Directive (EU) 2024/1203, the new environmental crime directive, aims to establish minimum rules across EU for defining environmental criminal offences and imposing penalties in order to protect the environment. Provision of Article 3.2(q) underlines that any conduct which causes the deterioration of a habitat within a protected site, or the disturbance of animal species listed in Annex II, point (a), to Directive 92/43/EEC within a protected site, within the meaning of Article 6(2) of that Directive, where such deterioration or disturbance is significant must be criminalized if such conduct causes (3.3.a) the destruction of, or widespread and substantial damage which is either irreversible or long-lasting to, an ecosystem of considerable size or environmental value or a habitat within a protected site. Member States must incorporate the Directive into national law by 21 May 2026.
The above provision is transposed into Article 271 of the Criminal Code. Article 32 of the Law on the Protection of the Environment further specifies that a significant adverse effect on the species’ habitat or natural habitat is determined on the basis of the following measurable data: 1) a reduction in the area occupied by the species’ habitat or natural habitat; 2) the importance of specific individuals or the affected area for the conservation of the species’ habitat or natural habitat, and the rarity of the species’ habitat or natural habitat (assessed at the local, regional, or higher level, including the European Union level); 3) the potential for natural recovery of the species’ habitat or natural habitat (based on the dynamics typical of the natural habitat’s characteristic species or their populations); 4) the ability of the species’ habitat or natural habitat that has been damaged to recover, within a short period of time and without any intervention other than enhanced conservation measures, to a state equal to or better than the original conservation status of the species’ habitat or natural habitat due to the dynamics of the species’ habitat or natural habitat. Any adverse effect on a protected species, species habitat, or natural habitat shall be considered significant if it is accompanied by an impact of the environmental damage on human health. An adverse effect on a protected species, a species habitat, or a natural habitat shall not be considered significant if at least one of the following conditions is met: 1) adverse changes that are less than the natural fluctuations considered normal for that protected species, species habitat, or natural habitat; 2) adverse changes resulting from natural causes or from interventions related to the normal management of the area, as described in nature management plans or other documents establishing conservation measures; 3) where it is established that a protected species, a species’ habitat, or a natural habitat will, without any intervention, recover to a state equivalent to or better than the initial state (due to the dynamic characteristics of the protected species, species habitat, or natural habitat) within a period of one year.
The protection intended by the directive cannot be effective if no protection requirements are put in place. It should be recalled that, pursuant to Article 6(1) of the Habitats Directive, for every special area of conservation the Member States must establish the necessary conservation measures which correspond to the ecological requirements of the natural habitat types listed in Annex I to that directive and the species listed in Annex II present on the site concerned. Under Article 4(4) of the Habitats Directive, every SCI must be designated by the Member State concerned as such an area.
In addition, it should be noted that Article 4 of the Birds Directive lays down a regime which is specifically targeted and reinforced both for the species listed in Annex I to that directive and for regularly occurring migratory species not listed in that annex, an approach justified by the fact that they are, respectively, the most endangered species and the species constituting a common heritage of the European Union. The Member States are therefore required to adopt the measures necessary for the conservation of those species (judgment of 13 December 2007, Commission v Ireland, C‑418/04, EU:C:2007:780, paragraph 46 and the case-law cited). Those measures must be capable of ensuring, in particular, the survival and reproduction of the bird species listed in Annex I to the Birds Directive and the breeding, moulting and wintering of regularly occurring migratory species not listed in that annex. They cannot be limited to avoiding external anthropogenic impairment and disturbance but must also, depending on the situation that presents itself, include positive measures to preserve or improve the state of the site (judgment of 13 December 2007, Commission v Ireland, C‑418/04, EU:C:2007:780, paragraphs 153 and 154).
As underlined by CJEU in C-441/17 the conservation measures necessary for maintaining a favourable conservation status of the protected habitats and species within the site concerned not only be adopted, but also, and above all, be actually implemented. The Court held in that instance (218) that implementation of the active forest management operations at issue results in loss of a part of the Puszcza Białowieska Natura 2000 site. Such operations cannot constitute measures ensuring the conservation of that site, for the purposes of Article 6(1) of the Habitats Directive (see, by analogy, judgment of 21 July 2016, Orleans and Others, C 387/15 and C 388/15, EU:C:2016:583, paragraph 38).
The formal designation of a protected territory is not enough, it must be effective. The recent WWF report (March 2026) underlines that Article 15 of the Environmental Crime Directive builds on the provisions contained in the Aarhus Convention, with a specific focus on procedural rights in proceedings and access to information about the progress of these proceedings. Since nature cannot represent itself, and because this area of criminal law remains substantially under-prioritised and under-resourced, such rights are fundamental to uphold the rule of law.
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