5 Dec 2018
European Parliament and Council Nearing End of Trilogue Negotiations for Directive on Single-Use Plastics
Hong Kong sellers of commonly used plastic products may recall that the proposed Directive concerns products which are wholly or partly made from plastic. However, during the course of the negotiations to arrive at a final and approved legal text, both the Parliament and the EU Council seem to have differing views with regard to the products that would fall within the Directive’s scope of application.
The Council (comprising Member State ministers) proposed to take into account an “item’s tendency of being littered” in defining single-use plastic products, therefore limiting the scope to those that are used once or a few times, but not to containers that could be “reused or refilled” multiple times. Additionally, having added expanded polystyrene cups to the list of potentially restricted products, the Council will consider whether a broader product range of expanded polystyrene should be subject to marketing restrictions.
According to the Council, “tobacco product filters containing plastic” are amongst the most littered disposable items. In this regard, the Council calls on the Member States to “promote innovation in relation to alternatives” and introduce measures to reduce tobacco waste. The Council’s wished-for text also includes a provision pursuant to which the Directive’s scope would also cover “the setting up of infrastructure for collection of the post-consumption waste of tobacco products, such as appropriate waste receptacles in common litter hotspots”.
Furthermore, the negotiations reveal opposing positions between the two EU institutions regarding the binding character of the threshold for a minimum 35% recycled content for newly produced plastic bottles. On the one hand, the Parliament is calling for a mandatory 35% target by 2025, which is also supported by groups of plastics recyclers and campaign coalitions. On the other hand, the Council has thus far refused to agree on the binding nature of this target. It proposes instead to call on “stakeholders to come forward with voluntary pledges to boost the uptake of recycled plastics.” However, the ‘Recycled Content Coalition’ (gathering environmental NGOs and trade groups that represent the recycling sector) have argued that “pledges are not enough and concrete action needs to be taken in the form of [mandatory] legislation.”
Moreover, the EU institutions have called on the Member States not to disregard effective producer responsibility in the proposed Directive. With regard to Extended Producer Responsibility (“EPR”) schemes, it is settled that countries could determine “financial contributions to clean up litter by setting appropriate multiannual fixed amounts.” Therefore, Hong Kong traders may expect the levying of financial charges that have the intent of aiding the collection of single-use plastic litter.
The topic of EPR schemes has proven to be among the most contentious aspects of the proposed Directive. The Council has faced heavy criticism from campaigners after having suggested that EPR schemes should take the form of voluntary agreements instead of legal obligations. While the Council agrees that producers should bear the “costs to clean up litter and the costs of awareness-raising measures,” unlike the Parliament it would disregard the costs of waste collection and its subsequent transportation and treatment.
With respect to potential infringements by consumers, the Parliament considers that “consumers should […] be incentivised or penalised for their behaviour, as appropriate”. As for a minimum 25% consumption reduction goal by 2025 for certain single-use plastics set by the Parliament, the Council proposes setting a target for an “ambitious and sustained reduction” under “voluntary agreements”.
Finally, a group of 73 associations led by packaging organisation EUROPEN have argued that the EU’s single market is at risk of being distorted and would create extra regulatory complexity because the future Directive could lead to “a patchwork of national measures”. This is because, in its current wording, it would enable the Member States to impose their own restrictions on packaging products. This, in turn, would impede the free circulation of goods, risking “a chilling effect on the very investment at scale in innovation, including eco-innovation for circularity that the transition to a circular economy demands”.
To conclude, it is apparent that the EU Council and the European Parliament continue to have diverging views on several of the more sensitive topics. Notwithstanding the controversial nature of the proposals being discussed, Hong Kong traders may find that the Council and Parliament (with the Commission’s assistance) will decide on a final text during their third trilogue meeting, scheduled for 6 December 2018. If such agreement cannot be reached, the discussions will have to continue.