Changes from report parliamentary committee draft to plenary report

Recital 27: (27) Lack of resources and enforcement powers for national authorities and other relevant authorities which detect, investigate, prosecute or adjudicate environmental criminal offences creates obstacles for the effective prevention and punishment of environmental crimes. In particular, the shortage of resources is capable of preventing authorities from taking any action at all or limiting their enforcement actions, allowing offenders to escape liability or to receive punishment does not correspond to the gravity of the offence. Therefore, minimum criteria concerning resources and enforcement powers should be established.

Change 8

RemovedRecital 30: (30) To ensure an effective, integrated and coherent enforcement system that includes administrative, civil and criminal law measures, Member States should organise internal cooperation and communication between all actors along the administrative and criminal enforcement chains and between punitive and remedial sanctioning actors. Following the applicable rules, Member States should also cooperate through EU agencies, in particular Eurojust and Europol, as well as with EU bodies, including the European Anti-Fraud Office (OLAF) and the European Public Prosecutor’s Office (EPPO). The EPPO should act and take the lead as the independent public prosecution office of the European Union, in cases of cross-border environmental damage and environmental crimes, and should actively combat such crimes. If necessary, competences need to be enhanced.

AddedRecital 28: (28) The effective functioning of the enforcement chain depends on a range of specialist skills. As the complexity of the challenges posed by environmental offences and the technical nature of such crime require a multidisciplinary approach, a high level of legal knowledge, technical expertise and financial support as well as a high level of training and specialisation within all relevant competent authorities are necessary. Member States should provide training appropriate to the function of those who detect, investigate, prosecute or adjudicate environmental crime. To maximise the professionalism and effectiveness of enforcement chain, Member States should also, where appropriate and in accordance with national law, assign specialised investigation units, prosecutors and criminal judges to deal with environmental criminal cases and provide for specialised chambers of judges. Technical expertise and financial support should be made available to all relevant enforcement authorities.

RemovedArticle 1 – paragraph 1: This Directive establishes minimum rules concerning the definition of criminal offences and sanctions in order to protect the environment more effectively by preventing and combatting environmental crime.

AddedRecital 30 a (new): (30a) Given the high financial impact of environmental offences, their potential link with other serious financial crimes, as well as their cross-border nature, the European Public Prosecutor's Office would be best placed to exercise its competences on the most serious environmental crimes with a cross-border dimension. The EPPO’s competences being currently limited to financial crimes, the Commission should precise in a report the possibility for an extension of the competences of the EPPO in cooperation with Eurojust to include serious cross-border environmental crimes, and the arrangements for such an extension.

RemovedArticle 2 – paragraph 1 – point 1 – point a: (a) Union legislation, which aims to pursuit the objectives of Union policy of protecting the environment as set out in the Treaty on the Functioning of the European Union;

AddedRecital 32: (32) To effectively tackle the criminal offences referred to in this Directive, it is necessary that competent authorities in the Member States collect accurate, consistent and comparable data on the scale of and trends in environmental offences and the efforts to combat them and their results. These data should be used for preparing statistics to serve the operational and strategic planning of enforcement activities as well as for providing information to citizens. Member States should collect and report to the Commission, and make available online to the public, relevant statistical data on environmental offences, in particular specifying the sanctions imposed on the offenders. At Union level, the Commission should regularly assess and publish the results based on the data transmitted by the Member States.

RemovedArticle 2 – paragraph 1 – point 4: (4) ‘public concerned’ means the persons affected or likely to be affected by the offences referred to in Articles 3 or 4. For the purposes of this definition, non-governmental organisations promoting the protection of the environment and meeting any requirements under national law shall be deemed to have an interest;

AddedArticle 1 – paragraph 1: This Directive establishes minimum rules concerning the definition of environmental criminal offences and sanctions, as well as concerning the measures, means and resources necessary to prevent and combat environmental crime and to properly enforce the Union’s environmental law, in order to protect the environment more effectively.

RemovedArticle 2 – paragraph 1 – point 5 a (new): (5 a) 'environmental damage' has the meaning laid down in Article 2 of Directive 2004/35/CE, which also covers any adverse effect on environmental media, such as air, water and soil, which is detrimental to everything that grows, blooms, and lives.

AddedArticle 2 – paragraph 1 – point 1 – subparagraph 1 – point a: (a) Union law which contributes to the pursuit the objectives of Union policy of protecting the environment as set out in the Treaty on the Functioning of the European Union;

RemovedArticle 3 – paragraph 1 – point b: (b) the placing on the market of a product, the use of which, in breach of a prohibition or another official requirement, results in discharge, emission or introduction of a quantity of materials or substances into the air, water or soil, which causes or is likely to cause death or serious injury to any person or substantial damage to air, water or soil quality, or to animals or plants as a result of the product's use on a larger scale;

AddedArticle 2 – paragraph 1 – point 1 – subparagraph 1 – point b: (b) a law, an administrative regulation of a Member State or a decision taken by a competent authority of a Member State that gives effect to the Union law referred to in point (a).

RemovedArticle 3 – paragraph 1 – point c – introductory part: (c) the manufacture, placing or making available on the market, import, export or use of substances, whether on their own, in mixtures or in articles, including their incorporation into articles, when:

AddedArticle 2 – paragraph 1 – point 1 – subparagraph 2: The conduct shall be deemed unlawful even if carried out under an authorisation by a competent authority in a Member State when the authorisation was obtained fraudulently or by corruption, extortion or coercion, or when such conduct breaches a condition of authorisation;

RemovedArticle 3 – paragraph 1 – point j: (j) the manufacture, production, processing, handling, use, holding, storage, transport, import, export or disposal of radioactive material falling within the scope of Council Directive 2013/59/Euratom46 , Council Directive 2014/87/Euratom47 or Council Directive 2013/51/Euratom48 , and when such an activity 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;

AddedArticle 2 – paragraph 1 – point 1 a (new): (1a) ‘severe’, for the purpose of Article 3 paragraph 1a, in relation to damage, means that such damage involves very serious adverse changes, disruption or harm to any element of the environment, including grave impacts on human life or natural resources;

AddedArticle 2 – paragraph 1 – point 1 b (new): (1b) ‘widespread’, for the purpose of Article 3 paragraph 1a, in relation to damage, means that such damage extends beyond a limited geographic area, crosses state boundaries, or is suffered by an entire ecosystem or species or a large number of human beings;

AddedArticle 2 – paragraph 1 – point 1 c (new): (1c) ‘long-term’, for the purpose of Article 3 paragraph 1a, in relation to damage, means that such damage cannot be redressed through natural recovery within a reasonable period of time;

AddedArticle 2 – paragraph 1 – point 3: (3) ‘legal person’ means any legal entity having such status under the applicable national law, except for States or public bodies exercising State authority and for public international organisations, unless national law allows for public bodies exercising State authority to be included;

AddedArticle 2 – paragraph 1 – point 4: (4) ‘public concerned’ means the persons affected or likely to be affected by the offences referred to in Articles 3 or 4. For the purposes of this definition, persons having a sufficient interest or maintaining the impairment of a right as well as civil society organisations, including non-governmental organisations, promoting the protection of the environment and meeting any proportionate requirements under national law shall be deemed to have an interest;

AddedArticle 2 – paragraph 1 – point 5 a (new): (5a) 'environmental damage' means serious harm to any person’s health, or substantial damage to the quality of air, the quality of soil or the quality of water, or to biodiversity, ecosystem services and functions, animals or plants, which is detrimental to anything that grows, blooms and lives, including but not limited to the damage as referred to in Article 2 of Directive 2004/35/CE;

AddedArticle 3 – paragraph 1 – point a: (a) the discharge, emission or introduction of a quantity of materials or substances, energy, or ionising radiation into air, soil or water which causes or is likely to cause death or serious harm to any person’s health or substantial damage to the quality of air, the quality of soil or the quality of water, or to biodiversity, ecosystem services and functions, animals or plants;

AddedArticle 3 – paragraph 1 – point b: (b) the placing on the market or illegal trade, including online, of a product, the use of which, in breach of a prohibition or another requirement, causes or is likely to cause death or serious harm to any person’s health or substantial damage to the quality of air, the quality of soil or the quality of water, or to biodiversity, ecosystem services and functions, or animals or plants as a result of the product's use on a larger scale;

AddedArticle 3 – paragraph 1 – point c – introductory part: (c) the manufacture, placing or making available on, import to and export from the Union market, including online, or use of substances, whether on their own, in mixtures or in articles, including their incorporation into articles, when:

AddedArticle 3 – paragraph 1 – point c – subparagraph 2: and it causes or is likely to cause death or serious harm to any person’s health or substantial damage to the quality of air, the quality of soil or the quality of water, or to biodiversity, ecosystem services and functions, animals or plants;

AddedArticle 3 – paragraph 1 – point c a (new): (ca) any conduct in breach of the Regulation (EU) 2017/852 of the European Parliament and of the Council1a; / 1a Regulation (EU) 2017/852 of the European Parliament and of the Council of 17 May 2017 on mercury, and repealing Regulation (EC) No 1102/2008 (OJ L 137, 24.5.2017, p. 1).

AddedArticle 3 – paragraph 1 – point c b (new): (cb) the deliberate release into the environment of, cultivation of and placing on the market of genetically modified organisms where such activities are illegal under Directive 2001/18/EC of the European Parliament and of the Council, Regulation (EC) No 1829/2003 of the European Parliament and of the Council and Directive 2009/41/EC of the European Parliament and of the Council and where such activities cause or are likely to cause substantial damage to the quality of air, the quality of soil or the quality of water or to biodiversity, ecosystem services and functions, animals or plants;

AddedArticle 3 – paragraph 1 – point e – introductory part: (e) the collection, transport, treatment, recovery or disposal of waste, the supervision of such operations and the after-care of disposal sites, including action taken as a dealer or a broker (waste management), when an unlawful conduct:

AddedArticle 3 – paragraph 1 – point e – point ii: (ii) concerns other waste than referred to in point (i) and causes or is likely to cause death or serious harm to any person’s health or substantial damage to the quality of air, the quality of soil or the quality of water, or to biodiversity, ecosystem services and functions, animals or plants;

AddedArticle 3 – paragraph 1 – point h: (h) the ship-source discharges of polluting substances as defined in Article 3(8) of Directive 2008/56/EC or referred to in Article 4(1) of Directive 2005/35/EC of the European Parliament and of the Council42 on ship-source pollution and on the introduction of penalties, including criminal penalties, into any of the areas referred to in Article 3(1) of that Directive, provided that the ship-source discharges do not satisfy the exceptions set in Article 5 of that Directive; this provision shall not apply to minor cases, where the ship-source discharge does not cause deterioration in the quality of water or the marine environment, unless repeated cases by the same offender in conjunction result in deterioration in the quality of water or the marine environment;

AddedArticle 3 – paragraph 1 – point i: (i) the installation, operation or dismantling of an installation in which a dangerous activity is carried out or in which dangerous substances, preparations or pollutants are stored or used falling within the scope of Directive 2012/18/EU of the European Parliament and of the Council43 , Directive 2010/75/EU of the European Parliament and of the Council44 or Directive 2013/30/EU of the European Parliament and of the Council45 and which causes or is likely to cause death or serious harm to any person’s health or substantial damage to the quality of air, the quality of soil or the quality of water, or to biodiversity, ecosystem services and functions, animals or plants;

AddedArticle 3 – paragraph 1 – point j: (j) the manufacture, production, processing, handling, use, holding, storage, transport, import, export or disposal of radioactive material falling within the scope of Council Directive 2013/59/Euratom46 or Council Directive 2013/51/Euratom48, which causes or is likely to cause death or serious harm to any person’s health or substantial damage to the quality of air, the quality of soil or the quality of water, or to biodiversity, ecosystem services and functions, animals or plants; / (deleted)

Article 3 – paragraph 1 – point k: (k) the abstraction of surface water or groundwater within the meaning of Directive 2000/60/EC which causes or is likely to cause substantial damage to the ecological status or potential of surface water bodies or to the quantitative status of groundwater bodies;

Change 9

ChangedArticle 3 – paragraph 1 – point l: (l) the killing, destruction, taking of, possession, sale or offering for salesale, including online, of a specimen or specimens of wild fauna or flora species listed in Annexes IV and V (when species in Annex V are subject to the same measures as those adopted for species in Annex IV) to Council Directive 92/43/EEC49 and the species referred to in Article 1 of Directive 2009/147/EC of the European Parliament and of the Council50 ,Council50, except for cases where the conduct concerns a negligible quantity of such specimens and does not affect the natural environmenthabitats of such species to a considerable degree and does not pose a danger to efforts to stabilise their population;

Change 10

RemovedArticle 3 – paragraph 1 – point p – introductory part: (p) bringing into the territory of the Union, placing on the market, keeping, breeding, transport, use, exchange, permitting to reproduce, grow or cultivate, releasing into the environment or spreading of invasive alien species of Union concern when the conduct is in breach of restrictions set out in Article 7(1) of Regulation (EU) No 1143/2014 of the European Parliament and of the Council53a; / 53a Regulation (EU) No 1143/2014 of the European Parliament and of the Council of 22 October 2014 on the prevention and management of the introduction and spread of invasive alien species (OJ L 317, 4.11.2014, p. 35).

AddedArticle 3 – paragraph 1 – point m: (m) trading in specimens of wild fauna or flora species or parts or derivatives thereof listed in Annexes A and B to Council Regulation (EC) No 338/9751 and imports of specimens of such species, parts or derivatives thereof listed in Annex C of that Regulation;

RemovedArticle 3 – paragraph 1 – point p – point i: deleted / (deleted)

AddedArticle 3 – paragraph 1 – point n: (n) the placing or making available on the Union market and the export from the Union, including through online means, of relevant commodities or relevant products, falling within the scope of Regulation (EU) .../... of the European Parliament and of the Council*+, where the conditions referred to in Article 3 of that Regulation for such placing or making available on the market, or such export, are not met, except for cases where the conduct concerns a negligible quantity; / * Regulation (EU) .../... of the European Parliament and of the Council of ... on the making available on the Union market and the export from the Union of certain commodities and products associated with deforestation and forest degradation and repealing Regulation (EU) No 995/2010 (OJ ...). / + OJ: Please insert in the text the number of the Regulation contained in document PE- CONS 82/22 (2021/0366(COD)) and insert the number, date, title and OJ reference of that Regulation in the footnote.

RemovedArticle 3 – paragraph 1 – point p – point ii: deleted

AddedArticle 3 – paragraph 1 – point o: (o) any conduct which causes the deterioration of a habitat within a special area of conservation as referred to in Article 6(2) of the Directive 92/43/EEC, or of a habitat of a species in accordance with Regulation (EU) .../... of the European Parliament and of the Council*+, when this deterioration is significant; / * Regulation (EU) .../... of the European Parliament and of the Council of ... on nature restoration (OJ ...). / + OJ: Please insert in the text the number of the Regulation contained in document PE- CONS .../... (2022/0195(COD)) and insert the number, date, title and OJ reference of that Regulation in the footnote.

RemovedArticle 3 – paragraph 2: 2. Member States shall ensure that the conduct referred to in paragraph 1 also constitutes a criminal offence, when committed with negligence.

AddedArticle 3 – paragraph 1 – point p – point ii: (ii) the conduct breaches a condition of permit issued under Article 8 or of authorisation granted under Article 9 of Regulation (EU) No 1143/2014 and 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, biodiversity, ecosystem services and functions, or to animals or plants;

RemovedArticle 4 – paragraph 1: 1. Member States shall ensure that the intentional inciting, and aiding and abetting the commission of any of the criminal offences referred to in Article 3(1) are punishable as criminal offences.

AddedArticle 3 – paragraph 1 – point q: (q) production, placing on the market, including online, import, export, use, emission or release of ozone depleting substances as defined in Article 3 (4) of Regulation (EC) No 1005/2009 of the European Parliament and of the Council54 or of products and equipment containing or relying on such substances;

RemovedArticle 5 – paragraph 1: 1. Member States shall take the necessary measures and procedures to ensure that the offences referred to in Articles 3 and 4 are punishable by effective, proportionate and dissuasive criminal penalties in swift proceedings.

AddedArticle 3 – paragraph 1 – point r a (new): (ra) a serious infringement within the meaning of Article 90(1) of Council Regulation (EC) No 1224/200955a and Article 42 of Council Regulation (EC) No 1005/200855b; / 55a Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Union control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006 (OJ L 343 22.12.2009, p. 1). / 55b Council Regulation (EC) No 1005/2008 of 29 September 2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing, amending Regulations (EEC) No 2847/93, (EC) No 1936/2001 and (EC) No 601/2004 and repealing Regulations (EC) No 1093/94 and (EC) No 1447/1999 (OJ L 286 29.10.2008, p. 1).

AddedArticle 3 – paragraph 1 – point r b (new): (rb) any conduct that causes a forest fire or a significant deterioration of more than one hectare of forest;

AddedArticle 3 – paragraph 1 a (new): (1a) Member States shall ensure that any conduct which causes or is likely to cause death or serious harm to any person’s health or substantial damage to the quality of air, the quality of soil or the quality of water, biodiversity, ecosystem services and functions, or to animals or plants constitutes a criminal offence when it is unlawful and committed intentionally. Member States shall ensure that any conduct causing severe and widespread, or severe and long-term, or severe and irreversible damage is treated as an offence of particular gravity and sanctioned as such in accordance with the legal systems of the Member States.

AddedArticle 3 – paragraph 2: 2. Member States shall ensure that the conduct referred to in paragraph 1 or paragraph 1a also constitutes a criminal offence, when committed with at least serious negligence.

AddedArticle 3 – paragraph 3 – point d: (d) spread of the damage, including any potential cross-border nature;

AddedArticle 3 – paragraph 3 – point e a (new): (ea) any financial benefits derived from the damage caused by the perpetrators;

AddedArticle 3 – paragraph 3 – point e b (new): (eb) the duration of the infringement or non-compliance;

AddedArticle 3 – paragraph 3 – point e c (new): (ec) the conservation status of the species, populations or habitats, ecosystems and natural resources affected;

AddedArticle 3 – paragraph 3 – point e d (new): (ed) whether the offence was committed in the framework of a criminal organisation within the meaning of Council Framework Decision 2008/841/JHA, or is linked to murder, corruption, money laundering, fraud, document counterfeiting, extortion, coercion or other forms of intimidation.

AddedArticle 3 – paragraph 3 – subparagraph 1 a (new): Member States shall ensure that their national legislation specifies that the offences listed in paragraph 1, points (ca), (cb), (ra) and (rb), are without prejudice to the possibility of excluding from criminal liability conduct which causes or is likely to cause a damage which is, on the basis of the elements referred to in the first subparagraph of this paragraph, not considered to be substantial.

AddedArticle 3 – paragraph 4 – introductory part: 4. Member States shall ensure that their national legislation specifies that the following elements shall be taken into account, where relevant, when assessing whether the activity is likely to cause damage to the quality of air, the quality of soil or the quality of water, or to biodiversity, ecosystem services and functions, animals or plants for the purposes of the investigation, prosecution and adjudication of offences referred to in paragraphs 1:

AddedArticle 3 – paragraph 4 – point a: (a) the conduct relates to an activity which is considered as risky or dangerous, requires an authorisation which was not obtained, updated or complied with;

AddedArticle 3 – paragraph 5 – point b: (b) the extent to which the regulatory threshold, including a hazardousness and toxicity threshold, value or another mandatory parameter is exceeded;

AddedArticle 3 – paragraph 5 – point c: (c) the conservation status of the relevant populations of the fauna or flora species concerned;