3.2 Waste Shipment Regulation
The Regulation 1013/2006 on shipments of waste is based on the Basel Convention provisions. The EU fully transposes and implements not only the Convention, but also the ‘Basel Ban Amendment’ in this Regulation.(1) Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste, OJ L 190/1 2006. The predecessor is Regulation 259/93. The EU has also incorporated the OECD Decision of the Council C(2001)107/ Final Concerning the Control of Transboundary Movements of Wastes Destined for Recovery Operations (as amended by (2004)20).Thus, the Regulation bans shipments of waste falling within its scope to non-OECD States. Ships are expressly included in the Regulation, which states that it is “necessary to ensure the safe and environmentally sound management of ship dismantling in order to protect human health and the environment. Furthermore, it should be noted that a ship may become waste as defined in Article 2 of the Basel Convention and that at the same time it may be defined as a ship under other international rules”.(2) Recital 35. The Waste Shipment Regulation preserves the exceptions of the Basel Convention, including the exception for waste generated by the normal operation of the ship within the meaning of MARPOL 73/78 or other relevant instruments. The EU law definition of ‘waste’ also follows generally the Basel regime and is laid down in the two Directives on, respectively, waste and hazardous waste.
Apart from the clarification in the recital that ships may be considered as ‘waste’, the EU law definition of ‘waste’ generally follows the Basel provisions, and is spelled out in the provisions of the EU Directive on waste.(3) Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives, OJ L 312, 2008, p. 3.The concept of waste includes substances or objects, which are disposed of or are being recovered; or are intended to be disposed of or recovered.(4) Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives, OJ L 312, 2008, p. 3, Annex I.
The Regulation applies to shipment of waste within the EU/EEA Area, to the import of waste to the EU from the third States, and to shipments of waste from the EU to third countries (including non-OECD countries).(5) Article 1(1).The latter situation is governed by Title IV of the Regulation, and is the most relevant for this article.
Firstly, all export of waste from the EU to third States destined for disposal is prohibited.(6) Article 34.1. EFTA States are subject to further provisions but are not a significant destination for end-of-life ships.The operations amounting to disposal are, among other, deposit into or on to land, and land treatment such as sludgy discards in soils or release into seas or oceans.(7) Annex II A of Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste, OJ L 114/9, 2006.This clearly applies to practices such as beaching of end-of-life ships.
Secondly, the export of waste destined for recovery in non-OECD States(8)www.oecd.org.is prohibited if it involves wastes listed in Article 36(1) of the Regulation, as specified in the related Annexes (which include hazardous wastes). At the same time, shipment of waste on the Green list (Annex II) for recovery is generally excluded from the regulatory requirements.(9) Article 1(3)(a). See also Engels (n. 8 above), p 44.This list also includes “vessels and other floating structures” to be shipped for breaking, if they are properly emptied of dangerous substances. However, older ships are in all cases unlikely to benefit from the Green list because they normally contain built-in hazardous materials. If an end-of-life ship contains a sufficient amount of such materials in its hull, it will not classify as ‘green waste’ which may be sent to a third State for recovery.(10) See Tony George Puthucherril, From Shipbreaking to Sustainable Ship Recycling, Martinus Nijhoff (Leiden/Boston), 2010, p. 84 for discussion of French case Sandrein where this was one of the issues raised.
The Waste Shipment Regulation contains provisions envisaging certain legal implications of the infringements of its requirements. Importantly, and in line with the Basel Convention, the Regulation contains take-back obligations applicable in cases where a shipment of waste cannot be completed as intended or if it was illegal.(11) Arts 22–24 and 34(4).
Article 50(1) of the Waste Shipment Regulation requires Member States to adopt provisions on effective, proportionate and dissuasive penalties for infringement of the provisions of the Regulation and to take all measures necessary to ensure that they are implemented. Furthermore, the Environmental Crime Directive(12) Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law (The Environmental Crime Directive), OJ L 328, 2008, p. 28.requires Member States to criminalize seriously negligent or intentional illegal shipment of waste.(13) Article 3(1)(c).In the Netherlands, the shipowners and other involved entities were prosecuted for environmental violations after they sent their ships to beaching in India.(14) The cases are reported here: <https://www.reuters.com/article/us-netherlandsshipping-court/dutch-shippers-sentenced-for-having-ships-demolished-on-indianbeach-idUSKCN1GR2NC> (SeaTrade) and here: <https://www.maritime-executive. com/article/another-dutch-shipowner-fined-for-beaching-a-vessel> (HMS Laurence) (last accessed 13 April 2020).
Of course, it is possible for shipowners to escape the application of the Waste Shipment Regulation. It may be difficult to prove the intention to dispose of a ship – a subjective matter – before that ship is re-flagged and sent abroad with other purposes, such as continued operations or repair. The question is whether it is possible to deduce the intention to scrap the ship from some objective factors, including the age of the ship, the route it takes, the manner in which the transfer is organized (e.g., to cash buyers and similar actors known to be involved with purchasing vessels for shipbreaking etc). In EU case law, the concept of ‘waste’ is interpreted broadly, so as to ensure the effectiveness of the EU environmental law and the Directives.(15) C-263/05 Commission v. Italy, para. 33.Even if the substance – or a ship – still has commercial value, it may be considered as ‘waste’,(16) C-263/05 Commission v. Italy, para. 36.if the holder has an actual intention to discard it at the time of shipment (for example, because it is only perceived as a burden).(17) Joined Cases C-241/12 and C-242/12 Shell.
In addition, the ship sold to ship scrapping may leave undetected from a port in an EU/EEA State, thereby escaping the reach of the EU waste shipment rules. In Tide Carrier/Harrier case (Norway), the ship did not manage to leave the Norwegian waters because it suffered engine stoppage a short time after having departed from the port. As the national authorities had suspicions that the ship was in reality destined for scrapping at the infamous Alang beach (India), they had the chance to start the investigation against the shipowner, the cash buyer and the insurance company.(18) For a description of the case, see: <https://www.shipbreakingplatform.org/spotlightharrier-case/> (last accessed on 13 April 2020). At the time of writing, the cash buyer Wirana accepted a settlement of 7 million Norwegian krone for charges of several environmental violations in relation to Harrier-case.