How Do Law Enforcement Agencies React to These Crimes?
The EU Legal Framework and Its Effectiveness and Enforcement
The current EU legal framework to tackle illegal e-waste shipments to developing and newly industrialised economies, which translates the international Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (see Box 6.3) into EU law, primarily includes the WSR (EU Parliament and EU Council 2006) and the Waste Electrical and Electronic Equipment (WEEE) Directive (EU Parliament and EU Council 2012).
Box 6.3 The Basel convention
The transboundary movement of e-waste at the international level is guarded by the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, which came into force in 1992 and currently has 183 Parties. The Basel Convention seeks to provide enhanced control of the transboundary shipment of hazardous and non-hazardous waste and to reduce the frequency of such movements. It regulates the import and export of waste streams, poses requirements for notice and consent of the movements of the wastes, and aims to act as an incentive for environmentally sound management of the waste streams.
The Basel Convention, however, does not ban the export of hazardous waste from advanced economies to less advanced economies. In order to address this gap, the Basel Ban Amendment was introduced in 1995, which does not allow the export of hazardous waste intended for final disposal and bans the export of hazardous wastes destined for recycling and recovery from OECD to non-OECD countries. Nevertheless, until now the amendment has not been ratified by three-fourths of the parties and therefore it has not yet entered into force.
Source: UNEP, 1989; Basel Convention, 2014
The EU WSR requires member states to control waste shipments; the authorisation of a specific waste shipment depends on the nature of the transboundary movement (import, export, or transit); the processing method (disposal or recycling); the type of waste (less hazardous or more hazardous); and the country of destination (OECD or non-OECD countries). Overall, the WSR imposes stricter requirements on shipments that are disposed than on waste shipments that are recovered. It also imposes strict requirements on shipments posing significant environmental and health risks and on shipments destined to non-OECD countries. In contrast to the Basel Convention, the EU WSR bans the export of e-waste to non-OECD countries.
Even though the requirements of the EU WSR establish a robust framework to tackle illegal shipments, weaknesses have been detected. A recent report by the Dutch Court of Audit (Algemene Rekenkamer 2013) compiling the results of eight national audits on the enforcement of the WSR revealed that huge differences exist between the analysed member states in terms of the number and nature of inspections, the availability of resources, the number and nature of enforcement organisations involved, and the existence of enforcement strategies. The audits found that the involvement of multiple enforcement organisations, including customs, police services, environmental agencies, and environmental inspectorates created challenges to coordination and cooperation. The information management in the countries audited was found to be inadequate for the purpose of enforcing the WSR. Furthermore, huge differences among EU member states have been revealed in relation to the extent to which environmental crimes are prosecuted and the way infringements are penalised. Findings also showed that most European countries make only limited use of sanctions (Algemene Rekenkamer 2013). The substantial differences in enforcement between member states have led to the phenomenon of ‘port hopping’ where illegal e-waste exporters choose those ports where control is regarded to be the weakest (EC 2013).
In recognizing such weaknesses, the WSR was revised in mid-2014 with the aim to reinforce a range of measures to ensure a more uniform implementation of the regulation throughout the EU (EU Parliament and EU Council 2014). By 1 January 2017, member states have to establish risk-assessment inspection plans, which must include the objectives and priorities of the inspections, the geographical area covered by the inspection plans, and the tasks assigned to each authority involved. The inspection plans must be regularly reviewed and updated at least every 3 years. The amendment grants inspectors more power to demand documentary evidence from suspected illegal waste exporters and therefore shifts the burden of proof regarding the distinction between waste and product to the suspected illegal exporters. Upstream inspections are also reinforced, and the new regulation includes a minimum number of physical checks in the waste shipment inspections. Member states are also required to strengthen cooperation between the different enforcement authorities and provide training for inspectors.
In 2012, amendments were also introduced to the WEEE Directive, some of which have a direct effect on e-waste shipments. Article 10 on the shipments of e-waste, referring to the WSR and the recast Directive (EU Parliament and EU Council 2012), was added, which introduced tighter requirements on providing documentary evidence of the functionality of used electrical and electronic equipment that may be exported. Furthermore, the recast WEEE Directive has raised the mandatory e-waste collection targets, which indirectly also affects illegal e-waste activities as it has the potential to reduce the risk of leakage of e-waste from the formal collection and treatment into illegal circuits.
These extensive amendments have great potential to address the weak points in the enforcement chain of e-waste shipments, in particular inspections. At the same time, because the WSR amendments need only be implemented by 2017, it is yet to be seen how willing the individual member states will be to provide the necessary resources (such as budget and staff) to implement the new provisions in a meaningful way. Therefore, the amendments per se cannot guarantee a sufficient improvement in enforcement.