2009/292/EC: Commission Decision of 24 March 2009 establishing the conditions for a derogation for plastic crates and plastic pallets in relation to the heavy metal concentration levels established in Directive 94/62/EC of the European Parliament and of the Council on packaging and packaging waste (notified under document number C(2009) 1959) (Text with EEA relevance)
Date: 2009-03-24
Institutions: European Commission
Subjects: derogation from EU law, heavy metal, packaging, plastics, waste management, waste recycling

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Official Journal of the European Union

25.3.2009

COMMISSION DECISION

of 24 March 2009

establishing the conditions for a derogation for plastic crates and plastic pallets in relation to the
heavy metal concentration levels established in Directive 94/62/EC of the European Parliament and
of the Council on packaging and packaging waste

(notified under document number C(2009) 1959)

(Text with EEA relevance)

(2009/292/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

The scientific reports
recommend that such derogation should be granted.

submitted to the Commission

Having regard to the Treaty
Community,

establishing the European

Having
Parliament and of
packaging
Article 11(3) thereof,

regard to Directive 94/62/EC of

the European
the Council of 20 December 1994 on
particular

packaging waste (1),

and

and

in

Whereas:

(1)

(2)

(3)

(4)

Commission Decision 1999/177/EC of 8 February 1999
establishing the conditions for a derogation for plastic
crates and plastic pallets in relation to the heavy metal
concentration levels established in Directive 94/62/EC on
packaging and packaging waste (2) expired on 9 February
2009.

At the expiry of Decision 1999/177/EC, a considerable
amount of plastic crates and plastic pallets containing
heavy metals whose concentration level exceeds that
provided for by Directive 94/62/EC were still on the
market. Given the lack of capacity of the industry to
replace all such crates and pallets, there is a high risk
that those crates and pallets will be disposed of through
land filling or incineration. Both solutions would have
harmful impacts on health and the environment.

limiting the presence of
Directive 94/62/EC aims at
heavy metals in packaging as well as at providing a
high level of environmental protection,
including reuse
and recycling.

In order to give time to the industry to replace those
plastic crates and plastic pallets using the best available
it is appropriate to adopt conditions for a
techniques,
derogation relating to those crates and pallets which
are in product loops in a closed and controlled chain.

(1) OJ L 365, 31.12.1994, p. 10.
(2) OJ L 56, 4.3.1999, p. 47.

(5)

(6)

(7)

Since the Commission intends to review the functioning
the system provided for in this Decision and the
of
progress made in phasing out plastic crates and plastic
pallets containing heavy metals after five years,
is
necessary that Member States submit the relevant infor­
mation. In order not to increase the existing administra­
tive burden by imposing a specific reporting obligation
on the Member States,
it is sufficient that such infor­
mation is included in the reports to be submitted to
the Commission under Article 17 of Directive 94/62/EC.

it

For reasons of legal certainty, this Decision should apply
with effect from the date following that of the expiry of
Decision 1999/177/EC in order to avoid any possible
negative effects resulting from that expiry.

The measures provided for
in this Decision are in
accordance with the opinion of the Committee estab­
lished pursuant to Article 21 of Directive 94/62/EC,

HAS ADOPTED THIS DECISION:

Article 1

For the purposes of this Decision, the following definitions shall
apply:

1.

‘heavy metals’ means lead, cadmium, mercury and hexavalent
chromium;

2.

‘intentional introduction of heavy metals’ means the act of
deliberately utilising a substance containing heavy metals in
the formulation of a packaging or a packaging component
where its continued presence is desired in the final packaging
or packaging component to provide a specific characteristic,
appearance or quality;

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3.

‘incidental presence of heavy metals’ means the presence of
heavy metals as an unintended ingredient of a packaging or
packaging component.

excessive amount of heavy metals, as referred to in Article 2,
are returned to the manufacturer, the packer or the filler or to
an authorised representative.

Article 2

The sum of concentration levels of heavy metals in plastic crates
and plastic pallets may exceed the applicable limit laid down in
Article 11(1) of Directive 94/62/EC provided that those crates
and pallets are introduced and kept in product loops which are
in a closed and controlled chain under the conditions set out in
Articles 3, 4 and 5.

Article 3

1.
Plastic crates and plastic pallets containing an excessive
amount of heavy metals, as referred to in Article 2, shall be
manufactured or repaired in a controlled recycling process in
accordance with paragraphs 2, 3 and 4 of this Article.

The material used for recycling shall originate only from

2.
other plastic crates or plastic pallets.

The introduction of other material shall be limited to the
minimum technically necessary and,
in any case, shall not
exceed 20 % by weight.

The intentional

3.
introduction of heavy metals as an
element during the recycling, as opposed to the incidental
presence of heavy metals, shall not be allowed.

The use of recycled materials as feedstock for the repair of
the recycled
packaging materials, where some portion of
materials can contain heavy metals, shall not be considered to
be intentional introduction of heavy metals.

4.
The sum of concentration levels of heavy metals in plastic
crates and plastic pallets may exceed the applicable limit laid
down in Article 11(1) of Directive 94/62/EC only as a result of
the use of materials containing heavy metals in the recycling
process.

Article 4

1.
Plastic crates and plastic pallets containing an excessive
amount of heavy metals, as referred to in Article 2, shall be
identified in a permanent and visible way.

2. Member States shall ensure that within the life cycle of the
plastic crates and plastic pallets concerned, at least 90 % of the
dispatched plastic crates and plastic pallets containing an

crates

all plastic

and plastic pallets

to this Article that are no longer

to
3. Without prejudice to the measures taken pursuant
returned
Article 6,
pursuant
suitable or
intended for reuse shall either be disposed of in accordance
with a procedure specifically authorised by the competent au­
thorities of the Member State concerned or be recycled in a
controlled recycling process in accordance with paragraphs 2,
3 and 4 of Article 3.

Article 5

1. Member States shall provide for a system of inventory and
record keeping and a method of
regulatory and financial
accountability that enable compliance with the conditions laid
down in this Decision to be documented.

The system shall account for all plastic crates and plastic pallets
containing an excessive amount of heavy metals, as referred to
in Article 2, which are put into, and removed from, service.

shall ensure that

Unless otherwise specified in a voluntary agreement,
2.
Member States
the manufacturer or his
authorised representative draws up on an annual basis a
written declaration of conformity and an annual report demon­
strating how the conditions laid down in this Decision have
been complied with. The report shall contain possible changes
to the system and authorised representatives.

3. Member States shall ensure that the manufacturer or his
authorised representative keeps the relevant technical documen­
tation at
for
the
inspection purposes for at least four years.

the disposal of

competent

authorities

Where neither the manufacturer nor his authorised representa­
tive is established within the Community, the obligation to keep
the relevant technical documentation available shall lie with the
person who places the product on the Community market.

Article 6

Member States shall take measures to encourage manufacturers
to investigate methods to progressively achieve the applicable
limit of heavy metals contained in plastic crates and plastic
pallets laid down in Article 11(1) of Directive 94/62/EC,
including the best available techniques on the extraction of
heavy metals.

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Article 7

Article 9

Member States shall include in the reports to be submitted to
the Commission under Article 17 of Directive 94/62/EC a
detailed report on the functioning of the system provided for
in this Decision and on the progress made in phasing out
plastic crates and plastic pallets which are not in conformity
with Article 11(1) of Directive 94/62/EC.

Article 8

This Decision shall apply from 10 February 2009.

This Decision is addressed to the Member States.

Done at Brussels, 24 March 2009.

For the Commission

Stavros DIMAS
Member of the Commission