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].

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