Beyond the permit: unpacking unlawfulness in the EU’s revised Environmental Crime Directive

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.