Drawing a Line between European Waste and Chemicals Regulation

• Author: Topi Turunen,Joonas Alaranta
• Published date: 01 July 2017
• Date: 01 July 2017
• DOI: http://doi.org/10.1111/reel.12205

Drawing a Line between European Waste and

Chemicals Regulation

Joonas Alaranta* and Topi Turunen

This article analyses the fine line between the applica-

tion of waste legislation and the application of chemi-

cals regulation. If a substance or object ceases to be

waste, or is originally a by-product, how is chemicals

regulation applied to the non-waste material? The

article also examines the effects that provisions of

chemicals legislation can have with respect to waste

legislation and the regulatory possibilities to exclude

substances or objects from the concept of waste.

The regulation of the residual materials is successful

when it promotes the reuse and recovery, reduces

the detrimental health and environmental effects of

those residual materials, and reduces the costs and

environmental harm incurred by the obtaining of the

raw materials. Combining the diverging objectives of

waste and chemical legislation is challenging but

necessary to achieve the transition to a circular

economy and the best overall outcome in terms of

sustainability.

INTRODUCTION

Drawing a line between European waste and chemicals

regulation is of substantial significance in relation to

the recovery of residual materials.

1

Distinguishing

between the two legislative frameworks is important

because it is not possible for both to apply simultane-

ously to a given substance or object.

2

Either the

substance or object in question is defined as waste,

which means that the Waste Framework Directive

(WFD)

3

applies; or it is defined as non-waste and the

WFD does not apply. While chemicals regulation is not

applicable to waste, it can apply to non-waste residual

materials. In European Union (EU) law, when certain

legal conditions are met, material hitherto designated

as waste ceases to be waste and acquires the status of

products or secondary raw materials –that is, it

becomes end-of-waste (EoW) materials. This article

examines the conditions under which EoW materials

and by-products become subject to chemicals regula-

tion. For the purposes of this article, the main chemicals

regulation at issue is the REACH Regulation,

4

which in

its Article 2.2 provides that it does not apply to waste in

the sense of the WFD.

5

This article comprises a legal analysis of the fine line

separating the application of waste legislation from

the application of chemicals regulation: if a substance

or object ceases to be waste, or is originally produced

as a by-product, how does the legislation on chemicals

apply to this non-waste material? The article also

examines the effects that provisions of chemicals legis-

lation can have with respect to waste legislation and

the regulatory possibilities to make use of exemptions

*Corresponding author.

Email: joonas.alaranta@krogerus.com

1

By ‘residual materials’, we mean wastes, by-products and end-of-

waste materials together. End-of-waste materials refer to those mate-

rials that have ceased to be waste in a recovery operation according to

the end-of-waste definition contained in the Waste Framework Direc-

tive. Residual materials are not to be confused with ‘production resi-

dues’, which can either mean wastes or by-products.

2

See G. van Calster, EU Waste Law, 2nd edn (Oxford University

Press, 2015), at 3. The terms ‘substance’ or ‘object’ are not under-

stood in the same way in European Union (EU) waste legislation and

EU chemicals legislation. No differentiation is made as between the

regulation of ‘substance’ and ‘object’ in waste legislation. Instead of

using the term ‘object’, the REACH Regulation refers to an ‘article’,

which Article 3 defines as an object which during production is given a

special shape, surface or design which determines its function to a

greater degree than does its chemical composition. Regulation

Concerning Registration, Evaluation, Authorisation and Restriction of

Chemicals (REACH) Establishing a European Chemicals Agency,

Amending Directive 1999/45/EC and Repealing Council Regulation

(EEC) No. 793/93 and Commission Regulation (EC) No. 1488/94 as

well as Council Directive 76/769/EEC and Commission Directives 91/

155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC, [2006] OJ L396/1

(‘REACH Regulation’), Article 3. The distinction between ‘article’ and

‘waste’ is very significant under the REACH Regulation, as most of its

provisions apply only to the substances as such or as a part of ‘mix-

ture’ or solution composed of two or more substances. For the pur-

poses of this article, the meaning of the terms depends on the

legislative context in which they are examined.

3

Directive 2008/98/EC of 19 November 2008 on Waste and Repeal-

ing Certain Directives, [2008] OJ L312/3 (‘WFD’).

4

REACH Regulation, n. 2 above.

5

Ibid., Article 2.2. For more information on the exclusions from the

scope of the application of the REACH Regulation, see S. Vaughan,

EU Chemicals Regulation: New Governance, Hybridity and REACH

(Edward Elgar, 2015), at 43–48.

ª2017 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

163

RECIEL 26 (2) 2017. ISSN 2050-0386 DOI: 10.1111/reel.12205

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