In appellate proceedings the Amsterdam Court of Appeal has rendered judgement today in the criminal cases against Trafigura Beheer B.V. (Trafigura), Amsterdam Port Services B.V. (APS) and the municipality of Amsterdam. The Court of Appeal sentenced Trafigura to a fine of €1,000,000.
The issue in these cases is a tanker, the Probo Koala, on charter to Trafigura. On board the Probo Koala washes of contaminated naphtha were carried out for Trafigura. Trafigura offered the waste materials generated in this process to APS for processing. The composition of this waste turned out to contain substances the processing of which would lead to substantially higher costs than had been agreed on. When it turned out Trafigura was unwilling to pay these higher costs, APS wanted to return this waste and to that end pump it back into the Probo Koala. This was forbidden by the police, the Public Prosecution Service and the municipal environmental health department as the Probo Koala was not a recognized waste processor. After APS had had consultations with the municipal environmental health department, this department agreed to the waste being pumped back into the Probo Koala after all, and the tanker subsequently headed to Ivory Coast with the waste.
The Court of Appeal considers proved that Trafigura failed to disclose the hazardous character of the waste to APS, and moreover that Trafigura illegally exported the waste to Ivory Coast after it had been given back by APS. For this the Court of Appeal, like the Court of first instance, imposes a fine of €1,000,000. The Court of Appeal believes the requirements on waste producing companies are justifiably very strict when it comes to the handing over and disposal of this waste in an environmentally sound manner. This is an important aspect of worldwide socially responsible entrepreneurship. The fact that as a globally operating group of companies Trafigura could not have been unaware of this weighs heavily in the Court of Appeal’s judgement. In its judgement the Court of Appeal has also taken into consideration the wave of negative publicity and the damage to Trafigura’s image it caused; this, as well as the positive contribution to global welfare in the form of the Trafigura Foundation. In its judgement the Court of Appeal has also taken a ruling of the U.S. District Court, Southern District of Texas into account.
The Court of Appeal also considers proved that APS handed over waste to the Probo Koala, being a non-recognized processor, and in doing so has violated the Environmental Management Act [Wet milieubeheer]. Like the Court of first instance, the Court of Appeal considers APS not liable to punishment, however, as APS could go by the notification of municipal environmental health department that this handing over was permitted. APS is therefore discharged from further prosecution.
Municipality of Amsterdam
The Court of Appeal, like the Court of first instance, establishes that the municipality of Amsterdam has immunity from prosecution as the granting of permission to pump back waste or failure to take enforcement action is an action performed in the scope of an exclusive administrative responsibility assigned to the municipality. Prosecution of the municipality of Amsterdam is therefore barred.