Amended proposal for a Regulation of the European Parliament and of the Council on Shipments of Waste (presented by the Commission pursuant to Article 250 (2) of the EC Treaty)
Date: 2004-03-08
Institutions: European Commission
Subjects: EU environmental policy, amendment of a law, approximation of laws, export of waste, hazardous waste

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 8.3.2004 
COM(2004) 172 final 

2003/0139 (COD) 

Amended proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on Shipments of Waste 

(presented by the Commission  
pursuant to Article 250 (2) of the EC Treaty) 

EN 

   EN 

 
 
 
  
2003/0139 (COD) 

Amended proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on Shipments of Waste 

1. 

BACKGROUND 

Transmission of the proposal to the Council and to the European Parliament [COM(2003)379 
final – 2003/0139(COD)] in accordance with Article 175(1) of the EC Treaty: 30 June 2003.  

Opinion of the European Economic and Social Committee: Opinion was adopted 28 January 
2004. 

Opinion of the Committee of the Regions: No opinion will be issued.  

On  19  November 2003 the European Parliament voted in First Reading on the amendments 
tabled  on  the  proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  on 
Shipments of Waste [COM(2003) 379 final of 30 June 2003].  

2. 

OBJECTIVE OF THE COMMISSION PROPOSAL 

The proposal has four main objectives: 

•  Implementing  the  OECD  Council  Decision  C(2001)107  of  14  June  2001  in 

Community legislation. 

•  Addressing  the  problems  encountered  in  the  application,  administration  and 

enforcement of the 1993 Regulation and establishing greater legal clarity. 

•  Pursuing global harmonisation in the area of transboundary shipments of waste. 

•  Enhancing the structure of the Articles of the Regulation 

In  order  to  achieve  these  objectives,  the  revision  amends  various  sections  and  aspects  of 
Council Regulation (EEC) No 259/93. These include: 

•  Changes to its structure 

•  Changes  and  clarifications  as  regards  definitions,  and  clarification  of  its  scope 

(Title I) 

•  Changes  and  clarifications  as  regards  the  procedures  applicable  to  shipments  of 

waste (Title II-VI): 

–  between Member States (Title II) 

–  within Member States (Title III) 

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–  for exports out of and imports into the Community (Titles IV, V and VI) 

•  Changes in other provisions of the Regulation (Title VII). 

3. 

COMMISION  OPINION  ON  THE  AMENDMENTS  ADOPTED  BY  THE  EUROPEAN 
PARLIAMENT 

On 19 November 2003 the European Parliament adopted 103 amendments to the proposal.  

The  Commission  rejects  the  majority  of  these  amendments  since  they  pursue  national 
solutions  to  certain  waste  management  problems  in  relation  to  waste  destined  for  recovery. 
This  is  not  coherent  with  the  Commissions  overall  objectives  –  namely  harmonisation  at 
Community level. The Commission’s response to this issue is thus a longer term solution at 
EU level. In addition they would restrict shipments of waste extensively.  

The Commission does not accept the amendments that entail changes to the specific entries of 
the  lists  of  waste  as  annexed  to  the  proposal.  Not  because  the  Commission  disagrees  on 
substance  but  rather  because  it  is  not  the  appropriate  context.  Changes  to  the  lists  of  waste 
should be done in the legislation where they originate from. In addition these changes would 
go against one of the main objectives of the proposal, namely international harmonisation in 
the field of lists of waste.  

However a number of amendments are acceptable to the Commission because they improve 
or clarify the Commission’s proposal.  

The  Commission's  detailed  position  on  the  amendments  of  the  European  Parliament  is  as 
follows: 

3.1. 

Amendments accepted fully by the Commission 

Amendments  2,  3,  107,  108,  110,  109,  6,  7  and  8  regarding  additional  recitals  can  be 
supported  as  they  add  relevant  references  to  resolutions  and  strategies  regarding  waste 
management or add factual information.  

Amendments  10,  12,  15,  22,  24,  29,  30  31,  39,  57,  67,  100  101,  103  and  126  regarding 
technical clarifications can be accepted.  

Amendment  113,  adding  an  explicit  reference  to  “territorial  waters”  to  be  included  in  the 
definition of “country of transit” can be supported as a clarification. 

Amendment  122  allowing  the  competent  authorities  to  derogate  from  the  requirement  of 
establishing a financial guarantee in cases where a shipment is carried out by “a public-law 
entity, a municipal  undertaking, a  company run on its own account by a public-law entity”, 
can  be  supported,  since  the  scope  has  been  narrowed  substantively  and  the  open  ended 
reference to “or any other undertaking” as suggested in amendment 25 has been deleted.  

Amendment  125  regarding  less  strict  procedures  in  relation  to  shipments  of  waste  under 
“regional  municipal  waste  management  cooperation”  can  also  be  accepted  as  the  scope  has 
been clarified substantively compared to amendment 60. 

Amendment  115  allowing  objections  to  shipments  destined  for  disposal  because  a  member 
State “wishes to exercise its right pursuant to Article 4(1) of the Basle Convention to prohibit 
the import of hazardous wastes, or of wastes listed in Annex II of the Basle Convention” can 

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be  supported.  However  Member  states  already  have  extended  power  to  object  to  shipments 
for  disposal  –  the  principles  of  self-sufficiency  and  proximity  applies  –  so  in  reality  the 
amendment does not add to these powers. 

Amendment 81 allowing objections to shipments for recovery of mixed household waste can 
be supported.  

Amendment 53 that delete the entire article regarding pre-consented recovery facilities can be 
accepted.  The  scheme  is  supposed  to  provide  some  bureaucratic  relief  in  relation  to  the 
handling of notifications destined for pre-consented facilities. It can however be argued that 
the  benefits  are  very  limited  since  the  authorities  have  to  assess  other  elements  of  the 
notification  anyway  and  therefore  still  may  object  to  waste  destined  for  a  pre-consented 
facility.  

Amendment 56 that limits the scope of Article 20 – regarding prior information in relation to 
shipments  of  waste  destined  for  laboratory  analysis  as  described  in  Article  3(4)  -  to  only 
hazardous waste, can be accepted as an appropriate limitation of the scope of the article.  

Amendments  75,  76,  77  that  add  certain  internationally  agreed  guidelines  to  Annex  IX  can 
also be accepted. The ILO and IMO guidelines on ship-recycling and the OECD guidelines on 
PC’s are added. The different parts of the Annex should however be re-numbered to contain 
four  parts  with  equal  footing,  namely  four  parts  listing  Basel  Convention  guidelines,  IMO 
guidelines,  OCED  guidelines  and  ILO  guidelines  respectively.  Amendment  74  regarding 
clarification of the scope of the application of the guidelines can also be accepted.  

3.2. 

Amendments accepted in principle by the Commission 

Amendment 93 regarding the addition to the definition of “country of transit” can in principle 
be supported. However it is considered that ports are in any case part of the country of transit 
(as they are not explicitly exempted). 

Amendment  59  establishing  that  the  Commission  could  establish  maximum  levels  for 
administrative costs charged to the notifier can in principle be supported.  

Amendment  61  regarding  assessment  of  environmentally  sound  management  in  relation  to 
exports of waste to outside the Community can in principle be accepted. 

Amendment  69  and  70  regarding  the  ranking  of  the  lists  of  waste  contained  in  Annex  V 
(related to the ban on export of hazardous waste) to the effect that the EU hazardous waste list 
prevails over the Basel non-hazardous waste list (both listed in the Annex) can in principle be 
accepted. 

Amendments 84 and 88 that clarify that ending of a shipment requires that the waste has been 
finally  treated  in  the  country  of  destination  can  be  accepted  in  principle.  However,  it  is 
considered that such a clarification is already provided for in Article (5)6. 

Amendment  92  regarding  clarification  of  the  definition  of  “country  of  dispatch”  can  in 
principle  be  supported  since  it  may  prove  useful  in  relation  to  shipments  on  the  high  seas. 
However,  it  should  be  supplemented  by  a  paragraph  prioritising  the  different  options  for 
which  country  is  to  be  considered  the  dispatch  country  in  the  case  of  conflict.  The 
Commission therefore propose that Article 2, point 15 reads like this:  

“country of dispatch means any country from which a shipment of waste is planned 
to be initiated or is initiated; in the case of waste ships or vessels, country of dispatch 

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may  also  include  port  states,  states  with  jurisdiction  over  the  owner  or  holder  and 
flag states and in that order of priority”. 

Amendment  25  regarding  possible  derogations  from  the  requirement  of  establishing  a 
financial guarantee in relation to certain public entities can be accepted in principle provided 
the scope is narrowed. See above regarding amendment 122.  

Amendment  60  regarding  less  stringent  procedures  in  relation  to  specific  geographical 
circumstances  can  in  principle  be  supported  if  the  scope  is  narrowed  substantively. 
Amendment  125  regarding  the  same  issue  is  re-drafted  to  this  effect  and  can  therefore  be 
supported fully (see above).  

Amendment  66  regarding  public  access  to  notifications  can  in  principle  be  supported.  It  is 
however, considered that the obligations should be established in a separate article and should 
contain a reference to the respect of rules of confidentiality as established in national and/or 
Community legislation. The Commission therefore proposes a new  Article 53 bis that reads 
like this (paragraph 2 added):  

“1. The competent authority of the exporting or importing Member State shall make 
publicly  available  by  appropriate  means,  such  as  the  Internet,  all  notifications  of 
shipments  it  has  consented  to,  and  all  related  documents,  at  the  latest  7  days  after 
consent is given. 

2.  In  carrying  out  it’s  obligations  under  paragraph  1,  Member  States  shall  treat 
information  submitted  in  relation  to  notifications  confidentially  in  accordance  with 
Community and national legislation.”  

3.3. 

Amendments accepted in part by the Commission 

The first part of amendment 58 stressing co-operation and harmonisation between competent 
authorities in the case of electronic data exchange might be a useful addition. However, part 
two  splitting  the  carrying  out  of  the  data  exchange  between  the  competent  authority  of 
dispatch and destination does not appear justified. 

3.4. 

Amendments not accepted by the Commission 

Amendment  1  and  83  that  suggests  changing  of  the  legal  base  from  environment  and  trade 
(175 and 133) to only environment (175) cannot be accepted.  

Amendments 4, 5 and 111 regarding additional recitals cannot be accepted for formal reasons, 
primarily  because  it  violates  the  Commissions  right  of  initiative.  Similarly  as  regards  other 
amendments, namely amendment 112, 20, part two of 114, 28, and 46. 

Amendment  9  regarding  exclusion  of  imports  into  the  Community  of  (military)  waste 
generated during an out-of-area operation by part of the armed forces of a Member State from 
the region concerned to that MS cannot be accepted. It is considered that the concerns behind 
this  amendment  are  taken  care  of  in  Article  2,  point  (11)  (iii)  –  by  allowing  the  competent 
authority  in  cases  where  no  designation  is  made  to  be  also  the  “regulatory  authority  of  the 
country or region as appropriate”. This will allow the military authority to act as competent 
authority. Thus there is no need for exclusion. Similarly amendments 62, 63, 64 and 65 on the 
same issues cannot be accepted.  

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Amendment  11  regarding  deletion  of  Article  1(6)  that  allows  for  a  possible  exclusion  of 
animal  by-products  from  the  scope  of  the  Regulation  cannot  be  accepted.  To  ease  the 
administrative  burden  of  applying  two  procedural  regimes  and  to  the  extent  veterinary 
legislation establish similar or stricter procedural provision for animal by-product waste, such 
waste should be excluded. 

Amendments  13  and  14  that  re-define  “recovery”  and  “disposal”  as  only  covering  final 
operations cannot be accepted. The definition of the Waste Framework Directive 75/442/EEC, 
as  amended,  should  be  adhered  to.  Similarly,  amendment  21  that  bans  shipments  of  waste 
destined  for  interim  operations  and  consequential  changes  in  relation  to  the  contract  in 
amendment  26,  financial  guarantee  in  amendments  27  and  85,  consent  in  part  two  of 
amendment 87, objections in amendments 34 and 41 and special provisions regarding interim 
operations in amendment 91 cannot be accepted.  

Amendments  16  and  79  may  be  based  on  a  misunderstanding  since  municipal/unsorted 
household waste is already subject to the prior written notification and consent procedure.  

Amendment 17 and 18 propose to make non hazardous waste as listed in Annex III subject to 
prior written notification but not consent. Such a requirement is not considered justified and 
will conflict with the OECD Decision and cannot be accepted. Similarly, amendment 55 that 
requires prior information of the competent authorities cannot be accepted. (Attention should 
also be paid to Article 19(5) in this context).  

Amendment 105 deleting the obligation to provide a copy of the contract upon request by the 
competent authorities concerned in relation to shipments of non-hazardous waste for recovery 
(for  the  person  who  arranges  the  shipment)  cannot  be  accepted.  For  control  purposes  it  is 
essential that a contract can be requested. It must be stressed that confidential information in 
the contract is protected, since this may be the real concern behind the amendment.  

Amendment 19 adding shipments destined for “research/experimental purposes” as shipments 
excluded from the notification procedure cannot be accepted. Such shipments pose the same 
risk  as  all  other  waste  shipments  and  should  follow  normal  procedures.  Consequently, 
amendment 94 regarding increases of the amounts of waste that can be shipped for laboratory 
analysis without notification from a maximum of 25 kg to 30 times 25 kg cannot be accepted.  

Part one of amendment 114 that – in addition to waste containing POPs – establishes that also 
shipments of waste consisting of, containing or contaminated with asbestos - are subject to the 
same provisions as shipments of waste destined for disposal. The Article should be limited to 
the substances as agreed under the Stockholm Convention only. 

Amendments  95  and  98  that  suggest  allowing  tacit  consent  from  all  competent  authorities 
(and not just those of transit) in relation to shipments of waste destined for recovery cannot be 
accepted for several reasons; primarily because it conflicts with the Basel Convention. Further 
a precautionary approach in relation to in particular shipments of hazardous waste has to be 
safeguarded.  In  addition,  it  violates  the  objective  of  simplifications  since  it  will  re-establish 
three procedures instead of the proposed two and therefore will mean that different rules for 
intra-OECD and intra-EU shipments will apply. Lastly, written consent provides more clarity 
and easier enforcement.  

Amendment  23  adds  that  the  notification  and  movement  documents  can  be  issued  under 
specific  regulation  introduced  by  Member  States  cannot  be  accepted.  The  issuing  of  the 
notification  and  movement  documents  should  be  with  the  competent  authority  of  dispatch 

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only and harmonisation in this field is needed. The question of production of the forms is a 
different issue which needs no specific regulation.  

Amendments  96  and  97  establish  that  the  financial  guarantee  is  only  required  to  be 
established and legally binding when the shipment starts, instead of at the time of notification 
and cannot be accepted. For enforcement and efficiency purposes, it is important that proof of 
the  legally  binding  character  of  the  guarantee  is  established  already  at  the  time  of  the 
notification. Application, however, is only required at the time of actual shipment.  

Part one of amendments 86 and 87 limits the validity of a written and tacit consent from one 
calendar year to 180 days and cannot be accepted. It conflicts with the OECD Decision and 
will go counter to the objective of simplifying the procedures as it will become necessary to 
apply different time-limits for intra-OECD and intra-EU shipments.  

Part two of amendments 86 and 87 deletes the possibility of having consent expire only after 
two years when an interim facility is involved in the shipment and cannot be accepted. The 
amendments are to be seen in the context of and as a consequence of the amendments banning 
interim  treatment.  The  Commission  cannot  accept  those  amendments  and  consequently  not 
amendments  86  and  87  either.  In  addition  it  conflicts  with  the  OECD  Decision  and  will  go 
counter  to  the  objective  of  simplifying  the  procedures  as  it  will  become  necessary  to  apply 
different time-limits for intra-OECD and intra-EU shipments.  

Amendments 32 and 33 regarding subsequent control and conformity check of the notification 
should be covered by Article 53 on enforcement, and cannot be supported.  

Amendments 35 and 80 regarding further reasons that can justify an objection to a shipment 
of waste destined for disposal cannot be accepted. Amendment 37 that deletes the reference to 
self-sufficiency at Community level and thus only refers to the national level also has to be 
rejected.  Cooperation  between  neighbouring  and/or  small  countries  thus  still  needs  to  be 
encouraged, notably through a reference to self-sufficiency at Community level. Amendment 
38 adds that a shipment can be objected to on the basis of national legislation if no obligations 
in  relation  to  disposal  exists  at  Community  level.  Such  a  provision  might  be  misused  and 
might distort the internal market and has to be rejected. 

Amendments  116  and  117  regarding  further  reasons  that  can  justify  an  objection  to  a 
shipment  of  waste  destined  for  recovery  cannot  be  accepted  as  it  will  violate  the  OECD 
Decision and possibly also the EC Treaty. Amendment 42 cannot be accepted. Amendments 
43 and 44 regarding reference to municipal/unsorted household waste and proximity and self-
sufficiency  cannot  be  accepted.  The  principles  of  self-sufficiency  and  proximity  currently 
apply only to shipments destined for disposal and not to shipments destined for recovery; that 
should  not  be  changed.  (amendment  81,  however,  can  be  accepted  as  it  is  re-drafted,  see 
above).  Amendments  45,  49,  82,  89,  90,  118,  120,  123,  124  and  119  regarding  the 
establishment of certain criteria in relation to recovery cannot be accepted. Such criteria could 
be  one  among  several  deemed  relevant  for  the  distinction  between  recovery  and  disposal  in 
general and in the context of the Waste Framework Directive 75/442/EEC and they should not 
be  established  in  the  context  of  this  Regulation.  Amendments  47  and  48  that  add  that 
shipment can be objected to on the basis of national legislation if no obligations in relation to 
recovery or recycling exists at Community level are also not acceptable. They pursue national 
solutions  to  certain  waste  management  problems  in  relation  to  waste  destined  for  recovery. 
This is not coherent with the Commissions overall objective for waste management policy – 
namely harmonisation at Community level. The Commission’s response to this issue is thus a 
longer  term  solution  at  EU  level,  whose  main  elements  are  firstly,  the  establishment  of 
standards  at  EU  level  through  the  extension  of  the  IPPC-Directive  and  secondly,  the 

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establishment  of  guidelines  regarding  sham  (fake)recovery  and  clearer  distinctions  between 
the different recovery and disposal operations  

Amendment  40  and  50  delete  the  possibility  that  the  competent  authorities  concerned  can 
agree with the notifier not to require a new notification in the case where problems in relation 
to objections have not been solved within a certain time limit. To insist on a notification if all 
parties concerned agree differently does not appear necessary or justified; and the amendment 
cannot be accepted. 

Amendment 51 and 52 cannot be accepted since it is considered a repetition of Article 14(7) 
that establishes that all other provision of the Regulation also apply to general notifications. 

Amendment 99 regarding a simplified procedure in relation to take-back schemes cannot be 
accepted as the scope is to imprecise.  

Amendment 54 that shortens the deadline for issuing certificate of final treatment to 7 and 180 
days  instead  of  30  and  one  calendar  year  (following  completion  and  receipt  of  the  notified 
waste  respectively)  cannot  be  accepted.  It  conflicts  with  the  OECD  Decision  and  will  go 
against  the  objective  of  simplifying  the  procedures  as  different  time-limits  for  intra-OECD 
and intra-EU shipments will have to be applied if the amendment is accepted. 

Amendment  102  that  amends  the  proposal  to  the  effect  that  if  the  competent  authorities  of 
dispatch  and  destination  disagree  on  the  classification  of  the  waste  treatment  operation 
notified  as  being  disposal  or  recovery,  the  opinion  of  the  authorities  of  destination  shall 
prevail,  cannot  be  accepted.  The  Commission  proposal  establishes  that  the  provisions 
regarding  disposal  shall  apply  in  such  cases.  A  precautionary  approach  in  the  choice  of 
procedures in the case of disagreement needs to be safeguarded. Also it should be noted that 
the European Court of Justice has confirmed that both authorities are competent in classifying 
the treatment as recovery or disposal. 

Amendment  121  that  adds  a  further  condition  in  relation  to  imports  into  the  Community  of 
waste for recovery to the effect that in relation to hazardous waste, the competent authority of 
dispatch outside the Community shall present a duly motivated request beforehand stating that 
“they  do  not  have  and  cannot  reasonably  acquire  the  technical  capacity  and  the  necessary 
facilities  in  order  to  treat  of  the  waste  in  an  environmentally  sound  manner”  cannot  be 
accepted. In relation to OECD countries such a provision will violate the OECD Decision. In 
relation  to  non-Basel  Convention  Parties  that  are  not  OECD  countries,  that  requirement 
already applies. In relation to Basel Convention Parties that are not OECD countries it might 
be  considered.  However,  it  can  be  argued  that  the  treatment  in  the  Community  is  in  most 
cases  “superior”  from  an  environmental  perspective.  Further  restrictions  are  therefore  not 
considered justified on environmental grounds.  

Amendments 78, 106, 68, 71, 72 and 73 are all related to changes to the specific entries of the 
lists  of  waste  as  annexed  to  the  proposal  and  cannot  be  accepted.  Not  because  the 
Commission disagrees on substance, but rather because it is not the right context. Changes to 
the  lists  of  waste  should  be  done  in  the  legislation  where  they  originate  from  (The  Basel 
Convention, the OECD Decision and the EU waste list). Further, it will go against one of the 
main  objectives  of  the  proposal,  namely  international  harmonisation  in  the  field  of  lists  of 
waste. 

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3.5. 

Amended proposal 

Having  regard to Article 250(2) of the  EC Treaty,  the  Commission  modifies  its  proposal  as 
indicated above. 

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