Considerations on COM(2021)709 - Shipments of waste - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2021)709 - Shipments of waste. |
|---|---|
| document | COM(2021)709  |
| date | April 11, 2024 |
(2) Regulation (EC) No 1013/2006 of the European Parliament and of the Council (4) has, over the past 15 years, brought about important improvements to protect the environment and human health against the adverse impacts which can result from the shipment of waste. However, the Commission’s evaluation of that Regulation has also revealed a number of challenges and shortcomings, which need to be addressed through new regulatory provisions.
(3) The European Green Deal, set out in the communication of the Commission of 11 December 2019, sets out an ambitious roadmap to transform the Union into a sustainable, resource efficient and climate neutral economy. It calls on the Commission to review the Union rules on shipments of waste established under Regulation (EC) No 1013/2006. The New Circular Economy Action Plan, set out in the communication of the Commission of 11 March 2020, further stresses the need for action to ensure that shipments of waste for re-use and recycling in the Union are facilitated, that the Union does not export its waste challenges to third countries and that illegal shipments of waste are better addressed. In addition to the environmental and social benefits, such action can also result in reducing the Union’s strategic dependencies on raw materials. Keeping more of the waste generated within the Union will, however, require improved recycling and waste management capacity. Both the Council in its conclusions on Making the Recovery Circular and Green of 17 December 2020 and the European Parliament in its resolution on the New Circular Economy Action Plan of 10 February 2021 have also called for a revision of the current Union rules on shipments of waste established under Regulation (EC) No 1013/2006. Article 60(2a) of Regulation (EC) No 1013/2006 mandated the Commission to carry out a review of that Regulation by 31 December 2020.
(4) Regulation (EC) No 1013/2006 has already been amended on several occasions and requires further significant amendments to ensure that the policy objectives of the European Green Deal and the New Circular Economy Action Plan are met. Regulation (EC) No 1013/2006 should therefore be repealed and replaced by a new Regulation.
(5) This Regulation is intended to supplement the general waste management legislation of the Union, such as Directive 2008/98/EC. It refers to definitions in that Directive, including, the definitions of waste and of terms related to waste management. It also lays down a number of additional definitions in order to facilitate uniform application of this Regulation.
(6) This Regulation implements at Union level the Basel Convention of 22 March 1989 on the control of transboundary movements of hazardous wastes and their disposal (5) (‘the Basel Convention’). The Basel Convention aims to protect human health and the environment against the adverse effects resulting from the generation, transboundary movements and management of hazardous wastes and other wastes. The Union has been a Party to the Basel Convention since 1994 (6).
(7) This Regulation also implements at Union level an amendment to the Basel Convention (7) (the Ban Amendment) which was adopted in 1995 and entered into force at the international level on 5 December 2019. The Ban Amendment establishes a general prohibition on all exports of hazardous wastes that are destined for disposal and recovery operations from countries listed in Annex VII to the Basel Convention to countries not listed in that Annex. The Union has ratified the Ban Amendment and implemented it since 1997 (8).
(8) The Union submitted in October 2020 a notification, covering shipments of waste within the Union, to the Secretariat of the Basel Convention under Article 11 of that Convention. In accordance with that Article, the Union can therefore set out specific rules applying to the intra-EU shipments of waste which are not less environmentally sound than those provided for by the Basel Convention.
(9) In view of the fact that the Union has approved the Organisation for Economic Cooperation and Development (OECD) Decision of the Council on the Control of Transboundary Movements of Wastes Destined for Recovery Operations (9) (‘the OECD Decision’), it is necessary to incorporate the content of that Decision, including its amendments, in Union legislation.
(10) 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 ensures the uniform application of rules on shipments of waste throughout the Union.
(11) To ensure a real transition towards a circular economy for shipments of waste from its place of origin to the best place of treatment for such waste, the principle of proximity, as well as material efficiency and the need to reduce the environmental footprint of waste should be taken into account.
(12) It is necessary to avoid duplication with applicable Union legislation on the transport of certain materials that could be classified as waste under this Regulation.
(13) Collection and conduction of wastewater through sewage systems pursuant to relevant Union legislation should not be considered as transport of waste under this Regulation.
(14) In order to properly implement and enforce this Regulation, Member States should take the necessary measures to ensure that waste is not shipped under the guise of used goods, secondhand goods, by-products or substances or objects that have reached end-of-waste status.
(15) Shipments of waste generated by armed forces or relief organisations should be excluded from the scope of this Regulation when imported into the Union in certain situations, including transit within the Union when the waste enters the Union. 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 Union should be informed in advance concerning the shipment and its destination.
(16) It is necessary to avoid duplication with Regulation (EC) No 1069/2009 of the European Parliament and of the Council (10 11), which already contains provisions covering the overall consignment, channelling and movement of animal by-products, including collection, transport, handling, processing, use, recovery or disposal, record keeping, accompanying documents and traceability, within, into and outside of the Union.
(17) Regulation (EU) No 1257/2013 of the European Parliament and of the Council (11) applies to large commercial ships flying the flag of a Member State of the Union, which were excluded from the scope of application of Regulation (EC) No 1013/2006. Such ships, when becoming waste are generally classified as hazardous waste, except when all hazardous substances and materials have been removed from them. Following the international entry into force of the Ban Amendment, it is necessary to ensure that the ships covered by the scope of Regulation (EU) No 1257/2013 which are considered waste and are exported from the Union are made subject to the relevant Union rules regarding shipment of waste, including those implementing the Ban Amendment, in order to ensure strict legal compatibility of the Union’s legal regime with international obligations. At the same time, it is also necessary to amend Regulation (EU) No 1257/2013 to clarify that ships falling within its scope and which are considered hazardous waste and exported from the Union should only be recycled at those facilities included in the European List of ship recycling facilities established under that Regulation, which are located in countries listed in Annex VII to the Basel Convention.
(18) In order to avoid putting an unnecessary burden on Member State’s competent authorities and judicial systems in enforcing this Regulation, a shipment should not be considered illegal where only minor clerical errors occur in the notification or movement document, or in the document resulting from the completion of the form set out in Annex VII (‘Annex VII document’), such as typographical errors in the information provided when filling out the notification or movement documents or Annex VII documents or omission of part of the contact details for one of the persons involved in the shipment. However, such exceptions to the definition of what constitutes an illegal shipment should be strictly limited to mistakes of a minor clerical nature which occur exceptionally, do not significantly alter the substance of those documents and do not affect the achievement of the objectives of this Regulation.
(19) It is appropriate, for the purpose of ensuring optimal supervision and control, to require prior written consent to shipments of waste destined for recovery, in particular hazardous wastes, wastes not listed in Annex III, Annex IIIA or Annex IIIB and wastes containing or contaminated with persistent organic pollutants (POPs) meeting or exceeding a concentration limit specified in Annex IV to Regulation (EU) 2019/1021 of the European Parliament and of the Council (12). 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 shipments.
(20) To take account of innovation in waste treatment technology with regard to environmentally sound management, as well as of changes in consumer behaviour with regard to the sorting of waste, it is essential that Annexes IIIA and IIIB be continuously updated. The Commission should in particular assess whether to add entries on mixtures of waste footwear, waste clothing and other textile waste to Annex IIIA, as well as on mineral wool and mattresses to Annex IIIB.
(21) A well-functioning Union market for shipments of waste should prioritise proximity, self-sufficiency and the use of the best available techniques in waste management as guiding principles. Achieving a fair transition to a circular economy is essential to attaining a climate neutral, resource-efficient and competitive Union economy that is sustainable in the long run. In order to achieve that objective, the Commission should facilitate sector-specific
climate dialogues and partnerships by bringing together key stakeholders in the waste sector in accordance with Regulation (EU) 2021/1119 of the European Parliament and of the Council (13).
(22) In order to support the achievement of targets to increase recycling and reduce disposal of waste set out in Directive 2008/98/EC and Council Directive 1999/31/EC (14), all shipments of waste destined for disposal in another Member State should be prohibited as a general rule. Shipments of waste destined for disposal should be allowed only in exceptional cases where certain conditions are fulfilled. In those cases, Member States should take into account the principles of proximity and self-sufficiency at Union and national levels, in accordance with Directive 2008/98/EC, and in particular Article 16 of that Directive, as well as the priority for recovery. Member States should also be able to ensure that the waste disposal facilities covered by Directive 2010/75/EU of the European Parliament and of the Council (15) 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 human health and environmental protection requirements in relation to disposal operations established in Union legislation. Furthermore, in order to support the implementation of the provisions set out in Directive 2008/98/EC to increase the separate collection of waste and reduce the generation of mixed municipal waste, shipments of mixed municipal waste to another Member State should be subject to particular scrutiny. Shipments of such waste for recovery should be subject to the procedure of prior written notification and consent and shipments of such waste for disposal should be prohibited. Those requirements for shipments destined for recovery and the prohibition of shipments destined for disposal should cover also mixed municipal waste that has been subject to a waste treatment operation that has not substantially altered its properties, such as refuse-derived fuel processed from mixed municipal waste, classified under the waste code 19 12 10 in the list of waste referred to in Article 7 of Directive 2008/98/EC. In line with the waste hierarchy and the principles of proximity and self-sufficiency, Member States should ensure that such waste is prevented in the first place, and collected and sorted in the second place, with a view to separating different fractions for recovery and only considering disposal for those residues that have no other potential than to be disposed of.
(23) In the case of shipments of waste listed in Annex III, Annex IIIA or Annex IIIB to this Regulation which is 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 on the persons and countries involved in the shipments, the description and quantities of the waste concerned, the type of recovery operation for which the waste is shipped and the details of the facilities which will recover the waste.
(24) Laboratory analysis and experimental treatment trials are often a necessary tool for assessing the nature of waste and its suitability for recovery and disposal operations. Sound and innovative waste management operations are key to ensuring the environmentally sound management of waste and to establishing circular economy business models in the Union. The shipment of waste for such laboratory analysis and experimental treatment trials should be facilitated by not subjecting it to all the applicable procedures. Moreover, to deliver accurate results, a sufficiently significant quantity of waste should be allowed to be shipped for the purpose of laboratory analysis and experimental treatment trials for shipments within the Union, because, inter alia, there are waste management standards and practices that are more developed in the Union compared to most third countries.
(25) It is necessary to set the grounds for Member States to object to shipments of waste destined for recovery. In the case of such shipments, Member States should be able to ensure that the waste recovery facilities covered by Directive 2010/75/EU apply best available techniques as set out 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 human health and environmental protection requirements in relation to recovery operations established in Union legislation and that, taking account of Article 16 of Directive 2008/98/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 Union legislation. A Member State of destination should therefore be able to object to shipments of waste, including shipments of mixed municipal waste, if it anticipates that the waste will not be managed in an environmentally sound manner.
(26) It is necessary to provide for procedural steps and safeguards for when a notifier wishes to ship waste subject to the procedure of prior written notification and consent, in the interests of legal certainty and to ensure uniform application of this Regulation and the proper functioning of the internal market, thereby contributing to long-term competitiveness of the Union. It is also necessary, in line with Article 6(11) of the Basel Convention, to ensure that the costs arising from situations where the shipment cannot be completed or is illegal, are borne by the relevant operators. To that end, the notifier should establish a financial guarantee or equivalent insurance for each shipment.
(27) In order to reduce the administrative burden for both public and private operators involved in shipments to facilities recognised as ‘pre-consented’, it is necessary to set out the conditions under which the status of ‘pre-consented’ can be granted, to ensure their mutual recognition by all Member States and harmonise the requirements for shipping waste to such facilities.
(28) In order to make the exchange of information under this Regulation more efficient, in particular in the processing of notifications and information under Article 18 of this Regulation for the shipment of waste and to facilitate the submission and exchange of information between the relevant authorities and economic operators, it is imperative that such submission and exchange of information and data relating to shipments of waste within the Union be made via electronic means. The Commission should operate a central system which should be interoperable with the national systems. It is also necessary to empower the Commission to lay down the procedural and operational requirements for the practical implementation of the systems ensuring this electronic submission and exchange of information, such as requirements regarding interconnectivity, architecture and security. Such systems should facilitate the handling of notification requests, inter alia, by assisting those involved in a given request to keep track of the progress of the notification procedure. Such systems should also make it possible to extract data, including at individual Member State level, for the Commission to review whether notification requests are handled in a timely manner, inter alia, for the purpose of relevant reporting by the Commission as provided for under this Regulation. It is also necessary to provide sufficient time for competent authorities in the Member States and economic operators to prepare for the shift from a paper-based approach, as laid down in Regulation (EC) No 1013/2006, to an approach to exchange information and documents electronically. This new obligation should therefore become applicable 24 months after the date of entry into force of this Regulation.
(29) Economic operators involved in the transport of waste should be allowed to use the eFTI environment as established in Regulation (EU) 2020/1056 of the European Parliament and of the Council (16) for the exchange of the information required under this Regulation during the transport of waste, and interoperability of the systems provided for in this Regulation with the environment for the exchange of electronic freight transport information should be ensured.
(30) In order to facilitate the work carried out by customs authorities in the implementation of this Regulation, it is necessary that the central system operated by the Commission that allows for the electronic submission and exchange of information and documents be interoperable with the European Union Single Window Environment for Customs, established by Regulation (EU) 2022/2399 of the European Parliament and of the Council (17), when all required technical work to ensure this operability is completed.
(31) Competent authorities in third countries should be able to issue and exchange the information and documents necessary to meet the procedural requirements under this Regulation, via electronic means through the system operated at the Union level, if they so wish and if they comply with the requirements to exchange data via that system.
(32) In order to ensure traceability of shipments of waste and not to impair the environmentally sound management of waste shipped across borders, it should be prohibited to mix waste with other waste from the start of the shipment to the receipt of the waste in the recovery or disposal facility.
| (33) | To facilitate the enforcement of the obligations laid down in this Regulation, it is important that economic operators and competent authorities keep documents and information required for the shipment of waste for a minimum period of five years from the date on which a certificate of the completion of the recovery or disposal has been provided. |
| (34) | With a view to providing transparency as regards the carrying out of shipments of waste in accordance with this Regulation and the environmentally sound manner of the treatment of such waste at its destination, information concerning shipments of waste should be published. In that regard, the Commission should be required to publish and regularly update certain non-confidential data on notifications of shipments that have been consented or objected to by the competent authorities, as well as on shipments of waste subject to the general information requirements of this Regulation. For that purpose, the Commission should use, to the extent possible, the electronic system for the exchange of data on shipments of waste. The publication of such information by the Commission should be without prejudice to 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) (18) and Directive 2003/4/EC of the European Parliament and of the Council (19) and national legislation of Member States in this field. Any further requests to competent authorities on access to other information concerning shipments of waste should be addressed in accordance with that Convention and Union and national legislation. |
| (35) | In order to implement the requirements set out in Article 8 of the Basel Convention, an obligation should be laid down to the effect that waste from a shipment to which the competent authorities concerned have given consent, that cannot be completed as intended is to be taken back to the country of dispatch, and, where necessary, stored safely, or recovered or disposed of in an alternative way. In order to implement the requirements set out in Article 9 (2), (3) and (4) of the Basel Convention, it should be 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, and to bear the costs arising from the take-back operations. Where that person does not have the possibility of fulfilling those obligations within a reasonable time, the competent authorities of dispatch or destination, as appropriate, should cooperate and take action to ensure the environmentally sound management of the waste concerned. Where there is no clarity as to the person to whom the responsibility of an illegal shipment can be imputed, the competent authorities concerned should cooperate to ensure that the waste in question is taken back, recovered or disposed of. In order to reduce the environmental effects of shipments resulting from the obligation to take back waste in illegal shipments and allow, where appropriate, a more efficient procedure in situations involving illegal shipments, it should be possible for the competent authorities of dispatch, transit and destination to agree in certain cases that the waste in an illegal shipment can be recovered or disposed of in an alternative way, outside the country of dispatch, instead of taking it back. Such alternative management should be environmentally sound. The alternative management should however only apply to shipments within the Union. |
| (36) | With a view to ensuring that competent authorities are able to correctly process the documents submitted to them relating to the shipment of waste, it is necessary to lay down an obligation for the notifier to provide an authorised translation of those documents in a language acceptable to these authorities if they so request. In order to avoid creating an unnecessary administrative burden, the electronic system for exchanging information on shipments of waste should include a function which provides courtesy translations of relevant documents submitted in that system. |
| (37) | In order to avoid disruptions of shipments of objects or substances due to disagreements between competent authorities as to whether the status of such objects or substances is waste or non-waste, it is necessary to set out a procedure to resolve such disagreements. It is important in that regard that competent authorities base their decisions on the provisions relating to the determination of by-products and to the end-of-waste status laid down in Directive 2008/98/EC. Uniform conditions are needed for the Member States to decide whether an object or a substance should be considered as a used good or waste. Furthermore, Member States should take measures aiming to ensure that objects or substances intended to be shipped to another country as used goods fulfil such conditions in accordance with Union law. It is also necessary to establish criteria for the classification of specific waste in the Annexes to this Regulation and to set out a procedure to resolve disagreements between competent authorities as to |
| (18) (19) | OJ L 124, 17.5.2005, p. 4. Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ L 41, 14.2.2003, p. 26). |
whether waste should be subject or not to the notification procedure. To ensure better harmonisation across the Union of the conditions under which waste, including waste from composite materials which can be difficult to recycle, should be subject to the notification procedure, the Commission should also be empowered to adopt delegated acts establishing criteria for the classification of specific waste in the relevant Annexes to this Regulation, which will determine whether or not it is subject to the notification procedure. In addition, in order to avoid waste being falsely declared as used goods and to provide legal clarity, the Commission should be empowered to adopt implementing acts establishing criteria to distinguish between used goods and waste, for specific commodities for which such distinction is important, especially for their export from the Union.
(38) To allow administrations to limit public expenditure linked to the handling of procedures for the shipment of waste and to the enforcement of this Regulation, it is necessary to provide for the possibility that appropriate and proportionate administrative costs linked to those procedures, as well as to supervision, analyses and inspections, be charged to the notifier and, where relevant, the person who arranges the shipment.
(39) In order to reduce the administrative burden and in exceptional circumstances, linked to specific geographical or demographical situations, Member States should be able to conclude bilateral agreements making the notification procedure for shipments of specific flows of waste less stringent in respect of cross-border shipments to the nearest suitable facility located in the border area between the two Member States concerned. It should also be possible for a Member State to conclude such agreements with members of the European Free Trade Association (EFTA), including in a situation whereby waste is shipped from and treated in the country of dispatch but transits through another Member State.
(40) Given the specific geographical situation of the Faroe Islands, and their status as part of the Kingdom of Denmark, Denmark is the main importing country for waste from the Faroe Islands for its recovery or disposal within its territory. Without prejudice to the applicability of the rules on the transit of waste through the Union, Denmark should be allowed to assume the full responsibility to treat the import of waste from the Faroe Islands into its territory as transport of waste within its territory when it is the country of destination of that import.
(41) Although the supervision and control of the transport of waste within a Member State is a matter for that Member State, national systems concerning the transport of waste should take account of the need for coherence with the Union system for shipments of waste in order to ensure a high level of protection of the environment and human health.
(42) It is necessary, in order to protect the environment of the countries concerned, to clarify the scope of the prohibition of exports laid down in accordance with the Basel Convention from the Union of any waste destined for disposal in a third country other than an EFTA country.
(43) Countries that are Parties to the Agreement on the European Economic Area should be able to adopt the control procedures provided for shipments within the Union. In such cases, shipments between the Union and those countries should be subject to the same rules as shipments within the Union.
(44) To protect the environment of the countries concerned, it is necessary to clarify the scope of the prohibition of exports of hazardous waste destined for recovery in third countries to which the OECD Decision does not apply, 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, residues from the incineration of household waste and certain hard-to-recycle plastic waste.
(45) To ensure environmentally sound management of waste containing or contaminated with POPs, such waste should not be allowed for export from the Union to countries that are not members of the OECD, when containing or contaminated with POPs meeting or exceeding a concentration limit specified in Annex IV to Regulation (EU) 2019/1021.
(46) It is necessary to establish strict rules concerning the export for recovery of non-hazardous waste to third countries to which the OECD Decision does not apply, in order to ensure that such waste does not cause damage to the environment and human health in these countries. Under these rules, export from the Union should be allowed only for waste that is not already covered by the prohibition of exports of hazardous waste and certain other wastes destined for recovery in third countries to which the OECD Decision does not apply, and only to countries included in a list drawn up and to be updated by the Commission, when those countries have submitted a request to the Commission stating their willingness to receive certain non-hazardous wastes or mixtures of non-hazardous wastes from the Union and demonstrating their ability to manage such waste in an environmentally sound manner, on the basis of criteria laid down in this Regulation. Such criteria should include compliance with international labour and workers’ rights conventions. As Member States could ratify more such conventions in the future, the Commission should be empowered to add relevant conventions to the criteria in this Regulation. Exports to countries other than those included in the list to be drawn up by the Commission should be prohibited. To ensure sufficient time for the transition to this new regime, a transitional period of three years after the date of entry into force of this Regulation should be provided for. In particular when establishing and updating the list of countries to which the OECD Decision does not apply and to which export of non-hazardous waste from the Union for recovery is authorised, the principle of equality in Union law should be applied and its application monitored.
(47) It is necessary to ensure that the shipment of waste that is necessary for building strong value chains is facilitated within the internal market, while ensuring that adequate controls are in place. Strengthening key value chains will accelerate the development of the Union’s resilience and enhance its strategic autonomy.
(48) Countries to which the OECD Decision applies are subject to the rules and recommendations laid down by the OECD on the shipment and management of waste, and generally have higher standards for the management of waste than countries to which the OECD Decision does not apply. It is however important that the export from the Union of non-hazardous waste for recovery does not cause damage to the environment and human health in countries to which the OECD Decision applies. It is therefore necessary to establish a mechanism to monitor shipments of non-hazardous waste to such countries. In cases where there is insufficient evidence demonstrating the ability of the country concerned to recover such waste in an environmentally sound manner, the Commission should enter into a dialogue with the country concerned and, if the information it obtains is not sufficient to prove that the waste is recovered in an environmentally sound manner, be empowered to suspend such exports. The Commission should ensure that throughout the waste shipment process the principle of equality is applied towards third countries to which the OECD Decision applies.
(49) The Union has developed and implemented an ambitious policy to address the serious environmental and human health damage caused by plastic pollution, especially when linked to the mismanagement of plastic waste. The European Strategy for Plastics in a Circular Economy, set out in the communication of the Commission of
16 January 2018, the European Green Deal, the New Circular Economy Action Plan and the EU Action Plan: ‘Towards Zero Pollution for Air, Water and Soil’, set out in the communication of the Commission of 12 May 2021, reflect this ambition and have led to the adoption of a wide range of measures to reduce plastic waste and improve its management. Those measures include in particular legislation on the management of waste (Directive 2008/98/EC), packaging and packaging waste (European Parliament and Council Directive 94/62/EC (18)), single-use plastic products (Directive (EU) 2019/904 of the European Parliament and of the Council (19)) as well as on the restrictions of intentionally added microplastics (Commission Regulation (EU) 2023/2055 (20)). In addition to these measures, new initiatives have been launched to further reduce plastic waste in the Union, such as the revision of Directive 94/62/EC on packaging and packaging waste and of Directive 2000/53/EC of the European Parliament and of the Council (21) on end-of-life vehicles, as well as a proposal for new rules preventing pellet losses to reduce microplastic pollution (22). In order to complement these measures designed to reduce plastic waste and improve its
management within the Union, and to avoid the Union exporting its waste challenges to third countries, it is appropriate to lay down specific provisions to also ensure the environmentally sound management of plastic waste exported from the Union. These provisions are aimed at ensuring that plastic waste exported from the Union is treated in conditions equivalent to those in place in the Union. Countries to which the OECD Decision does not apply are more likely to face serious environmental and human health challenges linked to the management of plastic waste exported from the Union. Furthermore, the standards and infrastructure for the management of plastic waste in those countries are, in most cases, not as developed as in the Union. The Union has prohibited the export of certain types of plastic waste, namely those classified under the entries Y48 and A3210, to those countries since 1 January 2021. In light of such challenges and differences in the level of standards and infrastructure elements, and with the aim of further protecting the environment and human health, it is appropriate to extend the scope of that prohibition to cover the export of all plastic waste to countries to which the OECD Decision does not apply. In order to provide economic operators and competent authorities with sufficient time to adapt their operations to these new rules, the prohibition should become applicable 30 months after the entry into force of this Regulation. It should be possible to grant any country to which the OECD Decision does not apply a derogation from this prohibition if it demonstrates that it manages plastic waste in an environmentally sound manner. Such derogation should be granted by means of a delegated act, upon request from a country as from 30 months from the application of the export prohibition.
(50) The Commission should exercise particular scrutiny as regards shipments of plastic waste to countries to which the OECD Decision applies and monitor how such waste is managed in such countries, and be empowered to restrict exports of plastic waste to such countries to protect the environment and human health.
(51) Where they are permitted, the exports of all plastic waste to all third countries should be subject to the procedure of prior written notification and consent.
(52) The necessary steps should be taken to ensure that, in accordance with Directive 2008/98/EC and other Union legislation on waste, waste shipped within the Union and waste imported into the Union is managed, throughout the duration of the shipment and including recovery or disposal in the country of destination, without endangering human health and the environment. It is also necessary to ensure that waste exported from the Union is managed in an environmentally sound manner throughout the duration of the shipment and including recovery or disposal in the third country of destination. To that end, an obligation should be introduced for exporters of waste to ensure that the facility which receives the waste in a third country of destination is made subject to an audit by an independent third party with appropriate qualifications, prior to exporting waste to the facility in question. The purpose of such audit is to verify compliance of the facility in question with specific criteria laid down in this Regulation, designed to ensure that the waste will be managed in an environmentally sound manner. Where such audit concludes that those specific criteria are not fulfilled by the facility in question, the exporter should not be entitled to export waste to that facility. In order to ensure that audits are conducted in a professional and impartial manner, it is important to set out criteria on the independence and qualifications of the third party auditors, and to make clear that they should be authorised or accredited by an official public authority to perform those activities. The obligation concerning audits should apply with regard to facilities located in all third countries, including those that are members of the OECD. The OECD Decision states that waste exported to another OECD country ‘shall be destined for recovery operations within a recovery facility which will recover the wastes in an environmentally sound manner according to national laws, regulations and practices to which the facility is subject’. The OECD Decision does not contain any element or criterion specifying how to implement that requirement as regards the ‘environmentally sound management’ of waste. In the absence of common criteria defining the conditions under which waste is to be recovered in the relevant facilities, it is necessary to address the risk that waste exported from the Union to countries belonging to the OECD is mismanaged in specific facilities, and hence facilities located in those countries should be subject to the audit requirements laid down in this Regulation.
(53) A register should be established and maintained by the Commission, which contains information on facilities that have been subject to an audit. Such a register should provide information that facilitates the preparation of environmentally sound shipments by notifiers or persons who arrange a shipment for the export of waste from the Union, but it is not intended to serve as a means of demonstrating compliance with conditions and obligations outlined in this Regulation. The register should be facilitative for exporters of waste but should not take away the responsibility of the exporter of waste to demonstrate such compliance.
(54) Considering 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, imports into the Union of waste for disposal should be permitted where the exporting country is a Party to that Convention. Imports into the Union 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, imports should be allowed only if the exporting country is bound by a bilateral or multilateral agreement or arrangement compatible with Union legislation and in accordance with Article 11 of the Basel Convention, except when that is not possible during situations of crisis, peacemaking or peacekeeping operations, or war.
(55) 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 2013/755/EU (23).
(56) In the specific cases of shipments taking place within the Union with transit via third countries, specific provisions pertaining to the consent procedure by third countries should apply. It is also necessary to adopt specific provisions pertaining to the procedures applying to the transit of waste through the Union from and to third countries.
(57) For environmental reasons and in view of the particular status of the Antarctic, this Regulation should explicitly prohibit the export of waste to that territory.
(58) To ensure harmonised implementation and enforcement of this Regulation, it is necessary to lay down obligations for Member States to carry out inspections of the shipments of waste. Adequate planning of inspections of shipments of waste is also necessary to establish the capacity needed for inspections and to effectively prevent illegal shipments. Regulation (EC) No 1013/2006 required Member States to ensure that inspection plans for shipments of waste were established by 1 January 2017. To facilitate more consistent application of the provisions related to inspection plans and to ensure harmonised approach for inspections across the Union, Member States should notify their inspection plans to the Commission, which should be tasked to review those plans and, where appropriate, issue recommendations for improvements. If competent authorities of dispatch and destination in Member States are notified of an illegal shipment of waste, they should consider how they could increase their control measures for similar shipments to identify illegal shipments of waste at an early stage.
(59) Diverging rules exist in the Member States as regards the power of, and possibility for, authorities involved in inspections in Member States to require evidence to ascertain the legality of shipments. Such evidence could concern, inter alia, whether the substance or object is waste, whether the waste has been correctly classified, and whether the waste will be shipped to facilities managing waste in an environmentally sound manner in accordance with this Regulation. This Regulation should therefore provide the possibility for authorities involved in inspections in Member States to require such evidence. It should be possible to request such evidence on the basis of general provisions or on a case-by-case basis. Where such evidence is not made available or is considered to be insufficient, the carriage of the substance or object concerned, or the shipment of waste concerned should be considered an illegal shipment and should be dealt with in accordance with the relevant provisions of this Regulation.
(60) The evaluation of Regulation (EC) No 1013/2006 found that one of the shortcomings is that national rules on penalties differ significantly across the Union. Therefore, to facilitate more consistent application of penalties, common non-exhaustive criteria should be established for determining the types and levels of penalties to be imposed in the event of infringements of this Regulation. Those criteria should include, inter alia, the nature and gravity of the infringement and the economic benefits derived from and the environmental damage caused by the infringement. Furthermore, in addition to the penalties required under this Regulation, Member States should ensure that illegal shipment of waste constitutes a criminal offence in accordance with the provisions laid down in Directive 2008/99/EC of the European Parliament and of the Council (24). Member States should lay down rules on penalties applicable to infringements of this Regulation and should ensure that those rules are enforced. The penalties provided for should be effective, proportionate and dissuasive. Member States should be able to lay down rules for administrative as well as criminal penalties for the same infringements. In any case, the imposition of criminal and administrative penalties should not lead to a breach of the ne bis in idem principle as interpreted by the Court of Justice of the European Union.
(61) Application of Regulation (EC) No 1013/2006 has shown that the involvement of multiple actors at national level creates challenges to coordination and cooperation in relation to enforcement. Member States should therefore ensure that all relevant authorities involved in enforcement of this Regulation have effective mechanisms to enable them to cooperate and coordinate domestically concerning the development and implementation of enforcement policies and activities to address illegal shipments of waste, including for the establishment and implementation of the inspection plans.
(62) It is necessary for Member States to cooperate, bilaterally and multilaterally, in order to facilitate the prevention and detection of illegal shipments of waste. To further improve coordination and cooperation across the Union, a dedicated enforcement group should be established, with the participation of designated representatives of the Member States and of the Commission, as well as representatives of other relevant institutions, bodies, offices, agencies or networks. This enforcement group should meet regularly and constitute a forum, inter alia, for sharing relevant information for the prevention and detection of illegal shipments, including information and intelligence on trends in illegal shipments and experience, knowledge and best practices on enforcement.
(63) To support and complement the enforcement activities of the Member States, the Commission should be empowered to carry out inspections and coordinating actions in respect of illegal shipments, which are of a complex nature and might have serious adverse effects on human health or the environment, and where the investigation needed has a cross-border dimension involving at least two countries. In carrying out these inspections, the Commission should act in full respect of procedural guarantees and in close collaboration with the relevant authorities in the Member States, ensuring such inspections do not impact negatively any ongoing prosecuting, legal or administrative proceedings concerning the same illegal shipment in the Member State. The Commission may consider, as a matter of its internal organisation, entrusting certain enforcement actions foreseen by this Regulation to the European Anti-Fraud Office (OLAF), which possesses relevant expertise in that regard. The inspection and mutual assistance coordinating action should be without prejudice to the primary responsibility of the Member States to ensure and enforce compliance with this Regulation and should not affect the continued exercise of the powers conferred to the Commission or the European Anti-Fraud Office (OLAF), respectively, in other legal acts, in particular in Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council (25), Council Regulation (EC) No 5 1 5/97 (26), or Council Regulation (Euratom, EC) No 2185/96 (27).
(64) 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. The purpose of such reporting should be to analyse trends in relation to shipments of waste and data relevant for fighting against illegal shipments, such as data on illegal shipments and on inspections. The Commission should produce a report every three years on the implementation of this Regulation, based on the information provided by the Member States as well as on other information, gathered in particular through ad hoc reports by the Commission and the European Environment Agency on the shipments of plastic waste and other specific waste streams that are a source of concern. The systems for electronic submission and exchange of information and documents should be designed in such a way that data can be extracted from the system for the purpose of those reports.
(65) Efficient international cooperation regarding control of shipments of waste is instrumental in ensuring that shipments of waste are controlled and monitored on an appropriate level. Information exchange, shared responsibility and cooperative efforts between the Union and its Member States and third countries should be promoted with a view to ensuring sound management of waste.
(66) In order to facilitate the exchange of information and cooperation for the harmonised implementation of this Regulation, Member States should designate the competent authorities and correspondents and notify them to the Commission. Such information should be made publicly available by the Commission. Member States should also identify the authority or authorities and the members of their permanent staff responsible for the cooperation between Member States.
| (67) | Member States should be entitled, for the purpose of ensuring the control of shipments of waste, to designate specific customs offices of entry and exit for shipments of waste entering and leaving the Union and notify them to the Commission. Such information should be made publicly available by the Commission. |
| (68) | In order to supplement or amend this Regulation, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union (TFEU) should be delegated to the Commission in respect of amending the elements of the request by the recovery facility to obtain a pre-consent, laying down the information to be provided in certificates confirming completion of recovery and disposal operations, establishing instructions on completing Annex VII document, updating the list of information and documentation to be exchanged via electronic means, laying down criteria based on which certain wastes shall be classified in Annexes III, IIIA, IIIB or IV, establishing a list of countries to which the OECD Decision does not apply and to which exports of non-hazardous wastes, and mixtures of non-hazardous wastes, including plastic waste classified under entry B3011, from the Union for recovery are authorised and regularly updating this list, prohibiting export of waste to certain countries, to which the OECD Decision applies and amending Annexes. It is of particular importance that the Commission carries out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (30). In particular, and to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts. |
| (69) | As a replacement for the regular meetings of correspondents and for the consultations with experts and correspondents of the Member States and, where appropriate, with representatives of other stakeholders and organisations, in the preparation of delegated acts and for the examination of questions raised by the implementation of this Regulation, a group of experts should be established by the Commission, in accordance with Commission Decision C(2016)3301 establishing horizontal rules on the creation and operation of Commission expert groups. |
| (70) | In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission to adopt a simple, risk-based and harmonised method for calculating the financial guarantee or equivalent insurance, to establish detailed criteria for technical feasibility and economic viability, to clarify for certain types of commodities the distinction between used goods and waste when shipped transboundary, to adopt a correlation table to indicate the correspondence between the codes of the combined nomenclature provided for in Council Regulation (EEC) No 2658/87 (31) and the entries of waste listed in Annex III, Annex IIIA, Annex IIIB, Annex IV and Annex V to this Regulation, and to detail the information required for shipments of waste during situations of crisis, or peacemaking or peacekeeping operations. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (32). |
| (71) | Regulation (EU) 2020/1056 establishes a legal framework for the electronic communication of regulatory information between the economic operators concerned and competent authorities in relation to the transport of goods on the territory of the Union and covers parts of this Regulation in its provisions. In order to ensure consistency between the instruments, it is necessary to amend Regulation (EU) 2020/1056. In order to avoid there being an absence of implementing rules pursuant to Regulation (EU) 2020/1056 in relation to the definition, accessing and processing in electronic format of information requirements pursuant to this Regulation before the date of application of the mandatory electronic data interchange under this Regulation, the amendment to Regulation (EU) 2020/1056 should apply retroactively from the date of application of this Regulation. |
| (72) | It is necessary to provide for sufficient time for economic operators to comply with their new obligations under this Regulation, and for Member States and the Commission to set up the administrative infrastructure necessary for its application. In order to avoid any regulatory gap, it is necessary to ensure that some provisions of Regulation (EC) No 1013/2006 remain in force until the date on which the provisions of this Regulation with a delayed application become applicable. |
| (30) (31) | OJ L 123, 12.5.2016, p. 1. Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ L 256, 7.9.1987, p. 1). |
| (32) | Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13). |
(73) Since the objectives of this Regulation cannot be sufficiently achieved by the Member States, but can rather, by reason of the need for harmonisation, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. 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 those objectives.