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

Published date01 July 2017
AuthorRicardo Pereira
Date01 July 2017
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 EUs 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.
The increased cost of safe waste disposal has driven an
export trade to many of the worlds least developed
countries, where there are often gaps and weaknesses in
the regulatory framework applicable to the waste dis-
posal sector.
Illegal waste shipments are widely
thought to cross national borders easily, particularly in
developing countries which have few inspection sys-
tems and technologies available.
This practice of waste
dumpinghas been condemned by some nongovern-
mental organizations (NGOs) as amounting to garbage
This problem is exacerbated in light of
the increased costs of waste disposal in developed coun-
Globally it is estimated that illegal trade and dumping
of hazardous waste materials has an overall value of
between US$10 and 12 billion.
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.
The so-called eco-mafiain Italy in many ways personi-
fies the worst forms of environmental criminality in
Europe. Italys 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 Italys 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.
Among the 1,734
waste-related infractions recorded in Italy in 2002,
39% were committed in those four regions.
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.
*Corresponding author.
T. Fr
ohlich et al., ‘Organised Environmental Crime in the EU Mem-
ber States’ (2003), at 3.
C.W. Schmidt, ‘Environmental Crimes: Profiting at Earth’s Expense’,
112:2 Environmental Health Perspectives (2004), A96, at A103.
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.
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.
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.
See H.-J. Albrecht, n. 4 above.
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.
RECIEL 26 (2) 2017. ISSN 2050-0386 DOI: 10.1111/reel.12207
Review of European Community & International Environmental Law
The criminal offences under Article 3(b) and (c) of the
2008 EU Environmental Crime Directive
aim to
improve the implementation deficit of specific EU waste
including Regulation 1013/2006 on ship-
ments of waste,
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.
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 measuresto 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.
Although the Ban Amendmentto 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.
Still, there is evidence
of continuous non-compliance by a number of Member
States with the Regulation.
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.
Overall, it is estimated that illegal waste trafficking
amounts to roughly 20% of all the waste shipments in
the EU.
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 dIvoire.
This article aims to assess the consistency and effective-
ness of the implementation of the 2008 EU Environ-
mental Crime Directive,
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 dissuasivecriminal 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
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
and Ship-Source Pollution cases
), a Directive pro-
posal was presented by the European Commission (EC)
in February 2007 for the harmonization of environmen-
tal criminal law.
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.
However, the
provisions on the minimum levels of maximum penal-
ties, which were present in the original directive
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’).
European Commission, 29th Annual Report on Monitoring the
Application of EU Law (2011), COM(2012) 714.
Regulation 1013/2006 of 14 June 2006 on Shipments of Waste,
[2006] OJ L190/1, Article 2.35.
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’).
Ibid., Article 4.3 (emphasis added).
European Environment Agency (EEA), Waste without Borders in
the EU? Transboundary Waste Shipments of Waste (EEA, 2009), at
See Europol, n. 9 above.
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.
See EnviCrimeNet, ‘Report on Environmental Crime’ (2016), found
at: <
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:
‘Trafigura found Guilty of Exporting Toxic Waste’, BBC News (23
July 2010).
Environmental Crime Directive, n. 10 above.
ECJ, Case C-176/03, Commission v. Council, [2005] ECR I-7879
(‘Environmental Crimes’).
ECJ, Case C-440/05, Commission v. Council, [2007] ECR I-9097
(‘Ship-Source Pollution’).
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’).
Ibid., recital 4.
ª2017 John Wiley & Sons Ltd

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