1.Can the Union act? What is the legal basis and competence of the Unions’ intended action?

1.1 Which article(s) of the Treaty are used to support the legislative proposal or policy initiative?

The legal basis for this proposal is Article 192 of the TFEU. Accordingly, the European Union shall contribute to the pursuit, inter alia, of the following objectives: preserving, protecting and improving the quality of the environment; protecting human health; contributing to the prudent and rational utilisation of natural resources; promoting measures at international level to deal with regional or worldwide environmental problems, and combating climate change.

1.2 Is the Union competence represented by this Treaty article exclusive, shared or supporting in nature?

The EU has shared competence with the Member States as regards environmental policy in accordance with Art. 4 of the TFEU.

2.Subsidiarity Principle: Why should the EU act?

2.1Does the proposal fulfil the procedural requirements of Protocol No. 2 1 :

-Has there been a wide consultation before proposing the act?

-Is there a detailed statement with qualitative and, where possible, quantitative indicators allowing an appraisal of whether the action can best be achieved at Union level?

The Commission’s proposal to amend the Waste Framework Directive 2008/98/EC is supported by an impact assessment prepared in accordance with the Commission’s prevailing guidelines and reviewed by the independent Regulatory Scrutiny Board. The impact assessment addresses the issues of subsidiarity and proportionality, economic, social and environmental impacts and documents the extensive consultation activities undertaken. This consultation process included a variety of different consultation activities aimed at gathering the views of all relevant stakeholders and ensuring that the views of different organisations and stakeholder types were presented and considered. As regards food waste, local or regional authorities provided 2 out of 6 contributions received from public authorities to the Inception Impact Assessment and 13 out of 32 for the public consultation.

Initial feedback was provided through an Inception Impact Assessment for the setting of food waste reduction targets that was launched on 1 October 2021 and closed on 29 October 2021 and a Call for Evidence that was launched on 25 January 2022 and closed on 22 February 2022. In brief, 85 stakeholders provided their feedback to the Inception Impact Assessment and 198 stakeholders for the Call for Evidence. An online public consultation started on 24 May 2022 and ran until 24 August 2022, lasting 13 weeks. The public consultation questionnaire was uploaded to the EU Survey tool and was made available on the Have your Say platform in all EU languages. Any interested or concerned stakeholder, namely academic/research institution, business association, company/business organisation, consumer organisation, EU citizen, environmental organisation, non-EU citizen, non-governmental organisation (NGO), public authority, trade union, could provide feedback on this questionnaire regarding the following four topics: (1) opinion on waste related topic, (2) questions on food waste, (3) questions on separate collection, and (4) opinion on regulatory and/or economic incentives. The Commission received a total of 731 contributions while over 200 stakeholders also uploaded or sent a position paper on the topics of the consultation.

As regards food waste, respondents were concerned by the volumes of waste generated across all dimensions and types of waste as well as the impacts of waste on the environment. The respondents also indicated some barriers that may hamper waste reduction efforts and recommended, among others, to set waste prevention related targets or legislative and economic incentives. As regards the separate collection issue, the respondents indicated that more information about what happens to waste once it is collected, how it can serve a useful purpose and on how to separate waste for collection would increase participation in separate collection of municipal waste. Most respondents agreed with the possible EU measures to improve waste prevention and recycling. Concerning recycling, the respondents pointed out that more targets should be developed to promote recycling as well as better waste treatment infrastructure. On textile waste, many respondents stressed the need to prevent fashion waste export, i.e. through EPR funds to support waste management in the communities where the collected clothing ended up. They also proposed several economic incentives to promote reuse within the textile industry.

On food waste the respondents agreed with the setting of legally binding food waste reduction targets on EU level. Some of the measures that the respondents found most effective are the following: improving efficiency along the food supply chain, education and training, facilitating donation of surplus food, measuring food waste to track progress, setting food waste reduction targets and using surplus food and by-products.

2.2Does the explanatory memorandum (and any impact assessment) accompanying the Commission’s proposal contain an adequate justification regarding the conformity with the principle of subsidiarity?

The explanatory memorandum accompanying the Commission’s proposal presents a summary of the Commission’s analysis included in its impact assessment and covering elements on subsidiarity and proportionality.

Different regulations and approaches in each Member State may hamper the creation of the textile recycling industry in the EU which is pan-European and cause fragments in the single market. Thus, the harmonisation of certain elements regarding textile waste is necessary at EU level. This harmonisation in the textile waste management sector would facilitate the needed concerted action by the stakeholders across all the textiles value chain to achieve the necessary scale and investment and legal certainty to maximise re-use and expand the sorting and recycling capacities in the EU.

Food waste is generated in all EU Member States and has significant trans-boundary environmental and pollution effects, including the production of significant GHGs within the EU. Food is traded widely within the EU internal market and the Member State of food production is often different from the Member State of consumption. Food businesses that operate cross-border need coherence and clarity on the level of ambition expected in order to plan investments and actions on food waste prevention.

Ensuring reduction of food waste across the EU in a consistent manner ensures prudent and rational utilisation of natural resources, reduction of negative impacts on climate, biodiversity and use of natural resources, and, by making the food system more efficient, also contributes to food security.

Despite political commitments made at international, EU and national levels, existing legal requirements in the WFD and supporting activities by the Commission, Member States’ responses to food waste have been uneven and are, overall, not sufficient to address the problems identified and the environmental, economic and social consequences for consumers, enterprises and society as a whole. The variation in efforts across Member States as regards reduction of food waste generation indicates a need for reinforced and uniform legal measures at EU level to drive the progress at the pace required to achieve SDG Target 12.3.

While the EU legislator can define a common target for reduction of food waste for different stages of the food supply chain to ensure that the EU achieves these objectives, each Member State needs to develop the most effective measures to reach the objectives, taking into account its specific national situation (in particular complex, market- and culture-specific drivers of food waste generation), while being able to draw on the supportive actions led by the Commission.

2.3Based on the answers to the questions below, can the objectives of the proposed action be achieved sufficiently by the Member States acting alone (necessity for EU action)?

The objectives of the proposed action cannot be achieved sufficiently by the Member States acting alone because a harmonised approach is needed to achieve these objectives.

(a)Are there significant/appreciable transnational/cross-border aspects to the problems being tackled? Have these been quantified?

In the area of textiles, the initiative addresses environmental problems with transnational implications including the impacts on greenhouse gas emissions and air and water pollution from extraction and processing of virgin raw materials and from waste collection and treatment. It is estimated that the fashion industry is responsible for 10% of global carbon emissions. According to the European Environment Agency, textile purchases in the EU in 2017 generated about 654 kg of CO2 emissions per person. It is also estimated that the global warming potential of textiles placed on the EU27 market can be extrapolated to 198 million metric tonnes CO2eq.

As stated in point 2.2. food waste is generated in all EU Member States and has significant trans-boundary environmental and pollution effects and food is one of the most important commodities traded within EU.

The 58.5 Mt of food waste generated in the EU in 2020 2 caused emissions of 252 Mt of CO2 equivalents 3 . This corresponds to 16% of the total GHG impact resulting from the EU food system. Food waste also puts unnecessary pressure on limited natural resources. For example, the amount of water consumed to produce food that is ultimately wasted can be quantified as 342 bn m3 water eq. 4 , corresponding to 12% of the total impact of EU food production and consumption. Food waste is also responsible for 16% of impacts on soil as a caused by land use activities 5 , while the consequences on marine eutrophication are 15% of the total. 6 , 7  

(b)Would national action or the absence of the EU level action conflict with core objectives of the Treaty 8 or significantly damage the interests of other Member States?

In the absence of a common EU approach to textiles collection for re-use, preparation for re-use and recycling the actors involved in these operations (consumers, re-use operators, waste collectors, waste operators and producers) would face different regulation in each Member State with the risk of creating an uneven level playing field. In addition, different input and approaches to the subsequent treatment of non-re-usable textiles would hamper the development of a recycling industry which requires large volumes of textile waste with similar composition and characteristics. This would impede the Union’s efforts in pursuing the Treaty objective of achieving a high level of environmental and health protection.

As stated in point 2.2. Member States’ responses to food waste have been uneven and are, overall, not sufficient to address the problems identified and the environmental, economic and social consequences for consumers, enterprises and society as a whole. The variation in efforts across Member States as regards reduction of food waste generation indicates a need for reinforced and uniform legal measures at EU level to drive the progress at the pace required to achieve SDG Target 12.3.

(c)To what extent do Member States have the ability or possibility to enact appropriate measures?

Through a directive, Member States have the ability or possibility to enact appropriate national measures when implementing an EU provision, which they do not have in case of a regulation. However, the several key elements of the initiative, such as the extended producer responsibility scheme for textiles and footwear products, definitions are proposed to be harmonised to prevent the fragmentation of the internal market, uneven level playing field for the producers, re-use operators, waste management operators and illegal shipments.

In the area of food waste, Member States are not obliged to take any new measures relating to food waste reduction other than those already established by the Waste Framework Directive (i.e., reducing food waste at each stage of the food supply chain, preparing food waste prevention programmes, implementing related actions, monitoring and reporting on progress achieved). Moreover, Member States have already committed, since the adoption of the Sustainable Development Agenda in 2015, to take action to reduce food waste in order to contribute to SDG Target 12.3, which is de facto a non-binding, aspirational target. However, Member States’ responses to food waste have been uneven and are not sufficient to address the problems identified and the environmental, economic and social consequences for consumers, enterprises and society as a whole. Introducing binding reduction targets sets a clear objective and ensures that food waste prevention becomes a long-term political priority.

Setting targets gives Member States the freedom as regards the selection of the most effective measures tailored to its specific national situation, both to support consumer behavioural change as well as ensuring coordination of actions between the actors across the whole food value chain.

(d)How does the problem and its causes (e.g. negative externalities, spill-over effects) vary across the national, regional and local levels of the EU?

Different Member States have different scopes of what are “textiles” (clothes, HH linen, shoes etc.) and this impacts what is/will be covered by separate collection systems. Member States also have fragmented collection and sorting criteria for textiles (what is considered waste and what is not, waste categories, standards for products “prepared for reuse” or “prepared for recycling”). This hinders the circulation of used textile and textile waste across borders and their potential shipment outside the EU for re-use or for waste treatment. In addition, different set-ups are in place in different Member States in the way that separate collection schemes currently operate and on how to assign the responsibility of the upcoming separate collection obligation of post-consumer textiles.

While food waste generation is a common challenge for all Member States, there are significant variations between them resulting from a number of factors, most important being: the size of the food production and manufacturing base; whether the country is a net food exporter or importer  9 ; share of disposable income allocated to food; population flux (e.g., due to tourism, migration); cultural differences and food habits.

(e)Is the problem widespread across the EU or limited to a few Member States?

Given the persistence, the lack of harmonisation of the approaches to textile management, the uneven efforts across Member States as regards reduction of food waste generation and the transboundary character of the negative impacts of textile and food waste, the problem affects all EU Member States. Regardless of the country where the materials and finished textile products are manufactured, each Member State will have to collect these textiles, promote their re-use and treat the ones that cannot be re-used as high up the waste hierarchy as possible.

As stated in points 2.2 and point (d) above the food waste is generated in all EU Member States and is a common problem across the EU.

(f)Are Member States overstretched in achieving the objectives of the planned measure?

The Waste Framework Directive 2008/98/EC (WFD) is the main EU instrument regulating waste management. The Directive was adopted on 19 November 2008 and was amended by the Directive (EU) 2018/851, which set, among others, the target of separate collection for bio-waste, which includes food waste, by 31 December 2023 and for textiles by 1 January 2025. The WFD had to be transposed by Member States by 12 December 2010, while the Directive (EU) 2018/851 amending the WFD had to be transposed by Member States by 5 July 2020.

Despite any delays in transposition that Member States may have encountered due to Covid-19 pandemic, the EU legislative framework on waste management is already well embedded in the national legislative frameworks of Member States, and there was enough time to develop the appropriate structure contributing towards the fulfilment of the WFD objectives.

As stated in points (c) above – some Member States are already taking measures established by the Waste Framework Directive (reducing food waste at each stage of the food supply chain, preparing food waste prevention programmes, implementing related actions, monitoring and reporting on progress achieved) and in line with their political commitments towards the SDG Target 12.3. However, Member States’ responses to food waste have been uneven and, to date, are not sufficient to ensure a solid contribution from the EU to the global target.

(g)How do the views/preferred courses of action of national, regional and local authorities differ across the EU?

Considering the variation of approaches among the Member States and the fact that, although they have made some plans in terms of assigning responsibilities and/or setting up an EPR scheme, some delays are likely since many stakeholders have identified the wish to await the adoption of the legislative proposal amending the WFD on this issue.

All Member States have accepted the political commitment resulting from SDG 12.3 and there are no differences concerning the general course of action. The selection of policy measures for food waste reduction is (and will continue to be) managed by national authorities, and, where relevant depending on the legal and administrative rules applicable, regional and local authorities’, which should take measures adapted to their needs. There are differences in the breadth and scale of actions taken and the pace of progress made, as some Member States have started taking measures earlier and are more advanced than the others. As regards local and regional authorities, no major divergence of views was reported. The role of regional and local authorities in implementing food waste prevention initiatives is also highlighted in the recommendations of the citizens’ panel 10 convened by the Commission to deliberate on actions needed to step up efforts to reduce food waste and achieve the future targets.

2.4Based on the answer to the questions below, can the objectives of the proposed action be better achieved at Union level by reason of scale or effects of that action (EU added value)?

The objectives of the proposed can be better achieved at Union level rather than by the Member States acting alone because a harmonised approach is needed to achieve these objectives.

(a)Are there clear benefits from EU level action?

An increased harmonisation of the approaches to textile management in terms of scope of textiles targeted, organisational features of textile collection systems adhering to the waste hierarchy and burden sharing would facilitate the needed concerted action by the stakeholders (Member States, social enterprises, waste managers, producers, other economic players, citizens) across all the textiles value chain to achieve the necessary scale and investment and legal certainty to maximise re-use and develop the sorting and recycling sectors in the EU. Operators of separate collection, sorting and subsequent treatment for recycling in all Member States achieve economic efficiencies only by having to adhere to one EU-wide uniform regulatory approach.

Setting binding food waste reduction targets is expected to confer clear accountability to Member States for driving more ambitious action at national level, in line with their and the EU’s commitment to achieve relevant global targets. Indeed, such targets are expected to reinforce efforts to identify and scale-up effective strategies/initiatives both within and across Member States by:

ostreamlining the contribution of food business operators, notably in the context of cross-border supply chains, avoiding shifting waste from one stage of the food supply chain to another and ensuring systemic reduction across the food value chain;

ohelping to ensure that drivers (market and behavioural) are addressed consistently/simultaneously by all Member States, in line with actions taken by the – so far few – front-runners as less advanced Member States can benefit from the experience of others;

oaccelerating the development of effective national food waste prevention strategies by spreading good practices and synergies from similar approaches being developed in different Member States and by further leveraging the EU knowledge base regarding environmental impact of food waste generation, prevention and management.

(b)Are there economies of scale? Can the objectives be met more efficiently at EU level (larger benefits per unit cost)? Will the functioning of the internal market be improved?

Should different regulations exist in each Member State, there is a risk of creating an uneven level playing field and hampering the creation of the sorting and recycling industry. This is relevant in particular for the textile waste.

For food waste, the are no specific economies of scale, however, efficiency gains at EU level are expected from the exchange of best practices, resources and learning amongst all players (actors in the food value chain, academia, public authorities as well as environmental-, consumer and other NGOs contributing to food waste prevention at national level). There are a range of EU-level measures implemented to address possible barriers to food waste prevention (e.g., guidance on the application of EU legislation to facilitate food donation), strengthen the evidence base (e.g., calls for proposals and active projects under Horizon Europe) and leverage learning and experience of all players (e.g., a dedicated multi-stakeholder platform established in 2016 (see section 3.1.2 of the SWD for further details).

(c)What are the benefits in replacing different national policies and rules with a more homogenous policy approach?

A more homogenous policy and legislative approach will contribute to the adoption of common scope and definitions for the basic -yet unclear- elements and common treatment standards for textile and food waste. In this way, the necessary scale and investment and legal certainty to maximise re-use and establish a recycling sector in the EU will be achieved. At the moment several approaches are proposed by the different Member States and only France has an operational EPR scheme for textiles in place.

The proposal of setting food waste reduction targets does not intend to replace national policies through a homogenous policy approach. On the contrary, while the initiative sets a clear objective and provides direction for Member States’ action, it provides flexibility to Member States to select and implement policy measures best adapted to their national situations.

(d)Do the benefits of EU-level action outweigh the loss of competence of the Member States and the local and regional authorities (beyond the costs and benefits of acting at national, regional and local levels)?

A possible limited loss of competence of Member States in certain areas which may be induced by this proposal is residual, since the latter i) keeps the form of a Directive as the most appropriate tool, while the WFD regulatory approach of harmonising certain elements (definitions, quantitative or qualitative objectives operationalising the waste hierarchy, polluter pays principle, reporting requirements) and leaving room for national implementing measures (waste management planning and permitting of waste operations, including organisational features that need to take account of national, regional and local circumstances) is consistent with carrying out at EU level only what is necessary.; and ii) strengthens and improves an already existing legislative framework.

The overall benefits of harmonised implementation of the EU obligations and the provision of clear concepts and definitions on the management of textile and food waste concerned, outweigh any possible loss of competence of the Member States on this matter.

(e)Will there be improved legal clarity for those having to implement the legislation?

Yes, as the proposal contains the clarification of definitions and scopes of some basic elements of the Directive, the uncertainty of which caused problems in the implementation. More specifically, stakeholders have indicated that there is non-uniform understanding of what should be covered by separate collection across the EU (collection systems, collection categories, collection for reuse vs. for recycling systems, communication on collection to consumers), hindering the large-scale circulation of used textile and textile waste and the production of a sufficiently pure, and consistent feedstock streams required by large-scale sorting and fibre facilities. They also proposed that the definition of recycling should be refined.

In the area of food waste, the necessary provisions already exist in the WFD as amended in 2018. The proposal gives clear direction to Member States as to the level of food waste reduction to be achieved as well as the key focus areas in the food value chain. Moreover, given the mechanisms in place to facilitate sharing of experience and best practice, any issues arising related to the implementation of food waste prevention that require legal clarification can be addressed faster and in a more coherent way. For example, the Commission adopted EU guidelines, respectively in 2017 and 2018, to clarify relevant provisions of Union legislation and lift barriers to food donation and the feed use of food no longer intended for human consumption.

3. Proportionality: How the EU should act

3.1 Does the explanatory memorandum (and any impact assessment) accompanying the Commission’s proposal contain an adequate justification regarding the proportionality of the proposal and a statement allowing appraisal of the compliance of the proposal with the principle of proportionality?

The explanatory memorandum summarises the analysis of the supporting impact assessment, which contains an environmental, economic and social assessment of each policy option including an assessment of proportionality. A qualitative assessment has been undertaken that shows that the proposals are proportionate, i.e., that societal benefits are significantly higher than the incurred costs. The content of this proposal takes full account of the outcome of this analysis.

The WFD regulatory approach of harmonising certain elements (definitions, quantitative or qualitative objectives operationalising the waste hierarchy, polluter pays principle, reporting requirements) and leaving room for national implementing measures (waste management planning and permitting of waste operations, including organisational features that need to take account of national, regional and local circumstances) is consistent with carrying out at EU level only what is necessary.

3.2Based on the answers to the questions below and information available from any impact assessment, the explanatory memorandum or other sources, is the proposed action an appropriate way to achieve the intended objectives?

Given that the proposal regulates only the aspects, which Member States could not achieve satisfactorily on their own, setting objectives, and in parallel, giving to the Member States the freedom to take national implementing measures according to their specific circumstances, while ensuring that any adverse impact of the proposed objectives is proportionate, the proposed action is an appropriate way to achieve the intended objectives.

(a)Is the initiative limited to those aspects that Member States cannot achieve satisfactorily on their own, and where the Union can do better?

Yes, the initiative is limited to those aspects that studies and evaluations show that Member States could not achieve satisfactorily on their own and was estimated that a harmonised EU approach is the best way for the objectives to be achieved. In parallel, the approach of setting certain objectives and letting the Member States adopt the appropriate national implementing measures, highlights the fact that EU action is limited to what is necessary on this matter.

Noteworthy is that the preparatory stages of this initiative, including the Call for Evidence and the public consultion, looked into a variety of areas governed by the WFD, namely, (1) waste oils, (2) waste prevention practices and performance and (3) waste separate collection practices, though the preliminary analysis show that further monitoring data is necessary to assess the necessity of EU action.

(b)Is the form of Union action (choice of instrument) justified, as simple as possible, and coherent with the satisfactory achievement of, and ensuring compliance with the objectives pursued (e.g. choice between regulation, (framework) directive, recommendation, or alternative regulatory methods such as co-legislation, etc.)?

The use of a directive was deemed appropriate when the Waste Framework Directive was first adopted. This is because the Directive provides the overall principles and sets the targets to be achieved while leaving some margin of implementation to the Member States according to their national (or regional/local) circumstances. This proposal for a revision maintains that approach.

(c)Does the Union action leave as much scope for national decision as possible while achieving satisfactorily the objectives set? (e.g. is it possible to limit the European action to minimum standards or use a less stringent policy instrument og approach?)

While additional EU action is deemed necessary to help Member States achieve the ambitious waste management objectives, Member States will have to make some policy choices and adopt some national implementing measures (waste management planning and permitting of waste operations, including organisational features that need to take account of national, regional and local circumstances) in relation to their circumstances.

Yes, action can and (must) be tailored – drivers are different etc

(d)Does the initiative create financial or administrative cost for the Union, national governments, regional or local authorities, economic operators or citizens? Are these costs commensurate with the objective to be achieved?

The proposed initiative does not create additional financial or administrative costs for the Union. It may however have some negative economic impacts which, as said above (3.1.), are proportionate. The tables below summarise costs and benefits associated with the preferred options, respectively, for textiles and food waste.

For textiles, the impact assessment finds the following costs and benefits (with net benefits):

For food waste, the impact assessment finds the following costs and benefits (with net benefits):

(e)While respecting the Union law, have special circumstances applying in individual Member States been taken into account?

As indicated above, the proposal sets the targets to be achieved while leaving some margin of implementation to the Member States according to their national (or regional/local) circumstances. For example, as regards the proposed EPR scheme, its implementation in particular in terms of the separate collection network, producer responsibility organisations MSs will maintain a level of flexibility in their implementation so that they are able to consider national circumstances. Also, relating to the separate collection systems the EU should provide high-level minimum requirements, but the collection systems should be tailored to the reality of each MS, for example in terms of geography, density etc.

For food waste, no special circumstances have been detected (see section 2.5.2 on territorial impacts in Annex 11 of the Staff Working Document) and the proposal is designed to allow for appropriate flexibilities: targets are set as a percentage and not absolute values (which means that Member States in which more food waste is generated will need to make greater reduction efforts); targets linked to consumption are expressed per capita to take into account demographic changes. Finally, Member States may also take into account their earlier achievements towards to attaining of the targets (i.e. earlier reference year or baseline) provided that they can substantiate progress made through credible data.