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 32 has, over the past fifteen years, brought about important improvements to protect the environment and human health against the adverse impacts which may result from the shipment of waste. However, the Commission’s evaluation 33 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 34 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 waste shipments established under Regulation (EC) No 1013/2006. The New Circular Economy Action Plan 35 adopted in 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 waste shipments are better addressed. In addition to the environmental and social benefits, this can also result in ameliorating EU’s strategic dependencies on raw materials. Both the Council 36 and the European Parliament 37 have also called for a revision of the current Union rules on waste shipments established under Regulation (EC) No 1013/2006.
(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 replaced by a new Regulation.
(5) This Regulation supplements the general waste management legislation of the Union, such as Directive 2008/98/EC. It refers to the definitions in that Directive, including, the definitions of waste and general waste management operations. It also includes 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 38 (‘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 39 .
(7) This Regulation also implements at Union level an amendment to the Basel Convention 40 (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 waste that are intended for final disposal, re-use, recycling and recovery from countries listed in Annex VII to the Basel Convention to all other countries. The Union has ratified the Ban Amendment and implemented it since 1997 41 .
(8) The Union submitted in October 2020 a notification, covering shipment of waste within the Union, to the Secretariat of the Basel Convention under Article 11 of that Convention. In line with that Article, the Union might 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 Decision of the OECD Council of 30 March 1992 on the Control of Transboundary Movements of Wastes Destined for Recovery Operations 42 (‘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 a uniform application of rules on waste shipments throughout the Union.
(11) It is necessary to avoid duplication with applicable Union legislation on the transport of certain materials that could classify as waste under this Regulation.
(12) 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.
(13) It is necessary to avoid duplication with Regulation (EC) No 1069/2009 of the European Parliament and of the Council 43 , 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 Union.
(14) Regulation (EU) No 1257/2013 of the European Parliament and of the Council 44 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. However, following the recent 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 become waste in the Union are made subject to the relevant Union waste shipment rules 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 the scope of that Regulation and which become waste in the Union shall 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.
(15) 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 Union system in order to ensure a high level of protection of the environment and human health.
(16) In the case of shipments of waste not listed in Annex III, Annex IIIA or Annex IIIB of this Regulation and destined for recovery operations, it is appropriate to ensure optimal 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 shipments.
(17) In order to support the implementation of the provisions in Directive 2008/98/EC designed 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. Furthermore, in order to support the achievements of targets to increase recycling and reduce disposal of waste set out in Directive 2008/98/EC and Council Directive 1999/31/EC 45 , shipments of waste for disposal in another Member State should be generally prohibited. Shipments of waste for disposal should be allowed only in exceptional cases. 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 management facilities covered by Directive 2010/75/EU of the European Parliament and of the Council 46 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.
(18) In the case of shipments of waste listed in Annex III, Annex IIIA or Annex IIIB of this Regulation 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.
(19) 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 management 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.
(20) It is necessary to provide for procedural steps and safeguards, 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. 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 of waste subject to the prior written notification and consent cannot be completed or is illegal, are borne by the relevant operators. To this end, the notifier should establish a financial guarantee or equivalent insurance for each shipment of such waste.
(21) 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 these facilities.
(22) In order to reduce delays in the processing of notifications for the shipment of waste and facilitate the exchange of information between the relevant authorities, it is necessary that the issuance and exchange of information and data, which relates to individual shipments of waste within the Union, be made via electronic means. It is also necessary to empower the Commission to lay out the procedural and operational requirements for the practical implementation of the systems ensuring this electronic submission and exchange of information (such as interconnectivity, architecture and security). 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) 1013/2006, to an approach to exchange information and documents electronically. This new obligation should therefore become applicable 24 months after the date of application of this Regulation.
(23) Economic operators involved in the transport of waste should be allowed to use the environment as established in Regulation (EU) No 2020/1056 of the European Parliament and of the Council 47 for the exchange of the information required under this Regulation during the transport of the waste, and interoperability of the systems provided for in this Regulation and the environment for the exchange of electronic freight transport information should be ensured.
(24) In order to facilitate the work carried out by customs 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 becomes interoperable with the European Union Single Window Environment for Customs, currently being developed at the Union level 48 , when all required technical work to ensure this operability is completed.
(25) Competent authorities in third countries should be able to issue and exchange the information and documents for 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 this system.
(26) 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 recovery or disposal operation.
(27) 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 when a shipments starts.
(28) 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) 49 , the relevant competent authorities make publicly available by appropriate means information on notifications of shipments they have consented to, as well as on shipments of waste subject to the general information requirements of this Regulation, where such information is not confidential under national or Union legislation.
(29) In order to implement the requirements set out in Article 9(2), (3) and (4) of the Basel Convention, 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. It should also 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. Failing that, the competent authorities of dispatch or destination, as appropriate, should cooperate to ensure the environmentally sound management of the waste concerned.
(30) 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 out an obligation for the notifier to provide an authorised translation of these documents in a language acceptable to these authorities, if they so request.
(31) In order to avoid disruptions of shipments of waste or goods, due to a disagreement between competent authorities on the status of these waste or goods, 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 of Directive 2008/98/EC. It is also necessary to lay out a procedure to resolve disagreements between competent authorities as to whether waste should be subject or not to the notification procedure. To ensure a better harmonisation across the Union of the conditions under which waste should be subject to the notification procedure, the Commission should also be empowered to adopt implementing 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 that waste are 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.
(32) To allow administrations to limit public expenditures linked to the handling of procedures for the shipment of waste and to the enforcement of this Regulation, it is necessary to foresee the possibility that appropriate and proportionate administrative costs linked to these procedures, as well as to supervision, analyses and inspections, be charged to the notifier.
(33) In order to reduce administrative burdens and in exceptional circumstances, linked to specific geographical or demographical situations, Member States may 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 a country that is party to the Agreement on the European Economic Area, as well in a situation where waste is shipped from and treated in the country of dispatch but transits through another Member State.
(34) 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 (European Free Trade Association) country.
(35) Countries that are Parties to the Agreement on the European Economic Area may adopt the control procedures provided for shipments within the Union. In such cases, shipments between the Union and these countries should be subject to the same rules as shipments within the Union.
(36) 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 hard-to-recycle plastic waste.
(37) 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 this waste does not create damages to environment and public health in these countries. Under these rules, export from the Union should be allowed only to countries included in a list drawn up and to be updated by the Commission, when these countries have submitted a request to the Commission stating their willingness to receive certain non-hazardous waste 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. Exports to countries other than those included in that list should be prohibited. To ensure sufficient time for the transition to this new regime, a transitional period of three years after the general date of application of this Regulation should be foreseen.
(38) 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 have generally 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 create damages to environment and public 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 the export of non-hazardous waste from the Union to the country concerned has considerably increased within a short period of time and there is a lack of information available demonstrating the ability of the country concerned to recover this waste in an environmentally sound manner, the Commission should enter into a dialogue with the country concerned and, if the information is not sufficient to prove that the waste is recovered in an environmentally sound manner, be empowered to suspend such exports.
(39) 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 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. It is also necessary to ensure that waste exported from the Union is managed in an environmentally sound manner throughout the period of shipment and including recovery or disposal in the third country of destination. To this end, an obligation should be introduced for exporters of waste to ensure that the facility which receives the waste in the third country of destination is made subject to an independent third party audit, prior to exporting waste to the facility in question. The purpose of this 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 the criteria laid down in this Regulation is not fulfilled by the facility in question, the exporter should not be entitled to export waste to this facility. This obligation should apply with regard to facilities located in all third countries, including those that are member 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 this requirement as regards the “environmentally sound management” of waste. In the absence of common criteria defining the conditions under which waste shall be recovered in the relevant facilities, it is necessary to address the risk that waste exported from the EU to countries belonging to the OECD is mismanaged in specific facilities, and hence facilities located in these countries should be subject to the audit requirements foreseen in this Regulation.
(40) 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 this is not possible during situations of crisis, peacemaking, peacekeeping or war.
(41) 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 50 .
(42) 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.
(43) For environmental reasons and in view of the particular status of the Antarctic, this Regulation shall explicitly prohibit the export of waste to this territory.
(44) To ensure harmonised implementation and enforcement of this Regulation, it is necessary to lay out 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 waste shipments be 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 these plans and, where appropriate, issue recommendations for improvements.
(45) 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. Such evidence may be requested 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 as an illegal shipment and should be dealt with in accordance with the relevant provisions of this Regulation.
(46) Member States should lay down rules on administrative penalties applicable to infringements of this Regulation and ensure that those rules are enforced. The penalties provided for should be effective, proportionate and dissuasive. 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 case of infringements of this Regulation. These 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, insofar as these can be determined. Furthermore, in addition to the administrative penalties required under this Regulation, Member States should ensure that illegal shipment of waste constitutes a criminal offence in serious cases, in accordance with the provisions laid down in Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 51 .
(47) Experience with the application of Regulation (EC) No 1013/2006 showed that the involvement of multiple actors at the national level creates challenges to coordination and cooperation in relation to enforcement. Therefore, Member States should 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.
(48) It is necessary for Member States to cooperate, bilaterally and multilaterally, with one another 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. It should be a forum, inter alia, for sharing information and intelligence on trends in illegal shipments and for exchanging views on enforcement activities, including best practices.
(49) To support and complement the enforcement activities of the Member States, the Commission should be empowered to carry out investigative and coordinating actions in respect of illegal shipments, which might have serious adverse effects on human health or the environment. In carrying out these activities, the Commission should act in full respect of procedural guarantees. 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.
(50) 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 Commission should produce a report every four 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.
(51) 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.
(52) In order to facilitate the exchange of information and cooperation for the implementation of this Regulation, Member States should designate competent authorities and correspondents and notify them to the Commission, which should make this information publicly available.
(53) Member States should be entitled, for the purpose of ensuring the control of waste shipments, to designate specific customs offices of entry and exit for shipments of waste entering and leaving the Union and notify them to the Commission, which should make this information publicly available.
(54) 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 should be delegated to the Commission in respect of Articles 37(13), 40(8) and Article 72 of this Regulation. 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 52 . In particular, 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.
(55) In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission to adopt measures on a harmonised method for calculating the financial guarantee or equivalent insurance, to clarify the classification of waste under this Regulation (including the establishment of contamination level threshold for certain waste) and to clarify for certain types of commodities the distinction between used goods and waste when shipped transboundary. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council 53 .
(56) 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.
(57) 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. The application of several provisions of this Regulation should therefore also be deferred to a date where those preparations can reasonably be finalised. Most provisions of this Regulation will become applicable two months after its entry into force, while the provisions linked to the obligations set out in Article 26 to issue and exchange documents electronically will become applicable two years after this date, and some provisions relating to the export of waste will become applicable three years after this date. 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 when the provisions of this regulation with a delayed application becomes applicable.
(58) Since the objectives of this Regulation cannot be sufficiently achieved by the Member States, but can rather, by reason of the need for harmonization, 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 the 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 that objective.