The consultations invite stakeholders’ views on the Environmental Liability Directive and the Waste Framework Directive.

In May 2022, the European Commission (Commission) issued public consultations in relation to the proposed revision of two of the EU’s key environmental frameworks. The consultations on the Environmental Liability Directive (ELD) issued on 12 May and the Waste Framework Directive (WFD) issued on 24 May mark the latest in a series of steps that the Commission is taking to revise and strengthen environmental controls in the EU, following on from the EU’s 2019 Green Deal.

ELD

The ELD was adopted in 2004 to establish a framework of environmental liability, based on the “polluter pays” principle, to better prevent and remedy environmental damage in the EU. Under the ELD, operators have a legal responsibility to prevent and restore any environmental damage caused by their activities, with the intention that this responsibility encourages operators to develop practices that minimise the risk that their activities will cause such damage.

Under the ELD, the Commission is required to carry out an evaluation of the impact of the ELD before 30 April 2023. This requirement, combined with the European Parliament’s May 2021 adoption of a resolution calling for the EU rules on liability of companies for environmental damage to be strengthened, led to the Commission announcing the commencement of this evaluation process in November 2021. The call for evidence lasted until 27 December 2021 and elicited public responses from a number of industry groups and other stakeholders.

The Commission views this public consultation as the next step in the process, offering stakeholders from across Europe and the globe the opportunity to answer a questionnaire to provide their input on how the ELD should be updated.

The public consultation will be open until 4 August 2022, and the Commission will use its results — alongside information gathered from the call for evidence, the European Parliament’s May 2021 resolution, and data from Member States — to inform its adoption of a proposal to revise the ELD by the 30 April 2023 deadline.

WFD

The WFD, initially adopted in 2008, is intended by the EU to introduce “measures to protect the environment and human health by preventing or reducing the adverse impacts of the generation and management of waste and by reducing overall impacts of resource use and improving the efficiency of such use”.

Similar to the consultation on the ELD, the consultation on the WFD follows an earlier call for evidence (in this case, issued in January 2022). Rather than a specific driver for an evaluation coming from the currently enacted legislation (as in the case of the ELD), the WFD consultation process has been initiated because of specific issues that the Commission wishes to address. In particular, the Commission is seeking to tackle the increase in waste generated over the last decade in the EU and improve recycling of waste. To further these aims, the Commission is considering introducing regulatory measures to:

• Reduce waste generation. These measures could include introducing targets for waste reduction, expanding the role of extended producer responsibility (EPR) schemes, improving the separate collection of waste by amending certain derogations in the WFD, and introducing minimum requirements for segregation and collection of waste to facilitate collection of used items so that they can be re-used or prepared for re-use or recycling.
• Reinforce the “polluter pays” principle by expanding EPR schemes to other categories of products (including textiles) and improving enforcement of EPR requirements, in particular for products sold via e-commerce.
• Set targets for waste oil collection and regeneration.

The public consultation closes on 16 August 2022, and the Commission has indicated that it intends to adopt a proposal for a directive in Q2 2023.

Latham & Watkins will continue to monitor developments in this area.