using criminal law to enforce european environmental legislation?

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Using criminal law to enforce European Using criminal law to enforce European environmental legislation? environmental legislation?

Friday 26 November 2010,Friday 26 November 2010,

Katholieke Universiteit LeuvenKatholieke Universiteit Leuven

By Prof. Dr. Michael G. Faure, LL.M.By Prof. Dr. Michael G. Faure, LL.M.

Presentation at Workshop Presentation at Workshop

Research Group on Transboundary Environmental Research Group on Transboundary Environmental Law Law

Ius Commune Research SchoolIus Commune Research School

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1)1) IntroductionIntroduction

2)2) Legal history: a brief accountLegal history: a brief account

3)3) Directives 2008/99 and 2009/123Directives 2008/99 and 2009/123

4)4) Effective penaltiesEffective penalties

5)5) Dissuasive penaltiesDissuasive penalties

6)6) Proportionate penaltiesProportionate penalties

7)7) A duty to enforceA duty to enforce

8)8) Remaining issuesRemaining issues

9)9) Concluding remarksConcluding remarks

StructureStructure

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Basis: Court of Justice 13 September 2005: forcing MS to Basis: Court of Justice 13 September 2005: forcing MS to use criminal law is alloweduse criminal law is allowed

Directive 2008/99 of 19 November 2008: implementation Directive 2008/99 of 19 November 2008: implementation by 26 December 2010by 26 December 2010

Directive 2009/123 of 21 October 2009: implementation by Directive 2009/123 of 21 October 2009: implementation by 16 November 201016 November 2010

Duty on MS to punish offences with ‘effective, proportionate Duty on MS to punish offences with ‘effective, proportionate and dissuasive’ (criminal) penaltiesand dissuasive’ (criminal) penalties

Use as basis:Use as basis: Economic analysis of criminal lawEconomic analysis of criminal law Theoretical literature on criminal lawTheoretical literature on criminal law

Since MS differ, effective solution may differ as well, as long Since MS differ, effective solution may differ as well, as long as penalties are ‘effective, proportionate and dissuasive’as penalties are ‘effective, proportionate and dissuasive’

11 IntroductionIntroduction

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Basis: worries about implementation of EU environmental Basis: worries about implementation of EU environmental law in Member Stateslaw in Member States

Implementation deficit problematicImplementation deficit problematic Case C-265/95 (Spanish strawberries):Case C-265/95 (Spanish strawberries):

Lack of effective prosecution against violators of implementing Lack of effective prosecution against violators of implementing legislationlegislation

Violation of European lawViolation of European law Obligation of national judges and authorities to interprete Obligation of national judges and authorities to interprete

national law in conformity with directivesnational law in conformity with directives

Case C-68/88 (Greek corn): Member States free in choosing Case C-68/88 (Greek corn): Member States free in choosing instrument to implement directive, but penalties for instrument to implement directive, but penalties for violation should be effective, proportional and dissuasiveviolation should be effective, proportional and dissuasive

22 Legal history: a brief accountLegal history: a brief account

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First pillar poposal Directive of 13 March 2001 on protection First pillar poposal Directive of 13 March 2001 on protection of the environment through criminal lawof the environment through criminal law

Third pillar: Framework Decision of 27 January 2003Third pillar: Framework Decision of 27 January 2003 Institutional conflict: appeal against Council DecisionInstitutional conflict: appeal against Council Decision Judgment of 13 September 2005 (Case C-176/03):Judgment of 13 September 2005 (Case C-176/03):

If application of effective, proportionate, dissuasive criminal If application of effective, proportionate, dissuasive criminal penalties is essential measurepenalties is essential measure

Necessary to ensure that rules are fully effectiveNecessary to ensure that rules are fully effective Use of criminal law may be orderedUse of criminal law may be ordered


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Council Framework Decision of 12 July 2005 Council Framework Decision of 12 July 2005 Ship-source pollution: Directive 7 September 2005Ship-source pollution: Directive 7 September 2005 Court of Justice Decision of 23 October 2007 (Case C-Court of Justice Decision of 23 October 2007 (Case C-

440/05):440/05):

Determination of type and level of criminal penaltiesDetermination of type and level of criminal penalties Not within community’s sphere of competenceNot within community’s sphere of competence

Case law remains relevant, also after TFEUCase law remains relevant, also after TFEU


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Directive 2008/99: Directive 2008/99: Criminal penalties necessaryCriminal penalties necessary No obligations on application of penalties in individual casesNo obligations on application of penalties in individual cases Article 3 lists offencesArticle 3 lists offences Article 5: effective, proportionate and dissuasive penaltiesArticle 5: effective, proportionate and dissuasive penalties For legal entities: the same (but not necessarily criminal)For legal entities: the same (but not necessarily criminal)

Directive 2009/123: same modelDirective 2009/123: same model 5a specific infringements5a specific infringements Article 8 effective, proportionate and dissuasive penaltiesArticle 8 effective, proportionate and dissuasive penalties Also for legal entitiesAlso for legal entities

33 Directives 2008/99 and 2009/123Directives 2008/99 and 2009/123

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4.14.1 Meaning of effectiveness?Meaning of effectiveness? Able to reach goals set by legislatorAble to reach goals set by legislator High level of environmental protectionHigh level of environmental protection Ex anteEx ante test (theoretical) test (theoretical) Ex postEx post (empirical) verification (empirical) verification Effectiveness strongly linked with proportionality and Effectiveness strongly linked with proportionality and

dissuasiveness, butdissuasiveness, but Autonomous meaning in functions of penalties:Autonomous meaning in functions of penalties:

1. General deterrence (dissuasion)1. General deterrence (dissuasion) 2. Restoration of harm caused in the past2. Restoration of harm caused in the past 3. Prevention of future harm3. Prevention of future harm

Specific functions of penalty in environmental cases, may Specific functions of penalty in environmental cases, may require specific penaltiesrequire specific penalties

44 Effective penaltiesEffective penalties

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4.24.2 Effective penalties for environmental pollution?Effective penalties for environmental pollution?

4.2.14.2.1 Functions of penaltiesFunctions of penalties Deterrence (dissuasion)Deterrence (dissuasion) Prevention of future harmPrevention of future harm Restoration of harm that occurred in the pastRestoration of harm that occurred in the past

Hence, other penalties necessary than traditional penalties Hence, other penalties necessary than traditional penalties (fine and imprisonment)(fine and imprisonment)


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4.2.24.2.2 Restoration of harmRestoration of harm Convict polluter to clean up a polluted soilConvict polluter to clean up a polluted soil Remove waste deposited illegallyRemove waste deposited illegally Order to compensate victims etc.Order to compensate victims etc. Many examples in MS-lawMany examples in MS-law

4.2.34.2.3 Prevention of harmPrevention of harm Prohibit use of installation that caused violationProhibit use of installation that caused violation Closing enterprise etc.Closing enterprise etc. Many examples in MS-law e.g.Many examples in MS-law e.g. Enter in register for ‘non environmental responsible Enter in register for ‘non environmental responsible

persons’ (Denmark)persons’ (Denmark) Financial consequences may be hugeFinancial consequences may be huge


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5.15.1 General deterrence theoryGeneral deterrence theory Gary Becker: ifGary Becker: if

B = benefitsB = benefits

P = probability of being detected, prosecuted and convictedP = probability of being detected, prosecuted and convicted

S = sanction actually imposedS = sanction actually imposed

Decision of polluter depends on:Decision of polluter depends on:

B B >>< < p x Sp x S

If harm to society and benefit to polluter large and if p low, If harm to society and benefit to polluter large and if p low, sanction should be highsanction should be high

55 Dissuasive penaltiesDissuasive penalties

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5.25.2 Does environmental law deter?Does environmental law deter? Probability of detection and prosecution lowProbability of detection and prosecution low E.g. in Flemish Region p is less than 1%E.g. in Flemish Region p is less than 1% Reason: prosecutors dismiss many cases: 62%Reason: prosecutors dismiss many cases: 62% Similar evidence from UK and GermanySimilar evidence from UK and Germany Also sanctions imposed relatively low finesAlso sanctions imposed relatively low fines Hence, expected sanctions (p x S) lowHence, expected sanctions (p x S) low E.g. Flemish Region varying from € 87,7 to € 176 to € 181E.g. Flemish Region varying from € 87,7 to € 176 to € 181


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5.35.3 Does low expected sanctions equalize low dissuasion Does low expected sanctions equalize low dissuasion and low and low effectiveness?effectiveness?

Harrington paradox: expected penalties very low, Harrington paradox: expected penalties very low, nevertheless environmental (criminal) law detersnevertheless environmental (criminal) law deters

Recent evidence: Almer and GoeschlRecent evidence: Almer and Goeschl Harrington: why do firms comply at all?Harrington: why do firms comply at all?

5.45.4 Other reasons for complianceOther reasons for compliance 1. No prosecution 1. No prosecution nothing happens nothing happens 2. Other costs? Shaming (reputational loss)2. Other costs? Shaming (reputational loss) 3. Regulatory dealings (soft approach)3. Regulatory dealings (soft approach) 4. Subjective perceptions4. Subjective perceptions


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5.55.5 Effectiveness without dissuasion?Effectiveness without dissuasion? Other elements than the (financial) penalty may influence Other elements than the (financial) penalty may influence

decision to complydecision to comply Some/many violations out of ignorance, not intentionallySome/many violations out of ignorance, not intentionally Information strategies may be effectiveInformation strategies may be effective


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6.16.1 Proportional to violated interestProportional to violated interest Based on German legal doctrine for different models of Based on German legal doctrine for different models of

environmental crimeenvironmental crime Distinction between protected interest (environment, Distinction between protected interest (environment,

human health or administrative interest) human health or administrative interest) Type of infringement (endangerment or violation)Type of infringement (endangerment or violation) Allows to differentiate seriousness of offence and hence Allows to differentiate seriousness of offence and hence

penaltypenalty Add to porportionality = relationship between seriousness Add to porportionality = relationship between seriousness

of offence and penaltyof offence and penalty

66 Proportionate penaltiesProportionate penalties

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Model I (abstract endangerment): enforces prior Model I (abstract endangerment): enforces prior administrative decisions, vindicates administrative valuesadministrative decisions, vindicates administrative values

Model II (concrete endangerment): requires proof of threat of Model II (concrete endangerment): requires proof of threat of harm to the environment. Vindication of environmental harm to the environment. Vindication of environmental values. Usually an emissionvalues. Usually an emission

Model III (concrete harm crimes): like II, but proof of actual Model III (concrete harm crimes): like II, but proof of actual (environmental) harm(environmental) harm

Model IV: serious environmental pollution: eliminating the Model IV: serious environmental pollution: eliminating the administrative link; permit shield no longer appliesadministrative link; permit shield no longer applies


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Can lead to a graduated punishment approach:Can lead to a graduated punishment approach:


Model IAdministrative

Model IIEndangerment

Model IIIHarm

Model IVSerious Pollution

A: human focus

B: env’tl focus

A: human focus.

B: env’tl focus

A: actual

B: presumed

Model I

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More elements can be introduced e.g.More elements can be introduced e.g. Mental state (knowingly or negligently)Mental state (knowingly or negligently)

Primary actor or inciting aiding or abettingPrimary actor or inciting aiding or abetting

May allow to relate punishment to seriousness of offenceMay allow to relate punishment to seriousness of offence


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6.26.2 Graduated punishment approach in practiceGraduated punishment approach in practice Could be applied to penalties provided in MS-lawCould be applied to penalties provided in MS-law MS-law differentiates penalties to some extent, but not MS-law differentiates penalties to some extent, but not

perfectlyperfectly Applicable to offences in the Directives?Applicable to offences in the Directives? Only to fill in proportionality requirementOnly to fill in proportionality requirement Model IV may not be applicable, all require unlawfulnessModel IV may not be applicable, all require unlawfulness Can be applied by legislator and judgeCan be applied by legislator and judge


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6.36.3 Usefulness of graduated punishment approachUsefulness of graduated punishment approach No miracle solution or panaceaNo miracle solution or panacea Advantage: relating types of values protected and endangerment to Advantage: relating types of values protected and endangerment to

penaltiespenalties Can provide some guidanceCan provide some guidance More differentiation is possible according to mens rea:More differentiation is possible according to mens rea:

2008/99: intentionally versus serious negligence2008/99: intentionally versus serious negligence 2005/35: intent, recklessness or serious negligence2005/35: intent, recklessness or serious negligence

Currently the offences cover (too) many types of behaviourCurrently the offences cover (too) many types of behaviour May make implementation difficult:May make implementation difficult:

Ideally different penalties for different behaviourIdeally different penalties for different behaviour Hence, differentiated approach desirableHence, differentiated approach desirable Literal transposition impossibleLiteral transposition impossible

Or to be left to the judge…?Or to be left to the judge…?


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Danger: paper implementation and next: nothing Danger: paper implementation and next: nothing happens…happens…

Spanish Strawberry’s case: lacking effective prosecution Spanish Strawberry’s case: lacking effective prosecution violates European lawviolates European law

Hence, for ECJ practical enforcement matters!Hence, for ECJ practical enforcement matters! But… perfect compliance neither possible nor desirable (too But… perfect compliance neither possible nor desirable (too

costly)costly) Targeted monitoring may be effective to reach complianceTargeted monitoring may be effective to reach compliance Hence, duty to enforce (if at all possible under EU law) not Hence, duty to enforce (if at all possible under EU law) not

desirabledesirable Requirements of ECJ case-law sufficeRequirements of ECJ case-law suffice

77 A duty to enforce?A duty to enforce?

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8. Remaining issues8. Remaining issues

Unlawfulness? Unlawfulness? Reference to environmental legislation listed Reference to environmental legislation listed

in annexesin annexes Unlawfulness limited to that?Unlawfulness limited to that? Necessary to show correct implementation Necessary to show correct implementation

and penalisation of every implementing and penalisation of every implementing legislation? legislation?

What about temporal changes? What about temporal changes? New directives, new annex? New directives, new annex? COM: no clear answer yet!COM: no clear answer yet!

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Effectiveness, dissuasion and proportionality addressed at Effectiveness, dissuasion and proportionality addressed at different players: both legislator and judgedifferent players: both legislator and judge

Proportionality: relationship between offence and size and Proportionality: relationship between offence and size and type of penalty: legislator and judgetype of penalty: legislator and judge

Dissuasiveness: legislator: if potential gain to offender high, Dissuasiveness: legislator: if potential gain to offender high, social harm large and p low, effective penalties should be highsocial harm large and p low, effective penalties should be high

Hence also role for the judgeHence also role for the judge If insolvency risk: non-monetary sanctions necessaryIf insolvency risk: non-monetary sanctions necessary Effectiveness requirement in environmental law:Effectiveness requirement in environmental law:

Restoration of harm from the pastRestoration of harm from the past Prevention of future harmPrevention of future harm Requires penalties aiming at those goals (also via administrative Requires penalties aiming at those goals (also via administrative

law?)law?)

99 Concluding remarksConcluding remarks

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Administrative fines may lead to additional deterrenceAdministrative fines may lead to additional deterrence Given low prosecution rates for environmental crimeGiven low prosecution rates for environmental crime Still issues to be discussed, e.g. how to interpret Still issues to be discussed, e.g. how to interpret

proportionality requirement: graduated punishment proportionality requirement: graduated punishment approach in legislation or via judiciary?approach in legislation or via judiciary?

May be very much dependant upon country specific May be very much dependant upon country specific characteristicscharacteristics

Bound to a national legal culture and path-dependencyBound to a national legal culture and path-dependency May necessitate some differentiation to increase May necessitate some differentiation to increase

effectivenesseffectiveness Enforcement in practice remains important, but data are Enforcement in practice remains important, but data are

largely lackinglargely lacking Important issue to verify effectiveness and compliance is:Important issue to verify effectiveness and compliance is:

Introduce reliable data collection system in MSIntroduce reliable data collection system in MS In order to examine and improve:In order to examine and improve:


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Effectiveness of environmental criminal law in practice!Effectiveness of environmental criminal law in practice!


using criminal law to enforce european environmental legislation?

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effectiveuse of criminal

application of effective

effective solution

criminal lawsince ms

level of criminal penaltiesnot

criminal lawthird pillar

application of penalties

functions of penalties