Towards Effective Implementation of the EU Environmental Crime Directive? The Case of Illegal Waste Management and Trafficking Offences

• Published date: 01 July 2017
• Author: Ricardo Pereira
• Date: 01 July 2017
• DOI: http://doi.org/10.1111/reel.12207

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) Environ-

mental Crime Directive in 2008 marks a signifi-

cant step in the EU’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 deficien-

cies 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 juris-

diction. 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 consis-

tency 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 dis-

posal sector.

1

Illegal waste shipments are widely

thought to cross national borders easily, particularly in

developing countries which have few inspection sys-

tems and technologies available.

2

This practice of ‘waste

dumping’has been condemned by some nongovern-

mental organizations (NGOs) as amounting to ‘garbage

imperialism’.

3

This problem is exacerbated in light of

the increased costs of waste disposal in developed coun-

tries.

4

Globally it is estimated 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 esti-

mated that organized crime involving environmental

impairment generates revenues of between US$1 and 2

billion annually through dumping of toxic waste.

6

The so-called ‘eco-mafia’in Italy in many ways personi-

fies 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 indus-

trial 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 environmen-

tal crime in the traditional mafia strongholds of Cam-

pania, Puglia, Calabria and Sicily.

7

Among the 1,734

waste-related infractions recorded in Italy in 2002,

39% were committed in those four regions.

8

Not only

in Italy but also in other European Union (EU) Mem-

ber States several studies have shown the infiltration of

criminal organizations into the waste disposal sector.

9

*Corresponding author.

Email: pereirar1@cardiff.ac.uk

1

T. Fr€

ohlich et al., ‘Organised Environmental Crime in the EU Mem-

ber 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 Medi-

cal Anthropology (1993), 81.

4

Thereare estimatessuggesting thatwhile in the late 1980s the average

cost of safe waste disposal in an Organisation for Economic

Co-operation and Development (OECD) country was betweenUS$100

and 2,000, in Africa it was between US$ 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; seealso H.-J. Albrecht, ‘The

Extent of Organised Environmental Crime: A European Perspe ctive’, in:

F. Comteand L. Kramer (eds.),EnvironmentalCrime in Europe:Rules of

Sanctions (EuropaLaw, 2004),91; and T. Fr€

ohlichet al., n. 1 above.

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. Fr€

ohlich et al., n. 1 above; and T. Fr€

ohlich 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.

ª2017 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

147

RECIEL 26 (2) 2017. ISSN 2050-0386 DOI: 10.1111/reel.12207

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Review of European Community & International Environmental Law

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 ship-

ments 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 approved 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. Specifi-

cally, 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 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 haz-

ardous 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% 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 C^

ote d’Ivoire.

19

This article aims to assess the consistency and effective-

ness of the implementation of the 2008 EU Environ-

mental 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 discus-

sion 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 partic-

ular whether there are significant inconsistencies in the

transposition. The article moves on to discuss whether

the Member States have introduced ‘effective, propor-

tionate and dissuasive’criminal penalties for the imple-

mentation 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 harmonization 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 environ-

mental 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 environmen-

tal criminal matters (see the Environmental Crimes

21

and Ship-Source Pollution cases

22

), a Directive pro-

posal was presented by the European Commission (EC)

in February 2007 for the harmonization of environmen-

tal criminal law.

23

The Environmental Crime Directive

was finally unanimously adopted by the Council on 24

October 2008. The Commission argued that harmo-

nization of environmental criminal law could help

improve the implementation deficit of EC environmen-

tal legislation and provide a strong deterrent against

environmental crimes within the EU.

24

However, the

provisions on the minimum levels of maximum penal-

ties, which were present in the original directive

10

Directive 2008/99/EC of 19 November 2008 on the Protection of the

Environment through Criminal Law, [2008] OJ L328/28 (‘Environmen-

tal 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).

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 Elec-

tronic Equipment (WEEE), [2012] OJ L197/38.

18

See EnviCrimeNet, ‘Report on Environmental Crime’ (2016), found

at: <http://www.envicrimenet.eu/EN/images/docs/envicrimenet%20

report%20on%20environmental%20crime.pdf>, at 16; and European

Union Network for the Implementation and Enforcement of Environ-

mental Law (IMPEL), ‘IMPEL-TFS Enforcement Actions II: Enforce-

ment of EU Waste Shipment Regulation’ (28 April 2011), found at:

<https://www.politieacademie.nl/kennisenonderzoek/kennis/media

theek/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 Environ-

mental Crime Directive Proposal’).

24

Ibid., recital 4.

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RICARDO PEREIRA RECIEL 26 (2) 2017