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  • Public law
  • 06-10-2017

The Administrative Jurisdiction Division of the Dutch Council of State recently decided that the Almelo-based metal disposal and recycling company Riwald B.V. is barred under the Weapons and Ammunition Act (Wet wapens en munitie, "Wwm") from importing British battle tanks from Germany into the Netherlands for the purpose of dismantling and recycling them. Riwald, which for years has processed ammunition shells from various military artillery ranges and war zones for the UK Ministry of Defence, applied to the Dutch State Secretary of Security and Justice for an exemption under the Wwm enabling it to dismantle and recycle military tanks as well. The Administrative Jurisdiction Division held that the state secretary's authority under the Wwm to grant the requested exemption does not extend to weapons in "category II" (which includes tanks) and their dismantling and recycling in the Netherlands is therefore not permitted.

According to the Administrative Jurisdiction Division, in order to dismantle and recycle battle tanks in the Netherlands Riwald requires an exemption from the prohibition laid down in section 26(1) of the Wwm against having on hand weapons in categories II or III. (It can be inferred from section 2 of the Wwm that battle tanks fall into category II.) Riwald sought an exemption from that prohibition based on sections 4 and 13 of the Wwm. However, section 4 is limited to weapons and ammunition meeting one of the criteria set out in that section. Tanks that are still entirely intact do not meet any of those criteria. Section 13 is limited to weapons in category I and therefore also does not apply in this case. As neither provision affords a statutory ground for granting the requested exemption, the Overijssel District Court held, correctly according to the Administrative Jurisdiction Division, that Riwald was not entitled to an exemption and therefore could not carry out all of the desired dismantling/recycling activities in the Netherlands. In line with the district court, the Division limited the scope of its judgment to [the propriety of] the state secretary's refusal to grant an exemption. It rejected Riwald's argument that the Division should have gone on to consider whether, in the absence of a legal ground for an exemption under sections 4 and 13. Riwald was nevertheless permitted to engage in the desired activities on some other basis.

Police commissioner recommends granting exemption
Initially the state secretary took a different approach, requesting the advice of the regional police commissioner. The commissioner advised that the exemption be granted, viewing it as an extension of the company's licence (erkenning) under section 9 of the Wwm to store and process ammunition shells. The commissioner also considered it relevant that Riwald is a solid and reliable company, whose previous projects include the demolition, dismantling, processing and transporting of armaments from the Falklands War (including category II items under the Wwm) for the UK Ministry of Defence. Although the state secretary took this advice into consideration when making his decision, he nevertheless refused to grant the exemption and the Administrative Jurisdiction Division upheld that refusal. At the sitting before the Division the state secretary admitted that he should not have requested the commissioner's advice at all, as he could have known based on his initial evaluation of the request that an exemption for tanks is not possible under section 4 or 13 of the Wwm.

Implications of the judgment
The Dutch State (the Ministry of Defence) will, at least for the time being, retain the sole authority to dismantle and recycle large weapons such as tanks in the Netherlands. In practice, however, it will almost never exercise this authority because discarded tanks are usually sold. Although private companies are allowed to demolish or disable small weapons, this case makes clear that, for supervision purposes, the State wants to handle weapon dismantling itself as much as possible. The Administrative Jurisdiction Division's judgment, affirming that of the district court, also makes clear that the courts are willing to support the State's position. This is apparent from their narrow interpretation of the scope of Riwald's application to the state secretary and their strict reliance on the absence of an express legal ground in the Wwm for granting the requested exemption. In countries such as Germany, the dismantling and recycling of tanks by private companies is permitted.

For Riwald this case involved a large order which could have been very profitable. The judgment would require it to first transport thousands of tanks to Germany for disabling (for example by removing the barrels) and only then move them to the Netherlands for further dismantling and recycling. This is a frustrating result for Riwald, which has all the facilities necessary for the full dismantling operation at its Dutch premises. Nevertheless, a door has been left open and the feasibility of the German scenario can at least be investigated.

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