The Development of Environmental Criminal Law in the EU and its Member States

AuthorMichael Faure
DOIhttp://doi.org/10.1111/reel.12204
Published date01 July 2017
Date01 July 2017
The Development of Environmental Criminal Law in
the EU and its Member States
Michael Faure*
Environmental criminal law has gone through a spec-
tacular evolution in Europe in the past 30 years. One
change concerns simply the place of environmental
criminal law. In many countries provisions have now
been incorporated either in a penal code or in a specific
environmental statute. Moreover, in many legal sys-
tems the environment has received a more autono-
mous protection in the criminal law system. And
finally, one can notice in many countries the introduc-
tion of a so-called toolbox approach, implying that a
variety of remedies have been put in place, thus reserv-
ing the criminal law as an ultima ratio. Yet another
important development relates to the fact that Europe
also has taken action with respect to environmental
criminal law with the Environmental Crime Directive
of 2008. It is, however, striking that some of the afore-
mentioned developments in Member States are not
reflected in the Directive. Moreover, the enforcement
of environmental law faces many more challenges
which cannot be faced merely with a criminalization.
There is a serious danger that this only leads to sym-
bolic legislation whereby violations of environmental
law are criminalized, without any guarantee of effec-
tive enforcement. There are therefore still important
challenges to be met with respect to the system of envi-
ronmental criminal law in Europe.
INTRODUCTION
Environmental criminal law has gone through a spec-
tacular evolution in Europe in the past 30 years. In
most countries, these systems of environmental crimi-
nal law started as an annex to mainly administrative
laws. The criminalization was also dependent upon the
scope of administrative law. Moreover, in most legal
systems, countries strongly relied on criminal law;
alternative remedies to handle violations of environ-
mental law were often lacking. Data concerning the
enforcement of environmental criminal law in practice
showed that a large amount of environmental crime
was dismissed given the limited capacity of public pros-
ecutors. Important changes have taken place concern-
ing the shape of environmental criminal law. One
concerns simply the place of environmental criminal
law. In many countries provisions have now been incor-
porated either in a penal code or in a specific environ-
mental statute.
Environmental criminal law is hence no longer merely
an annex to environmental statutes of a mostly admin-
istrative law character. Moreover, in many legal systems
the environment has received a more autonomous pro-
tection in the criminal law system. And finally one can
notice in many countries the introduction of a so-called
toolbox approach, implying that a variety of remedies
(civil penalties, administrative fines, etc.) have been put
in place, thus reserving the criminal law as an ultima
ratio. Yet another important development relates to the
fact that Europe also has taken action with respect to
environmental criminal law through the Environmental
Crime Directive of 2008. It is, however, striking that
some of the aforementioned developments which could
be observed in the Member States, for example, with
respect to the toolbox approach, are not reflected in the
Directive. The enforcement of environmental law faces
many more challenges that cannot be addressed solely
through criminalization. There is a serious danger that
this only leads to symbolic legislation, whereby viola-
tions of environmental law are criminalized, without
any guarantee that an effective enforcement will take
place as well. There are therefore still important chal-
lenges to be met with respect to the system of environ-
mental criminal law in Europe.
In this article, I will first sketch how environmental
criminal law in Europe emerged and developed in the
1970s. I will then highlight that the traditional model of
using criminal law to enforce environmental legislation
was subject to much criticism. Next, I will show that this
critique has to a large extent been incorporated by
Member States, but only to a lesser extent in the Euro-
pean Environmental Crime Directive. The final section
concludes.
THE BEGINNING
When environmental criminal law emerged in the
1970s it was captured in environmental laws that often
had a strongly administrative character, imposing, for
example, an obligation upon an operator to apply for a
*Corresponding author.
Email: michael.faure@maastrichtuniversity.nl
ª2017 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
139
RECIEL 26 (2) 2017. ISSN 2050-0386 DOI: 10.1111/reel.12204
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