penal provisions
LexInter | January 31, 2003 | 0 Comments

PENAL PROVISIONS

Article L216-3
I. – Are responsible for carrying out the investigation and observation of infringements of the provisions of Articles L. 211-2, L. 211-3, L. 211-5, L. 211-7, L. 214-1 to L. 214-9, L. 214-11 and L. 214-12, as well as the texts and decisions taken for their application:
1 ° Civil servants and agents, sworn in and commissioned for this purpose under the conditions provided for by decree in Council of State, belonging to the State services responsible for the environment, agriculture, industry, equipment, transport, sea, health, defense, competition, consumption and the repression of fraud;
2 ° The agents mentioned in article L. 514-5;
3 ° Engineers and technicians from the central laboratory and health inspectors from the police headquarters;
4 ° Customs officers;
5 ° The sworn and commissioned agents of the National Office for Hunting and Wildlife and of the Superior Council of Fisheries;
6 ° The researchers, engineers and sworn technicians of the French Research Institute for the Exploitation of the Sea;
7 ° Port officers and deputy port officers;
8 ° Engineers in service at the National Forestry Office and sworn officers of this establishment, referred to in Article L. 122-7 of the Forest Code;
9 ° Sworn and commissioned agents of national parks and nature reserves.
II. – The rural guards commissioned for this purpose may be empowered to note the offenses mentioned in this article under conditions determined by decree.
Article L216-4
In order to investigate and record infringements, the agents referred to in Article L. 216-3 have access to the premises, installations and places where the operations which give rise to the infringements are carried out, with the exception of homes and the part of the premises which serves as domicile for the interested parties. Owners and operators are required to give them passage. Agents can only access these premises between 8 a.m. and 8 p.m., or outside these hours if the establishment is open to the public, or when an activity is in progress.
The public prosecutor is informed in advance of the operations envisaged with a view to investigating offenses. He can oppose these operations.
Article L216-5
Breaches of the provisions of Articles L. 211-2, L. 211-3, L. 211-5, L. 211-7, L. 214-1 to L. 214-9, L. 214-11 and L. 214-12 and texts taken for their application are recorded by minutes which are authentic until proven otherwise.
The minutes must, under penalty of nullity, be sent within five days of their closing to the public prosecutor. A copy is also given, within the same time limit, to the interested party.
ENVIRONMENTAL CODE (Legislative Part)
Sub-section 2: Criminal sanctions
Article L216-6
 

(Ordinance n ° 2000-916 of September 19, 2000 art. 3 Official Journal of September 22, 2000 in force on January 1, 2002)

The fact of throwing, discharging or allowing to flow into surface waters, underground waters or the waters of the sea within the limits of territorial waters, directly or indirectly, any substance or substances whose action or reactions cause, even temporarily , harmful effects on health or damage to flora or fauna, with the exception of the damage referred to in Articles L. 218-73 and L. 432-2, or significant changes in the normal diet of water or restrictions on the use of bathing areas, is punished by two years’ imprisonment and a fine of 75,000 euros. When the rejection operation is authorized by decree, the provisions of this paragraph do not apply.
The court may also require the convicted person to proceed with the restoration of the aquatic environment within the framework of the procedure provided for by article L. 216-9.
These same penalties and measures are applicable to the fact of throwing or abandoning waste in large quantities in surface or underground waters or in sea waters within the limits of territorial waters, on beaches or on the shores of the sea. provisions do not apply to discharges at sea from ships.

Article L216-7
 

(Ordinance n ° 2000-916 of September 19, 2000 art. 3 Official Journal of September 22, 2000 in force on January 1, 2002)

Without prejudice to the liability incurred vis-à-vis the beneficiary of the affected debit, failure to comply with the requirements defined by the declaratory act of public utility mentioned in article L. 214-9 is punished by 12,000 euros fine.

Article L216-8
 

(Ordinance n ° 2000-916 of September 19, 2000 art. 3 Official Journal of September 22, 2000 in force on January 1, 2002)

I. – Is punished by two years’ imprisonment and a fine of 18,000 euros for the fact, without the authorization required for an act, an operation, an installation or a work, of:
1 ° Committing this act;
2 ° Conduct or perform this operation;
3 ° Operate this installation or this work;
4 ° Set up or participate in the setting up of such an installation or such a structure.
II. – In the event of a repeat offense, the fine is increased to 150,000 euros.
III. – In the event of a conviction, the court may order that the operations, use of the work or installation be terminated. Provisional enforcement of this decision may be ordered.
IV. – The court may also require the measures provided for in the previous paragraph as well as the restoration of the premises, within the framework of the procedure provided for by article L. 216-9.
V. – The court, seized of proceedings for breach of a declaration obligation, may order the operation to be stopped or the use of the installation or work prohibited, within the framework of the procedure provided for by the Article L. 216-9.

Article L216-9
 

(Ordinance n ° 2000-916 of September 19, 2000 art. 3 Official Journal of September 22, 2000 in force on January 1, 2002)
In the event of prosecution for breach of the provisions of Articles L. 216-6 and L. 216-8 or for breach of an obligation to report or any other obligation resulting from the articles mentioned in Article L. 216-5, or regulations or individual decisions taken for their application, the court may, after having declared the defendant guilty, decide to postpone the pronouncement of the sentence by ordering him to respect the prescriptions which he has been contravened.
The court sets a time limit for the execution of these prescriptions. It may add a penalty to the injunction, the rate and maximum duration of which it sets. Its amount is 15 euros to 3,000 euros per day of delay in the
The adjournment can only take place once. It can be ordered even if the accused does not appear in person. In all cases, the decision may be accompanied by provisional execution.
At the referral hearing, when the prescriptions referred to in the injunction have been executed within the time limit set, the court may either exempt the guilty party from the penalty or pronounce the penalties provided for.
When the prescriptions have been executed late, the court liquidates, if necessary, the penalty payment and pronounces the penalties provided for.
When there has been non-fulfillment of the prescriptions, the court settles, if necessary, the penalty payment, pronounces the penalties and can then order that the execution of these prescriptions be continued ex officio at the expense of the convicted person.
The decision on the sentence is made no later than one year after the adjournment decision.
The on-call rate as fixed by the adjournment decision cannot be changed.
For the liquidation of the penalty payment, the court assesses the non-execution or delay in the execution of the prescriptions, taking into account, if necessary, the occurrence of events which are not attributable to the defendant.

Article L216-10
 

(Ordinance n ° 2000-916 of September 19, 2000 art. 3 Official Journal of September 22, 2000 in force on January 1, 2002)

The fact of operating an installation or a work or carrying out work in violation of a measure of decommissioning, withdrawal or suspension of an authorization or removal of an installation or a prohibition measure pronounced in application of the provisions mentioned in article L. 216-5, is punished by a penalty of two years imprisonment and a fine of 150,000 euros.
The same penalties shall apply to continuing an operation or the operation of an installation or a work without complying with the formal notice, issued by the prefect, to have to respect, at the end of ” a fixed deadline, the technical prescriptions provided for by the authorization or the regulations adopted in application of the provisions mentioned in article L. 216-5.
Obstructing the performance of the functions entrusted to the agents mentioned in Articles L. 211-2 and L. 216-3 is punishable by six months’ imprisonment and a fine of 7,500 euros.

Article L216-11
In the event of a conviction for breach of the provisions mentioned in Article L. 216-5, the court may order, at the expense of the convicted person, the full publication or by extracts of its decision and possibly the dissemination of a message, which it fixes explicitly the terms, informing the public of the reasons and content of its decision, in one or more newspapers that it designates as well as its posting under the conditions and under the penalties provided for in article 131-35 of the penal code without however that the costs of this advertising may exceed the amount of the fine incurred.
Article L216-12
I. – Legal persons can be declared criminally liable under the conditions provided for in article 121-2 of the penal code for breaches of the provisions mentioned in article L. 216-5.
II. – The penalties incurred by legal persons are:
1 ° The fine, in accordance with the terms provided for in article 131-38 of the penal code;
2 ° The penalties mentioned in 2 °, 3 °, 4 °, 5 °, 6 °, 8 ° and 9 ° of article 131-39 of the same code.
III. – The prohibition mentioned in 2 ° of article 131-39 of the penal code relates to the activity in the exercise or on the occasion of the exercise of which the offense was committed.
Article L216-13
In the event of non-compliance with the requirements imposed under Articles L. 211-2, L. 211-3 and L. 214-1 to L. 214-6, any useful measure, including the prohibition to operate the The work or installation in question, can be ordered to put an end to the disturbance, either on requisition of the public prosecutor acting at the request of the administrative authority or of an association fulfilling the conditions set by article L. 142- 2, or even ex officio by the investigating judge seized of the proceedings or by the criminal court. The judicial authority decides after having heard the operator or having duly summoned him to appear within forty-eight hours. The judicial decision is enforceable on the spot and notwithstanding any means of appeal. The lifting of the ordered measure can intervene at the cessation of the disturbance.
The provisions of this article also apply to installations classified under Book V (Title I).

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