Daniel Gueguen

Author: Vicky Marissen

A task force of ‘common sense’

On 10 July, the report of the Task Force on Subsidiarity, Proportionality and ‘Doing Less More Efficiently’ was published. Set up at the end of 2017, the taskforce’s objective was to make recommendations on how better to apply the principles of subsidiarity and proportionality, identify policy areas where work could potentially be re-delegated or returned to EU Member states and find ways to involve regional and local authorities more in EU policy making.

An ambitious task fully in line with the ‘Better Regulation’ path the European Commission set itself when coming into office. Over several months, selected experts discussed a wide range of items on their plate and their report makes numerous recommendations to the Commission, many of which are common sense.

Task Force Recommendation n° 9 falls especially into that category:

‘The next Commission, with the European Parliament and the Council, should reflect on rebalancing its work in some policy areas towards delivering more effective implementation rather than initiating new legislation in areas where the existing body of legislation is mature and/or has recently been substantially revised.’

‘Of course, it makes sense, doesn’t this already happen?’ are just some reactions you may have when coming across this recommendation. In the field of the EU’s Circular Economy policy, this apparently evident principle seems, however, to have been thrown out the window.

Waste legislation: a work in progress

As part of the Plastics Strategy and the overall Circular Economy Action Plan, the final adoption of the amended Waste Framework, Packaging and Packaging Waste and Landfill Directives was accomplished in the spring of 2018. The revised legislative acts require the adoption of a series of implementing and delegated acts.

Most notably, work and studies are on-going with regard to calculation and reporting rules (due by 31 March 2019) including determining average loss rates and identifying ‘input to recycling’ for various waste materials. In parallel, work has started on minimum requirements for Extended Producer Responsibility schemes (in particular fee modulation) and a review of Essential Requirements for packaging is also envisaged.

The adoption of these measures will ultimately determine the full regulatory set-up Member states will have to integrate at national level and what stakeholders will have to live up to. It is impossible to evaluate the full effect of this legislation.

SUP: putting the cart before the horse

Nevertheless, amidst the on-going implementation of these laws, the European Commission tabled a proposal on 28 May 2018 for reducing the impact of certain plastic products on the environment. The so-called Single-Use Plastics (SUP) proposal includes a number of measures targeting items most commonly found in marine littering, ranging from consumption reduction and awareness-raising about product and marking requirements, to Extended Producer Responsibility and ultimately the prohibition of placing specific products on the market.

With the European Parliament recess closing in, the Commission is keen on fast-tracking this initiative through the Ordinary Legislative Procedure to have it adopted already this year, or at the latest early 2019.

Who could argue against the ambition to create a cleaner maritime environment by tackling litter? No one. However, the means to reach this end are, to say the least, troublesome and in direct contradiction with the recommendations of the Task force set up by the Commission itself.

Answering the questions before concluding the deal

Concerns about the implications of the newly proposed rules on single-use plastics for the incomplete regulatory framework of the waste legislation are justified. The risk of inconsistencies, overlaps and gaps is looming:

  • How do the definitions featuring in the SUP proposal relate to the definitions laid down in the waste legislation? Could they give rise to contradiction?
  • What will be the legal and operational impact of introducing Extended Producer Responsibility schemes for single-use plastic products on the EPR requirements currently being developed in the context of the amended Waste Framework and Packaging and Packaging Waste Directives?
  • How consistent (or inconsistent) is the timeframe for transposition and implementation of the revised waste legislation with the proposed timeframe for introduction of measures under the single-use plastic initiative?

All in all, what will be the impact of introducing the proposed rules on single-use plastic products on the transposition and integration of the amended waste legislation which, as indicated above, is so far incomplete? No one really knows and this is worrying a growing number of stakeholders and decision-makers.

It is only common sense to answer these questions first in order to avoid jeopardising already adopted legislation. Regulatory coherence, legal certainty and environmental ambition can co-exist, but only if they are not rushed due to political expediency.

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