COMMON POSITION (EC) No 48/98 adopted by the Council on 4 June 1998 with a view to adopting Council Regulation (EC) No . . ./98, of . . . establishing common rules and procedures to apply to shipments to certain non-OECD countries of certain types of waste (98/C 333/01)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Articles 113 and 130s(1) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the Economic and Social Committee (1),

Acting in accordance with the procedure laid down in Article 189c of the Treaty (2),

Whereas Article 1(3)(a) of Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community (3) excludes from the scope of application of that Regulation shipments of waste destined for recovery only and listed in Annex II thereto, except as provided for in, inter alia, Article 17(1), (2) and (3);

Whereas, in accordance with Article 17(1) of Regulation (EEC) No 259/93, the Commission has notified to every country to which the OECD Council Decision of 30 March 1992 on the control of transfrontier movements of waste destined for recovery operation does not apply the list of waste set out in Annex II to the said Regulation and has requested confirmation that such waste is not subject to control in the country of destination, or has asked that such countries indicate whether such waste should be subject to the control procedures which apply to waste listed in Annex III or IV to the said Regulation or to the procedure laid down in Article 15 thereof;

Whereas certain countries have indicated that such waste should be subject to one or other of those control procedures and the Commission on 20 July 1994, pursuant to the provisions of Article 17(3) of the said Regulation adopted Decision 94/575/EC (4) to determine the appropriate control procedures;

Whereas the second subparagraph of Article 17(1) of Regulation (EEC) No 259/93 provides that if such confirmation is not received, the Commission is to make appropriate proposals to the Council; whereas it is therefore necessary to establish, on a Community-wide basis, a system to regulate trade in such waste from the Community by establishing the appropriate common rules and procedures relating to exports thereof;

Whereas, in the case of countries which have replied that they do not wish to receive some or all types of waste listed in Annex II to the said Regulation, their will must be respected and therefore those types of waste cannot be exported to those countries;

Whereas, in the case of countries which have not replied, silence cannot be taken as implying consent and therefore it is appropriate to adopt a similar regulatory framework in order to enable such countries to evaluate such shipments on a case-by-case basis;

Whereas, in the case of countries which have replied that they do not wish to receive some or all types of waste listed in Annex II or have not replied, the possibility exists that they will change their position, or will reply in the future, and a mechanism must, therefore, exist within a comitology procedure, to change this Regulation;

Whereas the Commission will, as soon as possible, and at the latest before 1 July 1998, review and amend Annex II to Regulation (EEC) No 259/93 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), and any list of wastes characterised as hazardous for the purposes of the Basle Convention, and will adapt Regulation (EEC) No 259/93 accordingly;

Whereas with regard to shipments to ACP countries, Article 39 of the Fourth ACP-EC Convention prohibits exports of all waste listed in Annexes I and II of the Basle Convention; whereas, furthermore, certain items of such waste can be found in Annex II to Regulation (EEC) No 259/93; whereas, in these circumstances and in order to respect the Community's international obligations shipments of such items to ACP countries have to be prohibited;

Whereas it must be made clear that such items are excluded from the scope of this Regulation;

Whereas the arrangements covered by this Regulation should be subject to periodic review by the Commission,

HAS ADOPTED THIS REGULATION:

Article 1

The export of waste listed in Annex II to Regulation (EEC) No 259/93 and mentioned in Annex A to this Regulation to countries listed in said Annex A shall be prohibited.

Article 2

The control procedure laid down in Article 15 of Regulation (EEC) No 259/93 shall apply to exports to the countries listed in Annex B to this Regulation with respect to those categories of waste destined for recovery only and listed in Annex II to Regulation (EEC) No 259/93.

Article 3

In accordance with Article 39 of the Fourth ACP-EC Convention shipments of waste listed in Annex C to this Regulation to ACP countries are prohibited.

Article 4

1. On request by the country of destination the control procedure applicable to that country under this Regulation shall be amended in accordance with this Article.

2. The Commission shall determine, in accordance with the procedure laid down in Article 18 of Council Directive 75/442/EEC of 15 July 1975 on waste (6), which of the control procedures shall apply, that is to say:

(i) the procedure applicable to wastes listed in Annex III or Annex IV to Regulation (EEC) No 259/93, or

(ii) the procedure laid down in Article 15 of Regulation (EEC) No 259/93, or

(iii) none of the procedures referred to in paragraphs (i) and (ii) above.

3. The Commission shall inform the Member States of the change of position of a country of destination within 21 days of receipt of the request from that country and shall submit its proposed determination to the committee established under said Article 18 of Directive 75/442/EEC as soon as possible with three months of receipt of the request.

4. Furthermore, where there is any other exceptional change of circumstances, for example war, natural disaster or a trade embargo decided by the United Nations, which would affect the control procedure applicable under this Regulation, this control procedure may be amended. The Commission may determine, after consultation with the country of destination, as appropriate, and in accordance with the procedure laid down in Article 18 of Directive 75/442/EEC, which of the procedures referred to in paragraph (2) of this Article shall apply.

5. The Commission shall, in accordance with the procedure laid down in Article 18 of Directive 75/442/EEC, regularly review Annexes A, B and C of this Regulation, in order to bring them into line with the amendments made to the Annexes to Regulation (EEC) No 259/93 or, in relation to said Annex C, any changes to Annexes I and II of the Basle Convention or to the Fourth ACP-EC Convention.

Article 5

The control procedures established by this Regulation shall be subject to periodic review by the Commission and for the first time no later than 31 December 1998, taking into account the experience gained. If the results of the review lead to the conclusion that it would be appropriate, the Commission may, without prejudice to the provisions of Article 4, make new proposals to the Council.

Article 6

This Regulation shall enter into force on the 90th 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 . . .

For the Council

The President

(1) OJ C 214, 10.7.1998, p. 74.

(2) Opinion of the European Parliament of 17 July 1997 (OJ C 286, 22.9.1997, p. 231), Council Common Position of 4 June 1998 and European Parliament Decision of . . . (not yet published in the Official Journal).

(3) OJ L 30, 6.2.1993, p. 1. Regulation as last amended by Regulation (EC) No 120/97 (OJ L 22, 24.1.1997, p. 14).

(4) OJ L 220, 25.8.1994, p. 15.

(5) OJ L 377, 31.12.1991, p. 20. Directive amended by Directive 94/31/EC (OJ L 168, 2.7.1994, p. 28).

(6) OJ L 194, 25.7.1975, p. 39. Directive as last amended by Commission Decision 96/350/EC (OJ L 135, 6.6.1996, p. 32).

ANNEX A

Countries and territories which have indicated to the Commission that they do not wish to receive shipments for recovery of certain types of waste listed in Annex II to Council Regulation (EEC) No 259/93 (1)

>TABLE>

1. in section GA ('Metal and metal-alloy wastes in metallic, non-dispersible form`):

(a) the following ferrous waste and scrap of iron and steel:

>TABLE>

(b) the following waste and scrap of non-ferrous metals and their alloys:

>TABLE>

2. in section GB ('Metal bearing wastes arising from melting, smelting and refining of metals`):

>TABLE>

3. in section GC ('Other wastes containing metals`):

>TABLE>

4. all types in section GE ('Glass waste in non-dispersible form`)

5. in section GG ('Other wastes containing principally inorganic constituents, which may contain metals and organic materials`):

>TABLE>

6. all types in section GI ('Paper, paperboard and paper product waste`)

7. in section GJ ('Textile waste`):

>TABLE>

>TABLE>

>TABLE>

1. in section GA ('Metal and metal-alloy wastes in metallic, non dispersible form`):

(a) the following ferrous waste and scrap of iron and steel:

>TABLE>

(b) the following waste and scrap of non-ferrous metals and their alloys:

>TABLE>

2. in section GC ('Other wastes containing metals`):

>TABLE>

>TABLE>

CHINA:

1. in section GA ('Metal and metal-alloy wastes in metallic, non-dispersible form`):

(a) the following waste and scrap of non-ferrous metals and their alloys:

>TABLE>

2. In section GC ('Other wastes containing metals`):

>TABLE>

3. ALL types of waste in section GD ('Wastes from mining operations: these wastes to be in non-dispersable form`)

4. ALL types of waste in section GG ('Other wastes containing principally inorganic constituents, which may contain metals and organic materials`)

5. in section GJ ('Textile wastes`):

>TABLE>

6. in section GM ('Wastes arising from the agro-food industries`):

>TABLE>

7. ALL types in section GO ('Other wastes containing principally organic constituents, which may contain metals and inorganic materials`)

COLOMBIA:

1. in section GA ('Metal and metal-alloy wastes in metallic, non-dispersible form`):

(a) the following waste and scrap of non-ferrous metals and their alloys:

>TABLE>

2. in section GB ('Metal bearing wastes arising from melting, smelting and refining of metals`):

>TABLE>

3. in section GC ('Other wastes containing metals`):

>TABLE>

4. in section GD ('Waste from mining operations: these wastes to be in non-dispersible form`):

>TABLE>

5. in section GG ('Other wastes containing principally inorganic constituents, which may contain metals and organic materials`):

>TABLE>

6. in section GH ('Solid plastic waste`):

>TABLE>

7. in section GJ ('Textile wastes`):

>TABLE>

8. in section GK ('Rubber wastes`):

>TABLE>

9. in section GO ('Other wastes containing principally organic constituents, which may contain metals and inorganic materials`):

>TABLE>

>TABLE>

PAKISTAN:

1. in section GK ('Rubber wastes`):

>TABLE>

2. in section GM ('Waste arising from agro-food industries`):

>TABLE>

3. in section GN ('Waste arising from tanning and fellmongery operations and leather use`):

>TABLE>

>TABLE>

>TABLE>

1. all types in section GI ('Paper, paperboard and paper product wastes`)

2. in section GJ ('Textile wastes`):

>TABLE>

3. in section GL ('Untreated cork and wood wastes`):

>TABLE>

>TABLE>

>TABLE>

1. in section GA ('Metal and metal-alloy waste in metallic non-dispersible form`):

>TABLE>

2. Section GH ('Solid plastic wastes`)

3. in section GK ('Rubber wastes`):

>TABLE>

>TABLE>

in section GJ ('Textile wastes`):

>TABLE>

>TABLE>

>TABLE>

1. in section GA ('Metal and metal-alloy wastes in metallic, non-dispersible form`):

(a) the following waste and scrap of precious metals and their alloys:

>TABLE>

(b) the following ferrous waste and scrap of iron or steel:

>TABLE>

(c) the following waste and scrap of non-ferrous metals and their alloys:

>TABLE>

2. in section GC ('Other wastes containing metals`):

>TABLE>

3. in section GD ('Waste from mining operations: these wastes to be in non-dispersible form`):

>TABLE>

>TABLE>

TAIWAN:

in section GA ('Metal and metal-alloy wastes in metallic, non-dispersible form`):

>TABLE>

>TABLE>

(1) Further updating of Annexes A and B could be necessary in view of future changes in the position of countries of destination. These changes will be reflected in the final text of the Regulation.

ANNEX B

Countries and territories which have not responded to the Commission's communication on shipments for recovery of certain types of waste listed in Annex II to Council Regulation (EEC) No 259/93 (1)

>TABLE>

(1) Further updating of Annexes A and B could be necessary in view of future changes in the position of countries of destination. These changes will be reflected in the final text of the Regulation.

ANNEX C (1)

>TABLE>

(1) Drawn up on . . . (date of adoption of the Regulation).

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 13 June 1995 the Commission forwarded to the Council its initial proposal for a Council Regulation establishing common rules and procedures to apply to the shipments to certain non-OECD countries of certain types of waste, based on Article 113 of the EC Treaty (1).

2. On 20 January 1997 the Council concluded that Article 130s(1) jointly with Article 113 was the appropriate legal basis for the present Regulation. Following this change of legal basis the European Parliament was consulted and delivered its opinion on 17 July 1997 (2), proposing 10 amendments.

The Economic and Social Committee delivered its opinion on 29 April 1998 (3).

3. The Commission, further to the European Parliament's opinion, submitted its amendment proposal to the Council on 28 January 1998 (4).

4. On 4 June 1998 the Council adopted a Common Position in accordance with Article 189c of the Treaty.

II. OBJECTIVE

5. The proposal, drawn up in accordance with Article 17(1) of Council Regulation (EEC) No 259/93, aims at defining the procedures to be followed with non-OECD countries which have either indicated that they do not wish to receive shipments for recovery of certain types of waste appearing on the 'Green list` of Regulation (EEC) No 259/93 or have not responded to the Commission's communication on shipments for recovery of certain types of waste appearing on the Green list of Regulation (EEC) No 259/93.

III. ANALYSIS OF THE COMMON POSITION

6. Although the Common Position is largely based on the Commission's amended proposal, in examining this proposal and reaching its common position the Council has tried to retain procedures that are better suited to the needs and circumstances of non-OECD countries.

The main changes to the text of the proposal are the following:

Article 2

The so-called 'Red list` (Annex IV to Regulation (EEC) No 259/93) procedure proposed by the Commission appears to be needlessly cumbersome and the Council prefers to retain the more flexible procedure laid down in Article 15 of Regulation (EEC) No 259/93.

Article 3

In order to make this Regulation as self-contained as possible it was deemed useful to list (in a new Annex C) the wastes which may not be exported to ACP countries under Article 39 of the ACP-EC (Lomé) Convention.

Articles 4 and 5

These two Articles have been re-arranged in order to make a clear distinction between:

- amendments of control procedures resulting from a change of position of a country of destination (Article 4(1), (2) and (3) or from a change of circumstances affecting this country (Article 4(4), and review (Article 4(5)) of Annexes A, B and C, in accordance with the (comitology) procedure laid down in Article 18 of Directive 75/442/EEC,

- and periodic review of the control procedure established by this Regulation, which may lead to new proposals to the Council (Article 5).

Article 6

The date of entry into force of this Regulation has been slightly postponed (from 20 to 90 days following its publication in the Official Journal of the Communities) to take into account the time necessary for its implementation.

Annexes

Annexes A and B may need to be further updated in view of future changes in the positions of countries of destination.

(1) Doc. COM(94) 678 final.

(2) OJ C 286, 22.9.1997, p. 231.

(3) OJ C 214, 10.7.1998, p. 74.

(4) Doc. COM(97) 685 final.