Environmental criminal law and environmental crimes
On Jan. 1, 2024, the Environment Act entered into force. This makes environmental legislation easier to retrieve. That does not make it any less complex: much legislation is derived from or refers to European regulations. Violations can often be sanctioned under both administrative and criminal law (through the Economic Offenses Act). Moreover, violations of environmental law can have far-reaching consequences. This makes environmental criminal law a specialized matter.
Should you or your company be the subject of an environmental crime investigation, it is wise to seek appropriate legal assistance at an early stage. Van Meekren Advocatuur can provide you with that legal assistance.
Criminal law or administrative law?
Some environmental offenses can be enforced under both administrative and criminal law. The National Enforcement Strategy for Environmental Law (LHSO) provides guidance on when to choose one or the other. As a rule, this depends, among other things, on the impact of the observed violation on the physical environment, the behavior of the offender, recidivism and the answer to the question of whether a financial benefit has been obtained.
A behavior cannot be punished both administratively and criminally. However, administrative supervision can at some point change color and become criminal. From that moment on, different rights and obligations apply. Administrative law generally imposes an obligation to cooperate, whereas a suspect in criminal proceedings does not have to cooperate with his or her own prosecution (the nemo tenetur principle). This can lead to dilemmas: if you cooperate where there is no obligation to do so, you may be incriminating yourself; if you do not cooperate where there is an obligation to do so, you may be committing an offence (Article 184 DPC). It is therefore important to engage the services of a specialized criminal lawyer at an early stage.
Environmental Criminal Law
Environmental crimes are criminalized because they can have a harmful effect on the environment. Consider the health and safety of people in the surrounding area. Environmental criminal law are those environmental crimes that have been designated as criminal offenses, specifically through the Economic Offenses Act (WED) or through the Dutch Penal Code (DPC).
Examples of environmental crimes include:
Illegal dumping of waste (for example, dumping of chemical waste in unauthorized locations).
The illegal discharge of pollutants into waterways.
Failure to comply with regulations related to air pollution, such as violations of emission standards.
The illegal felling of protected forests or trees.
Trading endangered species or their products in violation of international treaties.
As mentioned earlier, environmental criminal law is mostly a European matter and is therefore shaped at the European level through the 2008 Environmental Crime Directive. This directive requires member states to criminalize the listed environmental offenses using "effective, proportionate and dissuasive criminal sanctions." In addition, member states must ensure that legal persons can also be held liable for the environmental offenses stipulated in the directive.
Learn more about environmental criminal law and environmental crimes
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Often the company will be the start of the investigation - consider the company suspected of the discharge or pollution. Be aware that natural persons can also be criminally prosecuted. Obviously, these may be the employees who (actually) committed the crime - think of the person who illegally cut down the tree or the employee who falsely prepared a transport order - but under circumstances their principals or actual directors may also be criminally liable. These can also be members of (senior) management.
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(European) environmental criminal law is rapidly evolving. For example, on Dec. 1, 2023, a final compromise text was created to improve and replace the 2008 Environmental Crime Directive.
Some intended changes to the current Environmental Crime Directive are as follows:
The list of environmental crimes to be criminally enforced by European Union member states will be expanded from nine to 20 environmental crimes.
The new directive will contain minimum penalty caps for certain offenses will include both natural and legal persons.
The intended new directive requires member states to make certain environmental crimes a qualified crime if the criminal conduct results in the destruction of, or causes widespread, substantial, and irreversible or long-term damage to an ecosystem, habitat within a protected area, or to the quality of air, soil, or water.
The new Directive is expected to be ratified in the spring of 2024. The current Directive will then be repealed.
From the moment of ratification, the Netherlands has two years to implement the regulations from the new Directive on environmental crime.
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