The EU extends the list of environmentally unfriendly behaviour that can be punished under criminal law

Last April, the European Union incorporated into its legislation Directive (EU) 2024/1203 of the European Parliament and of the Council of 11 April 2024, which guarantees greater protection of the environment through the criminal legislation of the Member states in this area. This new regulation repeals Directives 2008/99/EC and 2009/123/EC and, although it shares some of their wording, its regulation is much more exhaustive.

The new Directive considerably expands the number of punishable conducts and leaves less room for the Member States to establish the consequences associated with the commission of such conducts. It is therefore a very important step in the development of environmental criminal law in Europe.

It imposes an obligation on Member States to ensure that the punishable conducts referred to in Article 3 are criminalized under local law when committed intentionally or, at least with serious negligence and unlawfulness.

The aim is to broaden the catalogue of events that should be subject of criminal protection, including new conducts that will be punishable if they can cause death or injury to any person, or substantial damage to the air, soil, water, an ecosystem, its animals or plants. At the same time, conducts that were already included in Directive 2008/99/EC are now covered in a more exhaustive and clearer manner, often referring to recently approved EU environmental legislation.

The European Directive came into force 20 days after its publication in the Official Journal of the European Union and the Member States have until 21 May 2026 to approve the laws, regulations and administrative provisions necessary to comply with the provisions of the European regulation.

Punishable conducts

Member states will therefore have to ensure that the following conducts are sanctioned in their legal systems:

1. The spill or emission into air, soil or water of a quantity of materials or substances, energy or ionizing radiations which causes or are likely to cause death or serious injury to any person, or substantial damage to the quality of air, soil or water or to an ecosystem, to animals or plants.

2. The commercialization of a product, the use of which results in the spill or emission of substances, energy or ionizing radiations which causes or are likely to cause death or injury to any person, or substantial damage to air, soil, water, an ecosystem, its animals, or plants.

3. The manufacture, introduction, commercialization, export, or use of dangerous substances, which cause or are likely to cause death or serious injury to any person, or substantial damage to the air, soil, water, an ecosystem, its animals, or its plants. To define these substances, reference is made to regulations 1907/2006, 1107/2009, 528/2012, 1272/2008 and 2019/1021.

4. The manufacture, introduction, commercialization, export or use of mercury, where such conduct causes or is likely to cause death or serious injury to any person, or substantial damage to the quality of air, soil or water or to an ecosystem, animals or plants. Reference is made to the requirements set out in Regulation 2017/852 on mercury.

5. The implementation of projects described as hazardous in Directive 2011/92/EU (refineries, thermal power plants, airports, railways, etc.) without authorization and where the conduct causes or is likely to cause death or serious injury to any person, or substantial damage to air, soil or water quality or to an ecosystem, animals or plants.

6. The collection, transport or treatment of waste, the monitoring of such activities, as well as their maintenance after closure of landfills when they concern hazardous waste or waste not categorized as hazardous, but which may cause damage to persons, air, soil, water, an ecosystem, animals or plants.

7. The shipment of a non-negligible quantity of waste within the meaning of Article 3(26) of Regulation (EU) 2024/1157, i.e. which is conducted illegally.

8. Ship recycling if it does not comply with the requirements of Regulation (EU) 1257/2013.

9. The unloading from ships of polluting substances covered by Directive 2005/35/EC, which causes or is likely to cause deterioration of water quality or harm to the marine environment.

10. The operation or closure of installations where a hazardous activity is carried out or where hazardous substances or mixtures are stored or used. Hazardous activities are determined by Directives 2012/18/EU and 2010/75/EU and will be sanctioned when they cause or are likely to cause death or serious injury to any person, or substantial damage to the quality of air, soil or water or to an ecosystem, animals or plants.

11. The construction, operation and decommissioning of installations covered by Directive 2013/30/EU (on the safety of offshore oil and gas operations), where such conduct causes or are likely to cause damage to persons, air, soil, water, an ecosystem, animals or plants.

12. The manufacture, production, processing, handling, use, possession, storage, transport, import, export or disposal of radioactive material or radioactive substances, where such conduct and such material or substances fall within the scope of Council Directives 2013/59/Euratom, 2014/87/Euratom or 2013/51/Euratom and cause or are likely to cause harm to humans, air, soil, water, an ecosystem, animals or plants.

13. Extraction of surface water or groundwater where such conduct causes or is likely to cause substantial damage to the ecological status of the water.

14. The killing, destruction, collection, possession, sale or offer for sale of specimens of certain species of wild fauna or flora listed in the Annexes to Council Directive 92/43/EEC.

15. Trade or import of specimens, or parts or derivatives thereof, of any species of wild fauna or flora listed in Annexes A, B and C of Council Regulation (EC) No. 338/97.

16. The non-negligible placing on the market of raw materials prohibited by Regulation (EU) No. 2023/1115 of the European Parliament and of the Council, which lays down rules concerning the placing on the Union market, and the export from the Union of products using raw materials such as cattle, cocoa, coffee, oil palm, rubber, soya and timber, in order to reduce the EU's contribution to deforestation and the emission of greenhouse gases.

17. Any conduct causing deterioration of a habitat in a protected site, or the disturbance, in a protected site, of any of the animal species listed in Directive 92/43/EEC, where such deterioration or disturbance is appreciable.

18. The introduction, keeping, breeding, transport, use, exchange, placing in a position to reproduce, breed or cultivate, release into the environment or spread of exotic invasive species.

19. The production, placing on the market, import, export, use or release of ozone-depleting substances, or of products and equipment containing such substances, which are specified in Regulation (EU) 2024/590 of the European Parliament and of the Council.

20. The production, introduction, import, export, use or release of fluoridated greenhouse gases, as referred to in Regulation (EU) 2024/573 of the European Parliament and of the Council.

Another novelty introduced by the Directive is that it provides for aggravating and mitigating circumstances in relation to the different punishable conducts, as well as rules for the assessment of the substantial nature of the damage caused to the environment.

Penalties

Another major step forward in this Directive is to define the specific criminal penalties applicable to both individuals and legal persons for the commission of offences, in order to ensure that they are punishable by effective, proportionate and dissuasive criminal penalties.

• Individuals

Regarding individuals committing the offences, Article 5(2) lays down minimum ranges of imprisonment terms that Member States must necessarily impose on natural persons who have committed the various punishable offences provided for.

In relation to accessory penalties, these include the obligation to restore the environment within a specified period or, if this is not possible, to pay compensation for the damage caused, the imposition of fines, exclusion from access to public funding or the withdrawal of permits and authorizations for the exercise of activities which gave rise to the offence, as well as the publication of all or part of the judicial decision relating to the offence committed if there is a public interest in this respect.

Accessory penalties for individuals also include disqualification from holding a managerial position of the same type, as that used to commit the offence or temporary disqualification from standing for public office.

• Legal persons

With regard to the criminal liability of legal entities, Article 6 of the Directive imposes the obligation on Member States to ensure that legal entities are held liable for the offences provided for, where such offences have been committed for the benefit of the legal person by any person who has a leading position within the legal person concerned or by the staff under their authority, where there is a lack of supervision or control.

This liability regime for the legal person is very similar to the current regulation provided for in Article 31 bis of the Spanish Criminal Code, which, since 2010, allows the legal person to be held criminally liable for certain offences, including environmental offences.

About the penalties to be imposed on legal persons, Article 7 of the Directive establishes that Member States must ensure that these fines of a criminal or non-criminal nature, as well as accessory penalties, are imposed.

Regarding fines, as with prison sentences, the Directive provides for a series of minimum thresholds for fines imposed as a result of the commission of the offences listed in Article 2. This minimum level will be either a percentage of the total worldwide turnover of the convicted legal persons or a fixed amount of up to 40 million euros.

Among the accessory sanctions to be imposed on legal persons are also the obligation to restore the environment within a certain period of time or, if this is not possible, to pay compensation for the damage caused, the exclusion of their right to receive public aids, the closure of their establishments, judicial supervision or even their judicial dissolution.

Legal persons may also be required to establish due diligence programmes to improve compliance with environmental standards, as well as the publication of all or part of the judicial decision related to the offence committed if there is public interest in this respect.

On the other hand, Article 11 harmonizes the statute of limitations for the offences covered by the Directive -which, depending on the penalties envisaged, will be three, five or ten years- and establishes rules of jurisdiction which, given the subject matter, are essential for the correct functioning of the Directive, since a large part of the offences committed in environmental matters are of a cross-border nature.

In short, there is no doubt that the Directive is ambitious in achieving its objective of reducing environmental crime and, consequently, it regulates this area very intensively, leaving a narrow margin for action to the legislators of the Member States, who will have to transpose the European standard before 21 May 2026.