The Czech Presidency of the EU Council has again attempted to reconcile the positions of Member States on the protection of the environment through criminal law, in a compromise on the draft directive on the subject, which was circulated on Sunday 25 September. A few days earlier, some ten Member States had submitted their comments on the most problematic articles.
These concern above all: - the level of maximum penalties for natural persons who have committed offences under the directive; - setting reference amounts for fines.
According to the Czech Presidency document, a compromise has been reached in recent weeks on two levels of penalties to be applied depending on the seriousness of the offences. Member States have agreed on maximum prison terms of 3 and 5 years. The Commission had proposed between 4 and 6 years, with the possibility of setting a maximum of 10 years when the offences committed deliberately caused the death of a person.
The Commission also distinguished between offences committed deliberately and those committed through negligence, for which the penalty was smaller.
Some Member States, such as Germany, see no need to provide for a lower level of penalties when the offence causing the death was committed by negligence. Berlin initially called for maintaining the maximum sentence level of 10 years, but said it was ready to move and join the proposal made by the Netherlands.
This consists of removing the reference to the maximum sentence of 10 years and retaining only the two possibilities of 3 and 5 years. This option seems to be the one with the most votes.
It also remains for Member States to decide on certain offences and their degree of seriousness in order to determine whether they should be subject to a maximum sentence of 3 or 5 years. This is the case for the shipment of certain waste in large quantities, the illegal recycling of ships, pollution by ships or the introduction of illegally cut timber on the market.
How to set fines for legal persons
The reference to the turnover of companies in setting the maximum fine continues to cause problems among the EU27. They are divided between those Member States that want to use the percentage of global turnover as a starting point for setting a fine and those that consider it inappropriate. This is the case, for example, in Hungary.
For this reason, the Czech Presidency proposes to set minimum and maximum fines to be imposed on legal persons. These amounts are still under discussion. Member States are expected to send their comments.
A working group meeting on the subject will take place on 28 September at the EU Council.
See the compromise of the Czech Presidency of the EU Council: https://aeur.eu/f/3a3
See comments from Member States: https://aeur.eu/f/3a4 (Original version in French by Léa Marchal)