This article was first published in CIWM Journal March, 2018
Jacqui O’Keeffe MCIWM, consultant solicitor at Norton Rose Fulbright LLP, discusses the European Commission’s Strategy on Plastics in the Circular Economy
Considerable attention is being focused by a number of stakeholders on the environmental and social impacts of waste plastic. No one can forget its devastating impact on marine life, as of course shown in the final episode of Blue Planet 2.
At a European level, the European Commission (EC) published its first Europe wide strategy on plastics in a circular economy (the Strategy) on 16 January 2018. The Strategy is part of the EC’s wider waste agenda to move towards a circular economy in which resources are maximised, as illustrated in the publication of its Circular Economy Action Plan published in December 2015; the subsequent Road Map for Progress was set out in April 2017. The development of the Strategy was identified as a key initiative in the Action Plan.
The Strategy has been introduced to regulate the way in which plastic products are “designed, used, produced and recycled” throughout their entire life cycle. The aim of the Strategy is to encourage the use of more environmentally friendly plastics, better design of plastics and increased recycling, and to promote investment in innovative solutions to this issue by all stakeholders to bring about positive change.
EU member states generate more than 25m tonnes of plastic waste each year – less than 30 per cent of this waste is collected for recycling and a significant amount of this is exported to third world countries for treatment where different standards apply. The recent import ban by China on imports of plastic waste and plastic packaging has resulted in exporters of these materials finding alternative markets such as Turkey, Taiwan, Vietnam and Malaysia, and has highlighted the need for a carbon efficient circular economy. Between 31 and 39 per cent of plastics are landfilled or incinerated and demand for recycled plastics in the EU is only estimated to be six per cent.
The Strategy sets out a new vision for Europe’s new plastics economy and the following key themes and indicators will be used to measure progress by Member States and at an EU- wide level:
1. Making recycling profitable for business and improving the economics and quality of plastics recycling – the Strategy states that the EC will introduce new regulations around the recyclability of plastics. These will be phased in gradually, culminating in all plastics packaging being placed on the EU market by 2030 to be reusable or easily recycled. This will mean that the design of plastics packaging will be a key to achieving increased recycling levels so the EC proposes to work on revising the essential requirements for placing plastics packaging and consider supporting this initiative by extended producer responsibility obligations. This will allow the EU to gain a competitive advantage over other global economies in the plastics industry, which may continue to waste plastics. It is foreseen that by 2030, this will save around 100 Euros per tonne of plastic collected.
The EC is also considering how to boost demand for recycled plastics within the EU. One initiative is the launching of an EU-wide pledging campaign to ensure that by 2025, 10m tonnes of recycled plastics are used in new products within the EU market. The EC will also be issuing new guidance on separate collection and waste sorting to improve collection rates.
2. Curbing plastic waste and littering – this will require behavioural change to stop littering on land and within the marine environment. The Strategy intends to build upon the successful reduction of plastic bag use in recent years by expanding legislation to other types of single-use plastics and packaging. The EU will explore what measures will reduce over packaging, deposit schemes and whether fiscal measures should be introduced.
The Strategy will implement new regulations that seek to reduce the amount of marine litter being discarded. It is hoped that a reduction in offshore discarding will “reduce the administrative burden on ports, ships and competent authorities” – generating further economic benefits in the industry. Additionally, steps will be taken to reduce the usage of micro plastics and to improve labelling of biodegradable plastics.
3. Driving innovation and investment towards circular solutions – The EC estimates that it will cost between €8.4–16.6bn to achieve these objectives and this will require investment by European businesses and public authorities. EU research funding is supporting a number of initiatives and extended producer responsibility could also possibly be applied to create a private-led fund for financing investment in innovative solutions and new technologies. The EC with the co-operation of stakeholders intends to analyse the potential design features of such a fund and consider whether this would be feasible technically, economically and legally by mid-2019.
4. Harnessing global action – whilst the Strategy is focussed on plastics and the circular economy within the EU, the EU hopes to work collaboratively and lead by example to encourage other nation states around the world to follow suit in recognition that this is a global issue. It will continue to support international action, promote best practices worldwide and use external funding instruments to support improvements in waste collection, prevention and management. Examples of such initiatives include the EC continuing to highlight these issues under free trade agreements, co-operate in Regional Sea Conventions and participating in UN and East and South-East Asia initiatives (the Strategy makes several references to the report published by the Ellen MacArthur Foundation “The New Plastics Economy” in 2016).
On 11 January 2018, the UK Government published its 25 year Environment Plan: “A Green Future: Our 25 year plan to improve the natural environment” (the Plan), which sets out a framework of new and existing targets, mechanisms and commitments for protecting the environment in the UK and enhancing it over a 25-year period.
The Plan applies to the UK as a whole, however where environmental policy is devolved (and responsibility rests with the Scottish Government, Welsh Government and Northern Ireland Executive for their respective areas), the proposals in the Plan apply to England only (such as habitats, wildlife and waste).
The Plan confirmed the Government’s commitment to eliminating all avoidable waste by 2050 and all avoidable plastic waste by end of 2042 and, in particular, outlines how the Government intends to tackle plastic waste via a raft of measures throughout its life cycle. The Plan describes various measures it will be considering such as extended producer responsibility (including amendment to the producer responsibility regulations), designing plastic to ensure it can be recycled and improvements to collection and it will continue to fund R&D in this sector.
There is already a noticeable difference in the approach between England and the various devolved authorities in how they are approaching waste issues. Post-Brexit, exporters of products and materials to the EU will have to have regard to EU legislation and initiatives on plastic packaging and waste to ensure that their products can continue to be placed on the market.
No oral modification or variation clauses
The Supreme Court in England recently reversed our understanding of the effectiveness of “no oral modification or variation” clauses (“NOM clauses”). Until the case of Rock Advertising Limited v MWB Business Exchange Centres Limited  UKSC 24, it had always been assumed that NOM clauses were of limited effect, but that is no longer the case.