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KV & Ors v R.

Country/Territory
United Kingdom
Type of court
Others
Date
Oct 19, 2011
Source
UNEP, InforMEA
Court name
Court of Appeal
Seat of court
London
Judge
Cranston.
Reference number
[2011] EWCA Crim 2342
Language
English
Subject
Waste & hazardous substances
Keyword
Offences/penalties Enforcement/compliance Trade in species Transboundary movement of waste
Abstract
The present case concerned prosecutions for transporting waste destined for recovery in Nigeria and Ghana contrary to Article 36 of the EU Regulation which prohibits exports of hazardous and other specified waste destined for recovery to non OECD countries. The main issues before the Court of Appeal were the width of the term ‘export’ in Article 36 of the EU Regulation and whether Regulation 23 of the domestic regulations impermissibly creates a broader offence than intended by Article 36 of the EU Regulation. the Court held that that the prohibition in article 36 of the EU Regulation on exports of hazardous and other specified waste destined for recovery to non OECD countries contains two simple, but key, concepts. First, the waste must be destined for recovery in the foreign country and, secondly, ‘export’ means the action of waste leaving the EU. Regarding the first, on the plain language, waste could be destined for recovery in a non-OECD decision country long before it reached the point of leaving the EU. In relation to the second, the action of waste leaving the EU has both a transactional and temporal character. It is a process commencing once the waste is destined for that country at its point of origin, and continuing until the waste reaches its ultimate destination in the foreign country. The Court rejected the defendants’ argument that export has a narrower meaning which at its most extreme is when waste physically exits the EU. The Court arrived at its view on the basis of the plain meaning of the words in article 36 of the EU Regulation, without the need to consider the legislative purpose of the EU Regulation. However the Court stated that had it done so, the predominant purpose of protecting the environment which underpins the Regulation would have led to the same conclusion. The defence interpretation of export (actual exit of the waste from the EU at its most extreme) would make enforcement of the Regulation virtually impossible. Regulation 23 of the domestic regulations makes it an offence to transport waste destined for recovery in a non OECD country and transport is defined very broadly to include the notifier of waste, any transporter; any freight forwarder and ‘any other person involved in the shipment of waste’, and faithfully transposes the UK’s obligations.
Full text
COU-159742.pdf