Explanatory Memorandum to COM(2022)342 - Authorisation of the opening of negotiations for an international agreement on plastic pollution - Main contents

Please note

This page contains a limited version of this dossier in the EU Monitor.

dossier	COM(2022)342 - Authorisation of the opening of negotiations for an international agreement on plastic pollution.
source	COM(2022)342
date	12-07-2022

1. CONTEXT OF THE PROPOSAL

• Reasons for and objectives of the proposal

The Resolution 5/14 “End Plastic Pollution: towards an international legally binding instrument” ¹ , adopted by the United Nations Environment Assembly (UNEA) in March 2022, sets out a mandate for negotiations by an Intergovernmental Negotiating Committee (INC) of an international legally binding instrument on plastic pollution, including in the marine environment. The INC is expected to conclude its work by the end of 2024, with a first meeting to take place in 2022. UNEA may extend this mandate in time, if needed.

Resolution 5/14 was adopted following a series of UNEA resolutions since 2014, with UNEA3 representing a key milestone with UN Member States supporting a number of actions to eliminate the discharge of plastic litter and microplastics into the ocean and the establishment of an ad-hoc open-ended expert group on marine litter and micro-plastics (AHEG) to explore barriers to combating marine litter and microplastics. The AHEG concluded its work in 2020. It identified a number of response options to the global crisis of plastic pollution, including a global agreement on plastics, supported by majority of participants of the expert group, representing almost all regions. In October 2021 the UN report “From Pollution to Solution: a Global Assessment of Marine Litter and Plastic Pollution” ² was published to inform UNEA 5.2 on the extent and aspects of global marine litter and plastic pollution.

Following a like-minded meeting hosted by the European Commission in 2020, Peru and Rwanda prepared a resolution with the objective of launching negotiations for a new international agreement on plastic pollution at UNEA5. Several international events, including a Ministerial Conference on Marine Litter and Plastic Pollution hosted by Germany, Ecuador, Vietnam and Ghana in 2021, contributed to building momentum for the resolution and ultimately resulted in final adoption of the resolution by consensus.

The objective of this Recommendation is to ensure a consistent and efficient negotiation position of the European Union (EU) in the sessions of the INC, with a view to negotiating and concluding an international legally binding instrument on plastic pollution.

• Consistency with existing policy provisions in the policy area

The launch of negotiations for an international agreement on plastics is a key achievement of the European Union’s Green Deal, the Circular Economy Action Plan. ³ and linked to a significant number of EU policies and legislation including on the protection of the marine and coastal environment, notably the Marine Strategy Framework Directive (MSFD) ⁴ . Ensuring an international agreement on plastics that tackles plastic pollution at its source instead of engaging at costly and not fully effective end of pipe solutions has thus been one of the Union’s key environmental priorities for global action over the past few years.

This follows from dedicated and progressive Union policy initiatives and legislation on plastics in recent times ⁵ . In 2018, a Plastics Strategy ⁶ , forming part of the Circular Economy Action Plan ⁷ , set forth a blueprint to protect our environment and reduce marine litter, greenhouse gas emissions and our dependence on imported fossil fuels. ⁸ Concrete action on plastics includes the impact of certain plastic products on the environment ⁹ , single use plastics ¹⁰ , the role of plastics in the circular economy ¹¹ , ecodesign requirements and labelling ¹² , plastics and packaging waste ¹³ and the upcoming initiatives on intentionally added and un-intentionally released microplastics ¹⁴ . The Strategy also analysed the potential for harnessing global action, identifying the need (inter alia) for the development of international standards to boost industry confidence in the quality of recyclable or recycled plastics. In relation to waste shipments, it noted the importance of ensuring that any plastics sent abroad for recycling are handled and processed under conditions similar to those applicable in the EU, supporting action on waste management under the Basel Convention, and it proposed development of an EU certification scheme for recycling plants. It called for a global industry effort to promote widespread use of recyclable and recycled plastics.

In the frame of the Circular Economy Action Plan, the Commission will additionally propose mandatory requirements for recycled content and waste reduction measures for key products such as packaging, construction materials and vehicles.

Under the abovementioned MSFD, in September 2020 ¹⁵ the EU and its Member States agreed that there should be no more than 20 litter items per 100 meters of coastline, placing the EU in a frontrunner position for fulfilling SDG 14.1, which requires to “By 2025, prevent and significantly reduce marine pollution (…) including marine debris (…)”. The support activities underpinning the implementation of the EU Marine Strategy Framework Directive (MSFD), executed in close collaboration with the Regional Sea Conventions, have demonstrated that harmonisation of monitoring, data acquisition and handling in the different environmental matrices is crucial for enabling prioritisation of efforts and for the verification of effectiveness of measures against plastic litter. Under the MSFD Common Implementation Strategy, the Technical Group on Marine Litter ¹⁶ is, in close collaboration with Regional Sea Conventions, providing technical harmonisation and collaborates with EMODnet, providing a data platform for marine litter data ¹⁷ .

The new international agreement will address plastic pollution, including in the marine environment. Pollution and the tackling of its sources is also a key priority of the European Green Deal, most recently in the Commission’s strategy on Zero Pollution to air, water and soil and the Chemicals Strategy on Sustainability. The recently adopted Zero Pollution Action Plan set reduction targets for 2030 (i. e. to reduce plastic litter at sea by 50 % and microplastics released into the environment by 30%), further boosting the effectiveness of EU policies against marine litter and its impacts. Addressing plastic pollution at a global level thus very much dovetails with multiple existing Union policies and legislation relating to the protection of the environment from pollution. This can include waste ¹⁸ , shipments of waste ¹⁹ , chemicals ²⁰ , bathing water ²¹ , and other (such as Urban Waste Water Treatment and Water Framework Directives) ²² .

The EU contributes substantially to international initiatives directly related to curbing plastic pollution, such as the implementation of the Basel Convention on the transboundary shipments of waste, as recently amended with enhanced controls on plastic waste, ²³ and the IMO (International Maritime Organisation) Action Plan against plastic litter and microplastics. Furthermore, the EU participates actively in all actions against plastic pollution in the marine regions around Europe (through technical and financial support to the Regional Action Plans in Mediterranean, Black Sea, Baltic and Northeast Atlantic) and with its G7 and G20 partners. The EU has also co-sponsored an initiative in the WTO that addresses plastic pollution and sustainable plastics trade.

Plastics and its pollution permeate well beyond environmental policy considerations. The section below sets out its crosscutting relevance to diverse policies across the Union’s remit.

• Consistency with other Union policies

The proposed Recommendation is also consistent with other Union policies and legislation, such as on:

·health, specifically those policies and actions regarding materials and articles intended to come into contact with food ²⁴ ,Union policies on the protection of the marine and coastal environment,

·port reception facilities ²⁵ ,

·EU Sustainable Finance Taxonomy, particularly in respect of “do no serious harm” criteria for plastic packaging and other plastic products,

·Future development of Ecodesign criteria including for packaging and other plastic products placed on the EU Single Market,

·The proposed revision of the Waste Shipments Regulation,

·Basel and Stockholm Conventions,

·Development cooperation and international partnerships,

·Bilateral and multilateral relations,

·Union policy on Persistent Organic Pollutants within the framework of the Stockholm Convention, with several plastic additives listed or proposed for listing, and

·Chemicals policy, including REACH restrictions on microplastics and plastic additives and the recently published Restriction Roadmap ²⁶ , which targets widely used additives (such as flame retardants) and PVC.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

• Legal basis

The procedural legal basis for the proposed decision is Article 218(3) and i of the Treaty on the Functioning of the European Union (TFEU).

Article 218(3) of the TFEU provides that the Commission shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and nominating the Union negotiator. According to Article 218 i of the TFEU, the Council may address directives to the negotiator and designate a special committee in consultation with which the negotiations must be concluded.

The agreement should be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be reflected at source, and on the polluter pays principle, with the specific basis to be considered at a later stage once more information is available on the scope and content of the international agreement on plastic pollution.

• Subsidiarity

Although its exact scope is not yet known, the envisaged international agreement is intended to address plastic pollution through measures along the entire lifecycle of plastics, including product design, production, consumption, use and the sound management of plastic waste. The foregoing sections on the policy area and its related policy links under the Union’s remit, aptly demonstrate the leading role that the Union has played to date and the appropriateness of handling negotiations for the envisaged agreement at Union level.

The envisaged agreement will therefore have an inevitable impact on the exercise of Union competences and on Union legislation in areas such as (in particular) environment, trade and internal market, all of which might become relevant as the negotiations on specific provisions unfold.

In view of the above and the likely affectation of existing Union provisions (in particular those covering the ‘policy area’ listed under Heading 1) in different areas of the Union’s action, it is essential that the participation of the Union in the future negotiations and resulting international agreement is assured.

• Proportionality

This will be the first multilateral agreement addressing plastic pollution by a holistic approach covering both the upstream and the downstream part of the plastic life cycle. Several national and regional initiatives that address plastic pollution, including marine plastic pollution, already exist, but they have not proven sufficient to respond to the global challenge of plastic pollution. The Ad-hoc Open-Ended Working Group on Marine Litter and Micro-Plastics, established at the third session of the UNEA in response to UNEP/EA.3/Res.7 Marine Litter and Microplastics, and which concluded its work in November 2020, identified a global agreement on plastics as a key response option to the global crisis. At UNEA 5 the Resolution 5/14 “End plastic pollution: towards an international legally binding instrument”, which called UNEP’s Executive Director to establish the INC, was adopted.

A Council Decision is necessary to authorise the opening of negotiations by the Union on a global agreement on plastics in order to address plastic pollution.

The proposed recommendation does not go beyond what is necessary for achieving the objectives pursued, in accordance with Article 5 i of the Treaty on European Union (TEU).

• Choice of the instrument

The choice of the instrument is stipulated in Article 218(3) and 218 i of the TFEU.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

• Ex-post evaluations/fitness checks of existing legislation

Not applicable.

• Stakeholder consultations

Not applicable.

• Collection and use of expertise

Not applicable.

• Impact assessment

Not applicable.

• Regulatory fitness and simplification

Not applicable.

• Fundamental rights

According to Article 37 of the Charter of Fundamental Rights of the European Union, a high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.

The proposed recommendation seeks authorisation for the opening of negotiations with a view to address plastic pollution, not only in marine environments, but also on land, by addressing the entire plastic life cycle. This would have a positive impact upon the right on environmental protection, as enshrined in Article 37 of the Charter of Fundamental Rights of the European Union.

According to Article 37 of the Charter of Fundamental Rights of the European Union, Union policies shall ensure a high level of consumer protection.

The proposed recommendations would equally positively impact upon the right on consumer protection by also taking into account the upstream part of the plastic life cycle, i.e. product design, production and labelling of plastic products.

According to Article 3(1) of the Charter of Fundamental Rights of the European Union, everyone has the right to respect for his or her physical and mental integrity.

The proposed recommendation would positively impact upon the right to the integrity of the person as well, as it also aims to tackle the risks plastic pollution, in particular microplastics, is posing to the human physical health.

4. BUDGETARY IMPLICATIONS

The exact budgetary implications of this initiative are impossible to determine at this stage insofar as its scope and key elements remain to be multilaterally negotiated. There will be a negotiation process with numerous INC meetings until a Diplomatic Conference expected not before 2024.

5. OTHER ELEMENTS

• Implementation plans and monitoring, evaluation and reporting arrangements

A preparatory meeting (Open-ended Working Group/OEWG) on organisational matters pertaining to the INC took place from 30 May to 1 June 2022 in Dakar, Senegal.

Negotiations proper on the new instrument will start at the first meeting of the INC in the second half of 2022 (date and venue tbc).

• Explanatory documents (for directives)

No.

• Detailed explanation of the specific provisions of the proposal

The Commission recommends that:

·The Council authorises the Commission to open and conduct negotiations for the conclusion of a new international agreement on plastic pollution,

·The Commission is nominated as Union negotiator,

·The Commission conducts the negotiations in consultation with the special committee if designated by the Council in accordance with Article 218 i TFEU,

·The Council approves the negotiating directives annexed to this recommendation.

Recommendation for a
Article 1
Article 2
Article 3
Article 4
For the Council

1. Recommendation for a

COUNCIL DECISION

authorising the opening of negotiations on behalf of the European Union for an international agreement on plastic pollution

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty in the Functioning of the European Union, and in particular Article 218(3) and i thereof,

Having regard to the recommendation from the European Commission,

Whereas:

The United Nations Environment Assembly at its Fifth Session from 28 February to 2 March 2022 adopted the Resolution “End plastic pollution: towards an international legally binding instrument” (5/14) establishing an intergovernmental negotiating committee to negotiate a new international agreement to address plastic pollution, including in the marine environments, with a view to address the entire life cycle of plastics.

The Union, should participate in the negotiations on such convention, agreement or other international instrument,

HAS ADOPTED THIS DECISION:

2. Article 1

The Commission is hereby authorised to negotiate on behalf of the Union an international agreement on plastics to end plastic pollution as set out in the UNEA-5.2 Resolution 5/14.

3. Article 2

The negotiating directives are set out in the Annex.

4. Article 3

The negotiations shall be conducted in consultation with the [name of the special committee to be inserted by the Council].

5. Article 4

This Decision is addressed to the Commission.

Done at Brussels,

6. For the Council

Please note

Contents

1.

Recommendation for a

2.

Article 1

3.

Article 2

4.

Article 3

5.

Article 4

6.

For the Council