FRANCE Law and Practice Contributed by: Carine Le Roy-Gleizes, Corentin Chevallier, Alice Messin-Roizard and Antoine Juquin, UGGC Avocats
Finally, a procedure for the partial transfer of environ- mental authorisations was introduced in 2021, thereby enabling a permittee to transfer part of its site to one or more other beneficiaries, who will then hold new and separate environmental authorisations. This pos- sibility is subject to strict conditions – namely, the transfer must not adversely affect interests protected by environmental law, and the responsibilities of the beneficiaries must be clearly divisible. 4.5 Consequences of Breaching Permits/ Approvals Both criminal and administrative sanctions punish breaches of permitting requirements. Firstly, if one runs a facility without an environmen- tal authorisation, the criminal sanctions include a one-year prison sentence and a maximum fine of EUR75,000. If the offender is a corporate entity, this maximum fine is multiplied by five. Secondly, the regulatory authority may: • require, by issuing a formal notice, compliance with the regulation within a time limit; and • then impose administrative sanctions on the offender. In addition to the suspension of the facility’s activity, the regulatory authority may hold a deposit until the required work is completed. The authority can also have the prescribed measures carried out automati- cally, in place of the person summoned and at their own expense. To ensure that the measures will be fully implemented, the regulatory authority can impose a maximum fine of up to EUR45,000 or a daily penalty payment of up to EUR4,500 until compliance is achieved. According to the 2021 Climate and Resilience Law, the sanction can be more severe when a risk of lasting harm to the environment results from this offence. The revised EU directive on the prevention and reduc- tion of industrial emissions from certain sectors (see 4.2 Environmental Permits/Approvals ) also provides, for the most serious violations committed by a legal entity, an administrative financial penalty of a maxi-
mum amount equal to at least 3% of the operator’s annual sales within the EU. Alternatively, member states can also resort to criminal sanctions. In addition, in April 2024, a new EU directive on the protection of the environment through criminal law has strengthened compliance with environmental protec- tion legislation through more effective, proportionate and dissuasive criminal sanctions. This directive will have to be transposed by member states before May 2026 and will certainly affect the French legislation, in which the directive provides for penalties proportional to turnover (penalties of 5% of the company’s total worldwide turnover or an amount corresponding to EUR40 million for the most serious offences). 5. Environmental Liability 5.1 Key Types of Liability Under French law, three types of liability can be imposed on operators and polluters. Administrative liability (also called environmental liabil- ity) is imposed by regulatory authorities on operators of facilities or activities subject to environmental laws and regulations. The regulatory authorities evaluate the damage and the measures taken to prevent or mitigate it in order to determine liability. Civil liability in environmental matters occurs for torts or negligence resulting in pollution. The causal link between the harmful event and the damage has to be proven and may result in the award of compensatory damages. Furthermore, the French Civil Code embod- ies the ecological prejudice reparation concept, codi- fying the Erika case resolution (see 11. Civil Liability ). Criminal liability also applies to both individuals and corporate entities. The head of a company may be criminally liable for the actions of the company. Sanc- tions can include imprisonment or a criminal fine. The 2021 Climate and Resilience Law introduced new environmental offences, notably: • a general offence of environmental damage, sanc- tioned by a five-year prison sentence and a EUR1 million fine;
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