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Pereira, Ricardo 2017. Towards effective implementation of the EU environmental crime directive?
The case of illegal waste management and trafficking offences. Review of European, Comparative
and International Environmental Law 26 (2) , 147 -162. 10.1111/reel.12207 file
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Illegal Waste Management and Trafficking Offences’, 26 Review of European,
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Towards Effective Implementation of the EU Environmental Crime Directive?
The Case of Illegal Waste Management and Trafficking Offences
Ricardo Pereira
The adoption of the European Union (EU) Environmental Crime Directive in 2008
marks a significant step in the European Union’s process of integration. The
Directive is unique in creating a supranational legal framework for harmonizing
environmental criminal law. Yet there are a number of deficiencies in the Directive
which may compromise its effective implementation and enforcement by the Member
States. Particularly noteworthy is that the Directive does not define specific types and
levels of penalties or any rules on prosecution or jurisdiction. This article analyses
the main features of the illegal waste management and trafficking offences and
penalties under the Environmental Crime Directive and surveys the implementation of
those offences by specific EU Member States. It aims to make a broader assessment of
the consistency and effectiveness of the implementation of the Directive, assessing the
implications that it may have on the enforcement of environmental law in the Member
States.
INTRODUCTION
The increased cost of safe waste disposal has driven an export trade to many of the
world’s least developed countries, where there are often gaps and weaknesses in the
regulatory framework applicable to the waste disposal sector.
1
Illegal waste shipments
are widely thought to cross national borders easily, particularly in developing
countries which have few inspection systems and technologies available.
2
This
practice of ‘waste dumping’ has been condemned by some nongovernmental
organizations (NGOs) as amounting to ‘garbage imperialism’.
3
This problem is
exacerbated in light of the increased costs of waste disposal in developed countries.
4
Corresponding author.
Email: PereiraR1@cardiff.ac.uk
1
T. Fröhlich et al., ‘Organised Environmental Crime in the EU Member States’ (2003), at 3.
2
C.W. Schmidt, ‘Environmental Crimes: Profiting at Earth’s Expense’, 112:2 Environmental Health
Perspectives (2004), A96, at A103.
3
See, e.g., K.R. Stebbins, ‘Garbage Imperialism: Health Implications of Dumping Hazardous Wastes
in Third World Countries’, 15:1 Medical Anthropology (1993), 81.
4
There are estimates suggesting that while in the late 1980s the average cost of safe waste disposal in
an OECD country was between US$100 and US$2,000, in Africa it was between U$2.50 and $50. See
G. Hayman and D. Brack, ‘Workshop Report: International Environmental Crime: The Nature and
Control of Environmental Black Markets’ (Royal Institute of International Affairs, London 1998), at
13; see also H.-J. Albrecht, ‘The Extent of Organised Environmental Crime: A European Perspective’,
in: F. Comte and L. Kramer (eds.), Environmental Crime in Europe: Rules of Sanctions (Europa Law
Publishing, 2004), 91; and T. Fröhlich et al., n. 1 above.
Globally it is estimates that illegal trade and dumping of hazardous waste materials
has an overall value of between US$10 and 12 billion.
5
From that total it is estimated
that organized crime involving environmental impairment generates revenues of
between US$ 1 billion and 2 billion annually through dumping of toxic waste.
6
The so-called ‘eco-mafia’ in Italy in many ways personifies the worst forms of
environmental criminality in Europe. Italy’s waste disposal contracts are notoriously
controlled by criminal groups. According to the Italian authorities, 11 million metric
tonnes of toxic and industrial waste are deposited annually in some 2,000 illegal
domestic dump sites in local waterways or in the Mediterranean. Research by the
Italian environmental NGO Legambiente on Italy’s eco-mafia shows a far higher than
average incidence of recorded environmental crime in the traditional mafia
strongholds of Campania, Puglia, Calabria and Sicily.
7
Among the 1,734 waste-
related infractions recorded in Italy in 2002, 39 percent were committed in those four
regions.
8
Not only in Italy but also in other European Union (EU) Member States
several studies have shown the infiltration of criminal organizations into the waste
disposal sector.
9
The criminal offences under Article 3(b) and (c) of the 2008 EU Environmental
Crime Directive
10
aim to improve the implementation deficit of specific EU waste
legislation,
11
including Regulation 1013/2006 on shipments of waste,
12
as well as
international environmental agreements which are binding on the Union legal order,
particularly the 1989 Basel Convention on the Control of Transboundary Movements
of Hazardous Waste and Their Disposal, which was adopted by the European
Community in February 1994.
13
Significantly, the Basel Convention contains
provisions requiring States to introduce penal measures as part of their enforcement
strategies, that is, a requirement that State parties take ‘appropriate measures’ to
ensure the application of the agreement and punishment of violators thereof.
Specifically, Article 4.3 of the Basel Convention states that ‘the parties consider that
illegal traffic in hazardous wastes or other wastes is criminal’.
14
Although the ‘Ban Amendment’ to the Basel Convention is not in force, the EU has
introduced a ban on the export of hazardous waste to non-OECD countries under
5
Ibid. See also C. Nellemann et al. (eds.), The Environmental Crime Crisis: Threats to Sustainable
Development from Illegal Exploitation and Trade in Wildlife and Forest Resources: A UNEP Rapid
Response Assessment (United Nations Environment Programme and GRID-Arendal, 2014), at 19.
6
See H.-J. Albrecht, n. 4 above.
7
Ibid.
8
Ibid.
9
See T. Fröhlich et al., n. 1 above; and T. Fröhlich et al., Organised Environmental Crime in a Few
Candidate Countries (2003); and Europol, Threat Assessment 2013: Environmental Crime in the EU
(Europol, 2013), at 6.
10
Directive 2008/99/EC of 19 November 2008 on the Protection of the Environment through Criminal
Law, [2008] OJ L328/28 (‘Environmental Crime Directive’).
11
European Commission, 29th Annual Report on Monitoring the Application of EU Law (2011),
COM(2012) 714.
12
Regulation 1013/2006 of 14 June 2006 on Shipments of Waste, [2006] OJ L190/1, Article 2.35.
13
Basel Convention on the Control of Transboundary Movements of Hazardous Waste and their
Disposal (Basel, 22 March 1989; in force 5 May 1992) (‘Basel Convention’).
14
Ibid., Article 4.3 (emphasis added).
Regulation 1013/2006.
15
Still, there is evidence of continuous non-compliance by a
number of Member States with the Regulation.
16
Some Member States have not
effectively prevented the illegal exports of hazardous waste for disposal or recovery
to developing countries. For example, trade statistics suggest that much e-waste is still
shipped from the EU to Africa.
17
Overall, it is estimated that illegal waste trafficking
amounts to roughly 20 percent of all the waste shipments in the EU.
18
It is thus
paramount for the EU Member States to implement the waste export ban to
developing countries, particularly following the notorious incident in 2006 in which
Trafigura exported waste from the Netherlands, causing the injury of thousands of
people and environmental damage in Côte d’Ivoire.
19
This article aims to assess the consistency and effectiveness of the implementation of
the 2008 EU Environmental Crime Directive,
20
particularly on the implementation of
the waste offences under Article 3(b) and (c) of the Directive. The article begins with
a discussion of the implementation measures introduced by EU Member States to
transpose the waste offences under Article 3(b) and (c) of the Directive, assessing in
particular whether there are significant inconsistencies in the transposition. The article
moves on to discuss whether the Member States have introduced ‘effective,
proportionate and dissuasive’ criminal penalties for the implementation of the waste
offences, as required under Article 5 of the Directive. This could provide the basis for
the Commission to bring infringement proceedings against specific Member States or
to advance the case for further harmonisation of environmental criminal law in the
EU. The article then discusses the extent to which the Directive could affect
prosecutorial discretion by requiring national authorities in the Member States to
apply criminal penalties for violations of environmental offences in individual cases.
The article ends with concluding remarks summarizing the main findings.
THE CRIMINALIZATION OF WASTE OFFENCES IN THE EU
Following a major inter-institutional dispute over the correct legal basis for the EU to
legislate in environmental criminal matters (see the Environmental Crimes
21
and Ship-
Source Pollution cases
22
), a Directive proposal was presented by the European
Commission in February 2007 for the harmonization of environmental criminal law.
23
The Environmental Crime Directive was finally adopted unanimously by the Council
15
European Environment Agency (EEA), Waste without Borders in the EU? Transboundary Waste
Shipments of Waste (EEA, 2009), at 5.
16
See Europol, n. 9 above.
17
Directive 2002/96/EC of 27 January 2003 on Waste Electrical and Electronic Equipment (WEEE),
[2003] OJ L37/24; and the recast Directive 2012/19/EU of 4 July 2012 on Waste Electrical and
Electronic Equipment (WEEE), [2012] OJ L197/38.
18
See EnviCrimeNet, ‘Report on Environmental Crime’ (2016), at 16, found at:
<http://www.envicrimenet.eu/EN/images/docs/envicrimenet%20report%20on%20environmental%20cr
ime.pdf>; and European Union Network for the Implementation and Enforcement of Environmental
Law (IMPEL), ‘IMPEL-TFS Enforcement Actions II: Enforcement of EU Waste Shipment Regulation’
(28 April 2011), found at:
<https://www.politieacademie.nl/kennisenonderzoek/kennis/mediatheek/PDF/81477.pdf>.
19
‘Trafigura found Guilty of Exporting Toxic Waste’, BBC News (23 July 2010).
20
Environmental Crime Directive, n. 10 above.
21
ECJ, Case C-176/03, Commission v. Council, [2005] ECR. I-7879 (‘Environmental Crimes’).
22
ECJ, Case C-440/05, Commission v. Council, [2007] ECR I-9097 (‘Ship-Source Pollution’).
23
Proposal for a Directive of 9 February 2007 on the Protection of the Environment through Criminal
Law, COM(2007) 51 (‘2007 Environmental Crime Directive Proposal’).
on 24 October 2008. The Commission argued that harmonization of environmental
criminal law could help improve the implementation deficit of EC environmental
legislation and provide a strong deterrent against environmental crimes within the EU.
24
However, the provisions on the minimum levels of maximum penalties, which were
present in the original directive proposal were dropped in the final text, in line with
the ECJ ruling in the Ship-Source Pollution case.
25
Most Member States have implemented the Environmental Crime Directive by either
amending their existing criminal and/or environmental legislation.
26
The choice of
implementation of the Directive under national penal codes is consistent with the
legislative practice in some Member States. Indeed, long before the adoption of the
Directive, many EU Member States introduced into their penal codes specific
provisions on the protection of the environment.
27
Following the example of the
German Strafgezetzbuch of 1980, an amendment to which introduced a chapter
entitled ‘Crimes against the Environment’,
28
Austria (1977/1997),
29
Spain (1996),
30
Portugal (1995),
31
as well as Denmark, Finland, the Netherlands and Sweden have
incorporated environmental offences into their penal codes.
32
Some Member States
have partially reformed their penal codes to incorporate, among others, environmental
crimes – for example Austria and Sweden – while others have undertaken total reform
of their penal codes – for example Portugal, Spain and Finland.
33
Following the transposition deadline of the EU Environmental Crime Directive on 26
December 2010, all Member States were required to have reformed their national
laws to incorporate environmental offences and criminal penalties. Countries such as
Austria
34
and Germany
35
adopted federal legislation amending their criminal codes in
response. By contrast, the United Kingdom and Ireland – which do not have a
24
Ibid., recital 4.
25
Compare, for example, European Parliament Committee on Legal Affairs, Report on the Proposal for
a Directive of the European Parliament and of the Council on the Protection of the Environment
through Criminal Law (15 April 2008), found at:
<http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A6-2008-
0154+0+DOC+PDF+V0//EN>; and the several Reports of the Council Working Party on Substantive
Criminal Law, e.g.: Council of the European Union, Proposal for a Directive on the Protection of the
Environment through Criminal Law (10 March 2008), found at:
<http://data.consilium.europa.eu/doc/document/ST-6916-2008-INIT/en/pdf>.
26
R. Pereira, Environmental Criminal Liability and Enforcement in European and International Law
(Brill, 2015), at 158.
27
See M. Faure, ‘The Development of Environmental Criminal Law in the EU and Its Member States’,
26:2 Review of European, Comparative and International Environmental Law (2017).
28
German Criminal Code (Strafrechtsanderungsgesetz (StSG)) of July 1980, reformed by the 31 StAG
of 1 November 1994.
29
Austrian Penal Code (Strafrechtsanderungsgesetz (StGB)), Federal Act of 23 January 1974, BGBI.
Nr. 60/1974. See C. Ringelmann, ‘Recent Trends in Environmental Criminal Legislation’, 5:4
European Journal of Crime, Criminal Law and Criminal Justice (1997), 393.
30
Spanish Criminal Code (Nuevo Codigo Penal), Law 10/1995, Articles 325-331.
31
Portuguese Criminal Code (‘Codigo Penal’), Law Decree 48/95, Articles 278-281.
32
N. de Sadeleer, ‘La Répression des Infractions en Matière de Gestion des Déchets’, in: F. Comte and
L. Kramer (eds.), Environmental Crimes in Europe: Rules of Sanctions (Europa Law Publishing,
2004), 65.
33
See C. Ringelmann, n. 29 above, at 395.
34
Austrian Federal Law (Bundesgesetz), BGBI.I Nr. 130/2011.
35
German Federal Law (Bundesgesetz) No. 64 (2011) Part I.