The implementation of the Environmental Crime Directive will tighten environmental criminal law and increase pressure on companies

By 21 May, 2026, Germany must transpose Directive 2024/1203 of the European Parliament and of the Council of 11 April, 2024, on the protection of the environment through criminal law and replacing Directives 2008/99/EC and 2009/123/EC ("Environmental Crime Directive") into German law.

Implementing the Environmental Crime Directive will significantly tighten and expand environmental criminal law. The Directive includes:

• the expansion of the catalog of criminal offenses,
• the introduction of qualified criminal offenses,
• stricter fines and consequences, and
• targeted instruments to strengthen law enforcement.

Companies therefore face increased liability risks. However, by conducting an early risk analysis and implementing an effective environmental compliance management system, companies can minimize these risks.

EU as a Driver of Environmental Criminal Law

So far, environmental criminal law has been primarily addressed through the Directive 2008/99/EC on the protection of the environment through criminal law and Directive 2009/123/EC on ship-source pollution and on the introduction of penalties for infringements.

On 15 December, 2021, the European Commission presented a proposal for a revision of the regulations on environmental criminal law. According to findings of the EU Commission, the number of cases of environmental crime that were effectively prosecuted and resulted in convictions remained very low, and the sanctions imposed were too lenient to have a noticeable deterrent effect.

With the adoption of the new Environmental Crime Directive by the European Parliament and the Council on 11 April, 2024, and its entry into force on 20 May, 2024, the previously applicable Directives 2008/99/EC and 2009/123/EC were revised and tightened. The EU aims to prevent or reduce unlawful environmentally harmful actions through deterrent criminal sanctions.

The German federal government also identifies environmental crime in its coalition agreement as "one of the most important areas of activity for organized crime" and views it as a threat to fundamental life resources. It explicitly commits to intensifying the fight against environmental crime.

Revision of the Directive Expands the Catalog of Offenses

The Environmental Crime Directive introduces new offenses compared to Article 3 of the existing Directive 2008/99/EC. As a result, the number of environmental offenses increases from nine to twenty. Newly added are criminal liabilities for

• illegal timber trafficking (e.g., in violation of the Deforestation Regulation (EU) 2023/1115,
• illegal ship recycling (dismantling outside approved facilities while circumventing recycling),
• illegal extraction of groundwater or surface water if it causes or is likely to cause significant harm to the ecological status,
• serious violations of chemical regulations (e.g., violation of REACH Regulation),
• unlawful handling of mercury, such as the production and storage of mercury-added products, if such actions are not in compliance with the requirements of Regulation (EU) 2017/852 and cause severe personal or property damage,
• illegal use or release of fluorinated greenhouse gases,
• violations of regulations concerning ozone-depleting substances, such as the improper use of substances listed in Annexes I and II of Regulation (EU) 2024/590, like CFCs,
• illegal offshore activities,
• the implementation of projects subject to an environmental impact assessment without the required permit, provided that they cause or are likely to cause significant damage to the environment, such as the impairment of water quality, and
• the import, possession, or release of invasive alien species without the required permit.

Further Tightening of Regulations

According to Article 3(1) of the Environmental Crime Directive, an act shall also be considered unlawful if it is committed under a permit issued by the competent authority of a Member State, and this permit was obtained fraudulently or through corruption, extortion, or coercion. This also applies if the permit was lawfully issued but clearly violates the relevant substantive legal requirements. This is likely to have significant practical implications: Companies can therefore no longer rely solely on the existence of a permit or a toleration by the public authority if they contradict substantial legal requirements.

Article 4(2) of the Environmental Crime Directive also provides for the punishment of attempted environmental offences which are now to be excluded only in the case of offences under Article 3(2), lit. e), lit. h), lit. n) and lit. q). The respective types of sanctions for environmental crime are defined for individuals in Article 5 and for legal persons in Article 7 of the Environmental Crime Directive.

• Art. 5 establishes threshold values for maximum penalties for individuals that must be implemented as a minimum in the Member States. Depending on the offense, these consist of maximum prison sentences of at least ten, eight, five, or three years.
• Art. 7 sets out the threshold values for penalties for legal entities. These include, for example, mandatory fines that, in the case of serious violations, should amount to at least 3% or 5% of the global annual turnover or at least 24 or 40 million euros.

Environmental Criminal Law leads to an Expansion of Corporate Liability

The implementation of the Environmental Crime Directive will lead to an expansion of corporate liability under German law. According to Art. 6(1) of the Environmental Crime Directive, legal entities will be liable for violations if individuals in leadership positions commit environmental crimes covered by the Directive for the benefit of the company. Additionally, a failure of oversight by leadership personnel leads to corporate liability under Art. 6(2) of the Environmental Crime Directive.

Furthermore, Art. 7(2) of the Environmental Crime Directive defines further sanctions, which may also be non-criminal in nature, such as:

• the obligation to restore the previous state of the environment (Art. 7(2) lit. a),
• the exclusion from public grants or aid (Art. 7(2) lit. b),
• the withdrawal of permits and licenses (Art. 7(2) lit. e),
• the temporary or permanent prohibition of engaging in business activities Art. 7(2) lit. d), or the closure of establishments (Art. 7.(2) lit. h),
• the obligation to introduce compliance management systems to ensure adherence to environmental regulations (Art. 7(2)(i)),
• the publication of judicial decisions regarding the committed offense and the imposed sanctions or measures, provided there is a public interest in doing so (Art. 7(2) lit. j).

The implementation of the Environmental Crime Directive is likely to increase the risk of higher corporate fines. According to Recital 33 of the Environmental Crime Directive, Member States whose legal systems do not provide for the criminal liability of legal entities must ensure that their laws provide for effective, deterrent, and proportionate sanctions in line with the Directive.

Outlook: Consequences for Companies require Timely Risk Analysis and an Environmental Compliance Management System

As a result, companies can expect a number of consequences from the implementation of the Environmental Crime Directive:

• The implementation of the Environmental Crime Directive will result in tighter German environmental criminal law.
• Due to the increased severity of sanctions, fines amounting to at least 3% or 5% of a legal entity's worldwide total revenue in the fiscal year prior to the conviction are possible.
• The introduction of accompanying sanctions, such as a temporary or permanent ban on conducting business activities, the revocation of permits and licenses or the temporary or permanent closure of facilities could result in significant disruptions.

Authored by Dr. Sebastian Gräler and Dr. Malte Kramer.