Sunday, January 10, 2010

Trafigura Cote d'Ivoire dump illegal in EU Law

Note: all references to Trafigura's actions in this post are to be taken as "alleged".

Caroline Lucas, Green Party MEP, wrote last November to Mr Dimas, the European Environment Commissioner:

In 2006, Trafigura illegally dumped toxic waste in Ivory Coast in August 2006. The toxic waste caused health and environmental havoc among the population.
Exporting waste from the EU for disposal is illegal pursuant to Article 34 of the waste shipment regulation, and exporting hazardous waste to non-OECD countries for recovery is illegal pursuant to Article 36 of that regulation.
In 2006, Commissioner Dimas acknowledged that 'Such highly toxic waste should have never left the European Union. European and international laws were broken.'

Commissioner Dimas also pledged to 'seek ways and means to reinforce the existing waste shipment regulation and its implementation by the Member States. I also plan to put forward a proposal to criminalise certain environmentally damaging practices such as the one perpetrated.'

What progress, three years after the incident, has been made on the following:
- What measures have been taken to monitor how Member States have been applying this regulation?
- Does the Commission consider that all Member States fully enforce the waste shipment regulation? If not, what action has the Commission undertaken or what action will it undertake to ensure this?
- What recommendations/proposals have come out of this monitoring process, and how will they inform future changes to the regulation?
- What steps have been made to criminalise certain environmental damaging practices, such as the one perpetrated by Trafigura?
- What other measures have the Commission put in place to ensure that such a horrific incident can never happen again?

Commissioner Dimas has now replied:

21 December 2009
Answer given by Mr Dimas on behalf of the Commission

Following the specific incident in Cote d'Ivoire, the Commission has underlined the importance of preventing any such illegal waste shipments to developing countries. Proper implementation of EU environmental legislation is a priority of the Commission's environment policy and the enforcement of the export bans in the EU Waste Shipment Regulation is of key importance.

Member States are obliged to take the necessary measures to ensure that the Waste Shipment Regulation is complied with in practice and ensure that in case of violation the responsible parties are held accountable. As there are still gaps in the proper implementation and enforcement of the EU Waste Shipment Regulation, the problem of illegal waste shipments is not completely resolved. To assist Member States in better implementing and enforcing of the regulation, the Commission has undertaken a number of actions to strengthen the enforcement in Member States.

Recognising the need for better quality and higher frequency of inspections, the Commission has:

— held a study on inspection requirements for waste shipments and will soon proceed with an impact assessment to evaluate the various impacts of a number of criteria and requirements for inspections, controls and spot-checks. This will be a step that could lead the work towards the establishment of legislative criteria for waste shipments;
— supported the coordinated enforcement actions of IMPEL-TFS in their aim to develop a greater consistency of approach in the implementation, application and enforcement of the EU Waste Shipment Regulation.

Moreover, the Commission is currently holding a study on the feasibility of establishing a ‘Waste Implementation Agency’ which would assist in the direct monitoring of inspections on inter alia waste shipments.

The Commission recognises the need to focus on certain waste streams that are particularly problematic for Africa, such as WEEE and ELVs. The recently proposed recast of the WEEE Directive includes additional rules to avoid illegal shipments of e-waste, especially when this is falsely declared as used electrical and electronic equipment. The Commission is currenly working on a guidance on ELVs while it strives to ensure that other waste streams (e.g. mixtures of non-hazardous waste) are uniformly classified throughout the EU.

Directive 2008/99/EC on the protection of the environment through criminal law includes as criminal offence the unlawful fault-based illegal shipment of waste pursuant to Article 2(35) of the Waste Shipment Regulation.
Member States have to take the necessary measures up to 26 December 2010 to ensure that such illegal shipment of waste is punishable by effective, proportionate and dissuasive criminal penalties.

Pertaining to the involvement of Trafigura in the particular incident in Cote d'Ivoire, there are currently legal proceedings underway in the Netherlands to which the Commission has no direct access.
While according to the Treaty on the Functioning of the European Union the Commission does not have the power to criminalise individual operators, it does not hesitate whenever necessary to use the mechanisms available under the Treaty to ensure that EU legislation is properly applied.
Article 260 TFEU provides the possibility for the Court of Justice to impose penalty payments or a lump sum when Member States fail to respect the Court's judgments. The Commission may bring such cases to the Court which determines the specific amount of fines.

So there we have it. Under EU Law, the transfer of waste from Europe to Africa was illegal, and there is a potential for the EU to take court action over the Cote d'Ivoire incident.

I believe that the Netherlands action referred to is an action brought by Greenpeace.

M'learned friends will be studying this text, and working out what to do next.

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