Exporting Waste Material: Compatibility of EU and UK Regulations
| Author | Laura Madhloom |
| DOI | 10.1350/jcla.2012.76.1.744 |
| Published date | 01 February 2012 |
| Date | 01 February 2012 |
| Subject Matter | Court of Appeal |
Court of Appeal
Exporting Waste Material: Compatibility of EU and UK
Regulations
R v KV [2011] EWCA Crim 2342
Keywords Environment; European Union; Shipment of waste; Waste
regulations; Interpretation of directives; Proportionality
A number of defendants were due to stand trial in respect of counts of
transporting or attempting to transport waste destined for recovery in a
foreign country contrary to reg. 23 of the Transfrontier Shipment of
Waste Regulations 2007 (SI 2007 No. 1711; hereafter ‘the UK Regula-
tions’). The UK Regulations set out to criminalise breaches of Article 36
of Regulation (EC) 1013/2006 on shipments of waste (‘the EU
Regulation’).
The issue before the Court of Appeal was whether the judge was
correct in ruling at a preparatory hearing for the trial that reg. 23 of the
UK Regulations and Article 36 of the EU Regulation caught all those
who were involved in transporting waste for export, from the point of
origin where waste was collected and stored for onward transmission to
another country, through to the point where the waste was delivered to
that country. In reaching that conclusion the judge rejected defence
submissions that a defendant only exports waste at some later point, at
the extreme when the waste shipped by him leaves the European
Community. The judge also rejected submissions that reg. 23 was in
breach of EU law and was ultra vires, and that the regulation was
disproportionate and consequently unlawful. The defence filed an inter-
locutory appeal to the Court of Appeal under s. 35(1) of the Criminal
Procedure and Investigations Act 1996 against these rulings in the
Crown Court.
The two main issues before the court were: (i) the meaning of ‘export’
in Article 36 and whether the offence was only committed after the
waste had left the European Community; and (ii) the width of reg. 23 of
the UK Regulations. The defendants contended that the judge had erred
in ruling there was no issue of inconsistency or disharmony, since
‘transport’ in reg. 5 of the UK Regulations is given a much wider
meaning than the term ‘export’ in the EU Regulation, and insofar as
relevant, the definition of ‘transport’ in Article 2(33).
H
ELD
,
DIMISSING THE APPEAL
, analysis of the language of Article 36
showed the judge had been correct to reject the defence submissions.
The court held that the process of export commenced once the waste
was destined for that country at its point of origin, and continued until
the waste reached its ultimate destination in the foreign country. A
narrow construction of reg. 23 was not required by the EU Regulation.
Regulations 5 and 23 of the UK Regulations had faithfully transposed
the UK’s obligations and there had been no altering of the scope of the
6The Journal of Criminal Law (2012) 76 JCL 6–21
doi:10.1350/jcla.2012.76.1.744
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