Drawing a Line between European Waste and Chemicals Regulation

AuthorTopi Turunen,Joonas Alaranta
Published date01 July 2017
Date01 July 2017
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
Drawing a line between European waste and chemicals
regulation is of substantial significance in relation to
the recovery of residual materials.
between the two legislative frameworks is important
because it is not possible for both to apply simultane-
ously to a given substance or object.
Either the
substance or object in question is defined as waste,
which means that the Waste Framework Directive
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,
which in
its Article 2.2 provides that it does not apply to waste in
the sense of the WFD.
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
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.
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.
Directive 2008/98/EC of 19 November 2008 on Waste and Repeal-
ing Certain Directives, [2008] OJ L312/3 (‘WFD’).
REACH Regulation, n. 2 above.
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 4348.
ª2017 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
RECIEL 26 (2) 2017. ISSN 2050-0386 DOI: 10.1111/reel.12205
Review of European Community & International Environmental Law

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