Legislative update: Autumn 2015
Angus Evers from King & Wood Mallesons explains the EU Commission’s consultation on the functioning of waste markets in the EU and Defra’s proposals for a revised waste duty of care code of practice.
European Commission consultation on the functioning of waste markets in the EU
Over the summer, the European Commission consulted on the functioning of waste markets in the EU. The consultation follows (and complements) an earlier consultation on the circular economy, which closed on 20 August 2015.
The consultation’s stated aim is to obtain a better understanding of the nature and the extent of regulatory failures causing undue distortions to
EU waste markets for recycling and recovery. The information gathered will contribute to a study, commissioned in January 2015, on the legislative and policy options for improving the efficient functioning of waste markets in the EU.
The consultation focuses on identifying:
The main perceived regulatory failures, which are defined as situations in which the regulatory environment hampers the efficient functioning of the waste markets and fails to ensure optimal implementation of the waste hierarchy.
Obstacles to the functioning of waste markets connected to the application of EU waste legislation or other EU legislation. The consultation lists some possible drivers and causes of regulatory failures, including different interpretations of the definition of ‘waste’ under the EU Waste Framework Directive (2008/98/EC) and the application of national end- of-waste criteria.
Obstacles to the functioning of waste markets that are arising from national, regional or local rules or requirements and decisions that are not directly linked to EU legislation. Again, the consultation lists some potential drivers and causes of regulatory failure, including the development of waste treatment networks leading to local over-capacities or under- capacities for different types of waste treatment (e.g. incineration) and excessive controls on waste or waste shipments that go beyond EU requirements (“gold plating”).
The consultation ran from 12 June to 4 September 2015, and those wishing to engage further with the EU Commission on the issues raised in the consultation were invited to a stakeholder meeting in Brussels on 12 November 2015.
Defra/Welsh Government consultation on a revised waste duty of care code of practice
The current code of practice on the duty of care contained in Section 34 of the Environmental Protection Act 1990 dates from March 1996. Since its publication, there have been a number of changes to waste management law, both at EU level and domestically, which mean that it now needs updating. Defra has therefore consulted on a revised code of practice.
The consultation draft of the revised code of practice is very different to the current code of practice. For a start, the current code of practice is 66 pages long, whereas the consultation draft is only 11 pages long. Although this reflects the government’s drive for shorter, more concise guidance documents, it seems inevitable that much useful information from the current code of practice will be lost. There is a risk that, in trying to produce a document that can be used both by those unfamiliar with waste management law (such as many waste producers) and by professional users (such as waste management businesses and their professional advisers), Defra has produced a document that is too complicated for the former, but too basic for the latter.
Having a comprehensive, easily understood code of practice is important, because in any prosecution for a breach of Section 34 of the Environmental Protection Act 1990, the code of practice is admissible in evidence. If any provision of the code of practice appears to the court to be relevant to any question arising in the proceedings, it must be taken into account in determining that question.
The consultation ran 27 July-21 September 2015.