Provisions on Penalties Related to Legislation on Industrial Installations

Provisions on penalties related to legislation on industrial installations

Document on Good Practices

October 2011

Project Management This report has been prepared by Milieu Ltd for the European Commission, DG Environment under Study Contract DG ENV № 070307/2010/569468/SER/C3.

The views expressed herein are those of the consultants alone and do not necessarily represent the official views of the European Commission.

Milieu Ltd. (Belgium), 15 rue Blanche, B-1050 Brussels, tel: +32 2 506 1000; fax: +32 2 514 3603; e-mail: [email protected]; web address: www.milieu.be

Project Manager: Claire Dupont Deputy Project Manager: Nathy Rass‐Masson Project Management support was provided by: Bernhard Borsche, Katalin Császár, Gavin McBride and Florent Pelsy

Milieu Ltd. (Belgium), 15 rue Blanche, B‐1050, Brussels, tel 32 2 506 1000; fax 32 2 514 3603 ; e‐mail: [email protected] ; web address: www.milieu.be

Country experts

Denmark – Helle Husum France – Florent Pelsy Germany – Bernhard Borsche Hungary – Katalin Császár Netherlands – Wybe Douma Spain –Florent Pelsy United Kingdom – Gavin McBride

Table of Content

1. The different legal and institutional frameworks ...... 14

1.1. Overall legal framework...... 14 1.2. Competent Authorities...... 15

2. Effectiveness, proportionality and dissuasiveness ...... 16

3. The sanctioning system...... 19

3.1. The nature of the sanctions...... 19

3.1.1. Administrative versus criminal sanctions...... 19 3.1.2. Criteria for starting a criminal procedure ...... 22 3.1.3. Synergies between administrative and criminal sanctions ...... 24

3.2. The range of sanctions...... 26

3.2.1. Fines and imprisonment ...... 26 3.2.2. Other measures and/or sanctions...... 35

3.3. Criteria used to determine the severity of the sanctions...... 40

3.4. The importance of publicity ...... 44

4. Enforcement and sanctioning procedure...... 46

4.1. The inspection...... 46

4.1.1. Frequency of inspections...... 46 4.1.2. Rights and obligations of the inspectors...... 47

4.2. The national judicial systems ...... 49

4.2.1. The different actors of the procedure ...... 49 4.2.2. The criminal proceedings...... 51 4.2.3. Public Access to Justice...... 52

5. Existence of guidance...... 55

Tables

Table 1: Key enforceable provisions of the IPPC Directive ...... 11 Table 2: Key obligations and relevant provisions of the IPPC Directive...... 12 Table 3: Overview of key characteristics of the selected Member States ...... 14 Table 4: Competent Authorities in the seven selected Member States ...... 15 Table 5: Administrative penalties...... 27 Table 6: Overview of administrative (quasi) criminal and criminal sanctions...... 28 Table 7: Overview of maximum sanctions...... 33 Table 8: Overview of administrative measures and sanctions other than fines...... 36

Table 9: Rights and obligations of inspectors ...... 48

Figures

Figure 1 Inspection and enforcement strategy of the province of Overijssel...... 22

Annex I - Detailed review of sanctions and procedures applicable to breaches of the legislation on industrial emissions in seven selected countries

Abbreviations

BAT Best Available Technique CA Competent Authority DEFRA Department for Environment, Food and Rural Affairs DKK Danish Krone EC European Community ECHR European Court of Human Rights ELV Emission Limit Value EPR Environmental Permitting Regulations EU European Union EUFJE European Union Forum of Judges for the Environment IMPEL Implementation and Enforcement of Environmental Law IPPC Integrated Pollution Prevention and Control LBRO Local Better Regulation Office Ltd. Limited Company Opra Operational Risk Appraisal ORO Offence Response Options Plc. Public Limited Company UK United Kingdom

Document on Good Practices

Introduction

This document is primarily informative. It aims at presenting the enforcement procedures and sanctions in place in Member States for infringement of legislation on industrial emissions, with a focus on legislation transposing the Directive 2008/1/EC concerning integrated pollution prevention and control (the IPPC Directive),1 and to identify “good practices” in this field. Good practices are to be understood as examples of successful approaches to enforcement. This relates in particular to the different elements of the sanctioning system, both in terms of enforcement procedure and sanctions. Throughout the document, the term “sanction” is used as covering financial and imprisonment penalties but also other measures such as confiscation, closure of an installation used for enforcement purposes. The objective is to support the Member States in implementing their legislation on industrial emissions and in elaborating their own sanctioning strategies. The document also clarifies how Member States interpret the notions of dissuasiveness, proportionality and effectiveness.

In order to ensure operators of the installations covered by this Directive comply with the EU requirements, it is crucial that the national transposing legislation provides adequate enforcement mechanisms, including penalties that are effective, proportionate and dissuasive. The requirement for Member States to determine penalties is explicitly stated in most of the directives related to industrial emission.2 Although the IPPC Directive does not contain such an explicit provision, Article 14 requires “Member States to take the necessary measures to ensure that the conditions of the permit are complied with by the operator when operating the installations”. Article 79 of the new Directive 2010/75/EC on industrial emissions place on Member States an obligation “to determine penalties applicable to infringements of the national provisions adopted pursuant to this Directive”. It also prescribes that “the penalties thus provided for shall be effective, proportionate and dissuasive”.

The Court of Justice of the European Union has held that although the Treaty leaves Member States to choose the ways and means of ensuring that a directive is implemented, that freedom does not affect the obligation imposed on all Member States to which the directive is addressed, to adopt, in their national legal systems, all the measures necessary to ensure that the directive is fully effective, in accordance with the objective which it pursues.

Furthermore, according to the established case-law of the Court of Justice of the European Union relating to Article 10 EC Treaty, now Article 4(3) of the Treaty on the European Union,3 whilst the choice of penalties remains within their discretion, Member States must ensure in particular that infringements of EU law are penalised under conditions, both procedural and substantive, which are

1 Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (Codified version). Official Journal L 024, 29/01/2008 P. 0008 – 0029. 2 These are:  Council Directive 1999/13/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, Official Journal L 85, 29.3.1999.p.1.  Directive 2001/80/EC of the European Parliament and of the Council of 23 October 2001 on the limitation of emissions of certain pollutants into the air from large combustion plants. Official Journal L 309, 27/11/2001 P. 0001 – 0021.  Directive 2000/76/EC of the European Parliament and of the Council of 4 December 2000 on the incineration of waste. Official Journal L 332 , 28/12/2000 P. 0091 – 0111. 3 Article 4(3), second indent, of the Treaty on the European Union reads ‘The Member States shall take any appropriate measure, general or particular, to ensure fulfillment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union’.

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analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive.

Penalties are essential tools in the effective enforcement and implementation of EU environmental legislation. The adoption of penalties as an enforcement mechanism for ensuring that this legislation is complied with falls under the competence of the Member States. While all Member States provide for sanctions, generally both administrative and criminal, or, in some cases administrative or criminal, the way in which these are applied varies significantly between Member States, both in terms of the type and range of enforcement mechanism used. In addition, as there is no mandatory level of “minimum” or “maximum” fine to be imposed for non-compliance with a particular legislative provision, there will inevitably be variations between Member States in the different penalties provided for breaches of the legislation transposing the IPPC Directive.

Finally, the enforcement system should be seen as a whole, especially when assessing the effectiveness of sanctions. Factors such as the length of the procedure, interaction between the different competent organisations (inspections, competent authorities, prosecution, judges), should also be considered.

In order to respond to the practical implementation and enforcement challenges posed by the IPPC Directive, a Member State must have in place an effective administrative system and sufficient qualified staff able to:

 Provide information to industrial installations concerning their pollution control obligations and responsibilities  Carry out permitting of industrial installations (process applications, determine whether suggested industrial pollution control measures are BAT for the particular industrial installation, set permit conditions, ensure public participation)  Regularly monitor and inspect the industrial installations to see if they are operating in accordance with their permit conditions  Notify operators of non-compliant industrial facilities of the measures that need to be taken to come into compliance  Bring enforcement actions when operators do not have permits or fail to comply with the conditions in the permit

Carrying out the above tasks can be quite demanding for an environmental administration, and considerable variations among the Member States in terms of the sophistication and effectiveness of their implementation and enforcement regimes have been identified. The present document focuses on the three last tasks as these are directly relevant in terms of efficiency of the enforcement system in general.

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Methodology

The document is the result of a study, which included two main stages. During the first stage, the study focused on overviews of the relevant legislation and procedures for infringement of key enforceable obligations set by of the four Directives regulating emissions from industrial installations, that is in addition to the IPPC Directive, directives relating to large combustion plants, emissions of volatile organic compounds due the use of organic solvent in certain activities and installations and incineration of waste. It covered all the Member States. Some of the conclusions of this comparative overview have been reflected in the present document.

For the second stage of the study, seven Member States were then selected for the purposes of carrying out more detailed reviews of the sanctions and enforcement measures applicable for non-compliance with the IPPC Directive. These particular Member States were chosen to provide a good cross-section view of how penalties are being implemented in practice across all Member States, to ensure a comprehensive geographical coverage of the EU, to obtain a representative sample of the different major legal systems (common law, continental law, administrative (quasi)criminal system), a mixture of founding members and new Member States. The seven Member States are Denmark, France, Germany, Hungary, the Netherlands, Spain and the United Kingdom (with a focus on England and Wales).

Each country study was also supplemented by case studies and interviews with relevant authorities. These case studies were used to illustrate how each country’s system operates in practice as well as to determine the extent to which the sanctions imposed for non-compliance were deemed to be effective, proportionate and dissuasive. The detailed country studies are available as separate documents.

A workshop on “provisions on penalties related to legislation on industrial emissions” was held in June 2011 at the Commission premises, with a view to present the preliminary results of the study and discuss the legislation and practice in the Member States. A draft Document on Good Practices, taking into account the results of the discussion held during the workshop, as well as the detailed analysis for Denmark, France, Germany, Hungary, Spain, the Netherlands and UK have been submitted to the members of the Industrial Emission Directive Committee for consultation. The present document also integrates these comments.

The study has shown that, in general, there is a lack of quantitative data. In most Member States, while general statistical information is available on enforcement e.g. data on number of inspectors, number of formal notices, these are not as a rule broken down per type of installations. As a result, in many instances, it is not possible to obtain detailed figures specific to IPPC installations, although such data may be available at the regional level.

The IPPC Directive – main enforceable provisions

The IPPC Directive (2008/1/EC) provides the framework for the other legislation on industrial emissions control. Its objective is to achieve integrated prevention and control of pollution from a wide range of industrial activities covered in Annex I to the Directive. The IPPC Directive applies to around 52,000 industrial installations in the European Union. It covers a wide range of industrial installations such as energy industries, production and processing of metals, mineral industries, chemical industries, and waste management installations.

Under the IPPC Directive, no new industrial and agricultural activities with a high pollution potential listed in Annex I of this directive shall be operated without an environmental permit from the authorities in the respective Member State. The permits are to include measures ensuring that certain

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environmental conditions are met (e.g. preventive measures are taken against pollution, no significant pollution is caused, and waste production is avoided).

Only the provisions of the IPPC Directive, which place an obligation on the operator are relevant, as they are enforceable and, as such, their infringement should be identified as an offence and corresponding penalties should be set by the transposing national legislation.

Table 1 below presents the key enforceable provisions of the IPPC Directive which provided the focus for the detailed studies.

Table 1: Key enforceable provisions of the IPPC Directive

Article Key enforceable provisions Article 4 No new installation shall be operated without a permit in accordance with the Directive Article 5 Existing installations shall have permits in accordance with the Directive by 30 October 2007 Article 6 Applications for permits shall contain specific information listed in Article 6 (description of the installation and its activities, the raw and auxiliary materials, other substances and the energy used in or generated by the installation…) Article 9 Permits shall include emission limit values for polluting substances based on BAT & other appropriate requirements ensuring protection of soil and groundwater, waste management, etc. Article 12(1) Operators shall inform the competent authorities of any planned change in the operation. Article 12(2) Operators shall request a permit when they are planning substantial changes in their installation Article 14(a) Operators shall comply with the conditions of a permit when operating the installation Article 14(b) Operators shall regularly inform the competent authority of the results of monitoring of releases Article 14(c) Operators shall afford the competent authority all necessary assistance with inspections

The number of relevant obligations is quite large. In order to streamline the analysis and provide a clear and simple comparative framework, all relevant provisions have been grouped under four key obligations to focus the comparison across countries. The following table describes the four key obligations and how each of these link to the relevant provisions of the IPPC.

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Table 2: Key obligations and relevant provisions of the IPPC Directive

Key obligation Relevant provisions in IPPC Directive Obligation 1: to apply for a permit Article 4, Article 5, Article 12(2) for existing and new installations Obligation 2: to supply information Article 6 for application for permits Obligation 3: to notify the competent Article 12(1), Article 14(b)* authority of any changes in the * For the part setting a requirement to notify the CA in case of operation of an installation incident or accident significantly affecting the environment Obligation 4: to comply with the Article 14(a)-(c) conditions set in the permit or mandatory ELVs

The document structure

The first section of this document briefly presents the overall legal and institutional framework of the selected Member States. In section two, the document introduces and comments upon the notions of effectiveness, proportionality and dissuasiveness of penalties. Section three of the document focuses on sanctions, as they are set in legislation and applied in practice, while section four provides the key elements of the different procedures, which may influence the level of penalties. This section also considers the aspects linked to inspections and to judicial procedures. The last section of the document provides a list of guidelines and guidance documents that the selected Member States have developed to support the different actors of the sanctioning procedures.

The document also contains examples drawn from the country detailed studies and case studies, which present key elements and good practices that ensure effective, proportionate and dissuasive penalties and efficient enforcement systems. These key elements and good practices are structured around the following themes:

1. How the different factors governing the setting of sanctions can concur to the setting of effective, proportionate and dissuasive penalties, presenting in turn:

 The nature of the sanctions, administrative, administrative (quasi)criminal and criminal, the comparative advantages of these different types of sanctions, along with criteria used to start a criminal procedure and the potential synergies between administrative and criminal sanctions  The range of sanctions available to the enforcement bodies, in terms first of penalties stricto sensus i.e. fines and imprisonment, but also the arsenal of other remedial measures and/or sanctions, which can be a powerful tool for enforcement.  The aggravating or mitigating criteria used when selecting an enforcement measure/sanction or setting a penalty.  The importance of publicity

2. What are the most important features which strengthen the enforcement and sanctioning procedure at the inspection stage and during criminal proceedings, paying particular attention to the need for specialisation of and cooperation between the

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different actors of the enforcement system, as well as the main conditions to ensure proper public access to justice.

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1. The different legal and institutional frameworks

Member States overall legal and institutional frameworks are characterised by a great variety. Similarly, the institutional structure, and in the present case, the authorities competent for the implementation and control over industrial installations, differ significantly from one Member State to another. This section gives an overview of the different legal and institutional frameworks of the seven Member States studied in detail.

1.1. Overall legal framework

One of the selection criteria of the seven Member States considered in this document was to have a good overview of the different types of national legal frameworks and institutional structure, combined with geographical and historical criteria. Table 3 below presents the main differences in terms of:

 overall legal and institutional framework: continental versus common law system with two examples of administrative (quasi)criminal law system, federal versus unitary state, with some countries having extensive devolution of powers to their regions,  geographical criteria: mix of founding, old and new Member States as well as geographical spread across Europe

Table 3: Overview of key characteristics of the selected Member States

Legal framework Geographical, etc. France  Continental legal system  Founding Member State  Republic  Western Europe  Unitary State Hungary  Continental legal system, with  Joined EU in 2004 quasi-criminal sanctions  ‘New’ MS  Republic  Central and Eastern Europe  Unitary State Germany  Continental legal system with  Founding Member State administrative (quasi) criminal law  Western Europe system  Federal Republic Netherlands  Continental legal system  Founding Member State  Constitutional Monarchy  Western Europe  Unitary State Spain  Continental legal system  Joined EU in 1986  Constitutional Monarchy  ‘Old’ MS  Unitary State, highly decentralised  Southern Europe Denmark  Continental legal system  Joined EU in 1973  Constitutional Monarchy  ‘Old’ MS  Unitary State  Northern Europe UK  Common law system  Joined EU in 1973  Monarchic Republic  ‘Old’ MS  Unitary State, highly decentralised  Western Europe

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1.2. Competent Authorities

In most of the EU Member States, regulatory and enforcement competences are divided between a number of different “competent authorities”. In several Member States, including Austria, Germany, Belgium and Bulgaria, this involves the division of regulatory functions between authorities at the national/federal level and at regional/state levels. In other countries, such as Denmark and Hungary, the regional authorities exercise the major control functions over industrial installations. In the Czech Republic, the Netherlands, UK and Ireland, regulatory functions are also carried out at the municipal/local authority level.

Table 4: Competent Authorities in the seven selected Member States

Country Competent Authorities France  Departmental préfets (government representatives in districts) Hungary  National and regional level: Ministry of Rural Development and Inspectorate for Environment, Nature and Water (10 regions) Germany  Länder level Netherlands  Multiplicity of CAs, at central and provincial levels but mainly provinces Spain  Autonomous communities Denmark  Municipalities, decentralised units of the Environmental Protection Agencies for larger and/or most polluting installations and state regional authorities for polluted soils UK  the Environment Agency in England and the Environment Agency Wales in Wales

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2. Effectiveness, proportionality and dissuasiveness

The criteria of effectiveness, proportionality and dissuasiveness are still vague notions. They are not defined by EU legislation and the case law of the Court of Justice of the European Union is rather limited on this topic. The “founding” case is the Greek Maize Case4 where the Court ruled that while the choice of penalties remains within their discretion, Member States must ensure that infringements are penalised under conditions, both procedural and substantive, which, in any case, make the penalty effective, proportionate and dissuasive.

With regard to the principle of proportionality, the Court has consistently held that, in order to establish whether a provision of EU law complies with the principle of proportionality, it must be ascertained whether the means which it employs are suitable for the purpose of achieving the desired objective and whether they do not go beyond what is necessary to achieve it.5

In another case, the Court specified the notion of dissuasiveness looking specifically at the procedural aspects rather than the penalty itself.6 The Court recalled that a limited number of sanctioning procedures have been initiated, some of them more than a year after the date of control. It also highlighted that some of the infringement procedures were subject to an administrative decision more than two years after this date. The Court considered the time elapsed between the date of control and the initiating of the sanctioning procedure as well as between the date of control and the date at which an administrative decision has been taken. Considering the dissuasive nature of the sanctions, the Court specifically looked at the number of fines which were actually paid. The absence of payment in several cases was due to the fact that no constraint measure was taken. In other instances, the procedure has been suspended by appeal procedure. On these grounds, the Court ruled that Spain failed to impose penalties which have a deterrent effect on those responsible for infringing EU law provisions.

Based on literature and case law, the three criteria can be defined as follows.

Effectiveness: penalties are capable of ensuring compliance with EU law and achieving the desired objective

Proportionality: penalties adequately reflect the gravity of the violation and do not go beyond what is necessary to achieve the desired objective

Dissuasiveness: penalties have a deterrent effect on the offender which should be prevented from repeating the offence and on the other potential offenders to commit the said offence.

However, these definitions raise some challenges. Firstly, these criteria are closely inter-linked in the sense that, for example, a sanction can be seen as effective if it is proportionate and dissuasive. The criteria set by the Court of Justice of the European Union as regard the dissuasiveness of the penalties could also be equally seen as ensuring effectiveness. Besides, the interpretation of the Court focuses on proportionality in the context of immediate sanctions. According to the Court case-law, the necessity element of the sanction needs to be assessed while also deciding on the proportionality of

4 Case C-68/88 Greek Maize Case 5Case C-94/05 Emsland-Stärke; Case C-426/93 Germany v Council; and Case C-26/00 Netherlands v Commission. 6 Case C-189/07 Commission v Kingdom of Spain

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immediate sanctions. When it comes to punitive sanctions, the link between necessity and proportionality is not clear. In other words, the punitive element of the sanction, which demonstrates the social disapproval, may lead to a more stringent sanction than what the sanction would be only based on the proportionality criteria. Effectiveness can be differentiated from dissuasiveness in the sense that the effectiveness of sanctions relates primarily to the short-term i.e. to meet the objectives of the legislation and ensure compliance with regard to the current behaviour of the operator (restoration of harm), whereas dissuasiveness criteria relates to the future (prevention of future harm).

Secondly, the application of the criteria should be guided by the specific circumstances of individual cases and be seen as part of a broader context. Typically, many cases of infringement are solved without imposition of penalties as such, but up-front in the procedure, through discussion and negotiation between the operator and the inspector and/or administrative authority. Each case is unique and a key principle is to take into account the particularities of individual cases e.g. the ability of the offender to pay. Looking at the broader context is important as, for example, lengthy and costly litigations could be more dissuasive for companies than the specific sanctions imposed. The risk to be detected and the likelihood that prosecution will take place are very much a question of capacity and are important to ensure dissuasiveness. In other words, the question of the effectiveness, proportionality and dissuasiveness of penalties should be considered together with the assessment of the national enforcement systems.

Thirdly, there is a lack of empirical and evidential analysis of the penalties as applied in practice. For example, dissuasiveness is hard to measure. The fines imposed in cases related to air emissions are often far below those usually set in the field of competition law, making often difficult to judge the effective, proportionate and dissuasive character of the sanctions imposed.

These challenges are further complicated by the significant differences between the national legal and institutional frameworks and practices, as well as in the economic situation of each of the 27 Member State. These differences across Member States explain that it is not feasible to define common ideal solutions, which could apply to all. This is why this document presents examples of good practices, both substantive and procedural features of the national sanctioning systems as they are implemented in practice, in order to support the Member States in their responsibilities to ensure enforcement of the EU requirements on industrial emissions. However, the specificities of each Member State should be always taken into account, and the document does not pretend to set best practices that could be implemented directly in any Member State.

Keeping this consideration in mind, as per the following box, some elements can be linked to each of the three criteria applicable to penalties, although it should be noted that some of them could relate to more than one criterion.

Proportionate

 Proportionality of the sanction to the seriousness of the offence  Proportionality of the sanction to the damage caused and/or the illegal revenues obtained  Consideration of the circumstances of particular situation e.g. the size of the installation

Effective

 Ensuring that the objective set by the law is achieved  Ensuring that the procedure is not overly long and costly

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 Existence of coercive measures, possibility to proceed with remediation measures immediately at the operator’s expenses  Range and type of measures available, possibility to combine different measures (administrative measures and sanctions)  Ensuring cooperation between different actors of the sanctioning procedure and their specialisation

Dissuasive

 Penalties sufficiently severe to punish the offenders and ensure a deterrent effect  Higher penalties in case of recidivism, aggravating circumstances  Importance of publicity to enhance the deterrent effect of the penalty

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3. The sanctioning system

This part focuses on sanctions, as they are set in legislation and applied in practice.

3.1. The nature of the sanctions

The description of the nature of sanctions applicable to infringement of legislation on industrial emissions involves looking at the branch of law under which the sanctions are set, administrative or criminal, and how the two systems interact.

3.1.1. Administrative versus criminal sanctions

With regard to the imposition of administrative or criminal penalties, previous studies7 indicated that while in some countries, administrative sanctions are considered to have the same repressive and preventive character as criminal ones, in certain regimes there is a substantial distinction between administrative and criminal sanctions. For the latter, there is no social blame in the administrative sanction; rather, the only intention is to re-establish the public order. The body imposing the sanction and the proceedings to impose the sanction in many countries will be a clear tool to differentiate between both types of measures. In most cases, an 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 usually 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.

Not all EU Member States have specific provisions for both administrative and criminal sanctions relating to industrial installations. Unlike the continental legal systems which exist in most EU countries, several common law countries, or countries with a common law influence, including Ireland, Cyprus and Malta have no administrative sanctions in place for offences.

However, the introduction of administrative sanctions in the UK suggests that these are an efficient instrument for enforcement. Until recently, the UK had no specific provision for administrative sanctions. However, new legislation was introduced in 2010 allowing administrative sanctions to be applied to a limited number of environmental offences.8 These sanctions are known as “civil sanctions” and can be used against a business committing certain environmental offences, as an alternative to prosecution and criminal penalties of fines and imprisonment. However, civil sanctions do not currently extend to those breaches of legislation in respect of industrial installations. It is expected that these sanctioning powers should be extended to industrial installations in the near future.

As explained below, the reviews carried out prior to the adoption of the new legislation concluded that administrative penalties are an effective way of ensuring regulatory compliance whilst reserving criminal prosecutions for the most serious of cases of regulatory non-compliance.

7 See for instance Study on measures other than criminal ones in cases where environmental Community law has not been respected in the EU Member States, Milieu, 2003 http://ec.europa.eu/environment/legal/crime/pdf/ms_summary_report.pdf 8 The Environmental Civil Sanctions (England) Order 2010 and the Environmental Sanctions (Miscellaneous Amendments) (England) Regulations 2010

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The role of administrative sanctions alongside criminal ones

In 2005, a report by Sir Philip Hampton set out principles for better regulation.9 The report concluded that sanctions were not a deterrent to serious non-compliance and proposed a review of penalty regimes, which was subsequently carried out by Professor Richard Macrory in 2006. The resulting report, “Regulatory Justice: Making Sanctions Effective” concluded that the existing system was too heavily reliant on criminal prosecutions which were not always a proportionate response to the seriousness of the offence, stating:

Criminal prosecutions remain the primary formal sanction available to most regulators. While this sanction is appropriate in many cases, the time, expense, moral condemnation and criminal record involved may not be appropriate for all breaches of regulatory obligations and is burdensome to both the regulator and business. While the most serious offences merit criminal prosecution, it may not be an appropriate route in achieving a change in behavior and improving outcomes for a large number of businesses where the non-compliance is not truly criminal in its intention.

The report recommended a broad “toolkit” of civil sanctions for regulators to promote and enforce regulatory compliance. Among its recommendations included the extension of flexible administrative monetary sanctions and the strengthening of statutory notices to work alongside the criminal law in combating non-compliance. It was believed that such regulatory sanctions would provide a more flexible and proportionate approach to non-compliance and help to resolve many cases more quickly and effectively.

In some countries, there is no specific criminal sanction for the particular offences covered by the study (see introduction). However, in most of these cases, general criminal sanctions are provided for by a criminal code or framework environmental law and as a rule, would apply. In such instances, the sanction is often conditional upon the existence of damage to the environment (Czech Republic, Latvia, Lithuania, Slovenia and Spain). Where specific criminal sanctions are set for particular offences, general criminal sanctions as described above also apply.

In Germany and Hungary, administrative (quasi)criminal sanctions operate along administrative and criminal ones. In both countries, these give the possibility to impose financial penalties on offenders through a more simple procedure than the criminal one. They bear a punitive function.

Hungary sets quasi-criminal sanctions in addition to administrative and criminal sanctions. Such sanctions are generally applicable to less serious offences (i.e. petty offences). The main objective is to ensure a quicker punishment of offences which are considered as less harmful than those covered by the criminal code. Administrative (quasi) criminal sanctions carry similar penalties to criminal sanctions i.e. fines or imprisonment. However, they are less stringent in nature and involve a simplified procedure. At first instance they are handled by the administrative authorities rather than by the judicial system. In Hungary, only natural persons may be subject to such proceedings.

In Germany, administrative (quasi) criminal sanctions are used instead of administrative sanctions. Such administrative (quasi) criminal sanctions are known as “administrative criminal” and are established as an alternative method of enforcement, sitting alongside criminal sanctions and

9 Philip Hampton, “Reducing administrative burdens: effective inspection and enforcement”. This document sets out the Hampton principles of effective inspection and enforcement

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administrative enforcement measures. The use of such sanctions is conditional upon the offender’s negligence or intent. The aim of such sanctions is not to restore legality or to prevent danger but to have a punitive, deterrent and preventive effect by imposing convictions on the offender for a wrongdoing.

The benefits and disadvantages of imposing administrative, administrative (quasi) criminal and/or criminal sanctions can be summarised as follows.

Administrative Administrative (quasi) Criminal sanctions sanctions criminal sanctions Advantages  Communication with  Simplified and quicker  Strong tool with which to the perpetrator (e.g. a procedures compared punish (dissuasive warning letter could be to criminal procedures sanction), enough to force the  Tool with which to  Allows the victim to be operator to comply with punish (dissuasive compensated, its legal obligations) sanction)  Public procedures  Fines can be even (shaming effect), higher than through  Significant powers of criminal proceedings prosecutor and the investigating bodies  Guarantee of impartiality Disadvantages  Lack of publicity  Lack of publicity  Lengthy procedures  Sometimes too much  In some countries,  Resource consuming room for bargaining legal persons are not subject to quasi- criminal liability

The choice between an administrative or a criminal sanction also depends on the objective of the sanction. For example, under the England and Wales Environment Agency outcomes-focused enforcement policy, criminal sanctions are more geared towards dissuasive effect. The outcomes of the Agency’s enforcement policy are:

(1) stopping the illegal activity, (2) bringing the offender under regulatory control, (3) restoring and remediating the environmental damage, and, (4) punishing and/or deterring future offending.

While outcomes (1)–(3) are enforced by administrative mechanisms, type (4) outcomes are enforced via administrative (quasi) criminal and/or criminal sanctions.

Finally, the inspection and enforcement strategy of the Province of Overijssel in the Netherlands gives a good example of the criteria and considerations upon which to impose administrative measures and sanctions or criminal ones, and this throughout the different stages of the enforcement procedure.

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Figure 1 Inspection and enforcement strategy of the province of Overijssel10

After 1st visit Infringement  Report or warning with term for reparation After 2nd visit Yes  Administrative warning with term for reparation After 3rd visit …Which was knowingly No  Decision and/or imposes possible  Notification of the Public Prosecutor and/or danger administrative sanction or administrative fine After 4th visit

After 1st visit  Administrative warning with term for Yes reparation nd After 2 visit  Decision  Notification of the Public Prosecutor and/or administrative sanction or administrative No fine After 3rd visit …With immediate danger  Execution of decision and/or is inevitable and/or has public safety consequences Yes After 1st visit  Immediate execution of decision (usually administrative coercion)  Notification of the Public Prosecutor and/or administrative sanction

3.1.2. Criteria for starting a criminal procedure

One of the main measures the competent authority and/or the inspectorate can undertake is to report the infringement to the public prosecutors. This is an important aspect of the sanctioning procedure as it is the initial phase which can ultimately lead to a criminal sanction, rather than to an administrative one.

The action to report the infringement can be subject to conditions, sometimes linked to practice. For example, in France, the practice is that formal records of infringements to the legislation on classified installations are only submitted to the prosecutor when there is a potential threat to health and the environment. In other words, prosecution is thought for only with regard to what is considered as a serious offence. The Guidelines set by Denmark constitute an interesting example of the setting of such criteria. However, these are not always well followed.

10Ferwerda, C., Handhaven of gedogen, dat is de vraag, Handhaving 2010, no. 4.

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Danish rules governing compulsory report to the prosecution

In Denmark, the supervisory authority shall report the infringement to the public prosecutors in case the administrative sanction has not resulted in the illegal activity being brought under regulatory control. According to the Guidelines on enforcement of the Environmental Protection Act, certain types of infringement would require that the supervisory authority should report the infringement to the police although the administrative sanction has resulted in the illegal activity being brought into compliance with the law. This would be the case where a new IPPC installation is operated without the required permit or and typically in cases where offender acted deliberately or by gross negligence and the infringement resulted in a damage to the environment or risk of a damage, or actual or intended economic advantages.

However, a review of the enforcement of the environmental legislation by the municipalities, the decentralised units of the Environmental Protection Agency and the public prosecution authorities (the police) launched by the Danish Environmental Protection Agency revealed that reporting of violations to the public prosecutions authorities is inadequate. The review showed that there is a tendency not to follow the guidance on when reporting of violations should take place as set out in the Enforcement guidelines issued by the Ministry and that cooperation between the environmental enforcement authorities and the public prosecutions authorities could be enhanced.

Similarly, the Netherlands provide guidance as to when criminal proceedings should be initiated.

The Netherlands: criteria to start criminal proceedings

The guidance document Instruction on enforcement of environmental law stresses that, in principle, criminal proceedings will only be initiated in case of a breach of “core provisions” of environmental legislation. Core provisions of industrial emissions legislation are those setting the obligation to have a permit and to comply with the conditions set in the permit. This rule applies except when the Public Prosecutor considers that the behaviour was a) unintended and incidental and did not have major environmental consequences; and ceased immediately after adequate action of the operator (cumulative conditions) or b) if criminal law has no function in the case at hand because de facto the administrative measure(s) already constitute a sufficient ‘punishment’, in light of ad hoc or structural agreements between the Public Prosecutors Office and the administration. In principle, where the infringement relates to non-core provisions, no prosecution is to take place, except in cases when the Public Prosecutor finds that special circumstances prevail (for instance relating to a direct substantial threat to the environment or public health) that makes it necessary to prosecute.

The UK has developed a comprehensive system submitting criminal prosecution to strict threshold through the so-called “two stage” test, based on the evidence available and public interest criteria.

Whether to prosecute or not: the two-stage test set by the Code for Crown Prosecutors

When considering prosecution, regulators must have regard to the Code for Crown Prosecutors ( “The Code”). The Code provides guidance on the general principles to be applied when

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considering prosecutions. Where the regulator decides that a criminal sanction is appropriate it must assess the case in accordance with the requirements of the Code before commencing a prosecution. The Full Code Test has two stages: (i) the evidential stage; followed by (ii) the public interest stage.

For the evidential stage, prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. This will include considering the reliability and admissibility of the evidence.11 They must also consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be. Where there is sufficient evidence to justify a prosecution or to offer an out-of-court disposal, prosecutors must go on to consider the second stage, i.e. whether a prosecution is required in the public interest. A number of factors will make a prosecution more likely, for example where a conviction is likely to result in a significant sentence, and where the offence was committed in order to facilitate more serious offending.12

Based on these factors as well as its own public interest factors it uses when deciding on the type and severity of sanction, the Environment Agency will make a decision as to whether a prosecution is an appropriate response or whether an alternative to prosecution may be more appropriate. This assessment will include a consideration of factors set out by DEFRA, including those which will tend to suggest that prosecution is the proportionate action.

3.1.3. Synergies between administrative and criminal sanctions

The question of whether or not administrative and criminal sanctions can apply cumulatively should be considered in the light of the principle of ne bis in idem as interpreted by the European Court of Human Rights (ECHR) in its Decision Zolotukhin v. Russia.13 The ECHR recalled that Article 4 of Protocol No. 7 imposed a prohibition on trying or punishing an individual twice in criminal proceedings for the same offence. The Court ruled that, although the proceedings instituted against the applicant were classified as administrative in national law, they amounted to criminal proceedings based on the so-called Engel criteria: the classification of the offence under national law, the nature of the offence and the degree of severity of the penalty by reference to the maximum potential penalty for which the relevant law provides. With regard to the ”idem” element, the Court held that “Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second “offence” in so far as it arises from identical facts or facts which are substantially the same”.

In Germany for example, the principle of ne bis in idem is strictly applied in relation to criminal and administrative criminal offences.

Germany: an example of non-cumulative sanctions

The prosecution of administrative criminal offences and the prosecution of criminal offences are

11 Code for Crown Prosecutors, pages 7-9 12 Code for Crown Prosecutors, pages 10-12 13 Serguey Zolotukhin v. Russia [GC] (Application no. 14939/03), 10 February 2009

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intertwined. The same behaviour of the perpetrator can only be punished once and accordingly either as a criminal offence or a criminal administrative offence.14 If the behaviour of the perpetrator meets the conditions of a criminal offence and an administrative criminal offence simultaneously the public prosecution office must prosecute the criminal offence and the competent authority must stop the prosecution of the administrative criminal offence (§ 21(1) Administrative Criminal Offences Act). This is, for example, the case when the operator of an installation for the production of basic organic chemicals runs the installations without a permit.

This case-law would not prevent administrative measures other than pecuniary ones to be applied in conjunction with criminal sanctions to the same offence, at least as long as these administrative measures do not have a punitive character.

Example of cumulative application of administrative ‘measures’ and criminal sanctions

In Denmark, where there is no administrative financial penalty, the legislation provides for the use of both measures and regulatory guidance advises the use of either and/or both where it is considered proportionate under the circumstances. The way in which the administrative and criminal sanctions are applied and the factors which regulators must take into account when deciding whether or not to prosecute is determined by various guidance documents, including the Environmental Protection Agency’s guidelines on enforcement of the Environmental Protection Act and the Instructions from the Director of public prosecutions concerning judicial procedures for environmental infringement. Administrative measures will thus be used with the option to resort to criminal prosecution where operators have breached their permit conditions or where administrative procedures are not complied with.

The application of the ECHR case law would be more problematic in countries where administrative sanctions can have a punitive nature. It could be considered as admissible with some safeguard, notably the total of both fines cannot exceed the potential maximum amount of the criminal fine. An example is France although it does not apply in the case of IPPC penalties given that there are no administrative fines in this instance.

France: cumulative administrative and criminal sanctions

Both administrative and criminal sanctions can apply for the infringement of the legislation on classified installation in France. These sanctions can be imposed separately on the offender and even be cumulative. For instance the non-respect of the requirement set in the letter of formal notice issued by the prefect to close an installation or suspend its activity can both lead to an administrative sanction and a criminal sanction. The Constitutional Council considers that the rule of non bis in idem does not prohibit the combination of criminal and administrative sanctions incurred for the same facts since these sanctions do not have the same purpose and the interests they aim to safeguard are not identical. The Constitutional Council, however, provides that administrative and criminal sanctions when applied cumulatively shall be subject to the principle of proportionality. In particular, the total amount of administrative fines and criminal fines issued for the same facts shall not exceed the highest amount possible between these two

14 In favour of this: Jarass/Pieroth, Legal Commentary to the Basic Law of the Federal Republic of Germany, Article 103, recital 74.

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penalties.15

3.2. The range of sanctions

All EU Member States set administrative sanctions in case of breaches of IPPC legislation. These include different kinds of measures and sanctions, and, sometimes only financial penalties. With regard to criminal sanctions, all the seven countries studied provide for criminal penalties (fines and imprisonment), with also in some cases the possibility to impose other types of sanctions, such as the dissolution of the company. The following section firstly considers fines and imprisonment penalties both administrative and criminal. Secondly, it focuses on the other types of measures and sanctions that can be taken alongside traditional penalties.

3.2.1. Fines and imprisonment

Tables 6 and 7 present respectively administrative and criminal penalties available in each of the seven Member States studied in more detail. They do not include sanctions other than fines and imprisonment, which are covered in the next section. Table 6 includes administrative fines and specifies when financial sanctions are not provided for by the national administrative legislation for infringement to legislation on industrial emissions. Administrative (quasi) criminal sanctions have been added within Table 7 on criminal penalties for the two countries which provide for such sanctions, Germany and Hungary.

15 Constitutional Council Decision No ° 89-260 DC of 28 July 1989, § 16-22.

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Table 5: Administrative penalties

Countries Obligation to apply for a permit Obligation to supply information Obligation to notify the Obligation to comply with the for new or existing installations for application for permits competent authority of any conditions set in the permit or changes in the operation of an mandatory ELV’s installation Denmark No financial sanction No financial sanction No financial sanction No financial sanction France No financial sanction No financial sanction No financial sanction No financial sanction Germany No financial sanction The infringement of these No financial sanction No financial sanction obligations does not lead to sanctions, but as a consequence of this infringement the authority will not grant the permit

Hungary Having regard to the danger the No financial sanction No financial sanction Fine of Euros 730-1,826 (HUF illegal conduct may have on the 200,000 to 500,000) environment, fine from Euros 182 to 365/day (HUF 50,000 to 100,000)

Spain In case of serious damage to the Serious offences (intentional In case of serious damage to the In case of serious damage to the environment or serious danger to element): fine from Euros 20,001 environment or serious danger to environment or serious danger to human health or safety, fine from to 200,000 human health or safety, fine from human health or safety, fine from Euros 200,001 to 2,000,000 If not, fine from Euros up to 20,000 Euros 200,001 to 2,000,000 Euros 200,001 to 2,000,000 If not, fine from Euros 20,001 to If not, fine from Euros 20,001 to If not, fine from Euros 20,001 to 200,000 200,000 200,000 The No financial sanction No financial sanction No financial sanction No financial sanction Netherlands UK No financial sanction No financial sanction No financial sanction No financial sanction

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Table 6: Overview of administrative (quasi) criminal and criminal sanctions

Countries Obligation to apply for a permit Obligation to supply information Obligation to notify the CA of Obligation to comply with the for new or existing installations for application for permits any changes in the operation of conditions set in the permit or an installation mandatory ELVs Denmark Fines: no minima or maxima (Fines Fines: no minima or maxima Fines: no minima or maxima Fines: no minima or maxima typically in the range of DKK In case of intent or gross In case of intent or gross In case of intent or gross 10,000 – 40,000 (app Euros 1,200 - negligence and if the violation is negligence and if the violation is negligence and if the violation is 6,000)) harmful for the environment or harmful for the environment or harmful for the environment or In case of intent or gross provides economic advantage to provides economic advantage to provides economic advantage to negligence and if the violation is the operator, imprisonment up to the operator, imprisonment up to the operator, imprisonment up to harmful for the environment or two years two years two years provides economic advantage to the operator, imprisonment up to Same for natural and legal persons Same for natural and legal persons Same for natural and legal persons two years but additional financial penalties but additional financial penalties but additional financial penalties can apply to legal persons can apply to legal persons can apply to legal persons Same for natural and legal persons but additional financial penalties can apply to legal persons France Individuals: N/A Individuals: fine up to Euros 1,500 Individuals: ‐ Fine of up to Euros 75,000 ‐ Fine up to Euros 75,000 ‐ Up to one year imprisonment Legal persons: fine up to Euros ‐ Up to six months imprisonment 7,500 Legal persons: Legal persons: Fine up to Euros 375,000 (75,000 x Fine up to Euros 375,000 (75,000 x 5) 5) Germany Administrative (quasi) criminal N/A Administrative (quasi) criminal Administrative (quasi) criminal sanctions: sanctions: sanctions: ‐ In case of intent, fine up to Euros ‐ If intentional, fine up to Euros ‐ In case of intent, fine up to Euros 50,000 10,000 50,000 ‐ By negligence, fine up to Euros ‐ By negligence, fine up to Euros ‐ By negligence, fine up to Euros 25,000 5,000 25,000

Identical fines for legal persons Identical fine for legal persons. Identical fine for legal persons.

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Criminal sanctions: Criminal sanctions: Criminal sanctions: Individuals: N/A Individuals: ‐ if intentional, imprisonment up ‐ if intentional, imprisonment up to 3 years or fine up to 360 daily to 3 years or fine up to 360 daily units units ‐ if by negligence: imprisonment ‐ if by negligence: imprisonment up to 2 years or fine up to 360 up to 2 years or fine up to 360 daily units daily units Note: one daily unit amounts from Note: one daily unit amounts from Euro 1 up to Euro 30,000 Euro 1 up to Euro 30,000

Legal persons: Fine up to Euros Legal persons: Fine up to Euros 1,000,000/ if intentional / Euros 1,000,000 if intentional / Euros 500,000 if by negligence. 500,000 if by negligence. Hungary Administrative (quasi) criminal No administrative (quasi) criminal No administrative (quasi)criminal Administrative (quasi) criminal sanctions: a fine up to 547 Euros or criminal penalties specific to or criminal penalties specific to sanctions: a fine up to 547 Euros (HUF 150,000) breaches of IPPC legislation breaches of IPPC legislation (HUF 150,000)

No criminal penalties specific to No criminal penalties specific to breaches of IPPC legislation breaches of IPPC legislation

General offences e.g. ‘damaging General offences e.g. ‘damaging the environment/the nature’, the environment/the nature’, ‘illegal deposition of waste’, ‘illegal deposition of waste’, ‘danger to the public’. ‘danger to the public’. Individuals: Individuals: - Imprisonment: in average - Imprisonment: in average up to 10 years up to 10 years Legal persons: Legal persons: 1) the dissolution of the legal 1) the dissolution of the legal person, person,

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The maximum length of The maximum length of imprisonment depends on the imprisonment depends on the offence, the level of guilt and other offence, the level of guilt and other factors. In some cases the relevant factors. In some cases the relevant provisions set minima and maxima, provisions set minima and maxima, whereas in some cases there is only whereas in some cases there is only a maximum duration of a maximum duration of imprisonment. imprisonment. Spain No penalties specific to breaches of No penalties specific to breaches of No penalties specific to breaches of No penalties specific to breaches of IPPC legislation but general crimes IPPC legislation but general crimes IPPC legislation but general crimes IPPC legislation but general crimes against natural resources and the against natural resources and the against natural resources and the against natural resources and the environment environment environment environment ‐ Fines up to Euros 300,000 ‐ Fines up to Euros 300,000 ‐ Fines up to Euros 300,000 ‐ Fines up to Euros 300,000 ‐ Imprisonment up to 4 years ‐ Imprisonment up to 4 years ‐ Imprisonment up to 4 years ‐ Imprisonment up to 4 years The Offences: Offences: Offences: Offences: Netherlands ‐ Fine up to Euros 19,000 ‐ Fine up to Euros 19,000 ‐ Fine up to Euros 19,000 ‐ Fine up to Euros 19,000 ‐ Imprisonment up to 6 months or ‐ Imprisonment up to 6 months or ‐ Imprisonment up to 6 months or ‐ Imprisonment up to 6 months or 1 year 1 year 1 year 1 year

Crimes: Crimes: Crimes: Crimes: ‐ Fine up to Euros 76,000 ‐ Fine up to Euros 76,000 ‐ Fine up to Euros 76,000 ‐ Fine up to Euros 76,000 ‐ Imprisonment up to 6 years ‐ Imprisonment up to 6 years ‐ Imprisonment up to 6 years ‐ Imprisonment up to 6 years UK ‐ on summary conviction to a fine ‐ on summary conviction to a fine ‐ on summary conviction to a fine ‐ on summary conviction to a fine up to £50,000 (Euros 59,772) or not exceeding £50,000 (Euros not exceeding £50,000 (Euros not exceeding £50,000 (Euros imprisonment up to 12 months, 59,772) or imprisonment for a 59,772) or imprisonment for a 59,772) or imprisonment for a or to both; or term not exceeding 12 months, or term not exceeding 12 months, or term not exceeding 12 months, or ‐ on conviction on indictment to a to both; or to both; or to both; or

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The great variety in the different sanctions in terms not only of level but also in their nature, administrative, administrative criminal or criminal, and other elements as described below show how difficult it would be to determine general “good practices” applicable across countries.

Rare occurrence of financial administrative sanctions

Out of seven countries, only two have set up financial administrative sanctions (fines) for breaches to IPPC legislation, Hungary and Spain. In Hungary, administrative fines are very low (Euros 182 to 365) but this amount is applicable per day, hence can increase with the time. By contrast, Spain has set very high administrative fines – up to Euros 2 millions when the offence had impacted negatively the environment or presented a danger to human health. Otherwise, the maximum is Euros 200,000. Interestingly, the maximum amount of criminal fines is far less high for general crimes against natural resources and the environment, with fines up to Euros 300,000. On the other hand, criminal penalties include imprisonment.

Distinction between minor and serious offences

This is an important feature when considering the requirement to set proportional penalties, as it provides a tool to take into account elements that influence the seriousness of the offence. These can differ from one country to another – depending on the existence of damage to the environment or to human health, based on the intent (and gross negligence in the case of Denmark), as opposed to an offence committed by negligence, or if the offence led to an economic benefit. In the Netherlands, offences are differentiated from more serious ‘crimes’ to which higher penalties are associated. Other countries set only one maximum for a given offence.

Existence of administrative (quasi) criminal penalties

As mentioned above, two of the Member States studied, Hungary and Germany, use a so-called “:administrative (quasi) criminal” or administrative criminal system. These relate to minor offences while the more serious ones are as a rule handled through criminal proceedings.

Minima and maxima for penalties

The seven Member States studied, follow different approaches to define the level of fines. In some cases, both minima and maxima are defined e.g. administrative sanctions in Hungary and Spain. With regard to criminal sanctions, in all the seven Member States, a maximum is set, with the exception of Denmark which does not set any minima or maxima.

If to take only the maximum fine applicable to breaches of the obligation to comply with the conditions set in the permit or mandatory ELVs in each country, the following variations can be identified.

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Table 7: Overview of maximum sanctions

Countries Specific v. Maximum sanctions General criminal sanctions16 Denmark Specific  Fine: no maxima  In case of intent or gross negligence and if the violation is harmful for the environment or provides economic advantage to the operator, imprisonment up to two years  Same for natural and legal persons France Specific  Legal persons: € 375,000  Natural persons: € 75,000 - 6 months imprisonment Germany Specific  Legal persons: €1 million /500,000 (intentional/negligent)  Natural persons: €10 million (that is 360 daily units at the maximum rate of €30,000 per daily units)* – 2/3 years imprisonment (intentional/negligent) Hungary General  Individuals: Imprisonment: in average up to 10 years**  Legal persons: (1) the dissolution of the legal person, (2) constraining the activity of the legal person and (3) fines: three times the benefits gained, but minimum € 1.862 Spain General  € 300,000  4 years of imprisonment The Netherlands General  Offences: €19,000 and 6 months to 1 year imprisonment  Crimes: €76,000 and 6 years imprisonment UK Specific  On summary conviction: €59,770 and 12 months imprisonment  On conviction on indictment: no maxima for the fine, 5 years imprisonment *The amount of €30,000 is theoretical as a number of factors are considered when setting the number and the rate of the daily unit. ** The maximum length of imprisonment depends on the offence, the level of guilt and other factors. In some cases the relevant provisions set minima and maxima, whereas in some cases there is only a maximum duration of imprisonment.

The maximum fine ranges from Euros 1,862 to an unlimited amount, while the maximum imprisonment penalty can be found in Hungary where it reaches 10 years. Taking into account these differences, it should be underlined that, in practice, criminal sanctions appear to be rarely used. In Hungary as a matter of fact, no case of application of criminal sanctions to IPPC installations could be identified. In countries where there have been instances where breaches to legislation transposing the IPPC Directive have been subject to criminal proceedings, when data is available as to the level of sanctions, the financial penalties are rather low compared to the maximum. However, it is not possible to draw meaningful conclusions on the basis of the information available. Comprehensive and detailed studies should be undertaken on a national level, as the setting of low penalties can be justified for a number of reasons linked to the specificities of the cases.

More generally, the question as to whether the prescription of minimum and maximum level of fines is supporting the setting of proportionate, effective and dissuasive penalties or not, can be subject to discussion. Besides, when such minima and maxima are set in legislation, they may not always be adapted to the particular circumstances of the country and each individual case. Some practitioners

16 The term specific criminal sanction refers to cases where a specific provision is set in the Criminal Code or other criminal law legislation for the breach of IPPC related obligations, whereas the term general criminal sanction refers to cases where a general provision is included in the Criminal Code or other criminal law legislation and has a broader scope than offences to IPPC legislation.

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mentioned that while minimum level of fines could be too high and the maximum one too low for certain cases.

Differentiation in the level of fines for natural and legal persons

Table 5 also indicates in which countries criminal sanctions are differentiated for legal and natural persons. In all seven Member States studied, penalties can apply to both natural and legal persons. In some countries, the same penalties apply while in others, the penalties are differentiated, with higher ones potentially applicable to legal persons. In this perspective, due account should be taken of the possibility to impose additional financial penalties to legal persons. For example, in Denmark, fines can be completed with other financial sanctions such as the seizure of the profit made. An example is a ruling by the Eastern High Court where a County was fined DKK 500,000 (approximately Euros 65,000) for failure to comply with the mandatory emission limit values for a waste incineration plant and seizure of the saved amount of DKK 4 million (approximately Euros 350,000), more than five times the amount of the fine itself.

Guidance on the level of fines

In Germany, the practice of developing indicative catalogues of fines can be an interesting example of such guidance. However, on one hand, it raises the question of the necessary flexibility to ensure proportionate, dissuasive and effective penalties. The catalogue actually sets narrower limits to the amount of fines. The recommended levels of fines are adapted in function of the value of the installation itself for construction without permit. On the other hand, there may be many other circumstances to take into account when setting the fines and the fines set by the catalogues are only indicative.

Germany: use of indicative catalogue of fines

The Länders specify the scale of fines by adopting indicative catalogues of fines. According to the catalogue of fines for infringements against environment related provisions of North-Rhine Westphalia (Bußgeldkatalog Umwelt) of 200617 the scale of fines for the construction of installations (including IPPC) without permit depends on the value of the constructed installation:

Value of the installation Fine foreseen Less than Euros 50,000 Between Euros 510 and 2,600 Between Euros 50,000 and 500,000 Between Euros 510 and 5,100 Between Euros 500,000 and 5,000,000 Between Euros 2,600 and 25,600 More than 5,000,000 Between Euros 5,100 and 50,000

The catalogue also contains indicative fines for many other infringements.

Similarly, in Denmark, recommendations on minimum level of fines have also been adopted. For example, a fine of at least DKK 50,000 (approximately EUR 2,700) is recommended in case of putting into operation or operating an installation without a permit from the relevant authorities.

17 The fine catalogue environment of North-Rhine Westphalia of 2006 was established by the Ministry for the Environment, Nature Conservation, Agriculture and Consumer Protection of North-Rhine Westphalia and is available at: http://www.kreisjaegerschaft-coesfeld.de/red/ges-bussgeldkatalog-umwelt-nrw-2010-02-27.pdf

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3.2.2. Other measures and/or sanctions

Alongside financial and imprisonment penalties, all Member States provide for other types of measures and/or sanctions. In most cases, such measures/sanctions are the only ones available as part of the administrative proceedings. This is the case when there are no administrative financial penalties for breaches of legislation on industrial emissions, although administrative fines do exist for other environmental offences. In some countries, no administrative fines are available. This was the case in the UK until recently as shown above.

A distinction should be made between administrative measures and administrative sanctions, based on their objective. Typically, national legislation would provide for a range of measures that can be taken by the inspector or the supervisory authority to stop the unlawful behaviour or to remediate the damage caused to the environment or to human health. These would be classified as coercive or remedial measures. In contrast, the administrative sanctions can equate to a punishment of the unlawful behaviour. Sometimes, the same type of measures can be seen as a coercive or a punitive measure. For example, the closure of an installation may aim at preventing further damage while it can also be considered as a punishment, as it is the case in France.

These administrative measures and sanctions are seen as very effective tools to ensure compliance.

The following Table 8 provides some examples of such additional measures and sanctions in the seven selected Member States.

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Table 8: Overview of administrative measures and sanctions other than fines

Restricting/ Limiting the activity, including Measure Rectification/ imposition of corrective Seizure of removal or permanent closure of the Publicity Other measures on the operator equipment installation Country Injunctions or prohibitions to prohibit Issuing an “Order”, requiring operator to rectify Obtaining financial continued operation and to order closure of the non-compliance. Injunctions and prohibitions guarantees from the Denmark facility may also be issued to restore site to original operator position Imposing more onerous permit conditions, and revocation of permit. May include closure of “Self-help actions” (prescription of corrective installation measures, carried out at offender’s expense) Formal notices which suspend operations until The Court can order that the work to Formal notices may also conditions are complied with suspension of rehabilitate the premises be carried out include conditions requiring France operations automatically at the expense of the condemned money to be deposited, party corresponding to the clean- Closure, removal or sealing of installation up work required Suspension of operations, withdrawal of permit Enforcement notices (to restore or remediate Seizure of Germany harm/damage, remediation notices (to remedy equipment by Closure or removal of installation where an pollution) environmental installation has been constructed or inspectors significantly changed without a permit (authority) Limiting, suspending or prohibiting activities, Requiring the operator to withdrawal of the permit, variation of permit prepare a programme of Hungary conditions measures, or to carry out an environmental review

Require the operator to comply with the conditions set in the permit Prohibition of activities, revocation or temporal Require offender to restore the damage caused Publication of suspension of the authorisation to operate the sanctions Spain installation

Closure of all or part of the installation

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Restorative orders (e.g. to prevent further Restorative orders may also be issued to reverse Reparations The violation), revocation of permit the effects of the offence Netherlands Removal/demolition of illegal structures Administrative coercion (to recover damages caused and to implement obligations if not performed by operator) Enforcement notices (to bring activity under Enforcement notices (to restore or remediate Seizure of Environment Advice and written regulatory control), suspension notices (to stop harm/damage, remediation notices (to remedy equipment by Agency press warnings

offending), variation notices (to vary a permit), pollution) environmental releases UK revocation notices (to stop offending), inspectors

injunctions (to stop a criminal act) and court orders (to stop an activity)

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Remedial sanctions other than fines and imprisonment are often seen by practitioners as very effective. The case studies provide two examples of the effective and dissuasive character of such sanctions. They relate to suspension of the activity in France and to administrative orders subject to financial payment in the Netherlands. The latter sanction (in Dutch: “dwangsom”, which could be translated literally as “coercive sum”) is a remedial (reparation) sanction which aims at reversing the effects of the offence. The administrative order describes the remedial action to be taken. The administrative authority shall determine the payment either as a lump sum, or as a sum payable per unit of time in which the order has not been complied with or for each violation of the order. The amounts shall be reasonably proportionate to the gravity of the interest violated and to the intended effect of the penalty. This amount is established by the competent authority. In the Province of Zeeland, internal guidelines are used in order to establish the appropriate amount of the payments. Amongst other things, the profits from non-compliance with the legal obligations are taken into account, as are the frequency of violations, the type of violation and its nature. In 2010, the order prescription was complied with ten times out of the 13 times such order was imposed on companies in the Province of Zeeland.

France: effectiveness of suspension of activity

In one of the case studies identified in France, the supervisory authority (the prefect) imposed a suspension of the activity until the operator regularised the situation. The installation was one of the main treatment centres of household waste in the Aisne Region (a French Region North of Paris). The installation was operating a section of the landfill without authorisation. Beginning of 2006, the Prefect sent a letter of formal notice to the operator with an injunction to regularise its situation. In April 2006, since the operator did not comply with the letter of formal notice, the Prefect decided, as an administrative sanction, to suspend the operation of the section until an authorisation was granted. This administrative sanction was considered very effective as the operator promptly rectified the situation to comply with the law. In this case, the sanctioning administrative procedure was less time consuming and more flexible than the criminal procedure. The criminal sanction was issued after the infringement ended.

Netherlands: effectiveness of administrative order subject to financial payment

Similarly, the imposition of an order subject to financial payment proved to be effective in an instance of non-conformity with the permit conditions in the Netherlands. An inspection revealed that the operator, an industrial waste management firm, was breaching its permit conditions as it repeatedly mixed volatile liquid substances. The provincial authority issued a first warning notifying the company that an administrative order subject to a financial payment might be issued if compliance was not restored. Follow-up inspections showed that the company was still not in compliance almost two years later. The authorities subsequently issued a notification of their intent to issue an administrative order subject to financial payment. The company replied several times and contested the findings of the inspection, but without supplying convincing arguments in the authority’s view. As a result, the supervisory authority issued the order, with a financial payment set at Euros 5,000 per infringement with a maximum of Euros 50,000. The first payment was to be made one week after the decision if, at this date, the infringement had not ceased. The company ceased the infringement before this deadline had elapsed. Considering the fact that the company did not agree with the findings of the inspection, the prospect of a fine clearly dissuaded the company from further infringing the permit conditions.

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Administrative measures and sanctions, as a rule, are applied in a gradual way. Dialogue with the operator and the use of warnings can be instrumental in stopping the illegal behaviour and avoiding damage to the environment or health, and this without taking further steps.

The operator’s willingness to cooperate is, for example, taken into account in France when deciding upon administrative sanctions, such as the suspension of the activity. When the operator does not give any sign of willingness to comply with the warning or letter of formal notice and non-compliance can present a risk to human health and the environment, the supervisory authority is more likely to impose stringent administrative sanctions.

The England and Wales Environmental Agency has formalised such a gradual approach in its enforcement policy.

An example of gradual application of administrative sanctions: UK

The Environment Agency, in the case of minor infringements, will normally apply sanctions in a gradual way, as part of its an “outcome focused” approach to enforcement:

 Advice and Guidance: As an initial enforcement measure, the EA will normally provide advice and guidance after the commission of an offence or where an offence is likely to be committed, unless this would have the effect of undermining any enforcement action.

 Warnings: A warning or site letter may also be deemed appropriate in response to a minor breach of a condition or where an offence is suspected to have taken place.

 Other measures: Where issuing advice and guidance or a warning do not achieve the objective, or in more serious cases, it may be considered more proportionate to consider other measures such as an enforcement notice (to bring an activity under regulatory control).

Similarly, additional criminal sanctions are usually provided for by national legislation. The following box gives an example of those available in France. Some of these additional sanctions can represent a heavy financial burden such as the rehabilitation of the premises.

Criminal sanctions in France other than fines or imprisonment

 The ban, either permanently or for a period of five years, to exercise directly or indirectly one or more social or professional activities;  The final closure or a suspension of the installation for a period of five years  The exclusion from public tenders either permanently or for a period of five years;  Penalty of confiscation  The posting of the ruling or distribution thereof by the press or by any electronic means to the public

Complementary measures:  The ban of the use of the facility  The rehabilitation of the premises

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Some countries have developed extensive guidelines on the use of sanctions. A good example can be found in Denmark.

An example of guidelines on application of administrative sanctions: the Danish Guidelines on Enforcement of the Environmental Protection Act

The guidelines on enforcement of the Environmental Protection Act18 provide practical guidance to the supervisory authorities on the application of administrative sanctions, including preventive and remedial measures available to the supervisory authority to prevent that negative impact on the environment occurs as a result of future operating conditions and enforcement measures to ensure compliance with inter alia legal rules, permits and decisions. It contains some specific examples of injunctions and prohibitions which can be used as templates.

Finally, another very important point made by practitioners is that it is worth considering whether there is the possibility for the courts to confiscate the proceeds of crime. Sanctions themselves are often not enough to remove the financial benefit. The seizure of the profit is seen as an efficient tool which can considerably strengthen the deterrent effect of the sanction.

3.3. Criteria used to determine the severity of the sanctions

As shown above, the legislation itself often distinguishes between minor and serious offences. The main criteria used are whether or not the offence was intentional (or caused by gross negligence), if the offence led to an economic benefit or to damage to the environment or to human health. In Germany for example, aggravated circumstances in terms of damage to the environment are met if the offence resulted in serious and permanent pollution of a river, soil or protected areas, if it endangers the water supply or if endangered species of fauna and flora are permanently damaged. In Hungary, the amount of administrative fines should be adjusted to the severity of the environmental damage caused and the length and periodicity of the illegal conduct.

The main aggravating criteria used in both legislation and in practice can be summarised as follows.

Aggravating criteria

 Potential and/or actual harm to the environment or human health  The ‘mental element’: intent or gross negligence  Foreseeability: When circumstances leading to the offence could reasonably have been foreseen  Lack of cooperation by the operator with the competent authorities  Repetitive offences, length of illegal conduct  Benefits from illegal behaviour (profits made or avoided costs)

The boxes below present examples of the consideration of such aggravating factors by the courts in Hungary and the Netherlands.

18 It is available on the web site of the Danish EPA. http://www2.mst.dk/udgiv/publikationer/2005/87-7614-833-5/pdf/87- 7614-834-3.pdf The title in Danish is ” Miljøstyrelsens vejledning nr 6/2005 om vejledning om håndhævelse af miljøbeskyttelsesloven”.

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Hungary

In Hungary, an IPPC installation carrying out waste treatment activities not in compliance with the conditions of its integrated environmental permits was imposed a fine of approximately Euros 20,800. The fine was confirmed despites several appeals of the operator. In last instance, the Supreme Court ruled that the fine was grounded by the seriousness of the infringement, the fact that the activity caused a risk to the environment and the circumstances of the case, namely the size of the installation.

Netherlands

In the case Corus Stall B.V., the criminal chamber of the District Court of Harlem considered a fine of Euros 12,500 appropriate due to the repetitive character of multiple infringements to the permit conditions and the damage it caused to the environment and danger it presented to human health.

As shown below, the consideration of the economic benefit made out of the infraction can result in a sizeable increase of the penalty and constitute a powerful deterrent for the offender.

Taking into account the economic benefit made out of the infraction in Germany and Spain

Under German legislation, irrespective of some criteria such as the assessment of the severity of the offence, the level of guilt of the offender and his financial situation, administrative criminal fines must be higher than the economic benefit that the offender has occurred, even if it means exceeding the maximum level of fine set in legislation.

In Germany, in a case involving non-compliance of the operator of storage tanks for petroleum products to have the tanks inspected by an audit company, the district government of Cologne imposed a fine of Euros 155,000 taking into account the profit that the company had made by not carrying out the periodic inspections. This is when the North-Rhine Westphalia legislation provides for a maximum of Euros 50,000 for such offence with the possibility to increase the fine on the basis of the economic benefit drawn from the illegal conduct.

The Spanish legislation also provides such a possibility as it prescribes that when the amount of the administrative is lower than the benefit obtained from the infringement, it shall be increased at least up to twice the amount the offender has benefited.

A contrario, several factors can be considered to mitigate the penalty. These have been mainly developed through practice and case law. Some of them such as the cooperative behaviour of the operator mirror the aggravating criteria listed above.

Mitigating criteria

 Concurrent obligations on the operator, resulting from legal or administrative provisions  Absence of imminent danger to the environment or human health

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 Prompt cessation of the offence  Cooperative behaviour of the operator  Length of time elapsed since the offence

For instance, in Corus Stall B.V. referred to above, the criminal chamber of the District Court of Harlem reduced the final amount of the fine to Euros 10,000 considering the time elapsed between the occurrence of the offences and the prosecution. Other examples drawn from the case studies show the use of such mitigating criteria by the supervisory authorities and the courts.

Germany: elements taken into account to mitigate the fine

In contrast to the example described in the box above, in another case involving the absence of notification of a non-essential change to an installation, the project manager who failed to notify the competent authority, was sanctioned with a fine of Euros 200. This low fine was considered as proportionate, effective and dissuasive taking into account that the non-essential change was serving safety purposes, that the project manager had admitted the infringement and that the operator of the installation had taken measures to prevent further infringements.

Denmark: absence of imminent danger

A fine of Euros 1,350 was imposed for the accidental discharge of nitric acid and formic acid into a municipal drain and a near-by brook. The Danish Environment Protection Agency did not impose “self-help actions” i.e. corrective measures, which are taken at the offender’s expense as there was no imminent serious danger to health and no immediate action was required to prevent the spreading of contamination or pollution.

The two French cases described below show how the use of one criterion “the cessation of the infringement” can lead to over-lenient Court’s decision.

France: cessation of infringement, concurrent obligation

In a case dealing with the operation of a household waste treatment facility, an IPPC installation, without permit, the level of the fine was reduced due to the fact that the operator brought its activity in compliance with the law before the end of the criminal procedure. Another element that could have influenced the decision of the Criminal Court to impose a limited fine (Euros 10,000 when the maximum is set at Euros 75,000 by legislation) is the fact that there was an obligation to treat the incoming household waste.

However, in another case, no sanction was imposed by the Criminal Court for operating a facility without an authorisation and not complying with the supervisory authority’s (the prefect) letter of formal notice on the ground that the facility was already complying with the legislation on classified installations before the end of the criminal procedure. This can be seen as an overly lenient decision in view of one of the objectives of the criminal sanction, namely to punish illegal behaviour.

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Taking into account the length of time elapsed since the offence is not considered as an effective criterion. As a matter of fact, a long delay between the offence and the imposing of a sanction, especially when it involves judiciary proceedings, is often due to deficiencies in the sanctioning procedure and is not the result of a cooperative behaviour of the operator (it can even be the contrary).

Finally, two key elements in establishing seriousness can prove to be difficult to assess, which can hinder the imposition of effective, proportionate and dissuasive sanctions:  the environmental impacts of the illegal conduct; and  whether the illegal conduct was committed intentionally, or not.

On one hand, several practitioners emphasized that proving the intent can be more difficult for infringements to industrial emission legislation as administrative authorities often do not have a sufficient level of evidence to judge the above two factors. They have no power of arrest and it is often difficult to convince people involved to be interviewed and to admit their intent. In the UK, the question of intention is crucial in order to judge the severity of the sanctions imposed. For example, the judges would tend not to order the confiscation of benefits if there is no offence.

On the other hand, judging the intention is not always necessary. In Belgium, negligence would provide a sufficient basis for bringing cases before the court. Moreover, in the case of infringement to industrial emission legislation, illegal conduct is usually committed by the operator in the form of negligence or lack of knowledge of the legislation.

How to take into account the revenues of the offender?

Several practitioners have underlined that the size and activity of the installation and its yearly turnover, in other words, its financial capacity should be taken into account. This is primarily linked to the deterrent effect of the sanction. The same level of fine can be negligible for one operator, while substantial for another one. A very high fine may lead to the installation’s bankruptcy with a risk that the damage to the environment will not be restored. Similarly, the suspension or prohibition of the installation’s operation may lead to its permanent closure. One of the case studies identified in Hungary provides an example of such a risk.

Hungary

A company ‘B’ Plc. decided to stop its activities of manufacturing and placing on the market of chemical substances and to sublet its site to the company ‘F’ Ltd., which was to carry out the same activities. The company ‘F’ Ltd. did not have a valid permit when starting its operation, and this, despites the fact that the installation was warned several times that no IPPC activity could be carried out without an integrated environmental permit. While considering the operator’s request to change the name of the installation in the integrated environmental permit that was granted to company ‘B’ Plc., the regional inspectorate took the decision to prohibit the operation of company ‘F’ Ltd.

Following the decision of the regional inspectorate the company terminated the sublet and stopped all its activities on the site. According to the regional inspectorate, the decision did not have a deterrent effect. In other words, a sanction cannot be seen as dissuasive, if as its consequence, the operator stops its economic activities on the site.

In contrast, a similar sanction imposed on a foundry producing equipment from recycled metal for rail companies proved to be effective and dissuasive. The suspension of the installation’s operation was motivated by non-compliance with the permit conditions, namely exceedance of SO2 emission limit values and treatment of hazardous waste. Following the decision of the

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Inspectorate, the operator installed filtering equipment and cleaned the site from the disposed hazardous waste.

3.4. The importance of publicity

The risk of bad publicity is often mentioned as a key dissuasive element or an aspect contributing to the effectiveness of the penalty.

Denmark: risk of bad publicity seen as a deterrent factor

A fine of only Euros 1,350 was imposed for the accidental discharge of nitric acid and formic acid into a municipal drain and a near-by brook. In that case, the Danish Environment Protection Agency noted that although the fine may not have been dissuasive in itself (it corresponded to approximately 30% of the average monthly salary in Denmark), the risk of bad publicity should a criminal case be opened against the facility had a more deterrent effect than the size of the fine.

France: deterrent effect linked to publicity of a case

In one of the case study, the initiation of a criminal procedure against an installation operating without a permit had a deterrent effect on the other operators of classified installations in the neighbouring area. This is explained by the fact that the case got a lot of publicity due to the notoriety of the operator of the facility.

UK: media coverage and ‘name and shame’ policy

Similarly, in both case studies identified in the UK, the decision of the Court received media coverage. This was seen as a powerful means of dissuasiveness. The Environment Agency has also a “name and shame” policy. It publicises regularly on its site under the News section, in the so-called “prosecution” theme,19 penalties imposed in instances of infringement of environmental legislation, including industrial emissions.

The need for more publicity also implies that administrative measures, such as formal records of infringements to the legislation on classified installations, should be publicised. For example, in France, the official records submitted by the inspectors to the public prosecutor are only available on request but are not published on internet or posted in a public place.

The importance of publicity has been recognised by the European Commission, which is trying to raise awareness of industrial cases and push the Member States to make inspection reports publicly available. For instance, it is a legal obligation under Article 23(6) of the Industrial Emissions Directive (2010/75/EU)20 to make publicly available within 4 months of the site visit taking place, the report drawn by the competent authority describing the findings related to compliance of the installation with permit conditions and conclusions on whether any further action is necessary.

19 See for example, http://www.environment-agency.gov.uk/news/default.aspx?month=2&year=2010&persona=Prosecution 20 Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions.

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In some cases, such publicity, even when combined with relatively low administrative fines, could be more effective than lengthy criminal proceedings. This is to be considered in combination with the lack of information on cases launched and closed and, similarly, on administrative sanctions in general. In this context, data-sharing among Member States should be encouraged.

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4. Enforcement and sanctioning procedure

This section focuses on the different key elements of the procedure, which ultimately influence the level of penalties. It considers aspects linked to inspections and to the judicial procedure.

4.1. The inspection

The role and function of inspectors and the methods and procedures which they may employ varies between Member States. In some countries the inspection is one of the functions of the competent authorities e.g. municipalities and provinces in the Netherlands, while VROM-inspectie, an inter- administration supervising agency oversees the manner in which the competent authorities implement their permitting and enforcement competences. In France, administrative measures and sanctions are taken by the Prefect (the representative of the central government in the regions and departments). In case of infringement, the inspector issues a formal record, which is sent to the Prefect. The Prefect will then issue a formal notice to the operator to comply with the relevant conditions by a set deadline. If, on expiry of the deadline set for performance, the operator has not complied with the said order, the Prefect may then issue administrative sanctions.

Effective inspection is central to proper enforcement as it is a first step to identify or confirm the existence of an offence. The inspection is also responsible to talk and negotiate with the operator in the first instance.

In most Member States studied, the enforcement powers of inspectors are primarily determined by national legislation, with additional regulatory guidelines providing guidance on the way in which these powers may be implemented.

4.1.1. Frequency of inspections

The frequency of inspections is determined by legislation and/or regulatory procedure and policy. In the UK for example, legislation provides for “periodic” inspections, while the regulatory guidance establishes detailed inspection and audit procedures. Inspection and enforcement procedures may also be determined at regional/federal level, e.g. in the Netherlands where provincial authorities are responsible for deciding on their own “inspection strategies” which determine the frequency of site visits and methods of inspection, including the number of visits per year. In Spain, the frequency of inspections is determined at regional level, and in accordance with annual inspection programmes. In Germany, the federal legislation requires competent authorities of the Länder to monitor compliance of IPPC installations, with a number of Länder setting specific requirements for inspection plans to be established. A number of countries specify a minimum number of inspections in their national legislation, e.g. in Hungary, the legislation provides that administrative authorities carry out site visits on a yearly basis and for environmental audits to be carried out in order to check if the operator is complying with its legal requirements. In Denmark, an agreement between the Minister of Environment and the Local Government Association (the interest group and member authority of Danish municipalities) on minimum frequency for so-called comprehensive inspections with industrial installations sets minimum frequency of inspections, which each municipality is required to meet. In case of non-compliance, discussion and publicity are used as tools to ensure the minimum frequency is met.

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Procedures in Denmark to ensure minimum frequency of inspections

If the minimum frequency for inspections is not met, the Ministry of Environment requests the municipality in question to submit in writing an explanation on how the backlog will be overcome and how the municipality will continue to ensure that minimum frequencies are observed. Municipalities which for several years in a row have not completed the minimum of inspections, is summoned to a meeting of the Environmental Protection Agency to discuss the municipality's inspection efforts. Lists of municipalities not having observed the minimum frequency for inspections are available on internet.21

In a number of Member States studied, the frequency of inspections is also formally determined by way of on-going assessment and operator performance, with some Member States having specific assessment systems and procedures in place. In Germany, for example, inspections carried out by the competent authorities of the Länder are complemented by self-inspection requirements of the operators and by inspections carried out by private audit companies. The UK also has a self- assessment and scoring system which is used to help determine the frequency of inspections. In the Netherlands, most inspection strategies ensure that on-going perpetrators who commit infringements more than once can expect more visits from the inspecting authorities.

4.1.2. Rights and obligations of the inspectors

In the majority of seven Member States studied, inspections may be carried without notice when it is deemed reasonable to do so, for example on receiving a complaint or where an infringement has occurred or is believed to have occurred. For example, in Denmark, prior notification including information such as the purpose of inspection and the visit time and place is only required if the inspection involves access to buildings or documents. However, it is considered best practice (and in the interests of maintaining good dialogue with businesses) to provide prior notification, unless such notification would be deemed detrimental for the purposes of the inspection. In the UK, regulatory officers responsible for inspecting facilities may carry out such examination and investigations “as may be necessary” under the general environmental law. Such powers must normally be exercised under and in accordance with a written authorisation, except in an emergency where such notice is not required. In Hungary, regional inspectorates may enter an installation without the agreement of the operator where immediate actions are required. However such action may require the approval of the public prosecutor, or the attendance of a police official and witness, unless such approval would cause significant delays.

A number of Member States studied specifically allow for unannounced inspections. In Germany, the laws and regulations in some Länder require a certain number of announced and unannounced inspections. In Spain specific legal requirements for inspectors differ between regions. For example, in Andalucía, inspectors are authorised to access facilities, if necessary without a licence. In Cataluña, inspections can take place at any time, without prior notice.

During inspections, most of the selected Member States, including Germany, UK, Hungary and France, grant inspectors the power to inspect installations and premises, to audit and take copies of operational documents, to request information, and to take samples, measurements, recordings and photographs for the purposes of evidence gathering and investigation. In a number of Member States studied, including the UK and Germany, inspectors may also seize and render harmless items which

21http://www.mst.dk/Virksomhed_og_myndighed/Industri/miljoetilsyn_brugerbetaling/kommunernes_tilsyn/Kommunernes_i ndsats/

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cause imminent danger of serious pollution or serious harm to health; however it is the regulators who are responsible for serving specific administrative sanctions. In Denmark, however, inspectors also have the power to serve an order to rectify non-compliance, to send a notice of injunction or prohibition or to prescribe corrective measures.

By contrast, inspectors in France and Spain may only initiate administrative or criminal procedures. They are not empowered to take administrative sanctions.

The Table 9 includes inspectors’ rights and obligations as they are typically set in national legislation.

Table 9: Rights and obligations of inspectors

Rights Obligations 1. Entry and access to installations, with 1. preparing a report of proceedings to prior notice prosecution authorities 2. Entry and access to installations without 2. returning documents and physical prior notice (in case of emergency) evidences to the operator/persons 3. Access to and inspection of operational concerned or submitting them to the documents competent authorities 4. Monitor/examine the working processes 3. confidentiality 5. Request relevant information (e.g. to 4. prior notification for planned inspections clarify facts) (in respect of access to buildings or 6. Record images and sounds documents) to encourage good dialogue 7. Take samples e.g. emissions/pollutants with operators 8. Install monitoring equipment or devices 9. Seizure of equipment 10. Take preventative measures e.g. suspension of operations

Finally, the European Commission is striving to harmonise national practices with regard to inspections. The Industrial Emissions Directive includes a provision specifically dedicated to environmental inspections, which sets up minimum requirements, applicable to all Member States from January 2013. In particular, it sets the obligations of the operator to assist the inspection. It also requires the establishment and minimum content of environmental inspection plans, programmes for routine site visits, periodicity of inspection and criteria for the environmental risks of the installations. Finally, it sets post-visit reporting obligations.

Article 23 Environmental inspections

1. Member States shall set up a system of environmental inspections of installations addressing the examination of the full range of relevant environmental effects from the installations concerned. Member States shall ensure that operators afford the competent authorities all necessary assistance to enable those authorities to carry out any site visits, to take samples and to gather any information necessary for the performance of their duties for the purposes of this Directive. 2. Member States shall ensure that all installations are covered by an environmental inspection plan at national, regional or local level and shall ensure that this plan is regularly reviewed and, where appropriate, updated. 3. Each environmental inspection plan shall include the following: (a) a general assessment of relevant significant environmental issues; (b) the geographical area covered by the inspection plan;

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(c) a register of the installations covered by the plan; (d) procedures for drawing up programmes for routine environmental inspections pursuant to paragraph 4; (e) procedures for non-routine environmental inspections pursuant to paragraph 5; (f) where necessary, provisions on the cooperation between different inspection authorities. 4. Based on the inspection plans, the competent authority shall regularly draw up programmes for routine environmental inspections, including the frequency of site visits for different types of installations. The period between two site visits shall be based on a systematic appraisal of the environmental risks of the installations concerned and shall not exceed 1 year for installations posing the highest risks and 3 years for installations posing the lowest risks. If an inspection has identified an important case of non-compliance with the permit conditions, an additional site visit shall be carried out within 6 months of that inspection. The systematic appraisal of the environmental risks shall be based on at least the following criteria: (a) the potential and actual impacts of the installations concerned on human health and the environment taking into account the levels and types of emissions, the sensitivity of the local environment and the risk of accidents; (b) the record of compliance with permit conditions; (c) the participation of the operator in the Union eco-management and audit scheme (EMAS), pursuant to Regulation (EC) No 1221/2009. The Commission may adopt guidance on the criteria for the appraisal of environmental risks. 5. Non-routine environmental inspections shall be carried out to investigate serious environmental complaints, serious environmental accidents, incidents and occurrences of non- compliance as soon as possible and, where appropriate, before the granting, reconsideration or update of a permit. 6. Following each site visit, the competent authority shall prepare a report describing the relevant findings regarding compliance of the installation with the permit conditions and conclusions on whether any further action is necessary. The report shall be notified to the operator concerned within 2 months of the site visit taking place. The report shall be made publicly available by the competent authority in accordance with Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information within 4 months of the site visit taking place. Without prejudice to Article 8(2), the competent authority shall ensure that the operator takes all the necessary actions identified in the report within a reasonable period.

4.2. The national judicial systems

4.2.1. The different actors of the procedure

The presence of numerous actors, some of which are not especially trained in environmental matters, may be an obstacle to efficient enforcement of legislation on industrial emissions. As one judge stated “enforcement is a chain as strong as its smallest element”.

In many Member States, prosecutors and judges are not specialised. In Belgium, the environmental criminal cases reaching the prosecutor’s office are an outspoken minority of all detected infringements, and the majority of those are brought by prosecutors without specialised knowledge of environmental law. It should be noted that in Belgium, the prosecutor is the primary actor in conducting cases. Similarly in Austria, most cases are brought to the prosecutor by a non-specialised expert. In addition, local officers in the field are not specialised. In Belgium, the lack of skills of the local police is an issue as it partly results in the high rate of dismissal of cases for technical reasons.

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The need for greening the judicial network and improving cooperation is widely recognised e.g. the 9th conference of the International Network for Environmental Compliance and Enforcement focused on “Enforcement Cooperation: Strengthening Environmental Governance”.22

The lack of cooperation and information exchange is a serious obstacle to enforcement and the importance of such cooperation should not be underestimated. For example, with regard to the participation of inspectors and prosecutors in criminal procedures, in Austria it depends on the particular offence and criminal procedure in each case. Different competent authorities take the lead but there is a lack of information exchange between the different authorities. It is up to the authorities/the public prosecutor to develop the case and to go back to the inspectors if necessary. In the Netherlands, the manner in which the authorities responsible for criminal and for administrative enforcement need to coordinate their respective actions within their competences has not been regulated. In practice, the coordination between the Public Prosecutor’s Office and Administrative authorities is considered as needing improvement. In the Province of Zeeland, despite a longstanding discussion on the need for structural coordination, ad hoc coordination remains the manner in which in individual cases issues of administrative and/or penal measures with regard to a company are dealt with. In the Province of Groningen, regular coordination meetings do take place between the Public Prosecutors Office and the administration

Where both the inspection and the enforcement body are combined in one organisation as is the case for the England and Wales Environment Agency in the UK, it can provide a very effective partnership between inspectors (who often act as witnesses) and prosecutors who bring the case.

Some stakeholders advocate the establishment of specialised legal structure, i.e. environmental courts and specialist prosecutors, along with environmental police and inspection.

There is currently a tendency within Member States towards gradual specialisation. Below are introduced some examples of specialisation.

Specialised Units of Environmental Prosecutors and Police

In Spain, the establishment of a Special Office of Environmental Prosecutors has resulted in an increase in the number of convictions for environmental offences. Similarly, since 1989, a specialised police unit, the Nature Protection Service (Servicio de Protección de la Naturaleza), is tasked with investigating directly or coordinating other police forces on environmental investigations. The Netherlands have also set a special official office for public prosecutors specialised in environment, the “Functioneel Parket”. In both countries, the central office is located in the capital city and coordinates environmental prosecutors operating at the regional or local level.

In Hungary, it is planned to set up a department within the Prosecution Office of the Prosecutor General dealing exclusively with environment related offences.

At the European level, two networks already exist:

 The European Union Network for the Implementation and Enforcement of Environmental Law, which groups environmental authorities (IMPEL). One of IMPEL cluster of activities

22 INECE 9th International Conference, Enforcement Cooperation: Strengthening Environmental Governance, June 2011, Canada (http://inece.org/conference/9/)

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focuses on permitting, inspection and enforcement looking at practical and technical aspects as these relate to capacity building, improving methodologies and development of good practices  The European Union Forum of Judges for the Environment (EUFJE) created in 2004 aims at promote the enforcement of national, European and international environmental law through exchange of knowledge and experience, as well as training in environmental law.

The idea to set up a similar European network of environmental prosecutors is being widely promoted. For example, a seminar on “Investigation, prosecution and judgment of environmental offences”, organised by the Belgium’s Judicial Training Institute in May 2011 generated a strong support in favour of the establishment of such a European initiative for cooperation between public prosecutors on the criminal prosecution of environmental offences.

4.2.2. The criminal proceedings

Criminal procedures vary between Member States, but most such procedures are characterised by complex and lengthy proceedings. In most cases this will involve an initial investigation procedure which allows for evidence to be gathered and a case to be put together. Some Member States (e.g. UK) apply strict evidential and public interest tests before a prosecution can be brought, often at considerable time and cost to the authorities.

Delays in the process may also be due to the complex and time consuming nature of investigations (e.g. in France the first judgement can take place four or five years after the infringement). The investigation phase itself is often subject to an appeal procedure, which varies in complexity and time between Member States. In some Member States, time limits on certain stages of the procedure aim to speed up the process e.g. in Hungary, the initial investigation must be concluded within two months, during which time the prosecutor or investigating authority may collect data and interview the operator.

Some Member States put in place simplified procedures, which allow shortening the procedure, while still ensuring that the operator is subject to a punitive sanction. For instance, in Flanders, the prosecutor has the discretionary power to propose and make settlements, which are considered as a very powerful instrument and the percentage of cases resulting in settlement has recently increased from around 13% to 17%. The following boxes present three examples:

 the fast-track procedure instituted by Spain;  the transaction procedure in the Netherlands; and  the newly introduced plead-guilty procedure in France.

Fast-track procedure in Spain

The Law on criminal procedure set a fast-track criminal investigation and prosecution for offences punishable by imprisonment not exceeding five years, or with any other sanction, not exceeding ten years, whatever its pecuniary amount, provided, that criminal proceedings are initiated under a police report and the judicial police has arrested a person and made him/her available to the Police Court (Juzgado de Guardia).

The environmental criminal sanctions enshrined in the Criminal Code do not exceed five years of imprisonment. Therefore this fast-track procedure can apply to those who have committed environmental criminal offences under Chapter IV of the Criminal Code. This requires, however, a policy report and the arrest of the alleged person that committed the environmental offence. This fast track procedure was designed for “in flagrante delicto” criminal offences and

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it is less likely to apply for environmental crimes relate to the infringement of the IPPC requirement because of the difficulty to prove them.

Transaction procedure in the Netherlands

In the Netherlands, the Public Prosecutor’s Office can offer a transaction to offenders, by which the payment of a fine is meant, in “simple” minor cases. The transaction serves as a penalty and avoids the need to go to court. In practice, this offer is often accepted, meaning that only a minority of cases in which the Public Prosecutor is involved actually reach the courts. If a company does not agree with the penalty and refuses the transaction, the case may be brought to the criminal court in first instance.

Plead-guilty procedure in France

The French legislator established in 2004 a “plead guilty” procedure which is applicable to persons who have committed a crime punishable by a fine or imprisonment for a time period not exceeding five years. The sanctions for the infringement of classified installations fall within the scope of this procedure (e.g. to operate a facility without authorisation can lead for individuals to a fine of up to Euros 75,000 and/or one year imprisonment).

Under this procedure the Public Prosecutor can directly propose without trial one or several penalties to a person (including legal persons) that admits the facts and the infringements. The imprisonment penalty proposed by the Public Prosecutor cannot be superior to one year and cannot exceed half of the time period of the one prescribed by law. S/he can also propose a suspension of enforcement. If the offender agrees on the proposal of the Public Prosecutor, this proposal shall be homologated by the President of the Tribunal the same day the proposal was issued. This homologation has the same effect than a judgement. Overall this procedure is much faster than the normal criminal procedure.

4.2.3. Public Access to Justice

Civil society, apart from its role in initiating enforcement procedures through complaints, plays a significant role in enforcement through litigation. The IPPC Directive itself through amendments introduced by Directive 2003/35/EC provides for access to justice to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of the Directive. However, while some Member States are granting a broad access to justice, others have a more limited approach.

Several procedural aspects are central to an effective access to justice allowing the public, including NGOs, to play their role as a watchdog to support enforcement. In particular, the Member States should ensure that:

 Legal standing for NGOs is not restricted e.g. through strict criteria or strictly interpreting the concept of interest  It is possible to obtain interim relief and interim measures

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 The cost of the procedure should not be an obstacle to public access to justice. These can be considerable if the fees are high and the ‘loser pays it all’ principle applies. Good practices include effective mechanisms to ensure legal aid.

Recent decisions of the Court of Justice of the European Union should be taken into account when considering possible improvements in public access to justice. These relate to the requirement to ensure locus standi for NGOs and to avoid excessive costs of proceedings.

Court of Justice of the European Union’s Decisions promoting public access to justice

In Germany, neither individuals nor non-governmental organisations are entitled to join the administrative criminal or the criminal procedure. Neighbours are entitled to challenge a permit for an IPPC installation if this installation violates their property rights or health. The Court of Justice of the European Union decided with judgement of 12 May 201123 that the national legislation regulating the standing of non-governmental organisations in court procedures infringes Directive 2003/35/EC and that, as a minimum, non-governmental organisations must have standing to enforce all national provisions based on European environmental legislation.

In another case, the Court has also ruled that national legislation should ensure that the cost of proceedings must not be prohibitively expensive.24 The Court upheld that this rule covers only the costs arising from participation in such procedures and does not prevent the courts from making an order for costs provided that the amount of those costs complies with that requirement. The Court added that “although it is common ground that the Irish courts may decline to order an unsuccessful party to pay the costs and can, in addition, order expenditure incurred by the unsuccessful party to be borne by the other party, that is merely a discretionary practice on the part of the courts”. The Court concluded that a mere practice was not sufficient, recalling that “the provisions of a directive must be implemented with unquestionable binding force and with the specificity, precision and clarity required in order to satisfy the need for legal certainty, which requires that, in the case of a directive intended to confer rights on individuals, the persons concerned must be enabled to ascertain the full extent of their rights”.

In the same case, the Court also recalled that “the mere availability, through publications or on the internet, of rules concerning access to administrative and judicial review procedures and the possibility of access to court decisions cannot be regarded as ensuring, in a sufficiently clear and precise manner, that the public concerned is in a position to be aware of its rights on access to justice in environmental matters.” It concluded that information on the rights offered to the public should be set in specific statutory or regulatory provision.

An example of broad access to justice can be found in Spain with the so-called “acción popular” procedure in case of criminal proceedings.

The “popular action” in Spain

In Spain, any person, whether or not offended by a criminal offence can lodge a complaint to the Judge of the Magistrate Court, the so called ‘popular action’ (acción popular)25. The Jurisprudence of the Supreme Tribunal (Tribunal Supremo) has interpreted these provisions in a

23 C-115/09, Trianel Kohlekraftwerk Lünen, judgment of 12 May 2011 24 C-427/07, Commission v. Ireland, judgement of 16 July 2009 25 Law of criminal procedure (Ley de Enjuiciamento Penal)

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way that not only natural persons can lodge this popular action but also legal persons, public institutions and organisms26.

In other words environmental NGOs are entitled to lodge a complaint to the judge of the Magistrate Court when they consider that an environmental criminal offence was committed.

In contrast, under the administrative procedure, the locus standi of NGOs is rather limited. Sanctions can be appealed before the administration itself and then to the Administrative Courts. The overall procedure is quite long and thus may lack of effectiveness (e.g. administrative court proceedings can last two or three years after the action was lodged). Environmental NGOs can challenge administrative sanctions (or their omissions) but they have to fulfil very strict criteria which limit their role in the procedure.

26 Sentencia Tribunal Supremo 79/99

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5. National guidance documents

We have already identified throughout the report different guidelines and guidance documents that have been developed by the seven selected Member States to support the different actors of the sanctioning procedure. It can be particularly useful to identify and disseminate principles and criteria, which could support the main actors involved in enforcement and sanctioning. For example, with regard to determining the level of sanctions, these can include the definition of aggravating and mitigating factors to assess the seriousness of the offence, such as defendant’s cooperation with the authorities, responsiveness to prior warnings or persistence of the offence, previous convictions for likely offences, the existence of a financial gain for the offender, etc. The following box recalls the key examples which have been identified in the seven countries studied.

Denmark

Environmental Protection Agency Guidelines

 Miljøstyrelsens vejledning nr 6/2005 om vejledning om håndhævelse af miljøbeskyttelsesloven. (Guidelines from the Environmental Protection Agency on enforcement of the Environmental Protection Act, No 6, 2005) http://www2.mst.dk/udgiv/publikationer/2005/87-7614-833-5/pdf/87-7614-834-3.pdf  Miljøstyrelsens vejledning nr 6/2006 on vejledning om miljøtilsyn med industrivirksomheder. (Guidelines from the Environmental Protection Agency on environmental inspections of industrial installations, No 6, 2006) http://www.mst.dk/Publikationer/Publikationer/2006/09/87-7052-241-3.htm  Miljøstyrelsens vejledning nr. 7/2005 om anvendelse af retssikkerhedsloven på miljøområdet (Guidelines from the Environmental Protection Agency on application of the Legal Protection Act in the field of environment, No 7, 2005) http://www2.mst.dk/udgiv/publikationer/2005/87-7614-835-1/pdf/87-7614-837-8.pdf  Notat – General vejledning i udfyldning af skema til brug for beretning om kommuernes miljø indsats i 2010 (Guidance Note on the use of reporting templates on environmental inspection etc for 2010) http://www.mst.dk/NR/rdonlyres/9F60847C-08EA-4EF5-823E- CAF87E2E8BE3/0/Indberetningsvejledning2010_Generelt.pdf

Instructions issued by the Director of public prosecution

 Rigsadvokatens meddelse nr. 8/2008 om behandlingen af miljøstraffesager. (Instructions from the Director of public prosecution concerning judicial procedures for environmental infringement (8/2008) http://www.rigsadvokaten.dk/media/RM_8-2008.pdf

Agreements and strategies for inspections

 Aftalen mellem fra 2005 om minimumsfrekvenser for samlede tilsyn (Agreement from July 2005 between the Minister for the Environment and the Local Government Association on minimum frequency for so-called comprehensive inspections with industrial installations) http://www.mst.dk/Virksomhed_og_myndighed/Industri/miljoetilsyn_brugerbetaling/regler_og_vej ledninger/minimumsfrekvenser/

France

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 Circulaire du 30/12/10 relative aux thèmes d’actions nationales de l’inspection des installations classées 2011, Ministère de l’Ecologie, du développement Durable, des Transports et du Logement (Circular of 30/12/2010 relating to the action themes of the national inspection for classified installations 2011, Ministry of Ecology, Sustainable Development, Transport and Housing) http://www.ineris.fr/aida/?q=consult_doc/navigation/2.250.190.28.8.13727/4/2.250.190.28.6.15  Circulaire du 03/08/07 relative aux installations classées - Arrêt du Conseil d'Etat du 9 juillet 2007 sur la procédure de mise en demeure, Ministère de l’Ecologie, du développement Durable, des Transports et du Logement (Circular of 03/08/2007 relating to classified installations – Decision of the State Council of 9 July 2007 on the procedure of letter of formal notice, Ministry of Ecology, Sustainable Development, Transport and Housing) http://www.ineris.fr/aida/?q=consult_doc/navigation/2.250.190.28.8.2689/5/2.250.190.28.6.2238  Circulaire n 98-72 du 18/06/98 relative aux installations classées pour la protection de l’environnement: Mise en demeure prévue par l’article 23 de la loi du 19/07/76 (Circular 98-78 of 18 June related to classified installations for the protection of the environment : letter of formal notice under Article 23 of the Law of 19 July 1976) http://www.ineris.fr/aida/?q=consult_doc/consultation/2.250.190.28.8.3399

Germany

Administrative Criminal Penalties

 The fine catalogue environment of North-Rhine Westphalia (Bußgeldkatalog Umwelt) by the Ministry for the Environment, Nature Conservation, Agriculture and Consumer Protection of North-Rhine Westphalia: http://www.kreisjaegerschaft-coesfeld.de/red/ges-bussgeldkatalog- umwelt-nrw-2010-02-27.pdf  North-Rhine Westphalia administrative regulation (Erlass) that regulates the cooperation between environment protection authorities and the public prosecution office available at: https://recht.nrw.de/lmi/owa/br_bes_text?anw_nr=1&gld_nr=3&ugl_nr=3214&bes_id=2601&val =2601&ver=7&sg=&aufgehoben=N&menu=1

The Netherlands

Administrative procedure

 Provincie Zeeland, Oog op Zeeland: Nota handhaving natuur en milieu, Directie Ruimte, Milieu en Water, 20 February 2007 (Province of Zeeland, Eye on Zeeland: Memorandum on the enforcement of nature and environment, Directorate Space management, Environment and Water, 20 February 2007) http://loket.zeeland.nl/informatiecentrum/publicaties/rapporten/handhaving_nm

Inspections

 Enforcement Strategy of the Region Haaglanden (The Hague and surroundings), November 2004.  Zo handhaven we in Brabant, actualisering handhavingsstrategie 2010 (This is how we enforce in Brabant, Inspection strategy of the province of North-Brabant, updated 2010) Hertogenbosch – Groningen, September 2010.

Criminal procedures

 Public Prosecution, Strategy Paper, Instruction on enforcement of environmental law

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(Openbaar Ministerie, Strategiedocument, Aanwijzing handhaving milieurecht, Den Haag, 2010), (2010A004). Published in Official Gazette (Staatscourant) 2010, nr. 2953, adopted on 15/02/2010, effective from 01/04/2010, available at www.om.nl. UK

Environment Agency Guidance

 Environmental Permitting Regulations Operational Risk Appraisal Scheme (Opra for EPR); Opra for EPR version 3.5, April 2010 http://publications.environment-agency.gov.uk/pdf/GEHO0410BSFA-e-e.pdf  Enforcement and Sanctions Guidance, 4 January 2011 http://publications.environment-agency.gov.uk/pdf/GEHO0910BSZL-E-E.pdf  Enforcement and Sanctions Statement, Version 1, 25 February 2011 http://publications.environment-agency.gov.uk/pdf/GEHO0910BSZJ-e-e.pdf  Offence Response Options (ORO) 4 January 2011 http://publications.environment-agency.gov.uk/pdf/GEHO0910BSZN-E-E.pdf  Regulatory Guidance Series No. 11, Enforcement powers http://www.environment- agency.gov.uk/static/documents/Business/RGN_No__11_Enforcement_powers.pdf

DEFRA guidance

 Civil sanctions for environmental offences, The Environmental Civil Sanctions Order & Regulations 2010, Guidance to regulators in England on how the civil sanctions should be applied, and draft guidance for Wales, January 2010, http://www.defra.gov.uk/environment/policy/enforcement/pdf/defra-wag-guidance.pdf

Other guidance

 The Enforcement Concordat, 1998 (currently under review) http://webarchive.nationalarchives.gov.uk/+/http://www.berr.gov.uk/files/file10150.pdf  Applying the Regulators’ Compliance Code and Enforcement Concordat, Local Better Regulation Office (LBRO) http://www.lbro.org.uk/docs/regulators-compliance-code.pdf  The Department for Business Innovation and Skills website http://www.bis.gov.uk/policies/better-regulation/improving-regulatory-delivery/implementing- principles-of-better-regulation/regulatory-enforcement-and-sanctions-bill  National Audit Office, Effective Inspection and enforcement: Implementing the Hampton vision in the Environment Agency, 1st March 2008 http://www.nao.org.uk/publications/0708/hampton_environment_agency.aspx  Regulators’ Compliance Code, Statutory Code of Practice for Regulators, Department for Business Enterprise and Regulatory Reform, 17 December 2007 http://www.berr.gov.uk/files/file45019.pdf  Regulatory Justice: Making Sanctions Effective, Final Report, Professor Richard Macrory, November 2006 http://www.bis.gov.uk/files/file44593.pdf  Reducing administrative burdens Effective Inspection and Enforcement, Philip Hampton , March 2005 http://hb.betterregulation.com/external/Hampton%20Report.pdf

The Courts Service, court procedure and sentencing guidelines

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 The Attorney General’s Guidelines on the acceptance of pleas and the prosecutor’s role in the sentencing exercise http://www.attorneygeneral.gov.uk/Publications/Documents/acceptance_of_pleas_guidance.doc.p df  The Code for Crown Prosecutors, February 2001 http://www.cps.gov.uk/publications/code_for_crown_prosecutors/  Magistrates Court Sentencing Guidelines: http://www.sentencingcouncil.org.uk/docs/web_sgc_magistrates_guidelines_including_update_1_ _2__3_web.pdf  Costing the Earth: guidance for sentencers, Magistrates Association, 2009 http://www.magistrates-association- temp.org.uk/dox/Costing%20the%20Earth%20for%20MA%20with%20cover.pdf

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Annex I - Detailed review of sanctions and procedures applicable to breaches of the legislation on industrial emissions in seven selected countries

Table of content

Annex I- Denmark...... 5

Annex II- France ...... 33

Annex III- Germany ...... 58

Annex IV- Hungary...... 86

Annex V- Spain...... 115

Annex VI- The Netherlands ...... 136

Annex VI- United Kingdom...... 166

Annex I- Denmark

Sanctions and procedures applicable to breaches of the legislation on industrial emissions in Denmark

Executive Summary

In the Danish legal system environmental acts are adopted by the Parliament and are supplemented by implementing ministerial orders. The Environmental Protection Act (EPA) is together with the Approval Order the main transposing legislation for Directive 2008/1/EC (IPPC Directive). The Environmental Protection contains the relevant offences and penalties. It is also the legal basis for the Ministerial Order transposing the more technical requirements of the Directive.

The Danish procedures applicable in case of breach of the IPPC Directive are set out in the Environmental Protection Act Chapters 5, 9 and 10 (the administrative procedures, e.g. injunctions and prohibitions – including closure to ensure compliance with legal rules, permits and decisions) and Chapter 13 (the criminal procedures). The criminal penalties include imprisonment and additional corporate fines in some circumstances. Some Ministerial Orders also contain provisions on criminal sanctions. These provisions specifically define which infringements of the requirements of the Act or Regulation shall lead to a criminal penalty. Those obligations that are enforced by Chapter 13 are listed in detail. Section 110(1) of the Environmental Protection Act27 lists nineteen specific offences referring to specific provisions of this Act.

The table below indicates briefly which of the enforceable provisions of the IPPC Directive are covered by penalties in Denmark. The category of administrative (quasi) criminal sanctions does not exist in Denmark, thus this column is left blank in the table below.

Table 1: Enforceable provisions covered by penalties in Denmark

Administrative measures and Administrative (quasi) Article Criminal sanctions sanctions criminal sanctions IPPC Directive Catch-all EPA Section 68-7028 EPA Section 110(1) –(11) EPA Section 70a-7229 Criminal Code Section 196 EPA Section 34(3)30 EPA Section 41c31 EPA Section 41- 41d32 4 - EPA Section 110(1)(6) 5 - EPA Section 110(1)(4) and (8) 6 - EPA Section 110(1)(8) and Approval Order Section 22(1)(2) and 22(2)-(3) 12 (1) - EPA Section 110(1)(8) and Approval Order Section 22(1)(2) and 22(2)-(3) 12 (2) - EPA Section 110(1)(6) 14 (a) - EPA Section 110(1)(4)

27 The main Danish legal framework related to the environment. 28 On injunctions and prohibitions (including closure to ensure compliance with legal rules, permits and decisions) as well as on the power to prescribe corrective measures, which are taken at the offender’s expense. 29 On the power to prescribe provision of information and sampling and own control including at the operator’s expense. 30 On refusing an environmental approval and grant special conditions. 31 On recalling a permit or amend conditions 32 On amending the permit/conditions through injunctions and prohibitions – including closure of installation in case of significant pollution, risk thereof including failure to ensure BAT.

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14 (b) - EPA Section 110(1)(4) and 110(1)(7) 14 (c) - EPA Section 110(1)(4) and 110(1)(7)

It is noted that the related Danish legal provisions apply to both natural and legal persons alike. The difference is, however, that further financial penalties may additionally apply to businesses.

The way in which the administrative and criminal sanctions are applied and the factors which regulators must take into account when deciding whether or not to prosecute is determined by various guidance documents, including Environment Agency’s guidelines on enforcement of the Environmental Protection Act and the Instructions from the Director of public prosecutions concerning judicial procedures for environmental infringement.

Examples of jurisprudence on the size of fines for e.g. failure to comply with the conditions set in the permit or mandatory emission limit values: The Supreme Court34 fined a company taking over a chemical installation under bankruptcy DKK 800,000 (about Euros 120,000) and 40 days imprisonment for its Director combined with a fine of DKK 300,000 (about Euros 40,000) for failure to comply with the conditions set in the permit following several injunctions on disposal of chemical waste. Another example is a ruling by the Eastern High Court35 where a County was fined DKK 500,000 (about Euros 65,000) for failure to comply with the mandatory emission limit values for a waste incineration plant and seizure of the saved amount of DKK 4 millions (about Euros 350,000).

The Danish legislation provides for the use of both administrative enforcement measures and criminal sanctions in conjunction. Regulatory guidance advises the use of either and/or both where it is considered proportionate under the circumstances. Interviews with experts at the Danish Environmental Protection Agency, case law and the case studies reviewed suggest that whilst the range of administrative and criminal sanctions available as a rule are sufficient to ensure that effective and dissuasive penalties can be imposed in case of infringement of IPPC requirements, their application may be enhanced in some cases.

33 The decentralised units of the EPA were until 31 December 2010 called Environment Centres. The organisational change, which took effect the 1 January 2011, did not entail any changes with regard to competences for permitting and enforcement. 34 Supreme Court ruling as reported in U2001.2045H. 35 As reported in MAD 2000 334Ø.

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1. Applicable sanctions

The Danish procedures applicable in case of breach of the IPPC Directive are set out in the Environmental Protection Act Chapters 5 and 9 (the administrative procedures) and Chapter 13 (the criminal procedures).

The Environmental Protection Act provides for two types of administrative procedures:

1) Preventive and remedial measures, e.g. the administrative sanctions that the supervisory authority has at its disposal to prevent that negative impact on the environment occurs as a result of future operating conditions. Such measures relates to the possibility of refusing an environmental approval and granting special conditions where the responsible persons have lost their so-called ‘environmental responsibility’ pursuant to Section 40a – e.g. physical or legal persons convicted pursuant to the Criminal Act Section 196, the Environmental protection Act Section 110(2) or similar provisions issued pursuant to this Act as well as Environmental Protection Act Section 41 – 41d the power to issue injunctions and prohibitions – including closure of the installation in case of significant pollution and risk thereof, including failure to ensure BAT. All these measures apply only when the operators have lost their environmental responsibility.

2) Enforcement measures to ensure compliance with inter alia legal rules, permits and decisions. The Environmental Protection Act gives to the competent authority the power to serve orders, injunctions and prohibitions, to ensure compliance with legal rules, permits and decisions (EPA Section 65 – 73, in particular Section 68 – 69). It may also prescribe corrective measures, which are taken at the offender’s expense. The competent authority shall report certain infringements to the public prosecution authorities.

The main enforcement measure to ensure compliance is an ‘order’36 by which an installation is required to rectify an instance of non-compliance, e.g. comply with permit requirements and permit conditions, inculcate environmental compliance of a previously notified condition and/or decision. The competent authority shall also at the same time notify that the instance(s) of non- compliance will be reported to the police/ public prosecutor if it is not rectified. The order may be supplemented by: ‘injunctions or prohibitions’, e.g. to restore the original situation or prohibit continued operation and, where required, order the closure of the facility and/or so-called ‘self- help actions’: prescription of corrective measures, which are taken at the offender’s expense. The competent authority shall also in certain instances report the infringements to the public prosecution authorities. The administrative procedure is initiated once an infringement is identified as described below in Section 2.

Chapter 13 of the Environmental Protection Act sets criminal penalties that include imprisonment and additional corporate fines in some circumstances. Some Ministerial Orders also contain provisions on criminal sanctions. These provisions specifically define which infringements of the requirements of the Act or Regulation shall lead to a criminal penalty. Those obligations that are enforced by Chapter 13 are listed in detail. Section 110(1) of the Environmental Protection Act37 lists nineteen specific offences referring to particular provisions of this Act.

The Environmental Protection Act provides for the principle of proportionality with regard to administrative enforcement measures, which should not be more intrusive than necessary in individual cases and take into account the circumstances of each particular situation e.g. the risk and type of negative impact on the environment.

36 In Danish the term is ‘indskærpelse’. 37 Main Danish legal framework related to the environment.

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Offences are often divided between ‘offences’ and ‘serious offences’. For instance serious offences are characterised when an offender acted deliberately or by gross negligence if the infringement resulted in damage to the environment or risk of damage or achieved or intended economic advantages.

The Criminal Code also sets up offences and corresponding penalties and sanctions. The provisions of the Criminal Code have precedence if the sanctions it lays down are equal or more severe than those established by the Environmental Code.

It is noted that the related Danish legal provisions apply to both natural and legal persons alike. The difference is, however, that further financial penalties may additionally apply to businesses.

Table 2 below indicates the types of offences and related administrative and criminal penalties in Denmark for each of the key enforceable obligations under the IPPC Directive.

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Table 2: Directive 2008/1/EC (IPPC Directive): types of offences and related administrative and criminal penalties in Denmark

Administrative Criminal Offences Penalties Offences Penalties Obligation to No new installation (listed in the Orders, injunctions and prohibitions. Establish, commence or The fines are determined by the Courts as part of the apply for a permit Regulation issued pursuant to Environmental protection Act Section 69 operate an installation without criminal case and the Acts do not set any maximum for new or Section 35 – Annex I of the IPPC a permit from the relevant amount or range. existing Directive) may be operated without a authority. installations permit issued in accordance with this Environmental protection Recommended minimum fines 50,000 Act. Installations must not be Act Section 110(1)(6) (approximately Euros 2,700). extended or changed structurally or operationally before extension or Serious offence Seizure of the net profit. change is approved. Environmental protection Act It is a serious criminal offence Examples: Ruling by the Eastern High Court (ØLD Section 33 and Approval Order where done intentionally or 1991-11-16) a company fined DKK 300,000 (Euros Section 2 through gross negligence and 4,500) for disposal of 21 tons of soil containing if the violation is harmful for heavy metals without the mandatory permit. Seizure the environment or provides of DKK 1,2 million (Euros 161,000). economic advantage to the operator. Serious offence Chapter 13 Section 110(6) of the Environmental Imprisonment up to two years. (This underlines the Protection Act read in legislator’s desire for severe penalties for conjunction with Chapter 13 environmental offences, including a significant Section 110 paragraph (2) of increase of the fines.) this Act Legal persons

The Danish penalties provisions apply to both natural and legal persons alike.

Pursuant to the Environmental Protection Act Section 110 (4), legal persons may be imposed sanctions pursuant to the fifth Chapter of the Criminal Act.

Furthermore the Criminal Code provides for imprisonment of up to 6 years for the violations of the environment legislation under aggravating circumstances.

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Administrative Criminal Offences Penalties Offences Penalties Obligation to Failure to supply information for Refusal of granting a permit. Failure to apply for a permit Ibid for the types of penalties. supply application for permits. in accordance with Rules information for Environmental Protection Act It basically rests with the applicant on his own issued pursuant to Section 7 It has not been possible to find any jurisprudence on application for Section 35, paragraph 2, Section 39 initiative to provide the approving authority with of this Act or failure to apply the size of the fines for failure to supply information permits and the Approval Order Section 7 the necessary information. In case of failure to do including supply information for application of permits. so, the authority may specify what additional for application for permits information must be provided and set a deadline. pursuant to Section 39 of this In case of repeated failure to submit the Act. requested information, the procedural detrimental Environmental protection effect occurs, namely that the approving Act Section 110(1)(8)) and authority must consider the application as Approval Order Section annulled. For existing installations which are 22(1)(2) required to obtain a permit pursuant to § 39, the information may be sought through an injunction issued pursuant to Section 72. According to Section 39, paragraph. 2, the approving authority can, if necessary, prohibit the continued use of unapproved parts of the company if the installation fails to meet the statutory deadlines for submission of information. Examples of administrative practice have been published in MAD (Environmental Rulings and jurisprudence) e.g. MAD 2000/1073 in which a permit of an existing company was lifted by the Environmental Protection Agency and the matter remitted for reconsideration, since no measurements for assessment of its noise ratio had been submitted. Another example is MAD 2009/349 in which the Environmental Board of Appeal refused an application as it did not contain the information required for in the Approval Order (Annex 5).

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Administrative Criminal Offences Penalties Offences Penalties Obligation to Failure to notify the competent Order, injunctions and prohibitions. The installation is extended/ Ibid. notify the authority of any changes in the Environmental protection Act Section 69 changed structurally or competent operation of an installation. operationally in a way that Recommended level of fines for failure to notify the authority of any increases pollution without competent authority of any changes in the operation changes in the Installations must not be extended or approval of the relevant of an installation, a fine of at least DKK 10,000 operation of an changed structurally or operationally competent authority. (approximately Euros 1,350) is recommended. For installation before extension or change is the second time there is a violation of Section 110 approved. This is a serious criminal paragraph 1, there should generally be a doubling of Environmental protection Act offence where done the indicative level of fines. Section 33 and Approval Order intentionally or through gross Section 2 negligence and if the violation No recent examples of jurisprudence on the size of is harmful for the fines for this type of offences. The jurisprudence environment or provides does not reflect the more severe fines for violations economic advantage to the of the IPPC requirements since 2008. operator. Chapter 13 Section 110(6) of the Environmental Protection Act read in conjunction with Chapter 13 Section 110 paragraph (2) of this Act

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Administrative Criminal Offences Penalties Offences Penalties Obligation to Failure to comply with the conditions Order, injunctions and prohibitions. Failure to comply with Ibid. comply with the set in the permit or mandatory Environmental protection Act Section 69 injunction or prohibition conditions set in ELV’s. issued pursuant to this Act. Recommended level of fines for failure to comply the permit or Environmental protection Act Environmental Protection with or to contravene an environmental permit, a fine mandatory ELV’s Section 34 and Approval Order Act Section 110(1)(2) of at least DKK 10,000 (approximately Euros 1,350) Section 14 is recommended. For the second time there is a Failure to comply with the violation of Section 110 paragraph 1, there should condition of a permit or generally be a doubling of the indicative level of conditions laid down pursuant fines. to this Act or to rules issued in pursuance thereof. Examples of jurisprudence on the size of fines: Environmental Protection Supreme Court ruling U2001.2045H according to Act Section 110(1)(4) which a company taking over a chemical installation under bankruptcy was fined DKK 800,000 (approximately Euros 120,000) and 40 days of imprisonment for its Director combined with a fine of DKK 300,000 (approximately Euros 40,000) for failure to comply with the conditions set in the permit following several injunctions on disposal of chemical waste. Another example is a ruling by the Eastern High Court where a County was fined DKK 500,000 (approximately Euros 65,000) for failure to comply with the mandatory ELV’s for a waste incineration plant and seizure of the saved amount of DKK 4 million (approximately Euros 350,000).

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2. Administrative procedure

2.1 General elements on the legal tradition and potential evolution

In 1997 new legislation was introduced with a view to improve enforcement of environmental legislation (the so-called enforcement package). The legislation is intended both to prevent against repeated violations and to provide for more severe sanctions for violations of environment law.

As indicated above, the Environmental Protection Act provides for two types of administrative procedures:

 In case of a new permit, the possibility of refusing an environmental approval and grant special conditions (requiring a financial guarantee) pursuant to EPA Section 34(3), in circumstances where the responsible persons have lost their so-called environmental responsibility pursuant to Section 40a. EPA Section 40a contains an exhaustive list of circumstances when a person or company may lose its environmental responsibility. It includes situations where the person has lost the right to operate the polluting company, or the individual or the corporation is convicted of more serious environmental crimes or failed to pay a major debt to the Authority under so-called self-help action (corrective measures, which are taken at the offender’s expense) – e.g. physical or legal persons convicted pursuant to the Criminal Act Section 196, the Environmental protection Act Section 110(2) or similar provisions issued pursuant to this Act. In accordance with Section 40b of the EPA, the Environmental Protection Agency established an Environmental Responsibility Register in which the supervisory authority can access information on whether individuals or corporations have lost their environmental responsibility.  In case of an existing permit, the possibility of imposing more stringent permit conditions by requiring a financial guarantee or completely revoke an environmental permit pursuant to EPA Sections 41d and 39a. The supervisory authority may in order to prevent repeated violations of environmental legislation (same types or same company or group of persons), use the fact that a company or a person has lost its environmental responsibility to impose more stringent permit conditions or completely revoke an environmental permit.  The power to issue injunctions and prohibitions – including closure of installation in case of significant pollution and risk thereof, including failure to ensure BAT (EPA Section 41 – 41c). It should be noted that Section 41 to 41d does not apply in case on non- compliance.

2) Enforcement measures to ensure compliance with inter alia legal rules, permits and decisions. The Environmental Protection Act gives to the competent authority the power to serve orders, injunctions and prohibitions, to ensure compliance with legal rules, permits and decisions (EPA Section 65 – 73, in particular Section 68 – 70). It may also prescribe corrective measures, which are taken at the offender’s expense. The competent authority shall also in certain instances report the infringements to the public prosecution authorities.

No administrative fines are provided for. 2.2 Inspections

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2.2.1 General information

Permitting and control functions, including inspections are primarily exercised by the municipalities. However the decentralised units of the Environmental Protection Agency (EPA) of which there are three (EPA Aarhus, Odense and Roskilde), 38 are permitting and supervisory authority for many of the larger and/or most polluting installations, approximately 260 installations e.g. those marked with an ‘s’ in Annex I to the Approval Order. For example combustion installations with a rated thermal input exceeding 50 MW, chemical installations for the production of basic organic and inorganic chemicals, industrial plants for the production of paper and card board with a production exceeding 20 tonnes per day and slaughterhouse with a carcase production capacity greater than 50 tonnes per day.

Pursuant to the Environmental Protection Act Section 65 and 66, the supervisory authority (the municipalities or the decentralised EPA units) shall exercise a function of general supervision to ensure that the Environmental Protection Act and the rules laid down by this Act are complied with. To this end the supervisory authority shall assess whether current conditions and permits are sufficient under the applicable law and to assess whether there is a need to prescribe new conditions or to revise existing ones.

The supervisory authority shall also ensure that injunctions and prohibitions are met and that conditions laid down in the permits are observed. Pursuant to the Environmental Protection Act Section 68 the supervisory authority must ensure that instances of non-compliance are brought in compliance unless the instance is of secondary importance, i.e. trifle offence. The administrative sanctions are set out in Section 69 (orders, injunctions and prohibitions – including closure to ensure compliance with legal rules, permits and decisions as well as power to prescribe corrective measures, which are taken at the offender’s expense).

Minimum frequency for so-called comprehensive inspections of industrial installations has been set by an agreement from July 2005 between the Minister for the Environment and the Local Government Association (the interest group and member authority of Danish municipalities) with effect from 1st January 2005. It replaces an agreement from 1996. Comprehensive inspection is understood as a review of all environmental consideration of an installation or enterprise. According to the minimum frequency agreement all installations listed in Annex I to the IPPC Directive must have undergone a comprehensive inspection at least within the last 3-year period. The Environmental Protection Agency’s Guidelines No. 6 of2006 on Environmental Inspection of industrial installations, contains checklists for the supervisory authority, including on comprehensive inspection. The checklists consist of an indicative list of environmental parameters.

38 The decentralised units of the EPA were until 31 December 2010 called Environment Centres. The organisational change, which took effect the 1 January 2011, did not entail any changes with regard to competences for permitting and enforcement. 39http://www.mst.dk/Virksomhed_og_myndighed/Industri/miljoetilsyn_brugerbetaling/kommunernes_tilsyn/Kommunernes_i ndsats/

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General information on inspection, e.g. the competent bodies, the ratio number of inspectors/number of installations, is reported by the Danish Ministry of Environment in annual reports on inter alia permits for installations governed by Annex I to the IPPC Directive and supervision of these installations. The most recent report ‘Environmental Inspection 2009’ was published in May 2011. The report gives details on the activities of the municipalities, Environmental Centres40 and the Environment Agency in relation to permitting and inspections of enterprises and agricultural facilities. Installations governed by Annex I to the IPPC Directive are reported under a specific heading. It reports inter alia, the ratio number of inspectors/number of installations, the costs related to inspection and supervision, compliance with minimum frequency for supervision and enforcement of environmental legislation, as set out in the agreement with the Minister for the Environment and the Local Government Association (the interest group and member authority of Danish municipalities), mentioned above. ‘Environmental Inspection 2009’ has been prepared on the basis of annual reports from municipalities and the Environment Centres. All municipal reports are published on www.tilsynsdatabasen.dk.

2.2.2. Key elements of the inspection procedure

The Environmental Protection Agency has issued several guidelines including on key elements of the inspection procedure. They are only available in Danish. The most relevant ones are:

 Guidelines from the Environmental Protection Agency on environmental inspections of industrial installations, No 6, 2006.  Guidelines from the Environmental Protection Agency on enforcement of the Environmental Protection Act, No 6, 2005.

The guidelines on environmental inspections of industrial installations41 provide practical instructions for planning, implementation and follow-up of environmental inspections of industrial installations both in terms of the controlling supervision as preventive monitoring work. It is based on practical experience, just as the text is reinforced with examples from environmental administrations. Guidance is thus provided on seven specific aspects of inspections each addressed in individual chapters. The guidelines provide guidance on preparation of the inspection, including collection of information, material and equipment needed, checklists and approaches to inspection.

Practical instructions for the implementation of environmental inspections of industrial installations distinguish between the following types and/or flow of inspections: a) dialogue based inspection; b) inspection taking into account the categorisation of the installation; c) BAT and preventive inspection; d) thematic inspection; e) inspection based on complaint from third party; f) control with the operators’ self-monitoring; g) inspection in teams and h) inspections following an accident. The guidelines also outline the specific reporting requirements following inspections and other relevant follow-up activities. The guidelines further set criteria for prioritising between the types of inspections described above and describes the overall framework for drawing up inspection plan(s) based on which the inspectors are deciding on the installation to be controlled ex-officio. Check lists and specific examples of e.g. inspection report, inspection plans are given in the annexes to the guidelines.

The guidelines on enforcement of the Environmental Protection Act42 provide practical guidance to the supervisory authorities on the application of administrative sanctions, including preventive and

40 As indicated above, with organisational changes in the Ministry of Environment taking effect as of 1 January 2011, the Environment Centres changed name to the decentralised units of the EPA (EPA Aarhus, Odense and Roskilde). 41 It is available on the web site of the Danish EPA. http://www.mst.dk/Publikationer/Publikationer/2006/09/87-7052-241- 3.htm. The title in Danish is ‘Miljøstyrelsens vejledning nr 6/2006 on vejledning om miljøtilsyn med industrivirksomheder’. 42 It is available on the web site of the Danish EPA. http://www2.mst.dk/udgiv/publikationer/2005/87-7614-833-5/pdf/87- 7614-834-3.pdf The title in Danish is ‘Miljøstyrelsens vejledning nr 6/2005 om vejledning om håndhævelse af miljøbeskyttelsesloven ’.

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remedial measures available to the supervisory authority to prevent that negative impact on the environment occurs as a result of future operating conditions and enforcement measures to ensure compliance with inter alia legal rules, permits and decisions. It contains some specific examples of injunctions and prohibitions which can be used as templates. The guidelines further specify cases where the supervisory authority shall report an infringement to the public prosecutors. It also provides directions for cooperation between the environmental authorities and the police/public prosecutors in the cause of criminal proceedings. The guidelines are described further under section 2.2.3 concerning the inspector’s enforcement powers.

The environmental inspections and enforcement guidelines are supplemented with a set of Guidelines from the Environmental Protection Agency on the application of the Legal Protection Act in the field of environment, No 7, 200543.

Specifically concerning the competencies and obligations of inspectors

Inspections e.g. in the form of on-site visit to installations require as a rule prior notification to the operators (in writing 14 days prior to an inspection) including information such as the purpose of inspection and the visit time and place (Section 5 of the Legal Protection Act). Such prior notification is only required if the inspection involves access to buildings or documents. The notification allows the company to prepare itself, including finding relevant documents and allocate the necessary time and make sure that its appropriate representatives will be present. Moreover notification prior to the inspection is seen as the best basis for a good dialogue with the business.

The requirement for prior notification of inspections may be waived, if it would forfeit the purpose of the inspection. The decisive factor should be whether or not a prior notified inspection would allow inspection of the installation under normal operating conditions. Inspections should at least be conducted un-notified, if the inspectors suspect that irregularities can be corrected or will be hidden in the period leading up to the notified inspection visits, but otherwise will be continued after the visit. See also Section 2.2 in the Guidelines from the Environmental Protection Agency on application of the Legal Protection Act in the field of environment, No 7, 2005.

In case of un-notified inspection, the supervisory authority must bring a letter of notification at the inspection (including visit), explaining why the inspection was not notified prior to the visit.

The supervisory authorities have in accordance with Section 87(1) of the Environmental Protection Act, access to all areas of the industrial installation and/company. If they are refused access, they can under police protection if necessary obtain access. As a general rule, no warrant is required.

It follows from the Environmental Protection Act Sections 65, 66 and 68 that the supervisory authority shall maintain an active control, including undertaking concrete inspection and investigations, when:  A decision – e.g. an order, injunction or prohibition –requires this.  Received complaints or other notifications are not clearly unfounded.  There is a substantiated suspicion of non-compliance and/or illegal conduct pursuant to Section 68. Obligations of the operator

It follows from Section 87(3) of the Environmental Protection Act that the operator and his employees shall provide the supervisory authority with all necessary assistance to enable them to carry out the inspections within the installation, including to take samples and to gather any information necessary

43 It is available on the web site of the Danish EPA. ) http://www2.mst.dk/udgiv/publikationer/2005/87-7614-835-1/pdf/87- 7614-837-8.pdf The title in Danish is ‘Miljøstyrelsens vejledning nr. 7/2005 om anvendelse af retssikkerhedsloven på miljøområdet’.

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for the performance of their duties. As indicated above, the supervisory authorities have in accordance with Section 87(1) of the Environmental Protection Act, access to all areas of the industrial installation/company. Criminal sanctions may be imposed pursuant to Section 110(1)(9), in cases where the operator opposes to the supervisory authority’s access to the installation. General description of the procedure including any procedural steps before the issuing of a sanction by an administrative authority

A quality management system has been developed to ensure consistency in inspections. It is available at the web site of the Danish Ministry of Environment.44 According to this system, the following steps are to be undertaken by the inspector during physical inspection (visit at the installation) before the possible issuing of a sanction by the supervisory authority:

 Check extent to what the installation/company complies with the conditions set out in the environmental permits, discharge permits, wastewater permits, injunctions, and where relevant, environmental technical descriptions as well as the Environmental Protection Act and related Ministerial Orders.  Record whether the actual physical conditions and activities at the company are consistent with the data, the municipality is in possession of.  The industrial installation/company must be offered a voluntary dialogue with a view to preventing environmental problems and promoting clean technologies and environmentally friendly behaviour.  Any administrative and/or criminal sanctions need to be communicated orally. The operator must be informed that the inspection report will contain the same enforcement action(s).

The inspection must be planned, implemented and followed-up in accordance with applicable Guidelines on inspection and enforcement of industrial installations etc.

2.2.3 The inspectors’ enforcing powers

As indicated above, it follows from Sections 69 to 72 of the Environmental Protection Act and the guidelines from the Environmental Protection Agency on enforcement of the Environmental Protection Act, No 6, 2005, that the following measures can be taken by the inspector in case infringement of permit-related obligations and/or risk to public health or to the environment, in the following order: - Recommend that instances of non-compliance are brought to an end and at the same time to inform about the possible consequences (injunctions or prohibitions) if this does not happen - Serve an order: by which an installation is ordered to rectify an instance of non-compliance, e.g. comply with permit requirements and permit conditions, inculcate environmental compliance of a previously notified condition and/or decision, including notify that the instance(s) of non-compliance will be reported to the police/ public prosecutor if it is not rectified - Send notice of injunction or prohibition, e.g. to restore the original situation or prohibit continued operation and, where required, order the closure of the facility - Convey an oral injunction - where immediate action is necessary - Perform self-help action, prescribe corrective measures, which are taken at the offender’s expense - Report the infringements to the public prosecution authorities

44 See http://www.mim.dk/ministeriet/Lovstof/Kvalitetsstyring/Miljoeprocedurer/M7.htm.

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The aim of serving an order and, if relevant, issue an injunction or prohibition would be to: 1. stop offending (with the aim of stopping an illegal activity from continuing/occurring) 2. restore and/or remediate (with the aim of mitigating environmental harm or damage that has already occurred) 3. bring under regulatory control (with the aim of bringing an illegal activity into compliance with the law)

Chapter 10 of the Environmental Protection Act in particular Section 74 contains provisions on the form in which administrative sanction shall be communicated to the addressee and others as relevant.

It follows from Section 68 and 69 of the Environmental Protection Act that the supervisory authority shall report the infringement to the public prosecutors in case the administrative sanction have not resulted in an illegal activity being brought under regulatory control. According to the Guidelines on enforcement of the Environmental Protection Act, certain types of infringement would require that the supervisory authority should report the infringement to the police although the administrative sanction has resulted in the illegal activity being brought into compliance with the law. This would be the case where a new IPPC installation is operated without the required permit or and typically in cases where offender acted deliberately or by gross negligence and the infringement resulted in a damage to the environment or risk of a damage, or actual or intended economic advantages.

An overview on the number of initiated and finished procedures in Denmark IPPC facilities is provided in the tables below.

Table 2.1 Overview of municipal enforcement reactions in relation to IPPC facilities Year Number of Warnings/ Orders Injunctions Prohibitions Reports to facilities recommendations public (non-binding) prosecutors 2007 372 35 53 6 3 1

2008 308 40 56 11 0 2

2009 283 23 60 7 0 3

Table 2.2 Overview of EPA (decentralised units) enforcement reactions in relation to IPPC facilities Year Number of Warnings/ Orders Injunctions Prohibitions Reports to facilities recommendations public (non binding) prosecutors 2007 379 131 42 1 0 1

2008 393 70 45 12 0 1

2009 396 57 117 37 3 2

Source: interview with the Danish EPA –Aarhus

These figures show that the number of orders has increased over the years in comparison to the warnings/recommendations. In 2009, they represent by large the most commonly used type of measure. The number of reports to public prosecutors is rather limited, indicating that criminal procedures are the exception, which may suggest that the administrative sanctions are effective.

2.3 Appeal against the administrative decision

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Enforcement measures, e.g. an order, injunction or prohibition served pursuant to Section 69 of the Environmental Protection Act e.g. to stop an illegal activity from continuing/occurring, mitigating environmental harm or damage that has already occurred or bringing an illegal activity into compliance with the law cannot be appealed by the operator or by any other person. This follows from Section 69(3) of the Environmental Protection Act.

Preventive measures, including injunctions e.g. to reduce pollution or risk of pollution from an installation pursuant to the Environmental Protection Act Section 41 and 42 can be appealed pursuant to Environmental Protection Act Section 91 to the Environmental Appeal Board by the person (natural or legal) on whom the injunction is served. Pursuant to Section 93, the time limit for making an appeal is not later than for weeks. Pursuant to Section 74, a decision on the injunction (preventive) must contain the necessary appeal guidelines as set out in Section 77.

Under Section 95 appeals against injunctions have suspensive effect unless the appeal – or competent - authority decides otherwise.

3. Judicial procedure (if relevant - with a focus on criminal sanctions)

3.1 General information

Criminal offences relevant to the IPPC Directive are set out in Section 110 to 110b of the Environmental Protection Act. The criminal penalties include imprisonment and additional corporate fines in some circumstances. The Criminal Code also sets up offences and corresponding penalties and sanctions. The provisions of the Criminal Code have precedence if the sanctions it lays down are equal or more severe than those established by the Environmental Code.

As with administrative sanctions, the way in which these provisions are applied and the factors which regulators must take into account when deciding whether or not to prosecute is determined by various guidance documents, including Environment Agency’s guidelines on enforcement of the Environmental Protection Act and the Instructions from the Director of public prosecutions concerning judicial procedures for environmental infringement.45

3.1.1 Criminal offences

Section 110 of the Environmental Protection Act specifies, as described above in Section 1, Table 2, a range of criminal offences for non-compliance with the Act or legislation issued based on the Act. The most relevant offences to the IPPC Directive are:

 Failure to comply with an injunction or prohibition issued pursuant to this Act (Environmental Protection Act Section 110(1)(2));  Establish, commence or operate an installation without a permit pursuant to Section 33 from the relevant authority (Environmental Protection Act Section 110(1)(6));  Failure to comply with or to contravene an environmental permit condition (Environmental Protection Act Section 110(1)(4));  Failure to submit information or test results pursuant to Section 71 (1) or Section 7246 (Environmental Protection Act Section 110(1)(7));

45 Rigsadvokatens meddelse nr. 8/2008 om behandlingen af miljøstraffesager. Only available in Danish see http://www.rigsadvokaten.dk/media/RM_8-2008.pdf; 46 Section 71(1) is about notification in case of interruption of operation or accidents resulting in substantial pollution or risks of pollution. Section 72 concerns provision of information upon request from the municipality or the EPA which are relevant for assessing the pollution or risks of pollution.

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 Failure to apply for a permit in accordance with Rules issued pursuant to Section 7 of this Act or failure to apply pursuant to Section 39 of this Act (Environmental Protection Act Section 110(1)(8));  Prevent the authorities to access the premises as required by Section 87 (Environmental Protection Act Section 110(1)(9));  Failure to comply with the permitting – or supervisory authority’s decision for provision of a financial guarantee pursuant to Section 39a (Environmental Protection Act Section 110(1)(4) and (14).

3.1.2 Additional (miscellaneous) criminal offences and related measures

 Failure to prevent an imminent threat of pollution or prevent further discharge of pollutants pursuant to Section 71(2) (Environmental protection Act Section 110(1)(17));  Failure to implement the necessary preventive measures against an imminent threat of environmental damage or all practicable measures to minimise environmental damage and prevent further environmental damage, pursuant to Section 73c (Environmental Protection Act Section 110(1)(18)).

Furthermore the Criminal Code provides for imprisonment of up to 6 years for violations of the environment legislation under aggravating circumstances which result in:  significant pollution of air, water, soil  significant harm to the environment due to disposal of waste.

3.1.3 Criminal sanctions

Pursuant to Section 110(4) of the Environmental Protection Act, criminal sanctions are not restricted to the operator, but may be brought against any person (natural or legal) who commits an offence. The Danish criminal sanctions applicable in case of breach of the legislation transposing the IPPC Directive are set out in the Environmental Protection Act Section 110 and 110b. The Criminal Code also sets up offences and corresponding penalties and sanctions. The provisions of the Criminal Code have precedence if the sanctions it lays down are equal or more severe than those established by the Environmental Code.

The criminal penalties include: 1. Fines including corporate fines in some circumstances (Environmental Protection Act Section 110(1)). 2. Imprisonment for ‘serious offences’. For instance serious offences are characterised when an offender acted deliberately or by gross negligence if the infringement resulted in damage to the environment or risk of damage, or actual or intended economic advantages (Environmental Protection Act Section 110(2)). 3. Seizure/confiscation of any profits earned (Section 110(5) of the Environmental Protection Act) 4. Default fines/daily penalty.

Pursuant to Environmental Protection Act Section 110b, the right to carry on an activity covered by Chapter 5 can be revoked by a court order, where a person: 1) has been convicted for violation of Section 196 of the Criminal Code or 2) repeatedly or under otherwise aggravating circumstances have (i) violated the provisions of the Environmental Protection Act or regulations issued pursuant thereto, (ii) failed to comply with any prohibition or injunction issued on the basis of the Environmental Protection Act or regulations issued pursuant thereto or

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(iii) disregarded permit condition(s) approval issued on the basis of the Environmental Protection Act or regulations issued pursuant to this Act.

The criminal sanctions applied have been assessed on a systematic basis by the Danish Environmental Protection Agency, most recently in a study carried out for the Agency in 2005.47 The study was initiated to analyse a number of criminal cases48 on nature conservation, environmental protection and planning legislation with a view to assessing the degree to which the processing of cases and sanctions are satisfactory. The primary objectives of the study were to ascertain whether: - the level of fines is uniform, and possibly whether these are equivalent to sanctions in other comparable areas e.g. infringements of the working environment legislation - the provisions in environmental legislation that include the possibility of more severe sentences for serious cases are used when it is possible to do so, e.g. Section 110(2) of the Environmental Protection Act - confiscation is used to an appropriate degree and whether profits earned or sought are taken into account when setting fines, e.g. Section 110(5) of the Environmental Protection Act - default fines are used to a sufficient degree and in a uniform manner.

The study concluded inter alia that level of fines within the environmental protection area are characterised by the fact that there is no trace of the large fines that have formerly been imposed in the most serious cases. The largest fine in the material is DKK 150,000 (approximately Euros 20,000). According to the author, there are no cases in the material which ought to have resulted in a significantly higher fine than DKK 150,000. Either the infringements that formerly resulted in large fines do not occur, or the environment authorities do not report them. In general, the fines in the less serious cases are small. This includes cases against both private individuals and against a number of commercial enterprises who have also been sentenced to pay fines of a few thousand Danish kroner (approximately Euros 1,000).49

Following the study, the Environmental Protection Act was amended to increase the level of fines.

The amendment,50 which came into force on 1 April 2008, inter alia, introduced a provision on the factors which must be taken into account when deciding the size of the fine, namely the objectives of the Environmental Protection Act as set out in Section 1 and the fact that the offence is committed in connection with the exercise of a profession should be considered as an aggravating circumstance. The purpose of the amendment was to implement a stricter level of fines in less serious cases of violation of the Environmental Protection Act. With this aim in view, the comments to the Act amending the Environmental Protection Act indicate a number of recommended minimum sizes of the fines, including for the following violations of the IPPC related obligations:

 Establish, commence or operate an installation without a permit pursuant to Section 33 from the relevant authority, a fine level of at least DKK 50,000 (approximately Euros 2,700) is recommended  Failure to comply with or to contravene an environmental permit, a fine of at least a DKK 10,000 (approximately Euros 1,350) is recommended.

47 Report from the Danish Environmental Protection Agency 20/2005. Assessing the application of criminal sanctions in criminal cases in the field of nature conservation, environmental protection and planning legislation. (Arbejdsrapport fra Miljøstyrelsen, 20/2005. Undersøgelse af anvendelse af sanktioner m.v. i straffesager på natur-,miljø- og planområdet) http://www2.mst.dk/Udgiv/publikationer/2005/87-7614-831-9/pdf/87-7614-832-7.pdf 48 A total of 133 criminal cases on infringements of environmental legislation and 112 cases on infringements of planning legislation and nature conservation legislation were analysed. All cases were completed in 2003 and 2004 and resulted in court rulings, agreement to pay a fine in court or to the police. 49 See p. 11 of the Study of which a summary in English is available at the web site of the Danish EPA: http://www2.mst.dk/Udgiv/publikationer/2005/87-7614-831-9/pdf/87-7614-832-7.pdf 50 See L2008 173 FT 2007-08 (2.samling): 283,1857, 2024; A9; B133

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The second time there is a violation of Section 110(1), there should generally be a doubling of the indicative level of fines. The comment to the amendment comments that it remains the Courts, which ultimately determine what penalty should be decided for any violation of law.

3.1.4 Criminal procedure

The Instructions from the Director of public prosecutions concerning judicial procedures for environmental infringement cases 51 contains instruction for the police and prosecutor's investigation, prosecution, submission of infringement cases for the State Prosecutor, the Danish Environmental Protection Agency and cooperation with other environmental authorities, including during trial. In these Instructions, the existing directives for the criminal procedure for violation of the environmental legislation are updated.

Criminal offences for IPPC-related breaches in Denmark typically include the following steps: the prosecutors representing the Commissioners’52 lodge applications with the City Courts to obtain warrants, which allow the police and prosecution to undertake certain measures during investigation. These applications are considered by a City Court judge and the defendant is afforded legal representation. All criminal cases for IPPC-related breaches will begin in City Courts.

The Danish system does not include investigating magistrates, but leaves the control of police investigations to the courts and the Prosecution Service. The legal staff of the Commissioner decides in accordance with Section 719 of the Administration of Justice Act whether to prosecute or not. If a defendant is expected to plead guilty, a formal charge is sent to the City Court in the jurisdiction of the defendant’s habitual residence. The Court summons the defendant and if he does indeed plead guilty in court and the plea is sustained by corroborating evidence, the presiding City Court judge passes sentence. If the defendant pleads or is expected to plead not guilty, a formal indictment is drawn up and lodged with the City Court in the jurisdiction where the crime is alleged to have been committed. The defendant and witnesses are then summoned by the prosecution. In cases where the prosecution does not request a sanction more severe than a fine, the case will be tried by a single City Court judge. In other cases the judge sits with two lay judges and together they decide the question of guilt and the sentence to be imposed. Witnesses may be examined by the prosecution, the defence and the Court. After the closing remarks by his counsel, the defendant is invited to address the Court before the sentence is passed.

3.2 Possibilities of appeal

Pursuant to Section 902 of the Administration of Justice Act, if found guilty after a trial, the person convicted may appeal to the High Court against the conviction and if he was sentenced a fine of more than DKK 3,000 (app Euros 400). The Prosecution Service may appeal if other penalties than fines or seizure apply. A notice to appeal against the conviction or sentence must be served within 14 days in accordance with Section 904 of Administration of Justice Act.

51 Only available in Danish ”Rigsadvokatens meddelse nr. 8/2008 om behandlingen af miljøstraffesager” at the web site of the Director of public prosecutions: http://www.rigsadvokaten.dk/media/RM_8-2008.pdf. 52 The organisation of the Prosecution Service is set out in the Administration of Justice Act. The service is structured as a hierarchy of three levels headed by the Director of Public Prosecutions (the General Prosecutor). The second level comprises six units called Regional Public Prosecutors, while at the local level there are 12 Commissioners heading both the local prosecution service and the police.

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4. Synergies between administrative and criminal procedures

4.1 Administrative versus criminal procedures

The Danish legislation does not prevent regulatory authorities from applying administrative enforcement measures and criminal sanctions in conjunction. On the contrary, the legislation provides for the use of both measures and regulatory guidance advises the use of either and/or both where it is considered proportionate under the circumstances. The way in which the administrative and criminal sanctions are applied and the factors which regulators must take into account when deciding whether or not to prosecute is determined by various guidance documents, including the Environmental Protection Agency’s guidelines on enforcement of the Environmental Protection Act and the Instructions from the Director of public prosecutions concerning judicial procedures for environmental infringement. Administrative measures will thus be used with the option to resort to criminal prosecution where operators have breached their permit conditions or where administrative procedures are not complied with.

The following examples of jurisprudence – as well as the recent case studies described below in Section 4 – illustrate how administrative enforcement measures and criminal sanctions are applied in conjunction:

Supreme Court ruling U2001.2045H: A company taking over a chemical installation under bankruptcy was fined DKK 800,000 (approximately Euros 120,000) and 40 days imprisonment for its Director combined with a fine of DKK 300,000 (app. Euros 40,000) for failure to comply with the conditions set in the permit following several injunctions on disposal of chemical waste.

Another example is a ruling by the Eastern High Court where a County was fined DKK 500,000 (approximately Euros 65,000) for failure to comply with the mandatory emission limit values for a waste incineration plant and seizure of the saved amount of DKK 4 mill (app. Euros 350,000). Reported in MAD 2000.334

The Danish Environmental Protection Agency has launched a review of the enforcement of the environmental legislation by the municipalities, the decentralised units of the Environmental Protection Agency and the public prosecution authorities (the police).53 The project reviews eighty- one enforcement cases, including some concerning violations of the IPPC legislation completed in respectively nine municipalities, one decentralised EPA unit, and three public prosecution/police districts. It should be noted that the project only reviews a rather limited number of enforcement cases and only in some units/districts and that the cases cover different types of violations of the environmental legislation. However, expert opinions of interviewees54 at Environmental Protection Agency and preliminary findings of the enforcement project suggest:

 that there is a tendency among enforcement authorities to issue recommendations/warnings rather than serve an order;  the frequency of violations are significantly higher among small facilities/enterprises than larger installations;  reporting of violations to the public prosecutions authorities is inadequate. The guidance on when reporting of violations should take place as set out in the Enforcement guidelines issued by the Ministry are thus not frequently not followed;

53 The title in Danish is : ‘Kommunernes, miljøcentrenes og politiets håndhævelse af miljølovgivningen’. 54 The interviewees in the Danish Environmental Protection Agency including one of the decentralized units were Tina Strand Overgaard, Marianne Ripka and Helene Pedersen.

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 the criminal procedure is often rather lengthy. It appears that environmental enforcement cases are given a rather low priority and lower than enforcement of animal welfare cases. It should be noted that there are some examples of efficient and expedient criminal cases though;  the recommended level of fines are frequently not adhered to;  cooperation between the environmental enforcement authorities and the public prosecutions authorities could be enhanced.

5. Conclusions

The Danish legislation provides for the use of both administrative enforcement measures and criminal sanctions in conjunction. Regulatory guidance advises the use of either and/or both where it is considered proportionate under the circumstances. Interviews with experts at the Danish Environmental Protection Agency, case law and the case studies reviewed above suggest that whilst the range of administrative and criminal sanctions available as a rule are sufficient to ensure that effective and dissuasive penalties can be imposed in case of infringement of IPPC requirements, their application may be enhanced in some cases.

Proportionality

The Danish Environmental Protection Act provides the supervisory authorities with several administrative sanctioning tools in order to ensure compliance with the relevant provisions of the legislation transposing the IPPC Directive. The Environmental Protection Agency and the Director of public prosecutions have issued guidance and instructions to ensure that the regulators’ approach is proportionate to the risks posed. Criminal penalties for non-compliance are intended to reflect the nature and gravity of the offence, by providing for convictions either ‘summarily’ or ‘on conviction on indictment’, with maximum sentences and fines for both types of offences. Both administrative and criminal penalties may therefore be deemed as fulfilling the criterion of proportionality.

Effectiveness

The administrative tools available to regulators include a range of different orders, injunctions or prohibitions which may be served on the operator, depending on the nature of the breach or level of harm posed to the environment. It follows from Section 68 and 69 of the Environmental Protection Act that the supervisory authority shall report the infringement to the public prosecutors in case the administrative sanction have not resulted in an illegal activity being brought under regulatory control. Furthermore according to the Guidelines on enforcement of the Environmental Protection Act, certain types of infringement would require that the supervisory authority report the infringement to the public prosecutors although the administrative sanction has resulted in the illegal activity being brought into compliance with the law. This would be the case where a new IPPC installation is operated without the required permit or and typically in cases where offender acted deliberately or by gross negligence and the infringement resulted in damage to the environment or risk of damage, or actual or intended economic advantages.

The Danish regulator systematically reviews the effectiveness of enforcement of the environmental legislation, including IPPC legislation, by the municipalities, the environmental centres and the public prosecution authorities. The reviews have several times resulted in amendments to the sanction provisions of the Environmental Protection Act, including amendments aimed at increasing the level of fines. Ways and means to enhance the administrative procedures in particular inspections have also been addressed by agreements between the Minister for the Environment and the Local Government Association (the interest group and member authority of Danish municipalities) on minimum frequency for so-called comprehensive inspections with industrial installations and the Environmental

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Protection Agency’s Guidelines on inspection and enforcement, e.g. by establishing checklists for the supervisory authority’s inspection of industrial installations and providing detailed guidance on the application of the administrative sanctions.

It has not been possible to obtain specific data on the number of the administrative sanctions that have not resulted in an illegal activity being brought under regulatory control and criminal procedures although the administrative sanction has resulted in the illegal activity being brought into compliance with the law. However while data on enforcement cases and expert interviews indicate that overall the administrative enforcement sanctions are effective to ensure that instances of non-compliance of the IPPC legislation are brought into compliance, there seems to be a tendency among enforcement authorities to issue recommendations/warnings rather than serve an order or an injunction/prohibition.

Expert interviews also suggest that the guidance on when reporting of violations should take place as set out in the enforcement guidelines issued by the Ministry are not systematically followed and that reporting of violations to the public prosecutions authorities is in some cases inadequate.

Furthermore, the criminal procedure is viewed as rather lengthy in many cases. It appears that environmental enforcement cases are given a rather low priority, in particular in relation to animal welfare cases for which enforcement is more expeditious. It is noted that there are several examples of efficient and expedient criminal cases though. Specific cases also seem to indicate that the recommended level of minimum fines is not always adhered to. Finally specific cases suggest that cooperation between the environmental enforcement authorities and the public prosecutions authorities may be further enhanced.

Dissuasiveness

The administrative sanctions including the suspension or restriction of activities, variation of the permit conditions or even revocation of the permit are viewed as rather stringent, especially seen together with the supervisory authority’s obligation to report certain instances of non-compliance to the public prosecution authorities, although the administrative sanction has resulted in the illegal activity being brought into compliance with the law. Criminal sanctions applied are also seen as dissuasive, due to the sizable fines and sentences which may be imposed.

Interviews with experts in the Danish Environmental Protection Agency seem to indicate that the frequency of violations is significantly higher among small facilities/enterprises than larger installations, including IPPC facilities and that although the recommended level of minimum fines (a fine of Euros 1,350) may not always in itself be dissuasive, the risk of bad publicity should a criminal case be opened against an offending facility appears to have a more deterrent effect than the very size of the fine.

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Case studies

The Danish Environmental Protection Agency has identified two recent cases, where administrative and/or criminal sanctions have been imposed, to be addressed in this review. Both cases are final (all appeal procedures exhausted). The Danish Environmental Protection Agency has provided information on the background for the cases and description of the procedure from the first measures taken once the infringement was identified. The cases and other possible cases have been discussed during several telephone conferences with three interviewees55 in the Agency who have provided their opinion as to the proportionality, the effectiveness and the dissuasive character of the sanction imposed.

Case study 1 – administrative and judicial procedure for non-compliance with permit conditions

Timeline of the procedure

18/10/2010 17/10/2009Fir 28/10/2009 Decision of the e at the Report to the Court intermediate prosecution storage

19/10/2009 19/07/2010 Supervisory authority Indictment informed & on‐site visit

Description of the background

The company is a landfill for waste, which by their nature are included in Appendix C Section 105 of the Approval Order in Annex I and is an IPPC activity. As a secondary activity, the facility has within the landfill, an intermediate storage for waste suitable for incineration for which a special approval was granted on 26 October 2006.

On 17 October 2009 the intermediate storage caught fire. The fire was only extinguished after eight days. Heavy smoke affected the residents surrounding the landfill. Large amounts of extinguishing water was discharged through the sewage system to the nearby municipal wastewater treatment plant and caused problems in the purification process.

Only on 19 October 2009 was the supervisory authority, the then Environment Centre Roskilde, informed about the fire by surrounding residents. The authority, however, was never informed about the fire by the operator of the landfill.

Legislation applicable

55 See footnote 21.

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The Environmental Protection Act Section 71(1) provides that:  anyone responsible for activities likely to cause pollution shall immediately notify the supervisory authority when interruption of operation or accidents result in substantial pollution or risks of pollution.

Concerning the sanction, under the Environmental Protection Act Section 110 (1)-(4) and (1)-(7) as well as paragraphs 2, 4 and 5  failure to comply with or to contravene an environmental permit condition is subject to a fine, unless a more severe penalty under other legislation would apply (paragraph 1 no 4).  failure to give notification as specified in section 71 is subject to a fine, unless a more severe penalty under other legislation would apply (paragraph 1 no 7).  the penalty may be detention when an offender acted deliberately or by gross negligence if the infringement resulted in damage to the environment or risk of damage or achieved or intended economic advantages (paragraph 2)  the provisions apply to both natural and legal persons alike. The difference is, however, that further financial penalties may additionally apply to businesses (paragraph 4 and 5)

Procedure

On 19 October 2009, the supervisory authority made an on-site inspection following the notification of the fire at the landfill. The on-site inspections assessed that the quantity of waste stored at the intermediate storage, that had caught fire, was larger than the maximum quantity specified in the permit conditions. The operator of the landfill did not object to this. It was also the authority's assessment that the height of waste stored at the intermediate storage exceeded the maximum set in the permit conditions. However, this could not be exactly measured, but merely documented by photographic evidence.

The supervisory authority considered that two of the environmental permit conditions were not met. It was further the authority’s assessment that the company over a few months had knowingly stored larger quantities of waste than permitted at the intermediate storage at the landfill. Consequently an order to comply with the conditions of the permit was served and the infringement was reported to the public prosecution authorities.

The supervisory authorities proposed the public prosecutors the following minimum fines under the existing penalty charges to:  DKK 20,000 (approximately Euros 2,700) for not having informed about the fire in accordance with the Environmental Protection Act Section 71  DKK 20,000 (approximately Euros 2,700) for handling waste in a manner that causes pollution in non-compliance with the Environmental Protection Act Section 43  DKK 10,000 (approximately Euros 1,350) for non-compliance with conditions of permit.

Furthermore seizure/confiscation of the earned profit was recommended (in accordance with Section 110(5) of the Environmental Protection Act) for not having applied for environmental approval for storing a large amount of waste.

The infringement was reported on 28 October 2009 to prosecutors, who by 19 July 2010 had prepared indictment. The criminal procedure was concluded on 18 October 2010. The company was sentenced to a total fine of 40,000 DKK (approximately Euros 5,400), but was acquitted of confiscation claim for which the recommended amount was DKK 6,968 (less than Euros 1,000). The company was dismissed for failure to comply with conditions of maximum height, but was convicted for all other matters.

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General comments on sanctions

The Danish Environmental Protection Agency finds that the enforcement process was sufficient and efficient. The level of fine was in line with the recommended level for fines. Compliance was restored.

Case study 2 – judicial procedure for non-compliance with the permit conditions

Timeline of the procedure

January 2009 28/05/2009 29/01//2009 Notification of Decision of the accident Report to the Court prosecution

January 2009

Meeting between the operator and the authority

Description of the background

The Dairy produces cheese and yogurt and is a facility covered by the IPPC Directive and the transposing Danish legislation. The dairy has been running since the 1980s. It has a permit which allows for a production of up to 25,000 tonnes of cheese and yogurt per year, equivalent to a consumption of 105,000 tonnes of raw milk.

The Dairy is located in the outskirts of a village in an urban area close to rural areas as well as areas designated for small industrial and craft facilities associated with housing. A residential area is also close to the dairy.

In January 2009, the environmental authority received a notification from the dairy that an environmental accident had occurred at the facility. Two pallet tanks containing 1000 litres of respectively nitric acid and formic acid had been hit by an unknown truck and the contents of both containers had run into the municipal drain and into a close-by brook.

According to the permit the company's raw materials and additives, including detergents must be stored in such a way that there can be no discharge to the public sewer, soil or groundwater.

Legislation applicable

The Environmental Protection Act Section 34 and the Approval Order Section 14 concerning the conditions of the permit stipulate that:  the permit shall include […] other requirements relating to the design and operation that are necessary to ensure that it does not cause significant environmental pollution, including by accident

Concerning the sanction, under the Environmental Protection Act Section 110 (1)(4) and 110(4) and (5):  failure to comply with or to contravene an environmental permit condition is subject to a fine, unless a more severe penalty under other legislation would apply (paragraph 1 no 4).

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 the provisions apply to both natural and legal persons alike. The difference is, however, that further financial penalties may additionally apply to businesses (paragraph 4 and 5)

Pursuant to the Environmental Protection Act Section 110(2) the penalty may be detention or imprisonment for a maximum term of two years if the offender acted deliberately or by gross negligence and the infringement resulted in: 1) damage to the environment or risk of damage, or 2) actual or intended economic advantages, including savings, for the offender or for others.

The recommended minimum fine for failure to comply with or to contravene an environmental permit condition is DKK 10,000 (approximately Euros 1,350). See also Section 3.1.3 on criminal sanctions.

Procedure

In January 2009, the environmental authority received a notification from the dairy that an environmental accident had occurred at the facility. Two pallet tanks containing nitric acid and formic acid had been hit by an unknown truck and the contents of both containers had run into the municipal drain and into a close-by brook.

Upon request from supervisory authority, the dairy submitted five days after the accident, a report informing the environmental authorities in more details about the accident. The report also contained an action plan to prevent a similar accident. It appeared from the report that an unidentified truck hit some pallet tanks placed on a paved area with drainage to the municipal water drain. The environmental impact of the accident was discharge of 2,000 l of formic acid and nitric acid into the brook next to the dairy.

The environmental permit had been reviewed just prior to the incident. According the conditions of the permit the company's raw materials and additives, including detergents, must be stored in such a way that it cannot be discharged to the public sewer, soil or groundwater. Furthermore it was mentioned in the permit that the rainwater from the actual paved areas should be led to an equalisation tank. Consequently it was considered likely that waste water from a major accident could be retained and treated before discharge or reuse.

Following the incident, a meeting between the municipality and the competent environmental authorities were held to discuss the environmental impact of the accident on the brook.

As the infringement resulted in damage to the environment, on 29 January the supervisory authority reported the infringement to the public prosecution authorities which opened criminal proceedings. The criminal case was closed 28 May 2009 with a fine of Euros 1,341. The supervisory authority was consulted by the public prosecution authorities on the level of the fine.

General comments on sanctions

As it can be seen from the description of the procedure, the enforcement process was efficient and quick. As there was no imminent serious danger to health in the present and no immediate action was required to prevent the spreading of contamination or pollution, the Danish Environmental Protection Agency considered that there was no basis for ‘self-help actions’ to be made. The level of fine was in line with the recommended level. Although a fine of Euros 1,350 may not in itself be dissuasive, the risk of bad publicity should a criminal case be opened against an offending facility appears to have a more deterrent effect then the very size of the fine (which corresponds to approximately 30% of an average Danish monthly salary).

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Bibliography

Please note that none of the listed documentation is available in English. For ease of reference an English translation of the titles is provided below:

Legislation

Environmental Protection Act (2010-06-26 No 879) (Miljøbeskyttelsesloven) https://www.retsinformation.dk/forms/r0710.aspx?id=132218 Including comments provided in the relevant amendments, e.g. L2008 173 FT 2007-08 (2.samling): 283,1857, 2024; A9; B133

Retsikkerhedsloven

The Criminal Code (2010-10-26 No 1235) (Straffeloven) https://www.retsinformation.dk/Forms/R0710.aspx?id=133530

Environmental Protection Agency Guidelines

Miljøstyrelsens vejledning nr 6/2005 om vejledning om håndhævelse af miljøbeskyttelsesloven. (Guidelines from the Environmental Protection Agency on enforcement of the Environmental Protection Act, No 6, 2005) http://www2.mst.dk/udgiv/publikationer/2005/87-7614-833-5/pdf/87- 7614-834-3.pdf

Miljøstyrelsens vejledning nr 6/2006 on vejledning om miljøtilsyn med industrivirksomheder. (Guidelines from the Environmental Protection Agency on environmental inspections of industrial installations, No 6, 2006) http://www.mst.dk/Publikationer/Publikationer/2006/09/87-7052-241-3.htm

Miljøstyrelsens vejledning nr. 7/2005 om anvendelse af retssikkerhedsloven på miljøområdet (Guidelines from the Environmental Protection Agency on application of the Legal Protection Act in the field of environment, No 7, 2005) http://www2.mst.dk/udgiv/publikationer/2005/87-7614-835- 1/pdf/87-7614-837-8.pdf

Notat – General vejledning i udfyldning af skema til brug for beretning om kommuernes miljø indsats i 2010 (Guidance Note on the use of reporting templates on environmental inspection etc for 2010) http://www.mst.dk/NR/rdonlyres/9F60847C-08EA-4EF5-823E- CAF87E2E8BE3/0/Indberetningsvejledning2010_Generelt.pdf

Report(s) on Environmental Inspections

Miljøtilsyn 2008, Miljøstyrelsen 1. oplag juni 2010 (Environmental Inspection 2008) http://www2.mst.dk/udgiv/publikationer/2010/978-87-92668-64-6/pdf/978-87-92668-65-3.pdf

Agreements and strategies for inspections

Aftalen mellem fra 2005 om minimumsfrekvenser for samlede tilsyn (Agreement from July 2005 between the Minister for the Environment and the Local Government Association on minimum

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frequency for so-called comprehensive inspections with industrial installations) http://www.mst.dk/Virksomhed_og_myndighed/Industri/miljoetilsyn_brugerbetaling/regler_og_vejled ninger/minimumsfrekvenser/

Instructions issued by the Director of public prosecutions

Rigsadvokatens meddelse nr. 8/2008 om behandlingen af miljøstraffesager. (Instructions from the Director of public prosecutions concerning judicial procedures for environmental infringement (8/2008) http://www.rigsadvokaten.dk/media/RM_8-2008.pdf

Other

Miljøbeskyttelsesloven med kommentarer af Jørn Bjerring og Gorm Møller, Jurist og økononomforbundets forlag, 1998

Report from the Danish Environmental Protection Agency 20/2005. Assessing the application of criminal sanctions in criminal cases in the field of nature conservation, environmental protection and planning legislation. (Arbejdsrapport fra Miljøstyrelsen, 20/2005. Undersøgelse af anvendelse af sanktioner m.v. i straffesager på natur-,miljø- og planområdet) http://www2.mst.dk/Udgiv/publikationer/2005/87-7614-831-9/pdf/87-7614-832-7.pdf

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Annex II- France

Sanctions and procedures applicable to breaches of the legislation on industrial emissions in France

Executive Summary

Both administrative and criminal sanctions can apply for the infringement of the legislation transposing the IPPC Directive in France. These sanctions can be imposed separately on the offender and even be cumulative.

In France, the legal regime of administrative sanctions tends to become similar to the criminal legal regime. However, unlike criminal sanctions, administrative sanctions cannot deprive liberty. Furthermore, administrative sanctions do not have to precisely describe infringements to the laws, the reference to the obligations to be fulfilled is considered sufficient.

Inspectors of classified installations are not empowered to take administrative sanctions but they can issue formal records (procès-verbaux) of the infringement to the Public Prosecutor (Procureur de la Republique) if there is ground for starting a criminal procedure and to the Prefect (the State's representative in a department or region). There is a general increase in the number of controls from inspectors. In 2010, 94% of priority IPPC installations, 94% of IPPC installations with potential issues, and 80% of the other IPPC installations were inspected.56

The Prefect, receiving formal records from inspectors identifying infringements, is bound to send a letter of formal notice to the operator of installations stating that s/he shall comply with specific requirements within a certain time-period (e.g. to complete necessary work on the installation). If the operator does not comply with these requirements in this time-period (the warning period), the Prefect can issue different types of administrative sanctions (e.g. the suspension of the operation, the closure or removal of the facility, the sealing of a facility). This warning period is quite effective, for instance in 2006 only around 10% of the letters on formal notice ended-up in administrative sanctions.

Operators of classified installations can appeal against these administrative sanctions to the administrative Courts together with third parties such as persons, legal entities, municipalities and groups of municipalities that shall be concerned by the drawbacks or hazards the operation of the facility presents for the convenience of the neighbourhood, public health and safety, agriculture, the protection of nature and the environment, the conservation of sites and monuments or elements of the archaeological heritage. The Code of the Environment (CoE) contains provisions facilitating appeals against administrative decisions by environmental associations, which are considered very effective.

The criminal procedure is often initiated by the Public Prosecutor based on information received from inspectors of classified installations or the judiciary police (police judiciaire). Victims of the infringements have the option to become private parties (partie civile) and file a claim before the Public Prosecutor (juge d’instruction). They can lodge this claim only if they have suffered personal damage directly caused by the offense. The CoE facilitates the initiation of criminal proceedings for environmental protection associations and several administrative bodies involved in the management of the environment (e.g. water agencies) that are entitled to exercise the rights recognised as those of the civil party at a criminal court in relation to the acts constituting an infringement of the provisions relating to classified installations.

56 The French inspection procedure classifies installations depending on their potential risks on health and the environment under three categories: priority IPPC installations (e.g. upper tier SEVESO establishments, waste landfill), IPPC installations with potential issues and other IPPC installations. Priority installations must be inspected at least every year while IPPC installations with potential issues must be inspected at least every three years. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 34

The time period to issue a criminal sanction varies a lot depending on the specificities of each case (about 18 months from the moment the infringement is identified to 5 or 6 years when infringements shall be further investigated by the public prosecutor). The French legislator, however, established in 2004 a ‘plead guilty’ procedure which is applicable to persons (including legal persons) who have committed a crime punishable by a fine or imprisonment for a time period not exceeding five years. Sanctions for the infringement of provisions on classified installations fall into the scope of this procedure which is much faster than the normal one.

The table below indicates the provisions of the IPPC Directive covered by a sanction in France. The category of administrative (quasi) criminal sanctions does not exist in France, thus this column is left blank in the table below.

Table 1: Enforceable provisions covered by penalties in France

Administrative measures and Administrative (quasi) Article Criminal sanctions sanctions criminal sanctions IPPC Directive Catch-all - - 4 Article L514-2 of the CoE Article L514-9 of the CoE

5 Article L514-2 of the CoE Article L514-9 of the CoE 657 - - 12 (1) - Article R514-4 of the CoE 12 (2) - Article L514-9 of the CoE 14 (a) Article L514-1 (I) (1) (2) (3) of Article R.514-4 (1) of the CoE the CoE and Article L.514-9 IV of the CoE 14 (b) - Article R514-4-5of the CoE 14 (c) - Article L.514(12) of the CoE

57 This is considered to be covered by a general principle of law that requires that true information shall be provided when applying for an authorisation. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 35

1. Applicable sanctions

Both administrative and criminal sanctions can apply to the infringement of environmental law in France. These sanctions are not linked and can be imposed separately on the offender. There are different types of administrative sanctions depending on which provisions of the environmental legislation are infringed. For instance Book V Title I of the Code of the Environment (CoE) on classified installations for the protection of the environment transposing the IPPC Directive contains different administrative sanctions that can be issued by the Prefect (the State's representative in a department or region). These are, the suspension of the operation, the closure or removal of the facility, the sealing of a facility, the deposit of a sum corresponding to the amount of the work to be carried out and the enforcement ex officio of the measures required.

The French Criminal Code does not encompass general sanctions related to harm made to the environment. These criminal sanctions are scattered in specific sectors of the legislation on the environment (e.g. legislation on classified installations,58 waste,59 water pollution,60 and air61). French Law provides three categories of criminal offences which are serious offences (crimes), offences (délits) and petty offences (contravention). Most criminal offences related to harm made to the environment are either offences (délits) or petty offences (contraventions). For instance infringements to certain provisions of Book V Title I of the Code of the Environment (CoE) on classified installations for the protection of the environment transposing the IPPC Directive can lead to one year imprisonment and a fine of Euros 75,000. The 1994 amendment of the Criminal Code established the criminal liability of legal persons in French Law. Pursuant to Article 121(2) of the Criminal Code, legal persons, with the exception of the State, are criminally liable for the offences committed on their account by their organs or representatives. For instance legal persons can be criminally liable to a fine of Euros 375,000 for operating a classified installation without an authorisation.

Table 2 below indicates the types of administrative and criminal offences and related penalties in France for each of the key enforceable obligations under the IPPC Directive.

58 Article L.514-9 and following of the CoE, Articles R.514-4 and R.514-5 of the CoE 59 Article L. 541-46 and following of the CoE 60 Article L. 216-6 and following of the CoE 61 Article L. 226-9 and following of the CoE Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 36

Table 2: Directive 2008/1/EC (IPPC Directive): types of offences and related administrative and criminal penalties in France

Administrative Criminal Offences Penalties Offences Penalties Obligation to apply Operating a facility Suspension by the prefect of the Without authorisation or registration Without authorisation or for a permit for new without an operation of the facility until the registration or existing authorisation or decision on the application for To operate a facility without authorisation or registration. installations registration or authorisation is issued. Article L514-9 of the CoE Individuals: declaration required. Article L514-2 first paragraph of the - A fine of up to Euros 75,000 Article L514-2 first CoE - Up to one year imprisonment paragraph of the Article L514-9 of the CoE CoE If an operator fails to comply with the notice to rectify its situation or if its Legal persons: application for approval is refused, the A fine of up to Euros 375,000 prefect may, if necessary, order the (75,000 x 5) closure or removal of the facility. - The ban, either permanently or Article L514-2 second paragraph of the for a period of five years, to CoE exercise directly or indirectly one or more social or professional The prefect may proceed to the sealing activities; of a facility that is maintained or - Judicial supervision for a period operated in contravention of a measure of five years; of removal, closure or suspension. - The final closure or a suspension Article L514-2 third paragraph of the of the installation for a period of CoE five years; - The exclusion from public tenders either permanently or for a period of five years; - Prohibition, either permanently or for a period of five years, to conduct a public offering of financial securities or the admission of its financial securities to trading on a regulated market; - Penalty of confiscation; - The posting of the ruling or distribution thereof by the press or by any electronic means to the public. Article L.514-19 of the CoE Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 37

Administrative Criminal Offences Penalties Offences Penalties

Complementary measures: -The ban of the use of the facility ; -The rehabilitation of the premises. Article L.514-9 IV of the CoE Obligation to supply This is not considered No sanctions. This is not considered a criminal offence. No sanctions. information for an administrative application for offence. permits Obligation to notify Failure to notify to the Prefect, any modifications to the Individuals: the competent facility, its operation or vicinity leading to significant A fine up to Euros 1,500. authority of any changes in the elements for the application of the Legal persons: changes in the authorisation. A fine up to Euros 7,500. operation of an Article R514 (5) of the CoE read in conjunction with Article R.514-4 (1) of the CoE installation Article R512-33 of the CoE Obligation to Infringement or non- The Prefect issues a formal notice to the Offences listed in Article R.514-4 of the CoE: Penalties related to the offences comply with the compliance with the operator to comply with the said listed in Article R.514-4 of the CoE conditions set in the following conditions by a set deadline. If, on Failure to comply with the general rules and technical permit or requirement: expiry of the deadline set for regulations applicable to the installations subject to Individuals: mandatory ELVs performance, the operator has not authorisation. These rules and regulations determine the A fine up to Euros 1,500. Obligation to comply complied with the said order, the Prefect appropriate measures to prevent and reduce the risks of an Legal persons: with the conditions may: accident or of pollution of any kind occurring, as well as the A fine up to Euros 7,500. imposed on the 1° Oblige the operator to deposit conditions of integration of the facility into the environment Article R.514-4 (1) of the CoE operator of a with the Treasury a sum corresponding and of rehabilitation of the site after operations have ceased. classified facility. to the amount of the work to be carried Article R514 (3) of the CoE read in conjunction with Penalties related to the offences Article L514-1 (I) of out, which sum will be returned to the Article L512-5 of the CoE listed in Article L514-11 of the the CoE operator gradually as the required CoE measures are performed; Failure to comply with the requirements set in the permits 2° Have the required measures related to: Individuals: enforced ex officio and at the expense of -The effectiveness of best available techniques; - A fine up to Euros 75,000; the operator; -The quality, purpose and use of surrounding environment - Up to six months imprisonment 3° Issue a ruling, after an opinion and the balanced management of water resources; Legal persons: has been given by the competent - Emission limits based on best available techniques, within - A fine up to Euros 375,000 advisory commission of the local region the meaning of Directive 2008/1/EC of 15 January 2008 for (75,000 x 5); (département) suspending the operation installations authorised by the relevant Minister; - The ban, either permanently or of the facility until the conditions -The reduction or prevention of long range pollution and for a period of five years, to imposed have been fulfilled and take the transboundary pollution; exercise directly or indirectly one necessary provisional measures. -The start-up, malfunction or sudden stop of the or more social or professional Article L514-1 (I) (1) (2) (3) of the CoE installations; activities; Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 38

Administrative Criminal Offences Penalties Offences Penalties -The analyses and measures to control the installation and - Judicial supervision for a period the monitoring of its effects on the environment and the of five years; conditions under which the results of these tests and - The final closure or a suspension measures are carried to inform the Inspectors of classified of the installation for a period of installations and services in charge of water policy; five years; - Reporting and quantification of emissions of greenhouse - The exclusion from public gas emissions for the relevant installations. tenders either permanently or for Article R514 (3) of the CoE read in conjunction with a period of five years; Article R512-28 of the CoE prohibition, either permanently or for a period of five years, to Failure to comply with additional conditions proposed by conduct a public offering of inspectors of classified installations set in complementary financial securities or the Orders. admission of its financial Article R514 (3) of the CoE read in conjunction with securities to trading on a Article R512-31 of the CoE regulated market; - Penalty of confiscation; Failure to comply with the conditions set by Ministerial - The posting of the ruling or Order related to the presentation of the overview of plant distribution thereof by the press operation. or by any electronic means to the Article R514 (3) of the CoE read in conjunction with public. Article R512-45 of the CoE Article L.514-19 of the CoE

Failure to comply with the declaration requirements related Complementary measures: to emission of pollutants and production of waste. -The ban of the use of the facility; Article R514 (3) of the CoE read in conjunction with -The rehabilitation of the premises. Article R512-46 of the CoE Article L.514-9 IV of the CoE

Offences listed in Article L-514-11 of the CoE The continued operation of a classified facility while failing to comply with the summons to meet, within a set time, the technical stipulations determined for the application of Articles L. 512-1 (e.g. requirements related to the distance from dwellings, from buildings habitually occupied by third parties, establishments receiving the public, waterways, communication routes, water catchment areas, or zones destined for dwellings by binding planning documents). Article L-514-11 of the CoE read in conjunction with Article L512-1 of the CoE

Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 39

Administrative Criminal Offences Penalties Offences Penalties The continued operation of a classified facility while failing to comply with the summons to meet, within a set time, the technical stipulations indispensable for the protection of the convenience of the neighbourhood, or for public health and safety, or for agriculture, or for the protection of nature and the environment, or for the conservation of sites and monuments or elements of the archaeological heritage, related to the means of analysis and measurement and the means of intervention in case of an incident. Article L-514-11 of the CoE read in conjunction with Article L512-3

The continued operation of a classified facility while failing to comply with the summons to meet, within a set time, the technical stipulations preventing and reducing the risks of an accident or of pollution of any kind occurring, as well as the conditions of integration of the facility into the environment and of rehabilitation of the site after operations have ceased. Article L514-11 of the CoE read in conjunction with Article L512-5 of the CoE

The continued operation of a classified facility while failing to comply with the summons to meet, within a set time, the technical stipulations related to the evaluations to be conducted or the remedies to be implemented which are rendered necessary either by the consequences of an accident or an incident occurring in the facility, or by the consequences of a failure to comply with the conditions imposed by the present Title, or by any other hazard or drawback interfering or threatening to harm the aforementioned interests.

The continued operation of a classified facility while failing to comply with the summons to meet, within a set time, the technical stipulations related to particular requirements due to local circumstances set by the prefect in the registration order. Article L514-11 of the CoE read in conjunction with Article L512-7-3 of the CoE Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 40

Administrative Criminal Offences Penalties Offences Penalties

The continued operation of a classified facility while failing to comply with the summons to meet, within a set time, the technical stipulations related to the necessary requirements set by a complementary Order of the prefect for installations that shall be registered. Article L514-11 of the CoE read in conjunction with Article L512-7-5 of the CoE

The continued operation of a classified facility while failing to comply with the summons to meet, within a set time, the technical stipulations related to the general requirements in the declaration set by the prefect. Article L514-11 of the CoE read in conjunction with Article L512-8 of the CoE

The continued operation of a classified facility while failing to comply with the summons to meet, within a set time, the technical stipulations related to the necessary specific requirements imposed by the prefect to installations subject to declaration. Article L514-11 of the CoE read in conjunction with Article L512-12 of the CoE

The continued operation of a classified facility while failing to comply with the summons to meet, within a set time, the technical stipulations related to evaluations to be done and implementation of remedies required by the prefect that are necessary as a consequence of an accident or incident at the facility or due to the breach of conditions imposed under the legislation on classified installations. Article L514-11 of the CoE read in conjunction with Articles L512-20 of the CoE

Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 41

2. Administrative procedure

2.1 General elements on the legal tradition and evolution

Administrative sanctions are increasingly used for infringements of environmental law in France. Several factors explain this tendency. Administrative sanctions are seen as a solution to limit the number of cases brought to criminal Courts that are more and more congested. Administrative procedures are quicker and simpler to apply than criminal procedures. Furthermore, it is also considered that administrative bodies are more capable to deal with environmental matters than Courts, which lack technical expertise in this domain.62

The legal regime of administrative sanctions tends to become similar to the criminal legal regime. Both administrative and criminal sanctions shall respect the following principles:

 The principle of legality;  The principle of proportionality of the sanction;  The principle of personality of penalties;63

The main difference between administrative and criminal sanctions mainly lies on the person that issues the sanction. Pursuant to the Constitutional Council, sanctions are unilateral decisions taken by an administrative authority, within the framework of its public power prerogatives, imposing a penalty for the infringement of laws and regulations.64 Unlike criminal sanctions, administrative sanctions cannot deprive liberty.65 Furthermore administrative sanctions do not have to precisely describe infringements to the laws, the reference to the obligations to be fulfilled is considered sufficient.66

Pursuant to a 1994 report from the Council of State there are around 500 different types of administrative sanctions in France.67 Several types of administrative sanctions can apply for the infringement of the legislation on classified installations (e.g. closure or removal of the installation, the sealing of the installation, the deposit of a sum corresponding to the amount of work to be done). Prefects have thus the capacity to apply the appropriate sanction for each specific infringement.

In other legal systems these administrative sanctions would not be considered sanctions but injunctive or preliminary measures.

2.2 Inspections

2.2.1 General information

The Ministry for Ecology, Sustainable Development, Transport and Housing68 is responsible for the inspection of classified installations. Under the authority of the Prefects of Department, inspection and enforcement are mainly carried out for most industrial facilities by the regional directorates for the environment, planning and housing69 and the regional and inter-departmental directorate for environment and energy70 in Paris and its surrounding area, the departmental directorates of social

62 Milieu Ltd & Huglo Lepage, Study on measures other than criminal ones in the EU Member States, National report for France, (2004 63 Legifrance, Guide de légistique, available at : http://www.legifrance.gouv.fr/html/Guide_legistique_2/sommaire_guide_leg.htm, updated 2 April 2008 64 Decision 89-260 DC of 28 July 1989 65 Ibid. 66 Ibid. foot note number 5 67Ibid. foot note number 5 68 Ministère de l’Ecologie, du Développement durable, du Transport et du Logement 69 Directions régionales de l’environnement, de l’aménagement et du logement 70 Direction régionale et interdépartementale de l’environnement et de l’énergie Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 42

cohesion and protection of the population71 for farms, slaughterhouses, animal carcass disposal contractors and some food processing activities. These different bodies are designated under the generic name of ‘inspection of classified installations’.

There are about 1,500 inspectors (equivalent to 1,150 full-time) (engineers, technicians and veterinary surgeons) all of whom are sworn State officials.72 They are responsible for controlling all classified installations, including IPPC installations, which include 6,400 installations out of 500,000 installations (as of 31 December 2009).

After the explosion of a nitrate factory in Toulouse in 2001, the Government decided to increase the number of personnel in the regional inspectorates and to implement a programme of reinforcement and modernisation of the inspections. This programme adopted in 2004 covered the period 2004-2007. It included various commitments as to the number of inspections, time for responding to complaints and transparency in the inspection activities.

The strategic plan of the inspection of classified installations for 2008-2012 is now the main policy document setting the key priorities and directions of the inspection.73 It provides in particular for an inspection at least each 3 years in the installations which present an important risk for human health and the environment, including all IPPC installations. Unplanned inspections in particular concerning emissions will be carried out for 10% of the installations subject to authorisation. This objective is still not reached.74 Each year, the Ministry defines priority actions for the inspection of classified installations. For instance, one of the priorities for inspectors in 2011 is to focus on measures to be followed by classified installations to contribute to the good status of water bodies in 2015 as required under the Water Framework Directive.75

In 2006, 30,170 inspections were carried out (1,462 following a complaint, 4,452 following an accident or accidental pollution, 564 after the closing of an installation, and 27,693 planned). The number of scheduled visits rose significantly with an increase of over 100% in 10 years, from 13,000 to about 27,700 visits. In 2010, 94% of priority IPPC installations, 94% of IPPC installations with potential issues, and 80% of the other installations were inspected.76

There is a general increase in the number of controls. This is mainly due to the fact that decision- makers and citizens in France are more aware of the potential risks on health and the environment of classified installations.

2.2.2 Key elements of the inspection procedure

The inspectors have a full and permanent right to obtain from the operator the authorisation to enter the site of a classified installation and to be made available any document relating to the installation. Any action to oppose the carrying out of the inspection is qualified as an offence.

The inspectors are bound by professional confidentiality. They cannot reveal or use the manufacturing information they learnt through acceding to the documents relating to the installation. Disciplinary and criminal sanctions apply if they breach their obligation of confidentiality.

71 Directions départementales (de la cohésion sociale et) de la protection des populations 72 See the Ministry for Ecology, Sustainable Development Transport and Housing presentation brochure on ‘the Inspectorate of Classified Installations Environmental policing of industrial and agricultural facilities’ available at: http://installationsclassees.ecologie.gouv.fr/IMG/pdf/plaquetteIC anglais.pdf 73 Information available at: http://installationsclassees.ecologie.gouv.fr/IMG/pdf/PS_IIC_2008_2010.pdf 74 Information available at: http://www.developpement-durable.gouv.fr/IMG/pdf/Projet_AN_2011vf.pdf 75 Information available at: http://www.developpement-durable.gouv.fr/IMG/pdf/Projet_AN_2011vf.pdf 76 Ministère de l’Ecologie du Développement durable des Transports et du Logement, inspections des installations classées, bilan détaillé des actions nationales 2010 available at: http://installationsclassees.ecologie.gouv.fr/IMG/pdf/bilan_detaille_des_actions_nationales_2010-1.pdf Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 43

The inspection’s records and findings must be objective and any case of possible non-conformity should be discussed with the operator at the end of the visit. After the visit, the inspector must send to the operator a follow-up letter, which summarizes the inspection findings and describes the measures the inspector plans to propose.

2.2.3 The inspectors’ enforcing powers

The main aim of an inspection is to verify compliance of the installation with the conditions set in the permit. When a potential instance of non-conformity is identified, the inspector can initiate an administrative or a criminal procedure. The inspectors have enforcement powers (pouvoirs de police), which means that they can issue formal record (procès verbal) of the infringement.

If the inspector considers there is ground for starting a criminal procedure, s/he will transmit to the Public Prosecutor (Procureur de la République), the formal record of the infringement. It is the Public Prosecutor who decides whether or not to prosecute.

2.2.4 Decision-making process for administrative measures and sanctions

As mentioned above, inspectors have enforcement power through the issuance of formal records but they cannot issue administrative sanctions. Their formal records identifying infringements are sent to the Prefects that are empowered to issue administrative sanctions.

The procedural steps to issue an administrative sanction for infringements to the transposing provisions of the IPPC Directive are covered by Article L.514-1 of the CoE that applies to all classified facilities. This Article provides that regardless of any criminal proceedings that might be brought, and when an inspector of classified installations or an expert appointed by the Minister responsible for classified installations has ascertained a failure to comply with the conditions imposed on the operator of a classified installation, the Prefect serves formal notice to the latter to comply with the said conditions by a set deadline. If, on expiry of the deadline set for performance, the operator has not complied with the said order, the Prefect may then issue administrative sanctions.

The letter of formal notice must take the form of an Order of the Prefect (Arrêté Préfectoral). This Order should, as every administrative decision, be motivated and explicitly mention the facts and the legal reasoning on which the decision is based. However the Council of State decided in Case MEDAD vs. Ste Terrena of 9 July 2007 that if inspectors identify infringements by operators of classified installations, the prefect has to issue a letter of formal notice requesting the operator to fulfil these requirements.77 In that case, which represents the majority of cases the Order of the prefect does not have to be motivated.

The letter of formal notice shall specify the appropriate time-frame for the operator to comply with the requirements infringed (e.g. time-frame to complete necessary work on the installation). This time- frame shall not exceed three months and shall only be extended under very specific circumstances. The letter of formal notice cannot include new requirements to be fulfilled by operators.78 Governmental guidelines recommend that this letter should not only be addressed to the alleged infringer but also to the mayor of the municipality where the installation is located. It also suggests that Prefects should inform interested persons, associations and legal or natural persons about the letter of formal notice (e.g. credit institutions issuing the financial guarantees).79 Such obligations are however not covered by law.

77 CE, MEDAD c. Ste Terrena, 9 July 2007, n 288367 78 CE, 15 January 1986, ministre de l’environnement c/ Société DSB, req. n° 45118 79 Circular 98-78 of 18 June related to classified installations for the protection of the environment : letter of formal notice under Article 23 of the Law of 19 July 1976 (Circulaire n 98-72 du 18/06/98 relative aux installations classées pour la protection de l’environnement: Mise en demeure prévue par l’article 23 de la loi du 19/07/76) Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 44

It is not required in the legislation that the Prefect, before issuing the letter of formal notice, should consult the operator of installations concerned. Several administrative courts have however considered that the letter of formal notice was an individual decision falling under the scope of Article 24 of the Law of 12 April 2000 on the right to citizens in their relationship with the administration.80 Pursuant to this Article, individual decisions shall be issued only after the interested person was able to present written observations, and on his request oral observations. The Council of State, the highest administrative Court, has however decided in case MEDAD vs. Ste Terrena that these observation requirements could not apply to the procedure to issue a formal notice based on infringements identified by inspectors of classified installations.

Therefore the procedure to issue a formal notice was drastically strengthen by the decision of the Council of State in case MEDAD vs. Ste Terrena providing less opportunities for the operators to contest the letter of formal notice and reducing the margin of manoeuvre of the Prefect to the setting of the time-frame for the requirements to be fulfilled. The outcome of this case was summarised in a governmental guideline document for Prefects.81

It is thus less likely that letters of formal notice for operators of classified installations shall be challenged before administrative Courts because of procedural errors.

Administrative sanctions cannot be issued by the Prefect without prior formal notice to the operator of an installation, unless there is significant threat for health and public order.82 The letter of formal notice is considered by the jurisprudence as a ‘guaranty or last warning’ for operators that enable them to regularise their legal situation before the issuance of sanctions.83 This is confirmed by the fact that 3,000 letters of formal notice were issued in 2006 and only 360 administrative sanctions were imposed (around 10% of the letters of formal notice ended-up in an administrative sanction).

2.3 Appeal against the administrative decision

2.3.1 By the operator

Pursuant to Article L.514-6 (I) (1) of the CoE, administrative sanctions issued by the Prefect for the infringement of provisions of the CoE on classified installations (Article L.514-1) are subject to appeal with unlimited jurisdiction. They may be deferred to the administrative jurisdiction by the applicants for authorisation or operators within a period of two months beginning on the day on which they were informed of the said rulings.

Article L.160-1 of the CoE defines operators as any public or private natural or legal person that effectively exercises or controls, as a professional, an economic activity profitable or non-profitable.

2.3.2 By a person other than the operator

Article L.514-6 (I) (2) of the CoE, provides that administrative sanctions issued by the Prefect for the infringement of provisions of the CoE on classified installations (Article L.514-1) are subject to appeal by the following third parties:

-Persons or legal entities;

80 CAA Bordeaux, 18 October 2005, ministre de l’Aménagement du territoire et de l’Environnement c/ société Terrena, req. n° 02BX00745 et 13 février 2006, ministre de l’Ecologie et du Développement durable c/ établissements Aubrun, req.n° 02BX01549) 81 Circulaire du 03/08/07 relative aux installations classées - Arrêt du Conseil d'Etat du 9 juillet 2007 sur la procédure de mise en demeure 82 CE, 31 Mai 1989, Société Corse de Pyrotechnie Socopy et autres 83 CAA Nantes 16 December 1998 Arrêt Duliere req.n 96NT00872 Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 45

-Municipalities or groups of municipalities;

They shall be concerned by the drawbacks or hazards the operation of the facility presents for the interests referred to in Article L. 511-1 (the convenience of the neighbourhood, public health and safety, agriculture, the protection of nature and the environment, the conservation of sites and monuments or elements of the archaeological heritage). They shall lodge a complaint to the administrative Court within a period of one year as of the publication or posting of the said rulings. However, if the installation did not start functioning after 6 months of the publication or posting of the ruling, a complaint can still be lodged 6 months after the start-up.

The time period is reduced to 6 months for quarries and one year to livestock farms and installations of public interest (See Article L.514-6 (II) of the CoE).

Persons in the neighbourhood

Interest parties are defined based on the geographic location of the installation, the nature of the installation, its size and its potential impacts on the interest set in Article L.511-1. It is noteworthy that persons lodging a complaint do not have to prove that they have an interest. It would be either the administration or the operators of the installation that will have to prove that the complainants do not have an interest to lodge a complaint.

Environmental associations

Pursuant to Article 6 of the Law of 1901, any association regularly declared can, without specific authorisation, access justice.84 An association can only challenge an administrative measure that was based on a legislation that has a direct link with its field of activities (e.g. environmental associations on administrative decisions taken pursuant to the legislation on classified installations). Moreover, to grant locus standi the judge shall take into account the geographical area of action mentioned in the Statutes of the association (the geographical element). An administrative sanction issued to an operator of an installation in a specific region of France could only be challenged by an environmental association that includes in its Statutes this region as a geographical area of action. Article L.142-1 paragraph 1 of the CoE specifically provides that any association for the protection of the environment is allowed to initiate a case before the administrative Court for any complaints relating to the association’s purposes. These associations shall however demonstrate that they have a legitimate interest to challenge this Act.

Pursuant to Article L.141-1 of the CoE, declared associations that exercise their statutory activities for at least three years, in the field of nature protection and the management of wild fauna, the improvement of the living environment, water protection, air, soils, sites and landscapes, and town planning, or those whose purpose is the control of pollution and nuisances and, in general, those working principally for the protection of the environment may be recognised by the administrative authorities are known as ‘approved environmental protection associations’.

Article L.142-1 paragraph 2 provides that these ‘approved environmental protection associations’ are considered as being entitled to act against any administrative decisions with a direct relation to their purpose and their statutory activities and generating harmful effects on the environment on all or part of the territory for which it is approved. They could, for instance, challenge an administrative sanction related to the infringement of the legislation on classified installations to the administrative Court because they consider that this sanction is not stringent enough to impede potential harmful effects on the environment.

Municipalities or groups of municipalities

84 Law of first July 1901 related to the association agreement (Loi du 1er juillet 1901 relative au contrat d'association) Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 46

Municipalities or groups of municipalities are entitled to challenge administrative sanctions issued for the infringement of provisions on classified installations. Pursuant to the French doctrine, their interest is defined based on the degree of exposition to potential nuisances from the installation and not only because the installation is on their territory. This is why the locus standi of municipalities was extended to foreign municipalities. For instance in the Mines de Potasses d’Alsace case the Council of State considered that some municipalities in Netherlands relying on Rhine water were entitled to challenge Orders of the Prefects related to the discharge carried out by a mining installation in the Rhine river.85

3. Judicial procedure (if relevant-with a focus on criminal sanctions)

3.1 General information

3.1.1 Initiation of a case and standing issues

The Public Prosecutor

As already mentioned above, when inspectors for classified installations identify infringements that could lead to a criminal sanction, they transmit this information in their formal record to the Public Prosecutor who decides whether or not to prosecute. The judiciary police (la police judiciaire) is also entitled to transmit identification of potential infringements to the Public Prosecutor (See Article L.514-13 of CoE).

Victims

Victims of the infringements can also provide allegations against the operators of classified installations before the Criminal Court (Tribunal correctionnel) or the Police. They also have the option to become private parties (partie civile) and file a claim before the Public prosecutor (juge d’instruction). Article 2 of the Code of Criminal Procedure, however provides that victims can bring this claim only if they have personally suffered damage directly caused by the offence. The jurisprudence strictly applies this causal link because it considers that criminal proceedings initiated by private parties shall remain the exception.

Environmental associations as potential victims

Before the entry into force of the Law of 2 February 1995 (loi Barnier)86, environmental associations were not entitled to initiate criminal proceedings if they did not prove that criminal environmental offences were affecting the assets of the association. This requirement impeded them to initiate criminal proceedings since most of the time it was not their patrimony that was affected but their collective interest (e.g. the protection of the environment). Such situation has changed with the application of this Law, codified in Article L.142-2 of the CoE, which facilitates the initiation of criminal proceedings by environmental protection associations.

Pursuant to this Article, environmental associations declared for at least five years are entitled to initiate criminal proceedings, as private parties, against alleged infringements of provisions on classified installations if their Statutes include the safeguarding of one of the following interests: convenience of the neighbourhood, public health and safety, agriculture, protection of nature and the environment, conservation of sites and monuments or elements of the archaeological heritage.

85CE, mine de potasses d’Alsace, 15 October 1990 N° 80523 86 Law n°95-101 of 2 February 1995 on the enhancement of environmental protection (Loi n°95-101 du 2 février 1995 relative au renforcement de la protection de l'environnement) Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 47

This Article also provides that approved associations, may exercise the rights recognised as those of the private parties with regard to acts which directly or indirectly damage the collective interests that they defend and which constitute an infringement of the legislative provisions relating to the protection of nature and the environment, to the improvement of the living environment, to the protection of water, air, soils, sites and landscapes, to town planning, or those whose purpose is the control of pollution and nuisances, and of the enactments for their application. These infringements would thus include criminal offences related to classified installations.

In other words, this provision gives the opportunity to almost all environmental associations to be constituted as private parties and to initiate criminal proceeding against infringements of provisions on classified installations.

Administrative bodies as potential victims

Several administrative bodies involved in the management of the environment such as:

 the Environment and Energy Management Agency (L'Agence de l'environnement et de la maîtrise de l'énergie);  the Coastal Protection Agency (le Conservatoire de l'espace littoral et des rivages lacustres);  Water Agencies (les agences de l'eau);  the National Hunting and Wildlife Office (l'Office national de la chasse et de la faune sauvage);  the National Monuments Centre (le Centre des monuments nationaux);  Chambers of Agriculture (les chambres d’agriculture);  Regional Parks (les parcs régionaux) and  Regional Forest Ownership Committees (les centres régionaux de la propriété forestière); may also exercise the rights recognised as those of the civil party at a criminal court in relation to the acts constituting an infringement of the provisions relating to classified installations (See Article L.132-1 of the CoE).

3.1.2 Timing

The time period to issue a criminal sanction varies a lot depending on the specificities of each case. Where the infringements are already identified (e.g. through an official record from inspectors), the alleged offender shall thus directly appear in Court and a first judgement can be issues within one year or 18 months. Where the infringements are not clearly identified and the Public prosecutor (le juge d’ instruction) shall further investigate, the first judgement can take place four or five years after the infringement. This is mainly due to the fact that several acts taken by the Public prosecutor during the investigation phase (l’instruction) can be challenged and subject to an appeal procedure.87

87Huglo Lepage & Partners, Criminal Penalties in EU Member States’ environmental law (2003) Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 48

It is important to note that the French legislator established in 2004 a ‘plead guilty’ procedure which is applicable to persons who have committed a crime punishable by a fine or imprisonment for a time period not exceeding five years. The sanctions for the infringement of classified installations fall within the scope of this procedure (e.g. to operate a facility without authorisation can lead for individuals to a fine of up to Euros 75,000 and/or one year imprisonment). Under this procedure the Public Prosecutor can directly propose without trial one or several penalties to a person (including legal persons) that admits the facts and the infringements. The imprisonment penalty proposed by the Public Prosecutor cannot be superior to one year and cannot exceed half of the time period of the one prescribed by law. S/he can also propose a suspension of enforcement. If the offender agrees on the proposal of the Public Prosecutor, this proposal shall be homologated by the President of the Tribunal the same day the proposal was issued. This homologation has the same effect than a judgement (See Articles 495-7 to 495-16 of the Code of Criminal Procedure). Overall this procedure is much faster than the normal criminal procedure.

3.2 Possibilities of appeal

All criminal judgements can be appealed, and the decisions taken by Courts of Appeal (Chambres correctionnelles des Cours d’appel) can also be brought to the highest Criminal Court (la chambre criminelle de la cour de cassation) that judges in law. Pursuant to Article 498 of the Code of Criminal Procedure, appeals to the Courts of Appeal shall be issued within 10 days after the judgement was pronounced. Pursuant to Article 568 of the Code of Criminal procedure the decision to appeal the judgement of the Court of Appeal to the highest criminal court shall be issued within five days after the decision of the Court of Appeal was pronounced.

4. Synergies between administrative and criminal procedures

Both administrative and criminal sanctions can apply for the infringement of the legislation on classified installation in France. These sanctions can be imposed separately on the offender and even be cumulative. For instance the non-respect of the requirement set in the letter of formal notice issued by the prefect to close an installation or suspend its activity can both lead to an administrative sanction (Article L.514-1 of the CoE) and a criminal sanction (Article L.514-11 of the CoE). The Constitutional Council considers that the rule of non bis in idem does not prohibit the combination of criminal and administrative sanctions incurred for the same facts since these sanctions do not have the same purpose and the interests they aim to safeguard are not identical. The Constitutional Council, however, provides that this cumulation of administrative and criminal sanctions shall be subject to the principle of proportionality. For instance, the total amount of administrative fines and criminal fines issued for the same facts shall not exceed the highest amount possible between these two penalties.88

5. Conclusions

Proportionality

Administrative sanctions, issued by the Prefect are: the suspension of the operation, the closure or removal of the installation, the sealing of the installation, the deposit of a sum corresponding to the cost of the work to be carried out and the enforcement ex officio of the measures required. Prefects can apply the appropriate sanction for each specific infringement. Such approach can be assessed as fulfilling the criterion of proportionality.

88 Constitutional Council Decision No ° 89-260 DC of 28 July 1989, § 16-22. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 49

The criminal offences related to the infringement of classified installations are very detailed in the CoE. Each of these specific offences has corresponding sanctions that can drastically differ from one to another. For instance the failure to notify modifications to the facility can lead to a fine up to Euros 1,500 while the operation of an installation without authorisation can lead to a fine up to Euros 75,000 and up to one year imprisonment. Furthermore Judges have leeway in the setting of criminal sanctions (e.g. up to certain amount or up to certain time-period of imprisonment). Criminal sanctions for the different infringement of provisions related to classified installations should thus be considered proportionate.

Effectiveness

The letter of formal notice is considered by the jurisprudence as a ‘guaranty or last warning’ for operators enabling them to regularise their legal situation before the issuance of sanctions. This approach is quite effective since almost all operators comply with the requirements set in the letter of formal notice, (for instance, in 2006, only 10% of letters of formal notice related to infringement on classified installations ended-up in an administrative sanction). Specific provisions are set in the CoE that facilitate appeals against administrative decisions related to classified installations by environmental associations and municipalities or groups of municipalities. The role of environmental associations and municipalities in the administrative procedure can concur to a more effective application of administrative sanctions.

Environmental associations, together with several administrative bodies involved in the management of the environment can be constituted private parties and take part in the criminal proceedings against infringements of provisions on classified installations. In 2004, the French legislator also established a plead-guilty criminal procedure. The majority of the criminal sanctions related to classified installations can be dealt with under this procedure which is much quicker than the normal one. The involvement of these private parties in the criminal procedure and the setting of the guilty plea procedure may lead to a more effective application of criminal sanctions related to the infringement of provisions on classified installations.

Dissuasiveness

The administrative sanctions are quite stringent (e.g. the closure or removal of the installation) although they do not comprise fines. The criminal sanctions can lead to a fine up to Euros 75,000 (Euros 375,000 for legal persons) and one year of imprisonment plus specific sanctions for legal persons (e.g. the final closure or a suspension of the installation for a period of five years). Administrative and criminal sanctions can be cumulative. This possibility reinforces their dissuasiveness.

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Case studies

Introduction

Information on the two cases was provided by Inspector of IPPC installations of the DRIRE89 respectively in charge of the Region Languedoc Roussillon and Picardy. In the first case study, the sanctioning procedure started in January 2001 and ended by a decision of the Criminal Court in April 2010. The operator was considered guilty but the Court decided not to impose a sanction because in the meantime the operator regularised the situation. The sanctioning procedure here was unusually long, more than 9 years. This example demonstrates the necessity for inspectors to have some sanctioning power. This may reduce the length of the sanctioning procedure for IPPC installations in France. In the second case study, the sanctioning procedure started in December 2005 and ended-up by a criminal sanction issued by the Court in June 2007 almost two years and a half. In the meantime the Prefect requested in April 2006, an administrative sanction which was the suspension of the activity until the operator regularised the situation. This administrative sanction was very effective and the operator quickly complied with the law. This example shows that even though administrative sanctions may not have the dissuasiveness of criminal sanctions, they seem however to be more effective. The sanctioning administrative procedure is less time consuming and more flexible than the criminal procedure.

Case study 1: enforcement procedure for operating without authorisation

Timeline of the procedure 10/2007

12/2000 Formal record to the Prosecutor Accidental spill

01/2001 04/2010

Letter of formal notice Decision of the Court

Description of the background The facility is established since 1986 in the outskirts of Nimes in an industrial zone. It produces and stocks chemical and maintenance products (e.g. liquid soap, swimming pool products, demineralised water). It employs 35 persons. In 2007 it had a turnover of Euros 17 million.

Legislation applicable

This installation requires an authorisation under Title V of the Code of the Environment on classified installation. It is an IPPC installation.

Administrative procedure In December 2000, an accidental spill of chemicals in the facility caused water pollution in a nearby river. This accident triggered an inspection from the DRIRE of the Languedoc Roussillon Region. This inspection revealed that the facility undergone substantial changes since 1986 and that some of its

89 General Directorate of Industry, Research and Environment (Direction Générale de l’Industrie de la Recherche et de l’Environnement) Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 51

activities were falling under the IPPC authorisation regime.90 The facility, however, was operating without IPPC authorisation.

In January 2001, the Prefect (the representative of the State in the Regions) issued a letter of formal notice requiring the facility to:

 Regularise activities falling under the regime of the IPPC authorisation (storage of flammable liquids, filling facilities, unloading tanks and storage warehouses for plastics);  Stop the unloading of truck tanks (unauthorized installation and not designed for that purpose);  Change the design of the area where truck tanks are unloading.

The operators did not comply with the letter of formal notice. However, the prefect did not issue administrative sanctions. Besides, the Inspection Department did not submit a formal record (procès- verbal) of the infringement to the Public Prosecutor (Procureur de la République).91

Only in September 2007, the operator of the facility submitted an application for authorisation to the Prefect. The Prefect sent the application to the Inspection Department for evaluation. The authorisation dossier was considered incomplete and not admissible by the Inspection Department.

In October 2007, the Inspection Department in accordance with Article L-514-13,92 reported to the Public Prosecutor the infringement of the following Articles of the Code of the Environment:

Article L512-1:The facilities that present serious hazards or drawbacks for the interests referred to in Article L. 511-1 [e.g. hazards or drawbacks for public health and safety, or for agriculture, or for the protection of nature and the environment] are subject to authorisation by the Prefect. The authorisation may be granted only if these hazards or drawbacks can be prevented by measures which are specified by the Prefect […].

Article L.511-1: When a classified facility is operated without the declaration or authorisation required by virtue of the present Title, the Prefect serves the operator with official notice to regularise the said situation before a given date limit, by submitting, as applicable, a declaration or an authorisation application […].

This formal record also mentioned that these infringements could lead to the sanctions covered by the following Articles of the Code of the Environment: Article L.514-9-1: The operation of a facility without the authorisation required is punishable by one year's imprisonment and a fine of Euros 75,000. Article L.514-11-2: The continued operation of a classified facility while failing to comply with the summons to meet, within a set time, the technical stipulations determined for the application of Articles L. 512-1 [on the obligation of authorisation] […] is punishable by six months' imprisonment and a fine of Euros 75,000.

Result of in-situ analyses requested by the Inspection Department in 2003 showed a pollution of the underground water below the facility by hydrocarbon and ethyl alcohol. In December 2007 the Prefect required the operator of the facility to take urgent necessary measures to stop this water pollution.93 These measures were consequently taken by the operator.

90 This facility registered in 1986 under the declaration regime. There are no inspection requirements for facilities falling under this regime. 91The Public Prosecutor is in charge of deciding whether or not criminal proceedings must be initiated. 92Official translation of Article L514-13: Infringements are officially reported by officers of the judiciary police and classified facility inspectors. These reports are drawn up in duplicate, one copy being sent to the Prefect and the other to the Public Prosecutor. They have probative force unless proven otherwise. 93This decision was based on Article L512-7 of the Code of the Environment. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 52

A new application for authorisation was submitted to the Prefect in June 2008. It was again considered as incomplete and not sufficiently developed by the Inspection Department. The Prefect issued a letter of formal notice requiring the facility to comply with all legal requirements on classified installation within a time period of three months.

A new application was submitted to the Prefect in February 2009. The Inspection Department’s assessment concluded that the data used related to the emission of solvents were wrong. The Inspection Department required the operator to set a management plan on emission of solvents to justify that they were complying with the relevant emission limit values requirements.

In March 2009, the operator has provided the Inspection Department with a management plan of solvents.

In May 2009, the operator submitted to the Prefect a new application dossier for an IPPC authorization. This dossier was considered acceptable and the public enquiry procedure did not reveal any opposition against the authorization. The authorisation was granted end of 2009.

Criminal procedure

The Department of Inspection in charge of classified installations issued in 2007 a formal record mentioning several infringements to the legislation on classified installations to the Public prosecutor of the Republic. Inspectors considered that there was ground for starting a criminal procedure. The Public Prosecutor decided to initiate a criminal procedure against the operator (natural person) of the facility. No civil parties were involved in the criminal proceedings. The Criminal Court of Nimes pronounced its judgment in June 2010. No appeal was lodged against the decision of the Court.

Information on the sanction

The operator was considered guilty by the Criminal Court of Nimes (le Tribunal correctionnel) for the infringement to Articles L.512-1 and L.511-1 of the Code of the Environment (quoted above) for operating a facility without an authorisation and for not complying with the letter of formal notice of the Prefect. However, no sanction was imposed on the operator. The Court decided not to impose sanctions considering the fact that the facility was already complying with the legislation on classified installations before the end of the criminal procedure.

Effectiveness

The interviewee stressed that sanctions could be more effectively applied if inspectors were empowered to issue sanctions like pecuniary fines instead of being only limited to submit formal records to the Public Prosecutor and the prefect. It pointed out that the criminal procedure could sometimes be quite long and thus limit the efficiency of the sanctions. For instance in this specific case the inspector transmitted a formal record to the Public Prosecutor in 2007 and the Criminal Court issued its decision only in 2010, three years later.

He also stated that the role of civil parties in the criminal procedure could be a factor of effectiveness. He mentioned that civil parties were not sufficiently involved in the criminal procedure because they were not aware of the official records submitted by the inspectors to the Public Prosecutor. He

Official translation of Article L512-7: In order to protect the interests referred to in Article L. 511-1, the Prefect may order the evaluations to be conducted or the remedies to be implemented which are rendered necessary either by the consequences of an accident or an incident occurring in the facility, or by the consequences of a failure to comply with the conditions imposed by the present Title, or by any other hazard or drawback interfering or threatening to harm the aforementioned interests. These measures are set out in rulings issued, except in case of an emergency, after an opinion has been given by the competent advisory commission on the level of the department. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 53

underlined that these documents were publically available on request but were not published on internet or posted in a public place.

Proportionality

The interviewee underlined that as ‘an internal rule’ formal records of infringements to the legislation on classified installations were only submitted to the Public Prosecutor if there was a potential threat for health and the environment. Similarly it mentioned that administrative sanctions such as the suspension of the activity were more likely to be issued when there was no sign of cooperation from the operator to comply with the letter of formal notice and that this non-compliance could potentially lead to a threat for human health and the environment.

As a general conclusion the interviewee underlined that the protection of human health and the environment was the main priority of inspectors. If there was no such threat and the operators were willing to comply with the legislation it would be unlikely that an administrative or criminal procedure would be initiated. This is mainly to limit the impact of the sanction on other interests such as the economic situation of the facility and its employees.

Dissuasiveness

According to the interviewee, the behaviour of the operator changed from the moment he was aware of the formal record submitted to the Public Prosecutor for the infringement to the legislation on classified installations. The operator pro-actively requested the grant of an IPPC authorisation to comply with the legislation on classified installations. The interviewee also noted that the initiation of the criminal procedure in the case mentioned above had a deterrent effect on the other operators of classified installations in the nearby areas.94

Case Study 2: administrative and criminal sanctions for operating without authorisation

Timeline of the procedure

12/2005 Inspector formal record to the Prosecutor for 06/2007: criminal 04/2006: administrative infringement sanction issued by sanction by the Prefect: the Court suspension of the activity

01/2006

Letter of formal notice sent by the prefect

Description of the background

94 The interviewee explained that part of the deterrent effect was due to the notoriety of the operator of the facility who was the representative of the employer association in the Region Languedoc Roussillon. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 54

The installation is a landfill of non-hazardous waste. When it first started operating in 1998 the site was authorised to store 28,500 tons per year of waste. Now it is authorised to store 100,000 tons per year. It is one of the three main treatment centres of household waste in the L’Aisne (a French Region at the North of Paris). Its activity was extended several times, the last extension being in 2008. A first IPPC authorisation was granted for three sections of the landfill site. When these sections were full the operator built another section without requiring an authorisation. This section was authorised retrospectively but for a limited period of time. The operator then requested an authorisation for ten sections. An authorisation was granted for these ten sections. The operator started building these ten sections but could not finish on time and therefore continued operating the newly built section even though the time period for the authorisation ended. In other words this section was used without authorisation.

Legislation applicable

This installation requires an authorisation under Title V of the Code of the Environment on classified installation. It is an IPPC installation falling under Point 5.4 of Annex I to the IPPC Directive.95

Procedure

In December 2005 the Department of Inspection of the DRIRE in Picardy visited the site of the facility. The inspectors discovered that one section of the landfill was in use without authorisation. A formal record was sent to the Public Prosecutor mentioning this infringement. The gendarmerie (a military force charged with police duties among civilian population) heard the operator. The Public Prosecutor sought the opinion of the Department of inspection. He/she finally decided to initiate criminal proceedings against the operator.

Beginning of 2006, the Prefect sent a letter of formal notice to the operator with an injunction to regularise its legal situation. In April 2006, since the operator did not comply with the letter of formal notice, the Prefect decided, as an administrative sanction, to suspend the operation of the section until an authorisation was granted. In June 2007, the case was heard at the Criminal Court who issued its decision in September 2007. The operator was considered guilty to operate a facility without authorisation and was imposed a criminal fine of Euros 10,000.

General comments on sanctions

The interviewee considered that the operation of an installation without an authorisation was one of the most serious offence (délits) related to the legislation on classified installations. This offence could lead to one year's imprisonment and a fine of Euros 75,000. This is the reason why the Public Prosecutor decided to initiate criminal proceedings at the Criminal Court (Tribunal Correctionnel) which is dealing with offences and not at the Police Tribunal (Tribunal de Police) which is dealing with petty offences (contravention).

He pointed out that compared to other countries inspectors of IPPC installations in France did not have sanctioning power.

Effectiveness

The interviewee underlined that the criminal sanction was issued after the infringement ended. The operator was granted an authorisation before the decision of the Criminal Court was issued. He

95Landfills receiving more than 10 tonnes per day or with a total capacity exceeding 25,000 tonnes, excluding landfills of inert waste. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 55

considered that the administrative sanction, to suspend the operation of the activity by the Prefect until the authorisation was granted, was very effective since the operator promptly regularized its situation.

Proportionality

Pursuant to Article L.514-9 of the Code of the Environment, the operation of a facility without the authorisation required is punishable by one year's imprisonment and a fine of Euros 75,000. In that case the Criminal Court decided to impose a criminal sanction on the operator of Euros 10,000. The interviewee indicated that the sanctions and their level were never motivated by the Court. He, however, supposed that the sanction was not so high because the operator regularized its situation before the end of the criminal procedure. He also mentioned that the fact that incoming household waste had to be treated anyway might have been considered as a mitigating circumstance, to operate a section without authorisation.

Dissuasiveness

The interviewee said it was extremely difficult to assess the dissuasiveness of such a sanction on the operator and on operators of similar installations. He, however, mentioned that inspectors visited the site several times (two to three visits per year) since the issuance of the sanction and they did not notice any infringements to the legislation on classified installations.

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Bibliography

Ministère de l’Ecologie du Développement durable des Transports et du Logement, inspections des installations classées, bilan détaillé des actions nationales (2010)

Serge Rock Moukoko, le plein contentieux spécial des installations classées, Thèse de doctorat de l’Université de Metz, (2009)

Legifrance, Guide de légistique, (2008) Available at: http://www.legifrance.gouv.fr/html/Guide_legistique_2/sommaire_guide_leg.htm,

Milieu Ltd & Huglo Lepage, Study on measures other than criminal ones in the EU Member States, National report for France, (2004)

Huglo Lepage & Partners, Criminal Penalties in EU Member States’ environmental law (2003)

Ministère de l’Ecologie du Développement durable des Transports et du Logement, ‘the Inspectorate of Classified Installations Environmental policing of industrial and agricultural facilities’ available at: ttp://installationsclassees.ecologie.gouv.fr/IMG/pdf/plaquetteIC anglais.pdf

Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 57

Annex III- Germany

Sanctions and procedures applicable to breaches of the legislation on industrial emissions in Germany

Executive Summary

In Germany, measures to respond to infringements of IPPC related obligations consist of administrative (quasi) criminal penalties, criminal penalties and administrative measures. Whereas the penalties aim to punish the perpetrator, administrative measures are aimed to prevent or eliminate infringements of IPPC-related obligations.

The Federal Immission Control Act, the Federal Waste Management Act and the Federal Water Act mainly transpose the IPPC Directive and provide for administrative (quasi) criminal sanctions in relation to almost all IPPC related obligations.

The legislation of the 16 Federal States (Länder)96 complements the transposition of the IPPC Directive and provides for a few additional administrative criminal penalties for infringements.

Federal and Länder administrative (quasi) criminal penalties range from Euros 5 to 50,000. Irrespective of this, the fine should be higher than the economic benefit that the perpetrator has drawn from the perpetration of the administrative (quasi) criminal offence. Hence, a fine may be much higher than Euros 50,000.

In the light of the discretionary principle, it is left to the discretionary power of the competent regulatory authorities, whether or not they prosecute an administrative (quasi) criminal offence.

The environmental criminal law, regulated on the federal level, punishes infringements of major IPPC- related obligations, e.g. infringements of the permit requirement, with up to three years of imprisonment or a fine. In addition, the general environmental criminal law punishes infringements of IPPC-related obligations, if these infringements cause significant damage to the environment, i.e. flora and fauna, soil, water or air with up to five years of imprisonment or a fine. In application of the principle of mandatory prosecution, the regional public prosecution offices must prosecute criminal offences.

The Federal Immission Control Act provides the competent regulatory authorities of the Länder with various measures to enforce compliance with IPPC related obligations, the most stringent of which are the closure or removal of the installation and the withdrawal of the permit. The Federal Waste Management Acts of the Länder provide for similar measures in relation to IPPC landfills. A permit to discharge waste water from IPPC installations (or a permit for other IPPC related water usages) can be withdrawn on the basis of the Federal Water Act.

To monitor the operator’s compliance, the competent authorities of the Länder are entitled to inspect the installation and the operational premises, to audit operational documents and to take samples without prior notification to the operator. The operator is obliged to cooperate with the inspectors and to provide them with the requested information. Operators can challenge administrative (quasi) criminal penalties and criminal penalties before the criminal courts and administrative measures before the administrative courts. In the case of administrative (quasi) criminal penalties and administrative measures, the procedural rules require that the administrative decision is first reassessed by an administrative authority before a court procedure may be initiated (hierarchical recourse).

96 This study not exhaustively reflects the Länder legislation, but presents examples of different Länder. It focuses on the legislation of North-Rhine Westphalia. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 59

Neither individuals nor non-governmental organisations are entitled to join the administrative (quasi) criminal or the criminal procedure. Neighbours are entitled to challenge a permit for an IPPC installation if this installation violates their property rights or health. The Court of Justice of the European Union decided with judgement97 of 12 May 2011 that the national legislation regulating the standing of non-governmental organisations in court procedures infringes Directive 2003/35/EC and that, as a minimum, non-governmental organisations must have standing to enforce all national provisions based on European environmental legislation.

The table below indicates the Articles of the IPPC Directive covered by sanctions/measures in Germany.

Table 1: Enforceable provisions covered by penalties in Germany

Administrative measures and Administrative (quasi) Article Criminal sanctions sanctions criminal sanctions IPPC Directive Catch-all § 17 BImSchG 98 - - 4 § 20(1) BImSchG § 327(2) no.1 and no.3, (3) § 62(1) no.1 and (3) in § 20(2) BImSchG StGB conjunction with § 4 and § 16 Federal Immission Control Act (BImSchG)

§§ 61(1) no.2a, § 31(2) of the Federal Waste Management Act (KrW-/AbfG)

§ 41(1) no.1 of the Federal Water Act. 5 - - § 62(1) no.1 and (3) in conjunction with § 4 and § 16 Federal Immission Control Act (BImSchG)

§§ 61(1) no.2a, § 31(2) of the Federal Waste Management Act (KrW-/AbfG)

§ 41(1) no.1 of the Federal Water Act. 6 - - §§ 4, 4a of the Federal Ordinance on the Permit Procedure (9.BImSchV)

§§ 73(1) of the Administrative Procedure Acts of the Länder 12 (1) § 20(2) BImSchG - § 62 (2) no.1 and (3) in conjunction with § 15(1) BImSchG 12 (2) § 20(2) BImSchG § 327(2) no.1 and no.3, (3) § 62 (2) no.1 and (3) in StGB conjunction with § 15(1) BImSchG 14 (a) § 21(1) no.2 and no.3 BImSchG § 327(2) no.1 and no.3, (3) § 62(1) no.3 and (3) in StGB conjunction with § 8a(2) sentence 2 or 12(1) BImSchG; § 62(1) no. 5 and (3) in conjunction with § 17(1)

97 Judgement of the European Court of Justice of 12 May 2011, in case C-115/09, Friends of the Earth Germany (BUND) vs. district government Arnsberg. 98 Compliance with the requirements set by law and the conditions of the permit. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 60

BImSchG

§§ 61(1) no.2b, 32(4) KrW- /AbfG 14 (b) - - § 62(2) no. 3 and (3) in conjunction with § 31 sentence 1 BImSchG

§ 27(1) no.27 of the Federal Landfill Ordinance (DepV) in conjunction with § 61(1) no.5 KrW-/AbfG 14 (c) - - § 62(2) no.4 and no.5 in conjunction with § 62 (3) and § 52 BImSchG

§ 61(2) no.3 and (3) KrW- /AbfG

§ 61(2) no.4 and (3) KrW- /AbfG

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1. Applicable sanctions

National measures to respond to an infringement of IPPC-related obligations consist of administrative (quasi) criminal penalties, criminal penalties and administrative measures. While administrative (quasi) criminal penalties and administrative measures are regulated in the legislation transposing the IPPC Directive, i.e. the Federal Immission Control Act,99 the Federal Waste Management Act,100 the Federal Water Act101 and the complementing Länder legislation, the criminal penalties are laid down in the German Criminal Code,102 in the chapter concerning environmental criminal law. Administrative (quasi) criminal penalties and criminal penalties are aimed to punish the perpetrator.103 Administrative measures, on the other hand, are aimed to prevent or eliminate an infringement of IPPC-related obligations and to restore legality if the infringement has already taken place.104

1.1. Administrative (quasi) criminal and criminal penalties

Administrative (quasi) criminal penalties cover the infringements of all enforceable provisions of the IPPC Directive, whereas criminal penalties only cover its main obligations (see Table 1 above). Criminal and administrative (quasi) criminal offences follow the same structure, e.g. they require that the perpetrator committed the offence deliberately or negligently. However, administrative (quasi) criminal offences and environmental criminal offences differ in terms of applicable penalties. Whereas administrative (quasi) criminal offences are punished with a fine, criminal offences are punished with imprisonment and/or a fine.105 Furthermore, in general, administrative (quasi) criminal penalties are aimed to punish petty offences while criminal penalties are applicable in the case of more severe crimes.106

To differentiate exactly between administrative (quasi) criminal and criminal penalties is important, because criminal law and administrative (quasi) criminal law diverge in many aspects. Some penalties are only available under criminal law, e.g. imprisonment or the ban to carry out a certain profession. In addition, where it is left to the discretionary power of the competent authority to prosecute an administrative (quasi) criminal offence (§ 47 of the AdministrativeCriminal Offences Act – OWiG), the public prosecutors are obliged to investigate and prosecute a criminal offence under the principle of mandatory prosecution (§ 152 of the Code of Criminal Procedure – StPO). Finally, the procedural rules are regulated in different procedural acts and differ substantially. The procedural rules for the prosecution and punishment of administrative (quasi) criminal offences are regulated in the Administrative Criminal Offences Act and the procedural rules for the prosecution and punishment of criminal offences are regulated in the Code of Criminal Procedure.107 This section at first outlines the applicable administrative (quasi) criminal penalties and in its second part deals with IPPC-related criminal penalties.

99 Federal Immission Control Act in the version promulgated on 26 September 2002 (Federal Law Gazette 2002, I p. 3830) last amended by article 3 of the Act of 1 March 2011 (Federal Law Gazette 2011, p. 282) – Bundesimmissionsschutzgesetz. 100 Federal Waste Management Act of 27 September 1994 (Federal Law Gazette 1994 I p. 2705), last amended by article 8 of the Act of 11 August 2010 (Federal Law Gazette 2010 I p. 1163) – Kreislaufwirtschafts- und Abfallgesetz. 101 Federal Water Act of 31 July 2009 (Federal Law Gazette I p. 2585), last amended by Articel 12 of the Act of 11 August 2010 (Federal Law Gazette 2010 I p. 1163) – Wasserhaushaltsgesetz 102 German Criminal Code in the version promulgated on 13 November 1998 (Federal Law Gazette 1998 I p. 3322), last amended by article 4 of the Act of 23. June 2011 (BGBl. I 2011 p. 1266) – Strafgesetzbuch 103 Milieu and Huglo Lepage; National Study on Germany as part of the Study on measures other than criminal ones in cases where environmental Community law has not been respected in the EU Member Länder; p. 14. 104 Ibid. 105 Mitch, Law of administrative (quasi) criminal offences, § 3 paragraphs 4 and 5. 106 Mitch, Law of administrative (quasi) criminal offences, § 3 paragraph 7; Bohnert, Law of administrative (quasi) criminal offences, layout for practioners and students, A. II. 1. 107 With regard to the practical differences between criminal and administrative (quasi) criminal law see: Mitch, Law of administrative (quasi) criminal offences, § 3 paragraph 1.

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1.1.1. Administrative (quasi) criminal penalties

The Federal Immission Control Act, the Federal Waste Management Act and the Federal Water Act mainly transpose the IPPC Directive and set the applicable administrative (quasi) criminal penalties.

Most IPPC installations are subject to the permit procedure under the Federal Immission Control Act that sets the regulatory framework for the protection from emissions into the air. Therefore, this act includes most of the administrative (quasi) criminal penalties for infringements of IPPC related obligations. Some sanctions are also regulated in the Federal Waste Management Act and the Federal Water Act that set the regulatory framework for the management of waste and the protection of water bodies and complement the Federal Immission Control Act in transposing the IPPC Directive.

Only IPPC landfills are subject to the permit procedure under the Federal Waste Management Act. This act and the Federal Landfill Ordinance set the main regulatory requirements for IPPC landfills and sanction infringements of IPPC related obligations. Complementary obligations and sanctions are regulated in the Federal Immission Control Act and the Federal Water Act.

In order to comply with the water related IPPC requirements operators of all IPPC installations need a permit for the discharge of waste water from these installations and for additional water usage under the Federal Water Act; the discharge of waste water and the usage of water without permit is sanctioned. Besides penalties, as additional measure to limit the discharge of waste water, Germany has adopted a waste water charge (Federal Waste Water Charges Act – AbwAG). The scale of this charge depends on the types of polluting substances concerned.

The administrative (quasi) criminal penalties cover almost all infringements of national obligations transposing the IPPC Directive. The applicable fines ( ‘Bußgelder’) range from Euros 5 to Euros 50,000. Whereas severe offences are sanctioned with maximum fines of Euros 50,000 (e.g. the operation without a permit) less severe offences are sanctioned with maximum fines of Euros 10,000 (e.g. the non-provision of information to inspectors). In case of a negligent perpetration the scale of the fine is reduced by half. Legal persons can be fined to the same extent as individuals if their representatives commit the offence.

The amount of the fine imposed on the perpetrator for committing a specific offence is determined by an assessment of the severity of the offence, the level of guilt of the perpetrator and his financial situation (§ 17(3) OWiG). Irrespective of these criteria, the fine should be higher than the economic benefit that the perpetrator has drawn from the perpetration of the administrative (quasi) criminal offence. Hence, a fine may be much higher than Euros 50,000 (§ 17(4) OWiG). ‘Should’ must be interpreted so that the competent authority is required to apply this rule in typical cases, however, is enabled to derogate from it in a-typical cases.

In addition, the Länder specifies the scale of fines by adopting indicative catalogues of fines. According to the catalogue of fines for infringements against environment related provisions of North- Rhine Westphalia (‘Bußgeldkatalog Umwelt’) of 2006108 the scale of fines for the construction of installations (including IPPC) without permit (i.e. unauthorised construction) depends on the value of the constructed installation:  If the value of the installation is less than Euros 50,000 ,the fine ranges between Euros 510 and 2,600;  If the value of the installation is between Euros 50,000 and 500,000 ,the fine ranges between Euros 510 and 5,100;

108 The fine catalogue environment of North-Rhine Westphalia of 2006 was established by the Ministry for the Environment, Nature Conservation, Agriculture and Consumer Protection of North-Rhine Westphalia and is available at: http://www.kreisjaegerschaft-coesfeld.de/red/ges-bussgeldkatalog-umwelt-nrw-2010-02-27.pdf Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 63

 If the value of the installation is between Euros 500,000 and 5,000,000 ,the fine ranges between Euros 2,600 and 25,600; and  If the value of the installation is more thatn 5,000,000 , the fine ranges between 5,100 and 50,000. The catalogue contains indicative fines for many other infringements.

To enforce the payment of the fine the convicted person may be arrested for a maximum of six weeks if one offence has been committed and for a maximum of three months if several offences have been committed (§ 96 OWiG). However, these measures only serve to enforce the punishment and are not measures of punishment per se. The alleged perpetrator has two weeks to appeal against the fine after he has received the fine notice. If he does not appeal against the fine, he must pay the fine four weeks after the receipt of this notice (§ 66 OWiG).

Note that the Länder legislation includes complementary legislation to transpose the IPPC Directive that also provides for administrative (quasi) criminal sanctions. All 16 Länder have adopted laws that regulate the requirement to provide for an emission declaration in relation to the discharge of waste water. Some laws sanction the lack of, late or incorrect notification of this declaration to the competent authority with a fine (e.g. § 14 of the Bavarian IPPC-Wastewater-Ordinance that provides for a fine of up to Euros 5,000). In addition, some of the waste management acts of the Länder provide for complementary provisions and sanctions, e.g. the failure to report accidents of IPPC landfills and other IPPC waste disposal facilities to the competent authority is sanctioned by North-Rhine Westphalia with a fine of up to Euros 50,000 (§ 44(1) no.9 and (2) of the Waste Management Act of North-Rhine Westphalia).

1.1.2. Criminal penalties

The environmental criminal law sanctions the operation of or significant changes to an IPPC installation without permit or the infringement of essential permit requirements,109 e.g. infringements 110 of mandatory emission limit values (§ 327(2) no.1 (3) of the Criminal Code – StGB). In case of an intentional perpetration of these offences the penalty is imprisonment for a maximum of three years or a maximum fine of 360 daily units and, where legal persons are liable for their representatives, up to an amount of Euros 1,000,000. In case of negligence the penalty is imprisonment for a maximum of two years or a maximum fine of 360 daily units and, where legal persons are liable for their representatives, up to an amount of Euros 500,000. The same penalties apply to operators that run a landfill in the meaning of the Waste Management Act without a permit or in non-compliance with essential permit requirements (§ 327(2) no.3, (3) of the national Criminal Code).

If these offences are committed under aggravated circumstances the punishment is between six months and 10 years (§ 330(1) no.1 StGB). Environment-related aggravated circumstances are met if the unauthorised operation is carried out deliberately and seriously and permanently pollutes a river, soil or protected areas, if it endangers the water supply or, lastly, if endangered species of fauna and flora are permanently damaged.

It is left to the discretionary power of the criminal judge to determine the penalty taking into account the severity of the crime and the personal guilt of the perpetrator. In relation to the financial penalties the judge is entitled to impose penalties between a minimum of three and a maximum of 360 daily units. The judge determines the amount of one daily unit while taking into account the economic background of the convict. The amount of one daily unit is a minimum of Euro one and a maximum of Euros 30,000.

109 See Fischer, Legal commentary to the Criminal Code, § 327 paragraph 12. 110 Ibid. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 64

Additionally, German environmental criminal law contains a number of provisions (§ 324-330d StGB) that sanction the violation of administrative provisions if these violations lead to serious negative impacts on the environment. In accordance with § 325(1) of the Criminal Code for example the operation of an installation in violation of duties under administrative law that causes air pollution which can harm human health, animals, plants or other property of significant value shall be punished. The perpetrator is liable to imprisonment for a maximum of five years or a maximum fine of 360 daily units in case of an intentional perpetration and to imprisonment for a maximum of three years or a maximum fine of 360 daily units in case of negligence (liability of legal persons for intentional perpetration: maximum fines of Euros 1,000,000; liability of legal persons for negligence: Euros 500,000).

In addition to penalties, the court is entitled to confiscate the profit of the operator made by the perpetration of the environmental crime (§§ 73 ff. of the Criminal Code).

It is noteworthy that the principle of administrative accessoriness applies to environmental criminal law.111 In accordance with this principle, the offences are only punishable under the condition that the perpetrator violates an administrative obligation, e.g. operates an installation without a permit. The legitimacy of the application of this principle is controversially discussed in Germany.112 However, in accordance with the opinion of the national courts and the majority of legal scholars113 the application of this principle does not breach the Constitution and is considered as legitimate.

It should be also mentioned that the current environmental criminal law is subject to reform in the framework of the transposition114 of Directive 2008/99/EC on the protection of the environment through criminal law.115

Table 2 below indicates the main administrative (quasi) criminal and criminal offences and related penalties applicable at the federal level in Germany for each of the key enforceable obligations under the IPPC Directive.

111 This principle does not apply in the context of § 330a of the Criminal Code. Under certain conditions this provision sanctions anyone who diffuses or releases substances which contain or can generate poisons. 112 However, in accordance with the opinion of the national courts and the majority of legal scholars112 the application of this principle does not breach the constitution and is necessary. 113 See Thomas Fischer, commentary to the Criminal Code, 57 edition 2010, prior to § 324 paragraph 6 114 The transposition deadline expired on 26 December 2010. 115 Available at: http://dipbt.bundestag.de/dip21/btd/17/053/1705391.pdf - To initiate the legislative procedure, the federal government submitted its bill to the federal parliament where the bill received its first reading on 7 July 2011. Three readings are necessary before it can be adopted. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 65

Table 2: Directive 2008/1/EC (IPPC Directive): types of offences and related administrative (quasi) criminal and criminal penalties in Germany

Administrative (quasi) criminal Criminal Offences Penalties (intentional/negligent) Offences Penalties (intentional/negligent) Obligation to apply for Intentional/ negligent construction of or Maximum fine of Euros 50,000/25,000 Intentional/ negligent operation of or Maximum imprisonment of 3 years a permit for new or making substantial changes to IPPC identical fines for legal persons. substantial change to an IPPC or a maximum fine of 360 daily existing installations installations that require a permit under installation. units/ maximum imprisonment of 2 the Federal Immission Control Act § 327(2) no.1 and no.3, (3) StGB years or a maximum fine of 360 daily without permit. units, legal persons: Maximum fines § 62(1) no.1 and (3) in conjunction of Euros 1,000,000/ Euros 500,000. with § 4 and § 16 Federal Immission Control Act (BImSchG)

Construction of or substantial changes to Maximum fine of Euros 50,000/25,000 landfills without plan approval. identical fine for legal persons. §§ 61(1) no.2a, § 31(2) of the Federal Waste Management Act (KrW-/AbfG)

Discharge of waste water from Maximum fine of Euros 50,000/25,000 installations without a permit. identical fine for legal persons. § 41(1) no.1 of the Federal Water Act. Obligation to supply Obligation to provide specific The infringement of these obligations N/A N/A information for information for permit application under does not lead to sanctions, but as a application for the Federal Immission Control Act. consequence of this infringement the permits §§ 4, 4a of the Federal Ordinance on authority will not grant the permit. the Permit Procedure (9.BImSchV)

Obligation to provide information within the plan approval procedure for waste facilities that are subject to an Environmental Impact assessment on the other hand. §§ 73(1) of the Administrative Procedure Acts of the Länder Obligation to notify Intentional/ negligent non-notification, Maximum fine of Euros 10,000/5,000 N/A N/A the competent incorrect, incomplete or late notification identical fine for legal persons. authority of any of any changes to an installation that changes in the requires a permit under the Federal operation of an Immission Control Act (not for installation landfills). § 62 (2) no.1 and (3) in conjunction Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 66

Administrative (quasi) criminal Criminal Offences Penalties (intentional/negligent) Offences Penalties (intentional/negligent) with § 15(1) BImSchG Obligation to comply IPPC-installations (without IPPC Maximum fine of Euros 50,000/25,000 Intentional/ negligent violation of Maximum imprisonment of 3 years with the conditions set landfills): identical fine for legal persons. essential requirements of the permit or a maximum fine of 360 daily in the permit or Intentional/ negligent non-compliance, for an IPPC installation. units/ maximum imprisonment of 2 mandatory ELVs incorrect, incomplete or belated § 327(2) no.1 and no.3, (3) StGB years or a maximum fine of 360 daily compliance with enforceable conditions units, legal persons: Maximum fines or obligations set in the permit (or a of Euros 1,000,000/ 500,000. licence for premature beginning) or with subsequent administrative acts that are aimed to enforce the compliance with the requirements of the BImSchG for IPPC installation. § 62(1) no.3 and (3) in conjunction with § 8a(2) sentence 2 or 12(1) BImSchG; § 62(1) no. 5 and (3) in conjunction with § 17(1) BImSchG

To non- incorrectly, incompletely or Maximum fine of Euros 10,000/5,000 lately inform inspectors; to prohibit identical fine for legal persons. inspections, non- provision of documents for inspectors in case of inspections; to refuse to allow inspectors to take samples in case of inspections or that they scrutinise the level of emissions. § 62(2) no.4 and no.5 in conjunction with § 62 (3) and § 52 BImSchG

Non-reporting of the results of the Maximum fine of Euros 10,000/5,000 measurements of the emissions or non- identical fine for legal persons. storing of recordings based on the results of the measuring devices. § 62(2) no. 3 and (3) in conjunction with § 31 sentence 1 BImSchG

Non-, incorrect, incomplete or late Maximum fine of Euros 25,000/12,500 reporting to the authority that an identical fine for legal persons. accident has taken place (mainly transposes Seveso II Directive). Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 67

Administrative (quasi) criminal Criminal Offences Penalties (intentional/negligent) Offences Penalties (intentional/negligent) § 21(1) no.15 and § 19(1) and (2) of the Federal Major Accident Ordinance in conjunction with § 62(1) no.2 and (3) of the BImSchG

IPPC landfills: Non-compliance with conditions set in Maximum fine of Euros the permit for a landfill or with 50,000/25,000identical fine for legal administrative acts. persons. §§ 61(1) no.2b, 32(4) KrW-/AbfG

Non-information of the authority should emission thresholds be exceeded, Maximum fine of Euros 50,000/25,000 triggering the obligation of the operator identical fine for legal persons. of the landfill to inform the competent authority. § 27(1) no.27 of the Federal Landfill Ordinance (DepV) in conjunction with § 61(1) no.5 KrW-/AbfG

Non-reporting to the authority on accidents that lead to a significant Maximum fine of Euros 50,000/25,000 malfunction of the landfill operation. identical fine for legal persons. § 27(1) no.32 of the DepV in conjunction with § 61(1) no.5 of the KrW-/AbfG

Non-, incorrect, incomplete or late provision of information on landfills and Maximum fine of Euros 5,000/10,000 their operation, if requested for by identical fine for legal persons. inspectors. § 61(2) no.3 and (3) KrW-/AbfG

To prohibit inspectors from entering the installation, premises or Maximum fine of Euros 5,000/10,000 accommodation, auditing operating identical fine for legal persons. documents or carrying out technical measurements. § 61(2) no.4 and (3) KrW-/AbfG *ELVs: Emission Limit Value Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 68

1.2. Administrative measures

Besides penalties, the national legislation provides for administrative measures to enforce the compliance with the permit and the legislation on IPPC installations (administrative measures).

In urgent cases the police forces of the Länder are entitled to take administrative measures based on the police and regulatory laws of the Länder. These acts enable the police forces to carry out the necessary measures to prevent and eliminate infringements of IPPC related obligations.116

In non-urgent cases the competent regulatory authority of the Länder (competent authority) is responsible to address infringements of IPPC related obligations set under the Federal Immission Control Act, the Waste Management Act and the complementary Länder legislation.117 The most lenient administrative measure to enforce compliance is to order the operator to comply with the requirements set by law and the permit in a formal procedure (§ 17 BImSchG). If the operator continues the unlawful operation, the competent authority has several options to enforce compliance. The competent authority is entitled to stop the operation of an installation if the operator does not comply with the installation related requirements or administrative measures (§ 20(1) BImSchG) until the operator ensures compliance. The competent authority is obliged to close or remove an installation if the installation has been constructed or significantly changed without a permit (§ 20(2) BImSchG). As a further measure, the competent authority can withdraw the permit, e.g. if the operator does not comply with requirements set in the permit or if the authority would be entitled not to grant the permit due to circumstances that have occurred after the granting of the permit (§ 21(1) no.2 and no.3 BImSchG).118

It is noteworthy that the competent authority is also authorised to stop the operation of an IPPC installation if it comes to the conclusion that the operator is deemed not trustworthy to run an installation in compliance with provisions ensuring environmental protection and that the cessation of operations is required for the reason of public interest (§ 20(3) BImSchG).

The Federal Water Act entitles the competent authorities to withdraw a permit for the discharge of waste water from IPPC installations and for other installation related water usages under the conditions mentioned in relation to the withdrawal of permits for IPPC installations (§ 18(2) of the Federal Water Act).

Provided that an operator refuses to comply with administrative measures, the competent authority is entitled to coerce the operator to comply with these measures on the basis of the administrative enforcement laws of the Länder.119 Under these laws the competent authority is entitled to carry out the required measure instead of the operator and charge him with the costs of this operation (substitute performance), to impose a fine (‘Ordnungsgeld’), to coerce the operator to comply with the measures and, if approved by the court, to take the perpetrator into custody as a last resort. These measures can be applied cumulatively and repeatedly until the operator complies with the measure.

116 For example § 3 paragraph 1 of the Police and Regulatory Act of Hamburg. 117 This study only includes administrative measures applicable under the Federal Immission Control Act. The Federal Waste Act does not provide for such a differentiated set of measures. However, it entitles the competent authorities to take all necessary measures to enforce its requirements. 118 This paragraph only indicates the measures regulated in the Federal Immission Control Act for IPPC installations falling under its scope. Measures in relation to IPPC landfills falling under the scope of the Federal Waste Management Act are regulated in the Länder legislation and are not indicated in this paragraph. 119 Milieu and Huglo Lepage; National Study on Germany as part of the Study on measures other than criminal ones in cases where environmental Community law has not been respected in the EU Member Länder; p. 14. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 69

2. Administrative procedure

2.1. General elements on the legal tradition and potential evolution

Regarding the administrative procedure it must be distinguished between the prosecution of administrative (quasi) criminal offences on the one hand and the issuing of administrative measures that enforce the compliance with IPPC related obligations on the other hand, because they are subject to different procedural rules.

2.1.1 Administrative measures

In urgent cases the police forces of the Länder and in non-urgent cases the competent regulatory authorities of the Länder are responsible for the enforcement of the Federal Immission Control Act, the Federal Waste Management Act and the Federal Water Act. The Länder determine the competent regulatory authority either by legal act (‘Zuständigkeitsverordnungen’)120 or by administrative regulation.121 For example, according to the law that determines the competent authorities in the area of environmental protection of North-Rhine Westphalia122 the responsibility is divided between the district governments ( ‘Bezirksregierungen’)123 and the counties and cities ( ‘Kreise und Kreisfreie Städte’).124 ´The district governments have jurisdiction to monitor compliance of highly pollutant IPPC installations with the Federal Immission Control Act, e.g. waste incineration plants, chemical installations, energy plants, industrial plants for the production of timber and paper and glass and installations for the production and processing of metals, whereas the counties and cities monitor other IPPC installations.125

The administrative procedure acts of the Länder regulate the procedural rules for implementing the administrative measures. In non-urgent cases these laws require the hearing of the operator of an installation before an administrative measure is issued, to provide for a statement of reasons that explains the administrative measure and to inform the addressee of his rights to appeal against the administrative decision.126

2.1.2 Administrative (quasi) criminal penalties

The competent regulatory authorities of the Länder also prosecute administrative (quasi) criminal offences (see above). The procedure for the prosecution of administrative (quasi) criminal offences is regulated under the Administrative Criminal Offences Act ( ‘Ordnungswidrigkeitengesetz’). These offences are only punishable on the basis of laws that were in force before the perpetration of the offence; their perpetration is only punishable once; and the alleged perpetrator has the right to challenge a fine imposed by the competent regulatory authority before the criminal court.

Due to its proximity to the criminal law, the Administrative Criminal Offence Act frequently refers to the Code of Criminal Procedure that regulates the prosecution of criminal offences. In contrast to the

120 Brandenburg, Baden-Wuerttemberg, Bremen, Hessen, Mecklenburg-Western Pomerania, Lower Saxony, North-Rhine Westphalia, Rheinland-Pfalz, Saxony, Schleswig Holstein, Saarland and Thuringia adopted legal acts to determine the competent authorities in relation to the Federal Immission Control Act. 121 These are regulations that specify and substantiate the administrative procedure for the authorities, but have only limited legal effects towards the operator of an installation. 122 Ordinance on the Distribution of Competences in the Field of Environmental Protection of 11 December 2007 (NRW Law Gazette 2007 p. 662) last amended by the Ordinance of 21 December 2010 (Law Gazette NRW. p. 700) – Zuständigkeitsverordnung Umweltschutz. 123 These are higher authorities in the hierarchy of the Länder authorities that are responsible for environmental protection. 124 These are lower authorities in the hierarchy of the Länder authorities that are responsible for environmental protection. 125 See website of the district government Arnsberg: http://www.bezreg- arnsberg.nrw.de/themen/g/genehmigung_anlagen_bimschg/index.php 126 Compare for example, §§ 28, 39 and 41 of the Administrative Act of North-Rhine Westphalia and § 58 of the Federal Code of Administrative Court Procedure. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 70

criminal procedure it is left to the discretionary power of the competent authority whether or not to prosecute an administrative (quasi) criminal offence and a fine is imposed without a preceding oral hearing.

2.2 Inspections

The Federal Immission Control Act, the Federal Waste Management Act and the Federal Water Act entitle and oblige the competent authorities of the Länder to monitor the compliance of IPPC installations with the regulatory requirements (see above). To enable the competent authorities to carry out the monitoring, owners and operators of installations are obliged to allow inspectors to access installations, the operational premises and, in urgent cases, homes. Inspectors are also entitled to inspect operational documents and to take samples, e.g. to measure emissions.127

The competent authorities of the Länder (see section 2) are responsible for carrying out the inspections. Several Länder provide for laws or administrative regulations that complement the inspection requirements of the Federal Immission Control Act,128 e.g. Mecklenburg-Pomerania, North- Rhine Westphalia and Schleswig-Holstein, that regulate the inspection procedures for IPPC installations falling under this Act.129 Some laws and regulations require a certain number of announced and unannounced inspections. For example the administrative regulation of Mecklenburg- Pomerania requires regular on-site checks and examinations.130 The administrative regulation of North-Rhine Westphalia requires the competent authorities to carry out unannounced inspection and to immediately investigate any complaints brought to them about installations.131 If other authorities of North-Rhine Westphalia learn that an installation is operated in non-compliance with regulatory provisions, these authorities must immediately inform the competent authority. Subsequent to the start of the operation of an installation and after a significant change to an installation, the administrative regulation of North-Rhine Westphalia requires that ‘installations should be inspected’ by the competent authority.132 Länder laws also set complementary requirements for the inspection procedure regulated in the Federal Waste Management Act for landfills and in the Federal Water Act for installations discharging waste water.

As regards the human resources allocated to the inspection of IPPC installation, a representative of the district government of Cologne reported that each inspector is responsible for about 25 installations (IPPC and non-IPPC installations) taking into account that more complex installations are covered by a higher average of inspectors. He emphasised that the current number of inspectors is not sufficient to ensure an effective control of IPPC installations, however, that North-Rhine Westphalia plans to increase this number. According to a representative of the Länder Agency for Agriculture, the Environment and Rural Areas of Schleswig-Holstein, 250 IPPC installations are covered by 10 to 15 persons.

Actual figures of the financial resources allocated to the inspection of IPPC installations are not available.

127 § 52 BImSchG and § 40 KrW-/AbfG. 128 Administrative regulations are procedural rules for authorities that have no external effect. 129 Federal Republic of Germany, Report on the recommendations of the European Parliament and the Council from 4 April 2001 to identify the minimum standards for environmental inspections in the Member Länder (2001/331/EC), 2003 p. 29ff. 130 Administrative regulation regarding the regular monitoring of installations subject to a permit pursuant to the Federal Immission Control Act- Mecklenburg-Pomerania of 2 October 2009 (MV Law Gazette 2009, p. 842) – Richtlinie zur Regelüberwachung der genehmigungsbedürftigen Anlagen nach dem Bundes-Immissionsschutzgesetz. 131 Administrative regulations to § 52 of the Federal Immission Control Act (inspections) of North-Rhine Westphalia of 1 September 2000 (MBl. NRW 2000 p. 1180), paragraph 4.1 – Verwaltungsvorschriften zum Bundes-Immissionsschutzgesetz – Nordrhein Westphalen 132 See above, paragraphs 24.1.1 - 24.1.3. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 71

Figures of 2002 on the financial and human resources available for general environmental inspections in the 16 Länder can be found in the Report of the Federal Republic of Germany on national environmental inspections.133

Some of the Länder provide for inspection plans. For instance the inspection plan of Schleswig- Holstein of 2002134 and the administrative regulation of Mecklenburg Pomerania of 2009135 include the requirement to establish inspection plans. In addition, the Ministry for Climate Protection, the Environment, Agriculture and Consumer Protection of North-Rhine Westphalia adopted an administrative regulation (‘Erlass’) on the criteria for the risk-based planning of cross-media environmental inspections, that requires the competent surveillance authorities to establish inspection and which was disseminated to the competent authorities on 3 January 2011.

A desk-research did not identify requirements of the Länder to provide trainings for inspectors in the legislation or administrative regulations of the Länder. As reported by representatives of the district government of Cologne, North-Rhine Westphalia provides its employees with the option to use a wide range of trainings (‘Fortbildungen’). These trainings also address subjects relevant for inspectors. A representative of the Länder Agency for Agriculture, the Environment and Rural Areas of Schleswig- Holstein pointed out that, if necessary, it carries out internal or authorises external trainings.136

Note that the inspections carried out by the competent authorities of the Länder are complemented by self-inspection requirements of the operators and by inspections carried out by private audit companies.137 Examples for self-inspection requirements under the Federal Immission Control Act are the obligation of the operator to measure emissions and to submit emission declarations to the competent authority as well as to appoint immission control advisers and hazardous-incident officers that advise the operator on these issues. An example for the involvement of private audit companies is the entitlement of the competent authority under the Federal Immission Control Act to require the operator of an IPPC installation to have the level of emissions resulting from its operations controlled by a private audit company (§ 26 of the Federal Immission control Act).

2.3 Appeal against the administrative decision

Appeals against administrative measure and appeals against administrative (quasi) criminal penalties must be distinguished. In each case the Federal Basic Law (GG) guarantees the right of every person that has been violated by an administrative body to have recourse to the courts (Article 19(4) sentence 1 GG).

2.3.1 Appeal against administrative measures

Operators of IPPC installations are entitled to appeal against administrative measures, e.g. the closure of an IPPC installation in preliminary proceedings before a local or regional administrative authority, usually the next higher authority ( ‘Widerspruchsbehörde’).138 However, many Länder have partly, temporarily or indefinitely abolished the institution of preliminary proceedings in an attempt to reduce bureaucracy and administrative costs, e.g. Bavaria, Mecklenburg-Western Pomerania, Lower Saxony, North-Rhine Westphalia and Saxon-Anhalt. In these cases the operator must directly challenge the

133 Federal Republic of Germany, Report on the recommendations of the European Parliament and the Council from 4 April 2001 to identify the minimum standards for environmental inspections in the Member Länder (2001/331/EC), 2003, p. 3. 134 Not attached to this report. 135 Administrative regulation regarding the regular monitoring of installations subject to a permit pursuant to the Federal Immission Control Act- Mecklenburg-Pomerania of 2 October 2009 (MV Law Gazette 2009, p. 842), paragraph 5 – Richtlinie zur Regelüberwachung der genehmigungsbedürftigen Anlagen nach dem Bundes-Immissionsschutzgesetz.. 136 Information received on the basis of questionnaires and interviews. 137 Federal Republic of Germany, Report on the recommendations of the European Parliament and the Council from 4 April 2001 to identify the minimum standards for environmental inspections in the Member Länder (2001/331/EC), 2003 p. 25. 138 See Section 68 and Section 73 of the Code of Administrative Court Procedure. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 72

decision before the local administrative court of first instance. The time limit for filing an appeal against the administrative measure before the next higher authority or the administrative court of first instance is one month after the measure was announced to the operator if the operator has been informed in writing of the possibility to appeal; if not, the time limit for filing an appeal is one year. The decision of the next higher authority can be challenged before the local administrative court of first instance. The operator is entitled to appeal against the judgement of the administrative court of first instance on points of facts and law (‘Berufungsverfahren’) before the regional administrative court of second instance (the higher administrative courts), where the operator is allowed to present new facts and to challenge the application of the law as carried out by the judge of first instance. The judgement of the court of second instance can be challenged before the Federal Administrative Court on points of law only, i.e. the operator is not entitled to present new facts. In both cases appeals are only admissible if the court grants the appeal. Disputes concerning the construction and operation of certain IPPC installations, e.g. power stations utilising furnaces for solid, liquid or gaseous fuels with a furnace heat output of more than 300 megawatts, are litigated, in first instance, before the (regional) higher administrative courts. In this case appeals on points of law can be brought before the Federal Administrative Court.

The operator has standing to challenge administrative measures before the administrative authorities and the courts. If a permit violates property rights or health of people living close to the installation (neighbours), these neighbours are entitled to challenge the permit. Under very restricted conditions neighbours are also entitled to legally force the competent authority to take administrative action against the operator139 or to carry out inspections140 if these measures are necessary to avert risks to their health or property from emissions or other pollutions.

Non-governmental organisations are entitled to challenge a permit under specific conditions as laid down in the Law on supplementary provisions governing actions in environmental matters under Directive 2003/35/EC (UmwRG). According to this law recognised non-governmental organisations must, inter alia, assert that the permit ‘contravenes legislative provisions which seek to protect the environment, which confer individual rights and which may be relevant to the decision’ (§ 2 point 1 of the UmwRG) to have standing before the court. The European Court of Justice decided on 12 May 2011 that this requirement infringes Directive 2003/35/EC and that, as a minimum, non-governmental organisations must have standing in national court procedures to enforce all national provisions based on European environmental legislation. The court also decided that, as long as national legislators have not amended the relevant provision, non-governmental organisations can directly refer to Directive 2003/35/EC to ensure their standing.141

2.3.2 Appeal against administrative (quasi) criminal penalties

The appeal procedure is different if the operator challenges a fine that the competent authority has imposed upon him under the criminal administrative law. The addressee of the fine is entitled to lodge an objection against this administrative decision within two weeks after the fine has been announced to the addressee (§ 67 OWiG). In preliminary proceedings the competent authority scrutinises whether this objection is admissible and reassesses its decision. If the competent authority adheres to its assessment that the imposition of a fine is justified, it transfers the case to the competent regional public prosecution office that, based on its own assessment of the case, either terminates the proceedings or, by indicting the alleged perpetrator, initiates the court procedure. The objection is litigated before the criminal court of first instance, the local court (§ 68 OWiG), where the operator is entitled to present new facts. The general rules for this procedure are stipulated in the Administrative

139 Giesberts/Reinhardt, Environmental Law (online legal commentary), § 17 BImSchG, paragraphs 90pp. and § 20 paragraph 46. 140 Controversially discussed, in favour of this opinion: Giesberts/Reinhardt, Environmental Law (online legal commentary), § 52 BImSchG, paragraphs 33pp. 141 Judgement of the European Court of Justice of 12 May 2011, in case C-115/09, Friends of the Earth Germany (BUND) vs. district government Arnsberg. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 73

Offences Act and the Code of Criminal Procedure. This procedure deviates in some points from the criminal procedure because it takes certain specifics of the administrative (quasi) criminal law into account, e.g. the competent authority that imposed the fine has standing to give its assessment of the situation in the legal hearing (§ 76 OWiG). Under certain conditions the alleged perpetrator is entitled to appeal against the judgement of the court of first instance by means of filing a legal complaint before the higher regional courts (§ 79 OWiG) where the judgment of the previous instance is only scrutinised in relation to the correct application of law. The reference to new facts is not admissible.

3. Judicial procedure (if relevant-with a focus on criminal sanctions)

3.1 General information

The main principles of the judicial procedure are stipulated in the German Basic Law (GG): Extraordinary courts are prohibited and the alleged perpetrator has the right to an independent judge (Article 101 GG); alleged perpetrators have the right to be heard before the court; offences are only punishable on the basis of laws that were in force before the commission of the offence (nulla poena sine lege); and criminal behaviour is only punishable once (ne bis in idem) (Article 103 GG). These and other principles of the Basic Law are substantiated and complemented in the Code of Criminal Procedure (StPO) that constitutes the procedural rules for the prosecution of criminal offences.

In accordance with these rules only the competent regional public prosecution office has the authority to indict an alleged perpetrator (Article 152(1) StPO) and thereby to initiate court proceedings (Article 151 StPO). This office is obliged to open investigations if there are sufficient factual indications that a criminal offence has been committed (Article 152(2) StPO). In its investigations, the regional public prosecution office is supported by the police force (Article 161 StPO). In first instance the Court Constitution Act predominantly assigns environmental criminal law cases to the jurisdiction of the local courts (§§ 24 and 74 of the Court Constitution Act – GVG). After the indictment, the judge of first instance presides over the oral hearing, where representatives of the regional public prosecution office, the alleged perpetrator, his/her lawyer and the judge participate. At the end of the oral hearing, taking into account information gathered through the hearing and the collected evidence, the judge decides the case independently. NGOs or other individuals are not entitled to join the criminal procedure as accessory prosecutors. The catalogue of criminal offences, in the context of which individuals are allowed to join the procedure as accessory prosecutors, does not include environmental criminal offences. This may be justified by the fact that these offences do not protect individuals.142

3.2 Possibilities of appeal

The operator of an IPPC installation can challenge the judgement of the court of first instance (the local courts) before the court of second instance (the regional courts). This appeal on facts and law (‘Berufungsverfahren’) enables the alleged perpetrator to present new facts and to challenge the application of the law as carried out by the judge of first instance (Section 312pp. StPO). The operator may challenge the judgement of the court of the second instance before the Federal Court of Justice (‘Revisionsverfahren’), however, before this court the operator is restricted to objections against the application of the law as carried out by the judge of the court of second instance (Section 333pp StPO).

4. Synergies between administrative and criminal procedures

142 Fischer, Legal Commentary on the Criminal Code, Prior to § 324, paragraph 3a. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 74

The prosecution of administrative (quasi) criminal offences and the prosecution of criminal offences are intertwined. The same behaviour of the perpetrator can only be punished once and accordingly either as a criminal offence or a criminal administrative offence.143 If the behaviour of the perpetrator meets the conditions of a criminal offence and an administrative (quasi) criminal offence simultaneously the regional public prosecution office must prosecute the criminal offence and the competent authority must stop the prosecution of the administrative (quasi) criminal offence (§ 21(1) OWiG). This is, for example, the case when the operator of an installation for the production of basic organic chemicals runs the installations without a permit.

There is a further connection between criminal and administrative (quasi) criminal offences due to the fact that the national environmental criminal law is based on the principle of administrative accessoriness. Following this principle the conditions of an environmental criminal offence are only met, if the perpetrator infringes an administrative regulatory provision and, if provided for by the environmental criminal law, meets the additional conditions of the criminal offence, e.g. significantly pollutes the soil (§ 324a StGB).

It is noteworthy that North-Rhine Westphalia has adopted an administrative regulation (‘Erlass’) that regulates the cooperation between environment protection authorities and regional public prosecution offices.144 This administrative regulation requires that periodic meetings are held between representatives of the competent public prosecution offices, the competent police forces and the authorities responsible for environmental protection; that these authorities inform the competent regional public prosecution offices of any suspicion of an environmental criminal offence; and that, vice-versa, these offices enable the competent authorities to participate in the prosecution of such offences.

5. Conclusions

Proportionality, effectiveness and dissuasive character of the penalties

The administrative (quasi) criminal penalties and the criminal penalties in relation to IPPC installation are assessed as proportionate, effective and dissuasive.

The penalties are assessed as proportionate. Fines between Euros 5 and 50,000 and the possibility to confiscate the economic benefit are assessed as proportionate means to address administrative (quasi) criminal offence. The available range of fines leaves room to punish an infringement on the basis of the severity of the individual violation. The possibility to siphon off the profit is assessed as balanced taking into account that the perpetrator would not have gained this benefit, if he had complied with the law.

Furthermore, it is assessed as proportionate that the violation of the permit obligation or the essential permit requirements leads to criminal penalties of a maximum of three years of imprisonment and/or a fine considering the major risks that may result from these unlawful operations.

The penalties are assessed as effective, because the administrative (quasi) criminal penalties cover all national obligations transposing the IPPC Directive and the criminal penalties cover the major obligations of this Directive. Furthermore, the procedural rules in relation to the prosecution of

143 In favour of this: Jarass/Pieroth, Legal Commentary to the Basic Law of the Federal Republic of Germany, Article 103, paragraph 74. 144 This administrative regulation is available at: https://recht.nrw.de/lmi/owa/br_bes_text?anw_nr=1&gld_nr=3&ugl_nr=3214&bes_id=2601&val=2601&ver=7&sg=&aufge hoben=N&menu=1 Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 75

criminal and administrative (quasi) criminal offences are assessed as effective to implement these penalties.

The penalties are assessed as dissuasive, because administrative (quasi) criminal and criminal penalties combined are sufficiently stringent to deter potential perpetrators. Especially, the option to confiscate the economic benefit provides for deterrence.

Representatives of the district government of Cologne responsible for the surveillance of IPPC installations assessed the available sanctions under the legislation as proportionate.

They pointed out that North-Rhine Westphalia provides for an indicative catalogue of fines for infringements against environment related provisions (‘Bußgeldkatalog Umwelt’)145 that supports the competent surveillance authorities in finding proportionate sanctions. This catalogue specifies the scale of fines as provided for by the legislation. For instance, in accordance with the Federal Immission Control Act, the construction of an IPPC installation without permission is subject to a fine of up to Euros 50,000. The catalogue specifies this scale in relation to installations worth less than Euros 50,000. In North-Rhine Westphalia these installations are subject to fines between Euros 510 and 2,600.

They also assessed the practical implementation as effective and dissuasive.

They believe that it is important to enforce the administrative sanctions to ensure effectiveness and deterrence. Nevertheless, in their experience, it was often sufficient to inform the responsible operators of possible fines to make them stop the infringement.

They also assessed the penalties applied as deterrent. This was concluded from the fact that after operators had been fined, they did not repeat the infringements. To make operators comply with permit requirements and legislation after an infringement, they considered it as an effective approach to precisely inform the operator and his employees of the infringement and the necessary means to eliminate it.

However, they identified a lack of human resources to carry out inspections, so that not all IPPC installations are subject to a regular control.146 This was considered as ineffective in relation to the procedure to identify infringements. It was added, that North-Rhine Westphalia plans to recruit 300 employees in the field of the environment during the next years, to address the problem of understaffing.

145 The fine catalogue environment of North-Rhine Westphalia of 2006 was established by the Ministry for the Environment, Nature Conservation, Agriculture and Consumer Protection of North-Rhine Westphalia and is available at: http://www.kreisjaegerschaft-coesfeld.de/red/ges-bussgeldkatalog-umwelt-nrw-2010-02-27.pdf 146 See also: Ministry for Labour, Integration and Social Affairs of the Land North-Rhine Westphalia and Ministry for Climate Protection, Environment, Agriculture, Nature Conservation and Consumer Protection of North-Rhine Westphalia, the case ENVIO/ PCB in Dortmund, Overall assessment of the ministries, 7 April 2011, p. 12., http://www.umwelt.nrw.de/ministerium/pdf/envio_gesamtbewertung.pdf Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 76

Case studies

Introduction

Case studies one and two are good examples to depict that the imposition of very high fines as well as of very low fines can be proportionate, effective and dissuasive. In the first case the competent authority sanctioned a company running an installation with a fine of Euros 155,000 because it had made a huge profit by not complying with legal requirements. Therefore the competent authority assessed it as proportionate and dissuasive to calculate the fine on the basis of this profit. In the second case the competent authority sanctioned the project manager that had notified a non-essential change to an installation late with a fine of only Euros 200. The competent authority also considered this fine as proportionate and dissuasive taking into account that the change had served safety purposes; that the project manager had admitted the perpetration; and that the operator of the installation had taken measures to prevent further infringements. In both cases the fine was accepted without appeal and the perpetrators did not repeat the infringements.

Case study 3 illustrates the interplay between administrative measures, in this case the closure of an installation, and criminal penalties, when the operator infringes major obligations related to IPPC installations.

Case study 1: Administrative (quasi) criminal fine of Euros 155,000

Interviewee with and completion of a questionnaire by – Dr Horst Büther Organisation and position: 1. District government of Cologne (department 53, immission protection), head of department 2. Member of the board of IMPEL (European Union Network for the Implementation and Enforcement of Environmental Law).

Telephone number: + 49 221 147 2252 Date of interview: 5 May 2011

Timeline of the procedure

2004 20/08/2004 02/11/2004

Operator is BRK issues fine BRK identifies invited to notice missing inspection comment on reports the case

07/06/2004: 20/09/2004 December/04 Audit company confirms BRK receives written Operator lack of audits statement of the pays fine operator

BRK: district government of Cologne, North Rhine-Westphalia

Description of the background Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 77

This case deals with a fine imposed on the operator of eight storage tanks for petroleum products (ancillary plants) connected to an oil refinery. Under North-Rhine Westphalia’s Ordinance on Installations for Handling of Substances Hazardous to Water (VAwS),147 the operator is obliged to commission a private audit company to carry out regular inspections of these tanks. These companies have to report the results in form of inspection reports to the district government of Cologne (BRK) as competent authority.

When controlling these inspection reports, the BRK came to the conclusion that, between the years 2000 and 2004, the operator of the storage tanks for petroleum products had not complied with the requirement under the VAwS to have these tanks inspected by an audit company. On request, the audit company normally commissioned by the operator confirmed this conclusion on 7 June 2004.

Legislation applicable

Under North-Rhine Westphalia’s Ordinance on Installations for Handling of Substances Hazardous to Water in conjunction with North-Rhine Westphalia’s Water Act the competent surveillance authorities are entitled to impose fines of up to Euros 50,000 (§ 16 no.7 of the VAwS in conjunction with § 61 paragraph 1 no.4 of North-Rhine Westphalia’s Water Act). According to § 17(4) of the Administrative Criminal Offences Act the fine should be higher than the economic benefit that the perpetrator has drawn from the perpetration of the administrative (quasi) criminal offence. Hence, a fine may be much higher than Euros 50,000.

The competent authority must hear the alleged offender before imposing the fine (§ 55 of the Administrative Criminal Offences Act (OWiG)). In simple cases, the competent authority complies with this obligation by enabling the alleged perpetrator to comment on the allegations in written form within a time limit of two weeks. The competent authority may prolong this time limit on request.

The alleged perpetrator has two weeks to appeal against the fine after he has received the fine notice. If he does not appeal against the fine, he must pay the fine four weeks after the receipt of this notice (§ 66 OWiG).

The procedure

The district government of Cologne provided the operator of the installation with the possibility to comment in writing on the allegations on 20 August 2004 setting a time limit of two weeks and received comments of the operator on 20 September 2011 after it had prolonged the time limit for submitting the comments once.

On the basis of its investigations and the written comments of the operator, the BRK decided to fine the company. In accordance with § 17 paragraph 4 of the Administrative Criminal Offences Act, it calculated a fine of Euros 155,000 taking into account the profit that the company had made by not carrying out the periodic inspections. The fine notice was issued on 2 November 2004.

The BRK did not consider taking administrative measures in order to eliminate the infringement, since the infringement had taken place in the past and did not perpetuate. In addition, the offence was not punishable under the environmental criminal law. As a consequence, the BRK did not transfer the case to the competent regional public prosecution office.

Assessment

147 Note that this law does not directly transpose obligations of IPPC installations. However, the control of these obligations is based on the same provisions as the control of IPPC obligations. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 78

The fine of Euros 155,000 is assessed as proportionate, because the operator would have been obliged to spend this money, if he had complied with the requirement to carry out inspections of the storage tanks.

This penalty is assessed as dissuasive, since after the imposition of the fine, the operator complied with all regulatory provisions.

The administrative procedure that led to the fine is also assessed as effective, in particular, because the BRK responded quickly to the offence. It can be derived from the timeline of the procedure that it only took the BRK five months to punish it. After the audit company had confirmed on 7 June 2004 that the operator had not carried out the obligatory inspections of the tanks, the BRK issued the fine notice at the beginning of November.

Case study 2: Administrative (quasi) criminal fine of Euros 200

Interview with and completion of a questionnaire by – Dr Horst Büther Organisation and position: 1. District government of Cologne (department 53, immission protection), head of department 2. Member of the board of IMPEL (European Union Network for the Implementation and Enforcement of Environmental Law)

Telephone number: + 49 221 147 2252 Date of interview: 5 May 2011

Timeline of the procedure 08/10/2009 17/11/2009 01/09/2009 Meeting at BRK grants 29/12/2009 Inspections the site extension of time of the BRK limit Fine notice

28/09/2009 05/11/2009 30/11/2009 January 2010

Notification Project manager was BRK receives Payment of of change invited to comment comments the fine on the case

BRK: district government of Cologne, North Rhine-Westphalia

Description of the background

During safety inspections of the district government of Cologne (BRK) in 2009 (1 January 2009), inspectors noticed that a storage tank for petroleum products (ancillary plants) that pertained to an oil refinery148 was subject to maintenance measures (changes). These measures sought to enhance the safety of this tank. When, at a later point in time (28 September 2009), the operator notified a non- essential change to the installation to the BRK, the authority decided to investigate the circumstances of this change in more detail. For this, it scheduled a meeting at the installation (8 October 2009). During this meeting, the suspicion was confirmed, that the change measures had directly followed the

148 Case 1 and case 2 deal with different oil refineries. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 79

maintenance measures and that these change measures had already started before they were notified to the BRK.

Legislation applicable

Under the Federal Immission Control Act the late notification of non-essential changes to an installation subject to authorisation (including IPPC installations) can be sanctioned with fines of up to Euros 10,000 (§ 62(2) no.1 and § 15 of the Federal Immissions Control Act in conjunction with § 17 (1) and (2) of the Administrative Criminal Offences Act).

The competent authority must hear the alleged offender before imposing a fine (§ 55 of the Administrative Criminal Offences Act (OWiG)). In simple cases, the competent authority complies with this obligation by enabling the alleged perpetrator to comment on the allegations in written form within a time limit of two weeks. The competent authority may prolong this time limit on request.

The procedure

The BRK enabled the project manager to comment in writing on the allegations on 5 November 2009 setting a time limit of two weeks. After it had granted an extension of the time limit on 17 November 2009, it received a written statement of the perpetrator, in which he admitted the infringement, on 30 November 2009. On the basis of its own conclusions and the written comments of the project manager, the district government of Cologne sanctioned the responsible project manager with a fine of Euros 200. The fine notice was issued on 29 December 2009.

The BRK justified this low fine on the following grounds. The project manager had admitted to having committed the offence; the operator of the installation had recalled to the project manager, who had failed to notify the change to the installation timely, and to all other project managers working in the installation, the obligation to notify non-essential changes in time; and the non-notified change measure had served to enhance the safety of the installation.

The BRK had immediately ruled out administrative measures to eliminate the infringement, since the infringement had taken place in the past and did not perpetuate. In addition, the offence was not punishable under environmental criminal law. As a consequence, the BRK did not transfer the case to the competent regional public prosecution office.

The project manager paid the fine within the legal time limit (before the end of January 2010). From this time onwards, all notifications were carried out in time by all responsible project managers working at this installation.

Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 80

Assessment

The fine of Euros 200 is assessed as proportionate and dissuasive. It is assessed as proportionate because the BRK took due account of the following mitigating circumstances. The responsible project manager had admitted the offence; the operator of the installation cooperated with the BRK by taking measures to avoid further infringements; and the change measures had served to improve the safety of the installation. Hence, there was no need to impose a more severe penalty. The fine is assessed as dissuasive since, after the BRK had imposed the fine, all project managers working at the installation notified non-essential changes timely and did not otherwise infringe regulatory obligations.

The administrative procedure that led to the fine is also assessed as effective, in particular, because the BRK responded quickly to the offence. It can be derived from the timeline of the procedure that it took the BRK only four month to punish it. The procedure started in September 2009 and the BRK issued the fine the end of December 2009.

Case study 3: Closure of the installation and initiation of criminal procedure

Main sources of information:

Ministry for Labour, Integration and Social Affairs of the Land North-Rhine Westphalia and Ministry for Climate Protection, Environment, Agriculture, Nature Conservation and Consumer Protection of North-Rhine Westphalia, the case ENVIO/ PCB in Dortmund, overall assessment of the ministries, 7 April 2011, p. 12, available at: http://www.umwelt.nrw.de/ministerium/pdf/envio_gesamtbewertung.pdf

Prognos AG, final report on the case ENVIO/ Dortmund’s harbour – Clarification of further questions in the context of immission protection and waste management, 28 March 2011, p. 17ff., available at: http://www.umwelt.nrw.de/ministerium/pdf/envio_abschlussbericht.pdf

Complementary questions answered by: – Mr Andreas Jungmann Organisation and position: District government Arnsberg (Dezernent) Telephone number: + 49 2931 822 606 Date of the receipt of the e-mail: 18 May 2011

Timeline of the procedure

April/May 2010: BRA and 05/05/2010: First measurement 19/05/2010: Second measurement LANUV inspect the waste report of the LANUV identifies PCB report of the LANUV identifies PCB treatment installation and contamination in one part of the contamination on the complete site; take samples installation;

05/05/2010: BRA closes the 20/05/2010: BRA closes the whole

installation and informs the installation ;

regional public prosecution office.

This office initiates an on‐going

investigation;

LANUV: Agency for Nature Conservation, Environment and Consumer Protection of North Rhine-Westphalia BRA: district government of Arnsberg, North Rhine-Westphalia Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 81

Description of the background

In 1985, the (then) competent authority responsible granted an authorisation for a waste treatment installation to a predecessor company of the ENVIO Recycling GmbH & Co. KG (ENVIO), the latter of which is the main party in this case.

ENVIO took over the waste management plant in 2004 and notified the competent authority for the first time in October 2004 that it processed transformers from an underground landfill containing PCBs (polychlorinated biphenyls).149

From 2007 on, the Agency for Nature Conservation, Environment and Consumer Protection of North Rhine-Westphalia (LANUV) reported significantly higher levels of PCBs in green cabbage in the surroundings of Dortmund. As a consequence, the competent surveillance authority, the district government of Arnsberg in North-Rhine Westphalia (BRA), initiated measures to identify the polluter. Inter alia, it inspected various installations in Dortmund’s harbour including ENVIO’s waste treatment installation, however, without finding the source.

In September 2008 the BRA received an anonymous complaint. The complainant informed BRA that, ENVIO had been carrying out unlawful activities as regards the processing of PCB-contaminated materials for several years The BRA promptly investigated these allegations, but did not identify any evidence to prove them.

Legislation applicable

In accordance with § 20 paragraph 2 sentence 1 of the Federal Immission Control Act the competent authority is obliged to close an installation if the operator carries out an unauthorised essential change to the installation.

Pursuant to the national environmental criminal law the local criminal court may punish an unauthorised essential change to an installation with a maximum imprisonment of three years or a maximum fine of 360 daily units, in case of intentional perpetration, and, in case of negligent perpetration, with imprisonment of a maximum of two years or a maximum fine of 360 daily units (§ 327(2) no.1 and (3) no.2 of the Federal Criminal Code).

The local or regional150 criminal courts may punish unauthorised essential changes that are carried out deliberately and cause serious and permanent pollution of the environment with imprisonment between six months and ten years (§ 330 (1) of the German Criminal Code). If this change places a large number of people in danger of injury, the criminal court can impose imprisonment of between one and ten years.

The unauthorised essential change of an installation also constitutes an administrative (quasi) criminal offence that is punishable by the competent authority with a fine of up to Euros 50,000 (§ 62(1) no.4 and (3) and § 16 of the Federal Immission Control Act). However, in accordance with § 41 of the Federal Administrative Criminal Offences Act the competent surveillance authority must transfer the case to the competent regional public prosecution office and stop its own investigations, if it identifies indications that a criminal offence was committed. This office then involves the competent authority in its investigations. An administrative regulation (Erlass) of North-Rhine Westphalia in detail

149 Note that the waste management plant does not fall under the scope of the current IPPC Directive. However, it will fall under the broader scope of the Industrial Emissions Directive. 150 If the regional public prosecution office expects the court to sentence the perpetrator with more than 4 years of imprisonment, it indicts the alleged perpetrator before the competent regional court. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 82

regulates the cooperation between authorities and regional public prosecution offices before and after these investigations.151

The procedure

In April/May 2010, in a renewed attempt to identify the polluter of PCBs that had been identified in the surroundings of Dortmund, inspectors of the LANUV and the BRA inspected ENVIO’s installation and took samples on-site.

On 5 May 2010 the LANUV released its first measurement report, based on samples taken during this inspection that revealed high concentrations of PCB on metalwork in one part of the installation.

Under these conditions the BRA assessed the handling of the transformers and the inherent emission of PCBs as an unauthorised essential change to the installation and thus closed the affected part of the installation on the same day.

Also on 5 May 2010 the BRA informed the regional public prosecution office of the suspicion that ENVIO had committed an environmental crime. Its investigations are still on-going.

The second measurement report of the LANUV dating from 19 May 2010 revealed that the complete installation site was contaminated. As a consequence, the BRA ordered the immediate and complete closure of the installation.152

Assessment

Taking into account that § 20 paragraph 2 sentence 1 of the Federal Immission Control Act requires the competent authority to close an installation that has been subject to an unauthorised essential change, the BRA did not have any discretionary power whether or not to close the installation. The legal obligation to close the installation in these cases is assessed as proportionate and dissuasive considering the severity of this offence. In addition, after having learned of the contamination, the BRA closed the installation on the same day. This is assessed as an effective response to the offence.

It should be noted that under the national legislation the closure of an installation is not assessed as a penalty but as an administrative measure to enforce compliance with the national legislation. Hence, from a formal standpoint, these national measures are not subject to the requirement of being proportionate, effective and dissuasive as laid down for example by Directive 2010/75/EU on industrial emissions.

In addition, in accordance with the Administrative Criminal Offences Act, the BRA had to transfer the case to the regional public prosecution office.

If the regional public prosecution office indicts responsible managers and employees and the criminal court comes to the conclusion that the operation of the installation caused a serious damage to the environment or that it placed a large number of people in the danger of injury it is entitled to impose sentences of up to 10 years imprisonment.

Since the case is still pending, an assessment of the proportionality, effectiveness and dissuasiveness of the potential criminal penalties is not yet possible.

151 This administrative regulation is available at: https://recht.nrw.de/lmi/owa/br_bes_text?anw_nr=1&gld_nr=3&ugl_nr=3214&bes_id=2601&val=2601&ver=7&sg=&aufge hoben=N&menu=1 152 The summary of the events is based on the final report of the Prognos AG, the case ENVIO/ Dortmund’s harbour – Clarification of further questions in the context of immission protection and waste management, 28 March 2011, p. 17ff., available at: http://www.umwelt.nrw.de/ministerium/pdf/envio_abschlussbericht.pdf Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 83

It is noteworthy, that the Ministry for Climate Protection, Environment, Agriculture, Nature Conservation and Consumer Protection of North-Rhine Westphalia (MKULNV) questioned whether a more effective and better coordinated control of the installation, before the infringements were discovered, could have prevented or mitigated the contamination. Therefore, they carried out an examination of whether the competent surveillance authorities worked and cooperated effectively together to control the installation. As part of this examination they commissioned the Prognos AG to prepare reports analysing the structure and organisation of the authorities and immissions protection and waste management related questions. These reports, inter alia, criticised the lack of a central body to coordinate the control as well as the provision of insufficient human resources at the time when the relevant events took place.153

153 See Ministry for Labour, Integration and Social Affairs of the Land North-Rhine Westphalia and Ministry for Climate Protection, Environment, Agriculture, Nature Conservation and Consumer Protection of North-Rhine Westphalia, the case ENVIO/ PCB in Dortmund, Overall assessment of the ministries, 7 April 2011, p. 12., http://www.umwelt.nrw.de/ministerium/pdf/envio_gesamtbewertung.pdf Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 84

Bibliography

Bohnert, Joachim Ordnungswidrigkeitenrecht, Grundriss für Praxis und Ausbildung (Law of administrative (quasi) criminal offences, layout for practioners and students), second edition, 2004 Federal Republic of Germany Report of the Federal Republic of Germany on the recommendations of the European Parliament and the Council from 4 April 2001 to identify the minimum standards for environmental inspections in the Member Länder (2001/331/EC), 2003 Fischer, Thomas Legal Commentary to the Criminal Code, 55th edition, 2008 Giesberts, Ludger/ Reinhard, Michael Legal commentary to the German Environmental Law, 2007 Jarass, Hans/ Pieroth, Bodo Legal commentary Basic Law for the Federal Republic of Germany, 10th edition, 2009 Milieu and Huglo Lepage National Study on Germany as part of the Study on measures other than criminal ones in cases where environmental Community law has not been respected in the EU Member Länder, 2004 Mitch, Wolfgang Recht der Ordnungswidrigkeiten (Law of administrative (quasi) criminal offences), second edition, 2005

Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 85

Annex IV- Hungary

Sanctions and procedures applicable to breaches of the legislation on industrial emissions in Hungary

Executive Summary

In case of breaching the requirements laid down in the transposing legislation of the IPPC Directive (Government Decree No. 314/2005 (XII. 25.)) on Environmental Impact Studies and Integrated Environment Use Permits (‘IPPC Decree’), administrative procedures can be conducted against IPPC installations. In addition to the administrative liability, IPPC installations may be subject to criminal or administrative (quasi) criminal liability. 154 However, in Hungary, criminal and administrative (quasi) criminal environmental offences are broad and cover general offences. In other words, the Criminal Code155 and the Act on Petty Offences156 (also called as administrative (quasi) criminal offences) do not contain specific sanctions for the infringement of the transposing provisions of the IPPC Directive. This suggests that in these cases the general rules of criminal and administrative (quasi) criminal procedures are applicable.

Administrative procedures can be conducted alongside with criminal or administrative (quasi) criminal procedures. 157 However, administrative (quasi)criminal and criminal procedures cannot be conducted at the same time. 158 In practice, most of the environmental penalties with regard to industrial installations are administrative in nature. Criminal procedures conducted against IPPC installations are rare.

The central administrative authorities responsible for environmental protection are the Ministry of Rural Development and the National Inspectorate for Environment, Nature and Water. The Ministry is responsible for supervising the activities of the National Inspectorate and the regional inspectorates. The day-to-day matters and regulatory issues are dealt by the regional inspectorates at first instances and by the National Inspectorates at second instance.

On the basis of the interviews conducted and in accordance with the current legislative framework, administrative/ administrative (quasi)criminal/criminal sanctions in Hungary are deemed to be proportionate, effective and dissuasive. As an example to the interpretation of the principle of proportionality, the amount of administrative fines imposed on IPPC installations needs to be adjusted to the severity of the environmental damage caused, the environmental pollution and the periodicity of the illegal conduct.

With regard to the principle of effectiveness, most of the interviewees emphasised that a sanction is effective if e.g. it contributes to achieve the aim of the legal act and/or forces the operator to fulfil his/her legal obligations.

A sanction is considered as dissuasive, if it prevents the defendant and/or other operators from any illegal activity in the future.

The table below indicates the provisions of the IPPC Directive covered by a sanction in Hungary. Criminal and administrative (quasi) criminal sanctions are not listed in the table as there are no specific sanctions in the Criminal Code, or in the Petty Offences Act, which would punish the

154 Note that civil procedures are not subject to the study. 155 Act IV of 1978- Criminal Code. 156 Act LXIX of 1999 on Petty Offences. 157 Environmental Protection Act, Article 107, ‘the imposition of an environmental fine does not free anyone from criminal, administrative (quasi)criminal or civil liability, or from being obliged to limit, suspend or halt an activity, from realizing protective measures or from restoring the natural or previous state of environment’. 158 Petty Offences Act, Article 1(2) ‘… no petty offence can be established if the action constitutes a crime’. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 87

infringement of the transposing provisions of the IPPC Directive (see sections 3.1. and 3.3. for more details).

Table 1: Enforceable provisions covered by penalties in Hungary

Administrative measures and Administrative (quasi) Article Criminal sanctions sanctions criminal sanctions IPPC Directive Catch-all - 4 Government Decree 314/2005, Article 1(2) and (5); Article 2(3)) 5 Government Decree 314/2005, (Article 27(3)) 6 Government Decree 314/2005, (Annex VIII) 12 (1) - 12 (2) - 14 (a) Government Decree 314/2005, (Article 22(2)) 14 (b) Government Decree 314/2005, (Article 23; Annex XI, point 4.a.) 14 (c) -

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1. Applicable sanctions

The Hungarian Constitution159 recognises and implements everyone’s right to a healthy environment. In line with the Constitution,160 Article 101(1) of the Environmental Protection Act161 sets that ‘whoever endangers, pollutes or harms the environment with his activity or omission, or performs his activity breaching environmental requirements shall bear the criminal, civil,162 administrative or administrative (quasi)criminal responsibility defined by this Act or by other laws.’ Those who breach this general prohibition shall inter alia cease their misconduct, mitigate and remedy the damage caused and restore the environment either to its prior state or to the state prescribed by law. The polluter may also be held liable pursuant to Article 101(2) of the Environment Act for the cost of prevention. Moreover he/she is obliged to inform the authorities of the polluting activity and refrain from engaging in activities posing an imminent threat or causing damage to the environment.

Most of the environmental penalties with respect to industrial installations are administrative in nature. The classification of administrative offences and sanctions related to environment are set in the Environmental Protection Act and other sector specific legislation, such as in the IPPC Decree. In line with Article 106 of the Environmental Protection Act, administrative liability applies when the competent authority have not authorised the activity of an installation or the activity is performed in a way that breaches environmental legislation or the decision of the competent authority. If the operator fails to comply with environmental requirements, the competent authorities can impose administrative sanctions, including a fine/or requiring the operator to perform or abstain from certain activity. The level of fines often varies according to the level, weight and recurrence of the environmental pollution and environmental damage caused.163 Administrative sanctions can be imposed both on legal and natural persons. The Environmental Protection Act operates with a strict liability system making the entities causing environmental damages responsible irrespective of negligence or fault.

The IPPC Directive is transposed by Government Decree 314/2005 (XII. 25.) on Environmental Impact Assessment and Integrated Environment Use Permits (‘IPPC Decree’), which sets inter alia offences provisions and their related administrative sanctions.

According to the transposing legislation, the imposed administrative sanctions can lead to a fine (up to Euros 1,826 or Euros 365 per day)164 and the limitation, suspension or prohibition165 of the continuation of the illegal conduct.166 The competent authorities may also oblige the operators to comply with the conditions set in the permit, prepare a programme of measures or carry out an environmental review. Moreover, the competent authorities may withdraw the environmental or integrated environmental permit of the operator.

Table 2 below indicates the types of administrative and criminal offences and related penalties in

159 Article 18 of Act XX of 1949 - Constitution of the Republic of Hungary. 160 It is noted that in January 2012 a new Constitution will enter into force. 161 Act LIII of 1995 - Environmental Protection Act. 162 Civil liability is not subject to the current legal study. 163 Act No LIII of 1995 - Article 106(1). 164 Rules applied for imposing fines: (1) In accordance with Article 26(3) and Article 26(1) of the IPPC Decree, when an installations is operating without an integrated environmental permit or without an environmental permit, the competent authority, having regard to the danger of illegal conduct to the environment may impose a fine of Euros 182 to 365 per day for the period the installation was operating without a permit. (2) In accordance with Article 26(4) when an installation fails to comply with the permit conditions while carrying out activities, or do not comply with the administrative decisions the competent authorities may inter alia oblige the operator to pay a fine of Euros 730- 1,826. 165 The main difference between prohibition and suspension is that while suspension is temporary in nature, prohibition is something definitive 166 IPPC Decree Article 26(1): in case of operating without integrated environmental permit, or without an environmental permit (Article 26(1) and (2)); endangering the environment or causing environmental pollution or non-compliance with administrative decision (Article 26(5)); non-compliance with administrative decisions (Article 26(5)). Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 89

Hungary for each of the key enforceable obligations under the IPPC Directive.

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Table 2: Directive 2008/1/EC (IPPC Directive): types of offences and related administrative and criminal/administrative (quasi) criminal penalties in Hungary

Administrative Criminal/ Administrative (quasi) criminal

Offences Penalties Offences Penalties

Obligation to apply for a Operating without integrated Depending on the degree of impact on the Administrative Administrative permit for new or existing environmental permit, or without an environment, the competent authority may, (quasi)criminal offence: (quasi)criminal penalty: installations environmental permit. a) limit; See description below the See description below the 26 § (1) and (2) Government Decree b) suspend; or table. table. 314/2005 (XII.25)167 c) prohibit the continuation of the illegal conduct. 26 § (1) Government Decree 314/2005 (XII.25)

In addition, the competent authority shall, having regard to the danger of the illegal conduct may have on the environment, impose a fine of Euros 182 to 365/day (HUF 50,000 to 100,000) for the period when the installation was operating without a permit. 26 § (3) Government Decree 314/2005 (XII.25) Obligation to supply N/A N/A N/A N/A information for application for permits Obligation to notify the N/A N/A N/A N/A competent authority of any changes in the operation of an installation Obligation to comply with the Infringement or non-compliance with Administrative Administrative conditions set in the permit or the following requirement: (quasi)criminal offence: (quasi)criminal penalty: mandatory ELVs Obligation of the operator to comply The competent authority can oblige the operator to: See description below the See description below the with the permit conditions while a.) pay a fine of Euros 730-1,826 (HUF 200,000 to table. table. carrying out activities. 500,000) 26 § (4) Government Decree 314/2005 b.) require the operator to comply with the Criminal offence: See Criminal penalties: See (XII.25) conditions set in the permit, description below the table. description below the table. c.) within a six months period prepare a programme of measures or carry out an environmental review. 26 § (4) Government Decree 314/2005

167 Article 26(2): ‘Operating without an integrated environmental permit in case of activities specified in Article 1(3)(a)’ Article 1(3) refers to those activities which are listed in Annex I of the Government Decree. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 91

Depending on the degree of influence on the Endangering the environment or environment, the competent authority may: causing environmental pollution or non- a) limit; compliance with administrative b) suspend; or decision. c) prohibit the continuation of the illegal conduct. 26 § (5) Government Decree 314/2005 26 § (1) Government Decree 314/2005 (XII.25) (XII.25)

Depending on the degree of influence on the environment, the competent authority may: Infringement or non-compliance with a) limit; the following requirement: b) suspend; or Obligation of the operator to comply c) prohibit the continuation of the illegal conduct. with administrative decision. 26 § (1) Government Decree 314/2005 (XII.25) 26 § (5) Government Decree 314/2005 (XII.25) ‘Or’ Withdraw the environmental or integrated environmental permit. 26 § (5) Government Decree 314/2005 (XII.25)

The competent authority can require the operator to: a.) pay a fine from Euros 730 - 1,826 (HUF 200,000 to 500,000), b.) comply with the conditions set in the permit, c.) within a six months period prepare a programme of measures or carry out an environmental review. 26 § (4) Government Decree 314/2005 (XII.25)

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Illegal activities or omissions can constitute petty offences (also called administrative (quasi)criminal offences). The sanctions imposed for administrative (quasi)criminal offences are similar to those for criminal offences; therefore sanctions could for example include imprisonment or fines.168 With regard to the IPPC installations, the so-called ‘environmental protection petty offence’ is the most relevant.169 According to Article 148 of the Petty Offence Act, a fine up to Euros 547 (HUF 150,000) can be imposed in cases of operating without an environmental permit or non-complying with its conditions. According to the Hungarian legal system, only natural persons can be liable for petty offences. In case a legal person breaches its legal obligations, the person whose act or omission caused the breach will be liable.

For most serious breaches of environmental obligations, criminal liability may arise. Typical sanctions pursuant to Hungarian criminal law can include principle and supplementary punishments, such as imprisonment or a fine.170 The Hungarian Criminal Code does not cover offences which relate specifically to infringements of the IPPC Directive, but it includes general offences which can be of relevance, such as ‘damaging the environment’,171 ‘damaging the nature’,172 ‘illegal deposition of waste’173 and ‘danger to the public’. 174

As an example, in case of the offence ‘damaging the environment’, a person responsible for any pollution of the earth, the air, the water, the biota (flora and fauna) and their constituents, resulting in (i) their endangerment (ii) damage to such an extent that its natural or previous state can only be restored by intervention, or (iii) damage to such an extent that its natural or previous state cannot be restored at all, is guilty of a felony and can be punishable of imprisonment up to 8 years.

The criminal liability of legal persons was introduced in the Hungarian legal system in 2001, by Act CIV of 2001.175 Three different sanctions can be imposed for crimes committed by legal persons: (1) the dissolution of the legal person, (2) constraining the activity of the legal person and (3) fines.176

The way the fines are calculated is as follow: three times the benefits of the legal person from the illegal conduct, but at least HUF 500 thousands (Euros 1,862.85).

2 Administrative procedure

2.1 General elements on the legal tradition and potential evolution

Since the reform of the Hungarian criminal law in 1955, administrative sanctions and offences have

168 Article 13(1) of Act LXIX of 1999: Penalties applicable for petty offences: a.) imprisonment, b.) fine. Measures applicable for petty offences: a.) prohibition from driving, b)confiscation of goods, d.) notification, e.) expulsion. 169 List of petty offences which could be relevant with regard to IPPC installations: • Environmental protection petty offence (Act LXIX of 1999, Article 148); • Nature protection petty offence (Act LXIX of 1999, Article 147); • Water pollution petty offence (Government Decree 218/1999 (XII. 28.), Article 126); • Petty offence of breaching water law requirements (Government Decree 218/1999 (XII. 28.), Article 125); and • Petty offence of breaching flood protection and/or inland flood protection requirements (Government Decree 218/1999 (XII.28.), Article 127). 170Criminal Code Article 38: (1) Principal punishments are: 1. imprisonment, 2. labour in the public interest, 3. Fine 4. Prohibition from profession 5. Prohibition from driving vehicles and 6. Expulsion. Supplementary punishments are: 1. prohibition from public affairs and 2. Banishment. 171 Act IV of1978, Article 280. 172 Act IV of 1978, Article 281. 173 Act IV of 1978, Article 281/A. 174 Act IV of 1978, Article 259. 175 Act CIV of 2001 on Criminal Measures Applicable against Legal Persons. 176 Article 2(1) and Article 3 of Act CIV of 2001. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October legislation on industrial emissions in seven selected countries 93 2011

been separated from criminal law.177 Administrative sanctions can be imposed by competent administrative authorities within the framework of administrative procedures to address unlawful activities. Administrative sanctions are onerous in nature and can be executed.

On the basis of their functions, administrative sanctions can be grouped as follow: - Administrative sanctions enforcing administrative provisions: e.g. Article 26(4) of Government Decree 314/2005 (XII. 25.) - complying with the conditions set in the permit; - Preventive administrative sanctions: e.g. Article 101(2) of Act LIII of 1995.- being liable for the costs of prevention of the polluting activity; - Repressive administrative sanctions: e.g. Article 26(1) of Government Decree 314/2005 (XII. 25.) - limiting the illegal conduct; - Compensatory administrative sanctions: e.g. Article 26(4) of Government Decree 314/2005 (XII. 25.) - paying a fine of Euros 730- 1,826.

2.2 Inspections

2.2.1 General information

In Hungary, environment related inspections are performed by administrative bodies for environmental protection.178 The main administrative authorities for environmental protection at country level are the Ministry of Rural Development179 and the National Inspectorate for Environment, Nature and Water.180 The National Inspectorate for Environment, Nature and Water and the regional inspectorates are responsible for the day-to-day matters and regulatory issues, whereas the Ministry of Rural Development supervises such activities.181 At first instance, environment-related matters are mainly managed by the ten Regional Environment, Nature and Water Inspectorates.182 Most of the control carried out by the inspectorates takes place according to annual plans. In Hungary inspection plans are not generally available to the public.183

The ten regional inspectorates are competent for the enforcement of the transposing legislation of the IPPC Directive. In 2010, the estimated number of staff members working on IPPC related inspections was 145. The number of IPPC installations subject to administrative control was about 1119.184 In 101

177 Fazekas Marianna – Ficzere Lajos (edit.), ‘Hungarian Public Administration Law’ (Magyar közigazgatási jog. Általános rész), 2006, Osiris Kiadó, Budapest pp. 540-553. 178 The International Comparative Legal Guide to Environment Law 2010, ‘Gabor Hugai and Andras Komaromi: Hungary’, http://www.iclg.co.uk/khadmin/Publications/pdf/3609.pdf 179 Before Ministry of Environment and Water: http://www.kormany.hu/hu/videkfejlesztesi-miniszterium 180 The National Environment, Nature and Water Inspectorate is mainly a second instance authority. http://www.orszagoszoldhatosag.gov.hu/index.php?akt_menu=78&bemut=3 181 The International Comparative Legal Guide to Environment Law 2007, Ivan Bartal, http://www.iclg.co.uk/khadmin/Publications/pdf/1177.pdf 182 Észak-dunántúli Környezetvédelmi, Természetvédelmi és Vízügyi Felügyelőség, Győr Nyugat-dunántúli Környezetvédelmi, Természetvédelmi és Vízügyi Felügyelőség, Szombathely Közép-dunántúli Környezetvédelmi, Természetvédelmi és Vízügyi Felügyelőség, Székesfehérvár Dél-dunántúli Környezetvédelmi, Természetvédelmi és Vízügyi Felügyelőség, Pécs Közép-Duna-völgyi Környezetvédelmi, Természetvédelmi és Vízügyi Felügyelőség, Budapest Tiszántúli Környezetvédelmi, Természetvédelmi és Vízügyi Felügyelőség, Debrecen Felső-Tisza-vidéki Környezetvédelmi, Természetvédelmi és Vízügyi Felügyelőség, Nyíregyháza Észak-magyarországi Környezetvédelmi, Természetvédelmi és Vízügyi Felügyelőség, Miskolc Közép-Tisza-vidéki Környezetvédelmi, Természetvédelmi és Vízügyi Felügyelőség, Szolnok Alsó-Tisza-vidéki Környezetvédelmi, Természetvédelmi és Vízügyi Felügyelőség, Szeged 183 Commission Staff Working Paper, Report on the implementation of Recommendation 2001/331/EC providing minimum criteria for environmental inspections, SEC (2007) 1493. 184 In 2008 this number was 979. Resource used: http://eea.eionet.europa.eu/Public/irc/eionet- circle/reporting/library?l=/ippc/ippc_permitting&vm=detailed&sb=Title Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October legislation on industrial emissions in seven selected countries 94 2011

cases, the administrative authorities required the operators to take actions and in 134 cases imposed administrative fines.185

2.2.2 Key elements of the inspection procedures

Regional inspectorates can gather information about the activities of the IPPC installations through regular administrative control. Act CXL of 2004 on the general rules of public authority procedures and services, sets the main rules for administrative control. Environment related inspections are regulated by Act LIII of 1995 on Environmental Protection,186 whereas the IPPC Decree lays down specific rules applicable to the administrative control of IPPC installations.

General rules on administrative inspections

In order to investigate and assess the environmental impacts of the specific activities and check if the operator complies with the legal requirements, environmental audits can be carried out.187 If as a result of the audit, the regional inspectorate detects that environmental damage was caused, or there was a risk of such damage, it may fully or partially restrict or suspend the activity of the installation.188

In addition to the environmental audit, the operator might evaluate its own environmental performance in form of the so-called ‘environmental protection performance evaluation’ and request the regional inspectorates to approve it.189

Moreover, operators shall inform the regional inspectorates on any significant changes concerning the activity of the installation.190 In case of non-compliance with this obligation, the regional inspectorates may suspend the activity of the operator. The regional inspectorates shall also inspect ex-officio the changes in the conditions of the environmental permit. In case the conditions significantly deviate from the conditions existing at the time of permitting, the inspectorate shall order an environmental audit.191

IPPC specific rules on administrative inspections

In addition to the general rules, the IPPC Decree lays down specific rules applicable to the administrative control of IPPC installations. In accordance with Article 22(1) of the IPPC Decree, the regional inspectorates may introduce a so-called ‘trial operation’ for the installations. Before the end of the ‘trial operation’, but at the latest six months after it started, the competent authorities shall examine if the operation of the installation is in compliance with the requirements of the integrated environmental permit. For this purpose, the operator is required to provide the authorities with the following documents: document listing the equipments used in the installation, documents proving that the installation operates in compliance with the requirements of the integrated environmental permit.

Integrated environmental permits are valid for a period of at least 5 years but the installations get permits for a period more than 5 years as well. However, each 5 years the Regional Environment,

185 Note that the numbers are estimated numbers, gathered through an interview with a representative of the Ministry of Rural Development. 186 International Comparative Legal Guide Series, Environment Law, 2007, Hungary: According to Article 64 of the Environmental Protection Act, the enforcement of the administration of environmental protection is included within the scope of the administration of environmental protection. http://www.iclg.co.uk/khadmin/Publications/pdf/1177.pdf 187 Article 73(1) of Act LIII of 1995. 188Article 74(3) of Act LIII of 1995. 189 Article 77 of Act LIII of 1995. 190Article 82(1) of Act LIII of 1995. 191 Article 82(2) of Act No LIII of 1995. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October legislation on industrial emissions in seven selected countries 95 2011

Nature and Water Inspectorates have to carry out an administrative control in accordance with the rules applicable to the environmental audit.

In accordance with Article 22(3) of the IPPC Decree, the administrative authorities shall carry out ‘site- visits’ on a yearly basis in order to examine the execution of the requirements of the integrated environmental permit. At the end of the proceeding, the competent authorities shall prepare a report of proceedings. As the IPPC Decree does not specify the rules of site inspections, the general rules of Act CXL of 2004 are applicable.192 As a general rule,193 the operator shall be informed about the inspection in advance. Unless stated differently,194 the person concerned can attend the inspection, which in principle is carried out during the operation of the installation.195 The following table summarizes the rights and obligations of the inspectorates during the site inspection:

Table 3: Rights and Obligations of inspectors

Rights and obligations of inspectors196 Rights Obligations 11. entry 5. preparing a report of proceedings 12. access to the file 6. returning documents and physical evidences to the 13. monitor/examine the working process or other persons concerned or submitting them to the objects competent authorities 14. request for information 15. record image and sound 16. sampling 17. seizure 18. other

According to the IPPC Decree, depending on the result of the different type of administrative controls, the competent authorities may take the following administrative measures: - Administrative measures laid down in Article 20(9) and (10): o obliging the operator to carry out environmental performance review; or o amending the requirements of the integrated environmental permit. - Administrative measures laid down in Article 26: o imposing sanctions (see above in Table 1).

2.2.3. The inspectors’ enforcing powers

There is no specific provision identified with regard to the inspectors’ enforcing powers in the IPPC Decree, thus the rules of Act LIII of 1995 and Act CXL of 2004 are applicable.

In accordance with the general rules of Act CXL of 2004, the regional authorities may order temporary safety measures in form of seizure or pledging for cases when there is a risk that the operator does not fulfil his legal obligations.197

Moreover, during the inspection, the operators are obliged to provide the inspectors with access to the installations.198 If it is necessary for the safe proceeding or the success of the administrative procedure,

192 Procedural rules applied on site visits are laid down in Article 56- 57/B and 88-92 of Act CXL. of 2004. Note that Article 56-57/B regulates a specific type of inspections (‘szemle’) which is applicable when the observation of the person, movable property or immovable property is required in order to cleaning up the matters of fact. In accordance with Article 88(4), procedural rules laid down in Article 56-57/B are also applicable to on the spot/site inspections. 193 Article 57(1) of Act CXL of 2004. 194 Article 57(5) of Act CXL of 2004. 195Article 57/A(1) of Act CXL of 2004. 196 Resource used: http://www.kszk.gov.hu/data/cms18125/7_tema_Hatosagi_ellenorzes.ppt 197 Article 29/A of Act CXL of 2004. 198 Article 57/A(3) of Act CXL of 2004. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October legislation on industrial emissions in seven selected countries 96 2011

the regional inspectorates may ask the police to attend.199 In case the person concerned with the administrative procedure impedes the investigation, the regional inspectorates can seize the relevant physical evidences200 and impose administrative fines on the person.201 Moreover, if immediate actions are required (i.e. in case of danger of death) the regional inspectorates may enter in the installations without the agreement of the persons concerned.202 This kind of control would require the approval of the public prosecutor, and the attendance a police official and an official witness, unless the process of asking for the approval of the public prosecutor would cause significant delays.

Enforcement of the decision of administrative authorities

As a general rule, the regional inspectorates shall ex-officio check if the operators fulfilled their obligations set by an administrative decision. In case of concern, the regional inspectorates may carry out an administrative control.203 If the operator does not comply with the administrative decision, the regional inspectorates may start the execution procedure. The execution procedure might inter alia aim at: - enforcing the fulfilment of a pecuniary obligation, such as payment of an environmental fine;204 or - ensuring that the operator carries out certain activity, such as compliance with the conditions set in the permit.205 The general rules of execution procedures are laid down in Act LIII of 1994 on judicial enforcement procedures.

As a specific rule, the decisions of the administrative authorities made concerning emergencies that pose hazard to or damage the environment shall be executed without delay, regardless of the appeal procedure.206

2.3. Appeal against the administrative decision

Any action or decision taken by the regional inspectorates can be appealed before the National Inspectorate for Environment, Nature and Water or a judicial court. The IPPC Decree does not include provisions on appeals against administrative provisions, thus the general rules of Act CXL of 2004 are applicable. Appeal procedures can start on the operator’s request and/or ex-officio. The following table summarizes the different appeal proceedings identified. These are further described below.

Table 4: Appeal proceedings against administrative decisions

Appeals against administrative decisions Appeals on operator’s request Ex officio appeals Appeal proceeding: Proceeding within the competence of the authority taking Articles 98- 108 the administrative decision : Article 114 Judicial review of administrative suit: Surveillance procedure: Articles 109- 111 Article 115 Retrial procedure: Proceeding on the basis of the decision of the Constitutional Articles 112-113 Court: Article 117 Proceeding on the basis of the objection of the prosecutor:

199 Article 57/B(1) of Act CXL of 2004. 200 Article 57/B(2) of Act CXL of 2004. 201 Article 57/B(3) of Act CXL of 2004. 202 Article 57/B(4) of Act CXL of 2004. 203 Article 129 of Act CXL of 2004. 204 Article 132-137 of Act CXL of 2004. 205 Article 140-142 of Act CXL of 2004. 206 Article 95 of Act LIII of 1995. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October legislation on industrial emissions in seven selected countries 97 2011

Article 118-119 Appeals on the request of the operators/ ex officio Request for: - Revision of an administrative resolution - Complementing an administrative resolution - Replacement - Annulment

2.3.1 By the operator

Appeal proceeding: The operator might appeal against any first instance decision of a regional inspectorate. The appeal shall be filed to the regional inspectorates,207 which submit the appeal together with the supporting documents to the National Inspectorate for Environment, Nature and Water within 8 days. The National Inspectorate may approve, amend or annul the first instance decision. In case of annulment, the regional inspectorates may be ordered to conduct a new administrative procedure.

Judicial review of administrative suit: Any final decision of the competent authorities might be reviewed by judicial courts, based on the request from the operator or other actors of the procedure within 30 days. The competent administrative court might annul the final administrative decision and in case of need may order the administrative authority to conduct a new procedure.

Retrial proceeding: The operator might ask for the retrial of the procedure within 15 days from the appearance of e.g. a new information or fact. The request for retrial is decided by the regional inspectorates, which may amend or withdraw the final administrative decision or take a new decision.

2.3.2 By a person other than the operator

Proceeding within the competence of the authority taking the administrative decision: Both first and second instance authorities may amend or withdraw their decisions ex-officio in case of non- compliance with the legal requirements, within one year from communicating the decision with the parties.

Surveillance procedure: Within its ex-officio monitoring activities, the National Inspectorate may annul or amend the unlawful decisions of the regional inspectorates.

Proceeding on the basis of the decision of the Constitutional Court: Within its competence, the Constitutional Court may declare that a legal act is unconstitutional and thus exclude its application retrospectively. Following such decision, anyone can use his/her right of complaint and ask the administrative authorities to amend or annul their decisions.

Proceeding on the basis of the objection of the prosecutor: The public prosecutors might object to any decision, proceeding or omission of the competent authorities.

In addition, both the competent authorities and the parties might ask for the annulment, replacement, revision and/or completion of an administrative decision.208

3 Judicial procedure (if relevant-with a focus on criminal sanctions)

207 Unless the regional inspectorate decides to correct, complement, amend, withdraw its decision, or dismiss the appeal without examination (e.g. belated appeal). 208 Article 121 of Act CXL of 2004. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October legislation on industrial emissions in seven selected countries 98 2011

3.1 General information209

As noted above, there is no specific IPPC related criminal offence. Consequently, the general rules of criminal procedures are applicable, which are laid down in Act XIX of 1998 (Criminal Procedure Act). In practice, criminal procedures against IPPC installations are rare. Therefore, the rules described below are rather theoretical.

The court may only ascertain the criminal liability of an operator against whom an accusatory instrument was filed and only for acts contained in such instrument.210 In principle, the following actors have the right to initiate and conduct a criminal procedure: court, public prosecutor,211 the investigative authorities212 and under certain circumstances the substitute private accuser.213 The regional inspectorates shall ex-officio inform the investigative authorities in case of detecting the suspicion of a criminal offence. In 2010, there was only one case when a regional inspectorate initiated a criminal procedure against an IPPC installation.214

The operators are entitled the following rights during the different stages of the criminal procedure:

Table 5: Rights of operators during the criminal procedure

Operator/ Stage of the criminal Rights Defendant procedure Suspect In the course of investigation. Article 43(2) of the Criminal Procedure Code: - receiving information on the suspicion, on the charge and any changes, - be present at actions and inspects, - be granted sufficient time and opportunity for preparing the defence, - file for legal remedy, - receiving information on his rights and obligations during the criminal proceeding, - present facts at any stage of the procedure, make motions and objections. Accused In the course of court procedure. Article 43(3) of the Criminal Procedure Code: - contacting the defence counsel (if foreign the consulate) and communicate with them without control, - written and verbal communication with relatives under certain control, or with other persons under legal conditions laid down in Article 43 (3)(b).

Relevant facts for the application of criminal statutes and legal regulations on criminal proceedings are covered by evidences.215 Inspection can be ordered and conducted by the court or the prosecutor to serve as evidence.216 217 In order to ensure the effectiveness of the criminal proceedings, coercive

209 Special rules are applicable to the criminal proceedings against inter alia juvenile offenders (Part 5 of the Criminal Code), Military criminal proceedings (Chapter XXII) Procedures based on private accusation (Chapter XXIII), procedures against absent defendants (Chapter XXV) and Procedures against persons enjoying immunity (Chapter XXVIII). 210 Article 2(3) of Act XIX of 1998. 211 Article 28(1) of Act XIX of 1998: ‘The prosecutor act as the public accuser’. 212 Article 6(1) of Act XIX of 1998 : It is the responsibility of the court, the prosecutor and the investigating authority to initiate and conduct the criminal proceedings if the conditions set forth in this Act prevail. 213 Article 53(1) of Act XIX. of 1998: ‘[…] the victim may act as a substitute private accuser if: (a) the prosecutor or the investigating authority rejected the report or terminated the investigation, (b) the prosecutor partly omitted the indictment, (c) the prosecutor dropped the case, (d) the prosecutor did not state any criminal offence that should be prosecuted based on the public accusation, consequently he did not file a charge, nor did he take over the representation of the indictment […], (e) the prosecutor dropped the charge in the trial because in his judgement, the criminal offence should not be prosecuted based on a public accusation.’ 214 More information on the case is included in one of the case-studies. 215 The following constitute means of evidence in the Criminal Procedure Act: witness, expert opinion, physical evidence, documents and pleadings of the defendant. 216 Rules on inspections are described under Article 119(1) of Act XIX of 1999. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October legislation on industrial emissions in seven selected countries 99 2011

measures can be applied.218

Unless otherwise stated in the Criminal Procedure Act, criminal proceedings start with an investigation. Investigation is ordered and carried out by the public prosecutor and/or the investigating authorities 219 on the basis of the data coming to the cognisance of the prosecutor, or the investigating authority within their official competence or in via a complaint.220

The investigation must commence as soon as possible, and in principle must be concluded within 2 months.221 As an investigatory action, the prosecutor and/or the investigating authority may inter alia: - collect data;222 - interrogate the operator.223 In principle, anyone affected may challenge the decision of the prosecutor and/or the investigating authority within 8 days.224

The prosecutor is responsible for filing the indictment to the court. The filing of the indictment cannot be subject to appeal. If the prosecutor has rejected the protest of the victim concerning the dismissal of the complaint or the termination of the investigation, a substitute private accusation may be lodged. Moreover, if the prosecutor has partially omitted the indictment, the victim may stand as a substitute private accuser.225

The court holds a trial to establish the criminal liability of the accused. The panel of the court adopts its decision after deliberation by way of voting. 226

3.2 Possibilities of appeal

Act LI of 2006 introduced a tertiary appeal system in Hungary. In accordance with Article 13 of Act XIX of 1998, local courts and county courts are the first instance courts. Second instance courts are: - County courts in cases falling within the competence of local courts, - Court of appeals (tribunals)227 in cases falling within the competence of county courts, - The Supreme Court in cases when the law allows appeal proceedings against the decisions of the courts of appeal (tribunal). Third instance courts are: - Courts of appeals (tribunals) in cases that were decided at the county courts at the second instance,

217 Other evidentiary procedures are: Questioning on the scene, Reconstruction, Presentation for identification, Confrontation, and Concurrent hearings of experts. 218 Coercive measure can infringe or restrict the fundamental rights of the citizens; in particular, coercive measures might restrict the freedom of movement, ownership, property rights, right to personal liberty. Under the Criminal Procedure Act, the following coercive measures can be imposed: custody, pre-trial detention, home curfew, house arrest and keeping away, temporary involuntary treatment in a mental institution, measure to warrant the prohibition to travel abroad, bail, search, body search and seizure, order to reserve date recorded by a computing technical system, sequestration and precautionary measures and securing the order of proceedings. 219 Investigation falls under the exclusive competence of the public prosecutor in certain criminal offences listed in Article 29, which includes inter alia the following criminal offences: criminal offences committed by persons enjoying immunity due to holding a public offence, murder against a judge, criminal offences committed by a sworn members of the police. 220 Article 170(1) of Act XIX of 1998. 221 Rules of the deadlines for carrying out inspections are laid down in Article 176(1) and (2) of Act XIX of 1998. 222 Applicable rules are laid down in Article 176(1) and (2) of Act XIX of 199. 223 Applicable rules are laid down in Articles 179-180 of Act XIX of 1998. 224 Article 195(1) of Act XIX of 1998 225 Applicable rules are covered by Article 229(1) of Act XIX of 1998. 226 Article 256(3) of Act XIX of 1998. 227 The total number of courts of appeals (tribunals) in Hungary is 5: Tribunal of the capital, Tribunals of Pécs, Győr, Debrecen and Szeged. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October legislation on industrial emissions in seven selected countries 100 2011

- The Supreme Court in cases where the court of appeals (tribunals) decided on second instance.

Appeal procedure: The judgement of the court of first instance or any non-conclusive ruling of the court may be appealed228 at the court of second instance.229 The court of second instance may uphold, modify or repeal the judgement of the court of first instance, or reject the appeal.230 The conclusive decision of the court of second instance might be appealed231 at the court of third instance.232 The court of third instance might uphold, modify, or repeal the judgement of the court of second instance contested with the appeal, or reject the appeal.233

Re-trial: The final judgment of the court may be subject to re-trial if e.g. new evidence is found which makes if probable that the defendant shall be acquitted.234 Depending on the outcome of re-trial, the competent court might repeal the judgement or reject the re-trial if it is found unsubstantiated. 235

Review: The final conclusive decision of the court might be subject to the review of the Supreme Court.236 237 The Supreme Court may uphold in effect, modify or repeal the contested decision.238

Legal remedy on legal grounds: The Prosecutor General may report a legal remedy to the Supreme Courts, which may reject the legal remedy, or find that the legal ground of the remedy is substantiated and thus i.e. acquit the defendant, or order the court to conduct a new procedure.239

Harmonisation procedure: If as a result of its harmonisation procedure, the Supreme Court finds that a doctrine on which the court established the criminal liability of the operator is unlawful it may repeal the unlawful disposition, acquit the defendant and terminate the criminal procedure.240

3.3 Administrative (quasi) criminal procedures

General information

There is no specific IPPC related administrative (quasi) criminal procedure, thus the general rules of Act LXIX of 1999 are applicable.

Administrative (quasi)criminal procedures start with a complaint or ex-officio by the relevant administrative authorities. With regard to IPPC related petty offences, the main administrative authorities are the notaries (e.g. for ‘environment protection petty offence’)241 and the nature

228 The following parties might be entitled to appeal: a.) accused, b.) the prosecutor, c.) the substitutive private accuser, d.) the counsel for the defence, e.) the heir of the accused, against orders granting a civil claim, f.) the legal representative, the spouse or common-law spouse of an accused of legal age against an order for involuntary treatment in mental institution, g.) private party, against whom a disposition has been made in the verdict, in respect of the relevant order, h.) those against whom a disposition has been made in the verdict, in respect of the relevant order. 229 Article 347(1) of Act XIX of 1998. 230 Article 370(1) of Act XIX of 1998. 231 The following parties have the right of appeal under Article 367/A (1): the accused, the prosecutor, the substitutive private accuser, the defence counsel and the legal representative, spouse or common-law souse of the accused of legal age, against the order of involuntary treatment in a mental institution. 232 Article 367/A(1) of Act XIX of 1998. 233 Article 396(1) of Act XIX of 1998. 234 Article 408(1) of Act XIX of 1998. 235 Article 415(1) of Act XIX of 1998. 236 Article 416(1) of Act XIX of 1998. 237 As an example, the final conclusion of the court is subject to review if the defendant was acquitted of the procedure terminated, the criminal liability of the defendant established or the involuntary treatment in mental institution ordered in violation of the criminal substantive law. 238 Article 426-428 of Act XIX of 1998. 239 Article 431-438 of Act XIX of 1998. 240 Article 439- 445 of Act XIX of 1998. 241 Article 32 of Act LXIX of 1999. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October legislation on industrial emissions in seven selected countries 101 2011

protection authorities (e.g. for ‘nature protection petty offence’).242 In principle, the deadline for completing administrative (quasi) criminal procedures is 30 days. 243

Enforcement powers

If the administrative authorities notice the illegal conduct during an administrative control, they can impose a fine and process the administrative (quasi) criminal procedure on the site, unless additional evidence is required. 244

Appeals

Complaint against decisions related to administrative proceedings: The operator and his/her legal representative as well as any person subject to administrative fine might lodge a complaint against the procedural decision of a competent administrative authority. The public prosecutor may decide reject or withdraw the administrative decision.245

Complaint against the administrative decision: The operator, his legal representative or the defence counsel might object the decision of the administrative authorities.246 On the basis of the objection, the administrative authority may withdraw or amend the decision. If the administrative authority does not agree with the objection, it submits the motion to the competent local courts which may maintain or amend the decision of the administrative authorities.247

Review: The final conclusive decision of the court might be subject to judicial review. The competent first instance court might maintain or withdraw the decision of the court of first instance.248

Proceeding on the basis of the objection of the prosecutor: Based on the objection of the public prosecutor, the administrative authority may withdraw its decision. In case of disagreement, the administrative authority submits the objection to the competent courts. The court may approve the objection of the prosecutor and order the administrative authorities to conduct a new procedure in accordance with the objection of the prosecutor.249

4 Synergies between administrative, administrative (quasi) criminal and criminal procedures

As noted above, administrative procedures can be conducted alongside with criminal or administrative (quasi) criminal procedures. However, administrative (quasi)criminal and criminal procedures cannot be conducted at the same time.

The table below summarizes the procedural link-if any- between administrative, administrative (quasi) criminal and criminal procedures.

Table 6: Procedural links between administrative, administrative (quasi) criminal and criminal procedures

Administrative Administrative Criminal

242 Article 35 of Act LXIX of 1999. 243 Article 82 (4) of Act LXIX of 1999. 244 Article 133 of Act LXIXof 1999. 245 Article 86 (3) and (4) of Act LXIXof 1999. 246 Article 88 (1) of Act LXIXf 1999. 247 Articles 88-89, 93-100 of Act LXIX of 1999. 248 Articles 103- 110 of Act LXIX of 1999. 249 Article 91 of Act LXIX of 1999. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October legislation on industrial emissions in seven selected countries 102 2011

(quasi)criminal Administrative + + Quasi-criminal + - Criminal + -

Administrative (quasi) criminal and criminal procedures: In accordance with Article 1(2) of Act LXIX of 1999 on petty offences, no petty offence can be if the action constitutes a crime. Moreover, Article 83(1)(e) of the Petty Offence Act requires the administrative authorities to cancel administrative (quasi) criminal procedure if there is an on-going criminal procedure in place against the operator for the same illegal conduct, or the liability of the operator for the same illegal conduct has already been declared within a previous criminal procedure. In accordance with Article 6 of the Criminal Procedure Code, no criminal proceeding can be conducted against an operator who has been declared liable in a court decision within the framework of an administrative (quasi)criminal procedure.

Administrative and administrative (quasi)criminal/criminal procedures: According to Article 107 of the Environmental Protection Act, the imposition of an environmental fine does not free anyone from criminal, administrative (quasi)criminal or civil liability, or from being obliged to limit, suspend or halt an activity; realizing protective measures or restoring the natural/previous state of environment’. Thus, an administrative procedure can be conducted along with criminal and/or administrative (quasi)criminal procedures.

There is no legal rule applicable to the procedural links between administrative and criminal/quasi- criminal procedures. In practice, criminal/administrative (quasi) criminal procedures often follow administrative procedures. This can be explained by the fact that the suspicion of a criminal offence/ administrative (quasi) criminal offence is often a result of an administrative procedure or becomes evident within the framework of an administrative procedure, e.g. during administrative control. Lodging a criminal/ administrative (quasi)criminal procedure does not suspend on-going administrative procedures, in other words the different procedures can be conducted in parallel.250

Based on the findings of the structured interviews it seems that the main reason for the limited number of criminal procedures against IPPC installations is the lack of knowledge. In other words, in most cases administrative authorities are not aware of the possibility of initiating criminal procedures. Moreover, no specialised unit exists within the office of the public prosecutor/investigated authorities dealing with environmental criminal offences. This situation will be changed in the future according to one of the judges of the Supreme Court, who emphasized that it is planned to set up a department within the Prosecution Office of the Prosecutor General dealing exclusively with environment related offences.

It is noted, that court procedures against IPPC installations often take place in form of administrative court procedures. In accordance with Article 109 of Act CXL of 2004 on administrative procedures, IPPC installations may appeal against the conclusive administrative decision before the competent administrative courts. According to Article 326(9) of Act III of 1952 on civil procedures, the competent administrative courts at first instance are the county courts. In principle there is no possibility to appeal against the decision of the court. However, on the legal basis of Article 340/A(2) of Act III of 1952, the Supreme Court may review the decision of the administrative court. In accordance with Article 340/A(3) of Act III of 1952, the IPPC installations may also ask for retrial.

250 Information for this section was gathered through conducting interview with a representative of the Ministry of Rural Development.

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5 Conclusions

Proportionality

Article 106 of the Environmental Protection Act requires the administrative authorities to adjust the amount of administrative fines to the severity of the environmental damage caused, the environmental pollution and the length and periodicity of the illegal conduct. The IPPC Decree also states that the level of fines should be proportionate to the negative environmental impacts of operators’ activities.

In line with this above requirement, the competent authorities may impose fines/day for the period while the installation was operating without an environmental permit or without the performance of the preliminary environmental impact assessment.251

In addition to these legal conditions, some authorities suggested to take into consideration the financial capacity of the IPPC installations while imposing sanctions. They argued that in case of too high sanctions, the operators may close down the installations without restoring the environment, which is contrary to the main aim of the IPPC Decree.

One of the regional inspectorates argued that authorities shall impose more stringent sanctions on IPPC installations than on installations not falling under the obligation of obtaining an integrated environmental permit. According to the interpretation of the regional inspectorate, IPPC installations often cause more severe damage to the environment, than non-IPPC ones. The authority illustrated its argument through the following example:

In the given case, a chicken farm did not fill in the waste register. For this illegal conduct, the regional inspectorate imposed a fine of Euros 746 (HUF 200,000) on the chicken farm (IPPC installation). In case of a non-IPPC installation, this fine could have been disproportionate with regard to the insignificant character of the illegal conduct.

According to most of the practitioners,252 the Hungarian legislation provides enough room for adjusting the sanctions to the illegal activity of the IPPC installation; however some argued that sanctions would be more efficient if taking the benefits gained from the illegal conduct and/or the costs of restoring the environment into consideration.

Those practitioners who did not find the current system of administrative sanctions proportionate enough argued that Euros 730 (HUF 200,000) as a minimum limit is too strict for some minor cases of non-compliances with permit conditions, whereas the maximum limit of Euros 1,826 (500,000) is too low for more serious breaches, or breaches which are repeated periodically.253 In other word, the range of possible fines set by the legislation is too narrow.

According to Article 23 of the Petty Offences Code, sanctions and measures must be adjusted to the severity of the illegal conduct. While imposing administrative (quasi)criminal sanctions, the authorities must take into consideration the personal circumstances of the defendants and check if the operator has carried out similar or identical administrative (quasi)criminal offence during the past two years.

The Criminal Code reflects the principle of proportionality as it requires criminal sanctions to be

251 Article 26 (3) of the IPPC Decree.

252 Information gathered through the results of an informal questionnaire sent to the regional authorities.

253 This example refers to the provisions of Article 26 §(3) of the IPPC Decree.

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proportionate to the danger of the illegal conduct to the environment and the society, the degree of culpability and to other aggravating and mitigating circumstances.254

Effectiveness

According to most of the regional inspectorates, an administrative sanction can be seen as effective if:  it contributes achieving the aim of the legal act;  it forces the operator to fulfil his/her legal obligations;  it shortly follows the illegal conduct; and  it is personalised to the given operator.

In addition to the above listed criteria, it was one of the main findings of Case Study I (see in Annex) that a sanction cannot be seen as effective if it restrains the operator from restoring the state of environment on the site and/or from repairing the damage caused.

Dissuasiveness

According to the answers received from the regional inspectorates, a sanction is deemed to be dissuasive if it prevents the defendant and/or other operators from any illegal activity. The deterrent effect of administrative sanctions is well illustrated through the following example:

In 2010, one of the regional inspectorates conducted a site visit in a chicken farm. As a result, the regional inspectorate noticed that the number of chickens was higher than 40,000 during 33 days of the year. Above the limit of 40,000 chickens, farms fall under the scope of IPPC Decree (Annex II (11) (a)), thus require an integrated environmental permit.

On the legal grounds of operating an IPPC installation without an integrated environmental permit, the regional inspectorate imposed a fine of Euros 6,166 (HUF 1,650,000). Following this decision, the operator applied for an integrated environmental permit.

According to most regional authorities, warning the operators about the potential legal consequences of their illegal conduct is often preventive enough. In other words operators often start complying with their legal obligations before more severe sanctions would be imposed. Therefore, it is rare that criminal sanctions are imposed against operators, although the possible sanction of privation of freedom may have the most deterrent effect on the operator.

Based on the main findings of Case-study I, it can be argued that a sanction leading to the closure of the installations cannot be seen as dissuasive. Logically a given sanction has no preventive effect on an operator who terminated its activities due to the sanction imposed.

In the given case, the IPPC installation was carrying out activities without a valid integrated environmental permit. Following a site-visit, the regional inspectorate prohibited the illegal activity of the IPPC installation. The IPPC installation appealed against the first-instance decision.

A few months after taking the first-instance decision, the regional inspectorate carried out a regular site-visit on the site and noticed that the operator stopped its economic activities on the site. In other words the decision of the administrative authority led to the closure of the IPPC installation.

More details on the case are provided in the Annex of this Case-study.

254 Article 83(1) of the Criminal Code.

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Case studies

The cases studies below illustrate the nature of administrative sanctions (i.e. effective, dissuasive, and proportionate) applicable to IPPC installations and the procedural links between administrative and court procedures.

The first case study shows the lack of dissuasive character of the administrative sanction imposed. In the given case, the competent regional inspectorate prohibited the activity of the installation. Following the decision, the IPPC installation terminated its economic activities. The conclusion of the case is that a sanction cannot be seen as dissuasive, if as its consequence the operator stops the economic activities on the site.

In the second case-study due to the administrative sanction imposed the IPPC installation stops the illegal conduct, cleans the site and installs the necessary equipment to prevent such illegal activities.

The third case illustrates the procedural link between administrative and court procedures. It also gives an example to cases when the administrative authorities apply different rules than those provided in the IPPC Directive (and its implementing IPPC Decree) for cases when an IPPC installation does not comply with its legal obligations. It is noted and explained below that such interpretation of the law by the competent administrative authority was wrong.

Case Study I: Administrative sanctions applicable to IPPC installations

Interviewee – Ms Gyöngyi Bejenaru-Sramkó255 Organisation and position: Ministry of Rural Development, Chief Counsellor (Environment Conservation and Development Department) Telephone number: +36-1-795-2444 Date of interview: 15/04/2011

Timeline of the procedure 16/04/10:

18/02/2009: 26/08/2009 : Site‐visit Administrative Decision Second instance decision

15/07/2009 : 15/12/2009: Second site‐ Start of procedure visit

Description of the background

255 With regard to the first two case studies, it must be noted that information was gathered through an interview with the Chief Counsellor of the Ministry of Rural Development (Ms Bejeranu- Sramko). When additional information was required on the case, the competent regional authority was contacted (Regional Environment, Nature and Water Inspectorate of Kozep-Dunavolgy) with the support of the Ministry of Rural Development, in the form of questionnaires. In certain instances, the regional authority was unable to provide information on the dates of the procedural steps, or the level of information provided was not sufficient to judge the nature of the sanction imposed (i.e. effectiveness, proportionality and dissuasiveness). Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October legislation on industrial emissions in seven selected countries 106 2011

‘B’ Plc. was carrying out activities with a valid integrated environmental permit, which was amended by three administrative decisions during the period of 2006 and 2008.

In January 2009, ‘B’ Plc informed the Regional Environment, Nature and Water Inspectorate of Kozep-Dunavolgy (hereinafter referred to as regional inspectorate) about terminating its activities from the end of January. The company also notified the inspectorate about its intention of subletting the site to ‘F’ Ltd.

The scope of activities carried out by ‘F’ Ltd. was identical to the past activities of ‘B’ Plc, which covered inter alia the manufacture and placing on the market of chemical substances on their own, in mixtures, in preparations and in articles. These activities fall within the scope of Government Decree No. 314/2005 (XII. 25.) on Environmental Impact Studies and Integrated Environment Use Permits (hereinafter referred to as IPPC Decree) and are listed in its Annex II. It is important to note that while ‘B’ Plc possessed a valid integrated environmental permit, ‘F’ Ltd started its activities without such a permit.

In order to verify the above described situation, the regional inspectorate carried out a site visit on 18 February 2009.

On the basis of the main findings of the site visit the regional inspectorate started two administrative procedures, one against ‘B’ Plc and a second against ‘F’ Ltd.

Legislation applicable

Article 26(1) and 26(2) of the IPPC Decree: in case an installation operates without an integrated environmental permit, or without an environmental permit, the authorities may limit, suspend or prohibit the continuation of the illegal conduct. The decision of the authority depends on the decree of influence of the illegal conduct on the environment.

Procedure

On 15 July 2009, the regional inspectorate started the administrative procedure against ‘F’ Ltd’s IPPC installation, on the legal basis of Article 26 of the IPPC Decree. This was communicated to the installation on the 17 July 2009. Following the official notice, ‘F’ Ltd declared the fact that it was carrying out activities without an integrated environmental permit. The regional inspectorate did not accept the reasoning of the installation. It argued that during the site visit (18 February 2009) it was notified to ‘F’ Ltd that it was carrying out IPPC activities without an integrated environmental permit. Moreover, the installation was warned several times that no IPPC activity could be carried out without an integrated environmental permit.

Shortly after the regional inspectorate started the administrative procedure, ‘F’ Ltd requested to change the integrated environmental permit with regard to the name of the installation carrying out the IPPC activities on the site. This request was under consideration, when the regional inspectorate took its decision.

In its decision (26 August 2009), the regional inspectorate prohibited the operation of the installation on the legal basis of Article 26(1)(c) and informed the parties about their right of appeal. In the legal notice, the regional authority also informed the parties about the possibility of imposing additional sanctions (i.e. fine) in the future, on the legal basis of Article 26(3) of the IPPC Decree.

On 15 December 2009, the regional inspectorate carried out a site-visit and noted that the installation terminated all its activities on the site. The company also terminated the sublet on the site.

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General comments on sanctions

While imposing the administrative sanction, the regional authority strictly interpreted the provision of Article 26(1) of the IPPC Decree. The main reason for prohibiting the activity of the installation was that ‘F’ Ltd carried out its activity without an integrated environmental permit.

Following the decision of the regional inspectorate the company terminated the sublet and stopped all its economic activities on the site. With regard to this point the regional inspectorate stated that the given decision did not have a deterrent effect. In other word a sanction cannot be seen as dissuasive, if as its consequence, the operator stops its economic activities on the site.

Finally, it is important to note that ‘F’ Ltd appealed against the first instance decision of the authority. On the 16 April 2010, the decision of the first instance regional inspectorate was approved by the National Environment, Nature and Water Inspectorate as second instance administrative authority. As noted above, by the time the second instance decision was taken, the IPPC installation terminated its activities on the site.

Case Study II: Administrative sanctions applicable to IPPC installations

Interviewee – Ms Gyöngyi Bejenaru-Sramkó256 Organisation and position: Ministry of Rural Development, Chief Counsellor (Environment Conservation and Development Department) Telephone number: +36-1-795-2444 Date of interview: 15/04/2011

Timeline of the procedure

06/2008 and 26‐28/01/2009: Date unknown: 13/10/2008: Site‐visit due to Appeal against Measuring emission & site‐ public complaint the first instance visit decision

11/11/2008: 02/2009 : Date unknown: Start of First instance Annulation of the procedure decision first instance decision

Description of the background257

The main activity of ‘E.’ Ltd. was to prepare equipment from recycled metal for rail companies. The company possessed a valid integrated environmental permit, in accordance with Government Decree 314/2005 (XII. 25.) on Environmental Impact Studies and Integrated Environment Use Permits (hereinafter referred to as ‘IPPC Decree’). The activity of the installation, namely ‘foundry with a production capacity of over 20 tonnes per day’ was listed in Annex II, point 2.4. of the IPPC Decree.

256 Ms Bejeranu- Sramko also acted as a contact person while sending the structured interview questions to the competent regional inspectorates and to the national inspectorate. Through a written questionnaire the Regional Environment, Nature and Water Inspectorate of Kozep-Dunavolgy provided information for the above case-study. 257 Where in the time-line the dates are indicated as unknown, it means that during the interviews no information was provided on dates. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October legislation on industrial emissions in seven selected countries 108 2011

Following a public complaint (from citizens), the Regional Environment, Nature and Water Inspectorate of Kozep-Dunavolgy measured the Carbon Monoxide (CO) emission from the foundry. As a result of measurement, the regional authority confirmed that the foundry exceeded the CO emission limit values set by the integrated environmental permit.

In addition to the activity of measuring the IPPC installation’s CO emission, the regional inspectorate carried out a site-visit on the 13 October 2008. Following the site visit (and also in compliance with the findings of the previous environmental audit), the regional authority confirmed that blue gas was emitted to the ambient air from the installation. It was assumed that this coloured gas was the by- product of the recycling process.

Following the site-visit, the regional authority informed the operator about the fact that its operation was not in compliance with the provisions of the integrated environmental permit and started the administrative procedure.

Legislation applicable

Article 26 (5) of the IPPC Decree: if an installation endangers the environment or causes environmental pollution or does not comply with an administrative decision, the authorities may impose the legal sanctions listed in Article 26(1) of the IPPC Decree.

Article 26(1) of the IPPC Decree: the administrative authorities may limit, suspend or prohibit the activity of an IPPC installation, depending on degree of influence of the illegal conduct on the environment.

Procedure

As noted above, the administrative procedure was preceded by an activity of measuring the CO emission from the site, which was carried out in June 2008 and by a site visit in October 2008. The administrative procedure was launched in November 2008. The regional inspectorate communicated its decision to the IPPC installation and asked the installation to notify any remarks within 3 days from the communication of the legal notice.

Following the legal notice received, the IPPC installation informed the regional inspectorate about terminating the emission which had previously exceeded the limit values set by the integrated environmental permit. In order to prove this fact, the installation enclosed an expert opinion, which underpinned that the CO emission of the installation was below the limit values set by the integrated environmental permit.

Following further public complaints, the regional inspectorate decided to measure the emission of the installation. During the second measurement (26-28 January 2009), the installation temporary ceased its operation and argued that the high level of CO emission was a result of the temporary malfunctioning of the installation.

As a result of the second measurement of emissions, the regional authority notified that the activity of the installation was not in compliance with the integrated environmental permit. Consequently the regional inspectorate ordered the installation to install an equipment to constantly measure the emission from the installation and automatically stop the production in case of exceeding the emission limit values set by the integrated environmental permit.258

258 By installing such equipment, the IPPC installation has become subject to a constant administrative control. The legal basis for imposing constant administrative control on the installation was Article 8 of Ministerial Decree No. 17/2001 (VIII. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October legislation on industrial emissions in seven selected countries 109 2011

In addition to the above listed, the regional inspectorate noticed that hazardous waste was disposed of on the site of the installation. The integrated environmental permit explicitly prohibited the installation from accepting or treating hazardous waste on its territory. Consequently the activity of the installation did not comply with the requirements of the integrated environmental permit.

General comments

In its first instance decision, the regional inspectorate suspended the activity of the installation, on the legal basis of Article 26(1) and (5) of the IPPC Decree.

The main criteria which determined the sanction imposed was the infringement of the requirements of the integrated environmental permit. The fact that the installation did not comply with the obligation imposed by the authority with regard to the establishment of a measuring instrument, was also taken into consideration. In addition, the IPPC installation treated hazardous waste, which was considered as the infringement of the first point of the integrated environmental permit.

The installation appealed against the first instance decision of the regional inspectorate and asked the National Environment, Nature and Water Inspectorate as second instance authority to cease the first instance decision and list its obligations along with their respective deadlines.

The National Environment, Nature and Water Inspectorate annulled the first instance decision of the regional authority. The legal reasoning behind this decision was not communicated by the interviewee.

The decision of the regional inspectorate to suspend the activity of the operator was effective. This can be underpinned by the following factors: (1) the industrial installation cleaned the site of the hazardous waste; (2) it installed an equipment to constantly measure the emission from the installation. With regard to this last point it must be noted that the order of the administrative authority (namely the order to install measuring equipment) took place before the first instance decision, but based on the information received from the interviewee the industrial installation decided to install this equipment only after the decision. This point is important, that it shows the effect of the administrative decision on the industrial installation, namely that it started to comply with its legal obligations and with the main objective of the IPPC Decree (i.e. protecting the environment).

Case Study III: Procedural link between administrative procedures and procedures before courts

Interviewee: Dr Peter Darak and dr Fruzsina Bogos259 Organisation and position: Supreme Court, judge; Court of the Capital, judge Telephone number: 06 30 328 90 30; (06-1) 458 5449 Date of interviews: 10/05/2011; 11/05/2011260

Timeline of the procedure

Date unknown: Appeal against the 3.) on the rules applicable to the administrative control and evaluation of the environmentaadministrativel performanc e of stationary pollution sources. decision 259 The interviewees were not aware of the dates of all procedural steps or could not provide sufficient level of information to judge the nature of the sanction imposed (e.g. proportionate, effective and dissuasive). These aspects are reflected in Case study III. 260 Where in the time-line the dates are indicated as unknown, it means that during the interviews no information was provided on dates. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October legislation on industrial emissions in seven selected countries 110 2011

Date Date unknown: Date unknown: Date unknown: Beginning of unknown: Annulation of the First instance first instance Appeal against Judicial review 2007: the new by the Supreme decision decision Site‐visit decision Court

Date 31/05/2007: Date unknown: Date unknown: 05/2009: unknown: Start of Appeal against New decision Second instance Court the first administrative procedure at first decision instance instance decision decision

Description of the background

The industrial installation started its activities in 2003. At that time, it possessed a valid environmental permit. On 1 January 2006, the legislation transposing the IPPC Directive (96/61/EC) entered into force, in form of Government Decree 314/2005 (XII. 25.) on Environmental Impact Studies and Integrated Environment Use Permits (hereinafter referred to as ‘IPPC Decree’). In accordance with the IPPC Decree, existing installations needed to apply for integrated environmental permit before October 2007. In compliance with this requirement, the industrial installation continued the same activities as before, but with an integrated environmental permit.

The scope of activity of the installation covered the treatment and the recovery of waste. According to the integrated environmental permit, the installation was entitled to treat 1000 tonnes/year of cinder, slag and furnace dust, and 1550 tonnes/year land waste containing land and stone. The activity of the installation covered two counties, with the exception of 7 settlements. As regards to the capacity of the installation and the territorial coverage of its activity, the industrial installation could be considered as large.

In this case the installation was carrying out waste treatment activities in contravention of the conditions set by the environmental permit. Following a site visit, the Regional Environment, Nature and Water Inspectorate (hereinafter referred to as the ‘regional inspectorate’) started the administrative procedure against the installation.

Legislation applicable

The IPPC installation was carrying out activities with an integrated environmental permit. As described above, the industrial installation did not comply with the conditions of the permit, while carrying out waste-treatment activities. According to the practice followed and in compliance with Article 26(4) of the IPPC Decree, the regional inspectorate should have imposed the legal consequences listed in Article 26(4). This Article states that if an operator does not comply with the permit conditions, the regional inspectorate may impose a fine; oblige the operator to comply with the permit conditions; or order the operator to prepare a programme of measures/carry out an environmental review within 6 months from the communication of the decision. The regional inspectorate imposed a waste-treatment fine on the operator,261 on the legal basis of Article 49(1) of Act XLIII of 2000 on Waste Treatment (hereinafter referred to as ‘Waste Treatment Act’). The interviewee assumed that the main reason for imposing the fine on the legal basis of the Waste Treatment Act and not on the IPPC Decree was the novelty of the IPPC Decree.

261 In case of waste-treatment fines, there is not fixed fine (minimum or maximum fine) that the authorities can impose on operators. The amount of fine often varies depending on the size of the installation and the severity of the illegal conduct etc. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October legislation on industrial emissions in seven selected countries 111 2011

Procedure

Within its competence of administrative control, the regional inspectorate carried out a site-visit at the beginning of 2007. Following the site-visit, the regional inspectorate started an administrative procedure against the installation on 31 May 2007. As a result of the first instance procedure, the regional inspectorate imposed a waste-treatment fine of 5,530,887 HUF (Euros 20,786) on the industrial installation.

The first instance decision of the regional inspectorate was appealed before the second instance authority (National Environment, Nature and Water Inspectorate) on the legal basis of Article 98 of Act CXL of 2004 (Administrative Procedures Act), which annulled the first instance decision. The interviewee could not specify the legal reasoning behind the decision of the second instance authority. However, the interviewee assumed that it was probably due to procedural mistakes made during the first instance administrative procedure. This can be underpinned by the fact that shortly after the annulment of the first instance decision a second fine (same amount as the first fine) was imposed on the industrial installation. The regional inspectorate did not carry out additional procedural steps before imposing the fine.

This administrative decision was appealed by the installation, but was kept in force by the national inspectorate in May 2009.

Following the second instance administrative decision, the industrial installation appealed against the first instance decision of the regional inspectorate before the competent court, on the legal basis of Article 109 of Act CXL of 2004. In case of administrative litigations, the competent first instance court is the county court. In the particular case, the competent court was the County Court of Szabolcs-Szatmar-Bereg (hereinafter referred to as country court). The county court upheld the decision of the defendant (regional inspectorate) and rejected the request of the plaintiff (industrial installation). In cases, when there is an appeal procedure against the decision of the administrative authorities, the county court can take the final conclusive decision. Against such decision there is no possibility to appeal.

On the legal basis of Article 340/A of Act III of 1952 on Civil Procedures, the Supreme Court reviewed the decision of the administrative court. As result of the judicial review, the judgement of the administrative court was approved.

General comments

On the basis of the information received the criteria determining the amount of the sanction imposed by the regional inspectorate is not clear. However, it can be assumed that the main reason was the large size of the installation and the severity of the infringement. This argument would be in line with the reasoning of the Supreme Court’s judgement, which stated that there was no possibility to decrease the amount of fine imposed on the industrial installation, as the infringement of the operator was not marginal. The Supreme Court also considered the fact that the activity endangered the environment moreover it referred to the speciality of the case, namely the size of the installation.

It is important to emphasize, that the industrial installation was providing services in two counties. With regard to the size of the installation, the amount of the fine imposed cannot be seen as proportionate. Based on the information received, it is not possible to judge if the sanction was effective and/or dissuasive.

Thus it is not possible to compare if a waste treatment fine or a fine under the regime of the IPPC Decree could have been more dissuasive, proportionate and effective. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October legislation on industrial emissions in seven selected countries 112 2011

Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October legislation on industrial emissions in seven selected countries 113 2011

Bibliography

Legislation

Act XX of 1949 - Constitution of the Republic of Hungary

Act III of 1952- Civil Procedure Code

Act IV of1978- Criminal Code

Act LIII of 1995 - Environmental Protection Act

Act XIX of 1998- Criminal Procedure Code

Act LXIX of 1999 on Petty Offences

Act CIV of 2001 on Criminal Measures Applicable against Legal Persons

Act CXL of 2004- Administrative Procedures Code

Government Decree No. 314/2005 (XII. 25) on Environmental Impact Studies and Integrated Environment Use Permits

Miscellaneous articles and studies

Fazekas Marianna – Ficzere Lajos (edit.), ‘Hungarian Public Administration Law’ (Magyar közigazgatási jog. Általános rész), 2006, Osiris Kiadó, Budapest

The International Comparative Legal Guide to Environment Law 2010, ‘Gabor Hugai and Andras Komaromi: Hungary’, http://www.iclg.co.uk/khadmin/Publications/pdf/3609.pdf

Reports

Commission Staff Working Paper, Report on the implementation of Recommendation 2001/331/EC providing minimum criteria for environmental inspections, SEC (2007) 1493

Ministry of Environment and Water, National Inspectorate for Environment and Nature Protection: ‘Report on point VIII of the recommendation of the European Parliament and of the Council of 4 April 2001 providing for minimum criteria for environmental inspections in the Member States (2001/331/EEC)’, Budapest, 31 October 2003

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Annex V- Spain

Sanctions and procedures applicable to breaches of the legislation on industrial emissions in Spain

Executive Summary

In Spain, criminal environmental offences are broad and cover general crimes (e.g. against natural resources, flora fauna and domestic animals). The Criminal Code does not contain any specific criminal sanctions for the infringement of the transposing provisions of the IPPC Directive, nor regarding to any other specific environmental legislation. These infringements can only be considered criminal offences if they, for instance, seriously endanger the balance of natural systems through emission, discharge of pollutants in the environmental media. In contrast, environmental administrative offences are much more precise. The classification of administrative offences and their related sanctions are set in each specific sectors of the environment legislation.

An administrative procedure and a criminal procedure cannot be initiated in parallel when the same facts and persons are involved. Administrative and criminal sanctions cannot be cumulative. The administrative procedure shall end if it is considered that the infringement is a criminal offence (non bis in idem principle).

The sanctioning power of the administration is strictly regulated in order to protect the right of the defence (three procedural steps: initiation, investigation, resolution). The time to issue an administrative sanction cannot exceed six months from the initiation of the administrative procedure. Apart from issuing sanctions, the administration is empowered to set interim emergency provisional measures in order to stop the continuation of the damage or situation of risk such as the temporary, full or partial closure of the installation, the cessation of installation operations, and the temporary suspension of the permit which is considered to be a very effective measure. These measures can be agreed before the initiation of the sanctioning administrative procedure. The administration can also require the offender, without prejudice to the criminal or administrative sanction, to restore the environment to the previous state, as well as pay the damages; in case the offender does not obey this obligation, the competent authority can agree on the imposition of coercive fines.

There are several possibilities to appeal against the decision of the administration (either before the authority issuing the sanction, the higher authority or before the administrative Courts in last resort). Together with the operator of a classified establishment; other interested parties can appeal against the decision of the administration. This is the case for environmental NGOs, but they have to fulfil very specific requirements that limit their enforcing power.

Criminal procedure is often initiated by Nature Protection Services of the Guardia Civil (the federal police force), together with the municipal police that provide information on potential environmental crimes to the Public Prosecutor (Ministerio Fiscal). However, it is important to note that pursuant to the popular action ‘accion popular’ both natural and legal persons, whether or not offended by a criminal offence can lodge a complaint to the Criminal Court. The standing requirements are much less stringent than the ones under the administrative procedure. Environmental criminal offences can be resolved under a fast-track criminal procedure, although the procedure does not seem to be made for such crimes. There is no equivalent under the administrative procedure.

The Autonomous Communities (CCAA) are competent for the inspection and enforcement of environmental legislation. Even though inspection procedures for classified establishments are not harmonised in all CCAA, several inspection requirements are similar (e.g. necessary assistance and collaboration from the operator during the inspection visits).

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The Table 1 below indicates the provisions of the IPPC Directive covered by administrative sanctions in Spain. Criminal sanctions are not listed in the table as there are no specific sanctions in the Criminal Code, which would punish the infringement of the transposing provisions of the IPPC Directive (see Section 3.1 for more details). Moreover, the category of administrative (quasi) criminal sanctions does not exist in Spain, thus this column is left blank in the table below.

Table 1: Enforceable provisions covered by penalties in Spain

Administrative measures and Administrative (quasi) Article Criminal sanctions sanctions criminal sanctions IPPC Directive Catch-all Article 32(1)(c) of the Law 16/2002 4 Article 32(1)(a) (b) of the Law 16/2002 5 - 6 Article 32(1)(b) of the Law 16/2002 12 (1) Article 32(1) (b) of the Law 16/2002 12 (2) Article 32(1)(a) (b) of the Law 16/2002 14 (a) Article 32(1)(a) (b) of the Law 16/2002 14 (b) Article 32(1)(b) of the Law 16/2002 14 (c) Article 32(1)(b) of the Law 16/2002

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1. Applicable sanctions

The Spanish Constitution (CE) recognises everyone’s right to an adequate environment and duty to preserve it. Article 45(3) specifies that for those that violate this duty, there should be criminal or, where required, administrative sanctions, as well as the obligation to restore the damage caused. It is the only case for which the Constitution foresees the establishment of sanctions in case of breaches of a Constitutional duty.

Administrative sanctions are the most common tools for the enforcement of environmental legislation in Spain. The classification of administrative offences and their related sanctions are set in each specific sectors of the environment legislation (e.g. Law 16/2002 on classified installations,262 Law on water,263 and Law 10/1998 on waste264) that list the different offences classified as petty offences (faltas leves), serious offences (faltas graves) and very serious offences (faltas muy graves) and their corresponding administrative sanctions. The IPPC Directive is transposed by the Law 16/2002 of 1st July 2002 on classified installations, which sets offences provisions and their related administrative sanctions that can lead to a fine (up to Euros 2,000,000), definitive or temporary closure of all or part of the installation, the prohibition to exercise a professional activity for a certain time period, the revocation or suspension of the approval for a certain time period and the publication of the sanctions.

Environmental sectoral laws do not list any specific criminal offences. Criminal environmental offences and their related sanctions are only mentioned in Chapter III Title 16 of the Spanish Criminal Code. These offences are broad and cover general crimes against natural resources and the environment and also crimes related to the protection of the flora, fauna and domestic animals. The Code does not contain any specific criminal sanctions for the infringement of the transposing provisions of the industrial emission Directives, nor regarding any other specific environmental legislation. Environmental criminal offences can lead to financial penalty (maximum Euros 300,000) or imprisonment (maximum four years)

The Table 2 below details the different types of offences and related administrative penalties in Spain. Criminal offences and sanctions are not listed as there is no criminal sanction specific to breaches of industrial emission legislation.

262 Law 16/2002 concerning integrated pollution prevention and control (Ley 16/2002, de 1 de julio, de prevención y control integrados de la contaminación.) 263 Royal Decree 1/2001 approving the consolidation of the Law on water (Real Decreto Legislativo 1/2001, de 20 de julio, por el que se aprueba el texto refundido de la Ley de Aguas) 264 Law 10/1998 on waste (Ley 10/1998, de 21 de abril, de Residuo). Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 118

Table 2: Directive 2008/1/EC (IPPC Directive): types of offences and related administrative penalties in Spain

Administrative sanctions

Offences Penalties

Obligation to apply Very serious offence Sanctions related to very serious offences for a permit for Operate an installation or conduct a substantial modification of the - Fine from Euros 200,001 to 2,000,000; new or existing installation without the integrated environmental authorisation - Definitive closure of all or part of the installation; installations provided that there has been a serious injury or damage to the - Temporary closure of all or part of the installation not less than two years and not environment or such situation seriously endangered the health or more than five years; safety of people. - Prohibition to exercise this activity for a period not less than one year not more Article 31(2)(a) of the Law 16/2002 than two years; - Revocation or suspension of the approval for a period not less than one year no longer than five years; - Publication, through the means considered appropriate, of the sanctions, once they have become definitive. Article 32(1)(a) of the Law 16/2002

Obligation to Serious offence Sanctions related to serious offences supply information Hide or modify maliciously the information required in the - Fine from Euros 20,001 to 200,000; for application for procedures regulated in this Law. - Temporary closure of all or part of the installation for a maximum period of two permits Article 31(3)(c) of the Law 16/2002 years; - Prohibition to exercise this activity for maximum one year; - Revocation or suspension of the approval for a maximum period of one year. Article 32(1)(b) of the Law 16/2002

Petty offence Sanctions related to petty offences

Failure to comply with the requirements established in this Act or Fine up to Euros 20,000. rules adopted pursuant thereto, unless it is classified as very serious Article 32(1)(c) of the Law 16/2002 or serious offence. Article 31(4)(b) of the Law 16/2002

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Administrative sanctions

Offences Penalties

Obligation to notify Very serious offence Sanctions related to very serious offences the competent Operate an installation or conduct a substantial modification of the - Fine from Euros 200,001 to 2,000,000; authority of any installation without the integrated environmental authorisation - Definitive closure of all or part of the installation; changes in the provided that there has been a serious injury or damage to the - Temporary closure of all or part of the installation not less than two years and not operation of an environment or such situation seriously endangered the health or more than five years; installation safety of people. - Prohibition to exercise this activity for a period not less than one year not more Article 31(2)(a) of the Law 16/2002 than two years; - Revocation or suspension of the approval for a period not less than one year no longer than five years; - Publication, through the means considered appropriate, of the sanctions, once they have become definitive. Article 32(1)(a) of the Law 16/2002

Serious offence Sanctions related to serious offences Operate an installation or conduct a substantial modification of the - Fine from Euros 20,001 to 200,000; installation without the integrated environmental authorisation - Temporary closure of all or part of the installation for a maximum period of two without incurring damage or serious deterioration to the years; environment nor seriously endangering the safety or health of - Prohibition to exercise this activity for maximum one year; people. - Revocation or suspension of the approval for a maximum period of one year. Article 31(3)(a) of the Law 16/2002 Article 32(1)(b) of the Law 16/2002 Not communicating the competent authority the non substantial modifications made in the installations. Article 31(3)(a) of the Law 16/2002 Obligation to Very serious offence Sanctions related to very serious offences comply with the Failure to comply with the conditions established in the integrated - Fine from Euros 200,001 to 2,000,000; conditions set in environmental authorisation provided that there has been a serious - Definitive closure of all or part of the installation; the permit or injury or damage to the environment or such situation seriously - Temporary closure of all or part of the installation not less than two years and not mandatory ELV’s endangered the health or safety of people. more than five years; Article 31(2) (b) of the Law 16/2002 - Prohibition to exercise this activity for a period not less than one year not more than two years; - Revocation or suspension of the approval for a period not less than one year no longer than five years; - Publication, through the means considered appropriate, of the sanctions, once they have become definitive. Article 32(1)(a) of the Law 16/2002

Serious offence Sanctions related to serious offences Failure to comply with the conditions established in the integrated - Fine from Euros 20,001 to 200,000; Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 120

Administrative sanctions

Offences Penalties

environmental authorisation without incurring damage or serious - Temporary closure of all or part of the installation for a maximum period of two deterioration to the environment nor seriously endangering the years; safety or health of people. - Prohibition to exercice this activity for maximum period of one year; Article 31(3) (b) of the Law 16/2002 - Revocation or suspension of the approval for a maximum period of one year. Article 32(1)(b) of the Law 16/2002

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Article 149(1)(23) of the Constitution of 1978 provides that the State has exclusive competence on matters related to the protection of the environment without prejudice to powers of the Autonomous Communities (Comunidades Autonomas) (CCAA) to take additional protective measures. In other words, the CCAA can provide more stringent and detailed environmental measures than the environmental legislation issued by the State which is regarded as a minimum legislation. With regard to environment, the CCAA pursuant to Article 148(1)(9) of the Constitution of 1978 are competent in the management of environmental matters. This provision implies that the CCAA are competent for the inspection and enforcement of environmental legislation and that they have sanctioning power.265 For instance the Law 16/2002 on classified installations explicitly provides that the Autonomous Authorities are competent to take measures on control and inspection for the enforcement of this Law (the State being competent for the control of discharges in basin shared by different CCAA). It also states that the offences encompassed in its Article 31 shall be without prejudice to the ones that can be established by the Autonomous authorities.

Several CCAA (e.g. Cataluña, Andalucía, Cantabria, Pais Vasco) but not all of them (e.g. Asturias, Madrid Community) have established their own administrative sanctioning regime for the infringement of environmental legislation. Related to classified installations the majority of the CCAA refer to the same offences that the ones listed in Law 16/2002 on classified installations (e.g. the operation of an activity without the integrated environmental permit, or failure to comply with the conditions set in the integrated environmental permits). However the sanctions sometimes differ from the ones set in Law 16/2002. For instance the failure to comply with the conditions established in the integrated environmental authorisation provided that there has been a serious injury or damage to the environment or such situation seriously endangered the health or safety of people can lead to a fine up to Euros 3 million in Cantabria,266 Euros 2,4 million in Andalucía,267 Euros 2,5 million in Aragon,268 while under Law 16/2002 the same offence can lead to a fine of a maximum of Euros 2 million.

It is important to note that even though CCAA are competent to establish their own administrative sanctioning regime for the infringement of environmental legislation, the sanctions they apply shall never be less stringent than the ones set at the State level. Furthermore the Constitutional Tribunal has stressed that administrative sanctions issued by CCAA should not introduce unreasonable and disproportionate differences with the legal regimes applied in other parts of the territory.269

2. Administrative procedure

2.1 General elements on the legal tradition and potential evolution

Article 25(1) of the Spanish Constitution (CE) provides that no one may be convicted or sentenced for actions or omissions which, when committed, did not constitute a criminal offence, misdemeanour or administrative offence under the law then in force. Article 25(3) of the CE specifies that the Civil Administration may not impose penalties which directly or indirectly imply deprivation of freedom. Finally as mentioned above Article 45(3), related to the protection of the environment, specifies that criminal or, where applicable, administrative sanctions shall be imposed, under the terms established by the law.

265 See decision of the Constitutional Court (Tribunal Constitucional) STC 102/1995, FJ 2 y18) 266 Law of Cantabria 17/2002 on integrated environmental controls (Ley de Cantabria 17/2006, de 11 de diciembre, de Control Ambiental Integrado) 267 Law 7/2007 on integrated management of the environment (Ley 7/2007, de 9 de julio, de Gestion Integrada de la Calidad Ambiental) 268 Law 7/2006 on the environment protection in Aragon (Ley 7/2006 de 22 de junio de proteccion ambiental de Aragon) 269See decision of the Constitutional Court (Tribunal Constitucional) 87/1985 Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 122

These Articles of the CE set the basis of the sanctioning power of the administration in Spain. The Jurisprudence of the Constitutional Tribunal has developed general principles on this sanctioning power which can be summarised as follows:270 - The sanctioning power of the administration shall be subject to the principle of legality and shall be mentioned in laws; - The administration cannot issue penalties that deprive personal freedom except for the military disciplinary regime; - The respect for the rights of the defense enshrined in Article 24 of the CE shall apply to the sanctioning administrative procedures; - The sanctioning power of the administration shall be subordinated to the authority of the Judiciary, (e.g. the administrative jurisdiction (Jurisdiccion contencioso-administrativa) is empowered to control the legality of the administrative sanctions);271

The Supreme Tribunal (Tribunal Supremo) stressed that administrative and criminal sanctions could be considered equivalent since they were both part of the same ius puniendi of the State. It however outlined the specific characteristics of administrative sanctions as follows:

- Subjective element: the administrative sanction is imposed by the administration; the criminal sanction is imposed by the criminal judge. - Formal element: the administrative sanction is imposed after an administrative procedure while the criminal penalty is imposed after a criminal procedure. The difference is not only in the process as such, but also in the powers given to the instructed authority and the regime applicable for the suspension of the immediate execution nature of the sanction, which is much more favourable towards the individual in criminal law than in administrative law. - Objective element: the content of administrative sanctions does not basically differ from the content of criminal ones, with the exception of imprisonment which can never be an administrative sanction. However there is a difference in the effects, as administrative sanctions do not have the social recrimination component present in criminal sanctions. This is emphasised by the fact that criminal sanctions will be entered on the personal record of the individual. - Liability: in criminal law only physical persons can be held individually liable, whereas administrative law admits the liability of legal persons, and joint and several liabilities of physical persons.

In Spain, the administrative authority having sanctioning power, apart from sanctions, can also issue coercive measures and interim measures.

Interim measures or provisional orders can be imposed once the sanctioning procedure has been initiated or under certain circumstances even before. The objectives of the interim measures are, on the one hand, to ensure the efficiency of the possible final decision and, on the other, to protect the public interest, including stopping the negative effects derived from the infringement. Pursuant to Article 35 of the Law 16/2002 on classified installations the competent authority, can order to stop the continuation of the damage or situation of risk, the temporary, full or partial closure of the installation, the cessation of installation operations, the temporary suspension of the permit.

Coercive measures are considered means of forced execution. These measures imply the use of force and are based on the previous infringement of the sanction or obligation of restoration imposed by the

270 Sentencia del Tribunal Supremo 77/1983 271Article 24 of the CE reads as follows: All persons have the right to obtain effective protection from the judges and the courts in the exercise of their rights and legitimate interests, and in no case may there be a lack of defence. Likewise, all have the right to the ordinary judge predetermined by law; to defence and assistance by a lawyer; to be informed of the charges brought against them; to a public trial without undue delays and with full guarantees; to the use of evidence appropriate to their defence; not to make self-incriminating statements; not to plead themselves guilty; and to be presumed innocent. The law shall specify the cases in which, for reasons of family relationship or professional secrecy, it shall not be compulsory to make statements regarding allegedly criminal offences. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 123

administration. Their aim is to override non-compliance and force the offender to comply with the due behaviour. For instance Article 36 of the Law 16/2002 on classified installations provides that when the offender does not fulfill the obligation of replacement or restoration […], the competent authority may decide to impose coercive fines which shall not exceed one third of the fine prescribed for the infringement.

Finally the competent authority can or must impose accessory measures (e.g. revocation of a permit, impossibility for the company to obtain public subsidies). It is not clear whether these accessory measures are considered sanctions or not.272 They can only be imposed as complements to a main sanction. Consequently, they are conditioned by the imposition of a main sanction.

The sanctioning power of the administration is very coercive in Spain. Administrative sanctions are in many aspects similar to criminal sanctions. They are very strict (e.g. to operate a classified installation can lead to a fine up to Euros 2,000,000) and can be considered as coercive measures. As mentioned above together with criminal sanctions they are part of the iuris puniendi of the State. This sanctioning power is however strictly controlled and regulated through the Law 30/1992 and its implementing Order that sets several procedural steps in respect of the right of the defence. There was no major reform related to the administrative sanctioning procedure since Law 30/1992 has been in force.

2.2 Inspections

2.2.1 General information

As mentioned above, the CCAA pursuant to Article 148(1)(9) of the CE are in charge of the management of environmental matters. This provision implies that the CCAA are competent for the inspection and enforcement of environmental legislation. The CCAA are the most important actors in the domain of environmental inspection in Spain. At national level the Ministry of Internal Affairs (Ministerio de Interior) is in charge of the inspection of installations falling under the SEVESO II Directive while SEPRONA (Servicio de Proteccion de la Naturaleza- Service for the protection of nature), the section of the Civil Guard (Guardia Civil-sort of federal quasi-military police) specialised in environmental issues provides technical support to the inspection bodies of the CCAA.

The inspections of installations falling under the scope of the IPPC Directive are thus carried out at the CCAA level. Information on the number of inspectors involved in the inspection of classified installation, the ratio number of inspectors/number of installations, number of visits per year, are not available for all Spain. This information can however be found for each CCAA. The CCAA elaborate inspection plans and programmes where this information can be available. For instance pursuant to its 2011 inspection programme, Andalucia is planning to carry out 178 inspections on IPPC installations this year.

2.2.2 Key elements of the inspection procedure

Legal requirements for the inspectors and operators during the inspections differ from one CCAA to another since they are competent to set their own inspection procedures.

Here are examples of different environmental inspection procedures in CCAA that apply for the enforcement of the transposing provisions of the IPPC Directive.

i) Andalucía

272If the legislator has not expressly classified these measures as accessory measures or sanctions it will depend on the Constitutional Tribunal and Supreme Tribunal to decide whether these measures are a sanction or not. It is noted that they are normally considered as sanctions as they imply the loss of an advantage. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 124

The environmental inspection procedure in Andalucía is regulated under Article 130 of the Law 7/2007.273

Competencies and obligations of inspectors Inspectors shall provide the description of the relevant facts and especially those that could constitute an administrative infringement. They shall take also into account the allegations made by the person responsible for the activity or facility. Inspectors are allowed to request any information necessary to perform their inspection.

Obligations of the operator Operators shall provide necessary assistance and collaboration and enable entry into the facilities to those engaged in the activities of surveillance, inspection and control.

The inspectors’ enforcing powers The Law 7/2007 does not provide administrative measures that can be taken by inspectors in case of infringement or endangerment of public health or of the environment (e.g. closure or sealing of the installation).

ii) Pais Vasco

The environmental inspection procedure in Pais Vasco is regulated under Articles 106 and 107 of the Law 3/1998.274

Competencies and obligations of inspectors Inspectors shall be authorised to access the facilities covered by this Law, if necessary without notice, after identification. Inspectors shall provide the description of the relevant facts that can potentially lead to an infringement. They shall take also into account the allegations made by the persons in charge of the activity or facility inspected.

Obligations of the operator This Law does not mention any specific obligations to be fulfilled by operators.

The inspectors’ enforcing powers This Law does not provide any specific enforcing power to inspectors. It however states that under exceptional circumstances and prior to the initiation of the sanctioning administrative procedure, the competent authority may adopt preventive measures such as suspension of the operation of the activity, the sealing of apparatus, equipments or vehicles, and any other relevant measures to prevent the spreading of environmental damage.

iii) Cataluña

The environmental inspection procedure in Cataluña is regulated under Articles 74, 75, 76 and 77 of the Law 20/2009.275 This procedure is very detailed.

Competencies and obligations of inspectors Inspectors shall verify whether the environment conditions set in the environmental permits are fulfilled. Inspections can take place at any time, regardless of any regular inspection planning. Inspectors are empowered to access installations without prior notice to the operators. They are empowered to investigate, and do any examinations they consider necessary to verify whether the laws

273Ibid. Page 2 274 Law 3/1998 on the protection of the environment in Pais Vasco (Ley 3/1998, de 27 de febrero, general de protección del medio ambiente del País Vasco) 275 Law 20/2009 on the prevention and environmental control of activities (Ley 20/2009, de 4 de diciembre, de prevención y control ambiental de las actividades) Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 125

and regulations are correctly observed. They can also take samples of the pollutants produced by the activity. They can require information from the owner and/or the staff of the activity as deemed necessary to clarify facts that are subject to inspection. Reports of the inspection shall be issued in presence, where possible, of the individual owner or the authorised representative of the activity concerned.

Obligations of the operator The owners of the activities shall provide necessary assistance to duly authorised staff of the administration during the inspection, especially to collect samples and necessary information.

Inspectors’ enforcing powers This Law does not provide any specific enforcing power to inspectors. It however states that inspectors are authorised to be present in case of the sealing, partial or total closure of activities.

In Spain, inspectors are not specifically empowered to issue administrative sanctions.

The sanctioning power of the administration is regulated by Law 30/1992 and it’s implementing Order.276 This Law applies to the Administration of the State (La Administración General del Estado), the administrative authorities of the CCAA (las administraciones de la communidades autonomas) and to the local administration bodies (Las Entidades que integran la Administración Local). In other words the same general sanctioning power rules apply to the different types of administrative authorities across the country (but the CCAA’s laws can be always more restrictive). This law is, however, applied as a subsidiary instrument where a given administrative law does not provide a specific regime as regards the imposition of sanctions or interim measures. Title IV of the Law 16/2002 which transposes the IPPC Directive sets specific sanctioning regimes for the infringement of the provisions of the law, including temporary, total or partial closure of the installation.

The infringement procedure shall be transparent and interested parties have the right to know the current state of the procedure and to access and obtain copies of the documents contained therein. This procedure contains three steps, the initiation (la iniciacion), the investigation (instruccion) and finally the resolution (resolucion).

It shall be initiated by the competent administrative authority either on it own initiative, based on a request from an administrative body higher in the hierarchy, a reasoned request from an other administrative body not competent, or a complaint from a member of the public. During the investigation the parties concerned have 15 days to provide any arguments, documents or information deemed relevant and, where appropriate, propose concrete proof justifying their allegations, then the competent authority shall formulate a draft resolution determining the infringements and the sanctions. This draft resolution shall be notified to the persons concerned that have 15 days to formulate arguments and present orally the documents they consider relevant to the competent authority. The resolution, which contains the decision whether or not to impose a sanction, shall be adopted within 10 days of the reception of the draft decision, documents allegations, information provided during the procedure. The time limit to issue a resolution cannot exceed six months from the initiation of the procedure.

2.3 Appeal against the administrative decision

2.3.1 By the operator

276 Law 30/1992 on the legal regime of public administrations and the administrative procedure (Ley 30/1992, de 26 de noviembre, de Régimen Jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común y el Real Decreto 1398/1993) Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 126

Recipients of the administrative sanction can appeal this decision before the relevant hierarchical administrative authorities. Such appeal (recurso administrativo de alzada) can only be used when administrative sanctions do not put an end to the administrative procedure. This appeal must be resolved and the decision notified within three months. When the decision notified on the appeal is not satisfactory or there is no decision, an appeal may be lodged before an administrative court within two months or within 6 months in case of silence from the administration.277

In case the administrative sanctions put an end to the administrative procedure then the recipients of the administrative sanctions can appeal this decision directly before the administrative courts (recurso contencioso-administrativo) within two months or six months in case the administration did not provide decision. Alternatively the recipients of administrative sanctions can appeal before the competent authority issuing the sanction (recurso potestativo de reposicion). This appeal must be notified within one month only then the recipients of the administrative sanction are allowed to lodge an appeal before the administrative courts within two or six months, depending on whether there was an express or a tacit decision on the appeal.278

CCAA have their own Courts (e.g. Administrative Courts) and a Supreme Tribunal for cases under their competences, but these are enshrined in the national system and are hierarchically inferior to the State Supreme Tribunal. If the administrative decision affects more than one CCAA or falls under the competence of the State then an appeal shall be lodged to the Central Administrative Court (Juzgado Central de lo Contencioso Administrativo).

The procedure before the administrative Court is quite long. It often happens that the final decision is adopted two or three years after the action was brought before the Court.279

2.3.2 By a person other than the operator

Pursuant to Article 31 of the Law 30/1992 interested parties that can initiate an administrative procedure are:

- Those who promote the administrative action as holders of legitimate individual or collective interest and rights, - Those who have not initiated a procedure but whose rights may be affected by the decision taken in the procedure, - Those who have not initiated a procedure but whose legitimate individual or collective interests may be affected by the decision and become a party to the procedure before the final decision on the procedure is made;

Associations representing economic and social interests would be deemed to have a collective interest as laid down in the legislation.

Pursuant to Article 19 of the Law 29/1998 regulating the administrative court procedure, the following interested parties can challenge an administrative decision before an administrative court:

- Legal or natural persons having legitimate individual or collective interests and rights; - Corporations, associations, unions which are affected or are legally entitled to protect collective rights and interest;

277 See Article 46 of the Law 30/1992 278 Ibid. 279 E. Pozo Vera, Study on measures other than criminal ones in cases where environmental Community law has not been respected in the EU Member States, National, Report Spain, Milieu Ltd, Brussels (2004)

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- The State administration when holding rights or interests to challenge acts and provisions of the Administration of the Autonomous Communities, and the administration of the CCAA when holding rights or interests to challenge acts and provisions of the State administration.

Pursuant to Article 22 of the Law 27/2006 transposing the Aarhus convention,280 the acts and where appropriate, omissions attributable to public authorities which contravene requirements related to the environment (e.g. the protection of water and soil, air pollution, chemical substances, waste management) may be appealed by environmental NGOs, that shall meet specific criteria in accordance with the administrative appeal procedure set in Law 30/1992 and the administrative Court procedure set in Law 29/1998.

These criteria are as follows:

 The aims in its by-laws expressly include the protection of the environment in general or of any particular element thereof;  It was legally established at least two years before the action is brought and has been actively pursuing the aims provided in its by-laws;  It performs its activity pursuant to its by-laws in a territory that is affected by the administrative act, or if applicable, omission.

It is important to note that administrative acts and omissions from natural or legal persons assuming public responsibilities, exercising public functions or providing public services related to the environment under the responsibility of the State or CCAA Government or State and CCAA administrations are exempted from Article 22 of the Law 27/2006 and environmental NGOs will not be directly entitled to challenge these acts and omissions.

As a conclusion, not only the operators of an activity falling under the scope of the IPPC Directive that received an administrative sanction can lodge an appeal against this decision. For example environmental NGOs fulfilling strict criteria are entitled to challenge it. The State administration, having legitimate interest, can also challenge before the Court the administrative sanctions set by a CCAA administration. Conversely the CCAA administration, having legitimate interest, can challenge to the Court administrative sanctions set by a State administration.

3. Judicial procedure

3.1 General information

As already mentioned above criminal environmental offences and their related sanctions are only mentioned in Chapter III Title 16 of the Spanish Criminal Code. These offences are broad and cover general crimes against natural resources and the environment and also crimes related to the protection of the flora, fauna and domestic animals. This Code does not contain any specific criminal sanctions for the infringement of the transposing provisions of the IPPC Directive.

Article 325 of the Criminal Code, however provides that, the infringement of laws and other general provisions, which aims are to protect the environment, leading to emissions, discharges, radiations, extractions or excavations, silting, noise, vibration, injection, deposit, in the atmosphere, soil, subsoil or inland water, groundwater, sea, including high sea, catchments that could seriously undermine the balance of natural systems shall be considered as a criminal offence.

280 Law 27/2006 of 18 July regulating the rights to access information, the participation of the public and access to justice in environmental matters (Ley 27/2006, de 18 de julio, por la que se regulan los derechos de acceso a la información, de participación pública y de acceso a la justicia en materia de medio ambiente (incorpora las Directivas 2003/4/CE y 2003/35/CE). Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 128

In other words infringements of the transposing provisions of the IPPC Directive (e.g. the emission limit value standards), can lead to a criminal sanction, if they can seriously endanger the balance of natural systems.281

Article 326 amongst other provisions considers as aggravating circumstances of the criminal offences mentioned above the fact that activities were operating without obtaining the required authorisation or administrative approval or disobeyed the orders of the administrative authority for correction or suspension of the activities or provided wrong environmental information or impeded the administration inspection activities.

These aggravating circumstances are similar to certain administrative offences related to the infringement of the transposing provisions of the IPPC Directive.

Criminal Law in Spain sets two types of criminal offences either misdemeanours (faltas) or crimes (crímenes) depending on the seriousness of the criminal offences.

There is no specific criminal procedure for environmental criminal offences. The relevant criminal procedure and the competent criminal Courts are determined by the types of criminal offences. The Magistrate Court (Juzgado de Instrucción) of the district is competent for misdemeanours. When dealing with crimes different judicial bodies are competent. The Magistrate Court of the District where the crime took place carries out the investigation. In very serious cases the Central Court of Instruction (Juzgado de Instrucción Central) does the investigation. Depending on the seriousness of the crime are competent to issue a judgement, the Juror Court (tribunal del Jurado), the Court of Criminal (Juzgado Penal) or the Provincial Penal Court (Sala de lo Penal de Audiencia Provincial),

Most of the time the Nature Protection Service of the Guardia Civil, together with the municipal police and forest guards are the ones that provide information on potential environmental crimes to the Public Prosecutor (Ministerio Fiscal) that reports the criminal offence to the Magistrate Court, the judicial body competent to instruct the investigation. In case the Magistrate Court considers that the facts constitute a crime, the Public Prosecutor can formulate the accusation to initiate the trial.

It is however important to note that pursuant to Articles 101 and 270 of the Law on criminal procedure, any person, whether or not offended by a criminal offence can lodge a complaint to the Judge of the Magistrate Court, the so called ‘popular action’(acción popular). 282 The Jurisprudence of the Supreme Tribunal (Tribunal Supremo) has interpreted these provisions in a way that not only natural persons can lodge this popular action but also legal persons, public institutions and organisms.283

In other words environmental NGOs are entitled to lodge a complaint to the judge of the Magistrate Court when they consider that an environmental criminal offence was committed.

The criminal procedure for criminal offences related to flora and fauna is shorter than the procedure for criminal offences endangering the balance of natural systems. Crimes against flora and fauna are easier to prove than crimes against natural systems, which require much more scientific analyses (e.g. on impact of pollutants and chemicals) and different expert opinions. Such elements are often used as a strategy by the defence to extend the length of the procedure.

281 The jurisprudence of the Supreme Tribunal considers that this type of crime is based on an abstract endangerment (See Sentencias Tribunal Supremo 14 February 2001 and 25 October 2002) 282 Law of criminal procedure (Ley de Enjuiciamento Penal) 283 Sentencia Tribunal Supremo 79/99 Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 129

Finally, Articles 795 to 803 of the Law on criminal procedure set a fast-track criminal investigation and prosecution for offences punishable by imprisonment not exceeding five years, or with any other sanction, not exceeding ten years, whatever its pecuniary amount, provided, that criminal proceedings are initiated under a police report and the judicial police has arrested a person and made him/her available to the Police Court (Juzgado de Guardia).

3.2 Possibilities of appeal

Appeals (recurso de apelación) against the judgement of the Court of Criminal jurisdiction can be lodged either by the public prosecutor, the offender, and other parties (e.g. environmental NGOs) before the Penal Chamber of the Provincial Court (Sala de lo penal de Audencia Provincial) within a timeframe of 10 days from the issue of the judgement.284

The decision of the Penal Chamber of the Provincial Court can then be appealed to the Second Chamber of the Supreme Tribunal (recurso de casacion) by the public prosecutor, parties involved in the case and their heirs within a time-frame of five days from the issue of the judgement. Parties involved shall be present at the Second Chamber of the Supreme Tribunal respectively 15 days after the issue of the judgement of Penal Chamber of the Provincial Courts (20 days for Isla Baleares, 30 days Canarias y Ceuta y Melilla).285

No specific time-frames are set for the issue of the judgements.

4. Synergies between administrative and criminal procedures

Pursuant to the principle of ne bis in idem (not twice for the same), there cannot be accumulation of administrative and criminal sanctions for the same facts. If an administrative procedure has been initiated with the objective of imposing a sanction, and the competent authority considers that the facts could constitute a criminal offence, it should stop the procedure and transfer the case to the criminal jurisdiction.286 Only if the criminal jurisdiction considers that the situation cannot be qualified as a crime, the administrative body is empowered to continue the administrative procedure. The imposition of a criminal penalty excludes the possibility of imposition of an administrative sanction if it involves the same facts and same persons.

5. Conclusions

5.1 Preliminary conclusions

Proportionate

284 See Book V of the Law on criminal procedure (Libro V de la Ley de Enjuiciamento Penal) 285 Ibid. 286 Article 7 of the Law 30/1992 on administrative procedure Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 130

The Law 16/2002 transposing the IPPC Directive provides different administrative offences classified as petty offences (faltas leves), serious offences (faltas graves) and very serious offences (faltas muy graves) and their corresponding administrative sanctions. Such gradation of offences leaves room to punish an infringement on the basis of the individual severity of the violation and can be assessed as fulfilling the criterion of proportionality.

Effective

The administration is empowered to set interim emergency measures in order to impede the continuation of the damage or situation of risk such as the temporary, full or partial closure of the installation, the cessation of installation operations, and the temporary suspension of the permit.287 These measures are considered to be quite effective.288The administrative procedure to issue a sanction contains several procedural steps in order to respect the right of the defence; it shall not exceed 6 months. Sanctions can be appealed before the administration itself and then to the Administrative Courts. The overall procedure is quite long and thus may lack of effectiveness (e.g. administrative court proceedings can last two or three years after the action was lodged). Environmental NGOs can challenge administrative sanctions (or their omissions) but they have to fulfil very strict criteria which limit their role in the procedure.

The Criminal Court procedure can be quite long and thus not very effective. Environmental criminal offences can however be resolved under a fast-track criminal procedure, although this procedure does not seem to be made for such crimes. One of the positive aspects about the Spanish criminal procedure improving its effectiveness is that any person, whether or not offended by a criminal offence can lodge a complaint before Criminal Courts under the ‘popular action’.

Dissuasive The administrative sanctions are quite stringent, they can lead to a fine (up to Euros 2,000,000)289, definitive or temporary closure of all or part of the installation, the prohibition to exercise a professional activity for a certain time period, the revocation or suspension of the approval for a certain time period and the publication of the sanctions. They can thus be considered dissuasive. It is significant to note that the dissuasive aspect of administrative sanctions was particularly taken into account by the Spanish legislator under Article 32(2) of the Law 2002/2 that provides that when the amount of the fine is lower compared to the benefit of the infringement, it shall be increased at least up to twice the amount the offender has benefited.

Criminal fines are less dissuasive than the administrative ones (maximum Euros 300,000). Environmental criminal offence can however lead to imprisonment penalties. The privation of freedom (maximum four years) has a significant deterrent effect compared to administrative sanctions.

287 Article 35 of the Law 16/2002 on classified installations 288 E. Pozo Vera, Study on measures other than criminal ones in cases where environmental Community law has not been respected in the EU Member States, National, Report Spain, Milieu Ltd, Brussels (2004) 289 Even more in certain CCAA (e.g. 3 million euros in Cantabria289, 2.4 million euros in Andalucía289, 2.5 million euros in Aragon289, while under Law 16/2002 the same offence can lead to a fine of 2 million euros. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 131

Case studies

Case Study 1

Introduction

For this case study information was provided by Javier Vera Janín, Director of the Section on inspection and control of the Environmental Department of the Government of the Autonomous Community of Navarra. This case study covers an IPPC installation, but the sanctioning procedure mentioned here deals with the infringement of the transposing provision of Article 9(1) of Directive 1999/13/EC290 (Volatile Organic Compounds Directive) requiring operators to demonstrate to the Competent Authorities that they comply with emission limit values in waste gases, fugitive emission values and total emission limit values.291

Article Key enforceable provisions of the Volatile Organic Compounds Directive Article 5(2)(a) Installations shall comply with the emission limit values and other requirements laid down in Annex IIA; Article Installations shall comply with the reduction scheme requirements specified in 5(2)(b) Annex IIB. Article 5(4) For installations not using the reduction scheme, any abatement equipment installed after 1999 shall meet all the requirements of Annex IIA. Article 5(5) Options for installations where two or more activities are carried out, each of which exceeds Annex IIA thresholds, (e.g. each activity must meet specified requirements individually). Article 5(6) Substances or mixtures classified as Carcinogenic, Mutagenic or toxic to Reproduction (CMR) because of VOCs content shall be replaced, as far as possible by less harmful substances or mixtures within the shortest possible time. Article 5(8) Certain discharges of halogenated VOCs assigned risk phrases R40 or R68 where the mass flow is > g/h shall comply with emission limit value of 20 mg/Nm3. Article 5(9) Discharges of VOCs classified as CMR or assigned risk phrases R40 or R68 after Directive enters into force have to comply with the para. 7 & 8 ELVs within shortest possible time. Article 5(10) All appropriate precautions to be taken to minimise emissions during start-up & shut down. Article 9(1) Operators have to demonstrate compliance to the satisfaction of the Competent Authorities with: — ELVs in waste gases, fugitive emission values & total ELVs, — the requirements of the reduction scheme under Annex IIB. Solvent management plans according to Annex III can demonstrate compliance. Gas volumes added to waste gas for cooling or dilution purposes shall not be considered when determining mass concentration of the pollutant in the waste gas. Article 9(2) Compliance shall be re-verified following a substantial change. Article 10 (a) The operator shall inform the competent authority and take measures to ensure that compliance is restored within the shortest possible time

The sanctioning procedure started in October 2008 and ended by an administrative sanction in May 2009. The operator did not appeal the sanction to the administrative Court. Overall the time period

290 Directive 1999/13/EC on the limitation of emissions of volatile organic compounds due to the use of organic solvent in certain activities and installations 291 No case studies were provided on the sanctioning procedure for the infringement of a transposing provision of the IPPC Directive by the environmental departments of the Autonomous Communities, in charge of enforcement of environmental law in Spain. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 132

from the establishment of the infringement and the issuance of the sanction was quite short, nearly 8 months. The operator did not lodge an appeal to the administrative Court.

Timeline of the procedure

17/10/2008 13/02/2009: Start of the sanctioning administrative Submission of the procedure Solvent Management Plan

24/10/2008: Request to the legal 05/2009 Issue of the unit to initiate a sanctioning administrative sanction procedure

Description of the background

The facility is an industrial plant that produces aluminium car rims. The installation is located in Navarra. It was granted an integrated permit in 2007.292

The operator sent to the competent authority its 2007 Solvent Management Plan. The Competent Authority established infringements to the provisions of Directive 1999/13/EC on Solvents293 and the corresponding transposing legislation in Spain.

Legislation applicable

The legislation applicable here is the Directive on Volatile Organic Compounds, and its transposing legislation in Spain, the Royal Decree 117/2003.294 These rules establish that the operator shall demonstrate to the competent authority that it complies with emission limit values in waste gases, fugitive emission values and total emission limit values of solvents.

Infringements to the Royal Decree 117/2003 can be sanctioned according to the Law 16/2002 concerning integrated pollution prevention and control.295 However, as already mentioned in the country detailed study, the Autonomous Communities are competent for the inspection and enforcement of environmental legislation and are entitled to set their own regime of sanctions related to the environment. This is the case in Navarra where infringements to the Royal Decree 117/2003 are sanctioned under the Law of Navarra 4/2005 of March 2005.296

This law sets a range of pecuniary sanctions:

292This is equivalent to an IPPC authorisation. 293Council Directive 1999/13/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, OJ L 85, 29.3.1999, p. 1–22. 294Royal Decree 117/2003 of 31 January, on the limitation of emissions of volatile organic compounds due to the use of organic solvents in certain activities and installations (Real Decreto 117/2003, de 31 de enero, sobre limitación de emisiones de compuestos orgánicos volátiles debidas al uso de disolventes en determinadas actividades). 295Law 16/2002 concerning integrated pollution prevention and control (Ley 16/2002, de 1 de julio, de prevención y control integrados de la contaminación.) Royal Decree 117/2003 does not contain any sanctions but for sanctions refers to the Law 16/2002. 296 Regional Law 4/2005 22 March on intervention for the protection of the environment (Ley Foral 4/2005, de 22 de marzo, de intervención para la protección ambiental). Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 133

Euros 20,000 for minor infringements; Euros 200,000 for serious infringements; Euros 2,000,000 for very serious infringements;

In this particular case the legal department of the competent authority considered the infringement as minor.

The procedure

The operator submitted to the competent authority its 2007 solvent management plan on October 17, 2008.

The solvent plan showed that fugitive emissions exceeded the threshold limit value of the solvents directive. Fugitive emissions were 69% of solvent input whereas the limit set by the Directive is 20%.

The unit in charge of the Solvent Directive made a request to the legal unit to initiate a sanctioning procedure on October 24, 2008. Following the procedure set in the Law of Navarra 4/2005, the legal unit informed the municipality about the infringement.

The municipality decided not to initiate the sanctioning administrative procedure due to lack of technical and legal resources.

Finally, the regional Government of Navarra initiated the sanctioning administrative procedure on February 13, 2009. The regional Government proposed a sanction in the procedure of Euros 10,000.

The operator pleaded not guilty on March 29, 2009 because by the end of 2008 he had built a new painting installation with a thermal unit to oxidize the volatile organic compounds.

The legal unit considered the allegations partially and finally imposed a sanction of Euros 5,000. The operator did not lodge an appeal against this administrative decision to the Court. The procedure ended on May 13, 2009.

General comment

The legal unit considered the infringement as minor because the amount of solvents used by the operator in 2007 was under the threshold of the IPPC Directive (200 Tm/year).297

The punishment was established taking into account that the range for minor offenses is up to Euros 20.000. The Government of Navarra decided that the sanction should be in the middle of the range. Finally the allegations made by the operator were partially considered during the sanctioning administrative procedure.

The sanction has deterred the perpetrator from repeating infringements and since 2009 the operator complies with all permit conditions.

297 Annex I point 6(7) of the IPPC Directive on categories of activities covered by this Directive: Installations for the surface treatment of substances, objects or products using organic solvents, in particular for dressing, printing, coating, degreasing, waterproofing, sizing, painting, cleaning or impregnating, with a consumption capacity of more than 150 kg per hour or more than 200 tonnes per year. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 134

Bibliography

J. Gimenez Garcia, reflexiones sobre la accion popular en el proceso penal desde la jurisprudencia de la sala segunda del Tribunal Supremo, Eguzkilore, numero 23 San Sebastian (2009)

F. Sanchis-Moreno, Legal analysis of the Aarhus Convention in Spain, Santander (2008)

E. Pozo Vera, Study on measures other than criminal ones in cases where environmental Community law has not been respected in the EU Member States, National, Report Spain, Milieu Ltd, Brussels (2004)

A.M. Moreno, National Report Spain, part of national reports on citizens access to court and important national developments in environmental laws, Avosetta Group, meeting 2002

V.Sierra, C.C Castella Hammerstein, The International Comparative Legal Guide to: Environment Law 2010, a practical cross-border insight into environment law, Chapter on Spain, Global Legal Group (2010)

Criminal Penalties in EU Member States’ environmental law” Final Report, Huglo Lepage (2003)

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Annex VI- The Netherlands

Sanctions and procedures applicable to breaches of the legislation on industrial emissions in the Netherlands

Executive summary

In the Dutch legal system, both criminal and administrative penalties can be imposed for a breach of the legislation on industrial installations. In principle, these two enforcement systems have different aims - ensuring compliance (i.e. administrative penalties) and a punishment (i.e. criminal penalties) function respectively. Administrative fines are the exception, as they have a punitive character.

Since 1st October 2010, administrative measures related to breaches of rules implementing the IPPC directive in the Netherlands have been primarily taken on the basis of the Act on General Provisions Environmental Law (Chapter 5 on enforcement). Before this date, such administrative measures were regulated by the Environmental Management Act (Chapter 18 on enforcement).

The General Administrative Law Act was and is still applicable next to the abovementioned acts. This framework act contains general rules of Dutch administrative law, for instance definitions. It provides a comprehensive toolkit of enforcement measures to the competent authorities. The Act lists four types of administrative sanctions for offences that can apply to both natural and legal persons:

 administrative order subject to a financial payment (dwangsom); a restorative (reparation) measure which aims at full or partial reversing the effects of the violation; it is a non-punitive coercive measure that in practice is used far more than the other measures  administrative enforcement / coercive order (bestuursdwang); a non-punitive coercive measure  administrative fines; a punitive sanction for minor offences  revocation of the permit; this can be a punitive sanction as well as non-punitive measure

As for enforcement through criminal law, the public prosecutor’s office can instigate criminal proceedings against cases in which environmental law obligations are violated. Violations of the rules as laid down in the main pieces of environmental law (notably working without a permit or in violation of the conditions of a permit under the Act on General Provisions Environmental Law and the Environmental Management Act) are punishable as economic offences in the Economic Offences Act. It is within the Dutch public prosecutor’s discretion to decide whether to prosecute or not (whether it is ‘opportune’ to do so). The policy line agreed upon in this respect is to prosecute only violations of core provisions of environmental legislation (as set out in the Instruction on enforcement of environmental law). Some cases are subject to transaction between the prosecutor and the perpetrator while other cases are brought into court.

The table below indicates the Articles of the IPPC Directive covered by sanctions in the Netherlands. The category of administrative (quasi) criminal sanctions does not exist in the Netherlands, thus this column is left blank in the table below.

Administrative measures Administrative (quasi) Article Criminal sanctions and sanctions criminal sanctions IPPC Directive Catch-all - 4 Article 1.1(3) of WABO Article 2.1(2) of BOR together with Article 2.1(e) of (which cross-refers to WABO Article 2.1(e) of WABO 5 Article 1.1(3) of WABO Article 2.1(e) of WABO together with Article 2.1(e) of which is referred to in

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WABO Article 2.1(2) of BOR 6 Article 4.2 of AWB and - Article 4.4. of BOR 12 (1) Article 2.1.(1)(e)(2) of Article 2.1.(1)(e)(2) of WABO WABO 12 (2) Article 2.1.(1)(e)(2) of Article 2.1.(1)(e)(2) of WABO WABO 14 (a) Article 2.1(e) of WABO Article 2.3 of WABO together with Article 5.5 of together with Article 1(a) BOR sub paragraph 1 of WED 14 (b) Article 5:7 sub paragrap 2 Article 2.1 WABO and BOR, Article 17.2 Wm juncto Article 1a subparagraph 2 of Articles 5.1 and 5.19 WABO WED 14 (c) Article 5.20 AWB

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Introduction

This report describes the procedures relating to enforcement of the IPPC Directive298 under Dutch law. It is based on jurisprudence, background articles, guidelines, interviews and examples from case studies. Furthermore, the report provides an overview of the administrative and criminal procedures as applied in the Netherlands.

Until recently, the Environmental Management Act (WM)299 was the only primary legislation in the Netherlands regulating industrial installations. In October 2010, however, the Act on General Provisions Environmental Law (WABO)300 entered into force, which created an integrated licensing system regarding several activities that affect the physical environment. The Act regulates the issuing of permits concerning construction, housing, monuments, space, nature and environment, which previously fell under separate permit regimes. The obligations established under the WABO are further detailed in the Decree on the Law on Environment (BOR)301 and the Ministerial Regulation on the Law on Environment (MOR).302

Before the enactment of the WABO, Chapters 8 (installations) and 18 (enforcement) of the WM and the Water Act governed the issuing of permits related to the IPPC Directive. The functions of the WM with regard to the enforcement of environmental law are transferred to the WABO (Article 18.1a WM). The other WM provisions, and the provisions of the Water Act covering direct discharge in surface waters, remain in force. Whereas the WABO only recently started operating, this report will primarily focus on enforcement of the IPPC Directive and applicable sanctions under the WM.

1. Applicable sanctions

1.1. Introduction

In the Dutch legal system, both administrative and criminal measures can be taken when a breach of the legislation on industrial installations occurs. These two enforcement systems have different aims (respectively ensuring compliance and punishment). Consequently, offences may be determined as either being administrative and/or criminal in nature. Administrative measures are primarily enforced pursuant to WABO (Chapter 5 on enforcement) and the WM (Chapter 18 on enforcement). With regard to IPPC installations, all enforcement provisions fall under Chapter 5 WABO since October 2010 (Article 18.1a WM).

Besides the specific rules in the WABO and WM, the general rules of Dutch administrative law apply. The General Administrative Law Act (AWB) provides a comprehensive toolkit of enforcement measures to the competent authorities. It lists four types of administrative sanctions for offences that apply to both natural and legal persons (Article 5.1(3) AWB). It distinguishes between administrative coercion measures and administrative punitive sanctions; the latter are defined as administrative sanction intended to inflict harm on the violator (art. 5.2(1)(c) AWB).

Breaches of a number of provisions of the WABO, the WM and other acts have been qualified as criminal offence or crime (depending on the seriousness of the infringement) in the Law on Economic

298 Directive 2008/1/EC of the European Parliament and of the Council of 15 February 2008, PB L24, 29.1.2008, pp. 8-29. On 7 January 2014, this Directive will be repealed by Directive 2010/75/EC, which provides for an integrated approach to prevention and control of emissions into air, water and soil, to waste management, to energy efficiency and to accident prevention. 299 Stb. 1979, 442 (Wet milieubeheer) 300 Stb. 2008, 496 (Wet Algemene Bepalingen Omgevingsrecht). 301 Stb. 2010, 143 (Besluit Omgevingsrecht) 302 Stcrt. Nr 5162 (1 April 2010) (Ministeriële Regeling Omgevingsrecht) Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 139

Offences (WED),303 by listing the relevant provisions. For instance, Articles 1 and 2 of the WABO requires that IPPC installations only commence operations after having obtained a permit from the competent authorities (i.e. municipality or province). Infringements to Articles 1 and 2 WABO are qualified as offences in the WED. The WED also established the maximum amount of a penalty for each offence. It is up to the Dutch judiciary to decide on the actual penalty. The maxima in the WED should be observed, but no minima apply. In addition, the Public Prosecutor’s Office can offer a transaction to offenders, by which the payment of a fine is meant, in ‘simple’ minor cases. The transaction serves as a penalty and avoids the need to go to court. In practice, this offer is often accepted, meaning that only a minority of cases in which the Public Prosecutor is involved actually reach the courts. If a company does not agree with the penalty and refuses the transaction, the case may be brought to the criminal court in first instance. If the company is convicted, it may appeal that decision and – on matters of interpretation of the law – it may appeal to the High Court304 for its view on the matter in cassation.

A report issued in January 2010 (Report on Environment Monitor Permitting, Control and Enforcement tasks, Rapportage Milieu Monitor Vergunningverlening, toezicht en handhaving (VHT)- taken) shows that there were some 616 IPPC installations for which provinces are the competent authority in the Netherlands in the year 2008 (not including those situated in the Province Noord- Holland and in Amsterdam). Inspections were carried out an average of 2,8 times per IPPC installation in 2008.

The following table shows statistics for the total number of installations for which the provinces are competent authority, for the year 2008. Statistics specific to IPPC installations are not available and these numbers and percentages relate both to IPPC and non-IPPC installations for which the provinces are the competent authority. Similar overviews for permits issued by municipal authorities were not identified.

Warnings were issued for 23 per cent of the installations (and 70 per cent of the violations). Thirteen per cent of these cases resulted in an administrative measure, which led to payment (in the sense that the payment actually had to be made because the company did not abide by the order) in 2,2 per cent of the cases. It was also noted that in 98 per cent of the cases, issuing a warning brought about that the perpetrators changed their behaviour and the breaches came to an end.

Table 1: Statistics on Inspections and Administrative Measures and Sanctions Number of Number of Number of Number of Number of Number of installations inspections offences warnings administrative payments identified measures made Over 4,000 9,318 1,426 994 169 32 including 14% IPPC installations

From the IPPC inventory managed by Infomil, it follows that on 16 September 2009 a total of 2,743 IPPC installations existed in the Netherlands. Municipalities were the competent authority in most of the cases, namely for 2,149 installations. The provinces and the Environmental Protection Agency Rijnmond305 were responsible for 599 installations, and a remaining category of four installations fell under the supervision of the State. Another overview undertaken at the same time showed almost the same result, namely a total of 2,752 installations, while differentiating between new and existing

303 Wet economische delicten, 304 Hoge Raad 305 Dienst Centraal Milieubeheer Rijnmond is the regional environmental agency of the local and regional authorities operating in Rijnmond, the larger 'Port of Rotterdam'-area in the Netherlands.See http://www.dcmr.nl/en/index.html Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 140

installations and indicating which category of IPPC installation it concerned. The latter data were presented to the Commission as part of the obligations under Directive 2008/1.306

A representative of the Province of Zeeland noted that 48 IPPC installations were located in the Province in the year 2010. In the same year, the Province has issued some 24 formal warnings and 13 administrative orders subject to a financial payment. Ten of these orders concerned IPPC installations. In the vast majority of these cases, the orders had the desired effect and the violation was terminated by the company in question. In three cases, the companies had to make the financial payment as they did not abide by the order.

It is worth noting that after the serious accident at an installation that stores and manages chemicals in Moerdijk at the start of 2011, a quick scan was made of 416 installations that manage chemicals. Out of the 416 installations that were investigated, 71 scored badly on one of the five investigated aspects, 25 scored badly on two or more aspects, and only 13 scored reasonably well or well on all aspects. The Minister responsible for Environment informed the Parliament that he did not want to identify the companies scoring badly for the time being, but he did announce that if the situation would not improve before the summer of 2011 he would consider making a list of the 25 top perpetrators public and thus “naming and shaming” them.307

The following sections describe the available measures and sanctions.

1.2. Administrative order subject to a financial payment (last onder dwangsom)

The administrative order subject to a financial payment (in Dutch: ‘dwangsom’, which could be translated literally as ‘coercive sum’) is a remedial (reparation) sanction which aims at reversing the effects of the offence (Article 5.31d AWB). According to Article 5.32a AWB, the administrative order describes the remedial action to be taken. The administrative authority shall determine the payment either as a lump sum, or as a sum payable per unit of time in which the order has not been complied with or for each violation of the order (Article 5.32b(1) AWB). The amounts shall be reasonably proportionate to the gravity of the interest violated and to the intended effect of the penalty (Article 5.32b(3) AWB). This amount is established by the competent authority. In the province Zeeland, internal guidelines are used in order to establish the appropriate amount of the payments. Amongst other things, the profits from non-compliance with the legal obligations are taken into account, as are the frequency of violations, the type of violation and its nature (for instance, does it concern only one missing wall that is fire-resistant or does it concern a large number of containers that are not properly suited to store dangerous substances). The higher the payment that is requested, the better the reasons for imposing such a sum are to be as companies are inclined to go to court on this issue. Thus, with these guidelines in mind, each case is considered separately in order to define the amount that is reasonably necessary in order to ensure that the violation is remedied. The administrative order subject to a financial payment is considered to be an effective measure to ensure results. As already mentioned above, in 2010, the order was complied with ten times out of the 13 times such order was imposed on companies in Zeeland.

To ensure legal certainty for the permit holder, Article 5.23b(2) AWB requires the competent authority to indicate the maximum total amount of the penalty that can be imposed under the administrative order. An administrative authority may opt not to issue an order subject to a financial payment if this is incompatible with the interest which the rule violated aims to protect. (Article 5.32(2) AWB). This rule aims at ensuring that the measure of issuing an administrative order subject to a financial payment is not used instead of issuing an administrative coercive order (see below) in cases where the interests

306 See p. 27 in the Report, available at http://circa.europa.eu/Public/irc/env/ippc_rev/library?l=/implementation_2006- 2008/ms_factsheets&vm=detailed&sb=Title and at http://www.infomil.nl/onderwerpen/duurzame/bbt-ippc-brefs/rapportage- database/rapportage-2009/ 307 VROM Totaal 25 March 2011, Sancties dreigen voor onveilige chemiebedrijven, http://www.vromtotaal.nl/nieuws/2011/maart/sancties-dreigen-voor-onveilige-chemiebedrijven.8661.lynkx?tid=375&stid=0 Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 141

of the environment would be harmed, for instance in cases of serious damage to the environment. In practice, the Dutch judiciary does not easily assume that an administrative order subject to a financial payment cannot be issued for this reason.308

1.3. Administrative coercive order (last onder bestuursdwang)

Administrative coercive measures are part of the instruments competent authorities have at their disposal against violations of the law. Article 5.21 of the AWB defines administrative coercive orders (in Dutch ‘bestuursdwang’) as a reparation measure which includes (a) the obligation to fully or partially repair damages caused by the offence, and (b) the competence of the competent authority to carry out the order itself if it is not carried out or not carried out in time by the operator. The municipality and province boards are authorized to use this measure pursuant to respectively Article 125 of the Municipalities Act and Article 122 of the Provinces Act. The administrative coercive order is used to bring the illegal situation back in line with the standards required by law, in other words to end the violation.

If the permit holder does not repair the damages or does not do so in time, the competent authority may carry out the order itself and use ‘actual measures’ in order to remedy the breach (for example by demolishing an illegal structure). Before doing so, the competent authority must send a written warning to the offender, informing him/her to remedy the breach within a specified time period. It the offender fails to do so, the competent authority may proceed to take the actual measures to remedy the illegal situation. The written notification is subject to appeal. The decision specifies which regulation and law is being violated (Article 5.24 AWB). The cost of performing the ‘actual measure’ (such as removal of the illegal structure) may be recovered from the offender (Article 5.25 AWB).

This administrative measure is far less popular than the administrative order subject to a financial payment. The interview with a representative of the Zeeland Province showed that the latter order is far easier to use for the administration in practice.

1.4. Administrative fine (‘bestuurlijke boete’)

The administrative fine (in Dutch: ‘bestuurlijke boete’) is a punitive sanction. This is in contrast to the other administrative measures described above which are not designed to punish a violation but to restore a situation which constitutes a breach of legal requirements, or to prevent their repetition. The administrative penalty does not necessitate that the competent authority sends a notification (warning) to the offender. Once a violation is detected (for example by inspectors), the competent authority can apply administrative fines immediately. The administrative fine is intended to tackle minor inconveniences caused in violation of general municipal ordinances (in Dutch: Algemene Plaatselijke Verordening, APV) such as littering.

This instrument was introduced only recently and thus, no data on initiated and finished procedures is available yet. Because of the scope of the instrument (notably its limitation to violations of general municipal ordinances), it is unlikely that it would be used for non-compliance with legislation on industrial emissions.

1.5. Revocation of the permit

If an offence is committed by the holder of a permit, the competent authority can fully or partially withdraw the permit. The law and regulations under which the permits are issued establish the rules concerning the revocation of the permit. Since 1 October 2010, the rules regarding revocation of IPPC permits are to be found in § 2.6 WABO when the revocation is a non-punitive measure, and in chapter 5 WABO where it is intended to be a punitive sanction. Article 2.33(1)(d) WABO requires the

308 Van Buuren 2007, p. 268 Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 142

competent authority to revoke a permit if the installation causes inacceptable environmental damage. Note that it is not merely a competence of the authorities to decide whether or not to revoke the permit in such cases, but a requirement for them to do so.309 Before October 2010, the WM regulated this measure; there, the authorities were left with more discretion whether or not to revoke permits. In practice, the revocation of IPPC permits seems to be rare. It is rather used as a threat in some serious cases, like the chemicals company Thermphos (a phosphor producer which was exceeding its dioxin emission limits and committing other breaches of environmental regulation). The competent authority, the Province of Zeeland, threatened to revoke the permit but the company was very slow in adapting its practices to its permit conditions. The details of this case are provided in Annex IV. A recent report on this case claims that the authorities could have done more to ensure compliance.310

1.6. Criminal sanctions

When the public prosecutor decides to investigate a violation of environmental law and finds that the installation and/or the persons in charge are guilty of these violations, several options are available. The prosecutor can offer an out-of-court financial settlement (transaction) or bring the case to a court. The maximum amount that a fine for each particular category of offences can take is laid down in the Economic Offences Act (WED) juncto Article 23 of the Criminal Code. The Economic Offences Act also identifies the provisions in other acts like the WABO and WM, the breach of which constitutes an offence or a crime (depending on the seriousness of the infringement), and identifies the category of fines applicable to such violations.

309 Kamerstukken II 2006/07, 30 844, nr. 3, p. 118 310 Committee Mans 2011 Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 143

Table 2: Directive 2008/1/EC (IPPC Directive): types of offences and related administrative and criminal penalties in the Netherlands

Administrative Criminal

Offences Penalties Offences Penalties

Obligation to Article 1.1(3) WABO requires that Chapter 5 of WABO regulates Article 1.1(3) WABO requires that Article 6 WED establishes maximum apply for a permit putting into operation, carrying administrative enforcement. putting into operation, carrying fines/ years in prison. Article 6(1)(1) for new or existing substantial changes and operating an According to Article 5.19 WABO, the substantial changes and operating an states offences, mentioned in Article IPPC installation is subject to prior authority that is competent to grant or IPPC installation is subject to prior 1(1) and/or 1a(1), and can be installations review. Obligations to apply for an provide exemption for a permit, can review. In general, obligations to punished with one year environmental permit can be found in withdraw, fully or partially, the apply for an environmental permit imprisonment, community service or

Article 2.1(e) WABO (and Article permit or exemption if: can be found in Article 2.1(1)(e) a fine of the fourth category, which 2.1(2) BOR) WABO. can be up to Euros 19,000.311 Article 2.1(e) WABO a. the permit or exemption was issued due to incorrect or incomplete A failure to comply with these For other offences, the punishment A failure to comply with these information; requirements may be considered an can be imprisonment with a requirements may be considered an b. non-compliance with permit or offence (see introduction). maximum of six months, community offence (see introduction). exemption; service or a fine of the fourth Article 2.1 WABO c. non-compliance with the Non-compliance with Article category, which can be up to Euros regulations connected to the permit or 2.1(1)(e) WABO is listed as an 19,000.312 exemption; economic offence (delict). d. the holder of the permit or Article 2.1(1)(e) WABO, Article Article 6(1)(1) states that crimes, exemption, does not respect general 2.1(2) BOR mentioned in Article 1(1) and/or 1a(1), rules. are punished with maximum six years imprisonment, community service or a On the basis of Chapter 5, the fine of the fifth category, which can be competent authority (inspector) can up to Euros 76,000. apply administrative sanction (see introduction). For other crimes, the punishment can Article 5.19 WABO and Article be imprisonment with a maximum of 5.1(3) AWB two years, community service or a fine of the fourth category, which can be up to Euros 19,000. Article 6(1)(1) WED

311 As at 01-01-2010. 312 As at 01-01-2010. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 144

Administrative Criminal

Offences Penalties Offences Penalties

Obligation to In addition to Article 4.2 AWB, On the basis of Chapter 5, the N/A N/A supply Article 4.4 BOR requires the competent authority (inspector) can information for applicant to provide the necessary apply administrative sanctions (see application for information. obligation 1 above and introduction). permits Article 4.4 BOR Article 5.19 WABO and Article [Chapter 5 of WABO on enforcement 5.1(3) AWB sets sanction for non-compliance with implementing decrees eg BOR – see introduction] Obligation to Article 2.1(1)(e)(2) requires a permit On the basis of Chapter 5, the Article 2.1(1)(e)(2) requires a permit Article 6 WED establishes the notify the to change the installation or its competent authority (inspector) can to change the installation or its maximum fines/ years in prison (see competent operation. apply administrative sanctions (see operation. obligation 1 above). authority of any Article 2.1(1)(e)(2) WABO obligation 1 above and introduction). changes in the Article 5.19 WABO and Article Acting contrary to the requirements operation of an 5.1(3) AWB for a permit (Article 2.1(e) WABO), installation the WED applies through Article 1a (1). Article 2.1(1)(e)(2) WABO Obligation to Article 5.3 of the BOR requires that On the basis of Chapter 5, the Article 2.3 WABO requires that the Article 6 WED establishes the comply with the BAT apply to activities covered by competent authority (inspector) can permit holder acts in compliance with maximum fines/ years in prison (see conditions set in Article 2.1(e) WABO. According to apply administrative sanctions (see the conditions set out in the permit. obligation 1 above). the permit or Article 5.4 BOR, the competent obligation 1 above and introduction). Article 1a sub 1° WED makes it an mandatory ELVs authority sets the BAT, including the Article 5.19 WABO and Article economic offence not to do so. nature, effects and volume of the 5.1(3) AWB emissions (5.4(1)(f) BOR). Article 5.5 BOR requires instructions on emissions limits for installations referred to in Article 2.1(1)(e) WABO. Annex I to the MOR lists BAT documents that are relevant for IPPC installations. A failure to comply with these requirements may be considered an offence (see introduction). Article 2.1(e) WABO, Article 5.5 BOR *ELVs: Emission Limit Value

Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 145

2. Administrative procedure

2.1. General elements on the legal tradition and potential evolution

It was generally felt in the 1980’s that criminal enforcement was not effective enough in tackling environmental problems caused by industry. Administrative enforcement was seen as better suited to deal with many cases in which companies were not complying with environmental law in the Netherlands.

It turned out that other issues also needed to be addressed, notably setting priorities313 and tackling the situations in which breaches of environmental law are allowed to continue (in Dutch: ‘gedogen’, literally to tolerate, i.e. in exceptional cases not adopting enforcement measures against violations of environmental law by the authorities that are legally entitled to, and capable of, adopting such measures). Furthermore, a more integrated approach to enforcement was sought for, both in terms of the organization of enforcement as well as of the use of the available instruments. As for the organizational aspects of a more integrated approach towards enforcement, the cooperation between different authorities was and remains of concern.

A critical report by the committee Mans from 2008 (advising on the necessity of a revision of the environmental law enforcement system) showed that enforcement in the Netherlands needed major improvements.314 The Dutch central government accepted that there was a need for improved cooperation between competent authorities, notably municipalities, provinces, public prosecutors and the police. In June 2009, the organizations representing municipalities (VNG) and provinces (IPO) agreed with the central government that regional executive bodies (‘regionale uitvoeringsdiensten’, rud’s) responsible for issuing environmental permits, control and enforcement, would be created and start their operations as of 1 January 2012. It recently became apparent that progress is slow and meeting the deadline unlikely. The responsible ministers demanded in a letter to the provinces to achieve interim results by the summer of 2011.315

An example of the present organisation of enforcement in one of the Dutch provinces is presented in box 1 below.

Box 1: Enforcement of environmental law in the province of Zeeland 316

In the 2007 enforcement memorandum ‘Oog op Zeeland’ the province of Zeeland elaborates on its enforcement strategy. The main objective was to better prevent infringements, and limit their consequences. Awareness-raising amongst citizens and industry is considered as a key instrument. The memorandum noted supervision to establish infringements in an early stage as the essence of enforcement. Permit holders who abide by the rules, will be inspected less frequently than those who did not do so in the past. Several sanctioning actions can be taken when an infringement is established:

 Applying administrative coercive measures : the Province intervenes to end a certain behavior  Issuing an administrative order : the Province forces the perpetrator to end a certain behavior before a certain time limit  Revocation of the permit which prohibits the activities of the perpetrator from that moment on.

313 Algemene Rekenkamer, Handhaven en gedogen, rapport, in: TK 2004-2005, 30 050, nr. 2. 314 Committee Mans (2008), Commissie Herziening Handhavingsstelsel VROM-Regelgeving, De tijd is rijp, The Hague, July 2008. Note that this report is not to be confused with the 2011 report of the Committee Mans on the company Thermphos, written under the leadership of the same Mr. Mans. 315 http://www.binnenlandsbestuur.nl/Home/all/atsma-dreigt-in-te-grijpen-bij-omgevingsdiensten.784293.lynkx 316 Provincie Zeeland, Oog op Zeeland: Nota handhaving natuur en milieu, Directie Ruimte, Milieu en Water, 20 February 2007. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 146

In deciding the course of action, the administrative authority will take into account: whether a follow- up inspection is possible; how long the infringement lasted; the level of urgency of the action; whether it concerns a ‘core provision’ (see Section 3.2); and whether the perpetrator is generally known as ‘abiding by the rules’.

In extraordinary situations, the administrative authorities can opt to tolerate certain cases of infringement, but only ‘actively’, meaning that the authorities need to issue a written statement, usually accompanied with conditions, allowing a certain behavior.

Besides administrative actions, criminal procedures are at the disposal of the competent authorities. In order to discourage particular dangerous types of behavior, the Public Prosecution (OM) can, in agreement with the administrative authorities, start criminal procedures. Usually an out of court financial settlement (transaction) is imposed (see Section 3.2.2).

2.2. Inspections

2.2.1. General information

As defined in the WM (chapter 8) and WABO (chapter 5), the competent authority is a body responsible for taking a decision in relation to a request for an environmental permit, as well as in relation to the enforcement and inspections relating to permits that are already granted. In case of non- compliance with the requirements set out in the legislation, these competent authorities can make use of their administrative enforcement powers described above. To be more exact, the provincial and municipal executive authorities designate officials charged with the implementation of the environmental legislation; these officials are also in charge of monitoring compliance with the provisions laid down by or pursuant to the Act concerned within their jurisdiction. These officials are a part of the environmental agencies (milieudiensten).

The activities for which the provincial authorities (in Dutch: Gedeputeerde Staten) rather than municipalities are the designated competent authority are listed in Annex I, part C BOR. The following figure explains how to establish the competent authority for IPPC installations:317

317 Information retrieved from http://www.infomil.nl/algemene-onderdelen/uitgebreid- zoeken/@113407/inleiding/?PrvBslItmIdt=112833, 28 March 2011. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 147

Figure 1: Determination of the Competent Authority for IPPC installations Activities related to installations listed in Annex I of the IPPC Directive?

Yes Are GS designated as the competent

authority in Annex I, part C BOR?

Yes No

The Provincial Authority is the Municipality is the competent authority for competent authority for both issuance both issuance and enforcement of the and enforcement of the environmental environmental permit it

Examples of installations for which the provinces are competent authority are installations processing 5 million kg per year or more of phosphor, ammoniac, chlorine or other dangerous substances mentioned, and steel processing plants. Consequently, installations with smaller capacities will fall under the competence of the municipalities. When provincial or municipal authorities are designated as the competent authority, they assume this role for the issuance and enforcement of the entire environmental permit (through the environmental agencies, see above).318

The Province is responsible for monitoring whether rules are abided by and, where necessary where violations are discovered, for enforcement. Enforcement is a discretionary competence. The decision whether to enforce or not needs to be reached by a proportionate balancing of interests. The interest of enforcement forms one of the issues to weigh, albeit in principle an important one. Furthermore, the interests of the company violating the norm and of third parties play a role. From Dutch jurisprudence it follows that normally, enforcement action needs to be taken when violations occur. In other words, there is a principle duty to enforce. Only in special circumstances authorities may decide to not enforce. Such circumstances can include the fact that the violation will end within a foreseeable period of time, or when legalisation in the form of new permit conditions is imminent. In such cases enforcement does not serve a reasonable purpose. These special circumstances occur regularly in Dutch legal practice. According to the committee Mans,319 the authorities always need to check whether legalisation is possible. Also, enforcement is not to take place when this would be disproportionate. For instance, a violation of a minor nature and/or interests of third parties have not been violated in a manner that is worth mentioning, no action will be taken.

Another actor is the ‘VROM-inspectie’, an inter-administration supervising agency that oversees the manner in which the competent authorities implement their permitting and enforcement competences. Since 1 January 2009, the ‘VROM-inspectie’has been assigned an additional task in the programme Priority companies (Prioritaire bedrijven), namely overseeing the functioning of competent authorities

318 As an aid in determining which authority is competent, a website provides information and an electronic aid system. See http://www.infomil.nl/algemene-onderdelen/uitgebreid-zoeken/@113407/inleiding/?PrvBslItmIdt=112833 . 319 Committee Mans 2011 Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 148

in respect of major companies, notably the approximately 800 large IPPC companies. Within these companies, the ‘VROM-inspectie’prioritizes the major air emissions and largest safety hazards, bringing the total down to some 400 companies. The ‘VROM-inspectie’ can request the competent authorities to take enforcement action, and as an ultimate remedy it can do so itself instead of the competent authorities if the Council of State agrees to this drastic step. The ‘VROM-inspectie’does not have the competence to directly intervene in the functioning of a company, however.

In 2008, the Dutch provinces (not including Noord Holland and Amsterdam) spend 402,946 hours on enforcement, which equals to 268 full time equivalent (fte).320 If the figures are extrapolated for the two missing entities, the total amount of fte in all Dutch provinces in 2008 amounted to some 320 fte. The costs of enforcement were Euros 33 million.321 As for the province of Zeeland, the interview suggested that in 2010 some 150 inspections took place, 50 of which (exceptionally) concerned Thermphos. Compared to other regions in the South of the Netherlands with which there is a cooperation that is to be intensified further, notably in anticipation of the new structure for permitting and enforcement (the ‘RUD’s’), Zeeland was carrying out more inspections per installation.

Part 5.2 AWB deals with to the control of compliance with administrative law. When an administrative authority has been designated as the competent authority, it acquires the powers enshrined in this part of the AWB and, possibly, extra prerogatives laid down in special legislation.322 Some key elements of the competences of inspectors, laid down in Part 5.2 AWB are, amongst others:  Article 5.13 AWB: An inspector only uses his power for the fulfilment of his duties;  Article 5.15 AWB: An inspector can enter all premises, except for a residence without permission of the inhabitant;  Article 5.16 AWB: An inspector can force cooperation in acquiring information;  Article 5.17 AWB: The inspector can force access to documents and financial statements;  Article 5.20 AWB: Everyone is obliged to cooperate with the inspector in the execution of his duties within a reasonable term.

Article 5.11 WABO declares the articles mentioned applicable to the enforcement of the WABO by the competent authority.

2.2.2. Inspection Strategies

Inspections are intended to enforce compliance with the law. Setting priorities is essential, whereas it is impossible to verify compliance in its totality. Therefore, the competent authorities need to draw up inspection strategies which can be altered annually, depending on the focus of the authority. As a starting point, periodical inspections should be held. Based on findings herein, other types of inspections e.g. audits or in-depth inspections could be carried out.

The competent authorities can design their own inspection strategies. Table 3 provides an overview of several types of inspections, and when these are used in the Dutch province Noord-Brabant.

Table 3: Inspection strategy of the province of North-Brabant323

Type of inspection Risk involved Periodical inspection High, medium, low Quick scan, industry specific inspection Medium, low

320 1 fte amounting to 1,500 working hours 321 Kplusv, Rapportage Milieu Monitor Vergunningverlening, toezicht en handhaving (VHT)-taken, p. 28. 322 Teunissen, J.M.H.F., Handboek Milieurecht, Chapter 8: Handhaving en maatregelen in bijzondere omstandigheden, Berghauser Pont Publishing, 3rd edition, 2010. 323 Zo handhaven we in Brabant, actualisering handhavingsstrategie 2010‘s Hertogenbosch – Groningen, September 2010, pp. 7-8. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 149

Chain oversight,324 in depth inspections and inspections of records High Verification, audits Generally supportive Incidental inspections after complaints have been received or calamities High, medium, low

The enforcement strategies of several provinces all indicate that perpetrators who commit infringements more than once can expect more visits from the inspecting authorities. A permit holder, who generally complies with the permit, needs less oversight than notorious infringers.325 Thermphos with 50 inspections in 2010 forms a case in point here. Figure 2. Inspection and enforcement strategy of the province of Overijssel326

st Infringement After 1 visit  Report or warning with term for reparation After 2nd visit Yes  Administrative warning with term for reparation …Which was knowingly No rd After 3 visit and/or imposes possible  Decision danger  Notification of OM and/or administrative sanction or administrative fine

After 1st visit Yes  Administrative warning with term for reparation After 2nd visit  Decision No  Notification of Public Prosecutor (OM) and/or administrative sanction …With immediate danger oradministrative fine Aft 3rd iit 1.2. Appealand/or againstis inevitable the administrativeand/or has decision public safety consequences Yes After 1st visit 2.3. Appeal against the administrative decision Immediate execution of decision (usually administrative coercion) Both an administrative order subject to a financial payment Notification (dwangsom) of Public and Prosecutor an administrative and/or coercive order (‘bestuursdwang’) constitute decisions that can be asked to be reconsidered. Requesting

Both an administrative order subject to a financial payment (dwangsom) and an administrative coercive order (‘bestuursdwang’) constitute decisions that can be asked to be reconsidered. Requesting reconsideration is a procedural pre-condition to further legal steps (Article 6.13 AWB) which can be taken when this reconsideration is without success for the applicant. First the administrative judges at the district court (‘rechtbank’) can be asked to annul the decision and finally an appeal is possible at the Council of State (Article 6.4 AWB).

Where administrative orders subject to a financial payment are concerned, Article 5.34(1) of the AWB regulates that the operator can request for the annulment of the order, the temporary suspension of the period within which the action needs to be taken, the reducing of the amount of payments in case of impossibility for the operator to meet the demands of the order. At the request of the operator, the administrative body that imposed the order can annul it if the order has been in force for over a year

324 Inspections focussed on installations in the highest risk category, which monitor a certain product or a certain type of waste throughout the entire production process. The results can be used for future decisions on focus of the inspections. Usually multiple authorities are competent, so external coordination is necessary. Definition retrieved from the Enforcement Strategy of the Region Haaglanden (The Hague and surroundings), November 2004. 325 See for example ‘Oog op Zeeland’, enforcement document of the province of Zeeland. 326Ferwerda, C., Handhaven of gedogen, dat is de vraag, Handhaving 2010, no. 4. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 150

but the payment was not done within that period (Article 5.34(2) AWB). The actual payment needs to be decided upon via a separate decision (Article 5.37 AWB). A request for reconsidering and appeal covers both the latter decision as well as the general one (Article 5.39 AWB). Similar rules apply for the administrative enforcement order (bestuursdwang). In this instance, the fact that the request for reconsidering and the appeal are covering both decisions is laid down in Article 5.31c AWB.

3. Criminal procedures

3.1. General information

In the Netherlands, the ‘Openbaar Ministerie’ (OM), or Public Prosecution Service, has sole discretion in deciding whether or not to bring criminal proceedings against legal or natural persons suspected of committing infringements of the law. In doing so, the OM can make use of the “opportunity principle”. This means that the OM can refrain from prosecution if it deems criminal procedures not ‘opportune’ with regard to the general interest.327 With the help of the Instruction on enforcement of environmental law, the Public Prosecution Service sets out in detail which issues are to be taken into account when deciding on prosecuting or not, and when prosecution is called for, which elements are to be taken into account. This section describes and the criminal procedure as applied to cases involving IPPC installations, including the considerations taken into account by the OM with regard to initiating prosecution in environmental cases.

3.2. Criminal procedures and environmental cases

The OM has the task of dealing with criminal aspects of environmental law enforcement procedures in cooperation with the administrative and investigative authorities. According to the ‘Instruction on enforcement of environmental law’, the two main aspects herein are:

A) Endorsing norms established to protect: o The environment or the public health; o Credibility (trustworthiness) of the norm-setting government; o Fair competition markets, especially when the infringement results in clear competitive advantage, or; o The possibility of government control. B) Limitation of damage and restoration of urgent damage, notably where administrative authorities cannot act.328

In the light of these purposes, the OM deems initiating criminal proceedings appropriate only in case of infringement of ‘core provisions’ (kernbepalingen) of specific environmental provisions, in principle. These are the provisions which are the essence of the interests the regulation aims at protecting. With regard to IPPC installations, the most important core provisions are article 1.1(3) WABO (ex article 8.1 WM), setting the obligation to apply for a permit; article 5.19 WABO (ex. Chapter 8 WM in general), concerning compliance with the permits issued under the WABO.

3.3. Criminal procedures in the investigative phase

When infringement of a core provision has been established, an official report (proces-verbaal, a written report on what has been observed by a government official) will be communicated to the (legal or natural) person who allegedly infringed environmental law, unless the public prosecutor (Officier van Justitie) deems that the infringement was:

327 Information available at: www.om.nl. 328 Openbaar Ministerie, Strategiedocument, Aanwijzing handhaving milieurecht, Den Haag, 2010. , (2010A004). Published in Official Gazette (Staatscourant) 2010, nr. 2953. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 151

 Unintentional, and;  Incidental, and;  Had only minor consequences, and;  The person in casu took adequate action to cease the infringement and prevented any further damages (note that the above form cumulative conditions); Or when,  Considering an incidental or structural agreement between the OM and the administrative authorities, there is no role for criminal proceedings, whereas the administrative measure(s) to restore previous conditions is considered as a sufficient ‘sanction’.

In case of an infringement of a non-core provision, initiating criminal procedures is in general not deemed opportune, unless there are, from a criminal perspective, relevant circumstances. These are, amongst others: a direct and significant threat of the environment, public health or government credibility; damage to the functioning of the market; a threat of increase in scale of infringement when no action is taken.329

3.4. Criminal procedures in the prosecution phase

A distinction is made between simple and more complicated cases. Simple cases are defined as environmental cases often occurring that are relatively simple by nature or constitutes only a minor violation of the interests that are to be protected. It is estimated that simple cases represent two third of the environmental cases.

Simple cases

In a simple case, an out-of-court financial settlement (transaction) may be reached between the OM and the perpetrator. Taking into account extraordinary circumstances enables the OM to adjust the settlement to the specific situation of the perpetrator. When the perpetrator has a history of multiple infringements, settlement might not be the suitable course of action.

In the majority of cases, reaffirming the law and discouraging certain behaviour will be the main target of the OM. Adequate decision making is important to attain these goals. Therefore, the OM will inform the perpetrator as soon as possible, but within three months at the latest, about its decision concerning the prosecution.

Other public bodies are also entitled to offer such settlements. Based on Article 37 of the Economic Offences Act (‘Wet op de Economische Delicten’,WED), these bodies, which include certain provincial and communal public bodies and certain civil servants, are allowed to use their competence within the limits set by the Ministry of Justice in the Decree on Transactions for environmental offences (‘Transactiebesluit milieudelicten’).

Complicated cases

The OM strives to reach a decision concerning prosecution in more complicated cases within six months after submission of the notice (‘proces-verbaal’). The decision involves a proposal for a settlement, or a subpoena. Typically, the OM will take into account the role which natural persons played during the infringement, and whether prosecuting them instead of the legal person is of added value with regard to future prevention. Furthermore, the following considerations have to be taken into account by the OM:

329 Aanwijzing handhaving milieurecht (2010A004), available at www.om.nl. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 152

 If the behaviour was intended or executed in bad faith, the decision should focus on discouragement, punishment and limiting the possibilities to continue the behaviour;  The more ‘history’ the perpetrator has with the OM, the more focus should be on punishment;  In case of damage to the environment, the OM should consider if, and how, criminal sanctions should be imposed aimed at restoration of the environment. In order to determine this, communication with the administrative authorities is important;  The OM could decide to prosecute in the public interest, to give a signal to the industry.330

3.5. Possibilities of appeal

The OM, taking into account the considerations mentioned above, can thus come to the conclusion that prosecution is the right course of action. Article 38 WED confers the power to hear economic crime cases in first instance to courts only, and more specifically to economic chambers within a court. Against a judgment, containing a verdict related to a crime, appeal can be lodged at a court of appeal (Gerechtshof)331 by both the public prosecutor and the suspect who has not been completely acquitted of the indictment.332 For minor infringements other rules apply,333 but considering the enforcement strategy of the OM, only major environmental crimes would be prosecuted, which renders these rules irrelevant for present purposes. The appeal should be filed within 14 days after the judgment was delivered.334

Article 427 SV (‘Wetboek van Strafvordering’) provides for the possibility of cassation (cassatie) at the Dutch Supreme Court (Hoge Raad) against judgments of courts of appeal within 14 days after the delivery of the judgment in appeal.335

4. Synergies between administrative and criminal procedures

Administrative and criminal enforcement are two separate systems with different functions each. However, effective enforcement of environmental law is only possible with an integrated approach. Starting point should be that administrative action and criminal action, each keeping in mind its own purpose independently as well as combined, should aimed at ensuring a certain level of adherence and at limiting the consequences of possible infringements.

Relatively few environmental cases end up before a criminal court. However, if the OM deems criminal prosecution appropriate for certain environmental infringements, it needs to communicate these to the administrative authorities. These authorities will have in turn to inform the OM if such an infringement has taken place. Permanent communication between criminal and administrative authorities and a pro-active attitude of both is thus required. Furthermore, whereas the OM does usually not have the in-house environmental expertise necessary to bring a case before a criminal court, communication with the administrative enforcement authority becomes even more important.

The manner in which the authorities responsible for criminal and for administrative enforcement need to coordinate their respective actions within their competences has not been regulated. In practice, the coordination between the Public Prosecutor’s Office and Administrative authorities is considered as needing improvement, as for instance is explained in the report of the Committee Mans from 2008 discussed above. In Zeeland, in spite of a longstanding discussion on the need for structural coordination, ad hoc coordination remains the manner in which in individual cases issues of

330 Aanwijzing handhaving milieurecht (2010A004), available at www.om.nl. 331 Article 52 WED. 332 Article 404(1) Wetboek van Strafvordering (Sv). 333 Article 404(2) Sv. 334 Article 408(1) Sv. 335 Article 432(1) Sv. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 153

administrative and/or penal measures with regard to a company are dealt with. In Groningen, regular coordination meetings do take place between the Public Prosecutors Office and the administration.336

5. Conclusions

Proportionality

As outlined in this report, a wide range of measures is at the disposal of the competent authorities to ensure compliance with the relevant provisions that transpose the IPPC Directive in the Netherlands. In practice, however, the administrative measures usually consist of orders subject to a financial payment and criminal measures remain the exception. Complementing guiding documents and legal provisions ensure the proportionality of the administrative and criminal measures imposed in case of non-compliance, based on the nature and gravity of the infringement.

Where criminal procedures are concerned, the guidance document (Instruction on enforcement of environmental law) stresses that in principle, these will only be initiated in case of a breach of ‘core provisions’ of environmental legislation, except when the behaviour was according to the Public Prosecutor a) unintended and incidental and did not have major environmental consequences; and ceased immediately after adequate action of the operator (cumulative conditions) or b) if criminal law has no function in the case at hand because de facto the administrative measure(s) already constitute a sufficient ‘punishment’, in light of ad hoc or structural agreements between the Public Prosecutors Office and the administration. In principle, where non-core provisions were violated, no prosecution is to take place, except in cases when the Public Prosecutor finds that special circumstances prevail (for instance relating to a direct substantial threat to the environment or public health) that makes it necessary to prosecute.

Another example of integrating elements of proportionality into the criminal enforcement procedures related to the IPPC Directive is the division of the level of fines into six categories, being a maximum of: first category, Euros 380; second category, Euros 3,800; third category, Euros 7,600; fourth category Euros 19,000; fifth category, Euros 76,000; sixth category, Euros 760,000.337 The maximum amount of these fines is subject to revision every two years and is adapted to the development of the consumer price index; the next revision is scheduled for 1 January 2012.338

Article 2.3 WABO requires that the permit holder acts in compliance with the conditions set out in the permit. Article 1a sub 1° WED makes it an economic offence not to do so. Article 6(1)(1) WED states that crimes, mentioned in Article 1(1) and/or 1a(1) WED, are punished with six years imprisonment, community service or a fine of the fifth category (Euros 76,000). The Dutch criminal code furthermore provides for the possibility to raise the fine by one category if the case concerns legal entities, and the actual applicable category of fines does not provide for adequate punishment.339 The administrative enforcement procedures also provide for opportunities to adapt enforcement action to the nature and gravity of the infringement. For example, Article 5.32b(2) AWB states that the level of a fine ‘shall be reasonably proportionate to the gravity of the interest violated and to the intended effect of the penalty’.

Effectiveness

While this study shows that both the order with a financial payment (‘dwangsom’) and criminal sanctions can be effective in achieving results, the examples investigated reveal that improvements are

336 Information provided by public prosecutor Steven Pieters in a meeting on 8 June 2011. 337 Article 23(4) Sr. 338 Article 23(9) Sr. 339 Article 23(7) Sr. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 154

still necessary. The same conclusions were also drawn in the critical report of the Committee Mans on the effectiveness of Dutch enforcement of environmental law340 issued in 2008. That report claimed that although improvements were visible on both the State and the decentralized levels, the initiatives undertaken to improve effectiveness were still unsatisfactory. Especially the decentralization and integration of tasks and competences of administrative bodies on the one hand, and the ongoing Europeanization and internationalisation on the other hand caused problems.341 The Dutch structure was deemed too fragmented, which subsequently resulted in inefficient enforcement of environmental law.342 The solution was sought in a restructuring of the institutional enforcement system, by creating regional enforcements services, which in the future will deal with the major part of environmental law in a certain region. The plans of the government implement the majority of the recommendations of the Report. The ‘Regionale Uitvoeringsdiensten’ (RUDs) are expected to become operative in the coming years.

It is worth mentioning another Dutch study as well in this respect. Struiksma, De Ridder and Winter 2006 investigated effectiveness of environmental enforcement in the Netherlands. Protection of the environment is the ultimate (more difficult to measure) goal of enforcement of environmental provisions, but intermediate goals (easier to measure) can also be distinguished like prevention (general and specific), termination of the offence, restoration of the harmful effects, the promotion of compliance after an offence, compensation for damage done and punishment of the offender. The degree to which the environment benefits from enforcement is important but hard or impossible to answer in individual cases. Hence the research concentrated on four measurable intermediate:

 Is the offence terminated?  Are the harmful effects of the offence restored?  Was the offence repeated e.g. did the Prosecutors Office or the administrative authorities took further enforcement measures?  Can the change in the behaviour of the offender be determined (compliance)?

Fifty eight cases were studied in which enforcement was conducted in three different modes: criminal prosecution (11), administrative sanctioning (12) and through a mix of both type of instruments (35). The selected cases vary in several ways (complexity, competent authorities, provisions concerned, domains of environmental protection – ranging from storage of firework and other dangerous materials, pollution to agriculture). In all selected cases the offence was – when possible – terminated. The offender behaves in accordance with the standards. In this respect environmental enforcement is effective. The other standards for effective enforcement were not fully reached. In eighteen out of eighty five (31%) cases sanctioning is not (entirely) effective. Criminal prosecution is effective in ten out of eleven cases; administrative sanctioning is effective in eight out of fourteen cases and the combination of the two enforcement instruments is effective in twenty two out of thirty three cases. This was seen as an indication that criminal enforcement succeeds in reaching a relatively high score on effectiveness. The researchers stressed that this does not mean that criminal enforcement is systematically more effective than administrative enforcement. Situations in practice always contain combinations of several features. For the choice of a certain instrument to be effective, a careful and thorough judgement of all the features is necessary. This leads to a decision-making model that reflects the assumptions that can be made in this respect. The model can be seen as a hypothesis on the effectiveness of criminal law and administrative law in the enforcement of environmental law. In two third of the cases the expected enforcement instruments were used. The most common deviations from the model are that only administrative sanctioning has taken place, while the model indicated the choice of a mix. In half of these cases the offence was repeated. The administrative authority only succeeds in a temporary change in the offender’s behaviour; criminal prosecution could have prevented recurrence of the offence. However, criminal prosecution is not always effective due to low

340 ‘De Tijd is Rijp’, Commissie Herziening Handhavingsstelsel VROM-regelgeving, Den Haag, July 2008, hereafter, Report. 341 Report, p. 5. 342 Report, p. 8. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 155

penalties with low or zero preventive effect, and to the long interval of time between the moment the offence was committed and the conviction. In addition, the deficient implementation of enforcement by administrative authorities plays a role. Another factor is the lack of cooperation between the Public Prosecutors agency and administrative authorities (in only three out of the total of 58 cases, they coordinated their policies; in all other cases, no joint policy was developed, and sometimes information was not even shared). The researchers concluded that administrative measures seem to have a lower preventive effect than criminal law measures. Besides, criminal law would probably be more effective if higher fines were imposed.

Table 4 summarises the results of the study.343

Table 4: Results of the study on effectiveness of environmental enforcement

Mix of criminal Administrative Criminal prosecution prosecution / adm. Total sanctioning sanctioning Effective 10 = 91% 8 = 57% 22 = 67% 40 = 69% Partly effective 3 = 21% 1 = 3% 4 = 7% Not effective 1 = 8% 3 = 21% 10 = 30% 14 = 24%

Total 11 14 33 58

The interview with the Province of Zeeland civil servant revealed that, by 2010, the Province issued about 24 formal warnings and 13 administrative orders subject to a financial payment. Ten of these orders concerned IPPC installations. In the vast majority of these cases, the orders had the desired effect and the violation was terminated by the company in question. In three cases, the financial payment was effectuated because the company did not abide by the order. The interviewed person concluded that the effectiveness of administrative interventions was quite satisfactory.

Dissuasiveness

The administrative order subject to a financial payment (Article 5.31d AWB) can be considered an effective tool to dissuade operators of installations from continuing their behaviour. According to Article 5.32a AWB, the administrative order describes the remedial action to be taken for the order to be lifted. The administrative authority shall determine the payment either as a lump sum, or as a sum payable per unit of time in which the order has not been complied with or for each violation of the order (Article 5.32b(1) AWB). The amount can (and must) be proportionate to the gravity of the interest violated and to the intended effect of the penalty (Article 5.32b (3) AWB), ensuring its dissuasiveness (and proportionality and effectiveness).

As concluded in an earlier stage, in the Netherlands criminal sanctions are generally used for punitive purposes instead of enforcing compliance. However, it is likely that criminal sanctions do have dissuasive effects on future behaviour of operators.

343 Source : table 7.2 at p. 58 of Struiksma, De Ridder and Winter 2006. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 156

Case Studies

Case study 1: waste management company in the Province Zeeland

Interviewee and provider of documentation: G.A. Gabriëlse Function: Coordinator cluster Industry and Measurements, Department Enforcement Nature and Environment of the Directorate Spatial Planning, Environment and Water, Province of Zeeland Date of interview: 7 June 2011

Timeline of the procedure

4 January 2010: 10 February st 5 October 2004: 17 October 2009: 1 company replies 2010: company Permit issued follow-up inspection to allegations replies to notification

31 January 2008: 5 November 2009: 2nd 26 January 2010: 25 March 2010: Official warning follow-up inspection Notification of administrative intention of issuing order issued administrative order

Background

This case concerns an industrial waste management firm located in the Province of Zeeland, operating under a permit issued in 2004. On 31 January 2008, two inspectors of the Environmental Enforcement Department of the Province of Zeeland established an infringement of, amongst others, provision 4.7(b) of the permit in which it is specified that volatile liquid substances are not to be mixed with each other. It appeared that the firm had repeatedly mixed volatile liquid substances, although this is prohibited by the quoted permit condition.

Applicable legislation

A violation of an environmental permit issued under the Environmental Management Act constitutes a violation of Article 2.3 WABO. Article 2.3 WABO requires that the permit holder acts in compliance with the conditions set out in the permit. Various administrative measures can be taken in case of infringement (administrative order subject to financial payment, coercive order, revocation of the permit). In addition, breach of Article 2.3 WABO is qualified as an economic offence under Article 1a sub 1° WED and, as such, subject to fines or imprisonment, namely a maximum of one year imprisonment, community service or a fine of the fourth category (up to Euros 19,000) or, if it is qualified as a crime, a maximum of six years imprisonment, community service or a fine of the fifth category, which can be up to Euros 76,000.

Procedure

After the establishment of the infringements, an official warning was issued. The warning notified the firm that an administrative order subject to a financial payment might be issued if it appears that after eventual follow-up inspections the infringements has not ceased. In October 2009, the inspectors

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concluded that the infringing behaviour was still ongoing. A second inspection in November 2009 resulted in a similar conclusion.

The company responded to the findings of the inspectors in a letter to the Provincial Authorities. However, the Authorities did not see any reason to refrain from taking administrative enforcement measures based on this letter. Subsequently, a notification of the intention to issue an administrative order subject to a financial payment was communicated to the company on 26 January 2010. Again, the company sent a reply, and again, no arguments in favour of refraining from enforcement action were found. To substantiate their decision, the Provincial Authorities stressed the repetitive character of the infringements. Finally, the administrative order subject to a financial payment was issued on 25 March 2010.

The amount of the financial payment was set at Euros 5,000 - per infringement with a maximum of Euros 50,000. For any case in which a violation is to be found occurring after that week, a sum of Euros 5,000 was to be paid.

Effectiveness, proportionality and dissuasiveness

It is unclear whether the company had enjoyed financial benefits resulting from the infringing behaviour or not. Therefore, this aspect could not be calculated with certainty when setting the amount of financial payment attached to the order. The term of one week was deemed a reasonable period to restore compliance with the permit (i.e. sufficient to ensure that no more violations will occur after that week).

The company complied with the order and no financial payments were made as a result. It could be concluded that, considering the fact that the company did not agree with the findings of the inspectors throughout the procedure, the prospect of a fine dissuaded the company from further infringement of the permit.

Case study 2: An example of successful criminal sanctions imposed on an IPPC installation: Corus Staal B.V.

Note: no interview could be carried out for this case, therefore it was not possible to obtain sufficient details to follow the case study format.

Corus Staal B.V. is a producer of steel located in IJmuiden. Since 2007 it is part of Tata Steel, one of the world’s largest producers of steel.344 To be able to operate its plant, the company held several environmental permits issued under the ‘Wet Milieubeheer’ (Environmental Management Act) and the ‘Wet verontreiniging oppervlaktewateren’ (Pollution of Surface Waters Act). It forms an IPPC installation. Based primarily on inspections and written police reports, the company was accused of violating its permits on several counts in the period of June 2003 to June 2005. Amongst others, Corus Staal B.V. was accused of, intentionally or not, violating provisions on: [count 1] discharging wastewater with a certain concentration of iron; [count 3] discharging sewer cleaning waste in surface waters; [count 4] discharging oil-polluted wastewater in unprotected soil; [count 6] discharging acidic water in or on the soil; [count 8] having unquenched chalk present on the floor of the permitted installation; [count 9] loading a truck with substances in such a manner that visual diffusion took place; [count 11] having large quantities of a certain raw material necessary for the production of ‘raw iron’ present near the permitted installation; [counts 2, 5, 7] reporting these incidents as soon as possible to the competent authority.

344 http://www.tatasteel.nl/profiel/historie1.html.

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The case was decided by the Penal chamber of the District Court Haarlem in the Netherlands on 23 April 2009 (Case 15/098026-4, LJN BI2184). The judge started with asserting that, according to then applicable Dutch procedural law, for counts of minor offences to be admissible before a court of law, prosecution should be initiated within two years after the infringement took place. In the present case, this meant that three out of the eleven counts included were inadmissible with regard to the non- intentional variant. Neither did the Court find enough evidence to prove ‘intent’ and thus Corus Steel B.V. was acquitted with regard to counts 1, 3 and 4.

For the other counts, however, the Court found proven that Corus Staal B.V., intentionally infringed multiple provisions of the Environmental Management Act (notable: Articles 17.2, 18.18 and former 8.1 WM) and the Pollution of Surface Waters Act (notably: Article 30a Wvo). The following considerations were especially of relevance. The Court found that Corus Staal B.V., on multiple occasions, failed to report certain unusual operations and discharges of waste, therewith preventing the water quality manager from obtaining insight in these operations and discharges. Furthermore, the company failed to report unusual circumstances twice, therewith preventing the competent authority to act upon them. Attempting to restore compliance with the permits and only then report the circumstances is no ground for moderating the penalty according to the judge. The requirement to report the incident ‘as soon as possible’ serves important public interests and operates independently from the company’s own priorities. To conclude, Corus Staal B.V. did not ensure the prevention of diffusion of harmful substances, therewith endangering the health of people living in neighbouring properties. The Court deemed a fine of Euros 12,500 appropriate. However, considering the time elapsed between occurrence of the offences and prosecution, the Court moderated the fine to Euros 10,000.

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Bibliography

De lange weg naar IPPC-proof vergunningen, Handhaving, 2009, nr. 3, p. 24-25

M.V.C. Aalders, Is strafrecht goed voor het milieu? De ‘tegenstelling’ tussen bestuurlijke en strafrechtelijke handhaving van het milieurecht, Nederlands Juristenblad (NJB), 2008, p. 2294-2299

Ch Backes, G H Addink, Ch Backes, P.C. Gilhuis (eds), Milieurecht, 6e druk, Kluwer, Deventer, 2006

G.A. Biezeveld, Duurzame milieuwetgeving. Over wetgeving en bestuurlijke organisatie als instrument voor behoud en verandering (proefschrift), Boom Juridische Uitgevers, 2002

P.J.J. van Buuren and T.C. Borman, Algemene wet bestuursrecht, 5e druk, Kluwer, 2007 M.G. Faure, IPPC-richtlijn en (strafrechtelijke) handhaving, in: I.M. Koopmans and J.M. Verschuuren, Handhaving van Europees milieurecht in Nederland, Boom Juridische uitgevers, Den Haag, 2000, pp. 131-147

Committee Mans (2011), Rapport Thermphos, 25 February 2011

Committee Mans (2008), Commissie Herziening Handhavingsstelsel VROM-Regelgeving (Commissie Mans), De tijd is rijp, Den Haag, juli 2008

Functioneel parket, Jaarbericht 2008

Kplusv, Rapportage Milieu Monitor Vergunningverlening, toezicht en handhaving (VHT)-taken, in opdracht van InterProvinciaal Overleg (IPO), Arnhem, 28 January 2010

N.S.J. Koeman, A.G.A. Nijmeijer and R. Uylenburg (eds.), Tekst & Commentaar Wet algemene bepalingen omgevingsrecht, Kluwer, Deventer, 2010 (online version at Kluwer Navigator )

F.C.M.A. Michiels and E.R. Muller (eds.), Bestuurlijk handhaven in Nederland, Kluwer, Deventer, 2006

J. de Ridder, N. Struiksma and M.J. Schol, Grip op milieuzaken. Evaluatie van de strafrechtelijke milieuhandhaving (Getting a grip on environmental cases. Evaluation of the criminal law enforcement in environmental cases), Serie Bestuursrecht en Bestuurskunde, Groningen, 2009

N. Struiksma, J. de Ridder and H.B. Winter, De effectiviteit van bestuurlijke en strafrechtelijke handhaving van milieuwetgeving (The effectiveness of administrative and criminal enforcement of environmental legislation), Vakgroep Bestuursrecht en Bestuurskunde RUG, Groningen, 2006

J.M.H.F. Teunissen, Handboek milieurecht, 3d edition, Berghauser Pont Publishing, 2010

VROM-Inspectie, IPPC-nazorg 2010, 5 November 2010

Further sources of information

Interview by phone with representative of Province Zeeland, dd. 7 June 2011

Interview by phone with Mr. Fred Kok, Landelijk Overleg Milieuhandhaving (LOM), dd. 28 April 2011

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Interview with Mr. Pieter Roos (Ministry of Infrastructure and Environment) and Mr. Martijn van Langen (Infomil), The Hague, 19 April 2011

Discussion with public prosecutor Steven Pieters, Egmond aan Zee, 8 June 2011.

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Enforcement schedule of the National Platform on Environmental Enforcement (Landelijk Overleg Milieuhandhaving)

Infringement

Recheck possible?

Continuing?

No Yes

Core provision?

No Yes

 Direct threat to environment? Or  Bad intentions? Or  Non-intentional? And  Increased chances of large-scale  Obviously incidental? And infringement? Or  Minor consequences  Other undesired effects? Or  International law requires action?

No Yes Yes No

Written warning Proces verbaal and/or enforcement decision

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The Thermphos case as explored by the Committee Mans: highlighting enforcement issues

Thermphos, located in the Dutch Province of Zeeland, is one of the largest phosphor producers in the world. The installation was granted two permits in 1993 (with addendum in 2002) and in 1994 for the production of phosphor.

Between 2000 and 2007, no more than ten complaints were received about odours and respiratory disorders from the neighbouring population. The number of complaints increased regularly to reach 351 in 2010. Investigations in the direct vicinity of the plant showed concentrations in the air that were above the limits. Several times, Thermphos also exceeded it cadmium emission limits.

In February 2004 the province issues a formal warning as Thermphos has exceeded its cadmium emission limits. The warning requested that the company ended the infringement by 1st July 2004 at the latest. In case of non-compliance after this deadline, administrative sanctions would be instigated. In August 2004 Thermphos indicated it was unable to reduce its emissions of heavy metals in the short term, and requested a less stringent temporary limit until the end of 2006, when it was expected a structural solution could be achieved. A plan to do so is presented in November 2004 in the form of the Cadmium Reductionproject (CaRe). In March 2005 the province issued a temporary permit allowing for more emissions of heavy metals, as a bridge towards a structural solution that was to be reached by the end of 2006. On 24 November 2006, Thermphos asked for an extension of the temporary permit until 1 November 2007 because of delays in the CaRe project, and for the permission to emit an extra 6000 kilo of zinc. The Province agreed on 20 March 2007. It can already be noted that it would take until the end of 2010 before CaRe finally brought about the required decrease in heavy metals emissions.

In December 2007, another formal warning is issued when inspection shows that the measurement and registration systems of Thermphos were not sufficiently documented. The company was given until 1 April 2008 to solve the problems, otherwise one or more orders for periodic penalty payments would be issued. The Public prosecutor’s office also issued a warning, stating that if the company would not abide by the warning of the Province, it would order the police to issue a (written) report

On 11 March 2008, a revised permit was issued that complies with the IPPC directive. The permit did not contain limits for dioxins, in spite of requests on behalf of environmental NGOs to do so. One NGO protested against the permit at the Council of State, notably about the lack of investigations on dioxin emissions and about emission limits for heavy metals. The Province explained that the new processes meant a reduction in water pollution but an increase in air pollution as a result.

On 4 December 2008 the province issued an order for periodic penalty payments because Thermphos has exceeded its cadmium emission limit. The company was to pay 25,000 euro for each violation of the monthly maximum amount, with a maximum of 300,000 euro.

On 22 April 2009, the Council of State annuled the permit issued in March 2008 considering, inter alia, that the Province decided on the emission limits in an incorrect manner. As a result, the old permits (of 1993 and 2002) became valid again and the penalty payment issued for cadmium was annulled.

Meanwhile, the company temporarily halted its production due to the economic crisis, but planned to resume work in June 2009. When dioxin emissions were measured, the Province requested to resume operation only after the company had explained which measures it would take to prevent further dioxin emissions. Satisfied that the company will meet these conditions, operation restarted in mid June 2009. RIVM examinations show in October 2009 that dioxin emissions did not bring about any acute dangers for public health.

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In November 2009, the company requested a (temporary) permission not meet the legal norms for a specific amount of time and a new permit that would allow for dioxin emissions of 0.4 ng/m3. The province allowed for a maximum emission of 0.3 ng/m3 on 6 April 2010. In January 2010, two persons living nearby Themphos had requested the province to enforce the norms for inter alia dioxins and for ammonia. The requests were declared admissible but at the same time they were denied. The Province argued that although the company was not complying with legal requirements, legalisation was imminent as the province was to issue a positive decision with regard to the company’s request for a temporary permission and amendments to the permit.

On 20 April 2010, an order for periodic penalty payments was imposed on Thermphos because of its zinc emissions in 2009. The company had one year to comply with the order. But as the new permit was issued in November 2010, the order has never been enforced. Meanwhile, following an inspection, that showed inter alia a lack of supervision, a large number of incidents and gaps in the emergency plans, on 26 April 2010, the VROM-inspectie addressed to the province a letter in which it is explained that the situation was very serious, calling for strict enforcement. It added that the VROM-inspection would otherwise consider issuing a formal request for enforcement. The Province answered that it did not understand the critique as to enforcement.

On 22 June 2010, an order for periodic penalty payments was issued because of exceedance of the cadmium emission limits. Because the validity was one year and a new permit was issued before the end of this time period, again the order is not executed. On 6 July 2010, another order was issued because of safety violations. The company had until August 2010 to take necessarymeasures. For each violation, 5,000 euro was to be paid. This leads to the payment of 10,000 euro.

In mid 2010, the Public Prosecutors office decides to start criminal investigations on violations of the Environmental Management Act by Thermphos in relation to dioxins and heavy metals emissions.

On 15 July 2010, a draft permit to carry out changes was subject to public consultation. This was followed by public discussion, in particular within the media and discussions in the Provincial Executive. Consequently, the tolerance permit of 6 April 2010 for emissions of dioxins was revoked on 19 November 2010. According to the civil servant responsible for enforcement, this was a first step towards closing down the plant (Minutes of DG Provincial Executive, 19 November 2010). It was decided to carry out an independent investigation. At the end of October 2010, an investigation into the oduors emitted showe very high levels with limits for residential areas exceeded by a factor four. Measurements of dioxin emissions by an independent certified bureau revealed that the company’emissions were below the permit conditions as well as below emission limits set in the Dutch emission guideline.345

CaRe brought about results only four years after the initially agreed deadline. Among the reasons for the delays were complications in the implementation of new techniques reducing cadmium emissions. According to some, the company did not have a sense of urgency in the CaRe project implementation, but this did not bring about any enforcement actions from the side of the province. Instead, the province allowed for the delays and only issued a couple of formal warnings and orders for periodic penalty payments. According to the committee Mans, the way in which the matter was dealt with shows that the civil servants felt too much that they were owning the problem and that they were too close to Thermphos’ interests. Mans also noted that the Provincial Executive only got involved in the matter after the television shows. When asked in February 2007 by an NGO about dioxins measurements, the province answered that no such measurements took place because it was expected that the emissions would be very low, while, measurements by Thermphos in October 2008 showed dioxins emissions. This was confirmed by measurements made by the National Institute for Public Health and the Environment, which showed that there was no acute risk for public health.

345 Nederlandse emissierichtlijn, NeR Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 164

Nevertheless, the province put pressure on the company to reduce its dioxin emissions. In the end, however, the company was granted a considerable amount of time - namely until 2015 - to meet the dioxin emission limits.

The committee Mans concluded that the province did not adequately used its permitting, supervising and enforcement competences in the Thermphos dossier, notably because it did not deal with the matter in a coherent and consistent manner. The focus was on partial solutions to parts of the problems, rather than on an integral and adequate solution. The Committee also doubted whether the civil service of the province has enough ‘in house’ expertise on issues like public health, toxicology and medical environmental science, or not.

The Committee also concluded that the Province did not act in a resolute way when rather than enforcing the emission limits, it allowed twice for relaxation of the limits. The company was not encouraged to reduce the emissions of dangerous substances in the short term as a result. Another conclusion is that the civil service was steering the process to a large extend, instead of the Provincial Executive steering the civil service. Also, the Provincial Council was not alert enough.

The main recommendation by the committee Mans is that issuing permits and enforcement is to be regarded as a public task rather than a service to companies. The committee also recommended that special circumstances in an enforcement procedure should be primarily considered as a problem for the company at stake rather than as a problem of the province. It also recommended a better coordination with the public prosecutor’s office in cases of serious violations.

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Annex VI- United Kingdom

Sanctions and procedures applicable to breaches of the legislation on industrial emissions in the UK

Executive Summary

Until recently, ‘administrative sanctions’ as they exist in most EU Member States were not available in the UK for breaches of environmental legislation. The recent introduction of ‘civil sanctions’ in the UK has given regulators additional administrative powers to deal with environmental offences, however currently these do not extend fully to the IPPC regime. For the purposes of this analysis, ‘administrative enforcement measures’ and ‘criminal sanctions’ remain the primary enforcement measures available for breaches of IPPC legislation.

Unlike the legal systems in many EU Member States, there is no separate ‘administrative code’ in the UK for applying administrative sanctions in the event of non-compliance with IPPC obligations. Administrative enforcement measures and criminal sanctions relating to IPPC installations are primarily determined by one piece of legislation, the Environmental Permitting (England and Wales) Regulations 2010, as amended by the Environmental Permitting (England and Wales) (Amendment) Regulations 2010 ( ‘the EP Regulations’), and to a lesser extent by the Environment Protection Act 1990 and the Water Resources Act 1991. This legislation provides the regulator with a range of administrative powers to carry out its enforcement functions. These functions include the power to serve notices for a breach or a likely breach of a permit condition. UK legislation also provides for criminal sanctions to be imposed for specific breaches, such as operating a regulated facility in breach of an environmental permit condition or for failing to comply with an administrative notice.

The way in which these sanctions are applied in practice is determined by reference to various regulatory guidance and criminal procedure documents. These documents provide regulators with clear guidance on the factors to be taken into account when deciding what sanctions to impose. In the UK, the Environment Agency (EA) has its own ‘outcome-focused’ procedure and guidance, which it uses to determine the sanctions it will apply with reference to the outcome to be achieved. This includes the use of administrative measures such as issuing advice, warnings, and notices, as well as applying the criminal procedure to prosecute where it is deemed appropriate. Where a prosecution may be deemed ineffectual, the regulatory authority may apply to the court for a court order or injunction to stop a particular activity from being carried out.

More recently, new civil sanctioning powers were introduced in the UK pursuant to the Environmental Civil Sanctions (England) Order 2010 and the Environmental Civil Sanctions (Miscellaneous Amendments) (England) Regulations 2010. This legislation was made under powers given to the Secretary of State for the Environment in the Regulatory Enforcement and Sanctions Act 2008 and provides regulators with additional enforcement options for certain breaches of environmental law. These include the power to impose Fixed Monetary Penalties (FMP’s), Variable Monetary Penalties (VMP’s) and Stop Notices. These civil sanctioning powers do not currently apply to breaches of the EP Regulations.

The table below indicates the Articles of the IPPC Directive covered by a sanction in the UK. The category of administrative (quasi) criminal sanctions does not exist in the UK, thus this column is left blank in the table below.

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Table 1: Enforceable provisions covered by penalties in the UK

Administrative measures and Administrative (quasi) Article Criminal sanctions sanctions criminal sanctions IPPC Directive Catch-all EP Regulations 2010, Regulation - 20(1), Regulation 22(1), Regulation 36, Regulation 37, Regulation 42, Regulation 57, Schedule 22, Paragraph 9, Schedule 22, Paragraph 10 4 - EP Regulations 2010, Regulation 12(1) 5 - - 6 - EP Regulations 2010, Schedule 7, paragraph (4) 12 (1) - EP Regulations 2010, Schedule 7, paragraph 5(1)(d)) 12 (2) - EP Regulations 2010, Schedule 7, paragraph 5(1)(d)) 14 (a) - - 14 (b) - EP Regulations 2010, Schedule 7, paragraph 5(1)(e)) 14 (c) - -

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1. Applicable sanctions

1.1. Overview of UK legislation

UK legislation is composed of three different jurisdictions: i) England and Wales, ii) Scotland and iii) Northern Ireland. Each jurisdiction has separate secondary legislation, enforcement bodies and procedures. For the purposes of this study, however, the ‘UK’ specifically refers only to the legislation and legislative procedures in England and Wales.

UK legislation in respect of industrial installations has undergone significant change in recent years. The first phase of changes to the ‘environmental permitting’ regime was introduced by the Environmental Permitting (England and Wales) Regulations 2007, which established a common permitting programme for waste and pollution permitting and control regimes, replacing 41 separate sets of regulations.346 In 2010, The Environmental Permitting (England and Wales) Regulations 2010 (“the EP Regulations”) were introduced as a second phase of environmental permitting. These Regulations revoked the 2007 Regulations and extended the common permitting system to bring all permitting regimes under a single system. The Regulations set out the obligations of operators as well as the powers and enforcement tools available to the regulators for handling instances of non- compliance.

Furthermore, prior to April 2010 the UK legal system was different from the continental legal systems of other EU Member States in that ‘civil sanctions’ were not available as a means of enforcing environmental legislation. However, major legislative changes in April 2010 introduced new powers for the regulators to impose civil sanctions for a range of environmental offences. Although these powers are not currently applicable to industrial installations, an understanding of these new enforcement powers along with their development and policy background will be considered here.

The majority of IPPC installations (approximately 90%) are regulated by the EA347, the remainder are regulated by local authorities. Pursuant to Regulation 32 of the EP Regulations 2010, the EA is responsible for Part A(1) installations, Part A(1) mobile plant and certain Waste Operations. Local authorities are responsible for the regulation of Part A(2) installations and Part A(2) mobile plant348 as well as Part B installations and Part B mobile plant. Local Authorities are not responsible for waste operations (unless it is part of a Part B activity). The full scope and classification of installations are set out in Schedule 1, Part 2 to the Regulations.

The EA guidance defines “sanction” as an enforcement requirement (such as a notice), a binding legal agreement or even a penalty applied by them or by a court.349

1.2. Description of administrative sanctions in the UK

Regulations 32 to 35 of the EP Regulations set out the regulator’s discharge of functions in relation to a regulated facility. For example, Regulation 34 requires the regulator to periodically review environmental permits and make appropriate periodic inspections of regulated facilities. Regulation 35 applies specific provisions to those regulated facilities which require environmental permits. These provisions are specified in the Schedules to the EP Regulations, of which Schedules 7 and 8 are of specific relevance to IPPC installations. For example, paragraph 4 of Schedule 7 requires the regulator to ensure that every application for the grant of an environmental permit includes the information specified in Article 6(1) of the IPPC Directive. Paragraph 5 of Schedule 7 also requires the regulator to

346 Environmental permitting summary: http://www.defra.gov.uk/environment/policy/permits/documents/ep2010booklet.pdf 347 Assessment of the Implementation of the IPPC Directive in the UK, Final Report, ENTEC, January 2008 page 19 348 The Environmental Permitting (England and Wales) Regulations 2010, Regulation 32. Also see local authorities general guidance manual: http://www.defra.gov.uk/environment/quality/pollution/ppc/localauth/pubs/guidance/manuals.htm 349 Environment Agency, Enforcement and Sanctions – Guidance, Page 3 Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 169

exercise its ‘relevant functions’ so as to ensure compliance with specific provisions in the IPPC Directive. A failure of the operator to comply with any of the specified provisions will trigger the statutory power of the regulator to ‘exercise its relevant functions’ . The ‘Relevant functions’ of the regulator are set out at Regulation 9 and include the power to serve:

 Enforcement notices (Regulation 36 of the EP Regulations) to restore or remediate harm or damage or to bring an activity or operation under regulatory control. This may be served where an operator has contravened, is contravening or is likely to contravene an environmental permit condition.  Suspension notices (Regulation 37 of the EP Regulations) to stop offending or to bring an activity or operation under regulatory control. They may also include remediation steps;  Prohibition notices in respect of Groundwater activities (Schedule 22, Paragraph 9 of the EP Regulations) to stop a specific activity which has a certain polluting effect on groundwater. These may be served on any person who is carrying out or proposing to carry out an activity that might lead to a direct or indirect discharge to groundwater;  Variation notices (Regulation 20(1) of the EP Regulations) in order to bring a permitted activity or operation under regulatory control. This authorises the regulator to vary a permit on the application of the operator or on its own initiative, e.g. where the regulator believes that a permit condition does not address an issue as clearly or specifically as it could.350  Revocation notices (Regulation 22(1) of the EP Regulations) in order to stop offending. This may be used where other enforcement tools have failed to protect the environment (however it is rarely used in practice)351;  Notices requiring a permit (Schedule 22, paragraph 10 of the EP Regulations). This may be used in order to stop offending for a specific groundwater activity. It allows the regulator to serve a notice on any person who is, or is intending to carry out an activity on or in the ground that might lead to the direct or indirect discharge of pollutants to groundwater, and require them to hold an environmental permit.

Table 2 below indicates the types of offences and related penalties in the UK for each of the key enforceable obligations under the IPPC Directive. It should be noted that there are no specific administrative penalties in the UK for each of the four obligations. However, please refer to sections 1.5 and 1.6 on the administrative sanctions which are available to the regulator.

350 Environment Agency Regulatory Guidance Series No 11, Enforcement powers, point 3.16 351 Environment Agency Regulatory Guidance Series No 11, Enforcement powers, point 3.57 Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 170

Table 2: Directive 2008/1/EC (IPPC Directive): types of offences and related criminal penalties in the UK

Criminal

Offences Penalties

Obligation to apply for a Failure to operate a regulated facility with an environmental permit, or to A person guilty of an offence under Regulation 38(4) (failure to comply with a permit for new or existing knowingly cause or permit the contravention of s12(1) notice under Regulation 60(1) requiring the provision of information) is liable: installations Regulation 38(1) Environmental Permitting (England and Wales) Regulations 2010  on summary conviction to a fine not exceeding £50,000 (Euros 59,772) or imprisonment for a term not exceeding 12 months, or to both; or  on conviction on indictment to a fine or imprisonment for a term not exceeding 5 years, or to both. Regulation 39(1) Environmental Permitting (England and Wales) Regulations 2010 Obligation to supply No specific offence for failure to supply information on the application, but  on summary conviction to a fine not exceeding £50,000 (Euros 59,772) or information for application the Regulation requires regulator to ensure that application includes the imprisonment for a term not exceeding 12 months, or to both; or for permits relevant information under the Directive. Schedule 7Para 4(1)  on conviction on indictment to a fine or imprisonment for a term not exceeding 5 years, or to both. Failure to comply with a notice under Regulation 60(1) requiring the provision Regulation 39(1) of information. Regulation 38(4) Obligation to notify the No specific offence for failure of operator to notify, but Regulation requires No specific penalties for failure of operator to notify, but Regulation requires competent authority of any regulator to ensure compliance with the relevant provisions of the Directive. regulator to ensure compliance with the relevant provisions of the Directive. changes in the operation of Schedule 7, Paragraph 5(1) Schedule 7, Paragraph 5(1) an installation For example, pursuant to Regulation 34, the regulator must periodically A person guilty of an offence under Regulation 38(3) (failure to comply with review environmental permits and make appropriate periodic inspections. If the requirements of a notice specified in that Regulation, such as an the regulator considers that the operator has contravened a permit condition, Enforcement Notice) is liable: then they may serve an Enforcement Notice.  on summary conviction to a fine not exceeding £50,000 (Euros 59,772) or Failure to comply with the requirements of an enforcement notice constitutes imprisonment for a term not exceeding 12 months, or to both; or an offence. Regulation 38(3)  on conviction on indictment to a fine or imprisonment for a term not exceeding 5 years, or to both. Regulation 39(1) Obligation to comply with Failure to comply with/contravene an environmental permit condition  on summary conviction to a fine not exceeding £50,000 (Euros 59,772) or the conditions set in the Regulation 38(2) imprisonment for a term not exceeding 12 months, or to both; or permit or mandatory ELV’s  on conviction on indictment to a fine or imprisonment for a term not exceeding 5 years, or to both. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 171

Regulation 39(1) *ELVs: Emission Limit Value

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1.3. Additional (miscellaneous) administrative powers include:

 Remediation notices (Regulation 57 of the EP Regulations) in order to prevent or remedy pollution. This gives the regulator the power to arrange for steps to be taken to remove a risk of pollution where the operation of a regulated facility under a permit involves a serious risk. It also gives the regulator the power to remedy the effects of pollution if the commission of certain offences (e.g. operating without a permit) cause pollution, or it suspects that an offence is being or has been committed and pollution is being or has been caused as a result. If the Regulator arranges for steps to be taken, it may recover the cost of taking those steps from the operator;

 The power to obtain enforcement by the High Court (Regulation 42) This may be in the form of: o a court order to either stop an activity or to carry out a particular activity. If the regulator considers that proceedings for a breach of notice (constituting a criminal offence) would afford an ineffectual remedy, it may take proceedings in the High Court in order to secure compliance with the notice; or o an injunction to restrain any criminal act, particularly where a fast response is required;352

 Stop notice (Section 46 of the Regulatory Sanctions and Enforcement Act 2008 (RESA)). This provides regulators with new civil sanctions, where they reasonably believe that an offence under section 33(1) of the Environmental Protection Act 1990 has been or is likely to be committed (by any natural or legal person) for the unauthorised or harmful deposit, treatment or disposal etc of waste, and where they reasonably believe that the activity is causing, or poses a significant risk of causing, serious harm to human health or the environment. A stop notice prohibits a person from carrying out of an activity until the steps specified in the notice have been taken. It should be noted that while Stop notices are not currently available as a means of enforcement for breaches of the EP Regulation, the ‘suspension notice’ power (identified in section 1.4 above) essentially amounts to the same thing.

 Information notice (Regulation 60 of the EP Regulations, Section 71 of the Environmental Protection Act 1990 in relation to waste, and Section 202 of the Water Resources Act 1991), requiring any person to provide such information within such period as specified in the notice.

 Anti-Pollution Works notice (Section 161A Water Resources Act 1991) – to prevent or remedy pollution of controlled waters. It requires the person on whom it is served to carry out specified works or operations, where it appears that any poisonous, noxious or polluting matter or waste is present in any waters or any controlled waters are being/have been/likely to be harmed.

 Statutory Nuisance (Part III Environmental Protection Act 1990, (EPA)). Where a local authority is satisfied of the existence or of the likely occurrence or recurrence of a statutory nuisance, it must generally serve an abatement notice in accordance with section 80(2) of the EPA. An abatement notice may be served on the person responsible for the nuisance, on the owner of the premises (where the nuisance arises from any structural defect), or on the owner or occupier of the premises (where the person responsible cannot be found or the nuisance has not yet occurred). The notice may require the abatement of the nuisance or prohibit or restrict its occurrence or recurrence, or require the execution of works and the taking of other steps as may be necessary (section 80(1)). The EPA lists those activities which are deemed to be statutory nuisances, the basic requirement being that the activity must be considered either a

352 Environment Agency Regulatory Guidance Series No 11, Enforcement powers, point 4.2. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 173

nuisance or prejudicial to human health.353 Statutory nuisances may include: smoke emitted from premises, any dust, steam, smell or other effluvia, any accumulation or deposit or noise emitted from premises.

Most notices under the EP Regulations may only be served on the ‘operator’ of the regulated facility. Pursuant to regulation 7 of the EP Regulations, the ‘operator’ is the person who has control over the regulated facility. However, prohibition notices, stop notices, information notices, anti-pollution works notices, notices requiring a permit and abatement notices may be served on any relevant ‘person’ (natural or legal).

Table 3: Number of EA prosecutions, formal cautions and enforcement notices issued 2008 – 2010 Year Number of Number of Formal cautions Enforcement prosecutions prosecutions issued Notices commenced successful issued

2008 5 5 3 29

2009 6 5 6 10

2010 3 3 5 5

Source: Environment Agency

2. Administrative procedure

2.1 General elements on the legal tradition and potential evolution

2.1.1 Regulatory guidance

Although UK legislation lays down the administrative powers of the regulators, the way in which these powers are applied in practice is determined by reference to various guidance documents. These include documents by the Department of the Environment and Rural Affairs (DEFRA),354 as well as the Regulators’ Compliance Code355, and the Cabinet Office Enforcement Concordat356 which ‘contain important safeguards to ensure that any enforcement action taken is proportionate to the risks posed to the environment and to the seriousness of any breach of the law.’”357 These documents include guidance on risk assessment, compliance, enforcement and inspections of regulated facilities.

2.1.2 Aims of administrative sanctions/measures

The Regulators’ Compliance Code (RCC) which is incorporated into the Environment Agency’s

353 Environmental Protection Act 1990, Section 79. 354 DEFRA: Core Environmental Permitting guidance (v 3.1) - updated March 2010. Contains guidance for those operating, regulating or interested in facilities that are covered by the Environmental Permitting (England and Wales) Regulations 2010 SI 2010 No.675 (as amended) (‘the Regulations’). http://www.defra.gov.uk/environment/policy/permits/documents/ep2010guidance.pdf. Also see local authorities general guidance manual: http://www.defra.gov.uk/environment/quality/pollution/ppc/localauth/pubs/guidance/manuals.htm 355 Statutory Code of Practice for Regulators, Department for Business Enterprise and Regulatory Reform, 17 December 2007. http://www.berr.gov.uk/files/file45019.pdf. This document incorporates the Hampton principles of effective inspection and enforcement, available at http://www.berr.gov.uk/files/file22988.pdf 356Enforcement Concordat, 1998 //www.berr.gov.uk/bre/inspection-enforcement/implementing-principles/regulatory- compliance-code/enforcement/page46822.html 357 DEFRA: Core Environmental Permitting guidance (v 3.1) - updated March 2010, page 56 Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 174

enforcement policy358 provides guidance to regulators on appropriate compliance and enforcement actions. Regulation 8.3 of the RCC states that when devising and implementing regulatory policies, regulators are required to ensure that their sanctions and penalties policies are consistent with the Macrory Penalty Principles (see section 2.1.3 below).359 This means that their sanctions and penalty policies should:

i) Aim to change the behaviour of the offender; ii) Aim to eliminate any financial gain or benefit from non-compliance; iii) Be responsive and consider what is appropriate for the particular offender and regulatory issue, which can include punishment and the public stigma that should be associated with a criminal conviction; iv) Be proportionate to the nature of the offence and the harm caused; v) Aim to restore the harm caused by regulatory non-compliance, where appropriate; vi) Aim to deter future non-compliance.

2.1.3 Environment Agency approach to regulation

As well as following the Macrory Penalty Principles, the Environment Agency sets out 5 principles underlying their commitment to ‘firm but fair regulation’:  proportionality in the application of law and in securing compliance;  consistency of approach;  transparency about how the Environment Agency operates and what those they regulate may expect from them;  targeting of enforcement action; and  accountability for the enforcement action the they have taken;360

The Environment Agency has its own enforcement and sanctions guidance to help decide the appropriate course of action which it will take in cases of non-compliance with the law.361 This includes an ‘Offence Response Options’ document which EA staff use when considering what responses are available to achieve its outcomes.362 The term ‘enforcement’ includes any action where it suspects an offence has occurred or is about to occur. The EA explains its approach in applying the legislation as follows:

‘We will use the full range of enforcement and sanctioning tools that are available to us, in combination if necessary, to achieve the best outcomes for the environment and for people. This may range, for example, from providing advice and guidance through to prosecution. Within this overall approach, where an offence has been committed we will consider issuing some form of sanction as well as any other preventative or remedial action taken to protect the environment and people’.363

The primary purpose of the EA’s approach to compliance monitoring and enforcement is to ensure that an unacceptable risk of harm or pollution does not occur or will not be repeated and that legitimate business is not undermined.364 Its approach to enforcement is described as ‘outcome-

358 Environment Agency Regulatory Guidance Series No 11, Enforcement powers, point 1.6 359 Regulator’s Compliance Code, Statutory Code of Practice for Regulators, http://www.berr.gov.uk/files/file45019.pdf. Regulation 8.3 refers to the principles set out in ‘Regulatory Justice: Making Sanctions Effective’, Final Report, Professor Richard Macrory, November 2006 http://www.berr.gov.uk/files/file44593.pdf 360 Environment Agency, Enforcement and Sanctions - Statement, Page 4 361 See Environment Agency: Enforcement Powers, Guidance Series No.11: http://www.environment- agency.gov.uk/static/documents/Business/RGN_No__11_Enforcement_powers.pdf and the Environment Agency’s Enforcement and Sanctions Guidance http://publications.environment-agency.gov.uk/pdf/GEHO0910BSZL-E-E.pdf 362 Offence Response Options (ORO) document: http://publications.environment-agency.gov.uk/pdf/GEHO0910BSZN-E- E.pdf, 4 January 2011 363 Environment Agency, Enforcement and Sanctions Guidance, Page 3 364 Environment Agency Regulatory Guidance Series No 11, Enforcement powers, point 1.16. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 175

focused’ ” i.e. it considers the environmental outcomes to be achieved when deciding which enforcement and sanctioning tools to use.365 i) Advice and Guidance: As an initial enforcement measure, the EA will normally provide advice and guidance after the commission of an offence or where an offence is likely to be committed, unless this would have the effect of undermining any enforcement action.366 The primary aim of providing such advice and guidance is to assist the operator in complying with its legal obligations. In cases of minor infringement, this may merely involve pointing out the issue to the operator. However, unless the offence is very minor and the operator can demonstrate its compliance as soon as reasonably practicable the EA is likely to take additional enforcement measures. Moreover, its guidance states that any advice or guidance is provided without prejudice to any of the EA’s other enforcement responses in the event of non-compliance.367 ii) Warnings: A warning or site letter may also be deemed appropriate in response to a minor breach of a condition or where an offence is suspected to have taken place. A warning may be issued with the aim of achieving any of the four types of environmental outcomes described below (see section iii ‘other measures’ below).368 A Compliance Assessment Report (CAR1) form may also be used to record details of the breach, and an action plan with timescales may be agreed and recorded on the form.369 iii) Other measures: Where issuing advice and guidance or a warning do not achieve the objective, or in more serious cases, it may be considered more proportionate to consider other measures such as an enforcement notice or criminal sanctions. In more serious cases, a suspension notice or even a revocation notice may be more appropriate.370 As part of the EA’s ‘outcome-focused’ approach to enforcement, these other measures (and corresponding tools) are divided into four categories:371

Outcome/Aim Prescribed action 1. To stop offending (with the aim of stopping  Suspension notice (Regulation 37) an illegal activity from  Prohibition notice (Schedule 22, paragraph 9) continuing/occurring):  Notice requiring a permit (Schedule 22, paragraph 10)  Revocation notice (Regulation 22)  Anti-Pollution Works notice (section 161A of the Water Resources Act 1991)  Court Order (Regulation 42)  Injunction (Regulation 42) 2. To restore and/or remediate (with the aim  Enforcement notice (Regulation 36) of putting right environmental harm or  Remediation notice (Regulation 57) damage that has already occurred): 3. To bring under regulatory control (with  Variation notice (Regulation 20) the aim of bringing an illegal activity into  Enforcement notice (Regulation 36) compliance with the law):  Suspension notice (Regulation 37)  Remediation notice (Regulation 57)

365 For the purposes of the Environment Agency’s own guidance, a sanction is defined as an ‘enforcement requirement (such as a notice), a binding legal agreement or even a penalty applied by us or by a court’. 366 Environment Agency Regulatory Guidance Series No 11, Enforcement powers, point 2.3. 367 Environment Agency Enforcement and Sanctions Guidance, point 6.1 368 Enforcement and Sanctions Guidance, point 6.2 369 Environment Agency Regulatory Guidance Series No 11, Enforcement powers, point 1.18 370 Environment Agency, Regulatory Guidance Series number 11, point 1.18 371 Environment Agency, Enforcement and Sanctions Guidance, Page 4. The prescribed actions specified here are those which are relevant to IPPC obligations Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 176

4. To deter and/or punish (with the aim of  Offences (see section below on criminal punishing an offender and/or deterring future sanctions) offending):  Injunction (see above under Outcome/Aim 1)  Stop notice (Section 46 of the Regulatory Sanctions and Enforcement Act 2008) iv) Public interest factors: The EA will also take a number of ‘Public interest factors’ into consideration when deciding on the type and severity of sanction. These include:

 Intent of the operator: Offences committed deliberately, recklessly or with gross negligence are more likely to result in prosecution.

 Foreseeability: Where the circumstances leading to the offence could reasonably have been foreseen and no avoiding/preventative measures were taken, the response will normally go beyond advice/guidance or a warning.

 Environmental effect: The response will address the potential and actual harm to people and environment. Normally, where an offence is classified as category 1 or 2 under the Common Incident Classification Scheme (CICS) or Compliance Classification Scheme (CCS) (see section 2.2.5 iii) below), the EA will consider a prosecution, caution or Variable Monetary Penalty (VMP, a civil sanction).

 Nature and seriousness of the offence: e.g. providing false or misleading information or outright criminal activity will normally lead to a prosecution.

 Financial implications: e.g. where profits are made or costs are avoided, this will normally lead to a VMP or prosecution.

 Deterrent effect: on the offender and others will be taken into account when choosing a sanction.

 Previous history and repeat offending: The degree of offending and/or non-compliance will be taken into account

 Attitude of the offender: A poor attitude towards the offence or uncooperativeness with investigation or remediation will normally lead to a prosecution or VMP.372

The EA’s general approach to enforcement is set out in its Enforcement and Sanctions Guidance, which includes a ‘Sanctions decision tree’ to help its staff decide the best course of action to take (Annex I).

2.1.4 Development of a new approach to civil sanctions373

In 2005, a report by Sir Philip Hampton set out principles for better regulation.374 These are now incorporated in the Regulator’s Compliance Code (as mentioned in Section 2.1.2 above) to which Regulators must have regard. The report concluded that sanctions were not a deterrent to serious non- compliance and proposed a review of penalty regimes (which was subsequently carried out by Professor Richard Macrory in 2006). The resultant report, 'Regulatory Justice: Making Sanctions Effective' concluded that the existing system was too heavily reliant on criminal prosecutions which

372 Environment Agency’s Enforcement and Sanctions Guidance, page 12 373 Civil sanctions are expected to extend to the Environmental Permitting (England and Wales) 2010 from April 2011. 374 Philip Hampton, ‘Reducing administrative burdens: effective inspection and enforcement’. This document sets out the Hampton principles of effective inspection and enforcement Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 177

were not always a proportionate response to the seriousness of the offence. The report recommended a broad 'toolkit' of civil sanctions for regulators to promote and enforce regulatory compliance. Among its recommendations included the extension of flexible administrative monetary sanctions and the strengthening of statutory notices to work alongside the criminal law in combating non-compliance. It was believed that such regulatory sanctions would provide a more flexible and proportionate approach to non-compliance and help to resolve many cases more quickly and effectively. In response, the Regulatory Enforcement and Sanctions Act (RES) 2008 was introduced to create enabling powers for a range of civil sanctions. These civil sanctions include:

 Compliance notice: A requirement to take specified steps within a stated period to secure that an offence does not continue or happen again.

 Restoration notice: A requirement to take specified steps within a stated period to secure that the position is, so far as possible, restored to what it would have been if no offence had been committed.

 Enforcement undertaking: enabling a person, whom a regulator reasonably suspects of having committed an offence, to give an undertaking to a regulator to take one or more corrective actions set out in the undertaking.

 Fixed monetary penalty (FMP): A requirement to pay a monetary penalty of a fixed amount.

 Variable monetary penalty (VMP): A requirement to pay a monetary penalty of an amount determined by the regulator reflecting the circumstances of the offence.

 Third party undertaking: enabling a person who has received a regulator’s notice of intent to impose a VMP, for example, to give a commitment to take action to benefit a third party affected by the non-compliance.

 Stop notice: A requirement for a person to stop carrying on an activity described in the notice until it has taken steps to come back into compliance.

On 6th April 2010 the Environment Agency received new formal powers pursuant to the Environmental Civil Sanctions (England) Order 2010 and The Environmental Sanctions (Miscellaneous Amendments) (England) Regulations 2010. These new powers allow regulators to impose the above civil sanctions for a range of environmental offences.375 Currently these new civil powers are not directly applicable to the Environmental Permitting (England and Wales) Regulations 2010. However, they may be applied where the regulator has reasonable grounds to believe an offence under section 33(1) of the Environmental Protection Act has been or is likely to be committed (for the unauthorised or harmful deposit, treatment or disposal etc of waste). For example, a Stop Notice pursuant to Section 46 of the Regulatory Enforcement and Sanctions Act (RES) 2008 may be served to prohibit a person from carrying out of an activity until steps specified in the notice have been taken. The aim of these civil sanctions is to provide flexibility as well as a more proportionate and effective response to non-compliance.376

2.3 Inspections

2.2.1 General information

375 Currently the instruments only apply to England. The Welsh Assembly Government is considering introducing similar instruments which would enable the Environment Agency to use civil sanctions in Wales. 376 See DEFRA document: Civil sanctions for environmental offences, Guidance to regulators in England on how the civil sanctions should be applied, and draft guidance for Wales, January 2010 Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 178

According to the Environment Agency, a total of 2481 facilities377 fall within the scope of the Environmental Permitting (England and Wales) Regulations 2010, for which are currently 246 dedicated Pollution Prevention and Control (PPC) officers and approximately 3000 warranted officers who play a role in inspection and/or enforcement activities relating to IPPC installations. In 2010, the Environment Agency conducted between 6000-6500 inspections, and spent a total of 223,460 hours on inspection and enforcement of IPPC facilities. During the same period, a total of £28,9 million was generated from these facilities by way of the Environment Agency’s ‘Subsistence charge’ (see Section 2.2.2 b ii) below).

2.2.2 Key Elements of the inspection procedure

The inspection powers of UK regulators are determined by legislation and policy guidance. Regulation 34(1) of The Environmental Permitting (England and Wales) Regulations 2010 requires the regulator to periodically review permits, while regulation 34(2) states that the regulators must undertake periodic inspections of regulated facilities. However the EP Regulations do not provide specific requirements on how or when inspections or a review of permits should take place.

In certain cases, the regulator may be able to exercise specific inspection powers where it is deemed reasonable to do so. Section 108 of the Environmental Protection Act 1995 (EPA) provides powers of entry to an enforcing authority (which includes the Environment Agency and local authority) to investigate, where there are reasonable grounds to believe it is necessary, for any one the following three purposes:

1. To determine whether pollution control law is being complied with; 2. To exercise or perform one or more of the pollution control functions of that authority; 3. To determine whether and if so, how such a function should be exercised or performed;

Pursuant to section 108(1) of the EPA, an inspecting person must be authorised in writing and must act in accordance with that authorisation. Section 108(4)(a) states that entry must be at a reasonable time, or at any time in the event of an emergency. Section 108(4)(c) states that the authorised person is permitted to carry out such examination and investigation as may be necessary. This may include the taking of measurements, photographs and making such recordings as considered necessary for the purposes of such examination or investigation, pursuant to s108(4)(e). The authorised person may also, on giving at least seven days’ notice, carry out experimental borings and install, keep or maintain monitoring and other apparatus. Such notice is not required in an emergency (Section 108(5) and (6)).378 a) Policy Guidance

The ways in which regulators exercise their inspection powers are also derived from policy guidance. The Hampton Report lays down the basic principles relating to inspection and enforcement to which regulators must have regard. The first principle states that ‘Regulators should use comprehensive risk assessment to concentrate resources on the areas that need them most ’. It also states that ‘No inspection should take place without a reason’ .379

Regulation 6 of the Regulatory Compliance Code states that ‘ Regulators should ensure that inspections and other visits, such as compliance or advice visits, to regulated entities only occur in accordance with a risk assessment methodology…except where visits are requested by regulated entities, or where a regulator acts on relevant intelligence.’380

377 Excluding farms and “Low Impact Installations” (LII’s) 378 The Environment Protection Act 1995, section 108 379 Philip Hampton, Reducing administrative burdens: effective inspection and enforcement’, page 7 380 The Regulators’ Compliance Code p 14 Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 179

In addition, DEFRA, in its Core Environmental Permitting Guidance, states that risk-based compliance assessment should:  Target facilities that: pose the greatest risk to the environment or human health; have poorer standards of operation; fail to comply with terms and conditions of the permit; or have a greater adverse impact;  Reduce the regulatory burden on operators whose standard of operations are consistently high; and  Take into account the different stages in the lifetime of a facility;

DEFRA also states that checking compliance with the terms and conditions of the permit is the principle way of assessing the operator’s performance in relation to its responsibility for ensuring that the regulated facility does not cause pollution.381 The inspection process can include reviewing information from the operator as well as carrying out independent monitoring, site inspections, in- depth audits and other compliance-related work. DEFRA also makes it clear that the regulator’s policies and procedures for the environmental permitting regime should have regard to the Recommendation of the European Parliament and of the Council (2001/331/EC).382 b) Environment Agency Approach

The EA’s approach to inspections reflects their risk-based methodology for compliance assessment. Operators are primarily responsible for providing information for permit applications and for self- monitoring of their activities. This is supported by the EA’s sector-specific and technical and regulatory guidance, which sets out its approaches for identifying and assessing the risks associated with particular activities.383

The EA also uses its Pollution Inventory to provide an annual record of pollution in England and Wales from selected activities. Pursuant to section 60(1) of the EP Regulations, operators are required to complete a pollution inventory reporting form, providing the EA with data on annual emissions. Some of this data is available on the EA’s website on its ‘What’s in your backyard’ service.384 In addition, the EA uses a number of tools to monitor compliance and to assess the risk from facilities. The Operator Monitoring Assessment (OMA) enables the Environment Agency to assess the quality and reliability of self-monitoring, while inspections are based on Operational Risk Appraisal (OPRA), The Common Incident Classification Scheme (‘CICS’), Compliance Classification Scheme (CCS), and Compliance Assessment Plans (CAPs).385 The information gathered from these tools is used to identify those facilities which pose the greatest risk and can be used as a basis for inspections. i) Operator Monitoring Assessment (OMA)

An OMA is carried out by an EA Officer who interviews relevant site personnel, views appropriate documentation and inspects the monitoring location. The EA records relevant information that reflects the quality and reliability of operators’ self-monitoring and associated issues. The results are used to assess operator’s self-monitoring and to provide an indication of required improvements. They are also used to help prioritise and target the EA’s independent monitoring/auditing of point source emissions.386 The OMA applies the Monitoring Certification Scheme (MCERTS), which provides the

381 DEFRA: Core Environmental Permitting guidance (v 3.1), point 11.3 382 DEFRA: Core Environmental Permitting guidance (v 3.1), point 11.6 383 See Environment Agency’s Horizontal Guidance Note H1, Environmental risk assessment for permits 384 Available on the Environment Agency’s website: http://www.environment- agency.gov.uk/business/topics/pollution/32314.aspx 385 National Audit Office, Effective Inspection and enforcement: Implementing the Hampton vision in the Environment Agency, page 29 Available at http://www.nao.org.uk/publications/0708/hampton_environment_agency.aspx 386 Environment Agency, Guidance on undertaking an Operator Monitoring Assessment of emissions to air and /or water, Version 3, 2009 http://publications.environment-agency.gov.uk/pdf/GEHO0409BPZD-e-e.pdf. A list of monitoring guidance documents used by the Environment Agency can be found at http://www.environment- agency.gov.uk/static/documents/Business/mon_guide_summary.pdf Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 180

framework for the Environment Agency’s quality requirements by monitoring activities that affect the environment.387 ii) Operational Risk Appraisal

Operational Risk Appraisal (Opra) is a screening tool used to assess the risk to the environment from sites that are regulated with environmental permits. Opra uses five elements to assess the level of risk of the activities carried out at the site, each of which is graded from A (low risk) to E (high risk):  Complexity (e.g. activities carried out, potential for accidents; size; public confidence);  Location (e.g. proximity to habitation; proximity to sensitive sites; potential for direct releases to water; flooding; air quality management zones);  Emissions (e.g. type and quantity; media; impact);  Operator performance (e.g. presence/ absence of management systems; enforcement history);  Compliance rating (e.g. compliance with permit conditions; potential impact of non-compliance; additional effort to manage; non-compliance).388

Each activity carried out at the installation is converted to an Opra-band rating of A-E, or A-F for compliance rating, depending on the complexity of the operation and the level of ‘regulatory effort’ required.389 The information is used to inform the EA’s decisions on resource allocation, thereby allowing it to target facilities which pose the greatest risk. The bands are also used to calculate the operator’s annual subsistence charge payable to the EA.390 The subsistence charge is an annual fee charged by the EA used to recover the costs incurred through ongoing regulation. iii) Compliance Classification Scheme

The Compliance Classification Scheme (CCS) is a compliance tool used to classify offences for non- compliance with permit conditions. The scheme categorises non-compliance based on the potential of the facility to cause environmental damage. The different categories of non-compliance are:  Category 1 – likely to lead to a major pollution  Category 2 – likely to lead to significant pollution  Category 3 - likely to lead to some (minor) pollution  Category 4 – no or negligible impact

For example, a CCS category 1 would indicate non-compliance with a condition that, if classified as an incident, would have the potential to have a major environmental impact. Similarly, a CCS category 2 would indicate non-compliance with a condition that, if classified as an incident, would have the potential to have a significant environmental impact. As specified in section 2.1.3 iv) public interest factors (above), Category 1 or 2 incidents are more likely to result in a prosecution, formal caution, or Variable Monetary Penalty.391 392 iv) Compliance Assessment Plans (CAPs)

CAPs are used for planning compliance assessment work. They set out specific objectives along with the Environment Agency resources assigned to each of the compliance activities (including

387 For further information on the Environment Agency’s approach to monitoring emissions, see http://www.environment- agency.gov.uk/business/regulation/31829.aspx 388 Environment Agency, Environmental Permitting Regulations Operational Risk Appraisal Scheme (Opra for EPR); Opra for EPR version 3.5 Annex A, Opra scheme for installations, April 2010 http://www.environment- agency.gov.uk/pdf/GEHO0410BSFB-e-e.pdf 389 See: Opra for EPR version 3.5 Annex A, Opra scheme for installations, page 3 390 Effective Inspection and enforcement: Implementing the Hampton vision in the Environment Agency, page 16 391 Currently the only offence to which Civil Sanctions may applicable to IPPC installations is a stop notice issued pursuant to Section 46 of the Regulatory Sanctions and Enforcement Act 2008 392 Environment Agency, Enforcement and Sanctions Guidance, page 12 Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 181

inspections and audits). Sector CAPs contain objectives relevant for a particular industry sector and set out the proportion of effort that should be directed to each of the five generic compliance activities.393 c) Local Authority Approach

It is not possible here to provide details of the inspection approach adopted by each local authority. However, DEFRA has published general guidance in respect of Local Authority Integrated Pollution Prevention and Control (LA-IPPC) for (A2) installations and Local authority Pollution Prevention and Control (LAPPC) for Part B processes. This includes guidance on when and how permit conditions should be reviewed, as well as the requirements for inspection, monitoring and reporting.394 As with the Environment Agency, there are risk-based inspection methodologies which should be applied by local authorities.395 These include assessing each installation against specified criteria, which falls into two categories: i) Environmental impact appraisal and ii) Operator performance appraisal.396 Both categories are evaluated by scoring the process against a number of different components, which are listed in the relevant methodology. The four main steps involved in the methods are:

STEP 1: desk-based scoring of processes STEP 2: use of score sheets during inspection visits STEP 3: use of scoring to determine regulatory effort and charges STEP 4: review scores on a regular basis

The guidance states that scores for each process should be reviewed on a regular basis, and at least annually. In particular, it advises that scores should be reviewed following visits, any changes to the permit, receipt of complaints, or when enforcement action is taken. Under each method, installations are rated as ‘high’ ‘medium’ or ‘low’ risk. The required minimum required levels of inspection are attributed according to the risk, reflecting the regulatory effort involved. ‘ Regulatory effort’ refers to the full range of activities needed to regulate the process: not just inspection, but time spent at the office preparing for inspections, writing reports and reviewing data supplied by operators.

2.2.3 The inspectors’ powers

The main powers of inspectors are primarily determined by two pieces of legislation, the Environment Act 1995 and The Environmental Damage (Prevention and Remediation) Regulations 2009. Sections 108 and Regulation 31 respectively provide the following powers:

An authorised officer, for the purpose of:  Determining whether and how any power of duty conferred on the Environment Agency should be exercised of performed; or  Exercising any such power or duty; or  Ascertaining whether any pollution control provision is being or has been complied with,

May carry out the following:  enter premises with other officers and equipment if need be by force;  Make necessary examinations and investigations, and direct that premises or property remain undisturbed for that purpose;  Take measurements, photographs, recordings and samples;

393 National Audit Office, Effective Inspection and enforcement: Implementing the Hampton vision in the Environment Agency, page 29 394 DEFRA General Guidance Manual on Policy and Procedures for A2 and B Installations http://www.defra.gov.uk/environment/quality/pollution/ppc/localauth/pubs/guidance/manuals.htm 395 The methods can be found at http://www.defra.gov.uk/environment/quality/pollution/ppc/localauth/fees-risk/index.htm 396 Operator performance appraisal applies to all sectors. It should be noted however that several sectors have additional sector-specific risk tests which apply. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 182

 Require the giving or production of information relevant to any examination or investigation;  Require another to give such facilities or assistance as are within that persons control or responsibility.  Test, dismantle or detain items likely to cause pollution or harm to health.

Section 109 Environment Act 1995 permits an authorised officer acting under Section 108 to seize and render harmless items causing imminent danger of serious pollution or serious harm to health.

Section 110 Environment Act 1995 states that any person obstructing an authorised officer in the exercise or performance of his powers or duties or who fails to comply with any requirements of section 108 of the Environment Act 1995 or fails to provide facilities or assistance or information or prevents any other person appearing before an authorised officer or answering a question to which an authorised person has required an answer, commits an offence.397

The Regulators’ enforcement powers upon inspection are set out above in Section 1.5 above. Under Part III of the EPA 1990 the local authority also has a duty to inspect its area from time to time to detect any statutory nuisances and to take such steps as are reasonably practicable to investigate any complaint of a statutory nuisance made by a person living within its area398 (see also Section 1.6 above). Where the local authority is satisfied of the existence or of the likely occurrence or recurrence of a statutory nuisance it must generally serve an abatement notice in accordance with section 80(2) of the EPA 1990. A failure to comply with an abatement notice is a criminal offence (Section 80(4)) and may result in court proceedings. However, Section 79(10) EPA 1990 specifies the particular circumstances in which the Secretary of State or Welsh Ministers’ consent is required before a local authority can initiate summary proceedings. These include:  smoke emitted from premises so as to be prejudicial to health or a nuisance (Section79(1)(b));  any dust, steam, smell or other effluvia arising on industrial, trade or business premises and being prejudicial to health or a nuisance (Section79(1)(d));  any accumulation or deposit which is prejudicial to health or a nuisance ( Section 79(1)(e));  artificial light emitted from premises so as to be prejudicial to health or a nuisance ( Section79(1)(fb)); or  noise emitted from premises so as to be prejudicial to health or a nuisance (Section79(1)(g));

The reason for the consent requirement under section 79(10) is to avoid ‘double jeopardy’ double jeopardy for operators, where they may already be subject to criminal proceedings under the EP Regulations. Court proceedings relating to activities not covered by the EP Regulations may be taken under the statutory nuisance provisions without such consent.399

2.3 Appeal against the administrative decision

2.3.1 By the operator

Under regulation 31 of the EP Regulations, a person whose application is refused or who is aggrieved by a decision to impose an environmental permit condition or on whom an enforcement notice, revocation notice, suspension notice, prohibition notice is served, can appeal. In most cases, this will be the operator, i.e. the person (natural or legal) who has control over the regulated facility (Regulation 7). However, in the case of a prohibition notice, will be the person (natural or legal) on whom the notice is served. Pursuant to Schedule 6 of the EP Regulations, the time limit for making an appeal for a refusal is not later than six months from the date of refusal or deemed refusal to grant a permit. In respect of an enforcement notice, a regulator-initiated variation or a suspension notice, the appeal

397 Environment Agency Form LPR08, Notice of Powers and Rights 398 Environmental Protection Act 1990 (c.43) section 79(1) 399 DEFRA: Core Environmental Permitting guidance (v 3.1) - updated March 2010. Contains guidance for those operating, regulating or interested in facilities that are covered by the Environmental Permitting (England and Wales) Regulations 2010 Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 183

dead-line is no later than 2 months after the date of the variation or notice. In relation to a prohibition notice, the time limit is no later than 21 days after the date of the notice. For appeals against a revocation notice, the time limit is any time before the revocation notice takes effect.400

Under regulation 31(9) and (10) of the EP Regulations, an appeal does not have the effect of suspending a decision or notice, except in the case of a revocation (in which case the notice does not take effect until the final determination or the withdrawal of the appeal). If an appeal is made the operator is required to state the grounds, i.e. they must justify why they served the notice.401

Appeals are normally made to the Planning Inspectorate. However, an appeal against the service of a stop notice under the Regulatory Enforcement and Sanctions Act 2008 (for a breach of 33(1) of the Environmental Protection Act 1990), or refusal to issue a Completion Certificate under such a notice are made to the First-tier Tribunal, which hears appeals in respect of civil sanctions.402 As already noted, this is currently the only potential sanction applicable to IPPC installations. Stop notices (as well as any of the other civil sanctions under RESA 2008) are not currently available for breaches of the EP Regulations 2010.

2.3.2 By a person other than the operator

As specified in Section 2.3.1 above the right of appeal is limited to persons directly affected by decisions or notices (as set out in), third parties (including individuals and NGO’s) may challenge the decision of a regulator by way of judicial review. Judicial review is the procedure by which a party can seek to challenge the decision, action or failure to act of a public body such as a government department or a local authority or other body exercising a public law function.403 The time limit for judicial review is not later than three months after the grounds upon which the claim is based first arose.404 An example of a judicial review claim would be on the alleged procedural unfairness by the regulatory authority leading to the grant of a permit.405 Judicial review proceedings are not normally allowed where the claimant has a statutory right of appeal (as in the case of a variation, enforcement, suspension and revocation notices under the Environmental Permitting (England and Wales) Regulations 2010). In such cases the claimant would have to show that the regulator had acted beyond its powers or in a way that no properly informed regulator would have acted.406

3. Judicial procedure (if relevant-with a focus on criminal sanctions)

3.3 General information

Criminal offences relevant to the IPPC Directive are set out in regulation 38 of the EP Regulations and section 33 of the Environmental Protection Act 1990. As with administrative sanctions, the way in which these provisions are applied and the factors which regulators must take into account when deciding whether or not to prosecute is determined by various guidance documents including DEFRA guidance,407 the Regulators’ Compliance Code,408 the Cabinet Office Enforcement Concordat409 and

400 The Environmental Permitting (England and Wales) Regulations 2010, Schedule 6, paragraph 3 401 The Environmental Permitting (England and Wales) Regulations 2010, Schedule 6, paragraph 2(2)(a) 402 Environment Agency, Regulatory Guidance Series number 11, page 12. For grounds of appeal for RES sanctions, see Enforcement and Sanction Guidance, Annex 3, point 3.4 403 http://www.hmcourts-service.gov.uk/cms/1220.htm#two 404 Civil Procedure Rules, Part 54.5 405 R (Edwards) v Environment Agency [2006] EWCA Civ 174 406 Regulatory Guidance Series number 11, point 3.6 407 DEFRA: Core Environmental Permitting guidance (v 3.1) - updated March 2010. Contains guidance for those operating, regulating or interested in facilities that are covered by the Environmental Permitting (England and Wales) Regulations 2010 SI 2010 No.675 (as amended) (‘the Regulations’). For local authority-regulated facilities, the General Guidance Manual on policy and procedure can be found at http://www.defra.gov.uk/environment/quality/pollution/ppc/localauth/pubs/guidance/manuals.htm Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 184

the Environment Agency’s own guidance incorporating its outcome-based approach (outlined in section 2.1 above).410 In addition to these documents, regulators are required to take account of the Code for Crown Prosecutors411 and the Attorney General’s Guidelines on the Acceptance of Pleas and the Prosecutor’s Role in the Sentencing Exercise.412

3.1.1 Criminal offences

Regulation 38 of the EP Regulations specifies a range of criminal offences for non-compliance with the Regulations. The most relevant offences to the IPPC Directive are:  Contravention of regulation 12(1) i.e. to operate a regulated facility or to knowingly cause or knowingly permit a water discharge activity or groundwater activity except under and to the extent authorised by an environmental permit (Regulation 38(1));  Failure to comply with or to contravene an environmental permit condition (Regulation 38(2));  Failure to comply with the requirements of an enforcement notice, a prohibition notice or a suspension notice (Regulation 38 (3));  Failure to comply with a notice under regulation 60(1) requiring the provision of information, without reasonable excuse, or to intentionally or recklessly make a false or misleading statement (Regulation 38 (4));

3.1.2 Additional (miscellaneous) criminal offences and related measures

 To deposit, knowingly cause or knowingly permit the deposit of controlled waste (including extractive waste) unless the deposit is covered by and in accordance with an environmental permit or exemption (Section 33(1)(a) Environmental Protection Act 1990);  To submit waste (not including extractive waste) to a disposal or recovery operation in or on land or by mobile plant or to knowingly cause or knowingly permit that activity unless that operation is carried out in accordance with an environmental permit (Section 33(1)(b) Environmental Protection Act 1990);  To treat, keep or dispose of waste (including extractive waste) in a manner likely to cause pollution of the environment or harm to human health, whether or not the operation is carried out in accordance with an environmental permit (Section 33(1)(c) Environmental Protection Act 1990);  Pursuant to Regulation 44 of the EP Regulations, where a person is convicted for an offence for operating without or other than in accordance with a permit, or for failing to comply with a notice under regulation 38(3),413 the regulator can apply to the court for an order requiring the person to take steps to remedy the matter.  Injunction (Regulation 42) – to restrain any criminal act, particularly where a rapid response is required; and  Court Order (Regulation 42) to either stop an activity or to carry out a particular activity. If the regulator considers that proceedings for a breach of notice under regulation 38(3) would afford an ineffectual remedy, it may take proceedings in the High Court in order to secure compliance with a notice.414

408 Statutory Code of Practice for Regulators, Department for Business Enterprise and Regulatory Reform, 17 December 2007 – This document incorporates the Hampton principles of effective inspection and enforcement outlined at section 2.2. 409 Enforcement Concordat in 1998 //www.berr.gov.uk/bre/inspection-enforcement/implementing-principles/regulatory- compliance-code/enforcement/page46822.html 410Environment Agency’s Enforcement and Sanctions Guidance, page 7 411 The Code for Crown Prosecutors, February 2001. Available at http://www.cps.gov.uk/publications/docs/code2010english.pdf 412 http://www.attorneygeneral.gov.uk/Publications/Documents/acceptance_of_pleas_guidance.doc.pdf 413 Including an enforcement notice, prohibition notice and suspension notice, Regulation 33(3) of the EP Regulations 2010 414 Including an enforcement notice, prohibition notice and suspension notice, Regulation 33(3) of the EP Regulations 2010 Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 185

3.1.3 Criminal sanctions

Pursuant to regulation 38(1) of the Regulations, criminal sanctions are not restricted to the operator, but may be brought against any person (natural or legal) who commits an offence. The regulator may consider two potential criminal sanctions for IPPC-related offences: i) a caution

A caution is not a criminal conviction but it forms part of an offender’s criminal record and may be cited in court if further offences are committed. Formal cautions are intended to be a deterrent and according to the Environment Agency are considered where, although a prosecution could be initiated, other factors mitigate against this. Where a formal caution is not accepted, the EA will normally prosecute for the original offence.415 Where a formal caution is used, the ‘Full Code test’ as required under the Code for Crown Prosecutors (see next paragraph below) must be considered. ii) a prosecution

The second sanction applicable for IPPC offences is a prosecution. When considering prosecution, regulators must have regard to the Code for Crown Prosecutors (‘the Code’). The Code provides guidance on the general principles to be applied when considering prosecutions. Where the regulator decides that a criminal sanction is appropriate it must assess the case in accordance with the requirements of the Code before commencing a prosecution. The Full Code Test has two stages: (i) the evidential stage; followed by (ii) the public interest stage.

For the evidential stage, prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. This will include considering the reliability and admissibility of the evidence.416 They must also consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be. Where there is sufficient evidence to justify a prosecution or to offer an out-of-court disposal, prosecutors must go on to consider the second stage, i.e. whether a prosecution is required in the public interest. A number of factors will make a prosecution more likely, for example where a conviction is likely to result in a significant sentence, and where the offence was committed in order to facilitate more serious offending.417

Based on these factors as well as its own public interest factors (see section 2.1 above),418 the Environment Agency will make a decision as to whether a prosecution is an appropriate response or whether an alternative to prosecution may be more appropriate. This assessment will include a consideration of factors set out by DEFRA, including those which will tend to suggest that prosecution is the proportionate action (see Annex II hereto).

3.1.4 Criminal procedure

Criminal offences for IPPC-related breaches in the UK are divided into two types: those on ‘summary conviction’ ” or on ‘conviction on indictment’ depending on the seriousness of the offence (summary offences being the less serious of the two). All criminal cases will begin in the Magistrates’ courts. If a defendant pleads not guilty to the charges the case will proceed to trial and may transfer to the Crown

415 Environment Agency Enforcement and Sanctions Guidance, page 7 416 Code for Crown Prosecutors, pages 7-9 417 Code for Crown Prosecutors, pages 10-12 418 The Environment Agency’s guidance also sets out the public interest factors which it will take into account Environment Agency’s Enforcement and Sanctions Guidance, page 12; Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 186

Court. Over 95 per cent of all criminal cases are dealt with in the magistrates' court and the vast majority of those will be completed there.419

Upon conviction, the court may also make additional orders such as compensation or an order to disqualify directors, confiscate assets, forfeit relevant equipment, or require remediation of the damage. Under 11.4 of the Code for Crown Prosecutors, it is the duty of the prosecutor to apply for such orders and compensation.

3.4 Possibilities of appeal i) Magistrates Court

If found guilty after a trial, the person convicted may appeal to the Crown Court against the conviction. If the person pleaded guilty and was sentenced in the magistrates’ court, they are not able to appeal against the conviction, but they can still appeal against the length or nature of the sentence imposed. A notice to appeal against the conviction or sentence must be served within 21 days. ii) Crown Court

Upon conviction in the Crown Court, a notice of appeal must be given to the criminal division of the Court of Appeal within 28 days of the decision. An appeal can be against conviction or sentence but, unlike appeals from the Magistrates’ Court to the Crown Court, there is no automatic right to appeal save for in two limited circumstances:

 if the sole ground(s) for the appeal involve(s) a question of law only  in exceptional cases, the trial judge in the Crown Court may certify that the case is fit for appeal.

4. Synergies between administrative and criminal procedures

4.1 Criminal sanctions v administrative measures

The UK legislation does not prevent regulatory authorities from applying administrative enforcement measures and criminal sanctions in conjunction. On the contrary, the legislation provides for the use of both measures, while regulatory guidance advises the use of either and/or both where it is considered proportionate under the circumstances. Indeed, in its approach to ‘better regulation’ the Environment Agency aims to apply the most proportionate response to instances of non-compliance. It also applies its own ‘outcome-focused’ procedure and guidance, which it uses to determine the sanctions it will apply with reference to the outcome to be achieved. This includes the use of administrative measures with the option to resort to criminal prosecution where operators have breached their permit conditions or where administrative procedures are not complied with. The primary difference between the two is that administrative measures may be applied regardless of whether a crime has been committed, while criminal prosecution requires the Full Code Test to be satisfied before proceeding.

4.2 Criminal v Civil Sanctions

In general, criminal proceedings may not be taken where a civil sanction has been served pursuant to The Environmental Civil Sanctions Order & Regulations 2010. Exceptions to this are where:

419 Judiciary of England and Wales website: http://www.judiciary.gov.uk/you-and-the-judiciary/going-to-court/magistrates- court Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 187

• A restoration notice, compliance notice or enforcement undertaking is used without the addition of a VMP and the person fails to comply with the notice or undertaking. In this case regulators can prosecute for the original offence.

• A stop notice is served; as failure to comply with a stop notice is a criminal offence in itself.420

The following case illustrates the approach taken by the courts in relation to IPPC related offences and the factors taken into account when determining sentences:

Example of criminal sanction

R v Cemex Cement Limited [2007] 421

R v Cemex was an appeal case brought under the previous Permitting Pollution and Control regime, Nevertheless, it illustrate the way in which cases involving pollution from industrial installations have been dealt by the courts. In this case the Court of Appeal significantly reduced the fine imposed by the Magistrates Court from £400,000 to £50,000. Both the prosecution and defence in the case were content for the matter to be dealt with by the magistrates. However the magistrates decided that their powers of sentence (limited in the case of a fine to £20,000) were inadequate and they committed the case to the Crown Court for sentence. The Crown Court imposed a fine of £400,000 and ordered Cemex to pay the prosecution costs £12,429.14. Cemex appealed.

Offence A large amount of potentially hazardous dust was released from a kiln as a result of it not being properly maintained. The Appellant ( ‘Cemex’ ) pleaded guilty to an offence under regulation 32(1)(b) of the (then) Pollution Prevention Control Regulations 2000, for failing to comply with a condition in the permit which stated that “all plant equipment and technical means used in operating the permitted installation shall be maintained in good operating condition”.

Facts The offence came to light when a member of the public saw dust coming out of the external door intermittently. He reported the matter to the Environment Agency (EA). The EA informed Cemex about the complaint. Cemex inspected the door and noticed damage. They made a temporary repair but notified those responsible for carrying out maintenance work that the door required urgent repair. The repair was fully carried out by contractors the following day. As a result, dust was allowed to escape, which the prevailing winds dispersed over a wide area. When that dust settled it caused a sticky substance to be found on cars and structures.

The judge noted that despite the proximity of the cement works and a nearby housing estate (approximately 100 yards), noone appeared to have been physically harmed by the exposure to the dust released, and twelve months after the incident there was no report of adverse health consequences.

However, the judge observed that there was no or no adequate record keeping of inspections. He described this situation as ‘simply not good enough’ and referred to ‘a sloppy attitude’ . He called it sloppy in part because there had been previous warnings issued to Cemex, or to those from whom Cemex had acquired the works. These had not resulted in any criminal prosecutions, and the judge noted that Cemex had no convictions recorded against it. In this case the judge did accept that Cemex had taken steps to remedy the matter and had not ‘sat on their hands’. The judge was especially critical of the fact that the kiln had been stopped before the dust emissions had been reported and then later restarted. He regarded the following as aggravating features: i) that there was a delay in the repair for the period already noted, ii) that when the repair was first done it was imperfect and iii) that the kiln was restarted without the door having been properly repaired. The Recorder stated that in his view it was a recipe for disaster and would have the inevitable consequence that there would be an emission of dust, if the kiln was restarted at a time when the door was an imperfect fit as occurred.

420 See Civil sanctions for environmental offences, The Environmental Civil Sanctions Order & Regulations 2010, Guidance to regulators in England on how the civil sanctions should be applied, and draft guidance for Wales, p 10 421 R v Cemex Cement Limited [2007] EWCA Crim 1759 Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 188

Appeal The Grounds of Appeal were that the sentence handed down in the Crown Court was wrong in principle and manifestly excessive. The submission that the sentence was wrong in principle was advanced on the footing that it was based on a serious misinterpretation of the evidence. The errors alleged were as to the quantity of dust emitted from the defective door (as opposed to dust lawfully emitted from the chimney stack), the risk that the dust presented to health of the exposed population and the extent to which the dust was toxic or hazardous. The Appeal Court rejected the suggestion that the Crown Court judge’s sentencing approach had any erroneous basis of fact, whether as to the source and quantity of the emissions, or as to the adverse risk or adverse consequences to the health of those who might come into contact with the dust.

The submission that the sentence was manifestly excessive was advanced on the basis that the judge had failed to apply the principles in R v Howe.422

The case of R v Howe The case of Howe concerned sentencing under the Health and Safety at Work Act 1974 (the 1974 Act) which the Court of Appeal considered to be of assistance in cases of environmental pollution. In that case an accident had occurred and a man was electrocuted. The premises were those of a small business. The appellant had been fined £48,000 and ordered to pay £7,500 costs in respect of four offences under the 1974 Act and related regulations. The company had failed to keep its electrical systems in a safe condition. The Appeal Court in R v Howe held that the Judge had given inadequate weight to the financial position of the appellant. The Appeal Court reduced the fine by £15,000. The judgment in R v Howe highlighted the following factors which should be taken into account when determining the sentence:  In assessing the gravity of the breach it is often helpful to look at how far short of the appropriate standard the defendant fell in failing to meet the reasonably practicable test.  Next, it is often a matter of chance whether death or serious injury results from even a serious breach. Generally where death is the consequence of a criminal act it is regarded as an aggravating feature of the offence. The penalty should reflect public disquiet at the unnecessary loss of life.  Financial profit can often be made at the expense of proper action to protect employees and the public. Cost cutting is a crucial tool in achieving a competitive edge. A deliberate breach of the health and safety legislation with a view to profit seriously aggravates the offence.  Other matters that may be relevant to sentence are the degree of risk and extent of the danger created by the offence; the extent of the breach or breaches, for example whether it was an isolated incident or continued over a period and, importantly, the defendant's resources and the effect of the fine on its business.  Particular aggravating features will include (1) a failure to heed warnings and (2) where the defendant has deliberately profited financially from a failure to take necessary health and safety steps or specifically run a risk to save money.  Particular mitigating features will include (1) prompt admission of responsibility and a timely plea of guilty, (2) steps to remedy deficiencies after they are drawn to the defendant’s attention and (3) a good safety record.  Any fine should reflect not only the gravity of the offence but also the means of the offender, and this applies just as much to corporate defendants as to any other (see s 18(3) of the Criminal Justice Act 1991)

Cemex Case – Significant features:

The Appeal Court in R v Cemex accepted that none of the aggravating features expressly mentioned in Howe were present, while all of the mitigating factors referred to in that case were present. While the Appeal Court accepted that the factors which the judge had identified as aggravating were present, they highlighted the significant features which the judge had failed to take into account: There was no evidence that Cemex decided to put profit before ensuring appropriate environmental controls. The failure was not in the absence of a proper system, but in properly carrying out the system that there was. Cemex had completed the temporary repair by 2.45 pm on the day that the EA notified it, and the full repair by about a day later. Much of the dust that escaped on the day the silo was inspected and the day it was repaired came lawfully

422 R v Howe [1999] 2 All ER 249 Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 189

from the chimney stack. There were a limited number of complaints from the public, and no complaints of ill health or damage to property. The estimated quantity of additional exposure amount to 0.25% of the annual PM10 exposure. Cemex cleaned up the dust deposits the following week and reviewed and tightened its systems. Cemex co-operated with the EA, tendered a prompt plea and an apology to members of the community who had been affected. It had a good record.

Judgment The Appeal Court stated that there was no question of the Crown Court judge giving insufficient weight to the financial position of the Appellant. However, in summing up the case, the Appeal Court stated that the point was whether, in the absence of any fatality, any actual damage to health, or any deliberate failure by Cemex, and given the mitigating factors referred to, this was a case requiring a fine of £400,000. In its judgment, a fine of £400,000 was considered disproportionate. Having regard to the considerations in the cases referred to, it was held that the fine did not need to exceed £50,000. The sentence imposed by the Crown Court judge was therefore quashed and a fine of £50,000 substituted.

5. Conclusions

5.2 Conclusions

Proportionality

UK legislation provides regulators with a range of administrative sanctioning tools to ensure compliance with the relevant provisions of the IPPC Directive. This is complemented by guidance which aims to ensure that the regulators’ approach is proportionate to the risks posed. Criminal penalties for non-compliance are intended to reflect the nature and gravity of the offence, by providing for convictions either ‘summarily’ or ‘on conviction on indictment’, with maximum sentences and fines for both types of offences. Both administrative measures and criminal penalties may therefore be deemed as fulfilling the criterion of proportionality. Furthermore, the introduction of civil sanctions for IPPC-related breaches is likely to provide a more proportionate response to non-compliance by giving regulators the power to impose civil sanctions for a range of environmental offences.

Effectiveness

The administrative tools available to regulators include a range of different notices which may be served on the operator, depending on the nature of the breach or level of harm posed to the environment. In certain cases, the regulator may determine the steps to be taken and the time period within which the operator must comply with a notice. Such notices include the power to remediate damage, suspend activities and vary permit conditions. The effectiveness of such notices can vary according to the nature of the offence and the outcome to be achieved. The ability to bring successful criminal proceedings is dependent primarily on the ability to meet the evidential and public interest criteria required, which, in addition to the time it can take to secure a conviction, has been viewed as a barrier to effectiveness. The introduction of civil sanctions is expected to improve effectiveness by providing regulators with additional powers which (it is hoped) will resolve many cases more quickly and effectively.

Dissuasiveness

Administrative measures including the suspension or restriction of activities, variation of permit conditions or even revocation of the permit may be viewed as being relatively stringent. However, it is arguable as to how dissuasive such administrative measures actually are, since they do not include the ability to impose any financial penalty. Criminal sanctions may be viewed as being considerably more stringent, due to the sizable fines and sentences which may be imposed. Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 190

5.2 Summary of case study responses

In order to illustrate how the UK legislation is applied in practice, two case studies were selected for the purposes of this study. With the assistance of the Environment Agency (EA), two cases were identified in which proceedings were brought by the EA for breach of the relevant IPPC legislation. The case studies were supplemented by telephone interviews with the relevant regulatory officers involved, both of whom were asked about the investigation and prosecution procedures carried out. They were also asked to comment on the extent to which the sanctions imposed were deemed proportionate, effective and dissuasive. The details of these cases studies are set out in Annex I.

Proportionality

Proportionality in both cases was deemed to be difficult to measure, in part due to the fact that the courts were responsible for the level of fines imposed. However, the levels of fines were believed to be proportionate when compared with those imposed by the Magistrates Court for similar offences. In one case, it was suggested that environmental offences do not receive the same level of attention as, for example, drink-driving offences. Furthermore, the Magistrate’s Court deal with the majority of prosecutions, while only those breaches which are deemed significant or serious enough are referred to the Crown Court.

Effectiveness

In both case studies, the sanctions imposed were deemed to be effective. ‘Effectiveness’ was not necessarily measured in terms of the time taken to achieve compliance, but rather the extent to which the sanctions had achieved the required improvements, bringing the operator back into compliance with the regulations. In one of the cases, while the sanctions were viewed as being extremely effective, it was suggested that additional powers could improve effectiveness, for example, by allowing the EA to serve notices where the integrity of plant machinery was brought into question. However, to a large extent, the effectiveness of the sanctions available was characterised by the proportionality and dissuasiveness of those sanctions.

Dissuasiveness

In terms of dissuasiveness, both cases highlighted the deterrent effect of sanctions available to the EA. Furthermore, in both cases, it was suggested that the negative publicity associated with such sanctions contributed to their dissuasiveness. This was particularly evident where the cases had received press attention and the EA had received enquiries from other operators about the nature and reasons for the sanctions imposed. Such attention suggests that the sanctions imposed had achieved a wider deterrent effect than merely on influencing the behaviour of the operator.

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Case studies

The first case study concerns an abattoir, with a continuing history of compliance issues, arising primarily from poor management and non-compliance with permit obligations. The site also has a history of odour problems with complaints received from local residents. One particularly serious incident resulted in the suspension of the operator’s activities. On another occasion, activities were suspended for the operator’s failure to have a document management system in place. Both administrative measures and criminal prosecution have been employed as sanctioning measures. The EA tried where possible to use administrative measures, including warning letters, site visits and administrative (enforcement) notices. However, in the case of significant or blatant breaches, the EA have resorted to criminal prosecution.

The second case study concerns a chemical manufacturing and processing facility prosecuted for breaching three of its environmental permit conditions. The three charges related to an emission of particulates from the facility in May 2009. The operator failed to notify the Environment Agency (EA) of the breach until a routine inspection by EA officers in October 2009. The case was brought to Leeds Magistrate’s court in June 2010 and the operator pleaded guilty to three charges: exceeding its permitted limits, failing to notify the EA promptly of the incident and failing to maintain and implement its incident procedures. It was fined £15,000 plus costs of £2,567.88.

The sanctions imposed in both cases were believed by those interviewed to have been effective and dissuasive, on account of the fines imposed and their positive effects on operator compliance. Proportionality was considered more difficult to determine, partially due the fact that the Courts are responsible for setting the fines. However, in both cases, the fines were considered to be proportionate when compared with fines for similar types of offences.

Case study 1: West Scottish Lamb

Interviewee – Mr Jon Mellor Organisation and position and: Environment Agency (EA), Regulatory Officer Telephone number: + 00 44 1768 215738 Date of interview: 11/04/2011

Timeline of the procedure August 2007 August 2006 December 2005 Court proceedings Chase letter sent to commenced Investigation operator

March 2006 January 2007 June 2007 April 2008

Interview Chase letter Permit issued Court case and under caution hand delivered judgment and site visit to operator

Description of the background

The facility is an abattoir, covering approximately 2 acres on an industrial estate in Cumbria. It is designed for slaughtering of cows and sheep. This case study concerns 3 separate incidents.

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Incident 1

From 31 August 2004, the legislation required abattoirs with a carcass production capacity of more than 50 tonnes per day to operate with a permit.423 In March 2005, an EA officer visited the operator to enquire why they had not applied for a permit. The operator claimed that they were below the threshold of 50 tonnes and subsequently confirmed this in writing to the EA. In December 2005, the Local Authority received a planning application which appeared to raise doubt over the assertion that the site was below the threshold. The EA commenced investigations and with Meat Hygiene Service records established that the site had exceeded the thresholds under the permit.

Legislation applicable

Regulation 9(1) of the Pollution Prevention and Control (England & Wales) Regulations 2000 (now Regulation 12(1) the EP (England and Wales) Regulations 2010)). At the time of the offence, the maximum sanctions under the Regulations were (a) on summary conviction, a fine not exceeding £20,000 or to imprisonment for a term not exceeding six months or to both; (b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding five years or to both.

The procedure

 March 2006 - the EA interviewed representatives of the company under caution and advised them that they were operating illegally and needed a permit. Later that month EA officers visited the site to provide pre-application advice.  August 2006 - the EA wrote to the operator to express concerns about the apparent lack of progress.  September 2006 - the operator appointed a new consultant, and as a result it was necessary to restart ‘pre-application’ discussions.  January 2007 - the EA hand delivered a letter to the company director expressing concern about the lack of apparent progress with their permit application.  April 2007 - The EA received the operator’s application but the incorrect fee was made  June 2007 - Outstanding fee received and permit issued. The permit contained an extensive ‘improvement Programme’ to address deficiencies on the site and to bring standards up to the Best Available Techniques (BAT).  August 2007 - Court proceedings were commenced. However, there were several delays in the proceedings, in part due to a request by the operator to seek a legal opinion, and due to holidays and lack of availability of the directors. The operator was prosecuted for failure to have an environmental permit in place between August 2004 and June 2007.  April 2008 - the case was heard before Carlisle Magistrates Court. The evidence presented against the operator included ‘daily kill sheets’ which were exhibited to a statement provided by MHS Principal Inspector who confirmed that they were an accurate record of the numbers of animals slaughtered. In addition, EA officers used statements and photographs to provide details of the installation and highlight the areas which were not at standard expected by a permitted installation. The Local Authority also provided statements detailing the history of odour complaints from the site and also the detailed site information which had been provided in support of the planning application. The defendant pleaded guilty and was fined £7,000 plus £2,358.15 in costs. The case received local media coverage.424

Incident 2

A separate incident occurred on 24 August 2009 when the operator failed to identify a blood tank had not been emptied and subsequently overfilled, destroying the charcoal filter which treated the displacement air from the tank. The tank over pressurised and when pressure was eventually released

423 Schedule 1, Section 6.8 A1(b) of the Environmental Permitting (England and Wales) Regulations 2007 424 http://www.newsandstar.co.uk/abattoir-fined-for-permit-breach-1.89504?referrerPath=home/2.1962 Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 193

blood was sprayed across the yard and surrounding buildings. The spill was contained on the site but the odour was, according to the EA ‘extremely objectionable’ . The disruption to the neighbouring businesses and local residents was considerable and the Agency received a large number of complaints. The EA assessed the incident and gave it a Common Incident Compliance Scheme (CICS) rating of 2, on the basis that although the odour was noxious, no serious harm was caused to the environment. However, the EA considered that operation of the facility involved a risk of serious pollution, namely ‘unabated emissions from the blood tank and associated pipe work causing annoyance outside the site’.

Legislation applicable

The Environmental Permitting (England and Wales) Regulations 2007, Regulation 36 (Enforcement Notices), 38 (offences) and 39 (penalties). The maximum sanctions under the Regulations were: (a) on summary conviction, to a fine not exceeding £50,000 or imprisonment for a term not exceeding 12 months, or to both; or (b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years, or to both.

The procedure

As an immediate response to the incident, the EA issued an enforcement notice under Regulation 37 of the 2007 Regulations. The notice had the effect of suspending the permitted activity, i.e. the slaughtering of livestock in accordance with Schedule 1, Section 6.8 A1(b) of the Regulations. The notice also required detailed steps to be taken by the operator, specifying the deadlines by which these steps were to be completed. These included cleaning and inspecting the blood tank, demonstrating the integrity of the pipe work and agreeing timescales for an investigation into the incident. The impact of the notice was immediate. Works were duly completed by the operator before the suspension element of the notice came into effect, and the site was allowed to commence operations. EA officers attended the site on the day of the incident to verify satisfactory completion of the works.

Incident 3

In September 2009, (as part of the investigation into the incident on 24 August), the EA conducted an audit at the facility, indicating that the operator was not complying with a permit condition, namely to ensure that any emissions from activities were free from odour levels likely to cause annoyance outside the site, and to take appropriate measures to prevent or minimise that odour. In addition, the operator’s paper work was found to be in extremely poor order. This was followed by a number of other substantiated odour incidents (though not as significant as the incident on 24 August). It eventually became apparent that the operator had disregarded the facility’s Environmental Management System (EMS).

Legislation applicable

The Environmental Permitting (England and Wales) Regulations 2007, Regulation 36 (Enforcement Notices), Regulation 38 (offences) and Regulation 39 (penalties). The maximum sanctions under the Regulations were: (a) on summary conviction, to a fine not exceeding £50,000 or imprisonment for a term not exceeding 12 months, or to both; or (b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years, or to both.

The procedure

In October 2009 the EA issued an enforcement notice under Regulation 36 of the 2007 Regulations, on the basis that the operation of the facility involved a risk of serious pollution. Again, the notice specified the steps to be taken by the operator, which required, inter alia, removal of all animal by- products from the site, developing and implementing a management system, and defining the roles and Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 194

responsibilities of staff, as well as staff training. The operator employed consultants to oversee the running of the installation and re-establishment of the EMS. The EA ensured compliance with the notice by visiting the operator, during a follow up audit and agreement of a programme of staff training and ongoing supervision by the consultants. The incident was given a CICS rating of 2.

In July 2010 the case was brought before Carlisle Magistrates Court. Evidence collected by the Agency included photographs and statements from Agency Officers. Statements were also obtained from a number of staff who were directly involved with the clean-up and the events leading up to the incident. The Agency required the operator to identify all records and files / documented systems relating to the permit / environmental issues. This confirmed the documented management system was no longer in a functioning order. At court, the Magistrates were referred to the sentencing guidelines425 and shown some recent press releases for similar offences. The operator was convicted of the following permit breaches by Carlisle Magistrates Court in respect of incidents 2 and 3:

1. 24.08.09 - Failure to comply with licence condition 3.1.1 (unauthorised point source emission), fined £2,500 2. 24.08.09 - Failure to comply with condition 3.4.1 (activities shall be free from odour levels likely to cause annoyance, and failure to take appropriate measures to minimise odour), fined £2,500 3. 30.09.09 - Failure to comply with condition 3.4.1 (as above), fined £2,500 4. 8.10.09 - Failure to comply with condition 3.4.1 (as above), fined £2,500 5. 14.10.09 – Failure to comply with condition 1.1 and 1.2 (activities not managed and operated in accordance with a management system, and no accident management plan maintained and implemented), fined £7,000

The case received media coverage from the local press.426

General comments on sanctions

Effectiveness of sanctions

The EA described the effect of sanctions in this case as ‘enormous’. The EA regulation officer stated that ‘without question we would not have secured the improvements which have achieved without the use of the notices’. However, they indicated that certain additional powers would have been useful, such as in a subsequent case where the operator had wanted to re-use a particular piece of plant machinery before carrying out integrity testing. The EA officer said ‘ we did eventually persuade the operator to do the integrity testing and modify the tank before use but the issue went on for a number of weeks and took several days of regulatory effort. A notice would have helped the operator understand that the issue was not negotiable’.

Proportionality

The EA officer stated that while it was difficult to judge proportionality, they believed that the fines imposed were generally similar to other environmental offences heard in Magistrates Courts in the area. The operator had been in court on a number of previous occasions, for prosecutions brought by other regulators, including the Meat Hygiene Service (MHS). In one case, the operator was fined £5,000 for animal cruelty offences,427 and in another it was fined £7,000 for and in another for failing to operate within regulations relating to slaughtering of animals.428 These incidents give an indication of the levels of fines achieved by other regulators at the site.

425http://sentencingcouncil.judiciary.gov.uk/docs/web_sgc_magistrates_guidelines_including_update_1__2__3_ web.pdf 426http://www.newsandstar.co.uk/news/carlisle-abattoir-firm-fined-over-stench-from-stale-blood-leak- 1.737955?referrerPath=home/2.1962 427 http://www.newsandstar.co.uk/news/5-000-bill-in-cruelty-case-1.319889?referrerPath=home/2.1962 428http://www.newsandstar.co.uk/news/abattoir-ordered-to-pay-over-7-000-after-failing-to-kill-a-cow-correctly- 1.81441?referrerPath=home/2.1962 Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 195

Dissuasiveness

While confirming that there were still some issues at the site, the officer believed that the sanctions imposed had achieved a deterrent effect on the operator, as evidenced by significant improvements in the operator’s compliance. Furthermore, following the operator’s conviction, the EA received enquiries from other operators about the nature and reasons for the sanctions imposed, suggesting that the sanctions had achieved a wider deterrent effect.

Case study 2: BRENNTAG

Interviewee – Ms Claire Wiles Organisation and position: Environment Agency (EA), Regulatory Officer (Pollution Permission and Control) Telephone number: + 00 44 1709 312762 Date of interview: 11/04/2011

Timeline of the procedure

June 2010 May 2009 October 2009 Court case and Emissions limit EA notified during judgment exceeded routine audit

November 2009 July 2009 Formal interview and Defective machinery fixed commencement of proceedings

Description of the background

The facility is a 3.5 acre industrial site in a mixed residential and commercial area on the outskirts of Leeds. Its activities include the manufacture, repackaging and distribution of organic chemicals, including alkalis, acids and inorganic chemicals. The permit for the facility was first issued in May 2005, and was subject to a minor variation in August 2006.

EA inspections are carried out at the site once or twice per year. In line with the site’s environmental permit, external consultants are engaged by the operator to test their emissions from a wet scrubber on site. On 29 May 2009 the external consultants detected an elevated particulates release. This was reported to the operator on 5 June 2009 and traced to a defective item within the plant (a pump within a scrubber). The operator did not report this to the EA and continued to operate the plant from 5 June 2009 until the item of plant was repaired on 10 July 2009. During this period particulates (caused when zinc oxide is added to the manufacturing process) were released into the atmosphere when the plant was in use. It was brought to the attention of the EA during a routine part audit in October 2009. During that audit, the operator notified the EA that in May 2009 they had exceeded their permitted emissions of particulate matter under the permit.

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Legislation applicable

This was a prosecution for a breach of environmental permit conditions, under Regulations 38 of the Environmental Permitting (England and Wales) Regulations 2007. The operator was charged with three separate offences under Regulation 38(1)(b) of the Environmental Permitting (England and Wales) Regulations 2007, namely:

i) exceeding the permitted limit of emissions to air of particulate matter from an emission point reference;

ii) failure to maintain and implement written procedures for investigating incidents and prompt implementation of appropriate actions in relation to the scrubber pump;

iii) Failure to notify the Environment Agency without delay of the detection of an emission of a substance which exceeds any limit in the permit.

The EA confirmed that at the time of the offence the maximum sanctions applicable under section 39 of the 2007 Regulations were (a) on summary conviction, to a fine not exceeding £50,000 or imprisonment for a term not exceeding 12 months, or to both; or (b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years, or to both. The operator was fined £15,000 (£5,000 for each offence) plus prosecution costs of £2,567.88.

The procedure

On discovering the breach, the case officer immediately ceased the audit and served on the operator a ‘Notice of Powers and Rights - Police and Criminal Evidence Act 1984, Code B’, formally notifying them that a suspected offence had been committed. The EA officer took copies of several reports including monitoring reports, a safety data sheet for Zinc Oxide, and an air monitoring summary Excel spreadsheet. A formal interview was conducted on the 23 November 2009 with the operator’s UK Technical and Compliance Manager, authorised to speak on behalf of the company who admitted to the charges. The minimum criteria for prosecution is the ‘2 stage test’, as outlined in the country detailed report. The evidence was deemed by the EA as sufficient to meet this test. Proceedings were dealt with in the Bradford Magistrates Court approximately 8 months after discovery of the breach by the EA.

In this case, prosecution was the first and only sanction considered. The operators had blatantly ignored the incident and had continued to operate the facility without notifying the EA. The impact of the increased concentration was deemed by the EA to be so low that no environmental harm was likely to have been caused, and therefore no specific tests were carried out. However, it was the EA’s view that the operator’s failure to comply with the permit conditions had posed a significant potential risk, due to the particulates generated which can be toxic to aquatic life. This was further aggravated by its failure to notify the EA.

Although no environmental damage was detected, the incident was assessed and given a score of 2 in accordance with the EA’s Compliance Classification System (CCS), on the basis that the chemicals involved were potentially toxic. The factors taken into account in determining the seriousness of the offence included the quantity and type of discharge, the decision to continue operating when a fault was identified, an element of financial motivation, and the failure to report the incident to the Agency. The penalty was a matter for the Bradford Magistrates Court whose responsibility it is to set the level of the fine.

General comments on sanctions

Effectiveness Milieu Ltd, Detailed review of sanctions and procedures applicable to breaches of the Brussels, October 2011 legislation on industrial emissions in seven selected countries 197

The fine imposed was viewed by the EA as efficient and effective for the following reasons:

 It was seen as a deterrent from future offending.  The quantum (£15,000 in total) had an impact on the operator’s finances.  The EA produced a press release after conviction and the case attracted publicity in the area.

The press release was viewed by the EA as having a deterrent effect, primarily on the business itself rather than on other operators. Furthermore, the EA believed that the sanction had affected profitability. ‘We don’t consider the fine to be trivial and believe the operator would not want to pay out this sum of money again. We also expect that there has been damage to the company’s reputation and brand image’.

The effectiveness of the sanctions was further evidenced when the operator breached its ELVs on another two occasions. In both instances, the operator notified the EA of the breaches within 24 hours, ceasing processing operations immediately, until compliance was restored. The operator was given two weeks to comply and the EA officer visited to confirm compliance. A further breach occurred on 29/01/10, whereupon they restored compliance on 11/03/2010 and again on 21/10/2011 whereupon they restored compliance in February 2011.

£15,000 was viewed by the EA as a reasonable fine, considering the lack of any major impact on the environment. It was commented that one or more aggravating factors will tend to result in a higher fine, particularly where there is evidence of damage to the environment e.g. to fish and wildlife. Where a case is referred to the Crown Court, fine can be unlimited. However, it was suggested that such offences don’t always get the attention they necessarily deserve, especially compared with other offences (e.g. drink-driving). Furthermore, breaches must be must be significant to be referred to the Crown Court. Generally, the range of sanctions is considered sufficient to deal with most offences.

Proportionality

The EA officer believed the sanction to be proportionate, adding that it compared well to other cases. She could not comment on whether the fine was proportionate to company turnover. It was the court to make that decision and the EA was not sure how they calculated the fine.

Dissuasiveness

The EA believed that in this case the offences were not committed deliberately therefore the sanction was not considered to be a deterrent from offending per se. However, they did believe that the sanctions imposed would act as a deterrent to future decisions motivated by financial rather than environmental considerations (as the decision to continue operating was here). They added that the damage to the operator’s reputation and image may have had a negative effect, although it was not possible to measure this impact. The officer confirmed that the EA had seen a change in the behaviour of the operator since the prosecution in that they had been notified without delay of further permit breaches. Furthermore, they believed that the sanction would serve to dissuade others from further offences of that nature. The EA officer added ‘There is evidence of the dissuasive effect as we have seen a behavioural change in the Operator since the prosecution. It took around 8 months to secure the prosecution but it was worth the effort’.

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The Environment Agency’s ‘Sanctions decision tree’ Source: The Environment Agency, Enforcement and Sanctions Guidance429

429 Enforcement and Sanctions Guidance, page 11

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DEFRA Public interest factors in favour of prosecution430

Factors relating to Factor tending to suggest that prosecution is appropriate

Offence • long-term or continuing breach • significant deviation from legal requirement or permit conditions • operating without a licence or permit

Offender • has committed an offence intentionally or with recklessness or negligence • has a history of non-compliance • has failed to comply with a previous civil sanction • is shown to be dishonest or deceiving • as failed to report non-compliance • has not cooperated with investigations • has failed to comply with restoration or other notice requirements

• the offence involved obstruction • the incident was foreseeable • the offence has been committed with the consent, • connivance or neglect of senior officers of corporate body

Impact • serious environmental impact or risk of impact, including impact on the local community • serious impact on compliant business, competitors undermined • the offence undermines the regulatory system

Possible wider consequences • significant potential long-term effect • potential impact on the wider population

430 Source: Civil sanctions for environmental offences, The Environmental Civil Sanctions Order & Regulations 2010, Guidance to regulators in England on how the civil sanctions should be applied, and draft guidance for Wales: http://www.defra.gov.uk/environment/policy/enforcement/pdf/defra-wag-guidance.pdf

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Costing the Earth: Guidelines for Magistrates 7.2 Acid effluent into river

Legislation The Environmental Permitting Regulations 2007 No. 3538 (EPR 2007)431 provide that:

12 No person may operate a regulated facility except under and to the extent authorised by an environmental permit.

36(1) If the regulator considers that an operator has contravened, is contravening, or is likely to contravene an environmental permit condition, the regulator may serve a notice on him under this regulation (in these Regulations, an ‘enforcement notice’).

38(1) It is an offence for a person- (a) to contravene, or knowingly cause or knowingly permit the contravention of, regulation 12

Maximum penalty 39(1) A person guilty of an offence under regulation 38(1)(a), (b) or (c) is liable- (a) on summary conviction to a fine not exceeding £50,000 or imprisonment for a term not exceeding 12 months, or to both; or (b) on conviction on indictment to a fine or imprisonment for a term not exceeding 5 years, or to both.

Facts An engineering company, Tirnshap Engineering Ltd (TEL), is regulated by the Environment Agency (EA). It has an environmental permit which enables it to use certain chemicals. Its works are situated close to open marshland, which has been designated as a Site of Special Scientific Interest (SSSI). Effluent from the works after it has been treated is discharged lawfully to a nearby river.

The operations at the plant produce a strong acid effluent. That effluent flows via an underground drain into an interceptor pit. From there it is pumped to an effluent treatment plant for cleansing purposes before being released into the river. In February abnormally high acid levels were recorded in the drain which were at first attributed to leaks into the effluent system. Initial checks found nothing. However, later that month, TEL decided to institute a drain sampling exercise and consideration was given to possible leaks of acid from the process. Checks carried out on the outfall pipes revealed a problem. When the storm water drains were checked, liquid was observed entering through the brickwork. It was decided to flush the storm drain system with water to remove the acid contamination. The EA was informed of these moves. The following month, the EA was shown a video examination of the process drain, which indicated fractures in the pipe. TEL stated that acidic liquor from the effluent drain had leaked into the ground and from there into storm water drains and off the site. Consultants were then asked to determine the effects of this escape of acidic liquor from the system on the nearby marshland. Samples were taken. The results indicated that in the areas of open water in the marshland, which were affected by the acid spill, the invertebrate population had been either completely wiped out or very substantially reduced. The affected area would gradually regenerate but only after a lengthy period of several years. In the meantime, visiting bird life would be unlikely to return or roost at the site and the fish population similarly had been decimated.

TEL concluded that it was likely that a significant loss of acid had occurred since early February and it estimated a loss of about 17.5 tonnes of 100% proof hydrochloric acid. From a records inspection, the EA also calculated that there had been a significant loss of acidic scrubber liquor during the previous month. It was calculated that there was a total estimated loss of 39 tonnes of 100% proof hydrochloric acid.

431 Repealed by the Environmental Permitting Regulations 2010 (EPR 2010) as amended.

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The cause of the incident was the leaks in the process drain. The company accepted that acid had leaked from this drain via the surface drains into the marshland and that the leak was a breach of the conditions of its permit. On investigation, the EA also discovered that the drains had been examined in 2002 and had been found to be leaking at that time and to have structural damage. TEL, however, had decided that no remedial action was necessary. The company had failed to consider the implications of continued operation of the drains in their current state. It is highly likely that the acid had attacked the drains over a period of time owing to the fact that they were flooded. TEL was found guilty of three offences under Regulations 12 & 38 of the EPR 2007 in failing to abide by conditions in its permit in that:

• it failed to maintain in good operating condition all its plant equipment and technical means; • it failed to operate the site in such a way as to prevent pollution of any surface or underground waters and so that there was no discharge of trade effluent to any underground strata; and • it failed to use the best available techniques for rendering harmless any substance that might cause harm if released into any environmental medium.

Assessing seriousness • TEL was aware of the problem several years ago but had taken no remedial action. If it had done so at that time it would have cost in the region of £20,000.

• The environmental impact has been considerable, with the marshland being gravely affected for a protracted period. TEL could be considered to have taken a risk in respect of its drainage systems so as to save costs.

• As soon as fully aware of the extent of the problem TEL spent £50,000 on rectifying its drainage system.

• The effluent had diffused and affected other water bodies. The discharge affected the nearby marshland, which is designated as a SSSI.

Questions 1. What is the most appropriate sentence for TEL? 2. Is the £50,000 spent on rectification a true mitigating feature, bearing in mind that the work should have been done several years before?

Judicial opinion Acid effluent into river - The offences arise out of breach of permit conditions. The defects have been known to the company for many years. A total fine of £25,000 plus costs. Still not having done the works when the case came before the court would be an aggravating factor. The company should have done the works earlier. Completing them late in the day does not provide weighty mitigation.

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Bibliography

Legislation  The Environmental Civil Sanctions (England) Order 2010 (S.I No. 1157 of 2010)  The Environmental Civil Sanctions (Miscellaneous Amendments) (England) Regulations 2010 (S.I. No. 1159 of 2010).  The Environmental Permitting (England and Wales) Regulations 2010 (S.I. No. 675 of 2010)  The Environmental Protection Act 1990  The Regulatory Enforcement and Sanctions Act 2008

Environment Agency Guidance  Environmental Permitting Regulations Operational Risk Appraisal Scheme (Opra for EPR); Opra for EPR version 3.5, April 2010 http://publications.environment- agency.gov.uk/pdf/GEHO0410BSFA-e-e.pdf  Enforcement and Sanctions Guidance, 4 January 2011 http://publications.environment- agency.gov.uk/pdf/GEHO0910BSZL-E-E.pdf  Enforcement and Sanctions Statement, Version 1, 25 February 2011 http://publications.environment-agency.gov.uk/pdf/GEHO0910BSZJ-e-e.pdf  Guidance on undertaking an Operator Monitoring Assessment of emissions to air and /or water, Version 3, 2009 http://publications.environment-agency.gov.uk/pdf/GEHO0409BPZD-e-e.pdf  Horizontal Guidance Note H1 - Environmental risk assessment for permits, April 2010 http://publications.environment-agency.gov.uk/pdf/GEHO0410BSHR-e-e.pdf  Offence Response Options (ORO) 4 January 2011http://publications.environment- agency.gov.uk/pdf/GEHO0910BSZN-E-E.pdf  Operator Monitoring Assessment of emissions to air and /or water, Version 3, 2009 http://publications.environment-agency.gov.uk/pdf/GEHO0409BPZD-e-e.pdf  Opra for EPR version 3.5, Annex A, Opra Scheme for Installations, April 2010 http://publications.environment-agency.gov.uk/pdf/GEHO0410BSFB-e-e.pdf  Regulatory Guidance Series No 11, Enforcement powers http://www.environment- agency.gov.uk/static/documents/Business/RGN_No__11_Enforcement_powers.pdf

DEFRA guidance  Environmental permitting summary: http://www.defra.gov.uk/environment/policy/permits/documents/ep2010booklet.pdf  Core Environmental Permitting guidance (v 3.1) guidance for those operating, regulating or interested in facilities that are covered by the Environmental Permitting (England and Wales) Regulations 2010 S.I. 2010 No.675 (as amended), updated March 2010 http://www.defra.gov.uk/environment/policy/permits/documents/ep2010guidance.pdf  Civil sanctions for environmental offences, The Environmental Civil Sanctions Order & Regulations 2010, Guidance to regulators in England on how the civil sanctions should be applied, and draft guidance for Wales, January 2010, http://www.defra.gov.uk/environment/policy/enforcement/pdf/defra-wag-guidance.pdf  Guidance for local authorities general guidance manual http://www.defra.gov.uk/environment/quality/pollution/ppc/localauth/pubs/guidance/manuals.htm

Other Government guidance  Applying the Regulators’ Compliance Code and Enforcement Concordat, Local Better Regulation Office (LBRO) http://www.lbro.org.uk/docs/regulators-compliance-code.pdf  The Department for Business Innovation and Skills website http://www.bis.gov.uk/policies/betterregulation/improving-regulatory-delivery/implementing-principles-of-better-regulation/regulatory- enforcement-and-sanctions-bill

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 National Audit Office, Effective Inspection and enforcement: Implementing the Hampton vision in the Environment Agency, 1st March 2008 http://www.nao.org.uk/publications/0708/hampton_environment_agency.aspx  The Enforcement Concordat, 1998 (currently under review) http://webarchive.nationalarchives.gov.uk/+/http://www.berr.gov.uk/files/file10150.pdf  Regulators’ Compliance Code, Statutory Code of Practice for Regulators, Department for Business Enterprise and Regulatory Reform, 17 December 2007 http://www.berr.gov.uk/files/file45019.pdf  Regulatory Justice: Making Sanctions Effective, Final Report, Professor Richard Macrory, November 2006 http://www.bis.gov.uk/files/file44593.pdf  Reducing administrative burdens Effective Inspection and Enforcement, Philip Hampton , March 2005 http://hb.betterregulation.com/external/Hampton%20Report.pdf

The Courts Service, court procedure and sentencing guidelines  The Attorney General’s Guidelines on the acceptance of pleas and the prosecutor’s role in the sentencing exercise http://www.attorneygeneral.gov.uk/Publications/Documents/acceptance_of_pleas_guidance.doc.p df  The Code for Crown Prosecutors, February 2001 http://www.cps.gov.uk/publications/code_for_crown_prosecutors/  Her Majesty’s Court Service website : http://www.hmcourts-service.gov.uk/  Ministry of Justice website: http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part54.htm  Judiciary of England and Wales website http://www.judiciary.gov.uk  Magistrates Court Sentencing Guidelines: http://www.sentencingcouncil.org.uk/docs/web_sgc_magistrates_guidelines_including_update_1_ _2__3_web.pdf  Costing the Earth: guidance for sentencers, Magistrates Association, 2009 http://www.magistrates- association-temp.org.uk/dox/Costing%20the%20Earth%20for%20MA%20with%20cover.pdf

Miscellaneous articles and studies  ENTEC, Assessment of the Implementation of the IPPC Directive in the UK, Final Report, January 2008 http://www.defra.gov.uk/environment/quality/pollution/ppc/background/documents/implementatio n-study.pdf  Lord Justice Robert Cranworth The IPPC Directive: UK law and practice, EUFJE Stockholm conference 16 and 17 October 2009, UK National Report http://www.eufje.org/uploads/documentenbank/d80f7d0ea2629bd8dc4cbbe1076bc65d.pdf

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