ACR+ EPR Club: EU packaging law and the (EPR) principles of Directive 2008/98

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1 ACR+ EPR Club: EU packaging law and the (EPR) principles of Directive 2008/98 Françoise Bonnet Brussels Environnement Brussels, 26 October 2012

2 Presentation outline EU waste policy and EPR EU packaging law (Directive 94/62/EC) EU (EPR) principles (Directive 2008/98/EC) Conclusions Brussels, 26 October 2012

3 EU waste policy and EPR? EPR as an environmental policy approach in which a producer s responsibility for a product is extended to the post-consumer stage of a product s life cycle (OECD) Objectives: Design of environmentally sound products Integration of environmental costs Improved waste management and recycling Reduction of disposal

4 EU waste policy and EPR? Continuous increasing influence of EPR in EU law: Communication on the Review of the Community Strategy for Waste Management (EU Commission) - 6th Community Environment Action Programme (Decision 1600/2002, art. 8 2) - Underlined in several specific legislation (packaging, ELV, WEEE, batteries, Waste Framework Directive)

5 EPR schemes in Europe EU Directives Member States Packaging Batteries & accumulators End-of-Life vehicles Waste Electric & electronic equipment Packaging Batteries & accumulators End-of-life vehicles Electric & electronic equipment Pharmaceuticals Tires Waste oils Paper Paints Building materials Pesticides Furniture

6 EU waste policy and EPR - Resource Efficiency Roadmap (20/09/2011) MS assess measures to extend producer responsibility to the full life-cycle of the products they make (including via new business models, through guidance on take-back and recycling schemes and support for repair services) EC.. assess the introduction of minimum recycled material rates, durability and re-usability criteria and extensions of producer responsibility for key products (in 2012).

7 EU Packaging Law The Directive s Objectives: environnemental protection and prevent barriers to trade and competition imbalance. EPR scheme clearly underlying the packaging directive : - Recital 29; - article 4 (prevention measures) - participation of "economic operators" including producers, importers,... (cfr. article 7) - article 12 (reliable data transmission by all stakeholders)

8 EU Packaging law Article 4 et 7 - prevention measures (article 4-9): national prevention programmes (not compulsory), annex II (no precised measures) - article 7: share responsibility among «economic operators», including producers, importers, («these systems shall be open to the participation of the economic operators of the sectors concerned (.)») BUT No obligation for a real EPR scheme Variable applications between the MS

9 EU Packaging Law Example: Sharing the costs of packaging waste collections UK-DK-NL: 0% FR-SP-FI-IR-IT- PO: 10-90% A-G-BE-LU: 100 %

10 EU (EPR) principles EPR and the Waste Framework Directive 2008/98: not binding - Recital 27 The introduction of extended producer responsibility in this Directive is one of the means to support the design and production of goods which take into full account and facilitate the efficient use of resources during their whole life-cycle including their repair, re-use, disassembly and recycling without compromising the free circulation of goods on the internal market. - Art. 8 (extended producer responsability) 1. In order to strengthen the re-use and the prevention, recycling and other recovery of waste, Member States may take legislative or non-legislative measures to ensure that any natural or legal person who professionally develops, manufactures, processes, treats, sells or imports products (producer of the product) has extended producer responsibility.

11 EU EPR principle Waste Framework Directive 2008/98 Art MS may decide that the costs of waste management are to be borne partly or wholly by the producer of the product from which the waste came and that the distributors of such product may share the costs. Financial responsibility Art Member States may decide, in accordance with Article 8, that the responsibility for arranging waste management is to be borne partly or wholly by the producer of the product from which the waste came and that distributors of such product may share this responsibility. Material responsibility (take back obligation)

12 EU EPR principle Waste Framework Directive 2008/98 - other provisions: Art For the purposes of separate collection of waste oils and their proper treatment, Member States may, according to their national conditions, apply additional measures such as technical requirements, producer responsibility, economic instruments or voluntary agreements. Art. 37 (reporting and reviewing) Every three years, Member States shall inform the Commission of the implementation of this Directive by submitting a sectoral report in an electronic form. This report shall also contain information on the management of waste oil and on the progress achieved in the implementation of the waste prevention programmes and, as appropriate, information on measures as foreseen by Article 8 on extended producer responsibility.

13 EU EPR principle The main EPR provision = article 8: not binding! - No definition of the concept: = Possibility for the MS to take certain measures - Scope of the concept: Strengthen the waste hierarchy; possibility of "joint responsibility given by the producer s definition - Content of the concept (cumulative items or not): Measures of product design Measures regarding the material responsibility of the product at its end of life Measures of financial responsibility Measures of information

14 EU EPR principle Waste Framework Directive 2008/98: article 8 «Possibility» for the MS ( measures listed in article 8 are purely illustrative) When a MS decides to develop an EPR scheme, it must take into account: - Technical feasibility, economical viability, social impacts, global environnemental impacts and human health - Regulations on free movement and competition - Regulations on responsibility for waste management (Article 15 1) - Specific legislation regarding products and waste streams (Article 8 4)

15 EU EPR principle Waste Framework Directive 2008/98 vs EU Packaging directive article 8 4 : The extended producer responsibility shall be applied without prejudice to the responsibility for waste management as provided for in Article 15(1) and without prejudice to existing waste stream specific and product specific legislation. Does it mean that the national application of EU packaging law could not be in compliance with Directive 2008/98/EC provisions because of the general law principle lex specialis derogat (legi) generali?

16 EU EPR principle EU packaging law = specific legislation article 8 4 applicable BUT Waste Framework Directive 2008/98 contains other provisions laying down general principles which must be respected. At least for them, lex species derogat generali principle does not apply. Which general principles? - Protection of environment and human health (not new) - Polluter Pays Principle ( PPP) - Proximity Principle (not new) - 5 levels of the waste hierarchy Principle

17 EU EPR principle 5 levels of the Waste Hierarchy General Principle Prevention should be favoured, prior to reuse, preparation for reuse, recycling or recovery Deposit system should be promoted Applied to EPR national scheme = Green dot tariffs should reflect the waste hierarchy

18 Green Dot Rate Quantitative prevention and recycling Rate for recyclable plastic bottles: /kg Rate for other recyclable plastic packaging: /kg Qualitative and quantitative prevention Rate for clear PET bottles: /kg Rate for other bottles : /kg Rate for other plastics: /kg Contribution of the Unit Plus : sorting message instruction(-2%), eco-design activities (-2%). Minus : disruptive sorting(+50%), non recyclable bottles(+100%).

19 Conclusions What more with D 2008/98/EC? - A will display to promote EPR schemes WITH an urgent need for more European rules in order to avoid any infringement of competition rules - An obligation to respect the general principles in specific directives, especially the waste hierarchy principle