Opinion of the European Economic and Social Committee on the Proposal for a Directive of the European Parliament and of the Council on waste COM(2005) 667 final — 2005/0281 (COD)
Date: 2006-07-05
Institutions: European Economic and Social Committee
Subjects: EU environmental policy, environmental protection, prevention of pollution, waste management, waste recycling

16.12.2006

EN

Official Journal of the European Union

C 309/55

Opinion of the European Economic and Social Committee on the Proposal for a Directive of the
European Parliament and of the Council on waste

COM(2005) 667 final — 2005/0281 (COD)

(2006/C 309/12)

On 24 February 2006, the Council decided to consult the European Economic and Social Committee,
under Article 175 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for Agriculture, Rural Development and the Environment, which was responsible for preparing
the Committee's work on the subject, adopted its opinion on 24 May 2006. The rapporteur was
Mr Buffetaut.

At its 428th plenary session, held on 5 and 6 July 2006 (meeting of 5 July), the European Economic and
Social Committee adopted the following opinion by 114 votes with four abstentions.

1. Conclusions

1.1
The EESC endorses the Commission's desire to moder-
nise, simplify and adapt the laws governing waste. It approves,
in particular, the initiative in presenting the thematic strategy
on the prevention and recycling of waste and the spirit of the
strategy. It is essential to support the desire to ensure that the
legislation in question is applied equally and on a general basis,
in order to prevent distortions as regards the environment,
public health and competition in the market
for waste
products. With a view to avoiding the lodging of appeals and
the initiation of legal proceedings, the EESC stresses the impor-
tance of setting out clear and precise definitions and annexes to
the proposal for a Directive. It does, however, regret that the
provisions in respect of the prevention of waste lack ambition.
The EESC draws attention to the fact that a prerequisite for any
desire to achieve real sustainable development is the existence
of an effective policy of preventing and reclaiming waste,
bearing in mind the growing scarcity and increasing cost of
raw materials; the EESC does, however, urge that instruments
be developed at EU level
in order to ensure that the goals
which have been set can be achieved in both qualitative and
quantitative terms. In this regard the proposal for a Directive
displays real weakness. Furthermore, the Commission appears
to believe that relaxing the procedures for obtaining permits to
run processing installations will encourage recycling. This
approach is misguided and will result in negative environ-
mental consequences and health risks. Furthermore, it does not
comply with the principles of the Aarhus Convention regarding
public access to information on waste.
the permit
comprises technical elements linked to environmental protec-
tion; it is a public document and is accompanied by require-
ments as to information and monitoring. It is in no way an
obstacle to the development of processing or recycling but on
the contrary provides the necessary guarantees, with the admin-
istrative bodies monitoring due respect for standards and the
implementation of the best available techniques.

Indeed,

1.2
The introduction of the life-cycle concept into waste
policy is also, in the EESC's view, a wholly appropriate course
of action, as is the approach aimed at bringing about a reduc-
tion in the volume of waste sent
for landfill, reclaiming
compost and energy, promoting clean recycling and preventing
waste.

As regards the proposal

1.3
the EESC
considers that too absolute an affirmation of the desire to
respect the principle of subsidiarity runs the risk of being in

for a Directive,

contradiction with the desire to have legislation which is
applied on a general and harmonised basis throughout the EU.

The EESC urges that the integration/repeal of the Direc-
1.4
tive on hazardous waste does not result in inferior regulation
and inferior public health protection. The EESC considers that,
as drafted at present, the text fails to provide adequate guaran-
tees. At the very least, it should be specified that hazardous
waste mixtures and permit exemptions are not authorised for
this type of waste. It is the classification as ‘hazardous’ or ‘non-
hazardous’ that governs the particular precautions and obliga-
tions for the transportation and treatment of waste. Any over-
simplification in this field cannot be seen as a step forward for
environmental protection.

The EESC stresses that

1.5
the type of recycling which
should be encouraged is that which does not have a damaging
impact on the environment and which really does make it
possible to reclaim materials.

1.6
The EESC really doubts whether the comitology process
is an apposite means of defining a number of specific criteria
for clarifying when certain waste ceases to be waste.

1.7
In the EESC's view, a number of definitions continue to
give rise to uncertainty (such as the definitions of ‘producer’
and ‘recovery’). Definitions should be provided in the case of
‘reclamation of materials’ leading to the
the following terms:
‘recycling of materials’, on the one hand, (with the possibility
for certain flows to be no longer classified as waste), and
‘energy recovery’, on the other hand (without the possibility of
no longer being classified as waste). This would ensure that the
incineration directive is uniformly applied to all waste heat
recovered by incineration or co-incineration. With regard to
waste incineration, high energy recovery yields should be
encouraged in order for operations to qualify as ‘recovery’;
however, it is surprising that such a provision is applied only
to incineration and not to other means of energy recovery. In
this case, the incineration of waste should be regarded as a
recovery operation only if it achieves a high level of energy effi-
ciency.

1.8
The EESC strongly regrets that no proposals are made
with regard to the introduction of standardised financial instru-
ments throughout the EU.

The EESC deplores the fact that the proposal for a Direc-
1.9
tive fails to set out any obligations in respect of working condi-
tions and health protection measures for employees in this
sector.

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2. Introduction

2.1
The policy on waste is one of the EU's oldest environ-
framework directive dates
mental policies since the current
from 1975. Over a period of thirty years, however, the general
economic and social context, practices, technologies, national
and local policies and public awareness of the problem of
waste have all changed considerably. EU legislation on waste,
which had changed little in the period since 1975, started to
develop at an accelerated pace in the 1990's, which witnessed
the modification of the framework Directive in 1991, followed
by the adoption of a series of Directives on processing proce-
dures and the management of certain waste flows.

2.2
The current legislation has been subjected to the test of
time; gaps and cases of a lack of precision have emerged, court
proceedings and rulings have highlighted difficulties of inter-
pretation and legislative complexity, brought about, in part, by
the fragmentation of legislation in different texts which refer to
each other.

At the same time, a real ‘waste business’ has come into
2.3
being. The management and recycling of waste have become
fully fledged economic sectors enjoying a high level of growth
and having a turnover estimated at over EUR 100 billion for
EU-25.

2.4
The EU has also been enlarged and will be further
enlarged. The situation facing the new EU Member States with
regard to waste is rather difficult because,
inter alia, of the
importance of landfills. The European Commission therefore,
naturally enough, wishes to make a fresh appraisal of the ques-
tion of waste whilst, however, not rejecting the spirit of the
current legislation by subjecting it to a root and branch over-
haul.

therefore

The European Commission has

2.5
recently
published a Communication on a thematic strategy on the
prevention and recycling of waste (1) and presented a new
proposal for a Directive on waste (2); the former document sets
out the Commission's political guidelines and general philo-
sophy, whilst the latter translates these measures into concrete
legislation.

3. A new policy

The Commission's

appraisal which underlies

3.1
the
thematic strategy is based on the observation that, whilst
considerable progress has been made in the last thirty years in
tackling the problem of waste, the volume of waste continues
to increase, the level of recycling and recovery is inadequate
and the corresponding markets are finding it hard to develop.
It should also be pointed out in this context that, in addition to
the specific texts relating to waste, the IPPC Directives have
clearly played a positive role.

3.2
Furthermore, the treatment of waste does, to a certain
extent, contribute to environmental problems and give rise to
economic costs.

3.3
EU legislation lacks precision in a number of points and
this gives rise to disputes and divergences in application of the
law from one country to another.

3.4
How is municipal waste disposed of at the present time?
The best statistics which are available concern municipal waste,
which accounts for some 14 % of the total volume of waste
produced. The statistics in respect of municipal waste are as
follows: 49 % is sent to landfill, 18 % is incinerated and 33 % is
recycled and composted. The situation differs enormously
between those Member States in which 90 % of waste is sent to
landfill and those in which this method of disposal is used for
only 10 % of waste. Similar differences are, incidentally, noted
in the case of other categories of waste.

From an overall perspective, the EU is therefore facing a
3.5
situation in which, despite clear progress, the overall volumes
of waste are increasing and the total amount sent to landfill is
not being reduced, or barely being reduced, despite the
increased use of recycling and incineration. As regards the
it may be said that the policies which
prevention of waste,
have been pursued have not brought tangible results.

3.6
It is therefore clear that the goals of the policy currently
being pursued in the EU — namely to limit waste and to
promote the reutilisation, recycling and recovery of waste in
order to reduce its negative impact on the environment and to
help bring about more productive use of resources — have lost
none of their validity but what is needed is to make the means
of achieving these goals more effective.

3.7 With a view to achieving this aim, the Commission
proposes a number of courses of action ranging from legisla-
tion, to reflection on the form which waste policy should take
and the very concept of this policy, the improvement of infor-
mation and the definition of common standards. The Commis-
sion therefore proposes, as part of its strategy for preventing
and recycling waste:

— evolving towards a recycling society which avoids the
production of waste, wherever possible, and which fully
exploits the material and energy resources contained in
waste;

— stressing the need for the legislation to be implemented on
a general basis in order to prevent differences in the inter-
pretation and the enforcement of laws and to ensure that
the goals defined in the existing legislation are achieved in
good time by the Member States;

— simplifying and modernising the current legislation;

— introducing the concept of life cycles into waste policy in
such a way as to ensure that its potential contribution to
reducing the environmental
impact of the utilisation of
resources is taken into account;

— implementing a more ambitious and more effective waste-

prevention policy;

— improving the provision of information and the dissemina-

tion of knowledge in the field of waste prevention;

— developing common reference standards in order to regu-

late the European recycling market;

(1) COM(2005) 666 final.
(2) COM(2005) 667 final.

— fleshing out the recycling policy.

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3.8
The Commission expects that the proposed changes in
the legislation and the concept of waste policy will bring about
a drop in the volume of waste sent for landfill, improved recla-
mation of compost and energy derived from waste and qualita-
tive and quantitative improvements in recycling. It is therefore
hoped that a greater volume of waste will be recovered, that
the ‘waste hierarchy’ will thus be stepped up and that waste
policy will consequently help to bring about a more effective
utilisation of resources.

How have the goals set out in the thematic strategy been initi-
ally translated into legislation?

4. The proposal for a Directive on waste: a change rather

than a root and branch overhaul

4.1
Article 1 of the proposal sets out the objectives pursued
by the Commission. These objectives are twofold and interde-
pendent:

— to lay down ‘measures with a view to reducing the overall
environmental impacts, related to the use of resources, of
the generation and management of waste’;

— set out, for the same reasons and for each Member State,
the priority objective of taking measures for the prevention
or reduction of waste production and its harmfulness, and
secondly,
‘for the recovery of waste by means of re-use,
recycling and other recovery operations’.

4.2 With a view to achieving this goal, the Commission
takes the view that there is no need for a root and branch over-
haul of the existing legislative framework; modifications should
rather be made in order to improve the current legal frame-
work and to close the existing gaps. The proposal for a Direc-
tive represents only one aspect of the implementation of the
strategy; other proposals, deriving from this one, will be issued
at a later stage. European policy on waste is, at all events, of
necessity based on the principle of subsidiarity. In order to
ensure that measures are effective, there is a need for a series of
actions to be taken, from EU level to municipal level, the level
at which, in practice, much work is carried out. The Commis-
sion takes the view that respect for the principle of subsidiarity
in no way implies having a lower level of ambition in the
environmental field.

4.3
The proposal for a Directive therefore takes the form of
a revision of Directive 75/442/EEC. Under the proposal, the
Directive on hazardous waste (91/689/EEC) is integrated into
the framework Directive and therefore, at
the same time,
repealed. The Directive on waste oils (75/439/EEC) is likewise
repealed, whilst integrating the specific collection obligation
into the Waste Framework Directive.

The main amendments to the Waste Framework Direc-

4.4
tive are as follows:

— the introduction of an environmental objective;

— the clarification of the notions of recovery and disposal;

— the clarification of the conditions for the mixing of hazar-

dous waste;

— the introduction of minimum standards or a procedure to
for a number of waste

establish minimum standards
management operations;

— the introduction of a requirement to develop national waste

prevention programmes.

The question which arises,

4.5
is whether the
proposed legislative modifications would make it possible to
achieve the overall objectives set out in the strategy and to
make good the current inadequacies and lack of precision.

therefore,

5. General comments on the proposal for a Directive on

waste

This new proposal

for a Directive has

5.1
long been
expected. For all the parties concerned — the EU Member
States, NGOs,
the general public and professionals — this
proposal should form the basis of EU environmental policy on
waste management. It is with this aim in view that the ESC has
been asked to give its views on the proposal. It was expected
that the new text would bring improvements to the current
situation, taking account of experience gained since 1991, the
weaknesses in the previous provisions and the strategy to be
adopted in the EU with regard to sustainable development. This
strategy presupposes the introduction of a policy in respect of
the management, reclamation, recycling and recovery of waste
products, in view of the growing scarcity of raw materials and
energy resources.

The current

5.2
legislation has often been criticised for
lacking in precision and clarity (especially with regard to the
the failure to
annexes and the definitions). Furthermore,
achieve uniform implementation of the Directives and Regula-
tions in the various EU Member States and the differing
approaches adopted by the individual Member States have also
frequently been deplored. The revision of the Regulation on the
cross-border shipment of waste has recently highlighted the
problems arising as a result of this situation.

5.3 What interpretation and analysis can the EESC make of
the proposed changes to the framework Directive? There are
grounds for wondering whether the level of ambition displayed
by the Commission has not slipped somewhat since the publi-
cation in 2003 of
its communication entitled ‘Towards a
thematic strategy on the prevention and recycling of waste’ (3).
The approach adopted in respect of the subsidiarity principle
appears to be rather minimalist and may result in divergences
in respect of the implementation of the legislation. Further-
more, the proposal for a Directive under review fails to address
the action which the economic and social stakeholders may
take in this context.

5.4 Simplification of legislation:

5.4.1
It is proposed that the Directive on hazardous waste
be integrated into the framework Directive. In this context it is
essential to ensure that hazardous waste will be subject to
much stricter measures than those applicable to other waste
materials, particularly since the Regulation on the Registration,
Evaluation, Authorisation and Restriction of Chemicals
(REACH) will, at the same time, have to be applied to all
substances which are placed on the market. The Directive on
waste oils, for its part, will be quite simply repealed since, in
practice, the environmental benefit of these provisions had not
been demonstrated, as regards the processing of these oils. The
provisions covering their collection will, however, remain in
place.

— the introduction of a procedure to clarify when a waste

ceases to be a waste for selected waste streams;

(3) COM(2003) 301 final.

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Attention may also be drawn to the fact that, since the
5.4.2
setting out of criteria defining the degree of danger,
the
Commission has still not yet come up with the requisite back-
up documents: standardised tests and concentration thresholds
for ensuring that the waste material listed is properly exploited.

5.4.3
The proposed exemptions in respect of waste recovery
appear to be risky and they should be questioned in a number
of sectors. We all remember the incidents involving contamina-
tion by hazardous waste of natural substances used in the
preparation of animal feed. Such incidents could become wide-
spread if traceability and the requisite measures for monitoring
the proper management of waste were to be abandoned. The
Commission should consider whether the proposed exemptions
(see Chapter V, Subsection 2 — Exemptions) do not run
counter to the provisions of the Aarhus Convention on public
access to information and participation in decision-making on
the processing of waste.

6. Specific comments

6.1 Improved definitions

6.1.1
The Directive currently in force failed to provide good
definitions of a number of points. The number of cases
brought before the European Court of Justice provides convin-
cing evidence of this fact. Does the new text bring improve-
ments in this regard? There are grounds for doubt in some
respects.

The definition of ‘producer’, which has been taken
6.1.2
over from the previous text (4), should be amended. How can it
be accepted that persons whose activities result in a change in
the nature of waste become the new ‘producer’ of such waste?
Such a person is simply a ‘handler of waste’ and must, in this
capacity, form part of the traceability chain. Otherwise, this
leaves the way open to the ‘downgrading’ of waste and dilution
of the responsibility of the real producer of the waste. Further-
more, as a minimum requirement, reference should be made to
the concept of the ‘extended producer responsibility’ (EPR) (in
respect of products placed on the market).

In the cross-border Regulation (5) designed to maintain
6.1.3
exports, the Commission insisted on referring to ‘interim opera-
tions’, which it failed to define, just as it failed to define the
term ‘dealers and brokers’ which is also used in this same Regu-
lation.

The term ‘recycling’

is defined, but the definition of
6.1.4
the term ‘reclamation’, in the sense of ‘recovery’ is not clear.
Definitions should be provided of the terms ‘reclamation of
materials’
leading to the ‘recycling of materials’, on the one
hand, and ‘energy recovery’, on the other hand. In the first-
mentioned case, the end of the treatment cycle may result in
the substance concerned no longer being classified as ‘waste’;
this is not applicable in the case of energy recovery. Energy
recovery from waste is governed by the Waste Incineration
Directive, as regards the environmental protection aspects of
the process. In cases where substances are no longer classified
as ‘waste’, the environmental protection rules would no longer
apply to them.

(4) Council Directive 91/156/EEC of 18.3.1991 amending Council

Directive 75/442/EEC on waste.

(5) Council Regulation (EEC) No 259/93 of 1.2.1993 on the supervi-
sion and control of shipments of waste within, into and out of the
European Community.

6.2 Aim of the Directive

6.2.1
to protect the environment and public health.

The aim of the Directive is, and must continue to be,

The Commission has a general
6.2.2
considerable importance to the opening-up of
which constitutes only one aspect of waste policy.

tendency to attach
the market,

6.2.3
The EESC considers that there is a need to unequivo-
cally resolve the issue of how to define a regulatory framework
which would make it possible for market mechanisms to direct
waste management towards bringing about an improvement in
the environment, by developing the concepts of ‘eco-efficiency’
and ‘eco-management’
in respect of EU productive activities
and services. Waste management is indeed a regulated market,
the primary objectives of which are to protect the environment
and public health and to preserve resources; account is there-
impacts.
fore taken of economic, social and environmental
Protection of the environment is a key element which promotes
the creation of jobs and competitiveness, whilst at the same
time creating scope for innovation and the establishment of
new markets. There are grounds for questioning whether subsi-
diarity represents the ideal approach in this context. Further-
more,
in its communication on the
thematic strategy, the Commission agrees that a number of
recycling operations may be damaging to the environment. It
the Member States ensure that
nonetheless proposes that
recovery operations are carried out in respect of all waste. It
should therefore be stipulated that what should be encouraged
by means of common requirements spelled out at EU level is a
clean recycling market.

it is symptomatic that,

6.2.4
The Commission also ‘forgets’ to affirm in the ‘waste
hierarchy’ — as it also did in the previous text — that, under
the right conditions, the disposal of waste may be beneficial to
the environment, even though it retains the operational provi-
sions designed to achieve this goal. As a result, the new text is
less clear in this regard than the earlier text.

6.2.4.1
The Waste Framework Directive must continue to
provide the basis for an effective and appropriate management
of waste in all sectors. The way in which the Framework Direc-
tive is to be implemented — and thus the means to be
employed for strengthening the recycling strategy — have yet
to be defined.

As a possible line of approach, the Commission had
6.2.5
proposed the establishment of financial
instruments for the
purpose of supporting and promoting the effective manage-
ment of waste and the recycling and recovery of waste. The
introduction of such instruments at EU level could indeed have
been encouraged, on condition that a uniform approach was
adopted. Nothing has been proposed in this regard because of
the difficulty of securing unanimity on such a proposal at the
Council. Opting to put forward no proposals on this matter is
doubtless a realistic approach but it nonetheless points to a
degree of timidness on the part of the Commission, which
could have proposed the development of an open method of
coordination.

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6.3 Hazardous waste

6.3.1
The issue of the integration/repeal of the Hazardous
Waste Directive has already been tackled, as regards the actual
principle involved, in the general comments set out above.

6.3.2
It is curious to note that the article dealing with the
separation of hazardous waste refers only to cases where such
waste is ‘mixed’.

6.3.3
Hazardous waste has to be regulated by robust legisla-
tion and a robust system of traceability; this need is more
pressing in the case of hazardous waste than it is in the case of
any other waste. The provisions which are introduced must
clearly rule out the possibility that such waste is diluted in the
environment. Furthermore, steps should be taken to ensure that
the integration/repeal of the Hazardous Waste Directive does
not reduce the level of public health protection. It could at
least be clearly stipulated that, by definition, any ‘mixture
which includes hazardous waste’ will
itself be regarded as
hazardous, except
in cases where the mixture in question
brings about real chemical detoxification. All forms of dilution
must be outlawed.

6.4 Network of disposal installations

6.4.1
The draft Directive under review proposes that the EU
Member States cooperate with each other in order to establish
a network of disposal installations. How can a call be made for
investments to be carried out in this field if the Member States
are unable to introduce the requisite tools for ensuring that
these installations do not continue to operate at below capa-
city? Operators could indeed ‘export’ waste in order to have
recovery operations carried out in another country. It is there-
fore essential that the rules governing this field are particularly
precise and do not have any perverse effects.

Brussels, 5 July 2006.

The proximity principle

6.4.2
studied and
explained, using the principle of self-sufficiency as the reference
criterion. These two principles are to be treated as inseparable
if waste management is to be sustainable.

should be

6.5 Prevention

6.5.1
The draft Directive places no obligations upon the
Member States with regard to the social aspects of prevention,
i.e. the need to take account of the possible impact on working
conditions and the health of workers and to introduce mean-
ingful information campaigns. Waste prevention is also a civic
behaviour issue. Two possible lines of approach should also be
approach and the quantitative
pursued:
approach since,
the former
approach, whilst clearly being less doctrinaire than the latter,
nonetheless, leads to progress and efficiency.

from an economic standpoint,

the qualitative

6.6 Annexes

6.6.1
Few changes have been made, with the exception of
the adoption of an energy efficiency approach solely in the
incinerators processing household waste. Rather
case of
curiously, no proposals have been set out in respect of the obli-
gations to be met by ‘co-incineration plants’. Furthermore, the
incineration of household waste can only be regarded as a
recovery operation in cases where it achieves a high level of
energy efficiency. Although certain waste products cannot be
reclaimed, steps should, however, be taken to avoid a situation
in which rudimentary incineration plants, marked by ineffi-
ciency in the recovery of useful energy, are able to benefit from
the recovery provisions. Incineration would then become the
easy solution, which could lead to the exporting of waste, an
outcome which we should, on the contrary, be seeking to
avoid.

The president

of the European Economic and Social Committee

Anne-Marie SIGMUND