6.3. The main offence – the legal regime
Mr. A presented three objections to the rules on which the prosecutor based his case. The first and second ones were that the vessel was not properly included in the restrictive waste regulations. The third objection was that if the intention of the lawmaker was as the prosecutor argued, the Norwegian rules did not comply with the general requirement for clarity and accessibility.
6.3.1. Was the Harrier “waste” in respect of the rules referred to by the prosecutor?
The Court stated that the Pollution Act Section 79 Subsection 3 is based upon (EU) No 1013/2006, a view which implies that we have an EU conformal waste concept. Consequently, it was necessary to decide whether the vessel was within the waste definition of the EU Regulation. If yes, the next step would be to determine whether it was included in the national rules. The Court concluded that, in view of the Preamble of the EU Regulation No 35 on “sound management of ship dismantling”, as well as the reference in Article 2 No. 1 to two Directives, it found “without doubt that the vessel is included” as “waste”.
Regarding incorporation, the Court stated that the definition of waste in the Pollution Act Section 27 was amended in 2016 and given a wording similar to the EU definition. Based on general linguistic interpretation of the text, the Court stated that it included ships due to be scrapped.
The conclusion was that when the attempt was made to export the vessel from Norway, it was “waste”, according to the Pollution Act Section 79 Subsection 3, because Wirana wanted to have it scrapped in Pakistan – a country outside the scope of the OECD decision.
6.3.2. Clarity and access
The general requirement for a guilty verdict is that the punishable offence is formulated in a sufficiently clear way and is reasonably accessible. Thus, the Supreme Court has stated that the requirement is that
“the relevant provision must be accessible to the public It has also to be so clearly formulated that in most instances there will be no doubt whether an act is a breach of the stipulation, and that it is possible to foresee that punishment may be a consequence of breaching the rule” (HR-2020-955, Section 22).
In another case the Supreme Court said:
“The requirement of clearness implies that the courts when construing and applying punishment stipulations have to ensure that punishment is not decided outside the situations covered by wording” (HR-2020-2019, Section 16).
The Court of Appeal stated that the starting point is that the possibility of punishment under the Pollution Act Section 79 Subsection 3, cf. Section 27 Subsection 1 must appear clearly to some degree. On this point, there is, in (the Norwegian) Regulations on Waste Section 13‑1, reference to the EU Cross Border Regulation. The Court’s comment is that the reference
“is considered possible to follow for every law seeking person, and quite unproblematic to follow for a business person engaged in a specific and special sector as handling of very big vessels as waste”.
However, the Court considered the EU Cross Border Regulation Sections 35, 36 and 37 to be complex and only accessible with difficulty, but this has to be considered
“in light of the fact that the law and the EU Regulation clearly state that export of waste may be prohibited and punishable, and that this is further regulated in the Regulation, that has been included in the Norwegian Regulation. The person engaged in waste handling of big vessels who finds that the legal regime is not easily accessible has a strong reason and ability to ask for legal assistance.
If this is done, any person will be informed that it is beyond doubt that these provisions include the vessel as being waste and the planned export.”
The conclusion was that the requirements regarding clearness and accessibility had been met.