EU Waste Law

The majority of criminal practice involving waste law has to do with unlawful transboundary shipments of waste and unauthorised and/or otherwise unlawful landfills.

Violations of the Waste Shipment Regulation are numerous and diverse. Obvious violations are where the type of waste at hand is not permitted be exported to the country of destination, or for the contemplated treatment. If the competent authorities of shipment and of destination normally would not have consented to such a transfer, even any attempt to achieve such a transfer can only be unlawful. For example, waste can be apprehended by police authorities at a border without a shipping document or with an inaccurate shipment document. In both such types of cases, the transfer must be considered as unlawful. A criminal judge may have to characterise the unlawful transfer, e.g., in the case of an inaccurate shipping document, because the place of destination, the border point, or the treatment stated in the document as that which will be applied to the waste are not accurate. The judge will have to decide what level of penalty should be applied, and one of the current issues is whether such a penalty meets the proportionality requirement, which is a principle of general European law. In considering such proportionality, the court may have to take into account the level of adverse impact that such an unlawful transfer may have on human health and the environment.

One of the most significant types of criminal litigation involving waste is that pertaining to unauthorised and/or unlawful landfills. It can be tricky for a business operator (e.g. that of any type of a plant or shop that produces waste) to store objects or substances and not realise that this may be deemed a landfill. A recurring situation, this will obviously only happen if the above-mentioned conditions of the Landfill Directive are met, such as with respect to the type of substance or object, the purpose and duration of the storage, etc. Oftentimes, business operators have been surprised to be found to be in violation of the Landfill Directive and their principals to be prosecuted in criminal court for violation of the prohibition to operate an unauthorised landfill. Likewise, where a landfill accepts wastes of types which are not to be stored according to its operation permit, there is a criminal offence that gives rights to stiff penalties.