in its resolutions and its 1998 Convention on the Protection of the Environment through Criminal Law, and the European Union (EU) legislation through its directives, in particular, Directive 2008/99/EC on the protection of the environment through criminal law1 (Environmental Crime Directive, ECD), have had a deep impact on the European criminal legal system. Spain, as a member of the EU, has been especially affected by the ECD. This directive obliges the Member States to punish environmental transgressions through criminal law. This chapter will address the transposition and enforcement of the ECD in Spain and will serve to analyse some of the characteristics of the Spanish penal system and the administrative dependence of environmental criminal law, as well as the legal and practical consequences of a growing criminalisation of environmental offences.

2.  THE ENVIRONMENTAL PROTECTION IN THE SPANISH CONSTITUTION

The Spanish Constitution (SC) expressly includes in its Article 45.1 the right to enjoy an environment adequate for the development of the person, and the duty to preserve it. This right / obligation is embodied in a dual aspect, regulatory and punitive.

*  With thanks for their contributions to this work to Teresa Fajardo, researcher in the FP7 EFFACE Project and Associate Professor of the University of Granada, and Bridgit McQue, former British prosecutor and consultant in legal translation. 1 Directive 2008/99/EC on the protection of the environment through criminal law [2008] OJ L328/28.

190  Juan Luis Fuentes Osorio 2.1. Administrative Regulation of Activities that May Affect the Environment Directly or Indirectly In Spain, normative and enforcement powers are shared between the central state and its territorial entities, both at regional and local levels: Autonomous Communities and local authorities. In the environmental field the state has the regulatory power to adopt the core of the basic environmental legislation as established in Article 149.1.23 SC.2 The Autonomous Communities are responsible for managing the protection of the environment, so they can implement the basic legislation and develop additional protection rules (Articles 149.1.23 and 148.1.9 SC). Therefore, they can adopt, within these limits, administrative laws or regulations3 and modify the basic legislation in the sense that they can expand or improve this minimum regulation, but they cannot restrict or diminish it.4 This latter aspect is justified because each Autonomous Community may have different environmental scenarios that require specific regulation to ensure effective protection.5 However, law enforcement agencies have argued that this possibility has led to fragmentation of the administrative legislation and the movement of offenders to other regional jurisdictions that, for instance, have not introduced certain species on their lists of protected wildlife. It has also been criticised that it may involve a breach of the principle of equality.6 Finally, local authorities are also competent in matters of environmental protection through administrative law. They can issue by-laws for penalties while respecting the national and regional regulations.7 Furthermore, in the absence of specific sectoral regulations, Article 25.1 of Law 40/2015 on the Legal Regime of the Public Sector, recognises administrative sanctioning powers to local authorities within the limits of the state legislation,8 as set out in Articles 139–141 of Law 7/1985. 2  See MD Serrano Tárraga, A Serrano Maíllo and C Vázquez González, Tutela Penal Ambiental, 2nd edn (Madrid, Dykinson, 2013) 98. 3  See the Judgment of 26 June 1995, Spanish Constitutional Court No 102/1995 (the cited judgment can be found in the following link: http://www.poderjudicial.es/search/indexAN.jsp). See Serrano Tárraga, Serrano Maíllo and Vázquez González, Tutela Penal Ambiental, n 2 above, 98. 4  See the Judgments Spanish Constitutional Court No 166/2002 and No 141/2014. See F López Ramón, ‘Retrospectiva de la Crisis Ambiental en el Estado de las Autonomías’ (2012) 23 Revista Aranzadi de Derecho Ambiental 17, 17 and ff; M Corcoy Bidasolo, ‘De los delitos contra los recursos naturales y el medio ambiente’ in Corcoy Bidasolo and Mir Puig (eds), Comentarios al Código Penal. Reforma LO 1/2015 y LO 2/2015 (Valencia, Tirant lo Blanch, 2015) 1192. 5  See Serrano Tárraga, Serrano Maíllo and Vázquez González, Tutela Penal Ambiental, n 2 above, 98. 6 See C Carmona Salgado, ‘Incidencias de la Reforma Penal de 2010 en los Delitos contra los Recursos Naturales y el Medio Ambiente’ in Álvarez García, Cobos Gómez de Linares, Gómez Pavón, Manjón-Cabeza Olmeda and Martínez Guerra (eds), Libro Homenaje al prof. Luis Rodríguez Ramos (Valencia, Tirant lo Blanch, 2013) 417 and ff. 7  Article 25.2.b of Law 7/1985 of 2 April Regulatory of the Local Authority. See Serrano Tárraga, Serrano Maíllo and Vázquez González, Tutela Penal Ambiental, n 2 above, 98. 8  Graduation of breaches: minor offences, serious and very serious, establishing limits for sanctions at €750, €1500 and €3000 respectively.

Environmental Criminal Law in Spain 191 Thus, the Spanish environmental legal system is made up of the totality of the relevant administrative acts and rules adopted at national, regional and local levels as well as the systemic principles supporting their relationships and enforcement.

2.2.  Punishment of Attacks against the Environment The environment is protected through a system of sanctions of a dual nature, administrative or penal, designed by SC in subsection 3 of its Article 45. This ­coexistence of administrative offences and crimes generates conflicts that are resolved through recourse to the principles of priority of criminal punishment and non bis in idem.

3.  DEFINITION OF ENVIRONMENTAL CRIME

In the Spanish legal system, the definition of environment has been conditioned by two factors. First, the elements that it includes. Article 45 SC establishes an ­intermediate concept which includes maintaining soil, air and water quality, protecting fauna and flora, and the rational use of natural resources.9 Secondly, there are three different perspectives to define it: the anthropocentric, the ecocentric and the mixed.10 The main line of interpretation states that Article 45 SC rejects extreme approaches.11 In the same way, although Article 325.2 of the Spanish Criminal Code (CC) indicates that sanctionable conduct includes discharges, emissions, etc, ‘that may damage seriously the balance of natural systems’, which is easily identified with the ecocentric approach,12 the mixed perspective is, even

9 See N De la Mata Barranco, Protección Penal del Ambiente y Accesoriedad Administrativa (Barcelona, Cedecs editorial, 1996) 49 and ff; A Jorge Barreiro, ‘El Bien Jurídico protegido en los Delitos contra el Medio Ambiente en el CP de 1995’ in Barreiro (ed), Estudios sobre la Protección Penal del Medio Ambiente en el Ordenamiento Jurídico Español (Granada, Comares, 2005) 4 and ff; JL Fuentes Osorio, ‘¿Delito Medioambiental como Delito de Lesión?’ (2010) 1(2) Revista Catalana de Dret Ambiental 1, 25 ff. 10  See Jorge Barreiro, ‘El Bien Jurídico’, n 9 above, 39 and ff; L Regis Prado, ‘El Ambiente como Bien Jurídico Penal: Aspectos Conceptuales y Delimitadores’ (2008) 22 Revista Penal 109, 122 and ff; Carmona Salgado, ‘Incidencias’, n 6 above, 423 and ff; Corcoy Bidasolo, ‘De los delitos’, n 4 above, 1167; MD Serrano Tárraga, ‘Delitos contra los Recursos Naturales y el Medio Ambiente, la Flora, la Fauna y los Animales Domésticos’ in Serrano Gómez, Serrano Maíllo, Serrano Tárraga and Vázquez González (auts), Curso de Derecho Penal. Parte Especial, 2nd edn (Madrid, Dykinson, 2015) 510; C Martínez-Buján Pérez, Derecho Penal Económico y de la Empresa, 5th edn (Valencia, Tirant lo Blanch, 2015) 941. 11  See N Matellanes Rodríguez, Derecho Penal del Medio Ambiente (Madrid, Iustel, 2008) 38 and f; A Mendo Estrella, El Delito Ecológico del art. 325.1 del Código Penal (Valencia, Tirant lo Blanch, 2009) 51 and ff; Fuentes Osorio, ‘¿Delito Medioambiental’, n 9 above, 20 and f. 12  See Fuentes Osorio, ‘¿Delito Medioambiental’, n 9 above, 15 and ff; Carmona Salgado, ‘Incidencias’, n 6 above, 423 and ff.

192  Juan Luis Fuentes Osorio in this case, the main one.13 This implies acceptance of the environment as an autonomous legal interest that includes physical and biological elements of the ecosystem but also in order to protect and improve the quality of human life (the right to enjoy an environment suitable for the development of the person). A clear and detailed definition of environmental crime is not given in CC. However, environmental crime could be defined as criminally relevant environmental harm. When is this condition fulfilled? When there is harm to the environment in violation of the administrative regulations. This harm must exceed, in addition, that sanctioned by the administrative regulations (ie it must be more serious than a simple administrative infringement).

4.  THE SANCTIONING ENVIRONMENTAL LEGISLATION IN SPAIN

The current sanctioning environmental legislation in Spain has the following characteristics: —— There is no specific Act containing all the possible infringements, both administrative and criminal. —— Administrative sanctions are fragmented and laid down in different environmental laws. —— Environmental crimes only appear in the CC.14 This has raised some criticism because there is no overall vision of all infringements, especially in view of the significant dispersion of the existing regulations. On some occasions this leads to overlaps between administrative offences and crimes, and within criminal categories. For this and other reasons, some authors have requested the creation of a General Environmental Law.15 This could p ­ rovide some systematic coherence and facilitate the work of criminal

13 See Jorge Barreiro, ‘El Bien Jurídico’, n 9 above, 62; Matellanes Rodríguez, Derecho Penal del Medio Ambiente, n 11 above, 53 and ff; JL Fuentes Osorio, ‘¿Delito Ecológico como Delito de Peligro Abstracto?’ (2012) 14(17) Revista Electrónica de Ciencia Penal y Criminología 1, 12 and ff; Martínez-Buján Pérez, Derecho Penal Económico, n 10 above, 942. 14  With one exception: Law for the Suppression of Smuggling (Law 12/1995 of 12 December), which is a special criminal law, outside CC, sanctions the unlawful trafficking of flora and fauna both administrativelly and criminally. See Serrano Tárraga, Serrano Maíllo and Vázquez González, Tutela Penal Ambiental, n 2 above, 97. 15  See De la Mata Barranco, Protección Penal del Ambiente, 71 and ff; A Del Moral García, ‘Aspectos Problemáticos en los Delitos contra el Medioambiente’ in Granados Pérez (ed), Problemas Derivados de la Delincuencia Medioambiental, (Madrid, Consejo General del Poder Judicial, 2004) 145; Matellanes Rodríguez, Derecho Penal del Medio Ambiente, n 11 above, 89 and ff.

Environmental Criminal Law in Spain 193 ­ ractitioners. Nevertheless, there are authors who do not consider this adequate.16 p A mixed system would probably be the best solution, namely an Environmental Act for all the administrative aspects, which may be referred to in the Criminal Code. The CC sets out all crimes specifically related to the environment in its Title XVI.17 Chapter III of Title XVI refers to crimes against natural resources and the environment. The provisions in this chapter may be classified in three groups, although they are not systematically regulated: —— —— —— ——

General environmental crime: Articles 325 and 327; Waste: Articles 326, 326 bis and 327; Corruption of public authorities or public servants: Article 329; Damage in natural areas: Article 330.

Chapter IV of Title XVI refers to crimes related to the protection of flora and fauna. The provisions in this chapter relating to environmental crime may be classified as: —— Crimes related to the protected wild flora: Articles 332–333; —— Crimes related to the protected wild fauna: Article 334; —— Illegal hunting and fishing: Articles 335–336. Nevertheless, Title XVII punishes several crimes (against public safety) outside the section on the environment, that may also have negative environmental impacts: —— Crimes related to forest fires in Articles 352 and 353; —— Crimes related to nuclear energy and ionising radiation in Articles 341 and ff; —— The manipulation of explosive, toxic or asphyxiating substances in Article 348 and the manipulation, transport or possession of organisms in Article 349; —— Excavations or demolitions in Article 350.18

16  F Morales Prats, ‘La Estructura del Delito de Contaminación Ambiental. Dos cuestiones Básicas: la Ley Penal en Blanco y el Delito de Peligro’ in Valle Muñiz (ed), La Protección Jurídica del Medioambiente (Elcano, Aranzadi, 1997) 237 (fn 18) does not rely on this measure and considers ‘a general law in this area does not seem to project more than a few general operating principles, programmatic and dogmatic, which constantly refer to sectoral environmental protection laws’. 17  The previous CC also contained some provisions for environmental crimes since its Reform in 1983. Article 347 bis) CC1983 was the first ecological crime introduced in Spain. 18  In these last four cases, there is an explicit reference to the possible damage to the environment.

194  Juan Luis Fuentes Osorio 4.1. Spanish Environmental Criminal Law and the Transposition of the Environmental Crime Directive The following table shows the relationship between the ECD and its transposition into CC: Table 1:  Relationship between Directive 2008/99/EC and CC Directive 2008/99/EC

Articles of CC after Reform of 2015

Existing before Directive 2008/99/EC

The discharge, emission or introduction of a quantity of materials (Art 3(a))

Arts 325/327

Yes

The discharge, emission or introduction of a quantity of ionising radiation (Art 3(a))

Art 343

Yes

The collection, transport, recovery or disposal of waste, including the supervision of such operations and the after-care of disposal sites, and including action taken as a dealer or a broker (Art 3(b))

Arts 326/327

No

The shipment of waste (Art 3(c))

Yes

Dangerous activities of a plant (Art 3(d))

Arts 326 bis/327

No

The production, processing, handling, use, holding, storage, transport, import, export or disposal of nuclear materials or other hazardous radioactive substances (Art 3(e))

Art 345

Yes

Killing, destruction of specimens of protected wild fauna or flora species (Art 3(f))

Arts 332–336

Yes

Possession or taking of specimens of protected wild fauna or flora species (Art 3(f))

Arts 332, 334

No

Trading in specimens of protected wild fauna or flora species or parts or derivatives thereof (Art 3(g))

Yes

Conduct which causes the significant deterioration of a habitat within a protected site (Art 3(h))

Art 332

Yes

Art 334

No

Production, importation, exportation, placing on the market or use of ozone-depleting substance (Art 3(g))

Art 348

No

Source: Author’s drafting.

Environmental Criminal Law in Spain 195 The environmental penal system was already well developed in the CC. In fact, most conduct listed in the ECD was already punishable (although with a different wording). In addition, the CC includes other conduct not mentioned in the Directive: introduction or liberation of non-local species of flora and fauna (Article 333 CC), hunting and fishing unprotected species (Article 335 CC), hunting and fishing with poisons, explosives or other means or instruments that have similar destructive or non-selective effectiveness (Article 336 CC), and taking of nuclear materials (Article 345 CC).19 Therefore, the ECD has not brought about a significant change in the degree of implementation and enforcement of environmental criminal law in Spain. 4.1.1.  The Changes Brought by Law 5/2010 However, the transposition of the ECD has required the introduction of some new criminal conduct and modifications in the already existing crimes. Thereby Law 5/2010 of 22 June expressly states that it ‘incorporates into the Spanish criminal law the provisions envisaged in Directive 2008/99/EC of 19 November’ and that ‘the changes introduced in the crimes against the environment respond to the need to incorporate elements of normative harmonisation in the European Union in this area’. The main innovation in 2010 was the inclusion in Article 328 CC of all crimes linked to waste deposits described in the ECD (Articles 3(b)–(d)).20 This legislation was again amended in 2015 to avoid coincidence with Article 325 CC that also mentioned the term ‘deposits’.21 In addition, from 2015, the waste deposits crimes are now regulated in Articles 326, 326 bis CC, and they are also affected by the category of aggravated crimes set out in Article 327 CC. Conduct which causes significant deterioration of a habitat of wildlife was also incorporated in Article 334 CC in 2010.22 Until then this form of attack was only included in crimes against flora of Article 332 CC. Attacks on wildlife were only punishable as an administrative offence in Article 76 of Law 42/2007 (currently in Article 80). 19  See Milieu Ltd, Evaluation Study on the Implementation of Directive 2008/99/EC on the Protection of the Environment through Criminal Law by Member States. National Report for Spain (Brussels, Milieu, 2012) 24. 20  See JL Fuentes Osorio, ‘La Creación de Depósitos o Vertederos del art. 328.1 CP: ¿Acto Preparatorio?’ (2011) 103 Cuadernos de Política Criminal 133, 133 and ff; Carmona Salgado, ‘Incidencias’, n 6 above, 417 and ff. 21  See EM Górriz Arroyo, ‘Delitos contra los Recursos Naturales y el Medio Ambiente’ in González Cussac (ed), Comentarios a la Reforma del Código Penal de 2015, 2nd edn (Valencia, Tirant lo Blanch, 2015) 1028 and ff; Corcoy Bidasolo, ‘De los delitos’, n 4 above, 1180; AM Javato Martín, ‘Artículo 326 CP’ in Gómez Tomillo (ed), Comentarios Prácticos al Código Penal IV (Cizur Menor, Aranzadi, 2015) 108; Martínez-Buján Pérez, Derecho Penal Económico, n 10 above, 955 and ff. About the regulation before the reform of 2015 see Fuentes Osorio, ‘La Creación de Depósitos’, n 20 above, 133 and ff; Carmona Salgado, ‘Incidencias’, n 6 above, 417 and ff. 22  See M Martín Lorenzo, ‘Delitos contra los Recursos Naturales y el Medio Ambiente’ in Molina Fernández (ed), Memento Práctico. Penal (Madrid, Francis Lefebvre, 2010) paras 13932 and ff.

196  Juan Luis Fuentes Osorio In that year there was likewise included in Article 348 CC conduct relating to the production, importation, exportation, placing on the market or use of ozonedepleting substances; the collection, transport, recovery or disposal of waste; transnational shipment of waste; dangerous activities of a plant. This reform also increased penalties for certain behaviour (Articles 325 and 328 CC) and created new sanctions (special disqualifications in Articles 328, 333, 334 and 336 CC).23 Sanctions for legal persons were incorporated (in Articles 327 and 328 CC)24 in the new criminal legal context of Article 31 bis CC. Mention should be made of Directives 2005/35/EC25 and 2009/123/EC.26 Since 1995 Spain has the possibility of sanctioning the discharge of pollutants into land, sea or groundwater under Article 325 CC. The reform introduced by Law 5/2010 shapes this element, in accordance with Article 3.1(e) of Directive 2005/35/EC, indicating that the marine waters include the high seas. This is an extension of the Spanish jurisdiction expressly permitted by Article 23.4(h) of Law 6/1985 of 1 July on Judicial Power to cover any offence according to the international conventions and treaties, and enables Spain to prosecute them. Some authors suggest that by this specification authorities can respond to any type of pollution at sea even if this does not come from ships (to which the aforementioned directives are limited).27 4.1.2.  The Subsequent Modifications by Law 1/2015 Although after the 2010 reform it was considered that Spain had fulfilled its obligation to transpose the ECD, there were opinions expressed that the transposition was in some aspects ambiguous or incomplete.28 Thus, the last reform of CC that took place in 2015 (Law 1/2015 of 30 March) has modified details of the environmental criminal law which did not fully coincide with the ECD.29 The reform kept the same criminal provisions but has renumbered all of them.30 Pollution environmental crime (Article 325 CC) has been divided into two. The old crime is now a crime aggravated by the capacity of the relevant conduct to damage the balance of the ecosystem (Article 325.2 CC). Article 325.1 CC added a basic crime that only requires conduct which causes or is likely to cause

23 

See Carmona Salgado, ‘Incidencias’, n 6 above, 417 and ff. See Martín Lorenzo, ‘Delitos’, n 22 above, para 13651. 25 On ship-source pollution and on the introduction of penalties for infringements [2005] OJ L255/11. 26  Amending Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements [2009] OJ L280/52. 27  See Martínez-Buján Pérez, Derecho Penal Económico, n 10 above, 945. 28  See Milieu, Evaluation Study, n 19 above, 21 and ff. 29  For some authors these were superficial issues that did not require a reform, see Górriz Arroyo, ‘Delitos’, n 21 above, 1011. 30  See Górriz Arroyo, ‘Delitos’, n 21 above, 1012. 24 

Environmental Criminal Law in Spain 197 substantial damage to the quality of air, soil or water, or to animals or plants. In Article 332 CC the harm required no longer demands that the balance of the ecosystem is affected; it requires only a negligible quantity of specimens and a negligible impact on the conservation status of the species. In these cases, it is claimed that the new wording of the article is more properly adapted to the requirements for harm under Directives 2008/99/EC and 2009/123/EC. However, the previous regulation was perfectly compatible with the ECD while the new wording poses problems of distinction from the administrative offence, while it is also not clear enough when this harm occurs.31 The term ‘endangered species’ of fauna or flora, in Articles 332 and 334 CC, has been replaced by ‘protected species’. It is considered a significant change, since it is a broader concept that includes a greater number of species.32 However, its amplitude causes problems of distinction with administrative offences.33 Terms ‘shoots’ (referring to one of the possible parts) and ‘parts’ (which could be translated as parts or waste) respectively used in Articles 332 and 334 CC have been replaced by ‘parts or derivatives’.34 The punishment of poaching has been expanded in Article 335 CC by introducing as a crime the conduct of collecting shellfish without a licence or authorisation. Although this activity puts biodiversity particularly at risk, the previous wording of the offence, limited to ‘lands’, did not allow its punishment.35 Spain initially did not expressly mention in criminal environmental legislation the infringement of European environmental norms, as Article 2 ECD seems to require and which has led to a reform in some countries.36 Nevertheless, the 2015 reform has included a mention of European environmental legislation in Article 326.2 CC (‘in any of the cases to which the European Union law on shipments of waste is concerned’). It has been widely criticised, first because it was not necessary. The reference to the breaking of environmental law or illegality

31  See Górriz Arroyo, ‘Delitos’, n 21 above, 1015; A Matallín Evangelio, ‘Protección Penal de la Biodiversidad’ in González Cussac (ed), Comentarios a la Reforma del Código Penal de 2015, 2nd edn (Valencia, Tirant lo Blanch, 2015) 1054 and ff; Martínez-Buján Pérez, Derecho Penal Económico, n 10 above, 944. In favour of this reform, M Olmedo Cardenete, ‘Principales Novedades introducidas por la LO 1/2015, de 30 de marzo, en los Delitos contra el Medio Ambiente, Flora, Fauna y Animales Domésticos’ in Morillas Cueva (ed), Estudios sobre el Código Penal Reformado (Madrid, Dykinson, 2015) 770, because new terms simplify the process for determining the harm. 32  See I Blanco Cordero, ‘Artículos 334-337bis CP’ in Gómez Tomillo (ed), Comentarios Prácticos al Código Penal IV (Cizur Menor, Aranzadi, 2015) 158; Matallín Evangelio, ‘Protección Penal’, n 31 above, 1060 and ff; Olmedo Cardenete, ‘Principales Novedades’, n 31 above, 774 and f; Serrano Tárraga, ‘Delitos’, n 10 above, 526; Martínez-Buján Pérez, Derecho Penal Económico, n 10 above, 968 and ff. 33  See Matallín Evangelio, ‘Protección Penal’, n 31 above, 1062. 34  See Milieu, Evaluation Study, n 19 above, 24. 35 See AM Javato Martín, ‘Artículo 332 CP’ in Gómez Tomillo (ed), Comentarios Prácticos al Código Penal IV (Cizur Menor, Aranzadi, 2015) 148; Blanco Cordero, ‘Artículos 334–337bis CP’, 169; Martínez-Buján Pérez, Derecho Penal Económico, n 10 above, 977. 36 See for example the 45th reform of the German Criminal Code (GCC) that introduced Articles 326.2.1, 328.3.1 and 329.4.

198  Juan Luis Fuentes Osorio is ­considered sufficient remission.37 On the other hand, because there are many possible laws affected (Regulation (EC) No 1013/2006 and other European norms that are directly or tangentially linked to the shipment of waste), that should have been clarified.38 Articles 332 and 334 CC incorporate as crimes the possession or taking of specimens of protected wildlife or wild flora, as indicated in Articles 3(f) and (g) ECD. This aspect was considered an ambiguous transposition.39 However, this behaviour could be punished as a form of illegal trafficking.40 Likewise, these were administrative offences (Article 80 of Law 42/2007 of 13 December) which remain in force. It will be very difficult to distinguish administrative and criminal offences, since ‘serious prejudice to the environment’ has been removed from the requirement of crime.41 Finally, the reform has broadened the number of cases where negligence is punishable. Until 2015 the offences included in Chapter III (Articles 325–330 CC) sanctioned recklessness (Article 331 CC). However, crimes against flora and fauna, as well as production, importation, exportation, placing on the market or use of ozone-depleting substances and possession and trafficking in radioactive substances did not admit this possibility.42 Law 1/2015 has extended reckless responsibility for the crimes on flora and fauna (Articles 332.3 and 334.3 CC) and involving radioactive substances (Article 345.3 CC) but not for ozone-depleting substances (Article 348 CC).43 4.2.  Administrative Toleration of Environmental Crime Although not always indicated in the definition, crimes against the environment in Spain require the violation of administrative regulations in all cases. Below the thresholds of the administrative sanction, any conduct that harms or endangers the environment will be tolerated for all purposes since it constitutes a permitted risk to the environment.44 For example, discharging waste into a river that 37  It is accepted that the reference to ‘breaking the laws or other provisions of a general nature that protect the environment’ includes the European regulations, see Carmona Salgado, ‘Incidencias’, n 6 above, 417 and ff; Serrano Tárraga, ‘Delitos’, n 10 above, 512; Martínez-Buján Pérez, Derecho Penal Económico, n 10 above, 946. 38  See Górriz Arroyo, ‘Delitos’, n 21 above, 1041; Serrano Tárraga, ‘Delitos’, n 10 above, 517. An example of this is in Article 326.2.1 GCC, www.gesetze-im-internet.de/englisch_stgb/englisch_stgb. html#p2805. 39  See Milieu, Evaluation Study, n 19 above, 2012: 24. 40  See Olmedo Cardenete, ‘Principales Novedades’, n 31 above, 776. 41  See Martínez-Buján Pérez, Derecho Penal Económico, n 10 above, 970. 42  See Milieu, Evaluation Study, n 19 above, 25. 43  See Corcoy Bidasolo, ‘De los Delitos’, n 4 above, 1192; Javato Martín, ‘Artículo 332 CP’, n 35 above, 148; Blanco Cordero, ‘Artículos 334–337bis CP’, 167; Matallín Evangelio, ‘Protección Penal’, n 31 above, 1064; Martínez-Buján Pérez, Derecho Penal Económico, n 10 above, 970. 44  See the Judgment of the Provincial Court Sevilla No 623/2004. W Frisch, Verwaltungsakzessorietät und Tatbestandsverständnis im Umweltstrafrecht (Heidelberg, Müller, CF, 1993); Fuentes Osorio, ‘¿Delito Medioambiental’, n 9 above, 6.

Environmental Criminal Law in Spain 199 does not exceed the administratively permitted level cannot be sanctioned either administratively or criminally. If the discharge exceeds the administratively permitted level it can be sanctioned by the administrative authorities but not necessarily criminally. This has posed problems relating to the enforcement of criminal offences grouped under the term ‘administrative toleration of environmental crime’.45 This concept includes the following situations: Legalisation of forms of pollution and environmental destruction. This is clearly seen in the field of illegal building that is legalised through permissive laws. This is the case of tourist resorts and hotels that were built in or near areas of the Natura 2000 Network. So, in 2013, Greenpeace reported that with the approval of the new Law of Coasts (Law 2/2013 of 29 May), there seemed little prospect of the abandonment of massive building or the destruction of the last virgin coastal sites since the new law reduces coastal protection levels.46 The failure of Administrations to update environmental regulations. This problem is shown by the resistance of Administrations to recognising the polluting effect of certain industrial activities, as shown by the mining disaster of Aznalcollar.47 Another example is the current debate about fracking in which, although there are numerous studies that indicate serious effects on the environment,48 it has not yet been banned by the European Union or the Spanish Government. The failure of Administrations to enforce existing environmental regulations of which there are five cases: —— Granting or maintaining an authorisation without due requirements. For instance, the Ombudsman referred to cases in which the habitability of housing is granted without requiring the operation of sewage and subsequent discharges.49 —— The conditions of the authorisations are fulfilled only formally. Ecological organisations claim that environmental impact assessments state only what companies require. The Ombudsman talked about the ‘deficiencies in the impact assessment’50 which are accepted and are even justified by the Administration.51 The creation of mechanisms to ensure the independence

45 See C Gerstetter et al, ‘Environmental Crime and the EU. Sinthesis of the Research Project “European Union Action to Fight Environmental Crime” (EFFACE)’ (Berlin, Ecologic Institute, 2016) 30. 46  See www.greenpeace.org/espana/es/Blog/seis-meses-de-nueva-ley-de-costas-20-del-lito/blog/ 47740/. 47 See T Fajardo del Castillo and JL Fuentes Osorio, The Aznalcollar and the Kolontar Mining Accidents: Criminal Responsibility of Operators and Administrations. A Case Study compiled as Part of the EFFACE Project (Granada, University of Granada, 2015) 1 and ff. 48  See R White and D Heckenberg, Green Criminology (London, Routledge, 2014) 171 and ff. 49 See Ombudsman, Informe a las Cortes Generales (Madrid, Ombudsman, 2013) 430 and ff, that reports several cases in which there were significant irregularities in the granting of the licence. 50 Ombudsman, Informe a las Cortes Generales (Madrid, Ombudsman, 2012) 77. 51 Ombudsman, Informe 2012, n 50 above, 77.

200  Juan Luis Fuentes Osorio of technicians and scientists who have to make such reports was requested in this report of the Ombudsman. —— The Administration decides to grant an exceptional (and illegal) authorisation motivated by its non-compliance with environmental regulations.52 —— The Administrations’ failure to control the lack of compliance with authorisations given for the exercise of polluting activities. The Annual Report of the Prosecutor’s Office in 2013 stated that the Administrations’ failure to control licences granted for town planning is clearly within the scope of these environmental crimes: The Report of the Prosecutor of Girona summarises a situation that occurs frequently in the rest of the country. According to this, many prosecutions for town planning are motivated by prior current ineffectiveness of punitive actions of urban illegalities, which are in the realm of the competence of Local Government. But it is also true that the Autonomous Administrations do not carry out their functions of control and supervision in town planning, which, if exercised, would prevent a significant part of the problems that through the application of the criminal law should face prosecution.53

—— The Administration decides not to apply the sanctions for the illegal conduct carried out. For instance, the European Commission has taken legal action against Spain and six other countries for failing to sanction Volkswagen after the company used illegal software to manipulate its vehicles’ emissions tests.54 These cases are examples of what has been called ‘active toleration’ of criminal environmental activities by administrative authorities.55

52  ‘The administration has “authorized” rates of pollution higher than the statutorily established (SSC 01.19.12, 11.30.90, Cercs case), develops Gradual Decontamination Plans (SSC 10.04.02; JDSC Catalonia 30-10-00) or promulgates restoration plans that serve the continuation of the criminal activity (SSC 7/11/06, 8-6)’, Corcoy Bidasolo, ‘De los Delitos’, n 4 above, 1169. 53 Fiscalía General del Estado, Memoria (Madrid, Centro de Estudios Jurídicos, Ministerio de Justicia, 2013) 323. 54  See www.euractiv.com/section/transport/news/commission-takes-legal-action-against-seveneu-countries-over-volkswagen-scandal/. 55  HU Paeffgen, ‘Overlapping Tensions between Criminal and Administrative Law: The Experience of West German Environmental Law’ (1991) 3 Journal of Environmental Law 247, 260 defined the active toleration as ‘when the applicant, relying on the permissibility of his purpose begins to pollute a river, etc, before actually receiving a formal consent, and when the administrative authority knowingly fails to take [action] against him’. Vercher defines this active toleration as ‘when administration, in the general pursuit of economic growth, declines to discipline one who breaches pollution regulations. Toleration is thus postulated to legitimize such offences and to avoid sanctions’, A Vercher Noguera, ‘Some Reflections on the Use of Criminal Law for the Protection of the Environment’, Social Defence and Criminal Law for the Protection of Coming Generations, in View of the New Risks, Proceedings of XIVth International Congress on Social Defence, Lisbon, Portugal, 17–19 May 2002 (Italy, Cahiers de Defense Sociale, 2002) 113. This is a global problem associated with a neo-liberal perspective of the environment. N South, ‘Green Criminology and Brown Crime: Despoliation, Disposal and Demanufacturing in Global Resource Industries’ in Wyatt (ed), Hazardous Waste and Pollution (Heidelberg, Springer International Publishing, 2016) 23, argues that ‘states may not be the parties responsible for particular harms but may (for various reasons) be less than diligent in pursuit of justice when faced with pressure or financial deals (or both) from those that are responsible’.

Environmental Criminal Law in Spain 201 In this context, these licences can lead to a situation of criminal impunity of crimes. The most frequent defence put forward is ignorance of the illegality of the licence, which leads to a case of lack of mens rea. Nevertheless, the courts do not generally admit this defence, as those issuing these reports are technical specialists who are presumed to know the law; nor do they admit it in cases of collusion by the defendant with the author of the report. Morever, if there had been a criminal agreement between the civil servant and the individual, both would be punished (eg by Articles 329 and 325 CC, respectively, in case of spills).56 CC includes crimes committed by the Public Administration and its officers (Title XIX), which are crimes of generic administrative malfeasance punishing any officer or authority which, knowing it to be illegal, issues an arbitrary decision– for instance a permission or licence without justification in an administrative case (Article 404 CC). The offence can be committed in any field of administrative activity. However, in environmental matters, the Code provides for an offence of specific administrative malfeasance or prevarication in Article 329 CC, which is broader than Article 404 and is punished more severely.57

4.3.  Organised Environmental Crime in the Criminal Code There are no substantial provisions on organised environmental crime in CC,58 so the general rules on organised crime must be applied. There was no definition of organised crime in CC. The reform of Law 5/2010 introduces a ­distinction

56  See LM Puente Aba, ‘El Delito Ecológico del Artículo 325 del Código Penal’ (2011) 2(1) Revista Catalana de Dret Ambiental 1, 11; JL Fuentes Osorio, ‘Accesoriedad Administrativa y Delito Ecológico’ in Arana García, Mercado Pacheco, Pérez Alonso and Serrano Moreno (eds), Derecho, Globalización, Riesgo y Medio Ambiente (Valencia, Tirant lo Blanch, 2012) 717. After the reform introduced by Law 5/2010, Article 329 CC provides:

‘1. Authority or public official who knowingly, has reported favourably on granting clearly illegal licenses authorising operation of polluting industries or activities referred to in previous articles, or in connection with inspections it has silenced violation of laws or regulations of general provisions that regulate, or omitted to carry out mandatory inspections, will be punishable under Article 404 of this Code and, in addition, with imprisonment of from 6 months to 3 years and a fine of from 8 to 24 months. 2. The same penalties shall be applied to the authority or public official who himself or as a member of a collegial body has resolved or voted in favour of granting knowing its injustice.’ 57  See A Vercher Noguera, ‘Evolución Jurisprudencial del Delito contra el Medio Ambiente’ (2003) 1 Revista Jurídica de Castilla y León 223, 249 and ff; JM Silva Sánchez and R Montaner Fernández, Los Delitos contra el Medio Ambiente, (Barcelona, Atelier, 2012) 241; Martín Lorenzo, ‘Delitos’, n 22 above, paras 13820 and ff; Carmona Salgado, ‘Incidencias’, n 6 above, 417 and ff; Martínez-Buján Pérez, Derecho Penal Económico, n 10 above, 957. 58 There is a minor procedural provision (Article 282 bis Criminal Procedure Act) concerning the possibility of using undercover agents in crimes of trafficking in endangered species of flora or fauna (Articles 332 and 334 CC) and crimes of trafficking in nuclear and radioactive material (Article 345 CC).

202  Juan Luis Fuentes Osorio between criminal groups59 and criminal organisations,60 which are within the offences against public order. In Spain, organised crime in environmental crimes may be partially identified with organised forms of corruption.61

4.4. Problems Related to the Quality of the Administrative and Criminal Legislation The problems related to the quality of the drafting of the administrative and criminal legislations are caused by a growing tendency to increase the number of environmental crimes. This sometimes leads to an overlapping of crimes that complicates their prosecution and requires solving competition among crimes that is not always satisfactorily resolved. Environmental norms are not collected in a single text. This problem of dispersion means that there is no overall vision of all environmental crimes. In some cases, this may lead likewise to an overlap of criminal charges. An example of this would be the illegal trafficking of endangered species of wildlife, fauna or flora, which is an activity that may be sanctioned either by CC (Articles 332 and 334), or by the Law for the Suppression of Smuggling (Article 3.1of Law 12/1995).62 Use of different terminology in CC and in the administrative regulations. For example, the protected interest is given different names: natural system, biological balance, environment, or is simply not mentioned. Moreover, there is no express reference to the (anthropocentric, ecocentric or mixed) perspective of environment used. For instance, in cases where articles contain a link with the life and health of individuals, this lack of reference becomes especially relevant because the relationship between the environment and individual health is not clear in the criminal field. Thereby, an anthopocentric interpretation can be used, limiting the scope of environmental crimes, since they will

59 

Article 570 ter CC. Article 570 bis CC. The difference between criminal organisations and criminal groups lies in the continuity and permanence required to constitute a criminal organisation. For the purposes of CC, criminal groups are formed when these do not meet some characteristic of an organisation. Criminal groups therefore can be said to be a transitional type of association acting on an occasional basis or a union of persons not subject to a hierarchy, although it may pursue the same purpose as the organisation: the commission of crimes or concerted and repeated commission of offences. 61 See about this conection between organised crime and corruption in environmental crimes White and Heckenberg, Green Criminology, n 48 above, 286 and ff. 62 The conflict is resolved by applying the rule with the highest penalty, see Serrano Tárraga, ‘Delitos’, n 10 above, 528. Defending the concentration of all environmental crimes, JL De la Cuesta Arzamendi, ‘Delitos contra los Recursos Naturales y el Medioambiente: Capítulo III, Título XVI, Libro II del Nuevo Código Penal de 1995’ (1998) 14 Actualidad Penal 287, 291; JC Sessano G ­ oenaga, ‘La Protección Penal del Medioambiente’ (2002) 4(11) Revista Electrónica de Ciencia Penal y Criminología 1, 30. 60 

Environmental Criminal Law in Spain 203 require an individual’s health to be injured together with the environment63 or even in isolation.64 The legislation fails to deal with specific environmental factors. For example, there is some indeterminacy of the scope of the ‘ecosystem’ of reference required to establish the existence of the environmental crime. Should the ecosystem be the immediate one or a wider area? If it is a smaller area, it will be easier to prove the required harm or endangerment. Similarly, it is important to know the time period to be taken into account in cases of cumulative pollution: is it one day or one year or a decade? With a longer period it may be easier to prove that damage has occurred when observing the consequences of pollution or the harmful ­capacity of the conduct, but also it may be more difficult to link it to a specific action. These factors should be defined in the wording of the crime.65 The model of environmental crimes consists of offences with different levels of actual completed commission (abstract endangerment, concrete endangerment and harm) and various protected objects (environment, ecosystems, water, air, soil and flora and fauna). The possible levels of completed commission are as follows: —— Only regarding water, air, soil and flora and fauna there can be abstract endangerment (Article 345.1), concrete endangerment (Article 343.1 CC); abstract endangerment or harm (Article 325.1, 326, 326 bis CC). —— Only regarding water, air, soil: harm (Article 330 CC). —— Only regarding flora and fauna: harm (Articles 332, 334–36 CC). —— Only regarding the environment: abstract endangerment (Articles 325.2 CC), concrete endangerment (Articles 348.1, 349–350 CC), harm (Articles 332, 333, 334 CC). The last reform of CC in 2015 has clarified the nature of some crimes against the environment in which the abiotic or biotic elements play a substantial role. Thus, it is said that the conduct must cause harm or be capable of causing harm to the quality of air, soil or water or to animals or plants (Articles 325.1, 326 and 326 bis CC). Also, the Spanish legislator has decided to use the terms set out by the ECD, in particular, in its Article 3 on offences. However, this new regulation leaves unresolved the question of the size of the ecosystem of reference. Therefore, the judge can continue to choose the area strictly affected by the act of pollution or gradually expand its extension. Likewise, and as indicated below, this change does

63 The judgments of the Supreme Court No 289/2010 and 152/2012 establish a link between environment and health. 64  See on this debate on Article 325 CC, Fuentes Osorio, ‘¿Delito Ecológico?, n 13 above, 29 and ff. This occurs in the field of noise. Some judgments hold that the offence of Article 325 CC does not depend on the capacity to endanger the environment but on how it endangers life or health (see Spanish SC No 1091/2006; No 540/2007). The result is that most forms of noise pollution will only be punished when physical and mental injuries occur, which usually require repeated acts and the proof of injury. 65  See Fuentes Osorio, ‘¿Delito Medioambiental’, n 9 above, 38 and ff.

204  Juan Luis Fuentes Osorio not solve the problems that exist to prove environmental harm required by each environmental crime. Of particular importance is the confusion between crimes and administrative offences in practice. The criminal doctrine analyses the relationship between criminal and administrative law within the global concept of ‘administrative accessoriness’ or ‘administrative dependence of the environmental criminal law’ which includes, likewise, the problems of ‘blank’ criminal laws (ie, those that do not themselves define the offence) and the principle of non bis in idem.66 This relationship is built around the principle of unity of the legal system. According to this in a dual system of criminal and administrative sanctions there cannot be contradictions in defining the forbidden act, or duplications to punish the forbidden act. This is ensured by a dual mechanism of priority: (i)

(ii)

Administrative law takes priority over criminal law in the definition of what is allowed. Behaviours expressly permitted by administrative statutes, permits and licences cannot be subject to criminal sanction. In this sense, administrative law therefore limits criminal law. The problems it poses were examined above under the concept of ‘administrative toleration’. Criminal law takes priority over administrative law when the sanctions overlap for the same offence. In this case, criminal sanctions are the only ones that can be imposed. This comes from the principle of non bis in idem and the duty of the administration to inform the prosecutor and suspend the administrative procedure.67 The priority of criminal law can generate the non-application of administrative regulations. To avoid this effect, it is necessary to establish a clear distinction between them. Criminal law is the last step of the disciplinary system. Therefore, definitions of crime must require attacks against the protected object of a gravity exceeding that defined in the administrative offence. This additional gravity is described by the inclusion of some element (objective and/or subjective) in the crime, not envisaged at the administrative level. Its existence distinguishes administrative offences and crimes and favours the application of both regulations under the logic of overlapping of criminal provisions, assuming the subsidiary character of the administrative offence. However, the Spanish environmental criminal legislation does not provide in all cases an additional element in order to distinguish between crime and administrative offences due to the gravity of the violation, as in the case for example of Articles 334 and 335 CC. This difficulty of distinguishing between a­ dministrative and penal

66  See Frisch, Verwaltungsakzessorietät, n 44 above; M García Arán, ‘Remisiones Normativas, Leyes Penales en Blanco y Estructura de la Norma Penal’ (1993) 16 Estudios Penales y Criminológicos 63, 63 and ff; De la Mata Barranco, Protección Penal del Ambiente; P Rando Casermeiro, La Distinción entre el Derecho Penal y el Derecho Administrativo Sancionador (Valencia, Tirant lo Blanch, 2010); Fuentes Osorio, ‘Accesoriedad Administrativa’, n 56 above, 707 and ff. 67  See Serrano Tárraga, Serrano Maíllo and Vázquez González, Tutela Penal Ambiental, n 2 above, 121 and ff.

Environmental Criminal Law in Spain 205 fields hinders the activity of the police when determining what acts should be treated as crimes and those which are administrative offences.68 When in doubt most opt for the latter, sometimes because the punishment of environmental crime is considered to be very high.69

5.  PROCEDURAL PROVISIONS, ACTORS AND INSTITUTIONS

5.1.  Procedural Provisions There are no special procedural provisions on environmental crimes. They are dealt with like any other ordinary crime and treated before the criminal courts according to the procedural rules corresponding to the seriousness of the penalty foreseen for the crime. However, there are some general procedural provisions that may play an important role in the prosecution and punishment of environmental crimes such as the plea-bargaining rules. 5.1.1. Plea-bargaining The criminal process in Spain is governed by the principle of legality, according to which the Public Prosecutor is obliged to bring charges and apply the penalty provided by the law when it is considered that an illegal act has been committed. It is not possible for the offender to make an agreement with the prosecution to avoid criminal proceedings (eg by paying an administrative fine). Neverthelesss, after the reforms introduced by Law 7/1988 of 28 December and subsequent reforms, some manifestations of the principle of opportunity have been introduced into criminal proceedings. Thus, in summary proceedings (Procedimiento Abreviado), for crimes punishable by up to nine years’ imprisonment, there is the possibility of an agreement between prosecutor and defendant, which avoids a trial. This joint agreement can be made before the Investigating Judge (Article 784.3 Criminal Procedure Act, CPA) or at the trial, before evidence is given (Article 787 CPA). If the agreement is for a prison term not exceeding six years, the judge or court must pass sentence after carrying out a merely legal check of the agreement, without going into the facts accepted by the parties (Article 787.1 CPA). For example, in a

68  See JM Quirós Rodríguez, ‘El Papel del SEPRONA en la Prevención e Investigación de los Delitos contra el Medio Ambiente y los Recursos Naturales’ in Encuentro sobre Integrantes de la Carrera Judicial y Fiscal sobre Delitos Ambientales (Sevilla, Foro de Formación y Estudios Medioambientales del Poder Judicial en la Comunidad Autónoma Andaluza, 2014) 8. 69  See regarding discharges, Quirós Rodríguez, ‘El Papel del SEPRONA’, n 68 above, 8. Moreover it should also be pointed out that ‘compared with the criminal procedure, the costs of the administrative procedure are substantially lower’, M Fauré and A Gouritin, ‘Blurring Boundaries between Administrative and Criminal Enforcement of Environmental Law’ in Galli and Weyembergh (eds), Do Labels still matter? Blurring Boundaries between Administrative and Criminal Law. The Influence of the EU (Brussels, Institut d’Etudes Européennes, Editions de l’Université de Bruxelles, 2014) 113.

206  Juan Luis Fuentes Osorio trial of an offender for pollution under Article 325.2 CC, punishable by imprisonment for up to five years, the parties may agree to accept a penalty of two years (the minimum). The opportunity principle plays an even more important role in the Rapid Procedure (Enjuiciamiento Rápido) for certain crimes with imprisonment of up to five years (Article 795 CPA), in which if the sentence requested by the prosecution does not exceed three years, the agreement of the accused is accompanied by a reduction of the sentence by one third (Article 801 CPA). Although environmental crimes cannot be prosecuted under this Rapid Procedure, the above rule is applicable, however, in Summary Proceedings if the defendant admits the facts in the first court appearance and these are within the scope of application of the Rapid Procedure (Article 779.5 CPA). In this case, the Public Prosecutor is called upon to submit an agreed written statement. The sentence imposed will be reduced then by one third. In practice, this institution of agreement in criminal proceedings is so widespread that it is of concern to criminal law academics. Official figures indicate that in 2011, and only in Summary Proceedings, sentences based on the agreement of the defendant between 48 per cent—according to the General Council of the Judicial Power—and 68 per cent—according to the Public Prosecutor—of the total, although there is reason to think that there is an important hidden figure that would achieve rates of up to 85 per cent in some courts.70 In the prosecution of environmental crime, its complexity and the difficulty in proving certain elements may explain why the Prosecutor has a strong interest in reaching agreements to avoid a trial. 5.1.2.  Suspended Prison Sentence In Spain, an alternative form of imprisonment is foreseen: the suspended prison sentence (Articles 80–87 CC),71 envisaged for first-time offenders who have received a prison sentence of up to two years. Its use is a discretionary decision by the judge (Article 80 CC) mainly based on the dangerousness of the perpetrator. The latest reform of CC has reduced the prison sentence for crimes against the environment through acts polluting the resources of the ecosystem. Before this reform, the prison sentence for the crime under Article 325 was from two to five years. Thus, the possibility of suspending the sentence was very limited, only when the minimum penalty (two years) was imposed or by applying a mitigating circumstance. This situation often influenced the judge to impose the lowest sentence. An example of resistance to imposing imprisonment exceeding two years can be seen in the following statistics. 70 See Grupo de Estudios de Política Criminal, Una Alternativa a Algunas Previsiones Penales Utilitarias (Valencia, Tirant lo Blanch, 2014) 15 and ff. 71 If the perpetrator has already entered prison, he has the possibility of applying for parole (Articles 90–92 CC). Applicable to all penalties when the offender is in a prison regime of semi-freedom, has served three quarters of the sentence, is of good behaviour, with a favourable social rehabilitation prognosis, and has satisfied civil liability.

Environmental Criminal Law in Spain 207 Table 2:  Number of prison sentences by duration in crimes relating to land use and town planning, protection of historical heritage and the environment 0 up to 2 years

>2 up to 5 years

>5 years

2014

749

3

1

2013

667

2

2

2012

697

15

1

2011

582

5

0

Source: INE (National Institute of Statistics).

Now, Article 325.1 establishes a prison sentence of between six months and two years for the basic offence. Consequently, the criminal judge may pass sentence for this offence with the knowledge that he may suspend it. This could increase the number of convictions. On the other hand, regarding environmental attacks through acts damaging elements of the ecosystem (flora and fauna) there is also the possibility of imposing, alternatively, imprisonment or a fine. Therefore, the criminal judge has the possibility of sentencing for an environmental crime without necessarily imprisoning its author.

5.2.  Actors and Institutions In Spain, the prosecution of environmental crimes begins in the vast majority of cases with the action of the police, on their own initiative or because the crime has been reported. The police force which is usually in charge of beginning proceedings in these cases is the Nature Protection Service (SEPRONA) of the Civil Guard.72 This police force is in charge of protection of soil, water and air, animal welfare and the conservation of fauna and flora. It is also concerned for example with dumps, environmental pollution, the illegal trade of protected species, illegal hunting and fishing, defence of natural areas and the prevention, investigation and extinguishing of fires. Long before the official establishment of SEPRONA, there were spontaneous initiatives led by local police services that took the opportunity to create ‘groups or sections’ specially trained to investigate environmental cases. They achieved a high quality of investigation, leading later to the official establishment of this section of the Civil Guard. In those Autonomous Communities which have their own police forces, the processing of an environmental crime is often begun by the Autonomous Community police (particularly, in the Basque Country by the special service of the ‘Ertzaintza’ and in Catalonia by the Mossos d’Esquadra). However, none of these above-mentioned police forces have exclusive

72 Created by General Order No. 72 of 21 June 1988, see: www.guardiacivil.es/es/institucional/ Conocenos/especialidades/Medio_ambiente/.

208  Juan Luis Fuentes Osorio jurisdiction in these matters, so at times municipal police or forest guards initiate such proceedings.73 The public prosecutor may also intervene in the case—as s/he receives the report of a crime and requests that certain kinds of investigative procedures are carried out—and some degree of discretion is allowed. The Spanish Prosecutor’s Office at the Supreme Court has a coordinator for environmental crime (Fiscal de Medio Ambiente y Urbanismo) who is responsible for the coordination and supervision of the activity of all public prosecutors in relation to environmental crimes. Initially, there was no special prosecution office for environmental crimes. The Spanish prosecutor acted in this context only with Instructions and Circulars.74 However, the technical difficulty of the environment determined the need for specialisation. First, a Prosecutor of the High Courts and Provincial Courts was appointed with special tasks in the field of the environment. But it was through Law 1/2004 of 28 December, which changed Article 22 of Law 50/1981 of 30 December regulating the Organic Statute of Public Prosecutions that created a special Prosecutor in each Headquarters for direction and coordination in respect of crimes and offences against the environment. Subsequently, Law 10/2006 of 28 April merged the position of Prosecutor appointed in 2004, with the creation of a ‘Chief prosecutor’ (Fiscal de Sala) for offences relating to land use, the protection of historical heritage, natural resources and the environment, protection of flora, domestic animals and wildlife and forest fires. It also established ‘Environmental Sections’, in the Public prosecutor’s office of each High Court and Provincial Court, specialised in the same crimes. Law 24/2007 of 9 October consolidated this model.75 The specialisation of the police and prosecutors76 is considered a relevant factor in the increasing prosecution of environmental crime.77 However, there are no specialised judges in environmental criminal law. Nevertheless, it would be advisable to create such a post. Due to the legal, scientific, and technical difficulties of environmental damage their training is necessary, as shown by cases such as the Aznalcollar mining spill or the Prestige oil pollution that have become notorious in Spain and Europe. The goal is to gain greater e­ fficiency in the fight against this criminal phenomenon.78

73  There are also specialised units to combat organised crime: GRECO (Special Group Response to Organised Crime) of the National Police or the ECO (Team against Organised Crime) of the Civil Guard. 74  See, eg, Instructions 1/86 and 4/90 in respect of forest fires and Circular 1/90 on the investigation and prosecution of crimes against the environment. 75  See Articles 18.3 and 20 of Law 50/1981. 76  The number of prosecutors has increased by 21.4% from 2008 to 2014, ie 126 to 153; see Fiscalía General del Estado, Memoria (Madrid, Centro de Estudios Jurídicos, Ministerio de Justicia, 2015) 404. 77  See H Roldán Barbero, ‘Detección e investigación de los delitos ecológicos’ (2003) 17 Eguzkilore 57, 64; White and Heckenberg, Green Criminology, n 48 above, 225. 78  See P Higgins, D Short and N South, ‘Protecting the Planet: a Proposal for a Law of Ecocide’ (2013) 59 Crime, Law and Social Change 251, 263, they defend ‘the extension of environmental courts and the establishment of an International Environmental Court. The value of such courts lies

Environmental Criminal Law in Spain 209 There is a lack of general information about inspectors and appropriate c­ontrols by the Inspectorate services. Currently we do not have the data from all the Autonomous Communities about the number of existing inspectors (35 per cent of the data are lacking) or on inspections (23 per cent of the data are lacking).79 In addition to this, the EU does not usually conduct an assessment of compliance with European regulations on inspections (Directives 2010/75/EC,80 2012/18/EC).81,82 This information is necessary to ensure the proper functioning of controls and inspections and to avoid the reduction of the number of ­inspectors.83 This lack of information means that the enforcement agents cannot provide adequate evidence to ensure convictions. Moreover, it endangers the substantial deterrent effect, reducing and preventing future violations which environmental monitoring and enforcement activities produce.84 There is an insufficient number of technical personnel85 who are decisive in providing evidence.86 Prosecutors have criticised the limited resources available to obtain evidence to justify further investigation as well as to determine the existence, nature, gravity and scope of the harm.87 This lack of resources may explain in the focus and expertise that can be brought to bear on complex and technical matters that are often ­unfamiliar when introduced and processed through the traditional courts’. See also White and Heckenberg, Green Criminology, n 48 above, 225, 262. 79  See A García Ureta, ‘Potestad Inspectora y Medio ambiente: Derecho de la Unión Europea y algunos Datos sobre las Comunidades Autónomas’ (2016) 54 Actualidad Jurídica Ambiental 1, paras 40 and ff, for the period 2010–14. García Ureta, ‘Potestad’, ibid, para 47 also notes that there is no published information about the reports of inspections carried out in nine Autonomous Communities (52% of the total) and about the number of inspectors in twelve of them (70%). 80 Directive 2010/75/EC on industrial emissions (integrated pollution prevention and control) [2010] OJ L334/17. 81  Directive 2012/18/EC on the control of major-accident hazards involving dangerous substances, amending and subsequently repealing Council Directive 96/82/EC [2012] OJ L197/1. 82 García Ureta, ‘Potestad’, n 79 above, para 3 argues that the Commission does not examine frequently ‘what regulations on inspections have been adopted or how many inspectors are dedicated to ensuring that the EU system is applied successfully. Unknown are the cases where the Commission has brought a Member State before the ECJ for not having secured an institution that would ensure the implementation of the provisions of the EU’. 83  For instance, in 2009, the Ombusdman—who can lead investigations relating to the environment and can issue reminders of duties or warnings to national, regional and local administrations—opened and finally sent an ex officio complaint against the Madrid Mayor’s Office relating to the reduction in the number of monitoring stations assessing factors contributing to pollution in areas of high road traffic density in the capital, Ombusdman, Informe a las Cortes Generales (Madrid, Ombusdman, 2009) 69. 84 See WB Gray and JP Shimshack, ‘The Effectiveness of Environmental Monitoring and Enforcement: A Review of the Empirical Evidence’ (2011) 5 Review of Environmental Economics and Policy 3, 15, 18. 85  See the Fiscalía General del Estado, Memoria (Madrid, Centro de Estudios Jurídicos, Ministerio de Justicia, 2013) 315. 86  ‘The availability of local expertise, staff and resources will determine how investigation is carried out in practice’, White and Heckenberg, Green Criminology, n 48 above, 227. 87  Fiscalía General, Memoría 2013, n 85 above, 314, puts it very clearly when reporting on human and material resources: it shows, as in previous reports, ‘a situation of serious shortcomings, which attempts to overcome with higher doses of commitment. In some cases, such as that of the Prosecutor’s Office of Málaga, the situation is described, and has been called disastrous for several years in his Reports … Numerous Sections of Environmental Prosecutors have pointed out the need for ­specialist

210  Juan Luis Fuentes Osorio the frequency of dismissed environmental criminal pre-trial investigations as well as some failures to prove the existence of criminal offences at trial. Environmental crimes have high technical difficulty. This is especially evident in proving the required harm. For example, to prove that the behaviour has caused harm or concrete endangerment poses obvious problems. However, it is also complicated to prove abstract endangerment. The determination of the capacity to endanger depends on factors such as the object of protection, the scope of the ecosystem, and the time-period to be analysed, none of which are specified in the criminal law, which may lead to conflicting results. So the defence experts will choose the combinations that deny the presence of this capacity to endanger, eg they will refer to the entire river basin instead of the affected area. The new regulation of environmental crimes in Spain after the reform of 2015 does not resolve this problem. The terms have changed but the difficulty of specifying when pollution causes or may cause a substantial, criminally relevant, harm to the quality of water, air and soil, animals or plants, remains.

5.3.  Information about the Prosecution of Environmental Crimes There is no specific agency (eg an environmental agency) with powers to monitor and control. Therefore, we must resort to various sources of information, with different objects, methodologies and scope.88 These are described below. 5.3.1.  Ministry of Interior The Ministry of Interior produces substantial information on crime that, however, partially lacks an environmental approach and method. —— Balances on crime:89 Information available on the site about registered criminal offences does not include references to crimes against the environment. —— Statistical information on ‘known and clarified facts’.90 We must go to ­statistical information on ‘nature conservation’. However, until 2013 this only contains the Civil Guard’s ‘environmental complaints’. From 2014, the name changes and now includes ‘environmental offences’.91

experts on environmental issues to be able to address the scientific aspects that the application of environmental criminal law entails. In any case, the existence of the Technical Unit has been filling, at least for now, that gap’. 88  ‘“Who” is collecting “what”, for “whom”, and “why” are essential questions when it comes to data on environmental crimes and harms’, White and Heckenberg, Green Criminology, n 48 above, 88. 89  See: www.interior.gob.es/es/prensa/balances-e-informes/2016. 90   See: www.interior.gob.es/web/archivos-y-documentacion/documentacion-y-publicaciones/ anuarios-y-estadisticas/anuarios-estadisticos-formato-reutilizable/2012/seccion-2/subapartado-2.1. 91  See: www.interior.gob.es/web/archivos-y-documentacion/conservacion-de-la-naturaleza2 (2015).

Environmental Criminal Law in Spain 211 —— Statistical Yearbook of the Ministry of Interior.92 Until 2013 it included ‘Cases studied by the Civil Guard on environmental complaints’. From 2014, the name changes to ‘environmental administrative offences’ and ‘environmental crimes’.93 These three sources give important information on the evolution of criminal and administrative environmental proceedings. However, in the last two cases the lack of correlation with the classification set out in CC makes it impossible to know exactly the current evolution of the enforcement of environmental criminal law. It is recommended that in each case the relevant Article of the CC should be referenced. Prison statistics provide information on the ‘Distribution of condemned population by type of crime, according to the current Criminal Code’. It does not include an item on environmental crime.94 It would be advisable to isolate this information in order to assess the number of custodial sentences for these crimes. 5.3.2.  The National Institute of Statistics (INE) The National Institute of Statistics provides statistical information on convicted persons. There is a specific item on the ‘nature of crime’; although the relevant Article of CC is not specified, INE reports on the number of convictions for each of the chapters of Title XVI of CC. However, there is only a general reference to Title XVI when searching for information about the ‘length of sentence and type of offence’.95 As this chapter integrates the crimes on town planning and historical and artistic heritage, it makes it more difficult to know the application of criminal environmental law in a strict sense, especially with the importance of town planning crimes in Spain. 5.3.3.  Prosecutor’s Office The Annual Reports of the State Prosecutor96 offer very interesting information in order to verify the degree of implementation of environmental criminal law (trials, convictions and acquittals).

92 See: www.interior.gob.es/es/web/archivos-y-documentacion/documentacion-y-publicaciones/ publicaciones-descargables/publicaciones-periodicas-anuarios-y-revistas-/anuario-estadisticodel-ministerio-del-interior. 93  See: www.interior.gob.es/documents/642317/1203602/Anuario_estadistico_2015_126150729.pdf/ 742944a2-5e93-446a-a71e-517fe0e738f8 (2015). 94  See: www.interior.gob.es/web/archivos-y-documentacion/instituciones-penitenciarias2. 95 www.ine.es/jaxi/tabla.do?path=/t18/p466/a2012/l0/&file=05006.px&type=pcaxis&L=0. 96 See: www.fiscal.es/fiscal/publico/ciudadano/documentos/memorias_fiscalia_general_estado/ !ut/p/a1/04_Sj9CPykssy0xPLMnMz0vMAfGjzOI9HT0cDT2DDbwsgozNDBwtjNycnDx8jAwsz IAKIpEVuPtYuBk4unsGO5l6eBhbBJkQp98AB3A0IKQ_XD8KVYm_h68R0AWGvqEmli7GB u6G6AqwOBGsAI8bCnJDIwwyPRUByaZ9Ig!!/dl5/d5/L2dBISEvZ0FBIS9nQSEh/.

212  Juan Luis Fuentes Osorio In summary, information on environmental crimes, convictions for these crimes and penalties imposed (type and duration) is offered by different agencies but using different categories and methodology and not always distinguishing between different types of crimes. This makes it difficult to draw a picture of the enforcement of environmental criminal law. The creation of a national agency to structure these data is recommended.

6. SANCTIONS

6.1.  Environmental Sanctions in the CC CC establishes three kinds of sentences for crimes against the environment: —— Sentences involving loss of freedom. —— Fines:97 additional or alternative to the prison sentences. —— Deprivation of other rights: usually additional to 1 and 2 above.

Table 3:  Environmental criminal sanctions (for the basic activities) Crimes against Natural Resources and the Environment CC

Basic sanction

Arts 325–327 (General environmental crime and Waste)

Imprisonment for between six months and two years and fine from 10 to 14 months and prohibition from exercising profession or trade for a term from one to two years

Art 330 (Damage in natural areas)

Imprisonment for between one and four years and fine from 12 to 24 months

Art 329 (Corruption of public authorities or public servant)

Imprisonment for between six months and three years and fine from eight to 24 months and special disqualification from employment and public office and the deprivation of the right to stand for election from nine to 15 years. (continued)

97  Daily fine. The system of imposing fines over a number of days establishes the total of the fine according to two factors: the number of days (for the seriousness of the fact) and the amount of money that must be paid every day (according to the defendant’s financial capacity). Thus, a defendant can be ordered to pay a fine of €40 a day for 3 months (€40 x 90 days = €3600). For the purpose of computing the fine, the months will have 30 days and the years 360 days (Article 50.4 CC).

Environmental Criminal Law in Spain 213 Table 3: (Continued) Crimes related to the Protection of Flora and Fauna CC

Basic sanction

Art 332 (Crimes related to the protection of threatened flora)

Imprisonment of between six months and two years or fine from eight to 24 months and prohibition to exercise profession or trade for six months to two years

Art 334 (Crimes related to the protection of threatened fauna)

Imprisonment from six months to two years or fine from eight to 24 months and prohibition to exercise profession or trade and to exercise the right to hunt or fish for a term from two to four years

Art 335 (Illegal hunting and fishing)

Fine from eight to 12 months and prohibition for fishing or hunting for a term from two to five years

Source: CC—Author’s drafting.

The CC, after the 2015 reform, provides for a dual system of sanctions: basic penalties, which can be increased by specific aggravating circumstances for environmental reasons. These environmental reasons are, for example, that pollution can seriously harm the environment, the clandestine nature of the activity, targeting an endangered species, etc. For example, pollution (with a basic penalty of imprisonment of between six months and two years) when it is caused by a clandestine activity that might seriously impair the balance of the natural ecosystem and also affects a protected natural area could be punished by a term of imprisonment of 11 years (approximately).98 In the same way hunting of threatened fauna (with the same basic penalty) when this is in danger of causing extinction within a protected natural area will allow the penalty of imprisonment to be raised up to four years and six months. In these two examples, it can be seen, however, that the penalties are higher in the case of crimes against natural resources and the environment. For this reason, if there is a spill that harms a threatened species of flora or fauna, Articles 325 and ff CC should be applied.

6.2.  The System of Corporate Criminal Liability The CC of 1995 introduced the possibility that, for certain crimes, a series of measures could be imposed on the legal person. These measures, contained in

98 

See Article 325.2 combined with Articles 327 and 338 CC.

214  Juan Luis Fuentes Osorio the preceding Article 129,99 were called ‘ancillary consequences’ because they could be applied to the legal person only in cases of conviction of an individual who occupied a hierarchical position or acted to the benefit or on behalf of the legal person. Law 5/2010 changed this model and fixed the autonomous criminal liability of legal persons (Article 31 bis CC). Its principal characteristics are the following: —— Autonomous liability for the behaviour of legal persons reflecting a defect in the organisational management. Legal entities will be criminally liable in two cases: (i) for the offences committed in their name or on their behalf, for their benefit, by their legal representatives or administrators or by those who are authorised to make decisions on their behalf; (ii) for infringements caused by employees, when they are in the exercise of the company’s activities for and on behalf of the legal person, provided that it is attributable/due to the lack of control. —— The criminal liability of legal entities requires that it can be established that a crime has been committed by an individual holding or carrying out any of the posts or duties referred to above, even when the specific individual responsible has not been singled out or it has not been possible to bring proceedings against him (Article 31.1 ter CC). —— It excludes certain entities with legal personality (Article 31.1 quinquis CC). For example, the governments of Autonomous Communities and public administrations, which thus cannot be responsible for committing environmental crimes. —— Legal persons may only be accountable for a limited number of crimes as listed (a numerus clausus system). —— Article 129 CC remains alternative, in cases not covered by Article 31 bis. Thus, in the case of felonies or misdemeanours committed within, in collaboration with, or through or by means of firms, companies, organisations, groups or entities without legal personality, there remains the possibility of imposing ‘ancillary consequences’ to the penalty for the perpetrator of the crime committed. The CC provides the following list of penalties for legal persons in Article 33.7:100

99  Closure of the company, partnership dissolution, suspension or prohibition of its activities or intervention in the activities of the company. 100  Temporary closure of premises or establishments, suspension of corporate activities and judicial intervention may also be agreed by the Investigating Judge as a precautionary measure during investigation of the case (Article 33.7 CC).

Environmental Criminal Law in Spain 215 Table 4:  Criminal sanctions for Legal persons Type of criminal sanctions (Art 33.7 CC) Fine

By days or proportional to the damage caused

Dissolution of the legal person Suspension of its activities

For a term that may not exceed five years.

Closure of its premises and establishments

For a term that may not exceed five years

Prohibition to carry out the activities, through which it has committed, favoured or concealed the felony in the future

Such prohibition may be temporary or indefinite; if temporary, the term may not exceed 15 years.

Barring from obtaining public subsidies and aid, to enter into contracts with the public sector and to enjoy tax or Social Security benefits and incentives

For a term that may not exceed 15 years.

Judicial intervention to safeguard the rights of the workers or creditors

For the time deemed necessary, which may not exceed five years.

Source: CC—Author’s drafting.

Compliance programmes play a relevant role within this system. The legal entity can be exempt from criminal liability if it adopted and implemented effectively before the crime a compliance programme to prevent and detect offences that may be committed by the legal entity in the exercise of its activities (Article 31.2 bis CC). If the programme was established after the crime but prior to the hearing of evidence, this will have a mitigating effect (Article 31(d) quarter CC). Crimes against the environment are included in the list of crimes for which legal entities can be held criminally liable (Articles 328, 343.3, 348.3 CC). This fulfills in theory the requirements of Directives 2008/99/EC and 2009/123/EC.101 Nevertheless, this criminal liability is not envisaged for all forms of environmental attack. Thus, there is no such provision for crimes concerning flora and fauna (Articles 332–336 CC) or for crimes related to the possession, trafficking, facilitation, transformation, use, storage, transport or elimination of nuclear substances or other hazardous radioactive substances (Article 345 CC).102 The last two reforms have not resolved these shortcomings. The introduction of certain sanctions against legal persons stands out as a success; especially the use of fines proportional to the prison sentences imposed on 101  See RM Mata y Martín, ‘Artículo 328 CP’ in Gómez Tomillo (ed), Comentarios Prácticos al Código Penal IV (Cizur Menor, Aranzadi, 2015) 125. 102  See Milieu, Evaluation Study, n 19 above, 39.

216  Juan Luis Fuentes Osorio the natural persons, and the exclusion from obtaining public subsidies and aid, to enter into contracts with the public sector and exclusion from enjoying tax or Social Security benefits and incentives.103

6.3.  Are there Lesser Crimes than Administrative Santions? A comparison between the system of criminal and administrative sanctions shows an obvious similarity, with the difference that the deprivation of liberty is not allowed at the administrative level.104 This difference disappears when it comes to legal entities that cannot be imprisoned anyway. It is claimed that the amount of the criminal fines may be less than that which would be imposed through administrative sanctions.105 This is partially right. For example, the maximum amount of the fines for a chemical spill in a river under Article 325.2 CC would be €288,000 (two years at €400 per day) for physical persons and €5,400,000 (three years at €5,000 per day)106 for legal entities. Under administrative sanctions, the fine established for these behaviours in the Autonomous Community of Andalusia (Law 7/2007 of 9 July on Integrated Management of Environmental Quality), as a very serious administrative offence, ranges from €300,506.62 to €601,012.10.107 So although this criticism is correct for natural persons, it will not be so for legal persons. However, the penalties provided for legal entities for environmental crime were higher before the last reform. Now, when the offence committed by a natural person has a punishment foreseen of imprisonment exceeding five years, the limit of the daily fine is from one to three years, but before this the fine was from two to five years. Nevertheless, it should be noted that in this case the current regulatory sanctions are automatically a proportional fine (double to quadruple of the damage caused) when the resulting amount is higher (Article 328 CC).108 As already indicated, the non bis in idem principle does not allow applying both criminal and administrative fines for the same transgression, to the same perpetrator. However, to avoid this overlap the law states that when an administrative infringement may be a crime, the administrative authority must inform the prosecutor and at the same time, suspend the disciplinary process. This cannot continue if there is a criminal conviction (Article 163 of Law 7/2007).

103 

See Corcoy Bidasolo, ‘De los Delitos’, n 4 above, 1186. Article 25.3 SC: ‘The Civil Administration may not impose sanctions which directly or indirectly imply deprivation of freedom’. 105  See Carmona Salgado, ‘Incidencias’, n 6 above, 417 and ff. 106  See also Article 328 CC. 107  A list of administrative sanctions for each of the ECD’s criminal activities in Milieu, Evaluation Study, n 19 above, 33 und ff. 108  See Górriz Arroyo, ‘Delitos’, n 21 above, 1048 and ff. 104 

Environmental Criminal Law in Spain 217 6.4.  Civil Liability and Actions to Restore the Environment All persons convicted of a crime shall be held liable under Civil Law for the damage or losses caused (Article 116.1 CC). This civil liability includes: restitution, repairing the damage, compensating for material and moral damage (Article 110 CC). If there are several perpetrators, CC imposes joint liability on all individuals who are convicted of the same offence (Article 116.1 CC). The legal entity also has joint civil liability with the physical person who is found guilty of the same acts (Article 116.3 CC). A remedial measure may be taken voluntarily by the perpetrator because it has a positive effect on the sanction. Repair of damage or diminution of the effects of a crime acts as a generic mitigating circumstance (Article 21.6 CC). It is envisaged as a special mitigating circumstance in crimes against the environment (Article 340 CC) and allows the sanction to be reduced (by 50 per cent—un grado) for all conduct described in Articles 325–337 CC.109 Its application requires that the perpetrator ceases the polluting activity and develops positive behaviour that seeks to eliminate or reduce the damage caused.110 The CC also foresees the possibility of imposing actions on the defendant, which are different to punishment; the guilty party, for instance, may be ordered to take adequate action to restore the environment and protect goods (Article 339). In the case of environmental damage due to illegal building, the possibility of ordering the demolition and the restoration of the site to its original state is explicitly included in Article 339 CC, as a general deterrent. Currently this is possible because Article 339 is interpreted broadly. Another option would be to use Article 319.3 CC if the builder is convicted at the same time for a crime against town planning. In this regard, the influence of town planning offences111 on the environment should be noted, because illegal building can harm the environment especially when it affects protected areas. Thus, Greenpeace reports ‘in some communities more than 75% of the land adjacent to the sea is urban or can be urbanized and almost 25% of the coast is artificial coast’112 and ‘many municipalities already have built [on] 100% of their coastline’.113

7. CONCLUSIONS

The transposition of the ECD has had a limited effect on Spanish criminal law. This is because most of the criminal decisions affecting this area had already been

109 

See Corcoy Bidasolo, ‘De los Delitos’, n 4 above, 1207 and ff. See M Gómez Tomillo, ‘Artículo 340 CP’ in Gómez Tomillo (ed), Comentarios Prácticos al Código Penal IV (Cizur Menor, Aranzadi, 2015) 211; Serrano Tárraga, ‘Delitos’, n 10 above, 547. 111  See Articles 319 and ff CC. 112 Greenpeace, Destrucción a toda costa (Greenpeace, Madrid, 2010) 18. 113 Greenpeace, Destrucción a toda costa (Greenpeace, Madrid, 2013) 4. 110 

218  Juan Luis Fuentes Osorio taken prior to its adoption. It could even be said that other directives affecting other areas, such as administrative and civil law, have been much more important (eg Law 27/2006 on rights of access to information, public participation and access to justice in environmental matters, which incorporates Directives 2003/ 4/EC114 and 2003/35/EC;115 and Law 26/2007 of 23 October on Environmental Responsibility, which incorporates Directive 2004/35/EC).116 Thus, the ECD has not influenced the emergence of Spanish environmental criminal law, which was already developed in its essential aspects in the Criminal Code, or in the adoption of essential decisions to increase the effectiveness of environmental criminal law. However, ECD was an important stimulus in two ways: to avoid movements towards decriminalisation and to improve the structure of this system of environmental criminal responsibility. In this way, it favoured the incorporation of new criminal activities and the refinement of existing ones, the increase of sanctions, the prosecution of reckless behaviour and the obligation to maintain a system of criminal responsibility of legal persons. Nevertheless, the ECD transposition process has also generated undesirable results. The willingness to adjust as precisely as possible the Spanish criminal regulation to the ECD has changed elements of the environmental criminal system, making it more contradictory and complex. Thus, the number of criminal activities has been increased, creating situations of overlap with administrative offences117 (as happens with the possession of protected species under Article 334 CC). New concepts of relevant criminal damage (eg substantial damage to air, soil or water quality, or to animals or plants under Articles 325–326 bis CC) or rules of insignificance (non-negligible quantity of residues under Article 326.2 CC or the involvement of an insignificant amount of specimens under Article 332 CC) have been incorporated. All of them are vague and abstract concepts that do not improve those that previously existed (eg the ability to damage seriously the balance of natural systems).118 This has led to a dilemma between several unwanted solutions: the inapplicability of administrative norms or the disuse of criminal law (because of the difficulty of separation, the perception of disproportionality of criminal response, etc), or its selective use (according to an indeterminate and changing rule). On the other hand, the ECD has not helped to overcome some of the fundamental problems of Spanish environmental criminal law and, by extension, of the EU legislation. 114 Directive 2003/4/EC on public access to environmental information and repealing Council Directive 90/313/EEC [2003] OJ L41/26. 115  Providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending, with regard to public participation and access to justice, Council Directives 85/337/EEC and 96/61/EC [2003] OJ L156. 116  Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage [2004] OJ L143/56. 117  See too Gerstetter et al, ‘Environmental Crime’, n 45 above, 32. 118 Which, in addition, still exists as an alternative definition of criminally relevant harm in Articles 326 and 326 bis CC and as an aggravating circumstance in Article 325.2 CC.

Environmental Criminal Law in Spain 219 (i)

It would be advisable to avoid dispersion of the environmental law. This phenomenon makes it impossible to have an overall view of all criminal conduct. On some occasions this leads to overlaps between crimes. (ii) There is a lack of precise information about the prosecution of environmental crimes.119 This information is offered in Spain by different agencies and using different systems and methodologies and does not distinguish between crimes. This makes it difficult to draw a picture of the enforcement of environmental criminal law. It is advisable to create a national agency in Spain and in the EU to structure these data.120 (iii) The ECD notes the need to verify that relevant environmental harm has occurred, but uses ambiguous and vague terms (such as ‘substantial damage’)121 without providing specific criteria to be taken into account122 and without specifying how to test whether these criteria are met. Linked to this, there are also no clear criteria of differentiation between criminal and administrative offences. For these reasons, accurate and harmonised criteria should be adopted. A solution to these two questions could be that criminal law should always be applied when the conduct causes serious damage in excess of what is established in the administrative offence by a fixed amount or a specific percentage (eg by 100 or 200 per cent).123 (iv) Mechanisms for combating situations of administrative tolerance should be strengthened. In the same way, controls124 and the specialist expertise of staff should be increased.125

119  What is not only a problem in Spain: ‘there is no EU wide-systems for collecting, recording, classifying, etc data; EU-wide systems exist only for specific types of crime (…)’, Gerstetter et al, ‘Environmental Crime’, n 45 above, 15. ‘What is missing in particular is good data about the specific nature and consequences of environmental crime … Member States are rarely obliged to transmit information about environmental to the EU where this data could be centrally managed and shared. Information on the sanctions effectively imposed by the judiciary es also lacking. Such information is often not collected in a consistent way by Member States; as a consequence no reliable or comprehensive data is available fort he EU, either. If that type of information is lacking, it becomes very difficult to judge to what extent criminal enforcement can be considered as ‘effective, proportion­ate and dissuasive’ as required by the ECD’, Gerstetter, ‘Environmental Crime’, n 45 above, 28 and ff. 120  See Gerstetter et al, ‘Environmental Crime’, n 45 above, 42. 121  See Gerstetter et al, ‘Environmental Crime’, n 45 above, 29. 122  For example, regarding contaminating behaviour (toxicity, quantity, duration, etc) or the object affected (extension, number of specimens, etc). 123  See Fuentes Osorio, ‘¿Delito Ecológico?, n 13 above, 40 and ff. 124  As proposed by Directive 2008/98/CE of 19 November 2008 on waste and repealing certain Directives. 125  In fact the Commission ‘consider[s] 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’, European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: The European Agenda on Security (Strasbourg, European Commission, 2015) 18. About this need see Gerstetter et al, ‘Environmental Crime’, n 45 above, 34 and ff, 42.

220  Juan Luis Fuentes Osorio (v)

It should be emphasised that in the environmental sphere the most serious forms of organised crime also involve corruption. Consequently, such crimes should be accorded the same priority as organised crime.126 (vi) Finally, it is difficult to demand compliance with environmental regulations and to apply penal measures in the current economic situation. In this context, there is a greater permissiveness regarding the actions of businesses and flexible interpretation of the requirements of the environmental laws. In fact, there is a reduction of social concern for environmental matters when they collide with economic interests. This has eroded environmental law enforcement.127 In sum, this has been a contributing factor to establishing ecological harm as a secondary problem. A real protection of the environment demands that Member States give priority to this form of crime.128 This requires the determination of Member States: to control the application of the law; not to cut down on resources to prevent and investigate attacks against the environment; not to tolerate infractions; to develop educational programmes that emphasise the relevance of the environment; and to counter arguments against the necessary connection between economic development and environmental damage.

126  Although ‘environmental crime is not among the EU priorities for the fight against serious and organised crime in the period 2014–2017’, Gerstetter et al, ‘Environmental Crime’, n 45 above, 36. 127  See critically White and Heckenberg, Green Criminology, n 48 above, 114. Especially relevant in Spain in the context of crimes in the area of town planning, see Milieu, Evaluation Study, n 19 above, 17. For example, in the case of the Hotel Algarrobico, the mayor and the residents of the nearest town (Carboneras) have always defended the adequacy of this illegal building in a Natural Park less than 100 metres from the coastline in view of the jobs that it would have generated: www.europapress.es/ turismo/hoteles/noticia-alcalde-carboneras-almeria-recuerda-pueblo-quiere-abra-hotel-algarrobicocrear-empleo-20140122144914.html. 128  See Gerstetter, ‘Environmental Crime’, n 45 above, 42.

9 Environmental Criminal Law in Sweden MICHAEL FAURE AND NIELS PHILIPSEN

1. INTRODUCTION

T

HE SWEDISH ENVIRONMENTAL Code (Miljöbalk, Law 1998:808) entered into force on 1 January 1999.1 It replaced 15 previous environmental acts which were amalgamated into the Code. The overall purpose of the Code is ‘to promote sustainable development which will assure a healthy and sound environment for present and future generations’.2 The Environmental Code only includes the fundamental environmental rules; more detailed provisions are laid down in ordinances made by the Government.3 The Swedish Penal Code (Brottsbalk, Law 1962:700) does not include specific provisions on environmental crime. According to Nilsson, the Environmental Code, despite bringing environmentally relevant legislation under one comprehensive regulatory system, still consists of many different sectorial regulations and many different authorities. The Code aims to be a unified regulation which is to take a full and holistic perspective on environmental issues. [It] is consequently applicable to all activities that have significance to the aims of the Code, even when this overlaps with other areas of legislation and regulation.4

Commentators argued that compliance with the previous environmental legislation in Sweden was poor, inter alia, because the risk of being penalised for an environmental crime was rather low. As a result, there was a need for a rapid and effective way of responding to infringements of the environmental rules. Penalties in the form of environmental sanction charges (miljösanktionsavgifter)

1  A version translated into English incorporates changes until 1 August 2000 and can be found at: www.government.se/contentassets/be5e4d4ebdb4499f8d6365720ae68724/the-swedish-environmentalcode-ds-200061. A more recent version, incorporating all changes until 2016, is available in Swedish here: www.notisum.se/rnp/sls/lag/19980808.HTM. 2  Section 1:1 of the Swedish Environmental Code. 3 Website Regeringskansliet, available at: www.government.se/legal-documents/2000/08/ds-200061. 4 AK Nilsson, Enforcing Environmental Responsibilities. A Comparative Study of Environmental Administrative Law (Uppsala, Uppsala University, 2011) 133.

222  Michael Faure and Niels Philipsen were therefore introduced with the Environmental Code. These charges are levied directly by the supervisory authorities when an infringement has been established.5

Penalty provisions are contained in Chapter 29 of the Environmental Code. Depending on the seriousness of the offence, the penalty can be a fine or a term of imprisonment not exceeding two years, or imprisonment of up to six years. According to a report by the Network of Prosecutors on Environmental Crime (ENPRO) from 2012, in Sweden each year ‘about 300–400 cases of environmental crimes are brought to court or result in fines by prescription of a prosecutor’. A majority of these convictions result in the application of a corporate fine.6 More recent estimates by a Swedish Prosecutor at the National Environmental Crimes Unit, however, suggest that each year around 3,000 cases are reported and in around 20 per cent of those cases a sanction is imposed, which implies a higher number of 600 cases.7 The following sections of this chapter will discuss the definition of environmental crime and substantive criminal law principles (section 2), environmental criminal law and transposition of the EU Environmental Crime Directive 2008/99/ EC (ECD) (section 3), procedural provisions, actors and institutions implementing the ECD (section 4), and sanctions (section 5). Section 6 provides conclusions.

2.  DEFINITION OF ENVIRONMENTAL CRIME AND SUBSTANTIVE CRIMINAL LAW PRINCIPLES

2.1.  Definition of Environmental Crime There is no uniform definition of environmental crime/offence in Swedish law. However, the Environmental Code in Chapter 29 (Penalty provisions and forfeiture) uses the concept ‘environmental offence’ (miljöbrott). Activities falling within the ambit of ‘environmental offence’ are listed in Section 29:1 of that Chapter. Section 29:1 of the official translated version reads as follows:8 Any person who deliberately: 1. pollutes land, water or air in a manner which involves or is liable to involve risks for human health or detriment to flora and fauna that are not inconsiderable or other significant detriment to the environment; 2. stores waste or other matter in a manner which may give rise to health risks, damage or other detriment referred to in point 1 as a result of pollution; or 5  Website SEPA, available at: www.swedishepa.se. For details on the environmental sanction charges, see Chapter 30 of the Environmental Code. 6  ENPRO (The Network of Prosecutors on Environmental Crime), Manual on Prosecuting Environmental Crime in the Baltic Sea Region (2012) 12. 7  Interview with Lars Magnusson, Senior Prosecutor at the National Environmental Crimes Unit, 26 May 2014. 8  Section 29:1 has been amended by Law 2006:1014 and Law 2011:512.

Environmental Criminal Law in Sweden 223 3. causes substantial detriment to the environment as a result of noise, vibration or radiation shall, unless a competent authority has permitted the practice or it is generally accepted, be liable to a fine or a term of imprisonment not exceeding two years for environmental offence.

If such an offence is serious, penalties will be increased.9 For further activities that are considered environmental offences, see section 3 below. The Swedish Prosecuting Authority defines environmental crime in an internal document as ‘violations of the Environmental Code and related ordinances and regulations’. With respect to the latter, the document refers in particular to health and safety offences and offences against the Working Environment Act, violations of the Act on Measures against Pollution caused by Ships, environmental crime prosecuted under other primary legislation such as the Penal Code, and crimes related to the hunting of protected animal species.10

2.2.  Substantive Criminal Law Principles The Swedish Penal Code (Brottsbalk, Law 1962:700) was adopted in 1962 and entered into force on 1 January 1965. The most recent translation of the Swedish Penal Code into English, as published on the official Regeringskansliet website, takes account of amendments to the Penal Code up to 1 May 1999.11 Part I of this Penal Code contains general provisions; Part II describes specific crimes. Swedish laws dealing with crimes are traditionally regulated in both the Penal Code and in special laws such as the Narcotics Crime Law and the Tax Crime Law. In order for an offence to fall within the scope of the Penal Code, the said offence has to be of an aggravated nature causing substantial harm or danger. According to ENPRO (2012), environmental crimes are not included in the Penal Code; they can be found in sectoral environmental legislation and in (a specific chapter of) the Environmental Code.12 Exceptions, however, are the crimes of spreading poison or

9  Section 29:1(3) continues as follows: ‘If the offence is serious, the penalty shall be a term of imprisonment of not less than six months nor more than six years. When the seriousness of the offence is considered, special attention shall be paid to whether it caused, or might have caused, lasting damage on a large scale or whether the act was otherwise of a particularly dangerous nature. If the act may be deemed to be justifiable in view of the circumstances, no penalty shall be imposed pursuant to this section’. 10  Information provided by Lars Magnusson, Senior Prosecutor at the National Environmental Crimes Unit, interview 26 May 2014. 11  http://www.government.se/49cd60/contentassets/5315d27076c942019828d6c36521696e/ swedish-penal-code.pdf. A more recent version (updated until 2013) in Swedish is available at: www.ilo. org/dyn/natlex/docs/ELECTRONIC/53916/110480/F-771959810/SWE53916­SwedishConsolidated. pdf. To the extent possible, recent amendments have been taken into account in the analysis below. 12 ENPRO, Manual on Prosecuting Environmental Crime in the Baltic Sea Region, n 6 above, 22.

224  Michael Faure and Niels Philipsen a contagious substance and causing destruction included in Chapter 13 on ‘Crimes Involving Public Danger’.13 Sweden clearly adheres to the legality principle, as Section 1:1 of the Penal Code provides that ‘a crime is an act defined in this Code or in another law or statutory instrument for which a punishment as stated below is provided’. This incorporates the well-known principle nullum crimen, nulla poena sine praevia lege poenali. Furthermore, Section 1:2 of the Penal Code provides that unless otherwise stated, an act shall be regarded as a crime only ‘if it is committed intentionally’. With respect to sanctions, Section 1:4 of the Swedish Penal Code holds that ‘the use of punishments is regulated by the provisions on the particular crimes and any further special provisions’. Section 1:4 also holds that ‘[o]ther sanctions may be imposed in accordance with the provisions concerning their use, even if they are not mentioned in the provisions concerning particular crimes’. Section 1:5 states that ‘[i]mprisonment is to be considered a more severe punishment than a fine’. Section 1:8 of the Penal Code holds that ‘[a]part from a sanction, a crime may, in accordance with what is provided, result in forfeiture of property, corporate fines or some other special consequence defined by law and may also entail liability for the payment of damages’.14 Part III of the Swedish Penal Code deals explicitly and in a detailed manner with specific sanctions and elaborates on the conditions under which those particular sanctions can be imposed. Swedish law does not accept criminal liability of legal entities.15 When crimes are committed in Sweden under the practice of a business, usually the only sanction used is the corporate fine. The range of fines is between SEK 5,000 (€550) and SEK 10 million (€1.1 million).16 Such fines can be ordered both against a legal entity and against a person responsible for a private business. The majority of environmental crimes fall under these provisions.17 Since 2006, Chapter 36 of the Swedish Penal Code explicitly provides that a corporate fine can be imposed upon corporations for crimes committed in the exercise of business activities. Interestingly, since 2006 there has also no longer been a need for the prosecutor to

13  See Sections 13:7 and 13:8 of the Penal Code. These provisions refer to ‘a general danger to human life or health by poisoning or infecting food, water, or the like, or in other ways by spreading poison or the like, or by transmitting or spreading serious disease’ (which, if the crime is gross, will lead to imprisonment for between four and 10 years, or even imprisonment for life) and to ‘a general danger to animals or plants by means of poison or by transmitting or spreading malignant disease or by spreading noxious animals or weeds’ (if the crime is gross, imprisonment between six months and two years will be imposed). Furthermore, Section 13:9 relates to ‘careless handling of poison or [a] contagious substance.’ 14  This section was added to the Penal Code in 1986. 15  See Milieu, Evaluation Study on the Implementation of Directive 2008/99/EC on the protection of the environment through criminal law by Member States. National Report for Sweden (June 2012). ­Available at: http://ec.europa.eu/justice/criminal/files/environment/nr_se_redacted_en.pdf, 13. 16 Milieu, Evaluation Study on the Implementation of Directive 2008/99/EC on the protection of the environment through criminal law by Member States (Sweden), 15. 17 ENPRO, Manual on Prosecuting Environmental Crime in the Baltic Sea Region, n 6 above, 45.

Environmental Criminal Law in Sweden 225 prove intent in relation to environmental crimes; negligence is sufficient. More­ over, there is no need to prove exactly which individual is connected to the intent or negligence.18 According to various people we interviewed, the level of corporate fines has increased substantially in recent years, particularly since the revisions in 2006, although some interviewees argue that the fines are still not very serious.19 In the evaluation study on the implementation of the ECD it was argued that the level of fines foreseen in case of environmental crimes committed by legal persons is not proportionate or dissuasive; they cannot be considered as having a deterrent effect on the largest companies as, also in practice, Swedish courts are very reluctant to impose high sanctions on corporations for environmental crime.20

3.  ENVIRONMENTAL CRIMINAL LAW AND TRANSPOSITION OF THE ECD

Chapter 29 of the Swedish Environmental Code was established in 1999 and was subject to a major revision in 2007. According to ENPRO (2012), the main focus of this revision was on clarity and efficiency. One fundamental issue for the 2007 revision was to adapt the law to the fact that environmental damage rarely has a concrete and delimited appearance. Consequences of even a large discharge of harmful substances could extend over long time and not being visible or even measurable at the time of the crime. Therefore … the 2007 version of environmental crime (discharges) does not need any proof of actual damage but only proof that the substance discharged—regardless of the specific conditions of the recipient—was potentially harmful to the environment.21

Sweden has not adopted or amended any existing legislation to transpose the ECD. Many of the provisions of the Directive and its annexes are transposed by a number of existing regulations. The most important instrument is undoubtedly the Environmental Code. When addressing the offences specified in Articles 3 and 4 of the ECD, it certainly seems as if particular sections in the original Chapter 29 of the Swedish Environmental Code did already cover the behaviour aimed at in these articles. This was also shown in the evaluation study concerning the implementation of the ECD by Sweden.22 Take, for example, Article 3(a) of the ECD, which concerns the discharge or emission of particular materials into the air, soil or water which cause or are likely

18 

Interview with Andrea Hjärne Dalhammar, legal consultant at a local inspectorate, 3 June 2014. See eg ENPRO, Manual on Prosecuting Environmental Crime in the Baltic Sea Region, n 6 above, 23. 20 Milieu, Evaluation Study on the Implementation of Directive 2008/99/EC on the protection of the environment through criminal law by Member States (Sweden) 31. 21 ENPRO, Manual on Prosecuting Environmental Crime in the Baltic Sea Region, n 6 above, 37. 22 Milieu, Evaluation Study on the Implementation of Directive 2008/99/EC on the protection of the environment through criminal law by Member States (Sweden), 5 and 31. 19 

226  Michael Faure and Niels Philipsen to cause death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants. Such a provision can, at first sight, not literally be found in the original version of Chapter 29 of the Swedish Environmental Code. However, Section 29:1 is clearly aimed at any person who deliberately pollutes land, water or air in any manner which involves or is liable to involve risk to human health or detriment to flora and fauna that is not inconsiderable or other significant detriment to the environment. The formulation is different, but it can certainly be held that this section also aims at the type of behaviour that should be punished under Article 3(a) of the ECD.23 The next provision is, however, more problematic when it comes to the implementation in Sweden. We refer more particularly to Article 3(b) of the ECD which aims at the criminalisation of the collection, transport, recovery or disposal of waste, including the supervision of such operation and the after-care of disposal sites, which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water or to animals or plants. The threshold for criminalisation of this article of the Directive is very high. Section 1(2) of the original version of Chapter 29 of the Swedish Environmental Code criminalises the storage of ‘waste or other matter in a manner which may give rise to health risks, damage or other detriment referred to in point 1 as a result of pollution’. Again, the formulation is obviously different, but at the same time the formulation in the Swedish Environmental Code seems to be broader than in the Directive and hence seems to largely cover the type of behaviour mentioned in the Directive. However, the evaluation study concerning Sweden held that the unlawful collection of waste is not covered by any criminal liability under Swedish law. In that respect the transposition of Article 3(b) is incomplete.24 To provide another example: Article 3(d) of the ECD demands the criminalisation of the 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, the quality of soil or the quality of water, or to animals or plants. Moreover, it should be remembered that these activities only constitute a criminal offence when committed unlawfully and intentionally; and unlawfulness for the purposes of the Directive, as defined in Article 2, means that a violation has infringed legislation adopted pursuant to the EC Treaty and listed in one of the annexes to the Directive. This Article 3(d) aims generally at the criminalisation of the illegal operation of a plant in which a dangerous activity is carried out. This seems to correspond largely with Section 29:4 of the Swedish

23  This was also the conclusion of the evaluation study. See Milieu, Evaluation Study on the Implementation of Directive 2008/99/EC on the protection of the environment through criminal law by Member States (Sweden), 18. 24 Milieu, Evaluation Study on the Implementation of Directive 2008/99/EC on the protection of the environment through criminal law by Member States (Sweden), 19.

Environmental Criminal Law in Sweden 227 Environmental Code, which deals with ‘unauthorized environmental activities’25 and meeting a condition set out in a permit. This offence is explicitly referred to as an ‘unauthorized environmental activity’ (otillåten miljöverksamhet). Here the protected legal interest seems to be administrative, since specific endangerment of the environment is not required. ‘Any person’ can be the perpetrator and the criminal conduct consists of starting or pursuing an activity or taking some other measure ‘without obtaining a decision concerning permissibility or a permit, approval or consent or without submitting a notification required by this Code or by rules issued in pursuance thereof ’. A typical feature of Section 29:4 is its supplementary character, since it holds in fine that no penalty shall be imposed in accordance with this section if the act is punishable in accordance with ­sections 29:1 or 29:2.26 The sanction is a term of imprisonment not exceeding two years. Also the evaluation study judged that the transposition of this Article 3(d) by Sweden was ‘effective’.27 Interestingly, Law 2006:1014, Law 2008:240 and Law 2010:742 have made some amendments to Section 29:3, which deals with ‘environmentally hazardous handling of chemicals’. It now makes specific references to activities violating the prohibition on applying pesticides, precautionary measures, detergents, persistent organic pollutants, disposal and recycling of waste, a fluorinated greenhouse gas, labelling and packaging of chemical products or explosives, ozone depleting substances, and the presence of a prohibited substance in cosmetic products. All provisions are a result of obligations of Sweden under the relevant EU R ­ egulations. Fines are imposed for unlawful handling of chemicals or other biotechnical ­products,28 while the manufacture and import of unregistered substances, or registered ones if such registration was based on inaccurate or incomplete information, is punishable either by fine or imprisonment of up to two years.29 In addition to the examples just discussed, Section 8 of Chapter 29 of the ­Swedish Environmental Code30 includes a list of 28 items that are criminalised as well, and also Section 9 contains a list of 11 types of behaviour that are criminalised. It is interesting to mention that within these Sections 8 and 9 many of the provisions aim precisely at violations of legislation implementing European environmental legislation. For example Section 8(26) refers to a criminalisation of infringement of a prohibition against providing information laid down in Council Regulation (EC) 3093/94 on substances that deplete the ozone layer. This seems to ­correspond 25  ‘Any person who, whether deliberately or through negligence, starts or pursues an activity or takes some other measure without obtaining a decision concerning permissibility or a permit, approval or consent or without submitting a notification required by this Code or by rules issued in pursuance thereof shall be liable to a term of imprisonment … for the offence of unauthorized environmental activity’. 26  Since the 2006 amendments to Chapter 29, Section 4 no longer refers to Section 2. 27 Milieu, Evaluation Study on the Implementation of Directive 2008/99/EC on the protection of the environment through criminal law by Member States (Sweden), 20. 28  Section 29:3(a) in conjunction with Chapter 14. 29  Section 29:3(b). 30  Note again that reference is made here to the ‘official’ translated version of the Environmental Code, ie updated until 1 August 2000.

228  Michael Faure and Niels Philipsen (at least partially) with the offence mentioned in Article 3(i) of the ECD.31 The same is true for specific crimes mentioned in Sections 8 and 9 of Chapter 29 dealing with crimes against wildlife. Section 8(28), for example, explicitly aims at behaviour violating decisions under Council Regulation (EC) 338/79 on the protection of species of wild fauna and flora, ie largely corresponding with Article 3(f) of Directive 2009/99/EC.32 Again, also the evaluation study with respect to Sweden concluded that this Article 3(f) had been effectively transposed.33 Summing up, the impact of the ECD has been limited in Sweden. According to an interviewee who was working at the Ministry of the Environment at the time, Sweden did not have to take any implementation action, because the necessary provisions were already in place.34 The most important recent revisions took place in 2007, before the introduction of the EU Directives. That was also largely the conclusion of the evaluation study which was held with respect to Sweden. Sweden apparently did not change its legislation to transpose the ECD and was still found to be largely in compliance with the Directive. The evaluation study in fact only found two problems. The first referred to some conduct under Article 3 of the Directive, more particularly the unlawful collection of waste. That should be criminalised under the Directive, but is not in Sweden. The second problem discovered relates to the sanctions applicable to legal persons (where Article 7 of the ECD requires effective, proportionate and dissuasive sanctions). The evaluation study holds that the level of fines is too low to provide a serious deterrent, especially given the reluctance of judges to impose high fines.35

4.  PROCEDURAL PROVISIONS, ACTORS AND INSTITUTIONS IMPLEMENTING THE ECD

Ljung (2005) notes that the public prosecutor is the link in an important chain of official bodies: public prosecutor, police, court of law and correctional service, which together have the aim of protecting the community against crime.36 In this section we will first address the role of the public prosecutor (section 4.1), ­followed

31  This was also the conclusion of the evaluation study with respect to Sweden (Milieu, Evaluation Study on the Implementation of Directive 2008/99/EC on the protection of the environment through criminal law by Member States (Sweden) 23). 32  Sections 8 and 9 of Chapter 29 have recently been amended as well. For example, there are now even more types of prohibitions under the current wording of Section 8, including GMOs and fishing. Section 9 imposes only fines and no longer includes fishing, but rather provisions on vehicle engine idling and street music, GMOs, cosmetic products and waste disposal. 33 Milieu, Evaluation Study on the Implementation of Directive 2008/99/EC on the protection of the environment through criminal law by Member States (Sweden) 22. 34  Interview with a Land and Environmental Court of Appeal Judge, 26 May 2014. 35 Milieu, Evaluation Study on the Implementation of Directive 2008/99/EC on the protection of the environment through criminal law by Member States (Sweden), 29–31. 36  V Ljung, ‘Sweden’ in M Faure and G Heine (eds), Criminal Enforcement of Environmental Law in the European Union (The Hague, Kluwer Law International, 2005) 157.

Environmental Criminal Law in Sweden 229 by a brief discussion of the role of the police (section 4.2), courts (section 4.3) and inspection authorities (section 4.4), respectively. In addition, we provide some information on the role played by NGOs (section 4.5) and on cooperation with EU institutions and international organisations (section 4.6). In each subsection, we will also provide an evaluation of the role played by the actors discussed, based on information we received in interviews with Swedish experts and practitioners.37 Best practices and recommendations are presented in the final subsection (section 4.7).

4.1.  Public Prosecutor A central role is given to the public prosecutor who has the following main duties: —— to direct investigations of crime; —— to make decisions in prosecution issues; —— to prosecute in court.38 The highest public prosecution authority in Sweden is the Prosecutor-General. The Prosecutor-General has responsibility for the direction of the public prosecution system. He is also the public prosecutor in the Supreme Court and can be represented by one of the assistant-prosecutors to the prosecutor-general.39 Once the investigations have been terminated the prosecutor is competent to initiate prosecution if there is sufficient evidence to bring the case to court. However, in the case of a minor offence and when the perpetrator admits his guilt, the prosecutor can close the case upon payment of a fine by the perpetrator.40 According to ENPRO (2012), ‘there are about 850 prosecutors in Sweden, stationed in 35 regional public prosecution offices’. In addition to these regional offices there are four specialised offices (or units) working nationally. ‘One of these—alongside units dealing with corruption, offences committed by the police and national security—is the National Environmental Crimes Unit (Riksenheten för Miljö- och Arbetsmiljömål vid Åklagarmyndigheten—REMA)’, established

37  We conducted in-depth, semi-structured interviews with several experts and practitioners in May and June 2014. The interviewees included Prof Jan Darpö (Uppsala University), Lars Magnusson (Senior Prosecutor at the National Environmental Crimes Unit in Malmö), Andrea Hjärne Dalhammar (legal consultant at the Malmö City Environmental Department), Christer B Jarlås (Senior Prosecutor at the National Environmental Crimes Unit), an anonymous Land and Environmental Court of Appeal Judge, and an anonymous legal adviser at the Ministry of the Environment. In addition we received a general written response from Anders Bengtsson (Senior Judge at the Land and Environmental Court of Växjö. 38  Ljung, ‘Sweden’, n 36 above, 155 and Milieu, Evaluation Study on the Implementation of Directive 2008/99/EC on the protection of the environment through criminal law by Member States (Sweden) 12. 39  Ljung, ‘Sweden’, n 36 above, 157. 40 Milieu, Evaluation Study on the Implementation of Directive 2008/99/EC on the protection of the environment through criminal law by Member States (Sweden) 12.

230  Michael Faure and Niels Philipsen in 2009, with 20 specialised prosecutors and administrative personnel stationed in various parts of Sweden.41 REMA receives reports from the supervisory authorities and decides on the ­initiation of preliminary investigations. If an investigation is initiated, REMA drafts directives on interviewing people, producing evidence and taking samples/ specimens. It is responsible for the entire investigation.42 From our interviews with Swedish experts and practitioners, it was apparent that the organisation and concentration of the prosecutors’ offices, as well as the specialisation of the prosecutors dealing with environmental crimes, are generally regarded as very positive characteristics of the enforcement of Swedish environmental law, inter alia because—as argued by the legal advisor at the Ministry of the Environment—‘environmental crimes are often very complicated’.43

4.2. Police Although prosecutors lead the investigations, they are carried out by the (regional or local) police or—in case of illegal discharges from ships at sea—by the Coast Guard. According to the ENPRO report, all police investigators in the field of environmental crime have special education in environmental law and nature science.44 According to a report by the Swedish National Police Board, it cooperates closely with Swedish prosecution authorities in tackling environmental crime. A common strategy has been developed, which aims to catch those who commit serious environmental crimes, to increase knowledge of environmental crime within the national judicial system, and to work more effectively against transnational environmental crime. A primary task of the police is to control and manage activities that pose risks to human health and to the environment.45 However, this positive view of the role of the police in the enforcement of environmental criminal law was only partly confirmed in the interviews we conducted with Swedish experts and practitioners. It was noted repeatedly that, even though more and more police officers are trained to investigate environmental crimes, senior officers are generally not interested in environmental crime. Unlike eg, crimes related to murder or drugs, environmental crime is not ‘sexy’ enough.46 Moreover, most of the police officers dealing with environmental criminal

41 ENPRO, Manual

on Prosecuting Environmental Crime in the Baltic Sea Region, n 6 above, 12. Interview with Lars Magnusson, Senior Prosecutor at the National Environmental Crimes Unit, 26 May 2014. 43  Interview with a legal adviser at the Ministry of the Environment, 12 June 2014. 44 ENPRO, Manual on Prosecuting Environmental Crime in the Baltic Sea Region, n 6 above, 16. 45  Swedish National Police Board, The Swedish Policy—An Introduction (Stockholm, 2011) 53. 46  Interview with Christer B Jarlås, Senior Prosecutor at the National Environmental Crimes Unit, 3 June 2014; interview with Jan Darpö, Professor of Environmental Law, 22 May 2014. 42 

Environmental Criminal Law in Sweden 231 i­nvestigations are working in divisions that do not primarily investigate environmental crimes. According to Senior Prosecutor Lars Magnusson, there are very few forensic experts on the police force engaged in environmental crime investigation. Many of them do not know how to take samples in environmental crime cases.47 According to the Land and Environmental Court of Appeal Judge we interviewed, a study was conducted in 2006 pointing out weaknesses in the Swedish system concerning local authorities, supervisory authorities and their cooperation with the police. It is important to have sufficient resources at the local level. However, environmental crime is not highly prioritised: ‘Even though the prosecutor’s office is organised in special environmental crime sections it seems at police level eg training and status could improve’.48 On the positive side, there are some examples of ‘best practices’. An example is Gothenburg, where the police have a specially ‘equipped van’ which allows the investigators to approach and interrogate witnesses and suspects at the site of the crime, creating the potential of storing samples.49 Another example is the cooperation between some police units, prosecutors and supervisory authorities concerning inspections at harbours or roads to find illegal transports of waste. According to Andrea Hjärne Dalhammar, as of 2011 the police have been granted an extra SEK 4.8 million per year for improvement of the criminal enforcement of illegal waste transports. The enforcement takes place in cooperation with relevant authorities such as the County Administrative Boards and Customs.50

4.3.  Environmental Courts Since the introduction of the Environmental Code, Sweden has had a special system of environmental courts. According to the original Section 20:1 of the Code,51 there are five Environmental Courts (Miljödomstolar), now called ‘Land and Environmental Courts’ (Mark- och miljödomstolarna).52 There is also a Land and Environmental Court of Appeal (Mark- och miljööverdomstolen). These are linked to the general court system (five regional courts and a Court of Appeal), which deals mostly with criminal law and private law cases. The Land and ­Environmental Courts ‘try administrative enforcement law cases like appeals of enforcement orders. They moreover act as permitting authorities. The ­permitting

47  Interview with Lars Magnusson, Senior Prosecutor at the National Environmental Crimes Unit, 26 May 2014. 48  Interview with a Land and Environmental Court of Appeal Judge, 26 May 2014. 49  Interview with Lars Magnusson, Senior Prosecutor at the National Environmental Crimes Unit, 26 May 2014. 50  Interview with Andrea Hjärne Dalhammar, legal consultant at a local inspectorate, 3 June 2014. 51  Chapter 20 was repealed by Law 2010:923. 52  See Law 2010:921 on the Land and Environment Courts and Chapter 16 of the amended Environmental Code. Chapter 21 of the amended Environmental Code describes the competences of the Land and Environmental Courts.

232  Michael Faure and Niels Philipsen of larger installations under environmental law is therefore a court case, and decided through the court’s judgment’.53 The regional environmental courts ‘have power to review and rule on both the legality and the merits of decisions made by regional boards and by local authorities’.54 It should be stressed here that the Land and Environmental Courts do not deal directly with environmental crime cases,55 but only with administrative cases related to supervision (prohibitions, orders, administrative sanction fees, etc). Environmental crime cases are tried in the ordinary district courts. The pros and cons of this have been much discussed in Sweden.56 Most experts and practitioners whom we interviewed57 highlighted the fact that the Land and Environmental Courts do not deal with criminal matters, but only with administrative cases related to supervision, administrative sanction fees, and so on. Ordinary district courts, which seemingly lack specific knowledge on environmental law, deal with cases involving environmental crime. Judge Bengtsson, however, notes that judges at the Land and Environmental courts come from various backgrounds: in the district of Växjö, half of the judges have their background in the general courts and half in administrative courts, while in the other environmental courts most judges have their background in the general courts. Nevertheless, according to Professor Darpö, a reform is needed (e.g. merging criminal cases on environmental law into the system of the Land and Environmental Courts), also because the current situation leads to disparities in case law between e.g. decisions taken by the Stockholm Court of Appeal and the other four courts on the appeal level.

Judge Bengtsson explained that the Land and Environmental Courts are civil/ administrative courts, which are in principle district courts with a specific geographical and subject-matter jurisdiction, unlike the general district courts. The argument against the Land and Environment Courts trying criminal cases is that there is a risk of developing a certain practice regarding punishment that is not in compliance with the general practice of how other crimes are judged. Such a problem may, however, be resolved after appeal when the appeal court (and the Supreme Court) has a wider view and its decisions will set a precedent for the lower courts in future cases. Another argument is the possibility of overlapping competences of environmental courts, which might be biased in favour of their

53 Nilsson, Enforcing

Environmental Responsibilities, n 4 above, 138–39. U Bjällås, ‘Experiences of Sweden’s Environmental Courts’ (2010) 3 Journal of Court Innovation 180. It should furthermore be noted that appeal procedures are now arranged in Chapter 23 of the (amended) Environmental Code. 55  See also Milieu, Evaluation Study on the Implementation of Directive 2008/99/EC on the protection of the environment through criminal law by Member States (Sweden), 13. 56  Email from Anders Bengtsson, Senior Judge at the Land and Environmental Court of Växjö, 19 May 2014. 57  For details on the interviews, see the introduction to this section. 54 

Environmental Criminal Law in Sweden 233 own decisions, eg when the crime is a result of failure to comply with a permit issued by the court itself.58 An anonymous Land and Environmental Court of Appeal Judge made the following remarks on this issue: Judges of district courts deal with environmental crime cases rarely and these cases are often technical and complicated. The Land and Environmental Courts do not deal with environmental crime cases even though the judges there have experience and knowledge of environmental law. However, accessibility may be an issue, as environmental courts are located only in a few places, compared to ordinary district courts.

The judge noted furthermore that the Land and Environmental Court of Appeal, also being part of Svea Court of Appeal,59 deals with the environmental crime cases that appear in the court. Furthermore, Judge Bengtsson added that the education for judges is provided by the Courts Academy, where he himself offered a session on environmental crimes some years ago. However, judges are rather reluctant to spend their time on education in substantive law for types of cases they may deal with once a year or even once in two years, such as environmental crime cases. Regarding accessibility, judges of the Land and Environmental Courts often have their hearings near the site or have a view at the site. Travelling is part of their work and they are thus becoming ‘flying judges’. Senior Prosecutor Magnusson argued that (rather than merging criminal cases into the system of the environmental courts or making better use of the expertise of these courts) ‘local criminal courts should have more training in environmental criminal law. Environmental courts don’t know much about criminal procedure and evaluating evidence in criminal cases. But that might probably only be a temporary problem’.

4.4.  Inspection Authorities An important role in crime investigation is equally played by inspection ­authorities. Chapter 26 of the Swedish Environmental Code lists the supervisory authorities, as being:60 —— The Swedish Environmental Protection Agency (SEPA, Naturvårdsverket) —— Marine and water authorities (Havs- och vattenmyndigheten)

58  Whereas in most Member States permits are issued by an administrative authority (national, regional, local government), in Sweden the administrative authority assesses a permit application, but the permit itself is issued by the Land and Environmental Court. 59  The Svea Court of Appeal, which is located in Stockholm, is one of the appellate courts in Sweden. 60  Section 26:3 of the Environmental Code, last amended by Act 2011:608. Responsibilities of the authorities are more particularly described in the Governmental Ordinance 2011:13 on environmental supervision.

234  Michael Faure and Niels Philipsen —— The Surgeon-General of the Swedish Armed Forces (generalläkaren) —— County Administrative Boards (länsstyrelsen) —— Other government agencies and municipalities (supervisory authorities) in accordance with the Government’s instructions. While the SEPA has the overall responsibility for supervising environmental regulations—and is involved also in matters of transnational waste exports, reporting infringements of EU regulation on waste transportation—the operative responsibility is delegated to the counties and municipalities. Each of them has a certain number of firms to supervise. Gren and Li (2011) explain that for that purpose, firms are classified into four categories, each with a different ‘environmental seriousness’.61 The SEPA makes recommendations on the prioritisation of inspections among these four categories. According to the Environmental Code, the County Boards are responsible for cooperation at the regional level between supervisory authorities, police forces and the prosecution. Around 80 per cent of all environmental crime cases reported to prosecutors are notified by these supervisory agencies.62 However, it is important to stress that the central role in the enforcement of environmental crime still lies with the public prosecutor. Furthermore, it should be noted that the obligation to report crimes to the prosecutor or police does not lessen the obligation of supervisory authorities to enforce environmental law by means of injunctions, prohibitions and administrative fines.63 Supervisory agencies in Sweden do not actively monitor ex ante. A special characteristic of the Swedish system—in contrast to many other countries—is the self-responsibility of operators to report.64 Andrea Hjärne Dalhammar, legal consultant at a local inspectorate, has highlighted one particular problem in that respect. Namely, that the enforcement authorities are more and more supervising the monitoring system rather than the industry itself. The industry takes its own samples and does its own tests, and reports the results to the authorities, who then check these but do not take any sample themselves to control the results. Swedish environmental supervision is based on the image of honest industries, and therefore the supervision is becoming more administrative. Intentional crimes are easily hidden under the paperwork.65

61  I-M Gren and C-Z Li, ‘Enforcement of environmental regulations: inspection costs in Sweden’ (2011) 2 Environmental Economics 50. 62  Interview with a Senior Prosecutor at the National Environmental Crimes Unit, 26 May 2014. The remaining 20% are notified by police and private individuals. It should be stressed that these are estimates rather than hard data. 63  Interview with Andrea Hjärne Dalhammar, legal consultant at a local inspectorate, 3 June 2014. 64 Interview with Jan Darpö, Professor of Environmental Law, 22 May 2014. See also Nilsson, Enforcing Environmental Responsibilities, n 4 above. 65  Interview with Andrea Hjärne Dalhammar, legal consultant at a local inspectorate, 3 June 2014.

Environmental Criminal Law in Sweden 235 4.5. NGOs Before 2013, the only legal redress in environmental matters for NGOs was by means of filing a complaint with the European Commission, which has the power to sue Member States directly in the Court of Justice of the European Union (CJEU). Since 2012, however, NGOs may argue their case in Sweden’s administrative courts.66 In addition, NGOs have the right to appeal decisions taken under the Code, pursuant to Chapter 16, Sections 13 and 14. Currently, NGOs have also priority access to Land and Environmental Courts in Sweden. Chapter 16, section 13 of the Environmental Code sets the requirements an NGO has to meet in order to qualify: —— it must be a non-profit organisation and have as its purpose promotion of nature conservation or environmental protection; —— it must have 100 members or else show that it has public support; —— it must have existed in Sweden for at least three years. The criteria for qualification of NGOs to have access to national courts in environmental matters, as required by the Aarhus Convention, have been relaxed following the decision in the case of Djurgården.67 Before the decision by the CJEU, NGOs were required to have at least 2,000 members, which was a criterion many of them were unable to meet.68

4.6.  Cooperation with EU and International Organisations The police, customs, prosecution and external border control of all EU Member States collaborate in the area of ‘justice and home affairs’. The Swedish National Police Board actively participates in working against transnational crime together with the competent authorities of other EU Member States.69 The Schengen countries also cooperate in order to combat transnational crime, using the joint information system SIS. The Swedish police, the Customs and the Coast Guard use this system with the aim of conducting international searches and police enquiries.70

66  Y Epstein and J Darpö, ‘The Wild Has No Words: Environmental NGOs Empowered to Speak for Protected Species as Swedish Courts Apply EU and International Environmental Law’ (2013) 10 Journal for European Environmental & Planning Law 250, 252. 67  Case C-263/08, Djurgården-Lilla Värtans Miljöskyddsförening v Stockholms kommun genom dess marknämnd [2009] ECR I-09967. 68  See also M Faure and N Philipsen, Access to Justice in Environmental Matters (The Hague, Eleven International Publishing, 2014). 69  Swedish National Police Board, The Swedish Police, 55. 70  Swedish National Police Board, The Swedish Police, 56.

236  Michael Faure and Niels Philipsen Europol, as the law enforcement agency of the EU, helps Sweden and other Member States to achieve closer and more effective cooperation in preventing and combating organised international crime.71 Sweden has been a member of Interpol since 7 September 1923, which enables the Swedish police and prosecution authorities to submit requests to another country for questioning witnesses, search warrants or identifying suspects. The unit for international police cooperation at the National Bureau of Investigation in Sweden serves as the point of contact.72 According to prosecutor Jarlås, Sweden cooperates within Eurojust and Europol and is using them more and more. Sweden also takes part in various other forms of cooperation at the international and EU level—including the European ­Network of Prosecutors for the Environment, the European Union Network for the Enforcement and Implementation of Environmental Law (IMPEL) activities on transportation of waste, and the EU level cooperation concerning endangered species73—and is part of all important bilateral and multilateral agreements. However, Jarlås notes that ‘nowadays many transnational crimes, eg in waste, are committed because some EU Member States do not care about the EU rules’.74

4.7.  Evaluation by Swedish Experts and Practitioners This subsection summarises, in bullet-point form, specific ‘best practices’ and ‘recommendations’ in relation to the enforcement of Swedish environmental (criminal) law, as mentioned by the Swedish experts and practitioners we interviewed. 4.7.1.  Best Practices —— Several interviewees (Prof Jan Darpö, Senior Prosecutor Magnusson, a legal adviser at the Ministry of Environment, legal consultant Dalhammar) referred to the organisation, specialisation and concentration of prosecutors as a best practice. —— Some successful examples of cooperation between supervisory authorities and police/prosecutors in two or three regions were highlighted (Prof Jan Darpö, Senior Prosecutor Magnusson, legal consultant Dalhammar), although it was added that in the majority of regions this cooperation is not optimal.

71 

Swedish National Police Board, The Swedish Police, 57. Swedish National Police Board, The Swedish Police, 57–58. 73  Interview with Lars Magnusson, Senior Prosecutor at the National Environmental Crimes Unit, 26 May 2014. 74  Interview with Christer B Jarlås, Senior Prosecutor at the National Environmental Crimes Unit, 3 June 2014. 72 

Environmental Criminal Law in Sweden 237 —— The fact that the new guidelines on corporate fees for public prosecutors are referred to even by the highest courts in Sweden, is considered by Senior Prosecutor Jarlås as a best practice.75 4.7.2. Recommendations The following recommendations were mentioned by all or some of the interviewees: —— The police ought to prioritise environmental crime investigations (Senior Prosecutor Magnusson, Professor Darpö, Land and Environmental Court of Appeal Judge). —— The cooperation between police and prosecutors should be formalised (Prof Darpö) or improved (Senior Prosecutor Magnusson).76 —— The cooperation between police and enforcement authorities should be formalised (Darpö) or improved (Land and Environmental Court of Appeal Judge). —— Similarly, the legal adviser at the Ministry of the Environment argued that improving inspection regimes and cooperation between authorities involved in fighting environmental crimes is a necessary element of effective enforcement. For example, the Swedish government is currently aiming at strengthening the enforcement of wildlife crimes.

5. SANCTIONS

5.1.  Sanctions on Paper Nilsson (2011) points out that the general idea in Sweden is that criminal enforcement has limited possibilities to solve environmental problems.77 The sanction system is therefore structured such as to have the administrative system carry the large part of the enforcement, with the help of administrative sanctions and other coercive instruments, and criminalising only the most serious offences with what should be harsh penal sanctions. In reality the strong impact of criminal enforcement has been difficult to obtain, and legislative and organisational reforms are being made to try to remedy these problems. Until then, the administrative system has an even more central role in the environmental enforcement system than intended.78 75 Legal consultant Dalhammar noted furthermore that the forest authorities and the County Boards have developed good cooperation between the local police and local supervising authorities to search for and discover crimes against the Swedish Forestry Act—although she does not have firsthand experience. 76  Note again that there are also some examples of good cooperation between police and prosecution, mentioned above. With regard to formalised forms of cooperation between police and prosecutors/ enforcement authorities, Prof Jan Darpö mentioned that Norway might provide an example. 77  See on this also E Pirjatanniemi, ‘Desperately Seeking Reason—New Directions for European Environmental Criminal Law’ (2009) 54 Scandinavian Studies in Law 409. 78 Nilsson, Enforcing Environmental Responsibilities, n 4 above, 148.

238  Michael Faure and Niels Philipsen Chapter 29 of the Swedish Environmental Code, called ‘Penalty provisions and forfeiture’, has the ambition to cover all crimes related to the environment. The stipulated penalty for an ‘environmental offence’ (miljöbrott) is a fine or a term of imprisonment not exceeding two years.79 However, if the offence is serious, the penalty will be a term of imprisonment of between six months and six years. When considering the seriousness of the offence, Section 29:1 prescribes special attention to ‘whether it caused, or might have caused, lasting damage on a large scale or whether the act was otherwise of a particularly dangerous nature’. Section 29:280 defines the concept of ‘causing environmental disturbance’ ­(vållande till miljöstörning), which relates to offences committed through negligence (instead of deliberately). The penalty is a fine or a term of imprisonment not exceeding two years. What was mentioned before (in relation to the original version of Section 29:1) on the qualification of offences applies to a large extent also to Section 29:2. The main difference between both sections is not the protected interest, but rather the mens rea. Whereas Section 29:1 addresses deliberate behaviour, Section 29:2 addresses negligence. The corresponding sentence is (remarkably) the same as in Section 29:1: a term of imprisonment not exceeding two years or a fine. For offences under Section 29:1 a higher sanction can only be imposed when the offence is serious. Further environmental offences are defined in subsequent sections of Chapter 29: —— 29:3 ‘environmentally hazardous handling of chemicals’ (maximum two years of imprisonment). —— 29:4 ‘unauthorized environmental activities’81 and not meeting a condition set out in a permit (maximum two years of imprisonment). —— 29:5 ‘obstruction of environmental control’ (maximum two years of imprisonment). —— 29:6 ‘incomplete environmental information’; including in relation to labelling products containing eg GMOs or chemical products (a fine or maximum one year of imprisonment). —— 29:7 Littering (a fine or a maximum one year of imprisonment). In addition to those criminal sanctions Swedish law still has two additional types of sanctions that can be applied to environmental crime. Administrative sanctions are the environmental sanction charges. These can be imposed regardless of intent.

79 

Swedish Environmental Code, Section 29:1. again that this refers to the ‘official’ translated version of the Environmental Code, ie updated until 1 August 2000. This section was later amended by Law 2009:532. 81  ‘Any person who, whether deliberately or through negligence, starts or pursues an activity or takes some other measure without obtaining a decision concerning permissibility or a permit, approval or consent or without submitting a notification required by this Code or by rules issued in pursuance thereof shall be liable to a term of imprisonment … for the offence of unauthorized environmental activity’. 80 Note

Environmental Criminal Law in Sweden 239 The amount ranges between SEK 1,000 (€115) and SEK 1 million (€115,000). The administrative sanction charges are imposed by the supervisory authorities.82 Finally there are corporate fines (företagsbot) which can be imposed on both natural and legal persons. These fines range from SEK 5,000 (€550) to SEK 10 million (€1.1 million). As far as the choice between criminal sanctions and administrative sanctions is concerned, in theory it is possible to combine those sanctions, although it is strongly discouraged in the preparatory documents preceding the Environmental Code.83 Environmental sanction charges (administrative fines) should in principle only be used for minor offences. However, the Swedish Supreme Court decided that there are no formal obstacles to the imposition of criminal sanctions and environmental sanction charges for the same objective circumstances.84

5.2.  Sanctions in Practice As explained in section 5.1 above, the penalty for an environmental offence under Chapter 29 of the Swedish Environmental Code is either (1) a fine; (2) a term of imprisonment not exceeding two years; or (3) in case of a serious offence, a term of imprisonment of between six months and six years. Whether the level of sanctions in relation to environmental crime is dissuasive or proportionate as compared to other (non-environmental) crimes, is of course a subjective question. Nevertheless, many experts we interviewed stated that the sanctions for environmental crimes are not very serious when compared to sanctions for other types of crimes, when the sanctions that are actually imposed (ie in practice) are considered. Recall that the evaluation study with respect to the transposition of the ECD in Sweden also held that the judges in Sweden are reluctant to impose high fines on environmental crime, particularly for corporations and when compared to fines imposed in other areas of law.85 According to Senior Prosecutor Magnusson, deterrence of operators from committing environmental crimes is not closely linked to the level of fines, because the court can always rule in the low range of the punishment. Imprisonment is very rarely used—there were only 3–4 environmental cases where imprisonment was imposed. Professor Darpö explained that these rare cases do not concern crimes committed by businesses / professional operators, but by individuals or groups of individuals. He gave the example of a recent case related to a waste-burning 82 Milieu, Evaluation Study on the Implementation of Directive 2008/99/EC on the protection of environment through criminal law by Member States (Sweden), 15. 83 Milieu, Evaluation Study on the Implementation of Directive 2008/99/EC on the protection of environment through criminal law by Member States (Sweden), 13. 84 Milieu, Evaluation Study on the Implementation of Directive 2008/99/EC on the protection of environment through criminal law by Member States (Sweden), 14. 85 Milieu, Evaluation Study on the Implementation of Directive 2008/99/EC on the protection of environment through criminal law by Member States (Sweden), 30.

the the the the

240  Michael Faure and Niels Philipsen incident which resulted in a six-month jail sentence, where misbehaviour caused by alcohol was involved. Also the Land and Environmental Court of Appeal Judge confirmed that very few prison sentences have been imposed for environmental crimes committed by private individuals; if they were, they mostly concern cases where these individuals were also charged with other criminal activities. Nevertheless, she argues that on paper the penalty for environmental crime is comparable to other types of crimes. Senior Prosecutor Magnusson argued that, if a crime is committed within a company, prosecution of individuals is very difficult to impose. Corporate fines for companies are in practice the only sanctions available. The levels of corporate/ individual fines are based on the guidelines for environmental prosecutors, which are published on the internet. In three recent judgments the Supreme Court has found that these fines are reasonable. Therefore, according to Magnusson, lower courts should also follow these guidelines, at least in similar cases.86 Professor Darpö pointed out that sanctions in the form of criminal fines (ie corporate sanction fees) are now much higher than they were some years ago, when sanctions were definitely too lenient. An example is given of a case from 2007 involving large discharges of oil (Shell), which led to a substantial fine of about €150,000.87 When asked about the role of the administrative sanction fees used by the administrative authorities, Darpö confirmed that these are used for minor offences (‘petty crimes’) only and are very low.88 Legal consultant Dalhammar, in her experience working with the environmental inspectors at local level, concludes that the penalties imposed in practice ‘are extremely low, and most crimes do not lead to any penalties or judgment at all’. The sanctions probably would be proportionate compared to sanctions for nonenvironmental crimes, if they were ever used to the full extent, she argues. Although it is theoretically possible to combine criminal sanctions and administrative charges, this is rarely done in practice even though there is no official coordination mechanism between administrative and criminal sanctions. ­However, prosecutors and administrative authorities usually coordinate between themselves regarding the appropriate type of remedy.89

6. CONCLUSIONS

The Swedish Environmental Code (Miljöbalk, Law 1998:808) entered into force in 1999 and has been amended many times since, also as a reaction to the

86 

Similar info was provided by legal consultant Dalhammar (n 65 above). See also: www.dn.se/nyheter/sverige/rekordskadestand-for-bensinutslapp. 88  Legal consultant Dalhammar added that since 1999, Chapter 29 of the Environmental Code has been considerably revised by de-criminalising lesser offences; instead there have been more administrative sanctions since then, as indicated by the Regulation on Environmental Sanction Charges: www. notisum.se/rnp/sls/lag/20120259.htm (in Swedish). 89 Milieu, Evaluation Study on the Implementation of Directive 2008/99/EC on the protection of the environment through criminal law by Member States (Sweden), 14. 87 

Environmental Criminal Law in Sweden 241 EU Directives on environmental crime. Provisions related to ‘environmental offences’ and the related (criminal) sanctions can be found in Chapter 29 of the Environmental Code, discussed in section 5 of this chapter. The stipulated penalty for an ‘environmental offence’ is a fine or a term of imprisonment not exceeding two years. However, if the offence is serious, the penalty will be a term of imprisonment of between six months and six years. When considering the seriousness of the offence, special attention is paid to whether an offence ‘caused, or might have caused, lasting damage on a large scale or whether the act was otherwise of a particularly dangerous nature’. There is also a system of administrative fines, called ‘administrative sanction charges’, regulated in Chapter 30 of the Code. The Swedish legislator attempts to avoid double sanctioning, by reserving the criminal law system for more serious offences, whereas minor infringements are subject only to administrative fines. A formal coordination system between administrative and criminal sanctions does not, however, exist. But in practice such a cumulation of different sanctions (administrative and criminal) would be rare. The role of the Swedish Penal Code (Brottsbalk, Law 1962:700) in relation to specific environmental crimes is rather limited. However, criminal law principles of course apply, and we discussed those, as well as sanctions laid down in the Penal Code, in this chapter. In Sweden, only the public prosecutor decides whether to initiate an investigation and eventually bring the case to court. The roles of the public prosecutor, the police, and the courts (Land and Environmental Courts and Land and Environmental Court of Appeal) are discussed in section 4 above. Administrative authorities take no formal part in the investigation or the trial, but play an important role in the inspection and reporting, to the police and prosecutor, of suspected violations of the provisions of the Environmental Code and related rules. The Environmental Code was amended in 2007. Various interviewees have mentioned this amendment as a best practice. Before this amendment, it was practically impossible to invoke Section 29:1 of the Environmental Code, due to too a high burden of proof. Since the amendment, it has been easier for prosecutors and the police to convict perpetrators: the current construction of Section 29:1 captures the risk involved in discharge of an environmentally harmful substance rather than the effect of such discharge. It is striking that Sweden did not have to change its legislation to transpose the Environmental Crime Directive. Apparently the various applicable sectoral regulations, in combination with the criminal provisions in the Environmental Code, provided a sufficient transposition of the Environmental Crime Directive. However, the evaluation study made clear that on two points Sweden’s transposition of the Directive has been incomplete. One relates to the lack of criminal sanctions concerning the collection of waste (which is required by the Directive); another, probably more important point is that Article 7 of the Directive would be violated since the fines foreseen in case of environmental crimes committed by legal entities are not considered proportionate or dissuasive. This not only relates to the sanctions available on paper, but also to the reluctance in practice of the Swedish judiciary to impose severe sanctions on corporations for environmental crime.

242  Michael Faure and Niels Philipsen The Swedish experts and practitioners we interviewed are generally positive about Swedish environmental law on paper. Indeed, the EU Directives on environmental crime (and the Environmental Liability Directive) had only a very limited impact on Swedish law, as most provisions were already included in Swedish law. With regard to the question whether the sanctions imposed in practice are dissuasive, however, most interviewees stated that the sanctions for environmental crimes are not very serious when compared to sanctions for other types of crimes, and especially so when the sanctions imposed in practice are considered. Mostly corporate fines have been imposed; and although the amount of these fines has increased in recent years, the question remains whether on average these fines are high enough to deter environmental offences. Prison sentences have been reserved for exceptional cases only, almost exclusively involving individuals rather than businesses. These comments are in line with the observation from the evaluation study with respect to the transposition of the Environmental Crime Directive in Sweden: corporate sanctions for environmental crime apparently lack a proportional and dissuasive character. This is a point which undoubtedly will have to be addressed by the Swedish legislator and judiciary in the near future.

10 Environmental Criminal Law in the United Kingdom ELENA FASOLI*

1. INTRODUCTION

T

HE UNITED KINGDOM consists of England and Wales (E&W), Scotland and Northern Ireland (NI). Historically, they have quite separate legal systems and legislation. Thanks to a process of decentralisation, which started in 1998, the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly have acquired certain powers to legislate, including in environmental matters. In this context, Directive 2008/99/EC on the protection of the environment through criminal law (ECD)1 has been transposed by a range of separate and very scattered pieces of legislation, some of which apply in all four jurisdictions, while others apply to just England and Wales, Scotland or Northern Ireland.2 With regard to the judicial system, there are currently no courts or tribunals specialised in environmental criminal cases. In E&W and NI criminal prosecution begins in the magistrates’ court—presided over by lay magistrates or a District judge. More serious cases are instead tried in the Crown Court by a judge and a jury. In Scotland minor criminal cases are tried before the Sheriff ’s court, whereas the more serious ones are heard in the High Court of Justiciary. Appeals from magistrates in E&W and NI are heard by a judge in the Crown Court (County Court for NI), whereas appeals from the Crown or County Court are sent to the Court of Appeal (criminal) Division. Appeals from the Court of Appeal go to the Supreme Court. In Scotland appeals from the Sheriff are heard by the Court of Session (Inner House) and appeals from there are heard in the UK Supreme Court.

*  This chapter is based on the Country Report on the UK prepared by V Mitsilegas, M Fitzmaurice and E Fasoli in the framework of the EFFACE Project (European Union Action to Fight Environmental Crime). 1  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 [2008] OJ L328. 2  See especially Evaluation Study on the Implementation of Directive 2008/99/EC on the Protection of the Environment through Criminal Law by Member States, National Report for the United Kingdom (Ares(2015)5176917—18/11/2015).

244  Elena Fasoli Against this introductory background, this chapter will focus particularly on the environmental crime legislation and practices in force in E&W and in ­Scotland. The analysis will be also enriched by the views provided by leading experts in the area.3

2.  DEFINITION OF ENVIRONMENTAL CRIME AND SUBSTANTIVE CRIMINAL LAW PRINCIPLES

Under the UK legal system environmental crime has neither been codified nor consolidated into a single Act but is found in a series of scattered pieces of legislation. The most prominent ones are the Environmental Protection Act 1990 and the Water Resources Act 1991. By way of example, in Environment Agency v Empress Car Co [1999] 2 AC 22, the defendant (Empress Car Company) left an unguarded tap on a large diesel tank next to a river and an unknown vandal trespassed on the defendant’s property and opened the tap, allowing the diesel to discharge into the river. Empress Car Co was convicted of the environmental crime of causing poisonous, noxious or polluting matter to enter controlled waters contrary to section 85 of the Water Resources Act 1991. In 2004 the Sub-committee on environmental crime, established under the House of Commons Environmental Audit Committee, defined environmental crime to ‘include all offences either created by statute or developed under the common law that relate to the environment’.4 As far as concerns the substantive criminal law principles that are mostly ­relevant for prosecuting environmental crime in the UK, especially in light of the ECD requirements, these are: a) the legality principle; b) the harm p ­ rinciple and public wrong; c) the principle of criminalisation as a last resort; d) the p ­ rinciple of causation; e) the mens rea requirement; f) complicity; and g) ­corporate liability.

3  Interview with Detective Inspector Nevin Hunter, former Head of National Wildlife Crime Unit. Answers in writing have also been provided by Anne Brosnan, Chief Prosecutor at the Environment Agency; Keith Vincent, former Lawyer at the Law Commission; John Galvin, formerly waste regulation and crime team leader at the Department for Environment, Food and Rural Affairs (DEFRA) and Charlotte Davies from the Environmental Investigation Agency. The views expressed constitute the personal opinions of the interviewees (as of 2014) and do not necessarily reflect the position of the relevant institution. 4  House of Commons Environmental Audit Committee—Environmental Crimes and the Courts, Sixth Report of Session 2003–04, available at: www.publications.parliament.uk/pa/cm200304/ cmselect/cmenvaud/126/126.pdf. Amongst the legal literature, Bell, McGillivray and Pedersen affirm that ‘the most obvious way for lawyers to define environmental crime is to only include those actions or omissions that directly or indirectly damage the environment and which are prohibited by law. This has the advantage of being value-free and objective’ (Environmental Law (Oxford, Oxford University Press, 2013) 273).

Environmental Criminal Law in the UK 245 2.1.  Legality Principle The legality principle provides that a person should never be convicted or punished except in accordance with an offence in force and governing the conduct in question. English criminal law is characterised by the absence of a criminal code. The main source has been the common law, as developed through decisions of the courts and by legal doctrine. The bulk of English criminal law, including environmental offences, is contained in scattered statutes. In this regard, Ashworth and Horder have clearly stressed the risk of inconsistency deriving from the difficulties in locating the applicable law. They also have highlighted the fact that, after a major consolidation of criminal legislation in 1861, some criminal offences are still governed by the common law, with a lack of statutory definition.5 The impact and significance—at least for the time being6—of European Union law on English criminal law has also to be mentioned. EU (criminal) law takes precedence over domestic (criminal) law. As clearly put by Ashworth and Horder, [w]here a rule of English criminal law unjustifiably curtails a right conferred by community law, the domestic law is disapplied and the defendant should not be convicted. European Community law has not yet had great effects on English criminal law, particularly the more serious offences, but its potential as a source of liability and of defences should not be overlooked.7

2.2.  Harm Principle and Public Wrong The term ‘unlawful’ as contained in Article 2 of ECD is not used within the UK legislation. Nevertheless, criminalisation is based upon the ‘wrongfulness’ of the harm. Wrongfulness is intended as culpably assailing a person’s interest. Furthermore, a public element is necessary in wrongs, in order to justify criminalisation (this aspect will be further developed in section 4.2.1 below). It has to be ‘proper’ for the state to promote certain basic values (eg the value of racial tolerance) whose violation justifies criminalisation.8

2.3.  Criminalisation as a Last Resort The principle of criminal law as a last resort states that criminal law should be reserved as a legislative technique applied extrema ratio, used only for seriously wrongful or harmful conduct. This principle acquires special relevance in the UK 5 

A Ashworth and J Horder, Principles of Criminal Law (Oxford, Oxford University Press, 2013) 8–9. At the time of writing, after the referendum held on 23 June 2016 when the UK electorate voted to leave the European Union, the UK Government has not yet triggered article 50 of the Lisbon Treaty, but it has announced that it will trigger it by the end of March 2017. 7  Ashworth and Horder, Principles of Criminal Law, n 5 above, 8–9 (citations omitted). 8  Ibid, 30–31. 6 

246  Elena Fasoli in the area of environmental protection, where a particular choice has been made to encourage environmental regulators to avoid exclusive reliance on criminal sanctions. The rationale behind the introduction of civil sanctions is precisely that of providing an alternative to criminal prosecution (see section 5). 2.4. Causation The ECD refers to the need for a certain action to be committed intentionally or with at least serious negligence in order to be considered a criminal offence (Article 3). The principle of causation is embedded in the UK legal system and it is ­formulated in the sense that causation is established if the result would not have occurred but for someone’s conduct. The leading case on the matter is R v Cato (1876) 62 Cr App R 41 wherein a person had been convicted of the manslaughter of another person, whom he had injected with a heroin compound at the other’s request. On that occasion, the Court of Appeal stated that as a matter of law, it was sufficient if the prosecution could establish that it was a cause, provided it was a cause outside the de minimis range, and effectively bearing upon the acceleration of the moment of the victim’s death.9

2.5.  Mens Rea Requirement Under the UK legal system the principle of mens rea is that criminal liability should be imposed only on persons who are sufficiently aware of what they are doing, and of the consequences it may have, that they can fairly be said to have chosen the behaviour and its consequences.10

The existence of this principle testifies to the correct transposition of the ­subjective elements contained in Article 3 ECD that defines a criminal environmental offence as that committed ‘intentionally or with at least serious negligence’. However, in this regard it has to be noted that the UK legislation is even stricter than the ECD in so far as the majority of the common environmental offences impose strict liability. In fact, in order to establish the offence there is no need to prove negligence or fault on the part of the operator (see further below). 2.6. Complicity Article 4 ECD requires Member States to ensure that inciting, aiding and ­abetting the intentional conduct are punishable as criminal offences. At common law 9 

10 

Ibid, 106. Ibid, 155.

Environmental Criminal Law in the UK 247 c­ riminal actors are classified as principals and/or accessories. The leading statute, for example, in E&W, is the 1861 Accessories and Abettors Act. A principal is a person whose acts fall within the legal definition of the crime, whereas an accomplice is anyone who aids, abets, counsels, or procures the commission of a crime by a principal.11 As to the fault element, the accomplice must intend to do whatever acts of assistance or encouragement are done, and must be aware of their ability to assist or encourage the principal. Secondly, the accomplice must know the essential matters that constitute the offence, namely, the facts, circumstances, and other matters that go to make up the conduct element of the principal offence.12 2.7.  Corporate Liability Articles 6 and 7 ECD require EU Member States to make sure that legal persons can be held liable for environmental criminal offences and that companies could be punishable by effective, proportionate and dissuasive penalties, although the latter do not have to be necessarily criminal in nature. In the UK the general rule for corporate liability is that when companies commit (environmental) crimes, a prosecution is brought against them. Corporate personality attaches to companies just as natural personality attaches to individuals. The main difference between an (environmental) crime committed by a company and that committed by an individual is that in the second case a criminal intent or negligence is more likely to be proved, whereas companies usually tend to ‘cover’ their blameworthiness by reference to factors outside their control.13 However, as already mentioned above, the need to prove the existence of the subjective requirement does not arise for strict liability offences (ie. the majority of environmental offences). Legal persons could thus be found liable for having breached a licence held in the name of the company, or individuals working for the company when they breached relevant pollution-control legislation. In this second case, in order to establish personal liability, the offence has to be committed with their consent or connivance, or must be attributable to their neglect. 3.  ENVIRONMENTAL CRIMINAL LAW AND TRANSPOSITION OF THE ECD

In the UK the legislation in the field of environmental criminal law, including that deriving from the transposition of ECD, is highly fragmented and spread across many statutes and regulations. In this context, the effects of ECD transposition were somewhat limited because they did not bring about major changes to national laws. The UK had already in place a well-established framework of 11 

Ibid, 419. Ibid, 432. 13  Bell et al, Environmental Law, n 4 above, 282. See also P De Pret, ‘Excuses, Excuses: The Ritual Trivialisation of Environmental Prosecution’ (2000) 12 Journal of Environmental Law 65–77. 12 

248  Elena Fasoli l­egislation, even though it was scattered. Nevertheless, a certain level of standardisation has been reached in line with the standards set by the ECD. For example, in most cases the relevant (UK) environmental offence uses the wording ‘no person shall cause or knowingly permit’ a certain act, breach of which constitutes an offence, or sets out that ‘any person who contravenes or fails to comply with the relevant regulation’, is guilty of an offence. In addition, some new criminal offences were created as result of the transposition of the ECD and there may have been an increased deterrent effect associated with the introduction of criminal penalties within certain regimes. However, no discernible increase of the number of people being prosecuted or of the severity of fines imposed has been detected (see further below). Regarding correct transposition, the Evaluation Study on the I­ mplementation of Directive 2008/99/EC in the United Kingdom released by Milieu in 2015 ­concludes that ‘overall, the UK has fully transposed the ECD in a satisfactory manner with each type of conduct set out in Article 3 being covered by the offences and ­applicable sanctions included within the sectoral legislation listed in Annex A’.14 The only aspect of incorrect transposition detected by the Evaluation Study was with regard to the lack of reference to the ECD within the corresponding UK legislation,15 which would not have a substantive impact on the application of the ECD in the UK. In terms of elements for which the UK legislation went beyond the standards set by the ECD, in the UK environmental criminal offences usually impose strict liability whereby in order to establish a criminal offence only the act or omission that forms part of the offence has to be proved. This approach goes beyond the ECD that instead requires ‘intention or at least serious negligence’ for conduct to constitute a criminal offence. This should make it easier for regulators to enforce and prosecute environmental offences and it should also constitute a strong incentive for potential offenders to take all possible risk-minimising measures. In addition, as to the transposition of the provisions on liability of legal persons, it was already anticipated that the criminal sanctions prescribed in relation to each environmental offence apply to both natural and legal persons. By way of example, the sanctions applied to the offences of polluting controlled waters committed by (legal) persons can amount to: a) imprisonment for a term not exceeding three months or a fine not exceeding £20,000, or both; b) imprisonment for a term not exceeding two years or a fine or both (section 85 of the Water Resources Act 1991). Sanctions, including for legal persons, will be further described in section 5 below. Regarding existing legislation, the experts consulted affirmed that there are no substantial shortcomings in the legal provisions concerning environmental criminal law in the UK. At the same time they have reported that environmental crime is certainly not a priority for the Government or for national and local policing authorities. 14  15 

Evaluation Study, above n 2. Ibid, 5.

Environmental Criminal Law in the UK 249 4.  PROCEDURAL PROVISIONS, ACTORS AND INSTITUTIONS IMPLEMENTING THE ECD

After describing the main features of environmental criminal law, as stated in the statutes and regulations, in this section the analysis will focus on the way it is enforced in situations of criminal investigation and prosecution. The procedure starts usually with the public or local authorities reporting to the police a particular environmental offence. In this regard, in E&W and in Scotland, the Environment Agency (EA), which is one of the main regulatory agencies, and the Scottish Environmental Protection Agency (SEPA), respectively, play the most important and ‘proactive’ role. Their work involves visits to premises to check on compliance with the law. Once a suspect has been found, if these agencies believe that they have sufficient evidence, they can opt for prosecution, issue a formal caution or take no further action. In this context, prosecution constitutes the last resort. The agencies prefer to rely on informal and formal warnings as a means of putting pressure on the wrongdoer.16 This section will be divided into three parts. The first will deal with procedures, actors and institutions responsible for investigation (section 4.1) and the second, with procedures, actors and institution responsible for prosecution (section 4.2) of environmental crimes. Both aspects (investigation and prosecution), and related challenges, are relevant to assessing the correct implementation of the ECD in the UK legal system. The third part (section 4.3) will deal with cooperation between relevant institutions. 4.1.  Procedures, Actors and Institutions Responsible for Investigation In this section the most important investigating bodies will be analysed. 4.1.1.  Environment Agency (EA) The EA17 is an independent corporate body (Environment Act 1995, section 1(1)) whose main aim is to minimise harm to the environment. It is responsible, inter alia, for waste management, water pollution, integrated pollution prevention and control and radioactive substances regulation. The EA has statutory responsibilities and powers to investigate environmental crime in conjunction with the relevant legislation.18 It has responsibility for issuing permits, for inspecting compliance with those permits, and has powers to prosecute for non-compliance with

16 

Ashworth and Horder, Principles of Criminal Law, n 5 above, 10. For information on the EA see: www.environment-agency.gov.uk/. Police and Criminal Evidence Act 1984, Salmon and Freshwater Fisheries Act 1975, Human Rights Act 1998, Data Protection Act 1998, Criminal Procedure and Investigations Act 1996, Regulation of Investigatory Powers Act 2000. 17 

18 Eg,

250  Elena Fasoli those permits. In this regard it is different from permitting and inspection bodies in many other EU Member States. Major investigation forms part of the EA’s strategy. To support this process the EA relies on an enforcement and investigation structure that includes investigators and support staff within a national crime team, with capability for deployment on a national and international basis. Also, the EA relies on local environmental crime team staff who investigate on a more local/regional basis. EA has a wide range of investigating powers. Section 108 of the Environment Act 1995 provides that an officer appointed by the Agency can, when there is no emergency: (i) enter premises (provided they are not residential) at any reasonable time; (ii) be accompanied into premises by a police constable, should the officer apprehend that they will be obstructed in their duty; (iii) make any investigation as necessary, including measurements, taking samples and photographs, and questioning individuals; (iv) carry out experimental borings, and install and maintain monitoring equipment. The Agency does not have total freedom to investigate breaches of environmental law, though. Unlike the police, EA officers have no general power of arrest or power to require the names and addresses of suspects, although there is a limited right to stop, search, and seize vehicles.19 The funding received by the Agency comes from different sources. It comes partly from the Department of Environment, Food and Rural Affairs (DEFRA) and, in recent years, this has decreased significantly due to spending cuts and leading to major concerns in terms of efficiency of the Agency. Funding comes also from levies raised on local authorities and partly from money generated from charging schemes and licence fees related to the pollution control system.20 4.1.2.  Scottish Environment Protection Agency (SEPA) SEPA21 is a non-departmental public body, accountable through Scottish ­Ministers to the Scottish Parliament. SEPA was established in 1996 by the Environment Act 1995 and is responsible for the protection of the natural environment in Scotland. Investigation forms part of SEPA’s responsibilities. SEPA, in partnership with police forces and other agencies, undertakes targeted operations to tackle illegal landfill sites, unlicensed skip-hire operators, large-scale and persistent dumping of waste, unlawful collection, storage and breaking of scrapped cars and unauthorised collection, storage and export of waste electrical and electronic equipment. 4.1.3.  Other Investigating Bodies Among the other bodies involved in investigations, such as the Home Office22 and Border Force,23 there are the police. The level of discretion and ample margin 19 

Bell et al, Environmental Law, n 4 above, 289. Ibid, 127. For information on SEPA, see: www.sepa.org.uk/default.aspx. 22  For information on Home office, see: www.gov.uk/government/organisations/home-office. 23  For information on Border Force, see: https://www.gov.uk/government/organisations/border-force. 20  21 

Environmental Criminal Law in the UK 251 of manoeuvre that characterises the action by the regulatory agencies, especially those with the power to prosecute such as the EA, also applies to the police, who, as mentioned above, hold also the general power of arrest and power to require the names and addresses of suspects. As has been rightly pointed out by Ashworth and Horder, [i]t is not rules but discretionary decisions which characterize the early stages in the criminal process. Police decision-making is largely discretionary, structured only by the cautioning guidelines, local arrangements for dealing with young defendants, police force orders, and internal police supervision. As research into public order policing confirms, there are considerable variations in policy and practice, not just between police force areas but also among police divisions in the same force, and this determines the nature and volume of cases placed before the CPS for consideration for prosecution.24

The police are responsible, for example, for investigating wildlife crime, which usually requires a very high degree of specialisation.25 Wildlife legislation is in fact a labyrinth of fairly old and very complex law that the average police officer could not realistically be expected to have detailed knowledge of.26 These concerns have, for example, led to a very recent assessment of the existing law by the UK Law Commission, which resulted in a draft Bill to replace the patchwork of wildlife laws, including those deriving from the EU, with a single statute.27 Usually, most police forces deploy specialised wildlife crime officers. However, in 2003 the National Wildlife Crime Unit (NWCU) was established.28 The NWCU is a strategic unit that provides analytical and investigative support (by acting as experts) to the police. The NWCU coordinates enforcement activity in relation to cross-border and organised crime, both at the national and international levels, to collate intelligence and to produce analytical assessments.29 The Unit is assisted, in relation to the illegal international trade in endangered species, by HM Customs and Excise, and by NGOs such as the Royal Society for the Prevention of Cruelty of Animals (RSPCA) and the World Wildlife Fund (WWF). Experts have reported a number of challenges related to the practical functioning of the NWCU. Among these, funding is most prominent, not least due to the lack of political interest in fighting against wildlife crime. The Unit was initially established as the National Wildlife Crime Intelligence Unit, as a part of the National Criminal Intelligence Service, and was based in London. Subsequently, after running the risk of closure from lack of funding, the Unit moved to Scotland (Livingston) and since 2006 it has been receiving funding from outside the police

24 

Ashworth and Horder, Principles of Criminal Law, n 5 above, 13. of Commons Environmental Audit Committee Wildlife Crime Third Report of Session 2012–13, vol I, 29, available at: www.publications.parliament.uk/pa/cm201213/cmselect/cmenvaud/140/140.pdf. 26 Ibid. 27  The text is available at: www.lawcom.gov.uk/project/wildlife-law/. 28  For information on the NWCU see: www.nwcu.police.uk/. 29  House of Commons Environmental Audit Committee Wildlife Crime Third Report of Session 2012–13, at 30. 25 House

252  Elena Fasoli by different agencies, such as the Home Office, DEFRA, the Association of Chief Police Officers, the Department of the Environment of Northern Ireland, Police Scotland, Scottish Natural Heritage and by the Scottish Government. Experts have also highlighted the problem of lack of reliable data. For example, when the UK Crown Prosecution Service (CPS) issues guidance on wildlife offences,30 this information does not provide specific data on rates of environmental crime prosecution. 4.2.  Procedures, Actors and Institutions Responsible for Prosecution As already anticipated, in the UK there are no specialist environmental criminal courts. However, a certain degree of specialisation of courts in environment-related matters exists with regard to appeals against civil sanctions imposed by regulatory agencies and applied as an alternative to criminal proceedings (the nature of these sanctions will be further described in section 5 below). From 2010 appeals in E&W with respect to civil sanctions have been heard by a first-tier (Environment) Tribunal and very recently a new proposal has been put forward for the establishment of a specialist Land and Planning Chamber within the Upper Tribunal in order to handle planning judicial reviews.31 4.2.1.  England and Wales As far as criminal prosecution brought by public authorities is concerned, in E&W the power of prosecution in environmental matters is exercised, for example, by the EA, local authorities, Natural England, the Drinking Water Inspectorate, the Forestry Commission, the Health and Safety Executive, HM Customs and Excise, or the National Wildlife Crime Unit. However, over 90 per cent of all non-local authority prosecutions for environmental crime are brought by the EA as it applies its enforcement and prosecution policy.32 The EA can decide to prosecute, for example, companies operating without the required licence, consent, or authorisation; or in respect of persistent or excessive breaches of statutory requirements; the failure to comply with formal requirements to remedy environmental harm; or the ‘reckless disregard’ of environmental management or quality standards. 30 

For more information see www.cps.gov.uk/legal/v_to_z/wildlife_offences/. See, particularly, L Fisher, ‘The Proposal for a New Specialist Planning Chamber and the Framing of Administrative Law’, UK Constitutional Law Blog (2013), available at: https://ukconstitutionallaw. org/2013/11/01/liz-fisher-the-proposal-for-a-new-specialist-planning-chamber-and-the-framing-ofadministrative-law/. Another example of progressive specialisation in environmental matters is the proposal that has been put forward in Scotland to establish the Energy and Natural Resources Court. This Court would provide a specialist forum to resolve disputes, eg, in the oil and gas industry and in the renewable energy, wind and wave power sectors. See Developments in Environmental Justice in Scotland (2016), available at: https://consult.scotland.gov.uk/courts-judicial-appointments-policyunit/environmental-justice/user_uploads/00497279.pdf. 32  The EA’s position on enforcement, sanctions and offences is available at www.gov.uk/government/ publications/environment-agency-enforcement-and-sanctions-statement. 31 

Environmental Criminal Law in the UK 253 When the EA decides that a criminal sanction is appropriate it assesses the case in accordance with the two necessary requirements of the Code for Crown Prosecutors, namely, the existence of sufficient evidence and that the prosecution should be in the public interest (taking into account factors such as intent, foreseeability, environmental effect, deterrent effect and the offender’s history).33 However, in practice, the enforcement and sanctions policy adopted by the EA is worded in such a way as to leave considerable discretion in determining whether to prosecute or whether to impose civil sanctions as an alternative to criminal prosecution. Usually, the EA tends to start a prosecution when it detects an element of moral blame in the conduct of the environmental offender. On this point experts have highlighted that there is a perception that the EA could take a tougher approach against those who flout the law. The level of discretion left to regulators has also led to cases of abuse of power. By way of example, in Wandsworth London Borough Council v Rashid [2009] EWCA 1844 (Admin) a shop owner had been prosecuted for placing waste from his shop on the pavement outside his shop due to flooding. The owner was then successful before the magistrate’s court in arguing that the prosecution was an abuse of process as the local authority had not offered guidance and education prior to prosecuting him, as indicated in the Borough’s enforcement policy. On this issue, which is also linked to the (non-)existence of accountability systems, it has been highlighted that environmental regulatory agencies are relatively free to determine their own policies: although some of their procedures are authorized by statute, there is no overall body that reviews the policies and practices of these agencies, despite their tremendous significance for the reach of the criminal process.34

Be that as it may, the EA’s official policy is that prosecution is a last resort (eg 89 businesses were prosecuted in 2013 with total fines of £1.5m)35 and criminal law is ‘a background source of the pressure towards compliance which the agencies are able to exert’.36 Prevention is considered, in fact, ‘better that cure’ and EA engages also with companies in order to educate and enable compliance.

33 The EA’s guidance on enforcement and sanctions is available at: www.gov.uk/government/ uploads/system/uploads/attachment_data/file/468315/LIT_5551.pdf. With specific regard to the public interest requirement, The Code for Crown Prosecutors (para 4.8 and 4.12) states that ‘a prosecution will usually take place unless the prosecutor is sure that there are public interest factors tending against prosecution which outweigh those tending in favour, or unless the prosecutor is satisfied that the public interest may be properly served, in the first instance, by offering the offender the opportunity to have the matter dealt with by an out-of-court disposal. … The more serious the offence or the offender’s record of criminal behaviour, the more likely it is that a prosecution will be required in the public interest’. 34  A Ashworth and M Redmayne, The Criminal Process (Oxford, Oxford University Press, 2010) 80. 35  Data provided by Jonathan Robinson (Executive Director of Resources and Legal Services at Environment Agency), at the Conference ‘Effective Enforcement of Environmental Law’, held at UCL in March 2015, and available at: http://blogs.ucl.ac.uk/law-environment/files/2015/05/robinson.pdf. 36  Ashworth and Horder, Principles of Criminal Law, n 5 above, 12.

254  Elena Fasoli 4.2.2. Scotland In Scotland all prosecutions are brought by the Crown Office and Procurator Fiscal Service (COPFS), which traditionally has lacked expertise in environmental crime. In order to cope with this problem, in 2013, a team of specialist prosecutors was appointed to handle wildlife and environmental crime cases.37 These new appointments were necessary in so far as, unlike E&W where enforcement and prosecution are undertaken by the EA, the final decision to prosecute is held solely by the COPFS, therefore, outside and without the expertise in environmental matters of SEPA and the police. As an example of good practice in the area of wildlife crime, the officers of the NWCU, when taking a case to the magistrate’s court, usually produce an impact statement (not required by law) based on the best scientific advice. That evidence should enable the magistrates to understand the importance and peculiarity of the environmental cases.38 This separation of enforcement and prosecution powers in Scotland also has a bearing on the length of the investigating procedures and subsequent actions. If the police in Scotland want to take enforcement action involving warrants, they have to first obtain the approval from the prosecuting solicitors (COPFS) who decide whether or not to grant the warrant. Therefore, in E&W when a police officer has enough intelligence and suspicion of a crime (and usually the level of evidence needed in E&W is much lower than that required in Scotland) they can authorise the application to go before the magistrate in order to get a warrant. In Scotland this process has the additional filter of the prosecuting solicitor, with the consequence of making the procedure very slow. Overall, in fact, the rates of prosecution are very low. As pointed out by Bell et al, [t]his separation of enforcement and prosecution and, in particular, the lack of ­specialist environmental expertise within COPFS, explains why the number of prosecutions for environmental crimes is much lower in Scotland than in England. For example, in Scotland, there were sixty-three referrals to the COPFS by SEPA in 2008–9, thirty-three in 2009–10, and thirty-seven in 2010–11. These figures are significantly lower than the number of prosecutions brought by the EA over the same period. Attempts have been made to address this imbalance, including the introduction of trained environmental prosecutors within COPFS to liaise with SEPA, and to coordinate enforcement and prosecutions, and also the introduction of an agreed protocol on concluding investigations and prosecutions.39

37  Information on the new team of specialists is available at: www.crownoffice.gov.uk/media-site/ media-releases/245-new-team-of-specialist-prosecutors-to-be-appointed-to-handle-wildlife-andenvironmental-crime. Additional statistics are available at: www.scotland.gov.uk/Publications/2013/09/ 2382/10 and in the SEPA enforcement report 2011–2012, www.sepa.org.uk/pdf/130304%20-%20 Enforcement%20Report%20-%20FINAL1.PDF. 38  Interview with Detective Inspector Nevin Hunter, above n 3. 39  Bell et al, Environmental Law, n 4 above, 295.

Environmental Criminal Law in the UK 255 4.3.  Institutional Cooperation Cooperation between public authorities is significant because of the constant changing of the context of environmental crime, with offences becoming more complex and serious, also involving organised and geographically dispersed illegal activities. Regulatory agencies in the UK usually define their own cooperation. By way of example, much of the compliance and enforcement work of Natural England (which is the non-departmental public body of the UK government playing a significant part in policing the protection of habitats in collaboration with the police) is delivered in partnership with other agencies, including the police and CPS, the Chemicals Regulation Directorate, the EA, Forestry Commission and the Rural Payments Agency. Natural England declares that [a]t a national level partnership working is aided through the Partnership for Action against Wildlife Crime. We also provide evidence to the Wildlife Crime Law Enforcement Working Group to allow the determination of UK wildlife crime priorities, and we support partnership initiatives to priorities such as bat and raptor crime. We exchange intelligence with the National Wildlife Crime Unit and support them in producing a range of impact assessments to be used at sentencing by the CPS and other prosecuting agencies.40

The cooperation between public authorities, for example, administrative and criminal ones, is particularly evident also in relation to the activity of the NWCU, which was part of the National Criminal Intelligence Service and serves as the focal point for the exchange of information on wildlife crime at the regional, national and international level. There is in fact close cooperation between the NWCU and the other regulatory agencies, such as Natural England, Natural Resources Wales, Scottish Natural Heritage and the Joint Nature Conservation Committee. They all provide the NWCU with the necessary expertise in order to prosecute wildlife crimes. In this context, the cooperation with non-governmental organisations (such as WWF, TRAFFIC, RSPCA, RSPB or IFAW) has to be mentioned. Wildlife experts report that in these cases the cooperation is close, although sometimes it can prove difficult. These organisations have their own investigating arms through which they gather evidence and in certain cases the NWCU is not in a position to use this evidence as it may not have been gathered lawfully. In the past non-governmental organisations played a major role in providing expertise that, at that time, was almost absent in the police (eg in the UK there was no wildlife law enforcement until mid-1999). Subsequently, the police started to acquire more expertise, also being able to rely on the support of government regulatory agencies, with the consequence that non-governmental organisations were not embedded anymore in

40  Natural England, Enforcement Guidance, 2011, available at: http://www.naturalengland.org.uk/ Images/enforcement-guidance_tcm6-29091.pdf.

256  Elena Fasoli police investigations. For example, in 2013 the NWCU was not willing to support a report on the internet trade in ivory at the global level, prepared by the International Fund for Animal Welfare (IFAW), because the conclusions of the report were not, in its view, corroborated by proper facts. All in all, non-governmental organisations can be very supportive in providing, for example, extra-funding to the NWCU, in promoting partnerships with them (eg the Angling Trust that deals with poaching and fish theft) and also in educating people and engaging communities at the local level. This is particularly important if one considers that people can become ‘environmental criminals’ simply through ignorance.41 Finally, as far as the co-operation between UK regulatory agencies and other international institutions and organisations is concerned, since many environmental crimes are transnational, cooperation in investigation and implementation of international legal instruments is crucial. UK environmental agencies collaborate, for example, with INTERPOL in order to achieve better results in tackling environmental crimes, such as fisheries crimes, illegal trafficking of e-waste, oil spills in marine environments and other forms of pollution crime.42 Inter-­institutional agreements are also another useful tool for collaboration. DEFRA and the CITES Secretariat, for example, signed a memorandum of understanding in order to remove obstacles to the flow of information exchanged between them.43

5. SANCTIONS

The same year that the ECD was adopted, which requires the application of criminal penalties to certain environmental offences, in E&W a new piece of legislation, the Regulatory Enforcement and Sanctions Act 2008 (RESA) was introduced essentially to respond to a criticism, made in the context of a wider deregulatory initiative, that the UK system was too heavily reliant on criminal penalties.44 In essence, RESA gave Government the power to give regulators, including environmental ones,45 a range of new administrative enforcement tools (called ‘civil sanctions’) coming into force from 2011: —— Compliance notice, that requires compliance within a specified time limit; —— Restoration notice, that requires measures to restore the damage caused;

41 

Interview with Detective Inspector Nevin Hunter, above n 3. more information on Interpol, see: www.interpol.int/Crime-areas/Environmental-crime/ Environmental-crime. 43  The document is available at www.cites.org/common/disc/sec/CITES-UK.pdf. 44  R Macrory, Regulatory Justice, Making Sanctions Effective, Final Report (2006) and P Hampton, Reducing Administrative Burdens: Effective Inspection and Enforcement (London, HM Treasury, 2005). 45  The extension of the civil sanctions regime to a series, although still limited, of environmental regulations was made mainly through the 2010 Environment Civil Sanctions Orders. Only recently the civil sanctions regime has been applied also for environmental permitting offences (Environmental Permitting (England and Wales) (Amendment) (England) Regulations 2015). 42 For

Environmental Criminal Law in the UK 257 —— Fixed monetary penalty (FMP), which is a low fine issued for minor offences; —— Variable monetary penalty (VMP), which is a monetary penalty for serious offences; —— Enforcement undertaking, where the offender offers to undertake specific steps to rectify the non-compliance in order to avoid the application of the fine, and acceptance by the regulator prevents prosecution; —— Stop notice that requires an immediate halt to activities causing serious harm.46 For major incidents regulators usually prefer to start a prosecution or apply a VMP, whereas for minor cases where, for example, the risk of harm is only localised, they consider accepting enforcement undertakings. Appeals against civil sanctions have to be brought to the Regulatory Chamber of the First-tier Tribunal created under the Tribunals, Courts and Enforcement Act 2007.47 It is noteworthy that with regard to FMPs, VMPs, and compliance and restoration notices, RESA specifies that regulators are allowed to impose them only if the person has committed the offence ‘beyond any reasonable doubt’. In addition, regulators can accept an enforcement undertaking only where they have ‘reasonable grounds’ to suspect the person has committed the offence. This shows how civil sanctions are in essence meant to constitute a rigorous alternative to criminal prosecution where the test for prosecution is similar (actually, in the case of FMPs and VMPs in fact higher): ‘realistic prospect of securing a conviction’. It has to be noted, though, that for the time being civil sanctions are available for a limited number of offences, mainly, for waste and water-related offences and, from very recently, also in relation to environmental permitting offences. Other offences are expected to be added by future legislation. Be that as it may, this new sanctioning regime was not received without criticism, first, in terms of accountability of the regulators. The main concern was that the agencies would acquire even further discretionary powers. On the other hand, supporters of civil sanctions instead emphasised the need to provide a more proportionate and flexible approach. For example, already in 2003 Woods and Macrory pointed to the risks of diminishing the ‘moral dimension’ of environmental crime by an excessive use of criminal penalties. Relying too heavily as a matter of habit on criminal enforcement can lead to the undermining of the concept of criminality by its extension to morally neutral ‘offences’; the trivialisation of criminal cases through the use of inappropriate ‘defences’ in front of sympathetic judges; the practical difficulties arising from regulators having to meet the

46  See, among other sources, E Bethell, ‘Environmental Regulation: Effective or Defective? Assessing whether Criminal Sanctions Provide Adequate Protection of the Environment’ (2009) 2 Plymouth Law Review 1–25; and M Watson, ‘The Enforcement of Environmental Law: Civil or Criminal penalties?’ (2005) 17 Environmental Law and Management 3–6. 47  See section 4.2 above.

258  Elena Fasoli criminal standard of proof in terms of costs, time and resources, and the ‘lottery’ of the fines applied by the courts which fails to provide proper recompense for the damage caused to the environment.48

By contrast, Bell, McGillivray and Pedersen maintained that the very use of alternative tools to criminal prosecution could lead to the perception that environmental crimes are less ‘serious’ crimes. A further consideration is whether the use of civil sanctions will, in time, diminish the role played by the criminal law in enforcing environmental law even further. In the extreme this may eventually have consequences for how environmental offences are perceived and whether ‘environmental crimes’ are thought of as morally wrong. This will naturally depend on the extent to which the civil sanctions regime is used.49

Since the introduction of the civil sanctions in 2011, data from the EA show that very limited use has been made to date of financial penalties (FMPs and VMPs),50 whereas voluntary enforcement undertakings have been utilised more successfully (eg 47 enforcement undertakings were accepted in 2013; 39 in 2014; and seven in 2015).51 Although enforcement undertakings have been praised for providing a more collaborative and timely response based on the nature of the offence, a risk that polluters could act in bad faith (ie not being truly committed to changing their behaviour in the future) has also been highlighted. From the practical side the experts consulted have highlighted that, overall, civil sanctions could have greater effect than an available criminal offence, as they can have the ability to prevent an individual or company from engaging in a particularly damaging economic activity. Civil sanctions are now applicable also in Scotland. In 2014 the Regulatory Reform Act gave SEPA the power to issue fines (of up to £40,000) in relation to environmental crimes without having to take offenders to court, as well as the power to accept enforcement undertakings from offenders. Interestingly, this new reliance on civil/administrative sanctions has coincided with a (further) reduction of criminal prosecutions in relation to environmental crimes (over a period of 10 years from 2004 to 2014 there has been a decline from 750 to 350 prosecutions each year, with a peak in reduction from 2011 onwards).52 In addition to this, data also show that successful criminal prosecutions have resulted in the application of higher fines.

48 M Woods and R Macrory, Environmental Civil Penalties: A More Proportionate Response to Regulatory Breach (London, UCL Centre for Law and the Environment, 2003) 9 (citation omitted). 49  Bell et al, Environmental Law, n 4 above, 307. 50  A very recent case of financial penalty is that imposed on Cumbria County Council in August 2015 and amounting to £63,958. The County was responsible for a leakage of chlorine from the local swimming pool into the local river, which resulted in the killing of fish. See: https://blogs.ucl.ac.uk/ law-environment/2016/02/29/first-civil-financial-penalty-served-by-environment-agency/. 51  Data provided by Jonathan Robinson of the EA, above n 35. 52 Ibid.

Environmental Criminal Law in the UK 259 It appears that the Sentencing Guidelines adopted in 2014 have not only helped magistrates to become more familiar with punishing and sentencing environmental offences, but they have also led to an increase in the fines for serious offenders.53 The work of the Law Commission in the area of wildlife legislation clearly confirms this trend.54 In the recently adopted report on wildlife law the Law Commission concluded that all substantive wildlife offences, including poaching, should be punishable with more severe criminal penalties,55 also in order to align them with the standard set by ECD. With regard to the level of punishment, the Evaluation Study released by Milieu in 201556 reports that, overall the level of sanctions currently available in the UK for environmental offences appears to be effective, proportionate and dissuasive. More precisely, the study stated that [t]he maximum fine that can be imposed on summary conviction is £50,000. In addition or as an alternative, imprisonment of up to 6 or 12 months can be imposed depending on the offence. On conviction on indictment, an unlimited fine can be imposed and/or a term of imprisonment not exceeding 5 years, or both fine and imprisonment. However, the Courts possess a substantial degree of discretion when sentencing and relevant factors will obviously vary case to case. The gravity of the offence, the past criminal record of the accused and society’s need for retribution and/or deterrence are all factors that have been taken into account.57

This progressive decrease in criminal prosecutions rates, along with the application of higher fines, is also confirmed with regard to corporate environmental crimes.58 Already in 2004 the sub-committee on environmental crime on the issue of corporate offences detected flaws in the sentencing system. Even putting aside the often extreme difficulty of finding and successfully prosecuting the individual behind the decision that led to an environmental crime, the current sentencing system is just not flexible and imaginative enough adequately to punish corporate bodies or those in senior managerial positions within them. It is disgraceful that some companies openly boast about their crimes as though they manifested some sort of commercial talent or marketing genius. The Government must adopt a much tougher stance with businesses—regardless of their size and nationality—which flagrantly flout the law.59 53  See Sentencing Council, Environmental Offences Definitive Guideline (July 2014). The Guidelines are available at: www.sentencingcouncil.org.uk/wp-content/uploads/Final_Environmental_Offences_ Definitive_Guideline_web1.pdf. 54  See text at section 4.1.3 and n 27 above. 55  Punishable on summary conviction by imprisonment for a period not exceeding six months or a fine (or both) and on conviction on indictment by imprisonment for a period not exceeding two years or a fine (or both). 56  See above n 2. 57 http://ec.europa.eu/justice/criminal/files/environment/toc_uk_redacted_en.pdf. 58  Recent data from EA shows that small and medium-sized companies are responsible for up to 80% of all pollution incidents and for more than 60% of the commercial and industrial waste produced in E&W. 59  House of Commons Environmental Audit Committee, Environmental Crimes and the Courts, Sixth Report of Session 2003–04, 16.

260  Elena Fasoli However, more recent figures show that pollution incidents by companies are slowly decreasing. By way of example, the 2012 Sustainable Business Report by the EA shows that there have been 504 serious and significant pollution incidents in England in 2012, down by eight per cent compared to 2011, this being the lowest recorded level to date.60 As to the level of fines, the 2012 Sustainable Business Report states that 178 separate companies were fined for environmental offences in 2011, compared with 179 in 2010 and 317 in 2005. Total fines came to over £3.8 million. This is lower than the total of £4.8 million in 2010. Total fines in 2005 came to £2.7 million. The average company fine in 2011 was £21,600, compared with £26,900 in 2010 and £8,700 in 2005.61

In addition, in 2014 the Sentencing Guideline for Environmental Offences introduced larger fines for companies;62 for example, a range of £450,000–£3 ­million for large companies with a turnover of £50 million or more and a range of £400–£3,500 for small companies with £2–10 million turnover. It has to be reported, though, that the application in practice of the 2014 Guideline led to difficulties in applying fines to very large companies, such as, for example, water companies. The Guidelines identify ‘large’ organisations as those with a turnover or equivalent of £50 million and over and the starting point for a fine is £60,000, with a range of £35,000–£150,000 before taking account of any aggravating and mitigating features. The Guidelines, however, make it clear that the starting points and range of fines suggested do not apply to very large companies: ‘where a defendant company’s turnover or equivalent very greatly exceeds the threshold for large companies, it may be necessary to move outside the suggested range to achieve a proportionate sentence’.63 In a recent case (R v Thames Water Utilities Ltd [2015] EWCA Crim 960) the Court of Appeal was faced with the issue of a company’s turnover that fell well beyond the scale set down in the Guidelines. Thames Water, with a turnover of £1.9 billion, was found liable for discharging untreated sewage into a nature reserve, thus breaching regulations 38(1)(a) and 39(1) of the Environmental ­Permitting (England and Wales) Regulations 2010. The difficulty in assessing the level of fine is well described in the following passage: [T]he need to impose a just and proportionate penalty will necessitate a focus on the whole of the financial circumstances of the company. We have already outlined the approach by reference to the guideline—starting with turnover, but having regard to

60  The report is available at: www.gov.uk/government/uploads/system/uploads/attachment_data/ file/297237/LIT_8546_b08a53.pdf. 61  Ibid, at 16. 62  The Guidelines introduced a step-by-step approach to calculation of a fine based upon the degree of culpability of the offender, the harm caused by the offence, and the size of the offending organisation, to be assessed by reference to its turnover. In the Guidelines companies are divided into four categories: micro, small, medium, and large. 63  See Sentencing Guidelines, above n 53, at p 7.

Environmental Criminal Law in the UK 261 all the financial circumstances, including profitability. In such a case, the objectives of punishment, deterrence and the removal of gain (for example by the decision of the management not to expend sufficient resources in modernisation and improvement) must be achieved by the level of penalty imposed. This may well result in a fine equal to a substantial percentage, up to 100%, of the company’s pre-tax net profit for the year in question (or an average if there is more than one year involved), even if this results in fines in excess of £100 million. Fines of such magnitude are imposed in the financial services market for breach of regulations. In a Category 1 harm case, the imposition of such a fine is a necessary and proper consequence of the importance to be attached to environmental protection.64

Rejecting Thames Water’s appeal against a £250,000 fine, the Court eventually confirmed that amount and stated that fines against very large companies ‘had to bring home the appropriate message to the directors and shareholders of the company’. This judgment follows another case (R v Sellafield Ltd [2014] EWCA Crim 49) where the Court of Appeal had already given guidance as to the approach to fines to be imposed on companies of very significant size. In that case Sellafield ­Limited, with a turnover of £1.6 billion, was fined £700,000 for offences arising out from the disposal of radioactive waste. Rejecting Sellafield’s appeal, in the relevant passage the Court interestingly stated that [a] fine of the size imposed, even though only a little more than a week’s profit and about 2% of its weekly income, would, in our view, in the circumstances achieve the statutory purposes of sentencing by bringing home to the directors of Sellafield Ltd and its professional shareholders the seriousness of the offences committed and provide a real incentive to the directors and shareholders to remedy the failures which the judge found existed.65

From the trends highlighted above the following conclusions can be made. First, the new civil sanctioning regime is still at an early stage and it is difficult to predict to what extent the sanctions will be applied in practice and, therefore, if they will prove effectively useful. Second, with regard to enforcement undertakings—that, so far, are the only ones that have been more consistently applied—the question remains as to whether the existence of a parallel (administrative) regime could lead to a more effective, proportionate and dissuasive sanctioning system or, instead, to the ­weakening of

64  R v Thames Water Utilities Ltd [2015] EWCA Crim 960, para 40. See also the case R v Day [2014] EWCA Crim 2683, para 46. 65  R v Sellafield Ltd [2014] EWCA Crim 49, para 65. See also the decisions in January 2016 of Leeds Crown Court to fine Yorkshire Water £600,000 for unauthorised sewage pollution (available at: www.gov.uk/government/news/yorkshire-water-fined-600000-after-sewage-pollution-hits-wakefieldfishery), and of St Albans Crown Court to fine Thames Water £1 million for repeated discharges of polluting matter from Tring STW (Sewage Treatment Works) into the Wendover Arm of the Grand Union Canal in Hertfordshire (available at: www.gov.uk/government/news/thames-water-fined-1-millionfor-pollution-to-grand-union-canal).

262  Elena Fasoli the more established criminal sanctioning approach, ultimately, leading to lower levels of compliance. On this point, it is submitted that a correct use of the civil sanctioning regime would not diminish the role played by criminal law. On the contrary, both regimes would assure an integrated approach whereby the most serious environmental crimes would be still punishable with criminal penalties and less serious offending (for example, for moderate environmental damage) would provide an opportunity for a more flexible and collaborative approach, for example, through the application of enforcement undertakings. This holds true provided that a very rigorous analysis is made of the offers presented by the offenders. A rigorous analysis would mean that, first of all, regulatory authorities should be able to detect very early in the process potential bad faith of the offenders (this leading to refusal of the offer). In order to do so, effective cooperation and communication between regulatory agencies (eg in order to retrieve previous offers of enforcement undertaking by the same offender or its compliance history etc) proves to be crucial. In addition, a rigorous approach is also linked to the standard of proof applied by the regulator. In this regard, it is a good indicator that for enforcement undertakings the test of evidence (ie reasonable grounds to suspect the person has committed an offence) is substantially the same as that for criminal prosecution (ie a realistic prospect of securing a conviction) and that for FMPs, VMPs, compliance and restoration notices the standard of proof is even stricter (ie beyond reasonable doubt). While it remains to be seen to what extent this new (administrative) system will be applied more extensively in practice, the above considerations bring some reassurance that this new system seems not to imply, at least in theory, a ‘low investigation’ model.

6. CONCLUSIONS

In the UK the legislation in the field of environmental criminal law is highly fragmented, being contained in many statutes and regulations. The complexity of the UK environmental legislation is mainly due to the considerable amount of reforms carried out in the last 20 years. The UK had already in place a framework that, although scattered, was able to meet the requirements of the ECD with only minor additions to criminal offences and with the introduction of additional offences within certain regimes. Although this might have had an increased deterrent effect, no discernible increase of the number of prosecutions has been detected over the last 10 years. On the contrary, trends regarding prosecution were showing a decrease compared with the number of breaches of environmental law. The only increasing trend was in the level of criminal penalties, thanks to the adoption of environmental Sentencing Guidelines in 2014. More recently, this trend has also been confirmed in the area of wildlife protection. In 2015 the Law Commission concluded that the current level of criminal penalties for wildlife offences is not sufficient, certainly not enough to meet the requirements of ECD. It is believed that this tendency to increase the

Environmental Criminal Law in the UK 263 level of criminal penalties should be applied widely to all types of environmental offences. The decrease in criminal prosecution, but also the higher fines being applied, went hand in hand with the emergence of a new sanctioning regime, which, in a way, is different from the provisions of the ECD. Instead of criminal penalties a system of administrative/civil sanctions was introduced in 2008. Even though this system is still at an early stage of its application and its full effectiveness has not yet been proven, it is believed that it does not diminish the role played by criminal law. Rather, both systems assure an integrated and more efficient approach whereby the most serious environmental crimes would be still punishable with (possibly higher) criminal penalties, on the one hand, and less serious offending (eg, for moderate environmental damage) would be handled through, for example, enforcement undertakings, on the other. It is submitted that this should lead to a timely and satisfactory environmental outcome, therefore, more in the public interest, provided that a rigorous approach in the application of civil/administrative sanctions is followed. With regard to enforcement u ­ ndertakings—the only measures that have so far been more consistently applied—a rigorous approach would relate to both the ability of the regulatory agency to detect potential bad faith in the offender and to the strict standard of proof applied in order to assess whether the suspect has committed the environmental offence. With regard to the application in practice of this system, the experts consulted have reported that environmental crime is far from being a priority in the current political agenda. They also have identified a series of major shortcomings. First, the issue of the lack of reliable data on prosecutions for environmental crime: for example, when the Crown Prosecution Service adopts guidance on wildlife offences, it does not contain specifics on their prosecution. In addition, the lack of expertise in environmental crime has been highlighted, especially with regard to prosecutors. Good practices to this effect, for example, at the police level, have been adopted: police in the NWCU brief the magistrates when taking a case to court. Finally, with regard to the issue of funding, all experts have referred to the need of a long-term and sustained funding scheme for regulatory agencies and specialist units, including for prosecutors’ networks for the exchange of information and best practices.

264 

Part III

Comparative Analysis and Concluding Remarks

266 

11 The Evolution of Environmental Criminal Law in Europe: A Comparative Analysis MICHAEL FAURE

1. INTRODUCTION

F

OLLOWING THE PREVIOUS Part with seven country chapters, the goal of this comparative analysis is to indicate whether particular similarities between the countries examined can be found (convergence) and where there may be interesting differences (divergence) in environmental criminal law. Of course the goal of this comparison is not to compare ‘strengths and weaknesses’ of the regulatory and enforcement regimes in specific Member States and thus to come to far-reaching conclusions on the effectiveness of environmental criminal law within particular Member States. Rather an attempt will be made to put the comparative analysis in a broader analytical framework, for example by looking at criminal law or criminological literature with respect to the effectiveness of particular instruments in the fight against environmental crime.1 As was stated in the Introduction to this book, the country studies could not deal with all aspects of environmental criminal law. There was a clear focus on the specific role of the criminal law, particularly in its relationship to administrative enforcement, but also on the location and role of criminal law in the enforcement system. This question was especially examined in the light of the EU Environmental Crime Directive. Again, the goal of the country studies was not so much to analyse to what extent the seven specific Member States did correctly implement the Directive (although indications in that respect are provided in the country chapters). The study of the Environmental Crime Directive is especially interesting to verify whether, in the specific Member States addressed in the country studies, the Environmental Crime Directive can be supposed to have brought important changes, possibly even improvements, or whether to a large extent the relevant system already largely complied with the requirements of the Environmental Crime Directive.

1  See for example N Gunningham and P Grabosky, Smart Regulation: Designing Environmental Policy (Oxford, Clarendon Press, 1998) and J Firestone, ‘Enforcement of Pollution Laws and Regulations: An Analysis of Forum Choice’ (2003) 27 Harvard Environmental Law Review 105–32.

268  Michael Faure The different aspects that were analysed in the country chapters will in this comparative analysis, to the extent possible, be studied according to a similar structure: first, the importance of the particular issue studied will be briefly highlighted, in some cases by putting the issue in the context of the relevant academic literature; next, some highlights of tendencies in Member States will be discussed; and finally, to the extent possible, some indications on convergence or divergence will be provided. This comparative chapter will first address the place of environmental criminal law in the countries studied (section 2); next, the way in which environmental crime has been defined in each country will be addressed (section 3). Specific attention will be paid to the actors of environmental crime, whereby the question will be addressed whether corporations can also be held criminally liable and whether specific provisions exist concerning organised crime (section 4). Several aspects dealing with procedure, including the role of the prosecutor, the courts and administrative enforcement will be dealt with in section 5. The core of the comparison focuses on the transposition of the Environmental Crime Directive (section 6). Finally, some attention is paid to the sanctions in section 7. Section 8 concludes.

2.  PLACE AND STRUCTURE OF ENVIRONMENTAL CRIMINAL LAW

2.1.  Importance of the Issue A first issue to be discussed is where the main instruments of environmental criminal law (and in this particular case the substantive provisions criminalising environmental harm) can be found. There exist roughly three different models that can be followed in this respect. A first one is the incorporation of the most important criminal provisions in a criminal/penal code. This means that environmental crime would be placed as a separate chapter in criminal codes. A second, and to some extent (comparable) model, is where environmental crimes can be found in an environmental code or specific environmental protection act that harmonises environmental law in a particular country. A third model is the one whereby most criminal provisions can be found in sectoral regulations, such as a water protection or waste statute. In the latter case, the criminal provisions would usually come at the end of a statute of largely administrative nature. Combinations of the three different models are obviously possible as well, eg an incorporation of criminal law in the criminal code where the main cases of serious environmental harm would be punished, and in addition crimes in sectoral regulation. At first blush one could think that it would not matter where criminal provisions are placed in the legislation, since it is in the end the way in which the criminal behaviour and the sanctions are formulated that should determine the effectiveness of the particular provision. However, the place of environmental criminal law

Evolution of Environmental Criminal Law 269 in the legislative framework is not totally value-free.2 The literature has argued that institutions within the criminal justice system particularly may attach more importance to crimes that are incorporated within a criminal code (hence signalling the important moral content of the crime) than to crimes that are ‘merely’ incorporated in environmental statutes.3 Prosecutors and judges would hence pay less attention to criminal provisions in special statutes than to crimes in a criminal code. Moreover, a disadvantage of incorporating environmental criminal law in different sectoral regulations is that it may be difficult to find the particular provisions, there may be dangers of overlap and disharmonies, and sanctions may not be applied proportionately. From this perspective, there may be reasons to incorporate at least the most serious cases of environmental harm into a criminal code or at least into an environmental code or special environmental act.

2.2. Countries Examples of the different models can all be found in the countries as follows from the table below: Table 1:  Place of environmental criminal law Criminal Code

Environmental Code

France

X

X

Germany

X

Italy

X

Poland

X

Spain

X

Sweden UK

X

Environmental Statutes (crim.)

Environmental Statutes (adm.)

X

X

X

X

X X X

X X

X

As the table shows, three countries (Germany, Poland and Spain) have incorporated criminal law mainly into their criminal codes.4 Note that Poland has

2 See also G Heine and V Meinberg, Empfehlen sich Änderungen im strafrechtlichen Umweltschutz, insbesondere in Verbindung mit dem Verwaltungsrecht? Gutachten zum 57. Deutschen Juristentag (Munich, Beck, 1988) 16–21. 3  See K Tiedemann, Die Neuordnung des Umweltstrafrechts: Gutachtliche Stellungnahme zu dem Entwurf eines Sechzehnten Strafrechtänderungsgesetzes (Gesetz zur Bekämpfung der Umweltkriminalität) (Berlin, De Gruyter, 1980) 18. 4 In Italy, only two misdemeanours have been incorporated into the Criminal Code following implementation of Directive 2008/99/EC, with the vast majority of provisions on environmental

270  Michael Faure incorporated environmental crime in the Criminal Code,5 but important provisions are also contained in its Environmental Protection Law of 2001.6 Also in Italy, following the implementation of the Environmental Crime Directive, two misdemeanours have been incorporated in the Criminal Code (in 2011) and a new chapter with environmental crimes was introduced into the Italian Criminal Code in 2015.7 Germany has its substantive environmental criminal law incorporated in the Criminal Code.8 Spain is an interesting case as in that jurisdiction criminal environmental provisions can only be found in the Spanish Criminal Code.9 In most countries there are, in addition to environmental crimes in either the criminal code or an environmental code, still provisions in specific environmental statutes. Only France has incorporated environmental criminal law in an integrated way in its environmental code10 and, as mentioned above, in Spain the provisions outside the criminal code are all of an administrative nature. The other two countries that have incorporated environmental law into an environmental code (Italy and Sweden) have apparently not been able to do so (like France) in an integrated manner. Sweden still has many different sectoral regulations outside the environmental code11 and the same holds partially true for Italy.12 Some countries have an explicit administrative sanctioning system. It has already been mentioned that Spain, outside of its criminal code, only has administrative sanctions. Germany has not only criminal sanctions in its criminal code and in environmental statutes, but also the well-known Ordnungswidrigkeiten (administrative violations) in administrative statutes. An outsider position is taken by the UK which traditionally is averse to codification and hence has neither a criminal code nor an environmental code. Criminal provisions in the UK are fragmented and spread throughout several statutes.13 Those statutes allow not only for criminal sanctioning, but as a result of recent reforms, also for civil sanctions to be imposed by regulatory agencies. Those would, in the terminology of other legal traditions, most likely be referred to as administrative fines.

crime being incorporated in environmental statutes: see Country report on Italy, 3. Milieu, ‘Evaluation Study on the Implementation of Directive 2008/99/EC on the Protection of the Environment through Criminal Law by Member States—National Report for Italy’ (Brussels, Milieu Ltd, 2015) available at: http://ec.europa.eu/justice/criminal/files/environment/nr_it_redacted_en.pdf. 5 

See Chapter 7 on Poland, section 6. See Chapter 7 on Poland, section 4. See Chapter 6 on Italy, sections 3.1.2 and 3.1.3. 8  Chapter 5 on Germany, section 3.1. 9  See Chapter 8 on Spain, section 4. 10  Chapter 4 on France, section 1. 11  Chapter 9 on Sweden, section 1. 12  Chapter 6 on Italy, section 2.2. 13  Chapter 10 on the UK, section 2. 6  7 

Evolution of Environmental Criminal Law 271 2.3. Results On the basis of this brief comparison, it is not possible to argue that the location of environmental criminal law would play a crucial role concerning the effectiveness of this particular instrument. Whether incorporation in a criminal code has a particular signalling effect (concerning the morally wrong character of the behaviour) may well depend on the culture of the particular Member State. Hence, one can certainly not argue that, for example, the UK system would be less effective for the mere fact of not having incorporated environmental crime in a criminal code. However, an issue to which the country chapters in this volume do refer is the fragmented character of some of the legislation and the corresponding criminal provisions. If those are fragmented over a wide variety of different statutes it may obviously be more difficult both for the actors concerned (the regulated) and the institutions that have to apply the provisions to locate them. Risks of inconsistencies and overlaps may also increase.

3.  HOW DOES CRIMINAL LAW PROTECT THE ENVIRONMENT?

3.1.  Ways of Protecting the Environment through Criminal Law Many of the country chapters refer to the fact that within environmental criminal law the difficulty is that environmental pollution is as such not absolutely prohibited. There is a strong interweaving of administrative and criminal law, since most environmental statutes reveal that authorities generally can only punish the lack of a permit, or a violation of environmental standards. This relationship between administrative and environmental criminal law is referred to as the administrative dependence of environmental criminal law. It follows the German concept of ‘Verwaltungsakzessorietät’,14 and means that the legal interest of the environment is in many legal systems not directly protected through the criminal law.15 Rather, the violation of administrative norms (for example a condition of a permit) will be punished. In other cases polluting acts are criminalised, but only to the extent that they are ‘unlawful’. The unlawfulness is then again interpreted as a violation of administrative regulations.16

14 

See on this notion Chapter 5 on Germany, section 3.2. is also referred to as ‘administrative accessoriness of penal law’ (M Prabhu, ‘General Report’ (1994) 65 International Review of Penal Law 708. 16  The result is that criminal liability will apply as soon as a conduct or activity takes place without permission (for example in non-compliance with regulations) and this irrespective of whether or not the statutorily protected interests have been actually harmed or endangered (Prabhu, ‘General Report’, n 15 above, 719). 15  It

272  Michael Faure It has been argued in the literature that this administrative dependence of environmental criminal law is, to some extent, unavoidable for a number of reasons.17 First of all, it has the advantage that it respects the lex certa principle, which follows from the principle of legality in criminal law. This holds that the legislator should prescribe the criminalised behaviour as precisely as possible. Where the legislator punishes violation of administrative norms (eg conditions in a permit) usually the criminalised behaviour will ex ante be relatively clear.18 However, one should also realise that referring to a permit may not always be the ideal way of criminalising pollution since permit conditions can be vague and ambiguous. Secondly, one can hold that, to some extent, a link with administrative law is indispensable since the alternative of simply criminalising ‘pollution’ would be too broad and vague. In this case (if such a broad definition were used) it would no longer be clear ex ante which behaviour is criminalised and which is not. For instance it would not be useful to criminalise ‘whoever may, by his actions, have contributed to climate change’. The impossibility of proving a causal link between certain behaviour and the criminalised result would render such a provision inapplicable in practice.19 Moreover, the formulation of obligations in administrative law may also contribute to making more precise the concept of unlawfulness in environmental criminal law. Indeed, one can hope that it is probably the administrative authority which is best suited to determine whether a specific form of pollution is lawful or not. Indeed, administrative authorities may be far better qualified (given their expertise and thus their information advantage) than the judge in a criminal court, to determine which type of pollution should be considered unlawful and which not. This information advantage is thus a strong argument in favour of some link between administrative and environmental criminal law. Fourthly, one can hold that retaining some relationship between administrative law and environmental criminal law is indispensable because of the principle of the ‘unity of the legal order’.20 Taken literally this would mean that a judge in a criminal court could only consider a behaviour unlawful when that behaviour has also been considered unlawful by administrative law. This may take the principle too far. However, there is some truth in the fact that a complete abandonment of

17  See, inter alia, G Heine, ‘Aspekten des Umweltstrafrechts im internationalen Vergleich’ (1986) Goltdammer’s Archiv für Strafrecht 67–88 and G Heine, ‘Zur Rolle des strafrechtlichen Umweltschutzes’ (1989) Zeitschrift für die gesamte Strafrechtswissenschaften 722–55 and G Heine, ‘Die Verwaltungsakzessorietät im deutschen Umweltstrafrecht unter Berücksichtigung des österreichischen Rechts. Aktuelle Probleme und Reformüberregungen’ (1991) Österreichische Juristen Zeitung 370–78. 18  See A De Nauw, Les métamorphoses administratives du droit pénal de l’entreprise (Ghent, Mys & Breesch, 1994) 85. 19  See in this respect more particularly the French scholar JH Robert, ‘Le problème de la responsabilité et des sanctions pénales en matière d’environnement’ (1994) 65 Revue Internationale de Droit Pénal 954–55. 20  G Heine, ‘Allemagne. Crimes against the environment’ (1994) 65 Revue Internationale de Droit Pénal 731–59.

Evolution of Environmental Criminal Law 273 the link between administrative and environmental criminal law would have, as a consequence, that in theory a certain form of pollution could be authorised under an administrative permit whereas the judge could later nevertheless punish an individual for the same type of pollution which was first allowed by administrative authorities. This would violate the idea of the unity of the legal order. It means, basically, that the legal order should show one face towards the citizens and the public at large. It cannot be right that when a certain behaviour is allowed by administrative authorities, another branch of government (the judge in a criminal court) would nevertheless prohibit the same behaviour. A consequence of the previous ideas is that probably some link between environmental criminal law and administrative law should be retained. The primary decision on the admissibility of certain polluting acts should remain with administrative authorities, of course within the limits set by law and respecting general principles of administrative law. There is, moreover, almost no legal system where the link between administrative law and environmental criminal law has been completely abandoned. From the citizen’s perspective it would also be strange if the judge in a criminal court inflicted a sanction for behaviour that was first allowed by administrative authorities. The consequence of these ideas is that the administrative dependence of environmental criminal law is apparently unavoidable. One way of improving environmental criminal law would be to criminalise unlawful emissions instead of merely criminalising the non-respect of administrative obligations. This system has the advantage that when administrative obligations are lacking, the emission remains unlawful and remedy by criminal law remains possible. However, this model does not necessarily work for environmental crime that does not consist of emissions, but rather, for example, illegal exports. Moreover, one could also consider abandoning completely the administrative dependence of environmental criminal law in serious cases, more particularly when pollution constitutes an endangerment of human life or health. In this case, one can hold that pollution should be criminalised even though it might be covered by a permit. The reason is that administrative law also holds that a permit is never a blank cheque allowing endangerments of human life or health. Hence, limiting administrative dependence to specific situations (where human life or health is not endangered) is in conformity with administrative law. Thus, this more limited form of administrative dependence of environmental criminal law would lead us towards a new model for protecting the environment through criminal law, whereby a variety of provisions would be introduced which have to be combined in order to reach optimal protection of the environment. As a result, different types of criminal provisions seem necessary to protect the environment, each with different goals.21 An adequate protection of the

21 

See also Heine and Meiberg, ‘Empfehlen sich Änderungen’, n 2 above, 120–30.

274  Michael Faure environment through criminal law seems to require a combination of different types of provisions. This has been argued in German legal doctrine concerning environmental criminal law.22 According to this doctrine, an effective environmental criminal law requires a combination of penalisation of the abstract endangerment of the environment and the concrete endangerment of the environment, as well as an independent crime for when pollution has serious consequences. In the following these notions will be briefly developed and the question will be asked to what extent some of these models can be found in the Member States examined in the country chapters.

3.2.  Abstract Endangerment 3.2.1. Importance Abstract endangerment refers to provisions whereby environmental pollution itself is not directly punished, but where prior administrative decisions are backed up through the criminal law. In these types of situations criminal law typically applies as soon as an administrative provision has been violated, even if no actual harm or threat of harm to the environment occurs. Abstract endangerment crimes in environmental criminal law usually focus on vindicating administrative values, although punishing such an administrative violation indirectly protects ecological values as well. The reason is that an entity that violates administrative rules is likely to harm the environment; moreover, following administrative rules allows the agency to monitor those entities to ensure that harm is less likely to occur.23 In some legal systems these abstract endangerments, for example violations of permit conditions, are not primarily punished under criminal law, but by means of fines under administrative law. 3.2.2. Countries Examples of abstract endangerment provisions can be found in many of the country chapters. A classic example is the operation without authorisation or licence of particular works or facilities. It can be found, for example, in the French environmental code.24 But also in Sweden where the environmental code refers to ‘unauthorised environmental activities’, which are equally criminalised.25

22 

For an overview, see more particularly Heine, ‘Allemagne’, n 20 above. further on the importance of punishing abstract endangerment Heine, ‘Die Verwaltungsakzessoriätät’, n 17 above, 370–78. Also Heine and Meinberg qualify abstract endangerment crimes as ‘necessary in principle’ (Heine and Meinberg, ‘Empfehlen sich Änderungen im strafrechtlichen Umweltschutz’, n 2 above, 36–37). 24  A new Article L173-1 implementing the Environmental Crime Directive criminalises the carrying out of particular activity without the required authorisation. See Chapter 4 on France, section 3. 25  See Chapter 9 on Sweden, section 3. 23  See

Evolution of Environmental Criminal Law 275 In Italy most environmental crimes are abstract endangerment crimes, as it is the failure to comply with environmental administrative provisions (eg permits, thresholds, reporting requirements) that is criminalised.26 However, although the Italian chapter and doctrine recognise that abstract endangerment offences may be, to some extent, unavoidable, the former also underlines that this model of environmental crime has equally been criticised.27 Among others, one problem is that with reference to administrative obligations, the offence might not always be clearly described. Another point is that it is often not the environment which is protected, but rather administrative interests.28 Many of the substantive environmental criminal law provisions that could be found in Italy in the environmental code were hence described as abstract endangerment offences.29 In Spain after the transposition of the Environmental Crime Directive (in 2010) the operation of a dangerous activity of a plant was criminalised. It should, however, be stressed that in all cases in Spain ‘crimes against the environment require the violation of administrative regulations’.30 Article 188 of the Polish penal code also punishes anyone who ‘in violation of the law’ builds or extends a facility that poses a threat to the environment.31 In many legal systems there is criticism of the administrative dependence of environmental criminal law. The French literature has often criticised the structure of environmental criminal provisions because of a strong administrative dependence of the criminal law.32 In Germany this dependence has been criticised as a ‘self-disempowerment’ of the legislature in matters of environmental crime.33 In Spain problems related to the administrative dependence of environmental criminal law are grouped under the term ‘administrative toleration of environmental crime’ and are considered highly problematic.34 3.2.3. Results Abstract endangerment provisions are certainly a useful element in a model environmental criminal law for the simple reason that the non-respect of administrative obligations needs to be sanctioned. A legal remedy has to be available to guarantee compliance with important administrative obligations. After all, those administrative duties aim to avoid environmental harm. However, in this model,

26 

See Chapter 6 on Italy, section 2.2. See Chapter 6 on Italy, section 3.1.1. See Chapter 6 on Italy, sections 2.2 and 3.1.1. 29  Note, however, that important changes took place as a result of legislative reforms in 2011 and 2015 implementing the Environmental Crime Directive (see Chapter 6 on Italy, sections 2.2, 3.1.2 and 3.1.3). 30  Chapter 8 on Spain, section 4.2. 31  See Chapter 7 on Poland, sections 5 and 6: environmental criminal liability in Poland is considered subsidiary in its character towards the administrative law. The main subject of protection is therefore the proper fulfilment of administrative duties. 32  See Chapter 4 on France, section 2.1. 33  See Chapter 5 on Germany, section 3.2. 34  See Chapter 8 on Spain, section 4.2. 27  28 

276  Michael Faure the link between the particular provision and environmental harm is rather remote. This hence does not call for too high a sanction and, in some cases, administrative remedies suffice. To some extent these violations of administrative duties can also be remedied through administrative sanctions and more particularly administrative fines.35 A problem with the strict dependence of criminal law upon administrative law that is typical for abstract endangerment crimes is that merely punishing the non-observance of administrative obligations may not suffice to provide an adequate protection to the environment. That is why many legal systems also incorporate different provisions into their environmental criminal law system, often punishing the concrete endangerment of the environment.

3.3.  Concrete Endangerment 3.3.1. Importance Concrete endangerment often refers to provisions that require both some form of unlawfulness (which is not always restricted to a violation of particular administrative acts) and an endangerment of the environment. The endangerment can often consist of an emission of a substance into the environment. In those cases, actual harm is usually not required, but merely a (presumed or actual) endangerment. This model goes further than the abstract endangerment model since in this case also a threat of harm (through an emission) needs to be proven. The endangerment of the environment is in this case concrete, differently from when a mere administrative duty is breached (and thus only an abstract endangerment to the environment is caused). Again, it would be logical to impose higher penalties for those crimes than for the abstract ones, since in this case, an endangerment to the environment is created. The administrative permit may still play an important role, but these provisions do not limit themselves to merely punishing pre-determined administrative duties. 3.3.2. Countries Examples of such crimes can again be found in most of the seven Member States discussed earlier. Interestingly it seems that the implementation of the Environmental Crime Directive has increased the number of concrete endangerment crimes. A typical example would be represented by provisions where unlawful emissions into the air, water or soil are criminalised when they create a threat to the environment.36 Interestingly in France it was suggested in the Rapport Lepage of 35 

See below section 5. This corresponds to Article 3(a) of Directive 2008/99 which explicitly refers to 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, the quality of soil or the quality of water, or to animals or plants. 36 

Evolution of Environmental Criminal Law 277 2008 to introduce a general environmental crime of ‘délinquence écologique’ which would punish such concrete endangerment.37 However, Ordinance N° 212-34, transposing the Environmental Crime Directive has only partially followed this recommendation. A general offence of endangerment of the environment was not introduced.38 However, the Environmental Code does contain several concrete endangerment crimes. For example Article L226-9 of the Environmental Code punishes the emission of pollutant substances constituting atmospheric pollution into the air.39 Article L216-6 of the Environmental Code moreover directly punishes the damage to the environment in case where specific emissions have killed or damaged fish.40 In Germany, many provisions concerning unlawful emissions are incorporated into the chapter on environmental crimes of the criminal code (Strafgesetzbuch). This is, for example, the case for water pollution, punished under § 324 StGB, which punishes a person who unlawfully pollutes a body of water or detrimentally alters its qualities.41 Although formally § 324 requires a consequence (eg damage to a body of water), also endangerments are included. Any detrimental alteration of water quality already qualifies as ‘damage’.42 This raises the interesting question whether § 324 StGB is sufficient to transpose the Directive, which penalises already the likelihood of damage. In Spain the general environmental crime Article 325 in the Spanish Criminal Code (Código Penal) was reformed in 2015 to transpose the Environmental Crime Directive. It added a basic crime that only requires conduct which causes or is likely to cause substantial damage to the quality of air, soil or water, or to animals or plants.43 In Sweden after a legislative change in 2006 amending the environmental code, the burden of proof was lowered: unlawful discharges of substances that may be dangerous to human health are now equally penalised in section 29:1 of the environmental code.44 In Poland, Article 182 of the penal code punishes in § 1 a person who pollutes water, air or soil with an ionising substance or radiation in such a quantity or form that it could endanger the life or health of, or cause considerable destruction to, the plant and animal world. § 2 decreases the sanction if the act has been committed unintentionally.45 In Italy the transposition of the Directive took place in phases. In a first phase two misdemeanours were introduced (in 2011) which did not introduce felonies of concrete endangerment or substantial damage to the environment, as the Environmental Crime Directive nevertheless requires.46 That changed, however, with Law No 68/2015 providing a new chapter in the Criminal

37 

See Chapter 4 on France, section 2.1. Chapter 4 on France, section 6. 39  Chapter 4 on France, section 3.1. 40  Chapter 4 on France, section 3.1. 41  Chapter 5 on Germany, section 3.3. 42 Ibid. 43  See Chapter 8 on Spain, section 4.1. 44  See Chapter 9 on Sweden, section 3. 45  See Chapter 7 on Poland, section 10. 46  See Chapter 8 on Italy, section 3.1.2. 38 

278  Michael Faure Code with newly codified offences like environmental pollution and environmental disasters and punishing (by a reduced sentence compared to the latter) whoever causes a danger of environmental pollution or disaster.47 Nevertheless, an unlawfulness requirement still has to be met (abusivamente) which expresses the administrative dependence of the newly introduced felonies.48 3.3.3. Results Of course, the mere fact that examples of concrete endangerment provisions can be provided, neither means that all provisions, in the Member States discussed, are effective formulations, nor that all environmental components are protected in an adequate manner. It is, however, generally important to keep in mind that the penalisation of an unlawful concrete endangerment of the environment (through emissions) has the major advantage that the legislator does not merely focus (like with abstract endangerment offences) on the breach of administrative obligations. The potential scope of the protection awarded through the criminal law is hence larger under these provisions. Some provisions may, moreover, also focus on types of environmental harm related not to emissions but instead, for example, to overusing resources or ‘nonpoint source pollution’. It is striking that precisely because the Environmental Crime Directive contains specific concrete endangerment crimes,49 in this respect the Environmental Crime Directive had an important influence, at least on the environmental criminal law of those Member States that did not yet have concrete endangerment crimes, for example like Spain. In other cases it led to a reformulation or sharpening of the criminal provisions, like for example in France.

3.4.  Autonomous Crime 3.4.1. Importance A third type of criminal provision punishes some cases of very serious pollution directly. It usually consists of cases where pollution would have serious consequences for the health of persons and/or a significant risk of injuries to the population.50 What makes this an autonomous crime is that there is no linkage between criminal law and prior administrative decisions in this model. Under this type of provision, serious environmental pollution can be punished even if the defendant has complied with the conditions of the licence. The ‘permit shield’ no

47 

See Chapter 6 on Italy, section 3.1.3. Chapter 6 on Italy, section 2.2. For an analysis of the typology of crimes in the Directive see M Faure, ‘The Environmental Crime Directive 2008/99/EC’ (2011) 1 European Journal of Consumer Law 193–208. 50  See also Heine and Meinberg, ‘Empfehlen sich Änderungen’, n 2 above, 128–30. 48  49 

Evolution of Environmental Criminal Law 279 longer applies. The justification to break the administrative link in those cases is that the environmental harm at issue is of a magnitude beyond that contemplated by the administrative rules that the entity complied with. Since there will be more extreme harm, more severe punishments will usually be indicated. 3.4.2. Countries Some Member States do have examples of those autonomous crimes. A classic one, often mentioned in legal doctrine, is § 330(a) StGB related to the causing of a severe danger by releasing poison.51 However, in this case it is the serious endangerment of the life or health of persons that is criminalised. The provision takes therefore an anthropocentric approach, and is also not related to the Environmental Crime Directive. Many examples of autonomous crimes can be found in the Spanish Criminal Code, for example Article 328.1 concerning deposits or landfills that are toxic or hazardous and may seriously damage the balance of natural systems or the health of individuals, Article 328.3 (endangering the life, integrity or health of persons or the quality of the air, ground or water, or animals or plants through waste), Article 330 (seriously damaging any of the elements of a protected natural space) and Article 343.1 (endangering the life, integrity, health or assets of one or several persons through emissions or releases). Most of those crimes were introduced in the Spanish Criminal Code in 2010 and the formulation was again changed in 2015 to conform to the Environmental Crime Directive.52 France has an independent crime of ‘ecological terrorism’ in Article 421-2. However, it aims at punishing terrorism acts, rather than pollution. Generally the new French Criminal Code does not punish damage to the environment independently.53 In Italy, as already mentioned, most provisions constitute abstract endangerment offences. It is argued that the interest protected by those provisions is not the environment per se, but the interest of the public administration in governing the territory.54 However, the new Law No 68/2015 introduced interesting provisions transposing the Environmental Crime Directive, such as the environmental disaster provision in Article 452quater of the criminal code. But also in this provision unlawfulness is still required as a result of which there is no truly independent crime.55 3.4.3. Results An autonomous crime for serious pollution is important. Such a provision can for example be found in the Council of Europe Convention for the protection of the

51 

See Heine, ‘Aspekten des Umweltstrafrechts’, n 17 above, 83. See Chapter 8 on Spain, section 4.1. Chapter 4 on France, section 2.1. 54  Chapter 6 on Italy, section 2.2. 55  See Chapter 6 on Italy, section 3.1.3. 52  53 

280  Michael Faure environment through criminal law.56 The Environmental Crime Directive does not, however, contain autonomous crimes. It seems equally important to have provisions focusing on cases of serious pollution where a concrete danger to human health is created. The autonomous crime can signal to the business community that, in specific circumstances, the ‘permit shield’ will not provide any protection; this would in turn represent strong incentives to avoid those kind of polluting acts. Still, one can notice that there are only a very few cases where truly autonomous crimes can be found in Member States’ legislation. It is also no surprise that this has not been changed by the implementation of the Environmental Crime Directive. The simple reason is that also the Environmental Crime Directive does not contain any autonomous crime, since all offences still rely on a requirement of unlawfulness.57

4.  CRIMINAL LIABILITY RELATED TO ORGANISATIONS

An important question is of course how environmental crime relates to particular actors. This consists, on the one hand, of the question whether the criminal law at the domestic level can also be applied to corporate entities. Serious environmental crime is in some cases also connected to organised crime. That raises the question whether there are specific provisions concerning organised (environmental) crime. The topic also has its relevance in connection to the Environmental Crime Directive, as Article 6 of the Directive provides that Member States shall ensure that legal persons can be held liable for the criminal offences committed in the Directive. Article 7, moreover, provides that Member States shall take the necessary measures to ensure that legal persons held liable pursuant to Article 6 are punishable by effective, proportionate and dissuasive penalties. The latter should, however, not necessarily be criminal in nature.

4.1.  Corporate Criminal Liability 4.1.1. Importance The importance of the possibility to address criminal enforcement also against corporations has been often stressed in the literature.58 If there is no corporate liability, prosecutors (and other enforcers) are either forced to look for the specific 56  Article 2(a) of the Council of Europe Convention on the protection of the environment through criminal law of 4 November 1998. This convention, however, never entered into force. 57  Faure, ‘The Environmental Crime Directive 2008/99/EC’, n 49 above. 58  See the contributions to A Eser, G Heine and B Huber (eds), Criminal Responsibility of Legal and Collective Entities. International Colloquium Berlin 1998 (Freiburg im Breisgau, Max Planck Institute for Foreign and International Criminal Law, 1999).

Evolution of Environmental Criminal Law 281 natural persons that committed the environmental crime (in the absence of which no prosecution would be possible), or would automatically charge individuals having a particular function (like a director or corporate officer) which may violate the principle of guilt in criminal law. For that reason it is important to have a system in place where criminal enforcement can also be applied against corporations. In 1994 the general report to the Association Internationale de Droit Penal on environmental criminal law still held that the majority of continental European countries adhere to the principle of personal liability and that as a result corporations cannot commit a crime.59 A lot has changed since 1994, as many (European) countries have introduced corporate criminal liability.60 Member States’ points of view differ, however, as to whether the nature of that corporate liability should be criminal or administrative. Indeed, many Member States have developed site systems, so-called administrative penal law (as an alternative to criminal corporate liability) to impose sanctions on enterprises.61 More particularly, as a result of strong opposition in legal doctrine Germany (and a few others under its influence) has always opposed criminal liability of legal entities. Although this distinction may dogmatically be very important, as a practical matter, the most important question is whether it is possible at all to address enforcement actions to the corporation, no matter what label one attaches to the particular penalty that may be imposed (criminal or administrative). A second question of importance is whether there is an ‘automatic’ liability of the corporation. That means that the corporate entity can be held liable in an autonomous way without the need to identify the natural persons through which corporations have acted. Under such an autonomous liability (which obviously substantially facilitates enforcement) actions against the corporate actor are possible even if no natural person can be identified through which the corporation acted. The next question is whether the corporation can be held liable for all crimes or whether the legislation explicitly provides that the particular criminal provision can also be enforced against a corporation. Obviously systems where it is assumed that all crimes can be committed by corporations are easier to apply than systems with a numerus clausus. The question also arises whether provisions on corporate liability extend to all corporations or whether particular legal entities will be excluded. That question especially arises as far as public authorities are concerned. Finally it may be clear that corporate criminal liability should not, in principle, exclude liability of natural persons that have equally contributed to the committed environmental crime. In the absence of the possibility to still hold natural persons liable there would be a danger that individuals would create separate legal entities 59 

Prabhu, ‘General Report’, n 15 above, 715. For an overview see inter alia M Faure and G Heine, Criminal Enforcement of Environmental Law in the European Union (The Hague, Kluwer Law International, 2005) 41–44. 61  Faure and Heine, Criminal Enforcement of Environmental Law, n 60 above, 42–43. 60 

282  Michael Faure in which the environmental harmful activities would be placed in order to escape the clutches of the law. Ideally enforcement should hence be made possible against the corporation as well as against its officers (or other employees who have contributed to the crime according to the rules of attribution of criminal liability in national law). 4.1.2. Countries As the table below shows, there is some divergence between the examined Member States, as some accept criminal liability of corporations, whereas others do not. However, such differences may not be that relevant in practice, since even countries that reject corporate criminal liability have other systems in place that effectively allow the imposition of similar penalties as under a criminal liability regime. As far as the other features of the corporate liability regime are concerned, the table shows that the differences may not be that substantial and thus show a large degree of convergence. This topic is of great importance for the enforcement of environmental crime, but obviously goes beyond that area as well. Most legal systems have introduced (criminal) liability of legal entities irrespective of environmental crime. This table merits few comments. As far as the first issue is concerned, namely whether the liability is of a criminal or an administrative nature, one can notice that France and Spain unequivocally answer this in the affirmative, whereas it seems to be debated in Sweden. In Italy, where a system of ‘administrative liability’ exists, case law and the majority of the doctrine consider this liability to be formally administrative but substantially criminal.62 Germany denies the criminal liability, but accepts an administrative responsibility of corporations.63 Germany still takes the formal ‘societas delinquere non potest’ position,64 but there seems to be some movement in the sense that criminal liability of companies is at least debated.65 Germany has, on the other hand, a system of administrative liability in the Ordnungswidrigkeitengesetz, which allows the imposition of substantial fines (up to €10 million).66 The systems also differ with respect to the question for which crimes corporate liability is possible. In Italy criminal liability only arises for the specifically listed offences.67 This also applies to Poland where the Act provides a list of

62 

See Chapter 6 on Italy, section 2.1. Obviously in legal systems where corporations can be held criminally liable, there may be administrative liability as well. The point we want to discuss here is whether the principle liability of the corporation is of an administrative or a criminal nature. 64  See Chapter 5 on Germany, section 5.3. 65  An OECD Report apparently raised doubts on whether the penalties against legal entities in Germany were effective, proportionate and dissuasive as required by Article 7 of the Environmental Crime Directive. 66  Chapter 5 on Germany, section 5.3. 67  See Chapter 6 on Italy, sections 2.1, 3.1.2 and 3.1.3. 63 

Table 2:  Corporate liability for environmental crime Administrative Responsibility

Autonomous responsibility

All crimes?

France

Yes

—

For offence committed on their account by their organs/representatives

Yes

Germany

No

Yes

If leading representative commits a crime/ administrative penal offence

Yes

Italy

No

Yes

If a crime is committed by an employee or subordinate natural person for the benefit of the corporation, the latter can be liable even if the offender has not been identified or is not eligible

Numerus clausus; in 2011 extended to several environmental crimes

Poland

Yes

Yes

No

All entities? —— No liability of State —— No liability of local authority when in course of activities

Cumulative with natural persons? Yes

Yes

No liability of: —— state —— local public authorities —— other not economic public entities —— entities carrying out functions of constitutional relevance

List of prohibited No liability of: acts (Numerus —— State clausus) in 2011 —— Local government extended as a entities result of ECD transposition

Yes

Yes

(continued)

Evolution of Environmental Criminal Law 283

Criminal responsibility

Spain Sweden UK

Criminal responsibility

Administrative Responsibility

Autonomous responsibility

All crimes?

All entities?

Cumulative with natural persons?

Yes

Yes

Yes

Numerus clausus

Not local and government authority

Yes

Yes, but debated

—

Yes

Yes

Yes

Yes, if entrepreneur If provided in legislation

Personal liability possible, most prosecutions not against director

284  Michael Faure

Table 2: (Continued)

Evolution of Environmental Criminal Law 285 prohibited acts committed by an individual which trigger the liability of the corporate entity. Some environmental crimes are included in the list.68 The same is true in Spain where a system of numerus clausus applies.69 In Spain the crimes against the environment are included in the list of crimes for which legal entities can be held liable, thus fulfilling the requirements of the Environmental Crime Directive.70 However, still environmental criminal liability is not provided for all environmental crime. In the United Kingdom the general rule for corporate liability is that when companies commit (environmental) crimes prosecution can be brought against them.71 Many countries exclude particular public authorities from the liability of legal entities. This is for example the case for the state in France, and also for local authorities if they did not commit the offences in the course of their activities.72 A similar exclusion also applies in Spain.73 Poland excludes liability of the state treasury or local government entities.74 Sweden has the possibility to apply a (non) criminal corporate fine to legal entities, which can equally be imposed on public authorities.75 Usually accumulation with the liability of natural persons is possible. This is expressly the case in France.76 4.1.3. Results This brief overview shows that by and large the systems analysed in the country chapters have ample possibilities to hold corporate actors liable. Although this seems dogmatically of great importance, in practice the question whether this liability is constructed as criminal or administrative does not seem to matter that much. Some legal systems only deduce the corporate responsibility from actions of (senior) individuals within the corporation. In that sense in those legal systems the corporate liability is not ‘autonomous’. An autonomous liability, whereby there is no need to deduce the corporate liability from actions of individuals within the corporation is clearly to be preferred. The same is true for legal systems where criminal responsibility can in principle apply to all crimes, rather than systems where a numerus clausus applies, thus excluding particular corporations from liability.

68 

See Chapter 7 on Poland, section 3. See Chapter 8 on Spain, section 6.2. 70 Ibid. 71  See Chapter 10 on the UK, section 2.7. 72  See Chapter 4 on France, section 2.2.7. 73  See Chapter 8 on Spain, section 6.2: governments of Autonomous Communities and public administrations cannot be responsible for committing environmental crimes. 74  See Chapter 7 on Poland, section 3. 75  See Chapter 9 on Sweden, section 2.2. 76  See Chapter 4 on France, section 2.2.7. 69 

286  Michael Faure 4.2.  Organised Crime 4.2.1. Importance Increasing interest in organised crime has recently arisen. Within the discussion of the actors involved in environmental crime, the question could be asked to what extent organised crime is involved in environmental crime. Moreover, to the extent that this is the case, one could equally ask whether it is necessary to take this into account at the legislative level. 4.2.2. Countries Again, as was the case with corporate liability, questions concerning the regulation of organised crime are obviously not limited to environmental crime, but have a more general character. From the country chapters it appears that organised crime, at least at a regulatory level, does not play a major role in most of the legal systems as far as environmental crime is concerned (with the noticeable exception of Italy). Countries usually do not provide specific definitions. There are, however, in many (if not most) legal systems particular legal rules concerning the participation in a criminal organisation. Participation in such an organisation is explicitly criminalised, particularly in France,77 Poland,78 Italy,79 and Spain.80 However, in most of those countries the participation in a criminal organisation is generally criminalised and not specifically for environmental crime. One implication of the fact that particular environmental crimes could also be considered as organised crime (in the sense that they would fall under the specific provisions criminalising the participation in a criminal organisation) is that in that particular case different procedures would apply, for example allowing telephone tapping and undercover agents. The only country where a clear link between legislation on organised crime and that on environmental crime is expressly made is Italy. In addition to the crime of organised activities concerning the illegal trafficking of waste (Article 260 of the Environmental Code)—an offence that refers to ‘whoever’ as the perpetrator but that in practice was used to address links between organised crime and environmental crime and is dealt with by the districts’ anti-mafia bureau81—there were also introduced, in 2015, aggravating circumstances for the participation in a criminal organisation or a mafia-type criminal organisation aimed at committing felonies against the environment.82 It could also be mentioned that in France 77  See Chapter 4 on France, section 3.2: French law provides for an aggravation of the penalties when the conduct described therein is committed by an organised group (bandes organisées). 78  See Chapter 7 on Poland, section 2.1. 79  See Chapter 6 on Italy, section 3.1.3. 80  See Chapter 8 on Spain, section 4.3. 81  See Chapter 6 on Italy, sections 3.1.3 and 6. 82  See Chapter 6 on Italy, sections 3.1.3 and 3.2.

Evolution of Environmental Criminal Law 287 particular offences are provided concerning protected species and waste when committed by organised groups.83 This concerns the so-called ‘bandes organisées’ which would deal with illegal waste trafficking, equally leading to a special regime of investigation. 4.2.3. Results It can be concluded that there are only a few explicit references to organised crime in the legislation concerning environmental crime. However, the substantive laws dealing with organised crime (more particularly, participation in a criminal organisation) can in some circumstances also be applied to organisations engaging in environmental crime. In that case the specific procedures that may be applied to investigate organised crime can be applied to environmental crime as well. It is, however, clear that the literature and legislation concerning organised crime primarily envisage types of crimes other than environmental crime. But the mere fact that the legislation on organised crime has usually not been drafted taking into account environmental crime does not seem to be a major obstacle to an effective enforcement of provisions against organised environmental crime. Note, however, the specific legislative changes which took place in France in 2016, providing for an aggravation of the penalties when specific conduct (more particularly trafficking of protected animal and plant species) is committed in an organised manner.84 As mentioned above, ad hoc aggravating circumstances were introduced in Italy in 2015; and the chapter on Italy holds that the specific provision concerning ‘organised activities for the illegal trafficking of waste’ ‘proved to be very effective at national level and could represent a significant model at the European level’.85 Also the Spanish chapter points to the fact that serious forms of (environmental) organised crime also often take place in connection with corruption, which therefore also deserves special attention.86

5. PROCEDURE

Of course the Environmental Crime Directive itself does not explicitly address procedural issues. Yet, the way in which the enforcement of environmental criminal law is organised may be crucially important in determining the ultimate effectiveness of the enforcement system. As will be shown, whereas one can certainly see some convergence (as a result, inter alia, of the Environmental Crime Directive) as far as the substantive provisions are concerned, there is probably still

83 See Chapter 4 on France, section 3.2: this provision has been recently modified by Law No 216-1087, increasing the sanctions. 84  Chapter 4 on France, section 3.2. 85  Chapter 6 on Italy, section 6. 86  See Chapter 8 on Spain, sections 4.3 and 7.

288  Michael Faure larger divergence in the procedural area, also because this is a topic not addressed by any harmonisation effort. In turn attention will briefly be focused on questions of who investigates environmental crime (section 5.1), the role of the prosecutor (section 5.2), the role of the courts (section 5.3) and administrative enforcement (section 5.4). Again, it is neither necessary nor useful to restate the main findings from the country chapters; this comparative chapter will try to highlight main elements of convergence or divergence between the systems.

5.1.  Who Investigates? 5.1.1. Importance Whereas there is probably still a fair amount of convergence as far as the instruments and actors were concerned, this is definitely less the case when addressing the institutions that are competent to investigate environmental crime. The question of who acts to start enforcement actions and how enforcement actions are initiated is obviously crucial to determine the overall effectiveness of an environmental enforcement regime. One important element to be taken into account is that environmental crime is not always easy to detect.87 In some instances detection may be possible at low cost, for example when a small enterprise burns waste, causing fumes to neighbours. In that simple example, neighbours will directly suffer disturbance from the (presumed) violation and will hence have incentives to either take action themselves88 or to report the violation to the competent authorities. With this type of easily visible and detectable environmental crime a reactive approach, ie reacting to the crime after its occurrence, may suffice. In this particular example there may be incentives for the victims that directly suffer harm to report the crime, or officials could themselves ex post discover the crime and take enforcement actions. However, an important feature of environmental crime is that to a large extent environmental crime is ‘a victimless crime’. This means that there is often not one identifiable individual victim that will suffer direct harm (like in the case of smoke causing a nuisance), but it may rather be an entire community that suffers harm, for example when a large factory emits noxious gases containing substances that potentially endanger human health. The crime in that particular case is in fact not ‘victimless’ but the number of victims is potentially so large that no individual victim may have a sufficient incentive to start enforcement action. It is known as the ‘rational apathy’ or ‘rational disinterest’ problem.89 A first problem is hence 87 

See Faure and Heine, Criminal Enforcement of Environmental Law, n 60 above, 10–11 and 46–47. In some legal systems victims can act as private enforcers and hence bring the case themselves to the criminal court or join proceedings in the criminal court. 89 For details see HB Schäfer, ‘The Bundling of Similar Interests in Litigation. The Incentives for Class Actions and Legal Actions Taken by Associations’ (2000) 9 European Journal of Law and Economics 183–213. 88 

Evolution of Environmental Criminal Law 289 that environmental crime may have such a wide-spread character that a reactive approach may not suffice, since individuals will lack sufficient incentives to report violations to the authorities. A second problem resulting from this example is that it may often require high information costs to detect environmental crime in the first place. Detecting smoke causing a nuisance may be relatively easy; detecting that emissions from a factory in an industrial zone exceed the standards in a permit is likely to require a detailed analysis and highly technical skills. Discovering environmental crime may hence be highly costly and complicated, certainly for the public at large, but even for average law enforcers.90 Those examples lead to two important conclusions as far as the effectiveness of a monitoring system for environmental crime is concerned: 1) given the often hidden nature of environmental crime a merely reactive approach to environmental crime may not suffice. Environmental crime needs proactive monitoring, since otherwise insufficient detection will take place; 2) detecting environmental crime requires highly technical skills. That implies that capacity building is of utmost importance and that specialisation will be required in order to detect environmental crime. For that reason one can, generally, expect better detection when environmental monitoring is placed in the hands of specialised environmental agencies that are totally specialised in and devoted to detecting environmental crime. The likelihood that police forces with a general competence would have sufficient technical knowledge and capacity to adequately detect environmental crime is substantially lower. 5.1.2. Countries As already mentioned, the countries show quite some divergence as far as monitoring powers are concerned. Most countries have both specialised inspectors (of administrative authorities) and the (regular) police, but there are quite some differences regarding the question of which of them plays the most important role. France has a mixed system where the police, environmental inspectors and other agents all play a role.91 In Germany the crucial role in investigating environmental crime is played by the public prosecutor.92 The prosecutor can obtain information on committed crimes mainly via two routes: a) individuals may file a report; or b) environmental authorities may do so. Environmental (administrative) authorities have, more­ over, detailed proactive monitoring instruments at their disposal.93 The problem is, however, as mentioned in the German chapter, that both the public and environmental authorities are reluctant to report environmental crime. Individuals

90  See M Faure, AI Ogus and N Philipsen, ‘Curbing Consumer Financial Losses: The Economics of Regulatory Enforcement’ (2009) 31 Law & Policy 168–70. 91  Chapter 4 on France, section 4.3. 92  Chapter 5 on Germany, section 4.2. 93  Chapter 5 on Germany, section 4.1.

290  Michael Faure underreport due to the rational disinterest problem, mentioned above. It is striking, however, that administrative authorities are also reluctant, or unable, to report, either because they prefer to use a cooperation strategy towards compliance, or due to a lack of resources to carry out regular controls that lead to relevant information.94 Most information on committed crimes is provided to the prosecutor by individuals via the police. In some federal States (like Berlin) the State criminal police office (Landeskriminalamt) has a special division dealing with environmental crimes.95 Also Italy relies largely on the police, who drafts most of the notices of violation. There is a Comando Unità per la Tutela Forestale, Ambientale e Agroalimentare dei Carabinieri, deemed to be the biggest specialised environmental police force in Europe.96 In Poland, environmental crime is detected by the officials from the directorate/inspectorate for environmental protection. Reporting is also possible by others who have a duty to report. An important role in that respect is played by the inspector of environmental protection.97 Spain relies largely on specialised police services (in some cases of the Autonomous Communities) to investigate environmental crime. For example the nature protection service (SEPRONA) of the civil guard carries out both proactive and ex post monitoring.98 Sweden relies both on the (local or regional) police, but mostly on environmental inspection authorities. 80 per cent of environmental crime in Sweden is reported to the prosecutors by these supervisory administrative agencies.99 A special feature of the Swedish model is a large reliance on self-responsibility of operators to report. Industry is formally obliged to self-report violations.100 As will, however, be highlighted below, there is increasing criticism of this self-reporting model as practitioners fear that agencies are then engaged rather in controlling the adequacy of the self-reporting than in controlling whether violations have actually taken place.101 The United Kingdom again shows a mixed model with large investigative powers vested in the administrative authorities within the Environment Agency for England and Wales and the Scottish Environment Protection Agency (SEPA) for Scotland.102 Those administrative authorities largely engage in proactive monitoring. However, the police are also engaged in investigations, but are rather reactive. For example, as far as wildlife crime is concerned the police National Wildlife Crime Unit (NWCU) investigates.103 94 Ibid. 95 

Chapter 5 on Germany, section 4.2. Chapter 6 on Italy, section 4.2. 97  Chapter 7 on Poland, section 9. There is a duty to report environmental crime to the police or the public prosecutor. 98  See Chapter 8 on Spain, section 5.2. 99  See Chapter 9 on Sweden, section 4.4. 100 Ibid. 101  Chapter 9 on Sweden, section 5.2. 102  Chapter 10 on the UK, section 4.1. 103 Ibid. 96 

Evolution of Environmental Criminal Law 291 5.1.3. Results This overview of monitoring powers in the various countries shows quite a bit of divergence, which is obviously to a large degree due to cultural differences and ‘path dependency’—referring to the fact that there may already have been established traditions concerning, eg, the division of labour between the police/ judicial authorities, on the one hand, and the inspection/environmental authorities on the other. One difficulty is that, as was clearly shown in the German case, administrative inspection authorities often engage in monitoring, not primarily with a view to engaging in judicial proceedings, but rather with a view to achieving compliance via administrative enforcement. In other countries (such as for example in France and in Sweden) the administrative authorities of the environmental inspectorate are rather seen as instruments in the judicial enforcement chain. That also explains the reluctance in Germany of administrative authorities to report violations to the prosecutor, since they primarily want to achieve compliance via a cooperative strategy and wish to avoid repression via the public prosecutor. It is also striking that, although most countries engage both the police and special inspection forces in monitoring environmental crime, the emphasis may differ from country to country. Italy and Spain rely more strongly on the police, whereas France and Sweden rely more strongly on specialised administrative authorities for the detection of environmental crime. Poland shows a mixed picture. It is obviously not possible to argue that any one of the systems (largely relying on the police/supervisory inspection authorities) is better than the other, also since this is strongly related to particular traditions in a country. As was mentioned in the introduction to this section, given the complex and highly technical nature of environmental crime, one would assume a preference for specialised administrative authorities which may have higher capacity and knowledge of the technical features of environmental crime. The general police are unlikely to be equipped for adequately detecting environmental crime via proactive monitoring. However, the countries that largely rely on the police for proactive monitoring (Italy and Spain) have solved this by allocating monitoring of environmental crime to specialised police forces, which arguably remedies the capacity issue. One potential problem with inspection authorities is that, particularly where they have a large amount of post-detection discretion (whether or not to initiate enforcement action), this discretion could be abused (especially in situations of a collusive relationship with industry). That is why in some countries there is an obligation to report every crime to the public prosecutor. The role of the public prosecutor in reviewing the decisions of the authority increases accountability and may guarantee that postdetection discretion is exercised in the public interest. Given the central role of the public prosecutor in the post-detection process we will now turn to the various decisions that the prosecutor in theory could take.

292  Michael Faure 5.2.  Role of the Prosecutor 5.2.1. Importance As was mentioned before, most of the cases of environmental crime discovered will, through the judicial route, end up with the prosecutor. However, some cases may, at least in some jurisdictions, also be handled in different ways. In some countries inspection authorities can deal with violations themselves via administrative sanctions or via administrative fines.104 But, even in that case many legal systems require an intervention of the public prosecutor to verify the imposition of an administrative fine. In other systems, where the violations have been decriminalised (or were never criminalised in the first place), authorities are allowed to deal with administrative penal offences themselves. In many cases after the detection of a crime the case will be reported to the prosecutor. This leads to the question whether the prosecutor should in theory prosecute all crime (often referred to as the legality principle)105 or whether an amount of discretion on the side of the prosecutor is allowed in deciding whether to prosecute or not (often referred to as the opportunity principle). This question does not only arise for the prosecutor, but equally when administrative agencies have to take the decision on whether to impose administrative sanctions or not. This question of discretion is strongly linked to a debate in the enforcement literature between advocates of the deterrence model (which would limit any discretion) and advocates of a cooperative enforcement style (which relies on negotiations between the enforcement agency and the regulated and for which, therefore, discretion is important). Many scholars point to the risk of capture106 and collusion arising from a cooperation strategy,107 but a pure deterrence approach, which eliminates all discretion would not be cost-effective.108 The main reason to allow discretion (for both agencies and prosecutors) is related to the high costs of bringing a case to the court.109 The importance of allowing discretion (and hence not forcing enforcement action for every violation) is that there may be trivial contraventions for which enforcement is simply not cost-effective. The literature has indicated that taking formal enforcement actions, even in trivial cases, may motivate operators to initiate (also costly) appeals against decisions, given the ‘indignation costs’

104 

See below section 5.4. Note that this does not concern the legality of the criminalisation (nullum crimen sine lege), but the fact that the prosecutor is forced to prosecute every crime that is reported to him. 106  Capturing refers to the risk that regulatory authorities or inspection agencies may be under a too strong influence of industrial operators and in that sense be ‘captured’ by them. 107  See for example PJ May and S Winter, ‘Regulatory Enforcement and Compliance: Examining the Danish Agro-Environmental Policy’ (1999) 18 Journal of Policy Analysis and Management 625–51. 108  See K Hawkins, Environment and Enforcement. Regulation and the Social Definition of Pollution (Oxford, Clarendon Press, 1984). 109  See A Ogus and C Abbot, ‘Sanctions for Pollution: Do We Have the Right Regime?’ (2002) 13 Journal of Environmental Law 293. 105 

Evolution of Environmental Criminal Law 293 of formal enforcement for trivial violations.110 Moreover, dismissing a case can often generate significant benefits in terms of educating operators and could thus indirectly improve further compliance. Criminological research has shown that many violations of environmental regulation do not take place wilfully, but rather as a result of a lack of information or knowledge.111 Environmental violations are often the result of lack of information and ignorance, rather than of a rationally calculating and deliberate decision to violate the law. Discretion on whether to enforce or not could then lead to learning and to increased compliance and would avoid the high costs of formal enforcement action (especially through criminal prosecution). From this it follows that it is important to allow sufficient discretion to prosecutors (or agencies in the framework of administrative enforcement) to decide whether an enforcement action is cost-effective in the particular case. Prosecutors have at their disposal a wide range of other alternatives that could lead firms to comply in a cost-effective manner. A second general point related to this is that prosecutors of course need to be adequately equipped in order to have the opportunity and capacity to make those cost-effective decisions. As was already repeatedly mentioned, environmental cases may be quite complex and technical and may therefore also require specialised knowledge from prosecutors. In case of a lack of specialisation there is a substantial danger that sufficient priority will not be given to environmental cases. In that situation, dismissals could be the result of a lack of capacity and technical knowledge rather than of a well-reasoned decision concerning the cost-effectiveness of formal enforcement actions. In sum, one can expect the functioning of the prosecutorial service to be more effective when (1) there is some degree of specialisation on environmental issues and (2) there is an degree of discretion awarded to the prosecutor to decide on the cost-effectiveness of formal enforcement action (like prosecution) in the light of available alternatives. 5.2.2. Countries 5.2.2.1.  Legality versus Opportunity Principle Most of the legal systems discussed in the country chapters seem by and large to correspond to those starting points. On paper there are large differences between the legal systems. Five legal systems (Germany, Italy, Poland, Spain and ­Sweden) formally follow the legality principle of prosecution, implying that there is a duty for the prosecutor to prosecute every case. Only two of the examined

110  See E Bardach and RA Kagan, Going by the Book: The Problem of Regulatory Unreasonableness (Philadelphia PA, Temple University Press, 1982). 111  See generally W Huisman, Tussen winst en moraal. Achtergronden van regelnaleving en regelovertreding door ondernemingen (The Hague, Boom Juridische uitgevers, 2001) and W Huisman and HG van de Bunt, ‘Sancties, organisatie criminaliteit en milieudelicten’ (1997) Ars Aequi 684–97.

294  Michael Faure countries (France and the United Kingdom) follow the opportunity principle and allow discretion of the prosecutor in bringing formal enforcement actions. However, although the starting points are different, the practical results do not necessarily greatly differ. The main reason is that even in the legal systems where there is formally an obligation to prosecute, de facto a large number of exceptions exist that equally provide room for prosecutorial discretion. Turning first to the legal systems that follow the opportunity principle (France and the United Kingdom) it is clear that they sketch a wide variety of postdetection options for the prosecutor. For example in France the prosecutor has the following options:112 —— —— —— —— —— ——

To initiate a prosecution; To implement alternative proceedings to a prosecution; To dismiss the case; To engage in mediation securing reparation for the damage; To apply plea bargaining; A transaction.

Also in the United Kingdom, prosecution is at the discretion of the various prosecutors. A typical feature of the United Kingdom system is that prosecution cannot only be brought by the Crown Prosecution Service (CPS), but also by various regional authorities, local authorities and public authorities.113 However, in practice 90 per cent of all non-local-authority prosecutions for environmental crime are brought by the Environment Agency.114 Criteria have been developed for prosecution. There should be sufficient evidence and a public interest in prosecution. The test and criteria to determine whether prosecution is indicated have been set out in the Code for Crown Prosecutors.115 But also legal systems that formally adhere to the legality principle of prosecution have, either at the regulatory level or in practice, many opportunities for using discretion. For example, in Germany there is a formal duty to prosecute, but there is a variety of ways to avoid formal enforcement action, inter alia:116 —— Insufficient grounds to proceed with public charges; —— Minor culpability; —— Provisional suspension of public charges and imposition of conditions and instructions; —— Plea bargaining. Especially the termination of the prosecution for minor guilt or under particular conditions and instructions is often used in environmental cases.117 It is striking 112 

See Chapter 4 on France, section 4.2. See Chapter 10 on the UK, section 4.2. 114 Ibid. 115  See Chapter 10 on the UK, section 4.2.1. 116  See Chapter 5 on Germany, section 4.1. 117 Ibid. 113 

Evolution of Environmental Criminal Law 295 that a high-ranking public prosecutor reported that as a result of the amendments made to transpose the Environmental Crime Directive, some cases are likely to be terminated without prosecution, eg due to their negligible impact.118 Likewise Italy has a formal duty to prosecute, but at the same time a variety of substantive119 and procedural120 criminal law provisions may impact on the procedure: —— For certain misdemeanours, the payment of an amount of money (oblazione discrezionale); —— Plea bargaining (which is possible other than in cases of organised crime); —— Proceeding by decree. In Poland there is a formal duty to prosecute, but it is reported that in some cases the opportunity principle is applied.121 Spain formally has the legality principle for prosecutions, but there are different forms of prosecuting offenders, such as for example:122 —— Summary proceedings; —— Rapid proceedings; —— In practice, offenders can accept an agreement with the Prosecutor’s Office after accepting criminal responsibility (this is not plea bargaining and it is not established in law as binding). However, a consequence of the principle of legality of prosecutions is that an agreement to avoid prosecution, for example by paying an administrative fine, is in theory not possible in Spain.123 However, the agreement between prosecutor and offender is, according to the Spanish chapter, such a widespread practice that it has a similar effect to a plea bargain. Also Sweden has a formal obligation to prosecute, but a waiver of prosecution is widely possible ‘on grounds of efficiency’ and minor offences may end under summary punishment via a fine.124 5.2.2.2. Specialisation? As to the second important aspect, the degree of specialisation of the prosecutors, many of the discussed legal systems point to a specialisation and equally to the importance of it. For example in Germany, special environmental departments have been set up in the prosecutors’ offices of some of the larger

118 Ibid. 119 

See Chapter 6 on Italy, section 5.1.1. See Chapter 6 on Italy, section 5.1.3. 121  See Chapter 7 on Poland, section 9. 122  See Chapter 8 on Spain, section 5.1. 123 Ibid. 124  See Chapter 9 on Sweden, section 4.1. 120 

296  Michael Faure metropolitan areas.125 The same is the case (to some extent) in Spain where a specialist prosecutors’ office exists against corruption and organised crime within the Supreme Court.126 This specialisation of prosecutors within the National Environmental Crimes Unit (Riksenheten för Miljö- och Arbetsmiljömål vid Åklagarmyndigheten—REMA) is also positively evaluated by practitioners in Sweden.127 The highest degree of specialisation of prosecutors can probably be found in the United Kingdom, for the simple reason that it is the only legal system that allows basically all public authorities to directly prosecute cases. As a result local authorities, but especially the Environment Agency, prosecute most of the environmental cases themselves.128 In other countries the situation is less clear. For example, Poland does not report any specialisation. However, in Poland, the inspector of environmental protection has the right to participate in criminal proceedings with the same rights as a public prosecutor.129 As far as Italy is concerned, ‘specialised working groups’ have been created in several public prosecutors’ offices.130 5.2.3. Results This overview of the role and functioning of the public prosecutors provides a somewhat mixed picture.131 The theoretical starting points are different, as five countries have a formal obligation to prosecute and the other two of the examined countries do not. However, even in the countries with an obligation to prosecute (based on the principle of legality of prosecutions), the factual possibilities for dealing with cases in other ways than through formal enforcement actions are de facto as great as in countries relying on the opportunity principle. It seems, hence, that in all systems examined prosecutors have the possibility to make wise use of their discretion. This means, taking into account the points mentioned in the introduction to this section, that when, for example, a first-time offender commits a violation out of ignorance, a cooperative strategy can be followed, providing education and thus leading the operator to comply. Formal enforcement action (via prosecutions before the court) can thus in most systems be reserved for the cases of serious environmental harm, often intentionally committed by repeat offenders where a criminal prosecution would thus be indicated.132 The need for specialisation of prosecutors shows, however, a much more diverse picture. ‘Specialised working groups’ have been created in many public prosecutors’

125 

See Chapter 5 on Germany, section 4.2. See Chapter 8 on Spain, section 5.2. See Chapter 9 on Sweden, section 4.1. 128  See Chapter 10 on the UK, section 4. 129  See Chapter 7 on Poland, section 9. 130  Chapter 6 on Italy, section 4.2. 131  See also Faure and Heine, Criminal Enforcement of Environmental Law, n 60 above, 51–53. 132  See R Bowles, M Faure and N Garoupa, ‘The Scope of Criminal Law and Criminal Sanctions: An Economic View and Policy Implications’ (2008) 35 Journal of Law and Society 389–416. 126  127 

Evolution of Environmental Criminal Law 297 offices in Italy. Specialisation also exists, for example, in Germany, but merely in some of the larger metropolitan areas. Of all countries examined, a fully-fledged specialisation of the prosecution service exists in fact only in Sweden, where specialised environmental prosecutors are brought together in one service unit which consequently serves the entire country. Moreover, specialised knowledge is equally available in the United Kingdom by allowing various public authorities, including environmental authorities, to prosecute environmental cases. That may be the best option, but would obviously require revolutionary and radical changes in the criminal procedure of most Member States. The next best and easier to implement solution would be to follow the Swedish model of a specialised unit of environmental prosecutors entirely dedicated to the prosecution of environmental crime. This necessity of specialisation in the prosecution should once more be underlined. In the absence of specialisation there is always a danger that prosecutors have to deal with environmental crime in addition to many other (also common) crimes. This will not allow them to develop the specialised knowledge required to deal with environmental crime and may, moreover, lead to the situation that environmental crime does not get a high priority. That could lead to dismissals, not because cases do not deserve a formal enforcement remedy, but rather because of lack of priority and capacity. The latter could seriously jeopardise the entire enforcement system and also lead to frustration with environmental agencies. This problem will not arise in countries where agencies have the opportunity to either deal with cases themselves via the imposition of environmental sanctions/ fines (as is the case in Germany) or where agencies can bring prosecution actions themselves (as across the United Kingdom). Especially in systems where agencies are forced to report every violation to the prosecutor, if prosecution subsequently does not take place (inter alia, due to a lack of capacity or specialisation), this may lead to frustration among environmental agencies. That could in turn lead to less monitoring, lower detection and thus lower deterrence of environmental criminal law.

5.3.  Role of the Courts 5.3.1. Importance When the prosecutor decides to bring the case to the criminal court, the question again arises as to what can be expected from the court. In this respect we can be brief: similarly to the case of the prosecutor, specialisation is important. Environmental law is a technical field of law, largely different from the common crimes that criminal judges otherwise deal with. If judges with no prior knowledge of environmental law have to deal with environmental cases, there is a considerable likelihood of erroneous decisions. This is a strong argument for some kind of specialisation. Specialisation can of course take different forms. One could either

298  Michael Faure look for a specialised environmental court or for special environmental chambers within a general criminal court. 5.3.2. Countries Looking at the country chapters the results are rather disappointing. Most countries report that they have no special environmental courts dealing with environmental crime. This is for example the case for Germany,133 Italy134 and the United Kingdom.135 However, in the United Kingdom the lack of specialisation of the court may be not such a large problem for the reason that in that country, specialised environmental agencies (like the Environment Agency) are allowed to bring prosecutions directly to the criminal court. This means that the prosecutor (eg the Environment Agency) can provide the judge or the jury with the necessary information in order to be able to decide the case in an adequate manner. France equally lacks specialised courts, with the exception of those that are competent with regard to ship-source pollution.136 Again, an interesting example comes from Sweden. Sweden has a system of environmental courts, but they typically try administrative enforcement cases and not environmental crime cases.137 One particularly interesting aspect of the Swedish system is that environmental technicians (not necessarily lawyers) are used as judges in the court.138 5.3.3. Result Summarising, there is undoubtedly room for improvement as far as this aspect is concerned. One could either consider the Spanish model of a specialised bench (but then obviously equipped with sufficient resources), or the Swedish model where technicians (with specialised knowledge on environmental issues) are added to the criminal court in order to inform the judges.

5.4.  Administrative Enforcement and Sanctioning 5.4.1. Importance It was already mentioned, when discussing who investigates environmental crime139 that administrative authorities play an important role in the proactive 133 

Chapter 5 on Germany, section 4.2. See Chapter 6 on Italy, section 4.2. 135  See Chapter 10 on the UK, section 4.2. 136  See Chapter 4 on France, section 4.1. 137  See Chapter 9 on Sweden, section 4.3. 138 Ibid. 139  See above section 5.1. 134 

Evolution of Environmental Criminal Law 299 monitoring of environmental crime. Given their specialised knowledge and focus on environmental crime, they may be in the best position to detect (via proactive monitoring) that violations have taken place. It was already indicated that in that sense administrative (inspection) authorities play an important role in the judicial chain, since often it is through their actions that environmental crime is discovered and brought to the public prosecutor. However, in many legal systems administrative authorities also have the ability to impose particular remedies (measures or sanctions) after they have discovered environmental crime.140 Many of those measures and sanctions aim at restoration of environmental harm or prevention of future harm. This shows that there may be overlaps between the procedure followed in the criminal justice system and the administrative sanctioning system. That risk of overlap may especially occur when administrative authorities have not only the possibility to impose measures aiming at restoration or prevention of future harm, but also outright penalties (more particularly administrative fines) for (usually minor) environmental crimes. The use of those administrative penalties (fines) may well make sense and be justified from a cost-effectiveness perspective. However, this system of course requires a clear delineation between the administrative and criminal sanctioning procedure. In addition there are some legal systems (like for example Germany) where administrative authorities can impose penalties for administrative violations through what is often referred to as administrative penal law (Ordnungswidrigkeitenrecht).141 To the extent that those only are reactions to behaviour that is not formally criminalised, it will be disregarded at this point for the reason that we focus on environmental crime. However, one complication is that in some cases (like for example in Germany with respect to corporations) administrative penal law can also be applied to behaviour that is formally considered environmental crime. The function of administrative authorities is, as already mentioned, of utmost importance, not only because of their higher technical skills and capacity, but also because they may proceed to a speedy response, especially in cases where speed is of utmost importance. When, for example, waste has been illegally deposited or a dangerous installation is continued to be used in an unlawful manner, it may be clear that it would be unacceptable to wait for the outcome of a criminal trial that could last for many years until a particular reaction is taken. Administrative authorities may then (through administrative measures and sanctions) have the possibility of reacting rapidly in order to force the perpetrator to reverse harm done or prevent future harm. As a note on terminology, in some legal systems those administrative remedies are primarily referred to as ‘measures’ for the reason that their primary goal is restoration or prevention of future harm and not inflicting intentional pain on a perpetrator with a view to deterrence. For the latter

140 Faure and Heine, Criminal Enforcement of Environmental Law, n 60 above, 49–50; Prabhu, ‘General Report’, n 15 above, 724–26. 141  Faure and Heine, Criminal Enforcement of Environmental Law, n 60 above, 17–23.

300  Michael Faure category, usually the terms ‘sanction’ or ‘penalty’ are reserved. However, we will disregard that distinction. It should also be kept in mind that a remedy which is formally (only) considered a measure (for example an order to remove waste that has been illegally deposited) can de facto lead to very high costs (in some cases substantially higher than the fine that would be imposed through the criminal justice system). In that case such a ‘measure’ could equally have a dissuasive effect, even though deterrence may not be its primary aim. Enforcement of environmental law has in many jurisdictions traditionally relied strongly on the use of the criminal law. That also explains the (still) central role of the public prosecutor in enforcement in many legal systems.142 This contrasts to some extent with the fact that it is not the public prosecutor, but rather specialised environmental agencies, that have the expertise and technical knowledge to investigate environmental crime. Only in the United Kingdom has this paradox been solved by allowing administrative authorities to prosecute their own cases. A problem with a model that only allows criminal enforcement is that the criminal process usually requires a high threshold of evidence to secure a conviction and leads to relatively high costs. For that reason there may be reluctance among prosecutors to prosecute all crimes, leading to high dismissal rates. There is overwhelming evidence, also for the countries discussed, that a substantial proportion of the environmental criminal cases have a relatively low probability of being prosecuted.143 To compensate for a lower probability of a sanction being imposed, courts might impose a relatively large penalty. In practice, again, also in the countries under examination, courts are reluctant to do so, especially for minor offences. In consequence, in such systems where only criminal enforcement is possible, a low probability of prosecution is likely to lead to a problem of insufficient deterrence. One possibility to involve administrative authorities more directly, also in sanctioning environmental crime (and hence not only in imposing urgent measures and remedies, previously discussed) is to allow administrative authorities to impose financial penalties.144 The main advantage of the administrative enforcement system (and hence administrative fines) is that, compared to the criminal procedure, the threshold of proof and thus the cost of imposing the sanction is lower. Since these fines are readily imposed the probability of imposition is relatively high, thus requiring a relatively modest penalty for the compliance condition to be met. Given that the costs of the imposition of an administrative fine can be lower than the costs of a criminal trial the imposition of an administrative fine may also save administrative costs. Especially given the relatively low probability

142 

See above section 5.2. empirical evidence on the high dismissal rates concerning environmental crime in four European Member States see, inter alia, MG Faure and K Svatikova, ‘Criminal or Administrative Law to Protect the Environment?’ (2012) 24 Journal of Environmental Law 253–86. 144  See on this debate in the UK extensively RB Macrory, Regulatory Justice: Making Sanctions Effective. Final Report (London, Cabinet Office, Better Regulation Executive, 2006) especially Chapter 3. 143  For

Evolution of Environmental Criminal Law 301 of prosecution in most environmental cases, the advantage of the imposition of an administrative fine is that it leads to some remedy in cases that would otherwise be dismissed without formal remedy. In that sense the administrative fine can be considered as a relatively low-cost instrument, allowing additional deterrence, especially for minor environmental offences.145 The availability of the alternative of an administrative fining system would, moreover, have the advantage that the criminal justice system could focus the (costly) process of prosecution on those cases of serious environmental harm that really merit prosecution. 5.4.2. Countries The country chapters indicate that most legal systems do have a variety of measures and sanctions that can be imposed by the environmental authorities. France refers to a variety of ‘administrative controls and administrative police measures’ allowing the authority to issue particular rulings and oblige operators to exercise particular duties or to execute, ex officio, measures themselves, but at the expense of the operator.146 The authorities can, moreover, order the payment of a fine of not more than €15,000 and a daily fine of not more than €1,500, which is due until the conditions imposed have been fulfilled.147 However, a law of 8 August 2016 has narrowed the material scope of application of the ‘administrative transaction’.148 The classic example of such a fining system could be found in the well-known German Ordnungswidrigkeitengesetz (Administrative Offences Act), which created a system of administrative penal fines applicable to administrative penal offences (Ordnungswidrigkeiten).149 In this case, unlike with the criminal justice system, the opportunity principle is applied and the imposition of a fine is hence considered as a last resort. Some conduct may be punishable both as a criminal offence and as an administrative penal offence. In that case the criminal sanction has priority. However, if the criminal sanction is not imposed an administrative fine can still be applied.150 Empirical evidence in Germany shows that administrative fines are in practice more often used for environmental offences than criminal law.151 In Italy, the administrative authorities can issue a so-called order-injunction ordering the payment of the administrative fine or imposing another administrative sanction when non-compliance with environmental law is punished by the law with administrative penalties.152 145  In the terminology used above they would be especially suited for the so-called abstract endangerment offences. See above section 3.2. 146  See Chapter 4 on France, section 5.1. 147  Ordinance No 2012-34 of 11 January 2012 extended the administrative fine to all the areas covered by the Environmental Code (Chapter 4 on France, section 6). 148  Chapter 4 on France, section 4.2. 149  See Chapter 5 on Germany, section 5.3. 150 Ibid. 151  See in that respect especially V Meinberg, ‘Empirische ErkenntnissezumVollzug des Umweltstrafrechts’ (1988) 100 Zeitschrift für die gesamte Strafrechtswissenschaften 112–57. 152  See Chapter 6 on Italy, section 5.2.

302  Michael Faure For Poland it is mentioned that in the case of minor offences procedures from the Code on the Procedure for Petty Offences and the Code of Administrative Procedure are applied.153 It is held that in Poland it is not always clear whether an environmental offence can be classified as administrative or not, since violations can in some cases result in both administrative and criminal sanctions.154 Administrative sanctions, such as for example the cancellation of a permit, would, however, be very commonly applied.155 In general, in Poland criminal provisions are rarely applied to environmental harm. Administrative fines are the usual remedy.156 In Spain the co-existence of administrative and criminal sanctions is considered to be problematic.157 In Spain criminal law takes priority over administrative law when the sanctions overlap.158 The non bis in idem principle does not allow applying jointly criminal and administrative fines.159 In Sweden administrative enforcement is generally considered more important than criminal enforcement.160 This is especially the case since chapter 30 of the Swedish Environmental Code allows the imposition of a special environmental charge which effectively replaces the criminal law system with a system of administrative fees.161 This environmental charge can be directly imposed by the supervisory authorities. Those administrative fees (for example water pollution fees charged by the Swedish coast-guard) apply to less serious violations of environmental law.162 There is an interesting tendency in the United Kingdom as a result of a new piece of legislation, the 2008 Regulatory Enforcement and Sanctions Act (RESA), which introduces civil sanctions as an alternative to criminal prosecutions. Regulators such as the Environment Agency can, for example, issue a compliance notice (requiring compliance within a specified time-limit), a restoration notice (requiring measures to restore the damage caused) or an enforcement undertaking (whereby the offender offers to undertake specific steps to amend noncompliance).163 Interestingly, administrative authorities in the United Kingdom follow an enforcement strategy on the basis of the Regulator’s Compliance Code, which follows a particular enforcement pyramid164 whereby regulators in principle 153 

See Chapter 7 on Poland, section 5. Chapter 7 on Poland, section 6. There is also an intense debate in Poland on whether monetary sanctions should be imposed by courts instead of by administrative organs. 155  See Chapter 7 on Poland, section 6. 156  See Chapter 7 on Poland, section 11. 157  See Chapter 8 on Spain, section 4.4. It is mentioned that there is ‘confusion between crimes and administrative offences in practice’. 158 Ibid. 159  Chapter 8 on Spain, section 6.3. 160  See Chapter 9 on Sweden, section 5.1. 161 Ibid. 162 Ibid. 163  See Chapter 10 on the UK, section 5. 164  Obviously inspired by the well-known work of I Ayres and J Braithwaite, Responsive Regulation: Transcending the Regulation Debate (New York, Oxford University Press, 1992). 154 See

Evolution of Environmental Criminal Law 303 primarily aim to change the behaviour of the offender, eliminate financial gain, seek proportionality of measures adopted to the nature of the offence and the harm caused, aim to repair harm done and to deter non-compliance in the future.165 The 2008 regulatory reform in the United Kingdom moved the enforcement system away from a system that traditionally largely relied on criminal enforcement to a system of administrative fines (in the United Kingdom context referred to as a civil sanction). It is more particularly through the already mentioned RESA that inter alia a Fixed Monetary Penalty (FMP) can be issued for minor offences and a Variable Monetary Penalty (VMP) for the more serious offences.166 Generally legal doctrine in the United Kingdom holds that those civil penalties are easier to administer, more flexible and more appropriate.167 There are only some questions as to whether the civil sanctions may not confer too much power on the regulatory agencies at the expense of the courts.168 5.4.3. Results This brief summary shows that many of the legal systems studied here provide possibilities to administrative authorities to impose measures aiming at speedy remediation of the particular environmental problem, which would be cumbersome for the criminal justice system. However, in some legal systems those powers seem either to be missing or (like Italy) to be rarely applied, whereas in others (more particularly Poland and Spain) the lack of a clear delineation between the administrative and criminal sanction is considered problematic. One particular attractive feature can be found (inter alia) in France, where authorities have the possibility to impose a ‘daily-unit fine’ which is due, as long as there is no compliance with the measures that were issued. That may give a particularly strong incentive for compliance to perpetrators. In addition, there seems to be a tendency in the legal systems examined to move towards the use of other remedies than merely the criminal law. Germany already has a long tradition of administrative fines. The United Kingdom has, after initially largely relying on criminal law, also moved towards a system of fines mentioned above (referred to as civil sanctions) to be imposed by administrative authorities, and administrative fees can equally be imposed in Sweden. The same exists in France. Financial penalties can undoubtedly be regarded as cost-effective reactions for minor offences and are therefore welcomed in the jurisdictions that do have and apply the fines. Of course, if deterrence is to be achieved, fines should be of a substantial nature and not to be too low to constitute a serious deterrent. 165 

See Chapter 10 on the UK, section 5. See Chapter 10 on the UK, section 5. 167 Ibid. 168 Ibid. 166 

304  Michael Faure One point of concern (equally related to post-detection discretion) could relate to situations where there would be a danger that the fining system would be abused. Transparency and accountability of officials imposing the fines (for example an obligation to publish the fines imposed in an annual report by the agency) may prevent this. However, if it is feared that an administrative fining system could lead to a collusive relationship between the agency and the operator, a control mechanism could be built in whereby the proposal of an administrative fine would have to be approved by the public prosecutor.

6.  THE IMPLEMENTATION OF THE ENVIRONMENTAL CRIME DIRECTIVE

6.1. Importance It is almost not needed to explain the importance of how Member States have implemented the Environmental Crime Directive, as this is one of the central issues to this book. Again, the goal of this comparison is not to repeat what has been mentioned in much detail in the country chapters concerning the implementation of the Environmental Crime Directive. However, it seems interesting to mention to what extent the Member States examined consider the changes brought by the Directive as rather important or small. In other words, did these Member States consider that the existing system was already largely complying with the Directive or were substantial changes needed? In addition it is interesting to briefly examine whether the implementation mostly concerned substantive environmental criminal law or whether changes were made in the sanctioning system, in order to provide more (dissuasive, proportionate and effective) penalties. Of course the question equally arises whether, normatively, the Directive can be considered as having improved the system of environmental criminal law in the particular Member State or whether there is also criticism. And finally it is equally interesting to address the Directive with a view on whether the implementation can be considered successful or not.

6.2. Countries There are remarkable differences between the Member States we examined concerning their opinion on whether substantial changes were needed or not. Obviously this is also strongly related to the system as it existed before the entry into force of the Environmental Crime Directive. Some countries apparently had to engage in rather substantial reforms in order to comply with the conditions of the Directive. As far as France is concerned it is mentioned that Ordinance No 2012-34 ‘introduced a significant reform of the provisions contained in the Environmental Code’.169 Italy implemented the 169 

Chapter 4 on France, section 1.

Evolution of Environmental Criminal Law 305 Directive apparently in two phases. A radical renovation of environmental criminal law was expected, but initially a legislative change in 2011 only introduced Articles 727bis and 733bis into the existing Criminal Code.170 However, a second law reform took place in 2015 leading to an entirely new chapter in the Criminal Code introducing new felonies against the environment, which seems like a pretty substantive change.171 Spain was considered to already have a well-developed system of environmental criminal law, but still the transposition of the Environmental Crime Directive required the introduction of new conduct and modifications in the already existing crimes, which was done in 2010.172 Other countries consider the changes brought by the Directive to their system as less substantial. Germany, for example, considered that its system ‘already conformed by and large to this Directive and needed to be amended only in some parts’.173 The same was opined with respect to Poland.174 In the United Kingdom the effects of the transposition of the Environmental Crime Directive were considered ‘somewhat limited because they did not bring about major changes to national laws’.175 The United Kingdom was considered to already have in place a well-established framework of legislation, even though it was scattered. The most remarkable country examined is probably Sweden, which is the only country studied which has not amended any existing legislation to transpose the Environmental Crime Directive, thus arguing that the provisions in its national legislation were already in conformity with the Environmental Crime Directive.176 The most important changes were therefore, not surprisingly, undertaken in those countries where it was held that most substantive changes needed to be made. Let us now address in more substance in what way the Directive brought changes to the existing system of environmental criminal law. French authorities considered that their national legal framework was already in compliance with the Directive, but still Ordinance No 2012-34 introduced a number of provisions to comply specifically with certain requirements of the Directive. It not only considered substantive criminal law, but also the sanctioning system.177 The main penalties for many offences were increased in this implementation process.178 Criminal liability also explicitly applies to legal entities for the environmental crimes contained in the Environmental Code.179 The changes in German criminal law were more subtle, as they really concerned rather small amendments in environmental criminal law.180 Italy had many substantial revisions through the two-phase

170 

Chapter 6 on Italy, section 3.1.2. Chapter 6 on Italy, section 3.1.3. 172  Chapter 8 on Spain, section 4. 173  Chapter 5 on Germany, section 3.3. 174  See Chapter 7 on Poland, section 8. 175  Chapter 10 on the UK, section 3. 176  See Chapter 9 on Sweden, section 3. 177  See Chapter 4 on France, section 3. 178 Ibid. 179  See Chapter 4 on France, section 3.2. 180  See Chapter 5 on Germany, section 3.3. 171 

306  Michael Faure (in 2011 and 2015) reforms, introducing many new provisions and adding a new chapter to the Criminal Code on felonies against the environment; the new criminal offences carry higher penalties.181 Also in Poland substantial changes occurred in different Acts in order to implement the Environmental Crime Directive.182 In Poland two new paragraphs were added in Article 182 of the Criminal Code, explicitly punishing the operation of a plant which pollutes the environment. Although this Article has given rise to controversy it is generally held that it will make the actual penalisation of this type of pollution easier.183 In Spain the transposition of the Environmental Crime Directive led to the introduction of some new offences and modifications in already existing provisions. The main innovation was the inclusion in Article 328 of the Spanish Criminal Code of all crimes linked to waste deposits as described in Articles 3b–d of the Environmental Crime Directive.184 In the United Kingdom a few new criminal offences were created as a result of the transposition of the Environmental Crime Directive.185 It is interesting to notice that there seem to be different opinions on whether the Member States studied did correctly implement the Environmental Crime Directive. The authors of the chapters in this book largely relied on the evaluation study which was performed for the European Commission by the consultancy company Milieu. In addition, some authors did their own examination of where there may be a discrepancy between the requirements of the Directive and the domestic legislation. It is striking that many contributors still see discrepancies, showing the difficulties in correctly implementing the Environmental Crime Directive. As far as France is concerned it is held that the Directive has not been fully transposed by the French legislator (through the Ordinance of 2012) in various respects.186 A similar conclusion is reached as far as Germany is concerned, where it is held that a few of the amendments introduced to transpose the Environmental Crime Directive ‘raise serious problems of conformity with EU legislation’. This concerns more particularly the compatibility between § 324 StGB on water pollution and Article 3(a) of the Environmental Crime Directive. It depends on the specific interpretation of § 324 whether one can consider this as a correct interpretation of the Directive. Also other problems still continue.187 Also Italy apparently did not fully implement the Directive. The main problem in Italy is that not all offences covered by the Directive are applicable to legal persons. There may therefore be a problem with the requirements of Articles 6 and 7 of the Directive.188 A similar conclusion was reached for Poland where on some minor points the 181 

See Chapter 6 on Italy, section 3.1.3. See Chapter 7 on Poland, section 8. 183  See Chapter 7 on Poland, section 11. 184  See Chapter 8 on Spain, section 4.1. 185  See Chapter 10 on the UK, section 3. 186  See Chapter 4 on France, section 6. 187  See Chapter 5 on Germany, section 3.3. 188  See Chapter 6 on Italy, section 3.2. 182 

Evolution of Environmental Criminal Law 307 Polish transposition is considered not to correctly implement the Directive.189 And even in Spain, which was already considered to largely comply with the Directive, some opinions held ‘that the transposition was in some aspects ambiguous or incomplete’.190 However, the latest reform of the Spanish Criminal Code (in 2015) still modified some details which, according to the evaluation study, were needed for a full transposition of the Directive.191 And that same evaluation study held that the Swedish policy-makers were too optimistic in their assessment that their system completely corresponded with the requirements of the Environmental Crime Directive. The evaluation study was of the opinion that the sanctions that are effectively applied in Sweden are so low that they cannot be considered to have a serious dissuasive character, thus violating Articles 6 and 7 of the Directive. Sweden would equally have a problem with the necessary criminalisation of an unlawful collection of waste.192 The problem with the United Kingdom seems to be relatively limited. There the only issue mentioned is that the corresponding United Kingdom legislation did not include any reference to the Environmental Crime Directive, which is not a major issue.193 It is interesting to consider how the different Member States will deal with potential problems of non-conformity with the Environmental Crime Directive. In some cases the legislator was quick to adapt national legislation to the Directive where problems were discovered (like in Spain). In other cases it may be a matter of interpretation, where different opinions could exist on whether there is conformity with the Directive or not (like in the cases of Spain and Germany). There obviously it may also be a matter of negotiation between the European Commission and the Member State concerned, whereby it is not always clear whether the Commission will take formal action on each point of non-conformity that has been found (which, if not resolved, could eventually require interpretation by the European Court of Justice). It is also striking that a few of the Member States discussed had problems with the dissuasive character of the sanctions applied to legal entities. The evaluation study considered, that the sanctions imposed in practice in Sweden were not in line with the requirements to have dissuasive, proportionate and effective penalties for legal entities. Finally, it is also important to mention that not all Member States are positive concerning the effects of the Directive on their legal system. In some cases substantial changes were made to the environmental criminal law system, like in Italy, which seem to be largely judged as positive.194 However, in other cases, for

189  See Chapter 7 on Poland, section 8. As a result of a mistake or carelessness by the legislator some inconsistency occurred. 190  Chapter 8 on Spain, section 4.1. 191 Ibid. 192  See Chapter 9 on Sweden, section 3. 193  See Chapter 10 on the UK, section 3. 194  See Chapter 6 on Italy, section 6.

308  Michael Faure example in Germany, substantial criticism is formulated on the transposition of the Directive since it in fact leads to even more administrative dependence of environmental criminal law, including on environmental legislation of other Member States. Questions are also asked concerning the compatibility between the transposed Environmental Crime Directive and the lex certa requirement. And there is general criticism in Germany of the fact that the way the Environmental Crime Directive was transposed leads to more criminalisation.195 Also the French were critical of the fact that the Directive seems to add an additional layer of complexity, not necessarily making the application of environmental criminal law easier in practice.196 A similar criticism could be heard in the United Kingdom. The Directive only adds an additional layer of complexity to the already highly fragmented system of environmental criminal law in the United Kingdom.197 A comment in Germany is striking. There it was mentioned, inter alia, by practitioners that the Directive would probably have limited effect in practice as some of the cases resulting from the amendments to transpose the Directive would very likely be dismissed by the prosecutor.198

6.3. Results A few conclusions can be drawn from the previous analysis. One conclusion is that it is apparently extremely difficult for Member States to correctly implement the Directive. There is almost no Member State of the seven examined where it is argued that the transposition has been flawless. In addition, it is also striking that in some Member States quite important criticism can be heard. In Germany the Environmental Crime Directive was not itself criticised, but the way it was transposed. The main concern was that the existing enforcement deficit could be exacerbated by the transposition, leading to the merely symbolic value of some of the amendments adopted.199 In the particular case of Germany one has the impression that the transposition of the Directive amounted to a ‘windowdressing’ operation without clear effect as far as increasing environmental protection quality is concerned. But in other Member States it seems that the process of transposing the Directive has led to important improvements concerning the quality of environmental criminal law and to a fundamental rethinking of the sanctioning system. That seems especially to have been the case in Italy. The implementation process also shows that a careful examination is needed of sanctions that are imposed in practice, particularly on legal entities. For legal entities the Directive may not require criminal penalties, but it does require the

195 

See Chapter 5 on Germany, section 3.4. See Chapter 4 on France, section 6. See Chapter 10 on the UK, section 3. 198  See Chapter 5 on Germany, section 4.1. 199  See Chapter 5 on Germany, section 6. 196  197 

Evolution of Environmental Criminal Law 309 imposition of dissuasive, proportionate and effective penalties. That requires an analysis, not only of penalties which are provided for in the legislation, but also of the penalties that are imposed in practice, particularly for environmental crimes committed by legal entities. If it is established that penalties imposed in practice are too low, serious questions concerning the dissuasive character can be asked. This also shows the important point that in checking actual implementation the European Commission increasingly goes beyond mere verification that penalties are provided for in the formal legislation; also the penalty levels actually applied in practice of course play an important role.

7. SANCTIONS

7.1. Importance The Environmental Crime Directive underlines that penalties have to be ‘effective, proportionate and dissuasive’. This well-known notion comes from the case law of the EU Court of Justice.200 Of course, it is not feasible within the scope of this comparative assessment to even attempt to analyse whether the sanctions provided for in the Member States discussed in the country reports are ‘effective, proportionate and dissuasive’. It was already mentioned that in many Member States studied (although certainly not in all) important changes took place in the sanctioning system to make them more in line with the requirement of dissuasiveness provided for in the Environmental Crime Directive. It was also already stressed that according to the evaluation study some countries may have a problem in this respect as especially the sanctions for corporate environmental crime were not always considered proportionate. In addition, for the sanctions to be dissuasive they should equally be effective. An important element of the penalty’s effectiveness with respect to environmental crime is that it also should aim at the restoration of harm caused in the past.201 It is often held that merely sending a perpetrator to prison, if the consequence is that eg waste that was deposited illegally is not removed, would not be very meaningful from an environmental perspective.202 The penalty should therefore lead to the consequences of the environmental crime being reversed by the perpetrator. In addition to the harm caused in the past being removed, the penalty should equally aim at the prevention of future harm. It may, for example, make little sense to impose a fine upon an entity knowing that the installation which caused the

200  Inter alia in the so-called Greek corn case (ECJ 21 September 1989, Case C-68/88, Commission of the European Communities v Hellenic Republic). 201  MG Faure, ‘Effective, Proportionate and Dissuasive Penalties in the Implementation of the Environmental Crime and Ship Source Pollution Directives: Questions and Challenges’ (2010) European Energy and Environmental Law Review 256–78. 202  MG Faure, ‘Effective, Proportionate and Dissuasive Penalties’, n 201 above, 260.

310  Michael Faure pollution will still be used by the firm that paid the fine. The penalty may thus also be aimed at preventing the pollution from continuing.

7.2. Countries As far as the main sanctions in the formal legislation are concerned, there is some similarity (convergence) but also a certain degree of difference (divergence) between the countries studied. The convergence consists in the fact that for most of the environmental crimes (at least certainly for the more serious ones) discussed in the country chapters both monetary sanctions (fines) and custody (imprisonment) are available. The legislator usually allows the court to choose between applying either the fine and/or imprisonment. There is certainly also convergence, not only at the regulatory level but at the enforcement level as well: fines are in fact the most important sanctions that are applied in practice. That is, however, where the convergence ends. The regulatory framework for the main penalties is quite diverse between the Member States. To some extent, one could argue that this does not necessarily say anything about the real divergence of sanctions between Member States since the most interesting question is obviously the magnitude of the sanctions in practice. Unfortunately there is not a lot of information available on the sanctions actually applied for environmental crime. Germany reports that compared to total crime the level of sanctions for environmental crime appears to be low. Imprisonment sentences are even rarer, and probation is granted in more cases than for criminal activity as a whole.203 In Germany a latest reform even reduced the formal sanctions, which equally had an influence on the (custodial) sanctions effectively imposed by the judiciary. Not surprisingly prison sanctions were lowered.204 There are important differences between the Member States both as far as the maximum imprisonment sanction is concerned as well as the amount of the fines. Moreover, some Member States do distinguish between the mens rea of the actor involved (threatening higher penalties in case of intent or negligence) whereas others do not. Some Member States also seem to distinguish the nature of the protected interest and relate the statutory maximum penalties to those differences, whereas this is less clear in other legal systems. The requirement of proportionality would obviously imply that depending upon the protected interest (merely administrative interests or also environmental values or even human health) and the way in which these values are endangered, a differentiation should be made. One would expect the highest sanctions for environmental harm that endangers human health, lower sanctions for concrete endangerment without harm to human health, and the lowest sanctions for a mere administrative violation. Again, such forms of proportionality can be found in some Member States, but not in all. 203  204 

See Chapter 5 on Germany, section 5.2. See Chapter 8 on Spain, section 5.1.

Evolution of Environmental Criminal Law 311 As far as the requirement of dissuasiveness is concerned, one would expect statutory penalties to be linked to expected benefits to the perpetrator, but also to harm to society. Moreover, the deterrent effect, particularly of monetary sanctions, will also depend upon the individual wealth of perpetrators. In that respect the literature has advocated the use of ‘daily-unit fines’. Since daily-unit fines link the monetary penalty to the income of the perpetrator they would generate a higher deterrent effect. The day fines, being a Scandinavian invention, can be found for example in Sweden,205 but also in Germany,206 Italy,207 and in Spain, but not in the other Member States examined. From a deterrence (and arguably proportionality) perspective, a day fine system is evaluated positively compared to the alternative of fixed fines, and would in that sense be considered a ‘best practice’.208 Some of the issues mentioned can be illustrated by providing a few examples of the statutory penalties provided for in the Member States that were examined. It is in that respect interesting to note, as was mentioned before, that in some Member States statutory penalties were increased as a result of the implementation of the Environmental Crime Directive. For example in France the punishment of air pollution offences was raised by the Ordinance of 2012 from the original six months’ imprisonment and a fine of €7,500 to two years’ imprisonment and a fine of €75,000 in order to comply with the Directive.209 The same sanction now also applies to water pollution offences according to Article L216-6 of the Environmental Code. This similarity in statutory punishment apparently reflects a similarity in the value of the protected interests (air and water). It was already mentioned that France has specific provisions providing for aggravated penalties when specific crimes (like wildlife or waste trafficking) are connected to organised crime.210 The German system distinguishes carefully between the situation of negligence and intent and has a higher statutory maximum in the case of intent. Moreover, there seems, like in France, to be a parallel between the punishment of offences for water pollution (§ 324), soil (§ 324(a)) and air pollution (§ 325 StGB). The German legislator has provided for a consistent protection of those different interests. Interestingly in some cases of more serious pollution (for example aggravated cases of environmental offences, § 330 StGB) much higher statutory penalties are provided.211 Recall, however, that reported sanctions in practice in Germany are relatively low.212 In Italy sanctions for environmental crimes which were traditionally considered abstract endangerment misdemeanours were traditionally low; the same holds

205 

See Chapter 9 on Sweden, section 5.1. See Chapter 5 on Germany, section 5.2. Chapter 6 on Italy, sections 2.1., 3.1.2 and 3.1.3. 208  See E Kantorowicz-Reznichenko, ‘Day-Fines: Should the Rich Pay More?’ (2015) 11 Review of Law and Economics 481–501. 209  See Chapter 4 on France, section 3.1. 210  Chapter 4 on France, section 3.2. 211  See Chapter 5 on Germany, section 5.1. 212  Chapter 5 on Germany, section 5.2. 206  207 

312  Michael Faure true for the two misdemeanours introduced in 2011 in order to transpose the Environmental Crime Directive.213 Concerning corporations, since 2011 administrative fines can be imposed for environmental crimes according to a ‘share’ system (comparable to the German model of daily-fines). The shares for environmental misdemeanours imply the applicability of sanctions, at a maximum between €232,350 and €387,250; much higher are the shares for the felony of organised activities for illegal trafficking of radioactive waste, leading effectively to a maximum applicable fine of €1,239,200.214 However, the most important increases in the level of sanctions in Italy took place as a result of the latest reform in 2015. For example the crime of environmental disaster provided for in Article 452 quater of the Criminal Code can lead to an imprisonment from five to 15 years. Also Article 452 terdecies of the Criminal Code punishes the omission to clean up and restore a particular site with imprisonment from one to four years and a fine of €20,000 to €80,000.215 In Poland there was no environmental crime that can result in an imprisonment of at least three years. As a consequence environmental crime in Poland was a misdemeanour and not a felony.216 However, as a consequence of the incorporation of the Environmental Crime Directive new penalties were introduced for example for an environmental crime which creates serious detriment to the health of a person or even death. In those cases imprisonment can go up to 10 or 12 years.217 Moreover, the sanctions applied in practice in Poland are considered as non-severe and insignificant, unless health damage or death occurs. Mostly administrative fines apply.218 Poland, moreover, has, like many other legal systems, the possibility to confiscate the proceeds of (environmental) crime.219 Spain has provided for serious sanctions for the environmental crimes in the Criminal Code. For example the general environmental crime and waste crimes provided for in Articles 325–327 can lead to an imprisonment of between six months and two years and a day- fine equivalent to between 10 and 14 months.220 The Spanish system has, moreover, also the possibility to impose additional sanctions if there are specific aggravating circumstances for environmental reasons. For example an act of pollution with a basic penalty of imprisonment of between six months and two years could lead to imprisonment for approximately 11 years when it is caused through a clandestine activity that might seriously impair the balance of the natural ecosystem.221

213 

See Chapter 6 on Italy, sections 3.1.1 and 3.1.2. See Chapter 6 on Italy, section 3.1.2. 215  See for these and many other of the sanctions imposed on the newly introduced felonies in Italy, Chapter 6 on Italy, section 3.1.3. 216  Chapter 7 on Poland, section 10. 217 Ibid. 218 Ibid. 219  See Chapter 7 on Poland, section 11. 220  This is related to the fact that Spain has a ‘daily-unit fine’ system. 221  See for those and other sanctions in Spain, Chapter 8 on Spain, section 6.1. 214 

Evolution of Environmental Criminal Law 313 An interesting sanction can be found in Sweden concerning corporations, on which a corporate fine between €550 and €1.3 million can be imposed. The determination of those fines is, moreover, based on guidelines for public prosecutors, which are referred to as a ‘best practice’ in Sweden.222 In the United Kingdom the 2014 sentencing guidelines for environmental offences introduced larger fines for companies, for example a range of £450,000 to £3 million for large companies with a £50 million or more turnover, and a range of £400 to £3,500 for small companies with a £2 to £10 million turnover. Difficulties, however, exist in applying those guidelines, more particularly the fines to very large companies, such as water companies.223 In addition, most legal systems also have created complementary sanctions. Germany has the possibility to apply a wide variety of complementary sanctions; for example, disqualification from the profession or forfeiture of particular benefits.224 Similar additional penalties are also provided for in Italy.225 In Spain, Article 339 of the Criminal Code allows the judge to impose measures needed to restore the ecological balance that was disturbed.226 In some cases the restoration of harm in the past will not be achieved through a formal complementary sanction imposed by the court but through other means. Restoration could also be ordered through an administrative sanction. In other cases it could constitute a part of the bargain between the public prosecutor and the defendant. The judge could for example require the restoration of harm done as a condition of dismissing the case. In the United Kingdom restoration would typically be achieved via civil sanctions, which are considered as an alternative to the criminal sanction. It would then constitute a ‘restoration notice’.227 One sanction provided for in many legal systems is the publication of the decision of the criminal conviction. This sanction allows the public at large to be informed of the environmental crime. It could also lead to reputational harm for the offender involved and thus provide additional deterrence.

7.3. Results These (undoubtedly selective) examples make clear that in some Member States the legislator distinguishes between the various protected interests and adapts the statutory penalties accordingly (to comply with the proportionality requirement)

222 

See Chapter 9 on Sweden, sections 2.2 and 5.1. for a discussion of the case law and difficulties in that respect, Chapter 10 on the UK, section 5. 224  Chapter 5 on Germany, section 5.1. 225  See Chapter 6 on Italy, sections 2.1, 3.1.2 and 3.1.3. 226  See Chapter 8 on Spain, section 6.4. 227  See Chapter 10 on the UK, section 5. 223  See

314  Michael Faure whereas this is less clear in other Member States. Penalties between the Member States also seem to vary substantially. It should be repeated that complementary sanctions are an important part of an effective and dissuasive penalty system: allowing the judge to order reparation of environmental harm and prevention of future harm will certainly increase the effectiveness and (given that it may lead to high costs) provide additional dissuasion as well. The forms of those measures may differ. In some cases they could be imposed by the prosecutor as a condition for a dismissal, in others they could be an administrative (or civil) sanction, also when the criminal court would impose this penalty in some legal systems. The penalties discussed here would rather be considered as a measure than as a criminal sanction. The important issue is, hence, that environmental crime needs more than the traditional sanctions like for example the imposition of a fine. There should equally be a remedy aiming at restoration of the harm that was caused in the past and at prevention of future harm. These are precisely the objectives of the complementary sanctions.

8. CONCLUSIONS

This comparative analysis focused on the main elements of convergence and divergence in the environmental criminal law systems of the seven Member States that were discussed in a more detailed manner in the previous chapters. A few interesting elements can be deduced from this comparison with respect to the relative effectiveness of different instruments in tackling environmental crime. First, it appears that the mere fact that different countries have chosen different ways of regulating environmental crimes (Criminal Code, Environmental Code, sectoral laws) does not necessarily matter for the quality of environmental legislation, since those differences may be attributed to differing legal cultures. However, to the extent that incorporation of environmental crimes in different laws leads to fragmentation, uncertainty and overlap, there is a problem that may need to be cured by further streamlining of the legislation in the particular country. It was also noticed that many of the examined countries punish, in different ways, the abstract and concrete endangerment of the environment; but truly autonomous crimes are missing in some countries. Their incorporation could be considered. It was also established that it is obviously important (and equally a requirement of the Environmental Crime Directive) that there should be a corporate liability for environmental crime, but for its effectiveness it may not matter that much which precise form (criminal or administrative liability) is chosen. It is preferable to introduce corporate liability for all crimes (instead of only for a numerus clausus) in order to avoid that particular environmental crimes would not lead to corporate liability. There should be the possibility to cumulate corporate liability with the liability of natural persons to whom the environmental crime can equally be attributed.

Evolution of Environmental Criminal Law 315 It was also shown to be important in the particular legal system to provide possibilities for proactive monitoring of environmental crime. Given the technical capacity required to detect environmental crime, specialisation in environmental matters is required. This can either take place in police forces or via specialised administrative inspection authorities. Many countries grant post-detection discretion to either administrative agencies or the public prosecutor in order to avoid the need to bring formal enforcement actions for every violation that has been detected. A specialisation of both prosecutors and courts (in different possible forms) could obviously lead to better enforcement. To some extent the need for specialisation of prosecutors could be stressed, but less so of courts. Interesting examples in that respect are the group of special environmental prosecutors in Sweden and the possibility (also in Sweden) to have technical experts participating in the (criminal) court. The United Kingdom model of allowing public authorities to directly bring criminal charges has, too, the advantage that specialised knowledge in the prosecuting agency is available; it may, however, be difficult to implement such a radical reform among all EU Member States since this would deviate from the practice in most Member States where the right to bring criminal charges is awarded only to the public prosecutor. It was equally established that it is important that the proportionality of maximum sanctions (in relation to the protected interest) is carefully considered. Divergences seem to exist within particular countries, but especially between the different countries examined. The main sanctions in statutes (but also those actually imposed) seemed generally to be lenient and differing between the countries. However, many countries have fundamentally adapted their sanctioning system (by increasing penalties) in connection to the implementation of the Environmental Crime Directive. That was especially the case in Italy. In Spain aggravating circumstances related to environmental harm may lead to the imposition of higher sanctions. Some countries use (non-binding) guidelines to inform prosecutors and judges. These seem to be well-appreciated. The introduction of complementary sanctions (aiming at restoration of environmental harm done in the past or prevention of future harm) could be considered in those legal systems which still lack those sanctions. The same is the case for sanctions aiming at additional deterrence (publication of the judgment and forfeiture of illegal gains). However, these should not necessarily be imposed as formal sanctions through the criminal court, but may be imposed via other mechanisms (conditions for dismissal by the prosecutor, plea bargaining, administrative measures) as well. Those remedies, aiming at restoration of harm done or prevention of future harm, could also be imposed via administrative measures or sanctions. Those measures could be effectively enforced through a penalty payment-system, forcing the perpetrator to pay a specified amount throughout the time that the imposed obligations have not been fulfilled. It is, however, important to clearly distinguish the administrative from the criminal sanctioning system in order to avoid uncertainties or confusion resulting from potential overlaps.

316  Michael Faure There is also an interesting trend in many of the legal systems examined to provide a possibility to administrative agencies to impose financial penalties (fines) for minor environmental offences. The main focus of this book and therefore also of this comparison was on the effects of the Environmental Crime Directive. When comparing the effects in the various Member States studied we already pointed to (logical, understandable) differences, in the sense that in some Member States (those that were supposed to already have a well-established system of environmental criminal law in place) the effects of the Directive were relatively small (like in Germany) whereas in others (where the original system before the Directive left a lot to be desired—like in Italy) the effects of the Directive were far more substantial. It is interesting to notice that almost without exception the chapters dealing with the specific Member States argued that implementation may not have been perfect, even though in some cases it concerns more detailed issues. The fact that implementation may not be perfect in any of the systems examined, of course is also caused by the Directive itself. It is such a complex and complicated document that transposition in domestic law is also complicated. The transposition undoubtedly had positive effects in those Member States that were lagging behind as far as the development of an effective environmental criminal law system was concerned. But also quite substantial criticism could be heard on the Directive, for example that it has a lot of rather vague concepts which are difficult to apply and that it kept in place the administrative dependence of criminal law.228 According to some, the overall effects of the Directive for particular legal systems are even negative. Not only does the Directive reinforce the administrative dependence of environmental criminal law, including on the environmental legislation of other Member States; its transposition might also increase the already existing enforcement deficit by introducing further provisions some of which will probably never be applied in practice.229 Spain reports that even though substantial reforms have taken place in the course of the implementation of the Directive, there are still many problems that the (implementation of the) Directive did not solve. It is more particularly mentioned that the willingness to adjust as precisely as possible the new Spanish criminal regulation to the Environmental Crime Directive has made the entire environmental criminal law system more contradictory and complex. Moreover, the Environmental Crime Directive has not helped to overcome some of the fundamental problems that Spanish environmental criminal law already had.230 One fundamental criticism of the Directive is its too strong focus on the criminal law, not focusing at all on alternatives like administrative or civil penalties. Some of the chapters dealing with the domestic legislation in the Member States

228 

See Chapter 4 on France, section 3. See this substantial criticism formulated in Germany, Chapter 5 on Germany, section 6. 230  See Chapter 8 on Spain, section 7. 229 

Evolution of Environmental Criminal Law 317 showed that in many countries there now is a tendency towards a decreasing role of the criminal law and towards more attention for civil and administrative sanctions. The United Kingdom has probably taken the lead in that respect and even though the system is not totally without criticism (for example concerning the discretionary powers awarded to enforcement agencies)231 overall it is held that the system could ‘lead to a timely and satisfactory environmental outcome, therefore, more in the public interest, provided that a rigorous approach in the application of civil/administrative sanctions is followed’.232 That therefore leads to an important conclusion, being that the Environmental Crime Directive probably had a too strong reliance on the criminal law, neglecting that in some cases equally positive effects could be achieved through alternatives like civil penalties or administrative sanctions. Yet, another problem rightly mentioned in the chapter on the United Kingdom is that there is a lack of reliable data on prosecutions for environmental crime.233 That is not only the case in the United Kingdom, but in many other legal systems as well. This equally merits the question to what extent it is necessary/ desirable/possible to acquire, as indicated above, more data in order to evaluate the enforcement level in practice. To the extent that the question of data collection would be answered in the affirmative, a further step would be to analyse whether it would be possible to develop a harmonised (eg, with common definitions) system of data collection with respect to the enforcement of environmental crime for the EU as a whole, as this would provide a more robust evidence base for comparative analysis of countries in the future.

231 

Chapter 10 on the UK, section 5. Chapter 10 on the UK, section 6. 233 Ibid. 232 

318 

12 Environmental Crime in Europe: State of Affairs and Future Perspectives ANDREW FARMER, MICHAEL FAURE AND GRAZIA MARIA VAGLIASINDI

1. INTRODUCTION

C

OMING TOWARDS THE end of this volume it is now time to formulate a few concluding observations of a more general nature. We will obviously draw upon the earlier chapters to see what are some of the main conclusions that can be derived from the analysis concerning the state of affairs of the fight against environmental crime in Europe. However, in addition to trying to identify a few conclusions based on the analysis in the earlier chapters we will also go beyond their contents and reflect more generally about those issues that can be considered of importance in improving the effectiveness of the fight against environmental crime. The central focus of this book was the role of the European Union (EU) with respect to the fight against environmental crime. Therefore a lot of attention has been paid to the Environmental Crime Directive (ECD). However, as was made clear in the earlier chapters, the effectiveness of the fight against environmental crime can obviously not only rely upon the implementation of the ECD. An effective remedy against environmental crime also needs an effective enforcement system for environmental crime at the domestic level, in addition to and going beyond the ECD. We will first summarise the achievements of the EU and its fight against environmental crime, focusing on challenges and possible legislative developments (section 2). Then we will discuss a few aspects of environmental crime in the EU Member States (section 3) and focus on specific strategies to improve the ­effectiveness of the fight against environmental crime (section 4). Since environmental crime often has a transboundary character it is important to stress the importance of cross-border cooperation in the fight against environmental crime, which is already taking different forms (section 5). Obviously, the effectiveness of legal remedies against environmental crime all depends in the end on the q ­ uestion of whether prosecuting environmental crime and imposing sanctions will be

320  Andrew Farmer, Michael Faure and Grazia Maria Vagliasindi given sufficient priority at the various levels in the enforcement chain (section 6). We conclude with a few final observations (section 7).

2.  THE EU AND THE FIGHT AGAINST ENVIRONMENTAL CRIME: ACHIEVEMENTS, CHALLENGES AND POSSIBLE LEGISLATIVE DEVELOPMENTS

Environmental crime is a serious threat to environmental, social and economic sustainability, and is in conflict with key commitments and strategies of the EU, including the Europe 2020 Strategy. Over the last few decades, awareness of the importance of enhanced action against environmental crime has significantly increased within the EU institutions, whose efforts to combat environmental crime are mainly intended to improve the enforcement of EU environmental law. In fact, despite the remarkable results achieved by the European Community and later the EU in developing a comprehensive legal framework inspired by the objective of ensuring a high level of environmental protection and improvement, compliance by Member States with the EU environmental acquis, as well as compliance by natural and legal persons with environmental legislation originating from the EU, cannot be regarded as fully satisfactory. The large number of infringement procedures brought by the European Commission against Member States for failing to transpose and to implement EU environmental law and the significant number of environmental violations within the EU’s territory demonstrate the problem. Thus, over the past decade constantly increasing attention has been devoted by the EU institutions to the development of actions and measures of different types, whose common denominator is the aim of fostering implementation of, and compliance with, environmental legislation. Establishing a binding minimum standard for environmental protection through criminal law across the EU Member States has been regarded by the EU institutions as a key element of this process, and the enactment of Directive 2008/99/EC on the protection of the environment through criminal law (the Environmental Crime Directive, ECD) can be considered a milestone in this regard. The same path leading to the enactment of the ECD shows the relevance of environmental protection at the EU level. In fact, even before the Lisbon Treaty introduced EU competences in criminal matters, it was precisely the need to introduce common measures aiming to eliminate discrepancies among criminal laws of Member States which give effect to EU environmental law that led the ­European Court of Justice to affirm the legitimacy of imposing obligations to criminalise through a directive. In this respect, the ECD played a role that goes beyond being a potential source of renewal of Member States’ environmental criminal law, in that it was the first manifestation of an embryonic ‘European criminal policy’. However, this same feature is not without consequences for the content of the approximation measures and its impact on national legislation. In fact, the wording of the ECD, which often uses quantitative non-numeric concepts to identify the conduct to

State of Affairs and Future Perspectives 321 be criminalised (eg ‘non-negligible quantity’ or ‘significant d ­ eterioration’) opened up a lot of discretion of the Member States in the actual selection of the relevant conduct. In addition, important manifestations of crime, such as attempted crime, have not been taken into consideration by the ECD. Moreover, the type ­(custodial or non-custodial) and the level of criminal sanctions, which according to the European Court of Justice were not encompassed in the power of intervention of the (then) European Community, were not dealt with by the ECD. The result is that a relevant feature of some serious environmental crimes—their transnational dimension and associated need of a common grid of sanctions—has not yet been addressed. This seems of particular relevance where organised crime is involved in the commission of (transnational) environmental crimes (see below), also resulting in negative consequences for judicial cooperation and mutual assistance arising from weak and discrepant penalties. In theory, an EU intervention aiming at approximating the penalties for the offences covered by the ECD can now be envisaged on the basis of the shared (and ‘indirect’) competences on substantive criminal law entrusted to the EU by Article 83(2) of the Treaty on the Functioning of the European Union (TFEU), which allows such approximation when it proves essential ‘to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures’. At the same time, specific consideration can be given by the EU legislator to the involvement of organised crime in the commission of environmental crimes on the basis of Article 83(1) TFEU, which refers to cases of ‘particularly serious crime with a cross-border dimension’. However, it should not be underestimated that an approximation of criminal penalties for all environmental crimes covered by the ECD—even if undertaken by establishing minimum levels of maximum penalties—is not uncontroversial in the literature as it concerns its added value in terms of deterrent effect as well as adaptability to specific features of the different national legal frameworks and criminal justice systems. Moreover, it might not find the necessary political consensus among Member States. Thus, an alternative solution could be the enactment (top-down) or development (bottom-up) of common sanctioning guidelines. One aspect of environmental crime which should not be forgotten, and is often stressed by international crime-fighting organisations such as EUROPOL and INTERPOL, is not only that it often has a transboundary nature, but that increasingly environmental crime is also linked to organised crime. This is particularly the case for transboundary shipment of waste and for wildlife trafficking, which is often committed by or with the involvement of a criminal organisation. That may justify an amendment of the ECD taking this feature into account. Environmental crimes being committed within the framework of a criminal organisation could be considered to be an aggravating circumstance leading to increased sanctions. Important indications in terms of feasibility arise in this regard from the 2015 European Agenda on Security. In dealing with the objective of disrupting organised crime, the Agenda specifically addresses environmental crimes, ­underlining that environmental crimes can cause significant damage to the environment

322  Andrew Farmer, Michael Faure and Grazia Maria Vagliasindi and human health, reduce government revenues and impose clean-up costs on ­taxpayers. The Agenda explicitly states that the Commission will consider the need to strengthen compliance monitoring and enforcement, for instance by increasing training for enforcement staff, supporting relevant networks of ­professionals, and by further approximating criminal sanctions throughout the EU. The Agenda also includes reviewing existing policy and legislation on environmental crime among the actions to be taken. Therefore, importantly in the Agenda the E ­ uropean Commission, taking into account the activities for disrupting organised crime networks, commits itself to legislative and policy reviews on environmental crime as well as to support training and networking, which are equally important in enhancing implementation of environmental (criminal) law by Member States (see sections 3.4 and 5 below).

3.  ENVIRONMENTAL CRIME AND THE EU MEMBER STATES

The various chapters analysing environmental criminal law in selected EU M ­ ember States made clear that on the one hand the national legal frameworks have (to a greater or lesser extent) been affected by the implementation of the ECD; on the other hand the enforcement of environmental criminal law generally also poses various challenges in the Member States. Indeed, it is evident that there is a gap between what might be expected from the legislation in place and what is seen in practice. There are several reasons for this: —— In some cases the law is not always clear—this should be remedied by improved legal drafting. —— In all countries many environmental offences can be dealt with by either criminal law or administrative law and, in many cases, the application of administrative law may be preferred. There may be good reasons for this (not least relative simplicity), but it is not clear if the balance is correct on all occasions. —— Problems in ensuring robust evidence for successful prosecution, which can be the case for some environmental crimes. —— The capacity (staffing, specialist knowledge, etc) of all actors in the enforcement–prosecution-sentencing chain is insufficient. We will deal with these different aspects in turn.

3.1.  Improving Legal Drafting As was made clear in the previous, comparative chapter, there are still various problems with the way in which law relating to environmental crime is drafted. One aspect simply relates to the place of environmental criminal law. In some countries environmental crimes can be found in sectoral laws and are not brought

State of Affairs and Future Perspectives 323 together, for example, in an environmental code or in specific provisions in a penal code. This may on the one hand lead to the problem of fragmentation, as a result of which the provisions related to environmental crime could simply be difficult to identify, both for prosecutors and judges, but also for the addressees of the specific norms. It may also lead to legislative gaps or to overlaps that should be addressed by a further streamlining of the legislation within that particular country. Moreover, the fact that provisions concerning environmental crime in some countries are often placed at the end of an environmental act (of an often administrative nature) may provide the wrong signal to enforcement actors. Indeed, this could result in the incorrect conclusion that environmental crimes are not as important as, for example, crimes specified in the penal code. It is precisely for that reason that many countries have now incorporated environmental crime into specific sections in penal codes. That is certainly a desirable development, but it has not yet taken place in all EU Member States. A related problem identified in the country chapters with respect to the definition of environmental crime is that environmental crime is often made dependent upon the violation of specific administrative norms. This is referred to as the ‘administrative dependence’ of the environmental criminal law. Of course, to some extent it is logical and necessary that the criminal law builds further upon prohibitions and standards laid down in administrative law. However, the definition of environmental crime should not be limited to a mere enforcement of administrative obligations. It is for that reason that in many legal systems there now is a tendency towards formulating environmental crime in a more independent manner, allowing the prosecutor and the judge to assess the harmful nature of the environmental crime, irrespective of the violation of administrative duties. The fact that many legal systems now have so-called ‘concrete endangerment’ crimes, aiming at imposing sanctions for unlawful emissions, is characteristic of this development. Since the ECD also contains many concrete endangerment crimes it encourages an evolution in that direction. However, as a matter of principle the unlawfulness in the ECD is still defined as a breach of specific regulation implementing the environmental acquis. To an important extent the implementation of the ECD was an opportunity for Member States to rethink their system of environmental criminal law and to improve their domestic legislation. However, given the rather complicated nature of the Directive, some Member States clearly have had difficulties in implementation. In that respect it is striking that almost all authors of the country chapters mention that the implementation of the ECD in their domestic systems has failed in one aspect or another. Some authors also criticise the domestic implementation for increasing the complexity of the entire system. That is to some extent the unavoidable consequence of the fact that a legislative instrument like the ECD has to be transposed into an existing domestic system of environmental criminal law. As the examples showed, in some cases this could lead to an improvement of the domestic system of environmental criminal law; in other cases it rather added specific complexities, and questions were asked on whether the transposition of

324  Andrew Farmer, Michael Faure and Grazia Maria Vagliasindi the ECD effectively improved the quality of environmental criminal law in that particular Member State.

3.2.  Balancing Administrative and Criminal Sanctions The ECD only focuses on the criminal law and criminal sanctions, and even explicitly mentions in the Preamble that it attaches greater belief to the deterrent effect of the criminal law than to alternatives like administrative or civil sanctions. However, in the reality of the daily enforcement of environmental law, administrative agencies, administrative law and administrative sanctions play a crucial role, although there are of course differences between the EU Member States. In many Member States competences intended to achieve a proactive monitoring of environmental crime are provided to specialised administrative inspection authorities. This possibility to engage in proactive monitoring, ie even before there is any suspicion of environmental crime, is extremely important, especially since there may not be any individual victim who would otherwise report the crime. Environmental crime is therefore sometimes (wrongly) stated to be ‘victimless crime’. The reality is that the number of victims may in fact be quite large, but that either the individual interest may be too small to warrant complaint or that the environmental crime will sometimes be discovered at a too late a stage. For that reason the technical capacity to detect environmental crime via proactive monitoring is of crucial importance. In many Member States those tasks are given to specialised administrative inspection authorities, although in some there are specialised units within the police engaging in similar tasks. It is equally important to grant post-detection discretion to those administrative agencies in order to avoid the necessity to bring formal enforcement actions for every violation that has been detected, even when it would not merit formal prosecution (although in some Member States a general duty to report to the prosecutor may be an obstacle in this sense). A large part of environmental crime is committed unintentionally, out of ignorance and lack of information. In those cases a cooperative strategy whereby administrative agencies explain to operators the contents of their duties and obligations (‘compliance promotion’) could be more effective in leading them towards compliance than formal enforcement actions. Most EU Member States also have a wide variety of administrative remedies within their legislation which often aims at rapid intervention, preventing further harm from happening or restoring harm done in the past. Those remedies can be highly effective in undoing the negative consequences of environmental crime and preventing further harm from occurring. One problem, however, is that similar types of remedies can in many Member States be imposed via different legal routes (for example as an administrative remedy or sanction, a civil penalty or a criminal sanction). In that respect it is of course important that a clear coordination strategy is worked out within the environmental law framework in order to

State of Affairs and Future Perspectives 325 guarantee that the actor who is best placed to impose the remedy in an effective manner has the opportunity to do so, at the same time avoiding situations where operators would be confronted with a similar sanction twice or where no enforcement action is taken at all because actors each presume that the other will impose the necessary remedy. In an increasing number of EU Member States administrative agencies cannot only impose restorative or preventive remedies, but may also impose financial penalties (fines) for minor environmental offences. This possibility has been introduced in many legal systems, especially since there was increasing empirical evidence that environmental crime was often not brought before the criminal courts, but rather dismissed by the public prosecutor. The possibility of imposing administrative fines for minor environmental offences may allow the prosecutor to concentrate on the important cases, whereas at least some remedy is applied to the minor offences as well. Of course, the co-existence of administrative fines and prosecution also raises questions concerning for example the decision whether to apply an administrative fine or to refer the case for prosecution to the criminal court. But, on the condition that an effective coordination mechanism exists, these punitive administrative fines can provide additional deterrence and therefore can play an important supplementary role in the entire environmental enforcement system.

3.3.  Making Prosecution Successful Several elements can also have an important impact on the effectiveness of the entire enforcement system. One important aspect is that environmental legislation is often complicated and therefore requires specialised knowledge. That may point in favour of appointing specialised prosecutors and judges. Specialisation is in fact necessary at all levels of the enforcement chain, not only the prosecutor and the judiciary, but as mentioned before, also at the level of inspection and monitoring. Moreover, prosecution and sentencing guidelines, aimed at the prosecutors and/or the judiciary, for example indicating appropriate sanction levels for particular crimes, could also increase the effectiveness of prosecution. In addition, given the high costs of criminal prosecutions (and their limited capacity), systems of smart enforcement have to be developed whereby environmental agencies and prosecutors focus their efforts on specific categories of polluters or violators to achieve better results. A risk-based approach could allow inspection agencies to increase the effectiveness of monitoring efforts (see section 4 below). Given limited resources, enforcement agencies may engage in a targeted enforcement known as ‘regulatory dealing’, using tolerance in some contexts, but increasing compliance for other types of violations, for example those resulting in greater harm. However, even though it is possible to increase the effectiveness of the entire enforcement system for example through risk-based enforcement and targeting, a crucial element is of course that sufficient resources and funding need to be

326  Andrew Farmer, Michael Faure and Grazia Maria Vagliasindi available for environmental enforcement to guarantee effective remedies against environmental crime. 3.4.  Capacity to Address Environmental Crime Sufficient institutional capacity is a prerequisite for the effective implementation of legislation on environmental crime. Institutional capacity is not simply about numbers of staff, it includes: —— Are there sufficient staff to implement the legislation (eg to detect violations, undertake prosecutions, etc)? —— Do the staff have sufficient expertise to fulfil the functions of the organisation (eg in environmental impacts, criminal behaviour, legal rules of evidence, etc)? —— Do the organisations have sufficient equipment (eg for taking and testing samples, storage, etc, so that they are admissible as evidence)? —— Do the organisations have systems in place for information storage and transfer, to support investigations, prosecutions, etc? —— Do organisations have systems in place to enable efficient working relationships (eg police, customs, environmental inspectorates, etc)? In many countries of Europe there are problems in answering these questions positively (at least in a comprehensive manner). Basic capacity of staffing has proven a challenge across the EU, especially since the financial crisis and the governmental budget responses to it over the last decade. However, the characteristics of sufficient capacity are not only concerned with budgets. Inter-institutional problems can be found in several countries. In some cases this relates to poor management, but in others there may be structural issues to overcome. For example, sharing of databases of activities, crimes, etc, may be important routes to identifying crimes and collecting evidence (eg for waste ­shipments), but barriers may exist that might prevent the police, for example, sharing information with an environmental inspectorate. There is, therefore, a challenge for the future to improve the capacity of institutions implementing the ECD. In some cases this undoubtedly requires additional financial investment. More widely there is a need for improved training of staff. This is especially the case where staff are not primarily involved with environmental crime. This can range from police and customs officers for whom the detection of environmental crime is a small part of their functions, to prosecutors and judges for whom the details of environmental impacts are outside of their usual specialist knowledge. Improved training (including ongoing professional development) also requires investment, but it is also important to emphasise that much specialist understanding can be delivered through institutions working together and through exchange of experience between countries (see section 5 below).

State of Affairs and Future Perspectives 327 Systems and technical developments also offer great potential for combating environmental crime in the future. These developments include not only systems for information analysis and exchange (eg rapidly comparing ships’ manifests, companies, individuals, criminal records, etc), but also technical developments in forensics (eg DNA and wildlife crime). In some cases such developments represent enormous leaps in efficiency for the actions necessary to increase the effectiveness of environmental criminal law.

4.  STRATEGIES FOR ADDRESSING ENVIRONMENTAL CRIME

Effective and efficient enforcement of environmental criminal law requires the institutions responsible for the detection of non-compliance to adopt robust strategies to address the problems that are faced in the countries within which they work. Such strategies enable limited resources to be deployed to the greatest effect. It is important to note that such strategies can encompass the entire enforcement chain. Therefore, they may not be limited to determining efficient ways of detecting non-compliance, but may include compliance promotion activities to help avoid non-compliant activity in the first place. For example, is money better spent on informing the public about importing illegal animal products or on enhancing customs checks on returning tourists? Similarly, strategies may include decisions on enforcement actions to be taken when non-compliance is found, including the best use of administrative and criminal sanctions. For example, is it more efficient to enhance the detection of non-compliance or to ensure sanctions are efficient in deterring non-compliance in the first place? Such strategic approaches encompass all forms of risk-based regulatory activity, where inspectorates may target inspections based on information on risks of non-compliance to health and the environment and on compliance history. However, for much intelligence-led investigative activity, strategic approaches will determine the most effective routes not only for detection, but also for successful prosecution. For example, gathering evidence on illegal environmental activity might be complex, but including illegal tax/customs activity within the scope of investigations may be more successful. The starting point for all strategic approaches is a clear understanding of the problem of environmental crime—its extent, impacts, who is responsible, etc. In some cases such information is readily available; in others there may be significant information gaps and investigations are necessary to address these. A further important issue in developing strategies for effective enforcement is the institutional scope of such strategies. Ideally they should encompass all of the institutions relevant to the issue (eg an environmental inspectorate and the police) as this helps to define the respective responsibilities and mechanisms of co-operation.

328  Andrew Farmer, Michael Faure and Grazia Maria Vagliasindi 5.  CROSS-EUROPEAN CO-OPERATION ON EXPERIENCE OF IMPLEMENTATION

The ECD, as an EU directive, is transposed by Member States and we have seen that in doing so there is a diversity of approaches concerning its interpretation. It is also evident that the ECD (and the other EU legislation to which it relates) is subject to much debate at national level on interpretation, implementation challenges, etc. There is, therefore, the potential for exchange of experience between Member States in helping this learning process. Indeed, we hope that this book provides some useful information on the range of approaches across the EU for Member States to use. When exchange of experience between Member States is raised, it is common to pass this as an action point to the European Commission (to define, organise, facilitate, etc). For the ECD this would likely require co-operation between Directorate-General for Environment and Directorate-General for Justice in taking this forward. However, much exchange of experience would concern the interpretation of the ECD with respect to specific issues and this would be addressed in the context of the specific directives and regulations to which it applies. For this reason, where the European Commission has a role, this would most likely need to be led by DG Environment. Indeed, given the sectoral nature of legislation, this would involve several different units within DG Environment. These units would need to recognise the importance and complexities of implementation and interpretation of the ECD at Member State level with regard to their specific legislation. This is not always a priority at the moment. Having begun by mentioning the potential role of the European Commission in supporting exchange of experience between Member States, it is important to stress that much can be (and is already) being done through independent networks of Member State experts and it is through these networks that most is likely to be achieved in the future. In looking at the enforcement of environmental criminal law, we can distinguish three ‘categories’ of governmental actors: those that detect non-compliance and collect evidence (inspectorates, police, customs, etc); those that prosecute cases; and, finally, the judiciary. There are separate networks for each of these groups. The European Union Forum of Judges for the Environment (EUFJE) was established in 2004, with the aim to raise the awareness of the judiciary of environmental issues. As a result it supports information exchange between Member States and is important in enhancing the understanding of judges not only of the importance of environmental crime, but also of how environmental criminal cases should be handled. The European Network of Prosecutors for the Environment (ENPE) was established in 2012, supporting those involved in prosecution of environmental offences in the Member States. It promotes the exchange of information and experience of the enforcement and prosecution of environmental crime between members, enhancing knowledge, sharing experience of problems and solutions in investigations, presentation of evidence, best practices, training, etc. Importantly it also aims to facilitate collection of data about environmental crime across

State of Affairs and Future Perspectives 329 Europe and about enforcement action taken in relation to environmental crime. This information will be important to help inform future EU policy on the ECD and environmental crime more widely. The Environmental Crime Network (EnviCrimeNet) was established in 2011 as an informal network of environmental crime investigation services and other competent authorities responsible for fighting environmental crime. Facilitated by Europol (see below), EnviCrimeNet aims to enhance the effectiveness of the fight against environmental crime in general, and particularly organised environmental crime, for example by: ensuring that Member States become aware of the fight against environmental crime at the strategic level; mutual sharing of expertise; establishing relevant risk assessments that can be exchanged amongst the participants; mutual learning in the fields of risk assessments and intervention strategies; establishing tactical analyses of particular forms of environmental crime; and exchanging investigation methods. The European Union Network for the Implementation and Enforcement of Environmental Law (IMPEL), established in 1992, is the network of environmental inspectorates (and similar) in the Member States (and more widely). It undertakes much of its work through projects which focus on exchange of experience between its members, helping them to better implement EU environmental law and to inform future EU policy development. It organises peer reviews of its members’ inspectorates and undertakes activities such as joint inspections where there is mutual learning. It is important to note that these are not the only co-operative bodies relevant to environmental crime. Europol is an important network for police co-operation which has a specific unit on environmental crime. Customs authorities co-operate and exchange experience on environmental crime through organisations such as Green Customs. Judicial co-operation between Member States is further supported by Eurojust, which was established as a judicial cooperation unit by the European Council in 1999, and which aims to stimulate and improve the coordination of investigations and prosecutions between the competent authorities in the Member States. Eurojust’s competence includes many types of crime, including environmental crime. From a de iure condendo perspective, also the European Public Prosecutor could play a role in the fight against serious environmental crimes having a transnational dimension. There are, therefore, a range of different networks which can support Member States’ authorities in improving the enforcement of environmental criminal law. Indeed, it is interesting to note that EUFJE, ENPE and EnviCrimeNet were created after adoption of the ECD. Some are still relatively new networks, but there is significant potential for them to drive application of the ECD in a more consistent way than has happened to date, including through inter-networks cooperation. As to the latter, it is worth mentioning that in May 2016 the aforementioned ­networks organised a joint conference in Utrecht, where the representatives of the entire compliance chain addressed together challenges and solutions to strengthen environmental compliance.

330  Andrew Farmer, Michael Faure and Grazia Maria Vagliasindi A critical point to determine over time is the extent to which co-operation and networking can address the failings in effective enforcement of environmental criminal law. This is important, as one alternative is amendment of the ECD (or of the directives to which it applies) by strengthening or elaborating on specific provisions. For example, if the effectiveness of environmental criminal law enforcement is hindered by the inappropriate balance between administrative or criminal sanctions, or due to use of too lenient sanctions in some Member States, could this be addressed through mutual learning between the Member States? Or are there barriers which require a top-down solution from EU legislation?

6.  ENSURING ENVIRONMENTAL CRIME IS GIVEN SUFFICIENT PRIORITY

Environmental crime often does not have sufficient priority in decision-making (from high politics to the decisions of individual authorities). In some cases this may be because it seems ‘hidden’ from view. However, many types of environmental crime do receive significant publicity and public concern (from wildlife poaching to fly tipping of waste). Information campaigns are, therefore, important to help raise the profile of environmental crime in the view of the public and of decision-makers. Indeed, such information campaigns can often be linked to strategies for compliance promotion—helping the public to understand how their actions can contribute to reducing environmental crime or, in publicising enforcement actions (eg fines, vehicle seizures, etc), spreading messages to perpetrators of crime. An additional issue to encourage prioritisation of environmental crime is to obtain a better understanding of its impacts, including its economic impacts. Environmental crime has many different impacts, some of which can be quantified and some monetised. There are some good examples of information that can be used to understand the impacts of environmental crime. However, there are often problems in attempting to quantify the impacts of environmental crime. These include: —— Barriers to determining what level of crime is occurring, where, what trends emerge, etc. In some cases, there is poor recording of criminal activities. Further, in other cases it may be difficult to distinguish between legal and illegal activity. —— Information about impacts may prove difficult to move from the anecdotal to the quantitative. —— Where crime levels are known, the impacts from such crimes may be mixed with those from legal activities, so that distinguishing impacts is difficult. —— There is often poor monitoring and recording of changes to environmental quality, health, etc, so that quantitative impacts of criminal activities are not known even where levels of criminal activity might be relatively well recorded.

State of Affairs and Future Perspectives 331 The impacts can be compared to the financial cost of enforcement efforts. Comparative figures can be used to target enforcement action. At a governmental level, data demonstrate the political importance of an issue and help in policy development, budgeting, etc. Therefore, good data are important. It is important, therefore, that the EU institutions and Member States authorities improve monitoring and collection of data on the impacts of environmental crime, including its economic impacts. Good information on impacts will help, inter alia, to: —— Provide information for enforcement strategies which seek to target actions to where impacts of environmental crime are greatest. —— Inform actions to be taken once those impacts have occurred, such as in quantifying liability obligations. —— Empower victims by providing solid evidence of the harm caused to them. Quantitative information on the extent of impacts of environmental crime can, therefore, be an important tool in ensuring that it is taken more seriously by all parties. Better information will, therefore, be critical in ensuring effective enforcement of environmental criminal law in the future.

7.  FINAL OBSERVATIONS

Environmental criminal law, both in the Member States and in the EU has gone through a remarkable development over the past decades. As was mentioned in section 2 of this chapter, the EU has rightly shown great concern with respect to the implementation of the environmental acquis. This results from the institutional framework that requires collaboration between the EU level (which fixes the standards) and the Member State level (which is responsible for implementation and enforcement). One of the goals of the ECD was to make sure that the domestic legislation transposing the environmental acquis would also be effectively enforced within the EU Member States. Although this undoubtedly constitutes an important step there is still a lot of work to be done. Notwithstanding the harmonisation of substantive environmental criminal law via the ECD, substantial divergence between EU Member States still exists. The sources of this divergence mostly concern monitoring, inspection, prosecution and sanctioning. On those issues the ECD is silent. The question arises to what extent this divergence at the institutional level may lead to real differences between the Member States as far as effective enforcement of environmental criminal law is concerned. One problem is that data on the effective enforcement of environmental law in the Member States are to a large extent simply lacking. That means that the European Commission, for example, lacks data on the total enforcement capacity and enforcement strategies within the EU Member States. This lack of data could endanger one of the central goals of European environmental law, namely the prevention of a race-to-the-bottom between Member

332  Andrew Farmer, Michael Faure and Grazia Maria Vagliasindi States via a lenient enforcement of environmental law. Precisely to remedy this danger it would be of crucial importance to impose a duty on Member States to provide verifiable information on the effective enforcement of the domestic legislation implementing the environmental acquis. That seems to be a crucial step in order to avoid that harmonisation efforts remain largely symbolic without any real improvement of environmental quality within the Member States.

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Index A Aarhus Convention  235 abstract endangerment France  73–74, 274, 275 generally  27, 48, 274–276 Germany  101, 274, 275 Italy  129, 130–132, 155, 275, 311–312 meaning  274 Poland  275 sanctions  48 Spain  203, 210, 275 Sweden  274 accomplices see aiding and abetting Action Plan against Wildlife Trafficking  53–54 adequate cause theory causality principle  66 administrative dependence of criminal law France  62 generally  47–48, 271–274, 276, 316, 323 Germany  100, 271–272 Italy  129, 130 lex certa principle  272, 308 Spain  189, 204 administrative enforcement advantage  300–301 deterrence and  299–301 expertise of administrative authorities  299–300 generally  298–304 monitoring and investigation  298–299 administrative law abstract endangerment  274 corporate liability  281, 283–284 France  62, 89–91, 92, 301, 303 Germany  97, 100, 105, 114–115, 116, 269, 275, 283, 301 Italy  126, 135, 152–154, 269, 301, 303 permit offences see permit offences Poland  160–161, 171–175, 177, 181, 187, 302 Spain  190–191, 198, 202–205, 216, 302 Sweden  232, 302 United Kingdom  269 unity of legal order principle  272–273 administrative sanctions see also sanctions abuse of fines system  303 balancing with criminal sanctions  322, 324–325 France  89–91, 92, 301, 303

generally  299–304, 313–314, 315–317, 324–325 Germany  114–115, 299, 301, 303 Italy  152–154, 301, 303 Poland  186, 187, 302, 303 prevention as aim  299, 324–325 restoration see restoration of the environment signalling social disapproval  41, 44–45, 269 Spain  191, 192, 216, 302, 303 Sweden  238–239, 240, 241, 303 UK civil sanctions  246, 253, 256–258, 261–262, 263, 270, 302–303, 313, 317 aiding and abetting ECD provisions  41, 43, 246 EU harmonisation  23, 25 France  68–69, 71 Germany  99 Italy  125 Poland  163–164 United Kingdom  246–247 air/atmospheric pollution ECD provisions  41–42, 75, 77, 92 France  60, 61, 63, 75, 76, 311 Germany  99, 311 Italy  128, 129, 130, 131, 132, 137, 139, 153 Poland  176, 178 Spain  196 substantial damage to quality of air  27, 28 Sweden  222, 225–226 terrorist offences  61, 63 alternative dispute resolution  11 Amsterdam Treaty  5, 8, 15, 16 animals see flora and fauna; protected species and habitats appeals France  82 generally  292 Italy  145, 147, 152 Poland  165 Sweden  231–233, 235 United Kingdom  243, 252, 257 approximation of criminal laws transborder crimes  15, 19, 21, 25–26, 32–55, 320–321 asbestos France  83 Ashworth, A and Horder, J  245, 251 atmospheric pollution see air/atmospheric pollution

350  Index attempted crimes criminalisation  23, 321 autonomous crimes generally  278–280, 314 Aznalcollar mining spill  199, 208 B beaches France  76, 76n beauty of landscapes Resolution (77) 28  33 Bell, S et al  254, 258 Bengtsson, Anders  229n, 232, 233 Bernardi, Alessandro  21 Brosnan, Anne  244n Brundtland Report  5 building, illegal Italy  147 Spain  199, 200, 217, 220n C causality principle adequate cause theory  66, 66n equivalence theory  66 force majeure  68 France  65–67 indirect causation  66–67, 66n Italy  123–124, 157 negligence  66, 67 Poland  163 proximate cause theory  66, 67n recklessness  66 causation difficulty proving  272 United Kingdom  244, 246 caves France  78n Charter of Fundamental Rights  7, 27, 31 chemical substances see dangerous substances chlorofluorocarbons (CFCs) see ozone-depleting substances CITES  13, 256 civil servant, collusion Italy  144 risk generally  292 Spain  193, 201, 201n, 212 climate change  7, 11, 12 coastal areas France  76, 76n Spain  217 coast guard France  86 Italy  147 Sweden  230, 235, 302 collective entities see also corporate liability; legal persons Italy  125–126, 137, 138, 139, 155 Poland  179, 188

common law United Kingdom  245 competition corporate liability and  48–49 ECD objectives  50 environmental legislation and  45 compliance enforcement  32, 44, 50 impact on fair competition  45 monitoring  32 promotion  32, 324 complicity France  68–69 United Kingdom  244, 246–247 concrete endangerment France  276–277 generally  48, 274, 276–278, 310, 323 Germany  101, 274, 277 Italy  129, 131, 137, 277–278 meaning  276 Poland  277 Spain  203, 210, 277 Sweden  277 confiscation/forfeiture deterrence  315 France  70–71, 70n, 80 Germany  112, 113, 313 Italy  123, 141, 157 Poland  168, 169, 183, 188, 312 provisions generally  16, 51, 315 Sweden  222, 224, 238 Convention on the Protection of the Environment through Criminal Law  35–36, 189 corporate liability administrative penal law  281, 283–284 autonomous  281 cumulative with natural persons  281–282, 283–284, 285 ECD provisions  48–49, 280, 314 fair competition and  48–49 France  71, 282, 283, 285 generally  34, 280–285 Germany  282, 283 Italy  138, 282, 283, 312 Poland  166–169, 179, 282–283, 285 sanctions  49 Spain  196, 213–216, 282, 284, 285 Sweden  224–225, 239–240, 242, 282, 284 United Kingdom  244, 247, 252, 259–261, 284, 313 corruption EU harmonisation  16 Italy  144 Poland  182 risk generally  292 Spain  193, 201, 201n, 202, 212, 220, 287, 296 Sweden  229

Index 351 Council of Europe guidelines  189 courts environmental expertise  180, 272, 315 France  82–83, 82n Germany  110–111, 298 Italy  120, 121, 144–145, 147, 298 Poland  160 Spain  208, 298 specialisation  297–298, 315 Sweden  231–233, 235, 298, 315 United Kingdom  243, 245, 252, 298 criminal associations see organised crime criminal procedure see procedure criminal relevance thresholds of the fact  46–47 culpability Poland  166, 176 customs officers cross-Europe cooperation  328–330 France  86 generally  327 Germany  110 Green Customs  329 Poland  180, 182 Sweden  235 United Kingdom  252 D Dalhammar, Andrea Hjärne  229n, 231, 234, 236, 237n, 240 dangerous substances ECD provisions  41–42 France  61, 63n, 83 Germany  99 Italy  132, 133, 138, 147 Poland  168 Spain  193, 194 Sweden  226–227, 238 terrorist offences  61, 79, 279 Darpö, Jan  229n, 232, 236, 237, 239, 240 Davies, Charlotte  244n definition of environmental crime France  60–64 Germany  97 Italy  126–130, 154 Poland  175–177 Spain  191–192 Sweden  222–223 United Kingdom  244, 244n Delmas-Marty, Mireille  62 De Rijck, RMJ  7 detection see monitoring and investigation deterrence administrative enforcement  299–301 criminal law as deterrent  45, 53, 248 detection and enforcement rates  48, 297 deterrence model generally  292, 299–300

effective, proportionate and dissuasive penalties  28, 32, 38, 42, 43, 73, 75, 80, 114, 132, 140, 143, 149, 247, 259, 280, 304, 307, 309, 311, 314 forfeiture of gains  315 forum shopping  28, 44–45 France  71n, 88 generally  33, 301, 303, 311, 321, 324, 325, 327 Germany  113–114 Italy  133, 155, 156, 157 Poland  185 public notice  70, 71, 80, 113, 169, 183, 313, 315 Spain  209, 217 Sweden  225, 228, 239, 242, 307 United Kingdom  248, 253, 259, 261, 262 E ecomafia  29, 50–51 see also organised crime emergency brake mechanism EU criminal harmonisation  24 endangered species see flora and fauna; protected species and habitats enforcement see also expertise of enforcement chain administrative see administrative enforcement cost-effectiveness  154, 292–293, 299–301, 304, 314, 325, 331 generally  322, 323–324, 325–326 IMPEL  236, 329 lack of data  331–332 prioritisation of environmental crime  323, 330–331 strategic approaches  327 Environmental Crime Directive see also Environmental Crime Directive, transposition administrative and criminal sanctions, balancing  322, 324–325 administrative dependence of criminal law  316, 323 adoption  3, 6–7, 18, 39 aiding and abetting  41, 43, 246 analysis and assessment  43–52 binding minimum standard  32–33 causes or likely to cause death or serious injury  27, 28, 41–42, 46, 77, 92 compliance  32, 44, 50, 324 corporate liability  48, 280, 314 criminal relevance thresholds of the fact  46–47 dangerous substances  41 effective, proportionate and dissuasive penalties  28, 32, 38, 42, 43, 73, 75, 80, 114, 132, 140, 143, 149, 247, 259, 280, 304, 307, 309, 311, 314

352  Index enforcement  322, 323–324, 325–326 extrema ratio (ultima ratio) principle  26–27, 34–35, 46, 53 funding and resource issues  322, 325–326 generally  60, 189, 267–268, 319 habitats  42 implementation  44, 304–309, 314–317, 322, 323–324, 325–326 incitement  41, 43, 48n, 246 informing the public  327, 330–331 institutional capacity to address environmental crime  322, 326–327 integration principle  5, 7, 8 intent  32, 41, 47, 246 legal persons  23–24, 32, 39, 43, 48–49, 280 mens rea  246 as minimum standard  48 natural persons  41 negligence  32, 41, 47 negligible transgressions  46–47 noise pollution  31 objectives  6, 9–10, 32, 44, 46, 50, 52, 331 overall effects  316–317 ozone-depleting substances  42, 47–48, 50 pollution  41–42 Preamble  40, 44 prioritisation of environmental crime  323, 330–331 proportionality principle  9, 27, 53 protected sites  42 protected species  42, 78 radioactive substances  42 sanctions generally  39, 41, 44 shipment of waste  41, 48, 50, 51, 77, 77–78n, 103 shortcomings  52–53, 316–317, 320–321 staffing issues  326–327 strategies for addressing environmental crime  327 subsidiarity principle  8–9, 11 supranational legal interests  20–21, 27, 46 sustainable development principle  5–6, 7, 8 unlawful, meaning  41 vagueness in drafting  47, 320–321, 322–324 waste management see waste management Environmental Crime Directive, transposition France  72–81, 91–93, 304, 305, 306, 308 generally  32 Germany  95, 99, 101–105, 108–109, 115–117, 305, 306, 307–308 Italy  119, 122, 130–144, 155, 304–306, 308 Poland  159, 168, 177–180, 186–187, 305, 306–307 Spain  189, 194–198, 217–220, 305, 306, 307, 316 Sweden  225–228, 241–242, 307 United Kingdom  243, 247–248, 305, 306, 307–308

Environmental Crime Network (EnviCrimeNet)  329 equivalence theory causality principle  66 extrema ratio principle  27 Euratom Treaty  41 Eurojust  236, 329 European Agenda on Security  53–54, 321–322 European Commission Communication on implementation of EU policies through criminal law  46 European Convention on Human Rights legality principle  64 European Council guidelines on use of criminal provisions  46 European Network of Prosecutors for the Environment (ENPE)  236, 328–329 European Union access to environmental information  31 Action Plan against Wildlife Trafficking  53–54 alternative dispute resolution  11 Amsterdam Treaty  5, 8, 15, 16 approximation of criminal laws  15, 19, 21, 25–26, 32–55, 320–321 Area of Freedom, Security and Justice  7, 9, 14, 16, 19–22 Charter of Fundamental Rights  7, 27, 31 co-decision procedure  10, 10n common legal interests  20 confiscation/forfeiture  16, 51, 315 cooperation principle  8 Council of Tampere  15, 36 criminal competence  6, 6n, 15–29, 33–55, 320 criminal law, harmonisation  15–29, 35 criminal sanctions, harmonisation  22, 27–29, 41, 44–45, 52, 53 decision-making procedures  9–10, 10n democratic deficit  20 Directive 2005/35/EC  18n, 38–39, 196 Directive 2008/99/EC see Environmental Crime Directive Directive 2009/52/EC  18n Directive 2009/123/EC  39–40, 40n, 130, 196, 197, 215 double majority procedure  10 ECD see Environmental Crime Directive emergency brake mechanism  24 EnviCrimeNet  329 Environmental Action Programmes  3, 4, 9, 10–12, 14 Environmental Crime judgment  9 environmental provisions in EU treaties  8 EU level cooperation  235–236, 328–330 Euratom Treaty  41 Europe 2020 Strategy  320

Index 353 evolution of environmental criminal law  267–268 external dimension of environmental policy  11–14, 12n extrema ratio (ultima ratio) principle  26–27, 35, 46–47, 53 Framework Decision 2000/383/JHA  16 Framework Decision 2001/500/JHA  16 Framework Decision 2001/888/JHA  16 Framework Decision 2002/475/JHA  16 Framework Decision 2002/629/JHA  16 Framework Decision 2002/946/JHA  16 Framework Decision 2003/80/JHA  16, 37–38, 62–63 Framework Decision 2003/568/JHA  16 Framework Decision 2005/667/JHA  16, 38–39 functional use of criminal law  46 history of environmental provisions  3–12 impact assessments  31 IMPEL  236, 329 indirect criminal competence  19, 23, 25–27, 44, 52 infringement procedures  320 Initiative of the Kingdom of Denmark  36–37 integration principle  5, 7, 8 Kingdom of Spain v Council of the European Union  5, 5n legal personality  12 Lisbon Treaty  3, 7–12, 17, 51, 320 Maastricht Treaty  4–5, 8n, 16–17 Nice Treaty  5–7 organised crime  15, 29 Paris Summit (1972)  4 precaution principle  5 prioritisation of environmental crime  323, 330–331 proportionality principle  9, 27, 50, 303, 310, 311, 313, 315 Resolution (77) 28  33–35, 33n serious crime with cross-border dimension  19–20, 321 Seventh Environment Action Programme  3, 4, 10–12, 14 ship-source pollution  6, 9, 16, 17–18, 38–39, 130, 135 Single European Act  4 subsidiarity principle  4, 8–9, 8n, 11, 26 substitution principle  11n supranational legal interests  20–21, 27, 46 sustainable development principle  5–6, 7, 8 TEC  5, 8, 37–38 TEEC  3–4 TEU  7, 8, 15, 22, 37 TFEU  5, 7, 8, 9, 10, 15, 19–23, 24–29, 31, 32, 51–52, 321 unanimity principle  4, 5, 10

UN representation  12–14, 13n Waste Framework Directive  103 Waste Shipment Regulation  103 water resources management  5 European Union Forum of Judges for the Environment (EUFJE)  328, 329 European Union Network for the Implementation and Enforcement of Environmental Law (IMPEL)  236, 329 Europol  236, 321, 329 evidence France  82, 87, 87n Germany  107–108 Italy  145 Poland  166 United Kingdom  253 expertise of enforcement chain courts  272 generally  325–327 monitoring and investigation  289–290, 291 prosecutors  293, 300 technical developments  327 extrema ratio principle Convention on the Protection of the Environment through Criminal Law  35 Environmental Crime Directive  26–27, 34–35, 46, 47, 53 equivalence principle  27 EU criminal competence  26–27, 46–47, 53 EU generally  35, 46–47 France  65 Germany  98 Italy  122, 135, 156 Poland  174, 186 Resolution (77) 28  33, 34–35 United Kingdom  244, 245–246, 249 F Faure, Michael  40 felonies France  64, 64n, 67, 69–70 Germany  99, 111 Italy  122–123, 124–125, 129–130, 134, 139–142, 144, 155–157 Poland  163 fish/fishing France  62n, 76, 87n, 277 Italy  147 Poland  180 Spain  193, 195, 213 flora and fauna see also protected species and habitats breeding  78n ECD provisions  41–42, 77, 92 food products for animals  83 France  60, 61, 77, 78, 78n, 80–81 Germany  100, 110 illegal import/export  78n, 110

354  Index Italy  129, 131, 135–137, 147–148 killing  42, 63n, 100, 136, 179, 194 natural habitats  78, 78n negligent killing  104, 136 non-native  78, 78n, 80–81, 195 parts or derivatives  42, 78n, 135, 143, 194, 197 Poland  168, 176, 178–179 possession of protected species  42, 100, 103 protected species generally  42 Spain  191, 193, 194, 195, 197, 198, 202, 213, 215 substantial damage to  27, 28 Sweden  222, 226, 228 taking of specimens  42 trade in protected species  29, 42, 50, 51, 53, 63n, 78n, 100, 103, 110, 131, 135, 136, 137, 139, 143 unauthorised killing  100, 136 United Kingdom  251, 259 force majeure France  68 foreseeability United Kingdom  253 forests EU global policy  12n France  86 Italy  146 Poland  161, 177, 180 Spain  193, 208 United Kingdom  255 forfeiture see confiscation/forfeiture forum shopping danger of  28, 44–45, 50 fossils France  78n fracking generally  199 France abstract endangerment  73–74, 274, 275 accomplices  68–69, 71 adequate cause theory  66 administrative dependence of criminal law  62 administrative offences  90 administrative sanctions  89–91, 92, 303 advertising  87n air/atmosphere pollution  60, 61, 63, 75, 76, 311 alternatives to prosecution  84 appeals  82 astreinte  91 bande organisée  61, 79, 80–81, 286–287, 311 beaches  76, 76n carrying out unauthorised activity  73–74, 274 causality principle  65–67 caves  78n

Charter for the environment  59, 61, 62 coastal areas  76, 76n coast-guard  86 Commission on Reform of the Criminal Code  60 complicity  68–69 concrete endangerment  276–277 conditional suspension  84 confiscation/forfeiture  70–71, 70n, 80 corporate liability  71, 282, 283, 285 courts  82–83, 82n Criminal Code  59, 60–61, 85, 269 customs officers  86 dangerous substances  63n, 83 Declaration of the Rights of Man and of the Citizen  64, 64n, 65 definition of environmental crime  60–64 deliberate endangering of others  67 délinquance écologique, proposed  63, 63n délit d’atteinte à l’environment  63 derivative responsibility (emprunt de criminalité)  68–69 destruction, defacement and damage  79 deterrence  71n, 88 dol éventuel  67 economic gains  84 Environmental Code  59, 60, 61, 61n, 62, 72–74, 73n, 75, 269, 270, 277 environmental inspectors  86–87 environment a fundamental interest of the Nation  59, 60–61 equivalence theory  66 evidence  82, 87, 87n faute caractérisée  68 faute délibérée  68 faute qualifiée  67–68 faute simple  67 felonies  64, 64n, 67, 69–70, 71 fish/fishing  62n, 76, 87n, 277 flora and fauna  60, 61, 77, 78, 78n food products for animals  83 foodstuff or ingredients  61, 63, 83 force majeure  68 forests  60, 86 fossils  78n free proof principle  82 guidelines of criminal policy  83–84 harmonisation lacking  60 human health or life  61 incitement  69 individualisation of punishment  69 investigation  85–91, 289, 291 ionising radiation  75 judiciary  81, 82 Law No 2000-674  66 Law No 2003-591  59 Law No 2004-204  72, 79 Law No 2010-788  72, 91

Index 355 Law No 2016-1087  60, 81, 85, 89 laws and regulations, allocation of competences  64–65 legality principle  62, 64–65 legal persons  67, 69–70, 71–72, 79–80, 79n, 282, 283 limitation periods  76n material element of offence  65–66 mediation  84 mens rea rules  67–68 mental element of offence  66 misdemeanours  64, 64n, 67, 70, 71 national forest agents  86 national parks  78n natural habitats  78, 78n natural persons  67, 69–70, 79 natural spaces  60 nature reserves  78n, 86 necessity of criminal law principle  65 negligence  66–68 noise pollution  63n non-compliance  84, 90 non-governmental organisations  87–88 non-retroactivity  65 nuisance, prevention  60 obstruction  84 OCLAESP  86 opportunity principle  294 Ordinance No 2000-914  59 Ordinance No 2012-34  60, 64, 72, 73, 80, 89, 90, 91–93, 304, 305, 306 organised crime  61, 79, 80–81, 286–287, 311 ozone-depleting substances  63n partie législative texts  59 partie réglementaire texts  59 personalisation of penalties  91 petty offences  64, 64n, 68–69, 70, 71, 82, 83, 84, 85 physical integrity of the person  61 plea bargaining  294 pôles de santé publique de Paris et Marseille  82–83 police  85–86, 89, 91 pollution  60, 62, 75–79 procedure  81–88 proportionality  75, 90–91 proposed general environmental crime  62–64, 92 prosecutor  81, 83–85 prosecutorial discretion  83–84, 294 protected species and habitats  60, 61, 77, 78 proximate cause theory  66 Public Health Code  60 public notice (affichage)  70, 80 radioactive substances  78, 87n Rapport Lepage  63, 63n, 92, 276–277 Rapport Simoni  62 recidivism  83, 92

recklessness  63, 66, 67, 68 remedying environmental damage  83 Report to the President of the Republic  73, 73n response to EU requirements  62–63 restoration of the environment  61n, 63, 76n, 84, 84n, 85, 89n risk assessment  60, 76–77, 79–80 Rural Code  60 sanctions  61–63, 69–71, 73–79, 80, 88–91, 89n, 92, 93, 311 ship-source pollution  82 sites of geological interest  78n soil pollution  61, 75, 77, 83 special environmental criminal law  75–79 state immunity  71 strict interpretation of the law  65 sustainable development  61n, 63n, 80n symbolic dimension of environmental protection  61 territorial waters  61, 76, 76n terrorism, ecological  61, 79, 279 transposition of ECD  72–81, 91–93, 304, 305, 306, 308 ultima ratio principle  65 urban planning  60, 87n vehicles, desertion  79 waste  77, 77–78n, 81, 83 water pollution  60, 61, 62n, 75, 76–77, 76n, 311 wrecks, desertion  79 functional use of criminal law legitimacy  46 G Galvin, John  244n genetically modified organisms (GMOs) Italy  131 Poland  168, 177 geological interest, sites of France  78n Germany 45. Strafrechtsänderungsgesetz  95, 101 abstract endangerment  101, 274, 275 administrative dependence of criminal law (Verwaltungsakzessorietät)  100, 271–272 administrative law (Ordnungswidrigkeitenrech)  97, 100, 105, 114–115, 116, 269, 270, 275, 281, 299, 301 Administrative Offences Act  114–115 administrative sanctions  114–115, 299, 301, 303 aiding and abetting  99 air pollution  99, 311 attempting to commit a crime  100 burden of proof  106, 108, 109, 116 Code on Criminal Procedure (Strafprozessordnung; StPO)  106

356  Index concrete endangerment  101, 274, 277 confiscation/forfeiture  112, 113, 313 Constitution of Courts Act  109 corporate liability  282, 283 courts  110–111, 298 crimes by German citizens in another EU State  102 Criminal Code (Strafgesetzbuch; StGB)  96, 97, 98, 99, 101–103, 269, 270, 277 criminal liability  98–99 criteria for crime to be committed  98–99 culpability  98–99 customs services  110 dangerous substances  99 definition of environmental crime  97 duty to prosecute  294 endangerment crimes  100, 101 enforcement deficits  108, 116 environmental crime statistics  96–97, 108–109, 111, 116 evidence  107–108 Federal Game Conservation Act  100 Federal Hunting Act  100, 102–103 Federal Nature Conservation Act  97, 102–103, 115 felonies  99, 111 hunting provisions  100 incitement  99 intent  98–99, 111, 311 investigation  106–111, 289–290, 291 ionising radiation  99 lack of due care  99 legal entities  98, 114–115, 281, 282, 283 legality principle  98, 293, 294–295 legislation  269 lex certa requirement  47, 98, 104, 105, 308 misdemeanours  99, 108, 111 natural persons  98, 114–115 necessity of criminal law principle  98 negligence  100, 101, 104, 105, 115, 311 nemo tenetur se ipsum accusare principle  106 noise pollution  99 non-compliance  114 non-ionising radiation  99 nuclear facilities  99 plea bargaining  109, 294 poison, releasing  99, 279 police  109–110, 290 prevention, system based on  101, 299 primary criminal law (Kernstrafrecht)  97, 99, 116 problems with system  111, 113, 116–117 procedure  106–109 prosecutor  109, 289, 295–296, 297 prosecutorial discretion  106, 108, 116 protected areas  99 protected species and habitats  100, 103, 104, 110

radioactive substances  99 risk assessment  101 sanctions  98, 99, 111–115, 310, 311, 313 sea, criminal offences at  110 secondary criminal law (Nebenstrafrecht)  97, 99, 100, 116 soil pollution  99 transborder crimes  102, 104 transposition of ECD  95, 99, 101–105, 108–109, 115–117, 305, 306, 307–308 ultima ratio principle  98 unlawful, meaning  102 unlawful operation of facilities  99 vibrations, causing  99 waste, cross-border shipment  97 waste management  99, 103, 109, 113 water pollution  99, 103–104, 277, 311 Giannini, MS  127 H harm-based offences see concrete endangerment human life or health, endangering generally  273, 310 physical integrity of the person  61 Resolution (77) 28  33 Hunter, Nevin  244n hunting offences Germany  100 Poland  180 Spain  193, 195, 213 Sweden  223 I ignorance violations resulting from  256, 293, 296, 324, 327 impact assessments  31, 199 incitement ECD provisions  41, 43, 48n, 246 France  69 Germany  99 Italy  143 United Kingdom  246–247 intent see mens rea interdicting sanctions  138, 142 international cooperation  235–236, 319–322, 328–330 International Fund for Animal Welfare (IFAW)  255–256 Interpol  236, 256, 321 investigation see monitoring and investigation Italy abbreviated proceedings  151–152 abstract endangerment  129, 130–132, 155, 275, 311–312 active repentance  141, 141n actus reus  123–124

Index 357 administrative dependence of criminal law  129, 130 administrative law  126, 135, 152–154, 269, 301 administrative sanctions  152–154, 301, 303 aggravating circumstances  125, 140–141, 144, 315 aiding and abetting  125 air pollution  128, 129, 130, 131, 132, 137, 139, 153 alternative procedures  151–152 antigiuridicità  123 appeals  145, 147, 152 archaeological sites  139 biodiversity  129, 139 causality principle  123–124, 157 civil servant, collusion  144 coast-guard  147 collaboration with authorities  141 collective entities  125–126, 137, 138, 139, 155, 282, 283 Comando Unità  146, 290 concept of environment  126–128 concrete endangerment  129, 131, 137, 277–278 condicio sine qua non  124 confiscation  123, 141, 157 Constitutional Charter  119–121, 126–128 Constitutional Court  121 Constitutional Law No 3/2001  127–128 corporate liability  138, 282, 283, 312 corruption  144 courts  120, 121, 144–145, 147, 298 Criminal Code  121, 269, 270, 305 criteria for crime to be committed  123–124 culpability  123, 124 cultural heritage, protection  126, 127, 139, 147 dangerous substances  132, 133, 138, 147 death or bodily harm  139 decrees  121, 122, 152, 295 definition of environmental crime  126–130, 154 deterrence  133, 155, 156, 157 discharge of domestic water or drainage systems  153 disqualification from public contracts  142 dolo  124, 124n duty to prosecute  145, 147, 154, 295 duty to report  154, 291, 324 ecosystems  129, 139 endangering public safety  134 Environmental Code  128–129, 130–131, 154, 269, 270 environmental crime statistics  146, 147–148 environmental disaster  129, 134, 139–140, 142, 143, 144, 157, 279, 312 evidence  145

extinction of misdemeanours  150–151, 156 extrema ratio principle  122, 135, 156 failure to provide information  131 felonies  122–123, 124–125, 129–130, 134, 139–142, 144, 155–157 fish/fishing  147 flora and fauna  129, 131, 135–137, 139, 147–148 forests  146 Franzese case  124 genetically modified organisms  131 health, protection  126 hindrance to controls  140 illegal building and urbanism  147 incitement  143 industrial wastewater  133, 138 interdicting sanctions  138, 142 investigation  134, 145–147, 290, 291 judiciary  120, 144, 147, 156–157 justification  124 landfills  131, 138 Law No 68/2015  129, 130, 139–142, 155, 156, 277–278 Law No 349/1986  127 legal entities  125–126, 130, 137, 138, 139, 143, 155 legality principle  122, 154, 293, 295 legislation  120, 121, 122, 129, 269 Legislative Decree No 121/2011  130, 135–139 Legislative Decree No 152/2006  137 Legislative Decree No 177/2016  146 Legislative Decree No 231/2001  125, 137, 142 liability  125–126, 128, 155 limitation periods  134, 142, 148–149 mafia-type associations  28–29, 50–51, 140–141, 142, 144, 155–156, 286–287, 312 mens rea/intent  123, 124, 144 misdemeanours  122–123, 124–125, 129, 131–132, 133–134, 139, 144, 149–151, 154, 155 mitigating circumstances  125, 141, 157 monistic model  125 natural landscape  126 natural persons  130 negligence  124–125, 138, 140, 142, 144 non-compliance  131 non-retroactivity  122 notizia di reato/notitia criminis  146, 152 oblazione comune/oblazione speciale  134, 149 oblazione discrezionale  295 order-injunctions (ordinanzaingiunzione)  153, 301 ozone-depleting substances  131, 137 Parliamentary Commissions  148 permits, activity without  128, 130, 131, 153 plant, dangerous operation  132, 152

358  Index plea bargaining  134, 141, 151, 295 pluralist theories of the environment  127 police  145–146, 147, 156, 290, 291 pollution  129, 131, 134, 138, 139–140, 142, 147 problems with system  142, 154, 157 procedure  144–148, 151–152 proportionality  122, 156–157 prosecutor  145, 146–147, 154, 297 protected areas  136–137, 139 protected species  131, 135–137, 139, 147 radioactive substances  129, 130, 132, 134, 140, 142, 143, 147 recklessness  124n regional powers  120, 120n restoration/reclamation  134, 137, 138, 140, 141, 142, 157, 312 sanctions  121, 122–123, 125, 126, 132–134, 137–140, 141–144, 148–154, 311–312 sea, pollution  138 ship-source pollution  130, 135, 137 soil pollution  128, 129, 131, 132, 137, 138, 139 standard of proof  124 state powers generally  120 tipicità  123 transposition of ECD  119, 122, 130–144, 155, 304–306 unitary public interest  127 unlawfully (abusivamente)  129–130, 143, 278 unnamed disaster (disastro innominato)  134 violation of order  131 voluntary disclosure  141, 157 waste management  128, 130, 131, 132, 134, 137, 138, 144, 147, 152–153, 156 water pollution  128, 129, 130, 131, 132–133, 137, 138, 139, 148, 152, 153 J Jarlås, Christer B  229n, 236, 237, 239, 240 judiciary Area of Freedom, Security and Justice  15, 19–22 cross-Europe cooperation  50, 328–329 Eurojust  329 European Union Forum of Judges for the Environment  328, 329 K Krämer, L  9, 11 L legal entities see legal persons legality principle administrative dependence of criminal law  272

duty to prosecute  296 France  62, 64–65 generally  292, 293–295 Germany  98, 293, 294–295 Italy  122, 154, 293, 295 Poland  162, 163, 166, 293, 295 Spain  205, 293, 295 Sweden  224, 295 United Kingdom  244, 245 legal persons see also corporate liability; organised crime ECD provisions  23–24, 32, 39, 43, 48–49, 280 EU harmonisation  23–24 France  67, 69–70, 71–72, 79–81, 79n Germany  99, 114–115, 281, 282, 283, 294–295 Italy  125–126, 130, 137, 138, 139, 143, 155 Poland  166–169, 179, 186–187, 295 sanctions  49–50 Spain  196, 213–216 Sweden  224–225, 228, 239, 285 United Kingdom  244, 247, 248, 259 legislative frameworks  268–271 Lepage, Corinne  63n lex certa principle administrative dependence of criminal law  272, 308 generally  47 Germany  47, 98, 104, 105, 308 liability see also causality principle accomplices see aiding and abetting ECD provisions  43 EU harmonisation  23–24 Germany  98–99 Italy  125–126, 128, 155 legal persons see legal persons mens rea see mens rea natural persons see natural persons Poland  161, 162, 163–164, 166–169, 171–174, 178, 179, 186–187, 188 Spain  196, 213–217 United Kingdom  244, 247, 248 limitation periods EU harmonisation and  29 France  76n Italy  134, 142, 148–149 Poland  183–184 Lisbon Treaty  3, 7–12, 17, 51, 320 Lutterer, W and Hoch, HJ  115 M Maastricht Treaty  4–5, 8n, 16–17 Magnusson, Lars  229n, 231, 233, 236, 237, 239, 240 MARPOL Convention  13 Mazák, Ján  25, 26

Index 359 Meinberg, V  115 mens rea/intent ECD provisions  32, 41, 47, 246 France  67–68 Germany  98–99, 111, 311 Italy  123, 124–125, 144 penalty regimes  310 Poland  163, 174 Resolution (77) 28  34 Sweden  224, 225 United Kingdom  244, 246, 248, 253 Milieu Ltd Evaluation Study  248, 259, 306 misdemeanours France  64, 64n, 67, 70 Germany  99, 108, 111 Italy  122–123, 124–125, 129, 131–132, 133–134, 139, 144, 149–151, 154, 155 Poland  163, 184–186 monistic model Italy  125 monitoring and investigation cross-Europe cooperation  41, 328–330 difficulty detecting environmental offences  288–289, 315 France  85–91, 289, 291 funding and resources  322, 325–326 generally  288–291, 325 Germany  106–111, 289–290, 291 Italy  134, 145–147, 290, 291 Poland  180, 290, 291 proactive monitoring  289, 291, 298–299, 324 problems arising  291–292 ‘rational apathy’ problem  288–289, 290, 324 Spain  207–210, 209–210n, 290, 291 specialised expertise  289–290, 291, 315, 325–326 Sweden  230–231, 233–234, 235–236, 241, 290, 291 technical developments  327 United Kingdom  249–252, 290 moral dimension of environmental crime signalling  41, 44, 269 United Kingdom  257–258 Multilateral Environmental Agreements (MEAs)  12–13 N natural persons corporate liability and  281–282, 283–284, 285 ECD provisions  41 France  67, 69–70, 79 Germany  99, 114–115 Italy  130 Poland  171 sanctions  49–50 Sweden  239

natural spaces, protection France  60 negligence ECD provisions  32, 41, 47 France  66–68 Germany  100, 101, 104, 105, 115, 311 Italy  124–125, 138, 140, 142, 144 penalty regimes  310 Poland  174 Resolution (77) 28  34 Spain  198 Sweden  225, 238 United Kingdom  246, 247 Nice Treaty  5–7 Nilsson, AK  221, 237 noise pollution ECD provisions  31 France  63n Germany  99 Poland  173n Spain  203n Sweden  223 non-governmental organisations France  87–88 Poland  182 Sweden  235 United Kingdom  251, 255–256 nuclear facilities France  78 Germany  97, 99 Spain  193, 194 nuclear materials see radiation/radioactive substances nuisance France  60, 75, 87n generally  288–289 Poland  173 O opportunity principle France  294 generally  292, 293–296, 301 Poland  165n, 295 Spain  205–206 United Kingdom  294 organised crime ecomafia  29 France  61, 79, 80–81, 286–287 generally  15, 29, 50–51, 52, 280, 286–287, 321, 322 Italy  28–29, 50–51, 140–141, 142, 144, 155–156, 286–287, 312 Poland  286 Spain  201–202, 202n, 220, 286, 287, 296 overlapping legislation risk of  269, 271, 299, 314, 315, 323 Spain  192, 202–205, 216, 218–219, 302

360  Index ozone-depleting substances ECD provisions  42, 47–48, 50 France  63n Italy  131, 137 Poland  168, 178, 179 Spain  194, 196, 198 Sweden  227 P participation criminalisation  23, 25 penalties see sanctions permit offences generally  271–272, 273 Italy  128, 130, 131, 153 Sweden  227, 233, 238 United Kingdom  249–250, 257 permit shield autonomous crimes  278–279, 280 petty offences France  64, 64n, 68–69, 70, 71, 82, 83, 84, 85 Poland  161–162, 164, 165, 174, 174n, 175, 176, 177, 181, 182, 183, 302 Sweden  240 plant, operation ECD provisions  41–42 Italy  132, 134, 141, 152 Poland  173, 178, 186, 306 Spain  194, 196, 275 Sweden  226–227 plants see flora and fauna; protected species and habitats plea bargaining France  294 generally  315 Germany  109, 294 Italy  134, 141, 151, 295 Spain  205–206, 295 poaching protected species  12, 259 Spain  197 United Kingdom  255, 256, 259 poison releasing/spreading  99, 223–224, 279 Poland abstract endangerment  275 active repentance  164, 185–186 administrative law  160–161, 171–175, 177, 181, 187, 302 administrative sanctions  186, 187, 302, 303 aiding and abetting  163–164 air pollution  176, 178 Anti-Corruption Bureau  182 appeals  165 causality principle  163 causing destruction in nature  176 Civil Code  173, 173n civil liability  173–174, 173n

Code of Administrative Procedure  181, 186 Code of Criminal Procedure  164–165, 180 Code on the Procedure for Petty Offences  165, 181, 182, 183, 302 collective entities  179, 188 concrete endangerment  277 confiscation/forfeiture  168, 169, 183, 188, 312 Constitution  160, 162, 165 corporate liability  166–169, 179, 186–187, 282–283, 285 courts  160 Criminal Code  161–162, 174, 175, 176–177, 178, 182–183, 269–270, 306 criminal law  174–175 criminal liability  174 criminal offence, meaning  163 criteria for crime to be committed  176 culpability  162–163, 166, 176 customs services  180, 182 dangerous substances  168 death of a person  185 deterrence  185 disqualification from public contracts  168–169 duty to investigate  180, 182 duty to prosecute  165, 295, 296 duty to report  165, 180, 185, 290, 291, 324 ecological damage  174 environmental law generally  169–171, 169n, 174–175n Environmental Protection Law  170, 171, 177, 270 evidence  166 Executive Criminal Code  165 expert assistance at trial  180 felonies  163 fields and gardens  177 fisheries  180 flora and fauna  168, 176, 178–179 forests  161, 177, 180 Game Law  177 General Directorate for Environmental Protection  182 General Inspectorate for Environmental Protection  181, 182 genetically modified organisms  168, 177 hunting offences  180 insanity/diminished sanity  164 Inspectorate of Environmental Protection  181 international agreements  160, 162, 165 international law, offences under  162–163 investigation  180, 182, 290, 291 legality principle  162, 163, 166, 293, 295 legislation  160, 162, 177, 269, 270 liability  161, 162, 163–164, 166–169, 171–174, 178, 179, 186–187, 188

Index 361 limitation period  183–184 local laws  160 meaning of environmental crime  175–177 mens rea/intent  163, 174 Ministry of the Environment  161, 180–181 minors  163 misdemeanours  163, 184–186 mistaken circumstances  164 mitigating circumstances  164 National Criminal Information Centre  181 natural persons  171 Nature Conservation Act  170, 177, 178–179 negligence  174 noise pollution  173n non-governmental organisations  182 non-retroactivity  162 nuisance  173 opportunity principle  165n, 295 organised crime  286 ozone-depleting substances  168, 178, 179 party to the offences  163–164 petty offences  161–162, 164, 165, 174, 174n, 175, 176, 177, 181, 182, 183, 302 plant, dangerous operation  173, 178, 186, 306 police  180, 181, 182 pollution  176, 178 presumption of innocence  166 problems with system  188 procedure  164–166, 180–182 proof, burden and standard of  166 prosecutor  165, 180 protected areas  167, 176 protected objects  167, 176 protected species  168, 179 protective installations, dereliction of duties regarding  167, 176 public safety  177 radioactive substances  176 reasonable care  167 responsibility principle  162 restoration of the environment  173, 186 review of judgment  165–166 right to defence  166 right to remain silent  166 rule of law  163, 166 sanctions  168–169, 182–186, 187–188, 312 separation of powers  160 serious detriment to health  185 ship-source pollution  168 soil pollution  176, 178 sustainable development policy  161, 170n threat to nuclear safety  176 transposition of ECD  159, 168, 177–180, 186–187, 305, 306–307 ultima ratio principle  174, 186 voivodeships  160, 161, 176 waste management  167, 176 water pollution  176, 178

police Area of Freedom, Security and Justice  15 EU level cooperation  235–236, 328–329 Europol  236, 321, 329 France  85–86, 89, 91 Germany  109–110, 290 Interpol  236, 256, 321 Italy  145–146, 147, 156, 290, 291 Poland  180, 181, 182 Spain  207–208, 291 Sweden  230–231, 235–236, 241 United Kingdom  250–251, 252, 255–256 pollution air see air/atmospheric pollution autonomous crimes  278–280, 314 endangerment of human life or health  273 France  60, 75–79 Italy  129, 131, 134, 138, 139–140, 142, 147 Poland  176, 178 ship-source see ship-source pollution soil see soil pollution Spain  196–197, 199, 203, 213 Sweden  222, 226 United Kingdom  249 water see water pollution prescription see limitation periods Prestige oil pollution  208 prevention deterrence  33, 301, 303, 311, 321, 324, 325, 327 informing the public  327, 330–331 sanctions  101, 253, 258, 299, 309–310, 314, 315, 324–325 procedure duty to prosecute  145, 147, 154, 165, 205, 294–295, 296 duty to report  154, 165, 180, 185, 234, 290, 291, 324 France  81–88 generally  287–288 Germany  106–109 investigation see monitoring and investigation Italy  144–148, 151–152 Poland  164–166, 180–182 prosecutorial discretion  83–84, 106, 108, 116, 253, 253n, 292–293, 294, 315, 324 prosecutor’s role  292–297 Spain  205–207 Sweden  228–233 United Kingdom  243, 249, 252–254 proof difficulty in environmental offences  272, 315 proportionality EU principle  9, 27, 50, 53, 303, 310, 311, 313, 315 France  75, 90–91

362  Index Italy  122, 156–157 sanctions  38, 43, 73, 75, 80, 114, 132, 140, 143, 149, 247, 259, 280, 304, 307, 309, 310, 311, 314, 315 prosecution improving effectiveness  322, 325–326 prosecutors cross-Europe cooperation  328–329 European Network of Prosecutors for the Environment  236, 328–329 European Public Prosecutor  20, 329 expertise  293, 300 France  81, 85 Germany  109, 289, 295–296, 297 Italy  145, 146–147, 154, 297 legality principle  292, 293–295 opportunity principle  292, 293–296, 301 Poland  165, 180 prosecutorial discretion  83–84, 106, 108, 116, 253, 253n, 292–293, 294, 315, 324 role generally  292–297 Spain  205, 208, 296 specialisation  295–297, 315 Sweden  228, 229–230, 241, 296, 297, 315 United Kingdom  253, 253n, 294–295, 296, 297, 298, 300 protected areas see also protected species and habitats ECD provisions  42 Germany  99 Italy  136–137, 139 Poland  176 Spain  194 protected species and habitats see also flora and fauna ECD provisions  42 EU level cooperation  236 France  60, 61, 77, 78 Germany  99, 100, 103 Italy  135–137, 147 killing  42, 63n, 100, 104, 136, 179, 194 national parks  78n negligent killing  104, 136 parts or derivatives  42, 78n, 135, 143, 194, 197 poaching  12, 259 Poland  168, 179 possession of protected species  42, 100, 103 protected species generally  42 Spain  194, 195, 197, 198, 202, 213 Sweden  223 taking of specimens  42 trade/trafficking  29, 42, 48, 50, 51, 78n, 80–81, 92, 100, 103, 110, 131, 135, 136, 137, 139, 143, 168, 194, 201n, 202, 236, 287, 321 proximate cause theory causality principle  66

R radiation/radioactive substances see also nuclear facilities ECD provisions  42 France  75, 78, 87n Germany  99 Italy  129, 132, 134, 140, 142, 143, 147 Poland  176 Spain  193, 194, 195, 198, 201n, 215 Sweden  223 terrorist offences  61 United Kingdom  249 Rapport Lepage  63, 63n, 92, 276–277 Rapport Simoni  62 ‘rational apathy’ problem  288–289, 290, 324 recklessness France  63, 66, 67, 68 Italy  124n Spain  198, 218 remedies see sanctions restoration of the environment France  61n, 63, 76n, 84, 84n, 85, 89n generally  33, 299, 309, 314, 315, 324, 325 Italy  134, 137, 140, 141, 142, 157, 312 Poland  173, 186 Spain  217, 313 United Kingdom  256–257, 262, 302, 313 risk assessment France  60, 76–77, 79–80 Germany  101 Ruiz-Jarabo Colomer, Dámaso  21, 26 rule of law Poland  163, 166 S sanctions abstract endangerment  48 administrative see administrative sanctions balancing administrative and criminal  322, 324–325 complementary  69, 70, 112, 313–314, 315 confiscation see confiscation/forfeiture corporate liability  49 criminal  41, 44–45, 53, 248 custodial sentences  310 deterrence  45, 292, 299–300, 307, 309, 311, 313, 325 disqualifications see prohibitions/ disqualifications below ECD generally  39, 44–45, 49–50 effective, proportionate and dissuasive penalties  28, 32, 38, 42, 43, 73, 75, 80, 114, 132, 140, 143, 149, 247, 259, 280, 304, 307, 309, 311, 314 EU harmonisation  22, 27–29, 41, 44–45, 52, 53 fines  44, 310, 311, 316, 325

Index 363 fines, day fine system  112, 137, 212n, 215, 216, 303, 311 forfeiture see confiscation/forfeiture France  61–63, 69–71, 73–79, 80, 88–91, 89n, 92, 93, 311 generally  309–314 Germany  98, 99, 111–115, 310, 311, 313 intent  310 interdicting  138, 142 Italy  121, 122–123, 125, 126, 132–134, 137–140, 141–144, 148–154, 311–312 judicial intervention  214n, 215 legal persons  49–50 mens rea  310 natural persons  49–50 negligence  310 personalisation  91 Poland  168–169, 182–186, 187–188, 312 prevention as aim  101, 253, 258, 299, 309–310, 314, 315, 324–325 prohibitions/disqualifications  50, 70, 71, 80, 112, 142, 168–169, 183, 215, 216, 313 proportionality  90–91, 310–311, 315 public notice  70, 71, 80, 113, 169, 183, 313, 315 regulatory dealing  325 remedying environmental damage  83 Resolution (77) 28  33–34 restoration see restoration of the environment sentencing guidelines generally  325 signalling social disapproval  41, 44, 269 Spain  191, 192, 212–217, 311, 312 Sweden  222, 223, 223n, 224, 226, 228, 237–240, 241, 242, 307, 311, 313 United Kingdom  246, 248, 253, 256–263, 302–303, 313 Scotland see United Kingdom sea, criminal offences at French territorial waters  61, 76, 76n Germany  110 Italy  138 Spain  196 sentencing guidelines generally  325 United Kingdom  259, 260, 262, 313 ship-source pollution European Union  6, 9, 16, 17–18, 38–39, 130, 135 France  82 Italy  130, 135, 137 Poland  168 Sweden  223, 230 Sicurella, Rosaria  22 soil pollution ECD provisions  41–42, 77, 92 France  61, 75, 77, 83 Germany  99 Italy  128, 129, 131, 132, 137, 138, 139

Poland  176, 178 Spain  196 substantial damage to quality of soil  27, 28 Sweden  222, 225–226 terrorist offences  61 Spain abstract endangerment  203, 210, 275 access to information  218 administrative and criminal law, priority  191, 204–205, 216, 302 administrative dependence of criminal law  189, 204 administrative law  190–191, 198, 202–205, 269, 302 administrative sanctions  191, 216, 302, 303 administrative toleration of environmental crime  198–201 aggravating circumstances  213, 312, 315 air pollution  196 Autonomous Communities  207 Aznalcollar mining spill  199, 208 causing or likely to cause substantial damage  196–197 civil liability  217 civil servants, collusion  193, 201, 201n, 212 clandestine activity  213, 312 compliance  215 concrete endangerment  203, 210, 277 Constitution  189–191 corporate liability  196, 213–216, 282, 284, 285 corruption  193, 201, 201n, 202, 212, 220, 287, 296 courts  208, 298 Criminal Code  191, 192, 193–195, 196–197, 202–203, 212–213, 217, 269, 270, 277, 306, 307, 312 cumulative pollution  203 damage to natural areas  193, 212 dangerous substances  193, 194 definition of environmental crime  191–192 demolitions  193 deterrence  209, 217 disqualification from public contracts  215, 216 duty to prosecute  205 ecosystems  203, 210 environmental crime statistics  210–212 environmental responsibility  218 excavations  193 failure to enforce existing regulations  199–200 fishing offences  193, 195, 213 flora and fauna  191, 193, 194, 195, 197, 198, 202, 213, 215 forest guards  193, 208 fracking  199 general environmental crime  193

364  Index harm, causing  203, 210, 213, 219 hunting offences  193, 195, 213 illegal building and urbanism  199, 200, 217, 220n impact assessments  199 inspectorate  209–210, 209–210n investigation  207–210, 209–210n, 290, 291 ionising radiation  193, 194 judiciary  208 landfills  279 Law 1/2015  196–198 Law 5/2010  195–196 Law 26/2007  218 Law 27/2006  218 Law for the Suppression of Smuggling  202 legal entities  196, 213–216 legality principle  205, 293, 295 legislation  192–195, 269 liability  196, 213–217 Ministry of Interior  210–211 mitigating circumstances  206–207, 215, 217 National Institute of Statistics (INE)  211 negligence  198 noise pollution  203n non bis in idem  191, 204, 216, 302 nuclear energy  193 numerus clausus system  214, 285, 314 opportunity principle  205–206 organised crime  201–202, 202n, 220, 286, 287, 296 overlapping legislation  192, 202–205, 216, 218–219, 302 ozone-depleting substances  194, 196, 198 plant, dangerous operation  194, 196, 275 plea bargaining  205–206, 295 poaching  197 police  207–208, 291 pollution  196–197, 199, 203, 213 Prestige oil pollution  208 problems with system  202–205, 206, 209–210, 218–220 procedure  205–207 proposed reforms  192–193, 219–220 prosecutor  205, 208, 296 protected areas  194 protected species  194, 195, 197, 198, 202, 213 public participation  218, 218n radioactive substances  193, 194, 195, 198, 201n, 215 Rapid Procedure (Enjuiciamiento Rápido)  206, 295 recklessness  198, 218 restoration of the environment  217, 313 right and duty as to environment  189, 192 sanctions  191, 192, 196, 212–217, 311, 312 sea, criminal offences at  196 SEPRONA  207, 290

shellfish  197 soil pollution  196 standard of proof  210 State Prosecutor, Annual Reports  211–212 summary proceedings  205–206 suspended sentences  206–207 town planning offences  200, 207, 211, 217, 220n transposition of ECD  189, 194–198, 217–220, 305, 306, 307, 316 waste management  193, 194, 195, 196, 197–198, 212, 279 water pollution  196, 198–199 Stockholm Programme extrema ratio principle  26 sustainable development Brundtland Report  4–5 EU provisions  7, 8, 11–12 France  61n, 63n, 80n Poland  161, 170n principle  5–6, 7, 8 Sweden  221 UN Sustainable Development Goals  12 Sweden Aarhus Convention  235 abstract endangerment  274 administrative law  232, 302 administrative sanctions  238–239, 240, 241, 302, 303 air pollution  222, 225–226 appeals  231–233, 235 best practices and recommendations  236–237 burden of proof  225, 241, 277 causing destruction  224 causing environmental disturbance  238 Coast Guard  230, 236, 302 concrete endangerment  277 contagious substances  224 corporate liability  224–225, 239–240, 242, 282, 284 corruption  229 courts  231–233, 235, 298 customs officers  235 damages, liability for  224 dangerous substances  226–227, 238, 241 definition of environmental crime  222–223 deterrence  225, 228, 239, 242, 307 Djurgården case  235 duty to prosecute  295, 296 duty to report  234, 291 Environmental Code (Miljöbalk)  221–222, 223, 225–228, 238, 239, 240–241, 269, 270, 302 environmental crime statistics  222 environmental offences (miljöbrott)  222–223 Environmental Protection Agency (SEPA)  233–234

Index 365 environmental sanction charges  238–239 EU level cooperation  235–236 flora and fauna  222, 226, 228 forfeiture  222, 224, 238 hunting offences  223 information, incomplete  238 inspection authorities  233–234 international cooperation  235–236 investigation  230–231, 233–234, 235–236, 241, 290, 291 judiciary  232–233, 239, 241 Law 2006:1014  227 Law 2008:240  227 Law 2010:742  227 legal entities  224–225, 228, 239, 285 legality principle  224, 295 legislation  269, 270 littering  238 mens rea/intent  224, 225 National Environmental Crimes Unit (REMA)  229–230, 296 negligence  225, 238 noise pollution  223 non-governmental organisations  235 obstruction of environmental control  238 ozone-depleting substances  227 Penal Code (Brottsbalk)  221, 223–224, 241 permit offences  227, 233, 238 petty crimes  240 plant, dangerous operation  226–227 poison, spreading  223–224 police  230–231, 235–236, 241 pollution  222, 226 problems with system  228, 230–231, 234, 241–242 procedure  228–233 prosecutor  228, 229–230, 241, 296, 297, 315 protected species and habitats  223 radioactive substances  223 risk  241 risk to human health  222, 224n, 226, 230 sanctions  222, 223, 223n, 224, 226, 228, 237–240, 241, 242, 307, 311, 313 self-responsibility of operators to report  234 ship-source pollution  223, 230 soil pollution  222, 225–226 sustainable development, promotion  221 transposition of ECD  225–228, 241–242, 307 unauthorized environmental activity (otillåten miljöverksamhet)  227, 238 vibrations, causing  223 waste management  222, 226, 227, 228, 234, 239–240, 241 water pollution  222, 225–226 Working Environment Act  223

T territorial waters France  61, 76, 76n terrorism, ecological France  61, 79, 279 town planning offences Spain  200, 207, 211, 217, 220n TRAFFIC  255 transborder crimes approximation of criminal laws  15, 19, 21, 25–26, 32–55, 320–321 cross-Europe organisations  328–330 EU shared competences  51–52 generally  40, 44–45, 50, 102, 104, 319, 321 Germany  102, 104 international cooperation  41, 319–322, 328–330 serious crime with cross-border dimension  19–20, 321 supranational legal interests  20–21, 27, 46 waste trafficking  53, 134, 138, 144, 156, 286–287, 321 wildlife trafficking  78n, 80–81, 92, 100, 103, 110, 131, 135, 136, 137, 139, 143, 168, 194, 201n, 202, 236, 287, 321 U ultima ratio see extrema ratio principle United Kingdom Accessories and Abettors Act  247 administrative law  269 aiding and abetting  246–247 Angling Trust  256 appeals  243, 252, 257 Border Force  250 case law  245 causation  244, 246 Chemicals Regulation Directorate  255 civil sanctions  246, 253, 256–258, 261–262, 263, 270, 302–303, 313, 317 common law  245 compliance  249, 253 compliance notices  302 complicity  244, 246–247 corporate liability  244, 247, 252, 259–261, 284, 313 courts  243, 245, 252, 298 Crown Office and Procurator Fiscal Service (COPFS)  254 Crown Prosecution Service (CPS)  252, 255, 263, 294 customs officers  252 definition of environmental crime  244, 244n DEFRA  244n, 250, 252, 256 deterrence  248, 253, 259, 261, 262 Drinking Water Inspectorate  252 enforcement agencies’ discretionary powers  257, 317

366  Index enforcement undertakings  257–258, 261–262, 263, 302 England and Wales  243, 252–253 Environment Agency (EA)  249–250, 251, 252, 253, 255, 260, 290, 294, 298, 302 Environment Agency v Empress Car Co  244 Environmental Protection Act  244 Environment Civil Sanctions Orders  256n evidence  253 extrema ratio principle  244, 245–246, 249 fish theft  256 foreseeability  253 Forestry Commission  255 harm principle  244, 245, 252, 257 Health and Safety Executive  252 Home Office  250, 251 IFAW  255–256 incitement  246 inspectorate  252 institutional cooperation  255–256, 262 intent  246, 248, 253 investigation  249–252, 290 Joint Nature Conservation Committee  255 Law Commission  259 legality principle  244, 245 legal persons  244, 247, 248 legislation  244, 247–248, 251, 262, 269, 270, 271 liability  244, 247, 248 mens rea  244, 246 moral dimension of environmental crime  257–258 National Criminal Intelligence Service  251–252, 255 National Wildlife Crime Intelligence Unit  251 National Wildlife Crime Unit  251, 252, 255–256, 263, 290 Natural England  252, 255 Natural Resources Wales  255 negligence  246, 247 non-governmental organisations  251, 255–256 Northern Ireland  243 number of prosecutions  248, 252, 254, 262–263 opportunity principle  294–295 Partnership for Action against Wildlife Crime  255 permit offences  249–250, 257 poaching  255, 256, 259 police  250–251, 252, 255–256 pollution  249 precedence of EU criminal law  245 prevention as aim  253, 258 principals and accessories  247 procedure  243, 249, 252–254 prosecutorial discretion  253, 253n, 294

prosecutors  294–295, 296, 297, 298, 300, 315 public interest  253 public wrong  244, 245 radioactive substances  249 Regulatory Enforcement and Sanctions Act  256–257, 302–303 restoration notices  256–257, 262, 302, 313 RSPB  255 RSPCA  251, 255 Rural Payments Agency  255 R v Cato  246 R v Sellafield Ltd  261 R v Thames Water Utilities Ltd  260–261 sanctions  246, 248, 253, 256–263 Scotland  243, 254, 258 Scottish Environmental Protection Agency (SEPA)  249, 250, 254, 258, 290 Scottish Natural Heritage  255 Sentencing Guidelines  259, 260, 262, 313 standard of proof  258, 262, 263 stop notices  257 test for prosecution  253, 257, 262 TRAFFIC  255 transposition of ECD  243, 247–248, 305, 306, 307–308 Wandsworth London Borough Council v Rashid  253 waste management  249, 250, 257 water pollution  244, 248, 249, 257 Water Resources Act  244, 248 wildlife crime  251, 259 Wildlife Crime Law Enforcement Working Group  255 World Wildlife Fund  251, 255 wrongfulness  245 United Nations Agenda forum  14 Conference on the Environment and Development (UNCED)  5 Conference on the Human Environment  4 Conference on Sustainable Development  11 Environment Programme (UNEP)  14 EU representation at  12–14, 13n Sustainable Development Goals  12 unity of legal order principle  272–273 unlawful meaning in ECD  41 unlawful emissions proposed criminalisation  273 urban planning France  60, 87n V vehicles, desertion France  79 vehicles, scrapped United Kingdom  250

Index 367 vibrations, causing Germany  99 Sweden  223 Viganò, Francesco  23 Vincent, Keith  244n W waste management ECD provisions  41, 51, 77, 77–78n EU level cooperation  236 France  77, 77–78n, 81, 83 Germany  99, 103, 109, 113 Italy  128, 130, 131, 132, 134, 137, 138, 144, 147, 152–153, 156 landfills  41, 131, 138, 250, 279 Poland  167, 176 radioactive waste  134 shipment of waste  29, 41, 48, 50, 51, 53, 77, 77–78n, 97, 103, 134, 138, 144, 156, 196, 286–287, 321 Spain  193, 194, 195, 196, 197–198, 212, 279

Sweden  222, 226, 227, 228, 234, 239–240 United Kingdom  249, 250, 257 water pollution ECD provisions  41–42, 77, 92 France  60, 61, 62n, 75, 76–77, 76n, 311 Germany  99, 103–104, 277, 311 industrial wastewater  133, 138 Italy  128, 129, 130, 131, 132–133, 137, 138, 139, 148, 152, 153 Poland  176, 178 Spain  196, 198–199 substantial damage to quality of water  27, 28 Sweden  222, 225–226, 241 territorial see territorial waters terrorist offences  61 United Kingdom  244, 248, 249, 257 Woods, M and Macrory, R  257–258 World Wildlife Fund (WWF)  255 wrecks, desertion France  79 Wróbel, A and Zoll, A  163

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