Investigation, prosecutions and adjudication of waste crime
Selected national cases on prosecuting waste crimes
In the following section, selected case law from different EU Member States (and the ex-Member State, the UK), will be presented, highlighting both challenges and positive results of the prosecution of waste offences.
The facts of the cases and the prosecution will be briefly described, as well as the sanctions imposed - to enable a comparison - and the reasons on which the judgments were based.
In a Belgian case from 2019, three defendants, the managing directors of the company "PTB Ltd", operated a plant for the storage and processing of shredder material, light organic waste, screenings and the production of recovered solid fuels ('SRF'). Large quantities of waste had been collected for a price of EUR 1 below the market price, without there being a real and legal market for the processed waste.
The company could not be prosecuted because it went bankrupt in 2014. However, the court considered the three managers criminally liable as each of them had the power to take decisions concerning the offences and to have the waste removed.
The defendants were accused of storing 158767 tons of waste without authorization or in excess of the authorized quantities and of not complying with the fire safety operating condition. 14,329 tons of fluff had been dumped in the port of Ghent in a tugboat with mute barges.
The court was satisfied that there was any license for some of the activities, while the authorized quantities were systematically extended. Further, the activities continued even after the environmental inspectorate reported the violations. Generally, the managers did not prioritized compliance with environmental regulations and subordinated them to personal financial interests. The infringements were continued even after the environmental inspections and were not sufficiently remedied.
All three managers were held equally responsible. The first defendant was sentenced to 5 years imprisonment (23 months on probation, 37 months effective) and a fine of 600.000 euro. He had already been convicted for waste crimes previously. The other two managers were sentenced to 3 years imprisonment (suspended) and a fine of 600.000 euro and 2 years imprisonment (suspended) and a fine of 300.000 euro.
The prosecutor also asked for the seizure of over 15 million euros, the price of the removal of 158.767 tons of waste, but the court ordered instead the removal of the waste within 10 months after the judgment becomes final under a penalty of 1.000 euro per day for each of the defendants.
In its reasoning the court referred explicitly to Article 5 of Directive 2008/99 on the protection of the environment through criminal law, concerning the requirement of effective, proportionate and dissuasive criminal penalties. Further, the judgment was based on the unprecedented scale of waste fraud in Belgium, the environmental damage actually caused, the pursuit of profit and the preference of personal financial interests over the general interest of public safety. Furthermore, even after the warnings of the environmental inspectorate, the defendants failed to comply with the regulations and their actions distorted competition with companies seeking to comply with environmental regulations.
An appeal has been lodged against the judgment.
In a recent Dutch case (ECLI:NL:RBAMS: 2019:4531), a domestic company brought two vessels to the Netherlands without authorisation: one from the United Kingdom and one from Germany. This involved the violation of both the EU Waste Shipment Regulation and the Dutch Environmental Protection Act, with the latter requiring reporting waste, such as ions, steel and oil, in the case of the imported ships.
The court held the company liable for the import of the German ship for failing to take the necessary steps and imposed a fine of 5000 euros on the company.
However, the British vessel was brought to the Netherlands by the Scottish owner, so the obligation to inform the authorities fell on the Scottish company. In this case the Dutch company was acquitted.
- In January 2019, two Malaysian citizens were arrested at Prague airport on their way from France to Vietnam with 18 kg (about 70,000 pieces) of glass eels in their luggage. Further investigations revealed that one of them was also acting as a driver and coordinator of couriers within an organised group of perpetrators and had them fly with the contraband from various airports in Europe.
As part of the organised group was prosecuted in other EU countries, the investigation relied on mutual legal assistance from the Czech, German and Swiss prosecutors to prove the aggravating circumstance of "the crime being committed by organised groups operating in several states".
The defendants were sentenced to 30 and 24 months in prison and a fine of EUR 20,000 for smuggling. The sentence is not yet final.
- In another Czech case, a taxidermist was sentenced to 2 years conditional imprisonment for possession of the highly dangerous poison 'Carbofuran'. Despite an EU-wide ban on the sale of this substance, there is still a lot of this poison in the possession of Czech citizens. Every year some 15 to 20 cases of poisoning of wild animals, including protected species, are registered in the Czech Republic. Poisoning cases often pose a challenge to law enforcement authorities: on the one hand, establishing the link between the poisoned baits and the people who laid or planted them, and on the other hand, due to the lack of general prioritization of these cases. In this case too, the act of laying the poisoned baits could not be proven, although the perpetrator, as a taxidermist, had a clear motive.