Date of adoption: 19 November 2006 Entry into force: 12 December 2008 (OJ L 312/3, 22.11.2008) Deadline for Transposition: 12 December 2010
What are the aims and requirements of the 2006 Waste Framework Directive?
The 2006 Waste Framework Directive seeks to protect human health and the environment, against the damaging effects of the 'collection, transport, treatment, storage and tipping of waste' and to provide consistent regulation of waste disposal and recovery. The Directive also requires that Member States, in order to achieve a high level of protection for the environment, take measures to encourage a reduction in the production of waste and its harmfulness, promote clean technologies and products, and take into consideration 'existing or potential market opportunities for recovered waste'.
The 2006 Directive consolidated and replaced an earlier version (Directive 75/442/EEC) without substantively changing the content of the applicable rules. It is itself due to be replaced by a 2008 law, widely known as the Revised Waste Framework Directive (Directive 2008/98/EC), which is intended to further consolidate and clarify the overall framework of EU waste law and which Member States must transpose into national law by 12 December 2010. In addition, the 2006 Waste Framework Directive was amended in 2009 by the CCS Directive (Directive 2009/31/EC), clarifying the status of CCS activities under the EU waste regime, with that amendment carrying through to the 2008 Revised Directive.
Until 10 December 2010, most of the provisions of the 2006 Waste Framework Directive continue to apply.
Definitions and scope of the Directive
'Waste' is defined in the 2006 Directive as, 'any substance or object in the categories set out in Annex I, which the holder discards or intends or is required to discard' (Article 3(1)(a)). Annex I lists 16 categories of waste including production and consumption residues, off-specification products, residues from industrial processes and residues from pollution abatement processes. The 'holder' is defined as either the producer of the waste or the 'natural or legal person' who possesses it.
Waste 'disposal' covers any of the operations listed in Annex IIA of the Directive and includes, amongst other activities, depositing into or on to land, deep injection procedures, surface impoundment and release into the seas or oceans. Waste 'recovery' operations are detailed in Annex IIB and include those which are for the purpose of generating energy, solvent reclamation or regeneration and the recycling or reclamation of organic substances, metals and compounds, as well as storage of wastes pending any of these other operations.
Article 2 of the Directive excludes certain types of waste from its scope. Gaseous effluents emitted into the atmosphere and, where covered by separate legislation, radioactive waste, waste from prospecting or mineral extraction and handling, animal carcases and certain other agricultural wastes, waste waters and decommissioned explosives are all excluded from the scope of the Directive. This is the Article that has been amended by the CCS Directive (see 'Key Issues concerning CCS' below).
Member State obligations under the Directive
Member States are obliged under the Directive (Article 5) to establish an adequate and integrated network of disposal installations, with a view to ensuring that the European Community (now the EU) becomes self-sufficient in its waste disposal ('principle of self-sufficiency') and Member States individually move towards that aim. Furthermore, it is required that the network enables waste to be disposed of in one of the nearest appropriate installations ('principle of proximity') by means of the most appropriate methods and technologies, to ensure a high level of protection of the environment and human health.
Waste Management Plans are to be drawn up by the relevant competent authority in each Member State (Article 7). These have to cover many aspects of waste administration in that state, including the type and quantity of waste to be recovered or disposed of, any special requirements for particular wastes and details of suitable sites or installations. Plans may also specify who is authorised to undertake waste activities, the estimated costs of waste operations and measures to encourage rationalisation of waste collection and treatment.
A Member State is required to take all possible steps to ensure that a 'holder' of waste recovers or disposes of the waste themselves, or has it handled by an authorised public or private waste collector. Operators of waste disposal operations listed in Annex IIA must obtain a permit from the Member State's relevant competent authority. The permit covers various aspects of the disposal operation, including the types of waste which may be disposed of, the safety precautions to be taken and any particular site requirements. Those establishments and undertakings which carry out waste recovery or their own waste disposal may also require a permit. The Directive does, however, exempt particular establishments and waste undertakings from the permitting requirements, provided certain safety and environmental requirements are met.
Article 15 specifies that, in accordance with the polluter pays principle, the cost of disposing of waste must be borne by: (a) the holder who has waste handled by an Annex IIA operator; and/or (b) the previous holders or the producer of the product from which the waste came.
The definition of waste: judgments of the European Court of Justice
The exact definition of waste has been the subject of many cases before the European Court of Justice (ECJ). As mentioned previously, waste is defined in the 2006 Directive as 'any substance or object in the categories set out in Annex I, which the holder discards or intends or is required to discard'. Categories Q1 to Q16 that compose Annex I detail various types of waste, including the catch-all category Q16, which covers 'all materials, substances or products which are not contained in the above mentioned categories'. The categories are clearly expansive and, as a result, the scope of the term 'waste' rests upon the concept of 'discarding' and whether or not the holder of material intends to discard it.
The issue of intention has arisen in many of the ECJ cases and the question of whether a material is to be consigned to waste recovery or waste disposal has proved to be particularly significant. Material which is consigned to a disposal operation of the type described in Annex IIA demonstrates intent to discard because there is no opportunity for the material to be re-used. It is more difficult to ascertain whether a material is a waste where it is consigned to a recovery operation, as listed in Annex IIB of the Directive. Many commentators have noted the difficulty of distinguishing waste recovery processes from processes that form an integral part of a larger industrial operation. Summary of relevant ECJ cases
The 2008 Revised Waste Framework Directive seeks to clarify some of these interpretative issues by removing a range of materials from the definition of 'waste' (see below).
What are the aims and requirements of the 2008 Waste Framework Directive?
The 2008 Revised Waste Framework Directive is a broad and ambitious piece of legislation intended to clarify, simplify and integrate several EU laws. From 12 December 2010, this Directive will replace the 2006 Waste Framework Directive (Directive 2006/12/EC), the Hazardous Waste Directive (Directive 91/689/EC) and the Waste Oils Directive (75/439/EEC).
The Directive adjusts many of the existing provisions and introduces a number of new rules to serve its broader scope. The stated purpose of the revisions include: clarifying key concepts such as the definitions of waste, recovery and disposal; strengthening the measures that must be taken in regard to waste prevention; introducing an approach that takes into account the whole life-cycle of products and materials, and not only the waste phase; and focusing on reducing the environmental impacts of waste generation and waste management, thereby strengthening the economic value of waste.
The overall effect of these revisions is mixed. On the one hand, more exceptions are introduced in a way that could complicate and limit the application of the waste management rules, and certain obligations under the 2006 Directive are subject to qualifications that may reduce their effect. On the other hand, greater emphasis is given to more general principles such as waste prevention and producer responsibility.
Scope and Definitions
The Revised Directive's goal is to some extent broader than that of the 2006 Directive. It aims 'to protect the environment and human health by preventing or reducing the adverse impacts of the generation and management of waste and by reducing overall impacts of resource use and improving the efficiency of such use' (Article 1).
The Directive has not changed the core definition of 'waste', which is still designated as 'any substance or object which the holder discards or intends or is required to discard' (Article 3(1)), although the previous requirement that the substance or object belong to one of the categories listed in (old) Annex I has been removed, along with the Annex itself.
However, the amendment to some other provisions results in a substantial alteration and clarification of this definition of 'waste'. In effect, the 2008 Directive extends the list of exclusions from its scope (Article 2) and explains that the concepts of 'prevention' and 're-use' only apply to materials which are not waste (Article 3(12) and (13)). The Directive codifies the ECJ's case law (see summary above) by listing the conditions that must be met for a 'substance or object' to qualify as an industrial by-product rather than waste (Article 5). A series of conditions are also set out for determining when a waste ceases to be waste as a result of a recovery operation ('end-of-waste status') (Article 6).
The definitions of 'recovery' and 'disposal' are expanded so that they no longer rely simply on operations listed in an annex. 'Recovery' is defined as 'any operation the principal result of which is waste serving a useful purpose by replacing other materials which would otherwise have been used to fulfil a particular function, or waste being prepared to fulfil that function, in the plant or in the wider economy', with the list of disposal operations provided in Annex II described as not exhaustive. This concept of recovery has been described as an 'umbrella concept' encompassing recycling, re-use, preparation for re-use or energy recovery.
'Disposal' is defined as 'any operation which is not recovery even where the operation has as a secondary consequence the reclamation of substances or energy', with the Annex I list of disposal operations again said not to be exhaustive.
A definition of 'treatment' is also inserted into the new Directive as 'recovery or disposal operations, including preparation prior to recovery or disposal'.
Waste Hierarchy
The Directive simplifies the priority order to be followed by Member States in waste prevention and management legislation and policy (Article 4). This waste hierarchy now consists of the following 5 levels: prevention, preparing for re-use, recycling, other recovery (such as energy recovery) and disposal.
Member States are allowed to deviate from this order for specific waste streams, if that is necessary to achieve 'the best overall environmental outcome'. They are also required to take into account the principles of precaution and sustainability, as well as technical feasibility, economic viability, protection of resources and 'the overall environmental, human health, economic and social impacts', in addition to ensuring that legislation and policy is developed in a fully transparent way, observing national rules about public consultation.
Member States Obligations under the Directive
Member States must establish waste prevention programmes (by 12 December 2013) (Article 29), take the necessary measures to ensure that waste undergoes recovery (subject to the qualifications in Article 4, above), arranging for separate collection of wastes where necessary (Article 10), and take appropriate measures to promote the re-use and recycling of wastes (Article 11).
When recovery is not possible, Member States must ensure that disposal operations meet the general requirements for protection of human health and the environment set out in Article 13, which entails that they should be undertaken: (a) without risk to water, air, soil, plants or animals; (b) without causing a nuisance through noise or odours; and (c) without adversely affecting the countryside or places of special interest.
Article 14 replaces the polluter pays provision from the 2006 Directive, but both broadens and qualifies it. In the first instance, where the 2006 provision referred to the costs of waste disposal, the 2008 version refers to the costs of waste management in general, as follows: 'In accordance with the polluter-pays principle, the costs of waste management shall be borne by the original waste producer or by the current or previous waste holders.' A second clause has been added, however, which seems to offer Member States some discretion over the implementation of this requirement: 'Member States may decide that the costs of waste management are to be borne partly or wholly by the producer of the product from which the waste came and that the distributors of such product may share these costs.'
Article 15 contains further provisions regarding responsibility for waste management. It requires Member States to ensure that the original waste producer or other holder either carries out the waste treatment himself or has it done by another entity in compliance with the Directive's environmental and safety requirements. It specifies that, when the original producer or holder transfers the waste to a separate entity for preliminary treatment, 'the responsibility for carrying out a complete recovery or disposal operation shall not be discharged as a general rule.' It gives Member States discretion over the conditions under which the original producer of the waste retains responsibility for the whole treatment chain or can share or delegate that responsibility among the various actors in the chain. It also adds that, in accordance with Article 8 on Extended Producer Responsibility (see below), Member States may decide that the responsibility for arranging waste management is to be borne partly or wholly by the producer of the product from which the waste came and that distributors of the product may also share that responsibility.
Article 8 itself, although largely discretionary, establishes the principle of extended producer responsibility, under which the producer of a product (anyone who professionally develops, manufactures, processes, treats, sells or imports products) may be obliged to accept not only returned products and waste that remains after the products have been used, but also financial responsibility for such activities.
Similarly to the previous Directive, Member States must require any operator intending to carry out 'waste treatment' activities to obtain a permit from the competent authority, in compliance with the conditions set in Article 23. However, the Directive clarifies previous permitting requirements, including those for monitoring and after-care, and includes a provision requiring the competent authority to refuse a permit if 'the intended method of treatment is unacceptable from the point of view of environmental protection', as well as another stating that any permit covering incineration for energy recovery must require a high level of energy efficiency.
Other provisions in the Directive cover matters such as information requirements for registering waste establishments, record keeping and technical minimum standards for treatment activities, together with Member States' obligations on waste management plans and waste prevention programmes, and deadlines for a series of Commission reports on progress.
Impact upon other Directives
From 12 December 2010, the Revised Waste Framework Directive replaces the Directive on the Disposal of Waste Oils (Directive 75/439/EEC), the Hazardous Waste Directive (Directive 91/689/EEC) and the 2006 Waste Framework Directive, all of which are repealed. Most of the provisions from those directives have been integrated into the new text. Article 31 of the 2008 Directive also specifies that all references made to the repealed directives in other EU legislation are to be construed as referring to the Revised Directive in accordance with a correlation table included in an annex.
In addition, the Revised Directive makes explicit reference to the Transfrontier Shipment of Waste Regulation (Regulation No. 1013/2006) and the Integrated Pollution Prevention and Control (IPPC) Directive (Directive 2008/1/EC - previously 96/61/EC). In the first case, it takes the Regulation into account with respect to the Member State network of waste disposal and recovery installations (Article 16(1)), the labelling of hazardous waste (Article 19(2)) and the transboundary shipment of waste oils (Article 21(3)). In the second case, several provisions in the Revised Directive require waste activities, including those exempted from other requirements, to comply with the standard of 'best available techniques' (BAT) set under the IPPC Directive.
Key legal issues concerning CCS
The CCS amendment to the 2006 Waste Framework Directive
Neither the 2006 Directive nor the 2008 Revised Directive made an explicit reference to CCS activities or the treatment of captured CO2 within either their text or their annexes. Prior to 2009, therefore, it was important to consider whether captured CO2 was in fact waste and whether CO2 storage activities constituted 'discarding' under the Waste Framework Directive or its daughter directives.
As mentioned in the introduction, the main part of this issue was resolved by virtue of Article 35 of the CCS Directive adopted in April 2009 (Directive 2009/31/EC). That amends Article 2(1)(a) of the 2006 Waste Framework Directive to categorically remove 'carbon dioxide captured and transported for the purposes of geological storage' from the definition of 'waste', provided it is geologically stored in accordance with the CCS Directive or is excluded from its requirements under Article 2(2) of that Directive (covering small scale research facilities). This seems to solve the issues associated with whether CO2 captured and stored in the course of CCS operations is to be considered 'waste' and therefore subject to the provisions of the EU waste legislation.
It needs to be remembered, however, that this exclusion from the EU waste management rules only applies (a) to CO2 and (b) provided its handling conforms to the requirements of the CCS Directive. That means that two aspects of CCS operations will remain subject to the waste regime: first, all handling of the numerous non-CO2 substances and materials that fall within the definition of waste (amines, solvents, lubricants, metals, etc); and second, any CO2 that escapes containment from approved CCS vessels or sites, whereupon it could be deemed waste under the principles enunciated in the Commune de Mesquer judgment of the European Court of Justice (see above). In the latter case, both the polluter pays and responsibility provisions, in Articles 14, 15 and 8 respectively, although relatively undeveloped at this stage, could in the long run have a bearing upon who is required to remedy the harm.
Impact on Hazardous Waste Directive and Landfill Directive
The amendment to the definition of 'waste' under the Waste Framework Directive has an impact upon other directives which use this same definition. That includes not only the soon to be repealed Hazardous Waste Directive (Directive 91/689/EC), but also other daughter directives, such as the Landfill Directive (Directive 1999/31/EC). The exclusion of captured CO2 for the purpose of permanent geological storage from the scope of the Waste Framework Directive will apply to those other directives, removing CO2 captured, transported and geologically stored in accordance with the CCS Directive from their scope.