Proposed restrictions by the EU on scrap metal exports to non-OECD countries contain several legal errors, according to a legal opinion prepared by German law firm Okl & partner on behalf of metal recycling industry groups BVSE and CMA.
"The expert opinion shows that the [European] Commission is exceeding the limits of the Waste Shipment Regulation (WSR) by restricting scrap exports," CMA managing director Guido Lipinski and BVSE managing director Eric Rehbock said in a joint statement. "A legal act with so many weaknesses must not be enacted in this form."
The commission in September published a draft list of non-OECD countries that are authorised to receive specified non-hazardous waste, including ferrous and non-ferrous scrap, under the new WSR.
According to the legal opinion, the draft list violates the structure of the WSR and principles of EU law, while there are legal vulnerabilities in the proposed restrictions.
Among the objections, the fundamental concern is the standard of the review and the use of the heavy metal risks to justify exclusion of certain scrap metals.
Hazardous waste in principle cannot be exported to non-OECD countries under article 39 of the WSR, the groups say, with the proposed list only concerning non-hazardous waste.
"The draft treats scrap metal as if it were hazardous waste. It isn't, and the European legislator agrees," Lipinski said. "The commission justifies its decision with risks that it has no say in the matter with the list of member states."
The associations also question the proportionality of the proposed measure, with the WSR already requiring independent audits on facilities receiving EU-origin scrap, saying that blanket restrictions would be unnecessary.
Both BVSE and CMA also warn that export restrictions would have economic effects, and that the European market cannot absorb all the processed metals, and that international buyers are an important outlet for these surpluses.
"A restriction of these markets would therefore not only affect trade, but also make it more difficult to finance collection and processing. Ultimately, fewer secondary raw materials would be available to European industry," they say.
The BVSE and CMA urged the commission to revise the draft. Earlier this week, the Bureau of International Recycling called for the commission to reconsider proposed restrictions on recycled metal exports and asked for a four-week extension to the consultation period.
The feedback period following the announcement of the proposal closed on 16 October. A total of 161 companies and associations from inside and outside the EU gave feedback, according to the commission's website.
