Documents considered by the Committee on 20 January 2016 - European Scrutiny Contents

1 EU legislation on waste

Committee's assessment Legally and politically important
Committee's decisionNot cleared from scrutiny; recommended for debate in European Committee A; together with the Action Plan for the Circular Economy previously recommended for debate (decision reported 6 January 2016); drawn to the attention of the Environment, Food and Rural Affairs Committee and Environmental Audit Select Committee
Document details(a) Proposal for a Directive amending Directive 2008/98/EC on waste; (b) Proposal for a Directive amending Directive 94/62/EC on packaging and packaging waste; (c) Proposal for a Directive amending Directive 1999/31/EC on the landfill of waste; (d) Proposal for a Directive amending Directives 2000/53/EC on end-of-life vehicles, 2006/66/EC on batteries and accumulators and waste batteries and accumulators, and 2012/19/EU on waste electrical and electronic equipment
Legal base(a), (c) and (d) Article 192(1) TFEU; ordinary legislative procedure; QMV; (b) Article 114 TFEU; ordinary legislative procedure; QMV
DepartmentEnvironment, Food and Rural Affairs and Business, Innovation and Skills
Document Numbers(a) (37377), 14975/15 + ADDs 1-3, COM(15) 595;

(b) (37378), 14976/15 + ADDs 1-3, COM(15) 596;

(c) (37376), 14974/15 + ADDs 1-2, COM(15) 594;

(d) (37375), 14973/15 + ADDs 1-2, COM(15) 593

Summary and Committee's conclusions

1.1 In its Communication[1] setting out an Action Plan for the Circular Economy, the Commission identified a number of ways in which amendments might be made to various EU legislative measures relating to waste. These draft Directive accordingly proposes a number of changes, notably to Directive 2008/98 on waste, Directive 94/62/EC on packaging and packaging waste, and Directive 1999/31/EC on the landfill of waste. These include more stringent targets for the recycling of municipal waste, and of packaging and packaging waste, as well as provisions which would restrict the quantity of waste sent for landfill.

1.2 The Government says that, given the long-timescale involved, and the various technical and financial uncertainties, it is very difficult at this stage to give a precise estimate of the likely cost, and that further work is underway to fully assess the implications for the UK. In the meantime, it suggests that, depending upon a range of assumptions, the costs could be significant, and it has also expressed concern that proposals to set out more stringent criteria where Member States operate producer responsibility, and to require them to put in place financial incentives to achieve recycling objectives, do not comply with the principle of subsidiarity.

1.3 This is clearly a wide-ranging and significant package of legislation which seeks to give effect to the proposals set out in the Commission's Action Plan for a circular economy for Europe, and which will impact upon a wide range of interests, including Government at all levels; waste management companies; producers, especially of packaging; those involved in the processing manufacture and distribution of food; and both businesses generally and (crucially) individual households, particularly in England. Also, although a range of uncertainties mean that it is not possible at this stage for the Government to give a precise indication of the likely costs, it is evident that these could be considerable, in addition to which the Government has expressed concerns over the subsidiarity implications of a couple of aspects of the package proposed.

1.4 The Government has indicated that the provisions of the Waste Framework proposal relating to "Extended Producer Responsibility" (EPR) and "Pay as You Throw" (PAYT) do not comply with the principle of subsidiarity, the first because "the decision to apply EPR is best taken at a national level" and the latter because "the commission should not be able to mandate fiscal measures upon Member States". We have two preliminary comments. First that this matter illustrates the difficulty of national parliaments meeting the eight week deadline for lodging subsidiarity reasoned opinions on complex matters such as this, particularly when that period includes the Christmas adjournment. Second it is disappointing that the Government has not fleshed out its subsidiarity objections more, for example by addressing the details of the Commission's justification in the Impact Assessments that are relevant, particularly in the light of the conclusions of our predecessor Committee on the earlier commission proposals which this one largely follows.[2] As to the substance we have decided not to issue a reasoned opinion at this stage on the grounds similar to those stated by our predecessor Committee, namely that (a) the proposal amends existing legislation in an area where there is a long established EU intervention, (b) the Commission's Impact Assessment to the predecessor proposal provided some evidence of environmental benefit and its internal market justification was ostensibly credible, (c) the Government's objection is limited to relatively small elements of the package. In addition we take into account the fact that the proposal does not require EPR but sets conditions if Member States choose to have it. The obligation for EPR to cover the entire cost of waste management for the products concerned, to which the Government previously objected specifically as a matter of subsidiarity, appears to be more a question of how the objective should be met rather than whether it should be addressed at EU level.

1.5 Against that background, we are clear that this proposal raises a number of important issues, and that it should be debated in European Committee A,[3] together with the Action Plan for a circular economy, recommended for debate on 6 January 2016.

Full details of the documents: (a) Proposal for a Directive amending Directive 2008/98/EC on waste: (37377), 14975/15 + ADDs 1-3, COM(15) 595; (b) Proposal for a Directive amending Directive 94/62/EC on packaging and packaging waste: (37378), 14976/15 + ADDs 1-3, COM(15) 596; (c) Proposal for a Directive amending Directive 1999/31/EC on the landfill of waste: (37376), 14974/15 + ADDs 1-2, COM(15) 594; (d) Proposal for a Directive amending Directives 2000/53/EC on end-of-life vehicles, 2006/66/EC on batteries and accumulators and waste batteries and accumulators, and 2012/19/EU on waste electrical and electronic equipment: (37375), 14973/15 + ADDs 1-2, COM(15) 593.


1.6 On 6 January 2016, we reported on a Commission Communication setting out an Action Plan for the Circular Economy, intended to encourage the retention of added value in products and to eliminate waste. This identified a number of areas in which amendments might be made to existing EU legislation related to waste, and these draft Directives accordingly proposes changes to:

·  Directive 2008/98 on waste;

·  Directive 94/62/EC on packaging and packaging waste;

·  Directive 1999/31/EC on the landfill of waste;

·  Directive 2000/53/EC on end-of-life vehicles;

·  Directive 2006/66/EC on batteries and accumulators and waste batteries and accumulators; and

·  Directive 2012/19/EU on waste electrical and electronic equipment.


1.7 This is commonly known as the Waste Framework Directive, and is the principal EU instrument dealing with waste. Its main provisions include:

·  key definitions, notably of "waste" and "hazardous waste", "prevention", "re-use", "treatment", "recovery", "recycling" and "disposal";

·  the establishment of a waste hierarchy, with priority being given to prevention, followed by preparation for re-use, recycling, other recovery, and disposal;

·  provisions to determine when a product ceases to be waste (thereby achieving "end-of-waste" status), and hence is not included in various statutory recovery and recycling targets;

·  introducing the concept of extended producer responsibility, enabling Member States to require producers to accept returned products (and any waste remaining after their use), as well as financial responsibility for their subsequent management;

·  requiring Member States to take the measures necessary to ensure that waste undergoes recovery, is re-used and recycled, or, if disposed, is done so in a way which protects human health and the environment;

·  setting out responsibilities for waste management by producers or other permit holders;

·  provisions relating to hazardous waste, waste oils and bio-waste;

·  setting out the basis on which Member States should issue permits for establishments carrying out waste treatment (including exemptions for those recovering waste or disposing of their own non-hazardous waste on site);

·  enabling the Commission to set technical minimum standards for treatment activities requiring a permit, and requiring a register to be kept for certain undertakings which are not subject to permit requirements;

·  requiring Member States to ensure that their authorities establish waste management plans containing specified information on the content and level of waste, and the measures being taken to deal with it, as well as waste prevention programmes; and

·  setting out provisions regarding inspections, record keeping, and enforcement and penalties, together with requirements on Member States to provide the Commission with information on the Directive's implementation.

1.8 It also sets out the basis for the Commission to introduce detailed implementing measures under the regulatory procedure with scrutiny applying at that time.

1.9 This proposal would amend Directive 2008/98/EC by:

·  including a more detailed definition for "municipal waste", new definitions of "bio-waste", "backfilling", and "non-hazardous waste", and aligning definitions from the Packaging and Packaging Waste and Landfill Directives with those in the Waste framework Directive;

·  setting a target whereby 65% of municipal waste would be recycled by 2030, with an interim target of 60% for 2025, and introducing a single calculation method and common methodology for reporting against these targets;

·  strengthening the provisions of any extended producer responsibility schemes operated by Member States by requiring that these should encourage the design of products to reduce their environmental impact, and comply with a minimum set of operational and financial conditions;

·  requiring Member States to promote the use of economic instruments to provide incentives for the application of the waste hierarchy;

·  requiring Member States to take measures to reduce the generation of food waste, with new requirements to assess and report on such waste using a common methodology;

·  requiring the separate collection of bio-waste by 2025 where this is technically, environmentally and economically practicable, and that Member States should encourage measures for its recycling or safe treatment;

·  introducing measures to promote sorting systems for construction and demolition waste, as well as (at least) wood, aggregate, metals, glass and plaster;

·  allowing Member States to extend exemptions from the requirement to have a permit for the collection, transport, disposal or recovery of waste to businesses collecting or transporting small quantities of non-hazardous waste;

·  introducing electronic registries of hazardous waste producers to strengthen existing data recording requirements;

·  the inclusion in national waste management plans of measures to combat littering, and to deal with waste containing significant quantities of critical raw materials; and

·  empowering the Commission to adopt delegated and implementing acts for a range of activities to supplement the proposed Directive, thus implementing amendments to the Lisbon Treaty.


1.10 The directive was introduced in 1994 in order to harmonise national measures in this area, with the dual aim of reducing the impact of packaging on the environment and of underpinning the internal market. It requires Member States to ensure that measures are taken to prevent the production of packaging waste, that packaging is re-used, and that systems are established to provide for the return of used packaging from the consumer or from the waste stream so as to channel it into the most appropriate waste management alternatives.

1.11 It also set Member States a number of initial targets for the recovery of packaging waste and material, and made provision for the Council to establish subsequent targets. The Directive was amended by Directive 2004/12/EC, which in particular required Member States to achieve by the end of 2008 an overall recovery and recycling target (expressed as a percentage by weight) for all packaging, with separate minimum sub-targets for specific materials contained in packaging waste (glass, paper and board, metals, plastics and wood). It also introduced the concept of producer responsibility and of promoting energy recovery where this is economically and environmentally preferable to recycling.

1.12 The Commission has now proposed that the relevant definitions in Directive 94/86/EC should be aligned with those in Directive 2008/98/EC; that Member States should take appropriate measures to encourage the design of packaging in order to reduce its environmental impact; changes to the way in which recycling and material flows are measured; and the deletion of the provisions on energy recovery. However, the main change is that the Commission has proposed the following extended targets for 2025 and 2030 (which will now cover "re-use and recycling", rather than "recycling and recovery"):
Target type
At present
Total packaging
Ferrous metal


1.13 This measure was introduced in order to regulate landfill throughout the EU, so as to prevent (or reduce as far as possible) its environmental impact, particularly as regards pollution of surface and ground water, soil and air (including greenhouse gas emissions), as well as any risk to human health, during its whole life cycle. More specifically, it:

·  requires landfill to be classified according to whether hazardous, non-hazardous, or inert waste is involved, and that only the appropriate waste should be accepted for any specified class;

·  requires Member States to reduce over a period of 15 years the quantity of biodegradable municipal waste going to landfill to 35% of the level obtaining in 1995, and to prevent landfill being used for liquid waste, for waste which is explosive, corrosive, oxidising or highly flammable, for hospital and clinical wastes, and for tyres;

·  sets out various provisions relating to an application for a landfill permit, the conditions for issuing such a permit, and its content;

·  requires Member States to ensure that the costs of setting up, maintaining and closing a landfill site (including its aftercare) are covered by the price which the operator charges for the disposal of waste to it; and

·  sets out procedures governing the acceptance of waste at a landfill site, control and monitoring during the operational phase, and closure and aftercare.

1.14 This proposal would:

·  align various definitions with those in the Waste Framework Directive; and

·  require that in 2030 the quantity of municipal waste disposed to landfill should not exceed 10% of total municipal waste arising.

1.15 In addition, all three of these proposals would:

·  introduce an early warning system under which the Commission, in cooperation with the European Environment Agency, would draw up reports on the progress made by Member States towards the various targets three years before the relevant time limits, and draw up a list of those which risk not achieving their target, accompanied where appropriate by recommendations; and

·  simplify the reporting requirements placed on Member States by replacing the current burdensome triennial reports by a less detailed reports (which would be required annually for waste and landfill targets, and every two years on the prevention of food waste).


1.16 In the case of the End of Life Vehicles Directive (2000/53/EC), the Batteries and Accumulators and Waste Batteries and Accumulators Directive (2006/66/EC) and the Waste Electrical and Electronic Equipment Directive (2012/19/EU), the Commission has proposed relatively small amendments, including aligning the definitions in them with those in the Waste Framework Directive and simplifying reporting requirements placed on Member States.

The Government's view

1.17 In their joint Explanatory Memorandum of 18 December 2015 the Parliamentary Under-Secretary of State at the Department for Environment, Food and Rural Affairs (Rory Stewart) and the Minister of State for Small Businesses, Industry and Enterprise (Anna Soubry) note that these proposals derive from the Commission's Communication setting out an Action Plan for the circular economy, and that they comprise a complex review of EU waste legislation which will potentially affect a number of national measures. and could have a cumulative effect as they introduce new targets, whilst amending the definitions and calculation methods needed to achieve those targets.

1.18 They say that further work is under way to fully assess the implications, but in the meantime they note that, whilst the UK would generally support the changes proposed to various definitions and calculation methods in order to improve consistency and comparability, there are some important points of detail to clarify, where they will continue to work to ensure that these are aligned with UK views and do not add additional administrative burdens. The Ministers also note that as regards the new or extended targets:

·  those for the recycling of municipal waste could reduce costs to businesses over the long term, but be extremely challenging to achieve for parts of the UK where significant changes in householders' behaviour is likely to be required, as well as necessitating measures which are not currently in place in England (and might include mandatory separate collection at source, or 'pay as you throw' schemes, which the UK Government opposes as a tax on householders): the achievability of reaching high levels of recycling will also have a bearing on the UK's ability to reach proposed landfill restrictions;

·  some of those proposed for the recycling of total packaging and of specific materials would be hard for the UK to achieve, pose a cost to industry, and require technology which is currently not available;

·  the new landfill target for 2030 would be highly challenging for England, and likely to require additional investment in energy from waste capacity;

·  whilst no formal targets have been proposed for waste prevention, there is a new indicator for the per capita quantity of municipal waste disposed of or subject to energy recovery; and

·  there are similarly new requirements to monitor and assess waste prevention in relation to food waste using common methodology (and to report every two years).

1.19 The Ministers also suggest that some of the new proposals could potentially place added administrative and other burdens upon Member States, businesses, and local authorities. These include:

·  the establishment of an Early Warning System to identify under-performing Member States and to encourage them to put in place additional measures (where the Commission's recommended actions for struggling Member States could pose subsidiarity issues);

·  the revised definition of municipal solid waste, which could give rise to a need to collect data on waste arising and disposal from the commercial and industrial sector whose waste is similar in nature to household waste: the UK Government does not hold detailed information on such waste, and this could place a reporting burden on businesses and/or require expensive annual surveys in order to fulfil the reporting requirements;

·  the addition of a requirement to collect bio-waste separately where technically, environmentally and economically practicable, and to collect food waste from households could be significant for collection authorities in England, possibly covering over ten million extra properties, and be likely to pose new costs to local authorities, whilst extending this requirement to commercial premises might also introduce new costs for businesses:[4] however, the impact of this proposal can only be assessed fully once it is clear whether local authorities would be exempt from this requirement if it does not prove technically and economically practicable for their circumstances;

·  data reporting requirements against the targets would result in the UK reporting annually (instead of every three years), and, although this would involve a shorter format, it could add a significant burden, depending on the scope and interpretation of municipal waste, and on new reporting requirements for food waste; and

·  the introduction of minimum requirements for extended producer responsibility schemes, such as for those waste vehicles or waste electrical equipment, could require significant changes to existing national collection systems and add new monitoring and evaluation demands.

1.20 On the other hand, the Ministers suggest that some of the proposals could reduce burdens. In particular, these include:

·  allowing Member States to exempt some establishments or undertakings from the need for a permit for the collection, transport, and disposal or recovery of waste (although it will be necessary to ensure that this does not affect the ability to regulate facilities properly); and

·  allowing for Member States to exempt small businesses handling non-hazardous waste from the need to be registered could reduce burdens for up to 440,000 businesses, but it will be important that any exemptions should be strictly limited to SMEs (for example, gardeners and shopkeepers) carrying their own waste, rather than professional waste operatives.

Other issues


1.21 The Ministers note the Commission's statement that the proposals conform with the subsidiarity and proportionality principle set out in Article 5 of the Treaty on the European Union, with the establishment of an EU-wide waste market having been important for all Member States in developing recycling and recovery processes from EU-wide waste streams, in providing a level playing field for the waste management sector, and in addressing transnational aspects. In addition, the Commission has argued that the proposal is limited to amending the Directives by establishing shared objectives which leave Member States free to decide on precise implementation methods.

1.22 However, the Ministers point out that, although Member States currently have power under Directive 2008/98/EC to introduce extended producer responsibility in relation to specific problems at local level, the Commission proposes that these should in future apply stringent minimum criteria, on the grounds that this is necessary to "avoid obstacles to the smooth functioning of the internal market". The Ministers say that this does not comply with the principle of subsidiarity, their view being that the application of extended producer responsibility in relation to local problems is a decision best taken at a national level. They also note that the proposals require Member States to put in place financial incentives, such as 'pay as you throw' schemes, to achieve waste prevention and recycling objectives, and they comment that, as the Commission should not be able to mandate fiscal measures upon Member States, this provision too breaches the subsidiarity principle.

Impact assessment

1.23 The Ministers note that the impact assessment which the Commission published alongside its original circular economy package[5] (put forward in July 2014, and withdrawn in early 2015) remains largely in effect, subject to a new addendum, which examines in greater detail the implications of various combinations of targets for each Member State, and which they say UK Government economists believe allows for more realistic retrieval rates of packaging and collection costs. Nevertheless, they highlight a number of key concerns which remain. Thus, the proposals assume that all Member States will have met the 2020 recycling targets, which is unlikely; the complexity of costs incurred in moving from a 50% to a 65% municipal waste recycling target have been under-estimated; no attempt has been made to quantify the potentially significant costs to householders; and neither the technical feasibility of meeting the proposals, nor their acceptability, has been explored.

Cost and benefits

1.24 Finally, the Ministers refer to the Commission's cost-benefit analysis, which estimates that the proposals will result in a net financial benefit at EU level, but which also suggests that the UK is among a very small number of Member States for which there would be a net cost (although they say that it argues — without assigning a value — that this will be outweighed by the social and environmental benefits). The Ministers believe that further work will be needed to assess if this is the case, but, in the meantime, they have included with their Explanatory Memorandum a Checklist analysing the proposals, which provides some more background on the sectors likely to be affected.

1.25 This makes it clear that it is very difficult at this stage to estimate the precise cost of the changes, given the long timescales involved, the high uncertainties around the costs of residual waste treatment, future technological developments, and the volatility of the prices of re-cyclate and raw materials, which affect the net costs and benefits and give rise to a wide range of plausible scenarios. However, the Government says that it is possible provisionally to give a broad indication of a likely range, which is that the net total discounted costs additional to those of the waste management system in 2012 could be anywhere in the low billions of pounds, but they also suggest that, if a baseline is used which includes the costs of meeting the existing 2020 targets to which the UK is already committed, the costs of meeting the 2030 targets could be broadly comparable, as much as these will be due to increases in the quantity of waste rather than to changes in waste management.

Previous Committee Reports


1   (37374), 14972/15: Sixteenth Report HC 342-xv (2015-16) chapter 2 (6 January 2016). Back

2   Ninth Report HC 219-ix (2014-14), chapter 3, (3 September 2014)  Back

3   The corresponding proposals put forward in July 2014 were recommended for debate by our predecessors, but that recommendation was subsequently rescinded when the proposals were withdrawn by the Commission in the spring of 2015. Back

4   This would not, however, apply to Scotland and Northern Ireland where household and commercial food waste collections are already mandatory, or Wales where this provision is included in the Environment Bill. Back

5   (36209), 11598/14: see Ninth Report HC 219-ix (2014-15), chapter 3 (3 September 2014) and Thirty seventh Report HC 219-xxxvi (2014-15), chapter 25 (18 March 2015). Back

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