# EUR-Lex - 52013PC0516 - EN

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# 52013PC0516

**Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EC) No 1013/2006 on shipments of waste /* COM/2013/0516 final - 2013/0239 (COD) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

The Waste Shipment
Regulation (Regulation (EC) No 1013/2006[1],
"WSR") lays down requirements for shipments of waste both within the
EU and between the EU and third countries, in order to protect the environment.
The WSR has stricter rules for hazardous waste than for non-hazardous waste.

All exports of hazardous waste to countries
outside the OECD and all exports of waste for disposal outside the EU/EFTA are
prohibited (Articles 34 and 36 of the WSR). The WSR's ban on exports of
hazardous waste outside the OECD implements the UN Basel Convention's export
ban from 1995. Non-hazardous waste can be exported for recovery outside the
OECD provided the waste will be managed in an environmentally sound manner, i.e.
in a way which is broadly equivalent to rules applied in the EU[2].

Within the EU, all shipments of waste for
recovery shall be entitled to free movement.[3]
For non-hazardous waste, such shipments are not subject to any prior
notification and only have to fulfil general information provisions (Titles
II-IV of the WSR). Shipments of hazardous waste for recovery and shipments of
waste for disposal are both subject to prior written notification and consent.
However, as regards shipments of waste for recovery, the competent authorities
may only oppose a shipment based on the environmental grounds set out by the
WSR (Article 12).

Specific obligations are laid down
concerning a duty to take back waste shipments which are found to be illegal or
which cannot be completed as envisaged (Articles 22-25 of the WSR).

Article 50 of the WSR contains a general
provision on enforcement stipulating that Member States shall provide for
inspections of establishments and undertakings in accordance with the
inspection requirements in Directive 2008/98/EC (Waste Framework Directive),
and that Member States may check transports by road, in ports etc. or at a
later stage when the waste has already arrived at a recovery or disposal
facility. Controls are otherwise left to Member States' discretion. The WSR
does not contain any specific provisions on how inspections shall be carried
out: it only stipulates that "Checks on shipments shall include the
inspection of documents, the confirmation of identity and, where appropriate,
physical checking of the waste."

As a result of this general formulation of
inspection requirements in the WSR, there are large differences between Member
States. Some have developed thorough, well-functioning inspection systems
targeting either waste shipments in ports or at the sites of waste producers
and collectors, while others have significant problems with enforcement and
lack adequate structures and resources to control waste streams and carry out
inspections. This situation leads to 'port hopping', i.e. exporters of illegal
waste choose to send their waste through Member States with the least controls.
If enforcement in one Member State is stepped up, illegal exporters move their
exports to another Member State. Effectively preventing illegal waste shipments
can therefore only be achieved if sufficient controls are carried out in all
Member States.

The most problematic illegal waste
shipments are those concerning hazardous waste and waste which is illegally
sent for dumping or sub-standard treatment. The dumping or substandard
treatment of waste often has severe impacts on the environment and human health
for populations surrounding the disposal/treatment area. Leaks from discarded
waste also harm soils and water streams, and produce air pollution, through emissions
of e.g. heavy metals and persistent organic pollutants. If recycling standards and capacity in the countries
of destination are not adequate, potential environmental and health hazards are
simply being exported to other parts of the world. This
also contributes
to global warming and ozone depletion.

This legislative proposal will support and
steer Member States’ inspections in order to target the problematic and
high-risk waste streams described above. Risk assessments shall be carried out by
Member States, covering specific waste streams and sources of illegal
shipments, and considering intelligence–based data, such as police
investigations and analyses of criminal activities. Every year priorities for
inspections shall be selected based on these risk assessments and published in
the annual inspection plans. These plans shall be made available to the public.
Inspectors shall take the inspection plans into account and require evidence
from suspected illegal waste exporters according to the relevant provisions in
the proposal.

Illegal waste shipments are a serious and
frequent problem. The export bans for hazardous waste and waste for disposal under
the WSR are often circumvented. Exports of hazardous waste are often labelled
as second-hand goods and waste for disposal as waste going to recovery. This is
confirmed by the joint inspections carried out by the "network for the
implementation and enforcement of environmental law, trans-frontier shipments
of waste-cluster" (IMPEL-tfs) and supported by the Commission; this revealed
very high rates of non-compliance with the WSR due to illegal waste shipments.
As part of the joint inspections during the period October 2008-November 2010, 22
Member States checked and reported on transports by road and in ports (over
20,000 transport inspections and over a hundred company inspections).[4] Taking into account the total
number of inspected waste shipments from and within the EU during the period
(3,454) and the number of violations (863), the overall non-compliance rate can
be estimated to be 25%.

In 2011 a study estimated the tonnage of
illegal shipments as a proportion of the total amount of waste shipments within
and out of the EU.[5]
The study concluded that if only 1% of all waste shipments were illegal, the
total tonnage of illegal waste shipments would amount to 2,8 million tonnes per
year.

Illegal waste shipments out of the EU frequently
stem from uncontrolled collection, storage and sorting facilities, where
illegal operators get hold of the waste and ship it illegally to developing
countries. A 2011 Europol study[6]
concluded that intermediate storage sites are often used to disguise the
ultimate destinations of waste and to frustrate law enforcement efforts to
identify source companies.

The ports in the north-western part of the EU
(Antwerp, Hamburg, Le Havre and Rotterdam) play an important role in the export
of waste (e-waste, end-of-life vehicles, plastics, paper and various types of
hazardous waste) to countries in Africa and Asia. As many of these ports see large
tonnages of waste (both lawfully and illegally) shipped out of the EU, they
have more frequent controls and, for this reason, probably detect more illegal
waste shipments.

Effective enforcement and inspections of
waste shipments would not only help prevent the serious environmental and
health impacts stemming from illegal waste shipments, but also save high costs
and result in direct economic benefits for Member States and industry.
Financial benefits stemming from better enforcement include avoided clean-up
and repatriation costs. For instance, a recent study showed that stricter
enforcement in the port of Rotterdam resulted in increased quality and quantity
of waste recycled, as waste was routed via legal channels to facilities with
better treatment techniques. Reinforced inspections in the port of Rotterdam also led to the creation of 22 jobs – in customs, inspections and waste
treatment plants[7].

Council conclusions of 3 June 2010 invited
the Commission, inter alia, to consider strengthening EU requirements on
inspections and spot checks carried out under the WSR. In response to this, the
Commission has assessed the issue in more detail and has prepared an ex ante impact
assessment, in line with its guidelines on impact assessments.

2.           RESULTS OF CONSULTATIONS
WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS

On 25 January 2011, the Commission launched
an on-line stakeholder consultation via its EUROPA website in line with the
minimum standards for consultation. The consultation was open to all stakeholders
for eleven weeks, accessible via the single access point on the internet.[8] During the consultation, 65
contributions were received from 18 Member State authorities, one EEA country
authority, 25 industry organisations, five private companies, two public
organisations, three NGOs and 11 individuals[9].
The stakeholders expressed wide support in favour of EU legislative
requirements on waste shipment inspections (90% of respondents).

During a 2012 public consultation on
burdensome legislative acts for SMEs, a concern was raised that the WSR has not
led to the creation of a common market for waste utilisation and recycling due
to differences in implementation and interpretation across Member State, and
that more should be done to ensure uniform implementation of the WSR with more
focus on hazardous waste and less on unproblematic waste. Another concern
raised was that there should be further simplification of procedures to move
waste between Member States, leaving the inspection and evaluation of waste
treatment facilities to the authorities of the receiving Member State.

This legislative proposal on waste shipment
inspections aims to help ensure more uniform implementation of the WSR through
establishing minimum inspection requirements throughout the EU with a focus on
problematic waste streams.[10]
Under the WSR, there already is a simplified procedure
for shipments of waste for recovery compared to shipments of waste for
disposal. However, the lack of harmonised inspection procedures undermines a
proper functioning of the internal market with respect to waste shipments. A
proper functioning of the internal market requires that inspections of waste
shipments are carried out effectively throughout the EU. The current lack of a
level playing field due to wide disparities in enforcement practices puts
law-abiding businesses at an economic disadvantage. The high rates of illegal
waste shipments undermine the legitimate waste treatment and disposal
industries. If the WSR was applied properly throughout the EU, this would
reinforce confidence and trust in the waste shipment system among economic
operators. Companies in the recycling and waste management sector would find
incentives to invest and create new jobs.

The inspection of waste treatment
facilities is a task for the authorities in the Member State where they are
located. However, it is necessary for the competent authority in the Member State of dispatch to be able to evaluate how the waste will be managed by the
facility in the receiving Member State. For example, the dispatch authority may
after having examined the nature of the waste conclude that it cannot be
managed in accordance with Articles 11-12 of the WSR by the facility in the
receiving Member State. This evaluation has to be made before the shipment
leaves the dispatch country, otherwise illegal shipments cannot be prevented.
If the shipment is illegal, the dispatch country may have to pay the bill for, inter
alia, taking the waste back. The evaluation of waste treatment
facilities cannot therefore be left solely to the authorities of the receiving Member State.

The Commission's ex ante impact assessment on
this legislative proposal examined several options to strengthen inspections
and enforcement of the WSR. The EU "network for the implementation and
enforcement of environmental law, trans-frontier shipments of
waste-cluster" (IMPEL-tfs), authorities in Member States and various
groups of stakeholders were closely involved in the preparation of studies that
were conducted to support the assessment.

The assessment concluded that a combination
of EU legislative requirements and guidance would be the most effective option
to address the problems related to illegal waste shipments. This option would
also have the lowest net costs and the most positive economic, social and
environmental impacts. It would result in significant cost savings for clean-up
and repatriation as well as indirect cost savings for Member States where waste
transits. Industry would also benefit from harmonisation of legislation. Higher
quantities of waste routed through legal channels would lead to optimised
processes, better sorting techniques and better waste quality. A legal
requirement to reinforce inspections could also create new jobs and avoid
relocation of jobs outside the EU.

Costs for Member States that lack adequate
inspection systems (e.g. for hiring staff, and upgrading infrastructure and
inspections) have been estimated as part of the impact assessment. These costs would be around €4 million/year for
the whole EU, but could be
outweighed by the economic and social benefits and/or financed
by collected fines. According to the impact assessment, the additional
inspections required would break even if less than 1%
of all the yearly inspections would result in average fines.

The impact assessment found that inspection
planning is the most important of the proposed legislative measures. The second
most important contributor to solving the problem would be the possibility for
competent authorities in Member States to require evidence from suspected
illegal waste exporters in order to check the legality of shipments, and then
in descending order, controls of upstream facilities and training for
authorities.

3.           LEGAL ELEMENTS OF THE
PROPOSAL

Article 1(3)(b) of this proposal amends Article 50 of the WSR by
introducing requirements for inspection planning for waste shipments.

Article 1(3)(c) introduces in Article 50, the possibility for the
competent authorities in Member States to require evidence from suspected
illegal waste exporters in order to check the legality of shipments. Such
evidence may concern whether the substance or object is "waste" or
not, whether the shipment is destined for recovery or disposal, or the nature
of the specific waste treatment methods and standards applied by the facility in
the country of destination, with a view to assessing compliance with Article 49
of the WSR.

Article 1(2) and 1(4) align the WSR with Article 290 of the Treaty
on the Functioning of the European Union in line with the Commission's
commitment to review provisions attached to the regulatory procedure in each
instrument it intends to modify.

Article 2 of this proposal stipulates that the Regulation shall enter
into force on the twentieth day following that of its publication in the
Official Journal and apply from [1 January xxxx or 1 July xxxx which ever date occurs first provided
this date is at least six months from the entry into force of the Regulation].

4.           BUDGETARY IMPLICATION

Not applicable.

5.           OPTIONAL ELEMENTS

Not applicable.

2013/0239 (COD)

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL

amending Regulation (EC) No 1013/2006 on
shipments of waste

THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 192 (1) thereof,

Having regard to the proposal from the
European Commission,

After transmission of the draft legislative
act to the national Parliaments,

Having regard to the opinion of the
European Economic and Social Committee[11],

Having regard to the opinion of the
Committee of the Regions[12],

Acting in accordance with the ordinary
legislative procedure,

Whereas:

(1)       Regulation (EC) No
1013/2006 of the European Parliament and of the Council of 14 June 2006 on
shipments of waste[13]
lays down requirements for shipments of waste both within the Union and between
the Member States and third countries, in order to protect the environment.
However, gaps have been identified in the enforcement and inspections carried
out by the competent authorities in Member States due to, inter alia, a
lack of clear provisions in the Regulation on these matters.

(2)       Adequate planning of waste
shipment inspections is necessary to establish the capacity needed for waste
shipment inspections and effectively prevent illegal shipments. The provisions
on enforcement and inspections in Article 50 of Regulation (EC) No 1013/2006 should
therefore be strengthened with a view to ensuring regular and consistent planning
of inspections. Planning should include a number of key elements, including
risk assessments, strategies, objectives, priorities, numbers and types of
planned inspections, assignment of tasks, means of cooperation between
authorities and provisions on training of inspectors.

(3)       Diverging
rules exist throughout the Union as regards the
possibility for competent authorities in Member States to require evidence from
waste exporters in order to check the legality of shipments. Such evidence may
concern whether the substance or object is "waste"
within the meaning of Regulation (EC) No 1013/2006 or whether
the waste will be shipped to environmentally sound facilities according to
Article 49 of the Regulation. Article 50 of the Regulation should therefore provide
the possibility for competent authorities in Member
States to require evidence from suspected illegal waste exporters in order to
check the legality of shipments.

(4)       Illegal waste shipments
frequently stem from uncontrolled collection, storage and sorting facilities. Inspection
requirements should therefore be introduced for such waste sites.

(5)       As a consequence of the
entry into force of the Lisbon Treaty, the powers
conferred on the Commission under Regulation (EC) 1013/2006 should be aligned to
Article 290 of the Treaty.

(6)       The
power to adopt acts in accordance with Article 290 of the Treaty should be
delegated to the Commission with the objective to adopt technical and
organisational requirements for the practical implementation of electronic data
interchange. It is of particular importance that the Commission carry out
appropriate consultations during its preparatory work, including at expert
level.

(7)       The
Commission, when preparing and drawing-up delegated acts, should ensure a
simultaneous, timely and appropriate transmission of relevant documents to the
European Parliament and Council.

(8)       The
Commission may adopt guidelines for the application of Article 12(1)(g) of the
Regulation; guidelines on the application of Article 15 of the Regulation;
guidelines for the cooperation of competent authorities with regard to illegal
shipments; further guidance concerning the use of languages; further
clarification of the procedural requirements of Title II of the Regulation as
regards their application to exports, imports and transit of waste from, to and
through the Community.

(9)       Regulation
(EC) No 1013/2006 should therefore be amended accordingly.

(10)     This Regulation should
apply from 1 January [xxxx] or 1 July [xxxx]
which ever date occurs first provided this date is at least six months from the
entry into force of the Regulation, in order to allow sufficient time for Member States and businesses to prepare for the application of the
measures required under Article 50 of the Regulation.

HAVE ADOPTED THIS REGULATION:

Article 1

Regulation (EC) No 1013/2006 is amended as
follows:

(1) in Article 2, the following
paragraph 36 is added:

'36.    're-use' means
any operation by which products or components that are not waste are used again
for the same purpose for which they were conceived.

(2) in Article 26, the following
paragraph 5 is added

'5.      The Commission
shall be empowered to adopt delegated acts in
accordance with Article 59 concerning technical and organisational requirements for the practical
implementation of electronic data interchange for the submission of documents
and information.'

(3) Article 50 is amended as follows:

(a) paragraph 2 is replaced by the
following:

'2.      Member States shall, by way of
measures for the enforcement of this Regulation, provide, inter alia,
for inspections of establishments and undertakings in accordance with Article
34 of Directive 2008/98/EC of the European Parliament and of the Council of 19
November 2008 on waste[14],
and for spot checks on shipments of waste or on the related recovery or
disposal.'

(b) the following paragraph 2a is inserted:

'2a.    Member States shall ensure that their
competent authorities establish plans for inspections aimed at checking
compliance with this Regulation. The plans shall cover the entire geographical
area of the Member State concerned and shall apply to all waste shipment inspections
carried out pursuant to paragraph 2, including inspections of establishments
and undertakings, road- and railway transports and consignments in ports. Those
plans shall include the following:

(a)
strategy and objectives for waste shipment
inspections referring to the necessary human, financial and other resources;

(b)
a risk assessment covering specific waste
streams and sources of illegal shipments, and considering intelligence-based
data, such as police investigations and analyses of criminal activities;

(c)
priorities and a description of how these priorities
have been selected based on the strategies, objectives and risk assessment;

(d)
information on the numbers and types of planned
inspections concerning waste sites, road and railway transports and consignments
in ports;

(e)
an assignment of tasks to each authority
involved in waste shipment inspections;

(f)
means of cooperation between different
authorities involved in inspections; and

(g)
an assessment of the need for training of
inspectors on technical or legal matters relating to waste management and waste
shipments and provisions on regular training programmes.

The plans shall be reviewed at least
annually and, where appropriate, updated. The review shall evaluate to which
extent the objectives and other elements of the plans have been implemented.

The plans shall be made publicly available
by the competent authority in accordance with Directive 2003/4/EC of the European
Parliament and of the Council of 28 January 2003 on public access to
environmental information[15]'.'

(c) the following
paragraphs 4a and 4b are inserted:

'4a.    In order to ascertain that a shipment
does not contain waste within the meaning of Article 2(1), the competent
authority may:

(i)      verify that appropriate protection of
the shipment against damage during transportation, loading and unloading has
been foreseen; and

(ii)      in cases of a suspected illegal shipment,
require the person in charge of the shipment to submit a copy of the invoice
and contract relating to the sale or transfer of ownership of the substance or
object, which states that it is destined for re-use within the meaning of
Article 2(36) and to prove that it is fully functional.

4b.    In order to ascertain that a shipment
is destined for recovery operations which are in accordance with Article 49,
the competent authority may in cases of a suspected illegal shipment require
the person in charge of the shipment to submit a contract, letter or other
document signed by the recovery facility specifying the waste treatment
methods, technologies and standards applied by the recovery facility in the
country of destination.'

(4) Articles 59
and 59a are replaced by the following:

Article 59

Exercise
of the delegation

1.
The power to adopt delegated acts is conferred
on the Commission subject to the conditions laid down in this Article.

2.
The delegation of power referred to in Article
26(5) shall be conferred on the Commission for an indeterminate period of time
from the date of entry into force of this Regulation.

3.
The delegation of power referred to in Article
26(5) may be revoked at any time by the European Parliament or by the Council.
A decision of revocation shall put an end to the delegation of the power
specified in that decision. It shall take effect the day following the
publication of the decision in the Official Journal of the European Union or at
a later date specified therein. It shall not affect the validity of any
delegated acts already in force.

4.
As soon as it adopts a delegated act, the
Commission shall notify it simultaneously to the European Parliament and to the
Council.

5.
A delegated act adopted pursuant to Article
26(5) shall enter into force only if no objection has been expressed either by
the European Parliament or the Council within a period of two months of notification
of that act to the European Parliament and the Council or if, before the expiry
of that period, the European Parliament and the Council have both informed the
Commission that they will not object. That period shall be extended by two months
at the initiative of the European Parliament or the Council.

Article 59a

Committee
procedure

1. The Commission shall be assisted by the
Committee established by Article 39 of Directive 2008/98/EC.

That Committee shall be a committee within
the meaning of Regulation (EU) No 182/2011.

2. Where reference is made to this
paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.'

Article 2

This Regulation shall enter into force on
the twentieth day following
that of its publication in the Official Journal of the European Union.
It shall apply from [1 January xxxx or 1 July xxxx which
ever date occurs first provided this date is at least six months from the entry
into force of the Regulation].

This Regulation shall be binding in its
entirety and directly applicable in all Member States.

Done at Brussels,

For the European Parliament                       For
the Council

The President                                                 The
President

[1]               Regulation
(EC) no 1013/2006 of the European Parliament and of the Council on shipments of
waste, OJ L 190, 12.7.2006, p.1.

[2]               Articles 18, 49 and Annex VII
of the WSR. See also Commission
Regulation (EC) No 674/2012 of 23 July 2012 amending Regulation (EC) No 1418/2007 concerning the
export for recovery of certain waste to certain non-OECD countries.

[3]               Mixed
municipal waste collected from private households, including where such
collection also covers waste from other producers (waste entry 20 03 01), are
subject to the same provisions as waste for disposal, Article 3(5) of the WSR.
Incoming shipments to incinerators classified as recovery are subject to
specific rules, Article 16 of Directive 2008/98/EC (“the Waste Framework
Directive”).

[4]               IMPEL's detailed report from
the joint inspections is available on: http://impel.eu/wp-content/uploads/2012/01/IMPEL-TFS-EA-II-Project-_Final-report-adopted-v1-4.pdf.

[5]               Assessment and guidance for
the implementation of EU waste legislation in Member States, BiPRO, 16 November
2011, http://ec.europa.eu/environment/waste/shipments/reports.htm.

[6]               Europol's 'EU organised crime
assessment', 28 April 2011, p. 30. https://www.europol.europa.eu/.

[7]               Study 'Implementation of EU
waste legislation for green growth', BioIntelligence Service, 2011, http://ec.europa.eu/environment/waste/studies/pdf/study%2012%20FINAL%20REPORT.pdf.

[8]               The stakeholder consultation
was partly based on two studies, 'Inspection requirements for waste shipments',
final report 12 August 2009, Biointelligence http://ec.europa.eu/environment/waste/shipments/reports.htm; and 'Environmental, social and economic
impact assessment of possible requirements and criteria for waste shipment
inspections, controls and on-the-spot-checks', final report 4 June 2010,
Biointelligence SA http://ec.europa.eu/environment/waste/shipments/reports.htm.

[9]               http://ec.europa.eu/environment/waste/shipments/news.htm.

[10]             See also the Commission’s Communication on the
follow-up to the ‘TOP10’ consultation of SMEs on EU regulation.

[11]             OJ C , , p. .

[12]             OJ C , , p. .

[13]             OJ L 190, 12.7.2006, p.1.

[14]             OJ L 312, 22.11.2008, p.3.

[15]             OJ L 41, 14.2.2003, p. 26.