The main and predominant objective and component of this Regulation is the protection of the environment, its effects on international trade being only incidental.
(2)
Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community (3) has already been significantly amended on several occasions and requires further amendment. It is necessary, in particular, to incorporate in that Regulation the content of Commission Decision 94/774/EC of 24 November 1994 concerning the standard consignment note referred to in Council Regulation (EEC) No 259/93 (4) and of Commission Decision 1999/412/EC of 3 June 1999 concerning a questionnaire for the reporting obligation of Member States pursuant to Article 41(2) of Council Regulation (EEC) No 259/93 (5). Regulation (EEC) No 259/93 should therefore be replaced in the interests of clarity.
(3)
Council Decision 93/98/EEC (6) concerned the conclusion, on behalf of the Community, of the Basel Convention of 22 March 1989 on the control of transboundary movements of hazardous wastes and their disposal (7), to which the Community has been a Party since 1994. By adopting Regulation (EEC) No 259/93, the Council has established rules to curtail and to control such movements designed, inter alia, to make the existing Community system for the supervision and control of waste movements comply with the requirements of the Basel Convention.
(4)
Council Decision 97/640/EC (8) concerned the approval, on behalf of the Community, of the amendment to the Basel Convention, as laid down in Decision III/1 of the Conference of the Parties. By that amendment, all exports of hazardous waste destined for disposal from countries listed in Annex VII to the Convention to countries not listed therein were prohibited, as were, with effect from 1 January 1998, all such exports of the hazardous waste referred to in Article 1(1)(a) of the Convention and destined for recovery. Regulation (EEC) No 259/93 was amended accordingly by Council Regulation (EC) No 120/97 (9).
(5)
In view of the fact that the Community has approved Decision C(2001)107/Final of the OECD Council concerning the revision of Decision C(92)39/Final on the control of transboundary movements of wastes destined for recovery operations (OECD Decision), in order to harmonise waste lists with the Basel Convention and revise certain other requirements, it is necessary to incorporate the content of that Decision in Community legislation.
(6)
The Community has signed the Stockholm Convention of 22 May 2001 on persistent organic pollutants.
(7)
It is important to organise and regulate the supervision and control of shipments of waste in a way which takes account of the need to preserve, protect and improve the quality of the environment and human health and which promotes a more uniform application of the Regulation throughout the Community.
(8)
It is also important to bear in mind the requirement laid down in Article 4(2)(d) of the Basel Convention that shipments of hazardous waste are to be reduced to a minimum, consistent with environmentally sound and efficient management of such waste.
(9)
Furthermore, it is important to bear in mind the right of each Party to the Basel Convention, pursuant to Article 4(1) thereof, to prohibit the import of hazardous waste or of waste listed in Annex II to that Convention.
(10)
Shipments of waste generated by armed forces or relief organisations should be excluded from the scope of this Regulation when imported into the Community in certain situations (including transit within the Community when the waste enters the Community). The requirements of international law and international agreements should be respected in relation to such shipments. In such cases, any competent authority of transit and the competent authority of destination in the Community should be informed in advance concerning the shipment and its destination.
(11)
It is necessary to avoid duplication with Regulation (EC) No 1774/2002 of the European Parliament and of the Council of 3 October 2002 laying down health rules concerning animal by-products not intended for human consumption (10), which already contains provisions covering the overall consignment, channelling and movement (collection, transport, handling, processing, use, recovery or disposal, record keeping, accompanying documents and traceability) of animal by-products within, into and out of the Community.
(12)
The Commission should report by the date of entry into force of this Regulation on the relationship between the existing sectoral legislation on animal and public health and the provisions of this Regulation, and should submit by that date any proposals needed to bring such legislation into line with this Regulation in order to achieve an equivalent level of control.
(13)
Although the supervision and control of shipments of waste within a Member State is a matter for that Member State, national systems concerning shipments of waste should take account of the need for coherence with the Community system in order to ensure a high level of protection of the environment and human health.
(14)
In the case of shipments of waste destined for disposal operations and waste not listed in Annex III, IIIA or IIIB destined for recovery operations, it is appropriate to ensure optimum supervision and control by requiring prior written consent to such shipments. Such a procedure should in turn entail prior notification, which enables the competent authorities to be duly informed so that they can take all necessary measures for the protection of human health and the environment. It should also enable those authorities to raise reasoned objections to such a shipment.
(15)
In the case of shipments of waste listed in Annex III, IIIA or IIIB destined for recovery operations, it is appropriate to ensure a minimum level of supervision and control by requiring such shipments to be accompanied by certain information.
(16)
In view of the need for uniform application of this Regulation and for the proper functioning of the internal market, it is necessary in the interests of efficiency to require that notifications be processed through the competent authority of dispatch.
(17)
It is also important to clarify the system of financial guarantees or equivalent insurance.
(18)
Considering the responsibility of waste producers for the environmentally sound management of waste, the notification and movement documents for waste shipments should, where practicable, be filled in by the waste producers.
(19)
It is necessary to provide procedural safeguards for the notifier, both in the interests of legal certainty and to ensure uniform application of this Regulation and the proper functioning of the internal market.
(20)
In the case of shipments of waste for disposal, Member States should take into account the principles of proximity, priority for recovery and self-sufficiency at Community and national levels, in accordance with Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste (11), by taking measures in accordance with the Treaty to prohibit generally or partially or to object systematically to such shipments. Account should also be taken of the requirement laid down in Directive 2006/12/EC, whereby Member States are to establish an integrated and adequate network of waste disposal installations, in order to enable the Community as a whole to become self-sufficient in waste disposal and the Member States to move towards that aim individually, taking into account geographical circumstances or the need for specialised installations for certain types of waste. Member States should also be able to ensure that the waste management facilities covered by Council Directive 96/61/EC of24 September 1996 concerning integrated pollution prevention and control (12) apply best available techniques as defined in that Directive in compliance with the permit of the facility, and that the waste is treated in accordance with legally binding environmental protection standards in relation to disposal operations established in Community legislation.
(21)
In the case of shipments of waste destined for recovery, Member States should be able to ensure that the waste management facilities covered by Directive 96/61/EC apply best available techniques as defined in that Directive in compliance with the permit of the facility. Member States should also be able to ensure that waste is treated in accordance with legally binding environmental protection standards in relation to recovery operations established in Community legislation and that, taking account of Article 7(4) of Directive 2006/12/EC, waste is treated in accordance with waste management plans established pursuant to that Directive with the purpose of ensuring the implementation of legally binding recovery or recycling obligations established in Community legislation.
(22)
The development of mandatory requirements for waste facilities and the treatment of specific waste materials at Community level, in addition to the existing provisions of Community law, can contribute to the creation of a high level of environmental protection across the Community, assist in the creation of a level playing field for recycling and help to ensure that the development of an economically viable internal market for recycling is not hindered. Therefore there is a need to develop a Community level playing field for recycling through the application of common standards in certain areas, as appropriate and including in relation to secondary materials, in order to increase the quality of recycling. The Commission should submit, as appropriate, proposals for such standards for certain wastes and certain recycling facilities as soon as practicable based on further examination in the context of the waste strategy and taking into account existing Community legislation and legislation in the Member States. In the interim, it should be possible, under certain conditions, to object to planned shipments where the related recovery would not be in accordance with national legislation in the country of dispatch relating to the recovery of waste. In the interim, the Commission should also keep under review the situation regarding possible undesired shipments of waste to the new Member States and, if necessary, submit appropriate proposals to deal with such situations.
(23)
Member States should be required to ensure that, in accordance with the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters of 25 June 1998 (Aarhus Convention), the relevant competent authorities make publicly available by appropriate means information on notifications of shipments, where such information is not confidential under national or Community legislation.
(24)
An obligation should be laid down to the effect that waste from a shipment that cannot be completed as intended is to be taken back to the country of dispatch or recovered or disposed of in an alternative way.
(25)
It should also be made compulsory for the person whose action is the cause of an illegal shipment to take back the waste involved or make alternative arrangements for its recovery or disposal. Failing that, the competent authorities of dispatch or destination, as appropriate, should intervene themselves.
(26)
It is necessary, in order to protect the environment of the countries concerned, to clarify the scope of the prohibition laid down in accordance with the Basel Convention of exports from the Community of any waste destined for disposal in a third country other than an EFTA (European Free Trade Association) country.
(27)
Countries that are Parties to the Agreement on the European Economic Area may adopt the control procedures provided for shipments within the Community.
(28)
It is also necessary, in order to protect the environment of the countries concerned, to clarify the scope of the prohibition of exports of hazardous waste destined for recovery in a country to which the OECD Decision does not apply, also laid down in accordance with the Basel Convention. In particular, it is necessary to clarify the list of waste to which that prohibition applies and to ensure that it also includes the waste listed in Annex II to the Basel Convention, namely waste collected from households and residues from the incineration of household waste.
(29)
Specific arrangements should be maintained for exports of non-hazardous waste destined for recovery in countries to which the OECD Decision does not apply and provision should be made for them to be further streamlined at a later date.
(30)
Imports into the Community of waste for disposal should be permitted where the exporting country is a Party to the Basel Convention. Imports into the Community of waste for recovery should be permitted where the exporting country is one to which the OECD Decision applies or is a Party to the Basel Convention. In other cases, however, imports should be allowed only if the exporting country is bound by a bilateral or multilateral agreement or arrangement compatible with Community legislation and in accordance with Article 11 of the Basel Convention, except when this is not possible during situations of crisis, peacemaking, peacekeeping or war.
(31)
This Regulation should be applied in accordance with international maritime law.
(32)
This Regulation should reflect the rules regarding exports and imports of waste to and from the overseas countries and territories laid down in Council Decision 2001/822/EC of 27 November 2001 on the association of the overseas countries and territories with the European Community (Overseas Association Decision) (13).
(33)
The necessary steps should be taken to ensure that, in accordance with Directive 2006/12/EC and other Community legislation on waste, waste shipped within the Community and waste imported into the Community is managed, throughout the period of shipment and including recovery or disposal in the country of destination, without endangering human health and without using processes or methods which could harm the environment. As regards exports from the Community that are not prohibited, efforts should be made to ensure that the waste is managed in an environmentally sound manner throughout the period of shipment and including recovery or disposal in the third country of destination. The facility which receives the waste should be operated in accordance with human health and environmental protection standards that are broadly equivalent to those established in Community legislation. A list of non-binding guidelines should be established in which guidance may be sought on environmentally sound management.
(34)
Member States should provide the Commission with information concerning the implementation of this Regulation, both through the reports submitted to the Secretariat of the Basel Convention and on the basis of a separate questionnaire.
(35)
It is necessary to ensure the safe and environmentally sound management of ship dismantling in order to protect human health and the environment. Furthermore, it should be noted that a ship may become waste as defined in Article 2 of the Basel Convention and that at the same time it may be defined as a ship under other international rules. It is important to recall that work is ongoing, involving inter-agency cooperation between International Labour Organisation (ILO), International Maritime Organisation (IMO) and the Secretariat of the Basel Convention, to establish mandatory requirements at the global level ensuring an efficient and effective solution to the problem of ship dismantling.
(36)
Efficient international cooperation regarding control of shipments of waste is instrumental in ensuring that shipments of hazardous waste are controlled. Information exchange, shared responsibility and cooperative efforts between the Community and its Member States and third countries should be promoted with a view to ensuring sound management of waste.
(37)
Certain Annexes to this Regulation should be adopted by the Commission in accordance with the procedure referred to in Article 18(3) of Directive 2006/12/EC. This procedure should also apply to the amendment of the Annexes to take account of scientific and technical progress, of modifications in the relevant Community legislation or of events connected to the OECD Decision or to the Basel Convention and other related international conventions and agreements.
(38)
In preparing the instructions for completing the notification and movement documents to be set out in Annex IC, the Commission, taking into account the OECD Decision and the Basel Convention, should specify, inter alia, that the notification and movement documents should, as far as possible, be on two pages and what the precise timing is for completion of the notification and movement documents in Annex IA and IB, taking into account Annex II. In addition, where terminology and requirements differ between the OECD Decision or the Basel Convention and this Regulation, the specific requirements should be clarified.
(39)
In considering the mixtures of wastes to be added in Annex IIIA, the following information should be considered, inter alia: the properties of the waste, such as its possible hazardous characteristics, its potential for contamination and its physical state; the management aspects, such as the technological capacity to recover the waste, and the environmental benefits arising from the recovery operation, including whether the environmentally sound management of the waste may be impaired. The Commission should progress towards the completion of this Annex as far as possible before the date of entry into force of this Regulation and complete this task at the latest six months after that date.
(40)
Additional measures related to the implementation of this Regulation should also be adopted by the Commission in accordance with the procedure referred to in Article 18(3) of Directive 2006/12/EC. These measures should include a method for calculating the financial guarantee or equivalent insurance to be completed by the Commission, if possible, before the date of application of this Regulation.
(41)
The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (14).
(42)
Since the objective of this Regulation, namely to ensure protection of the environment when waste is subject to shipment, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects thereof, be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective,
