13 September 2017

Romania: Environmental Protection through Criminal Law – Excesses, Omissions and other Flaws

The issue of environmental crime has been addressed in international and European fora for many years. The most recent international event dedicated to environmental protection was the 5th EELF Annual Conference "Sustainable Management of Natural Resources – Legal Instruments and Approaches" held from 30 August to 1 September 2017 at the University of Copenhagen.

Building on this global interest issue, the European Parliament and the Council adopted Environmental Crime Directive 2008/99/EC("ECD"), aiming to ensure the protection of the environment through criminal law.

Apparently, Romania has efficiently transposed the ECD. In practice, the Romanian approach is far from being genuinely concerned about environmental protection. 

There are some vulnerable aspects of Romanian Act No. 101/2011, on the prevention and criminal sanctioning of environmental offences ("Act 101"), which the ECD has transposed. Unfortunately, the transposition is far from perfect, ie many articles of the ECD have been either incorrectly or incompletely transposed; namely:

  • Article 3 (a) – (f) of the ECD (on offences) has its counterpart in Article 8 (2) of Act 101. For breaches of environmental law, Article 8 (2) provides the penalty of imprisonment for a term of one to five years. The same sanction, with exactly the same latitudes, is also set out by other criminal provisions, which thus overlap and conflict, leading to confusion and inconsistent interpretation. Basically, there is an excess of laws in the field of environmental protection, but no effective protection.
    For instance, Article 92 of Water Act No. 107/1996 regulates a similar offence, with identical penalty limits. Another comparable offence is already set out by Article 98 (4) of the Government's Emergency Ordinance ("GEO") No. 195/2005 on the Protection of the Environment, which is the framework act in the area of environmental protection. 
  • Article 5 of the ECD (on penalties) was incorrectly transposed by its national counterpart, Article 4 of Act 101. The system of values has been reversed. This means that the sanctions for actual damage to human health and the environment are less severe than the sanctions for abstract endangerment offences (ie those merely creating a state of danger). For instance, pursuant to Article 4, the breach of provisions on import-export of waste are punishable by imprisonment of two to seven years, while according to Article 8, serious environmental breaches, which may lead to actual damage to life and health, are punishable by imprisonment of one to five years.

    These inadvertencies demonstrate that national provisions infringe the principle of dissuasive sanctions, and especially that of proportionate penalties.

    In the same sense, the offence of water poisoning, regulated by Article 356 of the Romanian Criminal Code ("RCC"), provides reduced limits of imprisonment (six months to three years) and an added benefit, ie the alternative fine penalty.

    In fact, in the larger frame of environmental protection laws, the RCC is the only act which sets out the alternative fine penalty for crimes against the environment. 
  • Articles 6–7 of the ECD (on liability of legal entities / penalties for legal entities) were not transposed at all. There are at least two reasons for this omission: on the one hand, Act 101 has several addendums containing provisions that provide such corporate liability and thus fill the legal gap; on the other hand, the Romanian criminal justice system had already acknowledged the liability of legal entities before the ECD came into force, and therefore no transposing measures were necessary (the RCC provided for such liability as early as 2006).
  • Prior to the enactment of Act 101, the ECtHR condemned Romania for the authorities' failure to take appropriate steps to avoid and remedy environmental pollution (see Tătar vs Romania, 27 January 2009, and Băcilă vs Romania, 30 March 2010), concluding in a violation of Article 8 of the European Convention.

    Additionally, the European Commission initiated several infringement proceedings against Romania due to its failure to transpose the EU environmental protection legislation on time (see especially ECJ case C-104/15).

These are but a few of the transposition inconsistencies that need to be outlined in order to draw the national legislator's attention to the urgent need for appropriate provisions when it comes to environmental protection through criminal law.

Criminal law should be above all clear, accessible and predictable.

Obviously Act 101 does not display these features and thus fails to comply with the relevant EU legislation standards. Environmental protection has long been an afterthought on the Romanian authorities' agenda. It's high time it became a priority.   


Senior Attorney at Law