Regional Workshop Environmental Crime/Environmental ... - RENA

The European Union’s Instrument for Pre-Accession Assistance (IPA) 

This project is funded by 

the European Union 

Regional Environmental 

Network for Accession 

(RENA) 

Regional Workshop 

Environmental 

Crime/Environmental Liability 

WG 1 – Activity 1.2 RISP 

Zagreb, Croatia (30 – 31 May 2011) 

A project implemented by a 

Consortium led by Hulla & Co. 

Human Dynamics KG

AGENDA 

RENA Activity 1.2 RISP 1 st Regional Workshop, May, Croatia 

Environmental Crime/Environmental Liability 

Regional Environmental Network for Accession 

First Regional Training under Activity 1.2 RISP 

Place: Ministry of Environmental Protection, Physical Planning and Construction, 

Republike Austrije 14, Zagreb, Croatia 

Date/Time: May 30 – 31, 2011 

Directive 2008/99/EC Environmental Crime 

Day 1, May 30 

Chair: Fritz Kroiss, Environment Agency Austria 

08:30 – 09:00 Registration, coffee 

09:00 – 09:30 Welcome. Introduction. Objectives of the workshop 

Representative of the EC Delegation to Croatia 

Ms. Biserka Puc, Croatian Ministry of Environmental 

Protection, Physical Planning and Construction, WG 1 Coordinator, Croatia 

Cynthia Whitehead, WG 1 Coordinator, Key expert, RENA 

09:30 – 10:15 History and main principles of the Directive 2008/99/EC on the 

protection of the environment through criminal law and Transposition 

in Austria 

Fritz Kroiss, Environment Agency Austria 

10:15 – 11:00 Minimum requirements to be implemented in national criminal law, 

main problems in the implementation and recommendations 

Octavian Stamate, DG Environment, European Commission 

11:00– 11:30 Coffee break 

11:30 – 12:15 Principles and general aspects of Environmental Crime 

Cynthia Whitehead, RENA 

12:15 – 12.30 Questions and answers, discussion 

12:30 – 13:30 Lunch 

13:30 – 14:15 Environmental Protection Through Criminal Law 

Effective Criminal Enforcement of Environmental Law 

Mihail Dimovski, Themis Network, Regional Environmental Center (REC) 

14:15 – 15:00 Detection of breach of compliance – the role of intelligence in 

investigation 

Karl Frauenberger, Criminal Intelligence Service Austria 

15:00– 15:30 Coffee break 

15:30 – 16:15 Case studies from Austria 

Karl Frauenberger, Criminal Intelligence Service Austria 

16:15 – 17:00 The role of criminal law in Croatian environmental enforcement 

practice, 

Round-table discussion of experience in RENA countries 

Lovel Petrovic, former member of the Legal Department of the Croatian 

Ministry of Environmental 

Protection, Physical Planning and Construction 

17:00 – 17:30 Wrap up 

1


Day 2, May 31, 2011 

Chair: Cynthia Whitehead, WG 1 Coordinator 

09:00 – 09:30 The role of Expert Witness in Court Proceedings 

Mihail Dimovski, Themis Network, Regional Environmental Center (REC) 

09:30 – 10:00 Environmental misdemeanour practice in Austria 


10.00 – 10.30 Discussion 

10:30 – 11:00 Coffee break 

11:00 – 11:30 The role of Misdemeanour offences in Croatian Enforcement Practice, 

followed by a round table discussion (how is the practice in the other 

RENA countries?) 

Anita Pokrovac Patekar, Croatian Ministry of Environmental 


11:30 – 12:00 Questions and answers, discussion 

12:00 – 13:00 Lunch 

2 nd Day, May 31 

Directive 2004/35/EC Environmental Liability 

13:00 – 13:30 The Environmental Liability Directive – Overview and State of Play 

Recommendations on the key issues to consider in implementing the 

Environmental Liability Directive 

Octavian Stamate, DG Environment, European Commission 

13:30 – 14.00 The Environmental Liability Directive – Overview and State of Play 

from the perspective of the member states 

Recommendations on the key issues to consider in implementing the 



14:00 - 14:30 Environmental liability from the perspective of the private citizen and 

companies 

Ike van der Putte, RENA 

14:30 – 15:00 Coffee break 

15:00 – 15.50 Environmental Liability enforcement in Croatia – institutional aspects 

and experiences 

Round-table discussion of experience in RENA countries 

Bojan Lalic, Croatian Ministry of Environmental 


15:50 – 16.00 Conclusions 

2


DAY 1 




1

Working Group 1 

Strategic Planning & Investments 

This Project is funded by the European Union 

Cynthia Whitehead, JurDr 

Coordinator 

Zagreb 

30 May 2011 

RENA Activity 1.2 RISP 1st Regional Workshop, 30-31 May 2011, Zagreb, Croatia 

Project implemented by Human Dynamics 

Consortium 

Activity 1.1 Support to Approximation Planning and Strategy 

Improve systems for environmental approximation 

1.Strategic planning for approximation in BiH & KO 

2.Support through training in the EU negotiation 



Consortium 

Activity 1.2 Support to implementation and enforcement – 

RISP 

& Activity 1.4 Public participation 

& Activity 3.4 Multilateral environmental agreements 

6 workshops on new European Union legislation 

Updating of the Implementation Handbook 

8 national/subregional activities upon request 

8 activities on support in implementation of MEAs upon 

request 

Managed by WG1 Coordinators 



Consortium 

1

Activity 1.5 Progress Monitoring of Approximation 

Continuation of 13-year programme 

- Entire Environment & Climate acquis 

- Annual schedule for reporting 


Activity 1.6 Assessment of draft Legal Acts 

- External Gap Assessment 

- Template for request 

At least one/country 


Activity 3.4 Implementation of 

Multilateral Environmental Agreements 

- Focus on: 

- Espoo & Helsinki Protocol (EIA, SEA) 

- Aarhus Convention 

- Basel Convention 


At least one/country or group of countries 




Consortium 


Consortium 


Consortium 

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WG1 Work Plan 

1.1 Workshop on Approximation Strategy & Planning 

Pristina, September 2011 

Regional Workshop on Accession Negotiation, October 2012 

--European Institute of Public Administration, Maastricht 

1.2 Workshop on Environmental Crime/Liability, May 2011, Croatia, 

--Austrian Environment Agency 

Workshop on REACH/CLP, Turkey, October, 2011 

--proposed: Ike van der Putte, Shen Qi 

Workshop on INSPIRE, 2-day Workshop, Montenegro, December, 2011 

National/Subregional Workshops or other support: 

--Template for requests 


WG1 Work Plan 

1.5 Progress Monitoring 2011, 2012: 

- Entire acquis 

- 15 June, Draft Reports 

- 1 September, Final Reports 

1.6 Gap Assessments 

- At least 1/country 


3.4 Implementation of Multilateral Environmental Agreements 

- 8 support activities 




Consortium 


Consortium 

3

History and main principles of Directive 2008/99/EC on the protection 

of the environment through criminal law and Transposition in Austria 

„RENA” training, 30 and 31 May 2011, Zagreb 

The need for environmental crime prosecution to 

support enforcement of environmental legislation I 

Transposition of EU Directives into national legislation as such does not always 

ensure their proper implementation in practice. In many EU Member States, there 

are weaknesses in environmental law enforcement. 

Some examples of weak points: 

- Waste – the need in certain Member States to end illegal landfilling, to put in 

place adequate networks of regulated waste facilities and to prevent illegal waste 

shipments 

- Industrial installations –significant numbers of industrial installations still have 

EC permit and related requirements outstanding. 

(EC Commission, COM(2008) 773 final) 


support enforcement of environmental legislation II 

Many of these weaknesses concern shortcomings inside the administration such 

as 

• lack of knowledge and awareness 

• shortcomings in administrative capacities, 

• weak national and regional enforcement policies and practices, 

• under-investment and delayed investment in necessary pollution-abatement 

infrastructure. 

But for other problems it is rather businesses who have to be blamed: Many of 

them want to escape obligations and are trying to find loopholes in the 

enforcement system of administrations. In many cases these law violations 

involve large financial interests and some of them can be classified as actions of 

organized crime. 


1 

© Mariada Design 

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support enforcement of environmental legislation III 

In most countries environmental crimes are not regarded as a priority topic of 

criminal investigation and this encourages the destruction of the environment 

by businesses who maximise their profits 

- by trying to avoid using modern technologies available to protect the 

environment, 

- by disposing of waste illegally, 

- by exploiting natural resources excessively 

- by smuggling and selling of protected species 

The historical background of the Directive 

� Before the initiative for EU legislation in the field of environmental crimes was 

taken, an International Convention of the Council of Europe was developed. 

� 04.11.1998: Adoption of a “Convention on the Protection of the Environment 

through Criminal Law” by the Council of Europe 

� 13 signatures but only 1 ratification (Estonia) 

-> the Convention has not entered into force and probably never will, as to 

much time has passed since the signature. 

Directive 2008/99/EC on the Protection of the 

Environment through Criminal Law I 

� After lengthy institutional discussions and two judgments of the European 

Court of Justice (see these later) on the extent of the Community's 

competence in the area of criminal law, the Council and the European 

Parliament agreed on the text of the Directive. 

� The Justice and Home Affairs Council formally adopted the Directive on 24 

October 2008. 

� The Directive had to be transposed by Member States by December 2010. 


4 

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Environment through Criminal Law II 

� The Directive lays down a list of environmental offences that must be 

considered criminal offences by all Member States, if committed intentionally 

or with serious negligence. 

� The Directive does not create a list of new illegal acts, but makes reference to 

existing EU environmental legislation 

� The Member States, by transposing this Directive, will have to revise their 

Criminal Codes (as currently done in Croatia) or introduce criminal sanctions 

in their environmental laws. 


Environment through Criminal Law III 

� The Directive only sets a minimum standard of environmental protection 

through criminal law to be adopted by the Member States. The Member States 

are free to maintain or introduce more stringent protective measures. 

� The Directive does not lay down measures concerning the procedural part of 

criminal law nor does it touch upon the powers of prosecutors and judges. 

�The Directive does not (yet) define minimum fines/sanctions to be prescribed 

in national legislation. This will be possible only now, as the Treaty of Lisbon 

has finally entered into force. The Directive might be reviewed in this respect in 

the future. 


Environment through Criminal Law IV 

� In its current form the Directive requires Member States (only) to ensure that 

committing of the offences is subject to effective, proportionate and dissuasive 

CRIMINAL sanctions. 

� Only for legal persons the sanctions can be of a NON criminal nature (can be 

treated as misdemeanor cases). 

� The weak point of the Directive is that it does not introduce minimum fines 

which would be necessary to secure a minimum common level of sanctions for 

criminal actions against the environment throughout Europe. – Why is this so? 


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8 

9 

3

First ruling of the European Court of Justice on the 

competence of EU in the field of environmental crimes 

= Clarification that there IS an EU competence regarding environmental crimes: 

“Although, as a general rule, neither criminal law nor the rules of criminal 

procedure fall within the Community’s competence, that does not prevent the 

Community legislature … from taking measures that relate to the criminal law of 

the Member States which it considers necessary in order to ensure that the rules 

which it lays down on environmental protection are fully effective” 

(Judgment of the Court of Justice in Case C-176/03, September 2005) 

Second ruling of the European Court of Justice on the 

competence of EU in the field of environmental crimes 

= Clarification that there is no competence for prescribing detailed minimum 

sanctions per criminal offence: 

“… By contrast, the Court finds that the determination of the type and level of the 

criminal penalties to be applied does not fall within the Community’s sphere of 

competence…” 

So the quantum of criminal penalties had to be left out of the scope of the 

Directive !! 

(Judgment of the Court of Justice in Case C-440/05 of 23 Oct 2007) 

Eventual future amendment of the 

Environmental Crimes Directive 

With the entering into force of the Lisbon Treaty the legal basis for future 

definition of minimum sanctions (e.g. “minimum one year prison”) is now in 

place: 

“If the approximation of criminal laws and regulations of the Member States 

proves essential to ensure the effective implementation of a Union policy in an 

area which has been subject to harmonisation measures, directives may 

establish minimum rules with regard to the definition of criminal offences and 

sanctions in the area concerned. “ 

(Art. 83 par 2 Treaty on the Functioning of the EU) 


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11 

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Detailed contents of the Environmental Crimes Directive 

Art. 1: Subject matter: 

Establishing measures on the protection of the environment through criminal law 

Art. 2: Definitions: 

lit. a: „unlawful“: meaning infringing (Community or national) legislation aiming at 

the protection of the environment 

lit. b: protected wild fauna and flora species 

lit. c: habitat within a protected site 

lit. d: legal person 

What are the elements of an environmental offence in 

the sense of Directive? 

� Conduct described in Article 3 lit a-i 

� Unlawful (violation of environmental legislation) 

� committed intentionally or with at least serious negligence 

Types of environmental criminal offences I 

� the discharge, emission or introduction of a quantity of materials or ionising 

radiation into air, soil or water �� death or serious injury or substantial damage 

� the collection, transport, recovery or disposal of waste �� death or serious 

injury or substantial damage 

� the shipment of waste (non-negligible quantity) 

� the operation of a plant in which a dangerous activity is carried out or in which 

dangerous substances or preparations are stored or used �� death or serious 

injury or substantial damage 


13 

14 

15 

5

Types of environmental criminal offences II 

� the production, processing, handling, use, holding, storage, transport, import, 

export or disposal of nuclear materials or other hazardous radioactive 

substances �� death or serious injury or substantial damage 

� the killing, destruction, possession or taking of specimens of protected wild 

fauna or flora species (negligible quantity + negligible impact) 

� the trading in specimens of protected wild fauna and flora species or parts or 

derivatives thereof (negligible quantity + negligible impact) 

� the causing of a significant deterioration of a habitat within a protected site; 

� the placing on the market or use of ozone-depleting substances. 

Further provisions 

� Art. 4: Inciting, aiding and abetting 

� Art. 5: Penalties �� effective, proportionate and dissuasive criminal penalties 

� Art. 6: Liability of legal persons 

� Art. 7: Penalties for legal persons �� effective, proportionate and dissuasive 

� Art. 8 and 9: Transposition and Entry into force 

� Annexes A and B 

Liability of legal persons 

� Legal persons must be held liable for acts committed for their benefit, if 

offences committed for their benefit 

� by persons representing the legal person 

� or person taking decisions 

� or exercising control within the legal person 

� Liability of legal persons does not rule out liability of natural persons acting 


16 

17 

18 

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Transposition of the Directive in EU Member States 

� 2009/2010: 4 Experts´ Meetings on Environmental crime and Ship-source 

pollution in Brussels 

� Difficulties: 

� vague notions: substantial damage, non negligible quantity, negligible 

impact 

� Effective, proportionate and dissuasive penalties 

History of Environmental Crime provisions in Austria 

� in the 1950s: 

� prevention of pollution of fountains and drinking water 

� since then development of further provisions 

� further development based on international conventions 

� Typical feature of some environmental crime provisions: protection of 

environmental media independent from an endangerment to human beings, 

animals and plants 

� Transposition of the Convention on the Protection of the Environment through 

Criminal Law already done some years ago, further small amendments needed 

to fully meet the requirements of the Directive - > law drafting still ongoing 

Art. 180 to 183 of the Austrian Penal Code 

� Impairment of the environment (Art. 180, 181) 

� Heavy impairment due to noise (Art. 181a) 

� Endangering the environment by the treatment and shipment of waste 

(Art. 181b and c) 

� Endangering the environment due to the operation of a plant (Art. 181d and e) 

� Endangering the fauna or flora (Art. 182) 

► committed by intent or by negligence (except noise and fauna/flora: only 

when comitted with intent) 


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20 

21 

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Further criminal offences related to environment 

� endangerment by nuclear or radioactive material 

� endangerment by explosive material 

� preparation of an offence committed by nuclear, radioactive or explosive 

material 

� endangering public security 

� production and distribution of weapons of mass destruction 

� torturing of animals 

- >regulated in other sections of the Criminal Code 

� law against the trafficking of protected fauna species 

- > regulated in a special law 

Structure of criminal offences regarding environment 

� In Austria criminal offences regarding the environment can either be: 

� Result based crimes -- >> criminal liability depends 

on a certain (negative) result 

� Abstract-concrete endangerment -- >> solely endangerment causes 

criminal liability plus higher punishment if negative result 

� Accessoriness to administrative law: Criminal liability depends on violation of 

administrative law �� Permission by administrative authorities �� lawful 

impairment of the environment 

Advice to companies: Know the rules 

� Ignorance is no excuse, be aware of all obligations defined in 

� laws 

� by-laws 

� Legally binding notices 

� Individual acts of authorities (e.g. permits, inspector´s decisions) 

� directly applicable regulations of the European Union 

Attention: Regarding environmental liability (= obligation to pay for the clean up of 

the damage) often it does not help to respect all administrative obligations, but 

all measures have to be taken to prevent the damage (details depending on 

national legislation) 


22 

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8

Dr. Fritz Kroiss 

Environment Agency Austria 

fritz.kroiss@umweltbundesamt.at 

www.umweltbundesamt.at 


25 

9

Directive 2008/99/EC on the 

Protection of the Environment 

through Criminal Law 


EUROPEAN COMMISSION 

Directorate General for Environment 



Zagreb, 31 May 2011 


Environment through Criminal Law 

Background 

• Cross border nature and effects of environmental 

offences 

• High profits and law risk of detection 

• Large disparities in offences and sanctions in the 

Member States 

• Sanctions overall not sufficiently strict to be a real 

deterrent 

• Role of the EU environmental criminal law 

- Promoting better implementation of EU environmental legislation 

- Ensuring effective protection of the environment 

- Creating level playing field in the EU 



Genesis and legal basis of the Directive 

• European Council of Tampere 1999 (definitions and 

sanctions in this field required) 

• Proposal for a Directive of 2001 based on Article 175 ECT 

• Framework Decision 2003/80/JHA based on Article 29 and 

31 (e) TEU 

• New proposal for a Directive presented by the 

Commission in February 2007 

• Formal adoption of Directive 2008/99/EC in November 

2008 

1




Judgment of the European Court of Justice 

of 2005 (C-176/03) 

• Annulment of the Framework Decision 2003/80/JHA 

(wrong legal basis) 

• Criminal competence in the first pillar under the 

following conditions: 

- Existence of a certain EC policy 

- Aim: combating serious criminality in this area 

- Necessity and effectiveness of such an action 



Judgment of the European Court of Justice 

of October 2007 (C-440/05) 

• Confirmation of the Community`s competence to adopt 

criminal law related measures where this is essential 

for the implementation of one of its policies 

• But: no competence to define nature and level of 

criminal sanctions 



Directive 2008/99/EC: objective and general 

obligations for the Member States 

• Set out minimum requirements relating to criminal law in 

the Member States in order to ensure better protection of 

the environment 

• The proposed offences will have to be considered criminal 

offences in the Member States 

• Inciting, aiding and abetting must be punishable too 

• Member States must put in place dissuasive, 

proportionate and effective criminal sanctions 

2




Definition of criminal offences 

• The list of offences is a minimum list 

• All offences must be committed intentionally or by serious 

negligence 

• All offences must be unlawful acts, i.e. breach of EU 

legislation listed in the annexes or national legislation 

implementing it 

• Large number of indefinite terms: substantial damage, 

negligible quantity, negligible impact, dangerous activity, 

etc. 



Liability of legal persons 

• Legal persons must be held liable for acts committed 

for their benefit, if offences are committed 

- by persons representing the legal person 

- or person taking decisions on behalf of the legal person 

- or exercising control within the legal person 

• Liability of legal persons does not rule out liability of 

natural persons acting 

• The responsibility of legal persons can be of criminal or 

other nature 



Implications of the Lisbon Treaty 

(Article 83 II TFEU) 

• Integration of first and third pillar 

• Specific legal basis for minimum rules with regard to the 

definition of criminal offences and sanctions if essential to 

ensure effective implementation of a Union policy in an 

area which has been subject to harmonisation 

3




Implementation by Member States 

• Member States should have adopted the necessary 

measures to conform their criminal law with the directive 

before 26 December 2010 

• Member States should have informed the Commission of 

these measures 

• The directive does not touch the powers of prosecutors 

and judges, nor does it regulate criminal law procedure 



Implementation – major challenges 

• The use of vague notions 

• The issue of penalties 



Implementation – VAGUE NOTIONS 

• COM does not intend to provide strong normative 

indications for two reasons: 

i) Directive is binding only as far as the results are concerned 

ii) Substantial differences persist between Member States 

• Optimal solution depends on national context and existing 

legal culture 

4





• Substantial damage – art 3 (a), (b), (c) 

• (Non) negligible quantities and impacts – art. 3 (c) (f) (g) 

• Dangerous activities and substances – art. 3 (d) 

• Significant deterioration – art. (h) 




• The notions can be found in documents that preceded the 

Directive 

• The Commission does not expect literal transposition, but 

an interpretation in light of the national traditions and by 

reference to other directives 

• MS have a considerable level of discretion in the 

interpretation; but they should take into account the broad 

context of the European environmental law 




Available sources 

Substantial damage - Explanatory Report Council of Europe Convention (see 3.1); 

examples in Member States environmental criminal law; Annex I to the 


emission limit values and quality standards 

Dangerous activity - Explanatory Report Council of Europe Convention; Seveso Directive; 

IED Directive 

Dangerous substances - Article 2(29) Framework Water Directive; List I and II Directive 

76/464; other directives 

Significant deterioration of habitat - ECJ case law on Habitats Directive 

Negligible quantity or impact - either skip completely (enlarging criminal liability; no 

definition needed 

Deterioration of the quality of water -either skip completely (enlarging criminal liability); 

no definition needed; eventually: Framework Water Directive 

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Implementation – PENALTIES 

• The question of what is “effective, proportionate and 

dissuasive” 

• No strong normative indications, but only some guidance 

in the implementation process is needed, based on 

doctrine and practical experiences in some MS 

• No “one size fits for all” solution at the level of EU; 




• Proportionality – relation offence (value) and penalty 

(size and type) 

• Dissuasiveness – general (legislative) and individual 

level 

• Effectiveness – deterrence and restoration / prevention 

harm 




• Criminal vs. administrative penalty – cases not prosecuted 

through criminal procedure could benfit from imposition of an 

administrative fine 

• Inciting, aiding and abetting 

• Mens rea (e.g.: intention or at least serious negligence) 

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• Type and magnitude of the penalties 

• Characteristics of the country 

• Enforcement 



For more information please visit our website: 

http://ec.europa.eu/environment/crime/index.htm 

Thank you for your attention! 

7

Environmental Crime in Europe 

and the World 

Principles and General Aspects 

Cynthia Whitehead, JurDr 

Topics 

• What are environmental crimes? 

• What type of crime is involved? 

• Who are the victims? 

• What groups and structures? 

• What are the drivers? 

• International legal context? 

• What actions are needed? 

National Environmental Crimes 

• ILLEGAL DISCHARGES 

• EXPOSURE OF WORKERS, PEOPLE, 

ENVIRONMENT 

• ILLEGAL MATERIALS 

• ILLEGAL IMPORT 


1

International Environmental Crimes 

• ILLEGAL HARVESTING & TRADE 

• Wildlife 

• Ozone-depleting substances 

• Timber 

• Fishing 

• Plants, genetic material 

• Greenhouse gas allowances 

• ILLEGAL TRANSPORT & DISPOSAL 

• Hazardous chemicals 

• Wastes 

Predatory Crime vs. Enterprise Crime 

• Theft, robbery, direct injury to individuals 

vs. 

• Production and distribution of goods and 

services that are classified as illegal. 

Who are the victims when an 

economic crime is consensual? 

• Impact on humans and the environment can 

be: 

• Indirect 

• Long-delayed 

• Difficult to identify the cause(s) and perpetrators 

• Affect society as well as individuals 


2

Three Parameters to define the 

crimes and the criminals 

• Value 

• Volume 

• Risk 

Different calculations 

• Animal/plant souvenirs 

• Electronic waste disposal 

• Rhesus monkeys for laboratories 

• Ozone-depleting substances 

• Banned products 

• Timber 

• Fish species 

Branching out 

Organised 

crime crime 

Illegal 

fishing 

Narcotics 


Poaching 

Illegal 

logging logging 

3

Breeding a culture of lawlessness 

and corruption 

• Breakdown of law enforcement 

• Bribing of government officials 

• Breakdown of respect for law 

• Destruction of land, water, communities 

In Europe 

• 3000 recorded instances of illegal dumping 

from ships in 2009 


“Around 52% of the escrap 

arisings in the EU is 

not accounted for and is 

probably exported.” 

- Rosalinde Van der Vlies, DG 

ENV, 11 February 2011, 10th 

International Electronics 

Recycling Congress 

4

UK control of illegal waste exports 

in 2009 

• Waste exports team made intelligence-led inspections on 340 

containers 

• 98% of those targeted were found to be illegal 

• 7,000 tonnes of waste prevented from being exported 

illegally 

• 16 requests to return waste, resulting in the repatriation of 

about 3,800 tonnes of waste 

• 18 active investigations by November 2010 

• First successful prosecution for the illegal export of illegal efrom 

UK to West Africa : Nine people were charged 

What are the Drivers? 

• Demand exceeds Supply 

• High Profit vs. Low Risk 

• Institutional & Regulatory Failure 

• Border controls, Inspection 

• Ineffective regulatory approaches, Weak enforcement 

• New legal categories 

• CITES, Montreal Protocol, Basel Convention 

• Law of the Sea Convention 

• Organised criminal groups branching out 

• Variety of interests: Producers, transporters, 

suppliers, consumers 

Trade Permitting – a license to fraud 

• False Legitimacy 

• CITES – label animals as “captive-bred,” lack of 

producer controls on number of trade permits 

• Laundering origins of fish 

• Over-value waste, sham recycling, mislabelling 

• Lack of common licensing system for ODS trading 


5

Environmental crime 

and human rights 

Crimes against humanity? 

“A human action that causes great harm to a lot 

of people over a long period of time” 

“At the end of the day, these crimes start at a specific spot under 

the jurisdiction of a specific local authority. The local authorities 

need to have a fully functioning system to prepare for them. 

They need monitoring systems, assessment, emergency 

response and a solution.” 

Green Criminology: Combatting Crime Against the Environment, Dr. 

Danny Gymshi, Head, Criminology and Law Enforcement Institute, 

College of Management Academic Studies, Israel 

Priorities for Action 

• State enforcement must be well-funded 

• National + International enforcement 

• Controls must affect supply and demand 

• Comprehensive data, reporting 

• Transparency 

• Public education to create responsible 

culture 

• International cooperation, “long-arm” 

enforcement 


6

US EPA Enforcement 

Sources 

Royal Institute of International Affairs, International Environmental Crime, the Nature and Control 

of environmental black markets, by Gavin Hayman and Duncan Brack, London: 2002. 

Eleonore Mullier, “The Emergence of criminal competence to enforce EC environmental law: 

Directive 2008/pp in the context of the case law of the European Court of Justice”, 2010 

Cambridge Student Law Review, pp. 94-116. 

REC, Illegal Logging in South Eastern Europe, 2010. 

http://oceana.org/index.php?id=758&L=0 

Y.A. van der Meer, Combating Environmental Crime in an International Context, National Criminal 

Intelligence Service, The Netherlands, http://www.inece.org/2ndvol2/VDMEER2.html 

(1991?). 

euobserver.com, “EU drags its heels over conflict minerals”, by Andrew Willis, 15 April 2011 

(Photo: Julien Harneis ). 

Management World, “Illegal WEEE Exports from Europe Spark Debate”, 11 February 2011, 

http://www.waste-management-world.com/index/display/article-display.articles.wastemanagement-world.recycling. 

The Jerusalem Post, “Environmental offenses are crimes against humanity”, by Ehud Zion 

Waldoks, 28 May 2010 


7

REGIONAL ENVIRONMENTAL NETWORK FOR APPROXIMATION 

Zagreb, 30-31 May, 2011 

Environmental Protection Through Criminal 

Law 

Effective Criminal Enforcement of 

Environmental Law 

Mihail Dimovski 

Perception of 

Environmental Crimes 

• Serious growing international problem 

• Perceived as “ victimless” and with no visible consequences often 

fails to receive adequate response from governments, enforcement 

community and the public 

• Low significance in some countries resulting with low profile 

enforcement structures compared with other crimes 

• Statistical issues: usually perceived as economic crime 

• High level expertise required for enforcement authorizes, 

prosecutors and judges 

• Since mostly victimless and with no witness , it leads to lack of 

reporting 

Environmental crimes – Is 

it different then other types 

of crimes ? 

• Conduct of environmental crimes defendant not much 

different not less serious then those of “white collar or 

street crime” 

• Acts usually wilful, deliberate, rational and well thought 

• Little mitigating circumstances such as : provocation, 

misperception or acting of passion 

• Perceptive defence is offered in form of “ compliance is 

too expensive”- government cheated and public 

betrayed 

• Individuals motivated by high financial insentives 


1

Environmental crimes complexity 

• There is no “ pure environmental crime” case: usually 

involves offences like “ fraud; false statements; false 

claims; conspiracy” 

• Beneath the surface of environmental laws there is an 

infrastructure of regulations and procedures – need to 

know what goes into prosecution 

• General prosecutor unfamiliar with complexity of 

environmental laws and its technical aspects has little 

time to prepare before the trial 

Recognition of environmental crime 

• Recognition as genuine criminal offences is more 

problematic then other types of crime 

• Internationally linked with other crime types e.g. money 

laundering or drugs trafficking 

• Detection is difficult and in many cases relies on chance 

observation 

• Difficult to determine damaging impact which affects the 

whole society 

• Typically seen as low priority for enforcement agencies 

Detection and Prosecution of 

Environmental Crime 

• European data on detection and prosecution of 

environmental crime show that the likelihood that a violation 

ends up in court and is sanctioned is extremely low 

• For Belgium, the average probability of being apprehended 

and prosecuted for a violation is less than 1%, meaning that 

only one in hundred firms that are in violation will be 

detected and prosecuted 

• Similar data is from the UK : on average the prosecution 

rate for pollution incidents is less than 5% while serious 

incidents have a much higher prosecution rate. 


2

Case three stages to reach criminal justice: 

• Pre – trial investigation 

• Trial 

Barriers for effective criminal 

enforcement of environmental law 

• Sentence execution 

Reporting Environmental Crime 

• Issues with reporting infringements by institutions or 

society due to : 

– Complex and diverse environmental legislation 

– Environmental crime not visible as might seem 

– Difficulties to determine whether the harm to the 

environment is big enough to be reported to 

prosecutor 

– Overlapping responsibilities of the authorities and 

institutions 

– Lack of clear victim due to difficulties to connect the 

specific activity 

Barriers in pre-trial investigation 

• Frequent discontinuation of environmental criminal pre-trial 

investigations 

• Handling complex ( and potentially incomplete) environmental 

legislation- prosecutor needs to determine whether the action is 

criminal act or misdemeanor 

• Determining monetary value on the caused environmental act 

• Environmental criminal legislation not always can cover all 

activities that can cause harm to the environment 

• Lack of knowledge ( police and prosecutors) in applying 

environmental legislation 

• Difficulties finding the responsible , in particular if act committed 

by legal person 


3

Length of pre-trial investigation 

Difficulties to ensure high quality crime scene 

examination and swiftness of the criminal process due 

to : 

– Delays between occurrence of the offence and 

initiation of pre-trial investigation – environmental 

crime not so visible 

– Slow environmental damage assessment procedure 

– Lack of qualification among the public experts and 

HR 

– Incomplete primary crime scene examination and 

loss of evidence in case of repeated examination 

Criminal trial stage- Court hearing 

– Environmental legislation can not cover all possible 

cases 

– Doubts whether administrative sanction is more 

appropriate 

– Concepts like “ major harm” , serious threat to large 

number of people “ exist while norms need to be 

interpreted by judges according to particular 

circumstances 

– Lack of experience and expertise in the 

environmental field 

– Problem of identifying the victim – environment is a 

concept not a person and needs representation 

from authorities 

What can be done to improve criminal 

enforcement 

– Strengthen legislation and fix legal “ loopholes” 

– Strengthen the initiation of environmntal criminal 

procedure: 

• higher control over discretion of institutions responsible 

for criminal reporting 

– Fixing overlapping authorities of institutionsimprove 

cooperation 

– Raising pubic awareness 

– Raising status of environmental crime- rather 

complex task 

– Increasing expertise of enforcement officials and 

judiciary 


4

THANK YOU FOR YOUR 

ATTENTION 


5


Environmental Crime / Environmental Liability 

Zagreb, May 30-31, 2011 

Intelligence - Investigation 

Crime – delict - appearences 

control-related offence type 

Environmental Crime, Corruption, Drug Crime 

cases entirely rely on police action – 

proactive approach 

seldom reports from victims – 

victimless offence 

Indications/Reasons for Starting a Criminal 

Investigation 

In Relation to Environmental Crime: 

► Discovery of serious pollution and/or violation of 

environmental laws 

► Allegations from administrative authorities 

► Allegations from the public 

► Performing routine checks 

► Informants 

► Indications from earlier investigations 


1

with what 

7 golden W 

(w)how 

why 

what 

who 

where 

when 

Role of the Law Enforcement Officer 

When encountering an environmental incident: 

► stop/prevent environmental impact (officer and public safety!) 

► emergency treatment to any injured persons 

► secure the crime scene and keep public away (warning – evacuation) 

► serious cases call in experts from crime scene examination, accident 

containment and site remediation 

► document the crime scene and collect evidence of the possible crime 

committed 

► further investigation to document the crime committed 

► identify/possibly arrest offender (in accordance with country 

procedures) 

Objectives of Criminal Investigation 

To provide legal and convincing Evidence that the rules have 

been violated and by whom. 

► Insight into which rules and regulations have been violated 

► Who violated the law 

► Seriousness of the violation (as regards Environment and 

Criminal Law) 


2

Objectives of Crime Scene Examination 

► To find the cause of the incident and to ascertain if a crime 

has been committed 

► To collect and preserve evidence of the crime 

► To identify the possible suspect and to provide evidence of 

his guilt 

Possible Investigative Measures during the 

Investigation 

► Check with the Regulatory Authorities concerning what 

kind of permits have been issued to the company and what 

requirements have to be met 

► Interviewing witnesses, victims, complainants 

► Search of company premises (e.g. company records) to 

find things that could serve as evidence of the crime 

committed (e.g. contracts, accounts, documents) and 

search of other places where evidence may be collected 

(e.g. vehicles, private residences) 

► Seizure of evidence according to national legislation 

► Interrogation of suspects 

Possible Investigative Measures during the 

Investigation 

► Undercover surveillance of suspects 

► Undercover operations 

► Arrest of suspects depending of the seriousness of the case 

and according to the procedures in each country 

► Analysis of any samples taken 

► Tracing of assets obtained by illegal activity for possible 

confiscation according to national legislation 

► International Rogatory Commission/Letter of Request in 

international criminal cases 


3

Karl Frauenberger 

Criminal Intelligence Service Austria 

Environmental Crime Unit 

Email: karl.frauenberger@bmi.gv.at 


4


Environmental Crime / Environmental Liability 

Zagreb, May 30-31, 2011 

Case Study 

Illegal disposal of hazardous waste 

Pollution of soil and water 

Caused by a butcher shop 

summary 

� Hint concerning a butcher shop disposing slaughter 

waste illegal – burying in field, discharging into creek 

� Investigation by administrative authorities 

� Investigation by police 

� Accusal by prosecutor 

� Sentenced by judge 

� Report to the local 

administrative authority 

concerning 

� Burried solid slaughter waste 

� Disposal of liquid slaughter 

waste and blood into creek 

through storm water sewer in 

the night time and on rainy 

days 

� Illegal washer system for cattle 

trailers and illegal disposal of 

washing water into creek 

� Caused by the company Josef 

T. & Sons – butcher shop 

hint 


1

Investigation by administrative authorities 

concerning illegal disposal of liquid waste 

� Taking undercover samples – 6 samples within a 

period of 2 weeks at the location where the storm 

water sewer enters the creek. 

� Analysis of the samples 

COD – chemical 

oxygen demand 

measurement normal 

9046 mg/l 5 mg/l 

Phosphor 116 mg/l 0,5 mg/l 

Nitrate 320 mg/l 0,02 mg/l 





Because of the analysis results further steps where taken: 

� Coloring and Smoking test of the storm water sewer 

Findings: 

� 2 illegal direct leading-ins 

1. Company court yard – illegal washings 

2. Illegal washing system - garage 

� 1 illegal indirect leading-in 

1. Slaughter blood is beeing pumpt into 3 cesspools. 

These where leak. 


2

Immediate measures to be taken 


� Court yard is not to be used for washings 

� The storm water sewer opening near loading area is to 

be put leakproof 

� No illegal washings of trailers at the washing system – 

garage 

� 3 cesspools are not to be used untill put leakproof by an 

expert. 


concerning illegal disposal of solid waste 

� Due to an on-site inspection 40 m³ solid slaughter 

waste concerning stomach and intestinal contents, pig 

bristles, claws and ears, where found on a place without 

solid floor. 

� Josef T. wanted to put these wastes onto fields. 

� According to EU Regulation 1774/2002 these wastes are 

catagory III and are not allowed to be put onto fields. 

� Josef T. declared putting such wastes on to fields in the 

past. 

Measures to be taken 

concerning illegal disposal of solid waste 

� Order for Josef T. to dispose 

the waste to an appropriate 

company. 

� However only 8,86 t where 

disposed properly. The rest 

was put onto fields. 


3

illegal disposal of solid waste 

Possible Criminal Code concern 

Because of the findings and the 

behaviour of Josef T. the local 

administrative authorities 

informed the Criminal Police – 

Environmental Crime Unit of 

Lower Austria. 

� Proof of illegal disposal of 

liquid waste into creek – 

chemical and biological 

damage of the natural 

composition of the water 

Investigation by the Police 

�� With a so called Occurrence Report the prosecutor 

was informed of the case and asked for a house search 

warrant 


4

Investigation by the Police 

Coordinated House Search 

� Police – Criminal Police – Environmental Crime Unit, 

Computer IT Unit, Local Police Station 

� Administrative Authorities – Local Administrative 

Authority, Experts for water/technical water, veterinary 

and construction 


5

Findings and Investigation by the Police 

� During and after the house search Josef T. was 

questioned as defendant 

� Questioning of witnesses 

� Securing of evidence 

� Electronical Book Keeping proofed no disposal for years ! 

� Final report 

court procedure 

Josef T. fully admitted and was sentenced to 

3 months imprisonment 


6

Thank you very much 

Karl Frauenberger 

Criminal Intelligence Service Austria 

Environmental Crime Unit 

Email: karl.frauenberger@bmi.gv.at 


7

Environmental Crimes in 

Croatian legislation 

Lovel Petrović 

Some basic principles of Criminal law 

� Nullum crimen, nulla poena sine lege 

� Nullum crimen sine lege stricta 

� Nullum crimen sine lege certa 

� Unified principle: all crimes are sanctioned in 

one single law- A criminal code 

There are exceptions: some crimes are sanctioned in special laws, i.e. the 

crimes against safety of stock market transactions. 

Environment is not the case. 

Criminal law in Croatia 

Criminal Code 2009 

� Passed on in 1998 

� Merged two federal 

laws of former 

Yugoslavia (the general 

part, and the special part with 

provisions on criminal acts) 

� Has undergone many 

amendments depending 

on the situation 

� Has shown many gaps 


Draft Criminal Code 2011 

� Needed for EU 

negotiations 

(completing chapter 23) 

� Drafted by many legal 

theoreticians and 

practitioners 

� Currently in public 

debate 

1

Renovation of Criminal law 

(Eight goals) 

1. Harmonisation with international documents (EU 

acquis, UN documents, Council of Europe Conventions, case law of 

the ECHR) 

2. Modernisation based on best practices of other 

countries 

3. Harmonisation with other Croatian regulations 

(Criminal procedure, misdemeanours, other laws) 

4. Elimination of contradictions and of declaratory and didactical 

provisions (rationalisation of the text) 

5. Better systematisation of chapters both in general and special 

part of the law 

6. Improving the position of victims 

7. Improving the effectiveness of the criminal sanctions system 

8. Reforming the special part of the law 


(Chapter 19 in the existing law) 

Real environmental crimes: 

� Environmental pollution (Art. 251) 

� Endangering the environment by 

noise (Art. 251) 

� Endangering the environment by 

waste (Art. 252) 

� Illegal construction (Art. 252a) 

� Importing of Radioactive or Other 

Hazardous Waste Into 

the Republic of Croatia (Art. 253) 

� Endangering the Environment with 

Installations (Art. 254) 

� Devastation of forests (Art. 261) 

� Illegal exploitation of mineral 

resources (Art 262 a) 


Crimes that are not really 

environmental: 

� Spreading diseases of plants and 

animals (Art. 255) 

� Manufacture of harmful substances 

for treating animals (Art. 256) 

� Veterinarian malpractice (Art. 257) 

� Illegal hunting (Art. 258) 

� Illegal fishing (Art. 259) 

� Torturing an animal (Art. 260) 

� Endangering life and property by 

dangerous public acts or means 

(Art. 263) 



Serious crimes against the Environment 

(Art. 262) 

Most of the mentioned crimes with serious 

consequences: 

� Serious bodily injury 

� Serious deterioration of health of many persons 

� Death of one or more people 

� Long-time and unrecoverable changes to the 

environment due to the pollution 

� Environmental accident 

2



Discrepancies with the Environmental Crimes Directive: 

� No crime for ozone depleting substances 

� The scope of the illegal shipment of waste crime is too narrowonly 

when it is dangerous for the environment it is punishable 

� Need to strictly distinguish protecting the environment from the 

protection of the life/body of a person and property (Art. 263 of 

the existing law is not really applicable here) 

� Non-compliance with nature protection system (current provisions 

give only partial protection to protected areas) 

De lege ferenda 

The Draft of the new Criminal Code 2011 

� Rationalisation of the provisions (Environmental pollution, 

Endangering the Environment with devices) 

� Renovation of the crime “Endangering the 

environment by waste” by including shipment of waste in the 

text- the provision invokes directly the 1013/2006/EC Regulation on 

shipment of waste 

� Crime “Devastation of forests” now includes 

devastation of protected plants 

� Provision on serious crimes is renovated and 

harmonised with environmental law (i.e., introduction of 

the term “major accident”) 



New crimes 

- Damaging the ozone layer 

- Endangering the environment with ionizing 

substances 

- Endangering the environment with noise, vibrations 

and non ionizing radiation 

- Destruction of protected animals 

- Illegal entering of wild species into the environment 


3



Possible shortcomings: 

� Erasing the crime “Importing of Radioactive or Other 

Hazardous Waste Into the Republic of Croatia “ 

� Still no general provision to sanction damages to the 

habitats within the protected site 

� Clearer distinguishing protection of the environment 

from protection of body/life and property of a person 

� Take the quasi-environmental crimes into a separate 

head 



Doubts and challenges 

Effective, proportionate, dissuasive penalties 

� New system of fines: daily amounts (between 20 and 

10000 kn), for crimes with selfish reasons 500 daily 

amounts- maximum fine is 5000000 kn 

� Should interweave with the environmental liability 

regime (remediation of the environmental damage- the 

polluter pays principle) 

� Careful assessment of proportionality 



Doubts and challenges 

Ne bis in idem (ECHR case Maresti against Croatia) 

� Dangerous overlapping of criminal and misdemeanour law 

� Two procedures for the same situation are contrary to the 

Constitution and to the European Convention on Human Rights 

and Fundamental Freedoms 

� Requires a deep and thorough analysis of Environmental 

Protection Act and sectoral laws in relation to the Criminal Code 


4

Top environmental crimes (according to State 

Attorney and Ministry of interior statistics): 

1. Illegal Fishing 

2. Illegal Hunting 

3. Illegal Construction 

4. Illegal Exploitation of Mineral Resources 

Implementation is what really counts! 



5


DAY 2 




2



The Role of Expert Witnesses in Court Proceedings 

Mihail Dimovski 

What is an expert witness ? 

• An expert has been defined as ‘a person with the status of an 

authority (in a subject) on account of a special skill, training or 

knowledge 

• An expert witness makes the subject a matter of particular study, 

practice or observation: 

– An expert witness should have a particular and special knowledge of 

the subject 

– An expert witness might not necessarily be an expert in all aspects of 

the issues which require to be considered. 

– In certain occasions an expert has to rely on the knowledge of others on 

a matter outside his own particular expertise in order to form a view on 

the matter which he is asked about 

Why expert witnesses? 

• The Court should not use its own expert knowledge, 

even in cases where an expert witness opinion is not 

needed 

• Expert opinion of the Court can not be considered as 

evidence 

• The facts reached by deployment of Court expertise are 

not determined and justified 

• Although the Court is deprived to use its expert 

knowledge (except legal one), this does not exclude the 

need for technical training 

” 


1

Who can be expert witness? 

• Individual expert / permanent 

expert witness 

• Institution or governmental body 

(parties need to be informed who 

in particular will be providing 

expert opinion) 

• Individual who is not a 

permanent expert witness upon 

decision of the Court 

Reasons for consulting an expert 

witness in litigation 

• Circumstances where a court should seek assistance from someone 

with established expertise in a certain area to help with the interpretation 

of the evidence. 

• Expert witness might be used to comment on the strengths and 

weaknesses of the parties’ respective positions, or to act as a sounding 

board to test different theories 

Expert witness should not articulate the client’s position 

but rather assist the court with the information about the 

specialist area which is necessary before a decision can be 

made. 

Ordinary Witness Function 

• To give evidence in respect of what the witness has seen or 

heard. 

• Document examiners may give evidence about documents 

which came into their possession and what they saw on 

those documents. 

• Pathologists may give evidence about their observations of 

tissues or dead bodies. 

It is important to bear in mind that in this respect, the 

expert is no different from any other witness 


2

Expert Witness Function 

• Assumption :observations of the expert witness are in some way 

more reliable than those of other witnesses. 

• The distinctive role of the expert witness in proceedings is with 

regard to their ability to express an opinion which is not the case 

with ordinary witness 

Ordinary witness may say that they smelled “strong odor”, but it 

would not be acceptable for that witness to say that they smelled “ 

ammonia”, for that brings with it a greater element of interpretation. 

When will the Court request an 

expert witness opinion? 

• In cases where this is prescribed by 

Criminal Procedure Act : 

– In cases involving death or the 

suspicion that death is caused by 

criminal activity 

– Suspect poisoning 

– Physical injuries 

– Suspected mental illness, criminal 

insanity and diminished capacity 

• When the Court determines the 

need for expert witness opinion 

Duties of Expert Witness 

“... is to furnish the Judge or Jury with the 

necessary scientific criteria for testing 

the accuracy of their conclusions, so as 

to enable the Judge to form their own 

independent judgment by the 

application of these criteria to the facts 

proved in evidence. The scientific 

opinion evidence, if intelligible, 

convincing and tested, becomes a 

factor (and often an important factor) 

for consideration along with the whole 

other evidence in the case, but the 

decision is for the Judge ..” 


3


• The primary duty/obligation of the expert witness is to the court 

and not to the client. 

• The opinion the expert witness expresses should be within that 

individual’s area of expertise 

• Should present accurate and complete information, taking into 

account all relevant matters and not taking into account irrelevant 

matters 

• The factual information underlying any opinion evidence must be 

based on actual knowledge or on an identifiable source of 

information 

• The opinions should be the expert’s own, formed independently, 

and not the views of either the client or of any other person. 


• Expert evidence presented to the Court should be, and should be 

seen to be, the independent product of the expert uninfluenced as 

to form or content by the exigencies of litigation. 

• An expert witness should provide independent assistance to the 

Court by way of objective unbiased opinion in relation to matters 

within his expertise. 

• An expert witness in the Court should never assume the role of 

an advocate. 

• An expert witness should state the facts or assumption upon 

which his opinion is based. 

• An expert witness should make it clear when a particular question 

or issue falls outside his expertise. 

Is the Court obliged to accept the 

expert witness’ report as evidence? 

Three concepts: 

1. The Court in line with the “ free evaluation of evidence“principle 

evaluates the expert witness report like any other 

evidence in the procedure (can refuse the report or replace it 

with its own opinion) 

2. The Court, having no specific expertise, is completely bound to 

the expert witness opinion 

3. The court evaluates the expert witness report like any other 

evidence, agrees or disagrees with the findings. In case of 

disagreement, the Court can not replace it with its own opinion 

(rather re-examine or request opinion from other expert 

witness) 


4

General observations of the Court to 

determine the reliability of scientific 

evidence (Daubert standard) 

• Whether the scientific theory or technique is falsifiable, 

refutable, and testable. 

• Whether the scientific theory or technique “has been peer 

reviewed or published”? 

• “know or potential rate of error” 

• The existence and maintenance of standards controlling the 

technique’s operation 

• General acceptance in the “relevant scientific community” 

Different Expert Witness Opinions 

• Parties can provide comments on the expert witness report 

and opinion and request new expert witness expertise 

• If the second expert witness opinion is different from the first 

one, the Court can : 

– Evaluate both reports and accept the one which is more 

convincing 

– In case of dilemma, in line with dubio pro reo, accept the 

report which is more favourable for the defendant 

• The Court can request a third expert witness opinion, which 

can be merged with one of the previous reports 

Expert Witness Ethics 


5

THANK YOU FOR YOUR 

ATTENTION 


6

Environmental Misdemeanour Practice in Austria 


Enforcement of environmental legislation 

in Austria 

Austria has a bipartite enforcement system: 

� Criminal Court Proceedings 

� Administrative Enforcement and 

Misdemeanour Proceedings 


in Austria 

Competences of the Criminal Court: 

� Cases with high environmental impact 

� Cases with high degree of personal fault 

� Cases with high criminal energy 

� Cases with significant economic damage 


1 


2 

3 

1


in Austria 

Precondition for both Criminal and Misdemeanour 

Cases: Offence against an administrative obligation 

(deriving from a law or permit), e.g.: 

� Illegal waste disposal (landfills, illegal waste 

shipment) 

� Unlawful water pollution (bad agricultural practice, 

manure disposal, industrial contamination) 

� Unlawful handling of dangerous substances 

(chemicals, hazardous waste) 


in Austria 

Competencies of the Misdemeanour Authority 

� Cases with lower environmental impact 

� Cases with (serious) negligence 

� Cases with lower criminal energy 

� Cases without far-reaching damage 


in Austria 

Administrative Organisation in Austria 

� County Administration: 

�Permitting and Monitoring of smaller Installations 

�Misdemeanour Procedures at First Instance 

� Regional Administration (at Provincial level): 

�Appeal Decisions for cases decided at county level 

�Permitting and Monitoring of bigger installations (EIA) 

�Court of Appeal for Misdemeanour Procedures (Independent 

Administration Senate) 

� Ministries 

�By-laws and guidance documents 

�National Monitoring and Reporting 

�Court of Appeal in some cases (Independent Environmental Senate 6 

for EIA Appeals) 


4 

5 

2

Most frequent Misdemeanour Cases in Austria 

Water Act I: Negligence of operating conditions in the Water 

Permit issued by the County- or Regional Authority; Fines up 

to 14.530,- € 


Water Act II: Contamination of ground- or surface water 

without application for (or holding of) water permit; fines up 

to 36.430,- € 

� Most frequently bad agricultural practice, unlawful 

spreading of manure during winter period 


Industrial Activities Act 

Offences against operating permit conditions issued by countyor 

regional authorities; fines up to 2.160,- € 

� Most frequent cases are offences against workplace safety 

legislation detected by the Inspectorate for Workplace Safety 


7 

8 

9 

3


Building Act 

Construction Permits are issued by the municipalities (Mayor) 

Misdemeanour procedures are carried out by the County 

authorities after notification of infringements by the municipality 

Basic Structure of Misdemeanour Cases 

� Definition of the underlying legal regulations of each case (e.g. 

permits, applicable bylaws) 

� Inspection report 

� Legal evaluation of the findings 

� Misdemeanour provisions of the laws (type of misdemeanour 

offence) 

� Proposals/charges for the Misdemeanour Court 

Preparation of Misdemeanour File 

� Collection of permits and licenses of the inspected site/ operation 

� Check of compliance with the permit conditions for all relevant 

media (Water, Air, Noise, Safety) 

� Contact with the permitting authority 

� Environmental Record of the site/operator 

� Monitoring results of the site 


10 

11 

12 

4

Examples of Environmental Law Enforcement 

from Austria 

� The cases are extracted from reports by environmental 

authorities/inspectorates in Austria based on Legal Acts and 

European Directives 

� Examples are taken from the most frequent offences or 

infringements against the Environmental Law 

Case 1: Act on Industrial Activities 

Case 1/ Legal Provisions: 

The operation of a non licensed industrial installation can be fined 

by the permitting authority up to 3600 €. The license has to be valid 

and the included operating conditions must be respected throughout 

the whole operation period. The managing director is responsible for 

the implementation of the permit. 


Facts of the case: 

� Non compliance with several conditions of the operation permit 

was detected during the annual inspection by the Environment 

Inspector at a saw mill. 

� Neighbors were complaining about excessive noise emissions, 

also beyond the operating hours defined in the permit. 

� Noise retaining infrastructure was not implemented correctly. 

� Noise protection barrier was too low 


13 

14 

15 

5


Relevant findings of the Inspector: 

� The fact of exceeding operation hours was verified by 

several witness statements of neighbors. 

� Noise monitoring results were not available 

� Noise protection barrier was controlled by the inspector 

during the site visit, non compliance was verified. 

� The wall was 80 cm too low and did not reach the 

size prescribed in the valid permit from 2005 


Environmental Record of the operator: 

� Research at the permitting authority resulted in a 

generally good environmental record of the operator 

� Neighbors' complaints only occurred during the 

preceding 6 months 

� Noise and general emissions were in line with the issued 

permits (industrial activities and water permit) 


Proposal for the misdemeanour authority: 

� Given the relatively low profile of the infringement and 

the good environmental record, a fine of 500 € was 

proposed. 

� The sentence was accepted by the operator (Operating 

Manager of the company ) 


16 

17 

18 

6

Case 2: IPPC Installation; Waste Act 

Case 2/ Legal basis: 

� The operator was licensed under the IPPC-regulation to 

produce coating materials, containing hazardous 

substances with the clear obligation to recover and/ or 

dispose of hazardous solvents by a waste disposal 

company holding the requisite permit. 

� Infringements can be fined by a maximum of 50.000 € 



The Environmental Inspectorate found out during a routine 

check that the operator did not use an authorized 

waste management company in order to dispose of the 

hazardous waste, exporting a big amount of 35 t illegally, 

not notifying the export. 


Findings of the case: 

� The waste management record was checked by the 

Environmental Inspectorate and found that the company 

did not follow the conditions laid down in the valid IPPC 

permit from 1998 at least 4 times 

� In 2007 35t of hazardous used solvents were 

disposed by a non-authorized waste exporter 

� The export was not notified according to the regulations 

of the shipment of waste regulation and the Waste Act. 


19 

20 

21 

7


Environmental Record of the company: 

� The operator had three infringement procedures in the 

course of the last 5 years, not complying with permit 

conditions 

� The workplace inspectorate charged the company two 

times for exceeding workplace immission values 

� Waste management concept, requested by the 

permitting authority, was not submitted in time 


Proposal for the Misdemeanor and Criminal Court: 

� Due to the repeated infringement by the operator 

and the high potential of environmental damage, not 

only a misdemeanor charge was prepared, but also a 

statement to the Public Prosecutor 

� The misdemeanour court sentenced the company to a 

40.000 € fine and the cost of the re-import and adequate 

disposal of the solvents (60.000 €) 

Case 3: IPPC site and Water Act 

Case 3/ Legal Provisions: 

� An operator has to apply for a permit with the 

competent authority, when significant emissions to the 

surface- or groundwater are expected for the activity at 

the installation. 

� Infringements can be fined up to 36.000 € by the 

misdemeanour authority in cases where a significant 

contamination of the water body occurs 


22 

23 

24 

8



� A slaughter house , licensed under the IPPC 

regulation, emitted a significant amount of waste water, 

exceeding the permitted limit values and causing a mass 

fish dying in a nearby surface water. 

� The water treatment facility was bypassed 

deliberately by the operator with a flexible tube 


Findings of the Case: 

�The Environmental Inspectorate was informed by a 

fisherman at the river near the slaughterhouse that a large 

number of dead fish were floating in the river 

� The Environmental Inspector found the flexible tube near 

the waste water treatment installation of the operator. The 

operator admitted the facts, saying that the bypass was 

necessary due to a temporary malfunctioning of the facility 


Environmental Record of the company: 

� The slaughterhouse was given an IPPC-permit in 2001 

and, in general, had a good environmental record 

� Monitoring results of the waste water treatment showed 

good results over the previous 2 years 

� The operator was co-operative and admitted the facts, 

excusing it with a technical problem, which could not be 

solved in time 


25 

26 

27 

9


Proposal for the misdemeanour authority: 

� Due to the significant damage to the environment and 

the fish population in the river, the Environmental 

Inspectorate proposed a fine of 5.000 €. 

Compensation for the fish damage: 10.000 € 

� Mitigating was the good environmental record and the 

co-operative attitude of the operator 

� The Public Prosecutor was informed by the county 

administration, the case was not followed by the court 

because of the low criminal profile 






28 

29 

10


1st Reg. Training Act. 1.2 RISPst 

The role of Misdemeanour offences in Croatian Enforcement Practice, 

followed by a round table discussion 

Zagreb, May 30 – 31, 2011 

� Introduction 

Content 

� Current legal framework in Croatia 

regarding environmental midemeanour procedure 

Anita Pokrovac Patekar 

Ministry of Environmental Protection, 

Physical Planning and Construction 

(MEPPPC) 

� The role of Misdemeanour offences in Croatian Enforcement Practice 

� Environmental Protection Inspection practice 

� About IPA I 2008 Twinning Project Enforcement of the new Environmental 

Protection Act (EPA) harmonized with EU legislation in cases of criminal 

offences against the environment 

The role of Misdemeanour offences in Croatian Enforcement Practice 

The Article 213 of the Environmental Protection Act (EPA, OG 110/07) states: 

“If during inspectional supervision, it is established that this Act and/or 

regulations passed on the basis thereof have been violated, the inspector 

has the right and obligation to immediately: 

� issue a misdemeanour order in accordance with a special act 

�file criminal charges for a criminal act to the competent body 

�undertake other measures and perform other actions for which he is 

authorised pursuant to this Act and special regulation” 


1


Same provisions are also prescribed in the other sectoral laws related to water 

protection, noise protection , nature protection, … 

The most relevant laws defining concrete misdemeanour concrete offences in the 

environment sector are: 

�Environmental Protection Act (OG 110/07) 

�Waste Act (OG 178/04,153/05,111/06,110/07,60/08,87/09) 

�Air Protection Act (OG 178/04,110/07,60/08) 

�Nature Protection Act (OG 70/05,139/08) 

�Water Act (OG 153/09) 

�Maritime Code (OG 181/04, 76/07,146/08) 


�Misdemeanour offences which are defined in a number of different laws play 

together with inspectors decisions a key role in the enforcement practice 

�General rules on misdemeanour offences and the misdemeanour procedures 

are laid down in the Misdemeanour Act (OG 107/07) 


� A Misdemeanour proceedings are conducted under the provisions of the 

Misdemeanour Act which came into force 1st January 2008 (Art. 258) and it 

is applied to all misdemeanour offences 

� If some parts of the Misdemeanour proceedings are not prescribed by the 

Misdemeanour Act adequate provisions of the Criminal Procedure Code will 

be applied 

� When the Misdemeanour Act refers to the Criminal Procedure Act it shall be 

meaningfully applied, unless the Misdemeanour Act prescribes otherwise 


2


Types of Misdemeanour legal sanctions: 

�penalty (financial and prison penalties) 

�warning measures (reprimand and conditional conviction) 

�protective measures 

�educational measures 


� Environmental inspectors or any other inspectors in the environmental 

sector do not have any discretion whether or not to initiate criminal and 

misdemeanour charges 

� They have to submit indictment proposals in each and every case of non 

compliance 

� Nevertheless in practice the rate of issued enforcement decision due to 

non compliance is much higher than the rate of initiated misdemeanour 

proposals 

� MEPPPC aims at raising awareness for this problem and increase the rate 

of recognition and prosecution of environmental misdemeanour cases 


MEPPPC Annual Statistic 

Certain level of non-compliance detected during inspections: 

� 2007-1926 inspector’s decisions out of 6202 site visits 

(around 32 %) 


(around 28 %) 


(around 34 %) 


3


250 

200 

150 

100 

50 

0 

Number of inspectors decisions (non-compliance) in 2007 per 

branch unit 

189 

159 

128 

116 

104 

113 

99 97 

77 74 82 

80 

63 71 

50 56 

30 

40 

18 

58 

ZAGREB 

KRAPINA 

SISAK 

KARLOVAC 

VARAŽDIN 

KOPRIVNICA 

BJELOVAR 

RIJEKA 

GOSPIĆ 

VIROVITICA 

POŽEGA 

SL. BROD 

ZADAR 

OSIJEK 

ŠIBENIK 

VUKOVAR 

SPLIT 


222 

PAZIN 

DUBROVNIK 

ČAKOVEC 

SRED. SLUŽBA 



120 

100 

80 

60 

40 

20 

0 

36 

73 

Number of initiated misdemeanour proceedings in 2007 per 

branch unit 

5 

ZAGREB 

KRAPINA 

SISAK 

33 

29 30 29 29 29 

18 15 14 

3 

KARLOVAC 

VARAŽDIN 

KOPRIVNICA 

BJELOVAR 

RIJEKA 

GOSPIĆ 

VIROVITICA 

113 

POŽEGA 

SL. BROD 

ZADAR 

OSIJEK 

ŠIBENIK 

14 4 

22 25 26 

5 

62 

VUKOVAR 

SPLIT 

PAZIN 

DUBROVNIK 

ČAKOVEC 

SRED. SLUŽBA 

4


Why we still need environmental misdemeanour prosecution to support 

enforcement of environmental legislation? 

� Transposition of EU Directives into national legislation as such does not 

always ensure their proper implementation in practice 

� In Croatia as well as in many EU MS there are still weaknesses in 

environmental law enforcement 

� Weaknesses inside the administration: 

� lack of legal knowledge 

� lack of available legal support 

� shortcomings in administrative capacities 

� weak enforcement policy and practice 

� hiper production of regulations and rules 


Weaknesses inside the judical system: 

� in most countries environmental issues are not regarded as a 

priority topic of misdeameanour courts 

� lack of natural / technical knowledge and awareness 

� shortcomings in judical / administrative capacities 


Weaknesses outside the administration : 

� operators lack of legal knowledge 

� many operators want to escape obligations and are trying to find loopholes 

in the enforcement system of administrations 

� under-investment and delayed investment in necessary pollution-abatement 

infrastructure 

� in some cases these law violations involve large financial interests 


5


All abovementioned: 

• May descourage the environmental protection inspectors and other 

inspectors 

• May encourages the destruction of the environment by businesses 

who maximise their profits 


EU IPA I 2008 Twinning Project, HR/2008/IB/EN/01 Enforcement of the 

new Environmental Protection Act harmonized with EU legislation in 

cases of criminal offences against the environment 

� Environmental Protection Inspection, Directorate for Inspection, 

MEPPPC proposed the project 

� Austria was chosen as partner country 

� Austrian Environmental Agency is partner institution 

� Experts from the Netherlands, Belgium and Sweden also included 


� Beginning of the project: 6 th September 2010 

� Duration of the project: 18 months 

� Value of the project: 1.100.000,00 Euro 

� National contribution part of RC: 55.000,00 Euro 


6


� Aim of the project: 

Improvement of environment through effective enforcement of 

new legislation with the special emphasis on the cases of 

misdemeanour and criminal offences against environment 

EU Twinning Projekt 

HR/2008/IB/EN/01 


Prethodna iskustva 

Activities and results to be achieved 

Component 1: 

� Korištenje iskustava stečenih na završenom projektu Phare 2005 

� “Prilagodba Development of inspekcije procedures zaštite for coordinated okoliša za enforcement provedbu of novog the Environmental 

nacionalnog Protection Act in zakonodavstva Croatia, with following na području sub activities: zaštite okoliša”– 

uspostavljeni “Pilot tim” 

� Development of Standard Operating Procedures (SOPs) 

� Prepoznavanje dobrih iskustava suradnje među sektorima 

� Development of Manual for coordinated enforcement of the Environmental 

Protection Act, with good practice examples from other member states of 

� Sudjelovanje the EU u radu međunarodnih mreža : IMPEL, ECENA, 

INECE, INTERPOL 


Component 2: 

� Strengthening the capacity of all institutions involved: 

� Design and enforcement of training programme for all environmental protection 

inspectors and other involved stakeholders 

� Design and enforcement of Train the trainers programme for further continuous 

education 

� Organisation of study tours for Environmental Protection Inspectors to Austria 

and to Nederland's so they can on the spot learn procedures and enforcement 

structures of member states. 


7


Stakeholders 

Ministry of Environmental Protection, Physical Planning and Construction 

as main Beneficiary. 

Cooperating institutions: 

�Ministry of Justice 

�Ministry of Interior 

�Ministry of Finance (Custom Directorate) 

�Ministry of Regional Development, Forestry and Water Management 

�Ministry of culture 

�Ministry of sea, transport and infrastructure 

�Judicial Academy 

�Croatian Society of Court Witnesses 


Expectations 

�Establishment of a network with all competent institutions involved 

which would result with better cooperation, better efficiency, 

improvement of knowledge and skills in enforcement of legislation 

�Learning on transferred good EU practice (from Austrian twinning 

partner, from Belgium, Sweden and Nederland's) 

�Assistance in compliance with EU acquis 


Expectations 

� Project to be recognized as “our common work” 

� Active participation of all partners in project 

� Contribution of all partners involved in the project with their 

knowledge and skills 


8


Expectations 

�Enhance knowledge of Environmental Protection Inspector 

about legal disciplines 

�Clarify the importance of environmental protection to 

representatives of cooperating institutions and enhance their 

technical knowledge about possible harmful impact on 

environment and its long-term effects 


What will be different at the end of the project? 

�Training materials including a Toolkit for Judges will be available to ensure 

continued training of inspectors and stakeholders, which is crucial to curb 

illegal activities and to allow a concerted effort to fight and prosecute 

environmental crime 

�At the end of this project, we will have better tools (e.g. SOPs and Manual for 

coordinated enforcement) and increased administrative and inter-institutional 

capacity to deal with potentially upcoming international environmental crime 


What after completion of the project? 

� Finally – more successful processing of misdemeanour and criminal 

offences against environment 

� Article 149. of EPA (OG 110/07) already prescribes that Court proceeding 

according all suits in field of environmental protection are urgent – it is 

expected this will be enforced in practice 

� More successful recognition of liability for environmental damage and 

determination of responsible person for remediation of environment 

� Obligation to compensate damage and expenses 

� Reduction in number of misdemeanour and criminal offences against 

environment as a result of enhanced system 


9


Contacts / Informations 

� Ulrike Lamb, RTA, 

ulrike.lamb@mzopu.hr tel. 01 3712 851 

� Jela Bilandžija, RTA assistant 

jela.bilandzija@mzopu.hr; tel. 01 3712 852 

� Web portal:www.mzopu.hr 

� Web page of the project: www.ecocop.hr 

Thank you! 


10


EUROPEAN COMMISSION 

Directorate Directorate General for Environment 

The Environmental Liability Directive 

(ELD) 

Regional Environmental Network for the Accession, 


Zagreb, 31 May 2011 

ELD 

WHAT HAPPENS WHEN 

ENVIRONMENTAL DAMAGE 

OCCURS? 

ELD 

� Do you know that there is an Environmental Liability 

Directive? 

� Do you know that liable persons (operators) need to 

clean up and restore the environmental damage they 

may cause? 

� Do you know that there are rules about defining the 

proper damage remediation and restoration of the 

environment? 

� Do you know that operators need to have financial 

security to cover their potential liabilities? 

1


The ELD – 

a long story behind 

� First considerations in the 1980s (waste sector) 

� European Commission Proposal of 1989 for a Directive on civil 

liability for damage caused by waste 

� Green Paper 1993 

� White Paper 2000 

� Working Document 2001 

� Legislative Proposal 2002 

� Directive adopted by European Parliament and Council in 

April 2004 

� Deadline for EU Member States to implement the directive in 

national law expired on 30 April 2007 

� Two amendments so far (mining waste, CCS sites) 

ELD – Its basis is in the EU Treaty 

EU policy on the environment 

“shall be based on the precautionary 

principle and on the principles that 

preventive action should be taken, that 

environmental damage should as a priority 

be rectified at source and that the polluter 

should pay” 

(Article 174 – since 1993) 

ELD – Overview: 

The basic approach (1) 

� The Environmental Liability Directive (ELD) 

follows an administrative liability 

approach 

Its is Not a Civil liability 

� It covers Environmental damage 

(applicable to nature, water, soil) 

It does Not cover Traditional damage 

(personal injury, damage to property, 

Economic loss) 

2




� EU framework is based on the polluter-pays 

principle (PPP) on the prevention and remedying 

of certain types of environmental damage 

(nature, water, soil) 

� Leaving wide margin of discretion to EU 

Member States on certain important issues 

(scope, derogations etc.) 

� Minimum requirements since EU Member 

States are allowed to maintain/adopt more 

stringent/far-reaching rules 



� Focus on restoration in kind: restore, rehabilitate or replace 

damaged natural resources and/or impaired services, or to 

provide an equivalent alternative to those resources or services 

� Breaking new ground in Europe on certain difficult technical 

issues as to how to ensure restoration in kind of damaged 

natural resources - implementation of complementary 

remediation and compensatory remediation - or the definition 

of “significant damage” 

� Financial security providers (such as insurers), encouraged to 

develop products covering environmental liability risks, but 

financial security is not mandatory in EU 


Scope 

� Strict liability: environmental damage and 

imminent threat when caused by specified 

occupations (“dangerous”) activities 

� Fault based liability: damage to protected 

species and natural habitats and imminent 

threat when caused by non-specified 

occupational activities 

� Causal link always required 

3



Exceptions 

� Act of armed conflict, hostilities, civil war, 

insurrection 

� Natural phenomenon of exceptional, inevitable 

and irresistible character 

� International Conventions (oil pollution, carriage 

of hazardous substances at sea and on land, 

nuclear risks/damage) 

� National defence, international security, civil 

protection 

� Diffuse pollution (i.e. no causal link) 


Key definitions (1) Operator 

� Natural or legal, private or public person who 

operates or controls the damaging occupational 

activity (absolute or “Community” scope) 

OR 

� « where this is provided for in national 

legislation » (optional or “national” scope): 

to whom decisive economic power over the 

technical functioning of such an activity has been 

delegated, including the holder of a permit or the 

person registering or notifying such an activity 

ELD – Overview: Key definitions (2) 

Environmental damage 

Definition of environmental damage 

� “Protected species and natural habitats”: significantly 

affecting the reaching or maintaining of a favourable 

conservation status (with reference to Birds Directive 

79/409 and Habitats Directive 92/43) 

� “Water”: significantly affecting ecological, chemical, 

quantitative status or ecological potential (with reference to 

the Water Framework Directive 2000/60) 

� “Land”: land contamination that creates significant risk to 

human health being adversely affected through introduction 

of substances, preparations, (micro-)organisms in, on or 

under land 

4



Prevention 

Imminent threat of damage: 

The Operator has to take preventive actions 

� Operator has to inform the competent authority if 

threat persists 

� Powers of competent authority (CA) towards the 

operator: “getting the work done” 

� Discretionary subsidiary action by the CA 


Remediation of Damage 

Remediation in case of damage occurred: 

� Operator has to take containment/ mitigation 

measures 

� Operator has to develop and propose remediation 

plans to competent authority for approval 

� Operator has to take remediation measures 

� Powers of the CA: “getting the work done” 

� Discretionary subsidiary action by the CA 

Three Remediation types: 


Type of Remediation 

� Primary remediation: returns damaged natural 

resources/impaired services to baseline condition 

� Complementary remediation: provides a 

similar level of damaged natural resources or 

impaired services in case restoration is 

impossible, including at an alternative site 

� Compensatory remediation: compensates for 

the interim loss of damaged natural resources or 

impaired services between damage and full 

remediation 

5



Competent authority 

� EU Member States have to designate the 

competent authorities (CA) 

� Duties: 

� To establish who caused damage 

� To assess the significance of the damage 

� To determine the remedial measures 

� Powers: 

� To require operator to carry out own assessment and to 

supply necessary information and data 

� To require operators and third parties to carry out the 

necessary preventive or remedial measures 


Costs of Remediation 

Operator has to bear the costs for preventive 

and remedial action, except: 

Absolute defences: 

� Third party intervention 

� Compliance with compulsory order or instruction 

from public authority 

Optional defences, i.e. when Member State decides 

to accept: 

− Permit defence 

or 

− State-of-the-art defence 


Optional defences - Permit defence 

The EU Member States may allow the operator not 

to bear the cost of remedial actions where he 

demonstrates that he was not at fault or negligent 

and that the environmental damage was caused by: 

(a) an emission or event expressly authorised by an 

authorisation given under applicable national laws 

and regulations 

6



Optional defences - State of the art defence 

The EU Member States may allow the operator 

not to bear the cost of remedial actions where he 

demonstrates that he was not at fault or negligent 

and that the environmental damage was caused 

by: 

(b) an emission or activity or any manner of using 

a product in the course of an activity which the 

operator demonstrates was not considered likely 

to cause environmental damage according to the 

state of scientific and technical knowledge 


Cost allocation/Multi-party causation 

� Cost allocation in case of multiple party 

causation of damage: EU Member States 

decide whether every operator is 

responsible for the whole cost (joint & 

several liability) or only its own share of 

the cost (proportional liability) 

� «especially concerning the apportionment 

of liability between the producer and the 

user of a product» 


Rights of individuals/NGOs 

� Affected or interested natural or legal persons are 

entitled to request the competent authority to 

take action, accompanied by relevant data or 

information on observations 

� The competent authority shall investigate and 

decide to accept or refuse the request 

� Affected or interested natural or legal persons are 

entitled to have access to a court/other 

independent and impartial body to review the 

decision of the competent authority 

7



No retrospective effect 

ELD has no retrospective effect, i.e. it does not 

apply to: 

� Damage caused by an emission, event or incident 

that took place before 30 April 2007 

� Damage caused by an emission, event or incident 

which takes place after the 30 April 2007 when 

it derives from a specific activity that took place 

and was finished before that date 

Article 14 

Financial security 


Mandatory vs. voluntary financial security 

1. Member States shall take measures to encourage 

the development of financial security instruments 

and markets by the appropriate economic and 

financial operators, including financial 

mechanisms in case of insolvency, with the aim of 

enabling operators to use financial guarantees to 

cover their responsibilities under this Directive. 


Reporting requirements 

� The Commission had to report before the 30 April 

2010 on the 

� effectiveness of the Directive in terms of actual 

remediation of environmental damages 

� availability at reasonable costs and on conditions of 

insurance and other types of financial security 

� The Commission has to report before the 30 April 

2014 on the experience gained in the 

application of the ELD, based on Member States’ 

reports due by 30 April 2013 

8


ELD – Transposition: 

Non-communication infringement case 

� Transposition deadline: 30 April 2007 

� Letter of formal notice addressed to 23 MS on 1 

June 2007 

� Reasoned opinion addressed to 16 MS on 1 

February 2008 

� Court application decision concerning 9 MS on 

26 June 2008 

� Court judgements received by 7 MS: Finland, 

France, Slovenia, Luxemburg, Greece, Austria, UK 

ELD – Report: Effectiveness 

Slow transposition 

Transposition was finally only accomplished on 

1 July 2010 (i.e. more than three years after the 

deadline for transposition expired). 

The Reasons for the slow transposition are: 

� Existing legal frameworks (adaptation, restructuring 

works) 

� Challenging technical requirements (economic 

valuation, remediation types) 

� Framework character of ELD (wide discretion 

and many options for MS leading to lengthy domestic 

debates and legislative processes) 


Environmental damage definition 

Definition of damage to “protected species 

and natural habitats” - Extension to 

nationally protected species and habitats: 

� Yes: Austria (depending on the region), Belgium (depending 

on the region), Cyprus, Czech Republic, Estonia, Greece, 

Hungary, Latvia, Lithuania, Poland, Portugal, Spain, 

Sweden, United Kingdom (England, Wales, Northern 

Ireland) 

� No: Bulgaria, Denmark, Finland, France, Germany, Ireland, 

Italy, Malta, Netherlands, Romania, Slovak Republic, 

Slovenia 

9

Operator definition: 



Operator definition 

� Most Member States have transposed the broad 

scope, i.e. including the “national scope”: Belgium, 

Bulgaria, Czech Republic, Denmark, Germany, Greece, 

Ireland, Italy, Latvia, Malta, Netherlands, Portugal, 

Romania, Slovenia, Spain, Sweden, United Kingdom 

� Remained with the limited scope (the “Community 

scope”): France 

� Went even beyond the Directive’s scope (“more 

stringent measure”): Estonia, Finland, Hungary, 

Lithuania, Poland, Sweden 


Use of Optional defences 

� Both defences incorporated: Belgium (regions), Cyprus, Czech 

Republic, Estonia (except GMOs), Greece, Italy, Latvia (except 

GMOs), Malta, Portugal, Slovakia, Spain, United Kingdom (except 

GMOs in Scotland, Wales) 

� Both defences not applicable: Austria, Belgium (federal level), 

Bulgaria, Germany, Hungary, Ireland (change planned), 

Netherlands (applicable only after check of reason), Poland, 

Romania, Slovenia 

� State of the art defence applicable but permit defence not: 

France 

� Permit defence applicable but State of the art defence in 

general not: Denmark, Finland, Lithuania 

� Mitigation ground: Sweden 


Multi-party cost allocation 

� All parties have full responsibility (joint & 

several): Austria, Belgium, Bulgaria, Cyprus, 

Czech Republic, Denmark, Germany, Greece, 

Hungary, Ireland, Italy, Latvia, Lithuania, 

Netherlands, Portugal, Romania, Spain, Sweden, 

United Kingdom 

� Each party obliged to pay only its share 

(proportional): Denmark, Finland, France, 

Slovakia, Slovenia 

10



Financial Security 

� Mandatory financial security scheme: Bulgaria 

(04/2008 and 01/2011), Portugal (01/2010), 

Greece (05/2010?), Spain (date to be seen), 

Hungary (01/2011?), Slovakia (07/2012), Czech 

Republic (01/2013), Romania (date still to be 

determined) 

� Most MS rely upon a voluntary financial 

security scheme 


Other implementation patterns 

� Most of reported cases relate to damage to water and land 

� Most remediation is primary remediation (none reported 

on complementary or compensatory remediation) 

� Total remediation costs range between €12,000 and 

€250,000 

� Duration of environmental recovery varies between one 

week and three years 

� Activities concerned almost exclusively operators in the 

Annex III (IPPC, waste management, use and storage 

of dangerous substances, etc.) 


Limited implementation 

Just 16 ELD cases reported by end of 2009/beginning of 

2010 from ELD experts of 15 MS (We estimate currently 

around 50 cases). 

WHY ? Possible reasons: 

� Challenging technical requirements (economic 

evaluation, environmental remediation methods etc.) 

� Limited knowledge by operators 

� Preventive effect of the ELD 

� Maintenance of existing laws (more stringent MS laws on 

water, soil) 

� Exceptions and defences under the ELD framework 

11

� Slow transposition, 



Overall conclusion 

� Limited application and practice and 

� Wide variety of implementation features across 

the EU 

Had: 

� an impact on the effectiveness of the ELD and 

� also delayed the development of financial security 

products. 

ELD – Key recommandations 

� Designation of competent authorities (ability to assess correctly the 

environmental damage, remediation plans, causal link, by ministries / agencies, 

sectoral/local authorities 

� Careful consideration before agreeing to remediation plans 

� Raising awareness with the industrial operators (systematic 

communication, focus on the issue of financial security) 

� Address the challenge of the options regarding remediation 

(primary/complementary/compensatory) 

� Contact with financial institutions 

ELD 

More information on ELD (studies, the Article 14 

report, etc) at: 

http://ec.europa.eu/environment/legal/liab 

ility/index.htm 

THANK YOU FOR YOUR ATTENTION 

12

EU Liability Directive 2004/35/EC 


The basic idea 

�What is Environmental Liability? 

�The term Environmental Liability comprises all forms of rules 

which aim at implementation of the polluter pays 

principle. 

�Environmental Liability can be 

- Civil Law Liability and/or it can be 

- liability by means of administrative law, e.g. rules on 

cost recovery by authorities for money spent for clean up 

of environmental damage by the state 

Different forms of liability 

� Directive 2004/35/EC sets up rules on both prevention of 

damage and on clean up of damage, including the issue 

of cost recovery 

� Civil law liability for all sorts of damage (e.g. health, 

property, environment) is not touched by the Directive 

� Complicated and difficult to understand for non lawyers - > 

training and awareness raising needed 



2 

3 

1

The Directive and its transposition into 

national legislation 

� Directive 2004/35/EC of 21 April 2004, amended by 

Directive 2006/21/EG on the management of waste from 

extractive industries and by Directive 2009/31/EC on the 

geological storage of carbon dioxide 

� To be transposed by Member States till 30 April 2007, 

some member states have transposed with serious delay, 

see details in European Commission report from October 

2010, KOM(2010) 581 

� Austria has transposed the Directive in one new federal 

law and all provincial laws. 

� Very few cases in practice so far. 

What is environmental damange under the 

terms of the Directive? 

Under the terms of the Directive, environmental damage is 

defined as: 

� direct or indirect damage to the aquatic environment 

covered by Community water management legislation; 

� direct or indirect damage to species and natural 

habitats protected at Community level by the 1979 Birds 

Directive or by the 1992 Habitats Directive; 

� direct or indirect contamination of the land which 

creates a significant risk to human health. 

Limited scope of the Directive I 

� The Directive 

- does not apply to activities of indivuals (e.g. Private owners 

of houses) 

- but only to occupational activities, where it is possible 

to establish a causal link between the damage and the activity 

in question. 

� Furthermore the Directive distinguishes between two types 

of occupational activities : 

- occupational activities specifically mentioned in 

Annex III of the Directive and 

- other occupational activities 


6 

2

Limited scope of the Directive II 

�Activities listed in Annex III to the Directive: These are 

mainly agricultural or industrial activities including waste 

management activities (including landfills and incinerators). 

� In this case, the operator may be held responsible for 

damage to water and soil even if he is not at fault. 

� The second liability scheme applies to all occupational 

activities, including other than those listed in Annex III to 

the Directive, but only where there is damage, or imminent 

threat of damage, to species or natural habitats protected 

by Community legislation. 

� In this case, the operator will be held liable only if he 

is at fault or negligent 

7 

Procedure regarding prevention of damage 

�Not any threat is relevant, but eminent threat of 

environmental damage 

� Competent authority requires operator to take necessary 

preventive measures or... 

� .... will take such measures itself and recover costs occurred 

from the operator later. 

Procedure regarding remedying environmental 

damage 

� Not any damage is relevant but only significant 

environmental damage 

� Competent authority requires operator to take necessary 

restorative measures or.... 

... will take such measures itself and recover costs occurred 

from the operator later 


8 

9 

3

How is significance of the damage determined? 

� In the recent report KOM(2010) 581 the EC Commission 

states that several MS have difficulties to establish 

pratical criteria for the dececion when a damage is 

significant. 

� Some Member States have developped guidance 

documents. 

� Example from transposition in Austria: 

� As concerns soil pollution Austria follows the Directive: only 

soil pollution with significant risk of accecting human health is 

relevant (judgement by expert for human health texicology) 

� As concerns water pollution: Dirioriation in the sense of 

change of category of Water Framework Directive will in any 

case be classified as significant damage, damage below that 

thershold can be classified as significant following a case by 

case approach, taking into account the Criteria of the ELD. 

10 

Deciding Getting a 

broad picture 

of the risk 

Is the risk tolerable, 

acceptable or 

unacceptable? 

Pre-Assessment 

Management Communication 

Characterisation 

and Evaluation 

Is the risk simple, 

complex, uncertain 

or ambiguous? 

Appraisal 

Categorising 

the 

knowledge 

about the risk 


Understanding Risk 

assessment 

PLUS 

Concern 

assessment 

Based on both the evidence from the risk appraisal and evaluation of 

broader value-based choices and the trade-offs involved, decide whether 

or not to take on the risk. 

Acceptance 

Reduction 

Prohibition or 

Substitution 

09 

Risk so much greater than 

benefit that it cannot be 

taken on 

Benefit is worth the risk, 

but risk reduction 

measures are necessary 

No formal intervention 

necessary 

20 

4

How to remedy environmental damage? 

� For damage affecting land, the land concerned must be 

decontaminated until there is no longer any serious risk for 

human health 

� For damage affecting water or protected species and natural 

habits the aim of the Directive is to restore the environment 

to how it was before the damage 

ANNEX II specifies methods for remedying environmental 

damage (transposed in Croatia in Annex II of the Government 

Regulation) 

� Primiary remediation: Restauration towards baseline condition 

� Complementary remediation: Provision of similar natural 

ressources at some other location in case primary remediation is not 

possible 

� Compensatory remediation: Compensation of interim losses 

Who should pay for the remediation costs? 

� The authority may recover the costs it has born from 

the operator, but there are several exemptions. 

� Most important exemption is the so called permit defence: 

The Directive leaves it open to Member States whether they 

want to introduce it. 

� Permit defence means that the operator has not to pay the 

costs if he had respected all permit conditions and did neither 

act with intent nor carlessness 

�Not applicable when the company has not yet a permit (e.g. 

IPPC permit not issued yet). 

Austria has decided not to introduce the permit defence (with 

some exceptions) 

14 

Must operators take an insurance? 

�The Directive does not oblige operators to take out a 

financial security, such as an insurance 

� e.g. Croatian EPA requires the operator to “secure 

funds” for compensation, by taking an insurance or by 

other means, but does not specify details. 

� Directive: Member states should encourage the 

development of financial security instruments 

� EU Commission states in COM (2010)581 that the European 

Insurance Market has significantly developped since the entry 

into force of the Directive. 

�The Commission considers introduction of obligatory 

insurance at a later stage 


13 

15 

5

Request for action 

� Natural or legal persons who may be adversely affected by 

environmental damage and NGOs can ask competent 

authorities to act when faced with damage 

� Review procedures have to be provided to check the 

lawfulness of the decisions and actions or to state the 

authorities´ failure to act 

� In Austria and Germany as well as in other EU MS the role 

of the public in initiating environmental liability cases has 

been strenghened through the transpostion of the 

Environmental Liability Directive. 

Cooperation between member states 

� Where damage or threat of damage may affect more than 

one Member State, the states concerned must cooperate on 

the preventive or remedial action to be taken 

� Provisions might become more relevant in the future: Most 

relevant for transboundary water pollution of rivers, including 

affection of protected areas, e.g. Red mud case/Hungary 

� Not applicable for transboundary air pollution cases, 

as air pollution is not covered by the Directive 

Member State Experience: Germany I 

Law on Environmental Liability from 1990: 

� Civil law liability 

� Covering personal damage (death, injury) 

� Defining maximum amounts for liability 

� Access to information for affected parties 

� “Permit defense” in case of material damage 

� Narrow scope and therefore not many cases 

� Financial security obligatory 


16 

17 

18 

6

Member State Experience: Germany II 

Law on Environmental Damage from 2007: 

� Additional to the (civil) liability law from 1990 

� Covering only the requirements of the Directive 

� Leaving the question of “permit defense” open to be defined 

by the provinces (Länder) 

� Request for action and right to appeal defined in accordance 

with other special laws (“Law on Public Participation” and “Law 

on appeals in the field of Environment”) 

� Templates for “request for action”- letters on the 

webpage of BUND (NGO network) 

Member State Experience: Austria 

Austria as a federal state: 

� Federation responsible for damage to water and soil 

The Austrian Water Act has provided for a similar system since 

many years -> only changes to the current system were 

necessary, no start from the scratch 

� Provinces (Laender) are responsible for damage to 

protected species and natural habitats 

Each of the nine provinces of Austria has its own Nature 

Protection Act and had to transpose the Directive concerning 

damage to protected species and natural habits. 

There were no equivalent provisions in place so far - > major 

changes were necessary. 

EU Overview: permit defence and state of the 

art exception: 

- Both exceptions: 

Belgium (regions), Zyprus, Czech Republic, Estonia, 

Greece, Italy, Latvia, Malta, Portugal, Slovakia, 

Spain, UK 

- Non of the two exceptions: 

Belgium (federal level), Germany (delegated to the Laender 

who can allow exeptions in their legislation), Hungary, Ireland 

(intends to intruduce these exeptions later), Romania, 

Bulgaria, Poland, Slowakia, Austria 

- Only state of the art exeption: France 

- only permit defence: Denmark, Lithuania 

- Special solutions: Netherlands, Sweden 

21 


19 

20 

7

EU overview: obligatory financial security 

� Obligatory: 

Bulgaria (from 2011), 

Portugal (from 01/2010), 

Czech Republic (from 01/2013), 

Greece (from 05/2010 ?), 

Hungary (from 01/2010 ?), 

Romania, 

Spain, 

Slovakia (from 07/2012) 

� All other member states have a voluntary approach 

First case in front of the European Court of 

Justice: 

� ECJ decision of 09/03/2010, Case no C 378/08 

� Administrative Court of Sicily asked the ECJ on 

interpretation of several provisions of the Directive 

� There were conflicts between potentially polluting 

companies and several authorities in Italy on who would be 

responsible/ competent to act 

� One of the key answers of the ECJ: MS are free to be more 

strict then the Directive requires in the sense that they can lay 

down in their national legisation legal assumptions for holding 

responsible companies being located in the vicinity of a spot 

where damage was detected (shift of burden of proof for 

causality to the company). -> interesting for Croatia as such a 

legal assumption is stated in Art.150 and 154 of EPA 23 

Some recommendations to be considered: 

� Try to define a simple system that works in cases of urgency 

-> too complicated systems might be too slow or might not be 

applied at all in practice 

� Issue guidelines that help competent bodies to act quickly; 

define roles properly (who does what when?) 

� Secure financial means in the state budget to finance clean 

up measures (which later should be reimbursed by the 

polluter, if there are sufficient legal grounds) 

� Raise awareness among Citizens and NGOs for their legal 

standing under the Liability Directive and use their help to 

detect environmental damage 


22 

24 

8






25 

9

Working Group 1 

Regional Training under Activity 1.2 RISP 

Environmental Liability 

from the perspective of the private citizen and companies 


Ike van der Putte 

May 31, 2011, Zagreb, Croatia 

CONTENTS of the Presentation 




Consortium 

1. Some findings - on ELD implementation (report COM (2010) 

581 final ) 

2. Example of comments by EFCA (European Federation of Engineering 

Consultancy Associations) 

3. REMEDE Toolkit 


Consortium 

1..1 Report from the Commission to the Council, the European Parliament, The 

European Economic and Social Committee and the Committee of the regions, 

Brussels, 12.10.2010 

COM (2010) 581 final 

under article 14(2) of Directive 2004/35/CE (“ELD”) 

i.e. 

report on the effectiveness of the Directive in terms of actual remediation 

of environmental damages, on the availability at reasonable costs and on 

conditions of insurance and other types of financial security for the 

activities covered by Annex III 



Consortium 

1

1.2 One of the conclusions of the report: 

Limited Implementation of the ELD 

Government experts identified 16 cases treated under the ELD at the 

beginning of 2010 and estimates that the total number of ELD cases 

across the EU may now be around 50 

1) most cases relate to damage to water and land and only a limited number 

to protected species and natural habitats. 

2) in most cases primary remediation measures were applied immediately 

(excavation and soil replacement as well as clean-up of water, aiming to 

restore the site’s baseline condition). However, none of the cases reported 

included information about the other two types of remediation 

(complementary and compensatory) 


Ref. AD-HOC Industry report February 2010 


Why Limited Implementation 




Consortium 


Consortium 

The competent authorities judged that the most difficult 

issues were the complex technical 

requirements linked to the economic evaluation of damaged 

resources/services and 

environmental remediation methods, as well as the lack of 

binding thresholds for key terms 

such as ‘significant damage’. 


Consortium 

2

2. Comments made by EFCA in 2001 (as an example) 

-Definition of the operator (various parties may exercise 

control and act conflictingly) 

-The operator has to establish that the cause of damage 

occurred before the environmental liability regime was 

implemented 

-Apportioning liability (now depending on country rules) 

-Defences to liability (has now been incorporated as state 

of the art defence or permit defence) 

-Objective of restoration is not clear (now loss of 

services) 




Consortium 

Conclusion: tools are needed in selecting appropriate remediation 

Annex II of the Directive recommends the use of resource equivalency 

methods (REM) in the assessment of environmental damage and selection of 

appropriate remediation projects. 

REMEDE 

REMEDE (Resource Equivalency Methods for Assessing Environmental Damage 

in the EU) is funded under the 6th Framework Programme of the European 

Commission for this purpose, in particular to: 

“develop, test and disseminate resource equivalency methods appropriate for 

determining the scale of complementary and compensatory remedial measures 

necessary to adequately offset environmental damage.” 



Consortium 

3

Environmental liability enforcement 

in Croatia 

institutional aspects and experience 

This Project is funded by the European Union Project implemented by Human Dynamics Consortium 


Bojan Lalić, LL.M. 

Ministry of Environmental Protection, 

Physical Planning and Construction 

tel: +385 (0)1 3782 193 

bojan.lalic@mzopu.hr 

Legal Framework 

• Directive 2004/35/EC of the European Parliament and 

of the Council of 21 April 2004 on environmental 

liability with regard to the prevention and remedying 

of environmental damage, as lastly amended by the 

Directive 2009/31/EC 

• Environmental Protection Act (OG 110/07) 

• Regulation on the Manner of Establishing 

Environmental Damage (OG 139/08) 

• Ordinance on measures for environmental damage 

remediation and remediation programmes (OG 

145/08) 


Basic concepts 

• Significant environmental damage 

– Plant and/or animal species and their natural 

habitats, landscape structures (protected 

species) 

– Waters 

– Sea 

– Soil 

– Earth’s lithosphere 

• Imminent threat of environmental damage 


1


Basic concepts (2) 

• Dangerous activity (Annex I–Regulation) 

– Principle of strict liability (causality) 

• Other (non-dangerous) activities 

– Principle of subjective liability (intent, serious 

negligence) 

– Protected species 

• Principle of solidarity 

• Last operator pays 


Competent authorities 

• Ministry - for environmental protection 

- for water management 

- for sea 

- for nature protection 

- for health protection 

- of Interior 

• National Protection and Rescue Directorate 


Determination of the damage/imminent threat 

• Determination of the operator 

– Inspectorate of the competent 

authority/authorities 

– Ministry of Interior 

• Assessment of the damage/threat 

– Authorised assessor 

– Operator 

– Criteria 


2


Imminent threat 

• Ministry(s) or Nat’l Protection & Rescue Dir 

– Request data from operator 

and by issuing an order: 

– Request taking of necessary/emergency 

preventive measures from operator 

– Give instruction 

– Take (necessary) preventive measures itself 

• Order of a county/municipality 


Environmental damage 

• Operator 

– Inform NPRD 

– Take possible and practicable remedial 

measures 

– Cooperate with a Ministry in setting remedial 

measures or 

– Submit a restoration programme (RP) for 

approval prepared in accordance with the 

guidelines (Annex II-Regulation) by an 

authorized person 


Environmental damage (2) 

• Ministry(s) 

– Request data from operator 

– Order to take possible remedial measures 

– Approve a RP with instruction to operator 

– Elaborate a RP and take remedial measures 

itself using guidelines (Annex II-Regulation) if 

operator didn’t take, unable, unknown 

– Propose the Government to determine an 

endangered area 

• County/municipality approve/elaborate a RP 


3


Compensation for costs 

• Operator bears the costs of: 

– Damage assessments 

– Determination and implementation of 

preventive/remedial measures 

– Monitoring of effects of RP on the environment 

• If measures unsuccessful, liable for 

compensation equal to the economic and 

ecological value of the destroyed asset 


Compensation for costs (2) 

• Claim for compensation 

– State (State Attorney, Croatian Waters) 

– County/municipality 

• Exceptions for operator 

– vis major 

– Third party action 

– Compliance with mandatory order/instruction 

– Permitted emission or event 

– State of art defence 




4

Regional Workshop Environmental Crime/Environmental ... - RENA

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