Combatting waste crime

In practice, fines are by far the most commonly used sanction for environmental offences and it is sporadic for prison sentences to be issued. The level of sanctions for specific crimes differs significantly among the Member States. Consequently, in a situation in which there are different regulatory frameworks, criminals are likely to operate under the jurisdiction of the one that has the least stringent rules and sanctions.

Nevertheless, the Member States are under a general obligation to take all measures necessary to ensure that EU law is applied and enforced effectively and that its effet utile is achieved. They have to ensure that infringements of EU law are penalised under conditions, both procedural and substantive, which are analogous to those applicable to violations of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive (see opinion of GA in C-304/02 Commission v France).

This general requirement is further specified in the secondary EU law including the Environmental Crime Directive which requires certain offences to be punishable by effective, proportionate and dissuasive criminal sanctions. The directive does not stipulate types or levels of penalties. The Member States are provided with the degree of flexibility regarding determining the quantity and quality of sanctions. Moreover, a plethora of EU environmental directives require the Member States to establish 1) effective system of sanctions, or 2) effective system of sanctions with particular sanctions and measures such as withdrawal of permit, or actions to ensure that compliance is restored within the shortest possible time. Once again, the sanctions have to be effective, proportionate and dissuasive.

How should the requirement that sanctions be effective, proportionate and dissuasive be interpreted? According to the study conducted in 2011 for the application of the Industrial Emissions Directive (Milieu Ltd. Provisions on penalties related to legislation on industrial installations), efficiency of the sanction is linked to the ability to achieve the Union's regulatory target, proportionality requires taking into account the seriousness of the negotiations and assessing the level of sanction sufficient to achieve the desired objectives. Deterrent sanctions should encourage the perpetrator not to repeat his actions and discourage other persons from doing so. In practice, all these criteria overlap largely, since the penalties must be proportionate to the gravity of the infringements they penalise, in particular by ensuring a substantial deterrent effect, while respecting the general principle of proportionality. A non-dissuasive sanction can generally not be effective either. For example, see C-494/01 Commission v Ireland, para 106:

In most cases, the CJEU does not go into the assessment of a specific sanction and either merely states what the sanction is under national law or refers the evaluation of proportionality to the national courts (see C-535/15 Pinckernelle). However, it provides the national courts with particular guidelines as to the aspects of the unlawful behaviour that should be taken into account in determining the amount of the fine.

For example, in C-487/14 (Total Waste Recycling), the CJEU assessed the proportionality of the fine imposed by the Inspectorate for breach of waste shipment legislation. The fine was imposed on a transport company, which used a different border crossing point than agreed by the competent authorities. The fine was equal to a penalty imposed in the complete absence of the transportation permit. According to the CJEU, the national court should assess whether the amount of the sanction reflects, in particular, the risks of harm which may be caused by specific conduct in the field of the environment and human health. The amount of the sanction should not go beyond what is necessary in order to achieve the objectives of ensuring a high level of protection of the environment and human health, taking into account all the factual and legal circumstances of the case (see also a similar case C-69/15, Nutrivet: