Regulation on Shipments of Waste: EU Aims to Strengthen its Efficiency

Abstract

The article examines the legislative development of Regulation (EC) No 1013/2006 on shipments of waste. After a brief historical reconstruction of the events that led to the adoption of the above-mentioned Regulation, the article provides a summary of the current context outlined in the Regulation and, in the final part, analyzes in detail the new proposal for the Waste Shipment Regulation adopted by the Commission on November 17, 2021 in light of the amendments proposed by the Council and the European Parliament on November 17, 2023.

Regulation on shipments of waste: EU aims to strengthen its efficiency

The tightening of environmental laws adopted in the 1970s by developed countries led to a significant increase in the cost of disposing of hazardous waste, encouraging the practice of shipping them abroad to countries with a lower level of environmental protection. The explosive growth of maritime transportation has also been a major factor in increasing the accessibility of cross-border shipping of goods (and waste). Thus, several emerging countries, seeking foreign funds, offered themselves as ports of dumping and the commerce of hazardous waste to these locations grew exponentially.

Following the environmental disasters that occurred at the turn of the 1970s and 1980s, in 1989, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (“Basel Convention”) was adopted[1]. The declared objective of the Basel Convention was to address the serious problems associated with the export of hazardous waste to developing countries. In 1992, the Organization for Economic Cooperation and Development (“OECD”) adopted a decision, legally binding on its member states, that established a framework for managing the transboundary movement of recyclable waste within the OECD area in an environmentally and economically efficient manner[2].

With this historical context serving as a backdrop, the European Community's adopted the Regulation (EC) No. 1013/2006 of 14 June 2006 on shipments of waste (“Regulation”)[3].

The Regulation, currently in force, transposes into EU law the provisions of the Basel Convention and the OECD decision, requiring member states to ensure that waste shipments and treatment operations are managed in ways that protect the environment and human health from any adverse effects generated by such waste. In addition, the Regulation aims to foster the recovery of some of this waste by promoting the recycling of selected categories within the EU and in third countries.

The Regulation refers to Directive 2006/12/EC[4] and Directive 2008/98/EC[5], which implement a distinction between types of waste, enucleating the category of “hazardous waste”. More specifically, after defining waste as “any substance or object which the holder discards or intends or is required to discard”, they define “hazardous waste” as those wastes that have one or more of the hazardous characteristics listed in Annex III of Directive 2008/98/EC (by way of example, a waste is defined as hazardous if it qualifies as explosive, flammable, irritant, toxic, carcinogenic, etc.). A distinction that, likewise, was also later adopted by the Italian legislator with the Consolidated Environmental Act[6].

The difference between waste and hazardous waste is the core of the Regulations and the most relevant provisions are:

• general information requirements: exports of waste must be supported by specific documentation, providing information on the characteristics of the waste, its destination, and how it will be disposed of or reused;
• authorization requirements: exports of waste for disposal, both hazardous and non-hazardous, must be authorized by the competent authorities of both the country of origin and the country of destination, while for the shipments of waste for reuse it is sufficient to comply with general disclosure requirements; and
• export prohibitions: it is prohibited to export and import waste for disposal to and from non-EU and countries that are not bound by the Basel Convention. On the other hand, it is permitted, for waste intended for reuse, to import and export to and from countries that are parties to the Basel Convention and members of the OECD.

The new proposed Regulations on shipments of waste

However, since the Regulation came into force in 2006, exports of waste from the EU to non-EU countries - including waste from the textile sector - have increased significantly, particularly to countries that are not OECD members, such as China and India. In addition, the lack of comprehensive provisions to ensure sustainable waste management in receiving countries has weakened the law enforcement effort and caused environmental and public health problems in those countries.

For these reasons, on November 17, 2021, the Commission, prompted by the Parliament and the Council[7], adopted the proposal for a new Regulation on shipments of waste (“Proposal”)[8]. The Council and the European Parliament, after negotiating the terms of the Proposal, reached a provisional agreement on November 17, 2023, a key stage in the EU legislative process which is prodromic to the now imminent formal adoption of the regulation.

The overall purpose of the Proposal, which will replace the Regulation, is to increase the level of environmental and public health protection by limiting the impact of transboundary shipments of waste. The Proposal also responds to the call of the European Green Deal[9] and of the Circular Economy Action Plan[10] to revise the Regulation with the aim of:

• facilitating shipments of waste for reuse and recycling in the EU, promoting and developing the circular economy;
• limiting the export of waste to third countries; and
• countering the illegal shipments of waste.

The proposed rules improve the procedures in order to promote more sustainable waste management and increase raw material recycling rates.

A set of rules has specifically been proposed to increase recycling rates of raw materials, including:

• a prohibition on the export of all waste destined for disposal within the EU, unless permitted and authorized under the strict conditions of the prior written notification and consent procedures and in duly justified cases;
• less rigorous procedures for shipments of waste destined for recycling operations; and
• the digitization and speed-up of prior written notification and consent procedures, which will have to be submitted and exchanged through a central electronic system managed by the Commission and will have to meet specific deadlines and time limits in order to ensure that disproportionate delays no longer occur.

The Proposal maintains the prohibition for member states to export waste destined for disposal to third countries and to export hazardous waste destined for recycling to non-OECD countries. For exports outside the member states, the Council and Parliament agreed that waste management facilities in the country of destination must be audited by independent parties. Only if audits show that the facilities treat waste properly, the operators will be allowed to export waste to those facilities. The goal of the Proposal is to ensure that exports of waste from the EU to non-EU countries take place only if it is ensured that the recipient country has environmentally sound management practices and is able to treat the waste in a sustainable manner.

The Proposal also introduces tighter rules on the export of plastic waste to third countries. In particular, there is a prohibition on the export of non-hazardous plastic waste to non-OECD countries, while exports of plastic waste to OECD countries would continue to be allowed, although they would follow a more rigid procedure.

Finally, to face illegal waste trade, the proposed rules aim to support transnational investigations of waste trafficking by creating an EU-wide guarantee group to increase coordination with international partners as well, while calling on member states to establish effective, proportionate and dissuasive sanctions in the event of violations of the provisions set out in the Proposal.

Next steps

The preliminary agreement reached by the Parliament and the Council will now be submitted for approval to the member states' representatives in the Council and to the Parliament's Committee on Environment. If approved, the text will then have to be formally adopted by the two institutions (Council and Parliament) before the regulation can be published in the Official Journal of the EU for its entry into force twenty days after publication in the Official Journal.

[1] Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, Basel, 22 March 1989.

[2] Decision on the Control of Transboundary Movements of Wastes Destined for Recovery Operations, OECD, 30 March 1992.

[3] Regulation (EC) No 1013/2006 of the European Parliament and of the Council on shipments of waste, Brussels, 14 June 2006.

[4] Directive 2006/12/EC of the European Parliament and of the Council on waste, Brussels, 5 April 2006.

[5] Directive 2008/98/EC of the European Parliament and of the Council on waste and repealing certain Directives, Brussels, 19 November 2008.

[6] Decreto Legislativo 3 aprile 2006, n. 152.

[7] See https://www.europarl.europa.eu/doceo/document/TA-9-2021-0040_EN.html and https://data.consilium.europa.eu/doc/document/ST-13852-2020-INIT/en/pdf.

[8] Proposal for a regulation of the European Parliament and of the Council on shipments of waste and amending Regulations (EU) No 1257/2013 and (EU) No. 2020/1056, Brussels, 17 November 2021.

[9] A Green Deal Industrial Plan for the Net-Zero Age, COM/2019/640, Brussels, 11 December 2019.

[10] A new Circular Economy Action Plan, COM/2020/98, Brussels, 11 March 2020.