The ecocrime directive and its translation into legal practice

Introduction

The protection of the environment is a fundamental issue in EU policy. Primary EU law requires that environmental protection be integrated into the definition and implementation of all European policies, “with a view to promoting sustainable development” (Article 11 TEU). European institutions are also given an express mandate to contribute to “protecting and improving the quality of the environment” and to “promoting measures at international level to deal with regional and worldwide environmental problems”, as well as “protecting human health” and ensuring “the prudent and rational utilisation of natural resources” (Article 191 TFEU). Though it could be argued that the fundamental objectives of European environmental policy reflect an economy-oriented approach, environmental harm does represent a major concern of European institutions and the contrast therefore a primary target of European policy.

In recent years, environmental protection has grown particularly important in the context of European criminal law. In the early 2000s, at the initiative of the Kingdom of Denmark, European institutions initiated the procedure for the approval of a harmonised text on the protection of the environment through criminal law, which ultimately led to enactment of Directive 2008/99/CE (hereinafter, the ‘Ecocrime Directive’). The approval of the Ecocrime Directive was marked by a harsh contrast between European institutions, as both the Council and the Commission had initially issued two different proposals with a conflicting legal basis. The Council proposed a framework decision ¹ (which it later adopted), arguing that criminal law fell beyond the scope of EC competence and that any harmonised text in this domain had to be adopted through intergovernmental cooperation (EC third pillar). The Commission issued a directive proposal ² , submitting that the use of criminal law was essential to the implementation of the EC environmental policy and was therefore comprised within the environmental mandate of the Community (EC first pillar). The competence dispute was settled by two landmark decisions of the European Court of Justice (hereinafter, the ‘ECJ’), which annulled the Framework decision adopted by the Council and reaffirmed the EC competence in the field of criminal law, though partially limiting its scope ³ .

The conflict over the competence of supranational environmental criminal law is essential in order to understand both the content and the rationale underpinning the Ecocrime Directive. At the time of the Directive’s approval, protecting the environment had become a question of competence rather than a question of policy: environmental crime had become the battlefield on which the EC fought to acquire a role as primary actor in the domain of criminal law. In this respect, the importance attached to the Ecocrime Directive reflected the political relevance of the competence issue more than the actual relevance of environmental crime for criminal justice systems. The emphasis placed by the Commission on the need for criminal law as a means to protect the environment reflected the urgency of justifying the adoption of a harmonised text under the EC first pillar, in terms of subsidiarity and proportionality, rather than genuine concerns for environmental protection ⁴ . Though there was at the time–as there is now–a widespread awareness of the negative impact of this type of crime on human health and biodiversity, it is fair to say that green criminality was neither the most dangerous threat to sustainable development, nor the most pressing environmental issue for the EU ⁵ .

These remarks suggest taking a closer look into the arguments submitted by the Commission for issuing the Ecocrime Directive in order to identify and ponder the reasons underpinning its approval beyond the competence issue. The aim of this article is precisely to outline and investigate the considerations of criminal policy that led to the approval of this harmonised instrument. Furthermore, the essay aims at evaluating whether such policy considerations have translated into court and investigative practices once the Ecocrime Directive has been implemented in Member States. The latter part of the research is based on the results of a survey conducted among the members of the EU Forum of Judges for the Environment (hereinafter ‘EUFJE’), presented during the 2015 EUFJE Annual Conference in Bolzano, Italy. ⁶ The results the EUFJE Questionnaire provide an interesting insight into the opinion of European judges concerning the impact of the Ecocrime Directive on domestic judicial systems and on the state of environmental protection in Europe.

The meaning of environmental crime in the ecocrime directive

The choice of resorting to criminal law in order to combat environmental harm is neither innovative nor unique to EU policy. Nevertheless, its effectiveness in providing a real contribution to environmental protection has long been subject to discussion ⁷ . In order to understand how the European legislator has addressed this question, the essay will first investigate the manner in which environmental crime is understood and construed within the Ecocrime Directive and then focus on the criminal policy goals its approval was intended to meet.

Traditionally, the analysis of environmental crime focuses on the technical construction of offences and enquires into its implications for criminal prosecution and judgment ⁸ . This paper wishes to adopt a partially different perspective: by focusing on the criminological (rather than legal) construction of environmental crime, the research aims at understanding what character this concept held for European legislators when adopting the Ecocrime Directive and whether the criminal policy objectives were consistent with such characters. This analysis will then serve as a basis for discussing the opinions of EUFJE judges on the implementation of the Ecocrime Directive and its impact on limiting environmental crime.

The definition of environmental crime is highly debated, as is the underlying notion of environmental harm. Defining what is right or wrong for the environment is indeed to take ‘a philosophical stance on the relationship existing between human beings and nature’ ⁹ and on the values and interests represented therein. In this respect, three philosophical perspectives differently shape the definition of environmental harm: anthropocentrism, which emphasises the superiority of humans over all other creatures and defines environmental harm according to human-centred notions of value and use; biocentrism, which regards all creatures as having an equal intrinsic value and qualifies environmental harm as the endangerment of the preservation and realisation of all species human or non-human; and ecocentrism, which views humans as part of a complex global ecosystem and centres the notion of environmental harm on the idea of ecological well-being ¹⁰ .

The scope of environmental crime further varies according to the role played by environmental harm in defining green offences, i.e. whether this is the focus of criminal attention, justifying punishment per se (socio-legal approach), or whether it simply qualifies an offence as being environmental, requiring that the act to be ex ante illegal under applicable law (legalistic approach). The former approach encompasses a wider range of environmentally-harmful conduct, as it acknowledges that numerous social and economic practices, permitted and regulated by the law, have a hugely negative impact on the environment. It also allows for a more comprehensive analysis of environmental harm, introducing considerations of social, racial and gender inequality into the study of environmental practices. The legalistic approach provides a more stable and defined framework of analysis, free from value judgments and more suitable to legal research; it, though, relies entirely on statutory law for the definition of green crime, thus neglecting the role played by power differentials in the construction of the regulatory framework ¹¹ .

The definition of green criminality is finally ¹² influenced by the amount of harm required in order to qualify environmentally-detrimental conduct as crimes. Although individual contributions to the creation of environmental harm are generally very low, virtually every human action affects the environment. Therefore, when defining environmental offences, many authors and legislations require that the contested conducts have a “significant impact on”‘ or cause “substantial damage to” the environment ¹³ . These requirements provide little guidance on the selection of the relevant conduct in theory and might prove to be very difficult to use in practice, considering the amount of scientific uncertainty as to the effects of human actions on the environment. Other notions of green crime rely on regulatory standards, which are thus regarded as harmfulness thresholds of environmental offences. Other definitions of environmental crime simply maintain that “any action having negative effect on our surroundings”’ be considered as environmental crime ¹⁴ .

This brief conceptual framework allows for a better understanding of the criminological foundations of the Ecocrime Directive.

The Directive adopts a human-centred environmental perspective, focused on human-initiated harm and consequences, thus reflecting a marked anthropocentric approach to environmental harm. This angle is consistent with the provisions of primary EU law that defines the environmental mandate of European institutions and with the aim of promoting sustainable development ¹⁵ . Environmental crime amounts roughly to six different conducts: the discharge or emission of polluting substances into the environment, the handling of waste, the operation of plants where dangerous substances are stored or produced, the production or handling of nuclear materials or ozone-depleting substances, the killing or trading of specimens of protected wild fauna or flora and the deterioration of the habitat within a protected site. These conducts qualify as criminal offences only when they are “unlawful”, i.e. when enacted in breach of legal or administrative regulatory standards. The notion of environmental crime is thus construed through a legalistic approach. The Directive also requires that the conduct cause (or is likely to cause) harm to human health or to the environment, resulting in the ‘death or serious injury to any person or [the] substantial damage to the quality of air, the quality of soil or the quality of water, or to the animals or plants’ or having a non-negligible impact on the conservation status of animal or plant species. Only with reference to the illegal shipment of waste and to the production or handling of ozone-depleting substances does the Directive omit any reference to environmental harm, for it assumes that these conducts inherently give rise to severe damage to the environment.

It is important to point out that not all the characters of the offences regulated by the Ecocrime Directive reflect an actual criminological approach to environmental criminality; some are related to the legal framework governing European competence. An example of the former is the reference to the regulatory standards. The exclusive reference to illegal conducts was indeed emphasised during the approval procedure: the text initially proposed by the Commission did not require that the discharge or emission of polluting substances into the environment be unlawful. ¹⁶ The EU Parliament noted that ‘the possibility of sanctioning criminally a behaviour which is not unlawful shall be ruled out’ and suggested deleting the offence altogether ¹⁷ : the provision was instead amended by extending the legality requirement to all conducts disciplined by the Directive, according to the Parliament’s Committee on Legal Affairs ¹⁸ . In this respect, the legalistic construction of green crime can be considered a defining trait of the European understanding of environmental offences.

The same is not entirely true for the reference to “substantial” environmental harm. Though the extension of environmental incrimination certainly was an element of concern during negotiations ¹⁹ , the exclusive reference to “serious” environmental offences is also related to the need for the Ecocrime Directive to fall within the limits of EC competence in criminal matters. The ECJ had restricted the supranational criminal competence to criminal penalties that were “necessary” for ensuring the effectiveness of a Community objective, in accordance with the principles of conferred powers and subsidiarity ²⁰ . Criminalisation under EC law was a minimum obligation and therefore it was legitimised inasmuch as it represented ‘an essential measure for combating serious environmental offences (…) in order to ensure that the rules which [the Community legislature] lays down on environmental protection are fully effective’ ²¹ . Under this perspective, it can be contended that the scope of the offences provided for by the Ecocrime Directive does not faithfully reflect the notion of environmental crime embraced by European institutions; however, it provides a clear picture of the type of criminal phenomena that this harmonised text was intended to counteract.

The practical implications of the “European” green crime

It is often contended that ‘[e]nvironmental criminality and criminals display a combination of characteristics that in many respects differs from other types of crime’. ²² This is certainly true for the foregoing notion of green crime. So how do the criminal phenomena described in the Ecocrime Directive differ from the ‘traditional’ types of criminality?

One defining trait of green crime is diversity. The Ecocrime Directive encompasses a broad range of criminal conducts, with differing geographical and temporal scope. Some of these offences qualify as ‘crimes of accretion’, i.e. they result from the long-lasting accumulation of individual, frequent and often modestly detrimental acts; others can instead take the form of sudden and devastating ecological disasters ²³ . Some offences affect immense areas of land and countless people, others can involve small portions of territory. Furthermore, some conducts can be carried out in deliberate and gross violation of the law, while others fall within an ill-defined area between legal and illegal. Such diversity illustrates the type of policies required to contrast and prevent criminal behaviour, which therefore need to be differentiated accordingly ²⁴ .

Another fundamental character of the ‘European definition’ of green crime is diffusivity, with respect to both its effects and its commission. The effects of the offences on the environment can extend limitlessly and travel across national borders through air, water and soil. The commission of environmental crimes is also potentially transnational in scope, as considerable criminal infrastructure is required to perform most of the activities listed under the Directive, all the more when they cause serious environmental harm. Differences in domestic environmental legislations, both inside and outside the EU, accentuate the transnational character of green criminality, for they encourage offenders to exploit legal imbalances in order to circumvent tougher regulations. Indeed, “European” green offences (especially) can be carried out by criminals operating in many different countries. This translates into complex criminal organisations that extend beyond national borders and are not exclusively involved in green crime. This also affects the way green crime is perceived by economic operators: complying with domestic environmental regulations might be perceived as a competitive disadvantage when businesses or individuals from different countries abide by less stringent domestic environmental legislation. As a consequence, national legislators might be compelled to create a level playing field for environmental offences or else to ensure that their economies are not impaired by excessively harsh environmental regulations, and this might entail a regulatory race to the bottom. Diffusivity also affects criminal enforcement, as it requires enforcement agencies to resort to trans-border cooperation. Whereas mutual assistance in criminal matters within the EU might not be an obstacle, the same is not entirely true for developing countries, which can be reluctant to cooperate and which suffer from corruption issues, aspects that can fundamentally cripple investigations. ²⁵

Within the Ecocrime Directive, environmental crimes are essentially understood as economic offences, i.e. ‘illegal and harmful acts committed […] to promote corporate (and personal) interests’ ²⁶ . Indeed, the Directive is entirely based on the idea that ‘environmental crimes are normally carried out with the intention of making profit, either by selling a product or avoiding certain cost’. ²⁷ This rather frequent and substantiated assumption ²⁸ emphasises the importance of corporate gains over individual interest. It also explains why criminal law is considered particularly well-suited to achieving general preventative effects: green crime is assumed to be dictated by rational economic reasoning, with respect to which criminal sanctions (especially monetary sanctions) can represent a strong disincentive. ²⁹ As with other types of economic crime, green offences are generally carried out by well-placed offenders with considerable economic and political influence. In addition, under this perspective, criminal law is thought to have a strong deterrent effect, as green offenders are particularly responsive to the bad publicity associated with criminal prosecution and have much to lose from a conviction. Conversely, prosecuting green offenders can prove to be politically difficult: harsh environmental polices can be scorned as being excessively tough against the industrial sector and their implementation might be hindered by the political ties existing between the environmental enforcement agencies and the polluting companies. ³⁰

The multi-layered structure of its contrast is indeed another defining trait of green crime, as understood within the Ecocrime Directive. Environmental offences are construed though the reference to illegality, which means that environmentally- harming conducts cannot be regarded as criminal offences insofar as they comply with regulatory standards. Environmental regulations largely rely on administrative authorities for the definition of such standards, thereby giving them a decisive influence in determining the scope of criminal liability. Apart from its legal implications, this construction places administrative authorities at the centre of environmental enforcement, and the cooperation with law enforcement agencies might prove to be particularly cumbersome. Administrative authorities ‘look forward’, i.e. they focus on resolving environmental issues and tend to collaborate as much as possible with the offender, balancing the environmental harm with other conflicting interests. Law enforcement agencies ‘look backwards’ i.e. they almost exclusively focus on sanctioning the perpetrator and are almost never empowered by applicable law to balance interests during prosecution. ³¹

Another implication of construing the concept of green crime upon regulatory standards is that the line separating legal and illegal is constantly shifting, as the definition of environmental regulations is based on ‘evolving and often tentative scientific principles’ and reflects changing public opinion. ³² Furthermore, defining such a line in practice implies sorting through a cluster of civil, administrative and criminal regulations which are generally highly complex and require technical and scientific expertise. Both aspects accentuate the difficulties associated with providing effective environmental enforcement. They also affect the perception of public opinion towards environmentally-detrimental conducts: the boundaries of environmental offences are often blurred and so is the message they convey as to what is ‘good or bad’ for the environment. Environmental criminal law thus struggles to orientate peoples’ behaviour, thereby proving less effective in ensuring general and individual deterrence.

Although some of these aspects are common to other areas of economic crime, their combination characterises environmental crime as a very specific and peculiar criminal phenomenon.

The political background of the ecocrime directive

To a greater extent than most other pieces of environmental legislation, the Ecocrime Directive is the product of the growing consensus on the need for criminal law in order to combat environmental crime. ³³

This legal instrument culminated in a period of almost twenty years, during which European institutions paid increasing attention to the enforcement of environmental legislation, including criminal legislation. Towards the end of the century, the environmental policy of the EC entered a new, less ‘expansionary’, stage: the Commission focused on ‘strengthening and consolidating the acquis communautaire and placed great emphasis on the importance of implementing and enforcing the existing legal framework in environmental matters. ³⁴ Since the newly-established European Environmental Agency had not been assigned supervisory functions ³⁵ , in November 1992 European institutions called for the creation of an informal network of EC environmental enforcement agencies ³⁶ . On December 1998, at the initiative of the Commission, European institutions started negotiating a supranational instrument for environmental inspections ³⁷ . The text, adopted in 2001, wished to ‘prevent illegal cross-border environmental practices’ (Art. III) and to combat environmental wrongdoings by ‘strengthening compliance with, and contributing to a more consistent implementation and enforcement of, Community environmental law’ (Art. I). ³⁸

The Commission then launched several studies on the legal framework regulating environmental offences in Member States with a view to outlining discrepancies in the scope of criminal liability and the relevant sanctioning levels and to understanding the manner in which they affected the implementation of supranational environmental law. ³⁹ These studies, apart from the considerable differences among Member States in the regulation of environmental offences, showed a marked trend in national legal systems towards the use of criminal law in order to combat environmental harm.

Before European institutions launched the initiative of adopting a harmonised text on environmental offences, the Council of Europe approved the Convention on the Protection of the Environment through Criminal Law. ⁴⁰ Although the Covenant never entered into force and partially differed from the Ecocrime Directive, it represented an important precedent and created greater political momentum for the proposal of a supranational criminal law instrument to counter environmental harm. ⁴¹

These institutional efforts coincided with (and were partially prompted by) two of the most tragic environmental disasters of European history. ⁴² On December 12th 1999, the oil tanker MV Erika sank off the cost of Brittany, releasing approximately 10,000 tons of fuel oil into ocean waters and polluting more than 400 km of Atlantic French coastline. The accident caused a social outcry and prompted the EU to take action to prevent ecological disasters. In February 2000, the Commission presented a White Paper on environmental liability, with the aim of improving the implementation of EC environmental law and ensuring adequate restoration to the victims of environmental accidents. ⁴³ One month later, the Commission proposed the so-called ‘Erika Package ‘, a series of legal instruments designed to reinforce the safety in seaborne petroleum-related trade; ⁴⁴ in December 2000, it then launched a second package, ‘Erika II’, which aimed inter alia at establishing a European Maritime Safety Agency and facilitating the implementation of ‘Erika Package I’. ⁴⁵

Soon after the Erika Packages were implemented, a second accident struck European coasts: on November 19th 2003, the oil tanker Prestige sank off Cape Finisterre in Spain, and spilled more than 60,000 thousand tons of heavy fuel oil into the sea. After the accident, environmental criminal law climbed to the top of the political agenda. The Commission issued two communications, with the purpose of fostering the implementation of the Erika packages. It stated that ‘[c]ommunity legislation introducing penal sanctions against any person (including legal persons) who has caused a pollution incident through grossly negligent behaviour should be rapidly adopted’, and it urged the adoption of the pending proposals for harmonised texts on environmental offences. ⁴⁶ In addition, the Commission proposed a Directive for the approximation of ship source pollution offences, ‘[i]n line with the Commission’s proposal for a Directive on the protection of the environment through criminal law’ ⁴⁷ . This proposal received immediate support by the Parliament which welcomed the ‘the introduction of sanctions, including criminal sanctions, to penalise pollution offences’. ⁴⁸ In the same vein, the Council advocated the introduction of specific measures ‘relating to liability and the corresponding sanctions’ in case of ship source pollution ⁴⁹ , and it underlined the importance of ‘complementary measures to strengthen the protection of the environment, in particular the seas, through criminal law’. ⁵⁰

By the time the Ecocrime Directive and Framework Decision were proposed and discussed, European institutions unanimously agreed that criminal law was necessary to counter environmental crime and that an initiative at EU level in this direction could no longer be delayed. Indeed, in the almost decennial dispute over the legal basis of the harmonised instrument, the necessity of criminal sanctions to fight green crime was never put into question, nor was the ECJ ever to challenge the need for regulatory intervention in the field of criminal law. ⁵¹ Such political consensus, though bolstered by the two aforementioned environmental disasters, had been built over almost two decades of institutional efforts, unlike any other piece of environmental legislation. ⁵²

The policy objectives of the ecocrime directive

The policy objectives of the Ecocrime Directive, which largely correspond to those of the Council’s Framework Decision, were clearly laid down in the Commission’s preparatory documents. From a broad perspective, the harmonised text was intended to ‘guarantee a high level of protection the environment’, by tackling serious environmental crime. ⁵³ More specifically, the purpose of the European legislator was to ‘ensure a level playing field for individuals and businesses and to avoid safe havens for criminals in the Community’ and also to ‘facilitate cooperation between Member States in cross-border cases’. ⁵⁴ But how exactly was the Ecocrime Directive designed to affect domestic criminal law systems?

The background studies had outlined major differences between Member States in the regulation of environmental wrongdoings, in respect to both the scope of criminal liability and the relevant sanctioning levels. ⁵⁵ Though it appeared that Member States were increasingly resorting to criminal law for the protection of the environment, administrative sanctions were often preferred, sometimes in the form of a ‘quasi-penal law’, because of their greater flexibility and lower cost. The reports underlined that fines were decidedly the more frequent sanction for environmental offences and that imprisonment was hardly ever imposed. At the same time, a general trend was outlined towards more severe sentencing of environmental crimes. The studies also showed that the regulatory framework concerning the liability of legal persons was particularly scattered and they all stressed the importance of harmonisation in this domain in order to effectively counter environmental criminality. Finally, very few Member States seemed to have criminal prosecuting bodies specialising in environmental offences, and even fewer to have green courts. ⁵⁶

Against this background, the Ecocrime Directive was designed to harmonise the definition of environmental offences and the scope of the relevant liability for both physical and legal persons. ⁵⁷ It is worth underscoring that the Directive was issued under Article 175 TEC (now Article 192 TFEU) which allowed the European Commission to take action ‘in order to achieve the objectives referred to in Article 174’. From a policy standpoint, its goals were thus to ‘preserve, protect and improve the quality of the environment’ and to ‘protect human health’, as per Article 174(1) TEC. From a normative standpoint, though, the Directive required Member States to criminalise, within their national criminal justice systems, certain conducts that were considered particularly detrimental for the environment. From this perspective, it is fair to maintain that the Directive intended to harmonise national criminal law by establishing minimum rules with respect to the definition of offences and the intensity of the relevant penalties. ⁵⁸ The objective of the Commission was indeed to ensure that serious environmental offences be qualified as criminal offences and be punished accordingly in all Member States. The ultimate goal was to make sure ‘that serious cases of environmental crime [were] dealt with in a similar manner in all Member States and that perpetrators [could not] take benefit from the existing differences in national legislation’. ⁵⁹

A basic concern thus related to the type of sanctions attached to environmental offences. In this respect, the rationale underpinning the proposal was essentially deterrence: the Directive proposal clearly states that ‘only criminal penalties will have a sufficiently dissuasive effect’ in the fight against green crime. Interestingly, although all studies agreed that criminal sanctions represent the strongest deterrent against crime, it had also been noted that ‘complementary administrative instruments’ had a particularly strong deterrent effect, especially in the case of corporate crime. ⁶⁰

A second concern related to the intensity of the sanctions attached to environmental offences. Although few studies had expressly suggested that the existing criminal sanctions were inadequate to counter environmental crime, ⁶¹ the Ecocrime Directive proposal rests on the assumption that ‘the sanctions currently in place in the Member States [were] not always sufficient to effectively implement the Community’s policy on environmental protection’. ⁶² The Ecocrime Directive was therefore designed to ensure that environmental offences be subject to similar criminal penalties in all Member States.

This particular objective represented, in many ways, the cornerstone of the entire proposal. The relatively low sanctions in place in some Member States were regarded as being the underlying cause of both the insufficient trans-border cooperation and the low risk of detection of environmental offences, in view of their impact on the investigation methods available to the law enforcement authorities. They were also thought to undermine crime prevention, because they were sometimes ‘so low that their deterrent effect must be doubted’. ⁶³ Furthermore, sanctioning disparities between Member States was considered a catalyst for green crime, for it allowed offenders to exploit regulatory differences to their advantage. The Directive was therefore essentially aimed at establishing minimum penalty thresholds that would prevent forum shopping and avoid safe havens for environmental criminals. In this respect, harmonising sanctions for environmental offences was the central piece of the Ecocrime Proposal.

This aim was, though, largely frustrated when the ECJ, in its 2007 decision on the Ship Source Pollution Case, stated that ‘the determination of the type and level of the criminal penalties to be applied [did] not fall within the Community’s sphere of competence’. ⁶⁴ The Proposal had therefore to be amended and all the references to penalty thresholds for physical and legal persons had to be left out. In its final version, later approved by both the Parliament and the Council, the proposed text only required that criminal sanctions for environmental offences be ‘effective, proportionate and dissuasive’, thereby leaving a very high degree of flexibility to Member States for implementation. These amendments, of course, fundamentally undermined the main policy objective that the Directive was intended to meet, which was the creation of a level playing field for environmental offences designed to foster inter-state cooperation and to prevent forum shopping.

The ecocrime directive ‘in action’

After having outlined the criminological definition of environmental crime comprised within the Ecocrime Directive and having discussed its political background and policy objectives, it is now possible to try and assess the impact of this instrument on the legal systems of Member States. The objective of this paragraph is indeed to understand, on the basis of the available data, whether the Ecocrime Directive has translated into legal practice and if it has met the policy objectives it was meant to attain.

According to the studies commissioned by the European Commission, ⁶⁵ the implementation of the Ecocrime Directive has been completed in an overall satisfactory manner. Several Member States resorted to little or no implementing legislation, as all conducts disciplined by the Ecocrime Directive were already punishable under domestic criminal law. ⁶⁶ Although only a few States notified full transposition within the implementation period, ⁶⁷ the delay accumulated by the others rarely exceeded a 12/18-month period. By late 2012 all Member States had implemented the Ecocrime Directive, either in full or in large part.

With few exceptions, these studies find the national implementing legislation to be compliant with the Directive as to the scope of the offences and to the effectiveness of the sanctioning system. In many Member States the scope of criminal liability in environmental matters is even wider than that required by the harmonisation instrument. Some states, for example Luxemburg and Denmark, punish environmental wrongdoings that do not cause substantial harm to the environment or human health. Many legislators have also decided to extend punishment merely to negligent conduct, thereby lowering the threshold of ‘serious negligence’ provided for by the Directive. As for the sanctioning system, although a few reports underline the severity of available criminal penalties, environmental criminal legislation is generally thought to be more lenient and ineffective than other fields of the criminal law. Nevertheless, almost no report goes as far as to say that the sanctions are not ‘effective, proportionate and dissuasive’, which would represent a violation of the obligations set out in the Directive.

For the purpose of this research, it might be appropriate to view these results with a certain amount of scepticism. Many studies, although ultimately giving a green light to the national implementing legislation, outline several shortcomings in the transposition of the Directive. While some of these problems are inherent in the construction of the offences, others lie within the implementing technique deployed by national legislators. Indeed, the application of domestic environmental criminal law by national authorities might prove to be difficult, considering the vagueness of its wording, as several reports point out. ⁶⁸ Furthermore, the studies appear to oversimplify the compliance of national criminal law with respect to the sanctioning system. It is worth restating that the provisions of the Directive regulating sanctions had been significantly watered down, thus ‘facilitating’ formal compliance by Member States. That being said, the effectiveness and deterrent character of criminal sanctions against environmental offences is generally reported to be satisfactory, even though little or no evidence is provided to support in concreto this statement. Furthermore, such evaluation, which in fairness is extremely difficult to substantiate, ⁶⁹ is purely theoretical, as the reports were drafted at a time when the newly-introduced environmental offences had hardly been applied at all.

In order to understand how the Directive has actually affected judicial practices in environmental matters, it is crucial to focus not on the availability but on the use of environmental legislation within Member States. Scientific data on crime statistics and on the impact of supranational legislation are, though, considerably scarce. ⁷⁰ Against this background, the documentation provided by EUFJE on the protection of the environment through criminal law in EU Member States appears to be particularly valuable. ⁷¹

In 2015, on the occasion of its annual convention, the EUFJE conducted a survey concerning the implementation of the Ecocrime Directive within national legal systems. Justices from fifteen different Member States completed a fifty question questionnaire, drafted by the EUFJE Board. The results were then transmitted to the authors of this article for further analysis. All the information contained in the questionnaires was then divided into sub-categories and arranged into double-entry tables, in order to perform horizontal (State-by-State) or vertical (question-by-question) analysis. Further subdivisions were organised in order to accommodate and compare the answers given to open-ended questions. No answer was interpolated with information from scientific literature or other sources, in order to ensure its authenticity and to try and understand what lies ‘beyond’ the given answer. ⁷²

The collected data reflect in many ways the legal background of each Justice and cannot be regarded as being scientifically accurate under all circumstances. ⁷³ Nevertheless, the information provided does cover a significant portion of the EU, both in terms of population and territory ⁷⁴ , providing an intelligible picture of the quality and quantity of environmental prosecution within European borders. The result of the analysis is a vivid insight into the application of environmental legislation before national courts.

According to the information provided, all offences disciplined within the Ecocrime Directive are punishable under national criminal law. ⁷⁵ This result is consistent with the findings of the Commission as to the full transposition of the instrument. With reference to the scope of criminal liability, the findings show a relatively level playing field among legal systems. In particular, the preconditions for corporate liability–be it criminal or administrative ⁷⁶ –appear to be homogeneous and extend to all offences regulated by the Ecocrime Directive. In all countries, corporate liability is autonomous and direct as it does not depend on the conviction of a natural person. Environmental offences are therefore punishable in all the considered Member States and, when committed by or on behalf of legal persons, entail monetary and interdictory sanctions for the corporations involved.

Considerable discrepancies appear in the construction of environmental offences, especially with respect to the impact of the unlawful conducts on human health or on the environment. Although this aspect is said to be taken into consideration in every Member State when deciding how much to punish (i.e. the amount of sanctions), it is not always decisive when deciding whether to punish. Indeed, several national legislators have either dropped or watered down such requirements, thereby widening the scope of the relevant offences. ⁷⁷ This choice has a considerable practical relevance, as it affects the clarity and foreseeability of environmental offences throughout the European legal space.

As for the sanctioning system, all Member States punish environmental offences by both imprisonment and fines and allow for the confiscation of illegal benefits. Conspicuous differences exist in the availability of remedial sanctions within criminal proceedings: only six Member States allow criminal judges to issue remedial orders against convicted offenders, whilst in the others this sanction is only available to administrative authorities or judges. Where no remedial criminal sanction is available, specific obligations can be imposed on the offender in the sole context of probation, i.e. as a condition not subject to criminal penalty. The findings show no clear pattern as to the amount of criminal sanctions. In most States, imprisonment can amount to a maximum of 5/10 years, but it attains 15 years in Hungary and Italy. Monetary sanctions range from about 20,000,000€ (even for physical persons, as in Belgium) to less than 1,000,000€ (even for legal persons).

Interestingly, these differences seem to disappear when moving from theory to practice. Although the available data do not lead to unambiguous conclusions on this point, incarcerations seem to range from an average of 6/7 months to a maximum of 2 years. Coherently, prison sentences are almost automatically suspended under probation. As for monetary sanctions, criminal fines for natural persons generally amount to 5,000€ and rarely exceed 10,000€. These data clearly indicate that prison sentences are often modest and virtually never served in their entirety and that monetary sanctions (at least for natural persons) are on average quite low. ⁷⁸ This finding is also consistent with the types of criminal offences that seem to be brought before the criminal courts: according to the questionnaires, most violations are ‘minor’ offences in comparison to other environmental crimes regulated by the Directive.

The results of the questionnaire are particularly interesting in describing the relationship between administrative and criminal sanctions in environmental matters. Whereby in all Member States it is possible to punish environmental offences through administrative fines, the use of both administrative and criminal fines is virtually never possible, either for the application of the ne bis in idem principle, or for the priority that is accorded (ex lege or de facto) to criminal sanctions during investigation and prosecution. ⁷⁹

The maximum amount of an administrative fine rarely exceeds 100,000€, even though it can amount to 1,000,000€ in some countries. All Member States allow administrative authorities to issue remedial sanctions and some of them rely predominantly on this type of sanction. ⁸⁰ In all legal systems, remedial orders are assisted by penalty fees in case the offender fails to comply with the relevant obligations. It is worth noting that several Member States have also developed alternative dispute resolution mechanisms in cases of administrative violations, some of which specifically target environmental wrongdoings. Interestingly, some of these mechanisms are on the very boundary between criminal and administrative law. ⁸¹

As for the actual use of administrative sanctions against environmental offences, the available data do not allow definitive conclusions to be drawn. Punishment of environmental offences by administrative law appears to be very frequent, though predominantly targeting ‘minor’ or ‘formal’ offences. Coherently, the average amount of administrative fees seems to be quite low, ranging from 3,000 € to 5,000€ and rarely exceeding 15,000€. In this respect, it should be pointed out that environmental offences are always said to be subject to a combination of monetary and non-monetary administrative sanctions and that several Member States rely almost exclusively on remedial orders.

With reference to the functioning of the institutional framework, the available data show that specialisation in environmental matters is far rarer in criminal courts than it is prosecution offices: while only three countries have ‘green courts’, more than double have ‘green prosecutors’. Only three countries have both, while seven (i.e. almost half of the States included in the research) do not have either. Interestingly, this aspect does not seem to be relevant to the perceived efficiency of the prosecution of environmental offences.

Conclusion

The outcomes of this research reflect the complexity of environmental law and the challenges (and paradoxes) that European and national legislators face when trying to protect the environment through criminal law.

Some of the findings appear to be conflicting with one another. On the one hand, the Directive has been fully implemented in all Member States and, therefore, environmental offences are punishable under domestic criminal law with ‘effective and dissuasive’ sanctions. Liability for environmental crimes extends to corporations and virtually never depends on the conviction of a physical person. On the other hand, only ‘minor’ and ‘formal’ violations make it to criminal courts and are sentenced with frequently modest sanctions, which can be suspended under probation or extinguished through alternative dispute resolution mechanisms. Notably, this is true regardless of whether domestic implementing legislation has kept or dropped the severity requirement provided for by Article 3 of the Ecocrime Directive. Even where domestic criminal law would allow relatively harsh punishment against offences that do not affect the environment substantially, comparatively low sanctions seem to be inflicted.

These data might lead to the conclusion that environmental wrongdoings, though punishable under domestic criminal law, are currently not being prosecuted within the criminal justice system of Member States. We believe this conclusion to be, at least partially, misguided. In our understanding, a more convincing explanation, consistent with the results of the EUFJE questionnaire, is that crimes against the environment are rarely prosecuted or punished as such. Even though certain environmental offences can in theory be subject to severe punishment, this occurs in practice only when–and almost only because–they are part of an organised crime scheme and/or they affect human health. Serious environmental offences are thus prosecuted as organised crimes or as crimes against life and individual safety, and the impact they have on the environment is seldom the focus of prosecution. For this reason they are not categorised as green crimes by practitioners.

This conclusion is not unbiased. The severity requirement, which reflects the subsidiary nature of criminalisation under supranational law, is a defining trait of the European mandate for the protection of the environment. Indeed, the Directive was issued with a view to ensure (at least) the punishment of crimes that severely affected the environment or human health. In our understanding, the findings of this research suggest that, when this happens, green crimes are no longer regarded as environmental offences. An environmental violation is either not harmful enough to the environment to be regarded as a criminal offence, or too harmful to human life or to the public order to be regarded as a ‘mere’ environmental offence.

If this were true, it might be contended that serious environmental crimes would still be prosecuted, though not as green offences, and that the aim of the Ecocrime Directive would therefore be indirectly attained. In our view, such an assumption is highly dubious, as the point of the supranational instrument was for the environment to be placed at the centre of criminal prosecution. On the contrary, the findings of the research seem to point to a persistent lack of ‘green prosecutorial culture’. This cultural gap and the resulting unsatisfactory use of criminal sanctions against green offences undermine one of the cornerstones of the Directive, that is that ‘new’ green offences would protect the environment by deterring potential green offenders. Whether or not it is possible for the purpose of deterrence to establish a link between actual and perceived punishment, the Directive does not seem to have changed the former and therefore, most likely, it has failed to change the latter. Indeed, it might have done worse: now that the offences are in place and that relatively harsh sanctions are available, the lack of severe convictions might lower the perceived risk of being punished for harming the environment, thereby encouraging rather than reducing delinquency.

There is yet another more subtle but substantial question that our findings seem to raise: the outlined judicial practices and the current legal framework appear to be blurring the difference between criminal and administrative sanctions, ultimately questioning the need for criminal response in environmental matters.

On the one hand, administrative sanctions are reportedly more effective in practice than criminal sanctions: administrative violations are often no-fault offences, in many Member States they are regulated by the so-called ‘pay first, litigate later’ principle and lead to considerably high fines. Furthermore, environmental authorities can resort to a vast array of remedial sanctions, which allow a comprehensive response against environmental crime. These findings challenge the very assumption that the criminal track is intrinsically more deterrent than the administrative track and that it guarantees a higher level of protection of the environment.

On the other hand, some national legislators have tried to ‘administratise’ their domestic criminal sanctioning system in order to cope with the expansion of environmental offences and to compensate for the rigidity of the criminal justice system. In particular, an increasing number of Member States is providing criminal judges with remedial sanctions, reportedly a more versatile and effective tool for the protection of the environment than imprisonment and fines. Therefore, in environmental matters, the focus of the criminal judgment seems to be shifting from punishing the offender to redressing the damage, which is a considerable deviation from the traditional paradigm of the criminal law. This outcome appears to be paradoxical, provided that remedial sanctions have always been available under administrative law and that the approval of the Ecocrime Directive was based on the assumption that administrative sanctions did not provide enough protection to the environment.

With respect to remedial sanctions, one additional problem is their uneven distribution throughout European criminal justice systems. In general, it is fair to assume that the availability of remedial orders as administrative or as criminal sanctions is a question of law, which does not per se affect the intensity of environmental protection. On the contrary, the fact that remedial sanctions are so unevenly available in the criminal justice system of Member States is a fundamental flaw in the protection of the environment through criminal law: it increases the risk of double-track proceedings (i.e. administrative and criminal) and it may complicate–rather than facilitate–cross-border implementation of criminal judgments.

Against this background, it is possible to make some concluding remarks concerning the policy objectives of the Ecocrime Directive. As discussed above, the harmonisation instrument was essentially aimed at guaranteeing a higher level of protection of the environment by focusing on two issues of substantive law: the type of sanctions attached to environmental offences and their intensity.

As for the general objective, a first rather obvious conclusion that our findings support is that an extensive use of criminal law in environmental matters does not necessarily translate into a more effective protection of the environment: Member States appear to be missing a culture of criminal law enforcement against green crimes and substantive criminal law does not in itself ensure effective criminal prosecution and/or judgment. In fairness, the approval of the Ecocrime Directive might have been intended to create a momentum towards green criminal prosecution as a reaction against such lack of prosecutorial culture. True as this may be, such a policy goal does not seem to be met by the current judicial practices of Member States.

The reason for this lies in the way the two specific policy objectives were shaped into the Ecocrime Directive. Given the pre-Lisbon legal framework and the case law of the ECJ, the harmonisation instrument could only focus on one specific goal which is to ensure that environmental wrongdoings are qualified as criminal offences. The other policy objective, i.e. the intensity of sanctions against green crime, was entrusted to the feeble obligation for Member States to provide ‘effective, proportionate and dissuasive criminal sanctions’; an obligation, which – as we have seen above – is scarcely assessable. This inability (recte, the legal impossibility) directly to affect the domestic sanctioning system of Member States is probably at the core of the reported lack of effectiveness in the response against green crime.