Europe and Central Asia

BirdLife Europe’s feedback on the Evaluation Roadmap of the Environmental Crime Directive

BirdLife welcomes the European Commission initiative to evaluate the Environmental Crime Directive. A revision of the Directive will allow the EU to confirm its position as a leader in the fight against environmental crime.

Environmental crime is one of the largest criminal activities in the world, and is still growing, benefitting from low detection probability, low prosecution rates and low penalties. Environmental crime is causing irreversible damage to our health, our lives and our natural heritage. As such, the Directive evaluation and revision should aim at improving its implementation by the Member States. Of particular concern to BirdLife are the threats to species and habitats, such as illegal land-use change, the use of poisoned baits and shooting of birds of prey and scavengers, illegal hunting tourism, or large-scale trapping of passerines. Many of those are associated with international criminal organisations, trans-border trafficking, and concern migratory species or trans-boundary ecosystems, making it particularly relevant to act at EU level.

 

In view of these circumstances, BirdLife Europe believes that the purpose, scope and the methodology of the assessment should cover the following:

  • Effectiveness – The Commission should assess the effectiveness of the directive by asking how Member States have transposed the effective, proportionate and dissuasive criminal penalties mentioned: What are the terms of imprisonment and fines provided by Member States’ law? How have Members States transposed the criteria of ‘significant effect on the conservation status’, ‘non-negligible quantity of protected species’ and ‘significant deterioration of a habitat within a protected site’?

Beyond assessing the transposition of the Directive, the evaluation should be based on results achieved at each of the links in the enforcement chain (surveillance, inspection, investigation, prosecution and sentencing). It should therefore assess the capacity of Member States to fight environmental crime, their prosecution and sentencing rates, and penalties imposed. The evaluation should assess how Member States integrate aggravating circumstances (e.g. recidivism or organised crime), and other criminal and administrative penalties (e.g. the obligation to restore the environment; exclusion from entitlement to public benefits or aid; temporary or permanent disqualification from practice of recreational or commercial activities; placing under judicial supervision, judicial winding-up, temporary or permanent closure of establishments which have been used for committing the offence; the publication of the judicial decision relating to the conviction or any sanctions or measures applied). The Commission should evaluate how each of these impacts on the effectiveness of the Directive’s implementation. The evaluation should also look at the criteria used by Member States to assess the damages caused by an environmental crime.

In the evaluation, the Commission should look at how it is ensuring the Directive’s effectiveness in protecting the environment. The evaluation should look into who monitors the evolution of environmental crime (is it NGOs or the States?); the effectiveness of the collection of data; whether civil society has access to it; and compliance of the Member States obligation of information within the framework of European regulation. The evaluation should also assess whether criminal proceedings are open to NGOs as a party whose interests have been damaged and whether they are allowed to bring action to ensure enforcement.

Finally, the Commission should look into the legal powers given to competent authorities necessary to conduct compliance monitoring and enforcement of the Directive (e.g. powers to enter into a property; obtain probative information from the criminal act in using measures such as wiretapping, interception of electronic communications and the making of recordings; and require activities to stop).

  • Relevance – To fully assess the Directive’s relevance, the Commission should look at the completeness of Article 3 on offences, and whether the article encompasses all conducts that cause or are likely to cause substantial damage to the environment, as well as Annex A. The evaluation should also assess how the Directive affects the whole criminal economy chain, as environmental crime rarely occurs in isolation.
     
  • Efficiency – To properly evaluate the efficiency of the Directive, the European Commission should assess the societal and economic costs of the crimes committed; this should be a central aspect of the evaluation. The Commission should also investigate whether the implementation of the Directive has led to a more efficient way of tackling environmental crime, through better cross-border cooperation, harmonised penalties and sentencing guidelines, specialised and trained courts and prosecutors and accompanying guidelines, specialised and trained police units and accompanying guidelines.
     
  • Coherence/Complementarity – The evaluation should be looking at coherence beyond strict environmental policies, and look at potential links with 2008/841/JH on the fight against organised crime, and 2014/42/EU on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union, the Serious and Organised Crime Threat Assessment (SOCTA) , the Commission Action Plan on environmental compliance and governance, the EU Action Plan against Wildlife Trafficking and the EU Roadmap towards eliminating illegal killing, trapping and trade of birds, as well as to agricultural (CAP), and marine and fisheries policies and legislation. In addition, the Commission should study synergies with decisions and actions within the framework of MEAs regulating environmental crimes.
     
  • EU-added value – The evaluation should not only look at the cross-border dimension of the criminal networks (and the impact the Directive has had on them) but also at the cross-border impacts of environmental crime (e.g. migratory species, water pollution, or trans-boundary ecosystems).
     

Regarding the methodology foreseen to gather information for this evaluation, and given the sensitivity of the issues at stake, we believe it is of utmost importance that the European Commission actively seeks testimonies of local authorities and of the civil society through workshops and interviews, and guarantee confidentiality. Seeing as organised crime can infiltrate every level of power, it is the only way to guarantee a truthful evaluation.

Regarding timing of the public consultation, we regret that it is likely to take place during the summer break, when the capacity to answer of most stakeholders is very limited. We hope that the Commission will take the necessary measures (extension of the consultation time) to ensure wide participation of all stakeholders.