Article 8a Provides General Minimum Requirements for EPR Schemes

Whereas Article 8 provides a possibility for the Member States to establish EPR schemes, Article 8a rules how the schemes need to function in the union. Article 8a recognize some of the key issues and challenges that need to overcome for implementing EPR schemes successfully¹⁸¹. As the financial burden rests within producers or holders of the waste certain actions need to be taken as indicated in Article 3(21). Article 8(5) states that the Commission shall publish guidelines concerning EPR schemes. The Commission believes that the complete and correct transition of the legislation, referring to Article 8a, is essential to guarantee that the objectives of the waste legislation, such as protecting environment and increasing resource efficiency, are achieved¹⁸². However, there are no guidelines¹⁸³, and “in the absence of appropriate guidance, there is a risk that elements of Article 8a are implemented in divergent ways across the Member States”¹⁸⁴.

Article 8a starts by declaring Member States’ obligations when EPR schemes are established in the country. Roles and responsibilities of all relevant actors including those who place products on the market of the Member State must be clear. These stakeholders can include,

178 Waste Directive art. 4(1).

179 Waste Directive art. 13.

180 Waste Directive art. 8(5).

181 Steenmans 2019, p. 121.

182 COM(2015) 595 final, p. 6.

183 This paper is written in summer 2021.

184 Hogg et al. 2020, p. 2.

for example, producers of products, public waste operators, local authorities, and organizations implementing EPR obligations on behalf of other stakeholders (PROs).¹⁸⁵ The Article states of involving stakeholders but it does not identify which stakeholder bears what responsibility neither it states or provides further information what is expected or fair in the allocation of responsibilities¹⁸⁶

In addition to roles and responsibilities, waste management targets must be set. Targets are based on waste hierarchy and they are set individually for each scheme. Targets can be either quantitative or qualitative or they can be both.¹⁸⁷ Qualitative objects may be considered if they are relevant, however in many cases quantitative targets seem to be more suitable. Such measures are set, for example, in the Packaging and Packaging Waste Directive which is discussed in the subchapter 3.2 and in the SUPD discussed in the chapter 4. Member States should ensure that the necessary costs regarding targets are achieved through relevant EPR schemes¹⁸⁸. However, targets can be seen as additional instruments supporting EPR as part of integrated regulatory approach¹⁸⁹.

The third obligation considers reporting. As well as the roles and the responsibilities of each stakeholders are not clearly identified, the requirements of reporting lack specific information. Article 8a(1)(c) states that the Member States must make sure that “…reporting system is in place to gather data on products…” which are under EPR schemes. Although data is not defined, Article requires, additionally, information of “collection and treatment of waste resulting from the products” as well as any other information which may be useful in relation to waste management targets. Article 37 defines some Member State obligations regarding reporting on reuse and recycling targets of certain products. Such targets defined in Article 11(2) concern, for example, the amount of recycling of plastic in percentage in certain specified year. If the reporting responsibility of Article 37 has been passed to a producer or PROs as stated in Article 8a(1)(c), Member States must ensure that such systems exist and information is available. When analyzing EPR in practice Kaffine and O’Reilly

185 Waste Directive art. 8a(1)(a).

186 Steenmans 2019, p. 121.

187 Waste Directive art. 8a(1)(b).

188 Study to Support Preparation of the Commission’s Guidance for Extended Producer Responsibility Schemes 2020, p. 14-15.

189 Steenmans 2019, p. 121.

came to conclusion that requirement of data may indicate a need for proofing the effectiveness of EPR schemes¹⁹⁰.

The fourth obligation is about “equal treatment of producers of products regardless of origin and size”. Therefore, no “disproportionate regulatory burden on producers” cannot take place, and small and medium-sized businesses which produce a small amount of products must be treated equally¹⁹¹. Equal treatment is to be “understood in the context of the polluter pays” principle¹⁹². Polluters should pay as stated in Article 191(2) of TFEU but it must be done equally depending on size and quantities of products produced. When discussing of equal treatment in reporting obligations bigger producers are most likely to have sufficient administrative capacity whereas small and medium-sized producers lack that capacity: the reporting requirements should not be disproportionate¹⁹³.

Article 8a(2) sets an obligation for Member States to ensure that producers have information about waste. This must include information about waste prevention, centers for reuse and preparing for reuse, and take-back and collection systems. In addition, where appropriate, Member States are required to create incentives, either in a form of economic or regulations, for waste holders to assume their responsibilities “to deliver their waste into the separate collection systems”. The requirements laid down in Article 8a “should reduce costs, boost performance, ensure an equal level playing field”, and “avoid obstacles to the smooth functioning of the internal market”¹⁹⁴ and therefore incentives by Member States cannot destabilize internal market. Nonetheless, incentives can be, for example, financial rewards of high recycling rates. When there are competing PROs in a Member State an equal treatment of PROs regarding incentives is important.¹⁹⁵

190 Kaffine and O’Reilly 2015, p. 2.

191 Waste Directive 8a(1)(d).

192 Study to Support Preparation of the Commission’s Guidance for Extended Producer Responsibility Schemes 2020, p. 81.

193 Study to Support Preparation of the Commission’s Guidance for Extended Producer Responsibility Schemes 2020, p. 82.

194 Waste Directive recital 22.

195 Study to Support Preparation of the Commission’s Guidance for Extended Producer Responsibility Schemes 2020, p. 7 and 26.

Article 8a(3) obligates Member States to see that individual producers or PROs cover their producer’s responsibilities both geographically and in terms of product and material coverage¹⁹⁶. Although responsibilities are most likely easiest and most cost-effective to fulfill in areas covering lots of people, and therefore also waste, Article requires that the responsibilities must be fulfilled regardless of the fact. Since the Member States differ in size and in a number of inhabitants living in rural areas it might be assumable that Member States could use incentives for this: Article 8a(3) states that Member States must have “…the necessary financial means or financial and organizational means to meet its extended producer responsibility obligations…”. This could be supported by a precondition that EPR schemes “should ensure continuity of waste management services throughout the year, even if the targets and objectives applicable to them” are met¹⁹⁷.

In order to achieve in the requirements of Article ERP schemes must have self-control mechanism which pay attention to financial management and to the quality of data collected and reported according to Article 8a(1)(c). If necessary, mechanisms are supported by independent audits which should be done on regular basis. Auditing should be reviewed specially when the “expected level of performance is not being achieved”. In such cases a review might end up to recommend revised service model or additional support, for example, in training or finance.¹⁹⁸ Besides self-control mechanisms, producers fulling EPR schemes must make publicly available information regarding waste management targets as ruled in Article 8a(1)(b). If there are PROs acting on behalf of producers there must also be information about ownership of PRO, members, financial contribution paid by producers of products and selection of procedure for waste management operations.¹⁹⁹

Article 8a(4) concerns “financial contributions paid by producers to comply with its EPR obligations” when being a part of PRO. This area is not in a scope of this research and therefore it is not covered here. In addition, the issue does not seem to be very clear²⁰⁰ and

196 Waste Directive art. 8a(3).

197 Waste Directive recital 25.

198 Study to Support Preparation of the Commission’s Guidance for Extended Producer Responsibility Schemes 2020, p. 20-21.

199 Waste Directive 8a(3)(e).

200 See e.g. Steenmans 2019, Study to Support Preparation of the Commission’s Guidance for Extended Producer Responsibility Schemes 2020.

could perform as a separate research. However, Article 8a(3)(d) refers to this Article in terms of financial management. In short, “Member States are obligated to take measures to ensure that” financial contributions paid by producers cover, for example, “costs of separate collection of waste” and costs which are necessary to reach the targets of waste hierarchy.

The last paragraphs of Article 8a rule of the relationship between Member States and EPR schemes. Member States are compelled to establish a monitoring and enforcement framework to become assured that EPR schemes fulfill their obligations. The framework applies to properly used financial means and to all actors, covering also distance sales, involved in EPR schemes to provide reliable data.²⁰¹ Furthermore Member States must

“ensure a regular dialogue between relevant stakeholders involved” in EPR schemes.

Besides producers, such stakeholders are, for instance, “waste operators, local authorities, and civil society” organizations.²⁰² Stakeholders are an important part of EPR schemes as can be noticed in the discussion, for example, of who is a polluter²⁰³. The Commission’s report on EPR states that “…the producers’ responsibility is in fact a shared responsibility among various stakeholders…²⁰⁴”. If this idea is to be developed further, the responsibility obligations should be more clear. Now there are only financial and financial and organizational responsibilities which belong to producers rather exclusively.