Amended proposal for a Council Regulation (EC) establishing common rules and procedures to apply to shipments to certain non-OECD countries of certain types of waste
Date: 1998-01-26
Institutions: European Commission
Subjects: EU law, economic instrument for the environment, export of waste, third country, waste recycling

COMMISSION  OF THE  EUROPEAN  COMMUNITIES 

•it 

<r 

Brussels,  26.01.1998 

COM(97)  685  final 

95/0029  (ACC) 

Amended  proposal  for  a 

COUNCIL  REGULATION  (EC) 

establishing common  rules and procedures to apply to shipments 
to certain  non-OECD countries of certain types of waste  ' 

(presented  by  the  Commission  pursuant  to  Article  189 a (2) 
of the  EC-Treaty) 

EXPLANATORY  MEMORANDUM 

Background 

Council Regulation  (EEC) No 259/93 of  1  February  1993 sets out asystem of 
1. 
supervision and control to apply to shipments of waste within, into and out of the EC. 
The Regulation  took effect  on 6 May  1994. 

2. 
The Regulation implements into EC law two international legal  instruments 
with which the Community  has associated itself: the Basel Convention of 22 March 
1989 on the control of transboundary  movements of hazardous wastes and their 
disposal; and the OECD Council decision of 30 March  1992 concerning the control of 
transfrontier  movements of wastes destined for recovery operations. 

3. 

Regulation  (EEC) No 259/93 makes a distinction between waste which is 
destined: 

* 

for final  "disposal" (e.g. landfill,  incineration etc.) and 

for "recovery" (e.g. recycling, use as a means to generate energy 

* 
etc.) 

4. 

With regard to waste which is destined for recovery, the Regulation 
makes further  distinction between: 

* 

* 

* 

so-called "green" list waste, listed in Annex II to the Regulation; 

so-called "amber" list waste,.listed in Annex III; 

so-called "red" list waste, liste in Annex IV; and 

"unlisted" waste, i.e. waste which has not (yet) been assigned to 

* 
any list. 

This communication concerns solely shipments of "green" list waste destined 

5. 
for recovery from  the EC to third countries. 

Shipments of "green" list waste for recovery are generally excluded  from  the 

6. 
scope of the Regulation. This exclusion is based on the OECD Council  Decision 
referred  to above. The OECD considers that such shipments should not normally 
present a risk to the environment  if recovered properly in the country  of destination. 

However, the EC did not wish to  impose this point of view on third countries. 

7. 
Therefore, Article  17 of the Regulation provides that the Commission  communicate 
with all non-OECD countries notifying  them of the "green" list and asking them 
whether they would accept shipments of such waste for recovery without recourse to 

one of the control procedures  set out in the Regulation, or that they indicate which of 
these control procedures they require or wish to be applied. 

8. 
Where a country clearly indicates that it requires or wishes one of the control 
procedures which are provided for in the Regulation to apply to some or all types of 
"green" list waste, Article  17(3) provides that the Commission  determines  which 
control procedure should apply in consultation  with the country in question and  after 
having notified  the Committee established by Article  18 of Council Directive (EEC) 
No 75/442. One such Decision  was adopted by the Commission  on 20 July  1994 
(Commission Decision 94/575/EC, OJ No L 220, 25.8.94, p. 15). 

9. 
However, a number of countries have either not responded  at all to the 
missives sent out by the Commission  (including at least two reminder notes), or have 
indicated  that they do not wish to receive some or all types of "green" list waste for 
recovery. This is not provided  for in Article  17(1) first paragraph. In these cases, the 
second paragraph  of Article  17(1) requires that "the Commission  shall make 
appropriate proposals to the Council". These are contained in the attached  proposal 
for  a Council  Regulation. 

Content of the proposal 

Legal base. The present proposal concerns solely trade with third countries-

10. 
therefore  Article  113 is the appropriate legal base. 

Countries which do not wish to receive shipments. A number of countries 

11. 
have indicated they they do not wish to receive some or all types of "green" list waste. 
The Commission  has decided  after consultation  with the European  Parliament to 
respect the wishes of these countries and not to allow exports of "green" list waste  for 
recovery. 

Countries which have not responded. The general principle established in 

12. 
Regulation  (EEC) No 259/93 with regard to exports of "green" list waste for recovery 
is that of normal commercial transactions unless the country of destination  wishes or 
requires otherwise. It would therefore  follow  that countries which have not responded 
to the Commission's  notes on the subject should continue to be treated in the light of 
this general principle, with the addition of a system of prior automatic export  licensing 
which would allow the EC to monitor the level of such exports to these countries. 
Consequently, it is suggested that the so-called "red" list procedure will be applied to 
those countries which have not responded. 

13. ACP countries.  Shipments to ACP countries of those types of waste listed in 
Annexes I and II of the Basel Convention are prohibited under Article 39 of the 
Fourth ACP-EC Convention.  A very limited number of materials included in the 
"green" list may be covered by this prohibition. The proposed draft  Regulation 
excludes any such materials from  the scope of the Regulation. 

14. 
Review. The Commission proposes that the systems of control established by 
the proposed draft  regulation be subject to a review, reflecting  the dynamic nature of 
waste policy issues in general. A similar review is already provided  for  in Regulation 

(EEC) No 259/93 with regard to exports of hazardous waste to non-Parties of the 
basel Convention. A review of the operation of the current proposal could be carried 
out in parallel. 

Simplified  amendment procedure. The proposal provides for a simplified 

15. 
amendment procedure which would allow the Commission  to decide in consultation 
with the relevant Committee to change the control procedure applying to one or more 
of the countries covered by the scope of the proposal. This will cover cases where a 
response is received after  the entry into force of the Council Regulation  from a 
country which ahs not previously responded, or where a country which has indicated a 
particular position alters that position. It would also allow the EC-where this is 
deemed appropriate- to take account of other factors, such as a third country  treating 
shipments from  the EC in a less favourable  manner than shipments from  other 
destinations. 

For these reasons, the Commission recommends  that the Council  adopts the 

16. 
proposed Regulation establishing common rules and procedures to apply to (a) those 
countries which do not wish to receive shipments of "green" list waste for recovery 
from  the EC and (b) those countries which have not responded  to the  Commission's 
letters. 

Amended proposal for a 
COUNCIL REGULATION (EC) 

establishing common rules and procedures to apply to shipments 
to certain non-OECD countries of certain types of waste  ' 

THE COUNCIL OF THE EUROPEAN  UNION, 

Having regard to the Treaty establishing the European Community, and in particular 
Article  113 thereof, 

Having regard to the proposal from the Commission,1 

Whereas Article  l(3)(a) of Council regulation (EEC) No 259/93 of  1  February  1993 
on the supervision  and control of shipments of waste within, into and out of the 
European Community  2, as amended by Commission Decision  94/721/EC 3, excludes 
from  the scope of application  of that Regulation shipments of waste destined  for 
recovery only and listed in Annex II thereto, except as provided in, inter alia , Article 
17(1), (2), and (3); 

Whereas in accordance with Article  17(1) of Regulation  (EEC) No 259/93 the 
Commission  has notified  to every country to which the OECD Council Decision of 30 
March  1992 on the control of transfrontier  movements of waste destined for  recovery 
operations does not apply the list of waste set out in Annex II to regulation  (EEC) No 
259/93, and has requested confirmation  that such waste is not subject to control  in the 
country of destination  or has asked that such countries indicate whether such waste 
should be subject  to the control procedures which apply to waste listed in Annex III or 
IV to the Regulation, or to the procedure laid down in Article  15 thereof; 

Whereas certain countries have indicated that such waste should be subject  to one or 
other of those control procedures and the Commission on 20 July  1994, pursuant to 
the provisions  of Article  17(3) of regulation  (EEC) No 259/93, took Decision 

94/575/EC 

to determine the appropriate control procedures; 

A 

Whereas the second subparagraph of Article  17(1) of regulation (EEC) No 259/93 
provides that if such confirmation  is not received, the Commission  is to make 
approprite proposals to the Council; whereas it is therefore  necessary  to establish, on a 
Community-wide basis, a system to regulate trade in such waste from the Community 
by establishing  the appropriate common rules and procedures relating to exports 
thereof; 

Whereas, in the case of countries which have replied that they do not wish to receive 
some or all types of waste listed in Annex II of regulation  (EEC) No 259/93, their will 

2  OJ No L 30, 6.2.1993,  p.l. 
3 OJ No L 288, 9.11.1994, p.36; 
4O J N o L 2 2 0,  25.8.1994, p. 15 

has to be respected and therefore  these types of waste cannot be exported to those 
countries: 

Whereas in the case of countries which have not replied, it is appropriate to adopt a 
framework  in order to enable such countires to evaluate such shipments on a case-by-
case basis and whereas it is difficult  to imply that silence is equal to consent; 

Whereas,  in the the case of countries which have replied that they do not wish to 
receive some or all types of waste listed in Annex II or have not replied, the possibility 
exists that they will change their position, or will reply in the future,  and a mechanism 
must., therefore, exist within a comitologv procedure, to change this regulation: 

Whereas Regulation  (EC)  120/97 5 prohibits the export of waste for  recycling 
purposes which is considered hazardous and whereas certain categories of waste from 
Annex II of Regulation  (EEC) 259/93 are to be considered hazardous and have to be 
excluded  from  the scope of the present  Regulation. 

Whereas the Commission will complete the Annex V of Regulation (EEC) 259/93 
with waste categories considered hazardous by the Basel Convention and the Union's 
hazardous waste list6 and will adapt Regulation (EC)  120/97 accordingly. 

Whereas with regard to shipments to ACP countries, Article 39 of the Fourth ACP-EC 
Convention prohibits exports of all waste listed in Annexes I and II of the Basel 
Convention; 
whereas, furthermore,  certain items of waste may be found  in Annex II of Regulation 
(EEC) 259/93; whereas, in these circumstances and in order to respect the 
Community's  international obligations, it must be clear that such items are excluded 
from  the scope of the Regulation; 

Whereas the arrangements covered by this Regulation  should be subject to periodic 
review by the  Commission; 

HAS ADOPTED THIS REGULATION: 

Article 1 

The export of waste listed in Annex II to Regulation  (EEC) 259/93 and mentioned in 
Annex A. to countries listed in Annex A shall be prohibited. 

Article 2 

The control procedure applicable to waste listed in Annex IV to Regulation  (EEC) 
259/93 shall apply to exports to the countries listed in Annex B with respect to waste 
destined for recovery only and listed in Annex II to Regulation  (EEC) 259/93. 

5  OJ No L 22, 24.1.1997, p. 14 
6  OJ No L 377, 31.12.1991, p.20 

Article 3 

Shipments to ACP countries are permitted only as so far as they are not prohibited bv 
the Fourth ACP-EEC  Convention. 

Article 4 

Upon request by the country of destination or where there is a change of 
circumstances, the control procedure applicable under this Regulation may be 
amended. The Commission  may determine, after  consultation  with the country of 
destination, an in accordance with the procedure laid down in Article  18 of Council 

•7 

Directive  75/442/EEC  , which of the procedures shall apply, that is normal 
commercial  transactions with or without a system of prior automatic export  licensing 
as provided  for  in Article  17(2) of Regulation  (EEC) 259/93, or the  procedure 
applicable to Annex III or IV of the same Regulation or the procedure laid down in 
Article  15 of Regulation  (EEC) 259/93. 

Article 5 

The control procedures established by this Regulation  shall be subject to periodic 
review by the Commission  and for the first  time no later than 31 December  1998, 
taking into account the experience gained. If the results of the review leads to the 
conclusion  that this would be appropriate, the Commission may, without prejudice to 
the provisions  of Article 4, make new proposals to the Council. 

The Commission, in accordance with the procedure laid down in Article  18 of 
Directive  75/442/EEC, shall as soon as possible and at the latest before  1  January 
1998, review  and amend this Regulation, in order to bring it in line with  Regulation 
259/93 as modified  by Regulation  120/97, and in particular with Annex V of the 
former  Regulation. 

Article 6 

This Regulation  shall enter into force  on the twentieth day following  that of its 
publication  in the Official  Journal of the European  Communities. 

This Regulation  shall be binding in its entirety and directly  applicable  in all Member 
States. 

Done at Brussels, 

For the Council 
The President 

7  OJ  No L  194. 25.7.1975. p.39 

ANNEX A 

Countries and territories which have indicated to the Commission that they do 
not wish to receive shipments for recovery of certain types of waste listed in 
Annex II (the "green" list) to Council regulation (EEC) No 259/93. The 
categories of waste listed in Annex II which are covered are also given. 
Shipments to these countries and territories of these categories of wastes should 
be prohibited. 

ANDORRA: 

All types in Annex II 

BAHAMAS: 

All types in Annex II 

BARBADOS: 

All types in Annex II 

BELIZE: 

BENIN: 

BHUTAN: 

BOLIVIA: 

All types in Annex II 

All types in Annex II 

All types in Annex II 

All types in Annex II 

BOTSWANA: 

All types in Annex II 

BURKINA FASO: 

All types in Annex II 

CAPE VERDE: 

All types in Annex II 

CHAD: 

CHILE: 

COLOMBIA: 

All types in Annex II 

All types in Annex II 

1. In section GA ("Metal and metal-alloy wastes in metallic, non-dispersible  form") 

a) the following  waste and scrap of non-ferrous metals and their alloys: 

GA  120 
GA  130 
G A  140 
GA  150 
G A 160 
GA170 
GA180ex 
G A  190 ex 

7404 00 
7503 00 
7602 00 
7802 00 
7902 00 
8002 00 
810191 
8102 91 

Copper waste and scrap 
Nickel waste and scrap 
Aluminium waste and scrap 
Lead waste and scrap 
Zinc waste and scrap 
Tin waste and scrap 
Tungsten waste and scrap 
Molybdenum waste and scrap 

GA 200 ex 
GA210ex 
G A 220 ex 
GA230ex 
GA 240 ex 
G A 250 ex 
GA260ex 
GA 270 ex 
GA 280 ex 
G A 290 ex 
GA 300 ex 
GA 310 ex 
GA 320 ex 
ex 

GA 330 
GA 340 
GA 350 
GA 360 
GA 370 
G A 400 ex 
GA 410 ex 
G A 420 ex 

8103  10 
8104 20 
810510 
8106 00 
8107  10 
810810 
810910 
8110 00 
8111 00 
8112  11 
8112 20 
8112 30 
8112 40 
8112 91 

2844 30 
2804 50 
2805 30 

Tantalum waste and scrap 
Magnesium waste and scrap 
Cobalt waste and scrap 
Bismuth waste and scrap 
Cadmium waste and scrap 
Titanium waste and scrap 
Zirconium waste and scrap 
Antimony waste and scrap 
Manganese waste and scrap 
Beryllium waste and scrap 
Chromium waste and scrap 
Germanium waste and scrap 
Vanadium waste and scrap 
Wastes and scrap  of: 
- Hafnium 
- Indium 
- Niobium 
- Rhenium 
- Gallium 
Selenium waste and scrap 
Tellurium waste and scrap 
Rare earths waste and scrap 

2. In section GB ("Metal bearing wastes arising from melting, smelting and refining  of 
metals"): 

GB 040 ex 

2620 90 

Slags from  precious metals and copper 
processing for further  refining 

3. In section GC ("Other  wastes containing metals"): 
2619 00 

GC 070 ex 

Slags arising from the manufacture  of iron 
and carbon steel (including low alloy  steel) 
excluding those slags which have been 
specifically  produced to meet both national 
and relevant international requirements  and 
standards* 

*This entry covers the use of such slags as a source of titanium dioxide and  vanadium 

4.1n section GD ("Waste from  mining operations: these wastes to be in non-
dispersible  form"): 

GD 040 ex 

2529 30 

GD 050 ex 
ex 

2529 21 
2529 22 

Leucite, nepheline and nepheline syenite 
waste 
Fluospar waste 

5. In section GG ("Other wastes containing principally inorganic constituents, which 
may contain metals and organic materials"): 

GG030ex 

2621 

GG 040 ex 
GG 060 ex 

2621 
2803 

GG 080 ex 

262100 

GG  100 

Bottom ash and scag tap from  coal  fired 
power plants 
Coal fired  power plants fly ash 
Spent activated carbon, resulting from  the 
treatment  of potable water and processes of 
the food industry and vitamin production 
Slag from copper production, chemically 
stabilized, having a high iron content (above 
20%) and processed according to industrial 
specifications  (e.g. DIN 4301 and DIN 8201) 
mainly for construction and abrasive 
applications 
Limestone from the production of calcium 
cyanamide (having a pH less than 9) 

6. in section GH ("Solid plastic wastes"): 

GH013ex 

3915 30 

GH 015 ex 

3915 90 

7. In section GJ ("Textile wastes"): 

GJ 050 ex 5302 90 

8. In section GK ("Rubber  wastes"): 

Waste, parings and scrap of plastics of 
polymers vinyl chloride 
Waste parings and scrap of plastics of resins 
or condensation products e„g. 
- urea formaldehyde  resins 
- phenol formaldehyde  resins 
- melamine formaldehyde  resins 
- epoxy resins 
- alkyd resins 
- polyamides 

Tow and waste (including yarn waste and 
garnetted stock)of true hemp (Cannabis 
sativa L.) 

GK020 
GK 030 ex 

4012 20 
4017 00 

Used pneumatic tyres 
Waste and scrap of hard rubber (e.g. ebonite) 

9. In section GO ("Other wastes containing principally organic constituents, which 
may contain metals and inorganic materials"): 

GO 040 

GO 050 

Waste photographic film base and waste 
photographic film not containing  silver 
Single use cameras without batteries 

COMOROS: 

All types in Annex II 

COSTA  RICA: 

Ail types in Annex II 

DOMINICA: 

All types in Annex II 

DJIBOUTI: 

All types in Annex II 

EGYPT: 

All types in Annex II 

FUI: 

All types in Annex II 

GAMBIA: 

All types in Annex II 

GHANA: 

All types in Annex II 

GUYANA: 

All types in Annex II 

KIRIBATI: 

All types in Annex II 

KUWAIT: 

All types in Annex II 

LEBANON: 

All types in Annex II 

MALAWI: 

All types in Annex II 

MALDIVES: 

All types in Annex II 

MOLDOVA: 

All types in Annex II 

MONGOLIA: 

All types in Annex II 

MOZAMBIQUE: 

All types in Annex II 

MYANMAR: 

AU types in Annex II 

NICARAGUA: 

All types in Annex II 

NIGER: 

All types in Annex II 

NIGERIA: 

All types in Annex II 

PAKISTAN: 

1. In section GK ("Rubber  wastes"): 

GK020 

401220 

Used pneumatic tyres 

2. In section GM ("Waste  arising from  agro-food  industries"): 

10 

GM 070 ex 

2307 

Wine lees 

3. In section GN ("Waste arising from  tanniong and fellmongery  operations and 
leather use"): 

GN 010 ex 

0502 00 

Waste of pigs', hogs' or boars' bristles and 
hair or of badger hair and other brush 
making hair 

PAPUA NEW GUINEA:  All types in Annex II 

PERU: 

All types in Annex II 

SAO TOME E PRICIPE: 

All types in section GM ("Wastes arising from agro-food  industries") 

SAUDI ARABIA: 

All types in Annex II 

SENEGAL: 

All types in Annex II 

SEYCHELLES: 

All types in Annex II 

ST. LUCIA: 

All types in Annex II 

ST VINCENT AND 
THE GRENADINES: 

All types in Annex II 

WESTERN SAMOA: 

All types in Annex II 

TAIWAN: 

In section GA ("Metal  and metal-alloy wastes in metallic, non-dispersible  form") 

GA090 

720449 

Other ferrous  scrap and waste 

TANZANIA: 

All types in Annex II 

TUVALU: 

UGANDA: 

All types in Annex II 

All types in Annex II 

VANUATU:  , 

All types in Annex II 

11 

ANNEXB 

Countries and territories which have not yet responded to the Commission's 
communications on shipments for recovery of certain types of waste listed in 
Annex II (the "green" list) to Council Regulation (EEC) No 259/93. Shipments to 
these countries and territories of these categories of waste should be carried out 
under the control procedure applying to waste listed in Annex IV (the "red" list) 
of Regulation (EEC) No 259/93. 

AFGHANISTAN 

ALGERIA 

ANGOLA 

ANTIGUA and BARBUDA 

ARMENIA 

AZERBAIJAN 

BAHRAIN 

BANGLADESH 

BRUNEI 

BURUNDI 

CAMBODIA 

CAMEROON 

CENTRAL AFRICAN REPUBLIC 

CONGO 

CONGO, DEMOCRATIC REPUBLIC OF 

COTEd'IVOIRE 

DOMINICAN REPUBLIC 

ECUADOR 

ELSALVADOR 

EQUATORIAL GUINEA 

ERITREA 

12 

ETHIOPIA 

GABON 

GUATEMALA 

GUINEA 

GUINEA-BISSAU 

HAITI 

HONDURAS 

KENYA 

KYRGYSTAN 

LAOS 

LESOTHO 

MALI 

MAURITANIA 

MOROCCO 

NAMIBIA 

NEPAL 

OMAN 

PANAMA 

QATAR 

RWANDA 

ST.CHRISTOPHER & NEVIS 

SOLOMON ISLANDS 

SUDAN 

SWAZILAND 

13 

SYRIA 

TAJIKISTAN 

TONGA 

TURKMENISTAN 

UZBEKISTAN 

VATICAN CITY 

VENEZUELA 

VIET NAM 

ZIMBABWE 

14 

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