In November 2020, the Itzehoe public prosecutor’s office ceased proceedings against the former managers of a shipping company who stood accused of so-called “beaching”. As the term implies, beaching involves selling mainly older container vessels to scrap dealers based mostly in the Far East who maneuver them onto beaches where they are gutted, dissected and scrapped.
As things currently stand, we can observe a noticeable increase in the number of prosecutions by German investigating authorities for unauthorized handling of waste in accordance with § 326 (2) StGB and illegal shipment of hazardous waste in accordance with § 18a AbfVebrG.
However, the prosecuting authorities often overlook the fact that “beaching” is by no means a blanket criminal offence for those in charge at German shipping companies. After all, the extent to which the subsequent scrapping and thus the existence of the subjective offence can be recognized as such is questionable. Moreover, criminal liability is also not applicable if the corresponding act of selling the vessel took place prior to the entry into force of § 18a AbVerbrG on 10 November 2016, which criminalises violations of EU regulations on beaching. In such cases, § 326 (2) StGB (old version) applies. However, this only established the shipment of waste into, out of, or through the area of application of this law (i.e. the StGB) as a criminal offence.
Therefore, the essential prerequisite for criminal liability under § 326 (2) StGB (old version) is that the status of waste is either already established within the territory of the Federal Republic of Germany or that the waste is – at least briefly – re-imported into the territory of the FRG after the status of waste has been established abroad.
In case the shipping vessel in question was already outside German waters when the owners decided to sell (the earliest point at which “waste status” could have been established) and also had no contact with the area of application of the StGB at a later date, then criminal liability under § 326 (2) StGB (old version) is ruled out.
