Revised Environmental Crime Directive to come into force on 20 May 2024
The revised Environmental Crime Directive (ECD) has now been published in the Official Journal of the EU, and comes into force on 20 May 2024, replacing Directive 2008/99/EC and Directive 2009/123/EC. Member States have until 21 May 2026 to adopt necessary national measures to transpose the revised ECD.
The purpose of the revision was to strengthen protection of the environment through criminal law by making activities most damaging to the environment subject to criminal penalties. The existing Directive 2008/99/EC was believed to not be dissuasive enough.
The scope of the revised Directive is now much wider. For example, breaches of rules on the spread of invasive alien species and illegal ship recycling are now included. Criminal sanctions for ship-source discharge of polluting substances have also been moved out of the Ship Source Pollution Directive into the ECD.
Criminal penalties for natural persons are set out in Articles 5 and include imprisonment for up to ten years. Under Articles 6 and 7 legal persons may be subject to criminal penalties of up to 5% of total worldwide turnover or EUR 40,000,000.
For pollution caused by ships to constitute an environmental crime under the ECD, it must be unlawful and intentional, or in certain cases, committed with “serious negligence”. The revised ECD does not define “serious negligence”-Recital 27 provides that its meaning should be interpreted in accordance with national law.
This means that the liability threshold under the ECD does not align with MARPOL, which requires an “intent to cause damage or recklessly and with knowledge that damage would probably result” and UNCLOS, which provides vessels with a right of innocent passage in territorial waters unless an act of “wilful and serious pollution” occurs. This lower and less precise threshold could result in a lack of uniformity in approach across Member States. As all member States have implemented MARPOL into their national laws and have already provided sanctions (including criminal), these may continue to be applied in relevant cases.
Both the International Group and the International Chamber of Shipping engaged extensively with the EU Commission in an effort to dissuade them from creating the misalignment between the ECD and MARPOL, as well as drawing attention to the lack of legal definition around the phrase “serious negligence”. Regrettably, those efforts proved to be unsuccessful.
The full text of the ECD can be found here.