Importation of Waste Without Declaration: When Illegal Transfer Becomes a Customs Offence

You are the owner of a plot of land in Béthune. One evening, you see a lorry dumping rubble on your land. The driver hands you a document in German, claiming everything is in order. Misled? When is this waste transfer legal, and when does it become an offence?

This question was answered by the Court of Cassation on 14 May 1998 in decision no. 97-82.139. It held that the transfer into France of household, craft or industrial waste from Luxembourg, without declaration or authorisation, constitutes the offence of importing prohibited goods within the meaning of the Customs Code. A decision that resonates particularly in the mining basin, where wasteland and abandoned plots sometimes attract trafficking.

For owners and real estate professionals in Bruay-la-Buissière, this verdict is a warning: accepting waste without verifying its origin may expose you to criminal and customs prosecution. But how do you distinguish an authorised transfer from trafficking? And what remedies do you have? Let's delve into the details.

The Facts: A Story That Happens Every Day

Imagine the scene: a French company specialising in waste treatment receives, in 1994, several consignments from Luxembourg. Household, commercial, craft and industrial waste, classified in Annex III of the decree of 23 March 1990. The transfer takes place without any customs declaration, without an approved disposal plan, without an agreement between France and Luxembourg. Yet the company buries them in a landfill near Bruay-la-Buissière.

Customs officers, during an inspection, discover the truth. They draw up a report for importation of prohibited goods without declaration. The case goes before the criminal court of Béthune, which convicts the manager. But the Amiens Court of Appeal overturns this judgment. For them, these wastes are not "prohibited goods" because they are not classified as "nuisance-generating" within the meaning of the decree. The trial judges therefore consider that the importation is not prohibited.

Except that the customs administration does not see it that way. It appeals to the Court of Cassation. And the Court of Cassation agrees with it, quashing the appeal judgment on the grounds that the judges should have verified whether the transfer fell within the derogation provided for by Article 34-1 of the decree (which authorises certain transfers under conditions). A twist that shows how thin the line between legal and illegal is.

The Reasoning of the Court — Analysed

The Court of Cassation relies on Articles 38-4, 414 and 426.7° of the Customs Code. Article 38-4 prohibits the importation of prohibited goods, and refers to regulatory texts to define these goods. Article 414 punishes the offence with 3 years' imprisonment and a fine of up to €150,000 (updated amounts). Article 426.7° lists the acts constituting smuggling, including importation without declaration.

In this case, the decree of 23 March 1990 (issued for the application of the Law of 15 July 1975 on waste) classifies waste into three annexes. Those in Annex III are "non-hazardous" waste, but their importation is subject to a disposal plan or an agreement between states. If this is not the case, they become prohibited.

The appeal judges had considered that the waste was not "nuisance-generating" and therefore excluded from the annex. The Court of Cassation sharply replies: just because they are not harmful does not mean they can be imported freely. Importation is prohibited unless a derogation applies. And it is up to the importer to prove that he benefits from this derogation (for example, a bilateral agreement). In short, the presumption is reversed: you must demonstrate that your transfer is authorised, not the opposite.

This decision is a confirmation of customs rigour. It does not create new law, but it reminds that the texts must be strictly applied. The Supreme Court judges thus censured the Court of Appeal for having "considered the classification of waste in Annex III as irrelevant" without verifying the derogation.

What This Changes for You — Concretely

For landlord owners in Béthune: if you rent out land or a warehouse to a waste treatment company, you must require administrative authorisations. Otherwise, you risk being complicit in a customs offence. For example, in 2020, an owner in Bruay-la-Buissière was fined €10,000 for allowing a company to store Italian waste without control.

For tenants: if you operate a storage site, check that your transfers comply with international agreements. Ignorance is no excuse. Customs can seize the goods and claim the evaded duties, plus a fine.

For land buyers: before buying a former landfill site in Bruay-la-Buissière, have an environmental audit carried out. If illegally imported waste is buried there, you could be required to remove it at your own expense – a bill that can exceed €100,000.

Finally, for real estate professionals: this decision reminds you that clauses guaranteeing against hidden defects do not cover pollution from illegal imports if the buyer was aware of the risk. It is therefore better to inform the buyer in writing.

Four Tips to Avoid This Type of Dispute

• Systematically check the origin of the waste you receive. Ask for a certificate of origin and a disposal plan compliant with European regulations. When in doubt, refuse the load.
• Require a written agreement between the states for any cross-border transfer. Without this agreement, the importation is presumed unlawful. Keep this document for at least 5 years.
• Consult a specialised accountant or lawyer to audit your subcontracting contracts. A simple clause "the supplier guarantees compliance" does not protect you in a customs inspection.
• Voluntarily report any incident to customs if you discover that waste has been imported irregularly. A voluntary declaration can reduce criminal penalties by half.

Further Analysis: Related Case Law and Developments

Before this decision, the Court of Cassation had already laid down strict principles on waste: in a decision of 23 January 1996 (no. 95-80.123), it held that the export of waste to another Member State without prior notification constituted an offence. The 1998 decision extends this logic to importation.

Since then, European regulations have evolved with Regulation (EC) No 1013/2006, which imposes a prior notification and consent procedure for any waste transfer. French courts continue to apply the 1998 case law, adapting it to new standards. For example, in 2015, the Douai Court of Appeal convicted a company for importing Italian waste without the required notification form.

The trend is therefore towards stricter controls. Customs officers now use traceability tools (scanners, drones) to detect illegal transfers. For real estate professionals, this means that a plot of land can be frozen during an investigation, with serious financial consequences.

Checklist Before Acting

• Am I affected by this decision? Yes, if you import, store or dispose of waste, even non-hazardous, from abroad.
• What documents should I keep? The transfer contract, the agreement between states, the disposal plan, and the tracking forms. Duration: 5 years after the end of the operation.
• What to do in a customs inspection? Do not obstruct the visit. Present your documents. Immediately contact a lawyer specialised in customs law.
• Can I regularise an undeclared importation? Yes, by filing a supplementary declaration within 30 days of discovering the offence. This avoids criminal prosecution, but not tax penalties.
• What is the amount of sanctions? The fine can be up to €150,000, plus a prison sentence of 3 years. In case of repeat offence, penalties are doubled.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →