Analysis
14 July 2021

The strengthening of environmental justice through the introduction of French Environmental Convention judiciaire d’intérêt public

Bastille Day 2021 - Legislative, Regulatory & Policy updates

 

In recent years, environmental considerations have been at the heart of current concerns and awareness has been raised, illustrated by legislative development relating to the environment such as the French Law dated 24 December 2020 on the European Public Prosecutor’s Office, environmental justice, and specialized criminal justice[i].

This law, has put in place a new Deferred Prosecution Agreement (“CJIP”)[ii], adjusted to environmental issues which was added into the Code of Criminal Procedure for entities charged with several offences under the Environmental Code[iii].

I. The insufficiency of the French repressive regime for environmental offences

The creation of an Environmental CJIP comes at a time when the existing repression of environmental offences was insufficient[iv] notably due to the complexity of environmental criminal law requiring a scientific expertise[v].

Thus, to bypass this technicality and to avoid the complex task of characterizing the offence[vi], alternatives measures are often the most fitted response[vii].

Notably, criminal transaction is available for offences punishable by less than two years’ imprisonment and includes among its obligation a fine of one third of that normally incurred[viii]. Nevertheless, this criminal transaction has been described as insufficient in the sense that it is not applicable to environmental offences of a certain gravity[ix] and is unsuited to environmental issues[x].

The new Environmental CJIP was thus created to fill these gaps and strengthen the repression of serious environmental offences[xi].

II. The creation of Environmental CJIP as a new tool for the repression and protection of environmental damages

Possibilities of repression of environmental offences were made stronger with the introduction of the Environmental CJIP. Indeed, this tool can be used against entities who are accused of one or more offences and related offences mentioned in the Environmental Code. It for a fine up to 30% of the average annual turnover calculated on the basis of the last three known annual turnovers on the date of the finding of these breaches[xii].

Reparation and protection of the environment are also reinforced with the new CJIP which provides that the entity may be required to implement an environmental compliance program over a period of three years and under the supervision of the relevant departments of the Minister of the Environment. The entity may also be required, within a maximum of three years, to repair the ecological damage resulting from the offences committed[xiii]. The environmental CJIP thus intends a faster and more effective remedy for environmental damage[xiv].

With regards to this procedure, the provisions refer to the modalities of the CJIP of the Sapin II Law. The agreement does not have to be made before the public prosecution is initiated, must be validated by the president of the judicial court, and be published[xv].

The Environmental CJIP therefore demonstrates the growing willingness of authorities to sanction environmental law violations committed by companies, forcing entities subject to these risks to strengthen their compliance programs in this area[xvi]. However, some questions regarding the application of this Convention may arise.

III. The remaining issues related to the Environmental CJIP

While the Environmental CJIP may be an advantage for companies in that it avoids legal proceedings costs and the legal uncertainty[xvii], it is questionable whether this mechanism will be considered by companies given the current low level of fines in the environmental area[xviii]. The current reforms may nevertheless change the situation in that they provide for an increase of fines up to several million euros[xix].

In addition, the large publicity reserved for an environmental CJIP (Ministry of Justice, Ministry of Environment, Municipalities)[xx] may create a fear of the economic operators, due to the greater visibility and potential increase in claims[xxi].

Finally, there are still questions regarding the scope of compliance programs. Indeed, unlike the Sapin II Law and the traditional CJIP, the December 2020 law and the accompanying reports provide, to this date, relatively few details on the nature of the compliance program and the way its implementation is assessed[xxii].

Related content

Publication
6 October 2022
Jurisdiction and powers of international arbitral tribunals when dealing with allegations of corruption
Stéphane de Navacelle and Juliette Musso discuss the issues of jurisdiction and powers of international arbitrators when faced with allegations or facts related to corru...
Press review
Press review - Week of 26 September 2022
30 September 2022
Press review – Week of 26 September 2022
In this press review, you will find an analysis of a recent decision of the French Cour de cassation which reiterates the legal obligations of financial institutions rega...
Press review
Press review - Week of 19 September 2022
23 September 2022
Press review – Week of 19 September 2022
In this week's press review, you will discover the criminal initiatives at the European Union level announced by the President of the European Commission, and the new Fre...
Press review
Press review - Week of 5 September 2022
9 September 2022
Press review – Week of 5 September 2022
In this press review you will find two cases regarding the criminal prosecution of foreign nationals. First, the review addresses the conviction confirmed by the French C...
Press review
Press review - Week of 29 August 2022
2 September 2022
Press review – Week of 29 August 2022
In this press review you will find the implications for France following the delay of transposition of the European directive on whistleblowers. The French Conseil d'Etat...
Press review
Press review - Week of 25 july 2022
29 July 2022
Press review – Week of 25 July 2022
In this review, you will discover two CNIL’s recent decisions, the first one aiming at protecting data rental cars’ users and the second one aiming at regulating the ...
Press review
Press review - Week of 18 July 2022
22 July 2022
Press review – Week of 18 July 2022
In this review you will discover a Dalloz study on the growing control of the European Courts on arbitration matters, a campaign of the CJEU against arbitration which is ...
Podcast
reforms suggested by compliance professionals
21 July 2022
Vigilance: reforms suggested by compliance professionals
Simplification of the legal framework, exemption from criminal liability, better coordination of litigation, a future authority responsible for the duty of vigilance and ...
Analysis
Transposition of the European Whistleblowers Directive: Towards a reinforcement of the French protection system
14 July 2022
Transposition of the European Whistleblowers Directive: Towards a reinforcement of the French protection system
The text of the law aimed at improving the protection of whistleblowers, drafted by the Joint Committee, was approved by the National Assembly on 8 February and by the Se...
Analysis
The challenges of environmental criminal law in the light of the deferred prosecution agreement in environmental matters
14 July 2022
The challenges of environmental criminal law in the light of the deferred prosecution agreement in environmental matters
A new deferred prosecution agreement in environmental matters is an opportunity to review the creation of this new mechanism serving French environmental criminal law, bu...
Publication
BDN 2022
14 July 2022
Bastille Day Newsletter 2022
On this 14th of July, lawyers at Navacelle offer you, as it does every year, a selection of noticeable events which occurred in France during the last 12 months in the fi...
Analysis
AFA and PNF Practical Guide on the internal anti-corruption investigation
14 July 2022
AFA and PNF Practical Guide on the internal anti-corruption investigation
The internal investigation, as a modulator in the detection of corruption or influence peddling, represents a fundamental tool for the actors of economic life in terms of...