COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS on the implementation of the circular economy package: options to address the interface between chemical, product and waste legislation (Text with EEA relevance) options to address the interface between chemical, product and waste legislation
Date: 2018-01-16
Institutions: Directorate-General for Environment, European Commission
Subjects: EU law, access to information, chemical product, dangerous substance, environmental protection, harmonisation of standards, health policy, waste, waste recycling

EUROPEAN 
COMMISSION 

Strasbourg, 16.1.2018  
COM(2018) 32 final 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL 
COMMITTEE AND THE COMMITTEE OF THE REGIONS 

on the implementation of the circular economy package:  
options to address the interface between chemical, product and waste legislation 

(Text with EEA relevance) 

{SWD(2018) 20 final} 

EN 

  EN 

 
 
 
 
 
 
 
 
COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL 
COMMITTEE AND THE COMMITTEE OF THE REGIONS 

on the implementation of the circular economy package: 

options to address the interface between chemical, product and waste legislation  

 (Text with EEA relevance) 

1. 

INTRODUCTION 

The  European  Commission  adopted  in  December  2015  an  ambitious  Circular  Economy 
Package to help EU businesses and consumers to make the transition to a stronger and more 
circular economy where resources are used in a more sustainable way. 

The proposed actions contributed to "closing the loop" of product lifecycles through greater 
recycling and re-use to the benefit of both the environment and the economy. The aim is to 
extract  the  maximum  value  and  use  from  all  raw  materials,  products  and  waste,  fostering 
energy savings and reducing greenhouse gas emissions.  

Recycling and re-use can be hampered by the presence of certain chemicals. Some chemicals 
can simply constitute technical barriers preventing recycling. Even a benign substance, which 
for  example  has  a  strong  smell,  could  in  some  cases  prevent  use  of  the  recycled  material1. 
Other chemicals are hazardous to humans or the environment. A growing number of these are 
being identified and becoming subject to restrictions or prohibitions. These chemicals may be 
present in products sold before the restrictions applied, some of which have a long lifetime, 
and  therefore  prohibited  chemicals  can  sometimes  be  found  in  recycling  streams.  Such 
substances  can  be  costly  to  detect  or  remove,  creating  obstacles  in  particular  for  small 
recyclers.  All  these  different  types  of  chemicals  we  call  'substances  of  concern'  in  this 
Communication. 

The Communication and the accompanying Staff Working Document is the result of cross-
cutting  work  between  experts  in  charge  of  different  legislative  areas.  Also  an  extensive 
targeted stakeholder consultation was undertaken, which was open for input between 12 April 
- 7 July 2017 and received input from over 100 experts.  

The Communication explores the four most critical issues identified in the way the legislation 
on  chemicals,  products  and  waste  work  together  and  how  these  are  hampering  a  circular 
economy development. On this basis, we pose specific key questions on how these issues can 
be overcome and we indicate the actions that the Commission will already now initiate. In the 
accompanying  Staff  Working  Document,  the  Commission  services  have  provided  a  more 
elaborated  analysis  of  the  legal  and  technical  challenges  which  need  to  be  discussed  and 
suggest possible options of how that would be possible. 

1 This could be the case for recovered materials to be used as a new food contact material. 

1 

 
 
                                                            
2. 

WHAT DO WE AIM FOR? 

The  Circular  Economy  Action  Plan  contained  the  following  two-fold  objectives  to  be 
achieved: 

1)  enabling recycling and improving the uptake of secondary raw materials, by limiting 
unnecessary  burdens,  and  facilitating  the  cross-border  circulation  of  secondary  raw 
materials to ensure that they can be traded easily across the EU; and 

2)  substituting  substances  of  concern  and,  where  this  is  not  possible,  reducing  their 

presence and improving their tracking.  

These two objectives, one stemming from waste policy and the other from chemicals policy, 
have  often  been  perceived  to  be  in  opposition  and  have  given  rise  to  claims  that  the  one 
policy area impedes on the fulfilment of the objectives of the other.  

The  aim  of  this  Communication  is  to  promote  a  broad  discussion  in  the  Union  on  how  the 
major  elements  identified  at  the  interface  between  chemicals,  product  and  waste  legislation 
can be addressed in a satisfactory manner. Solutions need to take into account that this is a 
policy field where specific – often regional or even local – circumstances play an important 
role.  

We are looking for solutions with broad support from the involved stakeholders that should 
be implemented at the right level. Not all issues would necessarily need an EU level response 
if national or local solutions would help us achieve better results.  

3. 

FOUR IDENTIFIED ISSUES 

In the open, competitive EU market, firms produce their goods on the basis of the materials 
they believe suit their needs best. When waste has been treated to re-enter the market anew, 
these recovered materials are in direct competition with primary materials. Therefore, for any 
recovered material, its competitive position in the market is strongest when it is as close as 
possible to the primary material in performance and quality. This allows a broader range of 
uses for the recovered material.  

Recovered materials that contain substances of concern may not be taken up because their use 
could simply harm the image of the product that contains the material. Furthermore, in some 
cases,  these  materials  may  not  be  allowed  to  be  reused,  for  example,  to  produce  new  food 
contact materials. 

In  order  to  contribute  to  the  success  of  the  Union  in  maximizing  recycling  and  minimising 
use  of  primary  materials,  we  have  thoroughly  looked  at  the  EU  rules  applicable  to  waste 
management,  chemicals  and  products  and  found  that  four  main  issues  stand  out  at  the 
interface between these rules.  

3.1. 

Information  on  presence  of  substances  of  concern  is  not  readily  available  to 
those who handle waste and prepare it for recovery 

Waste  often  consists  of  mixed  goods  produced  at  different  times  meeting  different  product 
standards.  Often,  companies  handling  waste  do  not  have  access  to  information  on  the 
composition of the discarded goods they handle because the information either does not exist 
or if it does, it is not available by the time the good becomes waste. Furthermore, materials 
may also be affected by incidental contamination throughout their lifecycle.  

2 

 
 
 
Example: The paper industry makes efforts to keep its product safe and easy to recycle. When 
paper is used by converters to make printed products, inks and other materials can be added. 
The  current  rules  do  not  enable  paper  recycling  mills  to  have  sufficient  information  about 
chemicals  added  in  previous  life-cycles.  This  limits  recycling  of  paper  and  increases  costs 
due to the need to perform additional controls and testing2. We have seen recent cases where 
ink residues and mineral oils have been found in food as a result of migration from packaging 
made from recycled paper and board3.    

In  addition,  studies  conducted  by  Member  States  relating  to  waste  electrical  and  electronic 
equipment show that only in rare cases the information required under EU law is transferred 
to or made accessible to waste treatment facilities4. 

3.1.1.  Objective 

We  must  ensure  that  appropriate  information  on  substances  of  concern  in  products  is 
available  to  all  actors  in  the  supply  chain  and  ultimately  also  becomes  available  to  waste 
operators. This will contribute to the promotion of non-toxic materials cycles and improve the 
risk management of chemicals during repair and other forms of reuse and in waste recovery 
processes. 

3.1.2.  Planned actions 

In  parallel  with  this  consultation,  we  will  improve  the  evidence  base  by  launching  a 
feasibility  study,  addressing  representative  sectors,  on  the  use  of  different  information 
systems,  innovative  tracing  technologies  and  strategies  which  could  enable  relevant 
information to flow along article supply chains and reach recyclers. This study is expected to 
be ready by the end of 2019. Other planned activities include developing working procedures 
to make sure that imported articles do not contain substances which are not authorised for use 
in  the  production  of  articles  in  the  EU,  and  simplified  procedures  for  restricting  CMR5 
substances in consumer articles.  

Questions:  

What would be the added value of introducing a compulsory information system in the Union 
that  informs  waste  management  and  recovery  operators  of  the  presence  of  substances  of 
concern?  

How should we manage goods imported to the Union? 

2 According to information from CEPI provided in the targeted consultation. 

3 See for instance: https://chemicalwatch.com/7210/mineral-oils-health-scare-sparks-food-packaging-debate 
or BEUC's position paper (see page 5) https://www.anec.eu/images/Publications/position-
papers/Sustainability/ANEC-PT-2017-CEG-017.pdf  

4 Source: Input of the Swedish EPA and France. Studies: Goodpoint, Information on Hazardous Substances in 
Waste, 2016 (In English) and Goodpoint, Information Transfer on Hazardous Substances, 2017 (In English). 

5 Substances that cause cancer, mutations or adverse effects on reproduction.  

3 

 
 
 
  
                                                            
3.2.  Waste may contain substances that are no longer allowed in new products 

New chemicals are continuously placed on the market whilst others are forbidden when it is 
discovered  that  they  pose  a  risk.  This  on-going  process  has  the  implication  that  products 
legally  produced  today  may  contain  a  substance  that  later  may  be  forbidden.  When  the 
product becomes waste and is then recovered, the forbidden substance may still be contained 
in the recovered material. This is what we call the issue of 'legacy substances'. 

Example:  There  are  multiple  examples  of  problems  with  "legacy  substances".  For  instance, 
certain brominated flame retardants that are persistent, bio-accumulative and toxic have been 
reported  found  in  recycled  plastic  products  including  toys  and  kitchen  utensils6.  In  another 
case,  the  use  of  certain  substances  that  were  originally  added  to  PVC  to  soften  it  is  now 
regulated  which  means  that  recycled  PVC  containing  those  substances  above  specific 
quantities should not be used or placed on the market in the EU.  

3.2.1.  Objective 

We  must  make  recycling  easier  and  improve  the  uptake  of  secondary  raw  materials  by 
promoting  non-toxic  material  cycles.  In  addition,  when  considering  possible  chemical 
restrictions  and  exemptions  to  restrictions,  we  must  give  more  attention  to  their  impact  on 
future recycling and reuse.  

3.2.2.  Planned actions 

The issue of legacy substances will continue to constitute a barrier to the circular economy 
and,  therefore,  we  will  take  steps  to  develop  a  specific  decision-making  methodology  to 
support  decisions  on  the  recyclability  of  waste  containing  substances  of  concern.  This 
methodology will take into account the overall cost-benefit of recycling a material compared 
to its disposal (including incineration with energy recovery). We expect to finish this work by 
mid-2019.  

We also see a need to prepare guidelines to ensure that the presence of substances of concern 
in recovered materials is better addressed in the early stages of the preparation of proposals to 
manage the risk of substances of concern. 

Finally, we are considering enacting implementing legislation to allow an effective control of 
the use of the existing exemption from REACH registration for recovered substances. 

Questions:  

How do we reconcile the idea that waste is a resource that we should recycle and, at the same 
time, ensure that waste that contains substances of concern is only recovered into materials 
which can be safely used? 

Should  we  allow  recycled  materials  to  contain  chemicals  that  are  no  longer  allowed  in 
primary materials? If so, under what conditions? 

6 See reference to several studies provided in contribution by EEB and BEUC. See for example page 4 of 
http://eeb.org/publications/81/circular-economy/33789/pops-in-the-circular-economy.pdf  

4 

 
 
                                                            
3.3. 

EU's rules on end-of-waste are not fully harmonised, making it uncertain how 
waste becomes a new material and product  

Our rules, case law and years of experience establish when a good is no longer a good and 
has become waste. When that happens, EU waste legislation applies. The EU waste rules are 
stringent  in  order  to  protect  human  health  and  the  environment.  In  a  circular  economy, 
materials should only  stay  in  the  waste  phase  temporarily as the aim  is that they should be 
recovered and reintroduced into the economy to replace primary materials. In most cases, in 
order for this to happen, materials which have been recycled should no longer be considered 
waste.  

For waste to cease to be waste, it has to meet the so-called 'end-of-waste criteria'. For some 
waste streams such criteria have been set at EU or national level. However, the scope of these 
rules and clarity on how they operate is lacking. The complexity of waste streams, recovery 
processes  and  recovered  materials  means  that  end-of-waste  criteria  that  are  applicable  to 
whole  waste  streams  are  not  easy  to  establish.  Consequently,  many  recovered  materials  are 
traded  and  used  in  the  absence  of  established  end-of-waste  criteria  and  therefore  under 
unclear legal circumstances and without transparency. 

Example:  In  the  targeted  consultation,  the  metals  and  the  electricity  industries  reported 
difficulties in determining the waste or product status of materials such as coal ashes, copper 
slags  or  ferromolybdenum  slags.  Different  criteria  are  applied  across  Member  States,  and 
even  among  different  regions.  This  leads  to  problems  in  trans-border  transport  of  these 
materials and sometimes makes it impossible to derive useful resources from these materials, 
some of which are waste generated in quantities counted in millions of tonnes per year7.  

Uncertainties  about  the  status  of  a  material  as  a  waste  or  a  product  is  also  an  issue  for 
authorities which often face difficulties in determining whether waste or product legislation 
applies.  This  situation  arises  for  example  in  deciding  whether  recycled  PVC  containing 
DEHP should still be considered waste or whether it should be treated as a product. 

3.3.1.  Objective 

We must enable a more harmonised interpretation and implementation of end-of-waste rules 
across the EU to further facilitate the use of recovered material within the EU.   

3.3.2.  Planned actions 

The  Commission  will  facilitate  closer  cooperation  between  existing  chemical  and  waste 
management expert  networks and prepare  an on-line EU repository for all adopted national 
and  EU  end-of-waste  and  by-product  criteria.  It  will  also  launch  a  study  to  gain  a  better 
understanding  of  Member  States'  practices  as  regards  implementation  and  verification  of 
provisions on end-of-waste as a basis for possible guidelines. 

Question:  

How and for which waste streams should we facilitate more harmonisation of end-of-waste 
rules?  

7 See Eurometaux: https://www.eurometaux.eu/media/1634/eurometaux-response-chemicals-products-
waste-interface-stakeholder-c.pdf and Eurelectric: http://www.eurelectric.org/media/340047/eurelectric-
interface_consultation-final_07072017-2017-2430-0001-01-e.pdf.  

5 

 
 
                                                            
3.4. 

Rules to decide which wastes and chemicals are hazardous are not well aligned 
and this affects the uptake of secondary raw materials 

The  production  and  use  of  hazardous  chemicals  and  products  are  subject  to  strict  EU  rules 
adopted  to  protect  workers8,  citizens  and  the  environment  from  harm.  When  a  chemical  is 
determined  to  be  hazardous,  it  is  classified  as  such,  which  leads  to  clear  obligations  for 
operators to ensure their safe handling.   

Waste  management  is  similarly  governed  by  EU  rules  adopted  with  the  same  objectives  in 
mind so that hazardous waste is treated without harming  the  environment or human health. 
However, the two sets of rules are not fully aligned. We have seen situations where the same 
material,  containing  a  hazardous  substance,  may  be  considered  hazardous  or  not  hazardous 
depending  on  whether  it  is  waste  or  a  product.  This  discrepancy  means  that  it  cannot  be 
assumed  that  materials  that  re-enter  the  economy  resulting  from  the  recovery  of  non-
hazardous waste will necessarily result in a non-hazardous product. 

The  way  rules  on  classification  of  waste  are  implemented  and  enforced  has  important 
consequences on future waste management choices, such as feasibility and economic viability 
of  collection,  recycling  method  or  the  choice  between  recycling  and  disposal.  Such 
discrepancies may have an impact upon the uptake of secondary raw materials.  

  Example: Lead metal has a different classification depending on its waste or product status. 
Lead metal waste from construction and demolition activities is listed as non-hazardous waste 
in the European List of Waste. Lead metal as a product is classified as a hazardous substance 
under  the  EU  legislation  on  classification,  packaging  and  labelling  of  chemicals  (CLP  – 
Regulation) due to its harmful effects on reproduction.  

Another example is the case of flexible PVC waste containing certain additives, where often 
waste  operators  (mis)classify  this  waste  as  non-hazardous  although  the  resulting  recovered 
product will be classified as a hazardous chemical mixture under the CLP Regulation. 

3.4.1.  Objective 

We  must  ensure  a  more  consistent  approach  between  chemicals  and  waste  classification 
rules.  

3.4.2.  Planned actions 

We are about to publish a guidance document on waste classification to assist waste operators 
and  competent  authorities  to  have  a  common  approach  to  waste  characterisation  and 
classification.  We  will  also  promote  the  exchange  of  best  practices  with  regard  to  test 
methods  for  the  assessment  of  substances  as  concerns  the  hazardous  property  HP  14 
‘Ecotoxic’ with a view to their possible harmonisation. 

Question:  

Should we further align the rules on hazard classification so that waste would be considered 
hazardous according to the same rules as products?  

8 Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work; Directive 
98/24/EC on the protection of the health and safety of workers from the risks related to chemical agents at work; Directive 2004/37/EC on 
the protection of workers from the risks related to exposure to carcinogens or mutagens at work. 

6 

 
 
                                                            
4. 

CONCLUSIONS AND NEXT STEPS 

These  four  issues  constitute  important  barriers  for  the  circular  economy.  From  the  input 
received, it is clear that there are challenges with the practical application on the ground, in 
terms  of  the  limited  availability  of  resources  and  knowledge  as  well  as  regarding  the 
coordination between the various actors at local, national and EU level. 

Our analysis also shows that there are legal challenges. The longer term aspiration must be to 
achieve  full  coherence  between  the  laws  implementing  waste  and  chemicals  policies.  This 
will  help  to  achieve  the  aim  that  materials  are  safe,  fit-for-purpose  and  designed  for 
durability,  recyclability  and  have  a  low  environmental  impact.  Goods  should  be  designed, 
manufactured,  traded  and  recycled  with  minimal  use  of  substances  of  concern  to  facilitate 
reuse  in  a  way  that  maximises  the  materials'  economic  benefits  and  utility  to  society  while 
maintaining a high level of human health and environmental protection. 

The policy options in the Staff Working Document cover both the immediate issues and those 
that  can  only  be  solved  over  time.  The  document  includes  several  options  per  issue  and 
invites  reflection  on  the  appropriate  balance  between  the  overall  long  term  benefits  from 
circular use of these materials and the overall long term health and environmental concerns 
relating to substances present in that material. 

We  need  to  clear  the  path  towards  a  circular  economy  in  the  Union.  We  have  some  tools 
readily  available  that  can  diminish  some  of  the  frictions,  but  we  need  more  evidence  and 
input  from  all  over  the  EU  to  ascertain  how  we  can  best  tackle  some  of  the  wider-ranging 
issues.  

We  invite  the  European  Parliament,  the  Council  and  the  Committee  of  the  Regions  and 
interested  stakeholders  to  engage  in  the  discussion  and  to  take  positions  on  the  identified 
challenges so we can define a path forward to a truly circular economy. 

The  ambition  is  that,  by  the  end  of  the  mandate  of  this  Commission  in  2019,  the  promised 
actions are already on track and are underpinned by solid evidence. The new studies we are 
launching as well as the consultation in which all stakeholders are now invited to participate 
will therefore have an instrumental role to play in bringing our work forward.  

7