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Environmental Crime Legal Framework in Switzerland

Switzerland’s constitution contains provisions for the protection of the environment. Article 73 states “The Confederation and the Cantons shall endeavor to achieve a balanced and sustainable relationship between nature and its capacity to renew itself and the demands placed on it by the population”.

Article 74, entitled “Protection of the environment”, reads:

The Confederation shall legislate on the protection of the population and its natural environment against damage or nuisance.
It shall ensure that such damage or nuisance is avoided. The costs of avoiding or eliminating such damage or nuisance are borne by those responsible for causing it.
The Cantons are responsible for the implementation of the relevant federal regulations, except where the law reserves this duty for the Confederation.

Featured Legislation

1907: The Swiss Civil Code was created. The Code contains rules that apply to the abatement of nuisances such as water or air pollution, as well as noise (for example, Articles 679 and 684 CC regarding liability of landowners). In Switzerland, environmental protection law focuses on preventing environmentally harmful activities as well as on abating and remediating environmental harms. Further, several federal statutes (such as the EPA and the WPA) provide criminal sanctions (fines or imprisonment) for deliberate or negligent infringement of specific duties under the relevant statutes. Both natural persons and legal entities can be sanctioned.

1966: ​The Federal Act on the Protection of Nature and Cultural Heritage (NCHA) was approved. The aim of this Act, subject to the authority of the Confederation under Article 78 paragraphs 2–5 of the Federal Constitution, is:

  1. To carefully manage and protect heritage landscapes and sites of local character, historical sites, and the country’s natural and cultural monuments, and to promote their preservation and upkeep
  2. To support the cantons in fulfilling their tasks in the fields of nature protection, cultural heritage protection and monument preservation, and to ensure cooperation with them
  3. To support the endeavors of organizations active in the fields of nature protection, cultural heritage protection or monument preservation to protect indigenous flora and fauna, their biological diversity and their natural habitats
  4. To promote the conservation of biological diversity and the sustainable use of its components through the fair and equitable sharing of benefits arising from genetic resources;
  5. To promote science and research and the education and training of experts in the fields of nature protection, cultural heritage protection and monument preservation.

1983: The Environmental Protection Act was enacted. This law provides the basic regime for the protection of the environment. Its purpose is to protect humans, animals and plants, their biocenoses and their biotopes from harmful or inconvenient attacks and to preserve the fertility of the soil. It includes 67 articles divided into 5 titles. Title I contains the general principles and provisions, including: the principle of causality, according to which the person who initiates a measure prescribed by this law bears the costs thereof; the need for an environmental impact study to assess the compatibility of installations with environmental protection requirements; the measures to be taken for protection against disasters. Title II covers the various measures to be taken to limit nuisances and regulate in particular, atmospheric pollution, noise, vibrations and rays, substances dangerous for the environment, waste, damage to the ground. Title III contains the provisions relating to the execution of this law, to the measures of encouragement and to the procedural aspects concerning appeals and expropriation. The execution of the law is the responsibility of the canyons, except for certain specific prescriptions which fall within the competence of the Confederation (art. 41). The implementing regulations of the cantons must be approved by the Federal Council, which has the role of supervising the application of the law, of coordinating the implementing measures of the canyons, of concluding international agreements relating to this area, of designating installations subject to type assessments. The law also provides for other specific enforcement provisions, such as the creation of specialized services, the collaboration of communities and individuals in enforcement, the carrying out of surveys on nuisances affecting the environment, the obligation to provide the information necessary for the application of this law. Various incentive measures are planned, among which, subsidies for measures to be taken along the roads, for the construction of control and monitoring installations required by law, for waste treatment installations. Title IV contains the penal provisions and Title V the transitional and final measures.

1991: The Federal Forest Act was instituted. The purpose of this law is to ensure the conservation of forests in their extent and geographical distribution; protect forests as a natural environment; ensure that forests can fulfill their functions, including their protective, social and economic functions (forest function); maintain and promote the forest economy. Article 2 contains the definition of forest. Then, the law deals with matters such as the protection of forests against human attacks, in particular clearing and observation of the nature of the forest, forests and land use planning, access to forests and traffic in the forest. Chapter 4 disciplines forest management and the prevention and repair of forest damage. Incentive measures, such as professional training, research and funding are contained in Chapter 5. The law consists of 57 articles divided into 8 chapters.

1991: The Federal Fishing Act was brought into force. This law consists of 9 sections divided into 29 articles and repeals the federal law of 14 December 1973 on the same subject (see FAO Digest of Legislation vol. XXV nº 2, December 1976, p. 83). The new law also partly reproduces the provisions of the 1973 law. The 9 sections deal with the purpose and scope of the law (sec.1), the protection and exploitation of fish and crayfish (sect. 2), protection of biotopes (sect. 3), data collection (sect. 4), measures to encourage fishing (sec.5). The law ends with various sections relating to administrative and penal sanctions and final provisions. The distribution of the functions of the federal government and the cantons is fixed by the new law. Thus the setting of general planning measures remains the domain of the federal government. Similarly, the Federal Council designates the species and breeds of fish that are threatened as well as the introduction of foreign species (arts. 5 and 6). On the other hand, the cantons are normally competent with regard to the protection of biotopes and the collection of data (sect. 3 and 4).

1991: The Federal Water Protection Act was created. The purpose of this Act is to protect waters against harmful effects. In particular it aims:

To preserve the health of people, animals and plants

To guarantee the supply and economic use of drinking water and water required for other purposes

To preserve the natural habitats of indigenous fauna and flora

To preserve waters suitable as a habitat for fish

To preserve waters as an element of the landscape

To ensure the irrigation of agricultural land

To permit the use of waters for leisure purposes

1998: The Federal Agriculture Act was established. Basic law on agriculture by the Federal Assembly of the Swiss Confederation. Article 1 establishes that the Confederation ensures that agriculture, through production that meets both the requirements of sustainable development and those of the market, contributes substantially: to the security of supply for the population; conservation of natural resources; maintenance of the rural landscape; to the decentralized occupation of the territory. The Confederation takes the following measures in particular: creating framework conditions conducive to the production and marketing of agricultural products; to remunerate, by means of direct payments, the ecological services and those of public interest provided by the peasant farms cultivating the soil; ensure that the development of the agricultural sector is socially acceptable; contribute to the improvement of structures; encourage agronomic research and professional agricultural training, as well as animal and plant breeding; regulate plant protection and the use of auxiliary materials. The aforementioned law is made up of 188 articles divided into 9 titles, the most important of which are: Framework conditions for production and disposal (2). This title regulates the quality of the products, the promotion of the sales, the lightening of the market, the import, the export, the observation of the prices. In addition, the dairy economy, animal production, plant production, wine-growing economy are covered by this title. Direct payments (3); Social support measures (4); Improvement of structures (5); Research and vocational training, encouragement of plant and animal breeding (6); Plant protection and auxiliary materials (7); Legal remedies, administrative measures and penal provisions.

2011: The Federal Act on the Reduction of CO2 emissions was proposed. This Act is intended to reduce greenhouse gas, (designated by the Federal Council) emissions and in particular CO2 emissions that are attributable to the use of fossil fuels as energy sources with the aim of contributing to limiting the global rise in temperature to less than 2 degrees Celsius. For fossil fuels are intended thermal and motor fuels, used for the generation of heat, the production of light, the production of electricity in thermal facilities or the operation of combined heat and power plants, the first ones, used in combustion engines to produce power the latter. The Act is made of 50 articles organized in 9 chapters. the first chapter is dedicated to the definition of the objectives of the Act, as described above, and to the identification of the reduction target and the measures and the requirements to be used to assess the results. Chapter two, composed by two sections, is dedicated to the technical measures, concerning buildings (section 1) and passenger cars, vans and light articulated vehicles (section 2) to be adopted to reduce CO2 emissions. Chapter three just identifies the timber used in construction as a carbon sink. Chapter four is dedicated to the emissions trading and compensation, particularly to the emission trading scheme (ETS) to which operators of installations belonging to a specific category may or must apply to participate, depending on whether the level of greenhouse gas emissions they cause is high or moderate. This chapter also faces the refund function and the emission allowances for category. Chapter 5 treats the CO2 Ley, its imposition (section 1) as well as the possibility of its refund for the reduction of greenhouse gas emissions (sections 2, 3 and 4). Chapter six covers the use of revenues derived from the CO2 levy. Chapter 7 regards the implementation of the Act and the promotion measures finalized to such implementation. Chapter eight is dedicated to criminal provisions related to the application of the Act (evasion of the levy, false information etc.). Chapter 9 terminates the Act with final provisions.

Case Studies: Transnational Environmental Crime, Human Security, and Biosecurity

  • In 2020, Swiss citizens voted on a “responsible business” initiative that would make Swiss-based multinationals accountable for environmental crimes and human rights abuses like use of child labour committed abroad. The initiative was launched by a coalition of NGOs and was spearheaded by former Swiss Senator  Dick Marty. Financial resources have been leveraged so that multinationals will take the necessary steps to respect human rights and the environment in their activities abroad. The initiative will also attempt to amend the Constitution, making select companies liable in Swiss courts for any harm caused during business activities. Specifically, companies will be obliged to incorporate respect for human rights and the environment in all their business activities, invoking a due diligence requirement which compels companies to review their business relationships and activities, and identify potential risks to people and the environment. The initiative will apply to some 1,500 multinationals, but does not apply to Small and Medium-sized Enterprises (SMEs with up to 250 employees) unless they are in risk sectors such as the gold trade. In a related vein, the onus would be on victims to prove that they have suffered harm as a result of human rights violations or violations of international environmental standards, and that the multinational was responsible via its subsidiary. Opponents of the initiative claim that this initiative goes too far and would jeopardize Swiss jobs, threatening the international company’s competitiveness. Nevertheless, multinational companies would be required to report on issues such as human rights, the environment and corruption, highlighting the potential of Corporate responsibility in the fight against transnational environmental crime.

References and Further Reading

Contacts

Department of the Environment, Transport, Energy and Communications, Damaris Carnal: damaris.carnal@bafu.admin.ch