Statement. by the Government of the Federal Republic of Germany. of 18 February 2016

Statement by the Government of the Federal Republic of Germany of 18 February 2016 on the legislative proposals from the Commission s Circular Economy Package COM (2015) 593 final; COM (2015) 594 final; COM (2015) 595 final; COM (2015) 596 final Summary The goal pursued by the Commission, namely to create a more circular economy in Europe, and to this end in particular to ambitiously advance developments on the prevention of waste, preparing for re-use and recycling, is warmly endorsed and supported. The legislative proposals which have been put forward in this regard are largely considered to be suited to achieve these goals as a matter of principle, also because they have undergone considerable improvements in comparison to the previous proposal with regard to practical implementability. Central legislative proposals however continue to pose problems. This applies to the following proposals in particular: - The provision on recycling quotas (Art. 11(2) et seqq. of the Waste Framework Directive) and on their calculation method (Art. 11a of the Waste Framework Directive), which is central in order to create a more circular economy as intended, remains unclear as to its content and impact. - The newly-proposed amendments and legal re-orientations of central definitions ( preparing for re-use, by-products and end-of-waste ) give rise to considerable doubts both in legal terms, and with regard to their ecological and environmental policy impact. - The newly-included definition of backfilling, the provision regarding minimum requirements of extended producer responsibility systems, and of waste prevention and reporting requirements, is also viewed critically. This furthermore applies to the proposal to limit the use of landfilling. The goal pursued is to be supported, but the proposed instrument is not suited to do so, and is hardly enforceable. - We continue to reject the across-the-board conversion of legal acts which continues to be pursued, which are to be adopted in accordance with the regulatory procedure with scrutiny to become delegated acts. With regard to compatibility with primary European law (Art. 290 TFEU), the conversion of the Commission s mandates as such requires detailed scrutiny of each individual provision (in particular regarding by-products, end-of-waste criteria and calculation methods). Germany is therefore herewith submitting a general scrutiny reserve. The legislative proposals require detailed scrutiny, in particular with regard to their legal consistency, practical implementability, enforceability, financeability and ecological as well as economic impact. 1

I. Amendment to Directive 2008/98/EC on waste (Waste Framework Directive) 2.a) (Art. 3 No. 1a) Definition of municipal waste The proposed new wording of the definition of municipal waste constitutes a sensible approach. It aims to ensure that there is an understanding of those materials and substances which are incorporated into the term municipal waste which is as uniform as possible in all parts of the EU. A clarification is required with regard to corresponding waste code numbers (Chapters 15 01 (Packaging) and 20 (Municipal waste)). By contrast, the designation of individual waste streams in the definition itself is regarded critically. In fact, individual waste codes should be taken as a basis. Germany hence proposes the following definition: Household waste and similar commercial, industrial and institutional wastes including separately collected fractions (chapter 20 in the list of waste) and packaging including separately collected municipal packaging waste (code 15 01 in the list of waste). 2.e) (Art. 3 No. 16) Definition of preparing for re-use The amendment of the definition of preparing for re-use by also referring to products or components of products as well as via the additional characteristic that the waste must have been collected by a recognised preparation for re-use operator or a recognised depositrefund scheme is rejected. The definition is, firstly, already legally erroneous because, in connection with the mentioning of re-use operators which has been introduced, it is no longer restricted to the recovery of waste, but also refers to the recovery operations of products or components of products, i.e. non-waste. Products or components of products which are not waste may however not come under preparing for re-use as a measure of waste recovery (cf. Art. 3 No. 15 of the Waste Framework Directive). If this is intended to lead to the stage of preparing for re-use being removed from the context of waste recovery and at least partly brought into the field of waste prevention, this would entail an immanent amendment to the waste hierarchy (watering down the level of prevention), which is also to be rejected. Secondly, the inclusion of the additional characteristics recognised preparation for re-use operator and recognised deposit-refund schemes is to be rejected because it leads to a considerable constriction of the second hierarchical level. Beyond the content-related question of the suitability of such qualifications, as well as of suitable criteria for the recognition of such schemes, this considerably sharpens the waste hierarchy at the stroke of a pen. The proposed definition of preparing for re-use would require such waste to be collected in future by recognised preparation for re-use operators or deposit-refund schemes. This determination would however shift content-related requirements as to the actual shape of preparing for re-use into the definition. The consequence would be a situation in which all activities with regard to testing, cleaning and repairing waste which was not collected by such recognised schemes could not be qualified as preparing for re-use. With regard to certain waste streams (in particular waste electrical and electronic equipment and end-of-life vehicles), it would be necessary by contrast to expand the circle of those entitled to collect to encompass recognised preparation for re-use operators and recognised deposit-refund schemes in order to enhance preparing for re-use. This leads to reservations as to a 2

potential lack of transparency when it comes to the data and to the possible misappropriation of waste and its being input into illegal disposal routes. The Commission s proposals however leave unresolved the question of by what criteria the enterprises or systems are in fact to acquire recognition or approval. In accordance with recital 18, the Commission intends to unilaterally define detailed provisions on recognition. It is unclear what legal form this is to take. There is also a need to bear in mind in this context the bureaucratic effort involved in a formal recognition procedure. The costs of implementing the procedure are to be met by the enterprises concerned in case of doubt, so that the provision is ultimately likely to actually have a prohibitive impact. This means in the final analysis that the new definition actually contradicts the waste hierarchy, which statutes a comprehensive duty of encouragement on the part of the Member States (and naturally also of the Commission itself) (cf. Art. 4(2) of the Waste Framework Directive). The new definition can be particularly expected in both legal and political terms to reduce the value of the re-use activities which have been introduced so far and universally accepted. Activities already in existence today could no longer be regarded as preparing for re-use and taken into account when calculating the quotas, although the scope and implementation of the actual activity correspond de facto to preparing for re-use, and the success in re-use that is envisaged in line with the stipulations of the hierarchy is the same as with recognised schemes. 2.f) (Art. 3 No. 17a) Definition of the final recycling process The definition of the final recycling process is central to calculating recycling quotas under Art. 11(2) of the Waste Framework Directive and Art. 6 of the proposal amending the Packaging Directive. In accordance with Art. 11 a, it is a major indication of the calculation of the volume of waste which is regarded as the recycled mass. This vital stage in the procedure requires a definition which is not only clear, unambiguous and legally secure, but can also be implemented without unreasonable technical, economic or bureaucratic effort for the installations concerned and the enforcing authority in terms of their practical application by the Member States. In this case, the new, undefined legal terms contained in the proposed definition give rise to considerable doubts which first of all require an unambiguous answer on the part of the Commission before Germany can take up a position: no further mechanical sorting operation is needed According to the wording, only mechanical sorting is referred to. Are other preprocessing procedures not relevant to the categorisation? How are separation procedures therefore to be assessed which form an integrated part of a production process and are comparable to a cleaning procedure for primary raw materials? Is really no sorting tolerated, regardless of the scale on which it is carried out? What is the characteristic in comparison to Art. 5(1) b) of the Waste Framework Directive (without any further processing other than normal industrial practice )? Production process This is a separate characteristic element which is not defined in the Directive. To 3

which procedures does this refer? Is it not inherent to the term final that it does not require any further recycling process because the end-of-waste criteria is satisfied? How does the characteristic compare to Art. 5(1) of the Waste Framework Directive (production procedures)? Effectively reprocessed The meaning of the definition of effectively reprocessed is unclear. By what criteria is efficiency to be judged? Should not only the quantity, but primarily also the quality of the processing be taken into account, as per the goals of the directive in terms of achieving high-quality recycling? Since the volume and quality of the processed substances achievable in the production process are in a charged relationship as a rule: Can these two aspects be offset against one another, and if so to what extent? If the nature and volume are taken as a basis: What nature and volume of undesirable residues can still be accepted without endangering the status of final recycling process? 2.f) (Art. 3 No. 17b) Definition of backfilling The substitution concept in the definition of backfilling is already a part of the extensive definition of recovery, and is hence not appropriate. The definition is indeed incorrect to some degree with regard to the recovery of mineral construction waste since recovery in technical structures is not to be regarded as backfilling ( other recovery ), but as recycling. It should be made clear that hazardous waste is not covered by the definition. 3. (Art. 4(3)) Waste hierarchy Pricing as an element of the measures stipulated by the hierarchy is rejected. There are virtually no suitable instruments under the law on waste with which the prices arising on a market economy can be ascertained or indeed influenced. The scope of and benefit ensuing from the provision are unclear. 4./5. (Art. 5(1)/Art. 6(1)) By-products/end-of-waste criteria By-products (ByP)/end-of-waste (EoW): The wording Member States shall ensure (Art. 5(1) and Art. 6(1) of the Waste Framework Directive) is rejected. Art. 5 and 6 of the Waste Framework Directive were previously separate definitions as an antonym to the term waste, which the Member States are to apply just as any other definition. This also corresponds to the case-law of the ECJ to date. The legislative proposal however provides for an obligation for the Member States to act to remove certain substances from the definition of waste. This means that the Waste Framework Directive has an overall tendency to restrict the definition of waste to the greatest possible extent, and hence also its own scope, by means of obligations to act being incumbent on the Member States that are fully subject to scrutiny. This is in contradiction of the case-law of the ECJ, the established line of which, also based on the environmental protection principle enshrined in the EU Treaty (Art. 4

191 TFEU), requires a broad interpretation of the definition of waste (cf. only ECJ C-418/97 and 419/97 ARCO Chemie ; C-188/07 Commune de Mesquer ). What is more, the categorisation of waste/non-waste is initially carried out by the producers and holders, and the latter are able to illustrate the criteria for ByP or EoW status. The authority could, or would indeed have to, rule against the will of the producer or holder, and substances not covered by the definition of waste could be, or would even have to be, transferred to the REACH regime without any action being taken on the part of the producers. In terms of content, the obligation to act has been determined by the verb considered. As in the previous version, the grounds (recital 8) however continue to speak of recognise. This suggests that the authorities need to make a legally-binding determination, but at least to appropriately document their administrative acts and practice accordingly. This would appear to be consistent insofar as the re-definition provides for obligations incumbent on the Member States to act. European law does not however provide for a procedure to recognise ByP or EoW in order to withdraw from the definition of waste. The new wording with can in Art. 6(1)(a) of the Waste Framework Directive constitutes a weakening of the previous standard; it is now also possible for hypothetical uses to suffice; this is an implicit, substantive weakening of the definition of waste, and hence constitutes a contradiction of the case-law of the ECJ (see above on the broad interpretation of the definition of waste). Finally, it is not comprehensible that, according to the Commission s proposal, the indication contained in Art. 6(1) subparagraph 2 of the Waste Framework Directive stating that the EoW criteria shall include limit values for pollutants where necessary and shall take into account any possible adverse environmental effects of the substance or object is also to be deleted. This indication by itself does not constitute a legal basis for action on the part of the Commission. The provision however points to the central risk that wastes might be removed from the scope of the Waste Framework Directive. The removal of the pollutant risk could be misunderstood as an expanded possibility for approval. The provision appears to be indispensable in view of the environmental protection principle. What is more, the conversion of the Commission s mandate to delegated acts in Art. 5(2) and Art. 6(2) of the Waste Framework Directive is rejected. The intended conversion is ruled out in accordance with Art. 290(1) subparagraph 3 TFEU. Accordingly, the regulation of essential elements of an area is reserved for ordinary legislative acts. The decisive term essential is an undetermined legal term the interpretation of which largely lies within the discretion of the legislature. However, the ECJ found in its judgement on C-240/90 that provisions intended to give concrete shape to the fundamental guidelines of Community policy are certainly to be classified as essential. In particular, in the view of the ECJ, the material, geographical and temporal scope of a regulation is particularly essential. In accordance with Art. 1 of the Waste Framework Directive, the material scope refers to the management of waste, and hence depends on the categorisation of substances and objects as waste. Art. 5 and 6 of the Waste Framework Directive shape the definition of waste (see above), and are hence among the essential regulations contained in the Waste Framework Directive. 6. (Art. 7) List of waste There are no reservations as to the conversion to delegated acts in Art. 7 of the Waste Framework Directive (delegated acts for updating). These are not essential regulations in 5

accordance with Art. 290(1) TFEU, since Art. 7(1) of the Waste Framework Directive particularly does not constitute an empowerment to amend or expand the hazardous characteristics per se (cf. also re No. 22 below), but only to update the list. This can achieve the goal pursued with delegated acts, namely to reduce the burden on the European legislature in terms of technical details. 8. (Art. 8a) Extended producer responsibility It is fundamentally to be welcomed that the introduction of extended producer responsibility schemes is to continue to be left to the Member States, and is not to be stipulated mandatorily. The new Art. 8a of the Waste Framework Directive however continues to determine broad, highly-determined minimum requirements when it comes to introducing such schemes. This inappropriately restricts the national latitude for action particularly when it comes to schemes which have only restricted producer responsibility, or to voluntary producer responsibility schemes. The determination of detailed requirements as to the producer systems should be left to the Member States against the background of the principle of subsidiarity. This can do better justice to national particularities without endangering overall European goals. As a matter of principle, our view is that the stipulated requirements are not needed in the interest of a solution under European law; this particularly applies to Art. 8a(3), (4), (5) and (6) of the Waste Framework Directive. Paragraph 3(b) entails encroachments on operational and commercial secrets which encounter considerable reservations. The requirement in paragraph 5 to establish an independent authority to oversee the implementation of the stipulations regarding the producer schemes constitutes a major encroachment on the Member States sovereignty. It should also be left to Member States to evaluate the question as to whether and in what manner any formal, regular dialogue is carried out between the stakeholders involved. Finally, paragraph 2 gives rise to the question of what economic incentives the Commission is considering when it calls on the Member States to create appropriate incentives for waste holders to take part in separate collection. Germany requests that the Commission explain what its expectations are in terms of Art. 8 in conjunction with Art. 8a of the Waste Framework Directive. This also particularly applies with regard to the legal assessment of voluntary extended producer responsibility schemes, which can only partly meet the stringent requirements of the proposed Art. 8 a of the Waste Framework Directive. 9. (Art. 9) Waste prevention It is welcome that reference is made to waste prevention programmes with regard to the measures to be taken by the Member States in accordance with Art. 9(1) of the Waste Framework Directive on waste prevention in Art. 29(1) of the Waste Framework Directive. However, the list contained in Art. 9(1) of the Waste Framework Directive can only be partly attributed to waste prevention with regard to the goal that is pursued by the measures (cf. definition in Art. 3 Number 12). What is more, Art. 9(1) should contain a list of examples, and 6

should be worded as follows: Member States shall take appropriate measures to prevent waste generation. These measures may include to:. In accordance with paragraph 2, the Member States use qualitative or quantitative indicators and targets. The per capita quantity of municipal waste that is disposed of or subject to energy recovery is quoted as an example. There are currently no valid indicators for measuring the success of waste prevention. The indicator cited by way of example illustrates this problem since it is an indicator that is used for recycling and preparing for reuse, and not for measuring the success of waste prevention. Paragraph 2 subparagraph 2 should therefore be worded as follows Member States may determine appropriate qualitative and quantitative indicators and targets. Because of the lack of statistical procedures, it is right that no more specific prevention goals be formulated for the prevention of food waste, but that the obligation be regulated in Art. 9(3) and (4) of the Waste Framework Directive to measure the levels of food waste, as well as to measure progress in waste prevention measures without designating the measurement methods (this is to be left to future implementing acts). A coordinated procedure to assess food waste across the EU is welcomed here as a matter of principle. The proposed regulation is regarded critically as a whole since no standard procedures are yet known across the EU for measuring prevention or the levels of food waste. It is furthermore envisaged to rescind the Commission s obligations contained in the applicable directive. The obligations incumbent on the Commission that were regulated in the previously applicable Art. 9 of the Waste Framework Directive have not yet been fully complied with (cf. Art. 9 b) and c) of the Waste Framework Directive), but nonetheless remain necessary. The revised Waste Framework Directive should also contain comparable obligations incumbent on the Commission to draw up reports containing conceptual proposals on waste prevention. The envisaged report of the European Environment Agency should be drawn up at intervals of not less than three years since it is only possible to properly assess the sustainability of prevention measures over a prolonged period. 10.a) (Art. 11(1)) Promotion of preparing for re-use Measures which are to strengthen preparing for re-use are welcome as a matter of principle in the interest of the waste hierarchy. The regulation according to which Member States are to especially facilitate access to waste collection points to re-use and repair networks is however rejected, particularly with regard to the stream of waste electrical and electronic equipment. Unhindered access to collection points by re-use operators can cause major problems, especially with regard to the monitoring of waste (keyword: potential for misappropriation and taking for illegal disposal or shipment) and in connection with data monitoring, in particular if no uniform (certification) requirements are applied to such schemes. What is more, preparing for re-use is not always expedient in an overall ecological view, for instance given the poor energy efficiency of old appliances. Even if one were to wish to see the collection system certified at EU level and in the Member States, there would be no need to change the definition of preparation for re-use. It would be sufficient to impose an obligation to act on the Member States to provide for a certification 7

system within a specific transitional period. Uncertified returns should however also be adequate at the second hierarchical level (cf. above). 10.b) (Art. 11(1) subparagraph 1) Separation requirements The new obligation to promote sorting systems for construction and demolition waste, as well as for at least: wood, aggregates, metal, glass and plaster, overlaps in this wording with the existing obligation to collect paper, metal, plastic and glass separately (Art. 11(1) subparagraph 3 of the Waste Framework Directive), and therefore requires clarification. Germany presumes that the listed substance streams plastic, aggregates, metal, glass and plaster are to be understood as a sub-volume of the definition of construction and demolition waste ; these substances, which as a rule are contained in construction and demolition waste, are therefore to be customarily separated. Such a regulation would be welcome, but would require the deletion of the word and in order to clarify the relationship with Art. 11(1) subparagraph 3 of the Waste Framework Directive. Furthermore, the designation of the substance stream aggregates requires clarification. Related to construction and demolition waste, this is likely to refer to mineral construction and demolition waste (concrete, bricks, tiles and ceramics), and these should also be designated accordingly. 10.c)d) (Art. 11(2)(b), c) and d)) Quotas Increasing the quotas to 60 % (2025) and 65 % (2030), respectively, for all municipal waste is welcome as a matter of principle if the unresolved questions on the definition of the final recycling process and of the calculation method are resolved. It is also positive that the previous calculation methods of Decision 2011/753/EU are to be complied with at least for the existing targets of 2020. A new calculation method in deviation from this would hence not apply until from 2021 onwards, when the data for 2020 are transmitted. The Commission s statement in its reasoning that the previous reporting requirements are generating unnecessary administrative burdens, and hence that compliance monitoring should be exclusively based on the statistical data which Member States report every year to the Commission (recital 27), also requires greater detail with regard to the statistical data that are to be used in this context. 10.e) (Art. 11(3) and (4) Exceptions/scrutiny of the targets An exception for individual states without stating criteria is rejected. The wording with a view to increasing it should be deleted from paragraph 4 since scrutiny of the targets should be possible both upwards and downwards. 11. (Art. 11a) Calculation method with municipal waste As has already been stated with regard to the new definition of the final recycling process, it must be made clear with regard to the calculation method at what processing stage and in what installation statistical surveys are to be carried out. This however by no means appears to be ensured with the proposed regulation. It also remains questionable whether it is practicable. The regulations on the calculation of the valid quotas for preparing for re-use and recycling in accordance with Art. 11(2) of the Waste Framework Directive are currently detailed in 8

Decision 2011/753/EU. In accordance with Art. 3(1) of this Decision, the Member States have so far been able to base the calculation of the quotas on four different references/methods (including the volume of all household waste or the volume of all municipal waste). This option is now to be removed after 2020 in accordance with the proposed Art. 11(2)(c) and (d), as well as Art. 11a(1)(a) and (3)) of the Waste Framework Directive. This reference to total municipal waste is welcome. It however gives rise to the following question: Is the Commission planning to rescind Decision 2011/753/EU or to adjust its content to the calculation methods now proposed in the new Art. 11 a of the Waste Framework Directive? In accordance with Art. 2(1) of Decision 2011/753/EU, the Member States calculate the weight of the waste streams which are generated in one calendar year, and the waste streams which are prepared for re-use, are recycled or have undergone other material recovery in one calendar year. Three methods for collecting data are currently provided for in accordance with Art. 2(2) of the Decision: 1. Calculation of the waste input used in preparation for reuse or final recycling or other final material recovery processes (Art. 2(2) subparagraph 1 of Decision 2011/753/EU). This stipulation is now re-worded in Art. 11a(1) of the Waste Framework Directive. Accordingly, in future the weight of the recycled municipal waste will correspond to that of the waste which is input into the final recycling process. In order to account for the waste prepared for re-use, the procedure of preparing for re-use (Art. 3 No. 16) must be completed in full. This hence proposes three major amendments. Final recycling is replaced by the definition of the final recycling process (Art 3 No. 17a of the Waste Framework Directive), which requires clarification (see above), the output of this recovery must be taken into account when counting waste prepared for re-use against the quotas of Art. 11(2) of the Waste Framework Directive, and waste from other recycling may no longer be offset. The administrative effort needed to calculate the total quota will increase considerably as a result of the varying approaches to data collection with waste for recycling (input of the final treatment) and preparing for re-use (output of the final treatment). 2. Direct counting of all separately-collected municipal waste towards the quotas contained in Art. 11(2) of the Waste Framework Directive (Art. 2(2) subparagraph 3 of Decision 2011/753/EU). The new Art. 11a of the Waste Framework Directive does not regulate on the counting of separately-collected waste. Germany takes the view that this possibility of counting must also be available in future since the separate reporting of municipal waste is carried out particularly for the purpose of recycling. This logical link must be retained in order to promote and guarantee separate reporting where it is ensured that the separatelycollected volumes are indeed recycled. This method also suggests itself since this information is generated in any case, and hence no additional bureaucratic effort is generated. There should therefore be a possibility beyond 2020 to directly count separately-reported municipal waste towards the Member States recycling quotas; this should be clarified by revising Decision 2011/753/EU where appropriate. 9

3. Counting of the output of a sorting plant without significant losses which is sent for recycling or other material recovery processes (Art. 2(2) subparagraph 3 of Decision 2011/753/EU). This stipulation is to be given concrete form with Art. 11a(3) of the Waste Framework Directive. In order to limit the administrative effort, in accordance with recital 17 of the proposed directive, the Member States are still to be allowed to report the recycling rates on the basis of the output of sorting facilities. However, it should only be possible to accept the weight of recycled municipal waste as the weight of the output of a waste separation procedure if this output is subjected to a final recycling process, and the weight of the materials and substances which are not input into a final recycling process after the waste separation procedure, but are disposed of or subject to energy recovery, account for fewer than 10 % of the total waste that is reported as having been recycled. In comparison to the applicable regulation, and given the need to collect data on the plant output of the sorting process and on the input of the final recycling process, as well as to scrutinise the stipulation of a maximum of 10 % material loss, this must be presumed to lead to much greater administrative effort since extensive new surveys would have to be carried out. The exception regulated by paragraph 3, which is obviously intended as an alleviation vis-à-vis paragraph (1)(a), however reveals itself as constituting an even greater burden in administrative terms. Finally, the empowerment to adopt delegated acts in Art. 11a(2) and paragraph 6 of the Waste Framework Directive is rejected. Because of the central political significance of the quotas, the underlying calculation method also affects the fundamental guidelines of Community policy in the circular economy. In Germany s view, this is therefore an essential regulation. The intended conversion is hence ruled out in accordance with Art. 290(1) subparagraph 3 TFEU. Even if one were to concur with the Commission s presumption underlying the delegation of power, namely that none of these are essential regulations, the distinction between delegated acts (Art. 290 TFEU) and implementing acts (Art. 291 TFEU) that is implied by the Commission, and which is required, would be incorrect. Whilst the delegated acts empower the Commission to adopt measures which the Union legislature itself could adopt and which amend/add to the basic act, implementing acts merely serve to guarantee that binding basic acts are applied uniformly. The latter is particularly the purpose of the proposed regulations contained in paragraph 2 and paragraph 6 ( in order to ensure harmonised conditions for the application of paragraph 1(b) and of paragraph 5 ). Were a delegation of power to be permissible, this could hence only take place in accordance with the provisions contained in Art. 291 TFEU. An amendment of or addition to the basic act is particularly not intended to take place. 13. (Art. 22) Separate collection of bio-waste The proposed obligation to collect bio-waste separately (where technically, ecologically and economically feasible) is welcomed and supported. 10

14. (Art. 26) Approval/registration/documentation: The proposals on monitoring waste, in particular the proposed option of exemption from keeping a register (in case of < 20 t/a of non-hazardous waste), which is moderate in comparison with the legislative package that was withdrawn, are welcomed as a matter of principle. Having said that, the Commission s power to adapt the threshold by issuing delegated acts is to be rejected. The threshold is concerned with the staffing scope for this provision, and is hence an essential regulation which, in accordance with Art. 290(1) subparagraph 3 TFEU, can only be adapted in the ordinary procedure. In addition to the exception for non-hazardous waste, Germany additionally proposes to provide for a comparatively lesser exception for hazardous waste (for instance: 2 t/a). 15. a)b) (Art. 27) Minimum standards The conversion to delegated acts in Art. 27(1) and (4) of the Waste Framework Directive is rejected. The definition of technical minimum standards for waste treatment activities, as well as the setting of standards regarding the technical qualification of collection and transport enterprises, distributors and agents, constitute essential amendments. The provisions particularly refer to a large number of addressees (virtually all stakeholders in waste management are involved), and determine provisions that are related to fundamental rights. The determination of standards as to the technical qualification impinges on the area protected by the freedom to choose an occupation, which is particularly protected by the Charter of Fundamental Rights of the European Union (Art. 15). Regulations that are relevant to fundamental rights absolutely must be legitimated by the legislature, and are hence to be qualified as essential within the meaning of Art. 290(1) TFEU. The provisions can hence only be amended in the ordinary legislative procedure. 16. (Art. 28) Waste management plans The proposed amendments regarding waste management plans are acceptable, but it should be clarified in paragraph 3 b) what is to be understood by special arrangements. 19. (Art. 35) Record keeping The establishment of electronic registers is welcomed. Germany has had positive experience with electronic records procedures. Having said that, the inserted words, on request, should be re-integrated into the text after that data available, since the duty of submission is otherwise not sufficiently determined. The new Art. 35(4) subparagraph 1 is welcomed since it lends sufficient latitude for national transposition. The reference to the European Pollutant Release and Transfer Register in Art. 35(4) subparagraph 2 of the Waste Framework Directive is however too narrow, and is hence rejected. The register referred to there pursues a completely different purpose, and cannot be easily combined with the national waste registers. The competence of the Commission to adopt implementing acts in Art. 35(5) of the Waste Framework Directive in order to establish minimum conditions is also rejected as it is too far-reaching. The Member States must be guaranteed sufficient latitude for national transposition. It must be particularly guaranteed that the Member States can add to systems 11

that have already been developed. Otherwise unnecessary new costs are caused for industry and the administration. 21. (Art. 37) Reporting Since no procedures are known at present for measuring waste prevention and the extent of food waste, and such a method would first of all have to be developed, the proposed introduction of reporting requirements in paragraph 2 is regarded critically. The provision contained in paragraph 3 is rejected for lack of an appropriate data basis. Collecting the data in question would entail a disproportionate bureaucratic effort for authorities and enterprises. There would have to be detailed scrutiny of the degree to which the quality check report proposed in paragraph 4 leads to additional bureaucratic effort. 22. (Art. 38) Guidelines on definitions The conversion of the Commission s mandate to delegated acts in Art. 38(1) subparagraph 1 of the Waste Framework Directive as to the application of the R1 formula is rejected. Germany also considers this not to be an essential regulation, but the purpose of the delegation, namely to specify the application of the formula requires the application of Art. 291 TFEU (cf. No. 11 above), and can hence only be carried out as an implementing act. A delegation of power in accordance with Art. 290 TFEU is hence ruled out. The conversion to delegated acts in Art. 38(2) and (3) of the Waste Framework Directive is only unproblematic in relation to Annexes IV and V, which are also not essential regulations in the view of Germany. Conversion is however rejected as to Annexes I to III, as well as Annex VI, since in each case these are essential regulations which may not be amended by delegated acts in accordance with Art. 290(1) subparagraph 3 TFEU. Annexes I and II are to be categorised as essential because of their indicational effect for the delimitation of the terms disposal and recovery (cf. Art. 3 Numbers 15 and 19 of the Waste Framework Directive). They exert a major impact on the sequence of priorities of the waste hierarchy in Art. 4 of the Waste Framework Directive. Furthermore, the lists exert an impact on the principle of self-sufficiency under the law on waste, Art. 16 of the Waste Framework Directive. Accordingly, the Member States take appropriate measures to establish an integrated and adequate network of waste disposal installations and of installations for recovery. Because of self-sufficiency, any addition to the lists such as a new disposal procedure would at the same time trigger an obligation incumbent on the Member States to upgrade existing installations or to build new ones. Since amending and adding to the lists in Annexes I and II of the Waste Framework Directive constitutes taking central policy and economic decisions on waste management, they transpose the fundamental guidelines of Community policy, and are hence to be classed as essential regulations in accordance with the case-law of the ECJ. Annex III determines the properties of waste which render it hazardous. The contents of the Annex are relevant to the categorisation of waste as hazardous, and hence determine the material scope (cf. also No. 6). For this reason alone, the provision is to be categorised as 12

essential. Moreover, also the previous recent experience in developing the adjustment of the hazardous characteristics to the law on chemicals in the TAC within the regulatory procedure with scrutiny show that the Member States recognise the essential significance of Annex III because of difficult agreement processes. It was possible to largely reach agreement regarding the adjustment to the law on chemicals, but the specific regulations determining the hazardous characteristic ecotoxic remain contentious. The annex is hence to be amended in the ordinary legislative procedures only. The delegation of power in Annex VI already violates Art. 290(1) subparagraph 2 TFEU, in accordance with which the objectives, content, scope and duration of the delegation of power are to be explicitly defined in the respective basic act. The Communication from the Commission to the European Parliament and the Council of 9 December 2009 (673/2009) states in this regard that, in particular, the conditions under which for instance an annex may be amended are to be defined precisely. The preconditions which make an amendment to the annex by means of a delegated act necessary are however not contained in the proposed Art. 38(3) of the Waste Framework Directive. 23. (Art. 38a) Delegation of power to the Commission The provisions on the exercise of the power to adopt delegated acts are viewed critically. It should first of all be pointed out that particularly the universal conversion of previous regulatory procedures with scrutiny to delegated acts carried out by the Commission is rejected. This is also in contradiction of the Communication from the Commission to the European Parliament and the Council of 9 December 2009 (673/2009), in which an automatic conversion is strictly rejected. A delegation of power is only permissible if a provision is to be categorised as non-essential. A provision is to be classed as essential or non-essential on the basis of a case-by-case decision, and cannot be issued universally for all past regulatory procedures with scrutiny (cf. on this in particular the statement by Germany on the proposed conversions in Art. 5(2), Art. 6(2) and Art. 38 of the Waste Framework Directive). Moreover, the delegation of power requires the lawful selection between the types of delegation available in the TFEU. To this end, it is necessary to distinguish between delegated acts in accordance with Art. 290 TFEU and those in accordance with Art. 291 TFEU using case-by-case decisions, taking the meaning and purpose into account (cf. on this in particular the statement by Germany on the new Art. 11a(2) and (6)). The proposed regulation of the procedure to adopt delegated acts is rejected as it does not correspond to the content of the Common Understanding and the Standard Clauses agreed between the Council, Parliament and the Commission in December 2015 in the negotiations on the new version of the Interinstitutional Agreement on better law-making of 2003. In accordance with the new provisions, mandatory structured involvement of experts from the Member States, which is to be implemented in accordance with the stipulations of the Common Understanding, is now to be ensured when the Commission drafts delegated acts. To this end, the following standard clause which bindingly regulates the application of the Common Understanding is to be included in the basic act: Before the adoption of a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement on Better Law-Making of [date]. 13

This standard clause absolutely must be inserted in the proposed procedural provision. 24. (Art. 39) Committee procedure The provision in accordance with which implementing acts are to be adopted exclusively in the examination procedure in accordance with Art. 5 of Regulation (EU) No 182/2011 is expedient. Germany shares the underlying valuation that these constitute implementing acts which have general scope in accordance with Art. 2(2) Regulation (EU) No 182/2011. 25. (Annex VI) The formula that has been developed there is obviously incorrect because of the double counting of waste volumes prepared for re-use! Art. 14 Polluter-pays principle No details are provided of the polluter-pays principle as a necessary foundation for funding investment and operating the necessary disposal systems. Member States are already obliged to impose the disposal costs on the waste producer or on the current or previous waste holder. With regard to effective implementation, details need to be provided, along with corresponding reporting requirements. An additional sub-clause could be provided for this in subparagraph 1: Member States shall establish fee systems in order to ensure the full financing of the waste management infrastructure necessary for the implementation of this Directive. 14

II. Amendment to Directive 94/62/EC on packaging and packaging waste (Packaging Directive) The proposal proposes, firstly, a minimum quota for preparing for re-use and recycling of overall packaging waste extrapolated to 2030 and, secondly, corresponding quota increases for the individual packaging materials. Germany welcomes ambitious stipulations. These must however be practical and on such a scale that they do not lead to a contradiction between qualitative and quantitative recycling targets. 3. (Art. 6) Recovery, re-use and recycling The concrete quotas appear acceptable on reserve of the unresolved questions on the calculation method. Germany welcomes the proposal of differentiated quotas for ferrous metals and aluminium. A scrutiny requirement is considered to exist as to the quota for wooden packaging, which appears relatively high since wood is a renewable raw material. Germany regrets that, unlike in the proposal that was withdrawn, the Commission is now no longer calling on the Member States to take appropriate measures to encourage packaging design that reduces its environmental impact (Art. 6(12) of the Commission proposal of July 2014). 4. (Art. 6 a) Calculation of the attainment of the targets laid down in Article 6 The methodical stipulations to calculate the quotas (cf. Art. 6a) are worded in line with the stipulations contained in the Waste Framework Directive. Therefore, the remarks and criticisms apply which were already put forward regarding the provisions of the Waste Framework Directive. 6. (Art. 11(3)) Concentration of heavy metals in packaging In contradistinction to the idea of the Commission, Art. 11(3) should not adopt provisions on the exceptions from maximum concentrations for heavy metals in specific packaging by delegated acts. These must be reserved for ordinary legislative procedures as they constitute essential amendments to the Packaging Directive. Such measures can have a major impact on the sections of the economy concerned. 7. d) (Art.12(3) a - c) Information systems and reporting The envisaged amendments to the reporting requirements are still in need of detailed scrutiny. It should be particularly clarified here whether this leads to additional administrative effort for the Member States. This applies for instance to the quality check report in accordance with Art. 12(3) b that is additionally required by the Commission. What is more, a finding is needed on the rescission or further application of Commission Decision of 22 March 2005 (2005/270/EC). The decision currently regulates the provision of harmonised table formats in accordance with the Packaging Directive, and at the same time adopts stipulations to calculate the quotas that have been communicated. Such stipulations are now to be in part directly regulated by the proposal for amendments in the Packaging Directive. 15

8. (Art. 17) Reporting requirement The abolition of the triennial implementation reports is welcomed. 12. (Art. 21 a) Exercise of the delegation The fundamental statements re Art. 38 a of the Waste Framework Directive apply here. 14. (Annex IV) Reference is made to the corresponding remarks on Annex VI of the Waste Framework Directive with regard to Annex IV. III. Amendment to the end-of-life vehicle, battery and waste electrical equipment Directives The corresponding Commission Decisions (2009/851/EC, 2001/753/EC and 2004/249/EC) would also have to be rescinded as a consequence of the desirable abolition of the triennial reports with regard to waste batteries, end-of-life vehicles and waste electrical and electronic equipment. a. Amendment to Directive 2000/53/EC on end-of-life vehicles The abolition of the regulation on the drafting of the implementation reports ( triennial reports ) is welcomed; it should however be accompanied by the rescission of the corresponding Commission Decision 2001/753/EC. The proposed addition of subparagraphs 1a (new), 1b (new) and 1d (new) to Art. 9 of the end-of-life vehicle directive does not however appear to be necessary. The new provisions refer to the annual report on the goals that have been achieved. Adequate provisions are however already contained in Art. 7(2) subparagraph 3 of the Directive on end-of-life vehicles in conjunction with Art. 3(1) and Art. 1(1) subparagraph 2 of Commission Decision 2005/293/EC. Furthermore, Art. 7(2) subparagraph 3 of the Directive on end-of-life vehicles, on the basis of which the Commission Decision was particularly issued, contradicts Art. 9(1)d (new) of the Directive on end-of-life vehicles because Art. 7(2) subparagraph 3 of the Directive on end-of-life vehicles refers to Art. 11(3) of the Directive on end-of-life vehicles (and hence to the regulatory procedure with scrutiny), whilst Art. 9(1d) (new) of the Directive on end-of-life vehicles refers to Art. 11(2) of the Directive on end-of-life vehicles (and hence to the simple regulatory procedure). This arrangement provides for two foundations for empowerment for the Commission with regard to the drafting of the annual report which are issued on the basis of different procedures. The provisions on Art. 7 and Art. 9 need to be brought into alignment with one another against this background. The proposed addition of paragraph 1c (new) to Art. 9 of the Directive on end-of-life vehicles introduces a new reporting requirement incumbent on the Commission with regard to the annual report. This reporting requirement of the Commission would however be better placed in Art. 7 of the Directive on end-of-life vehicles, which regulates the annual report in paragraph 2 subparagraph 3. 16

b. Amendment to Directive 2006/66/EC on batteries and accumulators and waste batteries and accumulators This proposed amendment is a formal update of the directive with regard to which we have no reservations. The abolition of the provisions on the drafting of the triennial reports is welcomed; it should however be accompanied by the abolition of corresponding Commission Decision 2009/851/EC. c. Amendment to Directive 2012/19/EU on waste electrical and electronic equipment There are no reservations with regard to the abolition of the obligation to draft the triennial report and to determining the stipulations for the annual report; the abolition of the obligation to draft the triennial report should however be accompanied by the abolition of the corresponding Commission Decision 2004/249/EC. IV. Amendment to Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (Landfill Directive) 1. a) (Art. 2(a) Definitions The changes made to various definitions in the Waste Framework Directive make sense and are consistent as a matter of principle. Since the objective which has been newly included in Art. 5(5) refers exclusively to municipal waste, this term should be defined in the Waste Framework Directive with a watertight interpretation, in concrete terms and finally, for instance all waste from Chapter 20 (Municipal waste) and from Group 15 01 (Packaging) of the EU s List of waste (2014/955/EU). 2. b) (Art. 5(3)(f)) Prohibition of landfilling for waste that has been separately collected The goal that the Member States should take measures in accordance with Art. 5(3)(f) to ensure that no separately-collected waste such as plastic, metal, glass, paper and bio-waste which could be put to better recycling use in accordance with Art. 11(1) and with Art. 22 (new) of the Waste Framework Directive is accepted on landfills goes in the right direction as a matter of principle. The provision however fails to go far enough in order to support the application of the waste hierarchy in accordance with Art. 4 of the Waste Framework Directive, and is furthermore difficult to enforce. It does not achieve the goal of increasing separate collection and hence recycling. Rather, when waste has already been collected separately, there is much to suggest that this waste should also actually be recycled, particularly since the cost of disposal exceeds the cost of recovery, and recovery can even generate a profit in some cases (for instance with metal, glass and paper). What is more, this provision continues to permit the disposal of mixed waste, some of which consists of the waste in question, which can be separately recorded and recycled. In connection with repeated miss-sorting, the provision could also lead to problems since it is difficult to examine, when carrying out a visual inspection when accepting waste at landfills in accordance with Art. 11, whether or not such waste was collected separately. 17