Public consultation is currently held by the European Commission addressing the interface between chemical, product and waste legislation. Any interested party is welcome to contribute to this consultation until 29 October 2018 by filling out a questionnaire. This consultation aims to facilitate the adoption of measures addressing the currently complicated legal interface between chemical, product and waste legislation. The outcomes of the consultation will thus be reflected in future legal regulations and non-legislative initiatives.

The consultation builds upon the EU Action Plan for Circular Economy defining the European Commission’s ambitious goal to initiate a transition from the existing linear economy model to circular economy. The application of circular economy principles should facilitate sustainable development in the region, increasing its competitiveness. The conception is inspired by a natural ecosystem in which things are transformed rather than lost. The conception seeks to abandon the current economic mechanism based on the “take-use-throw” principle by closing the product lifecycle. The main objective is to minimise the use of primary raw materials and maximise the appreciation and utilisation of all raw materials, products and waste which are already available in the economy. A significant role is played by the initial stage of the product life cycle, i.e. product design with an 80% share in the product’s environmental impacts.

Nevertheless, recycling and reuse is often hindered by the chemicals contained in products. Some of them pose a direct threat to humans and the environment. These various types of chemicals occurring in product waste are collectively referred to as substances of concern.

The European Commission has identified four main issues hampering the safe use of secondary raw materials recovered from such products, with the first one being insufficient information on the presence of substances of concern in products and waste. Product waste often contains substances of concern but waste management operators often have no access to this information as it does not exist or is unavailable to them. The introduction of a compulsory system informing waste management operators of the presence of substances of concern has also been considered.

The second issue relates to the presence of substances of concern that are no longer allowed in new products. This naturally arises from the product lifecycle, hindering the recycling of waste and transformation into new products. This is what we call the issue of “legacy substances” and the European Commission intends to address it by introducing a specific decision-making methodology to support decisions on the recyclability of waste containing substances of concern.

The third issue is that the EU’s rules on end-of-waste status are not fully harmonised. The complexity and intricacy of waste streams results in that various materials and waste are traded and used under non-transparent and unclear legal conditions.

The fourth issue involves the missing alignment of hazardous waste and chemicals classification. The hazardous nature of a product may depend on whether or not the product has already turned into waste. This has extensive consequences on the manners of waste management and transition to circular economy. To address this issue, the European Commission has already issued technical guidance on the classification of waste (2018/C 124/01) contributing to waste classification across the European Union.

The European Commission aims to ensure that appropriate information on substances of concern in products is available to all actors in the supply chain and ultimately also becomes available to waste operators. Furthermore, it is necessary to facilitate recycling and intensify the utilisation of secondary raw materials by promoting non-toxic materials cycles, aligning interpretation, introducing end-of-waste status rules and unifying the classification of chemicals and waste across the European Union. A long-term objective involves achieving full compliance between waste and chemical legislation.

In the above-mentioned questionnaire, experts and the general public may comment on the following eight specific challenges based on the issues described:

• 1: Defining substances of concern
• 2: Tracking substances of concern
• 3: Level playing field between secondary and primary material
• 4: Level playing field between EU-produced and imported articles
• 5: Design for circularity
• 6: Improving certainty in the implementation of end-of-waste provisions
• 7: Approximating the rules for classification of chemicals and waste
• 8: Classifying waste taking into account the form in which it is generated

The European Commission analyses received comments and subsequently issues a summary report based on the experience and observations of interested parties. It is of major importance that a maximum of parties share their views on issues arising from the interface between chemical, product and waste legislation to ensure that this sphere will be regulated on realistic grounds. This is certainly more beneficial and ultimately more practical than law-making detached from reality.

Instruments are available to remove barriers from the EU’s transition to circular economy that could mitigate some friction; nevertheless, more observations and information from across the European Union are necessary to develop the best solution to far-reaching issues. Interested parties thus need to get involved in the ongoing consultation and provide the European Commission with their view of future legislation.

The questionnaire is available here.