3. EPR IN PRACTICE: WASTE DIRECTIVE AND PACKAGING AND PACKAGING WASTE
3.1 Waste Directive as an EPR Framework
3.1.1 Article 8 for General Requirements
Article 8 sets general requirements for EPR schemes referring to minimum operating requirements since the effectiveness and performance of the plans differ between the Member States165. Whereas general requirements of Article 8 apply to all EPR schemes, whether collective or individual, Article 8a provides minimum requirements for the schemes to function. Article 8 provides a possibility for the Member States to execute actions for EPR as the Member States “…may take legislative or non-legislative measures to ensure...166” those actions. The Member States are not obligated to do so but Article presents an opportunity to do so. Since waste prevention is regarded as “the most efficient way to improve resource efficiency and to reduce environmental impact of waste” the Member States need to implement measures167.
162 Van Calster 2015, p. 50.
163 Opinion of AG in cases C-304/94, C-330/94. C-342/94, and C-224/95 Criminal proceedings against Euro Tombesi and others point 56.
164 COM(2020) 98 final p. 14.
165 Waste Directive preamble 21.
166 Waste Directive art. 8(1).
167 Waste Directive preamble 29.
The measures ensure that any natural or legal person has extended producer responsibility, however, this person needs to fulfill certain requirements which are then defined as a producer of the product. The producer of the product as having EPR must be a professional who either “…develops, manufactures, processes, treats, sells or imports products”.168 The producer of the product, in other words, bears the “financial responsibility for the management of the waste stage of the product’s life cycle” as stated in Article 3(21) of the Waste Directive. The same Article also refers to financial and organizational responsibility of the waste management of the product. Article 8(1) explains the responsibility by affirming that a Member State’s measures whether legal or non-legal “may include acceptance of the returned” product and waste stream of the product including financial responsibility of these activities. In addition to these actions, measures may include “an obligation to provide information” for public of the reusability and recyclability of the product. If there is a PRO for the products involved Article 8a of the Waste Directive shall apply for minimum requirements: a Member State can choose which of the requirements it wants to cover as measures for EPR169.
With appropriate measures a Member State is able to encourage producers to have less impact on environment by emboldening producers to design their products environmental friendlier. Measures can also recommend to prefer circular economy by encouraging producers to keep in mind the waste hierarchy introduced in Article 4.170. However, the waste hierarchy has raised some critique, for example, of hierarchy’s priority order and of not having a positive impact on dematerialization and decoupling171. Article 4(3) states that
“Member States shall make use of economic instruments and other measures to provide incentives for the application of the waste hierarch…”. Examples of the measures are introduced in the annex part of the Directive and they can include, for example, pay as you throw schemes where producers are being charged on the basis of the actual amount of waste they generate and EPR schemes for various types of waste and measures to increase their effectiveness, cost efficiency and governance172. Pay as you throw schemes can be problematic as discussed in the subchapter 2.1.2 since the lack of causal connection between
168 Waste Directive art. 8(1).
169 More of the requirements in the subchapter 3.2.2.
170 Waste Directive art. 8(2).
171 Behrens et al . 2007, p. 445 and 449, Van Ewijk 2016, p. 124-125.
172 Waste Directive Annex IVa points 2 and 4.
environmental harm and producer. What happens, for example, for historical products which no longer have a producer in business?
An EPR scheme must “take into account the technical feasibility and economic” viability173. The technical feasibility refers to the fact that a Member State cannot ask for more than can be executed by producers when it comes to measures. Article 8a(1) declares that producers must be treated equally regardless of, for example, their sizes. The Waste Directive encourages Member States to take measures which support EPR, however, the final responsibility rests in Member States. The “allocation of responsibilities for waste management between public and private actors” aim to circular economy and “decision on the allocation of responsibilities frequently depends on geographical and structural conditions” in the State174. Economic viability refers to financial responsibilities but at the bottom of economic viability is the principle of polluter pays.
Article 8(4) expresses even clearly the responsibility of the Member States since EPR
“…shall not be applied without prejudice to the responsibility for waste management as provided for in article 15(1)…”. Article 15 states of waste management responsibility.
Member States must “take necessary measures that an original waste producer or a holder carries out the waste treatment himself or has the treatment be handled by” someone else, for example, a public waste collector175. The responsibility – referring to financial and financial and organizational responsibilities – lays within the producer but operational functions of waste management can be delegated: the Directive does not take a stand whether the operator is public or private. Member States can “decide in which cases the original producer is to retain responsibility for the whole treatment chain and in which cases the responsibility” can be delegated176. If there is product specific legislation available application of EPR in certain areas must consider lex specialis177: otherwise the Member
173 Waste Directive art. 8(3).
174 Waste Directive preamble 7.
175 Waste Directive art. 15(1).
176 Waste Directive art. 15(2) and art. 15(3).
177 Waste Directive art. 8(4).
States are able to choose which products the EPR requirements are covering as long as they take into consideration the waste hierarchy178 and environmental protection179.
The final point in Article 8 deals with “exchanging of information between the Member States and the Commission”. If there are PROs involved exchanging of information concerns also them accordingly to Article 8a(1)(c). Based on the gathered information the Commission can provide guidelines on waste management.180 For avoiding “distortion of internal market the Commission can adopt implementing acts” regarding collective fulfilment of financial EPR obligations as ruled in Article 8a(4)(b).