Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on Shipments of Waste

(presented by the Commission)

TABLE OF CONTENTS

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL ON SHIPMENTS OF WASTE

EXPLANATORY MEMORANDUM

1. Introduction

2. Background for the revision

3. Legal basis

4. Objectives and main elements of the proposal

4.1. Objectives

4.2. Main elements

4.2.1. The overall procedural framework of the proposal

4.2.2. Main changes to the structure of the Regulation

4.2.3. Main changes and clarifications as regards scope and definitions - Title I

4.2.4. Main changes and clarifications as regards shipments within the Community - Title II

4.2.5. Main changes and clarifications as regards shipments within Member States - Title III

4.2.6. Main changes and clarifications as regards exports out of and imports into the Community - Titles IV, V and VI

4.2.7. Main changes and clarifications as regards other provisions - Title VII

5. Environmental aspects

6. Economic aspects

7. Internal market aspects

8. International aspects

9. Trade aspects

10. Subsidiarity and proportionality

11. Consultation of stakeholders

12. Annexes

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL ON SHIPMENTS OF WASTE

TITLE I Scope and definitions

TITLE II shipments between member states within the Community or with transit through third countries

TITLE III Shipments within Member States

TITLE IV Exports out of the Community to Third Countries

TITLE V Imports into the Community from third countries

TITLE VI Transit through the Community from and to third countries

title VII Other Provisions

ANNEX IA

ANNEX IB 102

ANNEX II 105

ANNEX III 109

ANNEX IV 112

ANNEX IVA 115

ANNEX V 116

ANNEX VI 176

ANNEX VII 177

ANNEX VIII 178

ANNEX IX 179

ANNEX X 180

EXPLANATORY MEMORANDUM

1. Introduction

The Community introduced measures on the supervision and control of shipments of waste in 1984 under Council Directive 84/631/EEC of 6 December 1984 [1]. The Directive took effect from 1 October 1985 and covered shipments of hazardous waste; it required prior notification to the countries involved, thereby allowing them to object to a specific shipment.

[1] OJ L 326, 13.12.1984, p. 31.

Directive 84/631/EEC was amended by Council Directive 86/279/EEC of 12 June 1986 [2], which introduced additional provisions in order to improve the monitoring of exports of waste out of the Community. Subsequently, in accordance with the appropriate committee procedure, the Commission adopted several technical amendments to these Directives [3].

[2] OJ L 181, 04.7.1986, p. 13.

[3] To Council Directive 84/631/EC of 6.12.1984: Commission Directive 85/469/EC of 22.07.1985, OJ L 272, 12.10.1985, p.1 and Council Directive 86/121/EC of 08.04.1986, OJ L 100, 16.04.1986, p. 20. To Council Directive 86/279 of 12.6.1986: Commission Directive 87/112/EC of 23.12.1986, OJ L 48, 17.2.1987, p. 31.

In 1990, following international developments in the context of the Basel Convention and the OECD, the Commission put forward the proposal [4] for the current Waste Shipment Regulation (EEC) No 259/93 of 1 February 1993. A Regulation rather than a Directive was deemed necessary in order to ensure simultaneous and harmonised application in all the Member States. Transposition and implementation of the 1984 and 1986 Directives were thus considerably delayed or not carried out at all in some Member States.

[4] COM(1990) 415 final, 26 October 1990.

The 1993 Regulation entered into force on 9 February 1993 and was applicable as of 6 May 1994. Since then, it has undergone technical modifications through the appropriate committee procedure. [5].

[5] Namely the following:

2. Background for the revision

Legal obligation

The Basel Convention of 22 March 1989 on the control of transboundary movements of hazardous wastes and their disposal, as amended, [6] and the OECD Decision C(92)39/final on the control of transfrontier movements of wastes destined for recovery operations, as amended, are the main pillars of the 1993 regulation.

[6] On 1 February 1993 the Council approved the Basel Convention on behalf of the Community, see Council Decision 93/98/EEC, OJ L 39, 16.2.1993, p. 1.

Recent developments under the Basel Convention, in particular the adoption of two detailed lists of wastes as new Annexes VIII and IX to the Convention in November 1998, provided the impetus to the OECD to revise its 1992 Decision in order to harmonise lists and certain other requirements with the Basel Convention. This revision resulted in the adoption of OECD Council Decision C(2001)107 on 14 June 2001 [7]. In order to implement that amended Decision within the Community, a revision of the Regulation has thus become legally necessary.

[7] Decision of the OECD Council, C(2001)107/final concerning the revision of Decision C(92)39/final on the control of transfrontier movements of wastes destined for recovery operations. An addendum to this Decision, C(2001)107/ADD1, which includes the notification and movement documents and the instructions to complete them, was adopted by the Council on 28 February 2002. Finally, the addendum was incorporated into the Decision as Section C of Appendix 8 and the complete version of the Decision was issued in May 2002 as C(2001)107/FINAL.

In the Council Conclusions [8] authorising the Member States to vote on behalf of the Community in favour of the amended OECD Decision as contained in OECD Document C(2001)107, it is stated that the said Decision will be binding on Member States and the Community only on completion of the necessary Community procedures. The Community is thus legally required to revise the current Regulation in order to implement the amended OECD Decision [9].

[8] See Council Conclusions in document 9458/01, adopted 1 June 2001.

[9] The Council Conclusion of 1 June 2001 further establishes, that after completion of the necessary Community procedures, the Commission will make a declaration towards the OECD, specifying that the Community procedures for application of the 2001 OECD Decision have been completed.

Occasion for improvements

Since the entry into force of Council Regulation (EEC) No 259/93, several difficulties have been encountered regarding its application, administration and enforcement.

These problems have been discussed with Member States and stakeholders since 1999. In light of these discussions, a revision of the Regulation has been deemed necessary. The legally required revision thus provides an opportunity also to address issues in addition to those arising directly from the implementation of the OECD amendment and to seek to establish legal clarity on these issues.

It has also been the intention of the Commission to move towards maximum global harmonisation in the area of shipments of waste without jeopardising the overall purpose of protection of the environment. Implementing the provisions and principles of the Basel Convention is therefore also a priority in the proposal.

Lastly, the Regulation has been restructured and streamlined to convey more efficiently the logic of its obligations and thus to achieve greater clarity.

3. Legal basis

The primary objective of the 1993 Regulation is protection of the environment. That main objective has been maintained in the new proposal, whose legal basis is therefore environment, Article 175 of the EC Treaty. This is consistent with the Council's decision to base Council Regulation (EEC) no 259/93 on Article 130S (now Article 175) and with the ruling of the Court of Justice in Case C-187/93, which confirmed that the Regulation was correctly based on Article 130S rather than Article 100 (now Article 94, internal market).

However, as regards the provisions of Titles IV, V and VI on exports out of, imports into and transit through the Community to and from third countries, it can be argued that these are rules which pursue an overall and general environmental objective, as well as rules on international trade; environmental rules therefore also apply to the trade regime and are thus linked to it. Therefore, the legal basis as regards the specific provisions in these three Titles is Article 133 of the EC Treaty.

4. Objectives and main elements of the proposal

4.1. Objectives

As already described under point 2, the proposal has four main objectives:

- Implementing the OECD Council Decision C(2001)107 of 14 June 2001 in Community legislation.

- Addressing the problems encountered in the application, administration and enforcement of the 1993 Regulation and establishing greater legal clarity.

- Pursuing global harmonisation in the area of transboundary shipments of waste.

- Enhancing the structure of the Articles of the Regulation

In order to achieve these objectives, the revision amends various sections and aspects of Council Regulation (EEC) No 259/93. These include:

- Changes to its structure

- Changes and clarifications as regards definitions, and clarification of its scope (Title I)

- Changes and clarifications as regards the procedures applicable to shipments of waste (Title II-VI):

- between Member States (Title II)

- within Member States (Title III)

- for exports out of and imports into the Community (Titles IV, V and VI)

- Changes in other provisions of the Regulation (Title VII).

4.2. Main elements

4.2.1. The overall procedural framework of the proposal

The proposed main elements of the procedural framework are as follows:

Shipments of waste must follow various procedures and control regimes, which are determined by the type of waste shipped and the type of treatment that will be applied to the waste at its destination. Thus, different levels of control regime apply, depending on the risk posed by the waste and its treatment in terms of recovery or disposal.

The procedure for prior written notification and consent:

Shipments of all waste destined for disposal, and shipments of hazardous and semi-hazardous waste destined for recovery, are subject to the requirement of prior written notification and consent.

Thus, when a waste producer or waste collector - the notifier - intends to carry out a shipment of hazardous or semi-hazardous waste as listed in Annex IV for recovery or disposal, or a shipment of non-hazardous waste as listed in Annex III for disposal, he or she must submit prior written notification to the competent authority of dispatch.

The notifier effects a notification by filling in the so-called notification and movement documents, thus providing the information and documentation necessary to assess the notification.

At the time of notification, the notifier is also to establish a contract with the consignee concerning the recovery or disposal of the notified waste, and a financial guarantee or equivalent insurance which covers the shipment until recovery or disposal has been completed.

Upon receipt of a properly filled-in notification, the competent authority of dispatch transmits copies of the notification to the other competent authorities concerned and to the consignee and informs the notifier of this transmission. The competent authority of dispatch is to transmit the notification within 3 working days of receipt.

When the competent authority of destination receives a copy of the notification from the competent authority of dispatch and considers that the notification has been properly completed, it issues an acknowledgement to the notifier.

This acknowledgement marks the start of a 30-day time limit, within which the competent authorities of destination, dispatch and transit must either consent to the notified shipment or object to it.

The notions of "properly filled-in" and "properly completed" are further defined in Article 5(2) and (3) of the Regulation.

The competent authorities of destination and of dispatch must give their consent to the shipment in writing to the notifier. The competent authority of transit, however, may give tacit consent. This means that if no objection has been lodged within the 30-day time limit, consent by the competent authority of transit can be assumed.

A shipment may only start once the notifier has received:

1) written consent from the competent authority of dispatch,

2) written consent from the competent authority of destination, and

3) written consent from the competent authority of transit, or once the 30-day time limit has expired and tacit consent can therefore be assumed.

A shipment of waste must be accompanied by a copy of the notification and movement documents, including copies of the consents given by the competent authorities.

As mentioned below, it is also suggested that this procedural framework provide the basis for imports into and exports out of the Community, with the modifications required to fulfil the obligations of the Basel Convention.

General information requirement:

Shipments of non-hazardous waste as listed in Annex III and destined for recovery are not subject to the procedure of prior written notification. Such shipments are only subject to the general information requirement that they be accompanied by certain information and documentation.

However, a contract must also be established between the person who arranges the shipment and the consignee as regards the recovery of the shipped waste, and evidence of that contract must accompany the shipment.

It should be noted that shipments of non-hazardous waste as listed in Annex III and destined for recovery in countries to which the OECD Decision does not apply are and will continue to be subject to a separate regime, as provided for in Article 38 (see point 4.2.6.).

4.2.2. Main changes to the structure of the Regulation

The structure of the proposed revision is basically the same as that of the 1993 Regulation, namely, a division into Titles determined by the destination of the waste:

Title II: Shipments between Member States within the Community or with transit through third countries Title III: Shipments within Member States Title IV: Exports out of the Community to third countries Title V: Imports into the Community from third countries Title VI: Transit through the Community to and from third countries Title VII: Other Provisions

The primary change is that all the articles currently contained in Title VII, on common provisions, and some of the articles contained in the current Title VIII, on other provisions, have been moved to Title II, on intra-Community shipments. This has become possible because the logic of the provisions as regards exports out of and imports into the Community has been changed to allow the provisions of Title II to apply mutatis mutandis (see point 4.2.6. below), with certain modifications and additions to comply with the requirements of the Basel Convention. Thus, a specific Title on common (procedural) provisions has become superfluous.

The general logic of the revision is that the provisions regarding intra-Community shipments as contained in Title II form the basis for the Regulation. Title II therefore also contains the common provisions.

Title II contains six chapters:

Chapter 1 regarding the procedure of prior written notification and consent, Chapter 2 regarding the procedure for a general information requirement, Chapter 3 regarding general requirements, Chapter 4 regarding take-back obligations, Chapter 5 regarding general administrative provisions, and Chapter 6 regarding shipments within the Community and with transit via third countries.

Titles IV and V each contain three chapters:

Chapter 1 regarding waste destined for disposal, Chapter 2 regarding waste destined for recovery, and Chapter 3 regarding general provisions.

Title VII consists of provisions that are not relevant for the procedural component of the Regulation. Chapter 1 thus contains other provisions related to Member States as regards enforcement, reporting, international co-operation and the designation of competent authorities, correspondents and customs offices under the Regulation. Chapter 2 contains other provisions as regards meeting of the correspondents, the amendment of Annexes, additional measures, repeals, transition rules and entry into force and applicability.

4.2.3. Main changes and clarifications as regards scope and definitions - Title I

1. Scope: Article 1 has been shortened and provisions not strictly related to scope have been moved to the relevant articles.

In paragraph 4 it is proposed to clarify that shipments from the Antarctica transiting the Community are subject to the Basel Convention export bans as implemented in the Regulation (see point 4.2.6, sub-point 2 below).

The current Article 1(3) (c) and (d) concerning "exceptional cases" in relation to the control of non-hazardous waste as listed in Annex II (proposed Annex III) has been moved to Article 3 - an (new) introductory article on the overall procedural framework.

Finally, the scope of the Regulation as regard waste listed in Annex III has been clarified.

2. Definitions: The terminology as regards "notifier", "consignee", "dispatch" and "destination" as opposed to "exporter", "importer", "export" and "import", respectively, has not been harmonised with the terminology of the Basel Convention and the 2001 OECD Decision. This would require using different terminology for the provision on intra-Community shipments compared to those on imports into and exports out of the Community. For that reason, the term "shipment" has also been retained.

Several new definitions have been added: "hazardous waste", "mixture of waste", "environmentally sound management", "producer", "holder", "collector", "notification and movement document", "competent authority", "Overseas Countries and Territories", "customs office of export from the Community", "customs office of exit from the Community" and "customs office of entry into the Community" as well as "Community", "import" and "transboundary shipment".

It is proposed that the general definition of "competent authority" be amended - and aligned with the Basel convention - inter alia in order to accommodate the concerns related to imports back into the Community of military waste generated by the armed forces of Member States. Therefore,, in the case where no competent authority has been designated, the competent authority is to be the regulatory authority for the State or region that has jurisdiction over a transboundary shipment of waste, which may include military authorities.

A definition of "environmentally sound management" of waste has been added. It mirrors the definition of the Basel Convention and is used with respect to exports out of and imports into the Community. As regards intra-Community shipments, the objective of ensuring that waste is recovered or disposed of without endangering human health or harming the environment, as required in Article 4 of Directive 75/442/EEC, as amended, [10] applies.

[10] OJ L 194, 25.7.1975, p. 39.

Finally, it should be noted that the definition of "notifier" has been moved from the definitions to Article 4 and clarified. It is thus proposed to give equal footing to the first three categories of notifiers in the hierarchy of notifiers - namely the original producer, the new producer and the collector (of small quantities from different sources), see Article 4(2).

The notifier is thus:

(a) the person whose activities produced the waste; or

(b) the person licensed to and carrying out pre-processing, mixing or other operations changing the nature or composition of the waste prior to shipment; or

(c) a licensed collector who, from various small quantities of the same type of waste stream collected from a variety of sources, has compiled the shipment.

Only if these persons are unknown, insolvent or otherwise unavailable, a licensed collector or a registered dealer or broker may notify. Lastly, in the third rank, the holder can notify.

4.2.4. Main changes and clarifications as regards shipments within the Community - Title II

Title II contains the main provisions of the Regulation. As mentioned, that change has been made because, firstly, these provisions apply mutatis mutandis to exports out of and imports into the Community, although with certain modification and additions and, secondly, approximately 79% of all shipments involving Member States take place between Member States within the Community [11].

[11] Calculation based on Member States reporting as regard shipments of hazardous waste for the years 1997-1999. Approximately 15% are between and from EFTA countries and Member States and approximately 7% are between OECD and Member States and other countries.

The main changes to the proposal as compared to the 1993 Regulation are as follows:

1. Lists: Reduction of the number of lists from three to two.

The current lists reflects the listing in the 1992 OECD Decision and groups categories of waste types into:

- Non-hazardous waste as listed in Annex II /green listed waste

- Semi-hazardous waste as listed in Annex III/amber listed waste

- Hazardous waste as listed in Annex IV /red listed waste.

In line with the 2001 OECD Decision, it is proposed to merge the current Annexes III and IV into one Annex - Annex IV - and to keep the current Annex II as Annex III.

Also in line with the 2001 OECD Decision, it is proposed to include Annexes II and VIII of the Basel Convention in Annex IV of the Regulation and to include Annex IX of the Basel Convention in Annex III of the Regulation. Annexes II, VIII and IX of the Basel Convention list "categories of waste requiring special consideration" (II), hazardous waste (VIII) and non-hazardous waste (IX), respectively.

2. Procedures: Reduction of the corresponding procedures from three to two.

The 1993 Regulation establishes three procedures depending on the listing and the destination of the waste notified:

- Non-hazardous waste as listed in Annex II and destined for recovery is only subject to the requirement of being accompanied by certain information.

- Semi-hazardous waste as listed in Annex III and destined for recovery is subject to a procedure based on prior notification and tacit consent.

- Hazardous waste as listed in Annex IV, waste not listed and destined for recovery and all waste destined for disposal are subject to a procedure based on prior notification and written consent.

To simplify the Regulation, it is proposed to reduce the number of procedures to two. One procedure involves information requirements as regards waste listed in Annex III and destined for recovery [12]. The other concerns prior notification with written consent as regards all other shipments - namely, as regards all waste destined for disposal and waste listed in Annex IV and destined for recovery. Tacit consent is, however, allowed as regards the competent authority of transit.

[12] It can be debated, if the requirement that waste listed in Annex III shall be accompanied by certain information is a procedural requirement or not. However, since the OECD Decision uses the terminology "green control procedure" in relation to shipments of waste listed in Annex III (Appendix 3 of the 2001 OECD Decision) and since it is clearer from a descriptive point of view if it is referred to as a procedure, it is considered appropriate to use a "procedure-terminology" in relation to this information requirement. In certain contexts the term "normal commercial transaction" is used.

On this point the proposal does not follow the 2001 OECD Decision, which requires tacit consent and the possibility of written consent for hazardous and semi-hazardous waste as listed in Annex IV and destined for recovery (amber waste - amber procedure). Since the lists of hazardous waste (red) and the list of semi-hazardous waste (amber) have been merged, the current procedure for hazardous waste, of prior notification with written consent (red list - red procedure), is abolished in the 2001 OECD Decision. It must be noted that the OECD Decision only deals with waste destined for recovery.

The reasons for not following the 2001 OECD Decision on this point and instead requiring written consent are several. Firstly, it is not considered appropriate from an environmental point of view to allow tacit consent from the competent authorities of destination and dispatch as regards shipments of all the hazardous waste now listed in Annex IV. Secondly, the Basel Convention requires written consent for shipments of hazardous waste from all the competent authorities involved. And thirdly, the benefit of procedural simplification would thereby be lost - because if tacit consent were to be allowed for shipments destined for recovery, written consent would still be maintained as regards all waste destined for disposal. Fourthly, written consent establishes greater legal clarity for all stakeholders involved; for this reason it is clearly preferable from a control and enforcement perspective.

To summarise, the proposed simplified procedural framework is as follows:

- Shipments of non-hazardous waste as listed in Annex III and destined for recovery are to be accompanied by certain information.

- Shipments of all waste destined for disposal, hazardous and semi-hazardous waste as listed in Annex IV and non-listed waste destined for recovery are subject to prior notification and written consent (tacit from transit country).

3. Consent by the competent authorities individually: It is proposed that the competent authorities give their consent individually and within a time limit of 30 days.

As pointed out above under sub-paragraph 2, the proposal does not follow the 2001 OECD decision as regards the element of tacit consent: written consent is proposed as the main rule (however, not for the competent authority of transit).

As regards consent, the 2001 OECD Decision also establishes that the competent authorities are to grant consent individually. That is the case under the current 1993 Regulation with respect to waste destined for recovery. However, with respect to waste destined for disposal, the position under the current regime is that the competent authority of destination only grants authorisation to a notified shipment in the absence of objections from the other competent authorities concerned. The competent authorities thus have different time limits to comply with, since the competent authority of destination has to "wait" for the reaction of the other authorities.

The bases for proposing that individual consent by the competent authorities become the main and general rule are as follows: First, this makes it possible to establish a single time limit for all competent authorities (30 days after acknowledgement by the competent authority of destination). Secondly, it makes it possible to maintain a further element needed in order to streamline the proposal: namely, that intra-Community provisions apply mutatis mutandis to exports and imports. Without individual consent, it would have been necessary to establish specific provisions covering countries to which the OECD Decision applies.

4. Processing of the notification by the competent authority of dispatch: It is proposed that notification be sent by the notifier to the competent authority of dispatch. The competent authority of dispatch then transmits the notification to the other competent authorities concerned and to the consignee.

At present, Member States can decide whether a notification goes through the competent authority of dispatch to the countries concerned or if it is sent by the notifier to all the competent authorities concerned.

It is proposed to abolish that choice and to require that a notification goes to and through the competent authority of dispatch. Under the Basel Convention, notifications must be processed through the competent authority of dispatch, whereas this is optional in the 2001 OECD Decision.

To ensure a uniform implementation of the Regulation, it is considered most efficient to abolish the procedural choice provided for in the existing Regulation. Further, it is considered that processing notifications through the competent authority of dispatch will be increase the efficiency of the process. Control of the basic information and documentation requirements related to a notification could thus - in the majority of cases - be carried out by the competent authority of dispatch.

5. Procedural safeguards for the notifier: Where the competent authority of dispatch processes the notification, the system could be misused to in effect block shipments. To avoid such misuse, several procedural safeguards are introduced.

First of all, the notion of a "properly filled-in" notification is established to determine exactly when a notification is to be submitted to the other competent authorities and the consignee by the competent authority of dispatch.

Secondly, the notion of a "properly completed" notification is established, to determine exactly when the 30-day time limit for issuing consent and/or objections has been triggered.

For the purpose of these two notions, a distinction is made between a) information and documentation that must be provided on or annexed to the notification and movement documents, and b) additional information and documentation that may be requested by the competent authorities concerned at the time when the shipment is notified to them.

Thirdly, an annex is established, listing which information and documentation may be requested, and at what stage of the notification.

Fourthly, the notifier is given the possibility to request - within a certain time limit - a reasoned explanation by the competent authority of destination as to why it refuses to accept the notification as complete. An explicit and reasoned explanation will allow the notifier to question such a decision through administrative appeal or through the courts.

6. Objections to shipments: It is proposed to clarify the possibility to object to shipments for recovery and disposal for the purpose of allowing objections in the following situations as well:

- To ensure that the waste concerned will be treated in a facility that is covered by Directive 96/61/EEC on Integrated Pollution Prevention and Control but does not apply Best Available Techniques as defined in Article 9(4) of that Directive (when destined for disposal and when destined for recovery).

- To ensure that the waste concerned is treated in accordance with legally binding environmental protections standards in relation to disposal or recovery operations established under Community legislation (when destined for disposal and when destined for recovery).

- To ensure that the waste concerned is treated in accordance with waste management plans drawn up pursuant to Article 7 of Directive 75/442/EC with the purpose of ensuring the implementation of legally binding recovery or recycling obligations established under Community legislation (when destined for recovery).

The objective of the Waste Framework Directive [13] is generally to promote the prevention and recovery of waste. A number of instruments of EU legislation, including the Packaging Directive [14], the Waste Oils Directive [15], the End of Life Vehicles [16] Directive, the Landfill Directive [17], and the Directive on Waste Electrical and Electronic Equipment, [18] establish priorities and targets for recovery and recycling as well as other requirements regarding waste treatment which are binding on Member States. It is thus considered appropriate that the Regulation clarify that, where the waste concerned comes under such Community obligations, a shipment may be objected to in two cases. The first case is where technical requirements which are mandatory at EU level will not be complied with. The second case is where the waste concerned will not be treated in accordance with the waste management plans drawn up by Member States as required by Article 7 of the Waste Framework Directive, with the purpose of ensuring the implementation of legally binding recovery or recycling obligations established in Community legislation. This is consistent with the 6th Environmental Action Programme, which calls for further measures to encourage recycling and recovery of waste in accordance with the guiding principles of the waste hierarchy.

[13] Council Dir. 75/442/EEC of 15.07.1975, OJ L 194, 25.07.1975, p. 39.

[14] Council Dir. 94/62/EC of 20.12.1994, as amended, OJ L365 of 31.12.94, p. 10.

[15] Council Dir. 75/439/EEC of 16.06.1975, OJ L 194, 25.07.1975, p. 23.

[16] Parliament and Council Dir. 2000/53/EC of 18.09.2000 - Commission Statements OJ L 269, 21.10.2000, p. 34.

[17] Council Dir. 1999/31/EC of 26.04.1999, OJ L 182, 16.07.1999, p. 1.

[18] Parliament and Council Dir. 2002/96/EC of 27.01.03, OJ L 37, 130203, p. 24.

Policies are being developed at the Community and Member State levels to promote recovery and recycling of waste. However, there are only few Community environmental requirements for waste recovery operations, with the notable exception of incineration. Waste therefore may be flowing to least costly and thus probably also low standard solutions. However, little factual information is available about these the actual waste flows involved. In this specific situation the combination of free trade and absence of Community environmental standards may result in the exclusion of environmentally superior performing installations and treatment methods from the market and efforts in Member States to implement high environmental standards in the waste recovery sector may also be undermined. Therefore, the Commission acknowledges the need to establish a Community level playing field for recycling and to guarantee a high level of environmental protection and economic performance. The Commission will include proposals aiming towards that in the context of the Thematic Strategy on Recycling.

7. Interim recovery and disposal operations: Special provisions regarding interim recovery and disposal operations are proposed, mirroring those of the 2001 OECD Decision.

It is thus proposed to clarify that interim recovery and disposal facilities are bound by the same obligations as final recovery and disposal facilities - meaning that they must also provide written confirmation regarding receipt of a waste and certify completion of the interim recovery or disposal operation - and within the same time limits. Further, it is proposed that when an interim facility delivers waste for subsequent and final recovery or disposal to another facility, it is to obtain as soon as possible, but no later than one calendar year following delivery of the waste, a certificate from that facility stating that subsequent and final recovery or disposal has been completed.

In the context of the requirement to establish a financial guarantee or equivalent insurance, it is further proposed that if a shipment is destined for an interim operation, then that requirement may be fulfilled by the establishment of an additional financial guarantee or equivalent insurance by the consignee, covering the said shipment until completion of final recovery or disposal. This is intended to make clear that a financial guarantee or equivalent insurance must cover the entire shipment until final disposal or recovery.

8. Information requirements as regards shipments of non-hazardous waste as listed in Annex III: It is proposed to extend and clarify the list of information and documentation which must accompany shipments of waste listed in Annex III and destined for recovery.

It is thus proposed that the name and address of the producer, the new producer or collector, the person who arranges the shipment, the consignee and the holder(s) are to be provided. At present, only the name and address of the holder are required. Further, it is proposed that the waste identification code shall be provided, using the OECD code in Annex III of the Regulation and the European Waste List code in Commission Decision 2000/532/EC, as amended. [19].

[19] OJ L 226, 6.9.2000, p. 3.

Further, an annex is introduced containing a form to be used to provide the information that must accompany shipments of non-hazardous waste as listed in Annex III. No such form exists at present. However, a fixed form is proposed to ensure that Industry need not deal with different requirements as regards forms and information from the different Member States.

Additional requirements are proposed in order to facilitate better controls over non-hazardous wastes as well. As a recent case involving the contamination of feed and food chains by waste sugar containing hormones (MPA) has made clear, the control of shipments of supposedly non-hazardous waste is needed. The far-reaching consequences of a misclassification of a waste stream for the purpose of the Waste Shipment Regulation (EEC) No 259/93 are not to be underestimated [20].

[20] In just one of the Member States affected - the Netherlands - the costs are estimated to have been 107 to 132 million EUR in total (primary sector: EUR 43 million, feed sector: EUR 33 million, slaughterhouses: EUR 25 to 50 million and government: EUR 6 million).

Finally, it is proposed that evidence of a contract between the person who arranges the shipment and the consignee for recovery of the waste is to be provided and that the contract must include an obligation for the person who arranges the shipment to take back the waste if the shipment has not been completed as planned or if it has been effected in violation of the provisions of the Regulation.

The last requirement is to be seen in connection with the clarification as regards take-back obligations in Articles 24 and 26 (see sub-point 13 below). It is thus proposed that the take-back obligation, in cases where a shipment cannot be completed as intended or where it is to be considered illegal, also is to cover shipments of non-hazardous waste as listed in Annex III of the Regulation (see below sub-point 13).

9. Waste destined for laboratory analysis: In line with the 2001 OECD Decision, shipments of waste explicitly destined for laboratory analysis are not subject to the procedure of prior written notification and consent.

Instead it is proposed that the person who arranges for such shipments must inform the competent authorities about the shipment three working days before the shipment starts and that the shipment must be accompanied by certain information.

10. Administrative rule regarding waste containing POP chemicals: It is proposed that waste consisting, containing or contaminated with the chemicals listed in Annexes A, B and C of the Stockholm Convention or in Annex VIII to the Regulation be subject to the same provisions as shipments of waste destined for disposal.

Without prejudging the technical implementation of the Stockholm Convention, this article will, in the shipment context, establish a clear administrative rule. It will be clear, in particular as regards exports out of the Community, that such shipments are prohibited unless they are destined for EFTA countries. In application of the precautionary principle, it is important to strictly control any shipment of waste containing, consisting of or contaminated by POPs, in order to prevent inadequate management of these substances.

11. Administrative rule clarifying disagreements on classification issues: It is proposed to establish a procedural rule regarding disagreement between competent authorities on classification of a waste as waste, classification and listing of a waste and classification of certain operations as recovery or disposal.

It is thus proposed that a clear and precise procedural rule be established to the effect that the most stringent procedure applies in such cases of disagreement. It should be emphasised that the rule only applies for the purpose of this Regulation and is without prejudice to any legal actions taken to address such disagreements between competent authorities.

12. Financial guarantee or equivalent insurance: It is proposed to clarify that the financial guarantee or equivalent insurance established by the notifier must be established and legally binding at the time of notification and must apply to the notified shipment when the shipment starts, at the latest.

It is also proposed to clarify that the amount of the coverage of the guarantee or equivalent insurance is to be approved by the competent authority of dispatch, that all competent authorities are to have access to it and that it must also cover possible storage costs.

Further, it is clarified that the guarantee must be valid and must cover a notified shipment throughout that shipment, including through the completion of final recovery or disposal. Finally, it is established that if a shipment is destined for recovery or disposal operations which are considered interim, this requirement may be fulfilled by the establishment of an additional guarantee or equivalent insurance by the consignee covering the said shipment until the completion of final recovery or disposal.

13. Take-back obligations: It is proposed to clarify that the obligation to take waste back - both in cases where the shipment cannot be completed as intended and in cases where the shipment is to be considered illegal - also applies to non-hazardous waste as listed in Annex III and destined for recovery. Clarifications are also suggested as regards the obligation to make new notifications in cases of take-back. It is thus considered appropriate to require take-back of all waste, and not just as regards waste subject to prior written notification and consent.

14. The Commission's role as transmitting information from Member States: It is proposed that in cases where the Member States must communicate information about legislation, pre-consented facilities etc. to other Member States, the Member State concerned is itself responsible for that communication.

At present, when the Commission receives such information from a Member State, it passes it on to the other Member States. However, in the light of modern communication methods, it is considered that such a function should rather be carried out by the relevant Member State itself. It is thus proposed that Member States communicate such information both to the Commission and to the other Member States.

15. Communication by means of electronic data interchange: To prepare for (future) developments in the area of communication by means of electronic data interchange with electronic signature, it is proposed to establish the possibility of communicating by such means. Such communication shall only be allowed, however, according to the decision made by the competent authorities concerned.

If such communications are allowed, the competent authority of dispatch may decide to take over and carry out the submission of the communication mentioned. Otherwise, the notifier and the consignee would be obliged to submit the above-mentioned communication. For some notifiers and consignees, this could constitute a serious technical and financial burden, while for others that will not be the case. Therefore, the decision by the competent authority of dispatch to take over the communication function is to be taken in agreement with the other competent authorities concerned and the notifier.

16. Footnote in Annex III, entry GC 030: In relation to entry GC 030 in Annex III and vessels destined for breaking up, a footnote has been inserted to clarify that a balance has to be struck between the need ensure that such vessel do not contain hazardous material on-board and the fact that some materials which are classified as hazardous are essential for the safe operation of ships. The footnote clarifies that this balance should be set by reference to recognised rules and guidelines on ship recycling, notably those prepared under the auspices of the IMO and the Basel Convention.

4.2.5. Main changes and clarifications as regards shipments within Member States - Title III

No changes are proposed in relation to shipments of waste within Member States. The provisions of Titles II and VII still does not apply to shipments of waste routed entirely within a Member State. However, Member States are still obliged to establish an appropriate control system in relation to such shipments and may still apply the system provided for in this Regulation.

4.2.6. Main changes and clarifications as regards exports out of and imports into the Community - Titles IV, V and VI

1. General logic: Generally, this Title has been streamlined according to the logic that the provisions of Title II regarding intra-Community shipments form the basis which apply mutatis mutandis. Thus, only modifications and additions to Title II are mentioned. These modifications and additions are primarily related to implementing the procedural requirements of the Basel Convention, which differ from those of intra-Community shipments.

At present there are several different procedures as regards imports and exports:

1) Exports for disposal to EFTA countries (Article 15)

2) Exports for recovery to OECD-Decision countries of waste listed in Annexes III and IV (Article 17 - as for intra-Community shipments)

3) Imports for disposal from EFTA and Basel Convention countries (Article 20)

4) Imports for recovery from OECD-Decision countries (Article 22 - as for intra-Community shipments)

5) Imports for recovery from non-OECD-Decision countries (Article 20).

By applying the provisions of Title II mutatis mutandis to exports out of and imports into the Community, the number of procedures are reduced to the two provided for under Title II, namely, the requirement for prior written notification and written consent and the requirement that the shipment be accompanied by certain information.

The special procedural elements required under the Basel Convention are as follows:

- All countries involved must provide written consent to a notified shipment and have 60 days to do so.

- The country of dispatch is to take the decision to consent to a shipment only after having received written confirmation from the other countries involved.

- The transit country must acknowledge receipt of the notification, thereby triggering the 60-days time limit for consent.

It is also made explicit that a shipment can only start if certain conditions are fulfilled (consent, contract, financial guarantee, environmentally sound management/protection of the environment). That specification may not be legally necessary but is considered important in order to strengthen enforcement.

Finally, the rules regarding customs offices have been updated and a paragraph has been added specifying that, if a custom office observes a shipment that does not comply with the provisions of the Regulation, it is to inform the relevant competent authority in the Community and ensure detention of the waste until otherwise decided. It follows that also shipment violating the prohibitions as laid in the Regulation will be subject to the requirement of detention. Also the future Regulation(s) established pursuant to Article 38 should contain provisions regarding detention of waste by the customs offices.

2. Basel Convention export ban as regards recovery - Annex V: On 22 September 1995 the Conference of the Parties to the Basel Convention adopted Decision III/1, which introduced a new preambular paragraph 7 bis, a new Article 4A and a new Annex VII into the Basel Convention. The Decision aims to immediately prohibit exports of hazardous waste destined for final disposal from Parties to the Convention listed in Annex VII to Parties not listed in Annex VII and to prohibit as of 1 January 1998 exports of hazardous waste destined for recovery from Parties listed to Parties not listed in Annex VII. This ban is laid down in Community legislation in Articles 35 and 37 of the proposal (Articles 14 and 16 of the current Regulation). Article 35 contains the disposal part of the ban and Article 37 contains the recovery part of the ban.

In relation to the recovery part of the ban, it is first of all proposed to clarify that hazardous waste and mixtures of unlisted hazardous waste and waste which the country of destination has notified to be hazardous or has banned the import of are covered by the prohibition. Secondly -in accordance with the 2001 OECD Decision - it is proposed to include waste listed in Annex II of the Basel Convention in Annex V, Part 3, as List A. These wastes are: Y46 - waste collected from households and Y47 - residues arising from the incineration of household wastes. Clearly, the Community should not export household waste and incineration residues to non-OECD countries. This is in accordance with the principle of self-sufficiency laid down in Article 5 of Directive 75/442/EC, as amended.

The disposal part of the ban as contained in Article 35 remains unchanged. Exports of hazardous waste destined for disposal are thus still banned unless they are destined for EFTA countries Parties to the Basel Convention.

3. Requirement of environmentally sound management and protection of the environment: As already mentioned above under point 4.2.2., both Titles IV and V include a chapter gathering together general provisions for the said title. Those chapters contain an article regarding the requirement for environmentally sound management in cases of export out of the Community and of protection of the environment in the Community in cases of imports into the Community. The concept of environmentally sound management originates from and is defined as in the Basel Convention. Environmentally sound management is defined as taking all practicable steps to ensure that waste is managed in a manner that will protect human health and the environment against adverse effects which may result from such waste.

In relation to the requirement for environmentally sound management, it is further proposed that it may be assumed to be fulfilled inter alia if the treatment guideline listed in Annex IX in respect of the waste stream concerned is proved to apply at the facility in the third country of destination. However, it must be emphasised that this assumption is without prejudice to the overall assessment of environmentally sound management throughout the period of shipment and including final disposal or recovery in the third country of destination.

Annex IX refers to three guidelines; all adopted by the Conference of the Parties to the Basel Convention:

- Technical Guidelines on the Environmentally Sound Management of Biomedical and Health Care Wastes (Y1; Y3),

- Technical Guidelines on the Environmentally Sound Management of Waste Lead Acid Batteries and

- Technical Guidelines on the Environmentally Sound Management of the Full and Partial Dismantling of Ships.

Annex IX is to be further developed through the Committee for the adaptation to scientific and technical progress of EC Legislation on waste and in accordance with the procedure laid down in Article 18 of Directive 75/442/EEC, as amended. In addition, guidelines adopted by the OECD or adopted in the context of other bodies may be referenced in Annex IX, see Article 61. In doing so, care must be taken to ensure that the guidelines are concrete and not general. They should give specific guidance on various and preferred methods of disposal and be up to date both in terms of technical level and in terms of addressing environmental concerns. Though obvious, it must lastly be stressed that the requirement of environmentally sound management is without prejudice to the provisions of Articles 35 and 38 implementing the Basel Convention export ban on hazardous waste from OECD to non-OECD countries.

4. Overseas Countries and Territories: Two articles are proposed to make the rules concerning exports and imports of waste to and from Overseas Countries and Territories explicit in the Regulation. The rules established thus implement Article 39 of the Council Decision 2001/822/EC of 27 November 2001 on the association of the Overseas Countries and Territories with the European Community [21].

[21] OJ L 314, 30.11.2001, p. 1.

5. Separate regime as regards exports of non-hazardous waste to non-OECD countries: Under the responsibility of DG TRADE, a specific regime applies to exports of non-hazardous waste destined for recovery in non-OECD-Decision countries, meaning waste listed in the Annex III.

This regime will be continued, albeit in a modified and simplified version in accordance with the provisions of Article 38.

All non-OECD-Decision countries have been asked which procedures they want applied to imports for recovery from the Community of the said waste. At present, the following five options are available as a reply to that question: a) a ban, b) notification with written consent, c) notification with tacit consent, d) a special procedure based on written consent, and/or e) no control in the country of destination. In this proposal, a procedural simplification is suggested, namely, that the procedural choices of the non-OECD-Decision countries asked be reduced to three: a) a ban, b) notification with written consent, or c) no control in the country of destination.

For the implementation of this provision, the Commission will send a so-called "note verbal" to the countries concerned to ask them about the procedures which are to be applied to exports for recovery in their country of wastes which are not covered by the export ban. In order to ensure the highest level of harmonisation at the global level concerning waste lists, the Commission will use Annex III for this enquiry, corrected as appropriate to ensure maximum use of the terminology of the Basel Convention and consistency with its export ban.

This future Commission Regulation, which should enter into force on the day of the application of this Regulation, will repeal both Council Regulation (EEC) No 1420/1999 [22] and Commission Regulation (EEC) No. 1547/1999 [23] which currently regulate the said exports.

[22] Council Regulation (EC) No 1420/1999 of 29.04.1999, OJ L 166, 1.7.1999, p. 6.

[23] Commission Regulation (EC) No 1547/1999 of 12.07.1999, OJ L 185, 17.7.1999, p.1.

4.2.7. Main changes and clarifications as regards other provisions - Title VII

As already mentioned, it is proposed to restructure and shorten Title VII. Title VII thus contains the majority of the articles that are contained in Title VIII on other provision in the current Regulation. See the explanation above under point 4.2.2.

Apart from these structural changes only the following changes are proposed:

1. Use of the web-site as an alternative to publication in the Official Journal: It is proposed to make use of the Commission web-site as an alternative to publication in the Official Journal.

According to the current Regulation, the Commission is to publish the lists of customs offices in the Official Journal of the European Community. The Commission has also published the list of the Competent Authorities in the Official Journal of the European Communities. However, in light of developments in communication methods, it is considered more efficient and more easily accessible if only the websites are used.

2. Adoption of additional measures: It is proposed to mandate the Commission to adopt additional measures related to the implementation, application, administration and enforcement of the Regulation. It is further established that such measures must be decided in accordance with the procedure laid down in Article 18 of Directive 75/442/EEC, as amended, and the so-called regulatory procedure as established in Article 5 of Decision 1999/468/EC [24]. The current Regulation does not give such powers to the Commission.

[24] OJ L 184, 17.7.1999, p. 23.

5. Environmental aspects

The recognition that it is "important to organise the supervision and control of shipments of waste in a way which takes account of the need to preserve, protect and improve the quality of the environment", as stated in the sixth recital in the preamble to the 1993 Regulation, is no less valid today, almost 10 years after its adoption. It is thus necessary to maintain and improve the system of prior written notification and consent which allows and obliges competent authorities to take all necessary measures to ensure protection of human health and the environment within as well as outside the Community.

Within the Community, the producer and the notifier in the Community must take all necessary steps to ensure that the waste they ship is managed without endangering human health and without using processes or methods which could harm the environment, as required in Article (4) of Directive 75/442/EEC, as amended and in accordance with Community legislation on waste, throughout the period of shipment and including final disposal or final recovery in the state of destination. Outside the Community, the producer and the notifier and other undertakings involved in a shipment must ensure that any waste they ship is managed in an environmentally sound manner throughout the period of shipment and including final disposal or final recovery in the third country of destination [25].

[25] Environmentally sound management is defined as in the Basel Convention, namely as "taking all practicable steps to ensure that waste is managed in a manner that will protect human health and the environment against adverse effects which may result from such waste".

6. Economic aspects

From an overall assessment it is considered that the proposal will not place additional economic burdens on Industry. The system of notifications and information requirements in relation to shipments of waste is well established throughout the Community, and it is to be expected that the requirement that notifications must be processed by and through the competent authority of dispatch will entail some economic relief for notifiers, compared to having to submit the notification to all relevant parties. The clarification that a financial guarantee or equivalent insurance must be established and be legally binding upon notification might entail extra costs for industries making notifications in Member States, where that is not currently a requirement.

It must be anticipated that the proposal will entail extra costs for certain Member States, however. The proposal establishes that notifications are to be processed through the competent authority of dispatch. For Member States which have an advanced and elaborated system for the processing, control and monitoring of notifications and shipments, such a system will not entail further costs. For Member States not yet in that position, the proposal will probably entail some extra costs. However, it should also be borne in mind that the system of processing notifications through the competent authority of dispatch will give rise to efficiencies in terms of "saved" paper work and control for the competent authority of destination and transit. Thus, the system is likely to be economically neutral as a whole.

7. Internal market aspects

Some members of Industry have made presentations that, despite the fact that the Regulation is directly applicable in the Member States, it is on certain aspects applied very differently throughout the Community and thus causes distortion of the internal market. This relates, for instance, to different information and documentation requirements as regards notifications and shipments, different systems for processing notifications, different requirements for a financial guarantee - its establishment, calculation, release and access - and different information and format requirements as regards waste subject to the requirement of being accompanied by certain information. The proposal addresses such points as well as other cases where legal clarity is lacking. It is thus considered that the proposal will promote a more uniform application of the Regulation, to the benefit of the internal market, in the field of the recovery of waste.

8. International aspects

As already mentioned under point 2, the Regulation is largely based on the Basel Convention of 22 March 1989 on the control of transboundary movements of hazardous wastes and their disposal, as amended, [26] and the OECD Decision C(92)39/final on the control of transfrontier movements of wastes destined for recovery operations, as amended.

[26] On 1 February 1993 the Council approved the Basel Convention on behalf of the Community, see Council Decision 93/98/EEC, OJ L 39, 16.02.1993, p. 1.

On 14 June 2001 the OECD Council amended the above mentioned 1992 OECD Decision. In order to implement that amendment, a revision of the Regulation has become legally necessary.

When implementing the 2001 OECD Decision its global dimension and international applicability should be borne in mind. This involves interpretation and the choice of the Community to apply different rules, which is allowed under the 2001 OECD Decision. As pointed out under points 3 and 4.2., global harmonisation is thus considered one of the objectives of the proposal.

Further, in an enlarged Community global harmonisation and a Regulation that provides a high degree of legal clarity becomes even more important.

9. Trade aspects

The proposal does not alter the current system for exports out of and imports into the Community - it merely changes the procedural framework. As regards exports of waste listed in Annex III (non-hazardous waste) and destined for recovery in non-OECD-Decision countries, Article 38 establishes the basic procedural framework for future regulations in this specific area.

10. Subsidiarity and proportionality

The present proposal for amendment of the 1993 Regulation takes into account the principles of subsidiarity and proportionality. Only those elements that are necessary for the proper and uniform functioning of the Regulation, while at the same time ensuring protection of the environment and a proper functioning of the internal market are covered by the proposal. The proposal also reinforces legal clarity where needed.

It is difficult to reconcile simplicity with the different interests of various stakeholders, and not least the wish to ensure a more uniform application of the Regulation. Nevertheless, this proposal endeavours to remain as simple as possible.

11. Consultation of stakeholders

Annex C contains a list of the contributors to the 2001-2002 consultations (Member States, Acceeding Countries, Industry, NGO's and Local Authorities).

12. Annexes

A) Content article by article

B) A parallel listing of the proposed articles and the corresponding articles of the 1993 Regulation.

C) List of Member States, Acceeding Countries, Industry, Local Authorities and NGO's that have been consulted and have contributed to the 2001-2002 consultation.

ANNEX A Description article by article

Title I - Scope and Definitions

Article 1 - Scope

Article 1 establishes the scope of the Regulation and lists exclusions.

Article 2 - Definitions

Article 2 contains a series of definitions relevant to the Regulation. Where a definition is already established in Directive 75/442/EEC, as amended, that definition also applies for the purpose of this Regulation.

TITLE II - Shipments between Member States within the Community or with transit through third countries

Article 3 - Overall procedural framework

Article 3 provides an overview of the general procedural framework and defines which wastes are subject to which procedure. It also establishes special provisions regarding waste explicitly destined for laboratory analysis and waste containing certain chemicals.

Chapter 1 - prior written notification and consent

Article 4 - Procedure of prior written notification and consent

Article 4 defines the notifier and establishes the obligation for the notifier to make a prior written notification to and through the competent authority of dispatch if he/she intends to ship waste from one Member State to another Member State or and/or pass it in transit through one or several other Member States.

The Article further establishes that a shipment may only start after the notifier has received:

- written consent from the competent authority of dispatch and destination and after tacit, or

- written consent from the competent authority of transit.

Article 5 - Notification requirements

Article 5 sets out the requirements that must be fulfilled when making a notification.

Notifications are to be made by the notifier by using the notification and movement documents contained in Annexes 1 A and 1 B, supplying information and documentation as listed in Annex II, Part 1, 2 and 3, establishing a contract with the consignee for the recovery or disposal of the notified waste, and establishing a financial guarantee or equivalent insurance.

The concept of a "properly filled-in" notification and a "properly completed" notification is established in this article as well.

Upon receipt of a "properly filled-in" notification, the competent authority of dispatch is obliged to transmit the notification to the other competent authorities and to the consignee: see Article 8. Upon receipt of a "properly completed" notification, the competent authority of destination or dispatch is obliged to issue an acknowledgement; see Article 9. The acknowledgement triggers the 30-day time limit for consent from the competent authorities.

Article 6 - Contract

Article 6 establishes further requirements as regards the contract between the notifier and the consignee for the recovery or disposal of the notified waste. The article establishes that the contract must be established and legally binding at the time of notification and that it must include certain obligations on the part of both the notifier and consignee.

Article 7 - Financial guarantee

Similarly, Article 7 establishes further requirements for a financial guarantee(s) or equivalent insurance(s) covering costs for transport, final disposal or final recovery and storage, including cases where a shipment cannot be completed as intended and cases where a shipment is illegal.

The financial guarantee or equivalent insurance must be established and legally binding at the time of notification and must apply to the shipment when the notified shipment starts, at the latest.

The article also establishes that the guarantee or equivalent insurance must be valid and cover the shipment until final treatment and that, as regards shipments of waste destined for interim recovery or disposal operations, this requirement may be fulfilled by the establishment of an additional financial guarantee or equivalent insurance by the consignee.

Finally, the article establishes that all competent authorities concerned are to have access to the financial guarantee or equivalent insurance, and stipulates when it can be released.

Article 8 - Transmission of the notification by the competent authority of dispatch

Article 8 establishes that when the competent authority of dispatch has received a "properly filled-in" notification as described in Article 5(2), it is obliged to transmit copies of the notification to the other competent authorities concerned and to the consignee.

If the competent authority of dispatch considers that the notification is not properly filled-in, it may request information and documentation from the notifier. Such a request is to be made within 3 working days of receipt of the notification.

Article 8 further establishes that the notifier has the right to demand a reasoned explanation from the competent authority of dispatch if it has not transmitted the notification as required to the other competent authorities and to the consignee within the time limit.

Article 9 - Acknowledgement by the competent authority of destination

Article 9 establishes that upon receipt of a "properly completed" notification as described in Article 5(3), the competent authority of destination is to send an acknowledgement to the notifier and copies thereof to the other competent authorities concerned and to the consignee and that this is to be done within 3 working days of receipt of the notification.

Further it is established that the notifier has the right to demand a reasoned explanation from the competent authority of destination if it has not acknowledged receipt of the notification within the time limit.

Article 10 - Consent by the competent authority of destination, export and transit

Article 10 establishes that the competent authorities of destination, dispatch and transit have 30 days following dispatch of the acknowledgement by the competent authority of destination to take the decision to consent or object to the notified shipment.

The Article also establishes rules regarding the validity of a consent.

Article 11 - Conditions to a shipment

Article 11 establishes the right of the competent authorities of dispatch, destination and transit to lay down conditions in connection to their consent to a notified shipment.

Article 12 - Objections to shipments destined for disposal

Article 12 lists the reasons that can justify an objection to a shipment destined for disposal on the part of the competent authority of dispatch, destination and/or transit.

Article 13 - Objections to shipments destined for recovery

Similarly, Article 13 lists the reasons that can justify an objection to a shipment destined for recovery on the part of the competent authority of dispatch, destination and/or transit.

Article 14 - General Notification

Article 14 establishes the possibility of using a general notification instead of several single notifications where waste having the same physical and chemical characteristics is to be shipped periodically to the same consignee, at the same facility and following the same route(s) and routing.

Article 15 - Pre-consented recovery facilities

Article 15 establishes that competent authorities of destination having jurisdiction over specific recovery facilities may decide to issue pre-consents to such facilities. Further, it is established that competent authorities which decide to issue a pre-consent to a facility in accordance with this Article shall communicate certain information to the Commission, the OECD Secretariat and the competent authorities in the other Member States and that the form contained in Annex VI may be used for this purpose. Finally, an enabling clause is inserted to allow for possible further conditions and requirements in relation to pre-consented recovery facilities.

Article 16 - Provisions regarding interim recovery and disposal operations

Article 16 establishes special provisions regarding shipments of wastes destined for interim recovery or disposal operations (blending or mixing, repackaging, exchange, storage or other recovery or disposal operations considered interim and not final).

Article 17 - Requirements following consent to a shipment

Article 17 lists the requirements related to the period after the notified shipment has received a consent: completion of the movement document by all involved parties and by the notifier, prior information regarding actual start of the shipment, written confirmation of receipt of the waste by the consignee and certificate for final disposal or recovery by the consignee.

Article 18 - Changes in the shipment after consent

Article 18 establishes that should any material changes be made to the details and/or conditions of a consented shipment, a new notification must be made, unless all the competent authorities concerned are satisfied that the proposed changes do not necessitate a new notification.

Chapter 2 - General Information requirements

Article 19 - Waste to be accompanied by certain information

Article 19 establishes that shipments of waste as defined in Article 3(2) and (4) - meaning waste listed in Annex III and waste explicitly destined for laboratory analysis - are subject to the procedural requirement that they be accompanied by certain information. This information includes, inter alia, evidence of a contract between the person who arranges the shipment and the consignee for recovery of the waste which is legally binding when the shipment starts.

The article further establishes that the information is to be provided by the person who arranges the shipment in the form contained in Annex VII and that Member States, for the purposes of inspection, enforcement, planning and statistics, may require information about shipments subject to this Article and in accordance with national legislation.

Article 20 - Waste subject to prior information

Article 20 establishes that as regards waste defined in Article 3(4) - waste explicitly destined for laboratory analysis - the person who arranges the shipment must inform the competent authorities concerned about the shipment 3 working days before it starts.

Further, it is established that the information listed in Article 19(1) is to be provided and the form contained in Annex VII used for that submission of information.

Chapter 3 - General Requirements

Article 21 - Prohibited to mix waste during shipment

Article 21 establishes that wastes which are subject to different notifications must not be either mixed together or mixed with any other waste not subject to a notification, during transport.

Article 22 - Protection of the environment within the Community

This article establishes that the producer and the notifier in the Community must take all necessary steps to ensure that any waste they ship within the Community is managed without endangering human health and without using processes or methods which could harm the environment as required in Article 4 of Directive 75/442/EEC, as amended, and in accordance with Community legislation on waste. This obligation lasts throughout the period of shipment and includes final disposal or final recovery in the country of destination.

Article 23 - Keeping of documents and information

Article 23 establishes that all documents sent to or by the competent authorities in relation to a notified shipment are to be kept in the Community for at least three years by the competent authorities, the notifier and the consignee, and that information given pursuant to Article 19 (1) as regards waste listed in Annex III is to be kept in the Community for at least three years by the person who arranges for the shipment and the consignee.

Chapter 4 - Take-back obligations

Article 24 - Take-back when a shipment cannot be completed as intended

Article 24 establishes the rules regarding the duty of the competent authority of dispatch to ensure that waste is taken back when a shipment of waste to which the competent authorities concerned have consented cannot be completed as intended. It is thus established that the competent authority of dispatch shall ensure that the waste in question is returned to its area of jurisdiction or elsewhere within the Country of dispatch by the notifier or if that is impracticable, by the competent authority itself, and that this shall be done within 90 days.

Further, it is established that the provisions of this article also apply to shipments of waste which are subject to the requirement that they be accompanied by certain information in accordance with Article 19 and that the person who arranges the shipment in such cases is subject to the same obligations under this article as is the notifier.

Article 25 - Costs for take-back when a shipment cannot be completed

Article 25 establishes how costs arising from the return of waste of a shipment that cannot be completed as intended shall be charged - namely, to the notifier or, if that is impracticable, to the competent authority of dispatch; or, if that in turn is impracticable, as otherwise agreed by the parties and the competent authorities concerned.

It is further established that waste listed in Annex III subject to the requirement that it be accompanied by certain information which cannot be completed as intended is also covered by the article. It is thus established that in those situations, the person who arranges the shipment is subject to the same obligations established under this article as is the notifier.

Article 26 - Take-back when a shipment is illegal

Article 26 defines when a shipment is illegal and establishes the rules regarding the duty of the competent authority of dispatch to ensure that waste in a shipment that is considered illegal is taken back and that this is done within 30 days.

It is further established that if a case of illegal shipment is not the responsibility of the notifier but rather of the consignee, then the competent authority of destination is to ensure that the waste in question is disposed of or recovered by the consignee or, if that is impracticable, by the competent authority itself, and that this also is done within 30 days.

Finally, it is established that if the responsibility for the illegal shipment cannot be imputed to either the notifier or the consignee, the competent authorities are to co-operate to ensure that the waste in question is disposed of or recovered.

As in Article 24, it is established that the provisions of this article also apply to shipments of waste listed in Annex III and which are subject to the requirement that they be accompanied by certain information in accordance with Article 19 and that is such cases the person who arranges the shipment is subject to the same obligations established under this article as is the notifier.

Article 27 - Costs for take-back when a shipment is illegal

Article 25 establishes how costs arising from the return, etc. of waste in a shipment that is illegal are to be charged.

It is further established that a shipment of waste listed in Annex III which is subject to the requirement that it be accompanied by certain information and which is illegal, is also covered by the article. It is thus established that in those situations, the person who arranges the shipment is subject to the same obligations established in this article as is the notifier.

Chapter 5 -General administrative provisions

Article 28 - Submission of communication

Article 28 establishes that the communication listed may be submitted in one of the following ways: by post, by telefax, by e-mail with digital signature, or by e-mail without digital signature, followed by post.

It further establishes that, according to the decision by the competent authority concerned, the communication mentioned may be submitted by means of electronic data interchange with electronic signature or electronic authentication according to Directive 1999/93/EC on a Community framework for electronic signatures [27] or with a comparable electronic authentication system providing the same level of security and subject to the acceptance of the competent authorities concerned.

[27] OJ L 13, 19.1.2000, p. 12.

Article 29 - Language

Article 29 establishes that any notification, information, documentation or other communication submitted pursuant to the provisions of Title II is to be supplied in a language acceptable to the competent authorities concerned and that the competent authorities concerned may request the notifier to provide authorised translation(s) into a language which is acceptable to them.

Article 30 - Disagreement on classification issues

Article 30 establishes an administrative rule for cases where the competent authorities of dispatch and destination disagree on the classification as regards the distinction between waste or non-waste, on the classification of the notified waste as being listed in Annex III or IV or on the classification of the waste treatment operation notified as being disposal or recovery. It is thus established that the material is to be considered a waste, that the waste is to be considered listed in Annex IV and that the provisions regarding waste destined for disposal apply, respectively. It is stressed that this administrative rule only applies for the purposes of this Regulation, and is without prejudice to the rights of interested parties to resolve any dispute related to these questions before a court of law or tribunal.

Article 31 - Administrative costs

Article 31 establishes that appropriate and proportionate administrative costs of implementing the notification and supervision procedure and usual costs of appropriate analyses and inspections may be charged to the notifier.

Chapter 6 - Shipments within the Community and with transit via third countries

Article 32 - Shipments destined for disposal

Article 32 establishes the rules regarding shipments within the Community and destined for disposal that transit through third countries. It is thus established that the competent authority of dispatch are to ask the competent authority in the third country whether it wishes to send its written consent to the planned shipment.

Article 33 - Shipments destined for recovery

Article 33 establishes that when a shipment of waste takes place within the Community with transit via one or more third countries to which the OECD Decision does not apply and is destined for recovery, Article 32 applies.

Regarding a shipment of waste that takes place within the Community with transit via one or more third countries to which the OECD Decision does apply and is destined for recovery, it is further established that the consent to a shipment may be provided tacitly.

TITLE III - Shipments within Member States

Article 34 - Application of this Regulation to shipments within Member States

Article 34 establishes the application of the Regulation to shipments within Member States.

TITLE IV - Exports out of the Community to third countries

Chapter 1 - Waste for disposal

Article 35 - Export prohibited except to EFTA countries

Article 35 establishes that all exports of waste out of the Community destined for disposal are prohibited, with the exception of exports destined for disposal in EFTA countries.

However, it is further established that such exports are still prohibited if the EFTA country prohibits imports of such wastes or if the competent authority of dispatch has reason to believe that the waste will not be managed in an environmentally sound manner in the country of destination concerned.

Article 36 - Procedures when exporting to EFTA countries

Article 36 establishes the procedure to be applied where waste is exported out of the Community and destined for disposal in EFTA countries. It is thus established that the provisions of Title II apply mutatis mutandis, albeit with certain modifications and additions, which are listed. [28]

[28] In effect Article 36 only covers Switzerland. The other EFTA countries - Norway, Liechtenstein and Iceland - are thus also EEA countries.

Chapter 2 - Waste for recovery

Exports to non-OECD-Decision countries

Article 37 - Export prohibited if waste is listed in Annex V

Article 37 implements the Basel Convention export ban as regards waste destined for recovery and establishes that exports out of the Community of hazardous waste destined for recovery in countries to which the OECD Decision does not apply is prohibited. It is thus established that the following hazardous waste is covered by the prohibition: hazardous waste as listed in Annex V, hazardous waste not classified under one single entry in Annex V, mixtures of hazardous waste and mixtures of hazardous waste with non-hazardous waste not classified under one single entry in Annex V, waste that the country of destination has notified to be hazardous under Article 3 of the Basel Convention, waste that the country of destination has prohibited the import of, or if the competent authority of dispatch has reason to believe that the waste will not be managed in an environmentally sound manner in the country of destination concerned.

Article 38 - Procedures when exporting waste listed in Annex III

Article 38 establishes the framework for future legislation regarding export of wastes listed in Annex III and destined for recovery in countries to which the OECD Decision does not apply and which are not covered by the prohibition in Article 37. It is thus established that the Commission shall notify every country to which the OECD Decision does not apply and request written confirmation if the waste can be exported for recovery operations and information as to which, if any, of the listed control procedures is to be followed: a prohibition, a prior written notification and consent procedure as described in Article 36, or no control in the country of destination. This future Commission Regulation, which should enter into force on the day of the applicability of this Regulation, will repeal both Council Regulation (EEC) No 1420/1999 and Commission Regulation (EEC) No 1547/1999, which currently regulate the said exports.

Exports to OECD-Decision countries

Article 39 - Exports of waste listed in Annexes III, IV and IV A

Article 39 establishes which procedures are to apply to exports out of the Community of waste listed in Annexes III, IV and IV A and destined for recovery in countries and through countries to which the OECD-Decision applies. It is thus established that the provisions of Title II apply mutatis mutandis, albeit with certain modifications and additions, which are listed.

Chapter 3 - General provisions

Article 40 - Exports to Antarctic

Article 40 makes it explicit that export of all waste out of the Community to Antarctica is prohibited.

Article 41 - Exports to Overseas Countries or Territories

Article 41 establishes that exports out of the Community of all waste destined for disposal in Overseas Countries or Territories are prohibited and that as regards exports of waste destined for recovery the prohibition in Article 37 applies mutatis mutandis. Further, it is clarified that as regards exports of waste destined for recovery in Overseas Countries or Territories not covered by this prohibition, the provisions of Title II apply mutatis mutandis.

The Article reflects the rules established in Article 39 of Council Decision 2001/822/EC of 27 November 2001 on the association of the overseas countries and territories with the European Community.

Article 42 - Ensuring environmentally sound management in third countries

Article 42 establishes that the producer and the notifier and other undertakings involved in a shipment are to take all necessary steps to ensure that any waste they ship is managed in an environmentally sound manner throughout the period of shipment and including final disposal or recovery in the third country of destination.

It further establishes that the competent authority of dispatch in the Community is to require and secure that any waste exported is managed in an environmentally sound manner throughout the period of shipment and including final disposal or recovery in the third country of destination and that specific exports violating that rules are to be prohibited.

Article 42 also establishes that environmentally sound management may be assumed as regards the waste stream and recovery operation concerned if, inter alia, the treatment guideline listed in Annex IX in respect of the waste stream concerned can be proved to apply at the facility in the third country of destination. Annex IX is to be further developed through the Committee for the adaptation to scientific and technical progress of EC Legislation on waste, in accordance with the procedure laid down in Article 18 of Directive 75/442/EEC, as amended, and by means of Commission Regulation, see Article 61.

TITLE V - Imports into the Community

Chapter 1 - Imports of waste for disposal

Article 43 - Import prohibited except from EFTA- or Basel Party country or with an agreement in place

Article 43 establishes that all imports into the Community of waste destined for disposal are prohibited except those from EFTA countries or other countries which are Parties to the Basel Convention or other countries with which the Community, or the Community and its Member States have concluded bilateral or multilateral agreements or arrangements.

Article 43 also establishes the requirements to be fulfilled when concluding bilateral or multilateral agreements or arrangements. These include inter alia the requirement that bilateral or multilateral agreements or arrangements entered into in accordance with the article shall be based upon the control procedure of Article 44.

Article 44 - Procedural requirements if import from EFTA- or Basel Party country

Article 44 establishes which procedure to apply when importing waste into the Community destined for disposal from EFTA countries or other countries Parties to the Basel Convention. It is thus established that provisions of Title II apply mutatis mutandis, however, with certain modifications and additions listed.

Chapter 2 - Imports of waste for recovery

Article 45 - Import prohibited except from OECD Decision, EFTA or Basel Party country or with an agreement in place

Article 45 establishes that all imports into the Community of waste destined for recovery are prohibited except from countries to which the OECD decision applies or from EFTA countries or from other countries which are Parties to the Basel Convention or other countries with which the Community, or the Community and its Member States, have concluded bilateral or multilateral agreements or arrangements.

Article 45 also establishes the requirements to be fulfilled when concluding bilateral or multilateral agreements or arrangements. These are similar to those of Article 43, and include inter alia the requirement that bilateral or multilateral agreements or arrangements entered into in accordance with the article shall be based upon the control procedure of Article 44 or 46 as relevant.

Article 46 - Procedural requirements if import from OECD Decision countries

Article 46 establishes which procedures to apply when waste is imported into the Community and destined for recovery from a country to which the OECD Decision applies and/or through countries to which the OECD Decision applies. It is thus established that the provisions of Title II apply mutatis mutandis, however with modifications and additions listed.

Article 47 - Procedural requirements if import from non-OECD Decision country Party to the Basel Convention

Article 46 establishes which procedure to apply where waste is imported into the Community and destined for recovery from a country to which the OECD Decision does not apply and/or through any country to which the OECD Decision does not apply and which are also Parties to the Basel Convention. It is thus established that the provisions of Article 29 apply mutatis mutandis.

Chapter 3 - General provisions

Article 48 - Imports from Overseas Countries or Territories

Article 48 establishes that in relation to imports of waste into the Community from Overseas Countries or Territories. The provisions of Title II apply mutatis mutandis.

Further it clarifies that one or more Overseas Country and Territory and the Member State to which they are linked may apply national procedures to shipments from the Overseas Country and Territory to that Member State and that Member States that apply this possibility, shall notify the Commission of the national procedures applied.

As it is the case with Article 41 as regards exports, the Article reflects the rules established in Article 39 of the Council Decision 2001/822/EC of 27 November 2001 on the association of the Overseas Countries and Territories with the European Community.

Article 49 - Protection of the environment within the Community

Article 49 establishes that the producer, the notifier and other undertakings involved in a shipment must take all necessary steps to ensure that any waste they ship is managed without endangering human health and without using processes or methods which could harm the environment as required in Article 4 of Directive 75/442/EEC, as amended, and in accordance with Community legislation on waste throughout the period of shipment and including final disposal or final recovery in the country of destination.

It further establishes that the competent authority of destination in the Community shall require and secure that any waste shipped into its area of jurisdiction is managed without endangering human health and without harming the environment as required in Article 4 of Directive 75/442/EEC, as amended, and in accordance with Community legislation on waste throughout the period of shipment and including final disposal or recovery in the country of destination. It is further required that specific imports violating those rules are to be prohibited and not consented to.

The Article applies the same logic as Article 42 regarding exports and the requirement to ensure environmentally sound management in the third country of destination.

TITLE VI - Transit through the Community from and to third countries

Chapter 1 - Waste for disposal

Article 50 - Transit through the Community of waste destined for disposal

Article 50 establishes that where waste destined for disposal is shipped through a Member State from and to third countries the provisions of Article 44 apply mutatis mutandis, albeit with certain modifications listed.

Chapter 2 - Waste for recovery

Article 51 - Transit through the Community of waste from and/or to a non-OECD-Decision country

Article 51 establishes that where waste destined for recovery is shipped through a Member State from and/or to a country to which the OECD Decision does not apply, Article 50 applies mutatis mutandis.

Article 52 - Transit through the Community of waste from and/or to an OECD-Decision country

Article 52 establishes that where waste destined for recovery is shipped through a Member State from and/or to countries to which the OECD Decision applies the provisions of Article 46 apply mutatis mutandis, albeit with certain modifications listed.

title VII Other Provisions

Chapter 1 - Additional obligations related to Member States

Article 53 - Enforcement in Member States

Article 53 establishes the obligation of Member States to take legal action to prevent and detect illegal shipments, including the imposition of penalties, and allows Member States to make provisions for enforcement measures such as inter alia inspections and spot checks of shipments.

Article 54 - Member States reporting

Article 54 establishes the reporting obligations of the Member States. Before the end of each calendar year, Member States are to 1) draw up a report for the previous calendar year in accordance with Article 13 (3) of the Basel Convention and send it to the Secretariat of the Basel Convention and to the Commission, and 2) draw up a report for the previous calendar year based on the additional reporting questionnaire as contained in Annex X and send it to the Commission. Member States must thus submit two reports.

It is further established that these reports shall be submitted to the Commission in an electronic as well as a paper version.

Based on the reports received, the Commission is to establish reports on the implementation of this Regulation by the Community and its Member States.

Article 55 - International co-operation

Article 55 establishes the obligation of Member States and the Commission to co-operate with other parties to the Basel Convention and inter-State organisations, inter alia, via the exchange and/or sharing of information, the promotion of environmentally sound technologies and the development of appropriate codes of good practice.

Article 56 - Designation of customs offices of entry into and exit from the Community

Article 56 establishes the possibility for Member States to designate customs offices of entry into and exit from the Community for shipments of waste entering and leaving the Community. If Member States decide to designate such custom offices no shipment of waste may be allowed to use any other frontier crossing points within a Member State for entering or leaving the Community.

Article 57 - Designation of competent authority

Article 57 establishes the obligation for Member States to designate the competent authority or authorities responsible for the application and operation of the Regulation.

Article 58 - Designation of correspondents

Article 58 establishes the obligation for Member States and the Commission to each designate one correspondent responsible for informing or advising persons or undertakings who or which make enquiries.

Article 59 - Notification of and information regarding designations

Article 59 establishes the obligation for Member States to notify the Commission of the designations of custom offices of entry into and departure from the Community, competent authorities and correspondents made pursuant to Articles 56, 57 and 58 respectively. The Commission is then to publish lists of the designated customs offices of entry into and departure from the Community, competent authorities and correspondents on its web-site.

Chapter 2 - other provisions

Article 60 - Meeting of the Correspondents

Article 60 establishes the obligation of the Commission - if so requested by Member States or if otherwise appropriate - to periodically hold a Meeting of the Correspondents to examine with them the questions raised by the implementation of the Regulation.

The Meeting of the Correspondents may issue information sheets to provide guidance on issues related to the implementation, administration and enforcement of the Regulation.

Article 61 - Amendment of Annexes

Article 62 establishes that the Annexes of this Regulation are to be amended by the Commission by means of Commission Regulations and in accordance with the procedure laid down in Article 18 of Directive 75/442/EEC, as amended, and through the Committee for the Adaptation to Scientific and Technical Progress on EC-Legislation on Waste.

Article 62 - Additional measure

Article 62 establishes that the Commission may adopt additional measures related to the implementation, application, administration and enforcement of this Regulation and that any such measures shall be decided in accordance with the procedure laid down in Article 18 of Directive 75/442/EEC, as amended, and Article 5 of Decision 1999/468/EC.

Article 63 - Repeals

Article 63 establishes rules regarding repeals.

Article 64 - Transition rules

Article 64 establishes rules regarding transition.

Article 65 - Entry into force and application

Article 65 establishes a time span between date of entry into force and a date of application. This is necessary to allow for the establishment of the regime regarding exports of waste listed in Annex III and destined for recovery in non OECD countries as described in Article 38.

ANNEX B Parallel listing of the proposed articles and the equivalent articles of Council Regulation (EEC) No 259/93

Articles in proposal // Articles in Regulation (EEC) No 259/93/EEC

1 - Scope // 1

2 - Definitions // 2

3 - Overall procedure framework // Partly new article, 1(3)(a), 1(3)(c)

4 - Procedure of prior written notification and consent // 2(g), 3(1), 6(1), 3(8), 7(8), 5(1), 8(1),5(3), 8(3),

5 - Notification requirements // 3(2 - (6), 6(2) - (6)

6 - Contract // 3(6), 6(6)

7 - Financial guarantee // 27

8 - Transmission of the notification by the competent authority of dispatch // New article

9 - Acknowledgement by the competent authority of destination // 4(1), 7(1)

10 - Consent by the competent authority of destination, export and transit // 4(2), 7(2)

11 - Conditions to a shipment // 4(2)(b) and (d), 7(3)

12 - Objections to shipments destined for disposal // 4(3)(a) - (c)

13 - Objections to shipments destined for recovery // 7(4)(a) and (b)

14 - General notification // 28

15 - Pre-consented recovery f