These include the European Union, which has already created a comprehensive basis for punishing environmentally harmful acts with Directive (EU) 2024/1203 (Environmental Criminal Law Directive), adopted at the beginning of 2024, replacing the previous legal framework on the criminal law protection of the environment. EU Member States now have until 21 May 2026 to transpose this Directive into national law.
Shortly after the World Conservation Congress, the Federal Ministry of Justice and Consumer Protection (BMJV) published a draft bill for the implementation of the Environmental Criminal Law Directive. The deadline for comments from the federal states and associations expired on 14 November this year.
The draft bill provides for extensive changes to the Criminal Code (StGB) and some ancillary laws, which will be particularly relevant for companies and their employees. Similarly, significantly higher penalties are threatened for environmental offences. It is therefore imperative for companies to familiarise themselves with the changes, review their own actions and, where necessary, remedy (future) violations in order to avoid criminal prosecution or investigation. The following article first provides an overview of the upcoming protection of the “ecosystem” under criminal law (see A.) and actions that may be punishable under criminal law (see B.). After providing an overview of new criminal offences (see C.), it concludes by discussing the financial penalties that may be imposed (see D.).
A. Protection of the legal interest “ecosystem”
One of the major innovations is the inclusion of the “ecosystem” as a protected legal interest in the StGB. It is defined in Section 330d (1) No. 2 of the draft (StGB-E) as an
ecologically significant, complex, dynamic system of plant, animal and microorganism communities and their abiotic environment in a functional unit that encompasses habitat types, habitats of species and species populations;
It is important to note the deviation from the definition of “ecosystem” in Article 2(2)(c) of the Environmental Crime Directive. The German version adds the characteristic “ecologically significant” and thus restricts the scope of application compared to the Directive. It will be interesting to see how the courts will handle this restriction, what weight will be given to the “significance” of the ecosystem and, at the same time, what impact these restrictions could have on questions of intent or, where applicable, issues of error. Overall, with the inclusion of the “ecosystem“, in addition to soil, water, air, animals, plants and human health, the complex interaction of these elements, i.e. the ecological balance itself, will also be protected under criminal law in future.
B. Extension of so-called “suitability offences”
Existing offences under environmental criminal law are to be converted into so-called suitability offences, also known as “potential hazard offences”, in accordance with the Environmental Criminal Law Directive. “Suitability offence” means that an abstract danger to the protected legal interest can already lead to criminal liability without the need for concrete damage to occur. The focus is on whether actions and violations are potentially capable of causing significant damage to animals, plants, water bodies, the air, the soil or an ecosystem. Although suitability offences are not new to German environmental criminal law, the draft bill proposes an expansion in implementation of the Environmental Criminal Law Directive.
The following sections of the German Criminal Code (StGB) are specifically affected: Section 324a StGB (soil contamination), Section 325 StGB (air pollution), Section 325a (2) StGB (noise from the operation of facilities), Section 327(2) StGB (operation of a wastewater treatment plant), the new Section 327a StGB-E (unauthorised execution of projects), Section 328(3) StGB-E (handling of radioactive substances), as well as some provisions in ancillary legislation, e.g. for violations of the provisions of the REACH Regulation, the Biocidal Products Regulation and other regulations. All of these now contain (extended or entirely new) elements of suitability that refer to the abstract suitability of an act to cause significant damage.
Unfortunately, the opportunity to amend the existing criminal offence under Section 324 StGB (water pollution) in line with the directive and the above-mentioned offences was missed in the process. In the interests of legal certainty, it would have been desirable if the aforementioned offences had been uniformly defined as “suitability offences” with corresponding wording. Currently, Section 324 StGB is defined as a pure result offence, i.e. for the offence to be committed, (among other things) a body of water must be polluted. The “suitability” explained above is not relevant here, as it is not reflected in the wording. This does not necessarily lead to a narrower or broader scope of application compared to soil contaminations or air pollution, as Section 324 StGB is very broadly defined and, in this respect, also meets the protection requirements of the Directive. However, it carries the risk of unequal treatment of “pollution offences”.
C. Overview of specific amendments to existing offences and the introduction of new offences
Changes are being made to the Criminal Code, the Act on Administrative Offences and several ancillary laws. The following is an overview of the most important changes. The Criminal Code is to be amended as follows:
- Section 324 StGB (water pollution) is to be amended to the effect that the extraction of water from a body of water is now also punishable if this results in an adverse change in the properties of the body of water. This aspect of water pollution, particularly in connection with the increasing restrictions on the use of deep groundwater, for example, may become significantly important in the future.
- Soil contamination within the meaning of Section 324a (1) StGB (soil contamination) will in future also be realised if noise, vibrations, thermal energy or non-ionising radiation penetrate, are introduced into or are released into the soil. This refers to radiation within the meaning of Section 1 (2) NiSG (Act on Protection against Non-Ionising Radiation), e.g. (electro)magnetic fields, lasers, etc.
- Section 325 (1) StGB (air pollution) will also be amended. According to the draft bill, this will in future only cover acts that cause “significant” changes to the air. At the same time, the restriction that these changes must occur during the operation of a facility will be removed. Accordingly, the specification that the changes must occur “outside the area belonging to the plant” will also be omitted. Furthermore, the previous exemption in Section 325 (2) StGB for motor vehicles, rail, air and water vehicles is to be omitted. The transport sector must therefore prepare itself for significantly more severe consequences in the event of air pollution.
- Section 327a StGB-E (unauthorised execution of projects) is newly introduced, which makes the execution of certain (construction) projects in violation of administrative law a criminal offence. The projects covered by the penalty are characterised by the fact that an environmental impact assessment should have been carried out, but this was either omitted or did not lead to the necessary approval, and the project is nevertheless being continued or carried out in the knowledge of this deficiency. The new Section 327a StGB-E is thus a purely intentional offence; negligent commission is not to be punished.
- The BMJV has decided against the explicit introduction of a separate so-called “ecocide offence”. Instead, it intends to introduce new qualifying offences in both core and ancillary criminal law. These sanction the causing of “catastrophic consequences” for protected environmental legal interests. The qualifications inserted in various places are fulfilled by damage to ecosystems, water bodies, etc. that is particularly intense or cannot be remedied, or can only be remedied after a long period of time. Examples of this qualification can be found, among other places, in Section 330 (2) and (3) StGB-E (particularly serious cases of environmental offences; qualification), which, however, is linked to the intentional commission of a basic offence.
Ancillary laws that contain criminal sanctions will also be amended in line with the Ecocide Directive. These include, in particular, violations of European legal requirements, such as the REACH Regulation, the Biocidal Products Regulation, the Plant Protection Products Regulation and violations of other EU regulations that are subject to criminal sanctions under German law. Violations were already punishable by law, but existing offences will now also be classified as suitability offences, the penalties have been significantly increased and supplemented by the qualification of causing “catastrophic consequences”.
- Section 27 (2) ChemG (penal provisions of the ChemG) is amended to the effect that, according to Section 26 ChemG, unlawful acts or omissions (e.g. violations of legal regulations regarding reporting obligations or the use of chemicals, biocides, etc.) are punishable under Section 26 ChemG if they are likely to cause significant damage to animals, plants, water, air, soil or an ecosystem.
- A new provision, Section 27b ChemG-E (Violations of distribution regulations), has been added, which makes the distribution of substances intended for use in an illegal (criminal) act a punishable offence. However, this only applies if the distributor is aware of the illegal use or recklessly disregards it.
- The same applies in § 27c (2) ChemG-E with regard to the (unauthorised) placing on the market or use of a substance subject to authorisation under Annex XIV of the REACH Regulation if this action is likely to cause significant damage to animals, plants, water, air, soil or an ecosystem. Here, too, the attempt alone will be punishable.
- Section 27d ChemG-E is also newly inserted, which, among other things, sanctions the release of fluorinated gases (para. 1 no. 1) as a violation of Article 4 of Regulation (EU) 2024/573 (Fluorinated Gas Regulation) as well as other violations of this regulation. Similarly, the new Section 27e ChemG-E penalises violations of Regulation (EU) 2024/590 (Ozone Regulation).
- The new Section 27f (1) ChemG-E (serious chemical offences) further emphasises the destruction or causing of catastrophic consequences in ecosystems of “considerable size or value” under criminal law – with a penalty of up to 10 years’ imprisonment, bringing it to the level of the particularly serious environmental offence under Section 330 of the German Criminal Code (StGB).
Particularly in conjunction with the introduction of the new hazard classes under the CLP Regulation with regard to persistent and mobile substances, the tightening of sanctions poses a considerable liability risk for affected companies. This is because the (unlawful) release of persistent and mobile substances is likely, at least in principle, to cause “catastrophic consequences” in the form of widespread and significant damage that is either irreversible or permanent. Companies should therefore not only closely follow the relevant procedures for harmonised classification and labelling under the CLP Regulation, but also keep an eye on the interactions with potential criminal sanctions.
D. More severe penalties, especially for companies
The European guidelines on minimum values for maximum penalties are forcing German legislators to increase numerous penalty ranges. The Environmental Criminal Law Directive not only contains specific guidelines for imposing sanctions on individuals, but also, for the first time, on companies.
Section 30 of the OWiG, which regulates fines against companies, has also been amended. Previously, fines could amount to up to EUR 10 million under Section 30(2) OWiG. In future, the maximum fine for intentional violations can be increased to EUR 40 million. In the case of negligent violations, the maximum amount will also quadruple from a maximum of EUR 5 million to up to EUR 20 million.
It is important to emphasise that this increase in the maximum amounts for corporate fines has an impact beyond environmental criminal law and marks a fundamental reassessment of corporate responsibility. Significantly higher fines can now also be imposed for other violations, and a company can thus be punished more severely for criminal offences or administrative offences committed by its managers.
Outlook
In particular, the sharp increase in the upper limits for fines under the OWiG, but also the expanded criminal offences in the StGB and ancillary laws, are a clear call for companies in all industries to critically examine their compliance and environmental management systems for possible weaknesses. Even if individual changes are still to be expected in the legislative process, the Environmental Criminal Law Directive leaves little room for manoeuvre in many areas. The effects of a company’s own actions must now also be examined in relation to other legal interests (especially ecosystems) and any adverse effects must be ruled out. However, this is not only advisable because of the new sanctions, but should also be in the companies’ own interests. Value creation processes and supply chains ultimately depend on ecosystems remaining intact and nature continuing to provide ecosystem services (e.g. the supply of water).
Do you have any questions about this news or would you like to discuss it with the author? Please contact: Paul Jäde, Philipp Kolland and Martin Ahlhaus
