Shipments of Waste

Since 1994 the EU has been a party to the Convention on the Control of Transboundary Movement of Hazardous Wastes and Their Disposal (‘the Basel Convention’), which imposes a requirement for prior informed consent for most waste exports and also, subject to the entry into force of an amendment, prohibits export of waste for disposal to most non-OECD States.44 The Basel Convention furthermore requires export of hazardous waste and other waste to be reduced to the minimum consistent with the environmentally sound and efficient management of such waste.

In 1984 the then EEC adopted a Directive on the supervision and control within the European Community of the transfrontier shipment of hazardous wasted An amendment in 1986 extended its scope to the export of hazardous waste to nonMember States. In 1992 the OECD Council adopted a decision on the control of transfrontier movements of waste destined for recovery operations which introduced a three-tier system classifying waste into ‘green’, ‘amber’, and ‘red’ lists respectively, and prescribed specific control measures to be applied with regard to amber- and red-list waste.^{[1] [2] [3] [4] [5] [6] [7]}

Following the EEC’s signing of the Basel Convention and its approval of the OECD Decision, the Directive was replaced in 1993 by Regulation (EEC) No 259/93 on the supervision and control of shipments of waste within, into, and out of the European Community.47 In 2006 that regulation too was repealed and replaced by Regulation (EC) No 1013/2006 on shipments of waste, which incorporated several amendments made to the previous regulation.4®

The 2006 Regulation establishes procedures and control regimes for the shipment of waste. These procedures and regimes differ depending on the origin, destination, and route of the shipment; the type of waste shipped; and the type of treatment to be applied to the waste at its destination. It does not apply to shipments of radioactive waste or to the offloading to shore of waste generated by the normal operation of ships and offshore platforms (Art 1). It should be noted that shipments of radioactive waste and spent fuel are the subject of a Euratom Directive which is not further discussed here.49

The Regulation is extensive (sixty-four articles and nine annexes) and quite com- plex.5⁰ It is divided into seven Titles dealing with, inter alia, shipments within the EU (Title II), shipments exclusively within Member States (Title III), exports from the EU to third countries (Title IV), imports into the EU from third countries (Title V), and transit through the EU from and to third countries (Title VI). The high level of complexity is partly due to the fact that the Regulation is used to comply with the Union’s obligations under the Basel Convention and the OECD decision concerning the control of transboundary movements of waste destined for recovery operations as well as with other international commitments^¹

Briefly put, shipments of waste between Member States are subject to a procedure of prior written notification and consent when the waste is destined for disposal or if it is hazardous waste destined for recovery. In these cases consent is required from both the competent authority for the area to which the shipment is planned or takes place and the competent authority for the area from which the shipment is planned to be initiated or is initiated, as well as, where relevant, the competent authority for any country of transit. (Arts 3 and 9.)

A competent authority of destination or dispatch may consent to a shipment destined for disposal or raise reasoned objections based on a number of grounds. Among these are that the planned shipment or disposal would not be in accordance with measures taken to implement the principles of proximity, priority for recovery, and self-sufficiency at EU and national levels in accordance with the FDW (Directive 2008/98/EC) to prohibit generally or partially or to object systematically to shipments of waste; or that it would not be in accordance with national legislation relating to environmental protection, public order, public safety, or health protection concerning actions taking place in the objecting country. The legitimate reasons for raising objections to shipments of hazardous waste destined for recovery are similar but more limited. (Arts 11 and 12.)

Shipments of non-hazardous waste destined for recovery operations do not need prior consent but must be accompanied by a standardised information document, drawn up on the basis of a contract which must comply with certain requirements (Art 18).

The principle of proximity, which, according to Article 16 of the FDW applies to certain waste, has implications for the shipment of waste between Member States. As previously mentioned, Member States shall establish an integrated and adequate network of waste disposal installations and of installations for the recovery of mixed municipal waste collected from private households. By way of derogation from Regulation (EC) No 1013/2006, Member States may, in order to protect their networks, limit incoming shipments of waste destined to incinerators that are classified as recovery, where it has been established that such shipments would result in national waste having to be disposed of or waste having to be treated in a way that is not consistent with their waste management plans. Also, the grounds for limiting outgoing shipments of waste in Regulation (EC) No 1013/2006 may be read in the light of this article in the FDW.

The Court of Justice has found that a local authority may require the undertaking responsible for the collection of waste on its territory to transport mixed municipal waste collected from private households and, as applicable, other producers, to the nearest appropriate treatment facility established in the same Member State. But such a de facto general prohibition on shipments of waste to other facilities, including those in other Member States, is not permissible in relation to waste destined for recovery operations other than mixed municipal waste, since the principle of proximity does not apply to them.52

5² Case C-292/12 Ragn-Sells (n 40), paras 63 and 66.

For all shipments of waste for which prior notification is required, a contract must be concluded between the notifier and the consignee for the recovery or disposal of the notified waste. Among other things, the contract must oblige the no- tifier to take the waste back if the shipment or the recovery or disposal has not been completed as intended or if it has been effected as an illegal shipment. Such shipments must also be covered by a financial guarantee or equivalent insurance covering costs of transport, of recovery or disposal, and of storage for ninety days. (Arts 5 and 6.)

Where a shipment of waste, including its recovery or disposal, cannot be completed as intended, the waste in question shall, with some exceptions, be taken back to the country of dispatch (Art 22).

Also with respect to shipments of waste that take place exclusively within its own jurisdiction, each Member State is required to establish appropriate systems for supervision and control (Art 33).

All exports of waste from the EU destined for disposal are prohibited, with the exception of exports destined for disposal in EFTA countries which are also Parties to the Basel Convention (ie Iceland, Norway, and Switzerland) (Art 34). Exports from the EU of hazardous waste and waste collected from households destined for recovery in countries to which the OECD Decision does not apply, that is, non-OECD countries, are, with some limited exceptions, also prohibited. Non-hazardous waste intended for recovery may be exported to countries to which the OECD decision does not apply according to a particular procedure by which the Commission shall send written requests to each such country asking for a confirmation in writing that non-hazardous waste may be exported for recovery in that country. Export of waste destined for recovery in countries to which the OECD Decision does apply is subject to a procedure of prior written notification and consent when the waste is hazardous or has been collected from households. (Arts 37 and 38.)

Imports into the EU of waste destined for disposal are only allowed from countries which are Parties to the Basel Convention and other countries with which bilateral or multilateral agreements or arrangements compatible with EU law and the Basel Convention have been concluded. Imports into the EU of waste destined for recovery are also allowed from Parties to the Basel Convention and countries with which bilateral or multilateral agreements or arrangements have been concluded, with the addition of countries to which the OECD Decision applies. (Arts 41 and 43.)

All undertakings involved in a shipment of waste and/or its recovery or disposal shall take the necessary steps to ensure that any waste they ship is managed without endangering human health and in an environmentally sound manner (Art 49).

Waste subject to prior written notification and consent is listed in Annex IV (the ‘amber’ list), whereas waste subject only to a general information requirement is listed in Annex III (the ‘green’ list). Annex V lists waste subject to export prohibition.

The Regulation is based on an article corresponding to the current article 192(1) TFEU and the preamble makes clear that its predominant objective is the protection of the environment, whereas its effects on international trade are only incidental.

• [1] Council Directive 84/631/EEC on the supervision and control within the European Communityof the transfrontier shipment of hazardous waste [1984] OJ L 326/31.
• [2] Decision of the Council Concerning the Control of Transfrontier Movements of WastesDestined for Recovery Operations (30 March 1992) C (92)39/Final.
• [3] 47 Council Regulation (EEC) No 259/93 on the supervision and control of shipments of wastewithin, into and out of the European Community [1993] OJ L 30/1.
• [4] 48 Regulation (EC) No 1013/2006 of the European Parliament and of the Council on shipmentsof waste [2006] OJ L 190/1.
• [5] Council Directive 2006/117/Euratom on the supervision and control of shipments of radioactive waste and spent fuel [2006] OJ L 337/21.
• [6] Jans and Vedder characterise it as ‘an extremely complicated piece of legislation’. J H Jans andH H B Vedder European Environmental Law After Lisbon (4th edn, Europa Law Publishing, 2011) 492.
• [7] The currently applicable OECD decision is the Decision of 14 June 2001, C(2001)107/FINAL,as amended. On other international agreements in this area see Langlet Prior Informed Consent andHazardous Trade (n 44) Chap 5.