Draft new EU rules on cross-border shipment of waste published

On 17 November 2021, the EU Commission published its long awaited draft legislative proposal to revise and replace the existing 2006 EU Shipment of Waste Regulation (EC 1013/2006) (the "Existing EU SWR").

The proposal has three key aims: (i) better supporting the EU's transition to a circular economy (ii) better controlling the volume and level of environmental protection of wastes exported outside the EU and (iii) giving the EU SWR greater teeth from a surveillance/enforcement perspective (the "Proposal").

The Proposal is quite separate from and is not driven by actual/currently proposed amendments to the related Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal. In particular, it does not reflect or incorporate the proposed changes to the Basel Convention currently being sponsored by the EU/Switzerland/Ghana/others as outlined in the Basel Convention Summary Note.

The Commission has chosen to propose the enactment of a completely new EU SWR, repealing and replacing in its entirety the Existing EU SWR, rather than an introducing an instrument merely setting out amendments to the Existing EU SWR. Whilst the Commission has characterised the review as leading to "far-reaching changes", comparison of the text of the proposed new regulation with the Existing EU SWR shows that in fact the structure and content of the Existing EU SWR is largely left intact, and the amendments to the existing regime are not particularly extensive. The changes proposed are mainly enhancements to/modernisations of, rather than material alterations of, the existing regime.

However, it is important to note that the Proposal includes the creation of new powers for the EU Commission to issue further legislation/guidance in the future to, among other things, address waste being illegally presented as "used goods" by developing specific binding criteria to differentiate between waste and used goods for specific commodities of particular concern, "such as used vehicles and batteries".

the Proposal contains the following key changes, which may be grouped into three categories:

Category 1: changes aimed at facilitating shipments within the EU, to better align the EU SWR with circular economy objectives:

(a) Improvement of the regime of "pre-consented" facilities;

(b) Streamlining of the PIC notification procedure;

(c) Clarification of certain aspects of the EU SWR's scope;

(d) Set up of a mandatory EU-wide electronic data interchange (EDI);

(e) Streamlining of the financial guarantee system;

(f) Ensuring alignment with the provisions on end-of-waste and by-products in Arts 5 and 6 of the EU Waste Framework Directive;

(g) Tasking the Commission, through delegated or implementing acts, to set thresholds for contamination of certain wastes to determine if they should be subject to the PIC notification procedure or not;

Category 2: changes aimed at ensuring that waste exported from the EU is managed in an environmental sound manner ("ESM"):

(a) By specifying obligations for exporters and public authorities to verify that waste exported from the EU to third countries is managed in an ESM;

(b) By tasking the Commission to set out criteria to differentiate between used goods and waste, for specific waste streams for which export to third countries raises particular challenges:;

(c) By establishing, through further delegated acts, a new framework in which non-OECD countries have to notify the EU of their willingness to import green-listed waste from the EU and demonstrate their ability to treat it sustainably;

(d) By setting up a specific procedure to monitor export of waste from the EU to OECD countries and mitigate environmental problems that might be caused by such exports;

Category 3: changes aimed at improving enforcement of illegal waste shipments:

(a) Improve provisions on inspections and enforcement and their follow-up;

(b) Empower the Commission (through OLAF, the European Anti-Fraud Office) to carry out transnational investigative and coordinating actions against waste trafficking in the EU;

(c) Reinforce existing provisions on infringements and penalties;

(d) Facilitate cooperation between enforcement authorities at the national level;

(e) Create a dedicated enforcement group at EU level with the task to facilitate and improve cooperation on enforcement of the EU SWR.

It seems unlikely - though not impossible - that the replacement EU SWR will be enacted in 2022, and rather more likely that this will occur at some point during 2023.

The provisions will then apply within 2 months of publication of the final regulation in the EU Official Journal with the exception that a number of provisions (including certain of the PIC procedure amendments; aspects of the pre-consenting of facilities; and the operation of the electronic information and document exchange system) will not take effect for a further two years thereafter (so likely not before 2025 at the earliest and certain other provisions ( establishment of the list of non-OECD countries that have consented to accept green-list waste; auditing of destination facilities ) will not take effect for a further year after that (3 years in total after the regulation is published (so likely not before 2026 at the earliest).

The Proposal will now be debated in and negotiated between the EU Parliament and Council.