Over 12.5 million tonnes of textile waste is generated every year in the European Union. Almost half of that is clothing or shoes. The average EU resident generates about 12 kg of textile waste per year. But there are no legal regulations in place facilitating sustainable management of such waste.
The most important act of EU law currently governing waste management is the Waste Framework Directive (2008/98/EC). On 5 July 2023 the European Commission presented a draft revision of the directive, primarily targeting food waste and textile waste. The Polish Ministry of Climate and Environment has until 16 August 2023 to submit remarks on the proposal.
This proposal is part of a broader context of steps by the Commission. For example, the EU Strategy for Sustainable and Circular Textiles was published on 30 March 2022. It points to the need for durable, recyclable and reusable products on the EU textile market. The strategy also signals the need for introduction of a mechanism of extended producer responsibility, which should help reduce the quantity of textile waste. Thus the legislative initiative by the Commission to achieve these aims should come as no surprise.
What will change?
The essence of the proposal is to impose responsibility on textile producers for the full life cycle of the product, and thus to reinforce the sector’s responsibility for sustainable management of waste textile products. This should generate savings for EU consumers and create new jobs in the waste management sector. The basic mechanism for imposing responsibility on producers will be extended producer responsibility, which already functions successfully with respect to packaging, batteries and electronic equipment.
The proposal introduces a range of new concepts, the most important of which include:
- “Producer of textile, textile-related and footwear products listed in Annex IVc” means any manufacturer, importer or distributor or other natural or legal person who, with respect to textile, textile-related and footwear products listed in Annex IVc, but irrespective of the selling technique used, including by means of distance contracts:
- Is established in an EU member state and manufactures such products under its own name or trademark, or has them designed or manufactured and supplies them for the first time under its own name or trademark within the territory of that member state
- Is established in a member state and resells within the territory of that member state, under its own name or trademark, such products manufactured by other producers referred to above on which the name, brand or trademark of the manufacturer does not appear
- Is established in a member state and supplies for the first time in that member state, on a professional basis, such products from another member state or from a third country, or
- Sells such products by means of distance communication directly to end-users, including private households or other than private households, in a member state, and is established in another member state or in a third country.
Enterprises which employ fewer than 10 persons and whose annual turnover and balance sheet total does not exceed EUR 2 million, and self-employed tailors producing customised products, are excluded from the definition of a “producer” of such products.
Other new concepts:
- “Making available on the market”—any supply of a product for distribution or use on the EU market in the course of a commercial activity, whether in return for payment or free of charge
- “Producer responsibility organisation”—a legal entity that financially or financially and operationally organises the fulfilment of extended producer responsibility obligations on behalf of producers
- “Consumer”—natural persons who are acting for purposes which are outside their trade, business, craft or profession.
New obligations for entities other than producers
First, new provisions
Under Art. 22a(4) of the directive (as amended), member states would have to introduce regulations ensuring that producers cover the costs of:
- Collection of used and waste textile, textile-related and footwear products listed in Annex IVc and subsequent waste management
- Carrying out compositional surveys of collected mixed municipal waste in accordance with Art. 22d(6)
- Providing information on sustainable consumption, waste prevention, reuse, preparing for reuse, recycling, other recovery and disposal of these products in accordance with Art. 22c (13), (14) and (17)
- Data gathering and reporting to the competent authorities in accordance with Art. 37
- Support for research and development to improve the sorting and recycling processes, in particular in view of scaling up fibre-to-fibre recycling.
It is thus clear that the new rules will comprehensively address the problem of unsustainable management of textile products. They are designed with a view to overcoming the linear model of using textile products, and in particular rejecting “fast fashion.” Higher quality of products, capable of functioning within a circular economy, should help achieve these ends.
Each member state will be required to establish a register of producers of textile, textile-related and footwear products to monitor the producers’ compliance with the foregoing requirements (Art. 22b(1)). Entry in the register will be mandatory—without an entry, producers will not be allowed to make products available on the market for the first time. But it will also be permissible for producer responsibility organisations to meet the obligations under that article (Art. 22b(5)).
Each member state will be required to ensure that the register functions properly. This means in particular the ability to file applications in electronic form, and completion of the registration process within 12 weeks after filing. Producers should expect to cover the costs of operation of the register, under Art. 22(6)(d), but the application fees must be proportionate to the cost of processing the applications.
Producer responsibility organisations
As indicated, extended producer responsibility obligations may be fulfilled via producer responsibility organisations. In this respect, the financial burden on producers, governed by Art. 22c, remains a paramount issue. The level of the contributions to the extended producer responsibility system should be tied to the environmental efficiency of the specific products. Thus the principle of “eco-modulation” will apply, which is a corollary of the “polluter pays” principle. In practice, this means that the fees will be based on the weight of the products concerned and, for textile products listed in Part 1 of Annex IVc, modulated on the basis of eco-design requirements.
It remains to be seen how high the fees will be. Thus it is hard to assess the impact these rules will exert on producers. However, under Art. 22c(3)(c), the contributions should not place a disproportionate burden on producers (including SMEs) of small quantities of textile, textile-related and footwear products.
Management of textile product waste
The proposal also addresses issues of the management of waste textile products. Notably, from January 2025 textile products will be collected separately. This should facilitate their reuse as well as preparation for recycling.
The introduction of a series of requirements related to transport of used textile products outside the EU should also be noted. The minimum requirements to be met by such textiles before they can be exported are set forth in Art. 22d(9). This includes documentation identifying the company responsible for final sorting or preparation for reuse. Moreover, under Art. 22d(8), professional shipments of used textiles will have to be accompanied by documents including:
- A copy of the invoice and contract for sale or other transfer of ownership of the products, stating that they are destined for direct reuse and are fit for direct reuse
- Evidence of a prior sorting operation carried out in accordance with the directive, in the form of a copy of the records on every bale within the consignment
- A declaration by the natural or legal person in possession of the used products, arranging transport on a professional basis, that none of the material within the consignment is waste as defined by Art. 3(1) of the directive.
The shipment must also be appropriately protected against damage during transportation, loading and unloading, in particular through sufficient packaging and appropriate stacking of the load.
Assessment of the proposal
The proposed changes should generally be assessed positively. The current lack of regulations in the sector of textile goods constitutes a loophole in the EU and Polish systems of environmental protection. The new solutions should increase the ecological rationale in managing textile products, reducing the carbon footprint of this industry. The positive impact of the changes would also be felt beyond the EU, and indeed globally, thanks to consolidation of the criteria for regarding used textile products as waste and restricting the ability to export used textiles outside the EU.
It should be borne in mind, however, that the new provisions should be tailored to the conditions of the textile industry, and must be requirements that businesses are capable of meeting. A final evaluation of the new provisions will thus have to wait until issuance of executive regulations and implementation of the directive by Polish lawmakers. Once adopted, the deadline for implementation is 18 months from entry into force of the amended provisions of the Waste Framework Directive.
Karol Maćkowiak, Environment practice, Wardyński & Partners