Europe proposes 6-years jail for F-gas breaches

December 21, 2021

The European Commission is proposing new levels of fines and a maximum term of imprisonment of at least six years for breaches of the F-gas regulations.

The new proposals seek to replace and update the environmental criminal law Directive 2008/99/EC by setting common minimum measures for European member states in the prosecution of environmental crimes.

It defines new environmental crimes, sets a minimum level for sanctions and strengthens the effectiveness of law enforcement cooperation. It also obliges member states to support and assist people who report environmental offences and cooperate with the enforcement.

Following an evaluation of Directive, the Commission concluded that it did not have much effect on the ground with the number environmental crime cases successfully investigated and sentenced since its introduction remaining very low.

It also found that the sanction levels imposed were too low to be dissuasive and cross-border cooperation did not take place in a “systematic manner”. It found “considerable enforcement gaps” in all member states and at all levels of the enforcement chain – police, prosecution and criminal courts.

F-gas

While the Directive covers all environmental crimes, breaches of the European F-gas regulation to phase down HFCs – in particular the black market trade in illegal refrigerant – have caused serious disruption in the market and nullified environmental efforts.

In recent months, the authorities in many member states have been cracking down on the illegal trade. In September, the UK imposed a £1m fine on a company for breaches of the regulation but prosecutions across Europe have been limited.

While a company found to have exceeded its F-gas quota has its quota reduced by double the amount the following year, all other enforcements are the responsibility of member states. The current level of potential penalties also varies considerably from country to country, from as low as €160.

Industry and environmental groups have also been critical of inconsistent and unharmonised enforcement of the F-gas regulation as well as the low fines.

Directive

Article 3 (1) (r) of the proposed new Directive states: Member States shall ensure that the following conduct constitutes a criminal offence when it is unlawful and committed intentionally: production, placing on the market, import, export, use, emission or release of fluorinated greenhouse gases as defined in Article 2 (1) of Regulation 517/2014 of the European Parliament and of the Council or of products and equipment containing or relying on such gases.

It also proposes that any breaches also constitute a criminal offence, “when committed with at least serious negligence”. It insists that member states shall take necessary measures to ensure that the offences are punishable by “a maximum term of imprisonment of at least six years”.

In addition, it proposes that any breaches are punishable by fines, “the maximum limit of which shall be not less than 5% of the total worldwide turnover” of the legal person/undertaking in the previous business year.

The legislative proposal will now be submitted to the European Parliament and the Council.