Analysis
14 July 2021

The creation of the crime of ecocide in French law unleashes passions

Bastille Day Newsletter 2021 - Legislative, Regulatory & Policy Updates

 

The necessity to protect the environment is undeniable and it is essential to alert on the importance of environmental crime and its impact on our planet, since it is expanding considerably on an international scale and was already, in 2016, the fourth criminal activity in the world[i]. Nevertheless, despite the gravity of environmental crimes and the irreversible damage they cause to ecosystems, the criminal justice response in France is not as effective as it could be, and these crimes still go largely unpunished[ii].

Indeed, if French environmental criminal law has a wide range of offenses (approximately 2000), there is no generic offense for the most serious environmental violations. Environmental violations are thus only punished by sectoral and scattered provisions, which makes the repressive system difficult to read and a source of confusion both for practitioners and the citizens who are directly concerned by the provisions protecting their natural environment[iii].

Furthermore, despite the many existing environmental offenses, environmental litigation represents only a tiny proportion (0.5%) of the total number of cases involving all types of litigation and the criminal justice response for environmental code offenses is mostly in the form of alternative procedures to prosecution or relatively low penalties[iv].

Therefore, in order to significantly strengthen the protection of the environment through criminal law, it seems necessary to harmonize the existing provisions and to severely punish the most serious environmental offenses. In this sense, in January 2020, the “Citizens’ Climate Convention”[v] has proposed the adoption of a law that protects ecosystems from degradation and destruction in placing legal and financial responsibility on the perpetrators of depredations by means of a new offense of Ecocide[vi].

After the modifications proposed by the Legislation Committee[vii] firstly[viii] and those made by the legislators secondly, in order for the proposed law to meet the principle of legality of offenses and penalties and the principle of proportionality of penalty, the “Bill to combat climate change and strengthen resilience to its effects” (hereinafter “the Bill”) finally proposed to introduce an offense of Ecocide in the environmental code in order to strengthen the existing rules and penalties and to contribute more effectively to the protection of the environment[ix].

Specifically, the proposed Ecocide offense is merely an aggravation of three new offenses created by the Bill, namely: the offense of air and water pollution when the facts are committed intentionally, the offenses provided for in articles L173-1 and L173-2 in the event of damage to health or the environment, and the offense of soil pollution when such offenses are committed with the knowledge of the serious and lasting nature of the damage to health, flora, fauna or fauna or the quality of the air, water, or soil, likely to be induced by the acts committed[x]. The proposed penalty for the three new offenses is 5 years’ imprisonment and a fine of 1 million euros. When they are aggravated and become ecocide, these offences are punishable by 10 years’ imprisonment and a fine of 4.5 million euros or an amount corresponding to ten times the benefit derived from the commission of the offense[xi].

The Conseil d’Etat, French Supreme court for administrative justice also acting as legal adviser to the legislative branch, issued a clear-cut opinion considering that the offense of Ecocide, as presented, violated the principle of equality before the criminal law and the principle of graduation and proportionality of the penalty[xii]. Moreover, a large part of civil society, the majority of political parties, environmentalists and environmental protection activists did not welcome the proposal of the offense of Ecocide.

For example, NGO such as “Notre Affaire à Tous” and “Wild Legal”, which were behind the proposals to create a crime of Ecocide in the criminal code, considered that the proposed offense of Ecocide to be included in the environmental code is not sufficient as it is merely a mean of sanctioning acts of pollution already incriminated by other common offenses, whereas the offense of Ecocide should incriminate only the most serious damages to environment. They are also concerned that the offense of Ecocide, as presented in the Bill, would be against international progress and weaken the process of defining the crime of Ecocide at an international level[xiii].

On May 4, 2021, the National Assembly adopted the Bill without introducing any changes to the offense of Ecocide, and at the same time inserted a new article stating that within one year of the promulgation of the Bill, the Government should submit to Parliament a report on its action in favor of the recognition of Ecocide as a crime that can be tried by international criminal courts[xiv]. On June 2, 2021, the Commission on Land Use Planning and Sustainable Development of the Senate, in charge of reviewing the bill, proposed not to create an offense of Ecocide but instead to create two other offenses: the first would punish unintentional environmental damages with five years’ imprisonment and a fine of one million euros and the second would punish intentional environmental damage with seven years’ imprisonment and a fine of 4.5 million euros, the amount of the fine being increased to ten times the benefit derived from the commission of the offense[xv]. The parliamentary work and the debates on the adoption of the law are still ongoing as a consensus has yet to be reached.

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