1999/652/EC: Commission Decision of 15 September 1999 confirming the measures notified by Belgium pursuant to Article 6(6) of Directive 94/62/EC of the European Parliament and the Council on packaging and packaging waste (notified under document number C(1999) 2919) (Text with EEA relevance) (Only the Dutch text is authentic)
Date: 1999-09-15
Institutions: European Commission
Subjects: Belgium, environmental protection, packaging, waste disposal, waste management, waste recycling

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Official Journal of the European Communities

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COMMISSION DECISION

of 15 September 1999

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

(notified under document number C(1999) 2919)

(Only the Dutch text is authentic)

(Text with EEA relevance)

(1999/652/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Under that provision,
measures after appropriate verification.

the Commission is to confirm such

Having regard to the Treaty establishing the European
Community,

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

2. The measures notified

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

Whereas:

On 13 July 1996 Belgian authorities notified to the Commis-
sion, in the context of the procedure established by Council
Directive 83/189/EC (2), a draft Cooperation Agreement on the
prevention and management of packaging waste (notification
96/240/B).

I. PROCEDURE

1. Directive 94/62/EC

Directive 94/62/EC, based on Article 95 (ex 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 environmental
the internal
protection, and to ensure the functioning of
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, quanti-
fied 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.

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.

In Belgium, the Federal State has only competence to transpose
Directive 94/62/EC as regards product-related issues (such as,
for instance, Article 9 and Annex II). The fixing of targets for
recovery and recycling of the packaging materials contained in
the packaging waste, as laid down in Article 6 of Directive
94/62/EC, comes into the exclusive competence of the regions.
In order to ensure a coherent and consistent transposition and
implementation of Directive 94/62/EC and in particular its
Article 6, the three Belgian regions deemed it necessary to
conclude the Cooperation Agreement on the prevention and
management of packaging waste. This Agreement is a legally
binding act and constitutes the transposition measure as
regards Article 6 of Directive 94/62/EC. This Cooperation
the obligation for economic operators
Agreement sets out
(packaging fillers and users,
including importers in case the
packaging was filled outside Belgium) to takeback and recycle/
recover the packaging materials contained in the packaging
waste put on the market (Article 6 of the Cooperation Agree-
ment), either individually or by contracting a third party
(Articles 7(1) of the Cooperation Agreement), and to achieve
quantified targets for recycling and recovery (Article 3(2) of the
Cooperation Agreement). Economic operators shall communi-
cate to the Interregional Commission for Packaging how they
intend to fulfil such an obligation. For household packaging,
this is without prejudice of the rights of the competent public
authorities in charge of waste collection in public streets. The
Interregional Commission shall evaluate and,
if appropriate,
approve or refuse the way by which economic operators intend
to fulfil their obligation set out in Article 6 of the Cooperation
the Cooperation Agreement).
Agreement
Economic operators can be relieved from the obligation to take
a
back

(Article 7(2) of

recycle/recover

packaging,

signing

and

by

(1) OJ L 365, 31.12.1994, p. 10.

(2) OJ L 109, 26.4.1983, p. 8. Directive as amended by Directive 98/

34/EC (OJ L 204, 21.7.1998, p. 37).

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contract with a ‘organisme agreé’ (agreed body, Article 8 of the
Cooperation Agreement) committing themselves to measures
which will allow the agreed body to meet its recycling and
recovery targets. Such agreed bodies have, besides achieving the
quantified targets set out in Article 3(2) of the Cooperation
Agreement, to fulfil a number of requirements concerning their
legal and financial
the
Cooperation Agreement).

situation (Articles 9 to 15 of

Its Article 3(2) sets out the following global minimum rates, by
weight, of recycling and recovery of packaging waste:

— for 1998: 45 % recycling — 70 % recovery

— for 1999: 50 % recycling — 80 % recovery.

These recycling and recovery rates are to be achieved by the
concerned economic operators, via the above-described system,
in each of the three regions, i.e. Flanders, Wallonia and Brus-
sels, both as regards household packaging waste and as regards
industrial packaging waste.

An annex to the draft Cooperation Agreement was included in
the notification, containing a summary of the measures taken
in order to ensure compliance with the conditions set out in
Article 6(6) of Directive 94/62/EC. These measures consist of:

— an analysis of the recovery capacities in relation to each
packaging waste stream for the future years. This analysis is
described in full

in section II(a)

— a description of the provisions aimed at avoiding trade
distortions. They consist of a progressive implementation of
the legislation as well as of a permanent monitoring pro-
cedure, to be exerted by the Interregional Commission for
Packaging and by each individual Regional Government,
which shall supervise the setting up of the necessary collec-
tion infrastructures. A periodical control is also foreseen, in
the context of both the yearly budget approval procedure
for the agreed bodies as well as of the efficiency monitoring
procedure of the recycling and recovery operators.

An analysis of the different waste streams was carried out in a
study on the ‘ecological
standardisation of packaging in
Belgium’ which was transmitted to the Commission with the
notification and was then circulated by the Commission to all
other Member States.

On 14 October 1996 the Commission, commenting on the
notified draft according to the procedure established by
Directive 83/189/EEC, acknowledged that Belgium intended to
make use of Article 6(6) of Directive 94/62/EC. Two Member
States also reacted to the Belgian notification 96/2408. On 11

October 1996 France sent a detailed opinion on various
aspects of the notified draft, mentioning inter alia, that the
recycling and recovery rates foreseen in the draft Cooperation
Agreement for 1999 required the procedure under Article 6(6)
to be applied prior to the adoption of such targets. On 14
October 1999 also Finland commented on the notification but
it did not touch on the issue of Article 6(6).

On 20 December 1997 responding to the detailed opinion of
France, Belgium provided a detailed analysis of the present
industrial capacities, demonstrating that the conditions set out
in Article 6(6) were complied with.

The Cooperation Agreement was adopted by means of a
Decree of 21 January 1997 of the Flanders Region, a Decree of
16 January 1997 of the Walloon Region and an Ordinance of
24 January 1997 of the Brussels Region (all published in the
Moniteur of 5 March 1997). The final text of the measures was
communicated to the Commission on 30 April 1997.

3. Opinions

Article 6(6) states that the Commission shall take a decision,
after a verification of
the measures in cooperation with
Member States. To this end, the Commission consulted the
Member States on this notification in the context of
the
Committee established by Article 21 of Directive 94/62/EC.
This consultation procedure was deemed to be the most appro-
priate 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
Netherlands and the United Kingdom submitted written con-
tributions. The matter was discussed again during the
committee meeting of 4 September 1997.

No Member State contended that the Belgian measures could
create internal market distortions or hinder compliance by
other Member States with the Directive.

Several Member States made the point that a specific pro-
cedure,
laying down the kind of information that Member
States should provide when notifying a measure under Article
6(6), should be agreed on between them and the Commission.
However, a number of difficulties were recognised, particularly
pertaining to the assessment of recovery and recycling capa-
cities 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.

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 (according to Article 12 of Directive 94/62/EC), since
until that moment there will be difficulties in calculating the
achieved targets. France therefore suggested to wait until the
common methodology was available in order to take a decision
on the notification from Belgium (1).

(1) As regards this question,

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

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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 repro-
cessing 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 adopted by other
Member States. Should a measure exceeding the maximum
targets of the Directive result in compliance problems for other
Member States, it was primarily up to the latter to make this
situation known so that appropriate countermeasures could be
taken. The Commission invites Member States to submit imme-
diately any information on adverse effects as set out in Article
6(6) on their territoy, 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 l January 2001.

II. ASSESSEMENT

In view of the delay which would be caused if the Commission
was to wait
for the data in accordance with Commission
Decision 97/138/EC (1), 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 unneces-
sary 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 internal market and do not
hinder compliance by other Member States with the Directive.
Nor may they constitute an arbitrary means of discrimination
or a disguised restriction on trade bettveen Member States.

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

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

(a) Appropriate capacities for recovery and 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.

(1) OJ L 52, 22.2.1997, p. 22.

This, however, makes it difficult to carry out a precise quantifi-
cation of available capacities. since recycling takes place in an
open international market.

This criterion also serves 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; there-
fore it should be seen in conjunction with the other criteria laid
down in Article 6(6). In practice, compliance with this criterion
is a signal for compliance 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.

the information
As regards the Belgian notified measures,
provided by the Belgian Government to the Commission and
to the other Member States indicated that the exceeding of the
targets of Directive 94/62/EC does not exert as a consequence
any disturbance on the market for recyclates in other Member
States. More specifically, the information provided by Belgium
indicate that a recycling rate of 55 % of glass packaging had
already been achieved in 1997 and that no capacity problems
exist for absorbing the brown and green glass packaging waste
arising. Recycling capacities are ensured by the existence in
Belgium of a site capable of recycling 160 000 tonnes of glass
per year as well as of
five treatment sites which produce
secondary material which is demanded both by Belgian and
foreign recyclers. White glass is exported to foreign industries
which are willing to buy such wastes.

Similarly, no capacity problems exist
for metal packaging,
given that 3,5 million tonnes of ferrous metals are consumed
yearly in Belgium by the steel industry and 1,27 million tonnes
of such materials are imported. As regards non ferrous metals,
Belgium has a capacity exceeding 500 000 t/year.

For mechanical recycling of synthetic materials, Belgian author-
ities indicate the existence of several companies which alto-
gether in 1997 already guaranteed the recycling of 50 000
tonnes of materials per year. The number of economic oper-
ators in this industry indicates a market which can further
expand, particularly in the sectors of work roads, public amen-
ities and sewage pipes. Belgium envisages achieving a mechan-
ical recycling rate of 15 % for plastic packaging waste and
geneting the remaining fraction to municipal waste incinerators
or cement kilns. Energy recovery in cement kilns concerned
10 000 tonnes of plastic waste in 1997 but recovery capacity
may be increased up to 60 000 to 80 000 tonnes per year.
in municipal waste
Sufficient recovery capacities also exist
incinerators equipped with heat recovery devices as well as in
steel production sites.

A recycling capacity of over one million tonnes per year
already existed in 1997 for paper and board. Industry from this
sector needs to import waste paper in order to be profitable,
therefore no recycling capacity problems exist.

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The Commission finds that Belgium provides appropriate
capacities for recovery and recycling.

information obtained is not indicative of any arbitrary discrim-
ination.

(b) Potential distortions of the internal market

(e) No disguised restriction on trade between Member States

The Commission has assessed the measures as notified by
Belgium and finds that the recycling and recovery rates as well
as the collection, system imposed on the operators by the
legislation do not appear to cause, at present. distortions of the
internal market. This Decision is without prejudice to the full
application of Community Law, particularly as regards the free
movement of goods. The consultation of the other Member
States revealed that no Member State considers that the Belgian
measure could lead to market distortions. Belgian authorities
state that such risks do not exist in the light of the small size of
the Belgian market and of the progressive application of the
notified measures. In this respect, a monitoring body has been
set up.

The Commission does not dispose of any other element
showing that the Belgian recycling and recovery targets would
lead to arbitrary 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 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 infrastruc-
ture for collection is still to be set up or completed.

The assessment of the notified measures in the light of this
criterion should primarily be made taking into account the
opinion of the Member Startes whose compliance with the
targets of the Directive could be endangered by measures set
up in other Member States. No Member State expressed
concern that compliance with the Directive could be hindered
by the measures notified by Belgium. The Commission has
either become aware or been made aware of any compliance
problem caused by the Belgian measures to other Member
States.

in recovery or

In assessing whether exceeding the recycling target by Belgium
could result
recycling capacities in other
Member States being exploited, thereby resulting in potential
compliance problems by other Member States with the targets
of the Directive, the Commission also takes into account the
fact that Belgium only produces about 3 % of the packaging
waste produced in the Community. Therefore, in the Commis-
sion'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 Belgian measures apply without distinction to all pack-
aging waste, whether arising from domestic or imported prod-
ucts. The Commission has consulted the Member States: the

in certain circumstances, of

This concept refers to possible restrictions on imports of prod-
ucts from other Member States and to indirect protection of
domestic production. Wastes are goods which fall under the
scope of Articles 28 to 30 of the Treaty and consequently
measures taken in the field of waste management are also
restricting trade or
capable,
protecting domestic production. The Commission therefore
needs to assess whether undesired effects are avoided by setting
targets in such a way that no indirect favouritism of domestic
production or distribution occurs. However, the content of the
Belgian measures and their application do not seem to allow
for the conclusion that restrictions on trade are caused by the
Belgian notified measures.

III. CONCLUSION

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

— appropriate capacities for recovery and recycling exist in

Belgium,

— 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 Belgium which exceed the maximum
recovery and recycling target laid down respectively in Article
6(1)(a) and (b) of Directive 94/62/EC are hereby confirmed.

This Decision is addressed to the Kingdom of Belgium.

Article 2

Done at Brussels, 15 September 1999.

For the Commission

Ritt BJERREGAARD

Member of the Commission