Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a Regulation of the European Parliament and of the Council on Shipments of Waste
Date: 2005-07-01
Institutions: European Commission
Subjects: drafting of EU law, export of waste, hazardous waste

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 1.7.2005 
COM(2005) 303 final 

2003/0139 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of a Regulation of the European 
Parliament and of the Council on Shipments of Waste 

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2003/0139 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of a Regulation of the European 
Parliament and of the Council on Shipments of Waste 

1. 

BACKGROUND 

Date of transmission of the proposal to the EP and the Council 
(document COM(2003)379 final – 2003/139(COD)): 

30 June 2003. 

Date of the opinion of the European Parliament, first reading: 

19 November 2003. 

Date of the opinion of the European Economic and Social 
Committee: 

28 January 2004. 

Date of transmission of the amended proposal: 

Date of adoption of the common position: 

9 March 2004. 

24 June 2005. 

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). 

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

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

3. 

COMMENTS ON THE COMMON POSITION 

3.1 

General comments 

In its amended proposal the Commission accepted in full, in part or in principle 43 of 
the  103  amendments  proposed  by  the  European  Parliament  at  its  first  reading.  41 
amendments  have  now  been  incorporated,  either  verbatim  or  in  substance  in  the 
common position. 

The  Commission  cannot  accept  the  common  position  with  regard  to  a  number  of 
issues. The most important of these issues include the following: 

The  Commission  maintains  that  its  proposed  joint  legal  base  for  this  regulation 
(below the “Regulation”), i.e. environment and trade (Articles 175 and 133 of the EC 
Treaty),  is  correct  and  cannot  accept  a  single  legal  base  as  proposed  by  Council 
(Article 175 of the EC Treaty). 

Furthermore, the Commission cannot support the common position with regard to the 
possibility for Member States to object to shipments of waste destined for recovery 
on  the  grounds  of  “lower  treatment  standards”  in  the  country  of  destination.  The 
Commission  considers  that  such  a  provision  would  create  barriers  in  the  European 
waste  recycling  and  recovery  market  while  not  improving  the  environmental 
standards of waste management in the EU. 

The Council has changed Article 1(6) to totally exclude animal by-products from the 
scope  of  the  Regulation  (Article  1(3)(d)).  The  Commission  considers  it  to  be 
preferable to bring forward its review of the relationship between this Regulation and 
regulation  (EC)  No  1774/2002  laying  down  health  rules  concerning  animal  by-
products not intended for human consumption, so that the results of this review are 
made public before the entry into force of the Regulation. This would take care of the 
concerns  expressed  by  some  Member  States  in  terms  of  risks  for  procedural 
duplication and allow the Commission to maintain its proposal. 

3.2 

Detailed comments 

3.2.1 

Parliamentary  amendments  accepted  by  the  Commission  in  full,  in  part  or  in 
principle and incorporated in the common position 

Amendments 8 and 108 regarding the recitals have been incorporated.  

Amendment  9  regarding  the  exclusion  from  the  scope  of  the  Regulation  of  waste 
generated  by  the  armed  forces  of  a  Member  State  in  certain  situations  has  been 
incorporated in part in Article 1(3)(g). 

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Amendment 10 concerning the provisions applicable to Annex III waste intended for 
recovery has been considered. The entire paragraph (Article 1(5)) as proposed by the 
Commission  has  been  deleted  in  order  to  avoid  confusion  by  singling  out  certain 
provisions. Incorporated in principle. 

Amendment  12  refers  to  mixtures  of  waste  for  which  no  single  entry  exists. 
Incorporated in Article 2(3). 

Amendments 13 and 14 concerning certain operations constituting interim recovery 
and interim disposal have been accepted in principle and reflected in Article 2(5) and 
2(7). The definitions in Directive 75/442/EEC on waste have, however, been adhered 
to. 

Amendments 15 and 22 provide a definition of notifier which has been incorporated 
in Article 2(15). 

Amendment 113 concerning the definition of ‘country of transit’ has been accepted 
and reflected in Article 2(24).  

Amendment  79  to  subject  shipments  of  mixed  municipal  waste  (waste  entry 
20 03 01)  collected  from  private  households  to  prior  notification  and  consent  has 
been  incorporated  in  Article  3(5).  Amendment  81  has  been  accepted  in  part  and 
principle and reflected in Article 3(5). 

Amendment 24 to enable all competent authorities to require additional information 
and  documentation  within  a  certain  time-period  has  been  incorporated  in  part  in 
Article 4(3) and Article 8(1). 

Amendments  96  and  97  concerning  at  what  time  the  financial  guarantee  shall  be 
established  and  evidence  or  equivalent  insurance  of  this  shall  be  supplied  has  been 
accepted in part and principle in Article 4(5) and Article 6(2). 

Amendments  29  and  30  regarding  requests  for  information  and  documentation  and 
the  acknowledgment  and  transmission  of  notifications  within  a  certain  time-limit 
have been accepted in part and principle in Article 7(2) and Article 8(1-2).  

Amendment  115  concerning  extended  power  to  Member  States  to  object  to 
shipments of waste for disposal can be supported. Incorporated in Article 11(1)(e). 

Amendment  45  concerning  objections  to  shipments  of  waste  for  recovery  on  the 
basis that the planned shipment is destined for disposal and not for recovery has been 
accepted. Incorporated in Article 12(1)(h). 

Amendment  52  setting  out  the  procedures  that  apply  to  a  general  notification  has 
been accepted in principle and reflected in Article 4. 

Amendment  100  concerning  information  from  the  notifier  to  the  competent 
authorities  and  the  consignee  has  been  accepted.  Incorporated  in  Article  16(b)  and 
Article 17(1). 

Amendment 84rev. concerning completion of recovery or disposal has been accepted 
in principle and reflected in Article 16(e). 

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Amendment 57 emphasising the need for cooperation between authorities in relation 
to all cases of illegal shipment by adding ‘in particular’ in cases where responsibility 
cannot  be  imputed  to  either  the  notifier  or  the  consignee  has  been  accepted. 
Incorporated in Article 23(5). 

Amendment 58 and 101 concerning electronic exchange of data has been accepted. 
Incorporated in Article 25(4) and 58(1)(f). 

Amendment 60 concerning border-area agreements has been accepted. Incorporated 
in Article 29. 

Amendment 61 concerning environmentally sound management has been accepted in 
principle. Incorporated in Article 48(2). 

Amendments  62-65  concerning  situations  of  crisis  or  war  have  been  accepted. 
Incorporated in Article 40(1)(d), 41(2)(b), 42(1)(e) and 43(2)(c). 

Amendment  103  concerning  the  amendment  of  the  annexes  of  the  Regulation  has 
been accepted. Incorporated in Article 57(1). 

Amendment 28 concerning a method for calculating the financial guarantee has been 
accepted in part in the recitals. 

Amendments 82 and 46 concerning guidelines for the application of the provision on 
so-called  ‘sham  recovery’  have  been  accepted  in  part.  Incorporated  in  Article 
58(1)(b). 

Amendment 75, 76 and 77 concerning the annexes have been accepted. Incorporated 
in Annex VIII, parts II-IV. 

3.2.2 

Parliamentary  amendments  rejected  by  the  Commission  and  the  Council  and  not 
incorporated in the common position 

Amendments  2-7,  107,  109  and  110-111  regarding  the  recitals  have  not  been 
considered  relevant  for  the  proposal  and  have  therefore  not  been  accepted.  In 
addition,  amendments  4-5  have  not  been  accepted  since  they  would  violate  the 
Commission’s right of initiative. 

Amendment 11 regarding deletion of Article 1(6) that allows a possible exclusion of 
animal  by-products  from  the  scope  of  the  Regulation  has  been  rejected.  The 
Commission  considers  it  important  to  maintain  this  provision  in  order  to  avoid 
duplication  and  resulting  unnecessary  burden  for  operators  due  to  the  concurrent 
application of this Regulation and regulation (EC) No 1774/2002 laying down health 
rules  concerning  animal  by-products  not  intended  for  human  consumption.  The 
Commission thus prefers to maintain its proposal and bring forward its review of the 
relationship  between  the  two  regulations  so  that  the  results  of  the  review  are  made 
public before the entry into force of the Regulation (cf. 3.2.5 concerning additional 
changes made by the Council to the proposal). 

Amendment 112 concerning an obligation for the Commission to establish guidelines 
cannot be accepted primarily because it violates the Commission’s right of initiative. 

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Amendments 17 and 18 propose to make non-hazardous waste as listed in Annex III 
subject to prior written notification. This cannot be accepted since it would conflict 
with the OECD Decision. 

Amendment 19 adding shipments destined for “research purposes” to the 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.  

Amendment  20  concerning  an  obligation  to  establish  limit  values  within  a  certain 
time-limit cannot be accepted due to the fact that it would violate the Commission’s 
right  of  initiative.  In  addition,  a  specific  provision  regarding  shipments  of  waste 
consisting, containing or contaminated with the chemicals listed in Annex A, B and 
C  of  the  Stockholm  Convention  of  22  May  2001  on  persistent  organic  pollutants 
(POPs)  has  not  been  considered  necessary  to  maintain  in  the  proposal  due  to  the 
adoption of a specific regulation on this subject (Regulation (EC) No 850/2004 of the 
European  Parliament  and  of  the  Council  of  29  April  2004  on  persistent  organic 
pollutants and amending Directive 79/117/EEC, Official Journal L 158 , 30/04/2004, 
p.7-49). 

Amendment 44, concerning objections to shipments of waste for recovery based on 
the  principles  of  self-sufficiency  and  proximity,  would  create  barriers  in  the 
European  waste  recycling  and  recovery  market  while  not 
the 
environmental  standards  of  waste  management  in  the  EU.  It  can  therefore  not  be 
accepted.  

improving 

Amendments 21, 26-27, 34, 41, 85rev. and 91rev. with regard to interim operations 
cannot  be  accepted.  The  Commission  has  not  considered  it  appropriate  to  prohibit 
such operations. Instead they should be regulated so that competent authorities could 
keep  track  of  the  waste  throughout  the  shipment  and  until  completion  of  recovery 
and disposal.  

Amendments  86rev.,  87rev.  and  88rev.  conflicts  with  the  time-limits  under  the 
OECD Decision and can therefore not be accepted. 

Amendments  32  and  33  regarding  subsequent  control  and  conformity  check  of  the 
notification  should  be  covered  by  Article  49  on  enforcement,  and  cannot  be 
supported. 

Amendment 35 adds further grounds of objections to shipments of waste for disposal 
that 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. 
Co-operation  between  neighbouring  and  or/small  countries  still  needs  to  be 
encouraged,  notably  through  a  reference  to  self-sufficiency  at  Community  level. 
Amendment 38 adds that a shipment of waste for disposal can be objected to on the 
basis  of  national  legislation  if  no  obligations  in  relation  to  disposal  exist  at 
Community  level.  Such  a  provision  might  be  misused  and  can  therefore  not  be 
accepted. 

Amendment 80 concerning mixed municipal waste collected from private households 
has not been incorporated, but it should be noted that the Article 3(5) envisages that 
such waste will be treated, in all cases, as if destined for disposal. 

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Amendments 116-117 adds further grounds of objections to shipments of waste for 
disposal which are not compatible with the OECD Decision. In addition, amendment 
116  would  create  a  barrier  to  the  internal  market  in  waste  for  recovery.  It  can 
therefore not be accepted. 

Amendment 49 regarding certain criteria in relation to recovery cannot be accepted. 
However, a provision concerning the adoption of guidelines for the application of the 
provision on so-called ‘sham recovery’ has been incorporated in Article 58(1)(b). 

Amendments  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  is  considered  not  to  be  needed  (cf.  Article  4,  first  sentence  and 
Article 9).. 

Amendment  99  regarding  the  application  of  the  general  notification  procedure  to 
take-back schemes cannot be accepted as the scope is to imprecise. 

Amendment  54  concerning  time-periods  for  certificates  of  recovery  or  disposal 
cannot be accepted as it is not consistent with OECD timeframes. 

Amendment  55  concerning  prior  information  for  green  waste  to  the  competent 
authorities  cannot  be  accepted  since  accompanying  the  shipment  with  the  listed 
information  is  considered  sufficient.  This  corresponds  to  the  situation  under  the 
OECD Decision. 

Amendment 105 deleting the obligation for the person who arranges the shipment to 
provide a copy of the contract upon request by the competent authority concerned in 
relation  to  shipments  of  non-hazardous  waste  for  recovery  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 
concern behind the amendment. 

Amendment  121,  which  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 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 further restrictions 
would  not  be  considered  justified  on  environmental  grounds.  The  amendment  is 
therefore rejected. 

Amendment 67 concerning the Act of Accession has not been incorporated since this 
act is not to be changed via a committee procedure (see new Article 62). 

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Amendments 68, 71-73, 78 and 106 are all related to changes to the specific entries 
of the lists of waste as annexed to the proposal and cannot be accepted. This is not 
because  the  Commission  disagrees  on  substance,  but  rather  because  it  does  not 
consider  this  to  be  the  right  context  for  such  amendments.  Changes  to  the  lists  of 
waste  should  be  made  in  the  legislation  from  which  they  originate  (the  Basel 
Convention, the OECD Decision and the EU waste list). Further, such amendments 
contradict  one  of  the  main  objectives  of  the  proposal,  namely  international 
harmonisation in the field of lists of waste. 

3.2.3 

Parliamentary amendments accepted by the Council but rejected by the Commission  

Amendment 1 and 83rev. proposing a change of the legal base from environment and 
trade  (175  and  133  of  the  EC  Treaty)  to  only  environment  (Article  175  of  the  EC 
Treaty)  were  accepted  by  the  Council  but  are  rejected  by  the  Commission.  The 
primary  objective  of  the  proposed  regulation  is  protection  of  the  environment. 
However, since the provisions of Titles IV, V and VI on exports out of, imports into 
and  transit  through  the  Community  to  and  from  third  countries,  are  also  rules  on 
international trade, the legal basis as regards those specific provisions is Article 133 
of the EC Treaty. Therefore, the Commission maintains that its proposed joint legal 
base for the Regulation, i.e. environment and trade (Articles 175 and 133 of the EC 
Treaty), is correct and cannot accept a single legal base. 

Amendments 42, 47 and 48 concerning objections to shipments of waste for recovery 
based  on  national  standards  or  national  obligations  cannot  be  accepted  by  the 
Commission. The Commission considers that such a provision would create barriers 
in  the  European  waste  recycling  and  recovery  market  while  not  improving  the 
environmental  standards  of  waste  management  in  the  EU.  The  Commission  recalls 
that  it  proposed  solutions  to  the  potential  problem  of  standards  dumping  in  its 
Communication  COM(2003) 301  final  “Towards  a  thematic  strategy  on  the 
prevention and recycling of waste”, focusing on the development of European waste 
management standards. Furthermore, the Commission warns that Article 12(1)(c) is 
both vague and complex, may lead to an increase in illegal shipping of waste and is 
likely to result in a number of court cases.  

3.2.4 

Parliamentary  amendments  accepted  by  the  Commission  but  not  integrated  in  the 
common position  

Amendment 92 regarding clarification of the definition of ‘country of dispatch’, has 
been  supported  in  principle  by  the  Commission  since  this  may  prove  useful  in 
relation to shipments on the high seas. However, the Commission considers that this 
provision  should  be  supplemented  by  a  paragraph  prioritising  the  different  options 
for which country is to be considered the dispatch country in the case of dispute.  

Amendment  126  which  adds  to  the  competent  authority  of  dispatch  “specific 
regulations introduced by and in the Member State of dispatch” was accepted by the 
Commission  in  its  amended  proposal,  however,  has  since  been  considered  to  be 
superfluous and has been rejected on grounds of, inter alia, simplification.  

Amendment  122  concerning  derogations  for  certain  public  undertakings  was 
accepted  by  the  Commission  in  its  amended  proposal,  however,  has  since  been 
considered incompatible with the Basel Convention. It has therefore been rejected. 

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Amendment  31  states  that  the  competent  authorities  of  destination  and  transit  shall 
signify  their  written  consent  by  issuing  a  written  decision  to  the  other  competent 
authorities and to the notifier. This was accepted by the Commission in its amended 
proposal,  however,  has  since  been  considered  unnecessary.  It  has  therefore  been 
rejected on grounds of, inter alia, simplification. 

Amendment  53  which  deletes  the  entire  article  regarding  pre-consented  recovery 
facilities has been supported by the Commission on the basis that the benefits of the 
article  are  limited  since  the  authorities  have  to  assess  other  elements  of  the 
notifications  anyway  and  therefore  still  may  object  to  waste  destined  for  a  pre-
consented facility.  

Amendment  56  limiting  the  scope  of  Article  20  in  the  Commission’s  proposal  has 
not been incorporated.  

Amendment 59 which provides for the Commission to establish maximum levels for 
administrative  costs  charged  to  the  notifier  has  been  supported  in  principle  by  the 
Commission. 

Amendment 74 regarding clarification of the scope of guidelines has been supported 
by the Commission. 

Amendment 39 inserting ‘a specific’ before ‘hazardous waste’ has been supported in 
principle by the Commission. 

Amendment  66  regarding  public  access  to  notifications  has  been  supported  in 
principle  by  the  Commission  provided  the  obligations  are  established  in  a  separate 
article and contain a reference to the respect of rules of confidentiality as established 
in national and/or Community legislation. 

Amendments  69  and  70  regarding  the  ranking  of  the  lists  of  waste  contained  in 
Annex V (related to the ban on the 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) has been supported in principle by the Commission. 

3.2.5 

Additional changes made by the Council to the Proposal 

The  Council  has  made  a  number  of  additional  changes  to  the  proposal.  The  most 
important of these changes is that Article 1(3)(d) totally excludes animal by-products 
from  the  scope  of  the  Regulation.  The  Commission  cannot  support  the  common 
position in this regard and considers it preferable to bring forward its review of the 
relationship  between  this  Regulation  and  Regulation  (EC)  No  1774/2002  laying 
down  health  rules  concerning  animal  by-products  not  intended  for  human 
consumption, so that the results of this review are made public before the entry into 
force  of  the  Regulation.  Therefore  the  Commission  considers  that  its  proposed 
version of Article 1(6) should remain unchanged. 

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4. 

CONCLUSION 

The  common  position  represents  to  a  large  extent  a  significant  step  forward  in 
improving the clarity of the Regulation and enhancing its provisions in line with the 
objectives  to  be  achieved  as  set  out  by  the  Commission’s  proposal.  However,  the 
Commission cannot accept the common position with regard to a number of issues of 
which  the  most  important  are  set  out  in  the  statement  annexed  herewith.  They 
include the legal base for the Regulation, the possibility for Member States to object 
to  shipments  of  waste  destined  for  recovery  and  the  total  exclusion  of  animal  by-
products from the scope of the Regulation.  

5. 

STATEMENT BY THE COMMISSION 

The  Commission  notes  that  there  is  unanimity  in  the  Council  to  replace  the  joint 
legal  base  proposed  by  the  Commission,  namely  Articles  133  and  175(1)  of  the 
Treaty,  by  a  single  legal  basis  including  only  Article  175(1)  of  the  Treaty.  The 
Commission considers that its Proposal included the correct legal basis and reserves 
its right to make use of the legal means at its disposal. 

The  Commission  also  notes  that  in  Article  12(1)(c)  the  Council  allows  Member 
States to raise objections and block shipments of waste destined for recovery on the 
grounds  of  “lower  treatment  standards”  in  the  country  of  destination.  The 
Commission considers that this provision will create barriers in the European waste 
recycling  and  recovery  market  while  not improving  the  environmental  standards  of 
waste management in the EU. The Commission recalls that it proposed solutions to 
the  potential  problem  of  standards  dumping  in  its  Communication  COM(2003) 301 
final  “Towards  a  thematic  strategy  on  the  prevention  and  recycling  of  waste”, 
focusing  on 
the  development  of  European  waste  management  standards. 
Furthermore, the Commission warns that Article 12(1)(c) is both vague and complex, 
may lead to an increase in illegal shipping of waste and is likely to result in a number 
of court cases.  

Finally,  the  Commission  notes  that  the  Council  excludes  from  the  scope  of  the 
Regulation “shipments which are subject to the approval requirements of Regulation 
(EC)  No  1774/2002  laying  down  health  rules  concerning  animal  by-products  not 
intended  for  human  consumption”.  In  light  of  the  differences  between  these  two 
Regulations with regard to procedural provisions the Commission considers it to be 
preferable to bring forward its review of the relationship between the Regulations so 
that the results of this review are made public before the entry into force of the Waste 
Shipment  Regulation.  This  would  take  care  of  the  concerns  expressed  by  some 
Member  States  in  terms  of  risks  for  procedural  duplication  and  allow  the 
Commission to maintain its proposal. 

EN 

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