Taking producer responsibility out of waste law: A new legal framework for the Circular Economy

At the heart of EU waste law lies the prevention principle. Preventive measures in environmental law aim to avoid and reduce the risk of environmental harm that can target both pollution sources and point of impact. The point of departure of waste law is that waste is a source of pollution, the unwanted outcome of the production and consumption processes, an environmental externality. The risk results from the actions of the holder of a substance or object from the moment where that substance or object is no longer wanted and (carelessly) disposed of. Preventing waste is hence about ensuring that a discarded object is disposed in the least environmentally harmful manner. It is also about much more than that. It is about everything that takes place before a product or material becomes waste, it is about extended product lifetime, repair and re-use, sharing and renting. The role of waste law might have consisted in avoiding landfilling, ensuring that collection and recovery schemes are in place, and that information flows between producers, consumers and waste managers. The rest, the prevention of products from becoming waste in the first place, could arguably have been pursued in another (more fitting) context. EU legislators, and the CJEU, saw things differently. A wide definition of waste captured in effect the major issues of prevention. As a result, waste recovery is facing today great regulatory challenges, such as stringent conditions about when waste ceases to be waste (i.e. ‘end-of-waste’) and abiding by the strict rules about chemical production (stemming from the REACH regulation). The concept of ‘extended producer responsibility’ (EPR), developed in waste law as a way to ensure that producers pay for the management of their waste products in line with the polluter-pays principle. EPR was also anchored in the prevention principle and intended to form a bridge between products and waste. One of the stated objectives of EPR was indeed to provide economic incentives to producers to re-design their products in order to avoid the waste management costs. That objective has essentially failed, in particular products where those costs represent only a very small share of sales price (typically electrical and electronic equipment). This paper aims at critically examining the existing EU legal framework on waste, in particular on issues of objectives and scope, and the concept of EPR, and laying the foundations for a new legal paradigm in accordance with the goals of the Circular Economy. First, it is argued that the definition of waste needs to be narrowed to leave room for the ‘circular’ model to flourish. It follows that a new legal framework shall be established in the vacuum left by a shrunken waste law. At the heart of this new framework is the duty of producers, including notably take-back systems, repair schemes, quotas of re-use, repaired and refurbished products in the sale offer, and information requirements.