Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at the 14th Conference of the Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal with regard to certain amendments of Annexes II, VIII and IX thereto
Date: 2019-01-23
Institutions: Directorate-General for Environment, European Commission
Subjects: cross-border transport, export of waste, hazardous waste, international convention, plastic waste, pollution control measures, revision of an agreement, transport of dangerous goods, waste disposal

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   EUROPEAN COMMISSION  Brussels, 23.1.2019  COM(2019) 11 final 2019/0008 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at the 14th Conference of the Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal with regard to certain amendments of Annexes II, VIII and IX thereto  
 
 
EXPLANATORY MEMORANDUM 

SUBJECT MATTER OF THE PROPOSAL 

1. 
This proposal concerns a decision establishing the Union’s position at the 14th meeting of the 
Conference of the Parties to the Basel Convention, in connection with the envisaged adoption 
of amendments of the Annexes to the Convention. 

2. 

2.1. 

CONTEXT OF THE PROPOSAL 

The  Basel  Convention  on  the  Control  of  Transboundary  Movements  of  Hazardous 
Wastes and their Disposal 

The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and 
their  Disposal  (‘the  Convention’)  was  adopted  on  22  March  1989  and  entered  into  force  in 
1992. The European Union as well as its Member States are Parties to the Convention1. The 
Convention now binds 186 Parties. 

The Convention's cornerstone is a control system for the export, import and transit of certain 
waste.  Exports  of  waste  subject  to  the  Convention  shall  be  notified  in  advance  to  the 
competent authorities of the States of import and transit. The notification shall be made by the 
exporting  State  which  can  also  require  generators  or  exporters  to  make  such  notifications 
through  the  channel  of  its  competent  authority.  The  notifications  shall  be  made  in  writing 
containing  the  declarations  and  information  specified  in  Annex  V  A  to  the  Convention.  A 
waste  export  may  only  proceed  if  and  when  all  States  concerned  have  given  their  written 
consent (Article 6 of the Convention). 

The Convention's control system applies to hazardous waste defined in Article 1 and listed in 
Annex  VIII  to  the  Convention  and  other  waste  listed  in  Annex  II  which  contains  waste 
collected from households and residues arising from the incineration of household waste. The 
Convention also lists waste entries in Annex IX which do not fall within its scope and control 
system unless such waste contains a material belonging to a category in Annex I to an extent 
causing it to exhibit a hazardous characteristic in Annex III. 

2.2. 

The Conference of the Parties 

The Conference of the Parties to the Basel Convention is the principal decision-making body 
of the Convention. It has powers to amend the Annexes to the Convention and it meets every 
two years.  

The 14th  meeting of the  Conference of the Parties (CoP14) will take place in  April to  May 
2019, in Geneva. 

2.3. 

The envisaged act  

1 

Council  Decision  93/98/EEC  concerning  the  conclusion,  on  behalf  of  the  Community,  of  the  Basel 
Convention  of  22  March  1989  on  the  control  of  transboundary  movements  of  hazardous  wastes  and 
their disposal, OJ L 39, 16.2.1993, p. 1. 

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One  of  the  items  on  the  provisional  agenda  of  the  14th  meeting  of  the  Conference  of  the 
Parties  concerns  a  proposal  submitted  by  Norway  to  amend  certain  Annexes  to  the 
Convention (‘the envisaged act’)2. 

This envisaged act does not amount to place all plastic waste under the control mechanisms of 
the  Basel  Convention,  but  to  include  some  plastic  waste  under  such  control  mechanisms, 
while leaving other plastic waste outside these controls (so that they can continue to be traded 
without notifications by exporting/importing countries). 

The purpose of the envisaged act is to modify or add entries concerning plastic waste in: 

– 

– 

– 

Annex  II  for  non-hazardous  plastic  waste  which  should  be  subject  to  the 
Convention's control system, 

Annex VIII for hazardous plastic waste which should also be subject to  the control 
system, and 

Annex IX for non-hazardous plastic waste which should not be subject to the control 
system, unless such waste contains a material belonging to a category in Annex I to 
an extent causing it to exhibit a hazardous characteristic in Annex III.   

The proposal to amend Annexes II, VIII and IX of the Convention, submitted by Norway, was 
distributed to the Parties on 26 October 2018. With the proposal, non-hazardous plastic waste 
falling within a revised entry in Annex IX can continue to be traded between countries on the 
same  conditions  under  the  Convention  as  today,  while  plastic  waste  requiring  special 
consideration and hazardous plastic waste, in new entries in Annexes II and VIII respectively, 
fall under the Convention's control system. 

The modifications of Annexes II, VIII and IX to the Convention will come into effect in the 
EU after they have been implemented through amendments of Regulation (EC) No 1013/2006 
of the European Parliament and of the Council of 14 June 2006 on shipments of waste3. The 
changes for operators and authorities as regards exports from the EU will depend on the types 
of waste and the countries of destination. 

Exports from the EU to non-OECD countries of a number of new categories of hazardous 
plastic waste (listed in Annex VIII)will be prohibited. Exports within the OECD of such waste 
will have to follow the notification procedure. Exports from the EU to non-OECD countries 
of certain non-hazardous plastic waste included in Annex II will also be prohibited, unless the 
EU decides to  apply the notification procedure through amendments  to  Regulation  (EC) No 
1013/2006 (which is subject to review by the end-of-2020). Exports within the OECD of such 
waste will also be subject to the notification procedure. Finally,  the types of non-hazardous 
plastic  waste  falling  under  Annex  IX  to  the  Convention  could  be  exported  without  any 
controls, provided that some conditions are met, ensuring that they are easy to recycle in the 
importing country. 

The  automatic  implementation  of  the  Norwegian  proposal  into  Regulation  (EC)  No 
1013/2006  would  result  in  subjecting  intra-EU  shipments  of  wastes  newly  included  in 
Annexes II or VIII of the Basel Convention to the notification procedure. 

The procedure for amending annexes of the Convention is governed by Articles 17 and 18 of 
the  Convention.  More  particularly,  any  proposed  amendment  must  be  made  by  a  Party  and 
communicated by the Secretariat to all Parties at least six months before the meeting at which 

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proposal 

on 
The 
http://www.basel.int/TheConvention/Communications/tabid/1596/Default.aspx 
OJ L 190, 12.7.2006, p. 1. 

the  website 

available 

of 

is 

the  Basel  Convention, 

2 

see 

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it  is  proposed  for  adoption,  i.e.  by  28  October  2018  for  CoP14.  In  addition,  any  such 
amendment must be adopted at a meeting of the Conference of the Parties and may become 
effective  six  months  from  the  date  of  issuance  of  a  notification  by  the  Depositary.  The 
envisaged act will become binding on the Parties in accordance with Article 18(2)(c) of the 
Convention, which provides: “On the expiry of six months from the date of the circulation of 
the communication by the Depositary, the annex shall become effective for all Parties to this 
Convention  or  to  any  protocol  concerned,  which  have  not  submitted  a  notification  in 
accordance with the provision of subparagraph (b) above”. 

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

The  Union  should  support  amendments  of  the  annexes  to  the  Convention  to  modify  or  add 
entries concerning plastic waste in: 

– 

– 

– 

Annex  II  for  non-hazardous  plastic  waste  which  should  be  subject  to  the 
Convention's control system, 

Annex VIII for hazardous plastic waste which should also be subject to  the control 
system, and 

Annex IX for non-hazardous plastic waste which should not be subject to the control 
system, unless such waste contains a material belonging to a category in Annex I to 
an extent causing it to exhibit a hazardous characteristic in Annex III.   

Without the above amendments of the annexes to the Convention, there are significant risks 
that plastic waste will be exported to countries lacking adequate infrastructures for effective 
collection  and  environmentally  sound  management  of  waste.  The  envisaged  act  will 
contribute to: 

– 

– 

– 

improving controls on plastic waste exports, 

supporting the environmentally sound management of plastic waste, 

reducing risks that plastic waste finds its way into the environment, and 

preventing the global environmental problem of marine litter.   

– 
The European Plastics Strategy adopted on 16 January 20184 states that international action is 
key  to  tackling  the  most  significant  sources  of  plastics  litter  in  the  oceans,  i.e.  insufficient 
waste  management  infrastructure  in  developing  countries  and  emerging  economies.  The 
Plastics  Strategy  specifically  mentions  supporting  action  under  the  Basel  Convention  and 
ensuring  that  any  plastics  sent  abroad  for  recycling  are  handled  and  processed  under 
conditions  similar  to  those  applicable  in  the  EU.  The  EU  exports  a  significant  share  of  its 
plastic  waste  to  third  countries  (3  million  tons  in  2016)  where  uncertainty  remains  over  its 
treatment  and  cross-border  problems  are  increasing  in  light  of  international  developments, 
including China's recent decision to restrict imports of certain types of plastic waste.      

The provisions of the Convention are implemented in the Union through Regulation (EC) No 
1013/2006.  This  Regulation  applies  to  exports  from  and  imports  to  the  Union  as  well  as 

4 

Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European 
Economic and Social Committee and the Committee of the Regions, 'A European Strategy for Plastics 
in a Circular Economy, COM(2018(28) final   

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shipments  between  Member  States  (Article  1).  The  regulation  also  applies  within  the 
European Economic Area (the 'EEA').5  

When  the  envisaged  act  has  been  adopted  and  become  effective  it  would  need  to  be 
implemented  into  Union  law  and  more  specifically  in  Regulation  (EC)  No  1013/2006.  This 
would mean subjecting shipments within the EU and the EEA of plastic waste newly included 
in Annex II and VIII to new control measures (and a ban on export to non-OECD countries 
for  these  wastes).  While  this  situation  would  be  desirable  for  the  above  reasons  as  regards 
exports from the EU, this could have undesired and problematic effects on intra-EU and intra-
EEA  shipments  of  plastic  waste  destined  for  recycling,  as  it  would  subject  them  to  new 
notification  procedures.  These  shipments  are  already  subject  to  environmental  protection 
requirements  in  Union  legislation  on  waste  and  the  introduction  of  new  administrative 
procedures  could  make  plastic  recycling  in  the  EU  more  complicated  and  costly  while 
bringing only limited benefits from an environment perspective. 

In  order  to  maintain  the  current  situation  within  the  Union  and  the  EEA,  i.e.  without  the 
control system of the Convention for shipments of new plastic wastes, it would be necessary 
to notify the provisions concerned to the Secretariat of the Convention under Article 11 of the 
Convention.  This  Article  allows  Parties  to  enter  into  bilateral,  multilateral,  or  regional 
agreements  or  arrangements  regarding  transboundary  waste  movements  provided  that  the 
agreements  or arrangements  are compatible with the environmentally sound management of 
waste  as  required  by  the  Convention.  The  agreements  or  arrangements  shall  stipulate 
provisions  which  are  not  less  environmentally  sound  than  those  provided  for  by  the 
Convention  in  particular  taking  into  account  the  interests  of  developing  countries. 
Notifications  under  Article  11  have  been  made  for  example  concerning  an  OECD  Council 
Decision6.  

Consequently,  this  proposal  for  a  Council  decision  envisages  that  the  Union  will  notify  the 
provisions applied to shipments of the plastic waste concerned within the Union and the EEA, 
in so far as these provisions differ from the envisaged act, and specifying that our provisions 
are  based  on  a  system  of  environmentally  sound  management  compatible  with  the 
Convention,  to  the  Secretariat  in  accordance  with  Article  11  of  the  Convention.  Steps  will 
also need to be taken to inform the OECD secretariat of the above situation because of links 
between amendments of the annexes to the Convention and the above OECD decision. 

4. 

LEGAL BASIS 

4.1. 

Procedural legal basis 

4.1.1.  Principles 

Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for 
decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by 
an  agreement,  when  that  body  is  called  upon  to  adopt  acts  having  legal  effects,  with  the 
exception of acts supplementing or amending the institutional framework of the agreement.’ 

The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the 
rules of international law governing the body in question. It also includes instruments that do 

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6 

Decision of the EEA Joint Committee No 73/2008 of 6 June 2008 
C(2001))107/Final  on  the  Control  of  Transboundary  Movements  of  Wastes  Destined  for  Recovery 
Operations, http://www.basel.int/Countries/Agreements/tabid/1482/Default.aspx  

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not  have  a  binding  effect  under  international  law,  but  that  are  ‘capable  of  decisively 
influencing the content of the legislation adopted by the EU legislature’7. 

4.1.2.  Application to the present case 

The Conference of the Parties to the Basel Convention is a body set up by the Convention. 

The act which the Conference of the Parties is called upon to adopt constitutes an act having 
legal  effects.  The  envisaged  act  will  be  binding  under  international  law  in  accordance  with 
Article  18  of  the  Convention.  It  is  capable  of  decisively  influencing  the  content  of  EU 
legislation,  namely  Regulation  (EC)  No  1013/2006  of  the  European  Parliament  and  of  the 
Council of 14 June 2006 on shipments of waste. This Regulation implements the Convention 
by, inter alia, laying down the procedures for exports from and imports to the Union as well 
as shipments between Member States. The Regulation also applies within the EEA. 

When the Annexes to the Convention have been amended, these amendments would need to 
be implemented in Regulation (EC) No 1013/2006 (with the possible exception of provisions 
on intra-EU shipments of waste, as explained above).  

The  envisaged  act  does  not  supplement  or  amend  the  institutional  framework  of  the 
Agreement. 

Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU. 

4.2. 

Substantive legal basis 

4.2.1.  Principles 

The  substantive  legal  basis  for  a  decision  under  Article  218(9)  TFEU  depends  primarily  on 
the objective and content of the envisaged act in respect of which a position is taken on the 
Union’s behalf. If the envisaged act pursues two aims or has two components and if one of 
those  aims  or  components  is  identifiable  as  the  main  one,  whereas  the  other  is  merely 
incidental, the decision under Article 218(9) TFEU must be founded on a single substantive 
legal basis, namely that required by the main or predominant aim or component. 

4.2.2.  Application to the present case 

The  main  objective  and  content  of  the  envisaged  act  relate  to  the  protection  of  the 
environment. 

Therefore, the substantive legal basis of the proposed decision is Article 192(1) TFEU. 

4.3. 

Conclusion 

The  legal  basis  of  the  proposed  decision  should  be  Article  192(1),  in  conjunction  with 
Article 218(9) TFEU.  

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Judgment  of 
ECLI:EU:C:2014:2258, paragraphs 61to 64.  

the  Court  of  Justice  of  7  October  2014,  Germany  v  Council,  C-399/12, 

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2019/0008 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union at the 14th Conference of the 
Parties to the Basel Convention on the Control of Transboundary Movements of 
Hazardous Wastes and their Disposal with regard to certain amendments of Annexes II, 
VIII and IX thereto 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 192(1), in conjunction with Article 218(9) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

– 

– 

– 

(4) 

The  Basel  Convention  on  the  Control  of  Transboundary  Movements  of  Hazardous 
Wastes and their Disposal (‘the Convention’) was concluded by the Union by Council 
Decision  93/98/EEC  concerning  the  conclusion,  on  behalf  of  the  Community,  of  the 
Basel  Convention  of  22  March  1989  on  the  control  of  transboundary  movements  of 
hazardous wastes and their disposal8 and entered into force in 1992.  

Pursuant to Article 15 of the Convention, the Conference of the Parties shall consider 
and adopt, as required, amendments to the Convention. 
The  Conference  of  the  Parties,  during  its  14th  meeting  in  April  to  May  2019,  is  to 
consider the adoption of amendments of the Annexes to the Convention to modify or 
add entries concerning plastic waste in: 

Annex  II  for  non-hazardous  plastic  waste  which  should  be  subject  to  the 
Convention’s control system, 

Annex VIII for hazardous plastic waste which should also be subject to  the control 
system, and 

Annex IX for non-hazardous plastic waste which should not be subject to the control 
system, unless such waste contains a material belonging to a category in Annex I to 
an extent causing it to exhibit a hazardous characteristic in Annex III.   

A  proposal  to  amend  Annexes  II,  VIII  and  IX  of  the  Convention,  submitted  by 
Norway,  was  distributed  to  Parties  on  26  October  2018.  With  the  proposal,  non-
hazardous plastic waste falling within a revised entry in Annex IX will continue to be 
traded between countries on the same conditions under the Convention as today, while 
plastic  waste  requiring  special  consideration  and  hazardous  plastic  waste,  in  new 
entries in Annexes II and VIII respectively, would fall under the Convention’s control 
system. 

8 

OJ L 39, 16.2.1993, p. 1. 

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(5) 

(6) 

(7) 

It  is  appropriate  to  establish  the  position  to  be  taken  on  the  Union’s  behalf  at  the 
Conference  of  the  Parties,  as  the  envisaged  act  will  be  binding  on  the  Union  and 
capable of decisively influencing  the  content of  Union law, namely  Regulation  (EC) 
No  1013/2006  of  the  European  Parliament  and  of  the  Council  of  14  June  2006  on 
shipments of waste9. 

The Union should support the above  amendments of the Annexes  to  the  Convention 
since  they  will  contribute  to  improving  controls  on  plastic  waste  exports,  preventing 
exports  of  plastic  waste  to  countries  lacking  adequate  infrastructures  for  effective 
the 
collection  and  environmentally  sound  management  of  waste,  supporting 
environmentally sound management of plastic waste, reducing risks that plastic waste 
finds its way into the environment, and preventing the global environmental problem 
of marine litter. 

It is appropriate to maintain the current situation for shipments of plastic waste within 
the  Union  and  the  EEA,  and  therefore  not  use  the  control  system  of  the  Basel 
Convention  for  wastes,  which  could  be  included  in  Annex  II  and  Annex  VIII  at  the 
14th  Conference of the  Parties to  the Basel  Convention. The Union should  therefore 
notify  provisions  of  Union  legislation  applied  to  shipments  of  the  plastic  waste 
concerned within the Union and the EEA, in so far as these provisions differ from the 
envisaged  act,  and  specifying  that  our  provisions  are  based  on  a  system  of 
environmentally sound management compatible with the Convention. This notification 
shall be made to the Secretariat of the Convention in accordance with Article 11 of the 
Convention. 

HAS ADOPTED THIS DECISION: 

Article 1 

1. 

The position to be taken on the Union’s behalf at the 14th meeting of the Conference 
of the Parties to the Basel Convention shall be the following, subject to paragraph 2: 

The Union supports amendments of the Annexes to the Convention to modify or add entries 
concerning plastic waste in: 

– 

– 

– 

2. 

Annex  II  for  non-hazardous  plastic  waste  which  should  be  subject  to  the 
Convention’s control system, 

Annex VIII for hazardous plastic waste which should also be subject to  the control 
system, and 

Annex IX for non-hazardous plastic waste which should not be subject to the control 
system, unless such waste contains a material belonging to a category in Annex I to 
an extent causing it to exhibit a hazardous characteristic in Annex III. 

When  the  envisaged  act  has  been  adopted  by  the  Conference  of  the  Parties  to  the 
Basel  Convention,  the  Union  will  notify  to  the  Secretariat  of  the  Convention,  in 
accordance  with  Article  11  of  the  Convention,  provisions  of  Union  legislation 
applied  to  shipments  of  the  plastic  waste  covered  by  the  envisaged  act  within  the 
Union and the EEA, in so far as these provisions differ from the envisaged act.  

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OJ L 190, 12.7.2006, p. 1. 

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This Decision is addressed to the Commission. 

Done at Brussels, 

Article 2 

For the Council 
The President 

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