1999/823/EC: Commission Decision of 22 November 1999 confirming the measures notified by the Netherlands 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(1999) 3818) (Text with EEA relevance) (Only the Dutch text is authentic)
Date: 1999-11-22
Institutions: European Commission
Subjects: Netherlands, environmental protection, packaging, waste disposal, waste management, waste recycling

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(Acts whose publication is not obligatory)

COMMISSION

COMMISSION DECISION

of 22 November 1999

confirming the measures notified by the Netherlands 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(1999) 3818)

(Only the Dutch text is authentic)

(Text with EEA relevance)

(1999/823/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

quantified targets to be achieved by Member States for
recovery and recycling of packaging waste.

Having regard to the Treaty establishing the European
Community,

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

Having verified, in cooperation with the Member States, that
the conditions established in Article 6(6) are met,

Whereas:

I. PROCEDURE

1. Directive 94/62/EC

(1)

Directive 94/62/EC, based on Article 95 (ex Article
100a) of the Treaty, aims to harmonise national meas-
ures concerning the management of packaging and
packaging waste in order to prevent any impact thereof
on the environment or to reduce such an impact, thus
providing a high level of environmental protection, and
to ensure the functioning of the internal market and to
avoid obstacles to trade as well as distortions and restric-
tions of competition within the Community, To this
end, Article 6(1) of the Directive lays down, inter alia,

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

(2)

(3)

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 compli-
ance by other Member States with the Directive or repre-
sent distortions of the internal market.

(4)

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

2. The measures notified

(5)

transposed Directive 94/62/EC by
The Netherlands
means of a Regulation (hereafter
‘the Regulation’),
published in the Staatscourant on 4 July 1997 and
entered into force on 1 August 1997.

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(6)

the Regulation requires producers and
Article 3 of
importers, with effect from 1 August 1998, to recover
65 % of the packaging waste and to recycle 45 % of the
totality of packaging materials contained in packaging
waste, with a minimum of 15 % by weight for each
packaging material. There are three possibilities to fulfil
this obligation.

overall objective of the general covenant is to minimise
the amount of packaging waste which needs to be
disposed of. To this end, the Covenant establishes that
by 30 June 2001 at least 65 % of packaging materials
contained in the packaging waste must be recycled.
Specific targets for each specific packaging material are
laid down in the respective sub-covenants (85 % for
paper, 90 % for glass, 80 % for metals, 27 % for plastics
and 15 % for wood).

(a) Producer/importers may fulfil the obligation individ-
ually. In such case, Article 6 of the Regulation estab-
lishes that they notify the Minister on an individual
basis how the packaging waste will be taken back,
recovered and recycled.

(9)

(b) Producer/importers may

jointly notify

to the
Minister how they intend to fulfil the obligations of
Article 3 (Article 9 of the Regulation). This means
that they demonstrate that they are affiliated to an
organisation of producers and importers which
fulfils these obligations on their behalf. They still
the obligation to achieve the
have,
recovery and recycling targets, but
they are no
longer subject to an individual obligation of noti-
fication to the Minister.

individually,

the Regulation (Article 2 of

(c) Producers/importers who are signatory to a covenant
between public authorities and economic operators
of the packaging chain, in which binding.agreements
have been made on the implementation of the obli-
gations set out in the Regulation, are released from
the individual obligations set out in Articles 3 to 9
of
the Regulation).
Although the obligation to fulfil the recovery and
and
recycling targets
importers signatory to the covenant are released
from the notification and reporting obligations set
out in the Regulation. In addition, producers/impor-
ters signatory to the covenant have to achieve higher
recycling targets than those set out in the Regula-
tion. The whole idea behind this option is to aim at
higher targets at the lowest possible administrative
cost.

remains valid, producers

(7)

(8)

the ‘Packaging Covenant

Article 2 of the Regulation has been implemented by
means of
(hereafter ‘the
Covenant’). Certain provisions contained in the Cove-
nant exceed the targets set out
in Article 6(1) of
Directive 94/62/EC and they are therefore the main
subject of this Decision.

II’

‘Packaging Covenant

A draft
II’ was notified to the
Commission on 25 August 1997 (notification 97/
0576/NL), in the context of the procedure established by
Directive 83/189/EEC (1). This Covenant consists of a
general covenant and a number of subcovenants. The

(1) OJ L 109, 26.4.1983, p. 8. This Directive has been amended by

Directive 98/34/EC (OJ L 204, 21.7.1998, p. 37).

Commenting on the notification of the draft covenant,
the Commission asked the
on 26 November 1997,
Netherlands to confirm the intention to invoke Article
6(6) and to provide information on the expected recy-
cling target as well as on the measures taken to avoid
compliance problems of other Member States with the
Directive, trade restrictions and market distortions.

(10) On 19 November 1997,

the United Kingdom also
commented on this notification, requiring ‘additional
information’ seeking to demonstrate that the conditions
laid down in Article 6(6) are complied with.

(11)

The ‘Packaging Covenant II’ was signed on 15 December
1997.

(12)

further details,

By letter of 18 March 1998, reacting to the comments
of the Commission and the United Kingdom, the Neth-
erlands informed that material recycling had already
attained the overall rate of 51 % and that existing recy-
cling capacities were considered to be largely sufficient
in order to exceed the maximum recycling target set by
the Directive. For
the Netherlands
referred to a specific letter addressed to the Commission
on 26 February 1998. In this letter, the Netherlands
confirmed its intention to reach a recycling target of
65 % by the year 2001. The Netherlands pointed at the
fact that recyclable packaging is subject to the rules on
free circulation, which makes it difficult
to exactly
monitor which part of
the existing Dutch recycling
capacities is used for recycling Dutch waste as well as
which part of Dutch waste is recycled abroad. The Neth-
erlands referred to the discussion in the Article 21
Committee on 21 April 1997, where
a general
consensus was reached about the primary role which
should be played by those Member States fearing that
their compliance with the Directive would be hindered
by measures which were adopted by other Member
States. In any case, in order to give an insight about the
existing recycling capacities in the Netherlands,
the
following table was provided, which shows that there is
enough capacity to treat the additional packaging to be
recycled by 2001.

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Glass

Paper/board

Metals

Plastics

Production capacity in NL in 1996 (Thousand tonnes)

Use of recyclates in 1996 (Thousand tonnes)

Quantity of packaging put on the market in 1996 (Thou-
sand tonnes)

Quantity of packaging materially recycled in 1996 (Thou-
sand tonnes)

Percentage of packaging materially recycled in 1996

Intended percentage of packaging waste to be recycled in
2001

820

400

472

338

72

90

2 824

2 106

1 401

865

62

85

6 000

1 500

214

126

59

80

Intended quantity of packaging waste to be recycled in
2001 (Thousand tonnes)

425

1 191

171

Additional quantity of packaging to be materially recycled
in 2001 compared to 1996 (Thousand tonnes)

87

326

45

3 000

300

613

67

11

35

214

147

3. Opinions

(13) Article 6(6) states that the Commission shall take a
decision, after a verification of
the measures in co-
operation with Member States. To this end, the Commis-
sion consulted the Member States on this notification in
the context of the Committee established by Article 21
of Directive 94/62/EC. A discussion within this
Committee was held on 6 July 1999. Member States
were then invited to send written comments to the
Commission by 20 July 1999.

(14)

The United Kingdom pointed at the difficulties to assess
in practice the effects of measures exceeding the
maximum targets of Directive 94/62/EC but did not
foresee any significant problem in relation to the Dutch
notification.
Italy stated that it is important that the
Commission carries out the necessary analysis to make
sure that the conditions laid down in Article 6(6) of
Directive 94/62/EC are fulfilled. Provided the Commis-
sion agrees with the Dutch measures, Italy would not
raise objections. Belgium requested the Commission to
make sure that the comparability of Dutch targets with
the targets of
In particular
the Directive is ensured.
Belgium asked the Netherlands to clarify if the recycling
targets set out in the Covenant also include reuse of
packaging. The Netherlands confirmed that, in line with
Directive 94/62/EC, its recycling targets do not include
the reuse of packaging. In conclusion, no Member State
contended that the Dutch measures could create internal
market distortions or hinder compliance by other
Member States with the Directive.

II. ASSESSMENT

(15) 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 distor-
tions of the internal market and do not hinder compli-
ance by other Member States with the Directive. Nor
may they constitute an arbitrary means of discrimination
or a disguised restriction on trade between Member
States.

(16)

In this case, the Netherlands have asked for a derogation
from Article 6(1)(b).

(17)

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

(18)

(19)

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. This, however, makes it
difficult to carry out a precise quantification of available
capacities, since recycling takes place in an open inter-
national 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 conjunc-
tion 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 detri-
ment of collection and recycling schemes in other
Member States.

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(20) As regards the Dutch notified measures, the information
provided by the Dutch 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.

(27)

(21) More specifically, the information provided by the Neth-
erlands and summarised in the above table indicate that
a recycling rate of 72 % of glass packaging, 62 % of
paper/board packaging, 59 % of metal packaging and
11 % of plastic packaging had already been achieved in
1996 and that no capacity problems exist for absorbing
additional quantities of packaging to be materially
recycled in 2001. The present production capacity in
these sectors allows to considerably increase the recy-
cling rates of packaging without having to necessarily
use recycling capacities located outside the Dutch terri-
tory.

(22)

The Commission finds that the Netherlands provides
appropriate capacities for recycling.

(28)

b) Potential distortions of the internal market

(23)

The Commission has assessed the measures as notified
by the Netherlands and finds that the recycling rates laid
down in the Covenant do not appear to cause, at
present, distortions of the internal market. This Decision
is without prejudice
application of
to the
Community law, particularly as regards the free move-
ment of goods. The consultation of the other Member
States revealed that no Member State considers that the
Dutch measure could lead to market distortions.

full

(29)

(24)

The Commission does not dispose of any other element
showing that the Dutch recycling targets would lead
arbitrarily to market distortions.

(25)

(26)

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
measures 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
the Netherlands. The Commission has not either become

aware or been made aware of any compliance problem
caused by the Dutch measures to other Member States.

In assessing whether exceeding the recycling target by
the Netherlands could result in 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 the Netherlands
produce in total less than 5 % of the packaging waste
produced in the Community. Therefore, in the Commis-
sion's view, taking also into account the high recycling
rates already achieved in the Netherlands, 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 Dutch measures apply without distinction to all
packaging waste, whether arising from domestic or
imported products. The Commission has consulted the
Member States: the information obtained is not indic-
ative of any arbitrary 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 28 to 30 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. The Commission therefore needs to assess
whether unwished effects are avoided by setting targets
in such a way that no indirect favorisation of domestic
production or distribution occurs. However, the content
of the Dutch measures and their application do not
seem to allow for the conclusion that restriction on
trade are caused by the Dutch notified measures.

III. CONCLUSION

(30)

The Commission,
the information
in the light of
provided by the Netherlands and of the outcome of the
the Member States described in the
consultation of
above considerations, concludes that the measures noti-
fied by the Netherlands 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 the Neth-

erlands,

— the measures do not

lead to distortions of

the

internal market,

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

Article 2

This Decision is addressed to the Kingdom of the Netherlands.

Done at Brussels, 22 November 1999.

For the Commission

Margot WALLSTRÖM

Member of the Commission