168
Amnesty international and greenpeace netherlands
Chapter 13
Unsuccessful attempts in France and at the European Commission On 29 June 2007, 20 Ivorian victims of toxic waste dumping, with the support of lawyers from a number of French and Ivorian NGOs,737 filed a complaint against the two French Trafigura executives, Claude Dauphin and Jean-Pierre Valentini, before the Paris Prosecutor. They requested that a formal investigation be initiated into charges, including: the administration of harmful substances, manslaughter, active corruption of persons from states other than member states of the European Union (EU), and international organizations other than public institutions of the European Communities, as well as breaches of provisions relating to the transboundary movements of waste.738 After conducting a preliminary enquiry, the French prosecuting authorities made a decision on 16 April 2008 not to investigate further. This decision was made on the basis of:
»»the lack of lasting attachment to the French territory of individuals who may be charged, including Dauphin and Valentini, respectively Chairman of the Board and Director of the Trafigura Group; the fact that subsidiaries and commercial entities belonging to the Trafigura Group were established outside the French territory; the existence of simultaneous criminal proceedings: in addition to the criminal procedure in Côte d’Ivoire, the prosecutor referred to the prosecution in the Netherlands.739
»» »»
In April 2010, two French NGOs, Robin des Bois and Sherpa, lodged complaints against Estonia and the Netherlands before the European Commission, and requested that the Commission refer the cases to the European Court of Justice. The European Commission rejected both complaints.740 In the case of the Netherlands, the Commission referred to the Dutch prosecution as the reason for not taking forward any action against the Netherlands. However, the court action in the Netherlands did not sanction any state actors for their role in allowing the illegal export of toxic waste. Nor has the Netherlands faced any investigation or sanction at the international level for failing to properly discharge its legal obligations under international law. With respect to Estonia, the Commission argued that, after the Probo Koala had left Amsterdam, the Dutch authorities contacted the Estonian authorities and asked them to check whether all the waste was still on board the ship, which the Estonian authorities did. It further argued that Trafigura had misled the authorities by describing the waste as “slops” when it was in fact dangerous waste. Finally, it noted that under EU law there is no obligation on port authorities to check all exports of waste. The legal reasoning in the case of Estonia is weak. Estonia did not have all of the information that was available to the Netherlands, but
Estonian Port State Control was aware that problematic waste material was on board a ship within its jurisdiction and, under the MARPOL Convention, Estonian Port State Control had the capacity to inspect the ship and the waste. In light of the fact that Dutch Port State Control had asked Estonian Port State Control to measure the waste to ensure it had not been dumped at sea, it is not clear why the Estonian authorities did not consider any further action.