2003/82/EC: Commission Decision of 29 January 2003 confirming 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 (Text with EEA relevance) (notified under document number C(2003) 361)
Date: 2003-01-29
Institutions: European Commission
Subjects: Belgium, environmental protection, packaging, waste disposal, waste management, waste recycling

L 31/32

EN

Official Journal of the European Union

6.2.2003

COMMISSION DECISION

of 29 January 2003

confirming 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(2003) 361)

(Only the Dutch and French texts are authentic)

(Text with EEA relevance)

(2003/82/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 Parlia-
ment and the Council of 20 December 1994 on packaging and
packaging waste (1), and in particular Article 6(6) thereof,

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,
measures after appropriate verification.

the Commission is to confirm such

2. The measure notified

Having consulted the Committee set up under Article 21 of
Directive 94/62/EC,

2.1. Background

Whereas:

I. PROCEDURE

1. Directive 94/62/EC

Directive 94/62/EC on packaging and packaging waste, based
on Article 95 (ex Article 100a) of the Treaty, aims to harmo-
nise national measures concerning the management of packa-
ging 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 protection, and to
ensure the functioning of the 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 packa-
ging waste.

Article 6(1)(a) of the Directive 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.
target, and
Pursuant
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.

to Article 6(1)(b), within this general

Article 6(6) of the Directive introduces a monitoring procedure
to ensure coherence between the different strategies chosen by
Member States, particularly with a view to ensure that targets

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

In Belgium, the Federal State is competent to transpose Direc-
tive 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 concluded a Cooperation
Agreement on the prevention and management of packaging
waste on 30 May 1996 (hereinafter Cooperation Agree-
ment) (2).

Article 3(2) of the Cooperation Agreement of 1996 contained
the following recycling and recovery targets to be achieved by
the concerned economic operators,
the three
Regions, i.e. Flanders, Wallonia and Brussels, both as regards
household packaging waste and industrial packaging waste:

in each of

Recycling

Recovery

1998

1999

Minimum:
45 %

Minimum:
70 %

Minimum:
50 %

Minimum:
80 %

Minimum
recycling rate by
weight for each
packaging waste

15 %

15 %

(2) It sets out the obligation for economic operators (packaging fillers
and users,
including importers in case the packaging was filled
outside Belgium) to take-back and recycle/recover the packaging
materials contained in the packaging waste put on the market
(Article 6 of the Cooperation Agreement), either individually or by
contracting a third party (Articles 7(1) of the Cooperation Agree-
ment), and to achieve quantified targets for recycling and recovery
(Article 3(2) of the Cooperation Agreement).

6.2.2003

EN

Official Journal of the European Union

L 31/33

The Cooperation Agreement was notified by the Belgian autho-
rities on 13 July 1996 pursuant
to Article 6(6) and was
confirmed by Commission decision 1999/652/EC of 15
September 1999 (1).

2.2. Revision of the Cooperation Agreement

On 1 August 2001, the Belgian authorities notified to the
Commission a draft revision of the Cooperation Agreement, in
the context of the procedure established by Directive 83/189/
EC (2). The aim of the notified measure is to increase the recy-
cling and recovery targets established by Article 3 of Coopera-
tion Agreement of 1996.

The revised Article 3 of the Cooperation Agreement would
establish the following targets:

Recycling

Recovery

Minimum
recycling rate by
weight for each
packaging waste

2000

50 %

80 %

15 %

2001

60 %

80 %

20 %

2002

65 %

85 %

25 %

2003

70 %

90 %

30 %

Those revised targets are based on a cost-benefit analysis
conducted by the Belgian authorities.

It stipulates furthermore that

Article 3(2) states that the calculation method for the attain-
ment of those recycling and recovery targets will be established
by the Interregional Commission for Packaging (Interregionale
Verpakkingscommissie) (3).
the
overall recovery target equals the sum of the attained recycling
target, organic recycling and energy recovery and that mechan-
ical recycling can be counted for the attainment of the recy-
cling target. As
the Interregional
from 1 January 2003,
Commission of Packaging will formulate new proposals for the
overall recycling and recovery targets as from 2003. Those
future targets will depend on the evolution of recycling and
recovery capacities and the modes of selective collection.

Finally it should be noted that the revised Cooperation Agree-
ment will not enter into force retroactively. The increased
targets will only apply as from the moment of publication of
the revised Cooperation Agreement
in the Belgian official
journal.

(1) OJ L 257, 2.10.1999, p. 20.
(2) OJ L 109, 26.4.1983, p. 8. This Directive has been replaced by

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

(3) For 2001, the calculation method will mirror the 1996 calculation

method.

3. Opinions

Article 6(6) of the Directive states that the Commission shall
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 this notification in the context
of the Committee established by Article 21 of Directive 94/62/
EC (Article 21 Committee).

A first exchange of views took place during the Article 21
Committee meeting of 6 February 2002. Member States were
invited to send written comments to the Commission. During
the Article 21 Committee meeting of 6 February 2002, the
delegation from Belgium explained that in their view there was
no problem with Belgium setting higher national targets for
packaging recycling. In their opinion export markets were able
to absorb the additional quantities of waste packaging and
therefore that there would be no capacity problems which
would prevent the Commission from accepting the Belgian
proposal. France questioned this assumption and indicated that
they may be opposed to the proposed higher national targets
in Belgium. Spain and Italy also stated their general concern on
the internal market effects of higher national targets.

to recycling capacities

On 29 April 2002, France submitted written comments on the
Belgian notification to the Commission. The French authorities
mentioned a specific concern that the increased recycling rates
of the revised Cooperation Agreement may lead to capacity
problems in the French glass recycling sector. Since Belgium no
longer disposes of glass recycling capacity (4), it will export its
glass
in neighbourhood-countries,
including to France. In France, the recycling capacities for glass
are limited. Increased exports of glass to France could create
capacity problems in France. Moreover, the Belgian exported
glass is cheaper than the French glass. Therefore, the French
authorities expressed their concern that the Belgian measure
could create distortions of
the internal market and hinder
France in attaining their obligations under the Directive.

On 15 May 2002, the Commission asked Belgium to clarify
certain elements of its notification. In response to this request,
information from the
the Commission received additional
Belgian authorities on 20 June 2002.

During the Article 21 Committee of 25 July 2002,
the
information
Commission presented an overview of
provided by the Belgian authorities and the French authorities'
concerns. Some other Member States, notably Italy and Spain,
indicated their doubts as to whether Belgium has appropriate
recycling capacities for glass. Belgium clarified they lost their
recycling capacity for glass, due to competition on the internal
market.

the

(4) As indicated by the Belgian authorities in their notification, the
situation for glass on the Belgian market has changed since the noti-
fication of the initial Cooperation Agreement in 1996. Indeed, the
Verlipack group, which was the only Belgian group to use container
glass from households with a recycling capacity of approximately
160 000 tonnes of glass per year, has disappeared from the market
in 1999. The Belgian authorities argue, however, that no capacity
problems in the glass sector will occur because of the existence of
neighbouring recycling capacity located in other Member States.

L 31/34

EN

Official Journal of the European Union

6.2.2003

II. ASSESSMENT

those tenders, it seems that as from 2002, exports to France
will decrease and exports to the Netherlands and Germany will
increase.

In this case, Belgium has asked for a derogation from Article
6(1)(a) and (b) of Directive 94/62/EC. Article 6(6) of the Direc-
tive 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 between Member States.

Hereinafter, the Commission will assess whether the Belgian
notified measure is consistent with those considerations.

(a) Appropriate capacities for recovery and recycling

This requirement
is interpreted by the Commission as not
imposing on Member States 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; 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). 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.

Consultation of the other Member States revealed that some
Member States have doubts as to whether Belgium disposes of
the appropriate capacities for recovery and recycling for glass
and France indicated concerns related to its own glass recycling
capacities. The Belgian authorities stated that there are no capa-
city problems, because there are sufficient recycling capacities
at the borderline areas (notably in Germany, the Netherlands
and France). Moreover, in their view, a restrictive application of
the criteria of Article 6(6) of Directive 94/62/EC would be
contrary to the internal market, since it is because of the
competition on this internal market that Belgium has lost its
glass recycling capacity on its territory. Furthermore, the noti-
fied measure does not have a negative impact, because in prac-
tice, the proposed targets are already attained. In 1999, the
agreed body for household waste in Belgium announced a recy-
cling rate of 73,0 % and the agreed body for industrial waste
announced a recycling rate of 77,9 %. As regards the price of
the Belgian authorities clarified that public
Belgian glass,
tenders determine the price of Belgian glass. On the basis of

It should be noted that since the last notification of 1996, the
situation on the Belgian market for glass has changed because
the most important Belgian recycling centre has disappeared
because of competition on the internal market. However, the
situation for metal packaging, non ferrous metals, mechanical
recycling of synthetic materials, and paper and board on the
Belgian market has not changed since the 1996 notification.
For those materials, Belgium has sufficient recycling capacities
on its territory.

On the basis of the foregoing, the Commission concludes that
since there is no obligation to recycle packaging within a
country, the measure needs to be seen in the context of an
overall assessment of the European and/or global market for
recycled material. Therefore, unless there is a general market
saturation which is due to technical and market limitations and
it should be
cannot be overcome by additional
assumed that appropriate capacities are available, independently
of whether this is within or outside the concerned Member
State. In general, this seems the case for the targets envisaged
by Belgium. Nevertheless, there are some signs for saturation of
the glass market. From the available information, it is, however,
impossible to generally conclude that additional material
cannot find appropriate capacities.

financing,

(b) Potential distortions of the internal market

Distortions of the internal market occur when high recycling
rates are accompanied by a high degree of financing through
e.g. licence fees, resulting in lower prices for secondary mate-
rials. If in another country the level of ambition is lower and
less financing is provided, the domestically collected secondary
materials will be more expensive than imported material. If, in
addition, recycling capacities are limited, it may be difficult for
those countries with low ambitions to find a market for their
own collected material.

the progressive application of

Consultation of the other Member States revealed that some
Member States fear distortions of the internal market. The
Belgian authorities state that a risk of internal market distor-
tions does not exist in the light of the small size of the Belgian
the notified
market and of
measure. In practice, the notified measure would not have any
impact because the attained recycling targets for glass in
Belgium are already much higher than the ones proposed by
the notified measure (Belgium reported a recycling rate of
87,5 % of glass packaging in 2001). Glass recycling is awarded
on the basis of public tenders, which the determine the price
for the Belgian glass. Finally, the maximum collection capacity
on the Belgian market seems to be attained, and therefore it is
to be expected that in the future, the amount of collected glass
will not substantially increase.

6.2.2003

EN

Official Journal of the European Union

L 31/35

The Commission finds that the fact that the small size of the
Belgian market cannot be used as a reason for being treated
differently than larger countries. Similarly, existing high recy-
cling rates and unlikely further increases do not exclude that
there are already distortions of the internal market. However,
as glass recycling is awarded on the basis of public tenders, it
can be assumed that the price is equal to the European and/or
global market price for cullet. Therefore, the level of provided
financing cannot be expected to be substantially different from
other countries. Therefore,
it is difficult to determine with a
sufficient degree of certainty that the Belgian targets have or
will have distorting effects on the internal market.

On the basis of the foregoing, the Commission concludes that
it does not dispose of sufficient elements showing that the
Belgian recycling and recovery targets would lead to potential
distortions of the internal market.

in
taken in the field of waste management are also capable,
certain circumstances, of
restricting trade or protecting
domestic production. In this particular case, the content of the
Belgian measure and its application do not seem to allow for
the conclusion that restriction on trade are caused by the
Belgian notified measure.

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
measure notified by Belgium pursuant to Article 6(6) of Direc-
tive 94/62/EC should be confirmed since it has been verified
that:

— appropriate capacities for recovery and recycling of the
material collected under the Belgian targets are available,

(c) Non-hindrance of compliance by other Member States

— the measure does not lead to distortions of the internal

with the Directive

market,

The purpose of this criterion is to assess whether a national
measure hinders other Member States to comply with the
targets of the Directive. As outlined in point b, this can be the
case if a high degree of financing is provided in one country
whereas in other countries the level of financing is lower and if
recycling capacities are limited.

the notified measures in light of

The assessment 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. France has indicated that the noti-
fied measure could endanger this Member States' obligations
under the Directive with respect to glass.

In line with the reasoning in point b, the Commission could
not find sufficiently clear evidence that the measure notified by
Belgium would be capable of hindering compliance of this
Member State's obligations under the Directive.

(d) No arbitrary means of discrimination

The Belgian measure apply without distinction to all packaging
waste, whether arising from domestic or imported products.
Consultations of the other Member States have not indicated
any possible arbitrary means of 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. The packaging wastes to which the
Belgian measure refers are goods which fall under the scope of
Articles 28 to 30 of the EC Treaty and consequently measures

— the measure does not hinder compliance by other Member

States with the Directive,

— the measure does not constitute an arbitrary means of

discrimination,

— the measure does not constitute a disguised restriction on

trade between Member States.

It should be noted, however, that signs of saturation of the
for collected cullet have been reported. Belgium is
market
encouraged to observe the glass market with particular care
and to make sure that the levels of collection in Belgium do
not exceed the capacities of the glass market,

HAS DECIDED AS FOLLOWS:

Article 1

The measure 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, 29 January 2003.

For the Commission

Margot WALLSTRÖM

Member of the Commission