The EU must maintain its leadership role in fighting global climate change and biodiversity loss by getting tough on environmental crime. To this end, the EU Parliament needs to enter upcoming negotiations with a strong position on the Environmental Crime Directive. The vote on 28 February in the legal affairs committee is therefore crucial, write Margarida Martins and Ruby Silk.
Environmental crime – be it the dumping of toxic waste, illegal water abstraction, illegal ship recycling or any other of its myriad forms – is happening all over the world. Europe is no exception. Even worse, it often goes unpunished. The United Nations Environment Programme (UNEP) and Interpol estimate the cost of environmental crime at around 188 billion Euros per year, which makes it the third most profitable transnational criminal activity. However, despite the spread and the severity, the legal arsenal to tackle environmental crime is lacking both at national and European level.
The result of the Volkswagen emissions (Diesel-gate) scandal – where it was revealed that millions of diesel vehicles manufactured by Volkswagen Group (VW) were fitted with illegal software that allowed them to cheat emissions test – paints an accurate, albeit disheartening, picture of the extent to which this area of law is overlooked. In prosecuting Volkswagen officials, public prosecutors focused on fraud charges. Since the illegal software installed in the vehicles caused massive air pollution, harming the environment and human health, environmental charges should have also been brought against them but German legal offenses for air pollution were not suited to charge Volkswagen and its officials. This sits in stark contrast with other countries, like Canada, where Volkswagen were prosecuted and ordered to pay a $196.5 million fine for breaching the federal environmental legislation. Pursuing fraud charges instead of environmental charges means Volkswagen is not held accountable for the enormous environmental damage it has caused and fails to deter other companies from harming the environment in the future.
The overdue revision of the Environmental Crime Directive (the first revision since its introduction in 2008) is an opportunity to gear up our legal systems to fight organised environmental crime in Europe.
A first step in the right direction
Activists and environmental NGOs warmly welcomed the 2019-2020 evaluation of the outdated Environmental Crime Directive and the Commission’s proposal for a revision in late 2021. Even though NGOs highlighted areas for improvement in the proposal, they nonetheless praised it as a crucial step in the right direction.
Introduced in 2008 after years of delays, the original text for the Directive drew directly on the text of the Convention on the Protection of the Environment through Environmental Law from the Council of Europe. The Convention itself was an early signal of EU governments’ reluctance to get tough on environmental crime: while it was opened for signature in 1998, it failed to get beyond the threshold of three ratifications and so never entered into force.
More than 20 years after this collective European failure, Member States do not appear to have advanced in their position on environmental crime. They have been showing concerning reluctance to progress their outdated criminal law traditions, with some seemingly having all but forgotten Diesel-gate. This lack of enthusiasm was reflected in the General Approach of the Council of the EU on the revision proposal, published in late 2022, which fails to appropriately address environmental crimes. It watered down the penalty and sanction levels for environmental crimes and left out several important violations.
We can no longer afford to see environmental crime as white-collar crime but have to start taking it seriously. Damaging the environment is not a way to cut corners and reduce the cost of business. It is a crime and it seriously harms when it does not kill people,
says Frederik Hafen, Policy Officer for Environmental Democracy.
The revision proposal is now in the last stages of parliamentary debates. Environmental, conservation and animal protection organisations have warmly welcomed the report drafted in the lead Committee on Legal affairs, which includes many good amendments that will serve to further strengthen the Commission’s proposal. But a lot of work still needs to be done.
Remaining shortcomings must be addressed
The sanctions set out in the Commission’s proposal are far from proportionate to the damages environmental crime can cause. The directive sets a minimum level for the highest sanctions Member State criminal codes can suggest to a judge when ruling on a case of environmental crime. The aim is to set a harmonised threshold of sanctions across all Member states, the latter being free to provide for more severe sanctions.
The Commission’s proposal on environmental crime sets the minimum sanction at 5% of a company’s annual turnover. While the Committee report suggests to bring this number up to 10%, NGOs demand that it be 15%, and certainly no lower than 10% – the minimum sanction in EU competition law . The protection of the environment and human health should not be treated as less important than the protection of the EU single. Furthermore, the sanction should also be at least as high as remediation of the damage will cost and it should take into account the financial benefits the individual gained through the offense.
In addition, the protection of environmental whistle-blowers should be expanded to cover both natural and legal persons (such as NGOs). This will allow civil society organisations to fall under the scope of protection, as they are often at the forefront of detecting and bringing attention to environmental crime. The role of civil society should also be recognised as a vehicle for nature reparation claims. Nature is the constant victim of environmental crime but does not have legal standing (while corporations, and even ships do!). Members of the public should have rights allowing them to represent nature in court proceedings.
In sum, the revision of the Environmental Crime Directive presents plenty of opportunities – which the EEB lays out in more detail in our statement – to crack down on environmental crime in Europe. Note 1.
Time to put the cuffs on environmental crime
Environmental crime in Europe is steadily on the rise and small administrative fines have barely made a dent against this trend. Europe and its citizens cannot afford another failed criminal law response like the one we have seen with the Diesel-gate scandal. EU legislators and Member States must demonstrate resolve to effectively step up the fight against environmental crimes with the seriousness it warrants. Our eyes are on the Parliament’s Legal Affairs Committee vote on 28 February to hopefully see politicians finally taking a firm stance against environmental crime and for punishing it for what it is – a crime.
Note 1. EEB, ENVIRONMENTAL CRIME IS CRIME – IT’S TIME TO ACT LIKE IT bit.ly/3Iue0xn
Originally published in European Environmental Bureau’s news channel, META, at bit.ly/3XZKZPH (24 Feb 2023)