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In this update, we discuss two developments in the area of environmental crime, illustrating the increasing attention to criminal prosecution of environmental crimes both in the Netherlands and abroad.

In March 2024, the European Union revised the directive on the protection of the environment through criminal law. In addition, in the same month, the Advisory Division of the Council of State advised on a bill submitted to the House of Representatives in November 2023 regarding the Criminalisation of Ecocide (Wetsvoorstel strafbaarstelling ecocide).

EU directive on the protection of the environment through criminal law
On 26 March 2024, the EU Council adopted the revision of Directive 2008/99/EC on the protection of the environment through criminal law. The revised directive will be published shortly in the Official Journal of the EU and will enter into force 20 days later. EU member states will have two years to translate the directive into national law.

After evaluating the old directive, the Commission concluded that the impact of the directive was limited. Only a small number of cases were successfully investigated and resulted in the imposition of a sanction. Moreover, the penalties imposed were too low to be a deterrent, and there was no systematic cross-border cooperation. The EU has also noted an increase in criminal environmental offences and their consequences. In December 2021, the Commission therefore submitted a proposal to make the directive more effective.

The revised directive contains new environmental offenses and stricter sanctions to increase the deterrent effect. In addition, the directive aims to improve the effectiveness of the investigation, prosecution, and adjudication of criminal environmental offences. Pursuant to the preamble, with reference to, inter alia, the European Green Deal, there will in certain cases also be a preference for settlement through criminal law instead of administrative law.

The number of environmental offences in the directive has increased from 9 to 20, a significant expansion of the material scope. New offences include illegal timber trade, illegal recycling of polluting parts of ships and serious violations of chemicals legislation. The directive also contains a provision on qualified crimes, which applies when a criminal offence referred to in the directive is committed intentionally and causes destruction or irreversible or long-term damage to the environment. This means that ecocide is included in the directive as an aggravating circumstance. In addition, for the first time, the directive harmonises the penalties for legal persons in the EU member states.

For the most serious offences, legal persons are subject to a minimum maximum fine of at least 5% of the legal person’s total worldwide turnover or an amount of EUR 40 million. The Dutch Criminal Code already provides for the possibility of imposing a fine of up to 10% of the legal person’s turnover. At the beginning of this year (ECLI:NL:RBOBR:2024:306), the District Court of East Brabant applied that possibility for the first time by imposing a record fine of EUR 10 million on a petrochemical company, related to the turnover of the parent company of the company in question.

Dutch Ecocide Criminalisation Bill
Parallel to this European development, the Ecocide Criminalisation Bill was submitted to the House of Representatives of the Netherlands on 30 November 2023. The purpose of the bill is to include ecocide in the Dutch Criminal Code as a criminal offence. Although current legislation already contains provisions criminalising environmental crimes (articles 173a and 173b), these provisions focus on the protection of human health. The proposed criminal offense of ecocide focuses on the protection of the environment.

On 27 March 2024, the Advisory Division of the Council of State advised on the bill. The Council of State notes that this proposal is in line with national and international developments, in which the natural environment is increasingly recognised constitutionally. It also notes a number of fundamental objections to the current proposal. According to the Council of State, the criminalisation of ecocide is now described in such a general manner that it is insufficiently clear what behaviour is considered punishable, which is contrary to the lex certa principle. In addition, the Council of State recommends that, when amending the proposal, attention should be paid to the connection with the revised directive.

We therefore expect that the entry into force of the Directive will influence the further refinement and definition of the proposed criminal offence of ecocide. This offence will have to be described as specifically as possible, so that legal and natural persons can foresee and know what acts or omissions will be punishable and under what circumstances..

Please do not hesitate to contact us or our Corporate Crime team members if you have any questions about these developments or environmental offences (or the prevention thereof).

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