May 10 2010
Recent developments in the field of criminal environmental law highlight new improvements in the traceability of environmental crime and the increasingly prominent role played by criminal law in the protection of the environment.
Traceability of environmental crime
A special National Crime Office report published in October 2009 lists all environment-related offences committed during 2008.(1) According to the report, 58,585 environmental offences were registered in 2008 - a slight increase on the data for 2006. However, major differences emerged in relation to the types of offence committed. For example, offences relating to perception (noise and sight) had dropped by 4% to 5%, while those relating to aspects of the environment (water and air and atmosphere) had more than doubled (increasing from 5,770 to 12,713). According to the National Crime Office, this increase is explained mainly by a rise in the number of complaints made by citizens, who are increasingly concerned about environmental issues.
Moreover, 18,157 offences out of 58,585 - in other words, more than one-third - were punished by a fifth-category fine. The small percentage of offences relating to public health (93 offences, or 0.2% of the total) is not considered relevant data because of the definition of 'public health' itself. According to the National Crime Office, this definition is extremely broad.
The report itself illustrates a real shift in government policy. Previously, almost all data on environmental crime was issued by the state police services. Each offence that comes to the attention of the Gendarmerie and the Paris Police Headquarters is registered in a specific file called "Etat 4001". However, this file is incomplete because it does not include offences that are punished by fines, which represent 80% of all environmental offences. The work undertaken by the National Crime Office thus creates a more comprehensive picture of environmental crime.
It will be interesting to follow the debate on the reform of the criminal procedure - which would see the juge d'instruction(2) replaced by the procureur de la République - and observe its impact on the number of environmental offences.
Importance of criminal law
Meanwhile, the fight against environmental crime has recently been stepped up at both a national and EU level.
In 2009 the provisions on environmental crime were developed mainly by the legislation applicable to regulated installations and by the EU Registration, Evaluation and Authorization of Chemicals (REACH) regime.
The order on the new system for registration of certain regulated installations(3) sets out criminal rules that apply to registered installations. However, none of these provisions differs from what has been implemented for installations that are subject to declaration or permit. For example, Article L514-9 of the Environment Code has been modified in order to create a new offence of operating an installation without prior registration. Interestingly, the penalties are the same for both categories, even though installations that are subject to registration pose less risk than those that are subject to permit. The applicable penalties are one year's imprisonment and a fine of €75,000 for individuals or €375,000 for corporations.
Regarding REACH, in addition to administrative penalties, an order of February 26 2009(4) provides for criminal penalties, which are stipulated in Articles L521-1 and following of the Environment Code.
For example, a penalty of two years' imprisonment and a fine of €75,000(5) applies where incorrect information is supplied which is likely to result in the imposition of requirements which are less stringent than those which would otherwise apply, or where information is concealed for the same purpose. The same penalty applies where a substance that is subject to the REACH regime is manufactured or imported without registration, in breach of Title II of EU Regulation 1907/2006. A penalty of three months' imprisonment and a fine of €20,000(6) will apply where the recipient of a substance or preparation is not provided with a safety data sheet and its annexes as required under Article 31 of EU Regulation 1907/2006.
Inspectors of classified facilities have a major role to play in this area, as they are responsible for monitoring compliance with the REACH legislation.(7)
With regard to EU law, France will have to transpose the EU Environmental Crime Directive (2008/99/EC) before December 26 2010. This directive is based on the fact that the existing penalty systems have proved insufficient to achieve full compliance with the laws on environmental protection. Compliance should thus be strengthened by the availability of criminal penalties "which demonstrate a social disapproval of a qualitatively different nature compared to administrative penalties or a compensation mechanism under civil law". For the European Commission, criminal law thus seems to be the most appropriate tool to curtail the number of environment-related offences.
In order to fulfil this objective, the directive obliges member states to provide for criminal penalties in their national legislation in respect of serious infringements of EU law on environmental protection. The text also provides that certain acts must necessarily be considered as offences in national legislation.(8)
The directive will have a limited impact in France, however, because the French legislation is already sufficiently stringent in this respect.(9) Thus, the directive should be swiftly transposed, especially since it does not include provisions on the amount of the criminal penalties to be levied on corporations or on the existence of supplementary or alternative penalties, such as clean-up and rehabilitation requirements or the termination of certain activities.
(8) For example, the discharge, emission or introduction of a quantity of materials or ionizing radiation into air, soil or water which causes or is likely to cause death or serious injury to any person, or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants (Article 3(a) of the directive).
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