Investigation prosecution and judgment of environmental offences Conclusions

Investigation, prosecution and judgment of environmental offences Conclusions and recommendations Roel Meeus Centre for Environmental and Energy Law (CM&ER), Ghent University, Belgium Durbuy, 27 May 2011 17 -sep-20

Conclusions – Issue and legal framework Eco Crime Directive 2008/99/EC Overall positively welcomed (small but important step) Implementation difficulties (1) Vague notions (legality principle? ) (2) Offences linked to a certain result (heavy burden of proof? ) =>Tension between the need for effective enforcement >< MS discretion & the need for precision >< danger for overcriminalization 2 17 -sep-20

Conclusions – Issue and legal framework Eco Crime Directive 2008/99/EC Difficult implementation check by the Commission: what are effective, proportionate & dissuasive criminal sanctions? Did MS transpose (on time)? - ES/NL: yes - IT: no 3 17 -sep-20

Conclusions – Criminal offence policy Positive European impulse for criminal enforcement - ES: entire criminal enforcement of environment law based on European incentives - UK: European Arrest Warrant = useful tool - Eco Crime Directive 2008/99/EC Evolution to improve the criminalization of environmental offences - ES: including environmental offences in the criminal code - IT: Unique Environmental Text Differences between MS on criminal liability of legal persons - BEL: yes, but certain public legal bodies excluded + decumul - ES/IT: no 4 17 -sep-20

Conclusions – Criminal offence policy Already initiatives within MS for cooperation between and specialization of prosecutors - BEL: cooperation agreements - ES: Office of Environmental Prosecutors - NL: Functioneel Parket But a lack of cooperation between prosecutors on European & international level! 5 17 -sep-20

Conclusions – Criminal offence policy Already European initiative for cooperation between European judges - EUFJE But a lack of cooperation between judges within MS themselves! 6 17 -sep-20

Conclusions – Environment law enforcement organization Already many examples within MS of cooperation between and specialization of different inspection authorities - BEL: Environment Service of the Federal Police - Flanders: Environmental Inspectorate Division - UK: Environment Agency Yet MS still face a lot of difficulties - Complex institutional structure (BEL) - Cooperation difficulties within criminal enforcement path (national><regional; police><prosecutors><judges) - Cooperation difficulties within administrative enforcement path (fragmentation & lack of coordinating organs) 7 17 -sep-20

Conclusions – Environment law enforcement organization Yet MS still face a lot of difficulties - Cooperation difficulties between criminal and administrative enforcement path (insufficient distribution of powers; lack of mutual trust; fragmentation at administrative side) Sanctions - Need for dissuasive (=higher? ) sanctions (better no sanctions than too lenient sanctions: subjective perception) - Are administrative sanctions sufficiently dissuasive? Are they indispensable? Do they merely work in theory? If they don’t work, why is that? - Sanctions for legal persons (criminal or administrative? Fines, confiscation & seizure, …) 8 17 -sep-20

Recommendations 1. System of uniform data collection regarding environment law enforcement within MS, possibly coordinated by the European Commission 2. International/European initiative for cooperation between prosecutors belonging to different countries regarding criminal prosecution of environmental crimes (EUFPE? ) 3. National initiatives for cooperation between judges dealing with environmental crimes within countries themselves 4. Considering the need of a common European legal framework for administrative and criminal law enforcement for joint abatement of European environmental crime 9 17 -sep-20