COMMON POSITION (EC) No 7/94 adopted by the Council on 21 February 1994 with a view to adopting a Council Directive 94/. . ./EC of . . . amending Directive 91/689/EEC on hazardous waste (94/C 137/02)

THE COUNCIL OF THE EUROPEAN UNION,

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

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

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

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

Whereas it has become apparent, through the work of the committee provided for in Article 18 of Council Directive 75/442/EEC (3) that it has not been possible, within the time limits fixed by Directive 91/689/EEC (4), to draw up a binding list of hazardous waste, but whereas the implementation of Directive 91/689/EEC depends on the Commission's establishing such a list;

Whereas it is necessary to ensure the implementation of Directive 91/689/EEC within the shortest possible time;

Whereas a Community list of hazardous waste must still be established in accordance with Article 1 (4) of Directive 91/689/EEC;

Whereas the repeal of Council Directive 78/319/EEC of 20 March 1978 on toxic and dangerous waste (5) must therefore be postponed,

HAS ADOPTED THIS DIRECTIVE:

Article 1

Directive 91/689/EEC is hereby amended as follows:

1. The following shall be substituted for Article 10 (1):

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

(*) 12 months after the adoption of this Directive'.

2. The following shall be substituted for Article 11:

'Article 11

Directive 78/319/EEC shall be repealed with effect from . . . (*).

(*) 12 months after the adoption of this Directive'.

Article 2

This Directive is addressed to the Member States.

Done at . . ., . . .

For the Council

The President

(1) OJ No C 271, 7. 10. 1993, p. 16.

(2) Opinion delivered on 24 November 1993 (not yet published in the Official Journal).

(3) OJ No L 194, 25. 7. 1975, p. 39. Directive last amended by Directive 91/156/EEC (OJ No L 78, 26. 3. 1991, p. 32).

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

(5) OJ No L 84, 31. 3. 1978, p. 43. Directive last amended by Directive 91/692/EEC (OJ No L 377, 31. 12. 1991, p. 48.

STATEMENT OF THE COUNCIL'S REASONS

I. Introduction

1. On 21 September 1993 the Commission submitted a proposal to the Council for a Council Directive amending Directive 91/689/EEC on hazardous waste (1).

2. The European Parliament delivered its opinion on 19 November 1993 (2).

3. The Economic and Social Committee delivered its opinion on 24 November 1993 (3).

4. On 28 December 1993 the Commission forwarded to the Council a proposal amended following the opinion of the European Parliament (4).

II. Common position

1. The Council adopted a common position on 21 February 1994 on the basis of Article 130s (1) of the Treaty.

2. Subject of the Directive

The purpose of the proposal is to change the date of implementation of Directive 91/689/EEC on hazardous waste and the date of repeal of Directive 78/319/EEC on toxic and dangerous waste in order to mitigate the practical and legal difficulties arising because the list of hazardous wastes provided for by Directive 91/689/EEC is not yet available.

3. General comments

When it defined its common position, the Council endeavoured to adopt a form of words which preserved the essential features of the approach followed by Directive 91/689/EEC, in particular - as the European Parliament wanted - the provisions of Article 1 (4) thereof, whilst also providing sufficient time for the required list to be drawn up.

As it was aware of the practical and legal difficulties, the Environment Council made a policy statement at its meeting on 2 and 3 December 1993 in which the Member States undertook to take the appropriate measures to maintain the practical application of the provisions of the repealed Directive 78/319/EEC. The Council was thus able to incorporate verbatim or in substance the European Parliament's amendments accepted by the Commission with the sole exception of amendment No 2.

4. Specific comments

(The references below refer to the text of the common position.)

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

In accordance with the provisions of the Treaty on European Union, the legal basis has been modified by making reference to Article 130s (1); before the Treaty entered into force, the Commission had proposed Article 130s.

In the preamble, the Council thought it more logical to mention first that it had not been possible to draw up a list, and then to state that the list remained necessary. The order of the first two recitals has therefore been reversed. To simplify the text, they have also been combined in a single recital.

In addition, in line with the wording of recital 2a of the amended proposal which incorporates in part European Parliament amendment No 2, the adjective 'inclusive' no longer appears in these recitals. Retaining it would strictly speaking have been incompatible with Article 1 (4), which states that the list should be continually adopted.

4.2. European Parliament amendments included in the Commission's amended proposal and incorporated in the common position

In accordance with point 3, amendments No 3 (delete the fourth recital of the original proposal) and No 4 (retain Article 1 (4) of Directive 91/689/EEC) have been incorporated unchanged.

Amendments Nos 5 and 6 have been incorporated, but with greater flexibility regarding the time limit for drawing up the list. 31 March 1995 has been replaced by a date which, in effect, will be 12 months after the Directive is adopted. This extra flexibility will prevent the situation which necessitated this proposal from arising again.

4.3. European Parliament amendment accepted by the Commission but not included in the text of the Council's common position

The Council did not incorporate amendment No 2 (recital 2a of the amended proposal) as the substance of that amendment concerns a matter - harmonization of conditions of competition - which depends on a different legal basis from the one chosen here.

4.4. European Parliament amendment not accepted by the Commission

The Council did not incorporate amendment No 1 (delete the second recital of the amended proposal) either; it was essential to retain this recital in order to justify the proposal (list not yet available, need for a list in order to implement Directive 91/689/EEC).

(1) OJ No C 271, 7. 10. 1993, p. 16.

(2) See PE 176.645 of 19. 11. 1993.

(3) See CES 1157/93 of 24. 11. 1993.

(4) See COM(93) 696 final SYN 485 of 28. 12. 1993.