German perspective on amending the Waste Framework
It is the objective of the German presidency to achieve a political agreement at the Environment Council on 28 June 2007 after the first reading of the Directive 
in the European Parliament. At the end of August 2006 the Federal Ministry for the Environment sent its proposals on the amendment of the Council Directive on Waste (Waste Framework Directive)
agreed and harmonised between the responsible ministries to the other Member States. So far Germany is the only Member State to have introduced a consistent
amendment package to the discussions presently held in the Environmental Council and the European Parliament. In the preceding negotiations with the responsible ministries, the Federal Environment Ministry was largely able to secure its proposals which it had continually
developed in the light of the state of negotiations in the Council and in Parliament. By and large they correspond to the proposals the Federal Environment Ministry
had already forwarded to the Commission in autumn 2005. The Federal States also support the position. Core issues of the proposals agreed between the Federal Environment Ministry and other responsible ministries are as follows: The requirement to protect resources laid out in the Council Directive on Waste is to be mentioned on equal terms with the environmental protection objective
to strengthen the recycling of waste. As it does no longer seem to be possible that the three tier hierarchy in waste management followed so far will be carried due to a majority in the Council and
in Parliament being opposed to it, the Federal Environment Ministry proposes to base the Directive on a five-tier hierarchy (prevention, re-use, substance
recycling, other forms of (energy) recovery, disposal). However, this should only be viewed as a flexible guiding principle to be applied on a case-by-case
basis only and following special requirement such as technical and economic feasibility and taking into account environmental and other impacts. The planned procedure according to which the Directive is not to be applied in case of unexcavated contaminated soils does not solve the problems caused by
the Van-de-Walle-Decision of the European Court of Justice. As it is still unclear if these matters will be appropriately dealt with by a Soil Framework Directive
and when this will happen, the term waste will be restricted to apply to “movable” items only. As regards the distinction between waste and by-product Germany favours, as opposed to the proposal made by the Commission, the determination of clear,
legally binding guidelines based on European Court of Justice decisions to be incorporated in the Council Directive on Waste itself, as legal interpretation
and development should not be left to the Court of Justice. Provisions can subsequently be made more concrete in the Member States or, in cases with EU implications,
by means of comitology procedures. The determination of when something should stop to qualify as waste is also to be ruled by a general legal guiding provision. The property to qualify as waste
should only stop when the complete recycling procedure is completed and it is guaranteed that the ensuing “product” is environmentally sound. This guiding
provision should be incorporated in the Council Directive on Waste so that it can be applied by the Member States and the European Court of Justice rather than
eventually by the Technical Committee which would mean that the sole decision making competence would be left to the Commission. It should also become possible
to explicitly determine the end of the waste property in the Daughter Directives (e.g. a Council Directive on Biowaste). The principle of product responsibility similar to the concept laid down in Article 22 of the Closed Substance Cycle and Waste Management Act (Kreislaufwirtschafts-
und Abfallgesetz) should be introduced instead bureaucratic waste prevention programmes. Environmental waste disposal standards should be strengthened by introducing a special best available technology geared to the requirements of waste
disposal along the lines of the provisions set out in the Closed Substance Cycle and Waste Management Act. It would thus become possible to limit the risk of transferring
pollutants from the waste fraction to the final product ('best available waste management technologies'). The Commission should receive a clear mandate to replace environmental standards in the disposal sector by Directives. The requirement to licence disposal facilities should be limited to facilities with definite environmental implications. Disposal structures in the Member States in the field of domestic waste disposal should be safeguarded by introducing self-sufficiency in waste disposal
as a supplement to Article 3 paragraph 5 of the EC Regulation on Shipments of Waste. However, this is strictly limited to the services of general interest and
does not apply to wastes similar to household waste originating from other sectors. The obligation of Member States to set up waste management plans should be limited to those areas where planning is possible, i.e. in particular waste disposal.
The position of the Environment Ministry on the recycling status of waste incineration plant is not yet clear. According to the commission proposal waste
incineration plants should only receive recognition as recycling facilities if they have a particularly high energy efficiency (60% for old plants, 65 %for
new plants). In Germany, on the other hand, the Federal States have granted this status to almost all plants to allow waste supplies from the market to be supplied
to them so that they can be operated at sufficient capacity. However, the decisions by the Federal States have been viewed most critically in legal circles.
It is still unclear how many German plants would be affected by this EU formula. Other member states also meet this formula with scepticism and discussion of
it is highly controversial. The background for this can be found in the disadvantages which southern European countries will suffer from an application of
the provision since their incineration plants make little use of co-generation and power generation and also in technical issues. The political dimension
also has to be kept in mind because the granting of a recycling status to European waste incineration plants could lead to transboundary competition among these
plants and as a consequence might threaten the services of general interest. As a concluding remark it should be noted how important it is to set the course for the Council Directive on Waste in such a way, that waste management legislation
will be developed into consistent tool to provide a strong protection of the environment and its resources without imposing an excessive bureaucratic burden.
As a matter of fact, during its vote taking on 28 November 2006 the Environment Committee of the European Parliament had to decide on a total of 622 amendments
submitted by Members of the European Parliament. The minutes of the meeting of the Environment Committee of the European Parliament (and the opinion of the
Industry Committee) of 15 December 2006 can be found here. Link: (English) ... (German) ...
Posted: 08/06/2007 By: Professor Paul Bardos