Guidance Document: Combating environmental crime: Waste and wildlife

1. Action Plan to ImproveEnvironmental Compliance and Governance Guidance Document:Combating environmental crime:Waste and wildlife - European Commission, DG ENV - April 2019

2. The environmental complianceassurance guidance Why does compliance assurance matter? How can we make compliance assurance work?

3. Intervention logic 1. Introduction 2. Definitions: environmental crime, unlawful conduct and compliance assurance 3. Waste obligations and breaches 4. Wildlife obligations and breaches 5. Challenges for competent authorities 6. Challenging waste and wildlife scenarios 7. Principles and objectives

4. Intervention logic 8. Organisation and capacity 9. Cooperation and coordination 10. Interventions to detect and characterise breaches 11. Interventions to prevent and mitigate breaches and promote compliance 12. Intervention to respond to breaches 13. Data collection, dissemination and effectiveness evaluation 14. Strategies

5. Introduction Chapter 1

6. Introduction Main objectives of the guidance: • Support Member States in their efforts to effectively address environmental crime and other unlawful conduct • Contribute to greater coherence of compliance assurance efforts • Set out the main principles with respect to compliance assurance, to support common approach to the fight against environmental crime in Member States can be developed

7. Definitions: environmental crime, unlawful conduct and compliance assurance Chapter 2

8. Environmental crime, unlawful conduct and compliance assurance • Environmental crime and unlawful conduct • Lawful conduct – obligations that need to be fulfilled • Regulations and Directives • EU rules: prohibitions, procedural requirements, permits, authorisations, development consent, general binding requirements, requirements stemming from ad-hoc court decisions • Unlawful act, criminal conduct and criminal responsibility • Directive 2008/99/EC on the protection of the environment through criminal law • Key factors for characterizing unlawful conduct

9. Compliance promotion Compliance monitoring Environmental compliance assurance Follow-up and enforcement

10. Environmental compliance assurance: the enforcement chain

11. Waste obligations and breaches Chapter 3

12. Waste obligations and breaches What is waste? Seriousness and impacts of illegal waste handling

13. Waste obligations and breaches The waste pyramid

14. Waste obligations and breaches: waste chain

15. Waste obligations and breaches Circular economy approach Aims of EU legislation: • Definition of waste • Prevention: production and dumping • Protection of the environment and human health • Control: movement, re-using, re-cycling, disposing of waste • Producers’ and holders’ responsibility • Polluter pays principle

16. Waste obligations and breaches: examples • Construction and operation of a waste facility: • Obtention of a permit • Comply with permit’s conditions • Shipment of waste : • Written contract • Permit or registration • Prohibition to mix various types of waste • Specific documents

17. Waste obligations and breaches: factors contributing to breaches • Significant source of profits • Mobility of waste • Structure of the waste sector: public / private • Ambiguity of the notion “waste” • Unlawful declassification of waste • New waste crimes related to circular economy

18. Wildlife obligations and breaches Chapter 4

19. Wildlife obligations and breaches What is wildlife crime? Seriousness and impacts

20. Wildlife obligations and breaches The EU: a market, transit and source region for wildlife trafficking Aims and instruments of EU wildlife legislation: • Protection of sites • Prohibitions for the protection of species • Trade-related requirements for the protection of global diversity • Prevention and management of invasive alien species

21. Wildlife obligations and breaches: examples Illegal killing or capturing of wildlife: use of poisons • Prohibition to deliberately kill wild birds by any method • Prohibition to use poisoned bait for killing • Wildlife trafficking: importing listed species • Permit or notification • Timber-related rules: placing timber on the market • Prohibition of illegally harvested timber and timber products • For operators: exercise due diligence

22. Wildlife obligations and breaches Directive 2008/99/EC on environmental crime • Criminal conduct defined in Article 3 Connection to other types of offenses • Fraud, corruption, money laundering • Falsification of documents • Animal health regulations • EU policies: CAP conditionality

23. Wildlife obligations and breaches Factors contributing to breaches • Profitability • Social acceptance of breaches • Ignorance of illegality by the wider public • The perceived (or real) low risk of detection and low penalties

24. Challenges for competent authorities Chapter 5

25. Challenges for competent authorities: detecting breaches • Location: can occur at many locations and involve many offenders • Clandestine character • Collection of evidence • Multiplicity of actors and complexity of the chain of responsibilities • Investigation: intimidation, violence, corruption

26. Challenges for competent authorities Challenges in characterising breaches • Footprint and impact: where, at what scale, when, with what persistence, what effects • Identificationof individual obligations, breaches and nature of liabilities Challenges in acting against identified suspects • Legality of the procedure: need to follow strictly defined rules • Coordinationbetween actors: authorities, third countries

27. Challenges for competent authorities: understanding unlawful conduct Drivers of non-compliance: • financial gains - lack of policy acceptance - ignorance - social acceptance of unlawful conduct - opportunism - organised crime - unclarity/uncertainty of legislative definitions - lack of investment - perceived low probability of detection and low sanctions • Attitudesand perceptions regarding compliance assurance • duty-holders’ respect for authority - non-governmental control - risk of being reported/ targeted - risk of inspection/checks - risk of detection - risk and severity of sanctions - perceived existence of free riders

28. Challenges for competent authorities: identifying more general patterns from detected breaches • Drivers related to third countries’ legislation • Economic factors • Long-term trends and evolutions

29. Challenging waste and wildlife scenarios Chapter 6

30. Challenging waste and wildlife scenarios Scenario 1: a problematic waste facility Scenario 2: illegal waste shipment Scenario 3: killing of wild birds Scenario 4: illegal trade in wildlife

31. Principles and objectives Chapter 7

32. Principles and objectives: principles for effective compliance assurance

33. Principles and objectives: the rule of law and fundamental rights • Legal rules and remedies • Charter: • Art. 8. Protection of personal data • Art. 16. Freedom to conduct a business • Art. 17. Right to property • Art. 21. Non-discrimination • Art. 37. Environmental protection • Art. 41. Right to good administration • Art. 47. Right to an effective remedy and to fair trial • Art. 48. Presumption of innocence and right of defence • Art. 49. Principles of legality and proportionality of criminal offences and penalties

34. Principles and objectives: EU environmental law principles (Art. 191(2) TFEU) • Precautionary principle • Prevention principle • Rectification at source principle • Polluter pays principle

35. Organisation and capacity Chapter 8

36. Organisation and capacity: actors in the compliance assurance chain

37. Organisation and capacity Need of coordination and effectiveness Risk of vicious circle effect

38. Organisation and capacity: status and responsibility of competent authorities • Independence and lack of conflict of interest • Clear identification of (formal) responsibilities • Legislative basis • Conditions for delegation of compliance assurance tasks to third parties • Ancillary guarantees for effectiveness • Appropriate competences and procedures for data Exchange

39. Organisation and capacity: capacity • Formal powers and competences • Human and financial resources: specialisation and training • Technical equipment • Testing the scenarios

40. Cooperation and coordination Chapter 9

41. Cooperation and coordination: needs… • Clear rules on obligations and competences of the organisations in charge of compliance assurance • Fostering effective coordination of activities within authorities • Fostering effective coordination of activities among different authorities • Information exchange between different authorities • Cooperation with non-public actors

42. Cooperation and coordination: formal arrangements and informal networking at national level • Specialised coordination bodies • Memoranda of understanding • National enforcement networks • Joint database • Regular strategic meetings • Joint meetings and training • Establishment of a national CITES Committee

43. Cooperation and coordination Cross-border cooperation and coordination • Designation of contact points • Joint Investigation Teams (JITs) • Europol and Eurojust EU-level, national and global environmental enforcement networks • IMPEL • ENPE • EnviCrime-Net • EUFJE • NEPA

44. Interventions to detect and characterise breaches Chapter 10

45. Interventions to detect and characterise breaches Environmental crimes “victimless” • Risk-based compliance monitoring: • Assess potential for breaches • Focus monitoring on where highest benefits • Targeting / Strategic risk assessment

46. Interventions to detect and characterise breaches: tools for detection and evidence gathering • Site visits • Surveillance • Investigation and intelligence gathering • Geospatial intelligence • Forensic analysis • Verification of self-monitoring • Audits • Expert Analysis • Custom controls • IT tools

47. Interventions to detect and characterise breaches Whistle-blowing • Relevance for environmental offences • Proposal to provide adequate protection Citizens complaints and citizen science • Complaints by victims or other citizens • Signals for possible non-compliance • Reporting • Follow-up • Citizen Science

48. Interventions to prevent and mitigate breaches and promote compliance Chapter 11

49. Interventions to prevent and mitigate breaches and promote compliance Prevention and compliance promotion activities needed where: • Lack of awareness, knowledge, understanding or capacity on the part of duty-holders • Large number of duty-holders • New and complex obligations are introduced • Large social acceptance of unlawful conduct

50. Interventions to prevent and mitigate breaches and promote compliance: possible types of activities • Communication to the general public and awareness-raising • Providing duty-holders with information, advice, guidance • Publishing official guidance documents, toolkits, checklists • Publishing compliance-related documents • Tolls for citizens to report breaches • Promoting the role of duty-holder representative bodies in helping to assure compliance