Opinion of the Commission pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the proposal for a Directive of the European Parliament and of the Council on the management of waste from the extractive industries and amending Directive 2004/35/EC amending the proposal of the Commission pursuant to Article 250 (2) of the EC Treaty
Date: 2005-09-28
Institutions: European Commission
Subjects: accident prevention, environmental protection, metallic ore, mining extraction, non-ferrous ore, prevention of pollution, waste management

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 28.9.2005 
COM(2005) 477 final 

2003/0107 (COD) 

OPINION OF THE COMMISSION 

pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty, 
on the European Parliament's amendments 
to the Council's common position regarding the  
proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT  
AND OF THE COUNCIL 

on the management of waste from the extractive industries and amending Directive 
2004/35/EC 

AMENDING THE PROPOSAL OF THE COMMISSION 
pursuant to Article 250 (2) of the EC Treaty 

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OPINION OF THE COMMISSION 

pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty, 
on the European Parliament's amendments 
to the Council's common position regarding the  
proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT  
AND OF THE COUNCIL 

on the management of waste from the extractive industries and amending Directive 
2004/35/EC 

1. 

INTRODUCTION 

Article 251(2), third subparagraph, point (c) of the EC Treaty provides that the Commission is 
to  deliver  an  opinion  on  the  amendments  proposed  by  the  European  Parliament  at  second 
reading.  The  Commission  sets  out  its  opinion  below  on  the  36  amendment  proposed  by 
Parliament.  

2. 

BACKGROUND 

The  proposal  COM(2003)  319  final  was  transmitted  to  the  European  Parliament  and  the 
Council in accordance with the co-decision procedure provided for in Article 175 (1) of the 
EC Treaty on 2 June 2003. 

The European Economic and Social Committee gave its opinion on 11 December 2003. 

The Committee of the Regions gave its opinion on 12 February 2004. 

The European Parliament gave its opinion at first reading on 31 March 2004. 

Following the opinion of the European Parliament and pursuant to Article 251(2) of the EC 
Treaty,  the  Council  adopted  the  Common  Position  formally  on  12  April  2005.  The 
Commission’s Communication on the Common Position was adopted on 27 April 2005 and 
the European Parliament adopted its position at second reading on 6 September 2005.  

3. 

PURPOSE OF THE PROPOSAL 

The  proposed  Directive  seeks  to  minimise  the  environmental  and  human  health  effects  of 
polluted  drainage  from  extractive  waste  disposal  facilities  and  to  prevent,  or  minimise  the 
impact of accidents, in particular by ensuring long-term stability of tailings dams and waste 
heaps. This is both as a response to major mining waste accidents which occurred in Europe 
in  1998  and  2000  and  with  a  view  to  laying  down  an  appropriate  legal  framework  for  the 
sound management of such waste.  

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4. 

OPINION  OF  THE  COMMISSION  ON  THE  AMENDMENTS  BY  THE  EUROPEAN 
PARLIAMENT 

On 6 September 2005, the European Parliament adopted 36 of the 48 amendments that were 
tabled. Out of the 36 amendments adopted, the Commission can accept 8 amendments in full, 
1 amendment in part and a further 4 amendments in principle. 23 of the adopted amendments 
are not acceptable to the Commission. 

4.1. 

Amendments accepted by the Commission 

4.1.1.  Amendments Accepted in Full  

Amendment 14 adds clarity to the definition of ‘dam’ in Article 3(11), while Amendments 17, 
18  and  21  clarify  the  content  of  waste  management  plans.  Amendments  29,  30,  32  and  33 
clarify applicable obligations relating to water protection and establish direct references to the 
EU water legislation. The Commission considers that these amendments are in line with and 
improve  the  current  text  and  will  facilitate  the  implementation  of  the  Directive.  The 
Commission can thus accept them.  

4.1.2.  Amendments Accepted in Part  

Amendment  39  suggests  the  periodical  adjustment  of  the  financial  guarantee  in  accordance 
with rehabilitation work to be carried out, which is in line with the spirit of this provision and 
can be accepted. However the second part of this amendment, specifying that such adjustment 
refers  to  rehabilitation  work  on  land  within  the  site  as  well  as  land  directly  affected  by  the 
waste facility, is not considered to be practicable. The amended Article 14(3) would therefore 
read as follows: 

“3.  The  size  of  the  guarantee  shall  be  periodically  adjusted  in  accordance  with  any 
rehabilitation work needed to be carried out on the waste facility.” 

4.1.3.  Amendments Accepted in Principle 

Amendment 4 clarifies in Recital 14 that waste prevention is included among the objectives of 
waste  management  plans.  This  is  in  line  with  Article  5(1)  but  for  consistency  the  word 
‘minimisation’ should be used instead. 

Amendment 10 promotes the integration of environmental considerations into other policies 
and  can  be  supported  but  the  proposed  text  would  be  more  suitable  in  a  recital  than  in  an 
article. 

According to Amendment 23 an application for a permit shall also include information on the 
minerals extracted and waste rock removed; these elements improve the specification of the 
waste characterisation required for the permit as part of the waste management plan and are 
acceptable but they would be better placed in Annex II. 

Protected areas are an important factor to be taken into account in relation to the location of a 
waste facility and Amendment 27 can therefore be supported but, for clarity, the Commission 
proposes the following text for Article 11(2)(a): 

“(aa) the location of the waste facility takes into account Community or national obligations 
relating to protected areas; 

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(ab)  the  waste  facility  is  suitably  located,  taking  into  account  in  particular  geological, 
hydrogeological and geotechnical factors, and…”  

4.2. 

Amendments rejected by the Commission 

Amendment 3 deletes the recital that refers to radioactive extractive waste. The Commission 
considers  this  recital  useful  as  it  clarifies  the  link  to  potential  relevant  legislation  under  the 
Euratom treaty. 

Amendment 8 modifies  Recital  31 by highlighting  the responsibility of the Community and 
Member States to rehabilitate seriously polluting abandoned waste sites and by encouraging 
the  use  of  Community  funds  for  such  purposes.  The  Commission  considers  that  the  current 
text  more  accurately  motivates  the  relevant  article  (Article  20),  while  the  reference  to  EU 
funds is redundant. 

Amendment 48/49/50 modifies the definition of ‘treatment of mineral resources’ to also cover 
the  burning  of  limestone.  The  Commission  cannot  accept  these  as  this  is  not  a  mineral 
treatment operation but an industrial manufacturing operation falling outside the scope of this 
Directive.  

As  regards  waste  management  plans,  Amendments  16  and 19  introduce  elements  which  are 
already  reflected  in  the  Directive,  while  Amendment  20  introduces  prescriptive  elements 
implicitly  covered  by  Article  5(3)f.  The  Commission  considers  thus  that  these  amendments 
are not necessary. 

Amendment  22  modifies  the  objectives  of  emergency  plans,  which  is  not  acceptable  as  the 
current text is sufficiently clear and consistent. 

According  to  Amendment  24  the  waste  management  plan  included  in  an  application  for  a 
permit will have to be approved in advance; however, this is not needed since such approval 
can  also  be  done  in  the  context  of  the  permitting  process.  Amendment  25  specifies  that 
information contained in a permit will be used for drawing up inventories of waste facilities; 
this  is  not  deemed  necessary  since  the  current  wording  of  Art.  7(5)  referring  to  statistical 
purposes also serve the objective sought by this amendment. 

According to Amendment 26 measures under Article 10 applying to waste placed back into 
excavation  voids  are  extended  to  ‘other  extracted  material’  placed  there,  as  well  as  to  the 
excavation void per se. This is not acceptable as falling outside the spirit and subject area of 
the Directive. 

Amendment 31 prescribes the monitoring frequency during the after-care phase of a facility. 
However, this can be most effectively determined by the competent authorities on a case-by-
case basis and the amendment cannot be supported. 

Regarding  water  protection,  Amendment  34  requires  compliance  of  treated  contaminated 
water  and  leachate  with  the  EU  Water  Directives.  However  this  reference  is  not  deemed 
necessary since Community obligations apply anyhow. Nor is it necessary to require treating 
‘any  other  effluent’,  as  also  suggested  by  the  same  amendment,  since  the  term  ‘leachate’  is 
defined sufficiently broadly. Amendments 6 and 35 modify the text of Recital 25 and Article 
13(4) respectively to prohibit the discharge of waste into receiving waters unless compliance 
with the Water Framework Directive 2000/60/EC is demonstrated; however this change is not 

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needed as the current text has the same effect. Amendment 36 introduces measures for mined 
out voids that are left to flood. It cannot be supported because this environmentally important 
issue  falls  outside  the  scope  of  this  Directive  and  is  adequately  addressed  by  the  Water 
Framework Directive 2000/60/EC. 

Regarding  financial  guarantees,  Amendment  37  requires  the  relevant  national  procedures  to 
be  approved  by  the  Commission,  which  is  not  acceptable  as  the  adequacy  of  such  schemes 
can better be assessed by the Member State competent authorities. Amendments 7 and 38 to 
Recital 7 and Article 14(1)b respectively, are not acceptable either since the current text offers 
a practicable way to calculate the amount of funds needed. 

Amendment  42  introduces  requirements  to  apply  during  the  transitional  period  granted  to 
existing  waste  facilities,  in  particular  the  need  to  comply  with  the  Water  Framework 
Directive. Such obligations would be too prescriptive and cannot be accepted, bearing also in 
mind  that  during  the  transitional  period  existing  facilities  will  anyhow  have  to  meet  the 
standards of the Waste Framework Directive 75/442/EEC as well as the requirements of Dir. 
2000/60/EC and those of directives 76/464/EEC on dangerous substances and 80/68/EEC on 
groundwater protection as appropriate. 

Amendment 43 deletes the text referring to transitional provisions afforded to inactive but not 
yet closed facilities. The current text offers a practicable way to deal with a specific situation 
and also includes the necessary stringent environmental safeguards. Hence this amendment is 
not acceptable. 

As regards newly acceding Member States, Amendment 9 introduces a recital highlighting the 
importance  of  the  Directive.  The  Commission  considers  this  is  not  needed  as  acceding 
countries  will  have  to  transpose  and  implement  the  Directive  as  from  the  date  of  accession 
and  in  the  meanwhile  relevant  progress  is  monitored  by  the  Commission.  Furthermore, 
Amendment 44 stipulates that any potential derogations to be granted to those countries shall 
not  undermine  the  objectives  of  the  Directive.  This  provision  would  however  restrict  the 
Council’s right, enshrined in the accession treaty, to grant temporary derogations, and is not 
therefore acceptable.  

Amendment 45 shortens the transposition period from 24 to 18 months. This is not acceptable 
since 24 months are necessary to ensure adequate transposition of the Directive. 

5. 

CONCLUSION 

Pursuant to Article 250(2) of the EC Treaty, the Commission amends its proposal as set out 
above. 

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