EN Official Journal of the European Union C 108/58

Opinion of the European Economic and Social Committee on the ‘proposal for a Regulation of the European Parliament and of the Council on shipments of waste’

(COM(2003) 379 final - 2003/0139 COD)

(2004/C 108/11)

On 1 September 2003 the Council decided to consult the European Economic and Social Committee, under Article 175 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Agriculture, Rural Development and the Environment, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 18 December 2003. The rapporteur was Mr Buffetaut.

At its 405th plenary session held on 28 and 29 January 2004 (meeting of 28 January 2004), the European Economic and Social Committee adopted the following opinion unanimously.

1. Introduction

The proposal has four main objectives:

a) to transpose into Community legislation: the revised OECD Council decision of 14 June 2001; the revised Basle Convention;

b) to address the difficulties encountered in applying, administering and enforcing the 1993 Regulation and establish greater legal clarity;

c) to pursue global harmonisation with regard to transboundary shipments of waste; and

d) to reorganise and simplify the structure of the Articles of the Regulation in order to make it clearer and more logical.

2. Main elements of the proposal

Waste shipments must follow various procedures and control regimes, which are determined by the type of waste shipped and the type of treatment to be applied to the waste at its destination. Therefore, different levels of control regime are to apply, depending on the risk posed by the waste and its treatment.

2.1 Prior written notification and consent procedure

Prior written notification and consent is to be required for shipments of all waste destined for disposal and shipments of hazardous and semi-hazardous waste destined for recovery.

In practical terms, when a waste producer or waste collector – the notifier – intends to ship hazardous or semi-hazardous waste (Annex IV) for recovery or disposal or non-hazardous waste (Annex III) for disposal, he or she must submit prior written notification to the competent authority of dispatch.

The notifier is also to be obliged to draw up a contract with the consignee for the recovery or disposal of the notified waste.

Notification must be sent to the competent authority of dispatch, which forwards it to the competent authority of destination. The latter sends an acknowledgement of receipt to the notifier if it considers that the notification has been ‘properly completed’.

2.2 Prior information requirement

Shipments of non-hazardous waste (Annex III) destined for recovery are not to be subject to the prior written notification procedure. However, a contract must be drawn up between the person arranging the shipment and the consignee.

2.3 Main changes to the scope and definitions (Title I)

a) The scope of the Regulation has been clarified.

b) The definitions of ‘notifier’, ‘consignee’, ‘dispatch’ and ‘destination’ have not been harmonised with the terminology used in the Basle Convention and the 2001 OECD Decision.

c) Several new definitions have been added.

d) It is proposed that the definition of ‘competent authority’ be amended and aligned with the Basle Convention.

e) A definition of ‘environmentally sound management’ has been added.

f) The definition of ‘notifier’ has been clarified.

2.4 Main changes and clarifications as regards shipments within the Community (Title II)

This is the heart of the Regulation and contains the main provisions.

a) The number of waste lists is to be reduced from three to two, and at the same time it is proposed that the number of procedures be reduced to two. Thus, it is proposed that semi-hazardous waste (Annex III) and hazardous waste (Annex IV) be put together in one list, which becomes Annex IV. The list of non-hazardous waste (currently Annex II) would then become Annex III. In concrete terms, this means that: — shipments of non-hazardous waste destined for recovery are to be accompanied by certain information; — shipments of all waste destined for disposal, hazardous and semi-hazardous waste and non-listed waste destined for recovery are to be subject to the prior written notification and consent procedure.

b) It is also proposed that the competent authorities give their consent individually within 30 days and that certain procedural safeguards for the notifier be added.

c) Interim recovery and disposal facilities are to be bound by the same obligations as final recovery and disposal facilities (see comments below).

d) It is proposed to extend and clarify the list of information and documentation which must accompany shipments of non-hazardous waste.

e) In line with the 2001 OECD Decision, shipments of waste destined for laboratory analysis are not to be subject to the prior written notification and consent procedure.

f) Waste containing POP chemicals is to be subject to the same provisions as shipments of waste destined for disposal.

g) It is proposed to establish a procedural rule to deal with cases where the competent authorities disagree about the classification of waste.

h) The notifier's financial guarantee or equivalent insurance should be established and legally binding at the time of notification.

i) It is proposed that the obligation to take back waste (in cases where the shipment cannot be completed or is illegal) also apply to non-hazardous waste destined for recovery.

2.5 Provisions as regards shipments within Member States (Title III)

No changes are proposed.

2.6 Main changes and clarifications as regards Community exports and imports (Titles IV, V and VI)

a) These changes and additions primarily concern the implementation of the Basle Convention's procedural rules, which differ from those applicable to intra-Community shipments.

b) According to the European Commission, this proposal will not place additional economic burdens on industry. However, it could entail extra costs for certain Member States.

c) It should promote a more uniform application of the Regulation and reduce distortions of competition on the internal market.

3. General comments

3.1 The European Economic and Social Committee considers that the Commission proposal will improve the ‘traceability’ of waste shipment operations. The proposal should help to do away with certain practices and provide the uniform standards needed to effectively implement good practice with the aim of improving environmental protection and sustainable development.

3.2 The proposal should help to make the activities of waste professionals more transparent, and to enhance traceability and accountability, particularly by introducing declaration mechanisms and financial guarantees and requiring that waste be taken back if a contract is not completed. It will also make authorities more answerable, since they will have to give written consent for planned shipments (classification of operations, authorisations to operate treatment facilities, compliance, etc.), which is a much-needed improvement. Authorities will also have to respect deadlines so that operations are not delayed.

3.3 The streamlining of the text should make it easy to apply, which in turn should reduce distortions of competition within the Union. It should be noted that the proposal has already been examined both by the European Parliament Committee on the Environment and at the EP plenary session. (1) It is unfortunate that the EESC was not consulted earlier so that its opinion was available for the parliamentary debate, during which improvements were made to the text.

3.4 However, the EESC notes that the approach adopted seems to be based on a procedure for individual shipments involving a single loading operation, whereas in practice multiple shipments take place under a general notification procedure. The related costs and paperwork and the fact that the volume of waste transported requires several loading operations explain why individual shipments are the exception.

4. Specific comments

4.1 Articles 175 and 133 of the Treaty establishing the European Community are given as the legal basis. Obviously Article 175, i.e. environmental protection, must be kept. But it is probably premature to invoke Article 133, since at the moment there are still too many disparities within Europe which must be eliminated before a real European market in waste can be considered to exist. Definitions are inconsistent, there is a lack of clarity and precision, and therefore too many disparities of interpretation between countries and too frequent appeals to the Court of Justice. In other words, this is a long way from being a market in the European sense. The Commission must certainly make efforts to open up this market, but many steps still have to be taken first: — definition of recycling, recovery and disposal; — definition and regulation of so-called interim operations; — standardising various aids and tax regimes; — transparent financing of facilities; — uniform practice in relation to permits for geographical regions where facilities operate, and the possibility for a producer to conclude contracts anywhere in Europe; — uniform classification of operations, with the guarantee that the classification will not be revised for a shipment and that the same constraints will be applied in the importing country as in the country of origin.

4.2 Article 1(6)

The EESC has reservations about excluding waste covered by Regulation No. 1774/2002. If these products are waste, they should be covered by the legislation on waste shipments, if only to ensure uniform procedures.

4.3 Article 2, Definitions

Parliament's proposals clarify the text and make it more precise.

4.4 Article 3(4) and Article 20

It seems somewhat unrealistic to require that companies wishing to send samples for laboratory analysis inform the authorities three days in advance. Such an arrangement seems impossible to organise and monitor in practice. In fact, in most cases samples are delivered by car and collected the same day.

A declaration to be sent on the same day or before the waste is transported or collected could solve the problem of traceability, samples being transported with a copy of the information.

4.5 Article 3

Parliament has proposed that shipments of waste not intended for ‘final’ treatment should be prohibited.

Under current legislation, no definition or operating rules exist for interim operations. Surely the export of waste not intended for final treatment should therefore be banned, as Parliament proposes.

How can operations involving mixtures of waste be allowed without addressing issues of dilution and therefore potential decommissioning?

4.6 Article 4

It does not make sense that an operator who changes the nature of waste should be the notifier of the shipment.

What is meant here by ‘changing’? As long as there is no legislative framework governing such operations that are not waste treatment operations, it seems inappropriate to ‘authorise’ them in a regulation that is intended to ensure that waste shipments are only possible if the environment is better protected and recovery operations improved.

4.7 Article 5

It should be specified that the notification and movement documents could comprise e-documents standardised by a competent authority or an environmental agency.

However, Parliament's proposal, which would tend to exempt public facilities from the obligations imposed on private facilities, should not be taken up for the obvious reasons concerning respect of competition rules.

4.8 Articles 6(4), 7(3) and 7(6)

For the reasons already given above, operations that are not final should not be covered by this regulation.

4.9 Articles 8 and 9

The EESC welcomes the guarantees provided for professionals with respect to deadlines. To make these more effective, it should be stipulated that the notifier may claim damages and interest if there is an unjustified delay in delivery of the acknowledgement.

4.10 Article 10

The purpose of this article is to accelerate procedures, and it should therefore also encourage the use of e-mail to transmit requests.

4.11 Article 11

It could be proposed in this article that waste treatment facilities which import waste should inform the authorities of dispatch of what will ultimately happen to the waste treated, and that the authorities of dispatch and destination should also be required to cooperate by each checking that the operations are completed successfully.

4.12 Article 16

This is the first time in European legislation that the concept of transparency has been introduced for so-called interim operations and the operator made accountable. This is a positive development, but as noted above ‘interim’ operations are introduced here without any background legislation. It would therefore seem preferable in the current circumstances to limit shipments to final operations.

4.13 Article 21

The mixing of waste during shipment should be prohibited.

4.14 Article 31

Under this article, administrative costs may be charged to the notifier. The problem here is that the definition of appropriate and proportionate costs may vary considerably between individual countries, which could lead to distortions of competition.

4.15 Article 62

This article is very vague and general. What type of additional measures might the Commission adopt?

5. Conclusion

The EESC stresses that the proposal for a regulation improves the traceability of waste and provides a guarantee for professionals that deadlines will be met. This is in the interests of better environmental protection and respect for the requirements of sustainable development, objectives which must be the fundamental priority of the text. Certain provisions must be made more precise and simplified in order to be more effective.

To achieve a real liberalisation of the market, clear definitions that are accepted by all the Member States must be proposed in relation to recycling, recovery, disposal and interim operations.

It would also be particularly useful to organise an exchange of information on good practice in the Member States. Subject to these comments, the Committee considers that the amendment of the regulation will help to improve European legislation.

Brussels, 28 January 2004. The President of the European Economic and Social Committee Roger BRIESCH

(1) See document EP T5-0505/2003.