On 15 December 2021, the European Commission adopted a proposal for a new EU Directive on the protection of the environment through criminal law. The proposal defines new environmental crimes, sets a minimum level for sanctions, and obliges the Member States to support and assist people who report environmental offences and cooperate with the enforcement.
The Commission’s proposal requires specific attention concerning the risk of endangering swift approval of infrastructure projects. In future, administrators in the respective authorities will be held liable in case of criminal offence.
The critical part for the business of construction is Article 3 (1)(d):
“Member States shall ensure that the following conduct constitutes a criminal offence when it is unlawful and committed intentionally:
(d) the execution of projects referred to in Article 1(2)(a) of Directive 2011/92/EU of the European Parliament and of the Council without a development consent or an assessment with regard to their effects on the environment, which causes or is likely to cause substantial damage to the factors defined in Article 3(1) of Directive 2011/92/EU;”
According to Article 3(2) serious negligent conduct should also be treated as sufficiently grave to be criminalised. This extension to serious negligence is disproportionate as administrators fear being punished in case of wrong decisions or mistakes. Instead of supporting swift transposition of infrastructure projects, which are urgently needed to facilitate decarbonisation, these administrators will hesitate to take the required steps.
To avoid any counterproductive delays to projects assuring safety and progress FIEC calls for a limitation of the administrators liability to intention and consequently delete the reference to Article 3 (1) (d) in Art 3 (2). Cases of negligence should be excluded.