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.
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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
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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
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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.
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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
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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
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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
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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
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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.
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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.
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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
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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
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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].”
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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.”
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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.
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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.
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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.
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Moreover, the provision is not sufficiently determined: It is unclear in conjunction with
recital 5 whether the prohibition refers only to the four waste types metal, glass, plastic and
paper designated in Art. 11(1) subparagraph 3 of the Waste Framework Directive, or also to
all waste that was collected separately under the obligations to provide support in
accordance with Art. 11(1) subparagraphs 2 (new) and 4 (new). The legal reference should
be detailed.
In the sense of the regulatory intention pursued by Art. 11 and 22 (new) in conjunction with
Art. 4 of the Waste Framework Directive, namely to collect and recycle all recyclable waste
separately where possible, it would be much more expedient to make demands on all waste
that is to be landfilled, in particular with regard to residual waste, in order to (incrementally)
“force” its treatment in accordance with Art. 6(a) in conjunction with Art. 2 (h) of the Landfill
Directive (sorting components that are still amenable to recycling, biological or chemical
degradation, thermal conversion …) via (time-phased) allocation criteria that are still to be
established (e.g. organic content (loss on ignition, TOC), gas parameters (GB21, AT4)). In
order to do so, it would be necessary to refine the acceptance criteria contained in the
Council Decision establishing criteria and procedures for the acceptance of waste at landfills
(2003/33/EC) for all waste, with the aim in mind of not only increasing recovery in
accordance with Art. 4 of the Waste Framework Directive, but also to minimise the
greenhouse gas potential in accordance with Art. 1 of the Landfill Directive.
Such a regulatory approach would also be suited to achieve the goal of reducing the
landfilling of municipal waste in Art. 5(5) (new).
2. c) (Art. 5(5)) Reduction goal for municipal waste
The stipulation of a uniform reduction goal for the landfilling of municipal waste in 2030 to
10 % of the total amount of municipal waste generated is welcomed. This is however
contingent on there being a clear, conclusive definition of the term “municipal waste” in the
Waste Framework Directive (e.g. Group 15 01 and Chapter 20 of the EU’ List of waste
(2014/955/EU)).
Achieving this goal however requires sufficient capacities in terms of energy recovery and
the procedures of mechanical-biological treatment of untreated municipal waste presented in
recital No. 8 as “low grade”.
4. (Art. 6 (a) subparagraph 2) Requirements of treatment procedures
The addition to the regulation, namely that only those treatment procedures are to be applied
which do not compromise the objectives of preparing for re-use and recycling in Art. 11 of the
Waste Framework Directive, does not go far enough because it to some degree prioritises
the protection of resources at the expense of climate protection. The treatment procedures
that are to be applied should also cover the utilisation of residual waste which cannot be
recycled any further for energy, and the biologically-degradable share should be largely
degraded or destroyed prior to landfilling. Some of the waste generated by these treatment
procedures (e.g. ash, metals) can be recycled, thus further reducing the waste needing to be
landfilled. The provision proposed by the Commission in Art. 6(a) subparagraph 2 should
therefore be supplemented by a further subparagraph as follows (emboldened):
“Member States shall ensure that measures taken in accordance with this point do not
compromise the achievement of the objectives of Directive 2008/98/EC, notably on the
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increase of preparing for re-use and recycling as set out in Article 11 of that Directive. In
addition, measures to reduce as far as possible or destroy the biodegradable fractions
in residual waste and to use as far as possible the energetic content of residual waste
shall be taken prior to the disposal of waste to landfill.”
6. (Art. 15) Reporting
The proposed arrangement in respect of the duties to report increases the bureaucratic effort
generated for authorities and companies, whilst not leading to any recognisable benefit.
Introducing annual reporting duties in paragraph 1 is therefore rejected. The criticism also
applies to the quality check report called for in paragraph 3, the content and purpose of
which is unclear and undetermined.
Reference is made to the comment re Art. 37 of the Waste Framework Directive with regard
to the statements on the reporting requirements in other respects.
7. (Art. 16 in conjunction with Art. 17 a) Delegated acts
The conversion of the Commission’s mandate to delegated acts in Art. 16 in conjunction with
Art. 17 a) of the Landfill Directive for adapting the annexes to scientific and technical
progress is rejected since these are all essential regulations for which an amendment by
delegated acts is not permissible in accordance with Art. 290(1) subparagraph 3 TFEU.
The Annexes to the Landfill Directive contain provisions which belong among the essential
regulations of the basic act since they determine the scope ratione materiae of the directive.
Adaptation to scientific and technical progress, and the additions made to the three annexes,
constitute amendments to essential regulations of the Landfill Directive. Annex II assumes
particular importance in this context since it determines the details of the criteria and
procedures for acceptance of waste. In particular amendments of/additions to this annex
impact the protection standard of landfilling, and are hence essential. This connection
becomes clear if for instance landfilling of waste is declared to be permissible which
previously was not permitted to be landfilled (and vice versa), and as a consequence specific
acceptance criteria, i.e. essential regulations, need to be determined.
Reference is made to the fundamental comments re Art. 38 a of the Waste Framework
Directive in other respects.
8. (Art. 17) Implementing acts
The provision here should be applied to the implementing acts and explicitly designated via a
legal reference. Only the reporting format is defined in accordance with Art. 15 (5) of the
Landfill Directive via an implementing act.
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