Important issues in select European Union countries’ criminal environmental law in compliance with Directive 200899EC

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University of Warmia and Mazury in Olsztyn

Important issues in select European Union countries' criminal environmental law in compliance with Directive 2008/99/EC

E. Zçbek

Olsztyn, Poland

Abstract

îëüøå, ×åøñêîé Ðåñïóáëèêå è ÃåðìàíèèKeywords: criminal environmental law, implementation of provisions, system of national law, environmental resources, legally protected areas, crimes against environment, conditions of criminal responsibility.

Introduction

The principles of European Union (EU) criminal-law environmental protection are regulated in Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law¹.

The directive focuses on the consolidation of criminal law and the “Europeanization” of environmental protection (Gouritin, de Hert 2009). The main premise for its adoption is that “the Community is concerned at the rise in environmental offences and at their effects which are increasingly extending beyond the borders of the State in which the offences are committed. Such offences pose a threat to the environment and therefore an appropriate response” is required. Illegal acts with a significant negative impact on the environment can be transboundary. Included here are the emissions of pollutant gas and dust into the air as well as toxic substances entering waterways and soil from illegal sewage discharge and waste storage. The offenses pose a threat to humans and the environment and therefore require an appropriate and adequate response with severe criminal sanctions. The directive obliges member states to introduce criminal penalties in their national legislations for serious infringements of Community Law on environmental protection, and these criminal penalties should be proportionate, dissuasive and effective (Keene 2015; Farmer, Faure, Fagliasindi 2017).

Article 3 of the directive sets out a list of acts considered environmental offenses. The following acts committed unlawfully and intentionally or resulting from serious negligence are identified:

— the discharge, emission or introduction of a quantity of materials or ionising 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;

— the collection, transport, recovery or disposal of waste, including the supervision of such operations and the aftercare of disposal sites, and including action taken as a dealer or a broker (waste management), 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;

— the shipment of waste, where this activity falls within the scope of Article 2(35) of Regulation (EC) No. 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law (OJ L 328, 06.12.2008, p. 28-37). 2008. Accessed September 12, 2019. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32008L0099. Regulation (EC) No. 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (OJ L 190, 12.07.2006, p. 1-98). 2006. Accessed September 12, 2019. https://eur-lex. europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32006R1013. and is undertaken in a non-negligible quantity, whether executed in a single shipment or in several shipments which appear to be linked;

— the operation of a plant in which a dangerous activity is carried out or in which dangerous substances or preparations are stored or used and which, outside the plant, 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;

— the production, processing, handling, use, holding, storage, transport, import, export or disposal of nuclear materials or other hazardous radioactive substances 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;

— the killing, destruction, possession or taking of specimens of protected wild fauna or flora species, except for cases where the conduct concerns a negligible quantity of such specimens and has a negligible impact on the conservation status of the species;

— trading in specimens of protected wild fauna or flora species or parts or derivatives thereof, except for cases where the conduct concerns a negligible quantity of such specimens and has a negligible impact on the conservation status of the species;

— any conduct which causes the significant deterioration of a habitat within a protected site;

— the production, importation, exportation, placing on the market or use of ozone- depleting substances.

Illegal acts classified as environmental crimes are divided into two specific groups: 1) crimes related to the natural environment and 2) crimes caused by the emission of pollutants into the environment. The first group includes acts of trading, killing, destroying, possessing and taking specimens from protected wild fauna and flora species and activities causing significant deterioration to natural habitats. The second group covers activities involving the emission of particularly harmful substances to the environment including ionizing radiation emission into air, water and soil, inadequate waste management and shipment, dangerous substances and preparations, nuclear materials and other hazardous radioactive substances and ozone-depleting substances. The qualification for offense severity is that they cause death or serious injury to any person or substantial damage to air, water or soil quality or to animals or plants (Cardwell French, Hall 2011) “Strategic Project on Environmental Crime, Report”. 2014. EUROJUST. Accessed December 4, 2019. http://environmental-crime-report_2014-11-21-EN.pdf; “Environmental crime and the EU. Synthesis of the Research Project `European Union Action to Fight Environmental Crime'” 2016. EFFACE. Accessed December 4, 2019. https://efface.eu.. However, the directive imposes no restrictions on the manner of applying these sanctions or any other existing system of law enforcement in individual cases, and this provides great freedom in implementing the directive's provisions in national laws of member states. Although the directive was intended to ensure the specifics of comprehensive environmental protection, available literature has highlighted many problems in both implementing and interpreting the directive's regulations in EU countries (Faure, Weber 2017).

This article analyzes the directions for implementing Directive 2008/99/EC provisions in EU countries of Poland, the Czech Republic and Germany. It also determines the impacts of its implementation on these countries' environmental crime regulations in their penal code. The subject of the analysis is environmental crime in the selected EU countries which are obliged to implement the directive's provisions. The abovementioned countries were chosen due to their proximity. Poland, the Czech Republic and Germany are neighbouring countries and their pollutant emissions may be transboundary. It is also noteworthy that these countries have implemented and expanded the scope of environ- mental crime differently in their penal codes. This is despite Germany being a European Union founding state and Poland and the Czech Republic joining the EU in 2004. The article is based on an analysis of the literature and legal acts on the subject and the use of formal-dogmatic and legal-comparative methods.

Basic research

1. General issues of directive implementation

The resolution of Directive 2008/99/EC was implemented in Poland in the Penal Code of 6 June 1997 (LJ of 2019, item 1950, 2128) -- PPC Chapter XXII Articles 181-188 “Offenses against the environment” Ustawa z dnia 6 czerwca 1997 r. Kodeks karny (tj. Dz. U. z 2019, poz. 1950, 2128). 1997. Accessed September 12, 2019. https://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU19970880553/U/D19970553Lj. pdf.. The legislated crimes are “Destruction, Pollution, Waste, Radioactive material, Significant act, Unperformed duty, Protected area or object and Harmful activity”. These provisions are general in nature, but they comprehensively relate to the most serious types of behavior that are detrimental to the natural environment (Zawlocki 2014). The offenses in this chapter can be divided into two groups: 1) offenses against the natural environment committed under Articles 181, 187 and 188 and 2) the offense of causing pollution to the air, water and soil environments under Articles 182186 (Radecki 2010a). Poland has implemented Directive 2008/99/EC by introducing new legal provisions against air, water and soil pollution by a substance or their contamination by ionizing radiation under Article182. Article 183 legislates the new criminal provisions for inadequate waste management and shipment (Raniszewski 2012).

Environmental offenses in the Czech Republic are regulated in Chapter VIII Sections 293-308 of the 2009 Penal Code (Zakon c. 40/2009 Sb.) -- CPC for “Criminal offenses against the environment” Zakon ze dne 8. ledna 2009 trestni zakonik (Zakon c. 40/2009 Sb.). 2009. Accessed September 12, 2019. https://www.zakonyprolidi.cz/cs/2009-40?text.. The country's main intention in implementing Directive 2008/99/EC was similar to that of Poland. It aimed to strengthen criminal liability for damage or threat to individual environmental components, including the air, water and soil. The code penalizes illegal acts which cause damage to the environment and its components and water resources. This covers damage from harmful waste and substances, such as radioactive elements and their illegal shipment. The code also defines criminal liability for damage caused to the environment, with particular emphasis on criminal law protection of water resources and Natura 2000 sites (Stejskal 2010; Jancarova 2011; Mizerova 2011).

Crimes against the environment in Germany are regulated under Chapter 29 of the 1998 Penal Code (Federal Law Gazette I, p. 3322) -- GPC “Offences against environment” Strafgesetzbuch in der Fassung der Bekanntmachung vom 13. November 1998 (BGBl. I S. 3322). 1998. Accessed September 12, 2019. http://www.gesetze-im-internet.de/stgb/StGB.pdf.. This catalogue of crimes has a much wider scope than those in Poland and the Czech Republic. It includes 13 sections on water, soil and air pollutions, causing noise, vibrations and non-ionising radiation, unauthorized waste management, operation of facilities and handling of radioactive substances and other hazardous substances and goods, endangering protected areas and other serious offences against the environment. German environmental criminal law is a typical example of a modern legal system based on prevention and risk assessment. Although Germany has made constant additions and changes to its environmental legislation, it still has vague legislative terminology and lacks a definition seen in the other European countries. This results in significant difficulties in enforcing criminal law provisions in an appropriate and coherent manner (Kloepfer, Vierhaus 2002, 167; Weber 2014; Sina 2014; Sina 2017).

2. Crimes against natural environmental values

Directive 2008/99/EC obliges the member states to introduce legal regulations for protection of the natural environment in criminal law in order to safeguard them more effectively. These crimes are included in Article 3 points f, g and h, and they legislate against the destruction of wild flora and fauna and natural habitat species, including those under legal protection and also all trading in protected wild flora and fauna.

The protected wild flora and fauna species are listed in: 1) Annex IV of Council Directive 92/43/EEC of the 21^st of May 1992 on the conservation of natural habitats and wild flora and fauna Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ L 206, 22.07.1992, p. 7-50). Accessed September 12, 2019. https://eur-lex.europa.eu/ legal-content/EN/TXT/?uri=CELEX%3A31992L0043.; 2) Annex I of Council Directive 79/409/EEC of the 2^nd of April 1979 for the conservation of wild birds Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (OJ L 103, 25.04.1979, p. 1-18). 1979. Accessed September 12, 2019. https://eur-lex.europa.eu/legal-content/EN/ ALL/?uri=CELEX%3A31979L0409. and 3) Annex A or B of Council Regulation (EC) No. 338/97 of the 9^th of December 1996 for the protection of wild flora and fauna species Council Regulation (EC) No. 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein (OJ L 61, 03.03.1997, p. 1-69). 1996. Accessed September 12, 2019. https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A31997R0338. and their natural habitats classified as a special protection area pursuant to Article 4 (1) or (2) of Directive 79/409/EEC or habitats designated as a special conservation area pursuant to Article 4 (4) of Directive 92/43/EEC Council Directive 79/409/EEC of 2 April 1979. Judgment of 24 June 1993, signature act III KRN 98/93, LexPolonica no. 302836, OSNKW 1993, no. 9-10, item 64. Accessed September 12, 2019. https://sip.lex.pl/orzeczenia-i-pisma-urzedowe/orzeczenia- sadow..

In Poland, crimes against natural environment values are regulated in Articles 181, 187 and 188 of the PPC. The legislated crimes are `Destruction, Protected area or object and Harmful activity. The group of sanctioned offenses currently in force covers the destruction of natural heritage by actions resulting in significant destruction to the plant and animal world. Here, Articles 181 § 1 and 2 outline the two conditions of criminal responsibility for plant and animal destruction. The first condition is causing `damage of significant size' and the second is `significant damage in protected areas. Article 181 penalizes the following acts: significant destruction to plant or animal life (§ 1), violation of the provisions in force in a protected area (§ 2), and destruction or damage of plants or animals causing serious harm (§ 3). Article 181 § 1 employs the first condition of responsibility for crimes against the environment called `destruction in the plant and animal world in significant size. While this destruction covers damage where restoration to the previous state is not possible¹¹, it must also be of significant size, but this latter condition is not specified in the penal code (Radecki, ed. 2010b; Zçbek 2017). Article 181 § 2 provides the second condition of criminal responsibility for criminal penalty by causing significant damage related to the destruction of plants or animals in a protected area and Article 181 § 3 legislates for plants and animals under species protection.

Article 187 adds protection of the natural value of a legally protected area or object. Although specific definitions of “area and object” are not addressed in Polish legislation, the law on nature of 16 April 2004 (LJ of 2020, item 55) Ustawa z dnia 16 kwietnia 2004 r. o ochronie przyrody (t. j. Dz. U. z 2020, poz. 55). 2004. Accessed March 12, 2020. https://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU20040920880/U/D20040880Lj.pdf. protects national parks, nature reserves, landscape parks, areas of protected landscape, nature monuments, archaeological sites, ecological sites, landscape with nature complexes and Natura 2000 sites. The crimes in this group are legislated under Article 188 which penalizes acts of building a new facility or expanding an existing one, conducting business that poses a threat to the environment in a protected area of nature or scenery, or in a buffer zone construction in violation of these prohibitions. environmental protection criminal germany

The Polish Penal Code sanctions these offenses against the environment with a maximum penalty of imprisonment for up to five years, and up to two years for unintentional acts. The major objects of protection are therefore the plant and animal species and the natural values of protected areas. This applies to all activities that negatively affect these environmental elements and actions that cause significant damage to plants and animals are also considered in illegal waste-handling, ionizing radiation and radioactive materials. These are penalized in Articles 183-185 and they are examined in greater detail later in this article. However, the PPC lacks provisions penalizing illegal trade in protected species regulated in the aforementioned 2004 Act on Nature Conservation.

Crimes against natural environment values and protected areas in the Czech Republic are legislated in Sections 299-306 of the CPC (Radecki 2009; Zçbek, Kulbacka-Bu- rakiewicz 2017). These sections legislate crimes against the required protection of wild animals, herbs and protected areas. The following illegal activities cover:

— the unauthorized and negligent disposal of protected wild animals and herbs including their killing, destroying, processing, import, export, transit, handling and it details species directly and critically endangered by extinction or extermination species of an animal or plant with a limit of 35 individuals;

— damage to protected components of nature includes damaging or destroying a commemorative tree, significant landscape element, cave, special protected area, Euro-significant location or a bird nesting area which causes the natural value to become expired or substantially impaired;

— maltreatment of animals in an especially cruel or agonising manner or negligent omission of animal care causing long-lasting consequences to its health or death,

— poaching and hunting game or fish of a value not insignificant or handling hunted game or fish of significant value without authorisation;

— wrongful manufacture, possession or disposal of pharmaceuticals, hormones and other substances which affect the well-being of livestock by manufacture, import, export, transit, sale or otherwise obtainment or handling a substance of thyreostatic, gestagenous, androgenic, estrogenic or other hormonal effects, beta-

agonists or another substance designed to stimulate the efficiency of livestock or a preparatory containing such a substance without authorisation; or -- spreading contagious animal disease in interest stock-breeding or wild animals, as well as causing or increasing the risk of introducing or spreading of a contagious disease or parasite of utility herbs.

The list of crimes against natural values is much wider in the CPC than in the PPC, and some provisions of the directive are faithfully transposed. This especially applies to the unauthorized and negligent disposal of protected wild animals and herbs, with a precise number of species, causing irreversible loss of natural value. The legislator also lists specific objects in protected areas. These include commemorative trees, landscape elements, caves and Euro-significant bird locations (Natura 2000 sites) Zakon ze dne 8. ledna 2009 trestni zakonik (Zakon c. 40/2009 Sb.). 2009. Accessed September 12, 2019. https://www.zakonyprolidi.cz/cs/2009-40?text.. Similar to the PPC, the CPC's premises for these crimes regulate significant damage or destruction of their natural values. There is also an expanded scope of animal protection against abuse, poaching, deterioration of the welfare of farm animals by possible dangerous substances including hormones and the prevention of infectious diseases. In Poland and Germany, this is regulated by separate provisions such as the 1995 Hunting Act (LJ of 2020, item 67) Ustawa z dnia 13 pazdziernika 1995 r. Prawo lowieckie (t. j. Dz. U. z 2020, poz. 67). 1995. Accessed March 15, 2020. https://isap.sejm.gov.pl/isap.nsf/download.xsp/wDu19951470713/U/D19950713Lj.pdf., the 1997 Act for the protection of animals (LJ of 2019, item 122) Ustawa z dnia 21 sierpnia 1997 r. o ochronie zwierzÿ (t. j. Dz. U. z 2019, poz. 122). 1997. Accessed March 15, 2020. http://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU19971110724/U/D19970724Lj.pdf. and the 1996 Act on maintaining municipal cleanliness and order (LJ of 2019, item 1579) Ustawa z dnia 13 wrzesnia 1996 r. o utrzymaniu czystosci i porz^dku w gminach (t. j. Dz. U. z 2019, poz. 1579). 1996. Accessed March 12, 2020. https://isap.sejm.gov.pl/isap.nsf/download.xsp/ WDU19961320622/U/D199 60622Lj.pdf.. This offense is punishable by imprisonment for up to two years, and threat and actual damage to the environment brings a maximum imprisonment of three-five years.

The group of crimes against natural environment values and protected areas in Germany is regulated in “Section 329 Endangering protected areas and 330 Especially serious offences against the environment” of the GPC (Meinberg 1998). Section 329 includes the following activities in these areas: 1) operation of facilities causing harmful environmental impacts through air pollution or noise, 2) operation of in-plant facilities relating to the handling of substances posing a water hazard, 3) operation of pipeline facilities to transport substances which pose a water hazard or transports such substances or 4) mining gravel, sand, clay or other solid substances within the framework of a commercial operation contrary to prohibition regulations. Section 329 enforces penalties for acts contrary to a statutory instrument or an enforceable prohibition enacted to protect a nature conservation area or national park: mining or extraction of mineral resources or other soil components; conducting excavations or deposits; creating, altering or removing bodies of water; draining moors, swamps, marshes or other wetlands; clearing woodland; killing, catching, hunting or destroying or removing the eggs of animals of a specially protected species or damage or removing plants of a specially protected species and the erection of building. There is therefore strong German focus on protection of Natura 2000 sites. This includes special relevance to the species' habitats listed for “wild bird species” in Annex I of Directive 2009/147/EC Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ L 20, 26.01.2010, p. 7-25). 2009. Accessed March 12, 2020. https://eur-lex. europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32009L0147. and for the “natural habitats for the conservation aims of these areas” listed in Annex I of Council Directive 92/43/EEC Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ L 206, 22.07.1992, p. 7-50). 1992. Accessed March 15, 2020. https://eur-lex.europa.eu/ legal-content/EN/TXT/?uri=CELEX%3A31992L0043.. The maximum penalty for the above-described offenses is imprisonment for a term not exceeding five years.

The German Penal Code also includes especially serious offenses against the environment under Section 330, and these are penalized by imprisonment between six months and ten years. An especially serious offense occurs where an identity is liable for:

1) interfering with a body of water, the soil or a conservation area in such a manner that the interference cannot be eliminated or only at an extraordinary expense or after a lengthy period of time and

2) permanent damage to a population of animals or plants of a strictly protected species. In order to effectively protect natural value, the German legislator focused on limiting activities that negatively affect species and habitats protected by law. In contrast to the other analyzed penal codes, the GPC legislation lists these specific activities.

3. Crime of serious pollution and ionising radiation