Environmental crime or violation: do you know the difference?
Imagine that the Flemish Environmental Inspectorate department came to check whether your organisation complies with the environmental legislation. Did the inspector find a violation? Then it is crucial that you know whether it is an environmental crime or violation. Because both have a radically different meaning and impact on your business.
Environmental violation: little or no impact
An environmental violation causes limited or no injury to people and the environment. For example, not complying with administrative obligations, such as submitting the annual environmental report. Or, not providing certain reports and investigation results to the Environmental Inspectorate. The inspector documents such violations in a findings report.
All environmental violations are listed in the Appendices to the Environmental Enforcement Act.
Only the Enforcement Division of the Environmental Inspectorate may sanction an environmental violation, and that with an administrative fine of up to 50,000 euros. Moreover, the inspectorate can also impose an administrative order (see below). Environmental violations do not lead to imprisonment.
Environmental crime: a type of illegal act
An environmental crime, on the other hand, does cause injury to people or the environment. In principle, all breaches of the law that are not listed in the appendix to the Environmental Enforcement Act are environmental crimes. Concrete examples are illegal dumping, extracting water without a permit, discharging polluted water, and illegal removal of asbestos.
If an inspector discovers an environmental crime, he/she will immediately draw up an official report. The public prosecutor's office then decides whether the case will be brought before the correctional court. If so, an out-of-court settlement or a fine and/or imprisonment will be imposed on you. If the prosecutor decides not to prosecute the crime, the Enforcement Division is engaged and you will be penalised with an administrative fine of up to 250,000 euros. In addition, you must fulfil the administrative orders as quickly as possible to comply with the environmental requirements (see below).
How much is an administrative fine?
An administrative fine can amount to up to 50,000 euros for an environmental violation and up to 250,000 euros for an environmental crime. The exact amount depends on three criteria: gravity, frequency, and circumstances.
- Gravity of the acts
The gravity of the acts also depends on several factors: number of offences committed, potential impact on the environment, and whether fraud is involved. The Environmental Inspectorate determines the gravity of the violation for diverse topics: waste, soil, operating without an integrated environmental permit, etc.
Have you previously committed similar acts or is there a systematic problem? Obviously, the fine will then be higher.
- Mitigating circumstances: you already took action to end the environmental violation.
- Aggravating circumstances: you do not cooperate with the investigators, try to mislead the Environmental Inspectorate, or behave aggressively.
- Financial capacity: your financial resources are limited. If so, the Enforcement Division may reduce the fine.
- Reasonable period for decision: if the case dossier exceeds the decision period, the fine may be lowered.
What are the possible administrative orders?
An administrative order is not a sanction, rather it is intended to restore the environment. Such an order can take various forms:
- With a cease-and-desist order, you must stop work activities or no longer use materials.
- With a regularisation order, you must end the environmental violation, undo the consequences, and prevent its recurrence.
- An administrative enforcement has the same meaning as a regularisation order, except that the authorities ends the environmental violation, for example, by sealing off the installation or having illegally dumped waste removed.
If you do not carry out the administrative order (on time), you risk a judicially imposed penalty of up to 1,000,000 euros.
The consequences of both an environmental violation and crime are serious. Moreover, staff and customers/consumers attach increasingly more importance to environmentally-friendly business operations.
Is your organisation in compliance with the environmental legislation?
Want to check whether your organisation complies with the environmental legislation? Our specialists will check whether your policy complies with the legislation and provide you with focused advice. Mail us at email@example.com or call us on +32 11 26 99 92.