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12 MAI 2011. - An Act to amend the Act of 9 July 1984 concerning the import, export and transit of waste (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. The purpose of this Act is to:
1° to establish penal sanctions for the offences of the provisions of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 concerning the transfer of waste, provided that these provisions fall within the federal jurisdiction in the matter of the transit of waste, as referred to in Article 6, § 1^erII, second paragraph, third, of the special law of 8 August 1980 of institutional reforms;
2° to establish criminal sanctions for the offences of the provisions of Regulation (EC) No. 1774/2002 of the European Parliament and of the Council of 3 October 2002 establishing sanitary rules applicable to animal by-products not intended for human consumption, provided that these provisions fall within federal jurisdiction in the matter of transit of wastes, as referred to in Article 6, § 1^erII, second paragraph, third, of the special law of 8 August 1980 of institutional reforms;
3° to establish penal sanctions for the offences of the provisions of Regulation (EC) No. 1005/2009 of the European Parliament and of the Council of 16 September 2009 relating to substances that deplete the ozone layer, provided that these provisions fall within the federal jurisdiction in the matter of transit of wastes, as referred to in Article 6, § 1^erII, second paragraph, third, of the special law of 8 August 1980 of institutional reforms;
4° to transpose into Belgian law articles 17, 19, 34, 35 and 36 of the Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on wastes and repealing certain directives, provided that these articles fall within the federal jurisdiction for the transit of wastes, as referred to in Article 6, § 1^erII, second paragraph, third, of the special law of 8 August 1980 of institutional reforms;
5° to transpose into Belgian law articles 3, c), 4 and 5 of the Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment by criminal law, provided that these articles fall within the federal jurisdiction in the matter of transit of wastes, as referred to in Article 6, § 1^erII, second paragraph, third, of the special law of 8 August 1980 of institutional reforms;
6° to introduce a system of administrative fines, similar to that of the Act of 21 December 1998 on the standards of products intended for the promotion of sustainable production and consumption patterns and the protection of the environment and health.
Art. 3. Article 1^er of the Act of 9 July 1984 concerning the import, export and transit of waste, is replaced as follows:
“Article 1^er. The purpose of this Act is to protect human health and to safeguard the environment from adverse or harmful effects caused by the cross-border transfer of wastes, and to enforce and transpose in this regard the provisions of the regulations and directives of the European Union, as mentioned below, as long as these provisions fall within the federal jurisdiction for the transit of wastes, as referred to in Article 6, § 1^erII, second paragraph, third, of the special law of 8 August 1980 of institutional reforms:
1° Regulation (EC) No 1013/2006 of the European Parliament and Council of 14 June 2006 concerning waste transfers;
2° Regulation (EC) No. 1774/2002 of the European Parliament and Council of 3 October 2002 establishing sanitary rules applicable to animal by-products not intended for human consumption;
3° Regulation (EC) No 1005/2009 of the European Parliament and of the Council of 16 September 2009 on substances that deplete the ozone layer;
4° Directive 2008/98/EC of the European Parliament and the Council of 19 November 2008 on waste and repealing certain directives;
5° Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment by criminal law. »
Art. 4. Section 2 of the Act is replaced by the following:
“Art. 2. For the purposes of this Act:
1° Regulation (EC) No. 1013/2006: Regulation (EC) No. 1013/2006 of the European Parliament and the Council of 14 June 2006 concerning waste transfers;
2° Directive 2008/98/EC: Directive 2008/98/EC of the European Parliament and the Council of 19 November 2008 on wastes and repealing certain guidelines;
3° Directive 2008/99/EC: Directive 2008/99/EC of the European Parliament and the Council of 19 November 2008 on the protection of the environment by criminal law;
4° waste: waste as referred to in Article 3, 1., of Directive 2008/98/EC;
5° Hazardous waste: hazardous waste as referred to in Article 3, 2., of Directive 2008/98/EC;
6° transit of waste: transit of waste as referred to in Article 2, 32. of Regulation (EC) No 1013/2006;
7° notifying: notifying as referred to in section 2, 15. of Regulation (EC) No. 1013/2006;
8° Competent authority: the Directorate General Environment of the Federal Public Service Public Health, Food Chain Safety and Environment;
9th illegal: illegal within the meaning of Article 2, (a), of Directive 2008/99/EC. »
Art. 5. Section 3 of the Act is replaced by the following:
“Art. 3. § 1^er. The transit of hazardous wastes is carried out under conditions of protection of the environment and human health, including:
(a) without creating a risk for water, air, soil, fauna or flora;
(b) without causing noise or olfactory nuisances;
(c) without prejudice to landscapes and sites of particular interest.
§ 2. In transit, hazardous wastes are packed and labelled in accordance with existing international and community standards.
§ 3. The establishments or companies that provide for the transit of hazardous wastes, maintain a chronological record indicating the quantity, nature, origin and, where appropriate, the destination, frequency of collection, means of transport and method of treatment envisaged for wastes, and make such information available to the competent authority upon request.
Institutions or companies providing for the transit of hazardous wastes in a professional capacity, maintain the register referred to in the first paragraph for at least three years. »
Art. 6. In article 7 of the same law, in the Dutch text, the words "een in Ministerraad overlegd besluit" are replaced by the words "een besluit vastgesteld na overleg in de Ministerraad".
Art. 7. Section 10 of the Act is replaced by the following:
“Art. 10. § 1^er. Is punishable by imprisonment from eight days to three years and a fine of 52 euros to 4.000.000 euros, or one of these penalties only:
(1) the person who contravenes the requirements of this Law or the requirements laid down under Articles 7 and 9 of this Law;
2° he who contravenes articles 3, 4, 5, 9, § 6, 11, 12, 13, 15, 16, 17, § 3, 19, 22, 27, 31, 32, 34, 35 § 4, 36, § 1^er, 37, 38, 39, 40, 41, 42, §§ 3, c) and 4, 45, 46, 47, 48 and 49 of Regulation (EC) No 1013/2006;
3° the person who violates the provisions of Article 1^er and the schedule to Regulation (EC) No. 1418/2007 of the Commission of 29 November 2007 concerning the export of certain wastes to be valued, listed in Schedule III or IIIA of Regulation (EC) No. 1013/2006 of the European Parliament and the Council to certain countries to which the OECD Decision on the Control of Transboundary Movements of Wastes does not apply;
4° that which contravenes Article 17 of Regulation (EC) No. 1005/2009 of the European Parliament and the Council of 16 September 2009 on substances that deplete the ozone layer;
5° that which contravenes Articles 4, 5, 7 and 8 of Regulation (EC) No 1774/2002 of the European Parliament and the Council establishing sanitary rules applicable to animal by-products not intended for human consumption;
6° that which, unlawfully and intentionally or at least by serious negligence, transfers wastes, when this falls within the scope of section 2, 35., of Regulation (EC) No 1013/2006, in significant quantities, whether in a single transfer or several transfers that appear to be linked;
7° that obstructs surveillance organized by or under this Act.
§ 2. Is punishable by imprisonment from eight days to one year and a fine of 40 euros to 120,000 euros, or one of these penalties only:
1° the person who contravenes articles 10, 16, (a) and (b), 17, §§ 1^er and 2, and 18 of Regulation (EC) No 1013/2006;
2° that which contravenes Articles 6 and 9 of Regulation (EC) No 1774/2002 of the European Parliament and the Council establishing sanitary rules applicable to animal by-products not intended for human consumption. »
Art. 8. In section 13 of the Act, the words "the employer" are replaced by the words "the notifier".
Art. 9. Section 15 of the Act is replaced as follows:
“Art. 15. Without prejudice to the duties of judicial police officers, officials designated by the King shall monitor the execution of this Act and its enforcement orders, and the provisions of the regulations referred to in Article 1^er. »
Art. 10. Section 16 of the Act is replaced by the following:
“Art. 16. Officials referred to in Article 15, who submit to appropriate periodic inspections the establishments or undertakings providing for the transit of waste, may in the course of their mission:
1° make warnings;
2° setting a time limit for the offender to allow him to regularize his situation;
3° in the event of an offence, free to block, affix the seals, return or make a seizure on the wastes as well as on the packagings, on the tools and means of transport that have been used to commit the offence even if the holder is not the owner, as well as, in the case of wastes which it is established that they are dangerous, let them destroy;
4° to stop means of transport, free of charge, in order to examine or examine the load, as well as the transport documents, and, in case it is not possible to carry out this examination on site, order the transport of the cargo to another place within a maximum of 15 kilometres, at the expense of the notifier or the person responsible for the transfer;
5° conduct free of charge reviews, inspections and investigations and collect any information deemed necessary to realize that the provisions of this Act are effectively observed, inter alia:
(a) interrogate any person on facts that they consider useful to know for the exercise of surveillance;
(b) to be produced, without displacement, all books and documents prescribed by this Act and enforcement orders, to take copies or extracts thereof and to seize them against receipt;
(c) To learn of all books and documents that are necessary for the fulfilment of their mission;
(d) access to the locations, between 6 and 20 hours, without prior warning, where this Act applies, including temporary storage or transit wastes;
(e) search or allow to search the loading of vehicles and containers, including the loading on the dock or at the place of deposit in the port and which is intended to be carried by water or from the being;
(f) to collect or leave samples free of charge to determine the composition of the waste; require, where appropriate, the packagings necessary for the transport and storage of samples;
6° to request assistance from the federal or local police. »
Art. 11. Section 17 of the Act is replaced as follows:
“Art. 17. The officials referred to in section 15 shall find the offences under this Act, the orders made pursuant to it and the regulations referred to in section 1^er, punishable under Article 10, by making records that are faith to the contrary; a copy of the record shall be transmitted to the offender within 30 days of the finding.
The absence of an offence finding does not result in any form of compensation. »
Art. 12. Section 18 of the Act is replaced by the following:
“Art. 18. The King shall determine the manner and conditions under which the samples referred to in Article 16, 5°, f) are collected and analyzed. »
Art. 13. In the same law, an article 19 is inserted as follows:
“Art. 19. § 1^er. Offences to this Act, to orders made pursuant to it and to the regulations referred to in section 1^er, punishable under section 10, are subject to either criminal prosecution or administrative fine, as referred to in this section.
§ 2. The officials referred to in section 15 shall send the minutes which determines the offence:
(a) in the event of an offence punishable under Article 10, § 1^er, to the King's Attorney and a copy to the grievor, holder of a licence or master in law, designated by the King;
(b) in the event of an offence punishable under section 10, § 2, to the employee referred to in paragraph (a).
§ 3. In the case referred to in paragraph 2, (a), the King's Prosecutor decides whether or not to prosecute criminally. Criminal proceedings exclude the application of an administrative fine, even if an acquittal closes them.
The King's Attorney shall have a period of three months from the date of receipt of the minutes to notify the King's designated official. In the event that the King's prosecutor waives criminal proceedings or fails to notify his or her decision within the time limit, which extinguishes the criminal action, the officer designated by the King, in accordance with the terms and conditions that he or she sets, decides, after placing the person in a position to present his or her defence, if there is a need to propose an administrative fine from the head of the offence.
§ 4. In the case referred to in paragraph 2, (b), the grievor may propose an administrative fine to the offender after placing the person in a position to present his defence.
If no administrative fines are made, the minutes are forwarded to the King's Prosecutor.
If an administrative fine has been made, a copy of the minutes will be forwarded to the King's Prosecutor for information.
§ 5. The amount of the administrative fine referred to in paragraphs 3, second paragraph, and 4, may not be less than half of the minimum of the fine provided by the legal provision violated, nor more than one twentieth of the maximum fine.
These amounts are increased by additional decimals for criminal fines.
The sampling and analysis costs are borne by the control proceeding. The costs of counter expertise are borne by the individual.
§ 6. In the event of an offence contest, the amounts of administrative fines are accumulated, without their total being able to exceed the maximum provided for in Article 10, § 1^erfirst paragraph.
§ 7. The payment of the administrative fine referred to in paragraphs 3, second paragraph, and 4, extinguishes public action.
§ 8. If the interested party fails to pay the fine referred to in paragraph 4 within the time limit, the file shall be forwarded to the Crown Prosecutor.
If the person remains in default of paying the fine, referred to in § 3, second paragraph, within the time limit, the grievor continues to pay the fine before the competent court. »
Art. 14. Sections 4, 5, 6 and 8 of the Act are repealed.
Art. 15. The title of the Act is replaced as follows:
"An Act respecting the transit of wastes. »
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 12 May 2011.
ALBERT
By the King:
Minister of Climate and Energy,
P. MAGNETTE
Seal of the state seal:
Minister of Justice,
S. DE CLERCK
____
Note
(1) 2010-2011 session:
House of Representatives.
Parliamentary documents. - Bill No. 1257/1. - Amendment, No. 1257/2. - Report, no. 1257/3. - Text adopted by the Commission on Public Health, the Environment and the Renewal of Society, No. 1257/4. - Amendment, nr. 1257/5. - Text adopted in plenary and transmitted to the Senate, No. 1257/6. - Project not mentioned, No. 5-921/1.