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Illegal Logging

Fighting Environmental Crime in Germany: A Country Report

Germany has a sophisticated set of rules regarding environmental crimes, consisting mainly of a chapter on offences against the environment in the Criminal Code (primary criminal law, Kernstraftrecht), and of various environmental offences spread over different environmental laws (secondary criminal law, Nebenstrafrecht). These criminal provisions are complemented by a multitude of administrative penal offences, which may be imposed by the administrative authorities who have jurisdiction to prosecute and sanction administrative penal offences according to the Administrative Offences Act (OWiG). In criminalising a wide range of environmentally harmful behaviour, German environmental criminal law is a typical example of a modern legal system based on prevention and risk assessment.

German environmental criminal law already conformed by and large to Directive 2008/99/EC on the protection of the environment through criminal law (ECD). In spite of the limited changes introduced in German criminal law, the ‘Europeanisation’ of German environmental criminal law through the ECD has some important general impacts, for example an increased dependency of environmental criminal law on administrative law, and an even larger criminalisation of environmentally harmful behaviour.

In spite of the sophisticated regulatory framework, Germany faces a number of problems enforcing environmental criminal law. Due to the scientific complexity of the circumstances surrounding environmental crime cases, it is difficult to find enough evidence against perpetrators. Particularly in decentralised large-scale enterprises, the division of work makes it difficult to attribute criminal liability to a particular person. In addition to these legal barriers, there are factual barriers such as insufficient resources and expertise of the prosecution service. These legal and factual problems of proof are the main reason that the vast majority of environmental criminal proceedings are terminated for insufficient grounds to proceed with public charges. This environmental crime enforcement deficit is probably the main reason for the constant decline of the number of reported crimes against the environment since 1999. It is still to be clarified whether the enlarged criminalisation due to the transposition of the ECD into German law results in better protection of the environment or exacerbates the existing enforcement deficit.