ABSTRACT On 11 April 2024, the EU adopted a significantly revamped version of the 2008 Environmental Crime Directive. One of the new Directive’s many innovations lies in its broadened definition of unlawfulness, which now extends to acts carried out in compliance with an administrative authorization where such acts amount to a ‘manifest breach of relevant substantive legal requirements’. In this article, we argue that this provision marks an important step towards a more autonomous environmental criminal law. Yet, the Directive’s conceptualization of unlawfulness remains enigmatic, leaving Member States significant discretion in transposing this concept into domestic law. Building on both principled and practical considerations, we explore various legal pathways that Member States could pursue in this respect. Our aim in doing so is not to argue in favour of any single option but to highlight some of the broader tensions that arise when the purposive character of environmental law meets with the principled constraints of criminal justice.
Bertram et al. (Tue,) studied this question.