COMMISSION STAFF WORKING DOCUMENT Accompanying the document 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
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

EN 

  EN 

   EUROPEAN COMMISSION  Strasbourg, 16.1.2018  SWD(2018) 20 final  COMMISSION STAFF WORKING DOCUMENT Accompanying the document 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 {COM(2018) 32 final}  
 
 
COMMISSION STAFF WORKING DOCUMENT 

accompanying the document 

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) 

INTRODUCTION 

The Commission adopted, in its Circular Economy Communication of December 20151, the 
circular economy action plan which stressed the importance of developing a well-functioning 
single  market  for  secondary  raw  materials.  This  challenge  can  be  met  if  the  legislative 
framework  for  materials  that  travel  through  the  cycle  (primary  materials,  products,  waste, 
secondary raw materials) functions at all levels within the single market.  

The development of strategic approaches on chemicals and on plastics was also announced in 
that  Communication.  At  the  heart  of  the  strategic  approach  on  chemicals  is  the  task  of 
analysing, developing and choosing options on the interface between chemicals, products and 
waste legislation. The results of the interface analysis, which are relevant to all waste streams 
and recycled materials, will feed into the future EU strategy for a non-toxic environment and 
will  also  inform  the  implementation  of  the  plastics  strategy,  in  particular  its  objective  of 
improving the economics and quality of plastics recycling. 

The objectives of the task, as set out in the Circular Economy Communication are two-fold:    

(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  chemicals  of  concern  and,  where  this  is  not  possible,  reducing  their 
presence  and  improving  the  ability  to  track  such  substances  in  both  products  and 
waste. 

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 (see Box 1).  

Furthermore,  policies  on  product  design  have  until  now  focused  more  on  energy  efficiency 
achieved  in  the  use  phase  of  the  product  and  less  on  material  design  and  composition  for 

1 COM(2015) 614 final of  02.12.2015. 

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circularity, durability and reparability. The Communication on options to address the interface 
between  chemical,  product  and  waste  legislation  puts  forward  the  idea  that  the  chemical 
objectives  of  substitution,  reduction  and  control  of  substances  of  concern  are  not  only 
complementary,  but  necessary  policy  elements  which  embody  the  implementation  of  waste 
prevention  which  is  the  first  priority  of  the  waste  hierarchy  in  the  Waste  Framework 
Directive2. 

Box 1: An example of the interface problem — DEHP in PVC 

Flexible PVC from post-consumer waste can contain up to 20 % of the plasticiser substance 
DEHP3.  This  plasticiser  is  classified  as  hazardous  due  to  its  adverse  effects  on  the  human 
reproductive  system.  It  is  known  to  be  an  endocrine  disruptor  and  is  subject  to  certain  use 
restrictions and to authorisation under REACH4. 

PVC  containing  DEHP  is  classified  as  a  hazardous  mixture  under  the  Regulation  on 
Classification,  Labelling  and  Packaging5  (CLP  Regulation)  but  in  practice,  the  mixture  is 
sometimes misclassified and managed as non-hazardous waste by some waste operators based 
on  claims  of  lack  of  bioavailability  of  the  substance.  When  such  PVC  containing  DEHP  is 
then recovered in the EU, it must comply with REACH restrictions, is subject to authorisation 
under REACH and must comply with the REACH and CLP rules for hazardous mixtures in 
order for it to reach end-of-waste status.  

There  are  no  EU  harmonised  or  national  end-of-waste  criteria  applicable  for  PVC  waste 
containing DEHP and there are no relevant national case-by-case decisions. Yet, a number of 
recycling  companies  applied  for  authorisation  to  use  the  recycled  material  under  REACH 
considering  their  PVC  containing  DEHP  no  longer  to  be  in  the  waste  phase.  Authorisation 
was granted under REACH on the condition that the recycled PVC containing DEHP actually 
had ceased to be waste in accordance with the Waste Framework Directive6. 

Lack  of  harmonisation  and  different  interpretations  between  Member  States  of  waste 
classification  and  end-of-waste  provisions  in  the  Waste  Framework  Directive  have  led  to 
significant uncertainties about the conditions under which operators must continue to manage 
and  trade  the  material  as  waste  rather  than  as  a  product.  This  leaves  such  operators  in  a 
difficult  situation.  Given  that  some  231 000  tonnes  of  flexible  PVC  are  reported  to  be 
recycled in Europe in 20167, these uncertainties do not promote confidence in the recovered 
material or further investment by recovery operators.  

2 Directive 2008/98/EC of the European Parliament and of the Council on waste (OJ L 312, 22.11.2008, p. 3–
30).  Article 4(1) of the Directive establishes the following waste hierarchy to apply as a priority order in waste 
prevention and management legislation and policy: prevention; preparing for re-use; recycling; other recovery, 
e.g. energy recovery; and disposal. 
3 Bis(2-ethylhexyl) phthalate. 
4 Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 
concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) (OJ L 396, 
30.12.2006, p. 1–849) 
5 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 (OJ L 353 31.12.2008, p.1) 
6 Article 6 of the Directive 2008/98/EC sets out the conditions necessary to achieve end-of-waste status. 
7 VinylPlus Progress report 2017. Figure includes the sum of material reported recycled as flexible PVC, flexible 
PVC applications and cable waste.   
https://vinylplus.eu/uploads/downloads/VinylPlus_Progress_Report_2017.pdf 

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This case illustrates the following frictions: 

-  PVC  containing  DEHP  is  considered  not  hazardous  by  certain  operators  under  waste 
legislation,  but  as  hazardous  under  CLP  and  REACH  leading  to  confusion  and  possible 
market disruption when PVC containing DEHP ceases to be waste; 

- PVC containing DEHP is subject to different risk management measures in the waste phase, 
where it is not necessarily considered hazardous, and under REACH, where it is hazardous, 
leading to competitive inequalities and different levels of protection; and 

-  Uncertainties  regarding  if  and  when  PVC  containing  DEHP  ceased  to  be  waste, 
complicating national enforcement and suboptimal use of resources. 

This  staff  working  document  accompanying  the  Communication  on  Options  to  Address  the 
Chemical, Product and Waste Interface, reports on the analysis performed by the Commission 
on the interface between chemical, products  and waste legislation.  It identifies the pertinent 
issues at the interface between chemical, products and waste legislation, largely supported by 
the responses from interested parties to the targeted consultation and proposes options on the 
way forward.  

The policy options have emerged based on broad discussions between, and feedback received 
from, Member State authorities for waste management and chemicals management and other 
interested parties but do not indicate a final position of the Commission and are only listed to 
enable an informed debate. Future discussions with the European Parliament, the Council and 
interested  parties  will  enable  choosing  options  and  defining  specific  actions  at  a  general  or 
sectorial level for the development of markets for sustainable secondary raw materials. 

THE VISION 

1. 
For  any  recovered  material8,  its  competitive  position  in  the  market,  vis-à-vis  the  primary 
material it replaces, is strongest when it is as close as possible to the primary material in its 
price,  performance  and  quality,  ensuring  that  the  recovered  material  may  be  suitable  for  a 
broad range of uses. This does not necessarily mean direct equivalence to primary materials- 
rather,  recovered  materials,  just  like  primary  materials,  can  be  marketed  under  different 
grades or qualities. 

The  overarching  vision  inspiring  the  development  of  the  policy  options  in  this  document  is 
therefore: 

8 It should be noted that, in the framework of waste and chemical legislation, it is legally possible for a "recycled 
material" to still be regarded as "waste" (see Case C-444/00: The Queen on the application of Mayer Parry 
Recycling Ltd v. Environment Agency and Secretary of State for the Environment, Transport and the Regions). 
In order to avoid confusion in the Communication and staff working document as to whether a  material that has 
undergone a recycling operation is a "waste" or a "product", the Commission makes the following distinction: 
a)  "recycled material" refers to material that has undergone a recycling operation but in some cases may still 
be regarded as "waste" (for example because the resulting material has not been reprocessed into materials 
comparable to the original one from which they originate and thereby the recycling process cannot be seen 
as completed); 

b)  "recovered material" refers to substances, mixtures and articles that have ceased to be waste in accordance 

with Article 6 of the Waste Framework Directive and meet their REACH requirements. 

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Materials  should  be  safe,  fit-for-purpose  and  designed  for  durability,  recyclability  and  low 
environmental impact. These materials and the articles made from them should, to the extent 
possible,  be  designed,  manufactured,  traded  and  recycled  free  from  substances  of  concern. 
The reason being that they may be reused and eventually disposed of in a way that maximises 
the  materials’  economic  benefits  and  utility  to  society  while  maintaining  a  high  level  of 
human health and environmental protection. 

For materials not fulfilling this overarching vision, the policy options in this document aim to 
launch  a  reflection  on  the  appropriate  balance  between  the  overall  long  term  benefits  from 
circular use of a material and the overall long term health and environmental concerns relating 
to substances present in that material. 

2. 

THE INTERACTION BETWEEN CHEMICALS, PRODUCTS AND WASTE POLICIES 

The  chemicals  and  waste  policy  areas  have  been  converging  over  the  last  decade.  This  is 
illustrated by the synergies work undertaken by the three UN conventions on chemicals and 
waste (the Basel Convention9, the Rotterdam Convention10 and the Stockholm Convention11), 
but most clearly recognised by mutual target 4 of the Sustainable Development Goal 12: 

"By  2020,  achieve  the  environmentally  sound  management  of  chemicals  and  all 
wastes  throughout  their  life  cycle,  in  accordance  with  agreed  international 
frameworks, and significantly reduce their release to air, water and soil in order to 
minimise their adverse impacts on human health and the environment." 

The chemicals policy objective indeed fits well with the waste policy objective. This becomes 
evident when both  policies are viewed using the waste hierarchy. Eliminating substances of 
very high concern, substituting hazardous chemicals with less hazardous ones and, where this 
is  not  possible,  minimising  the  use  of  substances  of  concern  and  tracking  them,  are  pre-
requisites  of  the  first  step  in  the  waste  hierarchy:  prevention.  The  best  way  to  prevent 
substances of concern in waste is by avoiding their use in products in the first place. This in 
turn is consistent with the priorities of the waste hierarchy, leading to high quality recovery, 
including  preparation  for  re-use  and  recycling,  in  an  environmentally  sound  way  while 
ensuring high standards of protection of human health.  

Friction  between  the  two  policy  objectives  occurs  when  the  contamination  of  the  waste 
material  is  due  to  the  presence  of  legacy  substances.  The  term,  legacy  substances,  refers  to 
substances whose use was lawful in products at the time of their production but which have 
subsequently been subjected to regulatory control by the time those products become waste. 
As our knowledge about substances of concern improves, the problem arises of how to deal 
with newly regulated substances present in older products- see the example in Box 1. Legacy 
substances in waste are therefore an inherent problem caused by the time difference between 
restrictions  on  substances  entering  into  force  and  the  time  it  takes  for  products  containing 
such substances to reach the end of their service life and become waste. 

9 Basel Convention on the control of transboundary movements of hazardous wastes and their disposal, which 
was adopted on 22 March 1989 (OJ L 39, 16.2.1993, p. 3) 
10 Rotterdam Convention on the prior informed consent procedure for certain hazardous chemicals and pesticides 
in international trade, which was adopted on 10 September 1998 (OJ L 63, 6.3.2003, p. 29) 
11 Stockholm Convention on Persistent Organic Pollutants, which was adopted on 22 May 2001(OJ L 209, 
31.7.2006, p. 3) 

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The composition of waste streams is not fully predictable or constant. Beyond the presence of 
substances  of  concern,  materials  may  also  be  affected  by  incidental  contamination.  Such 
contamination  originates  from  multiple  sources,  and  includes  for  instance  impurities  in  the 
waste  materials,  substances  from  the  use-phase  and  misuse,  degradation  products  of  the 
material, incomplete separation of materials between waste streams, and cross contamination 
with other products. This can jeopardise future uses of the material in demanding applications, 
such  as  in  food  packaging.  In  such  cases,  decontamination  technology  or  analytical  and 
quality  control  approaches,  may  be  the  only  feasible  way  to  guarantee  that  the  supply  of 
recycled materials is safe for specific end-uses. 

The  chemicals  and  product  policy  objectives  are  identical  from  the  perspective  of  chemical 
safety.  In  a  circular  economy  context,  product  policy  adds  the  additional  objectives  of 
durability, reparability and recyclability of materials. Additionally, there is potential to adapt 
existing  specific  product  legislation  (e.g.  on  toys,  cosmetics,  electrical  and  electronic 
equipment12, fertilisers, etc.) and to explore the potential of the Ecodesign Directive to further 
control the presence of substances of concern in articles. 

3. 

CONTEXT, FUTURE OUTLOOK AND CHALLENGES 

Progressing towards circularity will require a much better understanding of the barriers that 
currently exist to the uptake of secondary raw materials that can replace primary material at a 
reasonable cost and with the lowest possible use of resources (energy, water, etc.). Elements 
such  as  availability  and  sourcing  of  suitable  waste  streams  for  recycling,  cross-border 
transport of waste, availability of innovative sorting and decontamination technologies, final 
recovered  material  quality,  profit  margins  and  price  of  the  final  recovered  material  and  the 
existence  of  economic  incentives  are  all  relevant  elements  that  have  been  identified. 
Furthermore,  reputational  and  market  perception  issues  can  create  barriers  to  the  uptake  of 
recycled materials (for instance some operators will never buy recycled material that has not 
exited the waste stage in accordance with Article 6 of the Waste Framework Directive).     

Almost  no  products  are  produced  without  industrial  chemicals.  Therefore,  they  contribute 
significantly  to  human  wellbeing  and  economic  growth.  Plastics,  as  well  as  many  other 
materials such as paper, rubber, glass and steel, are man-made materials which require the use 
of  multiple chemicals in their production.  There are around 140,000 chemicals in use  today 
and all goods on the market are made of chemicals. 
However,  many  chemicals  also  pose  human  health  and  environmental  threats13.  As  our 
knowledge about the properties of many chemicals increases, more substantial concerns arise 
about  the  negative impacts  that  chemicals  may  have  on  human  health  and  the  environment. 
When a chemical is identified as hazardous in accordance with EU legislation, the reality of 
decades of prior use of that chemical must be seen in a new light: it is not that the chemical 

12 The Commission is mindful about concerns on potential overlaps between REACH and specific product 
legislation. This matter has been addressed in relation to the RoHS Directive and the POPs Regulation via the 
publication of ‘Common understanding papers’ which define how to address the interaction between the two 
legislations and REACH. 
13 A 2017 study carried out by consumer groups in a number of Member States found that a third of the 65 
samples of fast food packaging tested contained high levels of certain fluorinated substances (PFAS) which are 
highly persistent and tend to accumulate in material cycles. A Danish test of three random pizza boxes found 
levels of PFAS which were far in excess of the national guideline limit value (Forbrugerrådet 2015) 
http://kemi.taenk.dk/bliv-groennere/fast-food-packaging-contains-unwanted-fluorinated-substances  

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has suddenly become hazardous, rather it has always been hazardous throughout those years 
of use.  Decisive action will therefore be required to  manage the risks of current uses of the 
substance  and  also  to  address  the  issue  of  historic  uses  of  the  substance  which  may  have 
resulted  in  exposure,  including  via  legacy  substances  in  products.  Concerns  for  some 
substances such as lead and arsenic have been known or suspected for centuries, whereas for 
other substances, such as substances associated with smoking or asbestos, concerns are much 
more recent. Some substances are only coming under scrutiny in the last few years, such as 
per-fluorinated  compounds,  and  endocrine  disrupting  chemicals.  In  the  EU,  REACH  is  the 
main tool to obtain information about the properties of relevant chemicals and to ensure their 
safe use.  

Most materials are currently produced, consumed and disposed of in a linear economy and the 
presence  of  ever  increasing  numbers  and  volumes  of  chemicals  and  the  ever  increasing 
complexity  of  materials  might  even  reinforce  such  linearity  in  the  future  due  to  difficulties 
associated with removing or managing the component chemicals in a way that enables their 
further use after the initial material becomes waste. 
More than 80% of the environmental impact of a product is determined at the design stage14. 
It  is  therefore  at  the  design  stage  that,  to  a  large  extent,  a  substance  of  concern  (discussed 
further in Section 4.1.2) can be avoided, substituted or limited, that the use of secondary raw 
materials is decided, and where decisions to enable durability, repair, reuse, remanufacturing 
and recycling at the end of product life are made.  

Society's demands on materials keep increasing which leads to more complex and specialised 
development  of  materials  (sometimes  towards  single  intended  uses),  greater  variety  of 
compositions, smaller parts and the use of larger quantities of chemicals. These demands also 
lead to more specifications on the quality of starting materials. Supply chains are getting ever 
more global and specialised and demand for products keeps growing with an increasing share 
of the population in developing countries gaining access to consumer markets.  

In  effect,  circularity  will  require  making  better  and  sustainable  decisions  at  the  material 
design stage, for product designers to work closer together with recycling engineers and may 
also  need  recycling  activities  to  be  as  sophisticated  and  innovative  as  the  original  material 
production. This means developing materials:  

1)  which, through recycling, maintain their original material properties;  

2)  where unwanted substances can be extracted; and  

3)  which  are  compatible  with  a  safe  and  sustainable  performance  throughout  their  life-
cycle, including final disposal, with respect to human health and the environment.  

This in turn requires sustained long term investment and support, from both public and private 
sources, into research, development and creation of infrastructures to develop and implement 
innovative  collection,  sorting  and  decontamination  technologies.  This  should  enable  better 
separation of materials by categories (for example, by type of constituent material or product 
type)  and  the  effective  removal  of  substances  of  concern  in  economically  viable  industrial 

14 Eco-design your future – How ecodesign can help the environment by making products smarter. European 
Commission 2012.   https://publications.europa.eu/en/publication-detail/-/publication/4d42d597-4f92-4498-
8e1d-857cc157e6db/language-en  

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processes15.  The  development  of  rapid  and  cost-effective  analytical  methods  for  the  on-site 
screening of relevant substances of concern and the development of information systems and 
tracking  technologies  for  substances  of  concern  in  articles  are  also  important  areas  where 
further efforts are needed. 

The switch from a linear to a circular economy therefore requires a long term strategy with a 
two-fold objective:  

1)  to embed circularity in the design of new materials; and  

2)  to address the challenges related to current and future materials which are not circular.  

The options developed in this document aim to support these two objectives.  

4. 

THE OPTIONS 

The Commission has identified four main issues that are the focus of the chemical, product, 
waste interface. These four issues have been discussed with interested parties16, who largely 
agreed  with  the  Commission  about  their  relevance  and  that  options  and  possible  actions  to 
address them should follow. Another area identified by those interested parties is the use of 
ecodesign  and  other  product  policy  instruments  to  address  the  chemical  and  waste  related 
issues in products. The policy options proposed below are not necessarily exclusive of each 
other.    

4.1. 

Insufficient information about substances of concern in products and waste 

4.1.1.  The issue 

The information flow about the presence of hazardous substances in mixtures is ensured and 
regulated by the CLP Regulation and REACH. However, the provision of this information is 
not  always  ensured  and  its  availability  in  the  supply  chain  is  reduced  when  substances  or 
mixtures  are  incorporated  into  articles.  Even  less  information  is  available  when  products 
become  waste  and  are  subject  to  recovery  operations.  The  absence  of  this  information  may 
hinder the transition of materials from waste to product status and, further downstream, make 
it difficult to apply product, chemical and other legislation where such knowledge is needed. 
Some legislation does contain provisions requiring information exchange concerning mixtures 
and products (e.g. legislation on food contact materials) but, to date, it has proven difficult to 
apply these requirements as issues of confidentiality, complexity and lack of knowledge arise. 

Our knowledge about the presence and content of chemicals of concern in imported products 
and  access  to  information  about  such  imports  is  a  matter  of  particular  relevance  given  that 
imported products are a large fraction of the total flow of many product types in the EU.  

The rules set in REACH authorisation for substances in articles place the European producers 
at  a  disadvantage  vis-à-vis  non-EU  producers  importing  into  the  EU.  This  lack  of  level 
playing field has been of concern since the adoption of REACH due to its consequences on 

15 A number of demonstration projects can be found on the web www.circularly.eu. For example, “Polystyrene 
Loop: Demonstrating the economic and technical viability of closed-loop recycling of polystyrene foam 
construction waste”. http://www.circulary.eu/project/polysterene-loop/  
16 The Roadmap for the communication on the Options to Improve the Chemical, Product and Waste Interface 
was subject to public consultation. An outline of the Commission analysis on the interface was also subject to a 
targeted stakeholder consultation and has also been discuss in a dedicated meeting with national authorities 
competent for waste and chemicals. 

7 

 
 
                                                            
the competitiveness of EU industry. Consequently, the options proposed to improve the flow 
of information in the supply chain for substances of concern in products and particularly the 
availability of relevant information to waste operators must also take into account this factor. 

This means that: 

  Recyclers often have at their disposal very limited or no information about substances 
of concern in the waste they treat. This leads to difficulties complying with REACH. 
For example, the exemption for recovered materials from the obligation to register in 
REACH17  generates  uncertainty  about  quality/fitness-for-purpose  of  recovered 
material.  It also results in  high  reliance  on complex and costly  assessment  strategies 
on  incoming  waste  batches  and  on  the  final  recycled  material,  including  exhaustive 
sampling and analytical work. 

 

It is unclear whether recovered materials can be used for sensitive applications, such 
as medical devices, furniture, clothing, toys, or food contact materials. For example, in 
the  latter  sector,  where  the  safety  of  recycled  plastics  is  already  regulated,  only 
recovered PET is currently suitable to be used in food contact materials provided that 
adequate decontamination processes are used, while other recovered plastics cannot be 
used because of a lack of information on the possible presence of contaminants. 

  Consumers have limited information about substances of concern in articles making it 

difficult for them to make informed purchase decisions. 

This  results  in  reduced  trust  in  recovered  materials,  hinders  investment  in  new  recycling 
installations and impedes the market for secondary raw materials. In addition, reports by some 
consumer  associations18  and  the  Commission19  indicate  poor  implementation  of  the  limited 
supply chain communication obligations imposed by REACH20. 

4.1.2.  Policy Objective and Options 

The  policy  objective  is  to  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,  reuse,  remanufacture  and  in  the 
waste recycling process. 

Challenge 1: Defining substances of concern 

The  implementation  of  the  different  options  set  out  in  this  document  is,  to  a  large  extent, 
influenced by the meaning given to the concept of 'substances of concern'.  

17 Subject to conditions as laid down in Article 2(7)(d) of REACH. 
18 ANEC Position Paper- July, 2017: https://www.anec.eu/publications/position-papers/694-keeping-hazards-in-
the-circle-anec-position-paper-on-the-interface-between-chemicals-products-and-waste-legislation and BEUC 
Position Paper- July, 2017: http://www.beuc.eu/publications/beuc-x-2017-
084_how_to_detoxify_the_circular_economy.pdf  
19 REACH Evaluation, 2017 Report [Adoption pending at the time of publication of this Staff Working 
Document] 
20 Title IV of REACH contains a number of obligations to communicate information on substances and mixtures, 
including the requirements for safety data sheets (Article 31), the duty to communicate information down the 
supply chain for substances and mixtures not requiring a safety data sheet (Article 32), the duty to communicate 
information on substances in articles (Article 33) and the duty to communicate information on substances and 
mixtures up the supply chain (Article 34). In particular Article 33 has been reported to be very poorly 
implemented. 

8 

 
 
                                                            
Option  1 A:  substances  of  concern  are  all  substances  identified  under  REACH  as 
substances of very high concern (‘candidate list substances’) or listed in Annex VI to 
the CLP Regulation for classification of a chronic effect. 

Option 1B: substances of concern are those identified under REACH as substances of 
very  high  concern,  substances  prohibited  under  the  Stockholm  Convention  (POPs), 
specific  substances  restricted  in  articles  listed  in  Annex  XVII  to  REACH  as  well  as 
specific substances regulated under specific sectorial/product legislation21. 

Precise identification of substances of concern, either in general or sectorial substance lists is 
important to provide certainty to operators and to keep the tracking of substances manageable. 
Such tracking solutions are not suitable for addressing the risk from incidental contamination, 
and other approaches, such as analytical methods, need to be considered.  

Challenge 2: Tracking substances of concern 

The options to be considered depend on the speed and means by which tracking of substances 
of concern should be introduced. 

Option  2A:  all  substances  of  concern  should  be  tracked  by  a  set  date,  for  example 
2030.  

Option  2B:  sector-specific  tracking  solutions:  information  on  relevant  substances  of 
concern should be available to recyclers in a form commensurate to what is required22. 

Option 2C: tracking of substances of concern should remain voluntary. 
Option  2D:  tracking  of  substances  of  concern  is  not  necessary  or  suitable23  because 
information  on  chemicals  is  obtained  directly  by  analytical  means  (incoming  waste 
batches, including imported waste, and outgoing recycled or recovered materials). 
The  role  of  enhanced  supply  chain  collaboration,  promoted  by  sectorial  platforms24,  their 
associations  or  existing  extended  producer  responsibility  schemes  will  contribute  to  this 
objective. 

Certain  industries  have  recognised  the  necessity  to  track  certain  substances  in  their  supply 
chains. A compilation of existing tracking systems has been published25. The costs would be 

21 Substances which pose technical problems for recovery operations, even if not specifically flagged from the 
toxicological point of view, could also be considered. Eurometaux reports in its contribution to the targeted 
stakeholder consultation that presence of bismuth is problematic for the recycling of copper, given it is very 
difficult to separate both metals. 
22 A recent study commissioned by the Swedish EPA to the company Goodpoint AB, regarding transfer of 
information on hazardous substances in the life-cycle of electrical and electronic equipment revealed that 
recyclers cannot manage detailed product information in an effective manner. This view has been supported on 
the consultation by a number of recyclers and engineering associations which point to the need for meaningful 
aggregated information per product type / category (e.g. flat-screens). 
23 It is noted that analytical means to determine the presence of incidental contaminants may already 
be in place in some supply chains and may become increasingly used for other materials as well. In 
such supply chains, the analytical approach may be more effective than tracking. 
24 Vinyl Plus, a programme developed by the PVC value chain is an example of such platforms. 
https://vinylplus.eu/ 
25 Scientific and technical support for collecting information on and reviewing available tools to track hazardous 
substances in articles with a view to improve the implementation and enforcement of Article 33 of REACH. 
Published: 11/08/2017. https://publications.europa.eu/en/publication-detail/-/publication/58f951af-809b-11e7-
b5c6-01aa75ed71a1/language-en/format-PDF 

9 

 
 
                                                            
higher depending on the number of substances that are tracked, the earlier a system would be 
introduced and if the system would be obligatory. However the knowledge generated would 
also be higher, hence enabling an earlier switch to circularity and providing better protection 
for  humans  and  the  environment.  The  introduction  of  mechanisms  that  allow  the  legitimate 
protection of confidential business information will need to be taken into account.   

4.2. 

Addressing the presence of substances of concern in recycled materials 

4.2.1.  The issue 

Substances of concern may be present as constituents or impurities in recovered substances, 
mixtures  or  products  made  of  recycled  materials.  The  use  of  some  of  these  substances  of 
concern  may  now  be  banned  or  otherwise  restricted  even  though  they  might  be  present  in 
products already on the market or in waste streams as a consequence of their legitimate use in 
the past.  

These substances of concern (known as ‘legacy substances’) may sometimes be very difficult 
or impossible to detect and remove in a viable manner from the material being recycled. They 
may present certain hazards that could pose a risk, during recycling or in subsequent stages in 
the life of the recovered material. 

Currently there is no specific framework to deal with the presence of substances of concern in 
recycled materials and in articles made thereof. In particular, there is no agreed methodology 
to  determine  the  overall  costs  and  benefits  for  society  of  the  use  of  recycled  materials 
containing  such  substances  compared  to  disposal,  including,  inter  alia,  the  potential  of 
recovering energy from the waste and the impacts of production of primary materials in case 
recycling  is  prevented.  Specific  solutions  have  been  taken  on  an  ad  hoc  basis  (e.g.  in 
considering some restrictions or authorisations under REACH or in the development of end-
of-waste criteria), but overall, there is uncertainty for all interested parties. 

4.2.2.  Policy Objective and Options 

The  policy  objective  is  to  enable  recycling  and  improve  the  uptake  of  secondary  raw 
materials by promoting non-toxic material cycles. 

Challenge 3:  Level playing field between secondary and primary material 

Uptake of secondary raw materials is governed, not only by price considerations but largely 
by  the  credibility  of  the  material  itself,  which  may  be  able  to  perform  similarly  to  the 
equivalent  comparable  grade  of  the  primary  material  and  may  ensure  safe  use.  The  current 
technical and economic feasibility of removing substances of concern is very case-dependent. 
In  such  cases  where  the  recovered  substance  cannot  fully  match  the  quality  of  the  primary 
substance, several options on how to proceed are possible.  

Option  3A:  all  primary  and  secondary  raw  materials  should  be  subject  to  the  same 
rules. For example, under REACH, restrictions and authorisation conditions imposed 
on  primary  substances  should  apply  equally  to  recovered  materials.  Materials  not 
meeting  such  requirements  cannot  be  recycled  and  can  only  be  destined  to  energy 
recovery, final disposal or to destructive chemical recycling (feedstock recycling).  

Option  3B:  rules  on  primary  materials  could  be  derogated  from  for  secondary 
materials,  subject  to  conditions  and  to  review  within  a  defined  time  period.  Such 
decisions  should  be  substance-specific  and  based  on  overall  costs  and  benefits  to 
society  according 
includes 
considerations  of  risk,  socioeconomic  factors  and  overall  environmental  outcome 

to  an  agreed  methodology.  The  methodology 

10 

 
 
based  on  life  cycle  thinking26.  Such  analysis  could  lead  to  derogations  resulting  in 
closed-loop  or  controlled  loop  uses  or  other  specific  use  restrictions.  This  is  also 
applicable  to  products  containing  legacy  substances  where,  in  some  cases,  a  careful 
analysis  will  have  to  be  made,  for  example,  on  the  trade-off  between  allowing 
reparability  with  spare  parts  containing  substances  of  concern  versus  early 
decommissioning or obsolescence of equipment27. 

The  ultimate  aspirational  goal  should  remain  to  approximate  the  performance  and  chemical 
composition  of  recovered  materials  as  much  as  possible  to  that  of  comparable  primary 
materials. 

Challenge 4: Level playing field between EU-produced and imported articles 

A very significant proportion of the products that become waste in the EU are imported from 
outside  the  EU,  where  often  less  restrictive  chemical-related  requirements  apply.  The 
difficulties in ensuring even minimal supply chain communication with non-EU suppliers and 
the  legal  impossibility  to  apply  the  REACH  authorisation  obligation  to  articles  containing 
substances of very high concern manufactured outside of the EU clearly represents a barrier to 
achieving waste streams without substances of concern. Two options have been identified to 
address this challenge: 

Option  4A:  promoting  the  timely  use  of  restrictions.  Ensure  the  timely  use  of 
restrictions  in  REACH  and  other  product  legislation  so  that  EU  produced  and 
imported products are subject to the same rules. In the case of REACH, restrictions are 
the  only  means 
imported  articles 
(incorporation of substances of very high concern in imported articles is not subject to 
authorisation) have vis-à-vis EU produced articles (subject to authorisation). 

the  favourable 

to  address 

treatment 

that 

Option  4B:  promoting  enforcement  of  chemicals  and  product  legislation  at  EU 
borders. 

The  enhanced  enforcement  of  existing  legislation  to  prevent  the  entry  of  non-compliant 
products into the EU is necessary, not only to protect human health and the environment, but 
also to contribute to the availability of high quality material for recycling. 

Challenge 5: Design for circularity 

Option  5A:  use  of  the  Ecodesign  Directive,  or  of  other  dedicated  product  specific 
legislation as  appropriate (for example,  WEEE  or  ROHS), to introduce requirements 
for substances of concern with the purpose of enabling recovery. 

Option 5B: make use of the extended producer responsibility requirements under the 
Waste Framework Directive to promote the circular design of products. This could be 
implemented through the guidelines on the application of fees modulation. 

26 The Commission has launched a study on the development of an evidence-based approach as support to 
regulators when assessing how to manage the presence of substances of concern in recycled materials. This 
study, when completed by the end of 2018, will provide some insights on how this option could be implemented. 
27 The concept of ‘Repair as produced’, as applied under ROHS, allows spare parts for legacy equipment (i.e. 
sold before the phase-in date) to contain substances of concern which would otherwise be limited or restricted.  
Under REACH, the latest application dates and sunset dates for certain substances subject to authorisation have 
been extended to allow the use of those substances in spare parts for certain long life-cycle product sectors (e.g. 
automotive). 

11 

 
 
                                                            
Option  5C:  make  use  of  voluntary  methods  of  environmental  performance 
certification (e.g. national or EU Ecolabel of green public procurement) to introduce 
rules for substances of concern. 

Option 5D: promote voluntary approaches such as value chain platforms for exchange 
of good practice in the substitution of materials in the design phase. 

These options, which can be combined, could be further explored in the context of the circular 
economy action plan under the action related to the development of a more coherent product 
policy  framework  which  is  better  able  to  contribute  to  the  circular  economy.  This  action  is 
planned for the end of 2018. 

4.3. 

Uncertainties about how materials can cease to be waste 

4.3.1.  The issue 

There are different interpretations and procedural regimes on the way waste can cease to be 
waste  under  the  Waste  Framework  Directive.  This  situation  generates  legal  uncertainty  for 
operators  (which  in  some  cases  has  been  reported  to  affect  business  opportunities)28  and 
authorities.  It  may  create  difficulties  in  the  application  and  enforcement  of  chemical  and 
product  legislation,  which  requires,  as  a  starting  point,  to  know  whether  a  given  material 
remains  subject  to  waste  legislation  (either  as  hazardous  or  non-hazardous  waste)  or  has 
ceased to be waste29.  

The procedural options open to Member States to allow waste to achieve end-of-waste status 
include ex-ante verification and decisions by competent authorities (on the basis of European, 
national or ad hoc criteria) and/or ex-post verification of ‘self-assessment’ by industry (be it 
or not underpinned by effective enforcement and/or notification systems). These options are 
currently  being  discussed  by  the  Council  and  the  European  Parliament  under  the  ordinary 
legislative  procedure  in  the  context  of  the  Commission’s  proposal  to  review  the  EU  Waste 
Framework Directive.  

Millions of tonnes of substances, which industry believes have ceased to be waste under the 
general criteria provided in Waste Framework Directive, are placed on the EU market, having 
been  registered  under  REACH,  or  benefiting  from  an  exemption  based  on  their  recovered 
origin30. It is unclear to what extent Member States are currently allowing recyclers to place 
recovered  substances  and  mixtures  on  the  market  as  ‘non-waste’,  without  any  effective 
oversight  confirming  or  checking  their  non-waste  status  or  whether  the  claimed  REACH 
registration exemption actually applies.  

This situation may: 

28  Eurofer  and  Eurometaux  provided  in  their  response  to  the  consultation  examples  where  discrepancies  or 
difficulties  in  obtaining  end-of-waste  consideration  (or  by-product  consideration)  limit  the  possibility  of 
recycling  relevant  high  volume  inorganic  materials  such  as  final  copper  slags,  ferro-chromium  and 
ferromolybdenum slags, all of which are considered products by the producers and have been registered under 
REACH. 
29  As  referred  to  earlier  (footnote  8),  only  materials  (substances,  mixtures)  or  articles  that  have  ceased  to  be 
waste fall under chemicals and product legislation. 
30 Article 2(7)(d) of REACH exempts from registration substances which are recovered from waste in the EU, 
subject to certain conditions. 

12 

 
 
 
                                                            
  generate  legal  uncertainty  for  operators  and  authorities  (responsible  for either  waste, 
product  or  chemical  legislation  in  a  Member  State  where  it  is  recovered  and  the 
Member State where it is used as a secondary raw material); 

  create difficulties, in establishing and checking that all the conditions set in the Waste 

Framework Directive are met for a waste material; 

  create  difficulties,  in  the  application  and  enforcement  of  chemicals  and  product 
legislation, which requires, as a starting point, to know whether a given material is still 
waste  or  has  ceased  to  be  waste  (in  order  to  determine  the  applicability  of  the 
appropriate legislation). 

The  current  lack  of  certainty  on  how  end-of-waste  status  can  be  achieved  may  hinder 
investment  in  recycling  and  deter  the  take-up  of  recovered  materials.  The  reason  for  this  is 
that operators often, for commercial and reputational reasons, are willing to acquire a material 
that is deemed to be ‘recovered’ but not a material that is deemed to be ‘waste’31.  

Different  approaches  between  Member  States  on  end-of-waste  considerations  lead  to  delays 
or blockages in cross-border movement of recovered materials/waste, which, if not justified, 
could hinder achieving a single market for recovered materials.  

In  the  targeted  consultation  of  interested  parties,  a  number  of  respondents  have  noted  that 
similar  problems  to  those  reported  here  for  end-of-waste  also  arise  with  regard  to  the 
classification of production residues as 'by-products' under EU waste legislation. 

4.3.2.  Policy objective and options 

The policy objective is to enable a well-functioning single market for waste and for recovered 
materials  where  no  barriers  exist  to  their  free-movement  within  the  EU  due  to  lack  of 
harmonisation in the interpretation or implementation of provisions on end-of-waste.   

Challenge 6: Improving certainty in the implementation of end-of-waste provisions 

Option  6A:  take  measures  at  EU  level  to  bring  about  more  harmonisation  in  the 
interpretation  and  implementation  by  Member  States  of  end-of-waste  provisions  laid 
down in the Waste Framework Directive. This option could include: 

i. 

ii. 

radically  stepping  up  work  on  the  development  of  EU  end-of-waste  criteria.  This 
would  therefore  ensure  that  more  waste  streams  are  covered  by  clear  EU-wide  rules 
specifying which conditions need to be met to exit the waste regime and introducing 
support measures that would enable Member States to check compliance by recyclers 
with the exemption from REACH registration; or 

removing  the  registration  exemption  for  recovered  substances  provided  in  REACH 
thus  requiring  that  all  recovered  substances  should  be  registered  under  REACH  and 
thereby achieving end-of-waste status; or 

31  Eurometaux  refers  to  the  difficulties  to  overcome  the  prejudice  associated  with  waste  in  a  waste  to  product 
approach and explains how in Flanders (Belgium) FeMo slags are required to fulfil requirements both under the 
waste  legislation  as  well  as  under  product  requirements  for  EC  certification.  Other  examples  include  plastic 
converters, unwilling to accept plastic pellets which is still waste (source EuPR) or brick factories unwilling to 
accept end-of-life mineral wool growing media (source Rockwool BV Grodan). 

13 

 
 
 
                                                            
iii.  where  other  specific  product  legislation  provides  different  instruments  laying  down 
conditions  that  ensure  the  safe  placing  on  the  market  of  a  substance  or  mixture, 
recognise  these  conditions  as  effective  end-of-waste  criteria32  and,  where  justified, 
introduce a specific exemption from REACH registration. 

If rolled out ambitiously, option 6A(i) would require significant additional resources (e.g. in 
the form of an EU Waste Agency similar to European Chemicals Agency). As past experience 
shows that developing end-of-waste for individual waste streams typically takes two to three 
years, the criteria are likely to be controversial and rejected by decision-makers (example of 
paper  end-of-waste  criteria),  suffer  from  low  use  by  operators  (metals,  glass  end-of-waste 
criteria) and may end up in complex legislative texts (similar to the Fertilisers Regulation).  

Option 6A(ii) would place additional burdens on users of recovered substances as they would 
now be required to register under REACH, meaning that they will need to contribute to the 
data  sharing  agreements  for  registered  substances  (that  are  found  to  be  the  same  as  the 
recovered substance) and pay the registration fee. 

Whichever option or combination of options above is chosen, a recurring request from waste 
operators,  which  is  in  line  with  the  principles  of  better  regulation,  is  to  avoid  duplicating 
burdens that result from having to comply with two sets of rules: one to exit the waste phase 
and one to comply with product requirements. It is imperative that there is adequate coherence 
between the waste and the product legislation to ensure that, by compliance with a single and 
clear set of requirements, the transition from waste to product can be achieved.  

Option 6B:  take measures to ensure more consistency of practices at Member State level. 
This option could include: 

i. 

End-of-waste  status  can  only  be  achieved  following  an  ex-ante  decision  by  a 
Member State competent authority; 

ii.  A  recovery  operator  can  make  the  assessment  of  whether  end-of-waste  status  is 
achieved  (in  combination  with  an  ex-post  checking  regime  by  competent 
authorities); or 

iii.  A combination of these approaches, e.g. distinguishing on the basis of the nature 

of specific waste streams. 

The  discussion  on  these  three  different  approaches  is  currently  ongoing  as  part  of  the 
ordinary legislative procedure of the waste proposals. 

4.4. 

Difficulties  in  the  application  of  EU  waste  classification  methodologies  and 
impacts on the recyclability of materials (secondary raw materials) 

4.4.1.  The Issue 

The classification of waste as hazardous or non-hazardous, and, in particular, understanding 
when and under what circumstances waste is to be considered hazardous, is a crucial decision 
in the whole waste management chain, from generation to final treatment.  

32 An example of this could be the approach defined in Article 18 of the Commission proposal for a Regulation 
on Fertilisers, whereby end-of-waste status is recognised via compliance with the criteria set out for the different 
constituent material categories in the annex of this draft regulation. 

14 

 
 
 
 
                                                            
When  waste  is  correctly  classified  as  hazardous,  a  number  of  important  obligations  are 
triggered,  for  instance  on  labelling  and  packaging,  but  also  in  terms  of  the  appropriate 
compliant treatment. Incorrect classification of hazardous waste as non-hazardous may have 
significant  negative  consequences  on  the  handling  and  treatment,  including  recyclability  of 
the  waste  (e.g.  contamination  of  recycling  streams).  On  the  other  hand,  the  incorrect 
classification  of  waste  as  hazardous  also  has  consequences,  such  as  impacts  on  its 
management  costs,  including  transport  which,  beyond  other  considerations,  may  directly 
affect the economic viability of its collection and recycling. 

The  main  rules  for  the  classification  of  waste  are  laid  down  in  the  ‘List  of  Waste’  and  in 
Annex III to the Waste Framework Directive which lists 15 properties that may render waste 
hazardous.  These  rules  determine  whether  the  holder  of  waste  needs  to  obtain  a  hazardous 
waste management permit. 

Waste  classification  legislation  was  amended  to  be  aligned  with  CLP,  resulting  in  similar 
criteria for classification in CLP being applied to waste. However the rules sometimes include 
less restrictive limit values or criteria applied for the classification of waste.  This process was 
a cumbersome and controversial exercise, taking seven years. The difficulties and differences 
were  due  to  the  relative  cost  and  administrative  burdens  of  identifying  the  chemical 
composition  of  waste  streams  and  of  handling  hazardous  waste  compared  to  their  value, 
together with the limited capacities of hazardous waste treatment facilities. 

Inconsistent  application  and  enforcement  of  waste  classification  methodologies,  leading  to 
waste being misclassified, or classified differently in different Member States or in different 
regions  of  the  same  Member  State,  may  lead  to  uncertainty  about  the  legality  of  waste 
management  practices  of  certain  important  waste  streams  containing  substances  of  concern. 
This is particularly relevant in the case of complex material such as minerals, plastics or glass. 

The  situation  described  has  also  been  reported  to  lead  to  uncertainty  for  operators  and 
authorities in cross-border movement of waste, resulting in delays or even refusal of entry and 
thereby resulting in an inefficient internal market for waste materials in the EU. Furthermore, 
in some cases, misclassification of waste could lead to poor management of risks during waste 
management and to potential risks to human health and to the environment. 

4.4.2.  Policy Objective and Options 

The policy objective is to  ensure a more consistent  approach between chemicals and waste 
classification rules 

Challenge 7: Approximating the rules for classification of chemicals and waste. 

Option 7A: the rules for classifying waste as hazardous or non-hazardous in Annex III 
of  the  Waste  Framework  Directive  should  be  fully  aligned  with  those  for  the 
classification  of  substances  and  mixtures  under  CLP.  This  should  enable  a  smooth 
transition and placing on the market of secondary raw materials in full knowledge of 
their intrinsic properties. 

Option  7B:  hazardousness  of  waste  should  be  inspired  by  the  classification  of 
substances  and  mixtures  under  CLP,  but  not  fully  aligned  with  it.  Specific 
considerations  of  each  waste  stream  and  its  management  may  allow  wastes  to  be 
considered  as  non-hazardous  even  if  the  recovered  material  will  be  hazardous  when 
placed on the market as secondary raw material. 

The significant difficulties in agreeing on new waste classification rules suggest that Option 
7A may prove very challenging. 

15 

 
 
Challenge 8: Classifying waste taking into account the form in which it is generated. 

lesser  extent, 

to  a  greater  or 

Like  some  primary  materials,  the  constituent  substances  of  some  types  of  waste  may  be 
retained, 
the 
bioavailability/bioaccessibility of such constituent substances and their bearing on the hazard 
properties  of  the  material  is  currently  being  assessed  by  the  Commission.    Under  product 
legislation,  there  is  potential  for  the  CLP  Regulation  to  introduce  such  bioavailabilty 
considerations in hazard classification of substances and mixtures, although methodologies to 
assess this are still being developed. The waste legislation only recently provides this option 
for classifying waste for their ecotoxicity. 

in  a  matrix33.  The 

issue  of 

Given the relevance that proper classification of waste as hazardous or non-hazardous has in 
its  subsequent  management  and  potential  for  recovery,  several  options  exist  to  address  this 
issue. 

Option  8A:  once  the  rules  have  been  established  under  CLP,  waste  should  also  be 
classified taking into account the form in which it is produced, taking account of the 
bioavailability/bioaccessibility  of  the  substances  it  contains,  subject  to  reliable 
scientific information to support claims for reduced hazard classification. 

Option  8B:  under  Annex  III  of  the  Waste  Framework  Directive,  waste  should  be 
classified exclusively based on the concentration of hazardous substances it contains, 
without further consideration of bioavailability or bioaccessibility.        

5. 

NEXT STEPS 

Following the publication of the Communication and of this document the Commission will 
launch  a  public  consultation  and  encourage  discussions  with  the  European  Parliament,  the 
Council  and  interested  parties  to  choose  options  and  define  specific  actions  at  a  general  or 
sectorial level for the development of markets for sustainable secondary raw materials 

The Commission will also cooperate with ECHA, Member States and interested parties on the 
relevant technical elements identified in this document.  

33 For example, in relative terms, certain plastic matrices could release a given substance more than a glass 
matrix; this means that the same hazardous substance (e.g. lead in plastics, lead in glass) would be less 
bioavailable from certain matrices than from others. 

16