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Home arrow Environment arrow Fighting Environmental Crime in Europe and Beyond: The Role of the EU and Its Member States
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Traditional Enforcement Approach

The following features characterized traditional approaches to environmental criminal law when it first emerged (in the 1970s—1980s for most countries): environmental criminal law could be found in administrative laws (Sect. 2.1); there was a strong administrative dependence of environmental criminal law (Sect. 2.2); and criminal law seemed to be the primary tool to enforce environmental law, as there were not many alternatives available (Sect. 2.3).

The Place of Environmental Criminal Law

Criminal law aiming at the protection of the environment usually came as an appendix to legislation having largely an administrative character. As an example of this approach, Article 2 of the Belgian (Federal) Surface Water Protection Act of 1971 prohibited the emission of substances, polluting or polluted liquids or gases into the surface waters. A stipulated exception to this rule allowed for the discharge of wastewater for which a licence was granted in accordance with the provisions of this Act (Faure 1992, 77-83). Article 5 subsequently held that all discharge of wastewater be submitted to a licence. The remainder of the Act specified which administrative authority could provide the discharge permit and which conditions could be imposed in such a permit (Surface Water Protection Act, OJ of Belgium, 1 May 1971).

The criminal law could be found in Article 41, which among other things punished anyone who violated the provisions of this Act itself or the executive orders given based on it, particularly anyone who discharged wastewater into surface water without a permit, violating the permit conditions of Article 5.[1]

The structure of this criminal provision shows a strong relationship between administrative law and environmental criminal law, and unlike other criminal provisions, the description of environmental crime cannot be found either in a specific environmental code or in the penal code itself. Belgium was not the only country where environmental crime could be found in environmental statutes of an administrative nature. In France, for example, the major provisions concerning environmental crime emerged in the 1970s, in an Act of 15 July 1975 concerning the elimination of waste[2] and in an Act on Classified Installations of 19 July 1976.[3] Article 18 of this Act, inter alia, punished anyone who would operate an installation without the required licence.

Although in the 1980s, environmental criminal law in most European countries was still in its infancy, some countries did incorporate environmental crime into their penal codes. A striking example in this respect is Germany. As a result of the entry into force of the eighteenth Strafrechtsanderungsgesetz (Criminal Law Reform Act) on 1 July 1980, provisions concerning environmental crime were incorporated in sections 324 and following of the German Strafgesetzbuch (penal code). According to German legal doctrine, the incorporation of environmental crimes into the penal code had an important symbolic effect and was supposed to serve the general preventive effect of the criminal law and to facilitate prosecution (Tiedemann 1980, p. 18).

Another example is represented by the Netherlands, where provisions aiming at the protection of surface waters could be found in its penal code as early as an Act of 13 November 1969 aiming at the protection of surface waters (Heemskerk and Ubachs 2001, pp. 9-11). In 1989, those provisions were changed into Articles 173a and 173b of the penal code that punished unlawful emissions into the soil, air or surface waters if the perpetrator would have reasons to suspect that this could lead to danger for public health or danger of death for another human being (Ubachs 2001, pp. 12-14). However, for a variety of reasons those provisions were also criticized both in Germany (Heine and Meinberg 1988) and in the Netherlands (Faure 1997), primarily because they could only be applied if there had been a violation of administrative duties, making protection awarded by the criminal law completely dependent upon administrative law.

  • [1] Article 41 also provided other prohibitions that were criminalized, but that is not material forthis discussion. For more details see Mandiberg and Faure (2009, p. 453).
  • [2] Loi No. 75-633 of 15 July 1975 Relatif a l’elimination de dechets et la recuperation desmateriaux, published in Faure and Heine (2000, pp. 128-130).
  • [3] Loi No. 76-663 of 19 July 1976 Relatif aux installations classees pour la protection del’environnement, published in Faure and Heine (2000, pp. 133-136).
 
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