The new Waste Framework Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008, published in the Official Journal of the European Union (OJEU) on 22 November 2008 and entered into force on 12 December 2008, draws the lines of the end-of-waste status in its article 6. This recognition of the end-of-waste status will allow the development of recycling by excluding from the waste status some wastes that have become “secondary raw materials” or “recycled materials” after a recovery operation.

So far, the Waste Framework Directive of 1975 gave a definition of waste (“any substance or object which the holder discards or intends or is required to discard”) but no general definition of recycling or secondary raw material had been made. However, it was mentioned in various sectoral directives such as the Packaging and Packaging waste Directive, of 20 December 1994.
It was up to various jurisdictions to clarify the concept of recycling and to provide a potential opening of the end-of-waste status for secondary raw materials on a case by case basis, taking into account available details of the applicable specific text (eg. the sectoral directive). However, the ECJ rulings were not frankly in favour of end-of-waste status, the conditions identifying recycling being particularly severe to apply (eg. ECJ, 19 June 2003, case Mayer Parry).

The new directive does not modify the definition of waste but provides a definition of recycling in its article 3: “any recovery operation by which waste materials are reprocessed into products, materials or substances whether for the original or other purposes. It includes the reprocessing of organic material but does not include energy recovery and the reprocessing into materials that are to be used as fuels or for backfilling operations”. Moreover, it does not provide a definition of secondary raw material or confer them any special status but it gives details on the end-of-waste status. Thus, Article 6 states that “certain specified waste shall cease to be waste within the meaning of Article 3 when it has undergone a recovery, including recycling, operation and complies with specific criteria to be developed in accordance with the following conditions”.

Article 6 sets 4 conditions:

- The substance or object is commonly used for specific purposes. The waste, to cease to be waste, should (after treatment) have a known and specific use, i.e. be used for its original function (before it became waste) or for other purposes other than energy recovery. The goal is to have a secondary raw material that can replace a primary raw material.
- A market or demand exists for such a substance or object. There must be a market that incorporate the secondary raw material with a positive economic value (or negative), or a current demand which could lead to a market (the material having an industrial and economic interest).
- The substance or object fulfils the technical requirements for the specific purposes and meets the existing legislation and standards applicable to products. The end-of-waste status does not imply that the matter will no longer be subject to any regulation. It will no longer be subject to waste legislation, which is quite restrictive, but will be subject to the legislation related to products or to the REACH Regulation. This material must also meet the requirements contained in standards, specifications ...
- The use of the substance or object will not lead to overall adverse environmental or human health impacts. This condition is consistent with the desire to protect the environment laid down in the Directive (taking into account the impacts on the health and on the environment). The target is not to allow substances or objects not to be covered any more by waste legislation if they still present a risk for the environment and the human health because of its use or transport. “Overall adverse impacts” suggest that a balance of advantages and disadvantages of changing the status of the waste in relation to environmental protection must be achieved.

The Commission, assisted by a committee of representatives, experts of Member States (within the commitology procedure) will then have to take measures in order to adopt criteria for determining when a waste ceases to be waste. End-of-waste specific criteria should be considered, among others, at least for aggregates, paper, glass, metal, tyres and textiles. For that, the Commission could eventually lie upon the work accomplished by the IPTS (Institute for Prospective Technological Studies which is one of the seven scientific institutes of the European Commission’s Joint Research Center) who is developing criteria for certain materials. Furthermore, in case of failure to act on the Community level, especially concerning materials other than those mentioned above, “member States may decide on case by case whether certain waste has ceased to be waste taking into account the applicable case law” and notifying their decisions to the Commission.

Regarding the transfer of waste within the territory of EU and OECD countries, governed by the Regulation 1013/2006 of 14 June 2006, a qualification issue might arise. The legitimate question arises about the application of the end-of-waste status and its effects and recognition while applying the regulation. One might think that this recognition of the end-of-waste status would apply only on intra-community transfers. Member states, subject to the new Waste Framework Directive, should all hold the same perception of what is waste and what is not waste, but the Regulation also applies among EU member countries and other OECD members (not part of the UE). This interpretation is quite consistent with article 28 of the Regulation reminds that: “if the competent authorities of dispatch and of destination cannot agree on the classification as regards the distinction between waste and non-waste, the subject matter shall be treated as if it were waste. This shall be without prejudice to the right of the country of destination to deal with the shipped material in accordance with its national legislation, following arrival of the shipped material and where such legislation is in accordance with Community or international law.”
As transfers to non-OECD countries are concerned, the Basel Convention should be amended. Furthermore an amendment to the Regulation of 14 June 2006 should be further considered in order to clarify the situation and the definition of waste which should be consistent with both Transfer of waste Regulation and Waste Directive.