The legal organization of Dutch environmental criminal law

The penalization of environmental offences in the Netherlands differs from the penalization of classic offences such as murder or theft. Except for an occasional environmental offence in the Criminal Code and except for the applicability of, for example, forgery in environmental cases, penalization of environmental offences takes place via the Economic Offences Act.

At the time that this Act was realized in 1950 its purpose was to protect the restoration of the economic order after the Second World War and it initially only comprised economic offences. From the seventies onwards the legislator used it increasingly to penalize also environmental crimes.

The Economic Offences Act itself does not describe criminal offences. It merely lays down maximum penalties for the violation of other, substantive acts with respect to the economy or the environment. It also harmonizes these penalties, since it determines the same penalties for the violation of an abundance of laws. In a great number of cases that maximum penalty for violation if committed with criminal intent is a prison sentence of six years, a fine of € 76,000 for natural persons or of € 760,000 for legal persons or the closing down of the company within which the offences have been committed for the duration of a year.

These substantive economic and environmental offences are summed up in the Economic Offences Act in a list of economic offences and in a list of environmental offences. If the legislator wishes to penalize the violation of a new act, he only has to include the relevant provisions in the list of Section 1 (economic acts) or in the list of Section 1a (environmental acts). By now the list of environmental offences has become longer than the list of economic offences and includes hundreds of provisions.

This contribution does not go into the organization of investigating, prosecuting and trying environmental offences in the Netherlands. Suffice it to say that as of 2005 the prosecution of environmental offences is done by a specialized national prosecution service, the so-called Functional Prosecutor’s Office. This also deals with the majority of the fraud cases. The investigation of environmental offences is very fragmented. It is a responsibility of, amongst many others, the police.

Environmental criminal law among other systems

Dutch environmental criminal law can only be properly understood, if one realizes that it is related to three other branches of law.

The first of these is common criminal law. Environmental criminal law is a full part of criminal law, since its general provisions (definition of perpetratorship, types of punishment, powers of investigation, procedural law, etc.) also apply to environmental criminal law. And the organizations that are traditionally charged with the application of criminal law (police, Prosecution Service, the criminal courts), have a responsibility in this field, too.

Nonetheless, the specialism of environmental criminal law turns out to be an outsider in criminal law that these traditional organizations have difficulty with. As it happens, it deviates substantially from regular criminal law in a number of respects. Usually, it is impossible to point out direct victims, and thus no reports are filed with the police. Often it is not immediately obvious why a violation of an environmental regulation is an infringement of the legal order. Moreover, the regulation is usually of a more complex nature than that of traditional criminal law.

All this often leads to a troubled relation between (the organizations of) environmental criminal law and common criminal law. But environmental criminal law is criminal law and therefore targets criminal behaviour. The “courtroom dynamics” of the criminal proceedings work in the same way in environmental criminal cases. As phrased by the presiding judge of the Rotterdam District Court at a symposium held in May 2011 : “A public prosecutor of environmental cases who is not aware of how the proceedings about pre-trial detention work, has a big problem”.

The second branch to which environmental criminal law is related is administrative enforcement and thus administrative law. Any environmental violation will lead to the competence and in principle even the obligation of the administrative body in charge of supervision, to act against that violation. The administrative authority (inspectorates of departments, municipalities, provinces, environmental offices) can force a violator on penalty of periodic payments to cease a violation or to undo this.

The consequence of this is that, in case of an environmental violation, the Prosecution Service can act on the ground of the suspicion of a criminal offence and at the same time, the administration must act to have the violation stopped. This requires an exchange of information between both legal systems and a coordination of their actions.

For a number of reasons this relation turns out to be problematic. The administration, and thus administrative enforcement, is responsible for serving the environmental interest and therefore to bring violations to an end. This termination solves the problem. Moreover, the administration has a compound duty in this. It is also responsible for the economy, traffic and spatial planning, the interests of which may conflict with environmental interests.

Criminal law, in contrast, has a duty to combat criminal behaviour. From that point of view it is not the environmental interest that is of prime relevance, but concepts such as retaliation, deterrence, confirming legal standards and confiscation of criminally obtained benefits.

All this leads to criminal law and administrative law speaking different languages and up to now coordination between the two has been laborious. This problem is aggravated by the fragmentation of the administrative bodies active in relation to the environment (about 500 institutes), by an inadequate exchange of information and by the fact that occasionally Dutch governmental bodies themselves are suspected of having violated environmental law.

European rules to protect the environment

The third field with which Dutch environmental criminal law is continually in touch is the European regulations on the environment.

To illustrate this I list three areas of environmental protection for which the Union lays down the rules, either directly in the shape of a regulation or as an instruction to the member states in the shape of a directive. These three areas are the transboundary transport of waste, the production of and trading in substances that affect the ozone layer and working with hazardous substances on a large scale.

These three areas are examples. The substance of Dutch legislation to protect the environment is almost entirely determined by Europe. Other examples would be agriculture, nuclear energy, protected animals and plants, etc.

Waste shipments

The first area is that of transboundary shipments of waste. It is hard to overestimate the importance of this subject. According to estimates by the Dutch Ministry of Infrastructure and Environment 15% of all container shipments involve waste.

All transboundary shipments of waste are covered by the Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste – the Waste Shipment Regulation (WSR). This regulation formulates a system of export and import prohibitions and compulsory notifications for international waste transports. The WSR is also meant to implement the commitments of the Basel Convention of 22 March 1989 on the control of transboundary movements of hazardous wastes and their disposal, which the Union is party to.

In Article 2(35), the Regulation defines illegal shipment as any shipment of waste effected

1. without notification to all competent authorities concerned pursuant to this Regulation; or

2. without the consent of the competent authorities concerned pursuant to this Regulation; or

3. with consent obtained from the competent authorities concerned through falsification, misrepresentation or fraud; or

4. in a way which is not specified materially in the notification or movement documents; or

5. in a way which results in recovery or disposal in contravention of Community or international rules; or

6. contrary to Articles 34, 36, 39, 40, 41 and 43 (export and import prohibitions, dR); etc.

The Dutch legislator has forbidden these illegal shipments by Section 10.60 clause 2 of the Environmental Management Act, which forbids carrying out actions as referred to in Article 2(35) of the WSR. Subsequently, these violations have also been made punishable by including Section 10.60 in the environmental list of the Economic Offences Act.

Ozone layer depleting substances

A second example is the Union’s restriction of ozone layer depleting substances by means of the Regulation (EC) No 1005/2009 of the European Parliament and of the Council of 16 September 2009 on substances that deplete the ozone layer.

Similar to the WSR this is a regulation that has been formulated after the Union as such has become party to two worldwide conventions, viz. the Vienna Convention for the Protection of the Ozone Layer and the Montreal Protocol on Substances that Deplete the Ozone Layer.

The structure of this regulation is in many ways comparable to that of the WSR. The Regulation lays down rules to control the production, use, importing and exporting of substances that deplete the ozone layer, such as hydrochlorofluorocarbons. These rules are directly binding to, for instance, the producers.

As one of the main provisions I quote

Article 20 Trade with a State not party to the Protocol and a territory not covered by the Protocol

1. Import and export of controlled substances and of products and equipment containing or relying on controlled substances from and to any State not party to the Protocol shall be prohibited.

Violation of the rules of this regulation is forbidden in the Netherlands on the basis of the Implementation Decree EC-Regulation on ozone layer depleting substances, which determines in Section 3 that it is forbidden to act in contravention of various sections of the Regulation. Acting in contravention of these prohibitions is punishable since the decree is based on Section 9.2.2.1 of the Environmental Management Act and all decisions on the basis of this Section have been included in the environmental list of the Economic Offences Act.

In one respect, however, the ozone Regulation surpasses the WSR because it gives the European Commission a task for its implementation. It is the Commission that issues import and export permits (Article 15, 17 and 18) and Article 27 obliges the producers of these products to report to the Commission on an annual basis.

As indicated below the Commission can, in individual cases, address a request for enforcement to the member states following these reports.

Major accidents involving dangerous substances

The European rules for working with large quantities of hazardous substances, for instance in the petrochemical industry, differ from the two previous examples, because these rules were formulated in a directive. The Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances, known as the second Seveso Directive is aimed, according to Article 1, at the prevention of major accidents which involve dangerous substances, and the limitation of their consequences for man and the environment.

I list the three obligations that, on the basis of the Directive, the member states should impose on companies that covered by it.

Article 5 General obligations of the operator

1. Member States shall ensure that the operator is obliged to take all measures necessary to prevent major accidents and to limit their consequences for man and the environment.

Article 7 Major-accident prevention policy

1. Member States shall require the operator to draw up a document setting out his major-accident prevention policy and to ensure that it is properly implemented. (etc.)

Article 9 Safety report

1. Member States shall require the operator to produce a safety report. (etc.)

The Dutch legislator has taken over these provisions in a governmental decree, viz. the Decree on Risks of Major Accidents (BRZO) 1999, more precisely in clauses 1 and 2 of Section 5 and in Section 9.

Not meeting these provisions is punishable. The BRZO 1999 is, after all, inter alia, based on provisions from the Environmental Management Act and from the Working Conditions Act and these provisions have been included in the lists of the Economic Offences Act. It has sometimes, by the way, resulted in technical legal problems in criminal cases that the Environmental Management Act is included in the environmental list of the Economic Offences Act and that the Working Conditions Act is included in the economic list.

The obligation for the member states to impose criminal sanctions

As described above, the Dutch legislator has sanctioned the two Regulations and the Directive by determining that their violation constitutes a punishable offence. In the Regulations, the Union has indeed made it obligatory for the member states to penalize their violation.

For the WSR this has been laid down in the first clause of Article 50.

Enforcement in Member States

Member States shall lay down the rules on penalties applicable for infringement of the provisions of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive.

The ozone Regulation has the same provision. This obligation was formulated slightly differently in the preceding Regulation (No 2037/2000).

Article 21 Penalties

Member States shall determine the necessary penalties applicable to breaches of this Regulation. The penalties shall be effective, proportionate and dissuasive.

The text of the provision of 2009, however, is equal to that of the WSR.

Member States shall lay down the rules on penalties applicable to infringements of the provisions of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive.

The Directive on major accidents does not contain any stipulation regarding the punishment of infringements.

Thus, the two Regulations do oblige the member states to impose serious punishments following violations, but not that the sanctions have to be of a criminal nature.

This is different in Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law. This determines that the member states are obliged to define the actions described in Article 3 as a criminal offence. And this obligation for the member states applies to all three areas mentioned.

Article 3 Offences

Member States shall ensure that the following conduct constitutes a criminal offence, when unlawful and committed intentionally or with at least serious negligence:

(…)

(c) the shipment of waste, where this activity falls within the scope of Article 2(35) of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste and is undertaken in a non-negligible quantity, whether executed in a single shipment or in several shipments which appear to be linked;

(d) the operation of a plant in which a dangerous activity is carried out or in which dangerous substances or preparations are stored or used and which, outside the plant, causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants;

(…)

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

Such actions must be threatened with criminal sanctions :

Article 5 Penalties

Member States shall take the necessary measures to ensure that the offences referred to in Articles 3 and 4 are punishable by effective, proportionate and dissuasive criminal penalties.

What is striking in these various provisions is that they impose the obligation on the member states to make violations of the rules of the Regulations or Directive punishable by law. An instruction for effective investigation and prosecution is not explicitly given. This, however, should be understood implicitly, since it is not likely that the European regulator meant his standards to be mere symbolic legislation.

Elsewhere, an obligation for the member states to actually impose sanctions in case of an infringement has been formulated more explicitly. In the field of the protection of flora and fauna, clause 1 of Article 16 of the Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein reads

Article 16 Sanctions

1. Member States shall take appropriate measures to ensure the imposition of sanctions for at least the following infringements of this Regulation (etc.)

The practice of criminal sanctioning in the Netherlands

The criminal practice in the three areas in the Netherlands looks as follows.

Waste shipments¹

Prosecution for illegal shipments of waste has been marked as a priority by the Public Prosecutor’s Office. In the years 2006 through 2009 about 200 cases a year have been dealt with. In 2010 this number dropped to 90 due to unknown causes.

The prosecution policy has been laid down in an internal instruction by the Chief Public Prosecutor with the Prosecutor’s Office. In case of transport of waste without the required notification the starting point is a fine of € 450 for each transported metric ton. It goes without saying that in case of a violation of an export prohibition or fraud a more severe punishment is appropriate.

The Dutch Prosecution Service has laid down this prosecution policy without coordinating this within Europe. It turns out that elsewhere sometimes comparable sanctions apply, but it also happens that the policy abroad deviates quite markedly from the Dutch. This can lead to a case as follows.

In January 2009 a Portuguese firm shipped nine containers with a total of 184,000 kilos of rubber and synthetic waste (code B3080) to Vietnam. The transport was carried out via Rotterdam and there Customs found that the transport took place in contravention of Article 36 clause 1 under f of the WSR because Vietnam has forbidden the importing of such waste.

The Prosecutor’s Office in Rotterdam intended to submit the case to the district court and to demand a fine of at least € 100,000. But then the lawyer of the company informed us that the Portuguese Ministry of the Environment and Spatial Planning (Ministério do Ambiento e do Ordenamento do Território) had imposed a fine of € 1,600 on the company for the very same transport. The Rotterdam District Court declared (of course) the Dutch Prosecution Service inadmissible on the basis of the prohibition of double punishment.² As an aside I note that apparently the fine in Portugal was not of a criminal, but of an administrative nature.

The issue of the criminal approach in Europe of illegal waste transports is also monitored, by the way, by a number of national Courts of Audit. At this moment eight Courts of Audit, viz. those of Bulgaria, Greece, Hungary, Ireland, Norway, Poland, Slovenia and the Netherlands are involved in a coordinated audit into the enforcement of the WSR. The results are expected in the last quarter of 2012.

Ozone layer depleting substances

In contrast to WSR violations the Netherlands does not have a policy for the criminal settlement of violations of this Regulation, let alone that any European agreement has taken place for this settlement. And only rarely has a criminal investigation been instituted for such cases.

One example is a current criminal case that has been investigated at the instigation of the European Commission. The latter requested the Dutch inspectorate of Public Housing, Spatial Planning and the Environment for enforcement after a chemical plant had reported to the Commission on the basis of Article 27 of the Regulation.

This case concerned a suspicion of a number of infringements of the Regulation, specifically export of hydrochlorofluorocarbons without an export authorisation, taking back part of this without an import authorisation and (especially) trading with a non-party to the Montreal Protocol.

The request of the Commission reads as follows:

We are concerned by the high number of violations, the volume involved (…) and in particular (the export to a non member to the Montreal Protocol) which has already raised concerns at the Ozone Secretariat.

Therefore, we would like to ask you to investigate this case further and ensure that the Regulation (EC) No 1005/2009 is properly enforced in your Member State. (…)

Subsequently, the case was subject of a criminal investigation, which led to a report on the company concerned. At the time of writing of this contribution it is up to the Prosecuting Service to judge what an appropriate criminal sanction would be. There is, however, not a national guideline for this and at a European level no reference material is known or at any rate accessible.

Major accidents involving dangerous substances

Violations of the BRZO 1999 are prosecuted more often, albeit usually in conjunction with prosecution of other violations, for instance of the environmental permit. If indeed a serious accident with hazardous substances occurs, there is, in principle, the obligation to institute a criminal investigation on the basis of a designation of the Dutch Board of Procurators General. There is, however, no policy for the punishment that should be demanded in such cases. And no criminal policy at all has been formulated for violation of the obligation to draw up a prevention policy and a safety report.

An example of a case that concerns a violation of Section 5 clause 1 BRZO 1999 is that of a large storage and transshipment company in the Rotterdam Europort District following a massive fire on the premises. The fire was caused by using equipment on a pumping platform to loosen a bolt that was stuck. The equipment hit steel, thus causing a spark that shot into an open pipe with combustible substances.

The ensuing criminal proceedings involved the allegation that since the company did not use reduced-sparking equipment and did not carry out measurements on the platform into the presence of explosive fumes, it had not taken all measures to prevent consequences for man and the environment.

In the end the Court only considered that part of the indictment proven that concerned not carrying out measurements on the platform. The Rotterdam District Court and in the appeal case the Court of Appeal in the Hague imposed a fine of € 45,000 that eventually was decreased by the Supreme Court to € 42,500 due to expiration of the reasonable term of trial.³ For these punishments, too, one can conclude that they were imposed without the courts knowing what is imposed as a punishment in comparable cases elsewhere in Europe.

Conclusion and first ideas of a solution

Exceptional position of environmental criminal law

The conclusion from the above is that the Netherlands penalizes violation of the rules in the three areas of environmental protection and that those violations are in fact criminally prosecuted. This is done either on the basis of a chosen policy or on a more incidental basis.

However, in none of these cases, there is any coordination at a European level with regard to sanctions or interpretation of terminology. This is true for the Netherlands, but I have no reason to think this might be different in other member states.

This nationally oriented approach has two consequences as the two flipsides of a coin. Firstly, if the actual sanctioning of a European rule is only nationally determined, this rule is not fully applied, at any rate not as a European rule. This also affects the level playing field for corporate activities in the Union. The quoted example in the Portuguese-Dutch WSR case is a striking example of this.

Secondly, this situation contributes to the exceptional position of environmental criminal law, which it takes in anyway at a national level. This isolation makes this part of criminal law vulnerable and does not help its functioning.

To stop this isolation connections should be introduced or reinforced. The connection with regular criminal law and with administrative enforcement is an issue at a national level. To achieve this, the Netherlands is now indeed taking initiatives.

First ideas on a solution

Apart from this, the orientation within Europe, at any rate with respect to the criminal sanctioning of violations of European rules⁴, should be reinforced.⁵ It seems desirable to make at least two steps in that direction.

It would be good if prosecutors charged with prosecution of environmental cases would form a network to exchange information at a practical level. This should not be a conference network, but a coordinated system to exchange case law.

I know of two initiatives for such a network, which are both in their very early stages. One originated at the seminar on Investigation, prosecution and judgment of environmental offences, held from 24 till 27 May 2011 in Durbuy, Belgium. This initiative focuses on the entire field of environmental criminal law.

The second one is the present development of a proposal to build a network of prosecutors within IMPEL-TFS.⁶ This network would be meant especially to exchange information with respect to WSR. This initiative is a follow up to a seminar of environmental public prosecutors in The Hague on 29 and 30 June 2010 on illegal international shipments of waste.

Following from such a network a database should become available with criminal verdicts by national courts on (a part of) the environmental rules coming from the Union. The development of such a database is not very simple, because it demands an infrastructure. Could EURlex offer a solution for this?