measures other than criminal ones in cases where ... · summary report provides a comparative...

B4-3040A/2003/369724/MAR/A.3 Study on measures other than criminal ones in cases where

environmental Community law has not been respected in the EU Member States

SUMMARY REPORT

20 September 2004

Table of Contents 1. Introduction ................................................................................................................................................... 5 2. Type of enforcement systems and relationship among different types of environmental liability................ 8 3. Administrative enforcement measures ........................................................................................................ 17

3.1.1. Introduction .............................................................................................................................. 17 3.1.2. Classification/description of situations where administrative enforcement measures apply .... 19 3.1.3. Classification and description of administrative enforcement measures .................................. 21 3.1.4. Summary of administrative enforcement measures by sectors for targeted EU legal act......... 26 3.1.5. Overview of the administrative judicial framework and procedure ......................................... 57

4. Effectiveness of non-criminal measures in relation to criminal measures.............................................. 59

5. Conclusions and recommendations......................................................................................................... 63

ANNEX I: METHODOLOGICAL GUIDELINES ANNEX II: CHECKLIST FOR INTERVIEWS ON EFFECTIVENESS ANNEX III: ORIGINAL ToCs PER SECTOR

This Summary Report has been prepared by the management team of Milieu Ltd. and Huglo Lepage Associates on the basis of the national reports from the EU-15 Member States: - Project Director (Milieu Ltd): Laura Sanz Levia - Deputy Project Director (Huglo Lepage & Partners): Matthieu Wemaere - Project Manager and Legal Co-ordinator (Milieu Ltd): Esther Pozo Vera - Senior Legal Advisor (Milieu Ltd): Gretta Goldenman

The views expressed herein are those of the consultants alone and do not represent the official views of the European Commission. Overall management and quality control rests with Milieu Ltd. (Belgium), 29 rue des Pierres, B-1000 Brussels, tel: 32 2 514 3601; Fax 32 2 514 3603 ; e-mail : [email protected]; web address : www.milieu.be

mailto:[email protected]

http://www.milieu.be/

Study on measures other than criminal ones in the EU Member States/5

1. Introduction Aim of study The European Commission, in its pursuit of an adequate environmental governance framework, is interested in gathering information concerning the enforcement responses to environmental violations in the Member States, and the extent to which administrative enforcement measures are applied. Thus it issued a tender to develop a study on “Measures other than criminal ones in cases where environmental Community law has not been respected in the EU Member States”. The contract was awarded to Milieu Ltd on the basis of the proposal submitted jointly by Milieu and Huglo Lepage & Associés Conseil (hereinafter Huglo Lepage) in December 2003. The aim of the project is to provide the Commission with legal information on measures other than criminal ones, with a particular focus on administrative enforcement measures, in cases where environmental Community law has not been respected in the Member States. As a consequence, the project builds on previous studies commissioned by the EU in the fields of criminal and civil liability and will thus complement the European Commission vision concerning the degree of adequate enforcement of the environmental acquis communautaire at national level. This study was contracted before the enlargement of the EU on 1 May 2004 and therefore covers only the EU-15. A parallel study looks at, at the time five of the Acceding countries, now new Member States, using the same methodology. This project therefore should be viewed with these other studies in mind. In fact, where previous studies aimed to confirm the need for a minimum standard in the establishment and implementation of criminal penalties for environmental offences, this new study aims to evaluate the effectiveness of non-criminal sanctions as compared to criminal ones. The current study focuses on 11 Directives and 3 Regulations dealing with areas of environmental protection where sanctions appear to be particularly appropriate, because of inherent economic incentives for violations and/or because of histories of repeated infringements. These instruments provide for different measures to ensure adequate protection of the environment that may in certain cases explicitly require a clear obligation to public authorities to establish administrative or even criminal sanctions at national level. They include as follows: • Council Directive 75/439/EEC of 16 June 1975 on the disposal of waste oils • Council Directive 75/442/EEC of 15 July 1975 on waste • Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous

substances discharged into the aquatic environment of the Community • Council Directive 79/409/EEC of 2 April 1979 on the conservation on wild birds • Council Directive 83/513/EEC of 26 September 1983 on limit values and quality objectives for

cadmium discharges • Council Directive 88/609/EEC of 24 November 1988 on the limitation of emissions of certain

pollutants into the air from large combustion plants • Council Directive 90/219/EEC of 23 April 1990 on the contained use of genetically modified

micro-organisms • Council Directive 91/689/EEC of 12 December 1991 on hazardous waste • Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild

fauna and flora • Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards

involving dangerous substances • Council Directive 99/13/EC of 11 March 1999 on the limitation of emissions of volatile organic

compounds due to the use of organic solvents in certain activities and installations

Milieu Ltd & National Reports on non-criminal measures Huglo Lepage Summary Report


• Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of

shipments of waste within, into and out the European Community (Basel Regulation) • Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild

fauna and flora by regulating trade therein (CITES Regulation) • Regulation (EC) No 2037/2000 of the European Parliament and of the Council of 29 June 2000 on

substances that deplete the ozone layer (ODS Regulation) The scope of the project is quite broad as it includes all non-criminal measures. The intention was to cover as many measures as possible, and therefore not only sanctions, but also other tools and measures available in the targeted countries. The term “enforcement measures” provided flexibility to adapt to the diversity of the systems, but needed to be shaped to avoid duplication with other studies already carried out. For this reason, although the study intended to cover all non-criminal measures, it was agreed at the beginning of the project that the study should focus on administrative enforcement measures. Methodology used and schedule ahead One of the main concerns when developing the study was to set in place a uniform methodology that would ensure comparability of the countries’ reports, having in mind the diversity of the national legal systems targeted. Each national expert was bound to follow the same methodological guidelines when undertaking their research, including (1) Tables of Concordance (ToCs) for each of the targeted EC Directives and Regulations in order to link the infringement of the EU obligation with its respective enforcement measure at national level and (2) national reports providing a general overview of the non-criminal measures and the effectiveness of such measures as compared to criminal ones. The original scope of the study was refined during the inception period in order to focus on the relationship between the administrative or quasi-criminal system and the criminal one, leaving aside an in-depth analysis of other non-criminal measures, i.e., civil measures. The methodological guidelines and tools were tested, discussed and refined following a team workshop in Brussels, which brought together the management team, the national experts and the European Commission task manager. In addition, the legal team coordinator was constantly in contact with the national experts and the Commission ensuring the uniformity of the content of the reports, as well as solving any challenges that the experts may have experienced throughout the life of the project. Finally, the management team carried out overall quality control, commenting on the different deliverables coming from the national experts and revising them as needed to ensure clarity and comparability. The final step in the project was a workshop in Brussels on 10 September 2004, where the conclusions of the reports were discussed with the relevant officials at DG Environment. Challenges encountered and tailored solutions The first and most obvious problem the study faced was the diversity of the systems in the fifteen Member States. This raised a number a conceptual problems. In common law systems the concept of administrative sanctions does not exist and only administrative measures could be identified. But even among the continental systems the nomenclature varied highly, because of differences in historical traditions and doctrinal lines followed in each country. Moreover, to the traditional differentiation between the continental and common law systems, a new category of regimes had to be added, that of the quasi-criminal law systems (Germany and Austria). The first obstacle was to differentiate administrative sanctions as such from other administrative measures. This task became more complicated in countries with systems of quasi-criminal measures. Comparability was difficult where there was no agreement on the terminology used. This obstacle was overcome by requiring all experts to provide conceptual clarifications and definitions of key terms used throughout the study.



The second obstacle was found when trying to assess the effectiveness of the administrative/quasi-criminal measures in comparison with the criminal ones and was associated with the risk of a higher degree of subjectivity from the national experts. To counter this, our methodology provided some indicators and tables for gathering statistical data, as well as a uniform questionnaire to guide the national experts’ interviews with the enforcement authorities on effectiveness (see Annex II for the indicative questionnaire used to guide interviews). The main challenge arose when the national experts found that only very limited information (and sometimes even no information at all) had been gathered by the Member States to date. No statistical information was available on the average amount of administrative fines that could allow a comparison with criminal fines; similarly, data on recidivism was almost non-existent. In those cases where the country had a decentralised structure the situation was more complicated because (1) normally the central administration did not gather information on administrative infringement cases and sanctions and (2) each federate structure had different ways to aggregate statistical information, if any. This made it difficult to have an overall picture of the administrative enforcement system within the national territory. The current tables included in the national reports are therefore to be understood with these practical limitations in mind. The lack of comprehensive statistical data has been supplemented at all times by extensive interviews with the relevant enforcement authorities. Structure of study The study itself comprises this summary report along with 15 individual National Reports. This Summary Report provides a comparative assessment of the different measures in the 15 Member States under study, with a particular focus on those of quasi criminal and administrative nature. It includes an overview of the different systems existing in the targeted countries to enforce environmental law, as well as the relationship among them. In addition, it contains a specific section expanding on the administrative enforcement measures available in each country, together with a reflection on their effectiveness when applied in practice. Finally, it provides conclusions and suggestions for future action in this area. The National Reports follow a common structure. The National Reports start with an overview of the different systems to enforce environmental law, as well as the relationship among them via the analysis of a practical case study. Then it focuses on the administrative (and the so-called administrative criminal law or quasi-criminal) regimes, expanding on the description of the situations where administrative enforcement measures may apply, a classification and description of these administrative enforcement measures, as well as a classification of these measures by sector, and an overall picture of the administrative and judicial framework and procedure. Finally, it provides a reflection on the effectiveness of the existing administrative (and quasi-criminal) enforcement measures when applied in practice. Each National Report includes two annexes. Annex I includes the completed Tables of Concordance (ToCs) for each targeted instrument ordered by sector (waste, nature protection, chemicals and biotechnology, industrial pollution and water) while Annex II contains the list of the relevant national transposing/enforcing legislation with hyper links allowing electronic access to the texts, whenever publicly available in electronic form. Each TOC is preceded by an introduction that provides a summary of the content of the table followed by a list of the EU obligations linked to their respective administrative or/and quasi-criminal sanction in national legislation. For some countries there is no list describing the relevant offences but rather a general provision which states that any infringement of the targeted instrument will be considered an offence. For this type of provisions, the term “catch-all” was used. For more details please see section 3.2.1. For national legislation setting administrative measures via “catch-all” provisions, no links between specific national measures and the EC obligation existed, and therefore, as potentially any infringement of the provisions transposing the EC legal act could be an administrative offence, the



table was simplified by only completing the first row. In these cases, the competent authority handling the case has discretionary power and therefore would be essential to decide whether a conduct is an offence or not. As the aim of the study was to identity the specific non-criminal measures for violations of specific provisions of the EC legal act, this solution seemed to be the most accurate and precise in order to avoid the impression that specific provisions existed for violation of the specific provision of the EC legal act, when in reality that was not the case. On the other hand, when a national legislation transposing the EC legal act was enforced only through criminal law, the entire body of the ToC was deleted, as no specific non-criminal measures were available in that country for that instrument. In the case of the Regulations (Basel Regulation, CITES Regulation and ODS Regulation) it was found that for many countries only a few provisions were enforced by administrative measures. Therefore and having regard to the length of the ToCs, it was decided to simplify these ToCs leaving only those rows where particular EC provisions matched specific administrative enforcement measures. Because of these simplifications in many of the national ToCs and to have a clear picture of the provisions of the EC act enforced by specific administrative provisions, the blank ToCs distributed among the experts have been added as an annex to the present Summary Report (Annex III). In all cases, the introductory page to the ToC states the reasons why the particular ToC has been simplified. In the case of ToCs that were neither simplified nor deleted, when the specific provision of the EC instrument did not match a specific administrative enforcement measure under national law, the expression “no specific administrative enforcement measure in national law” was added. This means that there is no specific administrative enforcement measure available for that EC obligation in national law, e.g., because the enforcement measure applicable for that specific provision was criminal and therefore outside the scope of this study. This was the case for the two common law countries, Ireland and the UK. When the provisions listed in the Directives/Regulations included an obligation addressed to EU bodies or institutions or was a discretionary measure, the row was shaded. Nevertheless, the national experts were requested to fill in the shaded row where specific administrative enforcement measures were found.

2. Type of enforcement systems and relationship among different types of environmental liability

This section aims to provide an initial overview of the types of enforcement regimes in place in the EU-15. A first difference exists between the countries having a continental and common law systems. Continental systems have clearly defined enforcement regimes for the protection of the environment: criminal, administrative and civil. In each of these systems enforcement measures exist for breaches of environmental legislation. In the common law countries (Ireland and UK), the situation is different. Both Ireland and the UK have systems where the protection of the environment is mainly ensured through criminal law. Indeed, the main breaches of environmental law are criminal offences and furthermore, breaches of administrative measures are normally regarded as crimes. Nonetheless, administrative measures could be found in both the UK and Ireland. These measures were named by the experts “administrative tools” (UK) or “regulatory measures” (Ireland), as these systems do not provide administrative sanctions as such. The existence of a specific administrative enforcement regime in the continental countries does not necessarily mean that these countries base the protection of the environment on administrative sanctions. As will be explained later, some of the continental systems have administrative enforcement



regimes that in practice are similar to the enforcement regimes used in the common law systems which focus more on prevention and regulatory measures than on repressive measures. Surprisingly, some continental countries with traditionally strong administrations make more use of these preventive measures than of repressive ones, e.g., in many aspects France is more similar to UK than to Germany. These differences are significant when defining the relationship between the administrative and the criminal regimes. The reminder of this section introduces the three types of enforcement regimes as an introduction to the more specific analyses of the various administrative regimes and their relationships to the criminal enforcement regimes. Civil liability as an enforcement system Civil liability is aimed at the compensation of a private party for the damages or injuries caused to persons or property, and therefore to protect private interests, whereas criminal and administrative law seeks to protect public interests. This protection of private interests through civil law can include damages caused to the environment, as long as the elements of the environment affected are part of an individual’s property. This distinction between public and private law may become blurred if a public authority finds it necessary to claim compensation for damages caused to the common environment or for any costs assumed by the administration e.g., when cleaning up a contaminated site. Analysing only extra-contractual liability, the EU-15 can be grouped into two categories, those where civil liability on environmental matters is based on the traditional civil liability, sometimes adapted to the special characteristics of environmental damage, and those where, together with the traditional civil liability, a specific regime for environmental liability has been developed. All countries still retain the traditional system of civil liability based on fault. This traditional liability includes the protection of neighbours from nuisances, although Austria retains this protection of the neighbour only when the activity that causes damages to property is not subject to authorisation. In some countries (the Netherlands, France, Luxembourg, Belgium, Portugal, Austria, Germany, UK or Finland in certain cases) courts will only find liability on the basis of nuisance if it can be demonstrated that a certain level of nuisance has been reached which exceeds what is considered “commonly tolerated or normal”. This implies that only abnormal nuisances will be compensable. In the case of Austria, in addition the nuisance must not have been authorized besides. The protection of the neighbour normally includes not only the possibility to claim for damages, but also the possibility to claim for the cessation of the activity causing the damage (Spain, Germany, Sweden, Portugal, Greece, Austria, Ireland and UK). For certain issues, such as damage caused by airoplanes and objects falling from outer space, France have adopted a system of strict liability although the judges are reluctant to apply this system. In England and Wales and Ireland, case law has developed a concept of strict liability based on the rule in Rylands v Fletcher1, whereby a defendant will be liable for any reasonably foreseeable harm caused by the escape of anything he brings onto his land which causes damage, and where there is a ‘non-natural’ use of the land. In Spain, strict liability was already present in the Civil Code and has been broadly applied by the Courts. In fact, the civil courts have interpreted other articles of the code, which in principle were based on tort liability, such as Article 1902 of the Civil Code, as to allow for strict liability. Furthermore, civil law provides another tool of a more preventive nature which is the actio negatoria (negation action). This action can be used by the victim to put an end to an activity that may result in damages to his/her property. The countries with a specific liability regime for environmental damages are Finland, Greece, Denmark, Germany and Sweden. Ireland also has a specific liability regime for environment to a

1 Rlyands v Fletcher (1868) LR3 HL 330, House of Lords



limited extent. Discussions about the creation of a specific regime are underway in Austria, Spain and Portugal, which in any case has to be developed in order to transpose the new Directive on environmental liability. All these regimes are based on strict or objective liability, meaning that there is no need to prove the existence of fault or negligence in the behaviour of the polluter to engage his/her liability. The only damage that cannot give rise to a claim for compensation is the damage caused by an act of God (the English term) or force majeure. To obtain compensation the individual must prove that damage was caused and that there was a causal link between the act or omission and the damage caused. In some cases, not only the actual loss suffered by the individual but also the lucrum cessans (loss of future profits) will be compensated. Finland has gone beyond the traditional requirements for proving the causal link to develop the concept of the “probable causal link”. The burden of proof of the casual link between the act or conduct and the damage caused under the old regime was considered too onerous and therefore too difficult for an individual to obtain compensation resulting in inefficiencies in civil environmental cases. The Finnish reform considered that the causal link existed if the claimer could proof that there was at least a 50% probability that the contested conduct caused the damage for which compensation was claimed. In Sweden, the only way to claim for compensation in case of environmental damage is supposedly through the specific regime set forth in the Environmental Code. However, some additional rules from the traditional civil liability related to the protection of neighbours from nuisances can still be applied. Italy is unique in having developed a specific regulation for environmental claims, but the only entities that are entitled to claim and receive compensation are the State or its territorial bodies. In this case, the border lines between the protection of private and public interests have been blurred and academics talk about “anomalous civil and extra-contractual liability”2. The system does not allow for strict liability, and therefore, proof of negligence or intentional behaviour is needed. This regime was developed to address gaps in the traditional civil liability system which only allowed the victim to claim for damages to the environment that affected his/her health. The traditional liability regime was understood to protect a subjective right of the individual linked to health and not the environment as such. The main shortcoming of traditional civil liability is that it only allows compensation to be claimed for damage caused to the victim’s property, and not for the restoration of the environment when it does not affect the victim. When the administration can claim for the damages caused to the environment by a specific activity through civil law, as is the case in common law systems and Italy, civil liability becomes a more general instrument for the protection of the environment and not only of specific private interests. Civil law can also be an interesting tool when it allows individuals who suffered damage due to an action or inaction of the administration, to claim compensation for those damages. This would be the case, for example, when the administration should have adopted measures against an installation that is polluting but failed to, and the activity caused damages to an individual’s person or property. In some countries (such as Austria, Belgium, Germany, Spain, UK Portugal, France or Luxembourg) the victim will be allowed to sue the administration for the damage that the inaction or action of the administration has caused. In some countries this possibility is enacted before the civil courts, i.e., Germany, Belgium, Austria, Ireland, UK or Denmark whereas in others, due to the specific characteristics and powers of the administration, the claim will only be possible before administrative courts, i.e., Spain, Portugal, Luxembourg or France. In Finland this action is based on the Tort Liability Act. Since the burden of proof is very high, it is seldom used in practice.

2 See Italian National Report



Criminal liability In order to better compare administrative and criminal measures available for environmental infractions, this section provides an introduction to the characteristics of environmental crimes in the targeted countries. A more detailed and in-depth descriptions are to be found in previous studies focused on environmental crime3. Whilst common law systems at the end enforce environmental legal obligations mainly through enforcement notices and criminal law4, in the continental systems, enforcement is predominantly through administrative law alone or combined with criminal law. Criminal law appears to be in many cases the ultima ratio, only applicable for very serious cases or where administrative law has been not sufficient to ensure compliance and to put an end to the infringement of the environmental legislation. In this last case, criminal law sometimes serves to give practical effect to administrative enforcement measures, in the sense that non-compliance with the administrative measures will be regarded as a crime. This is the case in UK and Ireland but also in Denmark. The application of criminal law as an ultima ratio as well as the fact that, in many cases, environmental enforcement in practice consists mostly of negotiations with the operator makes the application of environmental criminal law purely anecdotal in some countries. This is the case in Finland (where environmental criminal law was developed only in the 1990s), Denmark or Sweden. Environmental crimes are enshrined in the national criminal code and/or in specific instruments, dealing with environmental issues (see for the last type of cases France, Spain, Italy, Portugal Ireland, Germany, UK, Luxembourg and many others). The list of situations that will be regarded as a crime is not very extensive. Even in those countries where enforcement is primarily via criminal law, i.e., the two common law countries, the very detailed list of criminal offences can be grouped into two or three types of offences (pollution, offences related to permits and licences and safety reports). The scenario is the same for continental systems where criminal offences can range from two to seven types of environmental crimes. The typical environmental crimes refer to situations related to permits or licences, such as carrying out an activity without a permit or in violation of the permit conditions or illegal traffic; or they refer to the more general offence of impairment of the environment and pollution. In many cases the national legal provision describing the environmental crime is constructed as a “blank type”, a term used in this study to refer to provisions where the description of the situation regarded as a crime is not exhaustively defined in the text of the provision describing the criminal behaviour but also includes a more general reference to violations of administrative legislation or permit conditions. The criminal situation described in the provision is therefore partially empty. In order to know if a crime has been committed, other pieces of legislation, such as the environmental code, need to be consulted to know if, according to those pieces of legislation, the conduct is illegal or not and if a crime has therefore been committed. This is the case in Spain, Greece, France, Austria. Luxembourg or Italy. On the other hand, it is possible to find other provisions on environmental offences more traditionally constructed, where the description of the situation is defined exhaustively in the relevant legal provision and there is no need to look at other pieces of legislation (such as UK and Ireland). Examples of this type of offence would be: dumping of waste that may endanger the environment or

3 METRO Report on Criminal Penalties in EU member State’s Environmental Law, (http://europa.eu.int/comm/environment/docum/02544_final_report.pdf); Huglo Lepage Study on Criminal Penalties in EU Member States’ Environmental Law - Study II (http://europa.eu.int/comm/environment/crime/criminal_penalties2.pdf) 4 In common law systems, as it will be seen afterwards, the first measures are administrative but due to the fact that the violation of the administrative measure is a crime, at the end criminal law is applied to enforce environmental legislation. Furthermore, as already mentioned, the main breaches of environmental law are criminal offences.


http://europa.eu.int/comm/environment/docum/02544_final_report.pdf

http://europa.eu.int/comm/environment/crime/criminal_penalties2.pdf


impairment of the environment, as well as various nature protection-related crimes (killing or disturbing species of birds in a protected area). The traditional offences of crimes constructed on the basis of conduct resulting in damage still exist in many countries. However, in most cases the basic environmental crime is a crime of abstract, potential or concrete danger. This means that a conduct will be regarded as a crime as long as it has caused (if it is concrete danger) or may have caused or it is likely (or in UK and Ireland liable) to cause (if it is abstract or potential danger) danger to the environment; there is no need for actual damage. In some cases the situation is even more abstract as solely the act (for example dumping hazardous waste) is enough to commit the crime, such as illegal traffic, and therefore there is not even the need to prove that danger has been or could have been caused to the environment by the contested behaviour. Offences of abstract endangerment are found in the Netherlands, Belgium, Austria, Greece, Germany, Italy, Ireland, UK and Spain. The case of Spain is more complicated as for years the basic environmental crime was considered to require concrete danger. However recent jurisprudence of the Supreme Court has extended the interpretation of the provision to consider that abstract endangerment to the environment is enough for a crime to be committed. Concrete danger is needed in Denmark (the risk of danger has to be very high in order to commit an environmental crime so in practice works as concrete danger) and Sweden. In Finland only situations that resulted in damage to the environment will be regarded as crimes. In the UK, Ireland and France, Luxembourg and Belgium), no danger or risk of harm is needed at all for the attribution of the crime for some offences, although the existence of this potential danger has to be proved. In all countries both wilful and negligent behaviours are admitted. Criminal liability of legal persons5 is possible in all of the EU-15 except Finland, Spain, Germany and Austria (although a new law allowing this will enter into force in 2005) and Portugal. In Italy, although the D. Leg. 231/2001 allows for responsibility of legal persons, environmental crimes are excluded. But even in cases where the legal person is not liable, the managers and directors can be liable for culpa in custodiendo and culpa in eligendo. Spain has overridden the limitation of criminal liability of legal persons through the establishment of accessory measures that are clearly directed towards a company, such as closure of the establishment. This is also the solution found in other countries such as Austria as an administrative enforcement measure to hinder further infringements. Regarding the types of criminal sanctions, these mainly comprise imprisonment and fines. Imprisonment typically ranges between 6 months and 2 years for less important cases and 2 to 5 years for serious cases. In certain circumstances, such as danger to human health or even casualties, imprisonment can reach up to 8 (Portugal) or 10 (Germany) years, but, as will be shown in the section on effectiveness, imprisonment is rarely used. The amounts of fines vary greatly allowing for lump-sums or day/fines. Normally the minimum and maximum amount of lump-sums is indicated by the law, the final amount to be paid being at the discretion of the competent authority, or in the case of Ireland and UK the court. Day/fines system, for continuing offences which exists in Austria, Spain or Ireland, will be explained later on at section 3.1.3. Other sanctions that can be found are confiscation, incapacitation, closure of establishment, removal of gains or the publication of the penalty. Fines become especially important when the system allows for liability of legal persons. Relationship between the criminal and administrative systems There are two obvious links between criminal and administrative law. The first is that in many cases committing a crime requires a breach of administrative legislation (including permits, collaboration with the administration). The second is that in some countries criminal law is used to enforce administrative measures, in the sense that non-compliance with administrative enforcement measures is regarded as a crime (e.g., UK and Ireland).

5 We talk about corporate liability without differentiating between natural legal persons, as it can be done in UK.



Leaving the above-mentioned interactions aside, this section will focus on the differences between the administrative and criminal measures and the possibility of accumulating, i.e., apply in combination, the different regimes. The possibility of accumulating administrative and criminal measures depends, in many cases, on the nature of the administrative measures. Enforcement measures can be considered as those actions taken in order to ensure compliance with the legislation by prevention or by restoring the legality of a situation. One of the most important enforcement measures is the sanction. The sanction differs from other enforcement measures because of their punitive or repressive character. This repressive character does not prevent a sanction from having a preventive dimension, due to the deterrent effect that a sanction usually has. The comparison of administrative and criminal enforcement measures is easier when the administrative regime allows for the imposition of sanctions. For this reason and due to the importance of sanctions, as enforcement measures, and their proximity to criminal measures the comparison made in this section focuses on sanctions. For those countries with a quasi-criminal system in place (Austria and Germany) the measures chosen to compare the administrative and criminal systems were mainly the quasi-criminal measures. The reason for this is that these measures are closest to criminal penalties. The administrative criminal measures are the only ones in those systems that have a punitive or repressive nature, and therefore are the only ones considered as sanctions. Differences between administrative and criminal sanctions Administrative and criminal sanctions are quite similar and, in order to better understand the relationship between the two systems a differentiation between the two could prove to be useful. The aim of administrative and criminal measures may differ depending on the countries. In some the administrative sanctions are considered to have the same nature and aim as criminal ones, having both a repressive and preventive character. In certain regimes the situation may vary due to the application of different doctrinal lines based on the substantial distinction between administrative and criminal sanctions. Such systems support the theory that administrative sanctions intend to protect the interest of the administration and not superior values of the society. There is no social blame in the sanction; rather, the only intention is to re-establish the public order. This differentiation is essential to explaining the possibility of accumulating administrative and criminal sanctions so as to allow for being prosecuted by both the administrative and criminal systems. If administrative and criminal measures do not have the same aim and do not have the same nature, especially a repressive nature, there is no obstacle coming from human rights law, such as non bis in idem, impeding the accumulation. In fact, as we will see later when an enforcement regime does not provide for sanctions, but other types of enforcement measures, the accumulation is normally possible, as these tools do not have a punitive nature. The body imposing the sanction and the proceedings to impose the sanction in many countries will be a clear tool to differentiate between both measures. In most cases the administration or administrative body will be responsible for imposing administrative measures whereas a criminal court will be in charge of imposing criminal measures. The proceedings to impose the sanctions are also different. Except in common law countries where there is not a specific and differentiate procedure to impose administrative sanctions an administrative sanction will be imposed through an administrative procedure whereas the criminal sanction will be imposed through a criminal procedure. The persons liable may well differ. As it has been mentioned before, in certain countries legal persons are not liable for criminal cases whereas there is no such obstacle for the liability of legal persons under administrative law. The construction of the offences is substantially the same as criminal ones. However, as will be shown later in section 1.2, the traditional differences between administrative and criminal law have been blurred. Originally crimes implied intentional wrong doing that resulted in damages, whereas under



administrative law the mere breach of the administrative provision was enough, although sometimes there is a requirement that the conduct be negligent. However new developments under criminal law have given birth to crimes constructed as blank types, where abstract endangerment is enough and which allow negligence. In Denmark, and to some extent in Ireland, fines (considered criminal sanctions) can be imposed regardless of negligence, as a system of strict liability is in place for certain kinds of environmental damages. At the same time, administrative law has assumed many of the principles of criminal law and in some cases some endangerment is needed for the commission of an offence. In many cases the seriousness of the conduct or the result will in practice decide the application of administrative or criminal law. The types of sanctions are normally the same with the exception of imprisonment. In fact only countries with administrative criminal law allow for imprisonment as an administrative criminal measure. One element that is often mentioned to differentiate criminal from administrative measures is that criminal sanctions produce effects by themselves. This means that criminal measures have an impact on the reputation of the person who has been convicted for a criminal offence. As a consequence the criminal sanctions are registered in the personal record of the person. This effect, which derives from the social blame that is behind the commission of a crime, is nowadays being diffused by the possibility of giving publicity to the administrative sanction imposed, such as is the case in Spain, Germany or Italy. For instance in Portugal the creation of a national registry of administrative environmental offenders is under discussion. However, publicity of administrative decisions rarely occurs in practice and thus, it still constitutes one of the main differences between both measures. Accumulation of administrative and criminal sanctions The question of possible accumulation of criminal and administrative measures raises issues related to human rights law, depending on the nature given to the measure and the effect that the measure may have in the person to whom it has been imposed6. If the measure applied has a punitive nature according to the case law of the European Court of Human Rights, (mainly the Öztürk case) the nature of penalties, the principles and guarantees of criminal law enshrined in Article 6 of the European Convention of Human Rights (ECvHR) will be applicable, even if the measure is not qualified at

6 In this sense Article 6 of the European Convention of Human Rights and the case-law on this Article of the Eureopan Court of Human Rights, mainly the Öztürk case, are essential. Article 6 of ECov HR states: Article 66 – Right to a fair trial 1 In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 2 Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3 Everyone charged with a criminal offence has the following minimum rights: a to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; b to have adequate time and facilities for the preparation of his defence; c to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; d to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; e to have the free assistance of an interpreter if he cannot understand or speak the language used in court.



national level by the legislator or the competent authority as a criminal sanction, but, for example, as a administrative or quasi-criminal sanction or measure. These principles include the non bis in idem (which holds that a person cannot be punished twice for the same facts) enshrined in Article 4 Protocol Nr. 7 to the ECvHR, which provides for the prohibition of double punishment and double trial). For the principle to be applied there should be identity of person, facts and basis. In general when it is clear that the interests or the basis for the imposition of an administrative or a criminal sanction differ, then the principle of non bis in idem does not apply. In order to decide whether an administrative sanction can be imposed at the same time to a criminal penalty, the Member States usually refer to the interest protected, the national jurisprudence, as well as the jurisprudence of the ECHR. The importance of sanctions, and not other enforcement measures, when dealing with the accumulation of administrative and criminal systems is therefore because the sanction is the measure containing punitive value. As a consequence, problems of bis in idem or of accumulation of administrative and criminal measures and of not being prosecuted twice for the same facts arise only in relation to administrative measures considered to be sanctions (and in the case of Austria and Germany at the level of quasi-criminal measures, because these are the only measures regarded as sanctions). This issue is of even more importance having regard to the recent tendency to decriminalise certain conduct, through a degradation of the crime to an administrative offence. As a general remark it could usually be said that when accumulation of sanctions is possible normally accumulation of procedures (administrative and criminal) is also possible. Accumulation of criminal and administrative sanctions is always possible in Greece, the Netherlands, Portugal (when different infractions give rise to two different types of liability) and Sweden. Accumulation is possible except when expressly excluded by the law in Belgium, France and Luxembourg. In Portugal the same infraction can give rise to the cumulative application of criminal and accessory administrative sanctions, but not pecuniary ones, except when different infractions have been caused. Also in the case of France, pecuniary administrative sanctions cannot be cumulated to criminal sanctions. When accumulation is possible, the criminal court will take into consideration the sanction imposed by the administrative authority when it imposes the criminal penalty. Accumulation is not possible in Austria, Germany (although administrative sanctions can be auxiliary sanctions), Spain and Italy. In the countries where accumulation is not possible, the administrative authority, in addition to its general obligation to notify the case to the prosecutor, must suspend the administrative procedure, and only when the criminal procedure has settled that no crime was committed, can it continue the administrative infringement procedure. This practice is what is usually called electa una via. In this case, which is the situation for France, Luxembourg, Belgium, Spain, Italy, Austria and Germany, the administrative authority will be bound by the decision of the criminal court with regard to the facts considered proved. It is important to note again that Finland, Ireland and the UK do not have administrative sanctions as such. These countries have regulatory measures of a preventive and remedial nature or coercive measures that are used when a formal notice has not been complied with by the person on whom it was served. In the case of Finland criminal law is almost never applied, unless to enforce administrative law, and therefore, accumulation is not possible in practice. The same can be said about Ireland and UK as failures to comply with breaches of administrative measures will usually be regarded as a crime. For Denmark, the situation is similar to that of Finland, the UK and Ireland. In principle accumulation is not possible, mainly because the criminal measures are applied to punish non-compliance with the administrative measures and the administrative measures, if applied, are not sanctions as such. These countries have a “stepwise” approach in the application of enforcement measures. Warnings, orders, notices, injunctions and other soft measures are firstly applied and only when the infringer does not comply with these measures, will criminal measures be adopted.



The following table summarises the findings on the relationship between the administrative, or in its case, administrative criminal, and criminal measures and proceedings.

Relationship between the administrative (quasi-criminal in the case of Austria and Germany) and criminal system

Country Aim of administrative

measures (repressive/preventive/

remedial)

Accumulation of the

procedures

Accumulation of the

measures

Obligation to refer to prosecutor in case of potential

crime

Obligation to suspend the

administrative procedure if

criminal proceeding

initiated

CA bound by the

decision of the

criminal proceeding

Austria Repressive Not possible Not possible Yes Yes Yes Belgium Mainly preventive and

remedial Possible except expressly forbidden by the law

Possible except expressly forbidden by the law

Yes No Yes

Denmark Preventive and remedial Not Possible Possible Yes No Yes Finland Preventive and remedial Not Possible Possible Yes No Yes France Preventive and

repressive Possible Possible

except for pecuniary measures and when expressly forbidden by the law

Yes No Yes

Germany Repressive Not possible Not possible7 Yes Yes Yes Greece Repressive and

remedial Not possible Possible Yes Yes Yes

Ireland Preventive and remedial Not Possible Possible No No Yes Italy Repressive and

remedial Not possible Not possible Yes Yes Yes

Luxembourg Preventive and repressive

Possible Possible except expressly forbidden by the law

Yes No Yes

Netherlands Preventive and repressive

Possible Possible Yes No Yes

Portugal Repressive and remedial

Possible Possible Yes Yes Yes

Spain Repressive and remedial

Not possible Not possible Yes Yes Yes

Sweden Preventive and repressive

Possible Possible Yes No Yes

United Kingdom

Preventive and remedial Not possible Not possible Yes n/a Yes

The relationship between civil, administrative and criminal systems Civil measures are a system intended to protect private interests, whose aims therefore differ from criminal and administrative enforcement, which aims to protect the public interest. Therefore, civil 7 Note that administrative measures can be accumulated to criminal as auxiliary measures



proceedings can traditionally run parallel to administrative and criminal ones. In addition, measures with a compensatory or precautionary nature adopted under civil law do not preclude the application of other administrative or criminal sanctions and measures. In fact, the most common situation in continental countries is that the party entitled to claim compensation will bring its civil action to the criminal prosecution and both causes of action will be heard by the criminal court. This possibility does not exist in common law countries. In Austria, although this possibility exists, criminal judges are reluctant to make use of it. The recent developments of civil law allowing some administrations to ask for compensation for damages caused to the environment, as is the case in Italy, does not prevent the accumulation of proceedings or measures.

3. Administrative enforcement measures

3.1.1. Introduction As mentioned before, enforcement measures are intended to ensure compliance with the legislation, either by preventing or by repressing certain behaviour which is not compliant with the legislation, and thus they aim to re-establish legality. These measures have an administrative character when the authority imposing them is an administrative body or when the legislator so decides. An initial classification of the different administrative enforcement systems could differentiate between purely administrative enforcement systems and the administrative criminal (or quasi-criminal) enforcement systems, applied in Austria and Germany. However, when analysing the measures and the characteristic of the various national systems, especially the philosophy behind them, other classifications can be made. If we take as point of reference the powers of the administration to impose a sanction, a more interesting classification can be made. There will be a first group of countries where enforcement is link to well-established administrative sanctions matching clearly defined administrative offences. This is the case for Austria, Germany, Spain (Derecho Adminstrativo Sancionador), Portugal (Direito de Mera Ordenação Social) and Italy and to a certain extent Greece. In Portugal there is an ongoing discussion about the nature of this regime. Whilst it was commonly accepted that there was a clear distinction between the nature of this branch of law and the criminal law in general, not all scholars are of the same opinion and considered it to be a hybrid regime. There will then be a second group of countries where enforcement is mainly through regulatory measures and administrative tools, based on negotiations with the infringer. Within this group of countries, two subgroups can be distinguished. The first subgroup is composed of those countries which do not have sanctions as such but only use threats or coercive measures. This is the case in Scandinavian and common law countries. In addition in the UK and Ireland, as well as in Denmark, criminal law serves to enforce administrative measures as a last resort. Other countries in this second group do have a system of sanctions but these are applied only as last resort if the negotiating measures are not effective. This is the case in France, Belgium, Luxemburg and the Netherlands. It is therefore curious to see that common law countries where the concept of administrative law is only now being developed can be in the same line as France, the archetype of the administrative law system based on a powerful administration. The main differences between the two subgroups are the existence or not of a system of administrative sanctions and the measures that will be applied if the infringer does not comply with the orders and warnings of the administration. Whereas in UK, Ireland and Denmark the measure to be likely imposed will be a criminal penalty, in France, Belgium and Luxembourg it will be an administrative sanction.



The following box summarise this classification based of the practical application of the different national systems:

The maipunitive administrapplied ithe separ

nly late

o

8 Countrieauthor hasystem anpunitive pBolonia, 1

Milieu LtdHuglo Lep

Types of enforcement systems in the EU-15 according to the most used measures

Countries where enforcement is based on Administrative Sanctions

(a) Countries with so called administrative criminal systems: • Austria • Germany

(b) Countries with administrative systems: • Italy • Spain (Derecho administrativo sancionador) • Portugal (Direito de Mera Ordenação Social) With nuances • Greece

Countries where enforcement is based on Regulatory-negotiating and Coercive measures

(a) Countries with administrative systems which foreseen administrative sanctions as such but only applied as a last resort:

• Belgium • France • Luxembourg

(b) Countries with administrative systems which do not foreseen administrative sanctions as such:

• Finland • Netherlands • Sweden Where criminal law enforces administrative measures: • Denmark • Ireland • UK

n reason for this, as has been highlighted by scholars, is that the presence of important powers in the hands of the administration does not depend on how powerful that ation may be, but rather on the principle of separation of powers. The separation of powers

n stricto sensu implies that only the courts can have punitive power. In those countries where ation of powers doctrine prevails, the administration was stripped of any punitive power and r on, and for different reasons, recovered part of these powers8.

s with a more authoritarian past had more problems in allowing this transfer of powers. In fact as one

s said, “the weakness of the State, the fear to its strength in order to fight the internal enemies of the d the fear to freedom” are the deep and real causes of the existence of an administration with powerful owers SUAY RINCON, “Sanciones Administrativas”, publicaciones del Real Colegio de España. 989, Studia Albornotiana, p. 169.

& National Reports on non-criminal measures age Summary Report


Quasi criminal systems are rooted in a completely different ideological basis. The sanction was not supposed to be a reaction to aggression towards society or its fundamental values, as a crime may be. More practical reasons for the basis of the creation of the administrative criminal system were: (a) to avoid the congestion of already very busy criminal courts (b) to avoid the trivialisation and deterioration of criminal law overrun with petty offences; and (c) to prevent citizens from going

rough lengthy procedures and the defamatory nature of a penalty. However, nowadays, adm

but only for issues related to ater and in Portugal the Service for Nature and Environmental Protection acts as a specialised body

The lack of communication between the ifferent supervisory authorities may give rise to procedural problems, problems of non-bis in idem

taly is special as the administration has ot been recognised as having any police power. Inspections are carried out directly by the police, who certain cases have tasks groups specialised on environment.

3.1.2. Classification and description of the situations in which administrative

he risk that such iscretion might be misused has been curtailed in some cases, such as the Netherlands, by developing

thinistrative courts are also overwhelmed.

• Inspections and police powers of the administration

Most of the EU-15 countries have special agencies dedicated to the protection of the environment that also have supervisory competences. Problems can arise in those countries where the supervisory and the control authorities are also the authorities that have the power to grant authorisations and permits. Furthermore, these authorities are normally at a municipal level and therefore close to the infringer, which may affect the impartiality of the administrative authority and the effectiveness of the control and enforcement measures. In contrast, independent supervisory bodies different from those granting the permits exist in Denmark, Greece, Ireland, UK, the Netherlands, Portugal, Belgium and Sweden. In Spain, environmental controls are carried out by independent inspectors and entities as well as by the specific environmental police. Germany also has a special police wof the National Civil Police on environmental control and surveillance. Another problem is the profusion of competent authorities for various environmental sectors. It is not unusual for an act to constitute different offences under different pieces of legislation regulating different sectors. In many cases, the authority competent to control e.g., permits, is not the same as the authority controlling nature protection, water or air pollution.dand so on, affecting the enforcement of environmental law. The powers to grant permits and to enforce them trough control and inspections are the most classic police powers that can be held by the administrative authorities. These powers have mostly a preventive nature although in certain cases they can have a remedial nature, i.e., when after a control an irregularity is found and measures to correct the illegal situation are taken. In all cases, the administration can carry out inspections without prior notice and without needing a judicial order. In the case of Germany and Austria, these powers are part of the Polizeirecht and Ordunungsrecht (Germany) or the administrative system (Austria). The case of Inin

enforcement measures can be taken The situations that may lead an administration to react by making use of enforcing measures can be classified into two types. On the one hand are those countries that make use of catch-all provisions. In these countries, the main instrument for each sector normally includes a clause establishing that any infraction of the provisions of the law will be regarded as an administrative offence and therefore subject to sanction. That is the case for Greece (although some exceptions exist), Finland, the Netherlands and Sweden. In these countries the administrative authority handling the case will have broad discretion to decide which provisions are enforceable and to what extent. Tdguidelines indicating which breaches should be specifically considered as offences.



Portugal has what we called a “by-reference provision”. It is not a catch-all but it tends to list the provisions whose infringement will be considered as an offence regarding which the competent uthority has discretion in setting up the amount of the pecuniary sanctions (within the minimum and

ision allowing the sanctioning of any other reach of the legislation, as long as it is not a serious or very serious offence. The residual catch-all

UK and Ireland primarily have criminal enforcement systems (with the meaning explain efore), the situations that may make the administration react are basically the same as those listed

ave ower to react with punitive tools only when the offender acted by fault or negligence (which does not

the conduct, sometimes endangerment of the environment is quired, but in other cases the violation of the administrative law is enough, no matter whether

order to have a better picture of the type of conduct that can be found in practice. These situations

amaximum limits set forth by the law) and deciding on whether to apply accessory sanctions or not. The other group is formed by those countries where the main instrument transposing the Directive includes a criminal-law type list describing the offences. This implies a strict application of the principle of legality, nulllum crimen sine lege et nulla poena sine lege. In some countries, such as Spain, the instrument usually adds a residual catch-all provbprovision only allows these breaches to be petty offences. Though bbelow. The acts which can be found in these lists are very similar to the ones described for criminal offences. As mentioned before, the behaviours that may constitute offences or that may lead to an enforcement reaction by the administration can be acts or omissions of a substantial or more technical nature. The administration can make use of the preventive tools as soon as an irregularity is detected but will hpapply in Ireland). The exception is Sweden where a system of strict liability has been established. From the point of view of the result ofreendangerment has been caused or not. Incan also be grouped into substantial infringements and technical/formal infringements. 1. Among the substantial infringements it is possible to find some acts that could constitute typical crimes against the environment since they affect or may affect elements of the environment. These include abandonment, disposal or dumping of waste, discharges of dangerous substances into water, killing and threatening protected birds, illegal traffic of forbidden goods (protected species, ozone depleting substances, waste under the Basel Convention etc), although this last type may not affect the nvironment as such. As mentioned before the legal description of the offence may vary from one

2. The t

ecountry to another and sometimes concrete endangerment or damage is required.

echnical or formal infringements can be subdivided into different type of offences:

Permit related offences: the offence will range from carrying out an activity without a permit, licence or authorisation (depending on what is required by the relevant legislation), or violating certain conditions set forth in the permit, licence or authorisation, e.g., conditions requiring the supply of monitoring reports to the competent authority. In many cases there is no need for endangerment to the environment. The simple violation of the permit, or carrying out the activity without it, is enough for the commission of the offence. Behind these types of offences is not only the aim of preserving the interest of the administration to control the industrial activity, but also the presumption that a non tolerated endangerment of the environment has occurred. When the administration grants a permit and sets its conditions these are intended, inter alia, to ensure that certain activities, which are known to be a risk to the environment, affect the environment to the least possible extent. In theory, the administration weighs the economic gains against the environmental impact of the activity and decides whether to tolerate it under certain conditions. If an operator carries out one of these activities without authorisation or in breach of the permit conditions, he or she is creating an unnecessary risk to the environment. For these reasons, in serious cases of endangerment or

•



where the activity resulted in damages to the environment these types of offences can also constitute crimes. Denmark allows for a de facto legalisation. This measure is a legalisation a posteriori of an illegal activity carried out by an installation. For example, if the company has carried an activity without having the required permit or in breach of the condition of the permit but respecting all the security measures and without causing pollution, the competent authority will legalise this activity by e.g., granting a permit or authorising the activity. In

•

eans of standardised documents, such as the consignment note. Carrying out certain activities without being

•

ases could also be a crime can be related to other offences, since it may be that the documents falsified were the basis for granting a permit or fulfilling

•

explained above at 3.1.1). Any obstruction will be considered an administrative offence as operators and citizens in

• Financial infringement: this is mainly the failure to obtain insurances and other financial

guarantees, when required by the law, or to pay environmental levies.

ng so much attention as to whether the measure is a anction or not. This is even more important if we take into account that at least five countries’

h a genuinely punitive administrative nforcement system these measures are very similar to criminal penalties, the main difference being

and regulatory or coercive nature. The concept of “administrative sanctions” will therefore refer not

Spain there is similar a posteriori legalisation in the water sector.

Registration and notification related offences: in many cases, the legislator has considered that certain activities do not require a permit and registration for purposes of control and provision of information would suffice. The same idea is behind those cases where the legislation imposes the obligation to notify certain information, sometimes by m

registered or without notifying to the administration is also an offence.

Document-related infringement: these are the cases where persons hide or alter documentation that has to be provided to the administration. This falsification, alteration or hiding of documents (that in many c

notification obligations.

Obstruction to controls and inspections carried out by authorities: for industrial activities the competent authorities carry out different inspections (as it has been

general have the obligation to collaborate with the administration.

3.1.3. Classification and description of administrative enforcement measures The aim of the study is to know what non-criminal enforcement measures have been put in place by the national legislator where environmental law had been breached. The nature of these measures will be important in order to determine the offender’s rights in the infringement procedure. As mentioned before, it is up to the national legislator to decide which acts are to be considered criminal, and therefore sanctioned by criminal penalties, and which acts will constitute merely administrative offences and therefore sanctioned by administrative law. This discretion of the legislator may lead to excessive formalism and could arbitrarily deprive individuals from their recognised and protected fundamental rights. Furthermore, what interests us most in this section is to identify the enforcement measures available in each country, without payissystems do not foresee administrative sanctions. For the reasons noted above, this section tries to classify the measures in a more descriptive and teleological way, flagging interesting issues including whether the measure is a sanction in certain systems or whether in another system the same measure does not have a repressive nature and therefore is simply an enforcement measure. For systems witethe gravity of the sanction imposed, amount of fine and so on. As a preliminary remark, the administrative criminal measures applied in Austria and Germany are sanctions as such, whereas the measures applied under their administrative law have a more preventive



only to the purely administrative ones, but also to administrative criminal (or quasi-criminal) sanctions under the German and Austrian regimes (as the measures to be adopted under administrative law annot be considered sanctions).

characteristics of the systems, especially whether the systems is based on egotiations or not.

, deprivation of rights and rohibitions and orders (to act, not to act, to remove…) can be observed:

Administrative enforcement measures

c Categorisation is difficult since the measures differ significantly from one block of countries to another. A typical example is the fine. Fines are criminal measures under common law and under Danish law, whereas in almost all other countries, fines are the most common administrative sanction. This does not mean that they are applied with the same frequency in all countries, as their application will depend on then The box below provides a list of the range of administrative enforcement measures available, in theory, in all 15 Member States. Despite the diversity of the systems, most measures are available in all systems. What differs is the frequency of their application, their nature (sanctions, regulatory measures, coercive measures and so on) and the measure applied the most in each system. Three main types of measures, pecuniary (fines, conditional fines, consignation)p

Economic measures: fines, deprivation of profits Closure of establishmensuspension of activities Deprivation or suspensions of rights (total or partial, temporary or permanent) including incapacitation to carry out an activity, to obtain subsidies, to be contractor of the administration and so on, suspension or withdrawal of authorisation, permit or licence, revision of permit or alteration of the conditions set forth in the permit) Actions on goods (confiscations, expropriation, sealing of materials, installations, machinery, forfeiture, consignation – although this mImprisonmPublicity Obligation of Restoration and Reposition Soft measures: Formal notice, prohibition orders, enforcement orders, enforcement notices, injunctions, mise en demeure Coercive measures: threats and conditional fines, execution at the expenses of the infringer, forced execution, compulsion

• • t (total or partial, temporary or permanent), including cessation or

•

• easure is also an economic measure)

• ent (quasi-criminal measure) • • •

•

• Others: direct intervention, de facto legalisation The different measures listed can fulfil different functions and be adopted at different moments of the infringement procedure. According to these two premises we will try to give a more functional and

leological classification of the measures.

) Sanctions

have not put in place systems of sanctions as such, but rather coercive and regulatory easures.

te (a As mentioned before, the measures that will be considered as sanctions vary depending on the system. Common law countries, Finland, Denmark, Sweden (the so called environmental sanction fee) and the Netherlandsm The most common sanction is the fine. There are mainly two types of fines: lump sums and day/fines. Lump sums are determined by the authority according to the maximum and minimum limits set forth by the law. In the case of day/fines, the competent authority will fix the quantity of the fine to be paid



per day during the period laid down in the decision. Fines are the most common sanction in Spain,

applied at the discretion of the ompetent authority are considered as accessory or complementary sanctions. In Portugal, fines will

t in France, Belgium, Luxembourg ey are rarely used as their systems are most based on initial warnings and formal notices and a

tween 3.74 Euro to 3,740.98 Euro or to 44,891.81 Euro (if legal persons). ormally, the administration has discretionary power to impose the measures and the level of the fine

Portugal, Germany, Austria, Italy, Brussels Capital region and Greece. In Portugal, the fine is the main sanction and the other measures to becbe increased as much as ten times when the offender is a legal person. Fines are a very flexible instrument and considered especially appropriate for environmental offences where the main offender is a legal person. Although fines are presenthsanction, normally a fine, will be imposed only as an ultima ratio. The amount of the fine can vary significantly from one system to another, being in the German legislation (between 10,000 and 50,000 EUR) and Austrian legislation (between 7 and 36,500EUR) are inferior to the amount set for criminal fines, whilst in Spain administrative fines may be much higher than criminal ones (a fine can be raised up to 3 million EUR). In Portugal the maximum and minimum varies beNapplied in practice. Another frequently sanction is the closure of an establishment. This measure can be a sanction or a temporary precautionary measure, depending on the system and the moment when this measure is imposed as well as its duration. Temporary closure of the establishment can be imposed as a

recautionary measure to stop pollution from an installation or it can be imposed as a sanction as the

of the establishment as sanction is rarely applied, especially because of the economic pact that the measure may have. Authorities are therefore reluctant to apply this measure except in

presult of the infringement procedure. However closureimextreme cases. Other sanctions: Suspension or withdrawal of the authorisation, permit, licence and alteration of the conditions set forth in the authorisation, incapacitation, sealing of material, installations, machinery, confiscation and consignation, cessation of activity, publicity, expropriation or deprivation of profits are other measures that can be found in Italy, Portugal, Germany, Spain, Austria, France and Luxembourg. In Portugal, these measures will be accessory sanctions. In Spain and Italy, these

easures can be either sanctions or accessory measures depending on the specific legislation but in character.

nd/or breaches of the legislation). Because f the similarities to the traditional powers of the police, especially powers of surveillance, these

e measures of a more preventive nature), the administration may also use its gulatory powers in order to restore the legality of a situation without necessarily initiating a formal

Luxembourg) as well as the Netherlands make significant use of these regulatory and preventive tools.

mgeneral they have the nature of sanctions due to its repressive (b) Regulatory and preventive measures (police measures) These types of powers are basic tools that allow the administration to deal with a variety of environmental issues. They allow the administration to prevent damage by granting permits that set specific conditions and by carrying out inspections, and therefore are called either regulatory (because they enable the administration to regulate a situation such as an industrial activity) or preventive, (because the control over the activity prevents a damage aomeasures can be called police powers or police measures. Leaving aside the most typical police powers granting permits and carrying out inspection and control operations (which arrepunitive procedure. Common law countries as well as Scandinavian and French oriented systems (France, Belgium and



In practice the most common measure is the enforcement notice or mise en demeure, sent by the administration to the offender when irregularities are found in order to compel the offender to restore

e legality and, if needed, to repair the damage caused.

or further action as the companies usually restore legality in the time period set y the administration.

) Precautionary and interim measures/immediate measures or injunctions.

ated or not, if there is a need for udience of the supposed infringer or if it takes the form of an order.

be ccompanied by the threats or coercive measures, which in practice work as an interim measures.

where interim measures cannot be adopted unless certain procedural guarantees have een satisfied.

e easures, however, will only be temporarily applicable until the infringement case has been solved.

) Remedial/restorative measures

ministrative and criminal, found in all systems, normally upon quest or order of the administration.

th This is also the aim of the administrative measures under the Austrian and German administrative regime. The warnings can take on a more serious character when they are in the form of prohibitions and orders and/or when they are accompanied by orders for closure of the establishment, seizure, withdrawal of the permit, or alteration of the conditions of the permit temporarily until legality of the situation is restored. These measures are a mixture of precautionary and coercive measures. In most cases, there is no need fb (c Although most of these measures are taken by the competent authorities or inspectors as part of their police powers and in the form or orders, due to their importance we have decided to separate these measures from the previous ones. This type of measures is especially important for the protection of the environment. The main reason is that from the point of view of putting an end to the damage that is being caused these measures are the most effective. The difference nomenclature depends upon the moment where these measures are adopted in the infringement procedure and formalities to adopt them and the name given in each country. For example, if they are adopted immediately by police officers or inspectors, or if the infringement procedure has been initia Due to the importance of these measures as a useful and effective tool to more or less immediately protect the environment, in many countries, such as Spain, but also France, Luxembourg, Austria, Belgium, Germany or the Netherlands, these are the first type of measures adopted. However, in Finland interim measures as such are rarely applied as the prohibitions and restriction used toa As mentioned before, precautionary or preventive measures are normally part of the police powers of the administration. Sometimes the inspector will have the competence to adopt these measures immediately, and in other cases, such as Spain, these measures will have to be adopted after the audience of the supposed infringer and once the infringement procedure has been initiated. For instance, in Luxembourg, such measures have to be confirmed by the Minister himself within 8 days after the infringer has been heard. Nevertheless, in all cases, where the damage caused is serious the measures can be adopted immediately, without any previous audience or any other formality. One exception can be found in Italy where interim measures as such are only possible before courts and when requested by the individual being judged. The same can be said about Denmark. As it can be observed, it is mostly in those countries where the administration has a real punitive power, such as Spain or Italy, b This type of measures can be similar to what afterwards will be the sanctions or accessory measures. For example, closure of establishment, sealing of machinery, removal of the damage and so on. Thesm (d Systems based on enforcement notices and recommendations usually include an order for the polluter to restore the environment to the condition it was before the polluting act occurred and, when this is not possible, to compensate economically for the damage caused. In general, it is the most common environmental-related measure, both adre



This measure plays a special role in certain countries, not as a general obligation of restoration and reposition but as a sanction as such. The clearest examples are the cases of Spain, Italy and Portugal. The obligation of restoration and reposition is different and independent from the civil compensation for damages, except in common law systems, where the administration can claim for the compensation for the costs of restoration of the environment through civil courts The aim of this measure is to restore the environment and not to punish the offender. However, in Spain and Italy, the measure can have a double nature. It can be the traditional measure intended to restore the environment or it can be used as a sanction, depending on the discretion of the administrative authority when imposing the obligation. When restoration in natura is possible, this restoration may not only be the strict restoration in statu quo ante but it can also imply a restoration beyond this. For example, if five trees are logged, the measure may well require more than the restoration of those five trees but a greater number, e.g., to plant five trees for each one of the trees that have been illegally logged. In the same line, when restoration in natura is not possible and only economic compensation is required, the amount to be paid may not necessarily correspond to the real cost of the hypothetical restoration but to a much higher sum e.g., in the case of the trees, to pay not what it would cost to plant five trees but what it would cost to plant 200. (e) Coercive measures Coercive measures intend to compel the offender to comply with a decision of the competent authority, including a decision imposing a sanction. Some systems, such as Finland, Denmark or the Netherlands, are based mainly on the coercive measures or the threat to impose certain measures if non-compliance. The Coercive measures are often used to force compliance with the obligation of restoration and reposition. There are two main types of coercive measures: coercive or conditional fines, and coercive actions. In the first case a fine will be imposed if the offender does not comply with the administrative decision, order or prohibition. If the offender does not comply with the administrative decision within the time limit set forth by the administration, the competent authority will fix an amount of money to be paid for every day of non-compliance. Included among the coercive actions are the threat of suspension of the activity or withdrawal of the permit (although this may be a more coercive deprivation of rights) and the cases where the forced execution or substitutive/subsidiary execution at the expenses of the offender is foreseen. Cases of forced execution occur when the administration compels the individual to comply with an order, i.e., to act or do something, by compulsion. Subsidiary execution will occur when the administration employs another to do that which the offender was ordered to do, e.g., cleaning-up a site, at the offender’s expense. These measures are widely used and apparently very effective (see section on effectiveness). At a certain extreme, criminal law is a coercive measure with regard to administrative measures. In some countries, such as UK, Ireland or Denmark this is clearly due to the relation between breaches of administrative decisions and criminal law. If the offender does not comply with the administrative decision, the conduct will be regarded as a crime. For Austria, the administrative-criminal law acts as a coercive measure with regard to purely administrative measures. Administrative sanctions play the same role in systems based on negotiations or those with a more preventive character, such as France, Belgium or Luxembourg. If the infringer does not comply with the “mise en demeure” in the specified time a sanction will likely be applied. General issues relating to enforcement measures Scope of liability: both legal and physical persons can be subject to administrative measures in all countries. Directors and managers are liable as well for culpa in custodiendo or culpa in eligendo. In some countries such as Spain, Portugal or Finland in case of liability of several physical persons may



be liable and a specific degree of culpability cannot be determined, the persons will be jointly and severally liable. In Austria and Denmark this is not possible, and the responsibility of each individual has to be identified. Accumulation of the measures: administrative measures can normally be accumulated, including the sanctions (Austria, Netherlands, Sweden, Spain, France, Portugal or Luxembourg). These will have then the character of accessory or complementary sanctions. Elements to modulate the imposition of the sanction and the discretion to impose the sanction: Normally aspects expressly mentioned to be taken into account when imposing the sanction and fixing the level of the fine include the benefit obtained, the economic situation of the offender, the damage caused, and recidivism (see Austria, Germany, Spain, Italy, Portugal, Greece, Brussels capital region). In cases where there is no express reference, the principle of proportionality tends to produce the same effect. In any case, the discretion of the administration to impose the sanction is very important in all countries except in Austria where there is strict application of the principle of legality. In a country such as the Netherlands, where the powers of the administration are very broad, it is very difficult to know the situation where the administration will react and how it will react, therefore there is no possibility of predicting how the competent authority will react. In some cases the measures to be imposed can be whatever measures may be appropriate for the restoration of the environment, for putting an end to the infraction and so on. In the countries where the administration has real punitive powers, such as Austria, Germany, Italy, Portugal or Spain, Ireland the principle of legality is strictly applied and the sanction or other measures that can be imposed are listed. The exception is Spain. In Spain interim measures can be imposed only when the law so provides but once this is allowed, the competent authority will have great flexibility to choose the adequate measure. Luxembourg has a similar system. In those systems where there is no list of measures stipulating what the administration may impose, the administration has great discretion to determine which measures to impose. However, even in the countries with lists of measures and aspects to be taken into account to modulate the intensity of the reaction of the administration, considerably discretionary power remains. In some cases it will be because the law only establishes broad minimums and maximums for fines, or because the lists of measures that can be adopted are quite long or simply because the description of the situation that may lead to the imposition of the sanction is broad and vague. Especially this last aspect can result in considerably discretion on the part of the administration to decide the seriousness of the offence, with the derived consequences for determining the intensity of the measure or sanction to be imposed. This will certainly have an impact on the effectiveness of the measure as will be shown at section 4.

3.1.4. Summary of administrative enforcement measures by sectors for targeted EU legal act

The series of comparative tables presented in the following pages provide an overview of administrative environmental offences and the related administrative and quasi-criminal enforcement measures which exist both in theory and practice in each of the 15 Member States under study. The tables are organised by sector, taking account of the administrative measures in place for offences linked to the 11 Directives and 3 Regulations that were the focus of this study. The importance of criminal enforcement must be especially noted. In some cases it is the sole means of enforcement for certain sectors, especially in the nature protection sector and for breaches of EC Regulations, especially where the EU provisions are aimed at controlling movements of goods, because they are linked to traditional figures of illegal traffic. Apart from this, no real pattern can be discerned. Fines, when imposed, are the most typical sanction. Only in IPPC related activities is the closure of establishment or withdrawal of authorisation used and,



in the former only for extreme cases. Fines tend to be higher for nature protection offences and publicity is rarely applied. As mentioned before, depending on the system, measure most used will be a sanction (a fine) or a warning notice with or without coercive measures and precautionary measures (threats, conditional fine, temporary closure, withdrawal of permit and so on). For UK and Ireland when the enforcement notice does not help to restore the legality, the measure will be a criminal fine.



Sample Comparative Table: Administrative enforcement measures by sectors Sector: WASTE

Most common situations described in national law: 1) Infringements of substantive nature: • Abandonment, dumping or uncontrolled disposal (Denmark, Belgium, Spain, Austria, Finland, Ireland,

Italy, Netherlands, Portugal, UK, Germany) • Illegal rendering, selling or transfer of wastes (Austria, Denmark, Belgium, Spain, Italy, UK, Germany) • Co-disposal of hazardous and non-hazardous wastes (Austria, Italy, Spain, Netherlands, UK, Germany) 2) Infringements of technical nature: • Lack of notification for transfrontier movements of waste (Austria, Denmark, Spain, Greece. Ireland,

Netherlands, Sweden, United Kingdom, Germany) • Operation without permit or in breach of permit conditions (Denmark, Belgium, Spain, Austria, Greece,

Italy, Netherlands, Sweden, United Kingdom, Germany) • Hiding or falsification of data to be provided in order to obtain permits or licences (Austria, Denmark,

Spain, Netherlands, UK) • Refusal or delay to report data to public authorities (Denmark, Spain, Austria, Greece, Netherlands,

Sweden, UK, Germany) • Operation without registration (Austria, Denmark, Spain, Belgium, Netherlands, Germany) • Obstruction to inspections and activities of control carried out by the administration (Austria, Denmark,

Spain, Netherlands, UK, Germany) • Lack of internal recording systems (Denmark, Spain, Austria, Portugal, Sweden, UK, Germany) 3) Catch all provisions: any infringement of existing legislation for this sector (Spain, Finland, Greece, Belgium,,Netherlands and Sweden) 4) By-reference provision: Portugal

Peculiarities for infringement acts in specific Member States: Austria: • Disposal of waste without applying BATs • Label missing or erroneous or partial labelling of hazardous waste packaging • Exceeding emission limits set in permit • Burning waste oils with less than 5 or more than 50 ppm PCB/PCT Belgium: Regulation 259/93 is principally enforced by criminal sanctions. • Failure to pay environmental levies, as required by Flanders regional legislation • Not respecting of regional, national and international provisions can lead to the sending back of

waste to the holder on his costs and responsibility. (Belgium) France: • Infringement of voluntary agreements Germany: • Many specific offences for landfills requirements: e.g., operation of a landfill if its construction

has not followed technical obligations of Articles 3(1) – (3) of EU Directive, failure to undertake adequate calibration and/or measurement methods, lack of implementation of measures to prevent and reduce nuisances, etc.

• Failure to accompany waste shipment without consignation note Ireland: • Fit and proper test Italy: • Abandonment of waste on the street • Production during regeneration processes of waste oils with toxic and hazardous substances • Specific provisions for PCBs/PCTs: infringement of labelling requirements, use of electronic

transformers using PCBs, etc.



Spain: • Label missing or erroneous or partial labelling of hazardous waste packaging • Failure to constitute financial guarantees, as required by national legislation • Infringement of voluntary agreements United Kingdom: • Fit and Proper Test

Infringements may also be prosecuted in the criminal courts. Failure to comply with administrative measures can constitute a criminal offence

•

Name of country Infringement measures available in national legislation Infringement measures mostly applied in practice Austria 1) Main Sanctions

- fines - imprisonment where fine is not paid - confiscation of profits

2) Accessory measures - restoration and resposition is mandatory - closure of establishment - costs of inspection must be borne by owner of establishment

3) Provisional measures - Temporary injunctions

- Fines between 50 to 15,500 EUR

Belgium Brussels: - Catch-all provisions: CA can take all necessary measures to prevent

the endangering of the environment - Direct intervention of public authority at expense of operator in order to

implement given orders. - Warnings (& fix an deadline to regularise the situation) - Seal up waste, its package, transport means, & other instruments

which have been used for committing the offence.

- Brussels: Warnings, order to regularise, fines - Flanders: Warnings, orders, - Wallonia: Warnings, order of cessation of activity, sealing up machines



Name of country Infringement measures available in national legislation Infringement measures mostly applied in practice - Sending back the waste to the holder on his costs and responsibility - Cessation of activity (full or partial), closure of one or more

installations - Fines from 62.5 to 625 Euros or from 625 to 62500 Euros (hazardous

waste) ((in case of several infringements up to 125.000 Euro. In case of recidivism, up to the double of max. 1250 Euros)

- Suspension, withdrawal or modification of permits - Publication of withdrawal of registration (waste oils).

Flanders: - repeal/suspension of permit of other

authorisation/registration/certificate - Amendment of permit conditions - Warnings, instructions, orders - Cessation of activity / sealing of machines/ immediate closure of

establishment (full or partial, temporary or definitive) - Prohibition of acces to a certain room, of the use of a machine or

product - Fines for not paying levies - Remocal of waste on the costs of infringer - Seal up waste, its package, transport means, & other instruments

which have been used for committing the offence

- Sending back the waste to the holder on his costs and responsibility Wallonia-

- CA can take all necessary measures to prevent the endangering of the environment or danger to human health (example provided by law: order the transfer of waste, order the restoration of the site)

- Warnings - Cessation of activity (total or partial)/ sealing up of machines/

provisional closure of establishment - Impose the adoption of an ‘restoration plan’ or the obligation to

provide with a financial guarantee - Administrative fine max. 25 000 Euro



Name of country Infringement measures available in national legislation Infringement measures mostly applied in practice - Suspension or withdrawal of permit/authorisation - Sending back the waste to the holder on his costs and responsibility

Denmark

- De facto legalisation - Recommendation - Warning and enforcement notices - Cessation and prohibition notice to interrupt illegal operation - Restoration injunction - Direct intervention of public authority at expense of operator

Recommendations, warnings and injunctive orders. In fewer cases also prohibition notice to interrupt illegal operation.

Finland - Conditional fine - Threat of performance - Threat of suspension

Conditional fines, between 1000 – 8000 EUR

France - Mise en demeure - Consignment - intervention of public authority at owner’s expense - suspension of activity - closing of the installation

- Mise en demeure - intervention of public authority at owner’s expense - suspension of activity

Germany 1) Quasi Criminal Sanctions - Fine up to 50,000 - Confiscation of the offending objects

2) Administrative Enforcement Measures - Closure, interdiction of an installation - Supplementary conditions - Fine

Disposal of waste in an authorised installation, temporary interdiction of use of a part of the installation.

Greece - Fines between 50 to 733,000 EUR - temporary or permanent cessation of operation

Fines between 1,000 and 300,000-400,000 EUR (rarely the maximum)

Ireland 1) Regulatory enforcement measures - enforcement notice to prevent or remediate, limit environmental

pollution - revocation or suspension of a permit or license

Enforcement notice



Name of country Infringement measures available in national legislation Infringement measures mostly applied in practice - recovery of costs expended in preventing/limiting pollution caused - detention of vehicles for period considered necessary

2) Judicial enforcement measures - suspension of activity - discontinuation of activity - order to prevent, remediate, or limit environmental pollution - payment of costs and expenses - fines and imprisonment

Italy - obligation of reposition or restoration - suspension from office - fine

Fine and confiscation

Luxembourg - closure of installation - any urgent or necessary measure - suspension of activity

Any urgent or necessary measure

Netherlands 1) Enforcement action, allowing authorities to; - Give decisions - Seal off buildings - Remove and store goods - Sell, transfer or destroy removed and stored goods - Impose on the offender an obligation to compensate for damage - Strip offender of profits from the pollution

2) Coercive fines 3) Deprivation of rights

Conditional fines

Portugal 1) Main Sanction: Fines - amounts fixed for each legal instrument within the following limits: - for natural persons: minimum of 249.40 Euro and maximum of

3,740.98 Euro; - for legal persons: minimum of 498.80 Euro and maximum of 44,891.81

Euro 2) Accessory sanctions:

- Confiscation of the assets used to commit the offence

Fines



Name of country Infringement measures available in national legislation Infringement measures mostly applied in practice - Suspension of the right to undertake the activity or profession that are

subject to public title or public authorisation - Suspension of the right to obtain subsidies or other benefits issued by

public authorities - Suspension of the right to participate in exhibition or events - Suspension of the right to participate in public tenders for providing

public services - Closure of the establishment or revocation of authorisations and

permits - Suspension of the right to be issued permit or license - Confiscation of goods

3) Remedial measures 4) Interim measures

Spain 1) Main sanctions: − Fine from 301.01 to 1,202,024.21 EUR (higher if HW) − Barring of activity from 1 to 10 years − Temporary y or definitive closure (full/partial) of installation for

infringements of technical nature − Revocation or suspension of a permit for infringements of technical

nature 2) Accessory measures:

− Restoration and reposition − Publication and publicity

3) Provisional measures: − Sealing of equipment or vehicles − Temporary (full/partial) closure of installations − Temporary suspension of permit − Any other sort of measure to impede continuity of damage

5) Coercive measures: − Fines adding up to max. 1/3 of main fine.

Fines between 1,000 and 6,000 EUR. & closure of installation

Sweden - injunctions and prohibitions subject to a fine Fines



Name of country Infringement measures available in national legislation Infringement measures mostly applied in practice - Environmental sanction charges

UK - Variation/revocation/suspension of licence - Refusal to accept surrender of licence - Refusal to transfer licence - Abatement notice - Enforcement notice - Removal notice - Works at the expense of the operator - Prohibition notice - Fit and proper person test - Injunction

Abatement notice Enforcement notice Variation of licence



Sector: Nature

Most common situations described in national law: 1) Infringements of substantive nature: • Illegal transfer of species (Austria, Spain, France, UK, Netherlands, Sweden, Germany ) • Deterioration or disturbance of habitats without environmental permission ( Austria, Spain, France UK,

Netherlands, Sweden, Germany ) • Deliberate capture, killing of wild animals, deliberate disturbance of wild living animals, deliberate

destruction of nets, eggs, etc… (Austria, Belgium, Spain, France, UK, Netherlands, Sweden, Germany) • Catching wild living animals without justified reason, deliberate re-introduction of species (Austria, Spain,

France, UK Netherlands, Sweden, Germany) • Works in protected areas without authorisation (Austria, Luxembourg, France, Germany) • Illegal hunting (Austria, Luxembourg, France, UK) Netherlands, Sweden, Germany) • Selling, purchase and possession of illegally hunted species (Austria, Luxembourg, UK, Germany) 2) Infringements of technical nature: • False of incomplete declaration of transfer (Austria, Denmark, UK, France) • Lack of permit (Austria, Denmark, Luxembourg, Sweden, France, UK) 3) Catch all provisions: any infringement of existing legislation for this sector (Austria, Belgium(Flanders), Denmark, Spain, Greece, Ireland, Netherlands, Sweden Portugal, Finland, France) 4) By-reference provisions: Portugal

Peculiarities for infringement acts in specific Member States: Austria: Many punishable infringements to the Habitat and Birds directives Italy: Distinction between very serious offence, serious offence and petty offences, leading to different sanctions Spain: Distinction between very serious offence, serious offence and petty offences, leading to different sanctions Luxembourg: No administrative sanctions in case of infringements to the CITES regulation Denmark: Notification of restoration orders in Lands Register UK: Infringements are criminal offences. The Netherlands: in practice only criminal enforcement, but administrative is possible. Belgium: infringements to the CITES Regulation are enforced by criminal sanctions. Belgium-Wallonia: infringements to the Habitats and Birds Directive are enforced by criminal sanctions.

Name of country Infringement measures available in national legislation Infringement measures mostly applied in practice Austria - Temporary injunctions

- Fines - Imprisonment - Closure of establishment

- Fines between 270 and 3,000 EUR



Name of country Infringement measures available in national legislation Infringement measures mostly applied in practice - Restoration - Revocation of permit

Belgium

Flanders: - Seizure of instruments and means of illegal capture - Release of illegal capture birds - Destruction of killed birds - Withdrawal of official recognition of ‘association of birds lovers’ - Suspension of the illegal works and activities ( & all necessary

measures to implement the order of suspension of works: seizure, setting sealing on materials)

Brussels: - Catch-all provisions: CA can take all necessary measures to prevent


implement given orders. - Warnings - Fines from 62.5 to 625 Euros (in case of several infringements up to

125.000 Euro. In case of recidivism, up to the double of max. 1250 Euros)

Wallonia: o Fine ( amount not specified in legislation)

Federal State (CITES): o Fine

Flanders: suspension of illegal works, seizure of instruments of illegal capture Brussels: Warnings, fines Wallonia: criminal sanction Federal State: criminal sanction

Denmark

- Legalisation - Notification of restoration injunction - Recommendation - warning - Remediation measures at the expenses of the responsible party - Prohibition of activity

Recommendations, warnings, injunctive orders

Finland - Conditional fine - Threat of performance

- Conditional fine



Name of country Infringement measures available in national legislation Infringement measures mostly applied in practice - Threat of suspension of the activity

France - Warning orders to restore the environment - Deposit of the necessary money to restore the environment - Remediation measures at the expenses of the responsible party - Suspension of public funding - Reimbursement of public funding - Suspension of permit - Revocation of permit

- Warnings, - Remediation measures - Withdrawal of permit

Germany - Fines - Confiscation of goods - Any administrative measures intended to prevent impairment of public

welfare - Seizure - Payment of administrative costs

- Fines and confiscation of goods

Greece - Fines - Seizure of species - Temporary or permanent cessation of operation

- Fines and seizure

Ireland - Anything court considers necessary to remedy illegal act - Restoration of the land

- Enforcement notices - Recovery of costs and expenses - Fines

Italy - Restoration of the area at the expense of the responsible party - Fine equivalent to damage - Closure of business - Suspension of the authorisation for a month (four months in case of

recidivism) - Suspension of the hunting licence - Revocation of the hunting licence and prohibition of a new issue for

ten years (if recidivism) - Confiscation of goods or specimens

- Fines and suspension, restoration

Luxembourg - Prohibition and suspension of illegal works - Prohibition and suspension of illegal works



Name of country Infringement measures available in national legislation Infringement measures mostly applied in practice - Withdrawal of hunting licence

Netherlands 1) Enforcement action consisting of − administrative orders − sealing off of buildings or sites − removal and storage of goods − sale, transfer of ownership, or destruction of removed or stored

goods 2) Coercive Fines 3) Deprivation of Rights

Coercive or conditional fines

Portugal 6) Main Sanction: Fines- amounts fixed for each legal instrument within the following limits: - for natural persons: minimum of 37.41 Euro and maximum of 3,740.98 Euro; - for legal persons: minimum of 3,990.38 Euro and maximum of 39,903.83 Euro

7) Accessory sanctions:

- Confiscation of the assets used to commit the offence - Suspension of the right to undertake the activity or profession that are


public authorities - Suspension of the right to participate in exhibition or events - Suspension of the right to participate in public tenders for providing


permits - Confiscation of specimens - Return the specimens to the country of origin - Suspension of the right to be issued permit or license - Confiscation of goods

3) Remedial measures

Fines and confiscation of specimens in favour of the State



Name of country Infringement measures available in national legislation Infringement measures mostly applied in practice Spain 1) Main sanction:

- Fines - Seizure of the goods object of offence, materials and tools used - Intervention of the above mentioned goods - Precedent selling (before the decision of the administrative authority) - Adscription of the goods when they cannot be sold - Prohibition to hunt or fish

2) Accessory measures: obligation of restoration and reposition 3) Coercive fines

Fines

Sweden - Injunctions - Fines

Fines

UK - Forfeiture - Compulsory acquisition of a land - Modification or revocation of a licence - Modification or withdrawal of consent to carry out an operation

- Forfeiture - Modification of licence - Modification of consent



Sector: CHEMICALS

Most common situations described in national law: 1) Infringements of substantive nature:

Incident presenting hazard to human health or the environment (Austria, France, Italy, Ireland, Belgium (Wallonia and Flanders, Luxembourg, Germany)

Producing or handling prohibited substances (Austria, Belgium, France, Netherlands, Spain, Sweden, UK, Ireland)

Illegal import/export of substances (Austria, Denmark, France, Belgium, Netherlands, Spain, Sweden, UK)

2) Infringements of technical nature:

Failure to assess risks or to document risk assessment (Austria, Belgium (Wallonia and Flanders) , Germany, Denmark, France, Italy, Netherlands, Portugal, UK, Luxembourg, Ireland)

Use of products before notification to CA (Austria, Belgium (Wallonia and Flanders), Denmark, Germany, Netherlands, Portugal, Spain, Sweden, UK)

Failure to inform CA of any accident/incident/change in circumstances (Austria, Belgium (Wallonia and Flanders), Denmark, France, Germany, Luxembourg, Netherlands, Portugal, Spain, Sweden, UK, Ireland)

Failure to comply with application requirements (Denmark, Germany, Netherlands, Spain, UK, Ireland)

If permit conditions violated or activity carried out without a permit or necessary authorisation (Austria, France, Belgium, Denmark, Germany, Luxembourg, Netherlands, Spain, Sweden, UK)

Insufficient safety measures and precautions (Austria, Denmark, France, Germany, Luxembourg, Netherlands, Portugal, UK)

Failure to keep records (Austria, Belgium (Wallonia and Flanders), Germany, Italy, Netherlands, Portugal, Spain, Sweden, UK, France, Luxembourg, Ireland)

Failure to have an up-to-date emergency plan (Asutria, Portugal, Spain, UK, France, Luxembourg) Failure to notify any changes in reported data (Belgium) Placing on the market of controlled substances in disposable containers (Belgium) Failure to report to Commission (Belgium)

3) Catch all provisions: any infringement of existing legislation for this sector (Austria, Belgium (Brussels

Peculiarities for infringement acts in specific Member States: Demark: − Fire safety equipment out of date

France: − Failure to comply with marketing requirements

Germany: − Failing to instruct employees in time, or in the correct language − Failure to pre-treat waste water from installations where genetic operations are carried out − Failure to transfer equipment in required containers − Negligent carrying out of genetic operation

Greece − No legislation for Council Regulation 2037/2000 on ozone depleting substances

Ireland: − Administrative enforcement measures largely discretionary

Italy: − Regulation 2037/2000 is enforced by criminal law

Spain: − Failure to collaborate with CA during inspections

Belgium (Bruxelles): − Provide false indications to CA

UK: Infringements may also be prosecuted in the criminal courts. Failure to comply with administrative measures can constitute a criminal offence Belgium: Specific infringements to Regulation 2037/2000 (articles 12, §§ 1er et 3, larticles 16, § 4 and articles 19, §§ 1er, 3 et 4 ) are enforced by criminal sanctions or by an administrative fine (accumulation is excluded by law)



Region), Finland, Greece, Italy, The Netherlands, Spain) 4) By-Reference provision: Portugal Name of country Infringement measures available in national legislation Infringement measures mostly applied in practice Austria 1) Main Sanctions:

− Fine − Imprisonment up to 2 week for failure to pay fine − Confiscation of products

2) Accessory Measures − Closure of establishment − Revocation of permit

3) Provisional Measures − Temporary injunctions

Fines between 40 and 1,000 Euro

Belgium Brussels Region: - Catch-all provision: CA can take all necessary measures to prevent the endangering of the environment - Direct intervention of public authority at expense of operator in order to

implement given orders. - Warnings (& fix an deadline to regularise the situation) - Suspension of the activity (total or partial) - Closure of the one or more installations - Suspension / repeal of permit - Interdiction of contained use of GMOs

Flanders: - Warnings, orders - Repeal/suspension of permit - Amendment of permit conditions - Cessation of activity (total/partial) / sealing of machines/ immediate closure of

establishment (full or partial, temporary or definitive) - Prohibition of acces to a certain room, of the use of a machine or product

Brussels: warnings, Interdiction of contained use of GMOs Flanders: orders & warnings, cessation of activity Wallonia: warnings, cessation of activity Federal: seizure & fines



Wallonia: - Warnings - Order of cessation of activity (total/partial) - Provisional closure of establishment / sealing up of machines - Impose the adoption of an ‘restoration plan’ or the obligation to provide with

a financial guarantee - Suspension or withdrawal of permit/authorisation/declaration - Prohibition to use of machine/materials/products, seal up machine and take

any other urgent measures Federal:

− Temporary seizure/destruction of offending products − Administrative fine 40-60 000 Euro

Denmark

− prohibition of activity − orders/injunctive measures to restore original situation − requisite measure to be taken at expense of responsible party − immediate intervention where serious risk to human healt

Finland − Conditional fine − Threat of performance − Threat of suspension

France − Warnings − Fine up to 1500EUR − Daily obligation of 150EUR − Modification of technical specifications − Suspension/revocation of permit − Suspension of activity at the installation − Cessation of the activity

− Warnings − Fines − Suspension/revocation of permit

Germany − Closure, removal or interdiction of an installation − Fine − Administrative enforcement measures

No measure dominates

Greece − fine Fine



− temporary or permanent cessation of operation Ireland 1) Regulatory Enforcement Measures

− Enforcement measures − Recovery of costs expended in remedying pollution − Suspend/order cessation of activity − Impose conditions on activity − Vary authorisation for activity

2) Judicial enforcement measures − Specific measures to reduce danger − injunctions

Enforcement notice

Italy − restorative obligation Fine and confiscation Luxembourg − warnings

− suspension/withdrawal of authorisation − cessation of activity

- warnings - suspension/withdrawal of authorisation

Netherlands 1) Enforcement action consisting of − administrative orders − sealing off of buildings or sites − removal and storage of goods − sale, transfer of ownership, or destruction of removed or stored goods

3) Coercive Fines 4) Deprivation of Rights

Coercive Fine

Portugal 8) Main sanction: fines - amounts fixed for each legal instrument within the following limits:

- natural persons: minimum of 498.80 Euro and maximum of 3,740.98 Euro

- for legal persons: minimum of 1,246.99 Euro and maximum of 44,891.81 Euro

2) Accessory Sanctions: − Confiscation of the assets used to commit the offence − Suspension of the right to undertake the activity or profession that are

subject to public title or public authorisation

Fines



− Suspension of the right to obtain subsidies or other benefits issued by public authorities

− Suspension of the right to participate in exhibition or events − Suspension of the right to participate in public tenders for providing

public services − Closure of the establishment or revocation of authorisations and permits − Suspension of the right to be issued permit or license − Confiscation of goods

3) Interim measures Spain 1) Main sanctions

− Fine − Temporary or definitive cessation of activities − Definitive sealing or definitive or temporary closure of the installation where the infringement was committed. − Prohibition to commercialise the product (putting on the market) − Barring the responsible to carry out any of the activities regulated by the law for a period of 1 up to 10 years − Revocation or suspension of the authorisation for a period of 1 up to 10 years − Publication, through the considered appropriate media, of the sanctions, once these are definite in the administrative procedure or, where appropriate, in the jurisidiction, as well as the names, surnames, social name of legal persons or physical persons responsible, as well as the type and nature of the offences. − Temporary closure (full or partial), of the installation where the infringement was committed.

2) Accessory measures − Obligation of reposition and restoration:

3) Provisional measures − Temporary (full or partial) closure of the installation as well as termination or suspension of the installation − Temporary suspension of the authorisation to carry out the activity − Immobilisation of the GMOs or of the products containing them − Any other corrective measure or measure of control or security intended to impede the continuity of the production of the damage

4) Coercive measures − Fines: − Subsidiary execution on the costs of the offender is also possible.

Fine

Sweden − Fine Fine



UK − Suspend/order cessation of activity − Impose conditions on activity − Vary authorisation for activity − Improvement notice − Prohibition notice

− Impose conditions on activity − Vary authorisation for activity − Improvement notice



Sector: industrial pollution control

Most common situations described in national law 1) Infringements of substantive nature: • Omission of necessary measures to avoid major accidents (Austria, Belgium, Spain, France, Ireland,

Germany) • Non respect of the conditions of the permit (Austria, Belgium, Spain, France, Greece, Luxembourg, UK,

Ireland, Germany) • Pollution above levels allowed (Austria, Belgium, Spain, France, Greece, Italy, UK, Ireland, Germany) • Misuse and export of ozone layer depleting substances (Austria, Denmark, Spain, France, Sweden, UK) • Import, export, production and use of ODS above the quotas (Austria, Spain, France, Sweden, UK) • Pollution endangering the environment even if the permit is valid (Austria, Spain, France, Ireland,

Luxembourg, UK, Germany) • Discharge without authorization (Austria, Spain, France, Italy, Luxembourg, Germany, Ireland) 2) Infringements of technical nature: • Lack of permit or incomplete permit (Austria, Belgium, Denmark, Spain, France, Greece, Ireland, Italy,

Luxembourg, Sweden, UK, Germany) • Lack of notification (Austria, Belgium, Denmark, Spain, France, Sweden, Germany, Ireland) • Lack of up-to-date safety and emergency report (Belgium) • Failure to provide requested information (Belgium) • Failure to obey to given warnings/orders (Belgium) 3) Catch all provisions: any infringement of existing legislation for this sector (Austria, Spain, France, Greece, Ireland, Italy, Luxembourg, Netherlands, Sweden, Finland) 4) By reference provision: Portugal

Peculiarities for infringement acts in specific Member States: Denmark : IPPC permit can be reviewed if unexpected damages to the environmental occurs – even during 8 year of operator protection period – the permit can be withdrawn or new conditions can be set UK: Infringements may also be prosecuted in the criminal courts. Failure to comply with administrative measures can constitute a criminal offence. Belgium: infringements to the Seveso Directive (on federal level) are enforced by criminal sanctions or an administrative fine.

Name of country Infringement measures available in national legislation Infringement measures mostly applied in practice



Name of country Infringement measures available in national legislation Infringement measures mostly applied in practice Austria - Fines

- Imprisonment - Confiscation - Closure of establishment - Revocation of permit - Restoration


Belgium

Wallonia - Warnings - Cessation of activity (total or partial)/ sealing up machines/ provisional

closure of establishment - Impose the operator to adopt an ‘restoration plan’ or the obligation to

provide with a financial guarantee for restoration. - Administrative fine max. 12 500 Euro - Suspension or withdrawal of permit

Brussels - Catch-all provision: CA can take all necessary measures to prevent


implement given orders. - Warnings (& fix an deadline to regularise the situation - Suspension of the activity (total or partial) - Closure of the one or more installations - Suspension / repeal of permit - Fine (625 – 62500 Euro) (in case of several infringements up to

125.000 Euro. In case of recidivism, up to the double of max. 1250 Euro)

Flanders - Warnings, instructions, orders - Cessation of activity / sealing of machines/ immediate closure of

establishment (full or partial, temporary or definitive) - Prohibition of acces to a certain room

Wallonia: warnings, cessation of activity, seal up machines Brussels: warnings, fines Flanders: warnings, instructions, orders, cessation of activity



Name of country Infringement measures available in national legislation Infringement measures mostly applied in practice - Prohibition of the use of a machine or product - Repeal or suspension of permit - Amendment of the conditions of environmental permits

Seveso: - Warnings, orders - Prohibition or cessation of operation (total / partial) - Fines 50-1250 Euros

Denmark

- De facto legalisation - Recommendation - Warning and enforcement notices - Cessation and prohibition notice to interrupt illegal operation - Restoration injunction - Direct intervention of public authority at expense of operator - Prohibition of use/export/import of substance

Recommendations, warnings, injunctive orders

Finland - Conditional fine - Threat of performance, i.e. duty to correct negligent act at the expense

of the offender - Threat of suspension - Prohibitions or restrictions

- Fine - Threat of performance (especially for contaminated soil)

France - Warnings - Consignation - Subsidiary execution of works at the expense of the offender - Suspension of activities - Definitive, temporary, total or partial closure of establishment - Daily fine until the damage is over - Selling of the equipment, machines and installations

- Warnings - Consignation - Subsidiary execution of works at the expense of the offender - Suspension of activities

Germany - administrative enforcement measures - Fines - closure of an installation - Supplementary conditions to the permit

- Fines



Name of country Infringement measures available in national legislation Infringement measures mostly applied in practice - Withdrawal of the permit

Greece - Fines - Temporary or permanent cessation of operation - Prohibition of the operation - Remedy measure

- Fines - Temporary or permanent cessation of operation

Ireland - Refusal to grant licence

- Enforcement Notices - Injunctions - Discontinuance of use - Restoration of the land - Revocation, refusal or suspension of a permit - Recovery of costs

- Enforcement notices - Fines and recovery of expenses of taking enforcement action - Injunctions - Revocation, refusal or suspension of a permit - Recovery of costs

Italy - Destruction or sequestration of goods - Suspension and revocation of the authorization - Closure of the installation - Warnings - Subsidiary execution of works at the expense of the offender - Fines

- Warnings - Subsidiary execution of works at the expense of the offender - Fines

Luxembourg - Subsidiary execution of works at the expense of the offender - Suspension of the activity - Every necessary measures - Withdrawal of permit - Closure (temporary or definitive) of the establishment

- Warnings - Any urgent or necessary measure - Suspension of the activity


goods 3) Coercive Fines

Coercive Fine (threat of a fine)



Name of country Infringement measures available in national legislation Infringement measures mostly applied in practice 3) Deprivation of Rights

Spain 1) Main sanction: - Fine - Definitive, temporary, total or partial closure of establishment - Barring to carry out activity - Revocation or suspension of authorisation - Publication of the sanctions - Corrective measures, security or control to impede the continuation of

the damage - Restoration - Seizure - Precedent selling of goods - Adscription of the goods - Incapacitation of being titular of authorisations and concessions for a

period of 1 up to 3 years - Subsidiary management of installation - Liquidation of the canon for control of discharges

2) Accessory measures: restoration and reposition 3) Coercive fines

- Fine - Revocation or suspension of authorisation


- Fines

UK - Refusal to grant a discharge consent - Modification of the conditions of the permit (variation notice) - Revocation of the permit - Works at the expense of the offender - Prohibition notice - Improvement notice - Enforcement notice - Suspension notice

- Modification of the conditions of the permit (variation notice) - Enforcement notice - Works at the expense of the offender - Prohibition notice



Sector: Water

Most common situations described in national law: 1) Infringements of substantive nature: • Indirect discharges into water (Austria, Spain, Germany France, Luxembourg, Netherlands, Sweden,

Italy, UK) • Discharges above the allowed emission limit values, (Austria, Belgium, Denmark, Greece, France,

Luxembourg, Netherlands, Sweden, Italy, UK, Germany) • Non-authorised discharges of waste-water (Austria, Belgium, France, Luxembourg, Netherlands,

Sweden, Italy, UK, Germany) • Actions or omissions that cause or may cause pollution and/or damage to the aquatic environment,

either internal or coastal waters (France, Netherlands, Sweden, Italy, UK, Germany). 2) Infringements of technical nature: • Discharges into water without authorisation, or violating the conditions of the authorisation others than

discharges limit values. (Austria, Denmark, France, Luxembourg, Belgium Netherlands, Sweden, Italy, UK)

3) Catch all provisions: any infringement of existing legislation for this sector (Luxembourg, Greece, Finland, Denmark) 4) By-Reference provision: Portugal

Peculiarities for infringement acts in specific Member States: Spain: the disobedience of the orders of requirements of the civil servants of the river basin authority in the exercise of their functions UK: Infringements may also be prosecuted in the criminal courts. Failure to comply with administrative measures can constitute a criminal offence. The Netherlands: General policy is to enforce both administrative and criminal for the same offence. Belgium: Direct discharges into marine waters are forbidden and subject to criminal sanctions. Flanders: Failure to pay water levies are enforced by administrative fines.

Name of country Infringement measures available in national legislation Infringement measures mostly applied in practice Austria - Fines

- Imprisonment - Confiscation - Closure of establishment - Revocation of permit - Restoration


Belgium

Wallonia: - Warnings

Wallonia Warning, cessation of activity, sealing up machines/equipment



Name of country Infringement measures available in national legislation Infringement measures mostly applied in practice - Cessation of activity (total or partial)/ sealing up machines/ provisional

closure of establishment - Impose the operator to adopt an ‘restoration plan’ or the obligation to

provide with a financial guarantee for restoration. - Administrative fine max. 12 500 Euro - Suspension or withdrawal of permit/authorisation

Brussels

- Catch-all provision: CA can take all necessary measures to prevent the

endangering of the environment - Direct intervention of public authority at expense of operator in order to

implement given orders. - Warnings (& fix an deadline to regularise the situation - Suspension of the activity (total or partial) - Closure of the one or more installations - Suspension / repeal of permit - Fine (625 – 62500 Euro) (in case of several infringements up to

125.000 Euro. In case of recidivism, up to the double of max. 1250 Euro)

Flanders

- Warnings, instructions, orders - Cessation of activity / sealing of machines/ immediate closure of

establishment (full or partial, temporary or definitive) - Prohibition of acces to a certain room, of the use of a machine or

product - Repeal or suspension of permit - Amendment of the permit conditions - Fines from 50 -1250 Euros if water levies are not paid.

Brussels: warnings, fine Flanders: Warnings and instructions, closure of establishment, fine for unpaid water levies

Denmark - De facto legalisation Recommendations, warnings, injunctive orders



Name of country Infringement measures available in national legislation Infringement measures mostly applied in practice - Recommendation

- Warning and enforcement notices - Cessation and prohibition notice to interrupt illegal operation - Restoration injunction - Direct intervention of public authority at expense of operator

Finland - Conditional fine - Threat of performance, i.e. duty to correct negligent act at the expense

of the offender - Threat of suspension - Prohibitions or restrictions

- Fine

France - Warnings - Consignation - Subsidiary execution of works at the expense of the offender - Suspension of activities - Definitive, temporary, total or partial closure of establishment - Daily fine until the damage is over - Selling of the equipment, machines and installations

- Warnings - Subsidiary execution of works at the expense of the offender - Suspension of activities - Definitive, temporary, total or partial closure of establishment

Germany - Every necessary measures - Fines - Closure of an installation - Supplementary conditions to the permit - Supplementary conditions to the permit

- Fines

Greece - Fines - Temporary or permanent cessation of operation - Prohibition of the operation - Remedy measure

- Fines - Temporary or permanent cessation of operation

Ireland

- Modification of the conditions of the permit (variation notice) - Revocation of the permit - Works at the expense of the offender

- Enforcement notice - Variation notice - Works at the expense of the offender

- Refusal to grant a discharge consent



Name of country Infringement measures available in national legislation Infringement measures mostly applied in practice - Prohibition notice - Enforcement notice

Italy - Destruction or sequestration of goods - Suspension and revocation of the authorization - Closure of the installation - Warnings - Subsidiary execution of works at the expense of the offender - Fines

- Fines + restoration at the expenses of the offender

Luxembourg - Subsidiary execution of works at the expense of the offender - Suspension of the activity - Every necessary measures - Withdrawal of permit - Closure (temporary or definitive) of the establishment - Selling of goods and installations

- Every necessary measures - Suspension of the activity - Withdrawal of permit


goods 4) Coercive Fines 3) Deprivation of Rights

- Coercive or Conditional Fines

Portugal 9) Main Sanction: Fines – amounts fixed for each legal instrument between a minimum limit of 249.40 Euro and a maximum of 2 500 000.00 Euro.

10) Accessory sanctions: - Confiscation of the assets used to commit the offence - Suspension of the right to undertake the activity or profession that are


public authorities - Suspension of the right to participate in exhibition or events

Fines



Name of country Infringement measures available in national legislation Infringement measures mostly applied in practice - Suspension of the right to participate in public tenders for providing


permits - Suspension of the right to be issued permit or license - Confiscation of goods

Spain 1) Main sanction: - Fine - Definitive, temporary, total or partial closure of establishment - Barring to carry out activity - Revocation or suspension of authorisation - Publication of the sanctions - Corrective measures, security or control to impede the continuation of

the damage - Restoration - Seizure - Precedent selling of goods - Adscription of the goods - Incapacitation of being titular of authorisations and concessions for a

period of 1 up to 3 years - Subsidiary management of installation - Liquidation of the canon for control of discharges

2) Accessory measures: restoration and reposition 3) Coercive fines

- Fine + liquidation of the canon to control discharges - When it is a installation, closure of establishment may be applied


- Fines

UK - Refusal to grant a discharge consent - Modification of the conditions of the permit (variation notice) - Revocation of the permit - Works at the expense of the offender - Prohibition notice

- Enforcement notice - Variation notice - Works at the expense of the offender



Name of country Infringement measures available in national legislation Infringement measures mostly applied in practice - Enforcement notice



3.1.5. Overview of the administrative judicial framework and procedure The administrative judicial framework and procedure is the area where more differences have been found among the countries. This section reviews several key aspects of the national administrative procedures and judicial review, in order to highlight some of the more significant similarities and differences.

• Initiation of the infringement procedure and the discretionary powers of the administration One of the most interesting aspects when reviewing each country’s procedural routes for imposing a measure or sanction is to analyse who discovers or denounces the irregularity that will lead to an infringement procedure. In all countries the situation is similar; it is the corps of administrative inspectors or police officers that normally flags the existence of breaches of the legislation. Citizens initiate only a small percentage of complaints or denunciations. This could be for lack of awareness, lack of knowledge of a rather technical legislation, or a combination. In general, citizens seem to act more in cases of polluting installations close to where they live or to aspects that directly affect them. NGOs do not seem to be proactive in denouncing infringements either. After the discovery or denunciation of the possible infringing behaviour, the infringement procedure is initiated by the administration ex-officio. It is in the decision whether or not to initiate an infringement procedure where the administrative competent authority will have a big margin of discretion. The principle of opportunity is expressly foreseen in German law. In other countries, such as France or Greece, the administration holds a power of appreciation. Even in countries where the principle of legality governs the initiation of the procedure, and therefore the administration would seem to be bound to initiate an infringement procedure when even an illegality is detected, the administration attributes this power of discretion or appreciation to itself. The consequences of this power of discretion are more important in those countries where the infringement procedure will end with the imposition of a sanction, as a practice of deciding not to initiate a procedure in certain cases imply a tolerance of the competent authority towards certain types of infractions or infringers, which could reduce the effectiveness of the administrative punitive system. In practice, the administration will decide whether it is convenient or “proportionate” to open the infringement procedure or only send a warning that the illegal situation must be rectified. The countries with a proper administrative punitive system therefore function in practice similarly to countries with systems having more preventive or regulatory nature, with possible repercussions for the effectiveness of the punitive measures. The only country where the principle of legality seems to be strictly applied is in Austria. In conclusion, in most cases, even in countries with a punitive system, the first act of the competent authority will be to send a warning to the infringer to stop the illegal behaviour and restore the environment. If this order or warning is not complied with, the competent authority will initiate the infringement procedure. The administrative authority can investigate whether an infringement has occurred but its powers are more reduced than under criminal law. In Austria the competent authority has the same investigating power under the quasi-criminal procedure and the administrative procedure but not the same as a court in a criminal procedure. The principles governing the infringement procedure differ from one country to another depending whether the administrative system has a punitive nature or not. In the countries with an administrative punitive system, the principles governing the procedure and the system in general are the same as in criminal law but with less intensity. For example, in Spain, the principle nullum crimen sine lege is softened by having a residual catch-all provision allowing for petty offences.



• Possibility of appeal Once the decision to apply and administrative measures has been taken, all countries provide there is the possibility to appeal against the decision. Here it is possible to distinguish two types of systems: (1) those where an appeal to a higher administrative level is compulsory; and (2) those where the individual can go directly to a Court. Most of the EU-15 (France, Luxembourg, Austria, Belgium, when requested by the law, Germany, Greece, the Netherlands, Portugal, Spain and Sweden) require appeal to a higher administrative level before the matter can be brought to the court. In Ireland, although there is no compulsory administrative route, the offender can go to court to have the administrative order quashed. In UK this possibility will exist under certain circumstances. Normally the appeal will be lodged to a superior level of the administrative hierarchy but in some countries the appeal must be filed before specific bodies and agencies, such as the Danish Environmental Protection Board of Appeal or the multiple Environmental Agencies. In the case of Finland, the prior administrative appeal is compulsory for certain cases, but this step is considered to be more like a revision for corrections than a real appeal, those being lodged directly before the specific environmental Court of Vaasa. In Italy, the administrative appeal procedure exists but is not compulsory and the individual can go directly to the court. In Denmark only decisions imposing new requirements, called constitutive measures, can be appealed. Substantiatory measures, for example an order requiring the operator to comply with the permit and remove the damage caused, cannot be appealed. These measures do not have a repressive nature but rather are considered regulatory, aiming at ensuring compliance with already established requirements, such as the conditions of a permit.

• Suspensive effect of the appeal and interim measures In most countries the appeal does not suspend the execution of the administrative decision (in Austria does appeal against administrative decisions under the quasi-criminal system have the suspension effect. In Greece, Ireland a court may suspend execution if an administrative measure is challenged by way of judicial review. In UK the suspension is possible for some administrative measures. In Belgium, suspension of the execution is possible when specifically provided by the law. In such cases, the party bringing the appeal can ask the court to declare interim measures. The conditions for the imposition of interim measures vary but in all cases the party requiring interim measures will have to pay the costs of the adoption of such measures. As a consequence, whereas interim measures adopted by the administration are quite common, interim measures requested by the party on which the administrative measure has been imposed. In Italy, where the administration does not have any police powers, only the party on which the administrative measure has been imposed can request the adoption of interim measures.

• Participation by the public In all countries the role of citizens and NGOs during the administrative infringement procedure is limited to the very first phase of denouncing illegal behaviours. Afterwards, NGOs, citizens and neighbours can provide additional information but do not have a right to participate in the procedure itself. Their rights are limited to the right to be informed of the action taken by the administration and the final decision taken. In Ireland, an NGO or any member of the public can enforce non-compliances with the most important provisions in environmental laws but only in courts. The situation is different regarding appeals. Whereas in some countries, such as France, Spain, Italy or Germany, only the person directly affected and having a personal and differentiated interest can



appeal. However, in Greece, appeals before the courts are open to everybody (actio popularis). This is also the case in Ireland where the right to appeal in many cases is practically open to anyone whereas appeals before administrative boards will only be open to the interested party (although he concept of interested party has been extended by case-law allowing NGOs). Denmark has the opposite situation. NGOs and neighbours that have shown an interest in a particular case can appeal before administrative boards, but have no legal standing before a court. The reason for this difference in Denmark is that administrative courts have not been yet developed and therefore appeals have to be lodged before ordinary or civil courts which have stricter legal standing rules. In Finland, any NGO having a casual connection to the subject matter has a right to appeal and the court can take the opinion of NGOs into account. In Portugal NGOs have direct access to administrative courts regarding environmental matters regardless as to whether proceedings are pending or not. Citizens and NGOs have other interesting ways of enforcing environmental law. Apart from the possibilities to contest a decision of the administration in granting or refusing permits, an actio popularis exists in Ireland, Portugal, Netherlands and UK, and to a certain extent in Greece. In Spain, specific environmental legislation has foreseen the possibility of an actio popularis as well. Another route open to citizens is the possibility to react to an omission on the part of the administration. Countries like Spain, Germany, Belgium, UK, France, Portugal, Italy and in some cases Ireland allow individuals to go before a court to demand action by the administration in cases when the administration is obliged to act in a certain situation by law and it does not do so. Prior to bringing the action before the court, the citizen must normally request the administration to act. If the administration does not act as required by law, the citizen can request the competent court for order the administration to take action.

• The role of the ombudsman In no country the ombudsman is recognised as having a significant role in the administrative infringement procedure. Its role for the protection of the environment is limited to investigating citizens’ complaints and making recommendations to the administration. In Denmark the ombudsman is part of the environmental supervisory body and can have a more active role. In Spain, the ombudsman can have an indirect role via the possibility open to him/her to lodge cases before the Constitutional Court for violations of human rights.

4. Effectiveness of non-criminal measures in relation to criminal measures In the present study the baseline used for assessing effectiveness of non-criminal measures is their deterrent effect, i.e., whether they are likely to prevent the relevant offender from incurring further infringements of legal provisions leading to environmental damage. However, all of the national reports note the importance of the various types of liability, i.e., civil, criminal, quasi-criminal and purely administrative, in the protection of interests of very different natures and thus all national reports underline the necessary interaction among these different types of liability to effectively ensure the protection of the environment. In order to provide comparable and, to the largest extent possible, measurable data, all national experts were asked to reflect on some proposed indicators for effectiveness and to participate in the development of such indicators following the gathering and analysis of statistical data for both criminal and non-criminal procedures and the carrying out of interviews with responsible enforcement authorities at national level. However, in all EU-15 Member States, statistical data with regard to administrative infringements and their related sanctions or/and other enforcement measures was lacking. Moreover, where certain statistics had been gathered by national authorities, the data was incomplete at best. Only Germany, Denmark, Italy, UK and some of the Spanish Autonomous Communities were able to provide with Milieu Ltd & National Reports on non-criminal measures Huglo Lepage Summary Report


statistics of administrative offences and their corresponding enforcement measures per sector; in Portugal, differentiated statistics where only available for the nature sector. More information was available on the number of inspections carried out and the ratio between the number of prosecutions initiated and the number of actual convictions at the end of the process (Austria, Belgium, Germany, Ireland, Italy, Luxembourg, Portugal and UK). Although some countries were able to provide aggregated data on the average of fines (Italy, Spain) or the most common enforcement measure imposed (Belgium, Denmark, Ireland, Luxembourg), no specific information was available on the range of such enforcement measures (e.g., minimum and maximum of sanctions applied, whether temporary or definite closure of establishment, etc.). Finally, no detailed statistical information was provided in the national reports of France, Finland, Greece, the Netherlands and Sweden. The above-mentioned lack of comprehensive statistical information has nevertheless been supplemented by all national experts via numerous interviews with enforcement authorities. The interviews aimed to survey the authorities’ specific practical experience when dealing with environmental infringements. The following indicators were used: Efficiency of the administrative infringement procedure The administrative infringement procedure is normally agreed to be less costly and faster than criminal procedure. Thus it provides a more immediate remedial action, which is in most cases important for prevention of further deterioration or irreversible environmental damage. Because of their attributed powers of inspection, administrative authorities are normally the first to identify the infringing act. The administrative authority is therefore in the best position to quickly react to the substantive (e.g., illegal abandonment of waste) or technical infringement (e.g., breaches of permit conditions) in order to prevent further environmental damage or ensure that permits are complied with. The celerity of the administrative procedure could also be linked to lower procedural guarantees, mainly relating to the degree of evidence needed to assert the infringement, the channels for public participation, and the possibilities to appeal to a higher authority or court). In Austria this does not apply, because the standards in administrative procedures are as high as in court procedures, there is public participation neither in administrative nor in court procedures and appeals can be lodged in both of them; check countries. The consequences of cases important for prevention of further or because of inspection infringing. The is therefore in the best position to quickly to authority or strict procedural guarantees could be alarming whenever very severe and punitive administrative measures are applied if some of the elements of fair trial have been lacking during the administrative process. Furthermore, the lack of public participation channels may lead to certain obscurantism in the negotiations carried out between the offender and the competent administrative authorities and the final dispute settlement. This obscurantism may be aggravated if there is no separation of the permitting/inspecting and enforcement roles of the relevant administration. Obscurantism is a problem in Austria. Some national reports (e.g., Portugal, Spain) appear to have increasingly slower administrative procedures directly linked to the limited capacity of administrative authorities to deal with an ever growing bulk of environmental-related legislation and new types of infractions. The national expert for Germany noted that deficient execution of administrative measures due to insufficient technical and financial capacity can in practice decrease the deterrent effect of administrative measures. It seems important at this point to assess the capacity of the infringement procedure and the channels of communication that exist between the competent authorities under the administrative, quasi-criminal and criminal systems. In most Member States criminal prosecution is still governed by the opportunity principle and there is no duty to prosecute (Belgium, UK). Moreover, many countries (Austria, Belgium) experience gaps in the way administrative authorities relate with the public prosecutor, their degree of tolerance towards the infringement and thus there is a risk of failure of



communication or referral of the case to the criminal jurisdiction. Austria and Italy appear as the only countries where there is no reluctance to refer cases to criminal courts. Indeed, the contrary occurs. Capacity of the administrative infringement procedure to reach legal persons Most of the national reports noted that non-criminal measures provide important enforcement tools to punish infringements by companies as well as physical persons. They help to overcome the limitations of most Member State criminal systems that adhere to the principle of societas delinquere non potest and only recognise culpa in eligendo or in custodiendo to address criminal liability (Austria, Spain, Portugal). The advantages provided by administrative law in this regard are extremely valuable as the most severe environmental damage is often caused by operating industries discharging their polluting emissions into the different environmental media. Type of sanction/enforcement measure mostly applied, application of interim and cautionary measures While most Member States provide for both criminal and non-criminal measures in their legal acts, practice still remains scarce. The national studies found that most enforcement authorities usually choose either fines-accessory sanctions or warning notices and in most cases in very moderate levels of severity. Administrative systems with a more preventive character (Belgium, France, Luxembourg, Denmark, Finland, Netherlands, UK and Ireland, as well as the purely administrative systems of Austria and Germany) can be distinguished from those having a more repressive character (Greece, Italy, Spain, Portugal, quasi-criminal administrative systems in Austria and Germany). The effectiveness of these different systems varies highly. While fines can be a powerful instrument to change the behaviour of a polluting industry, practice shows that the amount of most fines, although at times higher than those applied in criminal procedures, remain quite conventional and are often closer to the minimum averages provided in administrative law rather than the most severe and thus exemplary limits. The use of pecuniary fines may also prove to be ineffective if it results in the legal entity declaring insolvency. The use of other types of enforcement measures, e.g., closure of establishment, restoration of the damage, publicity of the enforcement measure or registration of the administrative offence in commercial records of the company, could provide the desired deterrent and/or remedial effects but that requires adequate technical and financial capacity as was noted in the case of Portugal. . Italy and Spain introduce the possibility to apply restoration sanctions that go beyond the initial damage caused, whenever restoration in natura is no longer possible, and thereby enable a greater deterrent and punitive effect (e.g., if five trees were logged a greater number is to be restored, higher sum to be paid for restoration purposes than the real cost of damage, etc.) In addition, accessory and coercive measures can be extremely useful to ensure that a certain infringement action is immediately stopped and further environmental damage prevented. On the other hand, many experts noted that the specific expertise and technical knowledge of environmental law held by the competent administrative authorities can result in a better application of environmental-related enforcement measures, whereas most criminal jurisdictions lack lawyers with specific environmental knowledge in criminal jurisdictions (Belgium). This problem may be especially relevant in those countries where catch-all or blank provisions exist in criminal law that require consultation of complex and often dispersed environmental legislation to determine whether a criminal infringement has occurred (Belgium).



The national experts have also noted the lack of knowledge of the increasing amount of environmental legislation as an important problem for the industries, which may pollute as a result of their lack of understanding of certain technical provisions contained in national legislation. In such cases, and quoting the Danish author, ‘the administrative authority often acts as a consultant rather than a controller’ by explaining to the offender the legal and technical requirements of the infringed environmental legislation. Whether this is a naïf assumption or a real problem in some countries is a matter open to further discussion in the future. Administrative tolerance of infringements The term “tolerance” has to be interpreted in two different contexts. The term has to be interpreted in the context of the discretionary powers granted to the administration, which will be especially important in countries with a more regulatory enforcement system. In this context the term “tolerance” will refer to cases where the administration prolongs the negotiations with the infringer more than should be expected, thus rendering the administrative measures inefficient. The second interpretation has to be put in the context of systems with a more repressive nature where the principle of legality strictly applies. In this context the term “tolerance” refers to cases where there is an infringement of the legislation and the administration does not sanction, but rather tolerates the infringement and adopts soft measures. In this system, another expression of administrative “tolerance” with certain types of infringements could be those cases where a punishment is imposed, but the intensity of that punishment, e.g., the level of the fine, is lessened. Most of the national reports recognise a certain degree of administrative tolerance (Spain or Italy). This could pose certain risks to proper enforcement, particularly, when the roles of administrative authorities with regards to permitting, inspecting and enforcement responsibilities are not differentiated. It could also prove to be particularly relevant in those cases where the same administrative authority deals with environmental and other dossiers, such as territorial planning, and will eventually need to weigh these against other regional or local priorities, such as economic development (Austria, Spain). Moreover, the power of negotiation, which is a common feature for administrative procedures in many Member States, may lack the required independence and could well be subject to more political considerations, as for example any economic or social interests at stake. Furthermore, some national reports (e.g., Netherlands, Spain, Belgium) have indicated that the degree of proximity of administrative bodies to their local industries could significantly influecences the outcome of the negotiations to the detriment of the environmental protection interest. The possibility of negotiation is not exclusive to the administrative procedure (plea bargaining is commonly accepted in criminal procedures of many Member States). However, there is a risk that the consultation process in administrative law is reduced to a simple exchange of documents rather than a real discussion between the industry and the administration (e.g., France, Belgium). Thus some national reports indicated instances where negotiations between the administration and the industry seemed excessive and they concluded that administrative law enforcement was based more on bargaining with a view to achieving compliance than on sanctioning with a deterrence perspective. Frequency of recidivism No statistical data was available in any of the EU-15 Member States for this particular matter and there are different views and practices depending on the Member State. On one hand, some countries, e.g., France, Austria have indicated that there are few cases of recidivism following an administrative enforcement measure, owing to the fact that the infringement is mostly linked to the lack of knowledge of environmental legislation by the infringer industry, rather than a real intention to endanger the environment. On the other hand, Spain has noted that some of the infringers, especially



in IPPC-related activities, were ‘old well-known friends’ that perceived no real risk in repeating their illicit actions due to the low degree of the fines normally imposed on them and the high degree of tolerance of the enforcement administrative authorities. Social blame as a tool for deterrence All of the national reports noted that social repulsion of environmental-related infringements is steadily increasing, although Austria is not the case. This allows for more stringent measures and more immediate action to be applied by responsible authorities in response to public awareness of environmental concerns and risks. It appears that a higher degree of social condemnation is associated to criminal measures, although there is no empirical data to support this statement. This could be due to the public character of the criminal measure, which is lacking in most of the national administrative systems. In contrast, Spain, Germany, the UK and Ireland usually apply ‘name and shame’ processes even in administrative infringement cases. Higher degrees of social blame for administrative offences could be generated if greater public involvement takes place when imposing administrative enforcement measures. However, such public involvement could also jeopardise the simplicity and rapidity of the administrative decision and may not be strictly necessary in those cases when only minor technical breaches of legislation occur.

5. Conclusions and recommendations The primary aim of the study was twofold:

• To provide information to the Commission on non criminal (administrative) measures in 15 MS for the enforcement of some EC environmental Directives

• To assess effectiveness of non criminal measures in their deterrent effect leading to a strengthening of environmental protection, in comparison to the effectiveness of criminal measures in that respect;

This study has looked at the range of administrative measures applied in cases of infringement, but in the effectiveness part of the study it has focused on the use of administrative sanctions. Effectiveness of enforcement regimes is before all related to the capacity of any such regimes to ensure that compliance with a specific rule can be properly achieved, thus leading to strengthening of environmental protection. One way to analyze the effectiveness of sanctions is to check whether any breach of environmental legislation is punished or not and, if yes, are sanctions imposed in practice. Another way to look at effectiveness is to check whether sanctions have a deterrent effect by preventing any breach of law through the threat of sanctions that may be imposed. Behind this discussion a key question is to know whether punishment is necessary for deterrence. Because the ultimate objective of environmental regulation is to prevent environmental damage from occurring, then a deterrent effect associated with criminal or non criminal sanctions should in effect lead to better environmental protection. Administrative and criminal sanctions are rather similar in nature. Both aim at punishing, and in most Member States the criminal and non criminal sanctions applied to environmental cases are also rather similar (fines, closure, and withdrawal of permit), with the notable exception of imprisonment, rarely judged. However, whether an administrative sanction or a criminal sanction should be imposed, the decision to punish is taken from a different perspective, and sanctions are imposed by different institutions through different procedures. This is a key issue to take into account for the assessment of the effectiveness of both administrative and criminal enforcement regimes. In addition, effectiveness of both criminal and non criminal measures must be analyzed, taking into account the legal and political context of the country in which they are applied. Milieu Ltd & National Reports on non-criminal measures Huglo Lepage Summary Report


Despite a great variety of administrative enforcement systems related to different national legal systems in Member States, non criminal measures and sanctions can be applied and imposed in all of them in order to enforce environmental legislation and therefore to ensure that compliance is achieved. Interestingly, some national administrative regimes are more punitive than others, leading to some confusion with the primary objective of any criminal regime. Still, the legal regime is in place for administrative enforcement. But from the main fact findings of the study, it can be concluded that the main obstacles to an efficient administrative enforcement regime are the lack of human, technical and financial resources for inspections as well as the absence of political will to enforce environmental legislation and impose sanctions. Effectiveness of the administrative enforcement regime as compared to the criminal enforcement regime is particularly difficult to assess from a quantitative perspective in as far as there are no statistics at national and aggregated levels that are based on a harmonized classification of infringements to environmental legislation. From a qualitative perspective, it can be concluded that the administrative enforcement regimes can potentially be efficient for the following reasons:

• The procedure is faster and less costly as compared to criminal proceedings, the results of which are uncertain;

• The administrative competent authority can take a measure that is immediately applicable so that the environmental infringement can be tackled in the shortest delay, notwithstanding the possibility for the addressee to challenge such decision before a court;

• The administrative enforcement regime offers a great variety of measures, including accessory measures, that can be applied either before or concurrently to the sanction imposed; Any such measures may have either an incentive effect or a coercive nature;

• Administrative measures and sanctions are better tailored to address environmental infringements as they primarily concern the conditions under which an activity, the potential source of pollution, may be exercised;

• Administrative sanctions can be imposed to legal persons as well as to natural persons, which help overcome limitations of criminal systems where only culpa in eligendo or in custodiendo applies;

• Wherever the person exercising an activity potentially harmful to the environment is linked to the administrative competent authorities through a special relationship (permit, registration, reporting obligation), the administrative measures and sanctions can be imposed on the basis of an informed decision.

However, the efficiency of administrative enforcement regimes may be undermined because of the following reasons:

• There is great discretion left to competent authorities with regard to the decision to sanction or not. In addition, there is no immediate control over the administration’s appreciation of the situation;

• In most Member States, sanctions can only be imposed after “warnings” have been addressed, thus giving more place to negotiations rather than punishment;

• The proximity between competent authorities and local companies may affect the margin of manoeuvre of the competent authority in a way that leads to bargaining to achieve compliance rather than to a deterrent punishment, thus giving priority to some private vested economic interests instead of protecting the environment;



• The lack of transparency in the decision making process leaves aside the public and NGOs,

creating some obscurantism in particular when enforcement tasks are not differentiated from other administrative duties such as permitting;

• Administrative enforcement procedures are not implemented in an integrated manner (except for IPPC installations). Administrative measures and sanctions are rarely designed in a coherent and integrated manner which leads to a fragmented regime where some sanctions may be stricter in case of certain infringements than for other. This is problematic, not only because this situation may be an incentive for operators to shift pollution from one media to another depending on the level of sanctions but in case there are different competent authorities which do not always coordinate their actions and which may compete in using their powers of police;

• Administrative sanctions are not aggravated in the case of recidivism of infringements;

• There is little or no social blame associated to administrative sanctions;

• Most common enforcement measures applied are fines which are usually fixed at a level closer to minimum allowed by the law

• There is no systematic obligation to restore the environment whenever a damage occurs

In terms of effectiveness, both criminal and administrative regimes present advantages and disadvantages. Procedures can accumulate in a significant number of Member States and this may prove to be useful for ensuring environmental protection (cooperation among competent administrative authorities and the prosecution through an improved and more regular exchange of information, application of a range of coercive and/or interim “measures” in parallel to the criminal prosecution triggered…).

Therefore, the two regimes should not be opposed to each other. On the contrary, effectiveness of enforcement can be maximised if synergies are created in order to reconcile prevention (through the control exercised by the administration), compliance, dissuasion of infringements (deterrent effect), and punishment (sanction). In that respect, the social blame associated to criminal sanctions is a key tool for deterrence. Such reconciliation requires that criminal and administrative regimes (procedures and sanctions) are clearly defined so as to avoid any confusion:

• With regard to the objective pursued: the reason to punish with respect to the various interests protected by the law

• With regard to the types of infringements to punish (formal/technical/substantial)

• With regard to the need to take immediate measures

• With regard to the deterrent effect of applicable measures and sanctions on a case by case basis

• With regard to the possibility to combine sanctions, taking into account the possible accumulation of criminal and non criminal sanctions

Key recommendations: 1. At national level:

• Provide more technical, financial and human resources to inspection and enforcement activities

• Increase the role of the public in the enforcement procedure through the development of good practices (e.g., citizens complaint procedures, volunteer inspectors) and increased participation in the decision making process



• Raise public awareness on environmental infringement procedures through “name and shame”

systems that publish the names of companies (but not individual persons) found to have infringed a regulation;

• Sanction recidivism with more severity.

• Better clarification of the enforcement role of each competent authority so as to avoid a fragmented regime of administrative measures and sanctions;

• Make restoration a priority in administrative enforcement systems, e.g., by requiring administrative fines imposed because of an infringement to be used first and foremost for repairing any environmental damage caused.

• Better coordination of enforcement among competent authorities towards a more integrated enforcement administrative regime so as to avoid duplication and competition

• Identify criteria for distinguishing serious offences that the competent authorities should systematically report to the prosecution

• Strengthen coordination between the administrative enforcement system and the criminal prosecution system. This should go beyond requiring the administration to systematically forward supporting documents to the prosecutor to become active consultation between the two systems, with a view to arriving at the best informed decision and to maximizing synergies between the administrative and the criminal procedures;

• Make a firm political commitment to enforce environmental legislation

2. At Community level: Although it is difficult to put forward recommendations at EC level because of the subsidiarity principle as well as the principle of procedural autonomy, EC environmental law could contribute to improving the efficiency of both administrative and criminal enforcement systems in place in the Member States, through the following: • EC legislative proposals can be designed in such a way as to encourage national legislation to be

better structured and coordinated and thereby avoid fragmented regimes (e.g., the IPPC approach);

• EC legislative proposals could systematize the concept of an “integrated” enforcement, approach based on a systematic coordination among competent authorities, together with the prosecution;

• Require the imposition of specific sanctions in case of certain infringements (e.g absence of permit = immediate suspension of the activity until regularisation)

• Encourage use of new types of sanction/incentive aimed at accelerating compliance (e.g. penalty imposed on a daily basis until compliance achieved)

• Introduce some (criminal) financial penalties with a harmonised minimum level (similar to Article 16 of Directive 2003/87/EC establishing an emission allowances trading scheme within the Community)

• Create a central Community-level register of companies that have infringed certain environmental legislation in order to better track if any recidivism;

• Make a “name and shame” Community-level register of infringing companies, particularly if guilty of recidivism

• Raise awareness about certain infringements in order to increase public sensitivity and enhance the blame effect



• Develop good practices for governance allowing public participation in the decision making

process for the enforcement of administrative measures and sanctions

• Further enhance the capacity of criminal judges to address complex environmental infringements through a Community training programme.

One final conclusion and recommendation comes from the difficulty that all national experts had in gathering concrete information on the imposition of administrative measures for environmental infringements, which made the effectiveness evaluation difficult, if not impossible. This lack of good statistical information was particularly disappointing, given that, according to Recommendation 2001/331 on minimal requirements for inspections, all Member States should be collecting this information. It is therefore strongly recommended that the EU move quickly to establish a standardised format for reporting statistics on infringements. This could be developed via a working group of Member State representatives working on environmental enforcement, and perhaps be based on a questionnaire addressed to Member States through an amendment of Directive 91/692/EEC standardizing and rationalizing reports on the implementation of certain Directives relating to the environment, or on the basis of Recommendation 2001/331 on minimal requirements for inspections;


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ANNEX I: METHODOLOGICAL GUIDELINES

ANNEX II: CHECKLIST FOR INTERVIEWS ON

EFFECTIVENESS

ANNEX III: ORIGINAL TABLES OF CONCORDANCE

PER SECTOR

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