Towards Effective Implementation of the EU Environmental Crime Directive? The Case of Illegal Waste Management and Trafficking Offences
Abstract: 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.
Summary (2 min read)
- 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.
- The so-called ‘eco-mafia’ in Italy in many ways personifies the worst forms of environmental criminality in Europe.
- 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.
- 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.
- 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.
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 Crimes21 and ShipSource Pollution cases22), a Directive proposal was presented by the European Commission in February 2007 for the harmonization of environmental criminal law.23 22 ECJ, Case C-440/05, Commission v. Council,  ECR I-9097 (‘Ship-Source Pollution’).
- Countries such as Austria34 and Germany35 adopted federal legislation amending their criminal codes in response.
- This approach to harmonization of waste offences also reflects the fact that the European Community (i.e., pre-Lisbon) was recognized to have powers to harmonize environmental criminal law only if linked to ensuring the effective implementation of EC environmental law.37.
UNLAWFUL COLLECTION, TRANSPORT, RECOVERY OR DISPOSAL OF WASTE
- The waste offence under Article 3(b) of the Environmental Crime Directive aims to improve the enforcement of specific EU waste disposal and treatment directives.
- The Commission has refused to disclose the remaining three reports, as it is currently taking infringement actions against three Member States (France, Germany and Hungary).
- 47 Milieu, ‘National Report for the Netherlands, Evaluation Study on the Implementation of Directive 2008/99/EC on the Protection of the Environment through Criminal Law by Member States’ (Milieu, 2015) (‘National Report for the Netherlands’).
- 56 L. Krämer, ‘Case Law Analysis: Environment, Crime and EC Law’, 18:2 Journal of Environmental Law (2006), 277. ‘serious injury’.57 Some Member States have adopted guidelines which aim to curtail the discretion in the interpretation of those undefined notions by national authorities.
ÍLLEGAL WASTE SHIPMENT
- 61 This is in light of the legal basis used for the adoption of the Directive Article 192 of the Treaty on the Functioning of the European Union (Consolidated Version of the Treaty on the Functioning of the European Union,  OJ C326/47 (‘TFEU’)).
- The illegal waste shipment offence in Article 3(c) of the Directive aims to improve the enforcement of Regulation 1013/2006 on shipments of waste, which itself implements the EU Member States’ obligations under the Basel Convention.
- Thus in potentially serious cases of abstract endangerment to the environment, the economic activity carried out without a permit may constitute not only an administrative infringement, but also a crime.
- See also the Convention on the Protection of the Environment through Criminal Law (Strasbourg, 4 November 1998; not yet in force), Article 4(a-e).
- The EU Environmental Crime Directive succeeds in providing a ‘framework’ for environmental criminal law enforcement in the Member States.
- It appears that the current levels of harmonization under the Directive are insufficient to ensure the effective enforcement of environmental law.
- Yet the fact that the Directive, at present, does not harmonize criminal penalties – and the possibility that some Member States may resist the adoption of an eventual legislative proposal aimed at harmonizing criminal penalties– suggests that significant variations are likely to persist regarding the implementation and enforcement of environmental criminal law in the EU.
- He is the author of articles and book chapters in the fields of environmental, energy, criminal and human rights law, as well as Environmental Criminal Liability and Enforcement in European and International Law (Brill, 2015).
- In March 2012, the Commission brought infringement proceedings against Cyprus, but subsequently dropped the cases against Greece and Finland who have communicated complete transposition of the Directive.
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Q1. What contributions have the authors mentioned in the paper "Towards effective implementation of the eu environmental crime directive? the case of illegal waste management and trafficking offences" ?
Pereira et al. this paper show that illegal waste shipments are widely thought to cross national borders easily, particularly in developing countries which have few inspection systems and technologies available.
Q2. What are the future works in "Towards effective implementation of the eu environmental crime directive? the case of illegal waste management and trafficking offences" ?
Yet the fact that the Directive, at present, does not harmonize criminal penalties – and the possibility that some Member States may resist the adoption of an eventual legislative proposal aimed at harmonizing criminal penalties– suggests that significant variations are likely to persist regarding the implementation and enforcement of environmental criminal law in the EU.