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Freshfields Sustainability

| 10 minutes read
Reposted from Freshfields Risk & Compliance

Ecocide out of the woods: update from Europe and beyond

As climate and environmental issues are an increasingly hot topic in society, they are under growing spotlight in the legal arena. 

Major companies and even States have been facing litigation (both before domestic courts, e.g. the Netherlands, Belgium, Germany, France, Australia and the United Kingdom (here) as before the European Court of Human Rights, Switzerland), and measures have been imposed e.g. injunctions to reduce greenhouse gas emissions (overview here). These claims are generally based on violations against human rights (including e.g. right to life and respect for private and family life) and extra-contractual liability. 

In parallel to this trend, national and international efforts are increasing to create legislation aimed at criminalising widespread or long-term damage to ecosystems as a stand-alone and overlapping offence of ecocide. 

In that vein, in 2021 a panel of specialised lawyers from around the world created a definition of ‘ecocide’ which refers to “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.” Legislators around the world were invited to integrate this new offence in their respective criminal frameworks. 

NGOs are working to have ecocide recognised as a fifth international crime which can be prosecuted before the International Criminal Court (the ICC). In February 2024, the Office of the Prosecutor of the ICC launched a public consultation to further develop the ICC’s jurisdiction concerning environmental crimes under the Rome Statute. A draft policy paper produced based on this initial input is expected and will then be subject to a second public consultation. 

The EU has become the first international body to effectively integrate the concept of ecocide (not the term itself) in its new directive on the protection of the environment through criminal law (the Directive), adopted on 26 March 2024 and published on 30 April 2024 (here). The Directive sets out minimum standards and (increased) penalties for a list of environmental offences. Although not described as ‘ecocide’, the offences can constitute a ‘qualified offence’ when they are committed intentionally and cause destruction or widespread and substantial damage which is long-lasting to ecosystems, habitats or the quality of air, soil or water. According to the Directive’s preamble, this may encompass conduct comparable to ‘ecocide’ (prior analysis here).

Member States may opt to have extra-territorial offenses, committed outside their own territory or even outside EU territory, caught by their national legislation. This may potentially result in a broad scope of jurisdiction whereby the limits imposed under the rules of double jeopardy will need to be considered (i.e. ensuring that persons are not tried for matters where a final determination has already been reached). 

Maximum sentences must include imprisonment of at least eight years for individuals and fines amounting to more than 5% of the total worldwide turnover or more than €40 million for legal entities. Additional measures may include a restoration order, exclusion from public funding, tenders etc, disqualification and withdrawal of permits or authorisations.

The Directive entered into force on 20 May 2024 and Member States will need to bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by 21 May 2026.

Below, we provide an overview of the current status of ecocide legislation in jurisdictions in the EU and beyond.

EU jurisdictions

There is currently no stand-alone ‘ecocide’ offence under Austrian law. The Austrian Criminal Code however contains a separate section on environmental offences, such as water-, soil- or air pollution. 

According to criminal statistics, their application remains however rather limited. The implementation of the Directive may require adjustments to these provisions. The competent minister has, until now, not demonstrated any initiative in this direction, including as regards a potential introduction of an ‘ecocide’ offence, and there has been no relevant public debate on this point. 

‘Ecocide’ is one of the new offences included in the new Belgian Criminal Code which was approved on 22 February 2024 with entry into force on 9 April 2026. It is defined as any intentional and illegal act (including by omission) which causes substantial, widespread and long-term damage to the environment with knowledge that the act causes such damage. 

The offence may give rise to a prison sentence of up to 20 years for individuals and a fine up to €1,6 million for legal entities (this will need to be amended by 21 May 2026 to comply with the Directive), and potentially additional sentences including cleaning up a polluted area, confiscation, profit-based financial penalty, etc.

The scope of this new ‘ecocide’ offence is very limited as it only targets illegal acts which constitute a violation against Belgian federal law and international regulations that are binding at federal level, as well as  “conduct which cannot be located on Belgian territory” (which we understand to refer to violations against (future) federal laws sanctioning extra-territorial conduct falling outside the Regions’ jurisdiction). 

This limitation must prevent interference with the powers of the Regions, which are the competent governing bodies with respect to environmental law and enforcement. The Regions, however, still need to take appropriate action to implement the Directive by 21 May 2026 and criminalise ecocide.

The ‘ecocide’ offence was introduced as autonomous offence in the French Environmental Code by law of 22 August 2021 concerning the fight against climate change, which resulted in part from a government-led consultation (the “Citizens’ Convention on Climate”). 

Different than most pollution offences under French law, which do not require intentional conduct, ‘ecocide’ is an intentional offence. It requires the demonstration of “severely harmful and durable effects” (legally defined as likely lasting 7 years or more) on health, flora, fauna or the quality of air, soil or water. It carries sentences of up to 10 years' imprisonment and a €4,5 million fine for individuals and a €22.5 million fine for legal persons or up to ten times the advantage drawn from the offence. Since its introduction, ecocide has been used in several criminal complaints, some of which have led to judicial investigations, but no court decisions have been issued yet. 

We expect the existing regime to be only marginally modified to comply with the Directive, although additional clarifications and references to EU law could be added by the French legislator.

There is currently no stand-alone ‘ecocide’ offence under German law. The German Criminal Code however contains a separate section on environmental offences, such as water, soil and air pollution. 

According to German criminal statistics, environmental criminal law accounts for (only) half a percent of all criminal offences. Interpretation and application problems lead to a high number of terminations and a low number of convictions, which furthermore often lead to low penalties. 

The amendments to the existing legal framework required in order to implement the Directive may be expected to enhance environmental protection through criminal law.

While not called ‘ecocide’, Italian criminal law already provides for a comparable offence of “environmental disaster” (disastro ambientale) which targets conduct likely to cause irreversible damage to the environment, air and water. This offence, together with other environmental criminal offences, already existed in separate legislation and was incorporated in the Italian Criminal Code in 2015. The offence of environmental disaster may give rise to a prison sentence of up to 15 years for individuals and fines up to €1,2 million for legal entities. Other possible sanctions include confiscation of profits and professional bans (e.g. on conducting business activities or contracting with public administration) for a period up to two years.

On a different note, Italy also amended its Constitution in 2022 introducing the protection of the environment as a constitutionally safeguarded right. This is aimed to support environmental protection and facilitates decisions by courts to protect the environment.

There is no stand-alone ‘ecocide’ offence under Dutch law yet. On 30 November 2023, ahead of the Directive’s formal implementation phase, a member of Parliament submitted a bill to incorporate ‘ecocide’ in the Dutch Criminal Code. Under this bill, a person is guilty of ‘ecocide’ when it, briefly put, commits one or more offences similar to a ‘qualified offence’ under the Directive. Unlike the Directive, the proposed ‘ecocide’ offence targets conduct that causes either widespread, substantial, or long-lasting damages (i.e. not cumulative). 

It is however uncertain whether this bill will be picked up as there are indications that, instead, a new implementation process will be launched including a new bill based on the text and framework provided by the Directive.

There is no stand-alone ‘ecocide’ offence under Spanish law yet. On 27 July 2023, the Catalan Parliament initiated a procedure to include ‘ecocide’ in the Spanish Criminal Code. If approved by Catalan Parliament, the bill is to be proposed to the national Parliament of Spain which can enact it in the Criminal Code. Whether this bill will make it is however uncertain as Catalan enacting activities are laying low following the Catalan elections in May 2024. In the meantime, the Spanish government, from its side, may be preparing a new bill to implement the Directive.

The Spanish Criminal Code currently contains a separate chapter on offences against natural resources and the environment, namely for dumping, excavations, noise, pollution of air, water or soil, water catchment or some other activities. The penalties provided for these offences can be significantly increased if the conduct could seriously damage the balance of natural systems, or if a risk of serious harm to human health has been created. 

Outside the EU 

In Hong Kong and Mainland China, the concept of ‘ecocide’ has not been included in the existing laws or discussed in recent legislative initiatives. Both jurisdictions however have environmental protection laws and criminal offences related to the protection of environment. These offences are related to the traditional air/water pollution, illegal dumping of waste, illegal poaching of endangered animals, among others. In both jurisdictions these laws provide for several sanctions such as fines and imprisonment. While in Hong Kong the maximum fine for individuals and corporates committing these environmental offences could be up to HK$ 1 million (€ 1,182 million), in Mainland China the law does not provide an explicit range for the fines, and the courts would have discretion in light of the circumstances of each case.

There is currently no stand-alone offence of ‘ecocide’ in the UK. However, a proposal for such an offence was put before the House of Lords in late 2023. That bill is at a very early stage and the prospects of it becoming law are uncertain.  If passed, it would make it a crime for companies to commit “unlawful or wanton acts or omissions with a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts”. Similar provisions are also proposed for individuals, with specific provisions holding, i.a., directors, senior managers, partners and ‘leaders’ responsible for offences committed by more junior members of staff in certain circumstances. The second hearing of this bill is due to take place in the course of 2024.

Apart from this bill, there are several issue or habitat-specific environmental crimes in the UK, including waste and water pollution. For instance, the unauthorised or harmful disposal of waste is an offence, including i.a. treating, keeping or disposing of waste in way likely to cause harm to human health or environmental pollution. The offence can be committed by polluting any habitat and can be punished with an unlimited fine and / or a prison sentence. Regarding water pollution, causing or knowingly permitting the pollution of surface or ground water (unless exempt or in accordance with a permit) is punishable by an unlimited fine or a prison sentence and in 2017 one of the UK’s water companies was fined £20m under the predecessor to these regulations. There are also similar offences relating to the unlawful felling of trees and failing to recycle packaging waste in accordance with regulatory requirements.

‘Ecocide’ has not been codified as a criminal offence in the United States. However, it is possible that certain activities that constitute ‘ecocide’ in other countries may present enforcement risk under other environmental laws in the United States. 

Specific conduct adversely affecting the environment may be considered criminal conduct in the United States under a patchwork of federal, state, and local statutes, such as (under federal law) the unauthorized knowing or negligent discharge of hazardous substances into or onto U.S. waters, the unauthorized knowing or negligent release of certain air pollutants deemed “hazardous”, and the “taking” (e.g. killing, removing, etc.) of specially protected species, which may include certain activities that adversely impact the protected habitat of such species. Many U.S. States have similarly adopted laws regulating air, water, and other forms of pollution, which adds another layer of potential liability for individuals or legal entities who are found to have caused certain forms of environmental harm. 

Legal entities may be liable to fines and other penalties, and individuals (including corporate officers) can face prison time. The U.S. Department of Justice has a dedicated Environmental Crimes Section, whose mission is to enforce the nation’s civil and criminal environmental laws, including by pursuing criminal cases against individuals and corporations that have violated such laws. 

Currently, the UAE has not formally adopted ‘ecocide’ as a specific criminal offence. However, the UAE’s approach to environmental regulation includes strict penalties for non-compliance as well as active enforcement measures. Penalties for environmental offences under the Environmental Law include fines ranging from AED 5,000 (ca. €1,270) to AED 10 million (ca. €2,5 million) and/or imprisonment. Specific penalties include fines and imprisonment for pollution of drinking- or groundwater, with significant fines for companies polluting bodies of water with industrial waste. The regulatory regime also covers air pollution and waste management, imposing fines and requiring compensation for environmental damages.

With thanks to all our authors for their contributions.


corporate crime, global enforcement outlook 2024, ecocide, esg, climate change, sustainability