COMMISSION REGULATION (EC) No 2408/98 of 6 November 1998 amending Annex V to Council Regulation (EEC) No 259/93 on the supervision and control of shipments of waste within, into and out of the European Community (Text with EEA relevance)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to Council Regulation (EEC) No 259/93 of l February 1993 on the supervision and control of shipments of waste within, into and out of the European Community (1), as last amended by Commission Decision 98/368/EC (2), and in particular Article 16(1) thereof,

(1) Whereas, by virtue of Council Decision 93/98/EEC (3), the European Community has been a Party to the Basel Convention on the control of transboundary movements of hazardous wastes and their disposal since 7 February 1994;

(2) Whereas in accordance with Article 16 of Regulation (EEC) No 259/93, as amended by Regulation (EC) No 120/97 (4), Annex V to that Regulation should be amended taking into full consideration those wastes featuring on the list of wastes adopted in accordance with Article 1(4) of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste (5), as amended by Directive 94/31/EC (6), and any lists of wastes characterised as hazardous for the purposes of the Basel Convention;

(3) Whereas, at the Fourth Conference of the Parties to the Basel Convention, a Decision ('Decision IV/9`) was adopted to add new Annexes VIII and IX to the Convention listing respectively wastes characterised as hazardous pursuant to Article 1(1)(a) of the Convention and wastes not covered by Article 1(1)(a) of the Convention;

(4) Whereas, in accordance with Article 18(2)(c) of the Basel Convention, on expiry of six months from the date of circulation of the communication of the adoption by the Depository, those Annexes VIII and IX should become effective for all Parties which have not notified the Depository that they are unable to accept them;

(5) Whereas, in accordance with Article 1(1)(b) of the Basel Convention, wastes that are not covered under Article 1(1)(a) but are defined as, or are considered to be, hazardous wastes by the domestic legislation of a Party shall be 'hazardous wastes` for the purposes of that Convention; whereas Article 4(11) of the Basel Convention provides that nothing in that Convention is to prevent a Party from imposing additional requirements that are consistent with the provisions thereof, and are in accordance with the rules of international law, in order to better protect human health and the environment; whereas, therefore, the amendment to Annex V contained in this Regulation is without prejudice to any future decision concerning Annex V, in particular as regards the adoption of stricter Community measures;

(6) Whereas in order effectively to implement Decisions II/12 and III/1 of, respectively, the second and third Conference of the Parties to the Basel Convention, it is important that all wastes which are classified as hazardous, whether in the context of the Basel Convention or in the context of Community legislation, be included in Annex V; whereas, however, the new Annexes VIII and IX to the Basel Convention provide the most recent classification of hazardous waste; whereas it is considered opportune - at this stage - that in the event of conflict or discrepancy these new Annexes should be complied with; whereas, accordingly, the export of any waste listed in Part 1, list B (Annex IX to the Basel Convention) is not prevented by Annex V to Regulation (EEC) No 259/93 since it has not been characterised as hazardous for the purposes of Article 1(1)(a) of the Basel Convention;

(7) Whereas, in accordance with the introductory wording of Annex VIII to the Basel Convention, Member States may make provisions, in exceptional cases, to determine, on the basis of documentary evidence provided in an appropriate way by the holder, that a specific waste in Annex V is to be excluded from the export ban referred to in Article 16(1) of Regulation (EEC) No 259/93 if it does not display any of the properties listed in Annex III to Directive 91/689/EEC, taking into account, as regards H3 to H8 of the said Annex, the limit values laid down in Council Decision 94/904/EC (7);

(8) Whereas, in accordance with the introductory wording of Annex IX to the Basel Convention, the second indent of Article 1(4) of Directive 91/689/EEC and the introductory wording of Annex II to Regulation (EEC) No 259/93, the fact that a waste is not listed in Annex V, or that it is listed in Part 1, list B, does not preclude, in exceptional cases, characterisation of such a waste as hazardous and therefore subject to the export ban referred to in Article 16(1) of Regulation (EEC) No 259/93, if it displays any of the properties listed in Annex III to Directive 91/689/EEC taking into account, as regards H3 to H8 of the said Annex, the limit values laid down in Decision 94/904/EC;

(9) Whereas in such cases the intended country of importation should be informed and Member States should notify such cases to the Commission which should forward the information to the other Member States and to the Secretariat of the Basel Convention; whereas on the basis of the information provided the Commission may make comments and, where appropriate, submit proposals to the Committee established pursuant to Article 18 of Council Directive 75/442/EEC (8), as last amended by Commission Decision 96/350/EC (9), with a view to adapting Annex V;

(10) Whereas in the light of the foregoing it is necessary to amend Annex V to Regulation (EEC) No 259/93;

(11) Whereas the measures provided for in this Regulation are in accordance with the opinion expressed by the aforementioned Committee established pursuant to Article 18 of Directive 75/442/EEC,

HAS ADOPTED THIS REGULATION:

Article 1

Annex V to Regulation (EEC) No 259/93 is hereby replaced by the Annex to this Regulation.

Article 2

This Regulation shall be without prejudice to any future decision as regards changes to Annex V to Regulation (EEC) No 259/93, in particular with a view to the possibility of adopting stricter Community measures in accordance with Article 1(1)(b) and Article 4(11) of the Basel Convention.

Article 3

This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.

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

Done at Brussels, 6 November 1998.

For the Commission

Ritt BJERREGAARD

Member of the Commission

(1) OJ L 30, 6. 2. 1993, p. 1.

(2) OJ L 165, 10. 6. 1998, p. 20.

(3) OJ L 39, 16. 2. 1993, p. 1.

(4) OJ L 22, 24. 1. 1997, p. 14.

(5) OJ L 377, 31. 12. 1991, p. 20.

(6) OJ L 168, 2. 7. 1994, p. 28.

(7) OJ L 356, 31. 12. 1994, p. 14.

(8) OJ L 194, 25. 7. 1975, p. 39.

(9) OJ L 135, 6. 6. 1996, p. 32.

ANNEX

'ANNEX V

INTRODUCTORY NOTES

1. Annex V shall apply without prejudice to Directive 75/442/EEC, as amended by Directive 91/156/EEC, and Directive EEC.

2. This Annex consists of three parts, whereby Parts 2 and 3 only apply when Part 1 is not applicable. Consequently, to determine if a specific waste is covered by Annex V to Regulation (EEC) No 259/93, one has to first check whether the waste features in Part 1 of Annex V, if this is not the case whether it features in Part 2, and if this is not the case whether it features in Part 3.

Part 1 is divided into two sub-sections: List A enumerating wastes which are classified as hazardous for the purposes of the Basel Convention and therefore are covered by the export ban and List B enumerating wastes which are not covered by the export ban.

Thus, if a waste features in Part 1, one has to check if it is enumerated in List A or in List B. Only if a waste does not feature in either List A or List B of Part 1, one has to check if it features in Part 2 or 3 and if this is the case it is covered by the export ban.

3. Member States may make provisions, in exceptional cases, to determine, on the basis of documentary evidence provided in an appropriate way by the holder, that a specific waste on this Annex is excluded from the export ban referred to in Article 16(1) of Regulation (EEC) No 259/93 as amended, if it does not display any of the properties listed in Annex III to Directive 91/689/EEC, taking into account, as regards H3 to H8 of the said Annex, the limit values laid down in Decision 94/904/EC.

In such a case, the Member State concerned shall inform the envisaged importing country prior to taking a decision. Member States shall notify such cases to the Commission before the end of each calendar year. The Commission shall forward the information to all Member States and to the Secretariat of the Basel Convention. On the basis of the information provided, the Commission may make comments and, where appropriate, submit proposals to the Committee established pursuant to Article 18 of Directive 75/442/EEC with a view to adapting Annex V to Regulation (EEC) No 259/93.

4. The fact that a waste is not listed in this Annex, or that it is listed in Part 1, List B, does not preclude, in exceptional cases, characterisation of such a waste as hazardous and therefore subject to the export ban referred to in Article 16(1) of Regulation (EEC) No 259/93 as amended, if it displays any of the properties listed in Annex III to Directive 91/689/EEC, taking into account, as regards H3 to H8 of the said Annex, the limit values laid down in Decision 94/904/EC, as provided for in Article 1(4), second indent, of Directive 91/689/EEC and in the Header of Annex II to Regulation (EEC) No 259/93.

In such a case, the Member State concerned shall inform the envisaged importing country prior to taking a decision. Member States shall notify such cases to the Commission before the end of each calendar year. The Commission shall forward the information to all Member States and to the Secretariat of the Basel Convention. On the basis of the information provided, the Commission may make comments and, where appropriate, submit proposals to the Committee established pursuant to Article 18 of Directive 75/442/EEC with a view to adapting Annex V to Regulation (EEC) No 259/93;

PART 1

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PART 2

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PART 3

Waste from Annexes III and IV to Regulation (EEC) No 259/93. The wastes numbered AB 130, AC 020, AC 250, AC 260, AC 270 and AD 160 have been deleted since they have been considered, in accordance with the procedure laid down in Article 18 of Directive 75/442/EEC, to be clearly non-hazardous and therefore shall not be subject to the export ban.

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