Common Position (EC) No 18/2003 of 6 March 2003 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a Directive of the European Parliament and of the Council amending Directive 94/62/EC on packaging and packaging waste
Date: 2003-03-06
Institutions: Council of the European Union
Subjects: approximation of laws, environmental protection, information system, packaging, waste management, waste recycling

6.5.2003

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COMMON POSITION (EC) No 18/2003

adopted by the Council on 6 March 2003

with a view to adopting Directive 2003/. . ./EC of the European Parliament and of the Council of
. . . amending Directive 94/62/EC on packaging and packaging waste

(2003/C 107 E/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF
THE EUROPEAN UNION,

(4) Recovery and recycling of packaging waste should be
further increased to reduce its environmental impact.

Having regard to the Treaty establishing the European
Community, and in particular Article 95(1) thereof,

Having regard to the proposal from the Commission (1),

(5) Certain Member States which, on account of their special
circumstances, were allowed to postpone the date fixed for
achievement of the recovery and recycling targets set in
Directive 94/62/EC should be granted a further, but
limited, postponement.

Having regard to the Opinion of the European Economic and
Social Committee (2),

Acting in accordance with the procedure laid down in Article
251 of the Treaty (3),

Whereas:

(1) Pursuant to Directive 94/62/EC (4) the Council is required,
no later than six months before the end of a five-year
phase starting from the date by which that Directive
should have been implemented in national
law, to fix
targets for the next five-year phase.

(2) The definition of

‘packaging’

laid down in Directive
94/62/EC should be further clarified through the intro-
duction of certain criteria and an annex containing illus-
trative examples. It is necessary, in order to achieve the
ambitious recycling targets, to encourage the development
of
for
innovative and viable recycling processes, as
instance the chemical recycling of plastics.

(3) Recycling targets for each specific waste material should
take account of
life-cycle assessments and cost-benefit
analysis, which have indicated clear differences both in
the costs and in the benefits of recycling the various
packaging materials, and should improve the coherence
of the internal market for the recycling of these materials.

(1) OJ C 103 E, 30.4.2002, p. 17.
(2) OJ C 221, 17.9.2002, p. 31.
(3) Opinion of the European Parliament of 3 September 2002 (not yet
published in the Official
Journal), Council Common Position of
6 March 2003 and Decision of the European Parliament of . . .
(not yet published in the Official Journal).

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

(6) The management of packaging and packaging waste
requires the Member States to set up return, collection
and recovery systems. Such systems should be open to
the participation of all interested parties and be designed
to avoid discrimination against
imported products and
barriers to trade or distortions of competition and to
guarantee the maximum possible return of packaging
and packaging waste, in accordance with the Treaty. The
operators in the packaging chain as a whole should
shoulder their shared responsibility to ensure that
the
environmental impact of packaging and packaging waste
throughout its life cycle is reduced as far as possible.

(7) Community-wide data on packaging and packaging waste,
including on waste exported for recycling and recovery
outside the Community, are needed in order to monitor
the implementation of the objectives of this Directive. This
requires a harmonised reporting technique and clear
guidelines for data providers.

(8) The Commission should examine and report on the
implementation and impact of this Directive on both the
environment and the internal market. This report should
also cover
the issues of essential requirements, waste
prevention measures, a possible packaging indicator,
responsibility
waste prevention plans,
and heavy metal and should, as appropriate, be accom-
panied by proposals for revision.

reuse, producer

(9) Member

States

should promote

relevant

consumer

information and awareness campaigns.

(10) In addition to the environmental and internal market
objectives of this Directive, recycling may also have the
effect of providing jobs which have declined elsewhere in
society, and may thus help prevent exclusion.

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taking into account

(11) Since the objectives of the proposed action, namely to
harmonise national targets for the recycling of packaging
waste,
individual circumstances of
each Member State, and to provide further clarification
on definitions, cannot be sufficiently achieved by the
Member States and can therefore, by reason of the scale
of the action, be better achieved at Community level, the
Community may adopt measures, in accordance with the
principle of subsidiarity as set out in Article 5 of the
Treaty. In accordance with the principle of proportionality,
this Directive does not go
as set out
beyond what
to achieve those
objectives.

is necessary in order

in that Article,

(12) The measures necessary for the implementation of this
Directive should be adopted in accordance with Council
Decision 1999/468/EC of 28 June 1999 laying down the
procedures
implementing powers
the exercise of
conferred on the Commission (1).

for

(13) Directive

94/62/EC should

therefore

be

amended

accordingly,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Directive 94/62/EC is hereby amended as follows:

2. Article 6 shall be replaced by the following:

‘Article 6

Recovery and recycling

In order

to comply with the objectives of

1.
this
Directive, Member States shall take the necessary measures
to attain the following targets covering the whole of their
territory:

(a) no later

than 30 June 2001 between 50 % as a
minimum and 65 % as a maximum by weight of
packaging waste will be recovered;

(b) no later than 31 December 2008 60 % as a minimum

by weight of packaging waste will be recovered;

(c) no later

than 30 June 2001 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;

(d) no later than 31 December 2008 between 55 % as a
minimum and 80 % as a maximum by weight of
packaging waste will be recycled;

1. the following subparagraph shall be added to point (1) of

Article 3:

(e) no later

following
than 31 December 2008 the
minimum recycling targets for materials contained in
packaging waste will be attained:

‘The definition of “packaging” shall be further based on the
criteria set out below. The items listed in Annex I are illus-
trative examples of the application of these criteria.

(i) Items shall be considered to be packaging if they fulfil
the definition above without prejudice
to other
functions which the packaging might also perform,
unless the item is an integral part of a product and
all elements are intended to be consumed or disposed
of together.

(ii) Items designed and intended to be filled at the point of
sale and “disposable” items sold, filled or designed and
the point of sale shall be
intended to be filled at
considered to be packaging provided they fulfil a
packaging function.

(iii) Packaging components and ancillary elements inte-
grated into packaging shall be considered to be part
of
the packaging into which they are integrated.
Ancillary elements directly hung or attached to a
product and which perform a packaging function
shall be considered to be packaging unless they are
an integral part of this product and all elements are
intended to be consumed or disposed of together.’.

(1) OJ L 184, 17.7.1999, p. 23.

(i) 60 % by weight for glass;

(ii) 60 % by weight for paper and board;

(iii) 50 % by weight for metals;

(iv) 22,5 % by weight for plastics, counting exclusively

material that is recycled back into plastics;

(v) 15 % by weight for wood.

Regulation

Packaging waste exported out of the Community in
2.
accordance with Council Regulation (EEC) No 259/93 (*),
and
Council
1420/1999 (**)
(EC) No
Commission Regulation (EC) No 1547/1999 (***)
shall
only count
the obligations and
targets of paragraph 1 if there is sound evidence that the
recovery and/or
recycling operation took place under
conditions that are broadly equivalent to those prescribed
by the Community legislation on the matter.

for the achievement of

3. Member States shall, where appropriate, encourage
energy recovery, where it is preferable to material-recycling
for environmental and cost-benefit reasons. This could be
done by considering a sufficient margin between national
recycling and recovery targets.

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4. Member States shall, where appropriate, encourage the
use of materials obtained from recycled packaging waste for
the manufacturing of packaging and other products by:

(b) additional prevention measures to reduce the impact of
packaging as far as possible without compromising its
essential functions;

(a)

improving market conditions for such materials;

(c) the possible development of a packaging indicator to
render packaging prevention simpler and more effective;

(b) reviewing existing regulations preventing the use of

those materials.

(d) possible packaging waste prevention plans;

Not

later than 31 December 2007,

5.
the European
Parliament and the Council
shall, acting by qualified
fix
majority and on a proposal
from the Commission,
targets for the third five-year phase 2009 until 2014,
based on the practical experience gained in the Member
States in pursuit of the targets laid down in paragraph 1
and the findings of scientific research and evaluation tech-
niques
life-cycle assessments and cost-benefit
analysis.

such as

This process shall be repeated every five years.

6.
The measures and targets referred to in paragraph 1
shall be published by the Member States and shall be the
subject of an information campaign for the general public
and economic operators.

Greece,

Ireland and Portugal may, because of their
7.
specific situations, namely respectively the large number
of small islands, the presence of rural and mountain areas
and the current low level of packaging consumption, decide
to:

(a) attain, no later than 30 June 2001, lower targets than
those fixed in paragraphs 1(a) and (c), but shall at least
attain 25 % for recovery;

(b) postpone at the same time the attainment of the targets
in paragraphs 1(a) and (c) to a later deadline which,
however, shall not exceed 31 December 2005;

(c) postpone the attainment of the targets referred to in
paragraphs 1(b), (d) and (e) until a date of their own
choice which shall not be later than 31 December 2012.

a

The Commission shall, as soon as possible and no
8.
later
to the
than 30 June 2005, present
European Parliament and the Council on the progress of
the implementation and impact of this Directive on the
environment, as well as on the functioning of the internal
market. The report
individual
circumstances in each Member State. This report shall
cover the following:

take into account

report

shall

(e) encouragement of re-use;

(f) producer responsibility including its financial aspects;

(g) efforts to reduce further and, if appropriate, ultimately

phase out heavy metal in packaging by 2010.

report

shall, as appropriate, be accompanied by
This
proposals for revision of
this
Directive, unless such proposals have, by that time, been
presented.

the related provisions of

9. Member States which have, or will, set programmes
going beyond the maximum targets of paragraph 1 and
which provide to this effect appropriate capacities
for
recycling and recovery shall be permitted to pursue those
targets in the interest of a high level of environmental
protection, on condition that
avoid
the internal market and do not hinder
distortions of
compliance by other Member States with this Directive.
Member States
such
measures. The Commission shall confirm these measures,
in cooperation with the Member
after having verified,
States, that they are consistent with the abovementioned
considerations and do not constitute an arbitrary means
of discrimination or a disguised restriction on trade
between Member States.

inform the Commission of

these measures

shall

___________

(*) OJ L 30, 6.2.1993, p. 1. Regulation as last amended
by Commission Regulation (EC) No 2557/2001 (OJ L
349, 31.12.2001, p. 1).

(**) OJ L 166, 1.7.1999, p. 6. Regulation as last amended
by Commission Regulation (EC) No 2243/2001 (OJ L
303, 20.11.2001, p. 11).

(***) OJ L 185, 17.7.1999, p. 1. Regulation as

last

amended by Regulation (EC) No 2243/2001.’.

3. Article 8(2) shall be replaced by the following:

‘2.
To facilitate collection, reuse and recovery including
recycling, packaging shall indicate for the purposes of its
identification and classification by the industry concerned
the nature of the packaging material(s) used on the basis
of Commission Decision 97/129/EC (*).

(a) an evaluation of the effectiveness of the implementation

of the essential requirements;

___________
(*) OJ L 50, 20.2.1997, p. 28.’.

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4. The following subparagraph shall be added to Article 13:

3.

The Committee shall adopt its rules of procedure.

‘Member States shall also promote consumer information
and awareness campaigns.’.

___________
(*) OJ L 184, 17.7.1999, p. 23.’.

5. Article 19 shall be replaced by the following:

‘Article 19

Adaptation to scientific and technical progress

The amendments necessary for adapting to scientific and
technical progress the identification system (as referred to
in Article 8(2) and Article 10, second subparagraph,
last
indent),
the formats relating to the database system (as
referred to in Article 12(3) and Annex III) as well as the
illustrative examples on the definition of packaging (as
referred to in Annex I) shall be adopted in accordance
with the procedure laid down in Article 21(2).’.

6. Article 21 shall be replaced by the following:

‘Article 21

Committee procedure

7. Annex I shall be replaced by the annex which appears in

the Annex hereto.

Article 2

Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this
Directive by . . . (*). They shall
immediately inform the
Commission thereof.

When Member States adopt those measures, they shall contain
a reference to this Directive or be accompanied by such a
reference on the occasion of
their official publication.
Member States shall determine how such reference is to be
made.

Article 3

This Directive shall enter into force on the day of its publi-
cation in the Official Journal of the European Union.

1.

The Commission shall be assisted by a committee.

Article 4

2. Where reference is made to this paragraph, Articles 5
and 7 of Decision 1999/468/EC (*) shall apply, having
regard to the provisions of Article 8 thereof.

The period laid down in Article 5(6) of Decision
1999/468/EC shall be set at three months.

This Directive is addressed to the Member States.

Done at . . .

For the European Parliament

The President

For the Council

The President

(*) 18 months after the date of entry into force of this Directive.

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ANNEX

‘ANNEX I

Illustrative examples for criterion (i)

Packaging

Sweet boxes

Film overwrap around a CD case

Non-packaging

Flower pots intended to stay with the plant throughout its life

Tool boxes

Tea bags

Wax layers around cheese

Sausage skins

Illustrative examples for criterion (ii)

Packaging, if designed and intended to be filled at the point of sale

Paper or plastic carrier bags

Disposable plates and cups

Cling film

Sandwich bags

Aluminium foil

Non-packaging

Stirrer

Disposable cutlery

Illustrative examples for criterion (iii)

Packaging

Labels hung directly on or attached to a product

Part of packaging

Mascara brush which forms part of the container closure

Sticky labels attached to another packaging item

Staples

Plastic sleeves

Device for measuring dosage which forms part of the container closure for detergents.’

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 10 December 2001, the Commission submitted to the Council its proposal on Directive of the
European Parliament and of the Council amending Directive 94/62 on packaging and packaging
waste.

2. The Economic and Social Committee delivered its Opinion on 29 May 2002.

3. The European Parliament adopted its Opinion at first reading on 3 September 2002.

4. On 7 March 2003, the Council adopted its common position in accordance with Article 251(2) of

the Treaty.

II. OBJECTIVE

Directive 94/62/EC on packaging and packaging waste aims to harmonise national measures
concerning the management of packaging and packaging waste in order to prevent any impact
thereof on the environment of all Member States as well as of third countries or to reduce such
impact, thus providing a high level of environmental protection. Directive 94/62/EC aims to ensure
the functioning of the internal market and to avoid obstacles to trade and distortion and restriction of
competition within the Community.

This proposal, which is based on Article 95(1) of the EC Treaty, concerns amendments to part of
Directive 94/62/EC on packaging and packaging waste. This proposal
is limited and comprises
amendments to the targets for recovery and recycling of waste for a subsequent five-year phase
thereby following up on the current targets for the first five-year phase.

Furthermore, the proposal seeks to introduce material specific targets for recycling of certain package
waste materials. The proposal also suggests to introduce definitions for mechanical, chemical and
feedstock recycling as well as to add a non-binding annex containing interpretation guidelines with
a view to clarifying the definition of ‘packaging’.

This limited proposal does not contain provisions relating to revision of a number of other aspects of
the Directive such as prevention or producer responsibility.

III. ANALYSIS OF THE COMMON POSITION

1. General

On the basis of a cost-benefit analysis the Commission has proposed the limited revision of
Directive 94/62/EC described under point II above, thus not proposing to undertake a broader
revision at this point in time.

in general, accepted this limited approach at this stage while emphasising a
The Council has,
number of elements which should be considered in the coming report on the progress of the
implementation and impact of the Directive on the environment as well as on the functioning of
the internal market. This report should be able to serve as a basis for a broader revision.

Against that background, the main points of the common position, in addition to the requirements
to the abovementioned report and a coming revision, are the following:

The Council finds that the definition of ‘packaging’, which is already established in Directive 94/62/EC
shall be further based on three supplementary criteria, which are accompanied by certain
non-binding illustrative examples set out in an Annex. These supplementary criteria, as well as
the non-binding illustrative examples, should help in the practical work when deciding what
constitutes packaging and what
the illustrative
examples may be needed and can be initiated according to the relevant procedure.

is not packaging. Technical adaptation of

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The new definitions concerning recycling proposed by the Commission, which aim to distinguish
between mechanical, chemical and feedstock recycling, have not been accepted since this is
considered to be premature so long as newer forms of recycling are not yet fully developed.

With regard to the revision of targets, the Council agreed on an increase to 60 % of the minimum
target for recovery of packaging waste, but without a maximum target which is no longer considered
necessary to ensure the functioning of the internal market. Furthermore, the Council has agreed on
an increase to 55 % of the minimum target for recycling of packaging waste with the maximum
target being increased to 80 %. It was also agreed to establish specific minimum recycling targets for
certain materials contained in packaging waste (glass, paper and board, metals, plastics recycled into
plastics and wood). In connection with these increases of the targets it was decided to establish a
somewhat longer timeframe than proposed by the Commission for Member States to reach the
increased targets, namely a general deadline by 31 December 2008 and a special deadline four years
later for the three Member States which were also granted this amount of additional time under
Directive 94/62/EC.

The Council has also agreed upon editorial amendments in Article 1(3), (5) and (7), which update
the formulations of Article 8(2), Article 19 and Article 21 of Directive 94/62/EC without aiming at
changing the substance of those provisions.

The Commission has accepted the common position agreed by the Council.

2. European Parliament Amendments

In its Plenary vote on 3 September 2002, the EP adopted 44 amendments to the proposal.

(a) 16 of these have been incorporated (7 to the Articles, 8 to the recitals and 1 to the illustrative

annex), either verbatim, in part or in spirit, into the Council's common position:

Amendment 2 is reflected in recitals 2, 4 and 9 of the common position as well as the general
aim to further reduce the environmental impact of packaging by increasing certain targets.

Amendments 6, 11, 16 and 32 are reflected in the overall approach underlying the common
position and more specifically in recitals 1, 2, 3 and 9 as well as in Article 1(1) and (2), in
particular the formulations for Article 6(1) and (8). As explained under part 1 above, the Council
agreed to reflect those issues, which should, at least, be covered in the coming broader revision,
in the article setting out
the
implementation and impact of the Directive on the environment as well as on the functioning
of the internal market.

the requirements to the coming report on the progress of

Amendment 9 is reflected in recital 10 of the common position.

Amendment 12, which also covers the substance of amendment 13, is reflected in recital 6 of the
common position.

Amendments 14 and 29 are reflected in recital 7 underlining the importance of a harmonised
reporting technique and clear guidelines for data providers, including waste exported outside of
the Community. Amendment 23 relates to the same substance. The Council considers that this
limited revision is not the right place to decide about possible further measures in this regard, in
view also of the fact that this can be dealt with on the basis of existing rules and the existing
basis for improving such rules, in particular Decision 97/138/EC.

Amendment 21 is reflected in Article 1(2) in its formulation for Article 6(3).

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Amendment 22 covers two parts. The first part is reflected in the common position with the
broader concept of ‘improving market conditions’ without a limitation to the use of ‘economic
instruments’ and with an encouragement to ‘review’ rather than directly ‘eliminate’ existing
regulations of the kind in question (see Article 1(2) in its formulation for Article 6(4)). The
second part, which is connected to amendment 4, is not accepted by the Council as set out
below.

Amendment 30 is reflected in Article 1(4) in its formulation for Article 13.

Amendment 34 is reflected in Annex I as an additional illustrative example for criterion 3.

Amendments 53 and 62 relate to the export of packaging waste and the relationship of such
export with this Directive. The Council has chosen to deal with this issue by requiring that
packaging waste exported outside of the Community shall only count towards the obligations
and targets of this Directive if there is sound evidence that the relevant recovery and/or recycling
operation has taken place under conditions which are broadly equivalent to the conditions
prescribed by Community legislation (see Article 1(2) in its formulation for Article 6(2)).

(b) The 29 amendments, which have not been incorporated, can be grouped as follows:

Amendments 1, 4, 7 and 8 as well as part 2 of amendment 22 are seen as too broad in this context
both in view of the somewhat extensive formulation itself of these amendments and in view of
the limited revision, which the Council agrees to undertake at this stage.

Amendment 3 cannot be accepted since it would delete the material specific recycling targets that
the common position maintains.

Amendment 5 is seen as redundant as it points to an existing general obligation for the
Commission.

Amendments 10 and 44 are considered to be contrary to existing obligations with regard to
recycling in the Directive as they suggest a change to the voluntary formulation ‘Member States
may encourage . . .’.

Amendments 19 and 49 are the only amendments relating to the figures of the various targets
and they relate only to recycling including suppression of maximum recycling target. The
approach suggested in these amendments is not shared by the Council. The Council finds
that the maximum recycling target should be retained (for internal market reasons) together
with a generally achievable increase of
(for environmental
reasons), and also accompanied by a corresponding increase of the minimum recovery target
(for environmental reasons), whereas the maximum target for recovery could be given up (in the
light of experience indicating that it is not required for internal market reasons).

the minimum recycling target

Amendment 20 is considered to be of marginal relevance once material specific targets for most
packaging by weight have been introduced as is the case in the common position (see Article
1(2) in its formulation for Article 6(1)(e)).

Amendments 23 and 54, which have not been accepted, relate to the same substance as
amendments 14 and 29 and the reasoning given there applies.

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Amendment 25 relates to national return, collection and recovery systems, which is not seen as a
relevant issue in the context in view of the limited revision undertaken at this stage.

Amendment 26 is seen as either redundant or as an attempt to emphasise certain existing
obligations for Member States at the cost of other obligations. To the extent that the issue
addressed by this amendment concerns producer responsibility, the reasoning set out in relation
to amendments 6, 11, 16 and 32 applies.

Amendment 31 is seen as not fitting in this context, since the issue of access to information and
documents is a cross-cutting issue dealt with elsewhere.

Amendments 33, 36, 37, 38, 39, 40 and 47 relate to the illustrative examples in the Annex and
are seen as issues which could usefully be dealt with via a technical adaptation of the Directive.

Amendment 35 has not been accepted since the supplementary criteria have been structured
differently in the common position compared to the proposal from the Commission and since
the word ‘inseparable’ is no longer used and therefore needs no explanation.

Amendments 41 and 42/rev are seen as unclear with regard to the underlying intention and the
operationality of the suggested provision, since they seem to exempt some quite specific kinds of
packaging waste from all obligations under the Directive without establishing why. Moreover,
the efforts that would be needed to implement the suggested provision seem out of proportion
to the (unclear) purpose.

Amendment 43 is seen as redundant, since the definitions proposed by the Commission have not
been retained.

Amendment 45 postpones the general deadline for achieving the revised targets by six months
and puts the deadline at the end of a calendar year. The Council agrees with principle of the end
of a calendar year and also considered that a limited postponement was relevant, but the Council
finds that the deadline should be somewhat longer than suggested in this amendment.

IV. CONCLUSION

in first reading to an important extent and wherever possible on the basis of

The Council considers that its common position takes account of the Opinion of the European
Parliament
the
approach of a limited revision, with a feasible increase of certain targets at this stage coupled with
requirements for the coming broader revision. The Council's common position represents a balanced
solution for a focused amendment of the Directive and, within that line of ambition, ensures an
environmental benefit to be derived from the new targets while making requirements on industry
which are practically feasible and while also maintaining the internal market safeguards necessary in
this field.