Common Position (EC) No 18/2003

adopted by the Council on 6 March 2003

with a view to adopting Directive 2003/.../EC of the European Parliament and of the Council of...amending Directive 94/62/EC on packaging and packaging waste

(2003/C 107 E/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 95(1) thereof,

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

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

Acting in accordance with the procedure laid down in Article 251 of the Treaty(3),

Whereas:

(1) Pursuant to Directive 94/62/EC(4) the Council is required, no later than six months before the end of a five-year phase starting from the date by which that Directive should have been implemented in national law, to fix targets for the next five-year phase.

(2) The definition of "packaging" laid down in Directive 94/62/EC should be further clarified through the introduction of certain criteria and an annex containing illustrative examples. It is necessary, in order to achieve the ambitious recycling targets, to encourage the development of innovative and viable recycling processes, as for instance the chemical recycling of plastics.

(3) Recycling targets for each specific waste material should take account of life-cycle assessments and cost-benefit analysis, which have indicated clear differences both in the costs and in the benefits of recycling the various packaging materials, and should improve the coherence of the internal market for the recycling of these materials.

(4) Recovery and recycling of packaging waste should be further increased to reduce its environmental impact.

(5) Certain Member States which, on account of their special circumstances, were allowed to postpone the date fixed for achievement of the recovery and recycling targets set in Directive 94/62/EC should be granted a further, but limited, postponement.

(6) The management of packaging and packaging waste requires the Member States to set up return, collection and recovery systems. 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 of competition and to guarantee the maximum possible return of packaging and packaging waste, in accordance with the Treaty. The operators in the packaging chain as a whole should shoulder their shared responsibility to ensure that the environmental impact of packaging and packaging waste throughout its life cycle is reduced as far as possible.

(7) Community-wide data on packaging and packaging waste, including on waste exported for recycling and recovery outside the Community, are needed in order to monitor the implementation of the objectives of this Directive. This requires a harmonised reporting technique and clear guidelines for data providers.

(8) The Commission should examine and report on the implementation and impact of this Directive on both the environment and the internal market. This report should also cover the issues of essential requirements, waste prevention measures, a possible packaging indicator, waste prevention plans, reuse, producer responsibility and heavy metal and should, as appropriate, be accompanied by proposals for revision.

(9) Member States should promote relevant consumer information and awareness campaigns.

(10) In addition to the environmental and internal market objectives of this Directive, recycling may also have the effect of providing jobs which have declined elsewhere in society, and may thus help prevent exclusion.

(11) Since the objectives of the proposed action, namely to harmonise national targets for the recycling of packaging waste, taking into account individual circumstances of each Member State, and to provide further clarification on definitions, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale of the action, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.

(12) The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(5).

(13) Directive 94/62/EC should therefore be amended accordingly,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Directive 94/62/EC is hereby amended as follows:

1. the following subparagraph shall be added to point (1) of Article 3:"The definition of 'packaging' shall be further based on the criteria set out below. The items listed in Annex I are illustrative examples of the application of these criteria.

(i) Items shall be considered to be packaging if they fulfil the definition above without prejudice to other functions which the packaging might also perform, unless the item is an integral part of a product and all elements are intended to be consumed or disposed of together.

(ii) Items designed and intended to be filled at the point of sale and 'disposable' items sold, filled or designed and intended to be filled at the point of sale shall be considered to be packaging provided they fulfil a packaging function.

(iii) Packaging components and ancillary elements integrated into packaging shall be considered to be part of the packaging into which they are integrated. Ancillary elements directly hung or attached to a product and which perform a packaging function shall be considered to be packaging unless they are an integral part of this product and all elements are intended to be consumed or disposed of together.".

2. Article 6 shall be replaced by the following:

"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 30 June 2001 between 50 % as a minimum and 65 % as a maximum by weight of packaging waste will be recovered;

(b) no later than 31 December 2008 60 % as a minimum by weight of packaging waste will be recovered;

(c) no later than 30 June 2001 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;

(d) no later than 31 December 2008 between 55 % as a minimum and 80 % as a maximum by weight of packaging waste will be recycled;

(e) no later than 31 December 2008 the following minimum recycling targets for materials contained in packaging waste will be attained:

(i) 60 % by weight for glass;

(ii) 60 % by weight for paper and board;

(iii) 50 % by weight for metals;

(iv) 22,5 % by weight for plastics, counting exclusively material that is recycled back into plastics;

(v) 15 % by weight for wood.

2. Packaging waste exported out of the Community in accordance with Council Regulation (EEC) No 259/93(6), Council Regulation (EC) No 1420/1999(7) and Commission Regulation (EC) No 1547/1999(8) shall only count for the achievement of the obligations and targets of paragraph 1 if there is sound evidence that the recovery and/or recycling operation took place under conditions that are broadly equivalent to those prescribed by the Community legislation on the matter.

3. Member States shall, where appropriate, encourage energy recovery, where it is preferable to material-recycling for environmental and cost-benefit reasons. This could be done by considering a sufficient margin between national recycling and recovery targets.

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

(a) improving market conditions for such materials;

(b) reviewing existing regulations preventing the use of those materials.

5. Not later than 31 December 2007, the European Parliament and the Council shall, acting by qualified majority and on a proposal from the Commission, fix targets for the third five-year phase 2009 until 2014, based on the practical experience gained in the Member States in pursuit of the targets laid down in paragraph 1 and the findings of scientific research and evaluation techniques such as life-cycle assessments and cost-benefit analysis.

This process shall be repeated every five years.

6. The measures and targets referred to in paragraph 1 shall be published by the Member States and shall be the subject of an information campaign for the general public and economic operators.

7. Greece, Ireland and Portugal may, because of their specific situations, namely 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 30 June 2001, lower targets than those fixed in paragraphs 1(a) and (c), but shall at least attain 25 % for recovery;

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

(c) postpone the attainment of the targets referred to in paragraphs 1(b), (d) and (e) until a date of their own choice which shall not be later than 31 December 2012.

8. The Commission shall, as soon as possible and no later than 30 June 2005, present a report to the European Parliament and the Council on the progress of the implementation and impact of this Directive on the environment, as well as on the functioning of the internal market. The report shall take into account individual circumstances in each Member State. This report shall cover the following:

(a) an evaluation of the effectiveness of the implementation of the essential requirements;

(b) additional prevention measures to reduce the impact of packaging as far as possible without compromising its essential functions;

(c) the possible development of a packaging indicator to render packaging prevention simpler and more effective;

(d) possible packaging waste prevention plans;

(e) encouragement of re-use;

(f) producer responsibility including its financial aspects;

(g) efforts to reduce further and, if appropriate, ultimately phase out heavy metal in packaging by 2010.

This report shall, as appropriate, be accompanied by proposals for revision of the related provisions of this Directive, unless such proposals have, by that time, been presented.

9. Member States which have, or will, set programmes going beyond the maximum targets of paragraph 1 and which provide to this effect appropriate capacities for recycling and recovery shall be 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 this Directive. Member States shall inform the Commission of such measures. The Commission shall confirm these measures, after having verified, in cooperation with the Member States, that they are consistent with the abovementioned considerations and do not constitute an arbitrary means of discrimination or a disguised restriction on trade between Member States.".

3. Article 8(2) shall be replaced by the following:

"2. To facilitate collection, reuse and recovery including recycling, packaging shall indicate for the purposes of its identification and classification by the industry concerned the nature of the packaging material(s) used on the basis of Commission Decision 97/129/EC(9).".

4. The following subparagraph shall be added to Article 13:"Member States shall also promote consumer information and awareness campaigns.".

5. Article 19 shall be replaced by the following:

"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) and Article 10, second subparagraph, last indent), the formats relating to the database system (as referred to in Article 12(3) and Annex III) as well as the illustrative examples on the definition of packaging (as referred to in Annex I) shall be adopted in accordance with the procedure laid down in Article 21(2).".

6. Article 21 shall be replaced by the following:

"Article 21

Committee procedure

1. The Commission shall be assisted by a committee.

2. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC(10) shall apply, having regard to the provisions of Article 8 thereof.

The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.

3. The Committee shall adopt its rules of procedure.".

7. Annex I shall be replaced by the annex which appears in the Annex hereto.

Article 2

Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by...(11). They shall immediately inform the Commission thereof.

When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

Article 3

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

Article 4

This Directive is addressed to the Member States.

Done at...

For the European Parliament

The President

For the Council

The President

(1) OJ C 103 E, 30.4.2002, p. 17.

(2) OJ C 221, 17.9.2002, p. 31.

(3) Opinion of the European Parliament of 3 September 2002 (not yet published in the Official Journal), Council Common Position of 6 March 2003 and Decision of the European Parliament of...(not yet published in the Official Journal).

(4) OJ L 365, 31.12.1994, p. 10.

(5) OJ L 184, 17.7.1999, p. 23.

(6) OJ L 30, 6.2.1993, p. 1. Regulation as last amended by Commission Regulation (EC) No 2557/2001 (OJ L 349, 31.12.2001, p. 1).

(7) OJ L 166, 1.7.1999, p. 6. Regulation as last amended by Commission Regulation (EC) No 2243/2001 (OJ L 303, 20.11.2001, p. 11).

(8) OJ L 185, 17.7.1999, p. 1. Regulation as last amended by Regulation (EC) No 2243/2001.

(9) OJ L 50, 20.2.1997, p. 28.

(10) OJ L 184, 17.7.1999, p. 23.

(11) 18 months after the date of entry into force of this Directive.

ANNEX

"ANNEX I

Illustrative examples for criterion (i)

Packaging

Sweet boxes

Film overwrap around a CD case

Non-packaging

Flower pots intended to stay with the plant throughout its life

Tool boxes

Tea bags

Wax layers around cheese

Sausage skins

Illustrative examples for criterion (ii)

Packaging, if designed and intended to be filled at the point of sale

Paper or plastic carrier bags

Disposable plates and cups

Cling film

Sandwich bags

Aluminium foil

Non-packaging

Stirrer

Disposable cutlery

Illustrative examples for criterion (iii)

Packaging

Labels hung directly on or attached to a product

Part of packaging

Mascara brush which forms part of the container closure

Sticky labels attached to another packaging item

Staples

Plastic sleeves

Device for measuring dosage which forms part of the container closure for detergents."

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 10 December 2001, the Commission submitted to the Council its proposal on Directive of the European Parliament and of the Council amending Directive 94/62 on packaging and packaging waste.

2. The Economic and Social Committee delivered its Opinion on 29 May 2002.

3. The European Parliament adopted its Opinion at first reading on 3 September 2002.

4. On 7 March 2003, the Council adopted its common position in accordance with Article 251(2) of the Treaty.

II. OBJECTIVE

Directive 94/62/EC on packaging and packaging waste aims to harmonise national measures concerning the management of packaging and packaging waste in order 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. Directive 94/62/EC aims to ensure the functioning of the internal market and to avoid obstacles to trade and distortion and restriction of competition within the Community.

This proposal, which is based on Article 95(1) of the EC Treaty, concerns amendments to part of Directive 94/62/EC on packaging and packaging waste. This proposal is limited and comprises amendments to the targets for recovery and recycling of waste for a subsequent five-year phase thereby following up on the current targets for the first five-year phase.

Furthermore, the proposal seeks to introduce material specific targets for recycling of certain package waste materials. The proposal also suggests to introduce definitions for mechanical, chemical and feedstock recycling as well as to add a non-binding annex containing interpretation guidelines with a view to clarifying the definition of "packaging".

This limited proposal does not contain provisions relating to revision of a number of other aspects of the Directive such as prevention or producer responsibility.

III. ANALYSIS OF THE COMMON POSITION

1. General

On the basis of a cost-benefit analysis the Commission has proposed the limited revision of Directive 94/62/EC described under point II above, thus not proposing to undertake a broader revision at this point in time.

The Council has, in general, accepted this limited approach at this stage while emphasising a number of elements which should be considered in the coming report on the progress of the implementation and impact of the Directive on the environment as well as on the functioning of the internal market. This report should be able to serve as a basis for a broader revision.

Against that background, the main points of the common position, in addition to the requirements to the abovementioned report and a coming revision, are the following:

The Council finds that the definition of "packaging", which is already established in Directive 94/62/EC shall be further based on three supplementary criteria, which are accompanied by certain non-binding illustrative examples set out in an Annex. These supplementary criteria, as well as the non-binding illustrative examples, should help in the practical work when deciding what constitutes packaging and what is not packaging. Technical adaptation of the illustrative examples may be needed and can be initiated according to the relevant procedure.

The new definitions concerning recycling proposed by the Commission, which aim to distinguish between mechanical, chemical and feedstock recycling, have not been accepted since this is considered to be premature so long as newer forms of recycling are not yet fully developed.

With regard to the revision of targets, the Council agreed on an increase to 60 % of the minimum target for recovery of packaging waste, but without a maximum target which is no longer considered necessary to ensure the functioning of the internal market. Furthermore, the Council has agreed on an increase to 55 % of the minimum target for recycling of packaging waste with the maximum target being increased to 80 %. It was also agreed to establish specific minimum recycling targets for certain materials contained in packaging waste (glass, paper and board, metals, plastics recycled into plastics and wood). In connection with these increases of the targets it was decided to establish a somewhat longer timeframe than proposed by the Commission for Member States to reach the increased targets, namely a general deadline by 31 December 2008 and a special deadline four years later for the three Member States which were also granted this amount of additional time under Directive 94/62/EC.

The Council has also agreed upon editorial amendments in Article 1(3), (5) and (7), which update the formulations of Article 8(2), Article 19 and Article 21 of Directive 94/62/EC without aiming at changing the substance of those provisions.

The Commission has accepted the common position agreed by the Council.

2. European Parliament Amendments

In its Plenary vote on 3 September 2002, the EP adopted 44 amendments to the proposal.

(a) 16 of these have been incorporated (7 to the Articles, 8 to the recitals and 1 to the illustrative annex), either verbatim, in part or in spirit, into the Council's common position:

Amendment 2 is reflected in recitals 2, 4 and 9 of the common position as well as the general aim to further reduce the environmental impact of packaging by increasing certain targets.

Amendments 6, 11, 16 and 32 are reflected in the overall approach underlying the common position and more specifically in recitals 1, 2, 3 and 9 as well as in Article 1(1) and (2), in particular the formulations for Article 6(1) and (8). As explained under part 1 above, the Council agreed to reflect those issues, which should, at least, be covered in the coming broader revision, in the article setting out the requirements to the coming report on the progress of the implementation and impact of the Directive on the environment as well as on the functioning of the internal market.

Amendment 9 is reflected in recital 10 of the common position.

Amendment 12, which also covers the substance of amendment 13, is reflected in recital 6 of the common position.

Amendments 14 and 29 are reflected in recital 7 underlining the importance of a harmonised reporting technique and clear guidelines for data providers, including waste exported outside of the Community. Amendment 23 relates to the same substance. The Council considers that this limited revision is not the right place to decide about possible further measures in this regard, in view also of the fact that this can be dealt with on the basis of existing rules and the existing basis for improving such rules, in particular Decision 97/138/EC.

Amendment 21 is reflected in Article 1(2) in its formulation for Article 6(3).

Amendment 22 covers two parts. The first part is reflected in the common position with the broader concept of "improving market conditions" without a limitation to the use of "economic instruments" and with an encouragement to "review" rather than directly "eliminate" existing regulations of the kind in question (see Article 1(2) in its formulation for Article 6(4)). The second part, which is connected to amendment 4, is not accepted by the Council as set out below.

Amendment 30 is reflected in Article 1(4) in its formulation for Article 13.

Amendment 34 is reflected in Annex I as an additional illustrative example for criterion 3.

Amendments 53 and 62 relate to the export of packaging waste and the relationship of such export with this Directive. The Council has chosen to deal with this issue by requiring that packaging waste exported outside of the Community shall only count towards the obligations and targets of this Directive if there is sound evidence that the relevant recovery and/or recycling operation has taken place under conditions which are broadly equivalent to the conditions prescribed by Community legislation (see Article 1(2) in its formulation for Article 6(2)).

(b) The 29 amendments, which have not been incorporated, can be grouped as follows:

Amendments 1, 4, 7 and 8 as well as part 2 of amendment 22 are seen as too broad in this context both in view of the somewhat extensive formulation itself of these amendments and in view of the limited revision, which the Council agrees to undertake at this stage.

Amendment 3 cannot be accepted since it would delete the material specific recycling targets that the common position maintains.

Amendment 5 is seen as redundant as it points to an existing general obligation for the Commission.

Amendments 10 and 44 are considered to be contrary to existing obligations with regard to recycling in the Directive as they suggest a change to the voluntary formulation "Member States may encourage...".

Amendments 19 and 49 are the only amendments relating to the figures of the various targets and they relate only to recycling including suppression of maximum recycling target. The approach suggested in these amendments is not shared by the Council. The Council finds that the maximum recycling target should be retained (for internal market reasons) together with a generally achievable increase of the minimum recycling target (for environmental reasons), and also accompanied by a corresponding increase of the minimum recovery target (for environmental reasons), whereas the maximum target for recovery could be given up (in the light of experience indicating that it is not required for internal market reasons).

Amendment 20 is considered to be of marginal relevance once material specific targets for most packaging by weight have been introduced as is the case in the common position (see Article 1(2) in its formulation for Article 6(1)(e)).

Amendments 23 and 54, which have not been accepted, relate to the same substance as amendments 14 and 29 and the reasoning given there applies.

Amendment 25 relates to national return, collection and recovery systems, which is not seen as a relevant issue in the context in view of the limited revision undertaken at this stage.

Amendment 26 is seen as either redundant or as an attempt to emphasise certain existing obligations for Member States at the cost of other obligations. To the extent that the issue addressed by this amendment concerns producer responsibility, the reasoning set out in relation to amendments 6, 11, 16 and 32 applies.

Amendment 31 is seen as not fitting in this context, since the issue of access to information and documents is a cross-cutting issue dealt with elsewhere.

Amendments 33, 36, 37, 38, 39, 40 and 47 relate to the illustrative examples in the Annex and are seen as issues which could usefully be dealt with via a technical adaptation of the Directive.

Amendment 35 has not been accepted since the supplementary criteria have been structured differently in the common position compared to the proposal from the Commission and since the word "inseparable" is no longer used and therefore needs no explanation.

Amendments 41 and 42/rev are seen as unclear with regard to the underlying intention and the operationality of the suggested provision, since they seem to exempt some quite specific kinds of packaging waste from all obligations under the Directive without establishing why. Moreover, the efforts that would be needed to implement the suggested provision seem out of proportion to the (unclear) purpose.

Amendment 43 is seen as redundant, since the definitions proposed by the Commission have not been retained.

Amendment 45 postpones the general deadline for achieving the revised targets by six months and puts the deadline at the end of a calendar year. The Council agrees with principle of the end of a calendar year and also considered that a limited postponement was relevant, but the Council finds that the deadline should be somewhat longer than suggested in this amendment.

IV. CONCLUSION

The Council considers that its common position takes account of the Opinion of the European Parliament in first reading to an important extent and wherever possible on the basis of the approach of a limited revision, with a feasible increase of certain targets at this stage coupled with requirements for the coming broader revision. The Council's common position represents a balanced solution for a focused amendment of the Directive and, within that line of ambition, ensures an environmental benefit to be derived from the new targets while making requirements on industry which are practically feasible and while also maintaining the internal market safeguards necessary in this field.