What changed between the draft committee report and the plenary report

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

8 unchanged paragraphs

on the proposal for a directive of the European Parliament and of the Council on the protection of the environment through criminal law and replacing Directive 2008/99/EC

(COM(2021)0851 – C90466/2021 – 2021/0422(COD)(COD))

(Ordinary legislative procedure: first reading)

The European Parliament,

– having regard to the Commission proposal to Parliament and the Council (COM(2021)0851),

– having regard to Article 294(2) and Article 83(2) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C90466/2021),

– having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

– having regard to Rule 59 of its Rules of Procedure,

Changed:– having regard to the reportopinions of the Committee on LegalDevelopment, of the Committee on the Environment, Public Health and Food Safety, of the Committee on Civil Liberties, Justice and Home Affairs (A90000/2022),and of the Committee on Petitions,

Added:– having regard to the report of the Committee on Legal Affairs (A9-0087/2023),

1. Adopts its position at first reading hereinafter set out;

Change 1

Removed:2. Approves its statement annexed to this resolution;

2. Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

3. Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Change 2

Changed:Recital 1: (1) According to Article 3(3) of the Treaty on European Union (TEU) and Article 191 of the Treaty on the Functioning of the European Union (TFEU), the Union is committed to ensuring a high level of protection and improvement of the quality of the environment. Therefore,The theenvironment environment,should be protected in a wide sense of the term, should be protected. Such protection should encompasscovering all environmental media,natural suchresources as- air, water, soil, wild fauna and flora, including habitats,habitats - as well as services provided by natural resources.resources, promoting measures at international level to deal with regional or worldwide environmental problems.

Change 3

Changed:Recital 1 a (new): (1 a)(1a) According to Article 191(2) of the Treaty on the Functioning of the European Union (TFEU), Union policy on the environment is to be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay. Considering that the impact of environmental crime affects also human rights, the fight against environmental crime should be a priority at Union level in order to ensure the protection of these rights.

Change 4

Changed:Recital 2: (2) The Union continues to be concerned with the rise in environmental criminal offences and their effects, which undermine the effectiveness of Union environmental legislation. These offences are moreover increasingly extending beyond the borders of the Member States in which the offences are committed,committed. requiringIn effectivejust cross-bordera cooperation.few decades, environmental crime has become the fourth largest criminal sector in the world, growing two to three times faster than the global economy1a,1b and is now as lucrative as drug trafficking1c. Such offences pose a threat to the environment and therefore call for ana proportionate, appropriate and effective response.response, requiring effective cross-border cooperation. / 1a INTERPOL-UN Environment (2016), Strategic Report: Environment, Peace and Security, A Convergence of Threats. / 1b UNEP (2018), The State of knowledge of crimes that have serious impacts on the environment. / 1c Eurojust (2021), Rapport sur le travail d'Eurojust sur les crimes environnementaux.

Change 5

Removed:Recital 4: (4) The effective detection, investigation, prosecution and adjudication of environmental criminal offences should be improved. The list of environmental criminal offences which were set out in Directive 2008/99/EC should be revised and additional categories of offences based on the most serious breaches of Union environmental law should be added. Provisions on sanctions should be strengthened in order to enhance their deterrent effect as well as the enforcement chain in charge of detecting, investigating, prosecuting and adjudicating environmental criminal offences.

Added:Recital 3: (3) The existing systems of penalties under Directive 2008/99/EC of the European Parliament and of the Council20 and environmental sectoral law have not been sufficient in all environmental policy area to achieve compliance with Union law for the protection of the environment. Compliance should be strengthened by the availability of appropriate criminal penalties that are sufficiently dissuasive and commensurate with the seriousness of the offences, which demonstrate social disapproval of a qualitatively different nature compared to administrative penalties. In many Member States environmental offences do not fall within the framework of criminal law. Environmental criminal law should become a tool that is separate from administrative law and that complements such law to prevent unlawful conduct that damages the environment and that serves to deter such conduct.

Removed:Recital 8: (8) A conduct should be considered unlawful also when it is carried out under an authorisation by a competent authority in a Member State if such authorisation was obtained fraudulently, or by corruption, extortion, coercion, or by any other unlawful conduct. Moreover, operators should take the necessary steps to comply with the legislative, regulatory and administrative provisions concerning the protection of environment applicable when they carry out the respective activity, including by complying with their obligations, as laid down in applicable EU and national laws, in procedures governing amendments or updates to existing authorisations.

Added:Recital 4: (4) The effective detection, investigation, prosecution and adjudication of environmental criminal offences should be improved. The list of environmental criminal offences which were set out in Directive 2008/99/EC should be revised and targeted additional categories of offences based only on the most serious breaches of Union environmental law should be added. The Commission should carry out regular evaluations of the impact of this Directive and on the need to update the list of environmental criminal offences provided for in this Directive. Provisions on sanctions and penalties should be strengthened and adapted to the degree of severity and duration of the damage caused in order to enhance their deterrent and compensatory effect as well as the enforcement chain in charge of detecting, investigating, prosecuting and adjudicating environmental criminal offences.

Added:Recital 6: deleted / (deleted) / (deleted) / (deleted) / (deleted)

Added:Recital 7: (7) In order to constitute an environmental offence under this Directive, conduct should be unlawful under Union law protecting the environment, irrespective of its legal basis, or national laws, administrative regulations or decisions giving effect to that Union law. The conduct which constitutes each category of criminal offence should be defined and, where appropriate, a threshold which needs to be met for the conduct to be criminalised should be set. Such conduct should be considered a criminal offence when committed intentionally and also when committed with serious negligence. Illegal conduct that causes death or serious harm to any person’s health, substantial damage or a considerable risk of substantial damage for the environment or is considered otherwise as particularly harmful to the environment constitutes a criminal offence when committed with serious negligence. Member States remain free to adopt or maintain more stringent criminal law rules in that area.

Added:Recital 8: (8) A conduct should be considered unlawful also when it is carried out under an authorisation by a competent authority in a Member State if such authorisation was obtained fraudulently, including in situations in which the authorisation holder knew or should have known that the conduct would cause foreseeable substantial environmental or health damage at the time when the authorisation was granted, or by corruption, extortion, coercion, or by any other unlawful conduct. Conduct should also be considered unlawful when it breaches a condition of authorisation. From the moment a conduct becomes unlawful, the perpetrator should not be allowed to invoke the issuance of an authorisation to avoid being held criminally liable. Moreover, operators should take the necessary steps to comply with the legislative, regulatory and administrative provisions concerning the protection of environment applicable when they carry out the respective activity, including by complying with their obligations, as laid down in applicable EU and national laws, in procedures governing amendments or updates to existing authorisations.

Added:Recital 8 a (new): (8a) Despite the growing number of environmental crimes, a harmonised and accepted definition of what constitutes environmental crime does not yet exist at Union and national level. This Directive aims to provide a general framework by laying down an autonomous offence of environmental crime, in addition to the Union-wide common set of specific environmental offences which are defined by reference to breaches of relevant Union environmental sectoral legislation. In line with existing legislation in different national criminal law systems, Member States should criminalise autonomous categories of environmental offences.

Added:Recital 8 b (new): (8b) Member States should criminalise the collection, transport, recovery or disposal of drug waste that causes or is likely to cause death or serious harm to any person’s health or substantial damage to the quality of air, the quality of soil or the quality of water, or to biodiversity, ecosystem services and functions, animals or plants. That criminalisation should include the supervision of such operations, the after-care of disposal sites and action taken as a dealer or a broker in relation to waste management. The chemical industry is responsible for knowing where its products end up and how its products are used. In cases where there is reasonable suspicion that products are used illegally, or directly linked to drug criminality, the supply of products should be stopped immediately.

Added:Recital 8 c (new): (8c) Legal persons should be understood as not including public international organisations, States or public bodies exercising State authority, unless national law allows for public bodies exercising State authority to be understood as included.

Recital 9: deleted

Change 6

Changed:Recital 10: (10) The acceleration of climate change, biodiversity loss and environmental degradation, paired with tangible examples of their devastating effects, have led to the recognition of the green transition as the defining objective of our time and a matter of intergenerational equity. Therefore, when Union legislation covered by this Directive evolves, this Directive should also cover any updated or amended Union legislation falling within the scope of criminal offences defined under this Directive, when the obligations under Union law remain unchanged in substance. However, when new legal instruments prohibit new conduct harmful to the environment, this Directive should be revised as soon as possible in order to add to the categories of criminal offences also the new serious breaches of Union environmental law, therebythereby, progressingwhile morefully respecting the principles of conferral, subsidiarity and proportionality as laid down in Article 5 TEU, in order to progress towards establishing a Union Environmentalenvironmental Penalcriminal Code,law code, which is necessary as environmental crime often has a cross-border dimension.

Recital 11: (11) Qualitative and quantitative thresholds used to define environmental criminal offences should be clarified by providing a non-exhaustive list of circumstances which should be taken into account, where relevant, when assessing such thresholds by authorities which detect, investigate, prosecute and adjudicate offences. This should promote the coherent application of the Directive and a more effective fight against environmental crimes as well as provide for legal certainty. However, such thresholds or their application should not make the detection, investigation, prosecution or adjudication of criminal offences excessively difficult.

Change 7

Removed:Recital 14: (14) Sanctions for the offences should be effective, dissuasive and proportionate. To this end, minimum levels for the maximum term of imprisonment should be set for natural persons. Accessory sanctions or measures are often seen as being more effective than financial sanctions especially for legal persons. Additional sanctions or measures should therefore be available in criminal proceedings. These should include the obligation to reinstate the environment, exclusion from access to public funding, including tender procedures, grants and concessions and withdrawal of permits and authorisations. This is without prejudice to the discretion of judges or courts in criminal proceedings to impose appropriate sanctions in the individual cases.

Added:Recital 12: (12) In criminal proceedings and trials, due account should be taken of the involvement of organised criminal groups operating in ways that negatively impact the environment. The involvement of organised crime groups in an environmental offence, or the commission of an offence for the benefit of such groups, should be regarded as aggravating circumstances. Criminal proceedings should address corruption, money laundering, cyber-crime and document fraud and – in relation to business activities – the intention of the offender to maximise profits or save expenses, where these occur in the context of environmental crime. These crime forms are often interconnected with serious environmental crime forms and should therefore not be dealt with in isolation. In this respect, it is of particular concern that some environmental crimes are committed with the tolerance or active support of the competent administrations or officials performing his/her public duty. In certain cases this can even take the form of corruption. Examples of such behaviours are turning a blind eye or remaining silent on the infringement of laws protecting the environment following inspections, deliberately omitting inspections or controls for example with regard to whether the conditions of a permit are being respected by the permit-holder, resolutions or votes in favour of granting illegal licences or issuing falsified or untrue favourable reports. Considering the role that public authorities exert in preventing …

Removed:Recital 15: (15) Where national law provides for it, legal persons should also be held criminally liable for environmental criminal offences according to this Directive. Member States whose national law does not provide for the criminal liability of legal persons should ensure that their administrative sanctioning systems provide for effective, dissuasive and proportionate sanctions types and levels as laid down in this Directive in order to achieve its objectives. The seriousness of the conduct and the financial situation of legal persons should be taken into account to ensure the proportionality and dissuasiveness of the sanction imposed.

Added:Recital 13: (13) Inciting, and aiding and abetting the criminal offences committed intentionally should also be punishable. An attempt to commit a criminal offence that causes death or serious harm to any person’s health, substantial damage to the quality of air, the quality of soil or the quality of water, or to biodiversity, ecosystem services and functions, animals or plants, or is likely to cause substantial damage to the environment or is otherwise considered particularly harmful should also constitute a criminal offence when committed intentionally.

Removed:Recital 15 a (new): (15 a) It is important to proceed quickly with the establishment of robust Union rules for comprehensive due diligence. It is necessary to ensure that companies active in the internal market contribute to sustainable development and the transition of economies and societies to a sustainable model, through identification, prevention and mitigation measures, that bring to an end and minimise the risk of potential or actual adverse human rights or environmental impacts connected with companies’ own operations, subsidiaries and supply chains. In this context, the issue of liability should be properly tackled and due account should be taken of each company's efforts, insofar as they relate directly to the damage in question, to comply with any remedial action required, any investments made and any targeted support provided, as well as any collaboration with other entities to address adverse impacts in its supply chains.

Added:Recital 14: (14) Sanctions for the offences should be effective, dissuasive and proportionate. To this end, in the definition and application of sanctions, Member States should also take into account the financial benefits accrued by committing the offence, the level of the damage caused, as well as the potential for reinstatement or restoration of the environment and the costs involved in such reinstatement or restoration. Minimum levels for the maximum term of imprisonment should be set for natural persons. Accessory sanctions or measures are often seen as being more effective than financial sanctions especially for legal persons. Additional sanctions or measures should therefore be available in criminal proceedings in accordance with national legal systems. These should include the obligation to reinstate the environment, exclusion from access to public funding, including tender procedures, grants, concessions and licences and withdrawal of permits and authorisations and making sentences public. In cases where an offender is not in a capacity to reinstate or restore the environment, additional sanctions should be applicable. Sanctions should also include disqualification from functions and bans on running for elected or public office. This is without prejudice to the discretion of judges or courts in criminal proceedings to impose appropriate sanctions in the individual cases.

Removed:Recital 16: (16) A further approximation and effectiveness of sanction levels imposed in practice should be fostered through common aggravating circumstances that reflect the severity of the crime committed. Where the death of, or serious injury to, a person, have been caused and where these elements are not already constituent for the criminal offence, these could be considered as aggravating circumstances. Equally, when an environmental criminal offence causes destruction or substantial and irreversible or long-lasting damage to an entire ecosystem, this should be an aggravating circumstance because of its severity, including in cases comparable to ecocide, as defined by the United Nations, since the UN is working on a definition. As the illegal profits or expenditure that can be generated or avoided through environmental crime are an important incentive for criminals, these should be taken into account when determining the appropriate level of sanctioning in the individual case.

Added:Recital 15: (15) Legal persons should also be held criminally liable for environmental criminal offences according to this Directive, when they are perpetrators, instigators or accomplices in offences. Member States whose national law does not provide for the criminal liability of legal persons should ensure that their administrative sanctioning systems provide for effective, dissuasive and proportionate sanctions types and levels as laid down in this Directive in order to achieve its objectives. The severity and nature of the offence in terms of its scale and the irreversibility of the damage resulting from the offence as well as the financial situation of legal persons should be taken into account to ensure the proportionality and dissuasiveness of the sanction imposed.

Removed:Recital 17: (17) Where the crimes are of a continuing nature, they should be brought to an end as soon as possible. Where offenders have made financial or material gains, such gains should be confiscated.

Added:Recital 15 a (new): (15a) It is important to proceed quickly with the establishment of robust Union rules for comprehensive due diligence. Therefore, additional sanctions for legal persons should include the obligation for companies to establish due diligence schemes for enhanced compliance with environmental standards.

Removed:Recital 18 a (new): (18 a) Notwithstanding the benefits of this Directive in improving legal coherence at Union level, the Union is still faced with regulatory fragmentation in this area and a lack of uniformity in legal and practical terms. The differences in implementation and application of Union rules regarding environmental crime and liability means there is an absence of a level playing field for Union industry at present, and as a result the proper functioning of the internal market is being impaired. The Commission should, therefore, consider complementing this Directive with other policy fields, which could be fully harmonised by means of a regulation.

Added:Recital 16: (16) A further approximation and effectiveness of sanction levels imposed in practice should be fostered through common aggravating circumstances that reflect the severity of the crime committed. Where the death of a person or serious harm to any person’s health, have been caused and where these elements are not already constituent for the criminal offence, or when an environmental criminal offence causes destruction or substantial and irreversible or long-lasting damage to an entire ecosystem, or the offence was committed in a protected area, such as an area under Natura 2000, or in an area where the offence is likely to have a significant effect in view of the conservation objectives for a protected site, these should be aggravating circumstances. When an environmental criminal offence causes severe and widespread, or severe and long-term, or severe and irreversible damage to the quality of air, the quality of soil or the quality of water, or to biodiversity, to ecosystem services and functions, or to animals or plants, such offence should be considered a crime of particular gravity, and sanctioned as such in accordance with the legal systems of the Member States, covering ecocide, for which the United Nations are currently working on an official international definition. As the illegal profits or expenditure that can be generated or avoided through environmental crime are an important incentive for criminals, these should be calculated as accurately as possible and taken i…

Removed:Recital 18 b (new): (18 b) In line with improving legal coherence at Union level and in order to ensure legal certainty, the Commission should, when necessary, propose to update the list of environmental criminal offences and corresponding new definitions set out in this Directive regularly.

Added:Recital 17: (17) Where the crimes are of a continuing nature, they should be brought to an end as soon as possible. The competent judicial authorities should be entitled to order the immediate cessation of the unlawful conduct or to impose measures to prevent the execution of such conduct, in order to avert damage to the environment. Where offenders have made financial gains, such gains and other proceeds and instrumentalities should be confiscated and appropriately managed, in line with their nature, and, where possible, used to prevent environmental crime, finance restoration of the environment, remediation of any damage caused and compensation for the damage or harm caused by the unlawful conduct, in accordance with national law.

Removed:Recital 22: (22) Furthermore, judicial and administrative authorities in the Member States should have at their disposal a range of prevention methods, criminal penalties and sanctions, confiscation and other measures to address different types of criminal behaviour in a tailored, swift and effective manner.

Added:Recital 18 a (new): (18a) Notwithstanding the benefits of this Directive in improving legal coherence at Union level, the Union is still faced with regulatory fragmentation in this area and a lack of uniformity in legal and practical terms. The differences in implementation and application of Union rules regarding environmental crime and liability mean there is an absence of a level playing field for Union industry at present, and as a result the proper functioning of the internal market is being impaired. The Commission should, therefore, consider complementing this Directive with other policy fields which could be fully harmonised by means of a regulation. The Commission should also develop guidelines in order to assist the Member States in the preparation of harmonised, effective, dissuasive and proportionate sanctions.

Removed:Recital 26: (26) For the purpose of effective environmental law enforcement, members of the public concerned, as defined in this Directive taking into account Articles 2(5) and 9(3) of the Aarhus Convention26 , should have the possibility to act through administrative or judicial procedures in respect of offences that contravene provisions relating to the environment, within the scope of the Member States’ legal framework and subject to the relevant procedural rules.

Added:Recital 18 b (new): (18b) In line with improving legal coherence at Union level and in order to ensure legal certainty, the Commission should, where necessary, propose to update the list of environmental criminal offences and corresponding new definitions set out in this Directive regularly.

Removed:Recital 26 a (new): (26 a) Comprehensive and effective prevention measures and dissuasive and proportionate criminal sanctions and penalties are important deterrents against environmental damage and environmental crime. In accordance with the principle that the polluter should pay, the polluter should bear the full costs of the environmental harm that it has caused. In addition, the revenues generated by targeted fines should be used to contribute to the cost of preventative measures, specialised training, investigative tools, and the funding of resources to detect, investigate, prosecute or adjudicate on environmental crime offences.

Added:Recital 20: (20) The obligations in this Directive to provide for criminal penalties should not exempt Member States from the obligation to provide for effective, proportionate, dissuasive and deterrent administrative sanctions and other measures in national law for breaches established in Union environmental legislation.

Removed:Recital 26 b (new): (26 b) As a preventative measure, legal persons are encouraged to appoint an environmental compliance officer, to be in charge of record-keeping for the purpose of providing administrative or judicial authorities with information, for possible discovery procedures or subpoenas, to identify offenders and non-offenders. The appointment of an environmental compliance officer is considered a mitigating factor when legal persons are held liable for offences committed.

Added:Recital 22: (22) Furthermore, judicial and administrative authorities in the Member States should have at their disposal a necessary and appropriate range of prevention methods, criminal penalties and sanctions, confiscation and other measures to address different types of criminal behaviour in a tailored, timely, proportionate and effective manner.

Added:Recital 22 a (new): (22a) Legal persons convicted for criminal offenses listed in Articles 3 and 4 of this Directive should be temporarily removed from the Transparency Register established pursuant to the Interinstitutional Agreement of 20 May 2021 between the European Parliament, the Council of the European Union and the European Commission. The judicial decisions resulting in such convictions should be made accessible in all the Member States and referred to the Union institutions in charge of the Transparency Register. Therefore, the Union institutions should adapt the Interinstitutional Agreement of 20 May 2021 between the European Parliament, the Council of the European Union and the European Commission on a mandatory transparency register to allow temporary removal of legal persons convicted for environmental crimes.

Added:Recital 24: (24) Environmental criminal offences harm nature and society. By reporting breaches of Union environmental law, people and civil society organisations perform a service of public interest and play a key role in exposing and preventing such breaches, and thus safeguarding the environment, human rights and the welfare of society. Individuals in contact with an organisation in the context of their work-related activities are often the first to know about threats or harm to the public interest and the environment. Persons who report irregularities are known as whistleblowers. Potential whistleblowers are often discouraged from reporting their concerns or suspicions for fear of retaliation. Such persons should benefit from balanced and effective whistleblowers protection set out under Directive (EU) 2019/1937of the European Parliament and of the Council25.

Added:Recital 25: (25) Other natural or legal persons may also possess valuable information concerning potential environmental criminal offences. They may include members of the community affected, civil society organisations, including non-governmental organisations, or members of society at large taking an active part in protecting the environment. Such persons who report environmental crimes as well as persons who cooperate with the enforcement of such offences should be provided the necessary protection, support and assistance in the context of criminal proceedings, so that they are not disadvantaged for their cooperation but supported and assisted. These persons should also be protected from being harassed or unduly prosecuted for reporting such offences or their cooperation in the criminal proceedings.

Added:Recital 25 a (new): (25a) Member States should assess the need to create instruments in accordance with their national legal system to enable persons to report environmental offences anonymously, where such instruments do not yet exist.

Added:Recital 25 b (new): (25b) As part of the EU Strategy on victim’s rights (2020-2025) the Commission, together with Member States, should work on improving the access of victims to compensation, including victims of environmental crimes. This could include, if necessary, setting up a national fund for victims’ compensation which could be financed, inter alia, through fines imposed for environmental offences and compensation for environmental damage provided for in this Directive and, where applicable, possibly through the proceeds derived from and instrumentalities used or intended to be used in the commission, or to contribute to the commission, of the offence, which have been confiscated in accordance with this Directive.

Added:Recital 26 a (new): (26a) Comprehensive and effective prevention measures and dissuasive and proportionate criminal sanctions and penalties are important deterrents against environmental damage and environmental crime. In accordance with the ‘polluter pay’ principle, the polluter should bear the full costs of the environmental damage that it has caused. In addition, the revenues generated by targeted fines should be used to contribute to the cost of preventative measures, specialised training, investigative tools, and the funding of resources to detect, investigate, prosecute or adjudicate on environmental offences.

Added:Recital 26 b (new): (26b) As a preventative measure, legal persons are encouraged to appoint an environmental compliance officer, to be in charge of record-keeping for the purpose of providing administrative or judicial authorities with information, for possible discovery procedures or subpoenas, to identify offenders and non-offenders. The actions of an environmental compliance officer, where appropriate, could be a mitigating factor when the officer provides the administrative or judicial authorities with information which they would not otherwise have been able to obtain, when legal persons are held liable for offences committed.