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EU Waste Policy: The Commission’s Ambition for Circular Economies

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About The Author

Former Author (Assistant Editor)

Author is a King's College London Law graduate, currently working as a corporate paralegal for a firm based in South West England. Author is due to begin his BPTC at the University of Law in September 2015, having attained a scholarship from Middle Temple.

The European Union has been at the forefront of the development of environmental regulation for several decades, and one of the most ambitious goals put forward by the European Commission in recent times has been the drive to create circular economies along with a target of ‘zero waste’. In December last year, the Commission announced that it was withdrawing its circular economy package and would be reissuing ‘a broader and more ambitious approach’, which looks beyond solely waste in an attempt to ‘close the loop’ on the circular economy. Closing the loop would mean addressing the need to recycle more clearly, and building new markets for reuse of products and secondary raw materials.

The European Commission website notes that since the Industrial Revolution, developed nations have operated on a linear growth model of ‘take-make-consume and dispose’ which has had extremely damaging consequences for the environment and long-term stability of European economies. One of the key flaws in this pattern is that it assumes that resources are limitless, and products at the end of their usable life are cheap and easy to dispose of. The ambition of the Commission is to create a circular economy which is based around re-using, repairing, refurbishing and recycling which appreciates the scarcity of some resources and the need for more balanced and sustainable growth. This will lessen our collective reliance on fossil fuels, many of which are imported from outside the EU, and other materials not naturally found within EU borders.

ZWE, a consortium of waste processing companies in over 300 European municipalities, welcomed the announcement of the Commission late last year in introducing the Circular Economy Package but noted that the plans focused too heavily on ‘end of pipe’ solutions rather than addressing the need for better integration of sustainable development throughout the manufacturing process. Lobbying from groups such as ZWE may have prompted the re-think on European policy and are a key indicator that there are companies out there who wish to develop the sort of technology necessary to make significant strides towards achieving the ‘zero waste’ ambition.

Current EU Waste Directive

The overarching legislation which regulates the control, transport and disposal of waste in the United Kingdom and across Europe is the EU Waste Framework Directive (the ‘Directive’). One of the key elements of this piece of legislation is its definition of ‘waste’ which has been the subject of a significant amount of litigation. One of the reasons that the definition has been so contested is that it is arguably out of kilter with our ordinary understanding of what the word ‘waste’ entails.

There are several ways to consider the meaning of ‘waste’, each of which will affect the way in which we seek to address the consequences of the vast amount that is produced every day across Europe. For example, Girling stated in his book ‘Rubbish! Dirt on Our Hands and the Crisis Ahead’ that ‘waste is as necessary to life as air and water. Waste is what life itself becomes when it is over’. In 2011 DEFRA issued a statement on waste policy noting that ‘waste is a resource. For too long we have worried about how to dispose of waste, but not enough about how to minimise it, or the use we can make of it’. These statements note the need to focus more clearly on reuse and recycle of waste rather than its reduction, which had been the focus of domestic and European regulation in the mid to late 20th century.

The current definition of waste found in Article 3 of the Directive is ‘any substance or subject which the holder discards or intends or is required to discard’. This definition therefore encourages a potential waste-producer or processor to consider the meaning of each word in this definition, including ‘holder’, ‘discard’, ‘intent to discard’ and ‘required to discard’. In article 5 of the Directive there is also the ‘by-product exception’ whereby a secondary material produced in manufacturing which has a certain further use and requires no further processing will not be considered to be waste. This is the reason why ‘waste’ has been subject to such extensive litigation, as there are several key terms which need to be considered when determining whether a substance is in fact waste, non-waste, or waste that has undergone a recovery process such that it is no longer considered to be waste.

Once it has been established that there is indeed ‘waste’, a processor has to consider when the waste ceases to be so and can again be termed a valuable and usable resource. This process is considered in Article 6 of the Directive, one requirement of which is that there is a ‘market or demand’ for such a substance. This element of the definition is what the Commission will seek to develop with its new Circular Economy Package, alongside other measures such as fostering markets in secondary materials so that more waste can be deemed reusable.

For a valuable insight into the case law both domestically and in Europe I would recommend reading Environmental Law: Text Cases and Materials, which highlights how our changing attitudes towards waste have affected these legal terms. If we follow the early understanding of waste as a social problem, then efforts will be focused solely on reducing the quantity produced, but this ignores the vast amount of inescapable waste that is produced as a result of natural processes. The newer case law and the approach taken in the Waste Framework Directive, allowing for the by-product exception in Article 5 and the end of waste provisions in Article 6, mean that there is a much greater focus on seeing waste as a valuable resource rather than something to be managed as a problem.

Circular Economy Package

The Commission announced on 16 December 2014 that they were abandoning the proposed Circular Economy Package as originally envisaged because there was ‘no foreseeable agreement’ on the legislation between Member States themselves, and between MEPs of individual Member States. The original targets included increasing recycling and re-use of municipal waste to 70% by 2030 and phasing out landfill use for recyclable waste by 2025. These targets are extremely ambitious when one considers that countries such as the UK are currently only operating at a recyclable waste generation rate of approximately 44%. In a time of difficult economic circumstances for countries such as Spain and Greece, further economic reform which attempts to move away from traditional economic models is a very hard sell. A further reason for the retrenchment of this policy may also be in light of the political reality that many governments, including the United Kingdom, are attempting to reduce regulation rather than increase it. The government’s ‘red tape challenge’ has already made significant inroads into streamlining European legislation, which can sometimes be cumbersome and contradictory.

On the other hand, countries such as Italy have been staunch supporters of the Circular Economy Package and believe that pulling away from the targets late last year sent a negative signal for further talks on climate change, which have been the subject of my previous Keep Calm Talk Law article on the future of climate change regulation.

In my opinion, this drive towards less regulation is too radical a policy when it begins to impinge on the development of new legislation. Instead, the government and other European administrations should be focused on a policy of better, improved regulation, a holistic approach to both growth and waste in our economy. In order to achieve this goal, a further package of measures needs to be created which will encourage waste processors and wider society to value recyclable materials and reusable products so that they become a viable cornerstone of our economies.

The Road Ahead

The Commission has made it clear on their website that the renewed Circular Economy Package will be released later this year and will hopefully follow this more holistic approach that I and countries such as Italy advocate for, but there is widespread scepticism amongst many environmental groups and waste management companies. The Commission have identified that ‘resource efficiency improvements all along the value chains could reduce material inputs needs by 17%-24% by 2030’, which gives a clear impetus for implementing meaningful reforms.

FEAD, the European federation which represents employers with a combined workforce of 320,000, stated that it ‘regrets the uncertainty around the future of the EU’s circular economy proposals’. It also claimed to have supported the European Commission in its crucial role of revising the EU waste policy ‘from the very beginning of the process’.

Ton Emans, the president of Plastics Europe stated on the day of the announcement that ‘today is an unfortunate day for sustainable growth in Europe… a direct implementation of the Circular Economy would have enabled the creation of 120,000 jobs only in plastics recycling’. However, he cautioned that, ‘[t]he Commission must keep its word to make this revised proposal in a speedy manner. As underlined in the Commission’s Green Paper on Plastic Waste, ‘increased recycling in Europe will lead to a more sustainable and circular economy.’

In the UK, the Environmental Services Association followed the theme of disappointment, but also focused on the need to ensure that the Commission proposals to be released later this year were not watered down in the face of political pressure. ESA's Europe Policy Adviser Roy Hathaway stated that:

The Commission's previous proposals were not perfect, but the direction of travel they set was right, and would have helped encourage private sector investment in better resource management.

The Commission have released very broad notions of what they would like to see included in the Circular Economy Package, and are looking to mainly focus on market-based approaches which incentivise businesses to change their practices and also use subsidies to prevent companies from being ‘locked-in’ to the existing linear growth model. The Commission note that there will need to be a particular focus on small and medium-sized enterprises (SMEs), since they are often in need of the most support given that they grow at a much faster rate than the more established organisations and are also more adaptable. The Circular Economy Package will look to ‘design out’ a lot of waste generation, through encouraging more efficient use of resources during the manufacturing process and attempting to alter consumer behaviour. A lot of our technologies developed now are designed for use for a maximum of two to five years, as exemplified nowadays by how long an average user retains their mobile phone, games console or even television. Companies have ruthlessly pursued the linear growth model because it is the fastest way to grow a business for the smallest financial cost, and it is this sort of practice that the Commission will seek to change through its new market and incentives-based approach.

Conclusion

The European approach to waste has long recognised the need for greater control and reuse of waste, but the approach taken thus far may not have helped to foster productive processes in the wider economy.

The Commission statement in 2011 that waste is a ‘widespread social problem with serious environmental consequences’ is stark, but this arguably puts an improper focus on the accumulation and disposal of waste. These so called ‘end of pipe’ problems are still the focus of much attention, but the Commission’s proposal for a ‘broader and more ambitious’ legislative instrument will hopefully advance positive changes that can be made to manufacturing processes at the front end of our economy as well as foster a secondary market in raw materials and products.

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Tagged: Commercial Law, Environmental Law, European Union

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