COMMON POSITION (EC) No 13/94 adopted by the Council on 4 March 1994 with a view to adopting a European Parliament and Council Directive 94/. . ./EC of . . . on packaging and packaging waste (94/C 137/08)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 100a thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the Economic and Social Committee (2),

Acting in accordance with the procedure laid down in Article 189b of the Treaty,

1. Whereas the differing national measures concerning the management of packaging and packaging waste should be harmonized in order, on the one hand, to prevent any impact thereof on the environment or to reduce such impact, thus providing a high level of environmental protection, and, on the other hand, to ensure the functioning of the internal market and to avoid obstacles to trade and distortion and restriction of competition within the Community;

2. Whereas it is important, in relation to the objectives of this Directive, to respect the general principle that measures taken in one Member State to protect the environment should not adversely affect the ability of other Member States to achieve the objectives of the Directive;

3. Whereas this Directive should cover all types of packaging placed on the market and all packaging waste; whereas, therefore, Council Directive 85/339/EEC of 27 June 1985 on containers of liquids for human consumption (3) should be repealed;

4. Whereas, packaging has a vital social and economic function and therefore measures provided for in this Directive should apply without prejudice to other relevant legislative requirements affecting quality and transport of packaging or packaged goods;

5. Whereas, in line with the Community strategy for waste management set out in Council resolution of 7 May 1990 on waste policy (4) and Council Directive 75/442/EEC of 15 July 1975 on waste (5), the management of packaging and packaging waste should include as a first priority, prevention of packaging waste and, as additional fundamental principles, reuse of packaging, recycling and other forms of recovering packaging waste and, hence, reduction of the final disposal of such waste;

6. Whereas, for such time as evaluation techniques such as eco-balances, which should be encouraged further, do not generally warrant a more precise hierarchy of management methods, reuse, recycling and recovery can be considered as equivalents for the purposes of reducing the environmental impact of packaging;

7. Whereas prevention of packaging waste shall be carried out through appropriate measures, including initiatives taken within the Member States in accordance with the objectives of this Directive;

8. Whereas Member States may encourage reuse systems of packaging which can be reused in an environmentally sound manner in accordance with the Treaty, in order to take advantage of the contribution of such systems to environmental protection;

9. Whereas from an environmental point of view recycling should be regarded as an important part of recovery with a particular view to reducing the consumption of energy and of primary raw materials and the final disposal of waste;

10. Whereas energy recovery is one effective means of packaging waste recovery;

11. Whereas targets set in Member States for the recovery and recycling of packaging waste should be confined within certain ranges so as to take account of the different situations in Member States and to avoid creating barriers to trade and distortion of competition;

12. Whereas, in order to achieve results in the medium term and to give economic operators, consumers and public authorities the necessary perspective for the longer term, a medium-term deadline should be set for attaining the aforementioned targets and a long-term deadline set for targets to be determined at a later stage with a view to substantially increasing those targets;

13. Whereas the Council should, on the basis of reports by the Commission, examine the practical experience gained in Member States in working towards the aforementioned targets and the findings of scientific research and evaluation techniques such as eco-balances;

14. Whereas Member States which have or will set programmes going beyond such target ranges should be permitted to pursue those targets in the interest of a high level of environmental protection on condition that such measures avoid disturbances on the internal market and do not prevent other Member States from complying with this Directive; whereas the Commission should confirm such measures after appropriate verification;

15. Whereas, on the other hand, certain Member States may be allowed to adopt lower targets because of the specific circumstances in those Member States, on condition that they achieve a minimum target for recovery within the standard deadline, and the standard targets by a later deadline;

16. Whereas the management of packaging and packaging waste requires the Member States to set up return, collection and recovery systems; whereas such systems should be open to the participation of all interested parties and be designed to avoid discrimination against imported products and barriers to trade or distortions or competition, in accordance with the Treaty;

17. Whereas the issue of Community marking of packaging requires further study, but should be decided by the Community in the near future;

18. Whereas, in order to minimize the impact of packaging and packaging waste on the environment and to avoid barriers to trade and distortion of competition, it is also necessary to define the essential requirements governing the composition and the reusable and recoverable (including recyclable) nature of packaging and to set concentration levels for heavy metals present in packaging together with appropriate exemptions which should be determined by the Commission in specific cases under a Committee procedure;

19. Whereas the requirements for the manufacturing of packaging should not apply to packaging used for a given product before the date of entry into force of this Directive; whereas a transition period for the marketing of packaging is also required;

20. Whereas the timing of the provision on the placing on the market of packaging which meets all essential requirements should take account of the fact that European standards are being prepared by the competent standardization body; whereas, however, the provisions on means of proof of conformity of national standards should apply without delay;

21. Whereas the preparation of European standards for essential requirements and other related issues should be promoted;

22. Whereas the measures provided for in this Directive imply the development of recovery and recycling capacities and market outlets for recycled packaging materials;

23. Whereas the inclusion of recycled material in packaging should not contradict relevant provisions on hygiene, health and consumer safety;

24. Whereas Community-wide data on packaging and packaging waste are needed in order to monitor the implementation of the objectives of this Directive;

25. Whereas it is essential that all those involved in the production, use, import and distribution of packaging and packaged products become more aware of the extent to which packaging becomes waste, and that in accordance with the polluter-pays principle they accept responsibility for such waste; whereas the development and implementation of the measures provided for in this Directive should involve and require the close cooperation of all the partners, where appropriate, within a spirit of shared responsibility;

26. Whereas consumers play a key role in the management of packaging and packaging waste and thus have to be adequately informed in order to adapt their behaviour and attitudes;

27. Whereas the inclusion of a specific chapter on the management of packaging and packaging waste in the waste management plans required under Directive 75/442/EEC will contribute to the effective implementation of this Directive;

28. Whereas in order to facilitate the achievement of the objectives of this Directive, it may be appropriate for Member States to use economic instruments in accordance with the provisions of the Treaty;

29. Whereas Member States should, without prejudice to Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations (6), notify the Commission of drafts of any measures they intend to adopt before adopting them, so that it can be established whether or not they comply with the Directive;

30. Whereas the adaptation to scientific and technical progress of the packaging identification system and the formats relating to a database system should be ensured by the Commission under a Committee procedure;

31. Whereas it is necessary to provide for specific measures to be taken to deal with any difficulties encountered in the implementation of this Directive in accordance, where appropriate, with the same Committee procedure,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Objectives

1. This Directive aims to harmonize national measures concerning the management of packaging and packaging waste in order, on the one hand, to prevent any impact thereof on the environment of all Member States as well as of third countries or to reduce such impact, thus providing a high level of environmental protection, and, on the other hand, to ensure the functioning of the internal market and to avoid obstacles to trade and distortion and restriction of competition within the Community.

2. To this end this Directive lays down measures aimed, as a first priority, at preventing the production of packaging waste and, as additional fundamental principles, at reusing packaging, at recycling and other forms of recovering packaging waste and, hence, at reducing the final disposal of such waste.

Article 2

Scope

1. This Directive covers all packaging placed on the market in the Community and all packaging waste, whether it is used or released at industrial, commercial, office, shop, service, household or any other level, regardless of the material used.

2. This Directive shall apply without prejudice to existing quality requirements for packaging such as those regarding safety, the protection of health and the hygiene of the packed products or to existing transport requirements or to the provisions of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste (7).

Article 3

Definitions

For the purposes of this Directive:

1. 'packaging' means all products made of any materials of any nature to be used for the containment, protection, handling, delivery and presentation of goods, from raw materials to processed goods, from the producer to the user or the consumer.

'Packaging' consists only of:

(a) sales packaging or primary packaging, i.e. packaging conceived so as to constitute a sales unit to the final user or consumer at the point of purchase;

(b) grouped packaging or secondary packaging, i.e. packaging conceived so as to constitute at the point of purchase a grouping of a certain number of sales units whether the latter is sold as such to the final user or consumer or whether it serves only as a means to replenish the shelves at the point of sale; it can be removed from the product without affecting its characteristics;

(c) transport packaging or tertiary packaging, i.e. packaging conceived so as to facilitate handling and transport of a number of sales units or grouped packagings in order to prevent physical handling and transport damage. Transport packaging does not include road, rail, ship and air containers;

2. 'packaging waste' means any packaging or packaging material covered by the definition of waste in Directive 75/442/EEC, excluding production residues;

3. 'packaging waste management' means the management of waste as defined in Directive 75/442/EEC;

4. 'prevention' means the reduction of the quantity and of the harmfulness for the environment of:

- materials and substances contained in packaging and packaging waste,

- packaging and packaging waste at production process level and at the marketing, distribution, utilization and elimination stages,

in particular by developing 'clean' products and technology;

5. 'reuse' means any operation by which packaging, which has been conceived and designed to accomplish within its life cycle a certain number of trips or rotations, is refilled or used for the same purpose for which it was conceived; such reused packaging will become packaging waste when no longer subject to reuse;

6. 'recovery' means any of the applicable operations provided for in Annex II.B to Directive 75/442/EEC;

7. 'recycling' means the reprocessing in a production process of the waste materials for the original purpose or for other purposes including composting but excluding energy recovery;

8. 'energy recovery' means the use of combustible packaging waste as a means to generate energy through direct incineration with or without other waste but with recovery of the heat;

9. 'composting' means the aerobic or anaerobic treatment of the organic parts of packaging waste, which produces stabilized organic residues;

10. 'biomethanization' means the anaerobic treatment of packaging waste, which produces methane and stabilized organic residues but excluding such process in landfill;

11. 'disposal' means any of the applicable operations provided for in Annex II. A to Directive 75/442/EEC;

12. 'economic operators' in relation to packaging means suppliers of packaging materials, packaging producers and converters, fillers and users, importers, traders and distributors.

Article 4

Prevention

1. Member States shall ensure that in addition to the preventive measures taken in accordance with Article 9 on essential requirements other preventive measures are implemented. Such other measures may consist of national programmes or similar actions adopted, if appropriate in consultation with economic operators, and designed to collect and take advantage of the many initiatives taken within Member States as regards prevention. They shall comply with the objectives of this Directive as defined in Article 1 (1).

2. The Commission shall help to promote prevention by encouraging the development of suitable European standards, in accordance with Article 10.

Article 5

Reuse

Member States may encourage reuse systems of packaging, which can be reused in an environmentally sound manner, in conformity with the Treaty.

Article 6

Recovery and recycling

1. In order to comply with the objectives of this Directive, Member States shall take the necessary measures to attain the following targets covering the whole of their territory:

(a) no later than five years from the date by which this Directive must be implemented in national law, between 50 % as a minimum and 65 % as a maximum by weight of the packaging waste will be recovered;

(b) within this general target, and with the same time limit, between 25 % as a minimum and 45 % as a maximum by weight of the totality of packaging materials contained in packaging waste will be recycled with a minimum of 15 % by weight for each packaging material;

(c) no later than 10 years from the date by which this Directive must be implemented in national law, a percentage of packaging waste will be recovered and recycled, which will have to be determined by the Council in accordance with paragraph 3 (b) with a view to substantially increasing the targets mentioned in paragraphs (a) and (b).

2. Member States shall, where appropriate, encourage the use of materials obtained from recycled packaging waste for the manufacturing of packaging and other products.

3. (a) The Council shall, on the basis of an interim report by the Commission, and four years from the date referred to in paragraph 1 (a) on the basis of a final report, examine the practical experience gained in the Member States in the implementation of the targets and objective laid down in paragraphs 1 (a), 1 (b) and 2 and the findings of scientific research and evaluation techniques such as eco-balances.

(b) No later than six months before the end of the first five-year phase referred to in paragraph 1 (a) the Council shall, acting by qualified majority and on a proposal from the Commission, fix targets for the second five-year phase referred to in paragraph 1 (c).

4. The measures and targets referred to in paragraphs 1 (a) and 1 (b) shall be published by the Member States and shall be the subject of an information campaign for the general public and economic operators.

5. Greece, Ireland and Portugal may, because of their specific situation, i.e. respectively the large number of small islands, the presence of rural and mountain areas and the current low level of packaging consumption, decide to:

(a) attain, no later than five years from the date of implementation of this Directive, lower targets than those fixed in paragraph 1 (a) and (b), but shall at least attain 25 % for recovery;

(b) postpone at the same time the attainment of the targets in paragraph 1 (a) and (b) to a later deadline which, however, shall not exceed 31 December 2005.

6. Member States, which have or will set programmes going beyond the targets of paragraph 1 (a) and (b) and which provide to this effect appropriate capacities for recycling and recovery, are permitted to pursue those targets in the interest of a high level of environmental protection, on condition that these measures avoid distortions of the internal market and do not hinder compliance by other Member States with the Directive. Member States shall inform the Commission thereof. The Commission shall confirm these measures, after having verified, in cooperation with the Member States, that they are consistent with the considerations above and do not constitute an arbitrary means of discrimination or a disguised restriction on trade between Member States.

Article 7

Return, collection and recovery systems

1. Member States shall take the necessary measures to ensure that systems are set up to provide for:

(a) the return and/or collection of used packaging and/or packaging waste from the consumer, or other final user, or from the waste stream in order to channel it to the most appropriate waste management alternatives;

(b) the resuse or recovery including recycling of the packaging and/or packaging waste collected,

in order to meet the objectives laid down in this Directive.

These systems shall be open to the participation of the economic operators of the sectors concerned and to the participation of the competent public authorities. They shall also apply to imported products under non-discriminatory conditions, including the detailed arrangements and any tariffs imposed for access to the systems, and shall be designed so as to avoid barriers to trade or distortions of competition in conformity with the Treaty.

2. The measures referred to in paragraph 1 shall form part of a policy covering all packaging and packaging waste and shall take into account, in particular, requirements regarding the protection of environmental and consumer health, safety and hygiene; the protection of the quality, the authenticity and the technical characteristics of the packed goods and materials used; and the protection of industrial and commercial property rights.

Article 8

Marking and identification system

1. The Council shall, in accordance with the conditions laid down in the Treaty, decide no later than two years after the entry into force of this Directive on the marking of packaging.

2. To facilitate collection, reuse and recovery including recycling, packaging shall indicate for purposes of its identification and classification by the industry concerned the nature of the packaging material(s) used.

To that end, the Commission shall, not later than 12 months after the entry into force of this Directive determine, on the basis of Annex I and in accordance with the procedure laid down in Article 21, the numbering and abbreviations on which the identification system is based and shall specify which materials shall be subject to the identification system in accordance with the same procedure.

3. Packaging shall bear the appropriate marking either on the packaging itself or on the label. It shall be clearly visible and easily legible. The marking shall be appropriately durable and lasting, including when the packaging is opened.

Article 9

Essential requirements

1. Member States shall ensure that three years from the date of the entry into force of this Directive, packaging may be placed on the market only if it complies with all essential requirements defined by this Directive including Annex II.

2. Member States shall, from the date set out in Article 22 (1), presume compliance with all essential requirements set out in this Directive including Annex II in the case of packaging which complies:

(a) with the relevant harmonized standards, the reference numbers of which have been published in the Official Journal of the European Communities. Member States shall publish the reference numbers of national standards transposing these harmonized standards;

(b) with the relevant national standards referred to in paragraph 3 in so far as, in the areas covered by such standards, no harmonized standards exist.

3. Member States shall communicate to the Commission the text of their national standards, as referred to in paragraph 2 (b), which they deem to comply with the requirements referred to in this Article. The Commission shall forward such texts forthwith to the other Member States.

Member States shall publish the references of these standards. The Commission shall ensure that they are published in the Official Journal of the European Communities.

4. Where a Member State or the Commission considers that the standards referred to in paragraph 2 do not entirely meet the essential requirements referred to in paragraph 1, the Commission or the Member State concerned shall bring the matter before the Committee set up by Directive 83/189/EEC giving the reasons therefor. This Committee shall deliver an opinion without delay.

In the light of the Committee's opinion, the Commission shall inform Member States whether or not it is necessary to withdraw those standards from the publications referred to in paragraphs 2 and 3.

Article 10

Standardization

The Commission shall promote, as appropriate, the preparation of European standards relating to the essential requirements referred to in Annex II.

The Commission shall promote, in particular, the preparation of European standards relating to:

- criteria and methodologies for life-cycle analysis of packaging,

- the methods for measuring and verifying the presence of heavy metals and other dangerous substances in the packaging and their release into the environment from packaging and packaging waste,

- criteria for a minimum content of recycled material in packaging for appropriate types of packaging,

- criteria for recycling methods,

- criteria for composting methods and produced compost,

- criteria for the marking of packaging.

Article 11

Concentration levels of heavy metals present in packaging

1. Member States shall ensure that the sum of concentration levels of lead, cadmium, mercury and hexavalent chromium present in packaging or packaging components shall not exceed the following:

- 600 ppm by weight two years after the date referred to in Article 22 (i),

- 250 ppm by weight three years after the date referred to in Article 22 (i),

- 100 ppm by weight five years after the date referred to in Article 22 (i).

2. The concentration levels referred to in paragraph 1 shall not apply to packaging entirely made of lead crystal glass as defined in Directive 69/493/EEC (8).

3. The Commission shall, in accordance with the procedure laid down in Article 21, determine:

- the conditions under which the above concentration levels will not apply to recycled materials and to product loops which are in a closed and controlled chain,

- the types of packaging which are exempted from the requirement referred to in paragraph 1, third indent.

Article 12

Information systems

1. Member States shall take the necessary measures to ensure that databases on packaging and packaging waste are established, where not already in place, in order to contribute to enabling Member States and the Commission to monitor the implementation of the objectives set out in this Directive.

2. To this effect, the databases shall provide in particular information on the magnitude, characteristics and evolution of the packaging and packaging waste flows at the level of individual Member States.

3. In order to harmonize the characteristics and presentation of the data produced and to make the data of the Member States compatible, Member States shall provide the Commission with their available data by means of formats which shall be adopted by the Commission one year from the date of entry into force of this Directive on the basis of Annex III, in accordance with the procedure laid down in Article 21.

4. Member States shall take into account the particular problems of small and medium-sized enterprises in providing detailed data.

5. The data obtained shall be made available with the national reports referred to in Article 17 and shall be updated in subsequent reports.

Article 13

Information for users of packaging

Member States shall take measures, within two years of the date referred to in Article 22 (1), to ensure that users of packaging, including in particular consumers, obtain the necessary information about:

- the return, collection and recovery systems available to them,

- their role in contributing to reuse, recovery and recycling of packaging and packaging waste,

- the meaning of markings on packaging existing on the market,

- the appropriate elements of the management plans for packaging and packaging waste as referred to in Article 14.

Article 14

Management plans

In pursuance of the objectives and measures referred to in this Directive, Member States shall include in the waste management plans required under Article 17 of Directive 75/442/EEC, a specific chapter on the management of packaging and packaging waste, including measures taken under Articles 4 and 5.

Article 15

Economic instruments

Member States may adopt economic instruments, in accordance with the provisions of the Treaty, to promote the objectives of this Directive.

Article 16

Notification

1. Without prejudice to Directive 83/189/EEC, before adopting such measures, Member States shall notify the drafts of measures which they intend to adopt within the framework of this Directive to the Commission, excluding measures of a fiscal nature, but including technical specifications linked to fiscal measures which encourage compliance with such technical specifications, in order to permit the latter to examine them in the light of existing provisions following in each case the procedure under the above Directive.

2. If the proposed measure is also a technical matter within the meaning of Directive 83/189/EEC, the Member State concerned may indicate, when following the notification procedure referred to in this Directive, that the notification is equally valid for Directive 83/189/EEC.

Article 17

Obligation to report

Member States shall report to the Commission on the application of this Directive in accordance with Article 5 of Council Directive 91/692/EEC of 23 December 1991 standardizing and rationalizing reports on the implementation of certain Directives relating to the environment (9). The first report shall cover the period 1995 to 1997.

Article 18

Freedom to place on the market

Member States shall not impede the placing on the market of their territory of packaging which satisfies the provisions of this Directive.

Article 19

Adaptation to scientific and technical progress

The amendments necessary for adapting to scientific and technical progress the identification system - as referred to in Article 8 (2), Annex I and Article 10, last indent - and the formats relating to the database system - as referred to in Article 12 (3) and Annex III - shall be adopted in accordance with the procedure laid down in Article 21.

Article 20

Specific measures

1. The Commission, in accordance with the procedure laid down in Article 21, shall determine the technical measures necessary to deal with any difficulties encountered in applying the provisions of this Directive in particular to primary packaging for medical devices and pharmaceutical products, small packaging and luxury packaging.

2. The Commission shall also present a report to Council on any other measure to be taken, if appropriate accompanied by a proposal.

Article 21

Committee procedure

1. The Commission shall be assisted by a committee composed of the representatives of the Member States and chaired by the representative of the Commission.

2. The representative of the Commission shall submit to the committee a draft of the measures to be taken. The committee shall deliver its opinion on the draft within a time limit which the chairman may lay down according to the urgency of the matter. The opinion shall be delivered by the majority laid down in Article 148 (2) of the Treaty in the case of decisions which the Council is required to adopt on a proposal from the Commission. The votes of the representatives of the Member States within the committee shall be weighted in the manner set out in that Article. The chairman shall not vote.

3. (a) The Commission shall adopt the measures envisaged if they are in accordance with the opinion of the committee.

(b) If the measures envisaged are not in accordance with the opinion of the committee, or if no opinion is delivered, the Commission shall, without delay, submit to the Council a proposal relating to the measures to be taken. The Council shall act by a qualified majority.

If, on the expiry of a period which may in no case exceed three months from the date of referral to the Council, the Council has not acted, the proposed measures shall be adopted by the Commission.

Article 22

Implementation in national law

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before . . . (10). They shall immediately inform the Commission thereof.

2. When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods for making such reference shall be laid down by the Member States.

3. In addition, Member States shall communicate to the Commission all existing laws, regulations and administrative provisions adopted within the scope of this Directive.

4. The requirements for the manufacturing of packaging shall in no case apply to packaging used for a given product before the date of entry into force of this Directive.

5. Member States shall, for a period not exceeding five years from the date of the entry into force of the present Directive, allow the placing on the market of packaging manufactured before this date and which is in conformity with their existing national law.

Article 23

Directive 85/339/EEC is hereby repealed with effect from the date referred to in Article 22 (1).

Article 24

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

Article 25

This Directive is addressed to the Member States.

Done at . . ., . . .

For the European Parliament

The President

For the Council

The President

(1) OJ No C 285, 21. 10. 1993, p. 1.

(2) OJ No C 129, 10. 5. 1993, p. 18.

(3) OJ No L 176, 6. 7. 1985, p. 18. Directive as amended by Directive 91/629/EEC (OJ No L 377, 31. 12. 1991, p. 48).

(4) OJ No C 122, 18. 5. 1990, p. 2.

(5) OJ No L 194, 25. 7. 1975, p. 47. Directive as last amended by Directive 91/156/EEC (OJ No L 78, 26. 3. 1991, p. 32).

(6) OJ No L 109, 26. 4. 1983, p. 8. Directive as last amended by Directive 92/400/EEC (OJ No L 221, 6. 8. 1992, p. 55).

(7) OJ No L 377, 31. 12. 1991, p. 20.

(8) OJ No L 326, 29. 12. 1969, p. 36.

(9) OJ No L 377, 31. 12. 1991, p. 48.

(10) 18 months after the entry into force of this Directive.

ANNEX I

IDENTIFICATION SYSTEM

The numbering used shall be from 1 to 19 for plastic, from 20 to 39 for paper and cardboard, from 40 to 49 for metal, from 50 to 59 for wood, from 60 to 69 for textiles and from 70 to 79 for glass.

The identification system may also use the abbreviation for the relevant material(s) (e.g. HDPE: High Density Polyethylene). Materials may be identified by a numbering system and/or abbreviation. The identification marks shall appear in the centre of or below the graphical marking indicating the reusable or recoverable nature of the packaging.

ANNEX II

ESSENTIAL REQUIREMENTS ON THE COMPOSITION AND THE REUSABLE AND RECOVERABLE, INCLUDING RECYCLABLE, NATURE OF PACKAGING

1. Requirements specific to the manufacturing and composition of packaging

- Packaging shall be so manufactured that the packaging volume and weight be limited to the minimum adequate amount to maintain the necessary level of safety, hygiene and acceptance for the packed product and for the consumer.

- Packaging shall be designed, produced and commercialized in such a way as to permit its reuse or recovery, including recycling, and to minimize its impact on the environment when packaging waste or residues from packaging waste management operations are disposed of.

- Packaging shall be so manufactured that the presence of noxious and other hazardous substances and materials as constituents of the packaging material or of any of the packaging components is minimized with regard to their presence in emissions, ash or leachate when packaging or residues from management operations or packaging waste are incinerated or landfilled.

2. Requirements specific to the reusable nature of packaging

The following requirements must be simultaneously satisfied:

- the physical properties and characteristics of the packaging shall enable a number of trips or rotations in normally predictable conditions of use,

- possibility of processing the used packaging in order to meet health and safety requirements for the workforce,

- fulfil the requirements specific to recoverable packaging when the packaging is no longer reused and thus becomes waste.

3. Requirements specific to the recoverable nature of packaging

(a) Packaging recoverable in the form of material recycling

Packaging must be manufactured in such a way as to enable the recycling of a certain percentage by weight of the materials used into the manufacture of marketable products, in compliance with current standards in the European Community. The establishment of this percentage may vary, depending on the type of material of which the packaging is composed.

(b) Packaging recoverable in the form of energy recovery

Packaging waste processed for the purpose of energy recovery shall have a minimum inferior calorific value to allow optimization of energy recovery.

(c) Packaging recoverable in the form of composting

Packaging waste processed for the purpose of composting shall be of such a biodegradable nature that it should not hinder the separate collection and the composting process or activity into which it is introduced.

(d) Biodegradable packaging

Biodegradable packaging waste shall be of such a nature that it is capable of undergoing physical, chemical, thermal or biological decomposition such that most of the finished compost ultimately decomposes into carbon dioxide, biomass and water.

ANNEX III

DATA TO BE INCLUDED BY MEMBER STATES IN THEIR DATABASES ON PACKAGING AND PACKAGING WASTE (IN ACCORDANCE WITH TABLES 1 TO 4)

1. For primary, secondary and tertiary packaging:

(a) quantities, for each broad category of material, of packaging consumed within the country (produced + imported - exported) (Table 1);

(b) quantities reused (Table 2).

2. For household and non-household packaging waste:

(a) quantities for each broad category of material, recovered and disposed of within the country (produced + imported - exported) (Table 3);

(b) quantities recycled and quantities recovered for each broad category of material (Table 4).

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STATEMENT OF THE COUNCIL'S REASONS

I. Introduction

1. On 24 August 1992 the Commission submitted to the Council a proposal for a Directive on packaging and packaging waste (1).

2. The European Parliament delivered its opinion on 23 June 1993 (2).

3. The Economic and Social Committee delivered its opinion on 25 March 1993 (3).

4. The Commission sent the Council its amended proposal on 9 September 1993 (4).

II. Common position

1. Adoption of the common position

'On 4 March 1994 the Council adopted a common position by a qualified majority on the basis of Article 100a; the German, Danish and Dutch delegations voted against'.

2. Purpose of the Commission proposal

The proposal is to harmonize national measures for the management of packaging and packaging waste in order to reduce environmental impact, contribute to the operation of the internal market and prevent the emergence of trade barriers and of distortion and restriction of competition in the Community.

3. General comments

In arriving at its common position, the Council endeavoured to strike the best possible balance between environmental protection and internal-market operation and to reconcile the possibilities available to Member States starting to create packaging-waste management infrastructure with the wish of those Member States having more sophisticated infrastructure to achieve more ambitious objectives.

4. Specific comments

(References below are to the text of the common position.)

4.1. Amendments made by the Council to the Commission's amended proposal

The Commission agreed to all the amendments which the Council made to the Commission's amended proposal. The main amendments are as follows:

(a) Objectives of the Directive (Article 1)

The Council considered that:

- It was necessary to strike the right balance in Article 1 between environmental protection and internal-market operation. It accordingly placed greater emphasis on the need to ensure a high level of environmental protection, while making it clear that the Directive was to ensure the operation of the internal market and not merely contribute to it,

- in the same Article, some kind of order of precedence should be established for methods of waste management, in line with the Community waste-management strategy as set out in the Council resolution of 7 May 1990 and in the framework Directive on waste (Council Directive 75/442/EEC as amended by Council Directive 91/156/EEC (5).

It took the view that evaluation techniques such as eco-audits, which were to be encouraged, did not at this stage generally make it possible to justify a more specific order of precedence.

The Council entirely endorsed Parliament's view that prevention should be the first priority.

(b) Scope of the Directive (Article 2)

The Council noted, like Parliament, that packaging fulfils an important economic and social function and it concluded that the Directive must apply without prejudice to existing requirements for the quality and transport of packaging (and, of course, without prejudice to the Council Directive on hazardous waste).

(c) Additional Article on prevention (Article 4)

In line with the priority attached to prevention in Article 1, the Council not only took up almost word for word the definition suggested by Parliament, but also saw fit to insert a separate provision on the subject. That provision is designed to encourage the turning to advantage of initiatives taken in individual Member States in this respect, but it stipulates that such measures must comply with the twofold objective (as laid down in Article 1) of environmental protection and internal-market operation.

(d) Additional Article on reuse (Article 5)

The Council realized that reuse of packaging may under some circumstances prove environmentally advantageous and it inserted a new provision whereby Member States may promote reuse systems for packaging which can be reused without harming the environment, in compliance with the Treaty.

(e) Target figures for recovery and recycling (Article 6)

The Council:

- set target ranges for recovery and recycling so as to make greater allowance for the possibilities available to individual Member States,

- thought it preferable not to set figures for the second five-year period as yet. It felt that such figures would better be determined before the start of the second five-year period in the light of practical experience in the mean time within the Member States in implementing the targets for the first five-year period, as well as the results of evaluation techniques such as eco-audits and of scientific research. However, it envisaged a substantial increase over the figures set for the first five-year period. Similarly, the Council did not retain the provision concerning 10 % of residues for the 10-year period;

- made provision for conditional upward or downward departures from the target figures in order to make allowance, firstly, for the fact that some Member States have adopted or are to adopt programmes going further than those targets and, secondly, for special conditions obtaining in other Member States.

(f) Marking (Article 8)

With the Commission not yet having completed its consideration of the most suitable marking(s), the Council agreed to take a decision on this under the usual procedure not later than two years after the Directive's adoption. It therefore included only section (c) (identification system) of Annex I;

(g) Essential requirements and standardization (Articles 9 and 11 and Annex II)

The Council found that most of the essential requirements to be laid down for the manufacture and composition of packaging could be only very general at this stage, when there were very few standards and criteria and very little practical experience available for most kinds of packaging. With the CEN in the process of drawing up standards in this field, the Council thought it advisable to defer for three years the date of implementation of the marketing clause (Article 9 (1)). The clauses in that Article concerning proof of the compliance of national standards with essential requirements should, however, enter into force without delay, in the Council's view.

For Annex II, the Council basically approved the wording proposed apart from the passage on heavy-metal concentrations, which it turned into a separate Article (Article 11) in order to lend this greater force. However, the Council set the figures originally proposed by the Commission and not the more stringent figures proposed by the Commission in response to Parliament's opinion; the figures set are those accepted and applied internationally (Coneg), whereas the more stringent figures are concerned in principle with composting.

(h) Information systems (Article 12 and Annex III)

The Council simplified this provision on the grounds that the aim of compiling data should be to help Member States and the Commission to monitor achievement of the objectives laid down in the Directive.

Annex III has therefore also been simplified; it should be adjusted by the Commission under the committee procedure. In order to rationalize the forwarding of national data, the Council stipulated that they are to be supplied together with national reports on the Directive's implementation.

(i) Economic instruments (Article 15)

The Council decided on the wording originally proposed by the Commission and in particular thought it inadvisable to reiterate the criteria applicable under the Treaty; as regards any Community economic instruments, it noted that the Commission was free to put forward proposals.

(j) Notification (Article 16)

The Council adjusted this in the light of its common position on the proposal for a Council Directive materially amending for the second time Directive 83/189/EEC laying down a procedure for the provision of information in the field of technical standards and regulations (6).

(k) Reporting requirement (Article 17)

The Council simplified the text in the light of its Directive 91/692/EEC standardizing and rationalizing reports (7).

(l) Adaptation to technical progress and specific measures (Articles 19 and 20)

The Council confined such adaptation to purely technical aspects. The other points in the text proposed by the Commission are covered by a new Article on specific measures (Article 20). The Council made provision here, firstly, for the Committee procedure and, secondly, for reports from the Commission, accompanied, if appropriate, by proposals.

(m) Committee (Article 21)

The Council accepted Parliament's amendment and made provision for a type-III(a) committee.

(n) Implementation in national law (Article 22)

The Council added two paragraphs; paragraph 4 of the Article contains an exemption for packaging used before the date of the Directive's entry into force for a given product to be marketed after that date, as for instance in the case of port. The final paragraph contains a transitional clause for packaging manufactured in accordance with the rules in force before the date of the Directive's adoption.

4.2. European Parliament amendments inserted in the Commission proposal and included in the common position

Preamble

In accordance with its resolution of 8 June 1993 on the quality of drafting of Community legislation (8), the Council considers that the preamble should justify the enacting provisions in simple terms. The Council therefore entertained only those amendments suggested by Parliament which did not go further than stating the justification for the various Articles in the common position.

- second and fifth recitals (amendment No 22): the Council took some account of this amendment through the general principle set out in the second recital and, in the fifth recital, through the reference to the Community strategy,

- fourth recital (amendment No 2): the Council included this amendment, while adjusting the wording of the second clause,

- sixth recital (amendment No 4): see 4.1 (a) above,

- 15th recital (amendment No 20): the Council implicitly took account of this amendment (see Article 6 (5)),

- 16th recital (amendment No 13): the Council included the word 'recovery', but not the reference to the maximum possible return of packaging and packaging waste, since it did not include that idea in Article 5 either,

- 18th recital (amendments Nos 11 and 14): the Council included the word 'recyclable' from amendment No 11; as regards amendment No 14, it took up the idea of this in so far as it was consistent with Articles 9 and 11 and Annex II as worded by the Council. It did not include the reference to substances other than heavy metals, since such substances were not covered by Article 11,

- 22nd recital (amendment No 17): the Council took account of the amendment in this more general point. It did not take up the idea of rules on the minimum percentage of recycled material, which did not tally with the relevant Articles of the common position,

- 23rd recital (amendment No 18): the Council included this amendment

- 28th recital (amendment No 12): the Council took up part of this amendment (see the comment below on amendment No 60 regarding Article 11),

- Article 3 (4) (amendment No 30): the Council included this amendment almost word for word,

- Article 3 (9) (amendment No 33): the Council added 'or anaerobic' and, as in the following point, replaced 'soil' by the more precise term 'stabilized organic amendments',

- Article 3 (10) (amendment No 32): the Council included this amendment with an addition to avoid the undesirable coverage of biomethanization occurring in the normal way in landfill,

- Article 3 (12) (amendment No 35): the Council included the word 'importers' but preferred to confine the definition to economic operators proper so that a distinction could be drawn in the second subparagraph of Article 5 (1) between such operators and the public authorities,

- Article 6 (1) (amendments Nos 87 and 37): the Council followed the timetable suggested by Parliament but set different figures in the form of target ranges, as explained in 4.1 (e) above. It also considered a minimum figure for recycling to be necessary in order to ensure recyling of all materials,

- Article 6 (2) (amendment No 38): the Council included this amendment almost word for word,

- Article 7 (amendment Nos 84 and 44): the Council took into account most of the points in these amendments,

- Article 8 (amendments Nos 46, 48, 49 and 50): the Council took account of these amendments to the extent consistent with its approach of taking a decision on marking not later than two years after the Directive's adoption,

- Article 9 (1) (amendment No 52): the Council included the words 'by this Directive',

- Article 10a (ex-Article 12 - amendment No 62): the Council took up the various points in this amendment, as accepted by the Commission, either directly (minimum content of recycled materials) or indirectly (compostability of packaging covered by the reference to Annex II),

- Article 13 (amendment No 57): the Council included the two-year time limit,

- Article 22 (amendment No 64): the Council included the passage concerning existing provisions,

- Annex II 1, third indent (amendment No 75): the Council included the wording in question,

- Annex II 3 (a) (amendment No 79): the Council included this amendment,

- Annex II 3 (d) (amendment No 88): the Council largely took up this amendment, but regarded the 100 % biodegradability requirement as unrealistic.

4.3. European Parliament amendments accepted by the Commission and not included in the common position

- Amendment No 1: the Council noted that this amendment did not tally with the wording of the relevant Articles in the common position,

- amendment No 7: the Council considered that the best possible balance should be struck between the operation of the internal market and environmental rather than consumer protection,

- amendment No 8, second indent: the amendment did not tally with the relevant Articles in the common position,

- amendment No 16: having deferred a decision on one or more Community markings, the Council did not think it advisable to entertain such a wording at this stage,

- amendment No 21: the amendment did not tally with the relevant Articles in the common position,

- amendment No 23: in accordance with its resolution referred to earlier, the Council did not see fit to include this amendment,

- amendments Nos 29, 31 and 115: the Council did not see any need for a specific reference to small packaging under the target figures set for the first five-year period. Article 20 made provision for specific measures, should such packaging give rise to special difficulties in implementing the Directive; as regards biomethanization, the Council did not include it as a method of recycling, so that recycling could cover all methods of producing substitute fuels,

- amendment No 34: the Council preferred in Article 3 (5) the wording 'a certain number of trips', as originally proposed by the Commission, and did not see any need for the reference to auxiliary products,

- amendment No 41: the Council felt that this amendment was to some extent covered by Article 13 on information for users of packaging,

- amendment No 56 (first subparagraph): the Council thought such a provision superfluous,

- amendment No 65: the Council considered the additions requested by Parliament unnecessary,

- amendments Nos 106 and 45: the Council did not see the need for a reference to SMEs in this context, unlike Article 12 (4).

4.4. European Parliament amendments not taken up by the Commission

- Amendments Nos 8 (first indent), 9 and 15: such recitals would not tally with the relevant Articles in the common position,

- amendment No 19: as the Council decided on a simplified version of Article 12 on information systems, such a recital would be pointless,

- amendment No 25: Article 7 on return, collection and recovery systems would not preclude this idea. However, the Council did not think it advisable to include such a recital,

- amendment No 26: the Council noted that the matter was dealt with in Council Regulation (EEC) No 259/93 of 1 February 1993 on shipments of waste (9),

- amendments Nos 28 and 29 and Nos 31 and 115: the Council thought it wiser not to insert the suggested exclusions but to make provision for specific measures regarding the types of packaging in question (Article 20),

- amendments Nos 87 and 37(aa) and (ba): the Council took into account in Article 5 the suggestion for reuse systems, but felt it inadvisable to include the idea of a minimum percentage of recycled materials (see also Articles 6 (2) and Article 10, second paragraph, third indent),

- amendment No 39: the Council did not think it advisable to go beyond the provision in Article 4,

- amendment No 42: the Council took this amendment into account in its Article 6 (3),

- amendment No 52: the Council preferred to keep to the usual provisions under the new approach to harmonization regarding the marketing of products,

- amendments Nos 54 and 55: the Council followed a course close to that proposed by the Commission, which was not compatible with the arrangement suggested. The Council did not think it advisable to refer to the collection of information on the toxicity of packaging materials,

- amendment No 56: the Council did not think it advisable to include a reference to local and regional authorities,

- amendment No 57 (second paragraph): the Council considered its Article 13 adequate,

- amendments Nos 58 and 59: the Council did not consider these two amendments appropriate,

- amendment No 61: the Council preferred to leave several of these points to standardization (Article 10). Other points were covered to some extent by other Articles or the preamble; for some points, lastly, the Council considered that progress would be achieved as a result of practical implementation of the Directive,

- amendment No 63: the Council thought such a provision inappropriate,

- amendment No 66: as regards paragraph 1, the Council included in Article 6 (6) a provision concerning appropriate capacity in the event of some Member States going beyond the target figures. Paragraph 2 was not considered advisable by the Council,

- amendment No 68: the Council took up this amendment,

- amendment No 72: the Council followed the Commission proposal,

- amendment No 74: the Council included recycling,

- amendments Nos 77 and 78: the Council did not think it advisable to include these amendments,

- amendment No 104: the Council preferred the Commission's wording,

- amendment No 112: the Council did not share the view that Community funds should be used for the purpose.

(1) OJ No C 263, 12. 10. 1992.

(2) OJ No C 194, 19. 7. 1993, p. 154.

(3) OJ No C 129, 10. 5. 1993.

(4) OJ No C 285, 21. 10. 1993.

(5) OJ No L 78, 26. 3. 1991.

(6) Doc. 9594/93 ECO 264 PRO-COOP 49.

(7) OJ No L 377, 31. 12. 1991, p. 48.

(8) OJ No C 166, 17. 6. 1993.

(9) OJ No L 30, 6. 2. 1993, p. 1.