When a corporate manager may be held criminally liable for pollution
Criminal liability for unlawful acts detrimental to the environment may be imposed not only on a company, but also on its managers.
Failure to comply with environmental protection regulations results primarily in exposure to administrative sanctions, particularly fines and increased fees. However, criminal liability has grown in importance recently, as seen by the amendment of the Polish Penal Code this June in the area of environmental offences. The Parliament clarified the existing regulations and made them more severe. Harsher sanctions were introduced, for example, for offences committed in connection with operation of an installation at a plant, and for offences resulting in particularly serious consequences—now punishable by up to 12 years in prison.
The risk of criminal liability is not eliminated by the fact that managerial personnel generally do not commit a punishable act personally, but act through employees under their supervision or third parties. In such situations, the construction of managerial commission of an offence, provided for under the Penal Code, may be applied, under which a person who directs performance of a prohibited act by another person may be found guilty of the offence, or commission of an offence by a supervisor who issues an instruction to commit an unlawful act. An offence may also be committed by omission, where a failure to perform a duty imposed on a person allows consequences defined in the Penal Code to occur.
The statistics confirm that individuals found guilty of environmental crimes are often persons holding a high position within the professional hierarchy (such as management board members, commercial proxies, or partners). Investigation and prosecution of such persons can be difficult because of a lack of witnesses, a lack of evidence of managerial commission of an offence, or an unwillingness to testify on the part of subordinates or counterparties. However, more and more often police and prosecutors act on the basis of information obtained from institutional sources (such as environmental inspectors) and from injured parties. The number of such cases can thus be expected to grow in the future.
Dominik Wałkowski, Environmental Law practice, Wardyński & Partners
This text was published on 15 September 2011 in the “Commercial Law Academy” series in Dziennik Gazeta Prawna daily