Medical Waste in France (MEDWSTE)

             Case Number:          272
             Case Mnemonic:        MEDWSTE
             Case Name:            Medical Waste in France
                                
A.  Identification

1.  The Issue
     
     In August 1992, German syringes turned up in a French quarry
in Fagnieres.  In response to the subsequent discovery of an
illegal medical waste importing business,   French Environmental
Minister Mme. Royal published proposed French legislation banning
the importation of all waste:  commercial, industrial and domestic.
(1) With the indictment of the parties involved in the illegal
waste dumping network, focus fell on the proposed French ban and
its violation of EC free trade laws.  In examining EC/EU law, it  
became apparent that trade and the environment, and the link
therein, pose major obstacles to European integration.
  
2.  Description
     
     In August 1992, German syringes appeared in a French quarry in
Fagnieres.  The   quarry was owned by a plastics recycling company
called Sodex, which had permission to   store plastics, only
temporarily, before recycling.  The medical waste was traced back
to a company called DASS, which was responsible for collecting and
sorting waste.  DASS in turn, contracted Concord Internationale to
remove the waste for recycling.  Concord Internationale likewise
paid Sodex for the use of their land.  The managers of Concord  
Internationale and Sodex were charged with fraud and violations of
French environmental law. (2)  The charges of fraud stemmed from
allegations that the import documents had been falsified "to
suggest that the imported waste was intended for recycling." (3) 
Also, French environmental law prohibits the "import[ation of]
dangerous waste (including hospital rubbish) without special
permission" and it can only be dumped in authorized cites. (4)

     Within days, the scandal broke wider, with reports of
thousands of tons of hospital waste being fraudulently imported
from Germany.   More syringes, blood pouches and other toxic
medical waste were discovered in French dumps.(5)  Between August
7 and August 14, the French border patrol turned away ten trucks
carrying German waste to France.  Legal proceedings and systematic
customs checks on waste consignments entering the country were
initiated. (6)  French Environmental Minister Mme. Royal responded
to the crisis with the publication of legislative proposals for a
total ban on all imported waste: domestic, commercial and
industrial.  However, only imports of final waste were banned;
consignments for recycling continued. (7) 

     Much of the waste was from Berlin and Leipzig hospitals where
on-site incinerators had not been raised to the standards of the
West.  Ulm and Heidelberg, who also exported their waste to France,
faced immediate crisis because neither could store more than a
weeks worth of waste.  Without the ability to export waste to
France, other cities feared environmental damage and fines from the
German government for violation of waste disposal laws.

     Germany's stringent waste and dumping laws, in part,
encouraged the lucrative business of waste trade. (8)  Some critics
contend that "ironically,...the Federal Republic lost some of their
most convenient waste disposal outlets when the wall was
demolished:"   East Germany accepted consignments at prices that
were a fraction of the West's.    Unification further contributed
to this crisis by bringing East Germany under the "scope of  
stringent West German regulations." (9)  This forced the West to
seek other 'dumps'.   Reports about the waste trade assert that it
was profitable, "a thriving business: shipping German trash to
French dumps, whose waste burial services are a bargain   compared
to [the] stiff costs of Germany." (10) However, several of the
primary   beneficiaries of the "lucrative" waste trade were big
names in the French disposal industry, lest it appear Germany was
the only one gaining in this deal.(11)  Much of the irony of this 
 case appears in a Technology Review report by Allen Hershkowitz in
1990, which praised the German system of handling medical waste
safely through the use of incinerators and an overall effective
waste disposal system. (12)  Other articles also praise Germany's
system of recycling and its "Green Label" initiative begun in the
late 1970's.  Many authors, prior to the 1992 waste trade case,
encouraged the United States to emulate the German environmental
law system which, in general, sought to hold the companies which
produce waste responsible for its proper disposal.  (13)     

     While the prosecution of the case, itself, was left to the
discretion of French and German investigators, Mme. Royal's waste
import ban raised questions and fears among several members of the
European Community about the future of free trade among EC  
members.  At the time of her decree, EC legislation regarding the
rules of waste self-sufficiency and transfrontier transport of
waste was pending.  Thus, it is important to examine the
implications of this case on a broader, regional scale.  In the
initial treaty establishing the EEC in 1957, no provisions were
made for the   care of the environment.  Issues which linked trade
to the environment were deferred to the 1957 Treaty's Article 36,
which prohibited restrictions on trade that constituted a "means  
of arbitrary discrimination." (14)

     However, Germany's efforts in the 1980's to recycle and
heighten environmental awareness and protection were answered in
Article 130 of the 1987 Single European Act (SEA).  Article 130
advocated the "precautionary principle" which argues for "measures
[to be] taken to prevent damage to the environment before damage
occurs," in other words, "before a causal link has been established
by absolutely clear, scientific evidence." (15) Article 130 was
supported by Article 100A of the SEA, which allowed Member States
to make more stringent laws to protect their environment.  These
efforts were later supported by Title VII, article 130, of the 1991
EC directive "pertaining to dangerous substances" which encouraged
"preventative action to avert environmental damage;" that
environmental damage should be rectified at the source; the
polluter pays principle and prevented the EC from forbidding Member
States from introducing protective measures. (16)  With the
provisions, many feared the environment would become the mask for
trade protectionism.  This "slippery slope," implies that lesser
health and environmental threats may still result in a reduction of
free-trade among EU members.

     One of the first cases to address this issue was presented to
the European Court of   Justice in 1987.  The region of Wallonia,
in Belgium, issued a ban on the importation of non-hazardous waste
from outside its borders.  Wallonia had become increasingly
concerned with the influx of waste and refused to be the "dustbin
of Europe." (17)  European Commission members argued the ban
violated basic EC principles of free trade.  Two separate issues
were pursued by the Advocate General and decided by the European
Court of Justice (ECJ).  The first, on which both agreed, was the
issue of waste as a good to be traded.  Neither had difficulty
accepting this tenet.  The second was  Belgium's alleged violation
of the EEC Treaty by restricting free trade.  Wallonia justified
its position in initiating the ban, under Article 30 of the Treaty
which allows "derogations"   from free trade if a threat to human
health exists. (18)  The ECJ sided with Wallonia,   arguing that
"the accumulation of waste, even before it becomes a health hazard,
constitutes a threat to the environment because of the limited
capacity of each region of location for   receiving it." (19)  The
1994 Waste Regulation Case further "reaffirmed that the EC would  
not encroach on the political decisions of individual states
regarding their waste policies."(20)  Moreover, the 1994 case
reiterated the proximity principle (decided in 1992, EC   Member
States should attempt to limit the amount of waste they export, and
when   exporting, keep it as close to the source as possible), and
reinforced that there is not a common market for waste, rather a
system of individual Member States, each of which can   bar imports
of waste from other members. (21)

     Other EC legislation resembles the court decisions addressed
above.  The 1989 Basel Convention, the agreement of which was
implemented through the 1993 Transfrontier Shipment Regulation,
allowed "member states to restrict substantially the transfer of  
waste," but stated that the EC "would not tolerate an absolute
ban."(22)  A directive proposed in 1989, and amended in 1991,
included a liability law which aimed to assess   the liability
among parties responsible for waste disposal and establish a
compensation fund which would help pay for clean-up when a liable
party could not be found. (23)  Also in 1991, the ECJ upheld
Directive 91/156/EEC which required Member States to "take  
measures to limit the production of waste and to encourage
recycling and reuse of raw material so that they should be self-
sufficient in the disposal of their waste and limit its  
movement."(24)  The directive and supporting ECJ decision directly
affected trade, and for   many, not in a positive way.  Taken
together, these legislative acts severely impacted the   notion of
free trade between EC members by allowing Member States to restrict
the importation of waste. (See BASEL case)

     Since much of the legislation appeared before the French-
German medical waste incident, it is hard to assimilate the
negative and surprised EC response to France's proposed ban on
waste imports.  Obviously,  the European Commission and European  
Parliament had debated the legality of such bans, and in several
incidents, authorized it.  Even at the time of the case, the EC was
in the midst of debate on another proposal of self-sufficiency and
proximity, which it eventually passed.  The real unimportance of
this case, in regard to EC law, becomes apparent when reading the
latest legal discourse on obstacles to integration:  this case, to
which initial reports in non-legal journals applied great legal
consequences, is not mentioned at all in the legal journals.      

     Environmentally, the impact of this case is relevant in the
shock value alone. For a country with such highly regarded
recycling laws as Germany to be discovered illegally   exporting
hazardous waste for dumping (vs. recycling) was unimaginable. 
Furthermore, the health implications of improperly treated
hazardous waste turning up in quarries, raised fears of the spread
of hepatitis and other dangerous, highly contagious diseases.     
Many observers of EU integration cite the environment and its
affect on trade as one very important and recurring obstacle to
integration.  The French-German medical waste case epitomizes this
observation.  The significance of this case for the trade and  
environment debate in the EU is irrefutable.  The European Union
had to deal with hazards to the environment and import/export bans,
which directly coincided with the on-going debate about, and fears
of failing in, regional free trade.

     The problem is the vagueness left in the rubble of this trade
case.  The actual amount of trade between the French and Germans is
unclear, though only a very little part is hazardous waste; of that
an even smaller amount is medical waste.  As Germany gets more
comfortable with its reunion, East Germany has the opportunity to
meet incineration standards of the West.  With that, hazardous
waste trade would be reduced even further.  Still, the threat the
French ban posed to the EU and the future of integration created an 
 environment of skepticism and speculation as to the future of free
trade in Europe.

      The health implications of this case are even less clear.  A
quarry is an "open   excavation or pit. . ."(25)  A scenario for
the contraction of hepatitis from the syringes requires that a
person come in contact with something from the quarry which had
been   exposed to the virus, through the syringes.  This seems
highly unlikely and hard to trace.  Such consideration further
suggests  that the French ban was more a sign of trade 
protectionism than credible health or environment concerns.     
Whether or not this case reflects concern for the environment, it
applies directly to   trade and provides an appropriate case study. 
French trade protectionism, especially in regard to waste, and the
Wallonia case, set a precedent for restricting certain realms of
trade which, logically, impedes free trade.  The impact this will
ultimately have on European integration is a matter of speculation. 
One can project the spread of protectionism as a defensive
mechanism, either in fear of be coming the "dustbin of   Europe" or
to guard against the negative effects of trade restriction by other
states.  Either way, the French-German medical waste trade case
raised doubts about complete economic integration in Europe.
    
3.  Related Cases

GERMPACK Case
ECPACK Case
ITALYBAG Case
BASEL Case

       Key Words

     1. HEALTH
     2. GERMANY
     3. IMBAN
  
4.  Draft Author:  Maren Brooks
  
B.  LEGAL CLUSTER

5.  Discourse and Stage:  DISagree and INPROGress
     
6.  Forum and Scope:  EU and Regional
  
7.  Number of Parties Affected:  16 (Members of the EU?)
  
8.  Legal Standing:  Treaty
  
C.  GEOGRAPHIC CLUSTERS

9.  Geographic Locations

a.  Continental Domain:  Europe
b.  Geographic Site:  Western Europe
c.  Geographic Impact:  France 
  
10.  Sub-National Factors:  Yes  

     France's response to the waste was an import ban which
violated EC laws.   

11.  Type of Habitat:  Temperate
  
D.  TRADE CLUSTERS

12.  Type of Measure:  Import Ban [IMBAN]
  
13.  Direct vs. Indirect Impacts:  DIRect
  
14. Relation of Measure to Impact:  

     a.  Directly Related to Product:  yes Medical
     b.  Indirectly Related to Product: no  
     c.  Not Related to Product:  no
     d.  Related to Process:  yes  Pollution Land
  
15.  Trade Product Identification:  Medical Waste
  
16.  Economic Data

17.  Impact of Measure on Trade Competitiveness:  HIGH

     The trade business of dumping waste in France because they had
more land itself   has high environmental implications.  With the
EC directives and French laws, Germany is responsible for more
waste than it has room for and given the illegality of this case,
one can not easily anticipate how Germany will cope.  Moreover, the
French response, to ban waste trade, had severe implications for
the EC's attempts to create free and open markets between its
member nations.
  
18.  Industry Sector:  MEDicine
  
19.  Exporter and Importer:  Germany and France  

E.  ENVIRONMENT CLUSTER

20.  Environmental Problem Type:  Land pollution [POLL]   

21.  Species Information

     Name of Species:  Humans
     
22.  Impact and Effect:  HIGH and REGULatory
  
23.  Urgency and Lifetime:  Low and 5-10 years
  
24.  Substitutes:  RECYCling 
  
VI. OTHER FACTORS

25.  Culture:  NO
  
26.  Human Rights:  NO
  
27.  Trans-Boundary Issues:  No

28.  Relevant Literature

(See below.)


                           References


  1. Rogers, Arthur, "Europe:  Illegal Waste Disposal," Lancet,
August 29, 1992, 542.   2. Patel, Tara, "German Syringes Turn Up in
French Quarry,"  New Scientist, August 22,   1992, 7.
  3. Rogers, Arthur, "France:  Illegal Disposal of Hospital Waste,"
Lancet, August 22, 1992,   477.
  4.  Patel, Tara.
  5.  Hagerty, Bob, "Jarred by Toxic Discovery, France Acts to
Restrict Import of Germany   Garbage," Wall Street Journal, August
21, 1992, sec. A, 3.   6.  Rogers, Arthur.  August 22, 1992, 541.
  7.  Rogers, Arthur.  August 29, 1992, 7.
  8.  Patel, Tara.
  9.  Roger, Arthur.  August 29, 1992, 7.
  10.  Hagerty, Bob.
  11.  Roger, Arthur.  August 29,1 992, 7.
  12.  Hershkowitz, Allen, "Without a Trace:  handling medical
waste safely," Technology   Review, August/September 1990, 35.
  13.  Sudol, Frank, "German Waste Reduction and Green Consumerism: 
Is it the Answer,"   Public Management, November 1990, 12.
  14.  Simcox, Daniel, "The Future of Europe Lies in Waste,"
Vanderbilt Journal of   Transnational Law,  May 1995, 583.
  15.  Freestone, David, "EC Environmental Law After Maastricht,"
Northern Ireland Legal   Quarterly, Summer 1994, 156.
  16.  Dwyer, Stephen, "EC Directive 91/173 Pertaining to Dangerous
Substances," Boston   College International and Comparative Law,
Winter 1994, 127.   17.  Simcox, Daniel. 579.
  18.  ibid. 
  19.  ibid.  580.
  20.  ibid.  584.
  21.  ibid.  585.
  22.  ibid.  582.
  23.  ibid.  594.
  24.  Freestone, David.  162.
  25.  The American Heritage Dictionary.  "Quarry"- definition
number 2.