Administrative Fines
Environmental offences are covered by various environmental laws. One example is section 62 para 1 (1) of the Federal Immission Control Act (BImSchG). According to this, anyone who intentionally or negligently constructs a facility requiring a permit without a permit is acting unlawfully. Other environmental laws also contain administrative offences, such as section 103 of the Water Resources Act (WHG), section 69 of the Federal Nature Conservation Act (BNatSchG) or section 69 of the Circular Economy Act (KrWG).
The law specifies a range of fines. The concrete amount of the fine must be proportionate and therefore depends on the circumstances of the individual case. It is determined by the competent authority in a fine notice. A catalogue of fines often serves as a guide. However, the catalogues of fines only provide guidelines for certain situations that occur more frequently. They do not exempt the authority from examining the individual case.
A fine can be imposed not only on natural persons, but also, under certain conditions, on legal entities and associations of persons (e.g. companies). Due to the special provision of section 30 of the Administrative Offences Act (OWiG), higher fines than those provided for in the fine ranges of the sectoral environmental laws can be imposed on legal entities and associations of persons. The fine ranges are not usually used to their full extend and are mostly based on the lower end of the specified range.
Environmental criminal offences
Criminal law is the ‘sharpest sword’ in our legal system. It is therefore only used as a last resort (known as ultima ratio). Only the most serious violations of environmental law are therefore subject to criminal sanctions. By classifying them as criminal offences, the legislator expresses that these violations are particularly reprehensible. Such environmental offences are not only found in Section 29 of the Criminal Code (StGB) – Offences against the environment, but also in various environmental laws, such as sections 71, 71a of the Federal Nature Conservation Act (BNatSchG) and sections 18a, 18b of the Waste Shipment Act (AbfVerbrG).
The criminal provisions also only provide a range within which the specific penalty must fall in each individual case. There are monetary penalties and prison sentences. The type of penalty imposed and the severity of the penalty in each individual case is determined by a court. As with administrative offences, the specific circumstances of the case are taken into account to ensure that the penalty is proportionate to the offence and the guilt of the perpetrator. In Germany, only natural persons can be punished, as German criminal law applies the principle of guilt. This means that only someone who can be personally blamed for the offence can be punished. There is currently no corporate criminal law in Germany. Therefore, legal entities and associations of persons cannot be prosecuted under criminal law. Instead, the natural person acting on behalf of the company must always be identified and their guilt proven. This often poses challenges for criminal prosecution. Administrative offences are therefore of considerable importance in the context of corporate violations of environmental law.
In addition to the actual penalties, there is also the possibility of imposing certain additional penalties. These include, for example, a professional ban, exclusion from public office or the confiscation of proceeds from the offence, cf. sections 45, 70 ff., 73 ff. StGB. These additional consequences are important instruments for increasing the deterrent effect and preventing offenders from enriching themselves through their crimes.
Jurisdictions
The Länder (federal states) are generally responsible for prosecuting environmental offences and crimes. The fines imposed for offences are administrative sanctions. The competent administrative authority is therefore responsible for investigating the facts of the case and determining the fine. In the case of environmental crimes, however, the police and public prosecutor's office investigate. If the public prosecutor's office considers a conviction likely, it brings charges before the competent court. If the court opens the main hearing, it usually decides on the verdict and the sentence after an oral hearing.
The Federal Environment Agency is only responsible for prosecuting environmental offences and environmental crimes in exceptional cases, e.g. under section 45 of the Electrical and Electronic Equipment Act (ElektroG). This applies, for example, to non-registration in the register of registered manufacturers and registered authorised representatives maintained by the stiftung elektro-altgeräte register (WEEE Register) in accordance with the ElektroG.
Administrative accessoriness
Characteristic of environmental criminal law is the so-called administrative accessoriness. This means that criminal liability not only requires committing a specific action, but also a violation of administrative law provisions. A violation of administrative regulations occurs, for example, when someone carries out an activity that requires a permit without having a permit or exceeds the limits of an existing permit. Administrative accessoriness serves the unity of the legal system: no one should be prosecuted for something that was permitted under administrative law.
European law
European law also contains provisions for environmental criminal law. Of particular note here is Directive (EU) 2024/1203 on the protection of the environment through criminal law. Among other things, it determines minimum standards of which behaviour affecting the environment Member States must criminalise and the minimum upper limits for penalties. It also contains provisions on the surrounding conditions and procedures, such as the systematic collection and publication of data and information on environmental crime and cooperation between Member States. Member States, including Germany, must transpose the provisions of the Directive into national law by May 2026.
Statistics
The UBA publication series "Umweltdelikte" (Environmental offences) has been describing the status and trends in environmental offences based on police and court statistics since 1978. The series provides the statistics on environmental offences, ranging from investigation to conviction, and information on crime sites and perpetrators.
The latest 33th edition of the publication considering data up to 2024 is available here, including an abstract and conclusion of the main findings in English language.
The analysis of the data up to 2024 shows that the number of cases of criminal offences against the environment recorded by the police dropped by 9 percent from 2013 to 2024. The available data do not however provide any information as to why this is the case. Possible reasons – beside an de facto decline in environmental crime – include lower capacity of the competent authorities to prosecute and enforce environmental law.