Environmental Crime in Germany

Environmental crimes in Germany are defined and classified under the German Criminal Code (Strafgesetzbuch, StGB) and the Federal Immission Control Act (Bundes-Immissionsschutzgesetz, BImSchG).

The German Criminal Code lists environmental crimes under Chapter 29, including water, soil and air pollution, unauthorised waste management, endangering protected areas, and unauthorised handling of hazardous substances. These offences are considered public crimes, meaning they harm the general public and not just individual victims.

There are also specific environmental regulations, including the Federal Immission Control Act (BlmSchg), the Waste Management Act (KrWG), the Water Resources Act and the Energy Conservation Act (Edl-G). These regulations define specific offences related to environmental protection, such as exceeding emissions limits or failing to obtain the necessary permits for certain activities.

Environmental crimes can be classified as either intentional (vorsätzliche) or negligent (fahrlässige) violations. Intentional offences involve a calculated act to cause damage to the environment, while negligent crimes involve a failure to exercise reasonable care to prevent harm to the environment. The severity of the penalty will depend on the level of intent or negligence involved in the offence, as well as the extent of the harm caused.

In addition to criminal offences, administrative offences (Ordnungswidrigkeiten) can be committed in violation of environmental laws. These crimes typically involve less serious environmental harm and are subject to administrative penalties, such as fines or orders to correct the violation.

With such an extensive focus on environmental regulations in Germany, companies and individuals should take a proactive approach to environmental compliance. Ensuring compliance prevents the risk of criminal activity and protects a company’s reputation. Our lawyers provide ongoing support with such compliance.

Our team advises companies on environmental regulations that they need to be aware of during the course of their business. We will tailor our service to fit your company’s requirements and advise your company about the necessary legal requirements, limits and deadlines.

Similarly, our lawyers will advise you regarding environmental management systems that can support your company. Such a system involves regular environmental audits, implementing appropriate policies and procedures and having monitoring and reporting systems. Businesses should also train employees in a suitable manner to comply with environmental responsibilities arising from the regulations. Such training includes the handling and disposal of hazardous material and the correct use of equipment and machinery.

Stakeholders, including local communities, environmental organisations and regulatory agencies, can strongly impact a company. It can become challenging for companies to operate in situations where the other stakeholders do not cooperate. Our lawyers can advise and prepare your company for dealings with such stakeholders.

There are many forms of environmental crime in Germany, including the following activity:

• Illegal waste disposal, including hazardous waste,
• Air pollution with the emission of pollutants such as sulfur dioxide, nitrogen oxides, and particulate matter from factories, vehicles, and other sources,
• Water pollution into rivers, lakes, and other bodies of water, including contamination from industrial processes, agriculture, and sewage,
• Soil contamination with hazardous substances, such as chemicals from industrial sites or leaking storage tanks,
• Destruction of protected species (animals and plants) and habitats,
• Violations of environmental permits.

The penalties for committing an environmental crime in Germany can deviate depending on the specific transgression and the severity of the environmental harm caused. Some of the penalties that can be imposed on an individual or company found guilty of an environmental crime may include the following:

• Fines,
• Imprisonment,
• Suspension of business operations,
• Restitution and damages,
• Confiscation of assets,
• Prohibition on specific activities.

In addition to these penalties, an offender may also face damage to their reputation and loss of business or job opportunities. The severity of the punishment will depend on the specific circumstances of the offence, including the level of intent, the extent of the harm caused, and the offender’s record.

At Schlun & Elseven Rechtsanwälte, our lawyers are available to advise business clients regarding actions they can take in such criminal defence cases.

At Schlun & Elseven Rechtsanwälte, our criminal defence team is available to assist private and business clients with environmental criminal law defence. Our advice involves examining legal frameworks that apply to the alleged criminal activity. We will outline the relevant laws, regulations and provisions and clearly outline the nature of the charges from a legal perspective.

Utilise our skills in conducting investigations and gathering evidence. Our lawyers will review the necessary documents and records, interview witnesses and experts and consult with specialists regarding technical aspects of the evidence. Once we have the required information, our team can formulate an appropriate defence strategy.

The nature of the defence strategy is, of course, dependent on many factors within the individual case. Defence strategies applicable to such cases may include demonstrating a lack of intention and that the company had taken reasonable steps in their due diligence. It may also be the case that the statute of limitations has a role to play in the case.

The statute of limitations for criminal offences is usually 10 years from the date of the crime, whereas, for less severe violations, the statute of limitations is typically 5 years. After careful examination, our legal team will determine which legal strategy is most suitable for your case.

Our experienced litigators can represent you in court and present our defence to the prosecutor and judges. We can also represent your company in out-of-court solutions, such as negotiations and arbitration, that may be more appropriate to your case. Resolving a matter outside of court is often preferable to clients, as it involves an accelerated decision process and less media attention than a court case. Our lawyers will advise you regarding potential options in this regard.

Furthermore, our team can advise you regarding managing the media and public relations relating to such cases. If left unchecked, media stories can significantly damage a company’s reputation, and by utilising our team, your company can gain legal protection to minimise its negative impact.

Germany’s environmental laws are amongst the most comprehensive and stringent globally, and this will not likely change. In fact, with climate change and related issues growing in relevance, they will likely develop further with more action taken against plastic waste and fossil fuel use. Our lawyers can advise your company regarding developing trends in the area of environmental law and ensure that your company is prepared for what the future may hold.

An example of such environmental developments is the Climate Protection Act: In 2019, the German parliament passed the Climate Protection Act, which aims to reduce greenhouse gas emissions by 55% by 2030 compared to 1990 levels (since increased to 65%). The Act includes many measures to reduce emissions, such as a carbon pricing scheme and mandatory emission reduction targets for different sectors of the economy. The Act has since been further developed to increase the targets relating to climate protection.

Companies involved in agriculture also need to be ready for potential further legal developments in this area. Agriculture is a significant source of environmental impacts in Germany, notably water pollution and greenhouse gas emissions. There is increasing pressure to reform agricultural practices to make them more sustainable and reduce pesticide and fertiliser use.

The shift towards electric vehicles has already gathered momentum in the automotive industry. This industry has been the backbone of the German economy for many decades, and such changes will have an enormous impact on it in the coming years.

These developments, including the growing focus on the “circular economy”, demonstrate significant actions already underway in Germany, and the law will reflect them. As environmental laws and regulations change, companies should be prepared to work closely with legal professionals to ensure they stay ahead and remain compliant with these regulations.

Companies in Germany should be aware that private individuals have robust rights regarding reporting suspected breaches of environmental law. For example, when reporting on alleged activity, private individuals have the right to:

1. Anonymity,
2. Protection against retaliation,
3. Access to information,
4. Participate in decision-making via public hearings and other forums,
5. Take legal action.

These are significant actions, and companies should not be passive or complacent when facing such complaints. These rights are seen as essential to promoting transparency, accountability, and public participation in environmental decision-making and are held very seriously.

Should a citizen or environmental organisation seek legal recourse against a company for suspected environmental criminal activity, they can file a complaint with the authorities, bring a civil lawsuit (individually or as part of a more prominent citizen’s group or environmental organisation), seek an administrative remedy or even file a criminal complaint with the public prosecutor’s office.

Businesses should also be aware that employees have significant rights as whistleblowers under German law, and the enterprise should have practical guidelines and feedback systems. Implementing such structures allows these matters to be resolved in-house without forcing the employee to go to the media or the regulatory bodies first.