The second set of “Agreements” was published by the European Commission on 15 December 2021.Fit for 55” directives – a package aimed at reducing greenhouse gas emissions in the European Union by 55 percent by 2030 compared to the 1990 level.
The directive that would cover criminal liability for environmental crimes, which would replace Directive of the European Parliament & of the Council of 19/11/2008 on the protection of environment through criminal law, is one of the most important drafts in the set. Another tool to ensure the effective implementation is the proposed extension of the list of sanctions and the categories of environmental crimes. Green Deal strategy (i.e. (i.e., the European Green Deal), as well as the economic policy of EU.
This project is in line with the latest trends on the market – Green Compliance ESGThis highlights the importance of environmental protection for companies’ operations, especially in light of the below-described sanctions for environmental crimes. This is because of the specificity of these crimes, which are based on a complex supply and production chain as well as complex export/import schemes that relate to economic activity, makes it difficult to eliminate the risk of participating in these practices. With the plan to tighten liability, companies will have even greater responsibility for the selection of suppliers and contractors, particularly in terms of waste management by unauthorised entities.
The directive draft also provides extensive information about the crimes and penalties imposed upon enterprises. This is in keeping with the larger context. non-financial reportingThe Taxonomy. Transparency about the sanctions imposed or the conducted proceedings is important to ensure greater transparency in the market and, consequently remove from it companies that don’t meet strict EU requirements. This can be achieved by ensuring whistleblowers have legal protection and that interested parties are admitted to proceedings, especially non-governmental organizations.
The fact that current EU laws in this area are ineffective, the need to introduce a new directive regarding criminal liability for environmental crimes into the EU legal system is the driving force behind the desire to do so. The new directive is intended to close regulatory loopholes and provide greater protection for the environment. It will update the provisions, clarify or eliminate unclear terms in definitions, and ensure effective, dissuasive, and proportionate levels of sanctions.
The Commission has proposed to extend the list of environmental crimes by adding such offences to:
- It is illegal to place on the market products which cause or could cause significant damage to air, water, soil, or animals or plants by using the product on an increased scale (especially in light of the so-called “forever chemicals”, which we have written about). Here),
- Ship discharges of polluting substances
- The uptake of groundwater or surface water that could cause or contribute to significant damage to the ecosystem’s ecological status or potential.
- Illegally harvested timber or timber products made from illegally harvested wood may be placed on the European Union’s market
- Any behavior that leads to the destruction of the natural habitat within the protected area
- Introducement or spread of invasive alien species of concern to the European Union
- Fluorinated greenhouse gases can be produced, placed on the market, imported, exported, used, emission or released.
The draft also contains financial sanctions for legal entities, which must not exceed 5 percent of the total turnover in a Member State in the financial years preceding the decision to impose the fine. These sanctions are clear evidence that the Commission doesn’t make compromises regarding polluters. Each case will be treated with the utmost severity within the EU.
Moreover, the new directive – unlike the original one – obliges Member States to threaten environmental crimes with a minimum prison sentence of 4 years, some with a sentence of at least 6 or even 10 years, depending on the degree of harm done. The Commission proposes a range of sanctions that go beyond imprisonment. This could be significant for the risk of running businesses. Although the draft is intended to be used only for legal persons, penalties may also be imposed for natural persons who are responsible for environmental issues. The directive’s proposed wording will allow for two options. It is possible to impose severe financial penalties on legal persons and to personally penalize those responsible, e.g. by imprisonment or additional penalties, such as:
- deprivation or restriction of the right for public assistance or public benefits.
- Temporary or permanent exclusion of public funding, including tender processes, grants, and concessions
- The revocation of permits or authorizations to engage in the activity that led directly to the commission and subsequent revocation.
- Publication of a judicial ruling at either the national or EU level
- placing under judicial supervision,
- Temporary or permanent ban on business activity
- judicial liquidation.
One can expect significant tightening in the criminal provisions for environmental protection once the directive is implemented into the national law order. In Poland, these provisions have been relatively mild. In its current form, the draft directive is a signal to the market about the growing importance of ESG and environmental regulations in planning and conducting business activities.
The Council and the European Parliament will soon process the project. After positive consideration, it will then be handed to the Member States to be implemented, which is likely in 2024.
