Germany: Reaction to Increasing Environmental Crime – EU Directive Plans New Criminal Offences
The area known as "environmental criminal law” is becoming increasingly relevant, particularly in light of the current climate crisis. According to Interpol and the UN Environment Programme, environmental crime is the fourth most prevalent criminal activity worldwide, following drug trafficking, human trafficking, and counterfeiting offenses.
To strengthen environmental protection through criminal law measures, the Directive (EU) 2024/1203 of 11 April 2024 on the protection of the environment through criminal law and replacing Directives 2008/99/EC and 2009/123/EC (the "Directive”) was adopted and entered into force on 20 May 2024. The Directive introduces new criminal offences, expands existing ones, and must be transposed into national law by 21 May 2026.
But what changes will it bring, and what should companies consider moving forward?
Changes and innovations
1. Expansion of environmental offences
The existing list of environmental offenses will be expanded to include several new criminal offenses. These encompass the illegal timber trade, illegal ship recycling, and serious offenses related to the handling of greenhouse gases that contribute to climate change or violate EU chemicals legislation. Notably, a new regulation addressing the illegal handling of hazardous waste is also introduced.
The Directive further introduces the concept of a "qualified criminal offence”. This refers to intentional unlawful acts which, due to their irreversibility and severe consequences, warrant stricter sanctions [Recital (21)]. Additionally, it clarifies many undefined legal terms, such as "substantial damage”, and proposes criteria for a more precise interpretation [Recital (13) et seq.]
2. Harsher penalties and sanctions
New provisions for penalties and sanctions have been established. Sanctions that were previously uncommon in German criminal law can now be imposed, including the exclusion of public benefits, the obligation to restore the environment to its previous state or to pay compensation for the environmental damage caused, and even bans on conducting business activities and the withdrawal of operating licenses or permits related to the offense.
Fines can now be imposed in deterrent amounts of up to EUR 40 million or 5% of annual global turnover on companies involved in serious environmental offences (e.g. manufacturing, placing on the market or supplying substances that are likely to cause substantial damage to the ecosystem). In other cases, the maximum fine is EUR 24 million or at least 3% of the annual turnover. Intentional offenses resulting in the death of another person carry a minimum prison sentence of 10 years.
3. Effectively combating environmental crime
The Directive also aims to enhance the enforcement of environmental criminal law, providing simplifications for law enforcement authorities. Noteworthy is the call for national strategies to combat environmental crime, alongside the recommendation to equip law enforcement authorities with sufficient resources and adequate training. The Directive includes extended investigative powers and encourages greater cooperation between Member States.
Evaluation / Conclusion
What is particularly significant, especially in the context of the forthcoming national implementation, is to the potential to penalise companies under criminal law and allowing for the involvement of third parties in proceedings through the granting corresponding procedural rights. These developments are unprecedented in German law and will pose challenges for legislators.
An expansion of the German Criminal Code is anticipated, specifically Section 29 on "Offences against the environment” - (Sections 324 et seq. of the German Criminal Code), along with considerably stricter requirements for companies. However, the specifics of how the new regulations will be implemented and their precise consequences remain to be seen.
As the Directive not only tightens environmental law but also impacts compliance requirements for companies, it is crucial for organizations to review their existing compliance regulations and, if necessary, adapt them to meet the new requirements of the EU Directive to mitigate liability risks. Particular attention should be paid to the handling of hazardous waste and other activities relevant to environmental law.