Combatting waste crime

Following the OECD classification, the WSR divides waste into three categories according to the degree of hazard and, consequently, the control procedure to be followed in relation to it. Thus, Annex III to the WSR contains the green list, which covers waste regarded as presenting only negligible risks to human health and the environment during shipment. Such waste is, in principle, subject only to an information procedure. Annex IV to the WSR, referred to as the ‘amber list’, lists wastes which, since they present a risk to human health and the environment, are subject to a more restrictive procedure of prior written notification and consent. Lastly, Annex V to that regulation comprises an untitled list of the most hazardous wastes, which are subject to an export ban.

Article 3(1) of the WSR makes shipments within the EU of all waste destined for disposal operations and many types of waste intended for recovery operations, particularly those listed in Annex IV to that regulation, subject to a procedure of prior written notification and consent. Under Article 3(2) of the WSR, other shipments of waste are to be accompanied by information by means of the completion of the form in Annex VII to the regulation, unless they concern small quantities not exceeding 20 kg.

Article 2(35)(a) and (g) of the WSR classifies as an ‘illegal shipment’, among other things, a shipment of waste effected without the appropriate notification or information. In the event of a shipment that is illegal on the grounds set out above, Article 24(2) of the WSR provides that the authority responsible for the execution of that regulation in the Member State of origin of the waste, referred to as ‘the competent authority of dispatch’, must ensure that, normally within 30 days from the day it is notified, the waste is taken back by the ‘notifier de jure’, namely the person on whom the obligation to notify or inform falls, or, failing that, must have the waste taken back or take it back itself.

Also relevant is the Waste Framework Directive (WFD) which sets out the institutional set-up and identifies the key terms and factors of waste generation and management. Furthermore, it provides definitions relevant to the application of the WSR. The ambiguous definitions of the essential terms have often led to inconsistencies among the Member States’ respective implementation of the legislation on waste. Concerning this issue, it is crucial to highlight that the complexity of the waste framework helps to create opportunities for criminals to take advantage of these unclear interpretations and legislative overlaps.

Frequently, the national authorities and criminal courts have to classify specific substance or materials under the regime of the WSR or the WFD. For example, some wastes, such as WEEE or tyres can be intentionally mislabelled and shipped as second hand goods for reuse or be packed behind other well-packaged waste intended for reuse. In these circumstances, the exporter will not consider it necessary to declare the materials as waste. The difficulty in classification the substance may even result in the proceedings before the CJEU. For example, in two recent cases (C-654/18, Interseroh, C-23/19, P.F. Kamstra Recycling and Others), a German and a Dutch court request for a preliminary ruling concerning classification of specific mixtures of paper, paperboard and paper product wastes (C-654/18) and a substance which is not a by-product within the meaning of the WFD and also not an animal by-product within the meaning of the Animal By-Products Regulation 2009 (C-23/19).

As regards the assessment of whether or not the mixture that was shipped was waste, the relevant circumstances in the light of which that assessment should be made are those existing at the date of the shipment, and not the circumstances before or after that date (see C-399/17, Commission v Czech Republic, para 61).