Reed Smith Client Alerts

This client alert provides a brief commentary on the transboundary movement of waste case of Conti 11 v. the Land of Lower Saxony, Germany (Case C-689/17).

The law on the international shipment of waste is of increasing importance to many global businesses. The Reed Smith Environmental, Health & Safety team regularly handles cases on this subject involving sectors such as oil and gas, mining, consumer electronics, ship recycling and offshore renewables, as well as many others. Case law in this complex area is sparse.

On 16 May 2019, the European Court of Justice (ECJ) gave judgment in a case concerning the status of waste resulting from a fire on board a ship. The case warrants closer attention than its seemingly narrow scope and clear outcome might suggest.

Article 3 of the EU Waste Shipments Regulation 2006 (EU WSR) requires prior written notification and consent before shipments of certain types of waste to another country. Obtaining such consent can be costly and take several months. However, waste that is generated on board a ship is excluded from the Regulation’s notification and consent requirements until it is offloaded for recovery or disposal (article 1(3)(b)). The ECJ had not previously had occasion to interpret article 1 of the EU WSR so the case was a significant opportunity for clarity in this area. Unfortunately, in many ways it was an opportunity missed.

A fire broke out on a container ship travelling from the United States to Belgium. The ship was towed into German waters. Significantly, the ‘waste’ was not offloaded from the ship. However, before they would allow the ship to sail onwards to Romania to discharge the waste, the German authorities required the shipowner to carry out a notification and consent procedure under the EU WSR in respect of the scrap metal and fire-extinguishing water mixed with sludge and cargo residues on the ship. The shipowner challenged the decision in order to try to recover damages for the costs and delay this caused.