COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the document Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Annexes IV and V to Regulation (EU) 2019/1021 of the European Parliament and of the Council on persistent organic pollutants
Date: 2021-10-28
Institutions: Directorate-General for Environment, European Commission
Subjects: dangerous substance, environmental protection, international convention, market approval, organic chemical, organic pollution, pollution control measures, protocol to an agreement, public health, waste management

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 28.10.2021  SWD(2021) 299 final  COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the document Proposal for a  REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  amending Annexes IV and V to Regulation (EU) 2019/1021 of the European Parliament and of the Council on persistent organic pollutants    {COM(2021) 656 final} - {SEC(2021) 379 final} - {SWD(2021) 300 final} - {SWD(2021) 301 final}  
 
 
Subsidiarity Grid 

1.  Can the Union act? What is the legal basis and competence of the Unions’ intended action? 

1.1 Which article(s) of the Treaty are used to support the legislative proposal or policy initiative? 

The legal basis of the POPs Regulation is Article 192 of the Treaty on the Functioning of the European 
Union  that  effectively  sets  the  manner  in  which  Article  191  of  the  Treaty  should  be  implemented.  
Article 191 addresses EU policy on the environment that must contribute to pursuit of the following 
objectives: 

-  preserving, protecting and improving the quality of the environment, 
-  protecting human health, 
-  prudent and rational utilisation of natural resources, 
-  promoting  measures  at  international  level  to  deal  with  regional  or  worldwide 

environmental problems, and in particular combating climate change. 

1.2 Is the Union competence represented by this Treaty article exclusive, shared or supporting in 
nature? 

In accordance with the Article 5 of the TFEU, the Union shall act only if and in so far as the objectives 
of  the  proposed  action  cannot  be  sufficiently  achieved  by  the  Member  States,  but  can  rather,  by 
reason of the scale or effects of the proposed action, be better achieved at Union level. In the area  
of environmental policy, including regulating POP substances, the Union’s competence is shared. The 
necessity  of  the  POPs  Regulation  and  its  EU-added  value  have  been  clearly  recognised  throughout 
the years.   

Subsidiarity does not apply for policy areas where the Union has exclusive competence as defined in 
Article 3 TFEU1. It is the specific legal basis which determines whether the proposal falls under the 
subsidiarity control mechanism. Article 4 TFEU2 sets out the areas where competence is shared 
between the Union and the Member States. Article 6 TFEU3 sets out the areas for which the Unions 
has competence only to support the actions of the Member States. 

2.  Subsidiarity Principle: Why should the EU act? 

2.1 Does the proposal fulfil the procedural requirements of Protocol No. 24: 

-  Has there been a wide consultation before proposing the act? 
- 

Is there a detailed statement with qualitative and, where possible, quantitative indicators 
allowing an appraisal of whether the action can best be achieved at Union level? 

The inception Impact Assessment accompanying this measure was subject to a thorough stakeholder 
consultation  to  ensure  that  the  views  of  different  organisation  were  duly  represented  and 
considered. Given the technical nature of the measure being considered, and its high granularity, the 
exercise was primarily addressed to professional, academic and industrial/sectorial stakeholders, as 
well as to representatives of the civil society such as NGOs, consumer associations and trade unions.  
In addition, a targeted stakeholder consultation was carried out in the context of the study carried 
out  in  support  of  Impact Assessment,  comprising  all  aspects  relevant  to  said  assessment,  including 

1 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12008E003&from=EN  
2 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12008E004&from=EN  
3 https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008E006:EN:HTML  
4 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12016E/PRO/02&from=EN  

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socio-economic  elements.  This  was  done  by  means  of  an  electronic  questionnaire  and  interviews 
with  stakeholders  representing  key  sectors  and  organisations  concerned.  A  derogation  from 
performing  the  12-week  public  consultation  prescribed  by  the  Better  Regulation  Guidelines  was 
granted  by  the  Cabinet  of  the  Commissioner  for  Interinstitutional  Relations  and  Foresight.  The 
rationale for this exception lies in the fact that a public consultation regarding the societal concern 
about  substances  of  concern  in  recycled  materials  had  recently  been  performed  addressing  the 
broader, less technical aspects of this measure and therefore, this information was already available 
and would be  used in support of the current measure. A summary report of that  consultation was 
published on 28 February 2019. 

The explanatory memorandum and the impact assessment (chapter 3) for the review of the Waste 
annexes of the POPs Regulation contain a section on the principle of subsidiarity. Please see the reply 
to question 2.2 below 

2.2 Does the explanatory memorandum (and any impact assessment) accompanying the 

Commission’s proposal contain an adequate justification regarding the conformity with the 
principle of subsidiarity? 

POP  substances  are  transported  across  internal  EU  boundaries  far  from  their  sources.  Avoiding 
releases  from  waste  is  a  priority  in  this  respect.  The  protection  of  the  environment  and  of  human 
health through a system that guarantees the sound management of POP waste can only be efficient 
if  common  rules  are  defined  and  established  at  the  EU  level.  Therefore,  the  objectives  of  the 
proposal cannot be achieved by the Member States on their own because a harmonised approach is 
needed  to  ensure  that  the  Union,  as  a  Party  to  the  Stockholm  Convention,  meets  its  international 
obligations.  
It  should  be  noted  that  the  obligations  regarding  the  review  of  Annexes  IV  and  V  of  the  POPs 
Regulation  stem  from  the  existing  legal  framework  and,  therefore,  considerations  regarding 
subsidiarity were already assessed by the co-legislator, upon adoption of the basic Act.  

2.3 Based on the answers to the questions below, can the objectives of the proposed action be 

achieved sufficiently by the Member States acting alone (necessity for EU action)? 

As indicated above, the objectives of the proposal cannot be achieved by the Member States on their 
own because a harmonised approach is needed to ensure that the Union, as a Party to the Stockholm 
Convention, meets its international obligations.  

(a)  Are there significant/appreciable transnational/cross-border aspects to the problems being 

tackled? Have these been quantified? 

The  problems  caused  by  POP  substances,  including  those  in  scope  of  this  proposal,  are  related  to 
their intrinsic physical and chemical properties, to how and where they have been used and to the 
adverse effects that their progressive release has on the health of human beings, of ecosystems and 
on  the  services  these  provide.  In  one  way  or  another  all  POP  substances  are  recognised  to  have 
adverse, generally long-term, effects upon living organisms. They persist for a very long time in the 
environment and in our bodies and can be transported unchanged to almost any remote point of the 
globe, far away from where they were produced or used. This global distribution of pollution caused 
by POPs and their long-range transport and transnational relevance is one of the main reasons that 
motivated the creation of the Stockholm Convention and which justify the need for EU action. 

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(b)  Would national action or the absence of the EU level action conflict with core objectives of 

the Treaty5 or significantly damage the interests of other Member States? 

The  possibility  to  achieve  a  harmonised  implementation  of  the  environmental  and  human  health 
protection objectives of the Treaty, as regards the management of waste containing or contaminated 
with POP substances, would be largely undermined via uneven implementation if this action was left 
to  the  individual  action  of  the  Member  States,  rather  than  to  action  at  EU  level  that  is  already 
required under the POPs Regulation.  

(c)  To what extent do Member States have the ability or possibility to enact appropriate 

measures? 

Most  of  the  provisions  under  the  POPs  Regulation  lead  to  ‘maximum  harmonisation’  and  do  not 
make it possible for Member States to deviate from them. The recitals of the POPs Regulation state 
that  for  an  adequate  achievement  of  the  objectives  of  the  Regulation  it  is  necessary  to  ensure 
‘coherent and effective implementation of the Union obligations’ at international level and that the 
Regulation  establishes  a  ‘framework  for  Union  assessment  and  authorisation  schemes’.  As  regards 
waste recital 14 in particular states that ‘to ensure a high level of protection, common concentration 
limits […] should be established, monitored and enforced’. Consequently, any deviation from having 
EU-wide  assessments  and  decisions  could  endanger  the  necessary  coherence  and  effectiveness  of 
the measures taken at Union level.  

(d)  How does the problem and its causes (e.g. negative externalities, spill-over effects) vary 

across the national, regional and local levels of the EU? 

Pollution by POPs and their adverse effects on the health of humans and of the environment has a 
global dimension given the persistence, previous widespread use and long-range transport of the 
POP substances concerned. Therefore, although there may be specific national, regional or local 
considerations (e.g. regarding the number and location of contaminated sites), the regulation and 
management of POP waste has a global dimension that requires action at EU level.  

(e)  Is the problem widespread across the EU or limited to a few Member States? 

Given the persistence, previous widespread use and long-range transport of the POP substances 
concerned, the problem affects all EU Member States.  

(f)  Are Member States overstretched in achieving the objectives of the planned measure? 

The  general  objectives  of  the  planned  measure  are  those  already  established  under  the  POPs 
Regulation.  These  are  further  achieved  by  the  listing  of  new  POP  substances  in  Annexes  IV  and  V, 
thereby  ensuring  the  sound  management  of  waste  consisting  or  contaminated  by  the  POP 
substances  concerned.  Member  States  implement  and  report  on  the  implementation  of  their 
obligations under the POPs Regulation since the year 2004, when the Regulation was adopted. 

(g)  How do the views/preferred courses of action of national, regional and local authorities 

differ across the EU? 

The  POPs  Regulation  implements  the  EUs  international  commitments  under  the  Stockholm 
Convention  and  addresses  a  problem  which  is  global  in  nature.  To  our  knowledge  there  are  no 
significant discrepancies in terms of the policy that underpins the POPs Regulation among national, 
regional or local authorities.  

5 https://europa.eu/european-union/about-eu/eu-in-brief_en  

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2.4 Based on the answer to the questions below, can the objectives of the proposed action be 

better achieved at Union level by reason of scale or effects of that action (EU added value)? 

The objectives of the proposal cannot be achieved by the Member States on their own because a 
harmonised approach is needed to ensure that the Union, as a Party to the Stockholm Convention, 
meets its international obligations. 

(a)  Are there clear benefits from EU level action?  

Article 3(6) of the POPs Regulation determines that waste consisting of, containing or contaminated 
“by  any  substance  listed  in  Annex  IV”,  is  regulated  by  Article  7.  That  article  determines  how  POP 
waste  should  be  controlled  and  managed  in  the  Union.  Together  with  Annexes  IV  and  V,  Article 7 
provides  the  framework  to 
implement  the  obligation  of  ensuring  environmentally  sound 
management  of  waste,  established  under  the  Stockholm  Convention  (and  under  the  Basel 
Convention). If the limit values for POPs in waste proposed in this measure were to be derived and 
enacted  by  national  measures,  there  is  a  clear  risk  of  disharmonised  implementation,  resulting  in 
differing levels of environmental and human health protection and differences in the way in which 
such waste would be managed in the different Member States. Therefore there is a clear benefit of 
EU level action, already recognised by the co-legislator in the POPs Regulation.  The current measure 
contributes to implementing existing provisions via technical amendments of Annexes IV and V.  

(b)  Are there economies of scale? Can the objectives be met more efficiently at EU level (larger 

benefits per unit cost)? Will the functioning of the internal market be improved? 

If  national  regulations  were  in  place,  cross-border  effects  could  appear  such  as  imbalances  in  the 
level of treatment of POP waste and there would be a risk of fragmentation of the Internal Market 
for  the  associated  waste  and  recovered  materials,  leading  to  unfair  competition  and  uneven 
protection of human health and the environment.  

(c)  What are the benefits in replacing different national policies and rules with a more 

homogenous policy approach? 

Following  from  the  reasoning  above,  providing  common  limits  and  treatment  standards  for  POP 
waste,  including  those  that  enable  the  recycling  of  certain  materials  from  POP  waste,  provides  a 
common  level  of  human  health  and  environmental  protection,  as  regards  management  of  POPs 
waste,  throughout  the  EU.  In  addition  it  also  provides  legal  certainty  and  thereby  contributes  to 
enhancing  the  recycling  of  materials  from  waste,  for  instance  from  waste  electrical  and  electronic 
equipment (WEEE), and the uptake of secondary raw materials in the EU. 

(d)  Do the benefits of EU-level action outweigh the loss of competence of the Member States 
and the local and regional authorities (beyond the costs and benefits of acting at national, 
regional and local levels)? 

For the reason of harmonised implementation of the international obligations of the EU and in order 
to  provide  a  common  level  of  protection  and  clear  rules  on  the  management  of  the  POP  waste 
concerned, the benefits of EU level action outweigh any possible loss of competence of the Member 
States  on  this  matter.  The  obligations  under  the  POPs  Regulation,  and  the  (limited)  flexibility  that 
Member  States  have  in  applying  some  of  its  provisions  is  contained  in  the  existing  Regulation  and 
was recently reviewed and validated by the co-legislator during the recast of the POPs Regulation in 
2019.  

(e)  Will there be improved legal clarity for those having to implement the legislation? 

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Yes. Common limit values for the management of POP waste brings harmonisation and legal clarity as 
regards what can and cannot be done with POP Waste, providing a level playing field throughout the 
EU.  

3.  Proportionality: How the EU should act 

3.1  Does the explanatory memorandum (and any impact assessment) accompanying the 

Commission’s proposal contain an adequate justification regarding the proportionality of the 
proposal and a statement allowing appraisal of the compliance of the proposal with the 
principle of proportionality? 

The POPs Regulation requires the consideration of proportionality as indicated in its recital 34.  The 
principle of proportionality, as laid down in Article 5 of the Treaty on European Union, seeks to set 
actions taken by EU institutions within specified bounds. The measures proposed are limited to what 
is  necessary  to  achieve  its  objectives  and  take  into  account  the  provisions  in  Article  5  of  Protocol 
number  2  to  the  Treaty,  on  the  application  of  the  principles  of  subsidiarity  and  proportionality, 
which  indicate  that  “draft  legislative  acts  shall  take  account  of  the  need  for  any  burden,  whether 
financial  or  administrative,  falling  upon  the  Union,  national  governments,  regional  or  local 
authorities, economic operators and citizens, to be minimised and commensurate with the objective 
to be achieved”.  

3.2 Based on the answers to the questions below and information available from any impact 
assessment, the explanatory memorandum or other sources, is the proposed action an 
appropriate way to achieve the intended objectives? 

All aspects regarding the general motivation to act, the instrument chosen and similar considerations 
were  addressed  and  validated  by  the  co-legislator  during  the  recast  of  the  POPs  Regulation  in  the 
year 2019.  In revising Annexes IV and V the Commission has limited room of manoeuvre. In practice 
the Commission has to propose the listing of new substances identified as POPs under the Stockholm 
Convention  in  Annex  IV  and  V  (to  meet  its  international  commitments  under  the  Convention).  For 
substances listed in Annex IV (and V) the Commission has discretion on the choice of the numerical 
values  that  will  be  proposed  (in  establishing  a  value  for  the  first  time  or  in  deciding  to  review  it), 
given that the “low POP content” values provisionally listed in Table 2 of the General POPs Technical 
Guidelines  developed  under  the  Basel  Convention  are  not  legally  binding.  The  possible  values  for 
these  limits  define  the  different  options  considered  in  the  impact  assessment  supporting  the 
initiative. 

(a)  Is the initiative limited to those aspects that Member States cannot achieve satisfactorily on 

their own, and where the Union can do better? 

Yes. It should be noted that in revising Annexes IV and V of the POPs Regulation, the Commission has 
limited room of manoeuvre. In practice the Commission has to propose the listing of new substances 
identified  as  POPs  under  the  Stockholm  Convention  in  Annex  IV  and  V  (to  meet  its  international 
commitments under the Convention). For substances listed in Annex IV (and V) the Commission has 
discretion on the choice of the numerical values that will be proposed, this being the subject of the 
different options analysed in the impact assessment. See further explanation on the added value of 
EU action in section 2.4. 

(b)  Is the form of Union action (choice of instrument) justified, as simple as possible, and 

coherent with the satisfactory achievement of, and ensuring compliance with the objectives 
pursued (e.g. choice between regulation, (framework) directive, recommendation, or 
alternative regulatory methods such as co-legislation, etc.)? 

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Under  Article  15(2)  of  the  POPs  Regulation,  the  Commission  must,  where  appropriate,  make 
legislative  proposals  to  amend  Annexes  IV  and  V  to  the  Regulation  in  order  to  adapt  them  to  the 
changes  to  the  list  of  substances  set  out  in  the  Annexes  to  the  Convention  or  the  Protocol  or  to 
modify  existing  entries  or  provisions  in  the  Annexes  to  this  Regulation  in  order  to  adapt  them  to 
scientific and technical progress. Consequently the Commission has no choice in the  instrument  to 
amend  Annexes  IV  and  V  of  the  Regulation,  given  such  instrument  (a  legislative  proposal  for  a 
Regulation) is already defined under existing provisions under the Regulation.  

(c)  Does the Union action leave as much scope for national decision as possible while achieving 
satisfactorily the objectives set? (e.g. is it possible to limit the European action to minimum 
standards or use a less stringent policy instrument or approach?) 

The proposed measure proposes  limits  for certain POP substances  in waste, according to the rules 
and with the flexibility mechanisms validated by the co-legislator in the POPs Regulation. The choice 
of  the  substances  listed  results  from  the  EUs  international  commitments  under  the  Stockholm 
Convention  and  the  imposition  of  common  limit  values  is  considered  to  be  the  minimum 
requirement  to  ensure  harmonised  implementation.  Article 7(4)(b)  of  the  POPs  Regulation enables 
Member  States  to  allow  certain  types  of  waste  exceeding  the  values  set  in  Annex  IV  of  the 
Regulation, to be treated differently, in a way that that does not ensure the destruction of the POP 
substances in the waste.  

(d)  Does the initiative create financial or administrative cost for the Union, national 

governments, regional or local authorities, economic operators or citizens? Are these costs 
commensurate with the objective to be achieved? 

The proposed initiative does not create additional financial or administrative costs for the Union. It 
does  however  have  some  negative  economic  impacts  on  industry  stakeholders,  including  waste 
operators,  many  of  which  are  distributional  in  nature.  These  impacts  are  concluded  to  be 
proportionate and commensurate with the objectives proposed.  

The principle of proportionality has been  duly  considered  in the  impact assessment  supporting the 
measure. The methodology to set the limit values, explained in Annex IV of the impact assessment, 
ensures  that  limit  values  are  feasible  and  implementable  for  all  relevant  waste  streams.  When 
assessing the proportionality of the proposed limit values, an assessment of economic feasibility for 
the main operators affected is carried-out. Each assessment is case-specific and made on the basis of 
available information. Aspects such as the number, size and nature of stakeholders affected and their 
estimated  capacity  to  absorb  additional  costs  and  investments,  are  taken  into  account,  normally 
based  on  a  qualitative  analysis.  An  analysis  of  the  impacts  of  the  preferred  policy  options 
(representing an Annex IV limit value for each substance in scope) is summarised in section 8.2 of the 
impact assessment report.  

(e)  While respecting the Union law, have special circumstances applying in individual Member 

States been taken into account? 

As  indicated  above,  Article  7(4)(b)  of  the  POPs  Regulation  enables  Member  States’  competent 
authorities  to  allow  certain  types  of  waste  exceeding  the  values  set  in  Annex  IV  of  the  Regulation, 
subject  to  certain  conditions,  to  be  treated  differently,  in  a  way  that  that  does  not  ensure  the 
destruction  of  the  POP  substances  in  the  waste.  This  allows  to  take  into  account  certain  national 
specificities associated to certain types of waste and treatment capacities available.   

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