"Environmental law: a comprehensive yet rather ineffective legal framework" (J-P. Rivaud)

You're one of the founders of the Network of European Prosecutors for the Environment. Why did you decide to set up a dedicated association?

The Network was founded back in 2012. At that time, I was a magistrate working in the public prosecutor's office at the Amiens Court of Appeal, serving as the environmental referent for this pioneering jurisdiction in environmental law. Back then, environmental issues weren't getting much attention from the French justice system.

Through discussions with colleagues across the European Union, the idea emerged of creating an association specifically for environmental prosecutors. Initially, we tried adding a 'Prosecutors' section to another organization - the EU Forum of Judges for the Environment. But this model didn't last because of structural issues: in France, judges and prosecutors are part of the same magistracy, which isn't the case in most other countries.

Eventually, we established a dedicated association based in Brussels to be as close as possible to the European institutions. Since then, the network has grown significantly, with many members and observers, some from outside the EU.

What are the network's main goals?

The network focuses on all environmental legal issues covered by what's known as secondary legislation of the European Union. Our goal is to push environmental law forward at both legal and judicial levels. As the European Commission's point of contact, we provide technical advice and share best practices between member states.

How old is the concept of environmental offenses?

If we look at the history of French environmental law, we can trace efforts to punish environmental offenses all the way back to the Middle Ages. Back then, with no sewage systems in place, dumping household waste could result in fines. Environmental legislation really took off in the 19^th century, alongside industrial growth.

Environmental legislation really took off in the 19^th century

It wasn't until 2000 that the Environmental Code was created, bringing together and codifying existing legislation. Despite this, environmental law remains incredibly complex - if not downright confusing - because it's spread across not one but 15 different legal codes! What's more, it's the only branch of special social law that draws from so many different sources.

In practical terms, what kinds of offenses does environmental law cover today?

Environmental law covers nearly 2,000 different offenses! Most are related to hunting and fishing, but they also include pollution, trafficking in protected species, illegal waste, protected areas, and administrative violations involving industrial sites and factories. In short, it's an incredibly broad range of offenses. In short, it's a massive maze for French magistrates. While the body of law is substantial, it's not particularly powerful. Out of these 2,000 offenses, none are included in the penal Code.

Only 10% of legal qualifications are pursued

What's more, only 10% of these offenses are actually prosecuted. That means 90% can only be punished with a €1,500 fine. This makes environmental law largely ineffective in France. Looking at the legal texts, the 2008 European Directive on environmental protection, which France transposed, has had little impact. And in terms of criminal law, France still hasn't transposed a Directive from April 24, 2024.

Can we now talk about 'environmental crime'? Does this term exist in law?

The term “environmental crime” - often used by associations or the press - is actually a mistranslation of the English term "crime", which is a "faux ami". We do talk about environmental offenses, but legally they can't be classified as crimes under French law (except in cases involving forest fires).

But can we say that progress has been made, particularly in France?

There has indeed been progress in France, but it's not enough to meet the challenge. In 2020, it was decided to set up a Regional Environmental Unit for each of the 26 Courts of Appeal, tasked with handling the most complex environmental cases. Despite clear progress, these centers operate in quite a patchy way due to limited financial and human resources. The reality is that, given current political priorities, I'm not sure environmental issues are actually getting the attention they deserve.

Have you seen any increase in the number of judges specializing in environmental law?

There's a real lack of training for magistrates in environmental law, despite the Ecole Nationale de la Magistrature making efforts to expand its continuing education programs. Even initial training often fails to cover entire areas of environmental law. Judges are also very hesitant about climate-related litigation given its complexity. We don't see much enthusiasm among public prosecutors to develop environmental expertise - there are so many other cases to handle, particularly personal injury cases. No one disputes their priority, and we can't tackle everything at once.

How can we ensure that environmental law plays a bigger role in legal practice?

It's important to understand that when it comes to justice, the top priority is security - fighting drug trafficking and organized crime. These cases often get massive media coverage and create what I call 'noisy' victims because of the huge impact these tragedies have. Pollution victims, on the other hand, are 'low-noise' victims - their suffering often only becomes apparent years later, without violence or explosions. Unfortunately, this doesn't lead to changes in the law.

The subject could be approached from the angle of environmental safety

If we consider personal injury, environmental issues could be addressed through the lens of environmental safety, since the impacts of climate change are so widespread. This would require adapting the law, but it would make justice more effective.

At the European level, are some countries more advanced than others?

The European legal framework lets us speak a common language. But there are big differences in progress: Spain has created a dedicated public prosecutor's office for the environment, while Italy is leading the way in tackling waste and protected species trafficking.

The complications really start when you go beyond Europe. Roissy-Charles de Gaulle airport is the main entry point for protected plants and animals, but once transnational investigations are needed, things don't work so well despite international agreements. In practice, these aren't always respected.

France's creation of central offices with national jurisdiction is welcome, including in the Overseas Territories where 90% of France's biodiversity is found. The gendarmerie has also equipped itself with the tools to combat environmental and public health offenses, with eight branches across the country.

Are there adequate safeguards at the international level?

There are very few international agreements. I can mention the 2000 Palermo Convention, which set the legal framework for organized crime. There are discussions about adding the concept of organized environmental crime, but some States are blocking this.

On the other hand, the European Court of Human Rights has developed a body of case law around the right to a healthy environment - specifically concerning the right to life and respect for family life. This case law could have impact on the civil law.