Proposal for a COUNCIL REGULATION amending Annex III to Directive 2008/98/EC of the European Parliament and of the Council as regards the hazardous property HP 14 (ʻEcotoxic’)
Date: 2017-01-19
Institutions: Directorate-General for Environment, European Commission
Subjects: chemical product, environmental impact, environmental protection, hazardous waste, prevention of pollution, toxic substance, waste management

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   EUROPEAN COMMISSION  Brussels, 19.1.2017  COM(2017) 23 final 2017/0010 (NLE)   Proposal for a COUNCIL REGULATION amending Annex III to Directive 2008/98/EC of the European Parliament and of the Council as regards the hazardous property HP 14 (ʻEcotoxic’)  (Text with EEA relevance)  
 
EXPLANATORY MEMORANDUM 

A comprehensive review of Annex III to Directive 2008/98/EC on waste (Waste Framework 
Directive), which establishes properties of waste which render it hazardous, was undertaken 
in 2014 through Commission Regulation (EU) No 1357/2014. The main aims of that review 
were to adapt the properties of waste to technical and scientific progress and to align, to the 
extent possible, the identification of hazardous wastes with the criteria of the Regulation (EC) 
No 1272/2008 on classification, labelling and packaging of substances and mixtures (the CLP 
Regulation). 

The only hazardous property not amended during that review was hazardous property HP 14 
“Ecotoxicˮ, as it was considered that the knowledge basis for the assessment of that property 
needed to be further improved.  

At present we are in a legal vacuum as concerns the assessment of ecotoxicity: the existing 
"Note" in Annex III to the Waste Framework Directive states that the attribution of hazardous 
property HP 14 is to be made on the basis of the criteria laid down in Annex VI to Council 
Directive 67/548/EEC which has been repealed as of 1 June 2015. 

To  address  the  legal  vacuum  and  the  lack  of  harmonisation  concerning  the  attribution  of 
hazardous property HP 14 “Ecotoxicˮ, the Commission submitted a draft Regulation for vote 
in  the  Committee  established  under  Article  39  of  the  Waste  Framework  Directive.  The 
Committee  did  not  give  a  favourable  opinion  on  the  draft  Regulation  in  its  meeting  of  25 
October 2016.  

The main concerns expressed by the Committee related to (1) the need to clarify that Member 
States  may  still  apply  test  methods  to  assess  ecotoxicity  and  (2)  the  likelhood  that  the 
calculation formulae  envisaged by the  Commission  would lead to  a change of classification 
from non-hazardous to hazardous of certain wastes types and that would impact negatively on 
the recycling of those wastes due to increasing costs of managing the waste. The waste types 
mentioned in this context were incineration bottom ash and shredder residues. 

Thus,  in  accordance  with  the  procedure  set  out  in  Article  5a  of  Council  Decision 
1999/468/EC, a Proposal for a Council Regulation is submitted to Council and forwarded to 
the European Parliament. 

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2017/0010 (NLE) 

Proposal for a 

COUNCIL REGULATION 

amending Annex III to Directive 2008/98/EC of the European Parliament and of the 
Council as regards the hazardous property HP 14 (ʻEcotoxic’)  

(Text with EEA relevance) 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on the Functioning of the European Union,  

Having regard to Directive 2008/98/EC of the European Parliament and of the Council of 19 
November  2008  on  waste  and  repealing  certain  Directives1,  and  in  particular  Article  38(2) 
thereof,  

Whereas: 

(1) 

(2) 

(3) 

(4) 

1 
2 

3 

4 

Annex III to Directive 2008/98/EC lists properties of waste which render it hazardous. 

Directive  2008/98/EC  states  that  the  classification  of  waste  as  hazardous  should  be 
based,  inter  alia,  on  the  Union  legislation  on  chemicals,  in  particular  concerning  the 
classification of mixtures as hazardous, including concentration limit values used for 
that  purpose.  Commission  Decision  2000/532/EC2  established  a  list  of  the  types  of 
waste  in  order  to  encourage  a  harmonised  classification  of  waste  and  to  ensure  the 
harmonised determination of hazardous properties of waste within the Union. 

Annex  III  to  Directive  2008/98/EC  provides  that  the  attribution  of  the  hazardous 
property  HP  14  (ʻEcotoxic’)  is  to  be  made  on  the  basis  of  the  criteria  laid  down  by 
Annex VI to Council Directive 67/548/EEC3. 

Directive  67/548/EEC  was  repealed  from  1  June  2015  and  replaced  by  Regulation 
(EC)  No  1272/2008  of  the  European  Parliament  and  of  the  Council4.  That  Directive 
may, however, continue to apply to some mixtures until 1 June 2017, in case they were 
classified,  labelled  and  packaged  in  accordance  with  Directive  1999/45/EC  of  the 

OJ L 312, 22.11.2008, p. 3.  
Commission  Decision  2000/532/EC  of  3  May  2000  replacing  Decision  94/3/EC  establishing  a  list  of 
wastes  pursuant  to  Article  1(a)  of  Council  Directive  75/442/EEC  on  waste  and  Council  Decision 
94/904/EC  establishing  a  list  of  hazardous  waste  pursuant  to  Article  1(4)  of  Council  Directive 
91/689/EEC on hazardous waste (OJ L 226, 6.9.2000, p. 3). 
Council  Directive  67/548/EEC  of  27  June  1967  on  the  approximation  of  laws,  regulations  and 
administrative provisions relating to the classification, packaging and labelling of dangerous substances 
(OJ 196, 16.8.1967, p. 1). 
Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 on 
classification, labelling and packaging of substances and mixtures, amending and repealing Directives 
67/548/EEC and 1999/45/EC, and amending Regulation (EC) No 1907/2006 (OJ L 353, 31.12.2008, p. 
1). 

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(5) 

(6) 

European  Parliament  and  of  the  Council5  and  already  placed  on  the  market  before 1 
June 2015. 

Annex III to Directive 2008/98/EC was replaced by Commission Regulation (EU) No 
1357/20146  in  order  to  align,  where  appropriate,  the  definitions  of  the  hazardous 
properties  with  Regulation  (EC)  No  1272/2008,  and  replace  references  to  Directive 
67/548/EEC by references to Regulation (EC) No 1272/2008.   

The  definition  of  the  hazardous  property  HP  14  (ʻEcotoxic’)  was  not  amended  by 
Regulation (EU) No 1357/2014 as an additional study was needed in order to ensure 
completeness and representativeness as regards the information on the possible impact 
of an alignment of the assessment of the hazardous property HP 14 (ʻEcotoxic’) with 
the criteria laid down in Regulation (EC) No 1272/2008. That study being completed, 
it  is  appropriate  to  reflect  its  recommendations  in  the  assessment  of  hazardous 
property HP 14 (ʻEcotoxic’) for waste set out in Annex III to Directive 2008/98/EC, 
and  to  align  that  assessment,  to  the  extent  possible,  with  the  criteria  laid  down  in 
Regulation (EC) No 1272/2008 for the assessment of ecotoxicity of chemicals. When 
determining  the  hazard  classification  of  waste  for  hazardous  property  HP14 
(ʻEcotoxic’)  by  applying  calculation  formulae,  generic  cut-off  values,  as  defined  in 
Regulation (EC) No 1272/2008, should be applied.  

(7)  When a test is performed to assess waste for the hazardous property HP14 ʻEcotoxic’, 
it is appropriate to apply the relevant methods established in Commission Regulation 
(EC)  No  440/20087  or  other  internationally  recognised  test  methods  and  guidelines. 
Decision  2000/532/EC  provides  that,  where  a  hazardous  property  of  waste  has  been 
assessed by a test and by using the concentrations of hazardous substances as indicated 
in Annex III to Directive 2008/98/EC, the results of the test shall prevail. Furthermore, 
Article  12  of  Regulation  (EC)  No  1272/2008,  in  particular  Article  12(b)  and  the 
methodologies for its application, should be taken into account. 

(8) 

(9) 

It is appropriate to allow companies and competent authorities sufficient time to adapt 
to the new requirements.  

The  Committee  referred  to  in  Article  39  of  Directive  2008/98/EC  did  not  deliver  an 
opinion  on  the  measures  provided  for  in  this  Regulation.  The  measures  should 
therefore  be  adopted  by  the  Council  in  accordance  with  Article  5a(4)  of  Council 
Decision 1999/468/EC8, 

HAS ADOPTED THIS REGULATION: 

Annex III to Directive 2008/98/EC is amended as follows: 

(1) 

The entry for HP 14 ʻEcotoxic’ is replaced by the following: 

Article 1 

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Directive 1999/45/EC of the European Parliament and of the Council of 31 May 1999 concerning the 
approximation of the laws, regulations and administrative provisions of the Member States relating to 
the classification, packaging and labelling of dangerous preparations (OJ L 200, 30.7.1999, p. 1). 
Commission  Regulation  (EU)  No  1357/2014  of  18  December  2014  replacing  Annex  III  to  Directive 
2008/98/EC of the European Parliament and of the Council on waste and repealing certain Directives 
(OJ L 365, 19.12.2014, p. 89). 
Commission  Regulation  (EC)  No  440/2008  of  30  May  2008  laying  down  test  methods  pursuant  to 
Regulation  (EC)  No  1907/2006  of  the  European  Parliament  and  of  the  Council  on  the  Registration, 
Evaluation, Authorisation and Restriction of Chemicals (REACH) (OJ L 142, 31.5.2008, p. 1). 
Council  Decision  1999/468/EC  of  28  June  1999  laying  down  the  procedures  for  the  exercise  of 
implementing powers conferred on the Commission (OJ L 184, 17.7.1999, p. 23). 

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"HP 14 ʻEcotoxic’: waste which presents or may present immediate or delayed risks for one 
or more sectors of the environment. 

Waste which fulfils any of the following conditions shall be classified as hazardous by HP 14:  

– 

– 

– 

– 

Waste which contains a substance classified as ozone depleting assigned the hazard 
statement  code  H420  in  accordance  with  Regulation  (EC)  No  1272/2008  of  the 
European Parliament and of the Council* and the concentration of such a substance 
equals or exceeds the concentration limit of 0.1%.  

[ c(H420) ≥ 0.1% ]  

Waste which contains one or more substances classified as aquatic acute assigned the 
hazard statement code H400 in accordance with Regulation (EC) No 1272/2008 and 
the sum of the concentrations of those substances equals or exceeds the concentration 
limit of 25%. A cut-off value of 0.1% shall apply to such substances. 

[ ∑ c (H400) ≥ 25 % ] 

Waste which contains one or more substances classified as aquatic chronic 1, 2 or 3 
assigned  to  the  hazard  statement  code(s)  H410,  H411  or  H412  in  accordance  with 
Regulation (EC) No 1272/2008, and the sum of the concentrations of all substances 
classified  as  aquatic  chronic  1  (H410)  multiplied  by  100  added  to  the  sum  of  the 
concentrations of all substances classified as aquatic chronic 2 (H411) multiplied by 
10  added  to  the  sum  of  the  concentrations  of  all  substances  classified  as  aquatic 
chronic 3 (H412) equals or exceeds the concentration limit of 25%. A cut-off value 
of 0.1% applies to substances classified as H410 and a cut-off value of 1% applies to 
substances classified as H411 or H412. 

[ 100 x ∑c (H410)) + 10 x ∑c (H411) + ∑c (H412) ≥ 25% ] 

Waste which contains one or more substances classified as aquatic chronic 1, 2, 3 or 
4  assigned  the  hazard  statement  code(s)  H410,  H411,  H412  or  413  in  accordance 
with  Regulation  (EC)  No  1272/2008,  and  the  sum  of  the  concentrations  of  all 
substances classified as aquatic chronic equals or exceeds the concentration limit of 
25%. A cut-off value of 0.1% applies to substances classified as H410 and a cut-off 
value of 1% applies to substances classified as H411, H412 or H413. 

[ ∑ c H410 + ∑ c H411 + ∑ c H412 + ∑ c H413 ≥ 25 % ] 

Where: ∑ = sum and c = concentrations of the substances. 

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Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 
* 
December  2008  on  classification,  labelling  and  packaging  of  substances  and  mixtures, 
amending  and  repealing  Directives  67/548/EEC  and  1999/45/EC,  and  amending  Regulation 
(EC) No 1907/2006 (OJ L 353, 31.12.2008, p. 1)." 

(2) 

The note below the entry for HP 15 is deleted.  

Article 2 

This Regulation shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union.  

It shall apply from 12 months after the date of its publication in the OJ. 

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This Regulation shall be binding in its entirety and directly applicable in all Member States. 

Done at Brussels, 

For the Council 
The President 

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