1999/42/EC: Commission Decision of 22 December 1998 confirming the measures notified by Austria pursuant to Article 6(6) of Directive 94/62/EC of the European Parliament and of the Council on packaging and packaging waste (notified under document number C(1998) 3940) (Only the German text is authentic) (Text with EEA relevance)
Date: 1998-12-22
Institutions: European Commission
Subjects: Austria, approximation of laws, packaging, waste disposal, waste management, waste recycling

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II

(Acts whose publication is not obligatory)

COMMISSION

COMMISSION DECISION

of 22 December 1998

confirming the measures notified by Austria pursuant to Article 6(6) of Directive
94/62/EC of the European Parliament and of the Council on packaging and
packaging waste

(notified under document number C(1998) 3940)

(Only the German text is authentic)

(Text with EEA relevance)

(1999/42/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Community,

Having regard to Directive 94/62/EC of the European
Parliament and of the Council of 20 December 1994 on
packaging and packaging waste (1), and in particular
Article 6(6) thereof,

Having consulted the committee set up by Directive 94/
62/EC,

Whereas:

I. PROCEDURE

internal market and to avoid obstacles to trade as well as
distortions and restrictions of competition within the
Community. To this end, Article 6(1) of the Directive lays
down, inter alia, quantified targets to be achieved by
Member States for recovery and recycling of packaging
waste.

Article 6(1)(a) establishes that, no later than 30 June 2001,
between 50 % as a minimum and 65 % as a maximum
by weight of
the packaging waste will be recovered.
Pursuant to Article 6(1)(b), within this general target, and
within the same time limit, between 25 % as a minimum
and 45 % as a maximum by weight of the totality of
packaging materials contained in packaging waste will be
recycled with a minimum of 15 % by weight for each
packaging material.

1. Directive 94/62/EC

Directive 94/62/EC, based on Article 100a of the Treaty,
aims to harmonise national measures concerning the
management of packaging and packaging waste in order
to prevent any impact thereof on the environment or to
reduce such impact, thus providing a high level of envir-
onmental protection, and to ensure the functioning of the

(1) OJ L 365, 31. 12. 1994, p. 10.

Article 6(6) introduces a monitoring procedure to ensure
coherence between the different strategies chosen by
Member States, particularly with a view to ensure that
targets set in one Member State do not hinder compliance
by other Member States with the Directive or represent
distortions of the internal market.

Under that provision, the Commission is to confirm such
measures after appropriate verification.

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2. The measures notified

in the context of

On 23 December 1994 the Austrian Government notified
to the Commission, under Council Directive 83/189/EEC
of 28 March 1983 laying down a procedure for the provi-
sion of information in the field of technical standards and
regulations (1), a draft of national measures to be adopted
in the field of packaging and packaging waste (noti-
fication 94/9059/A). The draft measures were intended to
bring Austrian legislation (Ordinance 645 of 1992 on
packaging waste and Ordinance 646 of 1992 setting
targets for packaging waste) in line with the contents of
Directive 94/62/EC, which was to be transposed into
legislation before 30 June 1996. On 29 May
national
the correspondence with the
1995,
Commission regarding this notification,
the Austrian
Government communicated its intention to exceed the
recycling target laid down in Article 6(1)(b) of Directive
94/62/EC. In this communication, the Austrian Govern-
ment announced that the maximum target for recycling
was already exceeded in 1994 and statistical
findings
showed that this target would be exceeded in 1995 as
well. Since programmes had been established to exceed
such targets in the following years, the Austrian Govern-
ment seeked confirmation by the Commission. In partic-
ular, in light of the amendment of the Austrian packaging
legislation, the Austrian Government referred to the year
1998 as well as to the year 2001 (the legislation provides
for a revision or increase of the recycling target for 2001
by the year 1999).

On 17 July 1995 the draft amendment to the Austrian
legislation on packaging and packaging waste was notified
once more to the Commission under Article 16 of
Directive 94/62/EC. That Article provides that Member
States are to notify the drafts of measures that they intend
to adopt within the framework of Directive 94/62/EC to
the Commission, excluding measures of a fiscal nature,
including technical specifications linked to fiscal
but
measures which encourage compliance with such tech-
nical specifications,
to
examine them in the light of existing provisions
following in each case the procedure under Directive
83/189/EEC.

to permit

the latter

in order

dicated, although Austrian authorities mentioned that a
slight exceeding of the maximum recycling target was
expected for the next years, concerning mainly paper and
glass packaging. It was added that
the availability of
appropriate recycling capacities was demonstrated by a
report ordered by the Federal Ministry for Environment,
and which was subsequently transmitted to the Commis-
sion in September 1996. This report contains figures on
recycling of the different packaging materials for the year
1994. As regards the measures envisaged in order to avoid
market distortions and compliance problems for other
Member States with the Directive, the letter indicated that
the implementation of the legislation had shown that
such problems did not arise.

A revised version of the packaging Ordinance and of the
Ordinance setting targets for packaging waste was notified
under Directive 83/189/EEC and under Article 16 of
Directive 94/62/EC on 26 August 1996 (notification 96/
332/A) and on 25 March 1997 (notification 97/156/A).
These Ordinances have been published respectively on 29
November 1996 (numbers 648 and 649) and on 13
August 1997 (number 232).

Paragraph 11(7) of Ordinance 648/96 lays down targets
for economic operators (manufacturers, importers, fillers
and distributors) which take part in a collection and re-
cycling system agreed by public authorities. The target for
recycling for these economic operators is 25 % by weight
of the packaging waste (with a minimum of 15 % for
each packaging material) starting from the year 1997, to
be achieved every calendar year. These targets correspond
to the minimum targets for recycling set by Directive
94/62/EC.

Paragraph 10 of Ordinance 648/96 lays down recycling
targets for economic operators not participating in an
agreed system. These targets, to be achieved in every
calendar year, are, by weight:

Paper, board, cardboard, corrugated cardboard

In a letter to the Austrian authorities dated 19 October
1995, sent in the context of notification 94/9059/A, the
Commission took note of the intention of Austria to
make use of Article 6(6) and requested additional infor-
mation concerning, in particular, the expected recycling
rate, the appropriate capacities provided for in order to
achieve this target and the measures taken in order to
avoid distortions of the internal market as well as compli-
ance problems of other Member States with Directive
94/62/EC. The answer to this letter was received on 20
June 1996. No precise expected recycling rate was in-

Glass

Ceramic

Metals

Plastics

Beverage composites

Other composites

90 %

93 %

95 %

95 %

40 %

40 %

15 %

(1) OJ L 109, 26. 4. 1983, p. 8; Directive replaced by Directive

98/34/EC (OJ L 204, 21. 7. 1998, p. 37).

Percentages are calculated out of the total amount of each
packaging material.

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Each economic operator not participating in an agreed
system has to collect or take back 90 % of the packaging
material he has put on the market. If he actually collects
or takes back a proportion of less than 90 % but more
than 50 % of the packaging material he has put on the
market, he is obliged to participate in an agreed collection
and recycling system in respect of the difference between
that proportion and 90 %. For this amount, the targets of
paragraph 11(7) apply. If he collects or takes back a
proportion of less than 50 % of the packaging material he
has put on the market, he is obliged to participate in an
agreed collection and recycling system in respect of the
difference between that proportion and 100 %.

For this amount also the targets of paragraph 11(7) apply.

Further targets for drinks packaging are set out by Or-
dinance 649/96, as follows.

Paragraph 2 establishes that,
in order to prevent and
recover waste from drinks packaging, the following ratios
of drinks packaging as a proportion of
the bottling
volume sold on the domestic market is to be met through
re-filling,
recycling and
energy recovery:

environmentally compatible

(%)

1993

1994

1997

2000

table water, soda

90

92

92

96

Mineral water,
water

Beer

19. 1. 1999

(tonnes)

1994

1998

2001

70 000

54 000

38 000

160 000

90 000

60 000

Glass

Plastics

Paper, card, cardboard, corrugated
cardboard

209 000 140 000

99 000

55 000

36 000

17 000

81 000

50 000

30 000

Metals

Composites

3. Opinions

Article 6(6) states that
the Commission is to take a
decision, after a verification of the measures in coopera-
tion with Member States. To this end, the Commission
consulted the Member States on the notification in ques-
tion in the context of
the Committee established by
Article 21 of Directive 94/62/EC. This procedure was
deemed to be the most appropriate and no Member State
expressed disagreement in this respect. A first exchange
of views took place during the Committee meeting of 21
April 1997. Member States were then invited to send
written comments to the Commission by 31 May 1997.
Austria, Belgium, Denmark, France, Ireland, the Nether-
lands and the United Kingdom submitted written contri-
butions. The matter was discussed again during the
Committee meeting of 4 September 1997.

Alcohol-free refreshment drinks
(such as
including
lemonade),
alcohol-free hop and malt drinks

90

80

91

80

92

80

94

83

No Member State contended that the Austrian measures
could create internal market distortions or hinder compli-
ance by other Member States with the Directive.

juices,

fruit-juice drinks,

40

45

60

80

Fruit
nectars

Milk and liquid milk products

Wine

Champagne-type
spirits

drinks

and

25

60

60

40

65

65

60

80

70

80

80

80

Targets are expressed in weight and percentages are calcu-
lated out of the totality of all packaging material used for
each product.

laying down the kind of

Several Member States made the point that a specific
information that
procedure,
Member States should provide when notifying a measure
under Article 6(6), should be agreed upon between them
and the Commission. However, a number of difficulties
were recognised, particularly pertaining to the assessment
of recovery and recycling capacities which exist on the
open international market and to the fact that it is not
always possible to foresee whether certain measures will
have as an effect that the maximum targets of Directive
94/62/EC will be exceeded.

In addition, paragraph 3 establishes absolute maximum
quantities of residues of other packaging waste (packaging
waste other than drink packaging) that may be treated in
waste treatment facilities, other than material recycling or
thermal recovery facilities.

France considered it difficult for the Commission and for
Member States to take a position on this matter in the
absence of the common methodology to be used for
setting up the database (in accordance with Article 12 of
Directive 94/62/EC), since until that moment there will

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be difficulties in calculating the achieved targets. France
therefore suggested to wait until the common methodo-
logy was available in order to take a decision on the
notification from Austria (1).

internal market and do not hinder compliance by other
Member States with the Directive. Nor may they consti-
tute an arbitrary means of discrimination or a disguised
restriction on trade between Member States.

In the Committee-meeting there was a general consensus
on the need to constantly monitor the effect of measures
in order to identify and face possible trade distortions,
should any arise. The United Kingdom indicated that
providing information on economic aspects such as past-
levels and projections of reprocessing and of reprocessing
capacities, of imports and exports of packaging waste, as
well on historical prices over time would be useful.
However, there was also general consensus on the fact
that, in the procedure, a primary role was to be played by
Member States which feared their compliance with the
Directive would be hindered by measures which were
adopted by other Member States. Should a measure
exceeding the maximum targets of the Directive result in
compliance problems for another Member State, it was
primarily up to the latter to make this situation known so
that appropriate counter-measures could be taken. The
to immediately
Commission invites Member States
submit any information on adverse effects as set out in
Article 6(6) on their territory, whenever such a situation
arises.

The United Kingdom also suggested that the effects of
any higher target in existence should be examined during
the planned review of Article 6(1) targets, to be completed
no later than 1 January 2001.

II. ASSESSMENT

the delay which would be caused if

In view of
the
Commission was to wait for the data in accordance with
Commission Decision 97/138/EC (2), and taking into
account the fact that no adverse effect concerning the
elements mentioned in Article 6(6) has been reported, the
Commission considers it unnecessary to postpone the
present decision as suggested by France.

Article 6(6) of Directive 94/62/EC allows Member States
to go beyond targets set in Article 6(1)(a) and 6(1)(b) if the
Member State provides to this effect appropriate capacities
for recycling and recovery. The measures must be taken
in the interest of a high level of environmental protection
and on the condition that they avoid distortions of the

(1) As regards this question, it is established that the completion
of databases is to be developed in line with Commission
Decision 97/138/EC to ensure compliance with the objectives
the Directive and the future setting up of a common
of
methodology, but
is not a condition for confirming
measures in the context of Article 6(6).

this

(2) OJ L 52, 22. 2. 1997, p. 22.

In this case, Austria has asked for a derogation from
Article 6(1)(b).

The Commission has consulted the Member States and
no objections to the Austrian measures have been raised.

(a) Appropriate capacities for recycling

This requirement is interpreted by the Commission as
not imposing on Member States total self-sufficiency with
respect to recycling and recovery. Member States may also
have recourse to capacities located in other Member States
and third countries in order to fulfil their recycling and
recovery targets. This, however, makes it difficult to carry
out a precise quantification of available capacities, since
recycling takes place in an open international market.

This criterion serves also the purpose of ensuring that
measures taken in one Member State do not result in
problems of compliance with the Directive for other
Member States; therefore it should be seen in conjunction
with the other criteria laid down in Article 6(6). In prac-
tice, compliance with this criterion is a signal for compli-
ance with criteria (b) and (c) below. In particular, if targets
are set exceeding those laid down in Article 6(1), it should
be ensured that this is not to the detriment of collection
and recycling schemes in other Member States.

As regards the Austrian notified measures, the Austrian
Government stated that exceeding the maximum target
for recycling in 1998 would primarily depend on paper
recycling (paper accounts for 44 % of the total packaging
in circulation). At present, over-capacities exist for recyc-
ling paper and glass as well as primary metal and plastic
packaging and commercial packaging. Austria estimated
that capacities for recycling will remain available, despite
the increase in the collection/recycling of used packaging.
This information appears in the report provided to the
Commission in September 1996 and which the Commis-
sion circulated to all other Member States. This report
shows that in 1994 about 55 % of packaging waste put in
circulation was recovered (481 000 tonnes out of 876 300)
— 52 % in the form of material recycling (456 700
tonnes) and 3 % in the form of energy recovery — but
drinks packaging is not taken into account in these calcu-
lations. The recovery rate for glass was 69 %, paper and
cardboard 72 %, metal 44 %, plastics 25 % and

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composites 4 %. On the basis of similar production in
the coming years, Austria expects, disregarding drink
packaging, a slight exceeding of the target set out in
Article 6(1)(b) of Directive 94/62/EC. This mainly
concerns glass and paper. This means that capacities are
available within Austria. The Commission finds that
Austria provides appropriate capacities for recycling.

(b) Potential distortions of the internal market

The Commission has assessed the measures as notified by
Austria and finds that the collecting and recycling system
imposed on the operators by the Austrian legislation does
not cause distortions of the internal market.

The Austrian Government has declared that the applica-
tion of these measures in the past has proved that there
are no market distortions. The consultation of the other
Member States revealed that no Member State considers
that the Austrian measure could lead to market distor-
tions. The Commission does not dispose of any other
element showing that the Austrian measures would lead
to market distortions.

(c) Non-hindrance of compliance by other Member

States with the Directive

The purpose of this criterion is to avoid recycling and
recovery capacities of Member States being filled up by
packaging waste collected in other Member States. This is
particularly relevant for those Member States which have
not yet started recycling of packaging waste on a large
scale and where the infrastructure for collection is still to
be set up or completed.

The assessment of the notified measures in light of this
criterion should primarily be made taking into account
the opinion of the Member States whose compliance with
the targets of the Directive could be endangered by meas-
ures set up in other Member States. No Member State
expressed concern that the compliance with the Directive
could be hindered by the measures notified by Austria.
The Commission has not either become aware or been
made aware of any compliance problem caused by the
Austrian measures to other Member States.

In assessing whether exceeding the recycling target by
in recycling capacities in other
Austria could result
thereby resulting in
Member States being exploited,
potential compliance problems by other Member States
with the targets of the Directive, the Commission also
takes into account the fact that Austria only produces
about 1 % of
the packaging waste produced in the
Community. Therefore, in the Commission’s view, there
is no real risk that this would result in problems for other
Member States in complying with the targets of Directive
94/62/EC.

(d) No arbitrary means of discrimination

The Austrian measures apply without distinction to all
packaging waste, whether arising from domestic or
imported products. The Commission has never received
any complaint alleging that
the Austrian legislation
entails arbitrary discrimination. The Commission has
consulted the Member States: the information obtained is
not indicative of any discrimination.

(e) No disguised restriction on trade between

Member States

This concept refers to possible restrictions on imports of
products from other Member States and to indirect
protection of domestic production. Wastes are goods
which fall under the scope of Articles 30 to 36 of the
Treaty and consequently measures taken in the field of
waste management are also capable, in certain circum-
stances, of
restricting trade or protecting domestic
production. However, the content of the Austrian meas-
ures and the circumstances surrounding their application
do not allow for such a conclusion to be drawn. The
recycling targets apply to all packaging waste without
distinction whether arising from domestic products or
imported products. The conditions for participating in a
system of collection and recycling agreed by public
authorities apply to domestic and foreign producers
without distinction. No complaint in this respect has ever
been received by the Commission.

III. CONCLUSION

the information
in the light of
The Commission,
provided by Austria and of the outcome of the consulta-
tion of the Member States described in the above consid-
erations, concludes that the measures notified by Austria
pursuant to Article 6(6) of Directive 94/62/EC should be
confirmed since it has been verified that:

— appropriate capacities for recycling exist in Austria,
— the measures do not lead to distortions of the internal

market,

— the measures do not hinder compliance by other

Member States with the Directive,

— the measures do not constitute an arbitrary means of

discrimination,

— the measures do not constitute a disguised restriction

on trade between Member States,

HAS ADOPTED THIS DECISION:

Article 1

The measures notified by Austria which exceed the
maximum recycling target laid down in Article 6(1)(b) of
Directive 94/62/EC are hereby confirmed.

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This Decision is addressed to the Republic of Austria.

Article 2

Done at Brussels, 22 December 1998.

For the Commission

Ritt BJERREGAARD

Member of the Commission