Combatting waste crime

The obligation of criminalization concerns:

• 1. the discharge, emission or introduction of a quantity of materials or ionising radiation into air, soil or water, which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants;
• 2. the collection, transport, recovery or disposal of waste, including the supervision of such operations and the aftercare of disposal sites, and including action taken as a dealer or a broker (waste management), which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants;
• 3. the shipment of waste, where this activity falls within the scope of Article 2(35) of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of14 June 2006 on shipments of waste and is undertaken in a non-negligible quantity, whether executed in a single shipment or in several shipments which appear to be linked;
• 4. the operation of a plant in which a dangerous activity is carried out or in which dangerous substances or preparations are stored or used and which, outside the plant, causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants;
• 5. the production, processing, handling, use, holding, storage, transport, import, export or disposal of nuclear materials or other hazardous radioactive substances which causes or is likely to cause death or serious injury to any person or substantial damage to the quality of air, the quality of soil or the quality of water, or to animals or plants;
• 6. the killing, destruction, possession or taking of specimens of protected wild fauna or flora species, except for cases where the conduct concerns a negligible quantity of such specimens and has a negligible impact on the conservation status of the species;
• 7. trading in specimens of protected wild fauna or flora species or parts or derivatives thereof, except for cases where the conduct concerns a negligible quantity of such specimens and has a negligible impact on the conservation status of the species;
• 8. any conduct which causes the significant deterioration of a habitat within a protected site; it has to be underlined that, according to Article 2(c) of the Directive, “habitat within a protected site” means any habitat of species for which an area is classified as a special protection area pursuant to Article 4(1) or (2) of Directive 79/409/EEC, or any natural habitat or a habitat of species for which a site is designated as a special area of conservation pursuant to Article 4(4) of Directive 92/43/EEC;
• 9. the production, importation, exportation, placing on the market or use of ozone-depleting substances

Most of these environmental crimes include the condition of causing death or serious injury or harm to persons or the environment. In these cases, the (non-)action alone is not considered to be a criminal offence. This aforementioned enumeration confirms that ‘environmental crime’ is a broad concept encompassing very different conducts, and not all of the them are included Article 3. For instance, crimes concerning food safety or animal welfare are not addressed in the Directive.

Under Articles 6 and 7 the Directive introduces a system of liability of legal persons and requests the Member States to establish effective, proportionate and dissuasive penalties. The issue of criminal penalties was raised in the wake of the judgement C-176/03 questioning whether the Community competence in criminal law was limited only to the definition of criminal offences or extended also to the defection of criminal sanctions . The problem was again solved before the Court of Justice after the Commission having challenged the legality of the adoption of a third-pillar (instead of a first-pillar) instrument on ship-source pollution, where the judges of Luxembourg again shared the opinion of the Commission by clarifying at the same time that the competence of the Community in the field of criminal law does not extend to the determination of the type and level of sanctions (C-440/05, Commission v. Council, para. 70)

Article 3 (b) and (c) criminalise collection, transport, recovery, shipment and disposal of waste in contravention of EU rules. However, no mention is made to Organized Crime Groups (OCGs) or corruption. Articles 5 and 7 require the imposition of “effective, proportionate and dissuasive sanctions” – criminal sanctions are limited to natural persons. There is no indication of minimum or maximum sanctions leaving very wide discretion to the Member States. The lack of a uniform sanctions’ regime makes the Directive weak and ineffective: each Member State can interpret Article 5 differently, thus leading to the existence of “pollution havens”.

In general, the problem with the provisions of this Directive is not so much that the applicable sanctions in Member States are different, but that the mere decision to criminalize has no influence either on decisions of public prosecutors to dismiss particular cases of environmental crime, or on the discretionary powers of the judge to choose the applicable sanctions.