12 – New Environmental Crime Directive: implications for the maritime industry

Author: Camilla Del Re?| 1 August 2024

STEPS FORWARD FROM THE 2008 DIRECTIVE

On May 20, 2024, the new Environmental Crime Directive (link) entered into force. The new Directive replaced the 2008 Environmental Crime Directive (link), with the aim of increasing and making more comprehensive the list of environmental offences, and of making the application and enforcement of environmental crimes more effective and harmonised among Member States. According to the new Directive, the existing rules on penalties under the 2008 Directive had not been sufficient to achieve compliance with EU environmental law, and it was necessary to strengthen them through effective, proportionate and dissuasive criminal sanctions that can convey greater social disapproval than the use of administrative sanctions.

NEW ENVIRONMENTAL OFFENCES

EU policy on the environment is based on the precautionary principle and on the “polluter pays” principle. In line with these principles, the new Directive introduced several new offence categories, and in some cases set a quantitative or qualitative threshold necessary for the illicit conduct to constitute a criminal offence. Some of the new offences are particularly relevant for the maritime sector:

• Illegal shipment of waste The shipment of waste, if carried out in violation of the rules provided for in the Regulation (EU) 2024/1157 on shipments of waste and if it concerns a non-negligible quantity, shall constitute a criminal offence, whether it is executed in a single shipment or in several shipments that are apparently connected;

• Unlawful ship recycling The recycling of ships shall constitute a criminal offence where it does not comply with the requirements referred to in Article 6(2)(a) of Regulation (EU) No 1257/2013, i.e. where shipowners fail to ensure that their ships are only recycled at ship recycling facilities included in the European List. This criminal offence, therefore, currently only applies to ship owners, as defined in the ship recycling Regulation;

• Ship-source discharge of polluting substances The ship-source discharge of polluting substances shall constitute a criminal offence where it falls within the scope of Directive 2005/35/EC on ship-source pollution and causes or is likely to cause deterioration in the quality of water or damage to the marine environment.

• Introduction of invasive alien species on EU territory The introduction of invasive alien species on EU territory shall constitute a criminal offence where it falls within the scope of Article 7(1) of Regulation (EU) No 1143/2014 on the prevention and management of the introduction and spread of invasive alien species. Although the article refers to the "intentional" introduction of invasive alien species, considering that a large percentage of invasive alien species are introduced unintentionally into the Union, it is possible that, in applying this rule, member states may decide to punish conducts that are not only intentional but also carried out with gross negligence.

Finally, it is worth noticing that, in its preamble, the New Environmental Crime Directive mentions vibrations and noise, including underwater noise, as sources of energy which can cause substantial damage to the quality of the environment, ecosystems, animals and plants. Underwater noise is thus explicitly recognized as a potential source of pollution-a notion that has been developing for only a few years and is still poorly regulated.

THE ROLE OF MEMBER STATES

Member States shall take the necessary measures to ensure that all illicit conducts indicated in the Directive constitute qualified criminal offences when they cause the widespread (i.e., irreversible or long-lasting) destruction or damage to an ecosystem or to air, soil or water quality.

Such conducts should constitute a criminal offence when they are intentional and, in certain cases, also when carried out with at least serious negligence. For instance, conducts that cause the death of, or serious injury to, persons, or widespread damage to the environment should constitute a criminal offence when carried out with at least serious negligence.

Member States shall also ensure that such conducts are punishable by effective, proportionate and dissuasive criminal penalties; and that legal persons can be held liable where such offences have been committed for their benefit by any person who has a leading position within the legal person. In Italy, these criminal offences might be included among the criminal offences of Legislative Decree no. 231/2001, which result in administrative liability of the legal person for whose benefit the crime was committed.

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