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Protection of the environment through criminal law

The Directive defines a minimum number of serious environment-related offences and requires Member States to provide for more dissuasive criminal penalties for this type of offence when committed intentionally or as a result of gross negligence.

ACT

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.

SUMMARY

This Directive aims at obliging Member States to impose criminal penalties on certain behaviour which is seriously detrimental to the environment. This minimum threshold for harmonisation will allow environmental legislation to be better applied, in line with the objective for the protection of the environment laid down in Article 174 of the Treaty establishing the European Community (EC Treaty).

Behaviour subject to penalties

Member States should class the following behaviour as a criminal offence, if a Community regulation in the area of environmental protection is infringed and if the behaviour is committed intentionally or through serious negligence:

  • unlawful *, discharge into air, soil or water, of materials or ionising radiation which causes or is likely to cause death or serious injury to any person or substantial damage to the environment;
  • unlawful collection, transport, recovery or disposal of waste which causes or is likely to cause death or serious injury to any person or substantial damage to the environment;
  • unlawful shipment of waste in a non-negligible quantity;
  • unlawful 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 causes or is likely to cause death or serious injury to any person or substantial damage to the environment;
  • the unlawful manufacture, treatment, storage, use, transport, import or 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 environment;
  • the unlawful killing, destruction, possession or taking of, or trade in, protected animal and plant species;
  • unlawful damage to protected habitats;
  • unlawful trade in or use of ozone-depleting substances.

Member States should also ensure that inciting, aiding and abetting the committing of a criminal act is also punishable.

Penalties

Criminal penalties must be effective, proportionate and dissuasive.

Member States shall ensure that legal persons *, can be held liable where 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 power of representation of the legal person;
  • an authority to take decisions on behalf of the legal person; or
  • an authority to exercise control within the legal person.

This liability may be of a criminal or administrative nature, depending on the legal system of the Member State in question.

The Member States shall plan action to ensure that the liability of legal persons is incurred if a person under the authority of a legal person has not fulfilled their duties of supervision or control thus allowing an offence to be committed for the benefit of a legal person.

Context

The Commission adopted a Proposal for a Directive on the protection of the environment through criminal law in 2001. In 2003, the Council adopted Framework Decision 2003/80/JHA based on the provisions of the EU Treaty on cooperation between Member States in terms of criminal law. This Framework Decision was annulled in 2005 by the European Court of Justice because its legal basis was not correct. The measures contained in the Framework Decision could have been taken by the Community under its environmental protection policy. The Commission then adopted a new Proposal on 12 February 2007, which led to the adoption of this Directive.

Key terms used in the Act
  • Unlawful: the infringing of Community legislation or a law, an administrative regulation or a decision taken by a competent authority of a Member State in the area of environmental protection.
  • Legal person: 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.

REFERENCES

Act Entry into force Deadline for transposition in the Member States Official Journal
Directive 2008/99/EC

19.11.2008

26.12.2010

OJ L 328 of 6.12.2008

Last updated: 13.06.2009
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