The European Commission is expected to present a Proposal for a Directive on Green Claims ("Proposed Green Claims Directive" or "the Proposal") within the next few months. Together with the Proposal for a Directive empowering consumers for the green transition through better protection against unfair practices and better information ("Consumer Empowerment Directive Proposal"), the Proposed Green Claims Directive would contribute to the EU's green transition towards a circular, climate-neutral and clean economy by creating a common methodology for the substantiation of green claims that concern the environmental footprint of products, services and companies.It would aim to reduce greenwashing and enable consumers to take informed purchasing decisions based on reliable information about the sustainability of products and traders.
If adopted, it is likely to significantly limit the environmental claims that businesses can make in the EU/EEA. Businesses may want to consider approaching the Commission to try to influence the final legislative proposal that it is expected to present by March 2023. Once the Commission presents its legislative proposal, businesses should consider proposing amendments to the European Parliament and Council.
Harmonization of the Rules on Green Claims in the EU
Currently EU law does not explicitly regulate environmental claims.万博体育app手机登录Instead, environmental claims are subject to the general rules of Directive 2005/29 on Unfair Business-to-Consumer Practices and Directive 2006/114 on Comparative Advertising. While the Commission and Member States have issued guidance interpreting these directives and their national implementation in the context of green claims, in practice there is a wide range of variations on the requirements for and enforcement against these claims among Member States. The Proposed Green Claims Directive is expected to create a harmonized set of rules on the substantiation of voluntary green claims applicable to all companies operating in the EU/EEA.
Covered Green Claims
The Proposal is expected to define green claims subject to the new rules as "any message or representation, including text, pictorial, graphic or symbolic representation (e.g., labels, brand names, company names or product names), which states or implies that a product or trader has a positive or no impact on the environment or is less damaging to the environment than other products or traders, respectively, or has improved their impact over time." The Proposal is not expected to apply to claims that cover aspects other than those related to the environment. For example, sustainability claims would only be covered if they refer to environmental sustainability (e.g., preventingbiodiversity loss).
The proposed rules are also only expected to cover voluntary claims made by companies in the context of business-to-consumer ("B2C") transactions. The rules would also not cover environmental mandatory labelling or disclosures under EU environmental rules.万博体育app手机登录For example, mandatory declarations under Proposal for Ecodesign for Sustainable Products Regulation, or the requirements under the EU Taxonomy Regulation or the Proposal for a Regulation Establishing a Union Regulatory Framework on the Certification of Carbon Removals) are out of scope.
General Rules on Green Claims
The Proposal is expected to impose general requirements on the environmental claims that companies can make that will mirror those of the existing Commission's guidance. In particular, it will require that companies:
- only make environmental claims that have been substantiated through an approved methodology that meets specific criteria (see below);
- do not make a positive environmental claims where a product has both a positive and negative environmental impact. Companies may communicate the positive claim only if they also communicate the negative impact in a clear and understandable way. For example, if savings in water consumption lead to a notable increase in greenhouse gas emissions or to a negative environmental impact in another stage of the life-cycle of the product (e.g., CO2 savings at the stage of manufacturing leading to a notable increase of CO2 emissions at the use phase), both facts should be disclosed together with the claim;
- make available the information on the assessment on which the environmental claim is based, including (i) information on the product or activities of the trader subject to the claim, (ii) environmental aspects, environmental impacts or environmental performance covered by the claim, (iii) the methodology used, (iv) the underlying studies or calculations used to assess, measure and monitor the environmental impacts or aspects covered by the claim, (v) a brief explanation how improvements in environmental performance are achieved, etc. Access to this information may be provided in the form of a weblink, QR code or equivalent!万博体育app手机登录and
- review the accuracy of their environmental claims (and their substantiation) at least once every five years from the date of the underlying studies or calculations. In cases where there are circumstances that may affect the accuracy of the claim (i.e., when there are updates of the scientific methodology substantiating the claim), the environmental claim should be reviewed and updated immediately.
Methodology to Substantiate Green Claims
In line with current Commission's and Member States' guidance on environmental claims, the Proposal is expected to require economic operators to duly substantiate their environmental claims on the basis of a methodology that:
- is based on widely recognized scientific evidence, state of the art technical knowledge and takes into account relevant international standards. Where there is no recognized scientific method or insufficient evidence to assess environmental impacts and aspects, claims referring to such environmental impacts would not be allowed;
- assesses the environmental impact throughout the whole life-cycle of the product;
- takes into account: the product composition!素材制作从过程和产品使用中排出耐用性、可恢复性和生命终结性;
- asesse万博体育app手机登录and
- is regularly reviewed by a third party with a view to take account of technical and scientific progress and the development of relevant international standards as well as revised where necessary to reflect such progress.
The Proposal is expected to add a lengthy list of additional requirements with which the methodologies to substantiate environmental claims must comply. This is a significant departure from the previous, lighter requirements under the Commission's and Member States' green claims guidance. In this context, the Proposal links these requirements to the existing EU Product and Organization Environmental Footprint methods ("PEF" and "OEF"). Where a company complies with the Product Environmental Footprint Category Rules ("PEFCRs") for a product, the claims made on the basis of the PEFCRs are deemed compliant with the requirements of the Proposal.
Requirements Related to Comparative Environmental Claims
The Proposal is also expected to include rules on environmental comparative claims, namely, that:
- companies use the same methodology to assess the environmental impacts, aspect or performance of products or traders to which the comparison is made (e.g., where two traders make a claim on climate change, where one considered only direct impacts, whilst the other considered both their direct and indirect impacts, the results are not comparable);
- data used for the substantiation of the comparative claim must be generated or sourced in an equivalent manner to ensure their comparability (e.g., choosing indicators on the same aspects but that use a different formula for quantification makes comparisons impossible, and therefore, there is a risk of misleading consumers)!and
- the most significant stages along the value chain must be taken into account for all products and traders compared, etc.
If adopted, these requirements are likely to make environmental comparative advertising more challenging for companies. Product certification and testing is costly, and the proposed wording would in practice require companies to conduct head-to-head studies to be able to claim any comparative advantage. Broad, sector-wide claims based on publicly available studies would no longer be acceptable.
New Rules on Forward Looking Claims
The Proposal is also expected to introduce new strict rules on forward-looking claims (i.e., claims that suggest that a product, service or company will achieve specific environmental benefits by a certain future date).The Proposal is expected to require that claims related to the future environmental performance of a product, service or trader:
- be accompanied by commitments that include milestones to be achieved within clearly specified time frames (if a target set for 2030 does not include any periodic milestones, it is impossible for stakeholders, or the trader itself, to monitor whether they are on track and what are the challenges);
- indicate a baseline year for targets and the indicators reflecting performance in the baseline year and the year linked to the improvement set out in the claim (e.g., "50% reduction of greenhouse gas emissions compared to 2015" instead of "50% reduction of greenhouse gas emissions");
- not include actions or targets already achieved, etc.
Enforcement and Access to Justice for third Parties
The proposal is expected to introduce new and reinforced rules on enforcement against companies making non-compliant environmental claims. Member States are expected to be required to carry out a compliance monitoring:
- as part of their regular checks;
- in cases where they have sufficient reason to believe that an environmental claim presents a risk of infringement of the rules, laid down in the Proposal!或
- 响应.
CompanyAfter receiving a notification for non-compliance, companies would only have 10 business days to provide an answer. Where a trader does not provide a timely or satisfactory answer, enforcement authorities must require the trader to correct the non-compliant claim or immediately stop its communication. The trader will have to implement the corrective actions within 30 business days.
The Proposal is also expected to allow third parties to submit complaints against non-compliant green claims before administrative authorities, and thereafter courts, if the third parties have sufficient interest or have the rights infringed. Such complains may lead to injunctive actions, including the immediate stop of the communication of the non-compliant claims.
Next Steps
The European Commission is expected to formally present its proposed Green Claims Directive by the end of March 2023. Once presented, the European Parliament and Council will consider the Proposal for adoption through the ordinary legislative procedure. This process will allow for the introduction of amendments and will take at least 18 months. As indicated above, industry should keep a close eye on the development of this proposal as the requirements it will impose will have a significant impact on the current practices.
Last week the European Commission published its long-awaited proposal for a Packaging and Packaging Waste Regulation ("Proposed Packaging Regulation" or "proposed Regulation"), and a Plastics Communication on an "EU Policy Framework on Biobased, Biodegradable and Compostable Plastics" ("Plastics Communication"). The Proposed Packaging Regulation is intended to replace the Packaging and Packaging Waste Directive 94/62 ("Packaging Directive") and to ensure that all packaging marketed in the EU/EEA is fully recyclable or reusable by 2030.拟议的打包规则如获通过,新要求和限制将对行业、经销商和消费者产生重大影响。欧洲议会和理事会现在必须通过所谓的“正常立法程序”审议拟议条例供通过,该程序允许提出修正并可能至少需要18个月
博客文章突出拟议打包规范将介绍的主要修改和新要求并概述委员会塑料通信的主要建议。
spanid="More8321+++/span优先重要修改是欧盟包装和包装废物法将采取规范形式而非指令形式。这与拟议条例第4条协调条款和将某些包装项目列入第3条定义一起,意在限制成员国对包装附加要求的尝试。禁止某些打包格式. 拟议条例还提议禁止单用打包格式,包括单用复合打包菜菜单用打包单用塑料分组打包单用宾馆微型打包单用塑料和复合盘盒和盒装HORECA区食品和饮料Compostability Requirements. The proposed Regulation would also require that particular categories of packaging (e.g., sticky labels attached to fruits and vegetables, very lightweight plastic carrier bags, and tea and coffee bags and single-serve units intended to be used and disposed of with the product) be "compostable in industrially controlled conditions in bio-waste treatment facilities." The proposed Regulation does not itself define the criteria that these types of packaging must meet to be compostable. However, its Impact Assessment states that companies may demonstrate the compostability of their packaging on the basis of existing EU harmonized standards, such as, e.g., Standard EN 13432:2000.European authorities are also likely to take into account the compostability criteria for plastics of the Plastics Communication (see below).The Proposed Packaging Regulation would also empower the Commission to subject other packaging items to the obligation to be compostable through delegated acts if justified and appropriate due to technological and regulatory developments impacting the disposal of compostable packaging and if the packaging meets the criteria of Annex III.
Other types of packaging that are not subject to the compostability obligation mentioned above would have to be designed in a way that they can be recycled without affecting other waste streams (such as the bio-waste waste streams).与原版建议相反,拟议打包规范似乎没有全面禁止可编译塑料聚合物。
Furthermore, all reusable packaging would be required to display a label on the reusability of the packaging and a QR code or another digital data carrier with additional reusability information.
Communication on a "EU Policy Framework on Biobased, Biodegradable and Compostable Plastics"
The Plastics Communication seeks to bring clarity on the different concepts of bio-based, biodegradable and compostable plastics, and complements the provisions of the Proposed Packaging Regulation, especially on compostability.EU Member State authorities and courts are likely to use the Plastics Communication's criteria to assess a company's claims on biobased, biodegradable and compostable plastics.
- The Plastics Communication defines biobased plastics as those made from biomass, instead of fossil resources. The claim "biobased" should only be used where the exact and measurable share of biobased plastic content in the product is specified, in order for consumers to know how much biomass has actually been used in the product. The Plastics Communication adds that the biomass used must be sustainably sourced, with no harm to the environment.
- Biodegradable plastics are defined as plastics that are "designed to decompose at the end of their life by the conversion of all their organic constituents (polymers and organic additives) mainly into carbon dioxide and water, new microbial biomass, mineral salts and, in the absence of oxygen, methane." The Plastics Communication clarifies that to biodegrade, plastics need a suitable environment and specific time. The Plastics Communication states that, when using such products, it should be made clear that they should not be littered, they should mention how long the product needs to fully biodegrade, and under which circumstances and environment (e.g., soil, water).
- The Plastics Communication defines compostable plastics as "a subset of biodegradable plastics designed to biodegrade under controlled conditions, typically through industrial composting in special facilities for composting or anaerobic digestion." For this type of plastic, the Plastics Communication states that only industrially compostable plastics, which comply with relevant standards, should be labelled as "compostable." Moreover, industrially compostable packaging should display how the waste item should be disposed of through the use of a pictogram.塑料通信还解释称,家用塑料堆肥应在当局监督下根据特定本地条件加以考虑,条件是使用这些塑料有明显的附加值。
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The European Parliament and Council are in the last stages of the legislative procedure to adopt a Regulation on Batteries and Waste Batteries ("Sustainable Batteries Regulation"), which the European Commission proposed in December 2020. Among other many requirements, the proposed Sustainable Batteries Regulation will require manufacturers to ensure that the portable batteries contained in their electronic devices are removable and replaceable. These requirements will apply to a large variety of electronic devices, including household appliances, IT, telecommunications equipment, and medical devices. They are part of a broader sustainable products package that includes other legislative proposals, such as the Commission proposal for a Regulation on Ecodesign Requirements for Sustainable Products and an upcoming legislative initiative on the right to repair, and will require manufacturers to redesign the electronic devices that they market in the European Union and European Economic Area ("EU/EEA").
The European Parliament and Council adopted their position at first reading and common approach, respectively, in March 2022, and they are now in so-called "Trilogue" negotiations to try to reach an agreement on the final wording of the Regulation. They expect to hold their third Trilogue meeting in early October and to adopt the Regulation by the end of the year. The removability and replaceability requirements on portable batteries are likely to apply as of early 2025.
Below we outline the Parliament's and Council's main positions on the replaceability and removability requirements as well as those aspects for which they have already reached a provisional agreement.
The Removability and Reparability Requirements
The draft used in preparation of the second Trilogue meeting of June 30 ("Second Trilogue Draft") indicates that the EU institutions agree that as "[f]rom 24 months after the entry into force of the [Sustainable Batteries Regulation] any natural or legal person that places on the market products with portable batteries […] incorporated, shall ensure that those portable batteries […] are designed in such a manner to be readily and safely removable and replaceable by the end-user or by independent operators during the lifetime of the appliance […], if the batteries have a shorter lifetime than the appliance […], or at the latest at the end of the lifetime of the appliance."
The current Batteries and Waste Batteries Directive 2006/66 already requires manufacturers to "design appliances in such a way that waste batteries [..] can be readily removed." The WEEE Directive 2012/19 also requires that batteries be removed from any "separately collected [waste electrical and electronic equipment]." The Sustainable Batteries Regulation's requirements on removability and replaceability are intended to ensure the enforcement of the obligation to remove the batteries to allow their recycling and to prolong the expected lifetime of the appliances they are part of. While the Second Trilogue Draft's wording is unclear, the removability and replaceability requirements are likely to be interpreted as requiring that portable batteries be removable and replaceable if their lifetime is shorter than that of the appliances in which they are contained, and that they be removable at the end of the lifetime of the appliances. This could suggest that portable batteries do not need to be replaceable if their lifetime is the same or longer than that of the appliances in which they are contained.
The Council is proposing that a battery should be considered as "readily removable" "where it can be removed from an appliance […] without the use of specialized tools, thermal energy, or solvents to dissemble." A battery would be replaceable "where, after its removal from an appliance […] it can be substituted by a similar ["compatible" according to the Parliament] battery without affecting the functioning or the performance or safety of that appliance."
The European Parliament is also proposing prohibiting manufacturers from using software "to affect the replacement of a portable battery […] or of their key components with another compatible battery or key component."
The Parliament's proposal to ensure that portable batteries can be substituted by "compatible," rather than "similar," portable batteries is intended to ensure that batteries can be replaced by batteries that are not of the same brand or from the same manufacturer.The Parliament also proposes to require that manufacturers keep available portable batteries as spare parts of the appliances they power for a minimum of ten years after placing on the market the last unit of the same model "with a reasonable and non-discriminatory price for independent operators and end-users."
To What Batteries and Appliances Would the Requirements on Removability and Replaceability Apply?
The Second Trilogue Draft defines a portable battery as any battery that: (i) is sealed, (ii) weighs below or equal to five kilograms, (iii) is not designed specifically for industrial uses, and (iv) is neither an electric vehicle battery, nor a light means of transport battery, nor a starter, lighting or ignition power battery of a motor vehicle.万博体育app手机登录A battery is "any ready for use, source of electrical energy generated by direct conversion of chemical energy, having internal or external storage, and consisting of one or more non-rechargeable or rechargeable battery cells, modules or packs of them, including a battery that has been subject to preparing for re-use, preparing for repurpose or repurposing, or remanufacturing." It also defines an "appliance" as any "electrical and electronic equipment" that is fully or partly powered by a battery or is capable of being so."
In practice, the removability and replaceability requirements will apply to portable batteries contained in a wide variety of electrical devices, including household appliances, IT and telecommunications equipment, consumer and lighting equipment, electronic tools, toys and leisure equipment, medical devices, monitoring equipment, and automatic dispensers. However, the reference of the definition of appliance to the WEEE Directive 2012/19 suggests that the removability and replaceability requirements may not apply to all products containing batteries. For example, it is unclear whether the requirements would apply to teddy bears with an electronic function.
The Second Trilogue Draft imposes identical requirements on batteries for light means of transport (e.g., electrical bicycles), and the European Parliament is also proposing to impose similar requirements on automotive batteries, electric vehicle batteries and industrial batteries.
Who Should Be Able to Remove and Replace the Portable Batteries?
The Second Trilogue Draft indicates that the Parliament and Council have reached a provisional agreement in that the manufacturer of the appliances may choose between ensuring that the portable batteries be removable and replaceable by an end-user or by an independent operator. However, as with the EU rules on the type approval of vehicles (see e.g., Regulation 2018/858), the EU institutions intend to ensure that manufacturers may not limit the possibility to remove and replace the batteries to only their dealers. The Draft defines an independent operator as a "person who is independent from the manufacturer and the producer and is directly or indirectly involved in the repair, maintenance or repurposing of batteries, and include waste management operators, repairers, manufacturers or distributors of repair equipment, tools or spare parts, as well as publishers of technical information, operators offering inspection and testing services […]."
The Parliament would also require manufacturers of appliances to provide their customers at the time of purchase of the appliances and permanently online with "clear and detailed instructions for removal and replacement" of the portable batteries.
The Council also proposes that in the case of appliances "designed to operate normally in a wet environment" the portable batteries shall be removable and replaceable "only by qualified independent operators." The concept of "qualified" independent operator would have to be defined in the guidance on the removability and replaceability requirements that the Commission is mandated to adopt and/or by Member State legislation.
Possible Exemptions
The European Parliament and Council are likely to agree that the removability and replaceability requirements should not apply to portable batteries where the "continuity of power supply is necessary and a permanent connection between the [appliance] and the [respective] portable battery is required for safety, medical or data integrity reasons." The Parliament is also proposing to grant an exemption where "the functioning of the battery is only possible when the battery is integrated into the structure of the appliance and it can be proved by the manufacturer that there is no alternative available on the market." The Second Trilogue Document suggests that the Parliament and Council have provisionally agreed that the removability and replaceability requirements should only apply to battery packs as a whole and not to individual cells or other parts included in the battery pack.
As of July 3, single-use plastic products marketed in the EU/EEA must comply with the requirements and restrictions of Directive 2019/904 on the Reduction of the Impact of Certain Plastic Products on the Environment ("Single-Use Plastic Directive" – "SUPD"). To help Member States implement the SUPD into their national laws and apply its requirements, on May 31, 2021, the European Commission published its long-awaited Guidelines on the Scope of the SUPD. The Guidelines take different and controversial approaches on the scope the SUPD and the nature of plastics and continue to leave important issues unanswered.
The Requirements of the SUPD
The Single-Use Plastic Directive imposes restrictions and requirements on: (i) single-use plastic products that fall within the scope of the specific categories listed in the different Parts of the Annex to the SUPD, and (ii) all products made of oxo-degradable plastic (i.e., made of "plastic materials that include additives which, through oxidation, lead to the fragmentation of the plastic material into micro-fragments or to chemical decomposition").
In particular, the SUPD imposes the following requirements and restrictions on oxo-degradable plastic products and single-use plastic products marketed in the EU/EEA:
- Prohibition on Placing on the Market: The SUPD prohibits the placing on the market of all products that contain oxo-degradable plastic, as well as single-use plastic products listed in Part B of the Annex to the SUPD. Part B includes plastic cutlery and plates, beverage stirrers, beverage containers made of expanded polystyrene, including their caps and lids.
- Consumption Reduction Obligations: The SUPD requires Member States to ensure a reduction of the consumption of single-use plastic products listed in Part A of the Annex to the Directive. Part A of the Annex lists cups for beverages (with their covers and lids) and specific food containers as single-use plastic products that are subject to this consumption reduction obligation. To achieve this objective, Member States may impose different measures, such as national consumption targets, bans on the offer of the products free of charge at the point of sale, obligations to replace the products with reusable alternatives, and even outright bans on the marketing of the products.
- Product and Design Requirements: The lids and caps of single-use plastic products listed in Part C of the Annex, e, plastic beverage containers of up to three liters, must be designed in such a way that they remain attached to the container during the product's intended use.
- Minimum Recycled Content: The single-use plastic products listed in Part F of the Annex to the SUPD, e., beverage containers of up to three liters that are produced from polyethylene terephthalate as their major component, must be made of at least 25% recycled plastic by 2025 and 30% by 2030.
- Marking and Labelling Requirements: Sanitary towels, tampons, tampon applicators, wet wipes, tobacco products (g., plastic filters) and cups for beverages, as listed in Part D of the Annex to the SUPD, must carry a mark/label in accordance with Commission Implementing Regulation 2020/2151 informing consumers of the presence of plastic in the product, the negative impact of littering, and the product's appropriate waste disposal options. Implementing Regulation 2020/2151 imposes specific requirements on the wording, design, size, color, and position of the marking. It also allows producers to comply with the requirements by means of a sticker if the single-use plastic products are marketed before July 4, 2022.
- Extended Producer Responsibility: Member States must impose extended producer responsibility schemes on producers of single-use plastic food containers, cups for beverages, wet wipes, tobacco products, and all other products listed in Part E of the Annex to the SUPD.生产这些产品者需要支付收集、运输和处理垃圾的费用,以及清理垃圾和组织公众认识运动的费用。their caps and lids), through the implementation of deposit-refund schemes or separate collection targets for producers. The target is set at 90% by 2029. In practice, this obligation means that producers will have to increase the collection of their waste single-use plastic bottles and/or increase their contributions to the waste take-back schemes of which they are members.
- Awareness Raising: Member States must also take measures to inform consumers of re-use systems and waste management options at their disposal, and the impact of littering and other inappropriate waste disposal for all single-use plastic products listed in the Annex to the SUPD and for fishing gears containing plastic.
The European Commission's Guidelines: What is a Single-Use Plastic Product?
As explained above, most of the requirements of the SUPD apply to single-use plastic products that fall within the categories of products listed in the different Parts of the Annex to the Directive. The SUPD defines a "single-use plastic product" as a "product that is made wholly or partly from plastic and that is not conceived, designed or placed on the market to accomplish, within its life span, multiple trips or rotations by being returned to a producer for refill or re-used for the same purpose for which it was conceived." It also defines "plastic" as a "material consisting of a polymer [as defined by the EU REACH Regulation 1907/2006 on Chemicals], to which additives or other substances may have been added, and which can function as a main structural component of final products, with the exception of natural polymers that have not been chemically modified" (Art.3(1)SUPD.
这些定义表示,如果满足下列条件,产品即为单用塑料产品:- A产品由“塑料化”。取决于制作产品所用材料:(一) 聚合物或聚合物混合体除自然聚合物外“非化学修改;”和(三)可起产品主结构组件作用and
- The plastic product is "single-use."
The European Commission's Guidelines on the Scope of the SUPD provide different controversial clarifications on the concept of a single-use plastic product.
Polymer
To be a plastic product, the product must be made of polymers or mixtures of polymers. The SUPD refers to the definition of polymer included in the REACH Regulation 1907/2006, which states that a polymer is substance that meets the following criteria: (i) over 50 percent of the weight for that substance consists of polymer molecules (i.e., of molecules that contain a sequence of at least 3 monomer units, which are covalently bound to at least one other monomer unit or other reactant)!万博体育app手机登录and (ii) the amount of polymer molecules presenting the same molecular weight must be less than 50 weight percent of the substance.
Polymers will be considered to be plastic materials unless they are "natural" and they "are not chemically modified" (and they function as a main structural component of the products).
"Natural" Polymer
The Commission's Guidelines take the view that a polymer will only be natural if its polymerization process actually takes place in nature (i.e., it may not be the result of an industrial process even if it involves living organisms). According to the Guidance, this means that cellulose and ligning extracted from wood are natural polymers, while polymers resulting from biosynthesis via artificial industrial fermentation are not.
Natural Polymer that Are "not Chemically Modified"
Even if the substances used in the products are natural polymers, they will be considered plastic if they are chemically modified (and the substances function as a main structural component of the products).
The European Commission's Guidelines take the view that whether or not a natural polymer is chemically modified during its production process depends on whether the chemical structure of the polymer resulting from the production process (i.e., outgoing polymer) is different from that of the ingoing polymer.
Following this reasoning, the Guidelines argue that regenerated cellulose, in the form of lyocell, viscose and cellulosic film, is not considered chemically modified because the outgoing polymer is not chemically modified in comparison to the ingoing polymer. By contrast, cellulose acetate is regarded as a chemically modified polymer because the chemical modifications of the polymer occurring during the production process remain present at the end of the process (i.e., the chemical structure of the outgoing polymer is different to that of the ingoing polymer).
The Guidelines also clarify that if the chemical modifications result from reactions that are only taken place during the extraction process of natural polymers, the polymers will not be considered chemically modified.万博体育app手机登录The Guidelines especially mention cellulose and ligning that are extracted from a wood pulping process as examples of such natural polymers.
The Polymer Functions as a Structural Component of the Product
The last condition to qualify as a plastic product is that the polymer (other than a natural polymer that is not chemically modified) must function as a structural component of the product. The Guidelines state that this condition is a generic concept and clarify that the definition of plastic of the SUPD does not restrict or specify the type of product or the amount of polymer required to qualify as a plastic. Thus, for example, cardboard coated with plastic and paper cups with a plastic lining are single-use plastic products. In contrast, the recitals of the SUPD and the Guidelines make clear that the use of plastic paints, inks and adhesives do not render a product a plastic product.
The Plastic Product Is "Single-Use"
To be a single-use plastic product subject to the SUPD, the product must also be "single-use."
The SUPD will only apply to plastic products that: (i) are designed to be disposed of after one use, or (ii) consumers usually throw away after one use, even if the products are not initially designed/conceived as such.
The Guidelines provide various criteria to assess whether a plastic product is single-use or multi-use, including the product's washability or the possibility to empty and refill a product without damaging it. For example, plastic cups that can be reused after being washed will not be considered single-use plastic products.
The Guidelines also add that meeting the criteria on reusable packaging outlined in Article 3(2) of Directive 94/62 on Packaging and Packaging Waste ("Packaging and Packaging Waste Directive" – "PPWD") will demonstrate that a plastic packaging or product is not single-use (unless consumers typically perceive or use it otherwise).
Application of the SUPD and National Implementation
The requirements of the SUPD apply to products made of oxo-degradable plastic materials and to single-use plastic products listed in the Annex to the Directive that are placed on the market as from July 3, 2021. In contrast to other EU product legislation, the SUPD defines the concept of placing on the market within the context of the particular Member State, and not the EU/EEA as a whole. According to the Directive, "placing on the market" is "the first making available of a product on the market of a Member State" (emphasis added). In general terms, this essentially means that single-use plastic products (listed in the Annex) that are marketed in a particular Member State as of July 3 will have to comply with the requirements of the Directive even if they were already marketed in another Member State (for example, imported into the EU via another Member State) before that date. The European Commission is expected to publish Guidance providing further clarification on the concept of placing on the market for purposes of the SUPD.
To date, several EU Member States have already at least transposed some of the requirements of the SUPD into their national law. This is the case of France, Germany and Portugal. Many other Member States, such as Belgium, Italy, Poland and Spain are currently in the process of finalizing and adopting their draft national implementing laws.
On April 21, 2021, the European Commission approved "in principle" a Delegated Regulation establishing the criteria under which different economic activities substantially contribute to climate change mitigation and adaptation under Regulation 2020/852 on the Establishment of a Framework to Facilitate Sustainable Investment ("Taxonomy Regulation"). Among other things, the Delegated Regulation defines the climate mitigation and adaptation criteria that the manufacture of hydrogen must meet to be considered a "sustainable investment" in the European Union.
The Delegated Regulation's criteria on hydrogen constitute an additional step in the implementation of the European Commission's Hydrogen Strategy.While the European Commission must still adopt detailed rules on what should be defined as renewable (green) and low-carbon (blue) hydrogen, the Delegated Regulation sets the "gold standard" for the sustainable production of hydrogen.
Sustainable Finance: the EU Taxonomy Regulation
The Taxonomy Regulation implements the European Commission's European Green Deal and follows up on an earlier Commission's Action Plan on ‘Financing Sustainable Growth'. The Regulation is intended to provide companies and investors with uniform criteria on economic activities that can be considered to be environmentally sustainable, in order to redirect capital flows and generate sustainable economic growth in Europe. The Regulation's criteria are expected to increase transparency on the classification of economic activities that can be considered environmentally sustainable and, therefore, to limit the risk of greenwashing and fragmentation.
The Taxonomy Regulation establishes the principles, and requires the Commission to adopt specific criteria for the following environmental objectives: (i) climate change mitigation!二) 适应气候变化可持续利用和保护水和海洋资源向循环经济过渡防污控制保护并恢复生物多样性和生态系统。
委托规范:可持续氢活动标准
4月21日批准的委托规范建立技术筛选标准以评估所列经济活动是否有资格为减缓和适应气候变化做出重大贡献。 关于氢问题,委托规范建立以下标准:
The Delegated Regulation also requires that the GHG emissions savings be calculated using the methodology of the international standard ISO 14067:2018 or ISO 14064-1:2018the methodology that the Commission must adopt under Article 28(5) of the Renewable Energies Directive ("RED II"), i.e., the methodology for assessing GHG emissions savings from renewable liquid and gaseous transport fuels of non-biological origin.
- Adaptation. The manufacture of hydrogen will meet the taxonomy criteria for climate change adaptation if it complies with four requirements:
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- The economic activity must implement physical and non-physical solutions ("adaptation solutions") that substantially reduce the most important physical climate risks related to the manufacture of hydrogen;
- The physical climate risks that are material to the activity must be identified by performing a robust climate risk and vulnerability assessment;
- The climate projections and assessment of impacts must be based on best practice and available guidance and take into account the state-of-the-art science for vulnerability and risk analysis and related methodologies (e.g., the Intergovernmental Panel on Climate Change reports)!
- 适应解决方案不得对其他人、自然、文化遗产、资产和其他经济活动的适应努力产生不利影响解决方案必须尽可能依赖蓝绿色基础设施and must be consistent with regional or sectoral adaptation plans. Finally, the solutions must be monitored and measured against pre-defined indicators and remedial action must be considered where those indicators are not met.
The Delegated Regulation Within the Broader EU Hydrogen Strategy
The Delegated Regulation's criteria for sustainable hydrogen are part of the Commission's broader Hydrogen Strategy, which the Commission is still trying to define and implement. While the Delegated Regulation sets the "gold standard" for what is considered sustainable manufacture of hydrogen, it does not necessarily define what is green or blue hydrogen.
The Hydrogen Strategy that the Commission presented in July 2020 announced that the Commission will adopt a "common low-carbon threshold/standard for the promotion of hydrogen production installations based on their full life-cycle greenhouse gas performance, which could be defined relative to the existing [benchmark under the EU Emissions Trading System Directive]" and "a comprehensive terminology and European-wide criteria for the certification of renewable and low-carbon hydrogen."
The Commission may take into account these aspects of its Hydrogen Strategy during its full review of RED II, which is likely to result in a legislative proposal to significantly amend, and perhaps adopt a new, RED.
Moreover, in 2021, the Commission must also adopt two Delegated Regulations under RED II and establish:
- a methodology to assess GHG emissions savings from renewable liquid and gaseous transport fuels of non-biological origin (which include hydrogen)!and
- a methodology with detailed rules on how electricity obtained from direct connection to an installation generating renewable electricity may be fully counted as renewable electricity where it is used for the production of "renewable liquid and gaseous transport fuels of non-biological origin" (which includes hydrogen) and on how electricity that has been taken from the grid may be counted for this purpose ("additionality requirements").
The Commission may also consider the different aspects of its Hydrogen Strategy, including the regulation of low carbon hydrogen as part of its upcoming proposal for a Gas Regulation. This proposal is intended to replace Directive 2009/73/EC on the Common Rules for the Internal Market in Natural Gas, and could introduce a detailed regulation of hydrogen and hydrogen infrastructure.
Next Steps
The Commission has approved the Delegated Regulation "in principle." Its official adoption will only take place once it will be published in all the official languages of the EU. This means that the criteria under the Delegated Regulation may still be subject to changes. This is because (i) the Parliament and Council of the EU may oppose the content of the Delegated Regulation within a period of four to six months after its official adoption (expected in the coming weeks)!和二)可能需要作一些修改,以确保一致性,即将对REDII进行审查,定于2021年6月进行。