The EU Commission Delegated Regulation (EU) 2020/2174 of 19 October 2020 adopted these new rules amending the annexes to the Waste Shipment Regulation, to reflect recent changes to the Basel Convention and to the OECD Decision on Transboundary Movements of Waste. Indeed, both the Convention of the parties to the Basel Convention and the Environmental Policy Committee of the OECD decided to include certain plastic waste under their control mechanisms as of 1 January 2021. The only types of plastic waste excluded from these controls are those that are destined for recycling and are, due to their composition, easily recycled.

As a result of these changes:

• exports from the EU to non-OECD countries of hazardous plastic waste and plastic waste that is hard to recycle will be prohibited;

• exports from the EU to OECD countries of hazardous plastic waste and plastic waste that is hard to recycle will be subject to the procedure of “prior written notification and consent”. Under the “prior written notification and consent” procedure, the exporter must notify its intention to ship waste to the competent authority of dispatch, including by providing the notification and movement documents, and conclude a contract with the importer for the recovery or disposal of the notified waste. Evidence of such contract must then be provided by the exporter to the competent authority upon request;

• exports from the EU to non-OECD countries of clean, non-hazardous waste aimed for recycling countries will only be authorised under specific conditions laid down by the importing country and communicated to the European Commission. The “prior written notification and consent” procedure, as explained above, will however apply to importing countries that do not provide information on their legal regime;

• imports from third countries (OECD and non-OECD) to the EU of hazardous plastic waste and plastic waste that is hard to recycle will be subject to the procedure of “prior written notification and consent”;

• intra-EU shipments will be subject to the procedure of “prior written notification and consent” in the case of hazardous plastic waste and non-hazardous plastic waste that is difficult to recycle. Conversely, intra-EU shipments of non-hazardous waste destined for recycling will be exempt from the new controls.

In principle, WTO law prohibits bans and restrictions on imports and exports between WTO countries. However, since the above restrictions to transboundary plastic waste shipments aim at better protecting human health and the environment against the adverse effects of hazardous wastes, they are covered by the environmental exception under Article XX GATT and are thus compliant with WTO law.

The new rules aim to address the consistent practice of exporting plastic waste to third countries that lack the capacity to manage it sustainably and where, consequently, plastic waste often ends up in landfills, burnt in open air or dumped in the ocean. As such, they are set to strengthen controls related to the transboundary shipment of plastic waste and to encourage their environmentally sound management.

In order to align with the new rules, Member States should step up and increase their domestic capacity for plastic treatment and recycling, to avoid exporting hazardous waste. Simultaneously, plastic producers should prefer plastics whose composition makes it easier to recycle, and scale up cooperation with non-OECD countries to streamline agreements for the efficient and sustainable management of plastic waste.