On 23 July, The Netherlands High Court delivered its judgement in the Probo Koala case involving the multinational company Trafigura. The Court reviewed solely the acts that occurred in the port of Amsterdam. However, the High Court declared itself incompetence for judging the matter involving the liability of the municipality of Amsterdam.
The Facts
Act I: The Probo Koala ship is posted off the coast of Gibraltar. Trafigura orders to proceed onboard with the raw refinery and desulphurisation of remaining substances which resulted in the formation of harzardous slops. Act II: In July, the Probo Koala arrives in the port of Amsterdam where it tries to unload what it estimates to be "cargo residues' and not harzardous waste. The Amsterdam Port Services (APS) first accept the operation. But when they realise the nature of the substances, APS require a much higher price for the treatment. Trafigura refuses to pay and requires its substances to be reloaded onboard. Act III: The Probo Koala sails, via Estonia, to the Ivory Coast in August 2006. In Abidjan, a port officer recommends the Society Tommy for the treatment of the waste at a much cheaper rate. The waste were discharged without treatment and caused the death of 17 people, and the intoxication of 100,000 ones. Later on the Probo Koala was renamed Gulf Jash.
With the 23 July judgement, it is the first time that Trafigura is condemned for a criminal offence in that case. Until now, the multinational company based in London has always succeeded in avoiding condemnation by paying financial compensations ($160 millions in 2007 to the government of Ivory Coast; and $50 millions in 2009 to individuals claiming injuries).
The Decision
The decision delivered on 23 July concerns the Dutch part of the case, i.e. the infringement of European rules regarding the import and export of hazardous waste (Regulation (EC) No.1013/2006 on the shipment of waste). Indeed, the legislation of waste, and in particular the EU legislation, has played a determinant role in the recognition of the offence, although the decision seems to refer primarily to Dutch legislation.
One of the main conclusions relates to the legal charaterisation of the operation conducted by Trafigura, i.e. the illegal export of harzardous waste to Ivory Coast.
The extent to which the slops transported by the Probo Koala enter into the scope of application of the European legislation is a central issue. Two provisions of the Regulation are of particular relevance: Article 36 on the illegal export of hazardous waste to non-OECD countries for recovery; Article 34 on the export of waste for disposal. But international rules may also apply, as argued by Trafigura's layers, i.e. Basel Convention or MARPOL rules.
The High Court of Amsterdan ruled that:
Trafigura must be acquitted of the charge of forgery, because it should not have agreed to proceed to the treatment of the slops at the price proposed by APS, according to the Presiding Judge F. Bauduin.
Trafigura's employee, Mr Naeem Ahmed, has been acquitted of one charge but convicted for leading the operations resulting in the dumping of waste "while its dangerous nature was concealed." He was condemned to a six-month suspended sentence and a 25,000 Euros fine.
The Ukrainian captain of the Probo Koala was also condemned to a suspended prisen term of five-months.
Trafigura is currently considering whether it should appeal the Court's decision.
As pointed out by NGOs, the High Court Decision sanctions the "increasing industrialisation on the high seas." "Waste produced on board a vessel after an industrial process - in this case refining - should be rteated in the same way as industrial waste produced on land, and not under an exempt status of waste which derives from the normal operations of a vessel." (Ibid.)
The decision, being the only sanction pronounced against Trafigura, also points out the relevance of the EU rules on export of waste in direction of developing countries as an important safety net, in particular in the present case for corporate activities that occured outside the EU territory and where international rules against private actors might face some shortcomings.
The extent to which The Netherlands are responsible as regards the correct transposition of the EU rules will be examined by the European Court of Justice, which is competent on this matter. Two NGOs (Robin des Bois and Sherpa) have logged a complaint before the European Commission in April 2010 against The Netherlands and Estonia for a possible lack of or bad transposition. To be followed.
Note: Since the judgement is only available in Dutch for the moment, this note is based on translated information, not the original decision.
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