Administrative Dependence

One can also easily point out many examples in current environmental legislation where the criminal provisions do not merely punish administrative disobedience but criminalize either endangering or damaging the environment as well. Again, one must be circumspect of generalizations since similar provisions were occasionally adopted as far back as the 1990s, in select cases with a better incorporation of the environment as protected interest already existed (such as for example in Germany). These types of provisions, however, increased after the reforms of the 1990s and into the 2000s. When one, for example, envisages the new Article 278 and following in the Portuguese Criminal Code, it is striking that these provisions target endangerment of the environment and serious pollution. There is still some administrative dependence—a condition for criminal liability is still unlawfulness (Faure and Heine 2000, p. 283). The same can be found in the new provisions of the Spanish Criminal Code, which do not only punish administrative disobedience but also illegal emissions; Article 325 criminalizes the engagement in environmentally dangerous activities in infringement of administrative laws. When these activities cause serious endangerment of human health there is, moreover, an aggravated circumstance and hence a higher sanction. These provisions in the new Spanish Criminal Code hence punish the endangerment of ecological values. However, the requirement of unlawfulness still keeps some degree of administrative dependence (Faure and Heine 2000, pp. 293-294).

Similar developments can be found in other more recent instances. In Sweden, for example, Article 29(1) of the Environmental Code 1998 criminalizes the pollution of land, water or air when it occurs in a way that poses considerable risks for human health or detriment to flora and fauna or other significant harm to the environment. Since a legislative change of 2004, also ‘changing the surface and groundwater in a manner that harms or may harm human health, animals or plants’ is now criminalized (Philipsen and Faure 2015, pp. 14—15). Likewise in France, the formulation of environmental crime has changed in the sense that ecological values are safeguarded with greater independence from administrative protocols (Guihal 2000, p. 541).[1]

When one looks at those different examples one could argue that there is, in most legal systems, still some relationship between environmental crime and administrative law. However, compared to the absolute administrative dependence in the old environmental laws of the 1980s, important changes have taken place. Criminal behaviour is now no longer only described in terms of administrative penalty (e.g. the duty to have a permit), but rather in ecological terms (e.g. causing serious pollution). Moreover, although some relationship with administrative law is retained, the formulation has changed. More recently, the criminal liability no longer requires, for example, violation of administrative obligations, but unlawfulness. The latter notion is undoubtedly broader than a mere violation of administrative interest. In that sense, the lessons coming from the legal doctrine discussed above advocating changing from an absolute to a relative administrative dependence have been followed.

  • [1] Article 421-2 of the French Penal Code now has a specific crime of ‘ecologic terrorism’ (seePrieur 2001).
 
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