The legal transition towards a Circular Economy in the EU - Perspective of environmental law

In response to the challenges of circular economy, the European Commission adopted the Circular Economy Package in 2015. One of its main objectives is to establish the right regulatory regime for circular economy.

However, it is still questionable which legal conditions need to be fulfilled in order to fully integrate the circular economy in the European Union environmental law. At least the three most relevant laws ‒ the Ecodesign Framework Directive (EFD), the Waste Framework Directive (WFD) and the regulation on Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) ‒ need to potentially be adjusted.

But where to start? So far the implementing measures of the EFD have been predominantly addressing energy efficiency of the targeted energy-related products for which they set specific product standards. However, the Commission recognises that a broader approach addressing other than energy-related impacts is needed.

Greater emphasis on material-related aspects can already be legally founded, but certain additional features must be taken into account as well. For example, several legal environmental principles ‒ the preventive and polluter pays principles, to name just a few ‒ become more relevant.

Additional information flows on the use of materials need to be generated with the support of specific policy instruments outside the realm of the EFD: certificates on sustainable sourcing or recycled content standard are just some possibilities.

Moreover, the consistent use of terminology is essential. How we define recycling or preparing for reuse cannot vary between frameworks such as WFD but needs to be agreed on in a uniform manner. At the moment the legal meaning of ‘qualitative recycling’ is not specifically defined, for example, making it difficult for law-makers to know what is meant and how to achieve the goal of recycling qualitatively. This is needed to interest customers in buying recyclates instead of virgin materials. At present, the CE Package only focuses on quantitative recycling.

It is clear that the legal foundation of the circular economy in EU environmental law can ‒ and should ‒ be strengthened through the measures mentioned above; other means, such as harmonising the measurement of targets and considering alternatives to harmonised European standardisation, are worth considering as well. At the same time, REACH should be better attuned to the Ecodesign framework, as it can trigger producers to share the responsibility for the quality of waste materials with recyclers.

Other recommendations to align the circular economy with the existing environmental law also play a key role.

Thinking of full life-cycles as a legal environmental principle is the first step: as this concept is at the heart of the general vision for circular economy, it should also be engrained in core environmental legislation. Adding the concept to the list of environmental principles under Article 191(2) in the Treaty on the Functioning of the European Union (TFEU) would help further embed the circular economy in EU law.

Second, it is recommended to recognise the existence of ‘EU materials law’. This new branch of EU environmental law would further stimulate the coherence of legislation relevant to the circular economy. Although the contours of EU materials law are already visible, it is not yet considered as such.

Third, it is recommended to introduce two instruments that have an impact on the life-cycle thinking principle and the promotion of EU materials law: product passports and a product database. This idea was first expressed by the European Resource-Efficiency Platform in 2013 and has been endorsed several times by the European Parliament since then, but has not yet been effectuated.

These instruments could include information about the origin of the materials used in the product and about the product’s composition, hazards and risks. The information hub that is created will provide valuable information for many actors in the material-cycle. Which information can be shared, for instance, considering competition law and intellectual property law, will probably provoke discussion and therefore needs to be further clarified.

To successfully execute the legal transition towards a circular economy from the perspective of environmental law requires establishing a clear legal framework. The process might take time, but no corners should be cut.

This contribution is based on the Ph.D. project of Thomas de Römph, called “The legal transition towards a Circular Economy – EU environmental law examined”, which will soon be published and made available through the libraries of KU Leuven and Hasselt University.