The key points first
- The Hanseatic Higher Regional Court confirms: ‘Beaching’ is only punishable under German law if there is a territorial connection to the federal territory.
- Beaching is only punishable under Section 18a of the Waste Shipment Act (AbfVerbrG) if the waste to be disposed of has a physical connection to German territory. Mere decisions or contractual agreements concerning the waste shipment made from Germany are not sufficient.
- What is decisive is that the waste itself crosses German territory or that there is a shipment directed toward doing so.
- The decision is likely to affect many ongoing proceedings and lead to their dismissal.
- Future changes are to be expected through the implementation of the new EU Environmental Crime Directive by May 2026.
By decision dated 13 October 2025 (ref. 1 Ws 10/25), the 1st Criminal Senate of the Hanseatic Higher Regional Court (Hanseatisches Oberlandesgericht) confirmed the legal view of the Hamburg Regional Court, according to which so-called “beaching” constitutes a criminal offence under German law only where there is a territorial nexus, namely the shipment of waste “into, out of or through the territory of the Federal Republic of Germany”.
The decision clarifies the scope of application of section 18a of the Waste Shipment Act (AbfVerbrG) and brings to a clear close a dispute that has been ongoing for years regarding the criminal liability of German shipowners in cross-border waste disposal operations. We previously reported on this issue in our articles “Cessation of investigation proceedings regarding alleged illegal ship scrapping (so-called “beaching”) in Asia” and “Hamburg Regional Court: No main hearing in the ‘beaching’ case”.
Background: Sale of a container ship for scrapping
The proceedings concerned the sale of an older container ship to a so-called “cash buyer”. According to the prosecution, the accused had, by December 2016 at the latest, knowingly decided to sell the vessel for the purpose of scrapping, despite being aware that it would subsequently be dismantled in India by way of “beaching” (running the ship aground on a beach) under environmentally unlawful conditions.
The indictment was based on section 18a(1) no. 2(b) AbfVerbrG in conjunction with the Waste Shipment Regulation (Regulation (EC) No 1013/2006). The central allegation was the illegal shipment of hazardous waste from the European Union to a state to which the OECD Decision on the control of transboundary movements of waste does not apply.
The Hamburg Regional Court refused to open the main proceedings on legal grounds. While the alleged conduct was likely provable in factual terms, it held that there was no criminal liability under German law because the requisite territorial connection to Germany was lacking.
Confirmation by the Higher Regional Court: the waste itself must leave German territory
The Hanseatic Higher Regional Court has now fully confirmed this decision. In the Senate’s view, the decisive factor is the clear wording of section 1 no. 1 AbfVerbrG. Under that provision, the Waste Shipment Act applies exclusively to shipments of waste “into, out of or through the territory of the Federal Republic of Germany”.
The Senate makes it unequivocally clear that this territorial link must necessarily relate to the waste itself. It is not sufficient that individual acts, such as the conclusion of contracts or the issuing of instructions, take place from Germany. Rather, the waste must physically cross German territory, or there must be a shipment operation directed to that effect.
An interpretation based solely on conduct carried out from Germany, such as contractual arrangements or negotiations, would, in the Court’s view, exceed the limits of the statutory wording. In this context, the Senate expressly emphasises the constitutional requirements of the principle of legal certainty.
Reasoning of the Hanseatic Higher Regional Court
The Court bases its decision not only on the wording of the statute, but also on systematic and historical considerations. Section 1 AbfVerbrG has always served the function of clearly delimiting the territorial scope of the Act. Neither at the time of the introduction of section 18a AbfVerbrG in 2016 nor thereafter was any expansion of this scope intended.
According to the Senate, a comparison with Section 326 (2) of the German Criminal Code (StGB), which is formulated almost identically, also confirms this result. For decades, case law and legal literature have recognized that this provision only applies when waste actually crosses the German border.
Nor can any obligation be derived from EU law to prosecute breaches of the Waste Shipment Regulation under criminal law even in the absence of any territorial connection to the state concerned. Neither Regulation (EC) No 1013/2006 nor the Environmental Crime Directive 2008/99/EC requires such an extensive assertion of jurisdiction. It is only the new Environmental Crime Directive 2024/1203 that provides, for the future, for more far-reaching rules on jurisdiction, which Member States are required to transpose by May 2026.
Conclusion: No carte blanche for beaching, but clearly defined limits
Notably, the Senate expressly points out that, under EU law standards, the specific operation in question very likely constituted an illegal shipment of waste. According to the Court’s findings, however, the vessel was located in an Italian port at the relevant time. From there, it was transported to India for scrapping, which is prohibited under Article 36 of the Waste Shipment Regulation.
In the Court’s view, criminal responsibility for such an infringement is therefore not to be assessed in Germany, but in the state of departure of the shipment. Any corresponding sanctions would thus have to be provided for under Italian criminal law.
The decision confirms that German environmental criminal law is subject to clear territorial limits and that liability is not triggered solely by control or decision-making from within Germany.
The decision of the Hanseatic Higher Regional Court is likely to lead to a “wave” of discontinuations of proceedings in relation to the large number of “beaching” cases still pending.
Indeed, the Hamburg Public Prosecutor’s Office has in the meantime already discontinued a “beaching” case handled by us for lack of sufficient suspicion.
With the implementation of the new EU Environmental Crime Directive, questions of jurisdiction will, however, have to be reassessed in the future. Current developments should therefore be monitored closely.
Frequently Asked Questions on the decision of the OLG Hamburg in the beaching case.
A criminal offense under German law can only arise if the waste intended for disposal itself has a territorial connection to the Federal Republic of Germany. It is required that the waste is “brought into, out of, or through the federal territory.”Merely acting from Germany (e.g., decision-making) is not sufficient.
No, according to the decision of the Hanseatic Higher Regional Court, it is not sufficient that contracts, instructions or other managerial actions occur in Germany. What matters is solely whether the waste physically leaves or passes through the German federal territory.
Section 18a of the Waste Shipment Act (AbfVerbrG) criminalizes certain illegal waste shipments but explicitly links its scope to Section 1 No. 1 AbfVerbrG. The provision therefore applies only to shipments that have a concrete connection to German territory. This limitation has now been expressly confirmed by the Hamburg Higher Regional Court.
According to the Court, prosecution must be examined in the dispatching state of the waste shipment. If the vessel was located in a port of another EU Member State at the relevant time, criminal jurisdiction generally lies there.
The decision is likely to have significant effects on pending investigations. In cases without a physical connection of the waste to German territory, criminal liability under German law usually does not apply. Some proceedings have already been discontinued.
The new Environmental Crime Directive (2024/1203) provides for broader jurisdictional rules, for example concerning acts committed by nationals or acts committed partly within the country. However, these rules must be implemented only by May 2026 and do not apply retroactively.
The decision provides clarity on the limits of German criminal jurisdiction and highlights the importance of carefully assessing the scope of criminal provisions. At the same time, it shows that international disposal operations continue to entail significant legal risks and sanctions — though not necessarily under German criminal law.
