The crime of ecocide has been the subject of discussion in the European Union for several years now and recently, new measures and sanctions to combat environmental crime have been definitively approved by means of EU Directive 2024/1203, in revision of Directive 2008/99/EC, mentioning the so-called qualified crimes comparable to the crime of ecocide.
The new clause on so-called qualified offences applies when an offence covered by the Directive is committed intentionally and causes the destruction of the environment or irreversible or long-lasting damage to it. Precisely, the qualified crime is integrated where there is: « (a) destruction of an ecosystem of considerable size or environmental value or of a habitat within a protected site or widespread and significant, irreversible or long-lasting damage to such an ecosystem or habitat; b) widespread and significant, irreversible or long-lasting damage to the quality of air, soil or water” as established by Article 3, paragraph 3, letter a) and b) of the Directive.
The extent of environmental damage mentioned by the new European regulation seems to want to incriminate the conduct of corporate actors, in fact, the Directive specifically takes into consideration the liability of legal persons precisely for the greater probability of causing this type of damage in the performance of business activities. The Directive also specifies what is to be understood as a legal person, i.e. the legal entity which has such status under the applicable national law, with the exception of States or public institutions exercising public powers and public international organisations.
From a comparative perspective, what was envisaged by the European legislator seems to be in line with what was envisaged by the Italian legislator with the Legislative Decree. n. 231/2001, in particular with reference to art. 25-undecies of the same law which extended the discipline of corporate liability to a series of environmental crimes.
Pursuant to Article 6(1), legal persons are criminally liable where the offences referred to in Articles 3 and 4 of the Directive are committed by any person who holds a leading position within the legal person concerned, either individually or as part of a body, by virtue of a power of representation of the legal person; of the power to take decisions on behalf of the legal person; or of the power to exercise control.
As regards the sanctioning method, the Directive provides, at the discretion of the Member States, two methods of application of the sanction: Member States have the possibility to define the maximum levels of pecuniary sanctions either with a percentage of the total worldwide turnover of the legal person concerned or with fixed amounts; furthermore, it is necessarily provided that the criminal or non-criminal sanctions or measures applicable to legal persons responsible for the qualified offences as defined in this Directive in Article 3 paragraph 3 letter. a) and b) are more severe than those applicable in the case of other crimes.
It is however requested that for the crimes referred to in Article 3, paragraph 2, letters a) to l), and letters p), s) and (t) the pecuniary sanction is not less than 5 % of the total worldwide turnover of the legal person in the financial year preceding the one in which the offence was committed or in the financial year preceding the one in which the decision to impose the pecuniary sanction was taken; or an amount corresponding to EUR 40,000,000; for the offences referred to in Article 3, paragraph 2, letters m), n), o), q) and letter r) is not less than 3% of the total worldwide turnover of the legal person in the financial year preceding the one in which the offence was committed or in the financial year preceding the one in which the decision to impose the pecuniary sanction was adopted; or an amount corresponding to EUR 24,000,000.
It is not so much the choice to provide for pecuniary sanctions, as already provided for in similar cases by the national legislator in articles 9 to 12 of the Legislative Decree, that deserves attention. n. 231/2001, but rather the choice to introduce additional measures, including the obligation to restore the environment within a certain period, if the damage is reversible; compensation for damage to the environment, if the damage is irreversible or if the perpetrator of the crime is unable to proceed with such restoration.
Furthermore, it is also foreseen the obligation to establish due diligence systems to strengthen compliance with environmental regulations, perhaps wanting the European legislator, by addressing the Directive under examination to the attention of companies, to send a message: the time has come to preventively adopt green corporate governance models that limit the configuration of a liability on the part of the legal person, which in the context of its business activity, could endanger or damage the environmental matrices, even causing damage comparable to what is considered as ecocide and consequently more severely punished.
