On 30 May 2018, the European Parliament and the Council adopted new amendments to key EU waste legislation. As part of the EU's Circular Economy Action Plan, European leaders have set higher waste recycling targets. Member States will now be obliged to recycle at least 55% of their municipal waste by 2025, 60% by 2030 and 65% by 2035. Other significant measures include a focus on end-of-waste criteria and stricter schemes to make producers pay for the collection of key recyclables.

Towards a circular economy

A key focus area of the European Commission's efforts to develop a sustainable and competitive European economy is the transition to a circular economy. In this type of economy, resources are used in a sustainable fashion. When a product reaches the end of its life, it is recycled or re-used. Waste and resource use are thus minimised.

On 3 December 2015, the European Commission presented its Circular Economy Action Plan. A key element of the action plan is the so-called "waste package" which consist of four legislative proposals. The proposals deal with the full lifecycle of products, from the first stages of production through consumption to waste management and the market for secondary raw materials.

On 30 May 2018, after several rounds of negotiations, the European Parliament and the Council finally reached an agreement on the proposals and adopted, amongst other legislation, Directive 2018/851 amending Directive 2008/98/EC on waste.

Waste Framework Directive

Directive 2008/98/EC, also known as the Waste Framework Directive, is key to European waste law. It provides general rules that apply to all categories of waste. The directive defines key concepts such as "waste", imposes a general duty to ensure that waste is treated in an environmentally friendly manner, and lays down waste management principles such as the "polluter pays principle" and the "waste hierarchy". In addition, the Waste Framework Directive provides detailed measures to protect the environment by preventing or reducing the adverse effects of waste generation and management.

"Waste" is defined as any substance or object which its holder discards or intends or is required to discard.

On the other hand, a substance or object that results from a production process whose primary aim is not to produce that item may be regarded as a by-product rather than waste if:

(a) further use of the substance or object is certain;

(b) the substance or object can be used directly without any further processing other than normal industrial practice;

(c) the substance or object is produced as an integral part of the production process; and

(d) further use of the substance or object is lawful, i.e. the substance or object fulfils all relevant product, environmental and health protection requirements for the specific use and will not lead to overall adverse environmental or human health impacts.

Certain specified waste shall cease to be considered waste and achieve end-of-waste status when it undergoes a recovery process, such as recycling, and meets specific criteria to be developed in accordance with the following conditions:

(a) the substance or object is commonly used for specific purposes;

(b) a market or demand exists for the substance or object;

(c) the substance or object fulfils the technical requirements for these specific purposes and meets the existing legislation and standards applicable to such products; and

(d) use of the substance or object will not lead to overall adverse effects on the environment or human health.

In practice, the question often arises as to whether a certain material constitutes "waste" or a "by-product" or rather a material which has ceased to be waste. Although the European Court of Justice has interpreted these concepts on numerous occasions, the definition of "discard" remains somewhat unclear. Therefore, a case-by-case analysis must be performed in light of the Court's case law and the decisions by national authorities on similar products.

The Waste Framework Directive also lays down a five-step priority order which Member States must apply when developing their waste prevention and management legislation and policies:

1. Waste prevention

2. Re-use

3. Recycling

4. Recovery (including energy recovery)

5. Safe disposal (last resort)

The Waste Framework Directive allows the Member States to extend so-called producer responsibility to strengthen the re-use, prevention, recycling and other recovery of waste. Producer responsibility may include an obligation to make publicly available information regarding the extent to which a product is re-usable and recyclable or to accept returned products and waste that remains after the products have been used as well as subsequent management of waste and financial responsibility for such activities.

Amendment of the Waste Framework Directive

Directive 2018/851 amends the Waste Framework Directive 2008/98/EC by raising the targets for re-use and recycling of municipal waste to 55% by 2025, 60% by 2030 and 65% by 2035, introducing a number of new definitions, establishing bio-waste separation and household hazardous waste collection, changing the end-of-waste criteria, extending producer responsibility schemes, and updating record-keeping requirements. Directive 2018/851 further encourages Member States to reduce their food waste by 50% by 2030 and combat marine litter.

Directive 2018/851 amends Article 6 of the Waste Framework Directive regarding end-of-waste status by removing paragraph 1(b) of Article 6. This paragraph provided that a waste product would cease to qualify as waste if a market or demand existed for the substance or object in question. Henceforth, it will no longer be required to demonstrate that a market or demand exists for a specific material in order for it to achieve end-of-waste status.

A paragraph was also added to Article 6, requiring the natural or legal person that uses for the first time a material that has ceased to be waste and has not been placed on the market, or that places a material on the market for the first time after it has ceased to be waste, to ensure that the material meets the relevant requirements under the applicable chemical and product-related legislation. However, the final determination of whether the conditions laid down in Article 5 or 6 of the Waste Framework Directive are fulfilled remains the exclusive responsibility of the Member State, based on all relevant information provided by the holder of the material or waste. Member States can nonetheless require operators recovering waste or the holders of recovered waste materials to demonstrate compliance with the conditions laid down in Article 6(1) of Directive 2008/98/EC as amended by Directive 2018/851.

Directive 2018/851 further empowers the European Commission to monitor the development of national end-of-waste criteria in the Member States and to adopt implementing acts in order to establish detailed criteria on the uniform application of certain end-of-waste criteria.In addition to the aforementioned recycling targets for municipal waste, the Waste Package also provides specific targets for packaging. By 2030, Member States will be required to recycle 70% of all packaging, 55% of plastic, 30% of wood, 80% of ferrous metals, 60% of aluminium, 75% of glass, and 85% of and paper and cardboard.

Aside from these targets, Member States will have until 1 January 2025 to provide for the separate collection of textile waste and hazardous household waste to ensure that they are treated correctly and do not contaminate other municipal waste streams. By 31 December 2023, bio-waste must either be collected separately or recycled at source through home composting.In addition, producers active within the European Union will have to contribute to the financial cost of treatment at the end of a product’s life cycle. Mandatory extended producer responsibility schemes for all packaging have been introduced. Finally, Directive 2018/851 obliges professional waste treatment companies, hazardous waste collectors, transporters, dealers and brokers to record the quantity of products and material resulting from preparing for re-use, recycling and other recovery operations.

Directive 2018/851 entered into force on 4 July 2018. The Member States are obliged to transpose it into national law within two years' time.

Analysis

Directive 2018/851 marks the end of lengthy negotiations between the European institutions. While the agreed recycling targets are less ambitious than those initially proposed by the European Parliament (70% by 2030) and the Commission (65% by 2030), any and all efforts to improve recycling and reduce landfill waste are a step in the right direction.

In keeping with the spirit of a circular economy, the new directive goes beyond a focus on the end-of-life stage and emphasises the importance of legal certainty regarding the waste or non-waste status of substances and greater transparency in Member State approaches to end-of-waste conditions. All measures to ensure that waste which has undergone a recovery operation is no longer considered waste, provided it meets the necessary conditions such as material and application-specific end-of-waste criteria, as well as guidance documents, case-by-case decisions and verification by the competent authorities are appreciated. Indeed, end-of-waste status is perhaps currently one of the most interesting areas of EU waste law.