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6.5.

2003 EN Official Journal of the European Union C 107 E/17

COMMON POSITION (EC) No 18/2003

adopted by the Council on 6 March 2003


with a view to adopting Directive 2003/. . ./EC of the European Parliament and of the Council of
. . . amending Directive 94/62/EC on packaging and packaging waste

(2003/C 107 E/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF (4) Recovery and recycling of packaging waste should be
THE EUROPEAN UNION, further increased to reduce its environmental impact.

Having regard to the Treaty establishing the European


(5) Certain Member States which, on account of their special
Community, and in particular Article 95(1) thereof,
circumstances, were allowed to postpone the date fixed for
achievement of the recovery and recycling targets set in
Directive 94/62/EC should be granted a further, but
Having regard to the proposal from the Commission (1), limited, postponement.

Having regard to the Opinion of the European Economic and (6) The management of packaging and packaging waste
Social Committee (2), requires the Member States to set up return, collection
and recovery systems. Such systems should be open to
the participation of all interested parties and be designed
to avoid discrimination against imported products and
Acting in accordance with the procedure laid down in Article
barriers to trade or distortions of competition and to
251 of the Treaty (3),
guarantee the maximum possible return of packaging
and packaging waste, in accordance with the Treaty. The
operators in the packaging chain as a whole should
Whereas: shoulder their shared responsibility to ensure that the
environmental impact of packaging and packaging waste
throughout its life cycle is reduced as far as possible.

(1) Pursuant to Directive 94/62/EC (4) the Council is required,


no later than six months before the end of a five-year
phase starting from the date by which that Directive (7) Community-wide data on packaging and packaging waste,
should have been implemented in national law, to fix including on waste exported for recycling and recovery
targets for the next five-year phase. outside the Community, are needed in order to monitor
the implementation of the objectives of this Directive. This
requires a harmonised reporting technique and clear
(2) The definition of ‘packaging’ laid down in Directive guidelines for data providers.
94/62/EC should be further clarified through the intro-
duction of certain criteria and an annex containing illus-
trative examples. It is necessary, in order to achieve the
ambitious recycling targets, to encourage the development (8) The Commission should examine and report on the
of innovative and viable recycling processes, as for implementation and impact of this Directive on both the
instance the chemical recycling of plastics. environment and the internal market. This report should
also cover the issues of essential requirements, waste
prevention measures, a possible packaging indicator,
waste prevention plans, reuse, producer responsibility
(3) Recycling targets for each specific waste material should and heavy metal and should, as appropriate, be accom-
take account of life-cycle assessments and cost-benefit panied by proposals for revision.
analysis, which have indicated clear differences both in
the costs and in the benefits of recycling the various
packaging materials, and should improve the coherence
of the internal market for the recycling of these materials. (9) Member States should promote relevant consumer
information and awareness campaigns.
(1) OJ C 103 E, 30.4.2002, p. 17.
(2) OJ C 221, 17.9.2002, p. 31.
(3) Opinion of the European Parliament of 3 September 2002 (not yet
published in the Official Journal), Council Common Position of (10) In addition to the environmental and internal market
6 March 2003 and Decision of the European Parliament of . . . objectives of this Directive, recycling may also have the
(not yet published in the Official Journal). effect of providing jobs which have declined elsewhere in
(4) OJ L 365, 31.12.1994, p. 10. society, and may thus help prevent exclusion.
C 107 E/18 EN Official Journal of the European Union 6.5.2003

(11) Since the objectives of the proposed action, namely to 2. Article 6 shall be replaced by the following:
harmonise national targets for the recycling of packaging
waste, taking into account individual circumstances of
each Member State, and to provide further clarification ‘Article 6
on definitions, cannot be sufficiently achieved by the
Member States and can therefore, by reason of the scale Recovery and recycling
of the action, be better achieved at Community level, the
Community may adopt measures, in accordance with the 1. In order to comply with the objectives of this
principle of subsidiarity as set out in Article 5 of the Directive, Member States shall take the necessary measures
Treaty. In accordance with the principle of proportionality, to attain the following targets covering the whole of their
as set out in that Article, this Directive does not go territory:
beyond what is necessary in order to achieve those
objectives.
(a) no later than 30 June 2001 between 50 % as a
minimum and 65 % as a maximum by weight of
(12) The measures necessary for the implementation of this packaging waste will be recovered;
Directive should be adopted in accordance with Council
Decision 1999/468/EC of 28 June 1999 laying down the
(b) no later than 31 December 2008 60 % as a minimum
procedures for the exercise of implementing powers
by weight of packaging waste will be recovered;
conferred on the Commission (1).

(c) no later than 30 June 2001 between 25 % as a


(13) Directive 94/62/EC should therefore be amended minimum and 45 % as a maximum by weight of the
accordingly, totality of packaging materials contained in packaging
waste will be recycled with a minimum of 15 % by
weight for each packaging material;
HAVE ADOPTED THIS DIRECTIVE:

(d) no later than 31 December 2008 between 55 % as a


Article 1 minimum and 80 % as a maximum by weight of
packaging waste will be recycled;
Directive 94/62/EC is hereby amended as follows:

(e) no later than 31 December 2008 the following


1. the following subparagraph shall be added to point (1) of minimum recycling targets for materials contained in
Article 3: packaging waste will be attained:

‘The definition of “packaging” shall be further based on the (i) 60 % by weight for glass;
criteria set out below. The items listed in Annex I are illus-
trative examples of the application of these criteria.
(ii) 60 % by weight for paper and board;

(i) Items shall be considered to be packaging if they fulfil


the definition above without prejudice to other (iii) 50 % by weight for metals;
functions which the packaging might also perform,
unless the item is an integral part of a product and (iv) 22,5 % by weight for plastics, counting exclusively
all elements are intended to be consumed or disposed material that is recycled back into plastics;
of together.

(v) 15 % by weight for wood.


(ii) Items designed and intended to be filled at the point of
sale and “disposable” items sold, filled or designed and
intended to be filled at the point of sale shall be 2. Packaging waste exported out of the Community in
considered to be packaging provided they fulfil a accordance with Council Regulation (EEC) No 259/93 (*),
packaging function. Council Regulation (EC) No 1420/1999 (**) and
Commission Regulation (EC) No 1547/1999 (***) shall
only count for the achievement of the obligations and
(iii) Packaging components and ancillary elements inte- targets of paragraph 1 if there is sound evidence that the
grated into packaging shall be considered to be part recovery and/or recycling operation took place under
of the packaging into which they are integrated. conditions that are broadly equivalent to those prescribed
Ancillary elements directly hung or attached to a by the Community legislation on the matter.
product and which perform a packaging function
shall be considered to be packaging unless they are 3. Member States shall, where appropriate, encourage
an integral part of this product and all elements are energy recovery, where it is preferable to material-recycling
intended to be consumed or disposed of together.’. for environmental and cost-benefit reasons. This could be
done by considering a sufficient margin between national
(1) OJ L 184, 17.7.1999, p. 23. recycling and recovery targets.
6.5.2003 EN Official Journal of the European Union C 107 E/19

4. Member States shall, where appropriate, encourage the (b) additional prevention measures to reduce the impact of
use of materials obtained from recycled packaging waste for packaging as far as possible without compromising its
the manufacturing of packaging and other products by: essential functions;

(a) improving market conditions for such materials; (c) the possible development of a packaging indicator to
render packaging prevention simpler and more effective;

(b) reviewing existing regulations preventing the use of


those materials. (d) possible packaging waste prevention plans;

(e) encouragement of re-use;


5. Not later than 31 December 2007, the European
Parliament and the Council shall, acting by qualified
majority and on a proposal from the Commission, fix (f) producer responsibility including its financial aspects;
targets for the third five-year phase 2009 until 2014,
based on the practical experience gained in the Member
States in pursuit of the targets laid down in paragraph 1 (g) efforts to reduce further and, if appropriate, ultimately
and the findings of scientific research and evaluation tech- phase out heavy metal in packaging by 2010.
niques such as life-cycle assessments and cost-benefit
analysis.
This report shall, as appropriate, be accompanied by
proposals for revision of the related provisions of this
This process shall be repeated every five years. Directive, unless such proposals have, by that time, been
presented.

6. The measures and targets referred to in paragraph 1


9. Member States which have, or will, set programmes
shall be published by the Member States and shall be the
going beyond the maximum targets of paragraph 1 and
subject of an information campaign for the general public
which provide to this effect appropriate capacities for
and economic operators.
recycling and recovery shall be permitted to pursue those
targets in the interest of a high level of environmental
protection, on condition that these measures avoid
7. Greece, Ireland and Portugal may, because of their
distortions of the internal market and do not hinder
specific situations, namely respectively the large number
compliance by other Member States with this Directive.
of small islands, the presence of rural and mountain areas
Member States shall inform the Commission of such
and the current low level of packaging consumption, decide
measures. The Commission shall confirm these measures,
to:
after having verified, in cooperation with the Member
States, that they are consistent with the abovementioned
considerations and do not constitute an arbitrary means
(a) attain, no later than 30 June 2001, lower targets than
of discrimination or a disguised restriction on trade
those fixed in paragraphs 1(a) and (c), but shall at least
between Member States.
attain 25 % for recovery;

___________
(b) postpone at the same time the attainment of the targets (*) OJ L 30, 6.2.1993, p. 1. Regulation as last amended
in paragraphs 1(a) and (c) to a later deadline which, by Commission Regulation (EC) No 2557/2001 (OJ L
however, shall not exceed 31 December 2005; 349, 31.12.2001, p. 1).
(**) OJ L 166, 1.7.1999, p. 6. Regulation as last amended
(c) postpone the attainment of the targets referred to in by Commission Regulation (EC) No 2243/2001 (OJ L
paragraphs 1(b), (d) and (e) until a date of their own 303, 20.11.2001, p. 11).
choice which shall not be later than 31 December 2012. (***) OJ L 185, 17.7.1999, p. 1. Regulation as last
amended by Regulation (EC) No 2243/2001.’.

8. The Commission shall, as soon as possible and no 3. Article 8(2) shall be replaced by the following:
later than 30 June 2005, present a report to the
European Parliament and the Council on the progress of
the implementation and impact of this Directive on the ‘2. To facilitate collection, reuse and recovery including
environment, as well as on the functioning of the internal recycling, packaging shall indicate for the purposes of its
market. The report shall take into account individual identification and classification by the industry concerned
circumstances in each Member State. This report shall the nature of the packaging material(s) used on the basis
cover the following: of Commission Decision 97/129/EC (*).

___________
(a) an evaluation of the effectiveness of the implementation
of the essential requirements; (*) OJ L 50, 20.2.1997, p. 28.’.
C 107 E/20 EN Official Journal of the European Union 6.5.2003

4. The following subparagraph shall be added to Article 13: 3. The Committee shall adopt its rules of procedure.
‘Member States shall also promote consumer information ___________
and awareness campaigns.’. (*) OJ L 184, 17.7.1999, p. 23.’.
5. Article 19 shall be replaced by the following: 7. Annex I shall be replaced by the annex which appears in
‘Article 19 the Annex hereto.
Article 2
Adaptation to scientific and technical progress
Member States shall bring into force the laws, regulations and
The amendments necessary for adapting to scientific and
administrative provisions necessary to comply with this
technical progress the identification system (as referred to
Directive by . . . (*). They shall immediately inform the
in Article 8(2) and Article 10, second subparagraph, last
Commission thereof.
indent), the formats relating to the database system (as
referred to in Article 12(3) and Annex III) as well as the When Member States adopt those measures, they shall contain
illustrative examples on the definition of packaging (as a reference to this Directive or be accompanied by such a
referred to in Annex I) shall be adopted in accordance reference on the occasion of their official publication.
with the procedure laid down in Article 21(2).’. Member States shall determine how such reference is to be
made.
6. Article 21 shall be replaced by the following:
Article 3
‘Article 21
This Directive shall enter into force on the day of its publi-
Committee procedure cation in the Official Journal of the European Union.
1. The Commission shall be assisted by a committee. Article 4

2. Where reference is made to this paragraph, Articles 5 This Directive is addressed to the Member States.
and 7 of Decision 1999/468/EC (*) shall apply, having
Done at . . .
regard to the provisions of Article 8 thereof.
For the European Parliament For the Council
The period laid down in Article 5(6) of Decision
1999/468/EC shall be set at three months. The President The President

(*) 18 months after the date of entry into force of this Directive.
6.5.2003 EN Official Journal of the European Union C 107 E/21

ANNEX

‘ANNEX I

Illustrative examples for criterion (i)

Packaging

Sweet boxes
Film overwrap around a CD case

Non-packaging

Flower pots intended to stay with the plant throughout its life
Tool boxes
Tea bags
Wax layers around cheese
Sausage skins

Illustrative examples for criterion (ii)

Packaging, if designed and intended to be filled at the point of sale

Paper or plastic carrier bags


Disposable plates and cups
Cling film
Sandwich bags
Aluminium foil

Non-packaging

Stirrer
Disposable cutlery

Illustrative examples for criterion (iii)

Packaging

Labels hung directly on or attached to a product

Part of packaging

Mascara brush which forms part of the container closure


Sticky labels attached to another packaging item
Staples
Plastic sleeves
Device for measuring dosage which forms part of the container closure for detergents.’
C 107 E/22 EN Official Journal of the European Union 6.5.2003

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 10 December 2001, the Commission submitted to the Council its proposal on Directive of the
European Parliament and of the Council amending Directive 94/62 on packaging and packaging
waste.

2. The Economic and Social Committee delivered its Opinion on 29 May 2002.

3. The European Parliament adopted its Opinion at first reading on 3 September 2002.

4. On 7 March 2003, the Council adopted its common position in accordance with Article 251(2) of
the Treaty.

II. OBJECTIVE

Directive 94/62/EC on packaging and packaging waste aims to harmonise national measures
concerning the management of packaging and packaging waste in order to prevent any impact
thereof on the environment of all Member States as well as of third countries or to reduce such
impact, thus providing a high level of environmental protection. Directive 94/62/EC aims to ensure
the functioning of the internal market and to avoid obstacles to trade and distortion and restriction of
competition within the Community.

This proposal, which is based on Article 95(1) of the EC Treaty, concerns amendments to part of
Directive 94/62/EC on packaging and packaging waste. This proposal is limited and comprises
amendments to the targets for recovery and recycling of waste for a subsequent five-year phase
thereby following up on the current targets for the first five-year phase.

Furthermore, the proposal seeks to introduce material specific targets for recycling of certain package
waste materials. The proposal also suggests to introduce definitions for mechanical, chemical and
feedstock recycling as well as to add a non-binding annex containing interpretation guidelines with
a view to clarifying the definition of ‘packaging’.

This limited proposal does not contain provisions relating to revision of a number of other aspects of
the Directive such as prevention or producer responsibility.

III. ANALYSIS OF THE COMMON POSITION

1. General
On the basis of a cost-benefit analysis the Commission has proposed the limited revision of
Directive 94/62/EC described under point II above, thus not proposing to undertake a broader
revision at this point in time.

The Council has, in general, accepted this limited approach at this stage while emphasising a
number of elements which should be considered in the coming report on the progress of the
implementation and impact of the Directive on the environment as well as on the functioning of
the internal market. This report should be able to serve as a basis for a broader revision.

Against that background, the main points of the common position, in addition to the requirements
to the abovementioned report and a coming revision, are the following:

The Council finds that the definition of ‘packaging’, which is already established in Directive 94/62/EC
shall be further based on three supplementary criteria, which are accompanied by certain
non-binding illustrative examples set out in an Annex. These supplementary criteria, as well as
the non-binding illustrative examples, should help in the practical work when deciding what
constitutes packaging and what is not packaging. Technical adaptation of the illustrative
examples may be needed and can be initiated according to the relevant procedure.
6.5.2003 EN Official Journal of the European Union C 107 E/23

The new definitions concerning recycling proposed by the Commission, which aim to distinguish
between mechanical, chemical and feedstock recycling, have not been accepted since this is
considered to be premature so long as newer forms of recycling are not yet fully developed.

With regard to the revision of targets, the Council agreed on an increase to 60 % of the minimum
target for recovery of packaging waste, but without a maximum target which is no longer considered
necessary to ensure the functioning of the internal market. Furthermore, the Council has agreed on
an increase to 55 % of the minimum target for recycling of packaging waste with the maximum
target being increased to 80 %. It was also agreed to establish specific minimum recycling targets for
certain materials contained in packaging waste (glass, paper and board, metals, plastics recycled into
plastics and wood). In connection with these increases of the targets it was decided to establish a
somewhat longer timeframe than proposed by the Commission for Member States to reach the
increased targets, namely a general deadline by 31 December 2008 and a special deadline four years
later for the three Member States which were also granted this amount of additional time under
Directive 94/62/EC.

The Council has also agreed upon editorial amendments in Article 1(3), (5) and (7), which update
the formulations of Article 8(2), Article 19 and Article 21 of Directive 94/62/EC without aiming at
changing the substance of those provisions.

The Commission has accepted the common position agreed by the Council.

2. European Parliament Amendments

In its Plenary vote on 3 September 2002, the EP adopted 44 amendments to the proposal.

(a) 16 of these have been incorporated (7 to the Articles, 8 to the recitals and 1 to the illustrative
annex), either verbatim, in part or in spirit, into the Council's common position:

Amendment 2 is reflected in recitals 2, 4 and 9 of the common position as well as the general
aim to further reduce the environmental impact of packaging by increasing certain targets.

Amendments 6, 11, 16 and 32 are reflected in the overall approach underlying the common
position and more specifically in recitals 1, 2, 3 and 9 as well as in Article 1(1) and (2), in
particular the formulations for Article 6(1) and (8). As explained under part 1 above, the Council
agreed to reflect those issues, which should, at least, be covered in the coming broader revision,
in the article setting out the requirements to the coming report on the progress of the
implementation and impact of the Directive on the environment as well as on the functioning
of the internal market.

Amendment 9 is reflected in recital 10 of the common position.

Amendment 12, which also covers the substance of amendment 13, is reflected in recital 6 of the
common position.

Amendments 14 and 29 are reflected in recital 7 underlining the importance of a harmonised


reporting technique and clear guidelines for data providers, including waste exported outside of
the Community. Amendment 23 relates to the same substance. The Council considers that this
limited revision is not the right place to decide about possible further measures in this regard, in
view also of the fact that this can be dealt with on the basis of existing rules and the existing
basis for improving such rules, in particular Decision 97/138/EC.

Amendment 21 is reflected in Article 1(2) in its formulation for Article 6(3).


C 107 E/24 EN Official Journal of the European Union 6.5.2003

Amendment 22 covers two parts. The first part is reflected in the common position with the
broader concept of ‘improving market conditions’ without a limitation to the use of ‘economic
instruments’ and with an encouragement to ‘review’ rather than directly ‘eliminate’ existing
regulations of the kind in question (see Article 1(2) in its formulation for Article 6(4)). The
second part, which is connected to amendment 4, is not accepted by the Council as set out
below.

Amendment 30 is reflected in Article 1(4) in its formulation for Article 13.

Amendment 34 is reflected in Annex I as an additional illustrative example for criterion 3.

Amendments 53 and 62 relate to the export of packaging waste and the relationship of such
export with this Directive. The Council has chosen to deal with this issue by requiring that
packaging waste exported outside of the Community shall only count towards the obligations
and targets of this Directive if there is sound evidence that the relevant recovery and/or recycling
operation has taken place under conditions which are broadly equivalent to the conditions
prescribed by Community legislation (see Article 1(2) in its formulation for Article 6(2)).

(b) The 29 amendments, which have not been incorporated, can be grouped as follows:

Amendments 1, 4, 7 and 8 as well as part 2 of amendment 22 are seen as too broad in this context
both in view of the somewhat extensive formulation itself of these amendments and in view of
the limited revision, which the Council agrees to undertake at this stage.

Amendment 3 cannot be accepted since it would delete the material specific recycling targets that
the common position maintains.

Amendment 5 is seen as redundant as it points to an existing general obligation for the


Commission.

Amendments 10 and 44 are considered to be contrary to existing obligations with regard to


recycling in the Directive as they suggest a change to the voluntary formulation ‘Member States
may encourage . . .’.

Amendments 19 and 49 are the only amendments relating to the figures of the various targets
and they relate only to recycling including suppression of maximum recycling target. The
approach suggested in these amendments is not shared by the Council. The Council finds
that the maximum recycling target should be retained (for internal market reasons) together
with a generally achievable increase of the minimum recycling target (for environmental
reasons), and also accompanied by a corresponding increase of the minimum recovery target
(for environmental reasons), whereas the maximum target for recovery could be given up (in the
light of experience indicating that it is not required for internal market reasons).

Amendment 20 is considered to be of marginal relevance once material specific targets for most
packaging by weight have been introduced as is the case in the common position (see Article
1(2) in its formulation for Article 6(1)(e)).

Amendments 23 and 54, which have not been accepted, relate to the same substance as
amendments 14 and 29 and the reasoning given there applies.
6.5.2003 EN Official Journal of the European Union C 107 E/25

Amendment 25 relates to national return, collection and recovery systems, which is not seen as a
relevant issue in the context in view of the limited revision undertaken at this stage.

Amendment 26 is seen as either redundant or as an attempt to emphasise certain existing


obligations for Member States at the cost of other obligations. To the extent that the issue
addressed by this amendment concerns producer responsibility, the reasoning set out in relation
to amendments 6, 11, 16 and 32 applies.

Amendment 31 is seen as not fitting in this context, since the issue of access to information and
documents is a cross-cutting issue dealt with elsewhere.

Amendments 33, 36, 37, 38, 39, 40 and 47 relate to the illustrative examples in the Annex and
are seen as issues which could usefully be dealt with via a technical adaptation of the Directive.

Amendment 35 has not been accepted since the supplementary criteria have been structured
differently in the common position compared to the proposal from the Commission and since
the word ‘inseparable’ is no longer used and therefore needs no explanation.

Amendments 41 and 42/rev are seen as unclear with regard to the underlying intention and the
operationality of the suggested provision, since they seem to exempt some quite specific kinds of
packaging waste from all obligations under the Directive without establishing why. Moreover,
the efforts that would be needed to implement the suggested provision seem out of proportion
to the (unclear) purpose.

Amendment 43 is seen as redundant, since the definitions proposed by the Commission have not
been retained.

Amendment 45 postpones the general deadline for achieving the revised targets by six months
and puts the deadline at the end of a calendar year. The Council agrees with principle of the end
of a calendar year and also considered that a limited postponement was relevant, but the Council
finds that the deadline should be somewhat longer than suggested in this amendment.

IV. CONCLUSION

The Council considers that its common position takes account of the Opinion of the European
Parliament in first reading to an important extent and wherever possible on the basis of the
approach of a limited revision, with a feasible increase of certain targets at this stage coupled with
requirements for the coming broader revision. The Council's common position represents a balanced
solution for a focused amendment of the Directive and, within that line of ambition, ensures an
environmental benefit to be derived from the new targets while making requirements on industry
which are practically feasible and while also maintaining the internal market safeguards necessary in
this field.