1. Directive (EU) 2024/1203 which overhauls the system for the protection of the environment through criminal law
The main topics
Directive 2024/1203:
- draws up minimum standards concerning the definition of offences and sanctions, in order to prevent and combat the growing trend of environmental crime;
- criminalises, inter alia, (i) the unlawful manufacture, marketing or use of substances, where such conduct causes or is likely to cause “death or serious injury to any person or substantial damage to the quality of air, soil or water, to an ecosystem, to fauna or flora”, and where such substances are subject to restrictions under the legislation regarding chemicals, (ii) the unlawful release, supply or export of raw materials or products associated with deforestation and forest degradation, (iii) the production, placing on the market, use or release of fluorinated greenhouse gases or “products and equipment, and parts thereof, which [contain them] [… ] or whose operation relies on such gases, or the operation of such products and equipment,’ and (iv) the illegal recycling of ships. Such conduct constitutes a “qualified offence” if it causes “the destruction of an ecosystem of substantial size or environmental value or a habitat within a protected area” or “widespread and significant, irreversible or lasting damage to that ecosystem or habitat, or […] to the quality of air, soil or water”, and is unlawful and carried out “with or without serious negligence”;
- envisages the tightening of sanctions including, for natural persons, imprisonment of up to 10 years and, for legal persons, fines amounting to at least 5 per cent of the total global revenue for the most serious offences or, alternatively, a fine of Euro 40 million.
Publication: European Union Official Gazette of 30 April 2024
Timeframe: in force as of 20 May 2024; to be transposed by 21 May 2026
2. Regulation (EU) 2024/1157 concerning the shipment of waste
The main topics
Regulation 2024/1157:
- aims at: (i) strengthening enforcement to prevent illegal shipments of waste within the EU and to third countries; (ii) increasing the traceability of waste shipments within the EU; and (iii) facilitating recycling and reuse;
- applies to shipments of waste between Member States, with or without transit through third countries; shipments of waste imported into the EU from third countries; shipments of waste exported from the EU to third countries; and shipments of waste in transit through the EU en route to or from third countries;
- establishes procedures and control schemes for shipments of waste according to the origin, destination and route of shipment, as well as the type of waste and the type of treatment to be applied to the waste at its destination;
- prohibits intra-EU shipments of all waste for disposal unless agreed and authorised through a prior written notification and consent procedure;
- establishes specific provisions for shipments of particular types of waste including, for example, a ban on exports to non-OECD countries of non-hazardous plastic waste and certain quantities of waste or mixtures of waste containing or contaminated with POPs (i.e. Persistent Organic Pollutants);
- envisages the digitisation of the exchange of information and documentation via a central system managed by the EU Commission;
- strengthens the EU Commission’s powers to inspect and monitor and introduces an obligation for exporters to ensure that recipient plants have been audited, in line with the environmental and public health protection objectives and more environmentally friendly management of EU waste.
Publication: European Union Official Gazette of 30 April 2024
Timeframe: in force as of 20 May 2024; applicable as of 21 May 2026 subject to certain specific provisions with varying levels of implementation
3. Directive (EU) 2024/1785 which amends the directive concerning industrial emissions
The main topics
Directive 2024/1785:
- extends the scope of Directive (EU) 2010/75 to, for example, the manufacture of batteries with a production capacity of 15,000 tonnes or more of battery cells per year and industrial-scale mining of the minerals specified in the Directive;
- reduces bureaucracy by providing for the development of systems for electronic authorisation of installations and the implementation of electronic authorisation procedures by 31 December 2035;
- also establishes an increase in the importance of Best Available Techniques (“BAT”), i.e. best available techniques aimed at achieving a high level of protection not only of the environment, but also of human health and climate protection. Findings on BAT will include so-called emerging techniques, i.e. innovative techniques for industrial activities, as well as the environmental performance levels associated with these techniques;
- requires that the operator of the plant must prepare and implement an environmental management system that includes, among other things, measures aimed at the prevention of waste generation and the prevention and/or reduction of the use and emission of hazardous substances, as well as a transformation plan containing information on how the operator will transform the plant in the period 2030 -2050, in order to contribute to the development of a sustainable, clean, circular and climate-neutral economy within that time. The environmental management system shall be periodically reviewed to ensure its continuing suitability, adequacy and effectiveness;
- also intervenes significantly with regard to fines, requiring Member States to establish effective, proportionate and dissuasive penalties for violations of the national provisions implementing them, including fines and criminal penalties. In particular, for the most serious violations committed by a legal person, the maximum amount of fines shall be at least 3% of the annual turnover of the operator in the EU in the business year preceding that in which the fine is incurred;
- introduces, in the event of harm caused to human health as a result of a violation of the national provisions adopted pursuant to Directive 2024/1785, the possibility for those affected to claim compensation from the natural or legal person who has committed such violation.
Publication: European Union Official Gazette of 15 July 2024
Timeframe: in force as of 4 August 2024; to be transposed by 1 July 2026
3.1 REGULATION (EU) 2024/1244 CONCERNING THE REPORTING OF ENVIRONMENTAL DATA AND THE CREATION OF AN EMISSIONS PORTAL
The main topics
Regulation 2024/1244:
- is aimed at:
- improving public access to information to enable public involvement in environmental decision-making processes;
- enabling the monitoring of industrial pollution in order to work towards its prevention and reduction;
- establishing rules for the collection and reporting of environmental data relating to industrial installations where one or more activities listed in Annex I of Regulation (EU) 2024/1244 are carried out;
- establishing a portal concerning industrial emissions in the form of an online database.
Publication: European Union Official Gazette of 2 May 2024
Timeframe: in force as of 22 May 2024; applicable as of 1 January 2028
4. Regulation (EU) 2024/573 concerning fluorinated greenhouse gases
The main topics
Regulation 2024/573:
- applies to the fluorinated greenhouse gases listed in Annex I (HFCs, PFCs and other perfluorinated compounds and fluorinated nitriles), in Annex II (unsaturated hydro(chloro)fluorocarbons and other fluorinated substances) and Annex III (ethers, ketones and other fluorinated compounds), whether on their own or as mixtures containing these substances; to products and equipment, and parts thereof, containing fluorinated greenhouse gases or whose operation depends on such gases;
- sets out provisions for the containment of fluorinated greenhouse gases and specific products and equipment containing, or whose operation depends upon, fluorinated greenhouse gases. This containment includes measures on emission prevention, measures on leakage checks and leakage detection systems, record keeping, recovery and destruction, extended producer responsibility and measures concerning certification and training;
- includes provisions to restrict the placing and sale of certain products and equipment on the market, as well as regulations regarding their labelling. In connection with the latter, the implementing Regulation (EU) 2024/2174, which governs the format of labels for certain products and equipment, has recently been approved and will be applicable from 1 January 2025. For the same restriction purposes, Regulation 2024/573 also contains provisions to control the use of certain substances;
- establishes a “Production Timetable” for hydrofluorocarbons and allows them to be placed on the market only if manufacturers and importers have been allocated a quota by the EU Commission. The EU Commission is in charge of managing the so-called “F-Gas Portal”, i.e. an electronic system to manage the quota system, import and export licensing requirements and reporting obligations on fluorinated greenhouse gases;
- contains new provisions on: (i) trade in imports and exports of F-gases and products/equipment containing them or whose operation depends on them; and (ii) trade controls, through the introduction of monitoring requirements;
- also provides for regulations on the reporting and collection of emission data.
Publication: European Union Official Gazette of 20 February 2024
Timeframe: in force as of 11 March 2024; with the application of certain provisions as of 2025
5. Directive (EU) 2024/1275 concerning the energy performance of buildings
The main topics
Directive 2024/1275:
- envisages the adoption by Member States of “National Renovation Plans” to increase the energy efficiency of buildings by imposing minimum energy performance requirements;
- envisages renovation of non-residential buildings, giving priority to those with the worst energy efficiency performance;
- requires, with regard to residential buildings, that over time, Member States reduce average primary energy consumption, giving priority to buildings with the worst energy efficiency performance;
- promotes the installation of solar systems on public and non-residential buildings with specific deadlines and requires the inclusion of electric vehicle charging points and bicycle parking spaces in the designs of new residential and non-residential buildings;
- introduces a standard approach for determining the energy performance and greenhouse gas emission levels of buildings throughout their life cycle, and establishes a standard template energy certificate to ensure that certificates are used in a uniform manner;
- makes it compulsory to ensure that energy certificates are issued in the case of specific trigger events, such as significant renovations and the sale of buildings, and confirms the current disclosure requirements for energy performance certificates when selling or renting a building;
- introduces a ban on the installation of fossil-fuelled boilers by 2040, with financial incentives for stand-alone boilers ceasing as early as 2025;
- states that, from 2030, all new private buildings will have to be zero-emission, while public buildings will have to comply as early as 2028;
- leaves it up to the Member States to determine the penalties applicable in the event of violation of national legislation transposing Directive 2024/1275.
Publication: European Union Official Gazette of 8 May 2024
Timeframe: in force as of 28 May 2024, to be transposed by 29 May 2026
6. Regulation (EU) 2024/1991 concerning the re-introduction of nature
The main topics
Regulation 2024/1991:
- establishes a framework within which Member States are to implement effective measures to achieve, by 2050, the restoration of all ecosystems that so require and contribute to the fulfilment of climate change reduction targets;
- contains a number of obligations for Member States, including the restoration of (i) marine ecosystems (ii) terrestrial, coastal and freshwater ecosystems, (iii) forest, agricultural and urban ecosystems;
- considers energy production plants from renewable sources as installations of predominant public interest when assessing and weighing up interests for their construction;
- requires Member States to prepare a national restoration plan and to carry out checks and monitoring in order to identify the necessary restoration measures. This plan covers the period up to 2050, with intermediary deadlines corresponding to the aims and obligations of the regulation;
- requires Member States to draw up a draft national recovery plan; to be submitted to the EU Commission by September 2026;
- establishes reporting and monitoring obligations with respect to the activities set out in the plan.
Publication: European Union Official Gazette of 29 July 2024
Timeframe: in force as of 18 August 2024
7. New developments regarding the Emission Trading System (ETS)
Phase IV ETS
The ETS, originally introduced by Directive (EC) 2003/87 – which set up a system for greenhouse gas emission allowance trading – was divided into four trading periods, known as “phases”.
As a result of the revision of the ETS for phase IV (2021-2030), Directive (EU) 2023/959 was adopted, which entered into force on 5 June 2023 and whose provisions will apply from 1 January 2024.
The main topics
Directive 2023/959, as part of Phase IV ETS:
- extended the scope of the ETS to include:
- the maritime transport sector, from 2024;
- introducing monitoring and reporting obligations for urban waste incineration plants with a total rated thermal input exceeding 20 MW, starting from 2024;
- provides for a phase-out of free emission allowances for the aviation sector;
- creates a separate ETS system for the building and road transport sectors and additional sectors not covered by Annex I of Directive 2003/87/EC, starting from 2027 (so-called ETS II);
- introduces the obligation for economic operators to which the so-called ETS II applies (i.e. the activities listed in Annex III of Directive 2023/959) to obtain a permit, issued by the competent national authority, to emit greenhouse gases;
- provides for a system of monitoring, reporting and verification of “Scope 3” emissions, i.e. indirect greenhouse gas emissions generated in the company’s business value chain (including upstream and downstream emissions);
- provides, as of 1 January 2028, for the surrender by regulated entities of an amount of emission allowances equal to the total emissions of each regulated entity, corresponding to the amount of combustibles released for consumption during the previous year, for the activities listed in Annex III of Directive 2023/959.
Updates on the implementation of Directive 2023/959:
On 10 June, the Council of Ministers approved a preliminary Draft Legislative Decree to incorporate Directive 2023/959 into national law.