Posts Tagged Basel Convention
Update 6 July 2020 The Court held at the end of May (at the time of writing, an EN version is still not available). Given the mixed messages in the language versions of the Regulation’s Annexes, it gives priority to the international agreement which the Regulation is meant to transpose, ie the Basel Convention. From the statutory build-up of the relevant Basel Annex, it holds that mixtures of wastes cannot be classified under one of the relevant entries of the green list; and also that up to 10% impurities do not impact the classification.
In C-654/18 Interseroh Sharpston AG opined on 30 January, in answer to a German court wishing to ascertain whether a waste stream composed principally of paper products should be categorised as so-called ‘green’ waste and therefore subject to the flexible control procedure provided in the EU’s Waste Shipment Regulation 1013/2016. The referring court also asks whether such waste can still be categorised as ‘green’ if it contains up to 10% impurities.
The Regulation combines rules of purely EU origin, with a sometimes complex combination of OECD and 1989 Basel Convention rules. It generally employs a listing system with corresponding light signals (green and amber, previously also red) with the green list being the most desirable to exporters: these only require compliance with the same rules as ordinary commercial transactions.
Regardless of whether or not wastes are included on the list of wastes subject to the Green Control Procedure (Appendix 3 of the EU Regulation), they may not be subject to the Green control procedure if they are contaminated by other materials to an extent which (a) increases the risks associated with the wastes sufficiently to render them appropriate for submission to the amber control procedure, when taking into account the criteria in Appendix 6 to this Decision, or (b) prevents the recovery of the wastes in an environmentally sound manner’.
In the dispute at issue Interseroh collects used sales packaging (lightweight packaging) from private final consumers throughout Germany which it then consigns to recovery. It ships the prepared waste paper across the border for recycling in a paper factory in Hoogezand (Netherlands). New paper and new paperboard is produced from the waste paper. The Netherlands purchaser, ESKA stipulates that the waste paper must meet the following specifications. It should be composed of at least 90% used, residue-drained, system-compatible paper, paperboard or cardboard (PPC) articles and PPC-based combinations, with the exception of liquid packaging board including packaging parts such as labels etc. Also, the waste stream must contain no more than 10% impurities (‘the mixture of wastes at issue’).
The Dutch and German import cq export authorities differ as to the inclusion or not of the transported wastes at issue, with the Dutch taking a more relaxed approach on the basis of the Dutch version of the relevant Basel entry B3020.
- The Dutch version reads „De volgende materialen, mits deze niet vermengd zijn met gevaarlijke afvalstoffen:
Oud papier en karton:
– ongebleekt papier en karton of gegolfd papier en golfkarton; – overig papier en karton, hoofdzakelijk gemaakt van gebleekt chemisch pulp, dat niet in bulk is gekleurd; – papier en karton hoofdzakelijk gemaakt van mechanisch pulp (bv. kranten, tijdschriften en soortgelijk drukwerk); – overige, met inbegrip van: 1. gelamineerd karton, 2. ongesorteerd afval
- The German version: “Folgende Stoffe, sofern sie nicht mit gefährlichen Abfällen vermischt sind:
Abfälle und Ausschuss von Papier und Pappe
– ungebleichtes Papier und Wellpapier und ungebleichte Pappe und Wellpappe; – hauptsächlich aus gebleichter, nicht in der Masse gefärbter Holzcellulose bestehendes anderes Papier und daraus bestehende andere Pappe; – hauptsächlich aus mechanischen Halbstoffen bestehendes Papier und daraus bestehende Pappe (beispielsweise Zeitungen, Zeitschriften und ähnliche Drucksachen); – andere, einschließlich, aber nicht begrenzt auf: 1. geklebte/laminierte Pappe (Karton) , 2. nicht sortierter Ausschuss.
- The English version: The following materials, provided they are not mixed with hazardous wastes:
Waste and scrap of paper or paperboard of:
– unbleached paper or paperboard or of corrugated paper or paperboard; – other paper or paperboard, made mainly of bleached chemical pulp, not coloured in the mass; – paper or paperboard made mainly of mechanical pulp (for example, newspapers, journals and similar printed matter); – other, including but not limited to: (1) laminated paperboard, (2) unsorted scrap.
According to the wording of the German-language version, point 2 of the fourth indent covers ‘nicht sortierten Ausschuss’ (‘unsorted scrap’) and not ‘nicht sortierte Abfälle’ (‘unsorted waste’), as the Dutch Supreme Court held on the basis of the Dutch language version (‘ongesorteerd afval’). The term ‘scrap’ is not synonymous with the terms ‘waste’ or ‘mixture’. In addition, a distinction is drawn in the French language version between ‘mélange de déchets’ and ‘rebuts non triés’, just as in the English-language version between ‘mixture of wastes’ and ‘unsorted scrap’. The terms ‘scrap’ and ‘waste’ are therefore not synonymous. Since, in the Dutch language version of the heading of Basel Code B3020, the term ‘waste’ is not used, but it instead reads ‘papier, karton en papierproducten’, the term ‘afval’ in point 2 of the fourth indent in the Dutch-language version does not cover the entire entry, but only what does not come under the first three indents.
Specifically, on 20 May 2015, the Raad van State (Council of State, Netherlands) ruled in proceedings involving ESKA that a waste paper mixture, regardless of the presence of impurities, comes under Basel Code B3020. Accordingly, any such mixture of wastes constituted ‘Green’ listed waste and came within the list of wastes subject to the Green control procedure under Article 18 of Regulation No 1013/2006. It did so on the basis of the Dutch language version of Basel Code B3020. ESKA had previously been employing the stricter prior notification procedure under Article 4 of the Regulation.
Interseroh then brought an action before the referring German court seeking a declaration that it is entitled to ship the mixture of wastes at issue to other EU Member States in accordance with the Green control procedure.
Sharpston AG at 27 starts by pointing out that the shipments at issue are kosher commercial and regulatory transactions: at least 90% of the mixture is made up of what can be described generically as paper, paperboard and paper product wastes. The waste also includes a maximum of 10% impurities. This, in other words, is not a cowboyesque trafficking practice. She then explores the legislative history of the amended Annexes, paying less attention to the linguistic analysis perhaps than one might expect – object and purpose is, after all, a guiding principle in the interpretation of texts with seemingly diverging language versions. She concludes from that assessment (please refer to her Opinion itself; there is little point in me paraphrasing it here) that the lighter, green list procedure can only apply if the notifier shows with scientific evidence that the level of impurities does not prevent the recovery of the wastes in question in an environmentally sound manner. She also acknowledges at 72 (as the EC already did in its 2009 FAQs) that clarity on the issue is wanting: ‘establishing what is a tolerable level of contamination is a matter that is due (perhaps, overdue) for examination’. However given the lack of formal regulatory guidance on the issue, the Article 28 procedure of Regulation applies: where the competent authorities of the Member State of dispatch and the Member State of destination cannot agree on the classification of a particular consignment of wastes (and hence on whether the more flexible Green control procedure in Article 18 may be used), the Annex IV amber list procedure must be applied.
(Handbook of) EU Waste Law, 2nd ed 2015, Chapter 4.
Update 3 July 2020. The conviction was upheld in  EWCA Crim 827.
 EWCA Crim 20 Regina v BIFFA Waste Services is a rare example of interlocutory appeal concerning jury instruction and summing up. It involves Regulation 1013/2006, the Waste shipments Regulation, particularly the EU’s enforcement of the ‘Basel Ban‘: the ban on exports of hazardous wastes destined for disposal in non-OECD countries.
The only real point arising on appeal is whether (contrary to the judge’s approach at Crown Court) the prosecution was to be required to show not just that a shipment of wastes was not ‘Green List’ wastes but rather household (domestic) wastes, but in addition, to prove that the waste was contaminated by other materials to an extent which prevented the recovery of waste in an ‘environmentally sound manner’ (the general Basel condition for exports); and whether the jury was to be instructed in the summing-up accordingly.
The containers in question were to form part of a larger consignment of containers (448 in total) destined for China. In May and early June 2015 they were the subject of interception and examination at the port of Felixstowe by officials of the Environment Agency. It is asserted that such examination revealed that these particular containers, or some of them, included significant contamination by items which were not mixed paper items at all; for example, soiled nappies and sanitary wear, sealed bags of excrement, clothing, food packaging, plastic bottles and so on. It is asserted that this was indicative of the consignments being mixed household waste rather than mixed paper waste: it being common ground that household waste, as such, could not be lawfully exported in this way to China.
Of particular specific relevance for the appeal is Recital (28) of the Waste Shipments Regulation which provides “It is also necessary, in order to protect the environment of the countries concerned, to clarify the scope of the prohibition of exports of hazardous waste destined for recovery in a country to which the OECD Decision does not apply, also laid down in accordance with the Basel Convention. In particular, it is necessary to clarify the list of waste to which that prohibition applies and to ensure that it also includes waste listed in Annex II to the Basel Convention, namely waste collected from households and residues from the incineration of household waste.”
Davis LJ at 33 deals swiftly with the issue. Appreciating that plenty could be said about the precise application of the Regulation, he nevertheless simply points to the prosecution’s intention. They have never sought to say that these were consignments which were indeed essentially Heading B3020 waste paper but nevertheless contaminated by other materials not collected from households (for example, corrosive fluids or dangerous metals etc). so as to prevent recovery of the waste in an environmentally safe manner. They had relied solely on showing the jury that the shipment was not paper waste. If it was, then the waste in question could not be B3020 waste paper (which is within the “green” list of waste which may legitimately be exported). If it was proved that the relevant consignments were indeed heading Y46 waste (household waste) instead, then that was within Article 36(1)(b) of the Regulation and that was the end of the matter. If, on the other hand, the prosecution failed to prove that the relevant consignments were indeed Y46, then that too was the end of the matter and the defendant was entitled to be acquitted.
At 36 he ends with congratulatory remarks to judge Auerbach at Crown Court:
In a matter which is by no means the common currency of Crown Courts, he speedily produced a comprehensive reserved written ruling which set out in full detail the legislative background and authorities; fully analysed and discussed the competing arguments; and explained the reasons for his conclusion with crystal clarity. It is just because of the care and detail underpinning his ruling that this court has been able to approach matters rather more succinctly than otherwise might have been the case.’
(Handbook of) EU Waste Law, 2nd ed 2015, Chapter 4.
Fairphone posted a blog piece on their recent trip to Ghana – thanks to Raluca Radu, a former student of mine, for keeping me updated. The piece and accompanying photos make very sober reading, highlighting the realities of WEEE export to this part of the world. Not that one is not aware of it. However it is very worthwhile to keep being reminded! Fairphone’s project in Ghana, though, is also novel in highlighting the challenge of toxic waste produced in Africa, not just imported there. Finally, the posting (and comments) underline the challenges of all three pillars of sustainable development. Plenty of challenges therefore however it is great to see people trying!
Many thanks to Gideon Kracov for pointing this out to me: the proposed Responsible Electronics Recycling Act (a private member’s Bill) would install an EU-type regime on the export of electric and electronic waste outside of the US. The US have signed but not ratified the Basel Convention : RERA would amount to implementation of the Convention in practice. The Bill also recognises the relevance of recovering the many rare earth materials contained in WEEE.
Here’s the blurb (the official summary of the Bill, in fact):
Introduced in House (07/23/2013)
Responsible Electronics Recycling Act – Amends the Solid Waste Disposal Act to: (1) prohibit the export of restricted electronic waste to countries that are not members of the Organization for Economic Cooperation and Development (OECD) or the European Union (EU), or Liechtenstein; (2) require the Administrator of the Environmental Protection Agency (EPA) to develop and promulgate procedures for identifying certain electronic equipment as well as additional restricted toxic materials contained in such equipment which poses a potential hazard to human health or the environment; and (3) establish criminal penalties for knowingly exporting restricted electronic waste in violation of this Act. Allows certain exceptions to such export ban.
Defines “restricted electronic waste” to include electronic equipment (excluding parts of a motor vehicle), such as computers, televisions, printers, copiers, video game systems, telephones, and similar used electronic products, that contain cathode ray tubes, batteries, switches, and other parts containing lead, cadmium, mercury, organic solvents, hexavalent chromium, beryllium, or other toxic ingredients.
Requires persons who handle restricted electronic wastes to permit appropriate EPA and state officials access to such wastes upon request.
Directs the Secretary of Energy to establish a competitive research application program to provide grants for research in the recovering and recycling of critical minerals and rare earth elements found in electronic devices.
When teaching International Environmental Law, I tend to at some point in the proceedings have the students ponder Lawrence Summers’ 1992 ‘Let them eat pollution‘ memo. It is a document most wonderful to teach basic economics, internalisation (or lack thereof) of externalities, morality in international trade, comparative advantage etc etc. As well as some history (remember Marie Antoinette, anyone?) and the myths surrounding quotes (qu’ils mangent de la brioche).
The EU have recently decided no longer to let developing countries recycle EU-registered ships through ‘beaching’: basically, one towes a discarded ship, typically with plenty of toxic substances on board or integrated in the ship’s build, unto a beach in a developing country, where subsequently the ship is dismantled without much regard to environmental control of occupational health and safety issues.
The long struggle to regulate the trade is a good example of the challenges of positive harmonisation in international environmental law. For instance, the definition of ‘waste’ as applied to a disused ship long differed between the EU (waste as soon as it is no longer used for its original purpose), the International maritime organisation (no waste as long as it can float) and the Basel Convention (reference to ‘discard’ and to national law). The 2009 Hong Kong Convention aims to address the challenges. This Convention has now been implemented by the EU, who have reportedly ‘gold plated’ it: i.e. the EU have gone beyond what is required under the Convention.
Some details of the scheme may be found here (Irish Presidency of the EU) – the text itself is not yet available. The regime uses a core element of the regime of the Basel Convention on the transboundary shipments of hazardous wastes and their disposal: i.e. employ export authorities in the ‘developed’ world, to only allow exports to ‘developing’ countries when conditions in the latter are deemed sufficiently safe from the workers’ and the environment’s point of view. In the case of the ship recycling regime, this is done by only allowing export of EU-flagged waste ships if they are to be dismantled in facilities that have been approved by the EU.
Plenty of complications remain: this includes the compatibility of the regime with the Basel Convention, and with international trade law; the problem of enforcement and inspection; and the possibility of circumvention by switching flag state.
Geert. Postscript July 2014: the Regulation was eventually adopted as Regulation 1257/2013.
There’s only that much delay the ECJ will tolerate – Rotterdam court has to start from scratch in EBS, no clarification on waste shipments
The Court’s order in EBS, Case C-240/12 (available in French and Dutch only), has only now come to my attention (thanks to Raluca Rada) – and for the wrong reasons. This is a preliminary review by the Court at Rotterdam, concerning the application of the waste shipments Regulation.
The case at hand refers to a transport of unsorted used clothes from France to the United Arab Emirates via the Port of Rotterdam, seized by the Dutch authorities due to alleged failure to comply with the notification requirements under the waste shipment Regulation for waste transit. The defendant in the criminal proceedings essentially argued that the Dutch authorities interpret the concept of ‘transit’ in too wide a manner. Since these are criminal proceedings, there is additional tension on the notion of transit in old v new waste shipments Regulation – under criminal law, the provision with the most advantageous consequences for the defendant needs to be applied, even if it was not applicable at the time of the alleged infringement (retroactive application of the milder criminal law; thank you to Gaelle Marlier for confirming that).
The ECJ forewarned the national court that not enough information on the facts had been given for it to review. Time was given for the national court to provide additional data – the oral hearing was postponed to accommodate the national court’s delay in answering. Subsequently, the national court wanted to hear the parties on the additional facts to be given to the court: such hearing could not be scheduled for some time in view of the workload of the national court. The ECJ was then requested to try and answer the question anyway, on the basis of the facts that had been given in the request, supplemented with the few extra nuggets that had been provided informally. Not surprisingly therefore, the Court in the end declined full stop.
I am not sure what this means for the procedure: presumably, the question may be asked again, this time with the right amount of data? To my knowledge these kinds of orders do not occur all that frequently, pity it should do in this case, for I was rather looking forward to hearing the outcome.
Where waste is shipped by vessel from an EU Member State (in this case France) to a State in which the OECD-Decision does not apply (in this case the United Arab Emirates), is there ‘transit’ within the meaning of the former 2 and the new Waste Shipment Regulation (WSR) if under way the vessel puts in at a port of another EU Member State (in this case the Port of Rotterdam)?
Does it make any difference to the answer to question 1 if:
there is storage and/or transhipment of that waste at that port and/or
that waste is taken ashore and/or
that waste is declared for import at customs?