Opinion on the proposal for a Council Regulation (EC) amending Regulation (EEC) No 259/93 on the supervision and control of shipments of waste within, into and out of the European Community ()

(96/C 18/04)

On 7 June 1995 the Council decided to consult the Economic and Social Committee, under Article 130s of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Protection of the Environment, Public Health and Consumer Affairs, which was responsible for preparing the Committee's work on the subject, adopted its Opinion on 19 September 1995. The Rapporteur was Mr Gafo Fernández and the Co-Rapporteurs were Mr Boisserée and Mr Tixier.

At its 329th Plenary Session (meeting of 25 October 1995), the Economic and Social Committee unanimously adopted the following Opinion.

1. Introduction

1.1. The proposal is designed to amend Regulation (EEC) No 259/93 by prohibiting, as of 1 January 1998, the export to non-OECD countries, for recycling, of waste featuring on the Regulation's 'amber' and 'red' lists.

1.2. This step is in line with Decision II/12 of the Basel Convention. The Decision, which is due to be ratified in September 1995, prohibits the export of hazardous waste to non-OECD countries.

1.3. It is important to point out the distinction between the terms 'waste' (used in the title of the Regulation) and 'hazardous waste' (used in the Basel Convention). The distinction is important because EU classification rules are not the same as those of the Convention, to which the EU is party.

1.4. The Community definition of hazardous waste was first laid down in Directive 78/319/EEC, which was subsequently replaced by Directive 91/689/EEC. In the recitals to a proposal amending this Directive in 1993 (), the Commission acknowledged that it had not been possible to draw up a Community list of hazardous waste. Possibly for that reason - and although the Council adopted the Community list in December 1994 () - the Commission Communication to the Council which accompanies the present proposal talks of 'hazardous waste', while the amendment to Regulation 259/93 speaks only of 'waste'.

1.5. The difficulty of interpreting and applying the Regulation stems precisely from this difficulty of drawing a uniform, precise distinction between waste which may be classified as neutral (and which may be used either for partial recovery or for controlled disposal) and other 'toxic and hazardous' waste.

1.6. The Community Regulation classes waste into the three categories of red, amber and green; recycling of the red and amber categories is subject to strict controls. For the purposes of the Basel Convention, however, hazardous waste (the only type of waste covered by the Convention), is either defined unilaterally as such by a party to the Convention or is considered such because (i) it belongs to a category of products mainly chemicals and heavy metals - subject to controls; and (ii) it possesses certain characteristics (e.g. flammability or toxicity) which confer this character. Hazardousness is thus determined by the combination of (i) and (ii), unless a party to the Convention unilaterally declares a product to be hazardous even though it may not have the aforementioned properties.

1.7. Hence some wastes may be deemed 'hazardous' under the Basel Convention which are not so under the Community Regulation.

1.8. At the initiative of some third world countries and international institutions, a special conference was called in Dakar in March 1995 to tackle these problems, as some of these countries felt that the prospects of their recycling and recovery industries, many of which had been set up only recently, were being undermined. This informal conference failed to reach any definitive conclusions, and a further informal seminar was convened in Denmark by the Danish Government in May to clarify matters. The seminar made significant progress towards a common definition of toxic and hazardous waste, but not enough to yield definitive conclusions.

1.9. The Basel Convention establishes a series of strict requirements, to be met both by the exporting and importing country, for the authorization of the shipment of waste for recycling. Despite this, the Commission seems to think that a total ban on the export to non-OECD countries of waste on the amber and red lists, even for treatment and recovery, is the only to prevent waste being exported without controls under the pretext that it is for recovery, and to prevent individual Member States from adopting their own measures to resolve the matter.

1.10. The Committee has already issued a unanimous Opinion on the Regulation. Its 1991 Opinion wholeheartedly endorsed the need to control waste, but felt that it should only apply to 'hazardous' waste. It also thought that the chosen legal instrument (a Regulation) should be clear and not open to differing interpretations, and that the proposal did not meet these conditions.

2. General comments

2.1. The Committee fully agrees that it is necessary to control the shipment of waste within and outside the Community, and to avoid the uncontrolled export of hazardous waste to countries which lack the requisite instruments for detecting and neutralizing the hazards. Since this is the objective of Decision II/12, which was unanimously adopted by the EU Member States and which the present proposal is designed to transpose into Community law, the Committee approves in principle the objective of the proposal.

2.2. However, the Committee fears that this objective can only be achieved by revising the entire body of legislation on the matter. In particular, it is concerned at the differing interpretations which surround the classification of hazardous waste, and reiterates the view of its 1991 Opinion, that the total export ban should apply to hazardous waste alone.

2.3. The Conventions, Regulations and Decisions of the different bodies (European Union, OECD, Basel Convention) are not mutually consistent. While they all share broadly the same objective, they overlap and contain different definitions. The Committee fears that these discrepancies, shortcomings and overlaps may be exploited improperly or may give an active stimulus to waste exports. It is important that the provisions on the restriction and prohibition of waste exports should be clear and simple for national customs officials to apply; these officials should check that the importing country has agreed to receive the waste.

2.3.1. The Committee is concerned that the proposal does not represent any definitive improvement on this front.

2.4. Furthermore, the Committee considers that the proposed Regulation should be more flexible with regard to waste for recycling, given that:

- the recovery of reusable materials from waste is, in principle, economically and ecologically sound. It forms an important part of the Community's trade relations with third countries - a point recognized in a recent Commission communication on the subject;

- the existing Regulation and the proposal (Decision II/12) indiscriminately restrict the recovery of recycling materials, when this should only be prohibited in the case of hazardous waste or of waste which is exported for recovery without sufficient guarantees that recovery will actually be effected;

- the proposal therefore does not consider the possibility of avoiding these dangers by exercising strict controls, in the country of origin, on waste for recycling, together with controls on its processing in the country of destination.

2.5. Decision II/12 provides for no such differentiated rules. The Committee therefore asks the Commission and Council to see that future negotiations on the revision of the Basel Convention take account of the comments made in 2.3 and 2.4 above.

3. Specific comments

3.1. A reference to Directive 91/689/EEC should be included in the recitals to the proposed Regulation.

Done at Brussels, 25 October 1995.

The President

of the Economic and Social Committee

Carlos FERRER

() OJ No C 164, 30. 6. 1995, p. 8.

() OJ No C 271, 7. 10. 1993.

() OJ No L 356, 31. 12. 1994.