Germany | Publication | noviembre 2024
Environmental crime is one of the world's most profitable organised crime activities which can have a significant impact on the environment and human health. Against this background, the protection of the environment through criminal law provisions has become a focus of European legislators in recent years.
On 30 April 2024, Directive 2024/1203 on the protection of the environment through criminal law (the Environmental Directive) was published in the Official Journal of the European Union and entered into force on 20 May 2024, significantly expanding and harmonising the existing criminal law regime for the protection of the environment.
Until now, from a European perspective, protection of the environment was ensured in particular by Directives 2008/99/EC on the protection of the environment through criminal law and 2009/123/EC on ship-source pollution and the introduction of penalties for infringements, which were criticised as being insufficient. To ensure more effective environmental protection, the Environmental Directive lays down minimum requirements on the definition of criminal offences and sanctions, measures to prevent and combat environmental crime and the effective enforcement of EU environmental law, largely replacing the previous regulatory system.
The EU Member States now have until 21 May 2026 to transpose the Environmental Directive into national law.
The most important aspects of the Environmental Directive and the current regulations in Germany are presented below. Potential implications for companies based and operating in Germany are also outlined.
Extension of the list of environmental offences
The new Environmental Directive significantly expands the previous catalogue of offences outlined in the previous directives. The updated catalogue now includes 20 different offences(previously nine offences) including illegal timber trading, illegal recycling of polluting ship parts, and serious breaches of chemicals legislation (i.e. by placing banned or restricted chemicals on the market). In particular, the Environmental Directive now covers qualified offences, which are to be punished more severely due to the extent of the damage to the environment, comparable to so-called “ecocide”. The new catalogue of offences is not exhaustive and Member States may introduce further offences to protect the environment.
In addition, inciting, aiding or abetting the commission of any of the offences referred to in the Environmental Directive will also be punishable in accordance with Article 4 of the Environmental Directive. For the first time, the Environmental Directive also includes an offence of ‘attempt’ to commit a criminal offence. Since an omission can have the same harmful effects on the environment as an active conduct, the Environmental Directive also covers omissions.
Acts carried out on the basis of official authorisations
In contrast to the previous regulatory regimes, Article 3 of the Environmental Directive contains provisions on acts committed on the basis of an authorisation by a competent authority of the Member State concerned. Accordingly, an act is also unlawful if it is committed under an authorisation granted by a competent authority of a Member State, if that authorisation was obtained fraudulently or through corruption, extortion or coercion. Furthermore, an act is unlawful if the authorisation, although lawfully granted, is in breach of the relevant substantive legal requirements.
Legal consequences and sanctions for non-compliance
In addition, for the first time, the new Environmental Directive provides for specific sanctions against legal entities. In addition to financial penalties or fines, Article 8(2)(a) to (j) of the Environmental Directive contains a catalogue of various non-criminal sanctions and measures that can be implemented by the Member States. In particular, the European Commission proposes in this catalogue, for example, an obligation to restore the previous situation (if reversible), or the payment of compensation, or even a ban on activities as a less serious sanction. As a serious non-criminal sanction, it even proposes that the company concerned be dissolved by a court or that the court's decision on the offence committed and the sanctions or measures imposed be published, provided there is a public interest in doing so.
In addition, the Environmental Directive also sets out a minimum framework for fines to be imposed, the amount of which depends on the specific offence and the degree of culpability. Accordingly, the minimum fine for serious offences is 5 percent of the total annual worldwide turnover of the legal person or an amount of € 40,000,000. For all other offences, the penalty is 3 percent of the total annual worldwide turnover of the legal entity or, alternatively, an amount of € 24,000,000.
The Environmental Directive also lists various circumstances that must be taken into account when imposing penalties. Article 8 of the Environmental Directive, for example, standardises aggravating circumstances. An aggravating circumstance is, for example, the destruction or causing of lasting significant damage to an ecosystem or the commission of a criminal offence. In addition, Article 9 of the Environmental Directive contains mitigating circumstances such as the restoration of the environment to its previous state, insofar as this does not constitute an obligation under Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage.
Despite occasional criticism that the protection of the environment is not sufficiently addressed in German core and secondary criminal law, various protective provisions can already be found in German criminal law at the present time. The starting point for environmental protection under criminal law in Germany is the natural basis of human life. It is therefore not the environment as a whole that is protected, but the individual environmental media such as water, soil, air or the animal and plant world.
Against this background, the protection of the environment under criminal law in Germany is primarily achieved through corresponding prohibitions and corresponding sentencing provisions in the German Criminal Code (Strafgesetzbuch – StGB) - such as the offence of unauthorised handling of waste in Section 326 StGB - as well as through numerous provisions in secondary legislation and administrative regulations such as the Environmental Protection Act (Umweltschutzgesetz) or the Animal Protection Act (Tierschutzgesetz). It should be noted in this context that the respective criminal law provisions provide for attempted criminal offences.
Currently, in German environmental criminal law the so-called “administrative accessoriness” applies. This means that criminal liability depends, among other things, on an administrative act. With this in mind, an act is generally not punishable if a corresponding authorisation has been granted. In the German criminal law system, administrative accessoriness is currently structured differently depending on the individual offences. In some cases, it merely has the effect that the various forms of official authorisation are regarded as grounds for justification; in other cases, the violation of administrative obligations is itself part of the offence. Furthermore, there are also cases where the breach of administrative obligations alone constitutes the offence.
Therefore, from a criminal law perspective, only the formal legal validity of an administrative act is taken into account and the substantive correctness of the authorisation is not relevant. An exception exists for the most abusive conduct. In principle, the addressee of an incorrect authorisation can also rely on the validity of the authorisation.
Extension of the catalogue of offences
In light of the expansion of the list of offences set out in the Environmental Directive, it will be necessary for the German legislator to extend the current offences in the StGB and adapt the current penalties. With regard to potential attempted offences and the sentencing rules for minor and particularly serious cases, however, there are few changes to the German system.
Breaking through accessoriness under administrative law
Against the background of the new Environmental Directive, it is of particular importance that it breaks through the accessoriness under administrative law that prevails in German criminal law. The fact that an official authorisation does not preclude criminal liability if it is obviously and materially unlawful means that this accessoriness under administrative law is broken and companies have no or only very limited protection of legitimate expectations in this respect.
According to the recitals of the Environmental Directive, the term ‘manifest breach of relevant substantive requirements’ should be interpreted in such a way that it refers to a clear and significant breach of relevant substantive requirements. Breaches of formal requirements or subordinate elements of the authorisation should not be included.
The recitals of the Environmental Directive explicitly state that this does not shift the obligation to ensure the legality of authorisations from the competent authorities to the economic operators. Nevertheless, it remains unclear to what extent this will be carried out in practice. This is because companies will then have, to a certain extent, to review their authorisations under substantive law at any time and will generally no longer be able to rely on the protection of legitimate expectations under German environmental criminal law.
Ultimately, it remains to be seen to what extent the German legislator will implement the Environmental Directive and, in particular, to what extent the measures proposed in the Environmental Directive will be implemented with regard to the companies concerned.
However, due to the extension of the criminal offences and the associated potentially severe sanctions for both the company and the natural persons involved, companies should review any risk potential of their business activities and make appropriate adjustments to the company's internal environmental compliance management system (CMS) in order to protect both the individual employees and the company as a whole from potential criminal law risks in the best possible way. Particularly in view of the fact that a well-functioning CMS can lead to a reduction in a potential fine or penalty in the event of an offence, the functionality of the CMS should also be checked for environmental risks.
Publication
On September 18, 2024, the "Decree amending the list that sets forth goods whose import and export are subject to regulation by the Ministry of Energy" (the "Decree") was published in the Federal Official Gazette.
Publication
On September 18, 2024, the "Decree amending the list that sets forth goods whose import and export are subject to regulation by the Ministry of Energy" (the "Decree") was published in the Federal Official Gazette.
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