Article 15 May 2018

Prohibition of single-use plastic products – Leaked draft directive is the first step in implementing EU's Plastics Strategy

A legislative measure drafted by the European Commission aimed at prohibiting and reducing the amount of single-use plastic products has been recently leaked out. The measure, which takes the form of a draft directive, is the first step in implementing EU's Plastics Strategy. The Plastics Strategy was unveiled in mid-January this year and it sets ambitious objectives to curtail the amount of plastic waste and to increase the reusability and recyclability of plastics, including plastic packaging.

The proposed directive is not short of ambition. While still in a draft format and going through inter-service consultation within the European Commission, it provides an insight into the regulator's approach in seeking to translate political aspirations into the protection of the environment and human health from single-use plastic litter. Indeed, the stated "predominant objective" of the draft directive is to "prevent and reduce the impact of certain plastic products on the environment, in particular the aquatic environment, and on human health" while also promoting a transition into a circular economy with innovative and multi-use materials.

Prohibition and significant reduction on the placing on the market of single-use plastic products

The draft measure foresees, on the one hand, a total prohibition on the placing on the market of certain single-use plastic products. The list currently contains plastic cutlery, plates and straws (except for those intended and used for medical purposes), cotton buds (again with the exception of swabs intended and used for medical purposes) as well as balloon sticks used in toy and decorative balloons.

These types of single-use plastic materials represent one of the most significant sources of marine litter, observed as litter stranded on beaches within the EU. The anticipated timeline for a total prohibition is two years following the directive's entry into force.

At the same time, the draft directive places an obligation on the Member States to take the necessary measures to significantly reduce the consumption of certain single-use plastic products, including (fast food) food containers and single-use plastic beverage cups. Here the foreseen timing is six years from the date of transposition of the directive into national law, that is, eight years after the adoption the directive.

Extension of the extended producer responsibility

The extended producer responsibility for waste, including plastic waste, already sees an extension with the upcoming revision of EU's Waste Framework Directive (EU/2008/98). The latter has already been approved by the European Parliament in mid-April, and it is expected to be adopted by the Council of Ministers in July.

The Waste Framework Directive lays down, in its amended form, the general minimum requirements for extended producer responsibility schemes and manufacturers of products subject to such schemes may be liable for the financial or financial and organisational responsibility for the management of the waste stage of their products' life cycle. These responsibilities encompass the separate collection, sorting and treatment of the specific waste streams, and may also require contributions to waste prevention, the products' reusability and recyclability.

The single-plastics draft directive extends the (already) extended producer responsibility further for producers manufacturing, importing, distributing and selling single-use plastic products (and fishing gear) in the EU on a professional basis.

Firstly, whereas the Waste Framework Directive uses facultative language as regards the establishment of extended producer responsibility schemes, the draft single-plastics directive makes the formation of such a scheme mandatory for certain single-use plastic products. These products include food containers, packaging beverage containers with their caps and lids, beverage cups, cigarettes with filters, wet wipes as well as toy and decorative balloons. Producers of these products shall cover the cost of waste collection and its subsequent transportation and treatment. These requirements are supplemental to any obligations laid down in the Waste Framework Directive and Packaging Waste directive.

Secondly, the extended producer responsibility scheme for single-plastic products covers also the costs of cleaning up marine plastic litter. Further, the producers shall partake in the costs of raising consumer awareness of the dangers of single-use plastic products.

As regards single-use plastic beverage containers, the draft directive proposes the (re-)design of such containers so as to ensure that bottle caps and lids remain attached to their containers during the product's use stage, thus reducing litter from loose caps and lids. This requirement applies already two years after the adoption of the directive. Finally, a minimum separate collection rate is proposed for single-use plastic bottles, which shall amount to 90% by 2025.

The Directive explicitly foresees the possibility for actions by private individuals

Aside from the introduction of a total EU ban on certain types of (single-use) products manufactured from plastics, the draft directive is unique also in another respect. The measure foresees, explicitly in the recitals, that it may produce so-called horizontal effects, that is, rights that private individuals can enforce against individual Member States.

In a very exceptional manner, the draft provides that "(…) members of the public concerned should have access to justice in order to contribute to the protection of the right to live in an environment, which is adequate for personal health and well-being". Where rights granted by the directive are violated and affect a large number of persons thus resulting in a "mass harm situation", recourse should exist also to collective redress mechanisms, provided that such mechanisms have been established by the Member State in question.

The draft is currently going through inter-service consultation within the European Commission. It is expected to be published, and transmitted to the EU legislative organs, the European Parliament and the Council of Ministers, still at the end of May. The timeline is tight considering that the proposed measure is far from trivial. However, if the current College of EU Commissioners wishes to see the measure adopted before the end of its term – and the term of the current European Parliament (the latter being up for new elections in May 2019), the formal legislative process must be initiated at the latest by the start of next month.

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