FEAD statement on the destruction of unsold textiles under EU Ecodesign for Sustainable Products Regulation (ESPR)
Legal problems of a destruction ban – addressees must not be waste management companies
FEAD sees a possible ban on textile destruction in the Ecodesign Regulation critically. It must be emphasised, that where the holder of the goods decides to discard them as waste, whether required or not (‘waste’ meaning any substance or object which the holder discards, intends to or is required to discard), (waste) operators have a legal obligation to treat them as waste in line with the EU environmental and waste legislation. After its collection and sorting, waste can be either prepared to be re-used, recycled/recovered or disposed of depending on the situation.
In this context, FEAD warns that an improperly phrased ban on unsold textile destruction entails the risk of a shift of responsibility from producers to waste management companies. This should be clearly rejected, since producers and traders, but not waste management companies, should be the addressees and obligated parties of a textile destruction ban. If waste management companies would find themselves forced to change their business model (i.e. to sell textiles handed over for destruction) – this would shift to them the responsibility of a destruction ban. If such destruction bans are extended to other industries (in addition to the textile industry), it would lead to even further obligations on the part of companies in the waste industry.
Therefore, the responsibilities of a possible incompliance must be very clear. Such responsibility cannot fall on the waste operators but must lie on the producers of the goods and/or the producers of the waste as waste operators should not assess the status of each good individually once received. This would lead to the unjustified impositions of additional obligations on waste management companies. The person (legal/physical) that intents to discard the goods is the only one that can and should certify whether the goods were unsold and fall under the potential destruction ban and should therefore be the only one to determine and be responsible for deciding upon the management of such goods. A ban on destruction can – and must – only address the textile manufacturers or traders (or owners); they must not be allowed to discard certain textiles in the first place, but must be obliged, under certain circumstances, to look for other uses or ways of recycling (which cannot be considered as ‘destruction’, see below) textiles that they can no longer or no longer wish to sell.
This applies also to possible exemptions to a potential prohibition to destroy unsold goods. The responsibility of possible incompliances linked to these exceptions cannot fall on the waste operators.
Furthermore, shifting the responsibility from producers to waste management operators would also run counter to the polluter pays principle under Article 191(2) TFEU. It is precisely as a result of this principle that producers must bear responsibility for any environmental damage resulting from their placing products on the market. It would violate this principle if, as a result of a ban to destroy unsold textiles, responsibility for them were to be delegated to the waste operators. All the more, the manufacturing industry should bear the risks for unsold goods, just as it profits from sold ones.
Recycling cannot be considered as destruction
Recycling cannot be understood as destruction as the legal definition is very clear, meaning a recovery operation by which waste materials are reprocessed into products, materials or substances (Article 3(1)(17) Waste Framework Directive). Recycling is thus the recovery of materials to put them back in the economy and not a destruction process of products. There is a clear difference between recycling, energy recovery and disposal that has failed to be recognised and/or to be acknowledged.
There is no basis for assuming that recycling is a form of destruction. The definition of recycling is a legal definition and equating it with ‘destruction’ can become the cause of numerous interpretive doubts. In addition, neither from an environmental perspective, nor from a circular economy perspective, it is justified to consider recycling as a destruction process. If recycled, the textiles will be kept in a circular loop while avoiding the environmental impact related to the use of primary raw materials.
Donations instead of destruction?
The word ‘donation’ does not need to be followed by the word ‘social’!
FEAD warns the EU legislator that the promotion of specific enterprises (‘social enterprises’) distorts the market and puts at risk the quality of the handling of the donated products. The risk is present as there is no legally binding EU-wide definition of ‘social enterprise’ and it is not clear how to avoid loopholes that allow actors to become a ‘social enterprise’ that is not subject to strict EU product and environmental regulations.
A ‘donation’ implies that somebody receives the textiles free of charge whereas waste management is a professional service to producers. Promoting donations of unsold goods with the intention to avoid their destruction could come with adverse effects, moving the problem of such unsold goods to another location (including third counties) and operators. If the intention is to avoid overproduction, instead of donating or destroying, producers could be obliged to take back their defect or unsold products, and to re-introduce them into their production cycle as such or as recycled material.
In addition, FEAD would like to stress that ‘preparation for re-use’ is a waste management activity in line with the waste hierarchy. To ensure a level playing field and the environmentally sound management of the (donated) goods (waste), only permitted companies can be allowed to treat it in line with EU legislation. Therefore,the role of professional waste actors must be safeguarded. Operating a waste business requires numerous permits and conditions. For this reason, only specialized entities can professionally operate in this industry. Promoting donations to ‘social enterprises’ instead of it being managed by professional waste management companies does not on itself ensure the environmentally sound and qualitative management of textiles. A level playing field between social and professional enterprises must be protected. As soon the goods have a waste status, only permitted operators shall be allowed to handle them. The waste status ensures traceability and environmentally sound management by permitted operators, which is not guaranteed for second hand textiles.
FEAD is the European Waste Management Association, representing the private waste and resource management industry across Europe, including 19 national waste management federations and 3,000 waste management companies. Private waste management companies operate in 60% of municipal waste markets in Europe and in 75% of industrial and commercial waste. This means more than 320,000 local jobs, fuelling €5 billion of investments into the economy every year. For more information, please contact:
FEAD Secretariat
info@fead.be