Environmental criminal law in the French legal framework

Sélim Brihi

Moncey Advocats, Paris

sbrihi@monceyavocats.com

Pauline Dufourq

Soulez Larivière Avocats, Paris

dp@soulezlariviere.com

Introduction

Current events around the world are a constant reminder to us all of the urgent need to prevent further environmental damage and halt climate change, and to consider a more efficient form of environmental justice. In this context, the tools of environmental criminal law must be reshaped to be more accessible, faster and deterrent.

Several laws have recently been passed in this area in order to further this cause. For example, the 24 December 2020 law regarding the European Public Prosecutor's Office, environmental justice and specialised criminal justice has laid the groundwork for a new form of environmental justice.[1]

This law has outlined new types of environmental offences, expanded the definition of existing environmental offences, adapted the judicial public interest agreement (convention judiciaire d'intérêt public – CJIP) mechanism to environmental offences and reconsidered judicial organisation by creating specialised jurisdictions in the fight against environmental offences.

More recently, France adopted the Climate and Resilience Bill.[2] This law is the result of a number of proposals made by the Citizens' Climate Convention to reduce greenhouse gas emissions. It also establishes new offences, such as the offence of endangering the environment, a general offence for polluting the environment, and the offence of ecocide for the most serious environmental crimes.

Recent steps in the fight against environmental damage

One of the main challenges in the fight against environmental damage is implementing an effective method of prosecution for environmental offences. The impact study on the draft law on the European Public Prosecutor's Office, environmental justice and specialised criminal justice showed that in the French legal landscape, environmental litigation represents just a small portion of all cases. Indeed, over the past ten years, just 0.5 per cent of the total cases handled by the European Public Prosecutor's Office involved environmental offences; 78.6 per cent of cases are dealt with by alternative prosecution procedures.[3]

The creation of new offences

The law of 22 August 2021 created general offences that aim to quash environmental violations. They cover endangerment of the environment, pollution of the environment (whether flora, fauna, air, soil or water quality) as well as ecocide for the most serious cases.

Today, if a party is found to have exposed the environment to risk of sustained degradation of fauna, flora or water by violating an obligation of safety or a duty of care, the offence is punishable by a prison sentence of up to three years and a fine of up to €250,000. It should be noted that these penalties can be applied if the behaviour is found to be dangerous, even if pollution is not found to have occurred.[4]

The general offence of pollution of the environment[5] is punishable with up to five years’ imprisonment. A party charged with this offence would be found to have deliberately violated a duty of care or safety provided for in the jurisdiction’s laws or regulations by directly or indirectly emitting into the air, or throwing, spilling or letting flow into surface, underground or sea water (within the limits of the territorial waters) one or more substances the action or reactions of which cause serious and lasting harmful effects on human health, flora or fauna or cause serious modifications of the normal water supply regime.

The above-mentioned acts constitute ecocide when they are committed intentionally. It should be noted that the most serious of these violations are punishable by a penalty of up to ten years’ imprisonment and a fine of €4.5m or up to ten times the profit garnered by the perpetrator of the damage.

The specialisation of jurisdictions

The law of 24 December 2020 created regional centres which are specialised in the environmental offences that come under the jurisdiction of each court of appeal, in order to ensure the investigation, prosecution and judgment of environmental and related offences.[6] The objective is to adapt to the methods and procedures of the different investigation services involved in administrative or judicial matters.

The creation of specialised jurisdictions also aims to:

‘encourage the presence at the hearing of representatives of the administrations and agents who have observed the infractions, who can remind the court of the context, of the regulations that have been disregarded and the elements that characterize the prevention, but also provide essential information for the pronouncement of appropriate complementary penalties and detailed restitution measures, and present an update on the evolution of the environmental damage and prospects for restoring the environment.’

Moreover, it should be noted that these specialised courts have concurrent jurisdiction throughout the jurisdiction of the Court of Appeal when the complexity of the case justifies it due to its technicality, the significance of the damage or the geographical area to which it extends. Specifically, local courts will be responsible for dealing with local disputes that are not serious or complex, whereas these new regional centres will be in charge of cases of a certain technicality, such as the Lubrizol case.[7]

The extension of the CJIP to environmental offences

Until the law of 24 December 2020, the only transactional tool available to quash environmental infringements was the environmental summary proceedings provided for in Article L 173-12 of the French Environmental Code.

This article provides that the administrative authority may settle the offences provided for and punished by the French Environmental Code, with the exception of offences punishable by more than two years’ imprisonment. However, this mechanism is limited to minor offences.

Building on the success of negotiated justice in anti-bribery law, the law of 24 December 2020 extended the mechanism of the judicial agreement of public interest (CJIP) to environmental offences.

Article 41-1-3 of the French Criminal Procedure Code provides that as long as the public prosecution has not been initiated, the Public Prosecutor may propose that a party accused of one or more offences provided for in the French Environmental Code, as well as related offences (but excluding crimes and offences against persons provided for in Book II of the French Criminal Code) enter into a public interest judicial agreement. This agreement imposes one or more of the following obligations on the party:

• pay a public interest fine to the Treasury;
• regulate its situation within the framework of a compliance programme;
• repair the ecological damage resulting from the offences committed; and
• make reparations to any victims when identified.

This transaction mechanism allows a more rapid criminal response by reducing the length of the investigation. It also provides improved supervision of restoration procedures, thanks to the implementation of compliance intended to guarantee effective reparation without having to wait for the outcome of the trial, which may take place several years after the events. This thus increases the deterrent effect of the sanctions imposed for environmental offences.

The CJIP does not require an admission of guilt by the party, but recognition of the facts. Its decision does not have the nature or the effects of a conviction and is not registered in the criminal record.

To date, four judicial public interest agreements have been concluded. Three have been issued by the judicial court of Puy en Velay. They concern the dumping of harmful substances into waterways.[8] The fourth was approved on 15 April 2022 by the Marseilles judicial court. It concerned the use by a vessel beyond the territorial sea of fuel with a sulfur content higher than the authorised standards, resulting in air pollution.

It's interesting to note that these CJIPs were concluded in the context of small-scale cases and demonstrate the value of this type of instrument in terms of speed of enforcement and ease of implementation. Several critics, though, have stated the risks of this type of mechanism, arguing that it leads to a risk of impunity because of the low fines imposed in environmental matters.[9]

However, the recent cases concern an environmental impact that is geographically limited and where the environmental damage is limited; they would almost certainly have been resolved through an alternative measure to prosecution, as the figures given in the above-mentioned impact study show.

In addition, media coverage of this type of case, particularly through publication on the Ministry of Justice website, contributes to the deterrent nature of the CJIP.

Finally, it should be remembered that the conclusion of a CJIP is not automatic and is only allowed once for the legal entity concerned.

Reflection on the perspectives of evolution in environmental criminal law

This fight against environmental damage must be multifaceted and involve the various actors in the chain, as well as the different competent authorities.

To reinforce and modernise the treatment of environmental offences, recommendations include:

1. Simplify the law

Today, environmental offences are common. About 2,000 offences have been recorded and can be found in several texts,[10] so much so that certain offences overlap in their constituent elements.  As Jean Philippe Rivaud argues: 'This law is very complicated and finds its source in more than fifteen codes. Only [ten per cent] of the 2,000 offences are prosecuted. In other words, [90 per cent] of the texts are useless.'[11] Since there are now general offences against the environment, it seems appropriate to implement a ‘clean up’ operation in order to do away with obsolete offences.

2. Strengthen support for companies

The idea is to assist and advise companies so that they are able to strengthen their existing prevention policy, similar to that which exists in the field of anti-corruption. Companies are key players in this change, but training, support and education must be available. This support, if necessary, could be provided for through the creation of a specialised agency in a similar vein to the French Anti-Corruption Agency.

3. Promote transactional justice

The recent CJIPs demonstrate the effectiveness of this instrument. If this mechanism is applied at the outset in cases of a certain size, practice shows the particularly flexible nature of this tool. It can be adapted to different kinds of cases in environmental law, particularly in cases with limited stakes.

In conclusion, the development of this type of transactional instrument should be generalised in order to accelerate the fight against environmental damage.