Whether a violation of environmental law is deemed an administrative or criminal offence depends on the severity of the crime and is determined by law.
Most environmental legislation defines which violations are administrative offences. In the case of the Federal Immission Control Act (BImSchG), for example, section 62 para 1 (1) states that an administrative offence is deemed committed by anyone who constructs an installation without the licence required. Such provisions constituting administrative offences can also be found in other environmental legislation (e.g. section 26 Federal Soil Protection Act, section 103 Federal Water Act, section 69 Circular Economy Act, section 26 Chemicals Act, section 69 Federal Nature Conservation Act).
Environmental criminal offences are grave violations of environmental law. The legislator punishes these crimes as a last resort (ultima ratio) with penalty fines or imprisonment. It is an expression of society's particular disapproval of these grave violations of environmental law. At the same, these regulations are the means by which the legislator has transposed European requirements to ensure environmental compliance (Directive 2008/99/EC).
Environmental criminal offences are defined in sections 324 et seqq. under Chapter 29 ('Offences against environment') of the German Criminal Code (StGB) and in a number of environmental laws (e.g. sections27 et seqq. Chemicals Act; sections 71, 71a Federal Nature Conservation Act).
The prosecution of administrative and criminal offences is generally in the remit of the German federal states (Länder), although the Federal government is responsible for prosecution of a number of specific violations. The German Environment Agency is the competent body for the prosecution and sanctioning of a number of administrative offences pursuant to section 45 of the Electrical and Electronic Equipment Act, (see here), of non-compliance with the notification requirement in the German Batteries Act (BattG) register, and of further administrative offences under section 22 BattG.
Fines for administrative offences may be imposed on individuals and, under certain conditions, on companies. The level of the fine is based on the specific circumstances of the violation. The fine imposed for the abovementioned construction of an installation requiring a licence without a licence (administrative offence pursuant to Section 62 (1) 1 BImSchG), can be as high as 50,000 Euros. In exceptional cases when a company assumes liability for a violation committed by a senior executive, the penalty can range up to ten million euros. These caps can be increased to ensure that the penalty exceeds the economic advantage gained by the perpetrator in breaching the law. Normally, however, the fine is smaller. The Länder schedules of administrative fines usually determine the amounts applicable for the various violations of environmental law.
Especially serious offences of environmental law are punishable by penalty fine or prison sentences of up to two, three or five years. The penalty for particularly serious cases of a criminal offence, e.g. ones which endanger the public water supply (cf. section 330 StGB), is imprisonment for a term of ten or fifteen years. However, just as with fines, the sanctions imposed usually do not reach the maximum degree (see statistics below).
Unlike administrative offence and in other countries, German law allows for the prosecution of individuals only and not of legal entities. This is because German criminal law assumes the personal guilt of the offender. Since 2017, however, the law provides for the confiscation of the proceeds of crime from companies if the criminal act was committed by an employee (section 73b StGB).
Whether or not an action can be prosecuted – either as an administrative or criminal offence – often depends on administrative law and on administrative authority decisions in particular. For example, the operation of an installation requiring a licence pursuant to the Federal Immission Control Act amounts to a criminal offence only if the operator does not possess such a licence. This so-called administrative accessoriness of administrative and criminal offences ensures that nobody can be punished for something which was legal according to administrative law.
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 30th edition of the publication including data up to 2016 is available here, a short version in English language here.
The analysis of the data up to 2016 shows that the number of cases of criminal offences against the environment recorded by the police dropped by 32 percent from 2004 to 2016. 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.