Abstract
The urgency of transitioning to a circular economy is by now widely recognized. Overexploitation of our earth has been convincingly evidenced globally. An optimal legal instrumentation is one of the prerequisites for fostering the transition to a circular economy. This article identifies and critically assesses recent developments of relevant legal tools and provides some ideas of what else could be needed for the pathway to a circular economy. Since the EU may be seen as a frontrunner in this area and is rapidly developing additional legal instruments to contribute to the transition, the EU is taken as a showcase. Besides EU law, the role of international law is discussed, as well as the question what individual states can do, within the boundaries of internal markets such as the EU. In short, there still is some room for improvement of EU law, especially concerning the establishment of concrete quantifiable general targets and the introduction of general legal principles of sustainable product design. On a global level, there is an urgent need to discuss and develop a legal framework for fostering the transition to a more circular economy.
Keywords
Introduction
The need for a transition to a more circular economy is obvious. Humanity has already exceeded global biocapacity by more than 60 % and now lives unsustainably by depleting stocks of ânatural capitalâ. 1 Earth overshoot day is in July and national overshoot days of wealthy countries have reached April or even half of March. 2 Global consumption of materials such as biomass, fossil fuels, metals, and minerals is expected to double in the next forty years. 3 If we do not change our way of life and if emerging countries adopt our current standards, the global exploitation of resources would multiply by factor 3. Therefore, we would need nine or fifteen earths. 4 We only have one earth and therefore should not overexploit its biocapacity. This requires diminishing our consumption of primary resources in Europe by approximately 60 %, 80 % or 90 % . 5 Less mining and more efficient use of resources can also contribute significantly to a reduction of GHG emissions and to realising the aims of the Paris agreement. If materials are applied circularly, no or less (fossil) materials need to be used. 6 As a consequence, many states and regional economic entities have announced their aspiration to become âa circular economyâ or at least âa more circular economyâ. 7 This aspiration is guided by the practical rationale that âif you canât reuse it, refuse itâ 8 In this respect, according to Ogunmakinde, in 2019, the concept of a circular economy had been adopted in some countries such as Denmark, the Netherlands, Scotland, Sweden, Japan, China, and Germany while it was considered by others including England, Austria, and Finland. 9 However, this kind of analysis is highly debatable, as there is no clear definition of what the âconcept of circular economyâ exactly entails and when a country can be said to have adopted this concept. For example, in the above-mentioned list of Ogunmakinde, France is missing, whilst the focus of the French âLoi relative Ă la lutte contre le gaspillage et Ă lâÂŽconomie circulaireâ explicitly is the transition to a more circular economy and this act entails some very interesting and innovative instruments. China has, according to Mikichurova and Vlialko, adopted an act on encouraging the development to a circular economy already in 2009. 10 However, what this means exactly, how it should be realized and what legal instrumentation is needed for this pathway to sustainability is much less clear. In this contribution we will map and critically asses recent developments in the legal instrumentation of the pathway towards a circular economy. We will provide some thoughts on what more it will take to better facilitate and foster this process.
On a global level, there is hardly any legal framework yet and relatively little discussion about whether it should be developed. The âlaw for a circular economyâ is mainly national, or in some cases regional law. The EU has identified the move to a (more) circular economy as an important policy goal since long 11 and is rapidly developing its legal means to contribute to this goal. This is why we will take the EU as a focus and showcase in this contribution. However, we will also discuss whether global law-making is needed and what this could comprise Finally, we will look at what individual states can do within internal markets of regional economic organizations like the EU.
The legal areas involved in the fight for more circularity are numerous and very divers. They relate to all stages of the lifecycle of materials and products and as such concern chemical law, product law, and waste law, and touch a huge number of very different legal disciplines, like consumer law, public procurement law, tax law, property and intellectual property law, 12 to name a few. 13 This is one of the reasons why realising legal instrumentation for the pathway to circularity is a complex undertaking. Obviously, we cannot address all legal discussions in detail here, or mention all legal aspects. The choices we make below are partly arbitrary. We will provide an overview of what the EU in its second Circular Economy Action Plan (2020) qualifies as most essential developments and legal actions to be taken, we will identify some trends, mainly by comparing the current approach to the one in the first Circular Economy (CE) Action Plan (2015), and we will take a closer look at some of these instruments (section 2). We will shed more light on the proposal for an Ecodesign Regulation that was released on 30 March 2022. 14 We will then discuss whether this approach of legal instrumentation is sufficient in the light of the EU policy aims and identify what is missing (section 3). In regional economic organizations with harmonized criteria for access to their internal market, such as the EU, product law is mainly a task of the economic organization itself. The parties to such organizations, such as the EU member states, are not allowed to interfere. However, there are means for such parties to use their own legal instruments to stimulate circular products and circular production. We will go into this in section 3.1.3.
While optimal legal instrumentation is important, it is only one of the prerequisites for transitional change. The wrong legal rules can form a major obstacle to more circularity. The right legal rules can contribute substantially to paving the pathways to sustainability. However, designing, applying and enforcing law is only a part of the game, which can hinder but also push the transition. Other means are economic, for example new circular business models such as the âproduct as service modelâ, and sustainable financing, behavioural change, including nudging, steering taxes, and inclusiveness of sustainability policies.
The EU Circular Economy Action Plans and their legal instrumentation
Circular Economy Action Plan 2015
Although some EU legislation aiming at more circularity existed already since many decades, 15 the CE Action Plan 2015 16 aimed at bringing about a âsystematic changeâ consisting of legislative and non-legislative measures covering the entire life cycle of products: from design, production to use and reuse. The EU defines âcircular economyâ as an economy âwhere the value of products, materials and resources is maintained in the economy for as long as possible, and the generation of waste minimised.â 17 The guiding principle of EU circular policy and law is life-cycle thinking. 18 The CE Action Plan 2015 did not set a specific target other than a âbroad and ambitious set of actionsâ to be carried out before 2020. Along with the CE Action Plan several legislative changes were proposed, summarized as Circular Economy Package, the most important of which was the reform of the Waste Framework Directive. 19 This reform introduced the idea of the circular economy, including updated targets for re-use and recycling of waste, the promotion of the use of by-products and secondary raw materials and the introduction of minimum requirements for extended producer responsibility (EPR). Although the measures introduced in the revised Waste Framework Directive had some impact on the design and production phase, the focus was on strengthening the recycling and reuse of waste. 20 Other measures of the CE Package 2015 focused on promoting existing legislative instruments such as the Ecodesign Directive by developing more criteria for circular design. These could be taken into account in secondary law on the marketing of products, or in non-binding measures like guidelines on best waste management and resource efficiency practices for industry. Since 2015, material efficiency requirements (such as product durability, repairability etc) were investigated in the preparatory work for several regulations, based on the Ecodesign directive. The Ecodesign Regulations which were finalised in 2019 represent the first relevant examples of how CE can be regulated, by means of requirements on repairability, spare parts availability and recyclability, along with ad-hoc product-specific requirements on durability and the reusability of components and consumables. 21 However, the approach was not very systematically and a real shift towards legislative instruments that would compel producers to reduce the use of primary raw materials and to foster a switch to a circular economy is still missing.
Circular Economy Action Plan 2020
In 2020 the European Commission introduced a new Circular Economy Action Plan that aims at accelerating the transition to a circular economy. 22 The new CE Action Plan 2020 sets high ambitions for scaling up the circular economy from the frontrunners to the mainstream economic players. According to the Action Plan, they âwill make a decisive contribution to achieving climate neutrality by 2050 and decoupling economic growth from resource use, while ensuring the long- term competitiveness of the EU and leaving no one behindâ. 23 To achieve this ambition, the EU needs to make a transition towards a âregenerative growth model that gives back to the planet more than it takesâ, while âkeeping its resource consumption within planetary boundariesâ. Furthermore, the EU should âreduce its consumption footprint and double its circular material use rate in the coming decadeâ. 24 No figures are included that would have made these ambitions more concrete (see further section 3). The CE Action Plan 2020 sets out a broad legislative (and non-legislative) package that should contribute to the acceleration of the transition to a circular economy. The emphasis in the CE Action Plan 2020 is primarily on a new comprehensive âProduct Policy Frameworkâ. The main legislative measures focus on the design of sustainable products, proposing a new regulation framework on product ecodesign. We will go into this below. In order to support this new sustainable product framework, the European Commission will contribute to the availability of digital data on value chains and products by establishing a âEuropean Dataspace for Smart Circular Applicationsâ. It will also increase the efforts on enforcement of sustainability requirements for products. 25 The latter ambition of course can only be achieved in cooperation with national authorities. Next to the design phase of products, the CE Action Plan 2020 has two additional and more generic focus points: the empowerment of consumers and public buyers and the promotion of circularity in industrial processes. Both themes include a broad range of legal initiatives, such as an amendment to the Consumer Rights Directive, introducing an obligation for traders to inform consumers on the durability and reparability of products, the establishment of a new right to repair, and promoting circularity in industrial processes in the Industrial Emissions Directive. Currently, some of these initiatives are still in an elementary stage, in some cases a proposal has been published. 26 The CE Action Plan 2020 identifies several priority areas, referred to as âkey product value chainsâ, with the most significant impacts on climate and environment. These are: electronics and ICT, batteries and vehicles, packaging, plastics, textiles, construction and buildings, and food, water, and nutrients. The EU Commission will give priority to the development of legislative actions on these sectoral themes. 27
Overall, the CE Action Plan 2020 demonstrates that, in order to accelerate the transition to a circular economy, many legislative actions have to be taken. Compared with the first action plan in 2015, a paradigm shift can be identified. Broadening of the Ecodesign Directive, introducing a mandatory approach for green public procurement and far-reaching changes in consumer law: all these are examples of new legal means that were absent in 2015 and some of which the European Commission explicitly refused to consider at the time. As the Commission emphasizes the need of a coherent product policy framework, we will further elaborate on the legal instruments needed for such a policy, and especially on the instruments fostering ecodesign.
Ecodesign approach
On 30 March 2022 the European Commission published a proposal for a Regulation on Ecodesign for Sustainable Products. 28 This Regulation is referred to as âthe coreâ of the sustainable product policy legislative initiative 29 and aims at improving the environmental sustainability of products. 30 It sets out a framework for legal ecodesign requirements that products have to meet when introduced on the market or put into service. The proposed regulation repeals the existing Ecodesign Directive. 31 The Ecodesign Directive is only applicable to energy-related products (such as consumer refrigerators and televisions). The scope of the proposed Regulation on Ecodesign for Sustainable Products is much broader for it includes all âproductsâ. 32 For example furniture, textiles, carpets, etcetera. Only certain specific products like food, feed and medical products are exempted. 33 Next to the broadening of the scope, a wider range of ecodesign requirements can be defined in delegated regulations on specific products, such as minimum requirements for recycled content in products, a prohibition to use certain technical solutions that limit the reparability of products, and requirements related to information on substances of concern used in products. 34 Until now, especially the reuse of secondary raw material and provisions relating to material efficiency sensu stricto have very seldomly been applied in ecodesign regulations. 35 The proposal acknowledges the potential of digitalization as it prescribes that in principle 36 a digital product passport must be available when products are placed on the market if specific requirements are set for these products in a delegated act. 37 This digital product passport should ensure the availability of relevant product information to all actors along the value chain and improve the traceability of products. Two other notable instruments of the proposal are the possibility to introduce mandatory green public procurement criteria on the EU level in delegated acts pursuant to the Regulation for public contracts, 38 as current legislation only provides for voluntary criteria, and a framework for prohibiting the destruction of unsold consumer products in the EU. 39 The term âecodesignâ doesnât seem to cover all these measures completely as these legal instruments have a much broader scope than ecodesign as such.
Elaborating the scope of the ecodesign approach further and broadening the scope of the ecodesign requirements, including a âlifecycle approachâ, seem important steps on the pathway to a circular economy. 40 The fact that the European Commission proposes a âRegulationâ and not a âdirectiveâ for its ecodesign requirements shows the sense of urgency. Whereas a âdirectiveâ would have to be transposed into national law by the EU Member States, a âregulationâ sets direct requirements and overrules national laws. It ensures that the obligations are applicable immediately after the EU legal measure takes effect in the same way across all EU Member States. It also fits into a more general trend. Recently, the EU Commission proposed a new Battery Regulation to replace the EUâs current Battery Directive 2006/66/EC, which introduces a lifecycle approach for batteries. 41 That said, the âsense of urgencyâ is somewhat downplayed by the length and complexity of the process for setting product requirements at EU level. The Regulation on Ecodesign for Sustainable Products only offers a âframeworkâ for ecodesign requirements. The European Commission has yet to define product-specific requirements, product by product, in delegated acts, including an assessment preventing overlap with other existing EU product regulations. This is a time-consuming process, which can hinder the acceleration of the transition to circular and sustainable products. The new regulation may enter into force in 2024, so only six years will be left to 2030. This is a short period for setting out product requirements for a broad range of products.
Fit for purpose?
As seen in Section 2, the ambitions of the EU are high and the legal work package of the CE Action Plan 2020 is extensive and diverse. In this section we will discuss whether these ambitious plans will make the EU fit to realize its circular transition goals (3.1), and whether current legal efforts of national entities and regional economic organizations like the EU are sufficient. As markets and production are global, there may be a need for global legal action (3.2).
Proposed legal regime for a circular economy: Scope and effectiveness
As discussed above in Section 2.2, there are numerous instruments and areas of law that could and should be amended in order to enable the transition to a more circular economy and society. With such a broad and extensive legal agenda, coherence of all the instruments from different branches of law is important. 42 Still, the ambitious legal agenda of the EU Commission may not even be enough and could be improved further. In the following, we identify two deficiencies and discuss means to redress them.
Binding targets
Policy plans on circular economy most often lack concrete, measurable and verifiable targets in comparison to other policy areas. Although conservation and sparing use of resources have been on the European agenda and some national agendas for at least 15 years and were already addressed in the first version of the Waste Framework Directive in 1972, 43 comprehensive long-term targets are not included. There is no overall strategy, neither at European level nor at a global level. One reason might be that while figures on energy use and CO2 emissions are relatively easy to calculate and to communicate, figures on the use of resources are more diverse. Furthermore, no internationally agreed limits for the use of resources have been established. Standards and aims for air quality or greenhouse gas emissions are not hard to develop and they constitute a quantifiable benchmark that helps to steer public and private action towards realizing them. Most circular economy plans do not have such benchmarks yet. The EU Action Plan 2020 for example states that the EU wants to âdouble its circular material use rate in the coming decadeâ. 44 It does not, however, clarify what this means exactly. For instance, what is the current âcircular material use rateâ? Does this aim apply to all kinds of products and materials alike? Is reuse treated in the same way as recycling for the âcircular material use rateâ? And why should the âcircular material use rateâ be doubled? EU law does, however, provide a range of targets related to circular economy, most of which have to be met by the member states.
According to article 11(2)(b) Waste Framework Directive (WFD), 70 % (by weight) of the construction and demolition waste (CDW) should be recovered. According to article 11(2)(a), in 2020, 50 % of household paper, metal, plastic, glass, and comparable streams had to be recovered. In 2025, 55 % of municipal waste as a whole should be re-used or recycled, which figure increases up to 65 % in 2035. Recycling and recovery targets can also be found in directives or regulations for specific products or groups of products, for example the Directive on packaging and packaging waste (Directive 94/92/EC, article 6). This directive comprises recycling targets for packaging in general as well as targets for different packaging materials like paper and cardboard, plastics, or aluminum. Other examples include targets for separate collection (article 7) and recycling (article 11) in the Directive on waste electrical and electronic equipment (WEEE, Directive 2012/19/EU) as well as collection targets (article 10) and targets concerning recycling efficiency (art. 12) in the Directive on batteries and accumulators (Directive 2006/66/EC). However, an overall target has not yet been established. Furthermore, it would be good to know how specific targets, like those mentioned above, relate to an overall strategy and to the aim of a transition to a circular economy.
Some countries do have concrete overall targets, for example The Netherlands, that wants to be âfully circularâ in 2050. 45 Unfortunately, it is not clear what this means exactly. The interim goal for 2030, though, is much clearer and more measurable. The Dutch government wants to reduce the consumption of virgin materials (minerals, fossils and metals) by 50 % . This aim is, in principle, measurable and verifiable. It can be broken down into similar goals per product (group) or per type of virgin materials. In doing so, one can also differentiate between goals for certain materials or products and put extra emphasis on, for example, critical raw materials. Such concrete, measurable, binding goals have some great advantages. They can serve as basis for establishing interim goals, checking whether policy is on track, and stimulating action if it is not.
If such targets were introduced on EU level and in other regions and countries worldwide, the question would arise why exactly each of these targets was selected, what aim it serves, and whether it is effective in doing so. These may seem quite obvious and perhaps superfluous questions, but it would be a mistake to think so. The answers to these questions are not easy to give. The effect of better air quality on human health and ecology is clear. The same can be said about the reduction of greenhouse gases in order to limit global warming and its predicted effects on the climate. The effect of a âhigher degree of circular useâ or of a reduction of the use of virgin materials is less clear and does not automatically lead to more sustainability. Besides for critical raw materials, the use of which has to be reduced or stopped because their availability is critical, there is no benchmark or ultimate global limit of sustainable resource use. For developing such âglobal limits of resource useâ, modelled global resource scenarios, like the one developed by the UNEP International Resource Panel 46 and studies on biodiversity and ecosystem services 47 can be used. These can serve as building blocks to establish âsafe operating spacesâ for natural resource use. The thresholds for such a âsafe operating spaceâ will prevent the use of resources from exceeding planetary boundaries and from leading to the breakdown of life-sustaining functions and thereby impairing sustainable livelihoods across countries. 48 Whilst the concept of âsafe operating spaceâ raises many questions, for instance where the thresholds should be set if planetary boundaries have already been exceeded, it may nevertheless be a practicable approach to establish well-argued concrete targets, the existence of which is crucial in governing the transition process.
When defining targets or striving to âmaximally close material loopsâ, it should be kept in mind that substitution of as many virgin materials as possible by secondary materials is not always the most sustainable solution. It may cause more emission, cost more energy or bring about higher risks for human health and ecology. Potential negative health impacts may result in particular from the management of chemicals of concern, that can, for example, be found in e-waste, food packaging, and in fire retardants in a variety of products. 49 It should therefore be discussed whether and to what extent concrete benchmarks and targets to enhance circularity should be related to more holistic sustainability benchmarks, like the environmental footprint of materials, products or buildings. Such a more holistic benchmark can be operationalized by using Life Cycle Analyses (LCAâs) and similar calculating instruments. This would ensure that focussing on, for example, the reduction of the use of virgin materials, does not lead to the increase of other features, detrimental to sustainability. Such holistic standards should not completely substitute circularity goals, but should rather interact with them. Single issue benchmarks make much sense in the case of critical raw materials, fossil fuel-based materials and materials the delving of which necessarily causes a very high ecological impact. In other cases, circularity aspects should be integrated into broader sustainability benchmarks.
Product law
As discussed in section 2.2, the most prominent aim of the EUâs CE Action Plan 2020 is to âestablish a strong and coherent product policy framework that will make sustainable products, services and business models the normâ. 50 The action plan recalls that up to 80 % of productsâ environmental impacts are determined during the design phase 51 and, logically, emphasises that EU product law should be further developed, mainly by enlarging the scope of the Ecodesign Directive and determining product standards that foster circular use of products and enhance the chances to close material loops, as discussed above. Without doubt, this is a right thing to do. 52 However, holistic product norms face a dilemma. Either they are quite detailed, addressing all kinds of criteria mentioned in the annexes of the Ecodesign Directive individually. In this case they may be an obstacle to innovation and these norms are not easily kept up to date. Or they are composed in more general terms. Consequently, their effectiveness may be limited. A way out of this dilemma could be found in the use of models where all the different criteria for use of secondary material, reparability, GHG emissions, emissions of other substances and so on are translated into the same unit and then aggregated. The sum has to stay below a certain threshold. This is, for example, done in BREEAM, a Building Research Establishment Environmental Assessment Method, which is used in some EU member states on a voluntary basis. With this method, building projects can be integrally assessed on their sustainability. Another advantage of this type of holistic âsummationâ criteria is that they can be set on a progressive scale. If, for example, the sum of the sustainability effects of a certain project is ten at a maximum, this maximum can be required to go down in years to follow. Producers then can find innovative solutions that address and in time reduce the negative environmental effects of their products in the most cost-effective way.
However, such product design requirements have to be determined, on the basis of LCAs and similar assessment methods, for each single kind of product. This is a time-consuming and work intensive process. To a certain extent, this problem can be addressed by defining priorities, amongst others on the basis of criteria like whether they contain critical raw materials, are sold in big volumes (and therefore can make a difference), have high impacts on certain sustainability factors, may quite easily be improved, to name a few. However, substantially improving circularity by prescribing a circular and sustainable product design will be an enormous task. Furthermore, the law maker is always at least one step behind. Newly developed products have to be assessed after entering the market. Ecodesign requirements for all kinds of specific products could therefore be complemented by a tandem of two other features.
First of all, the law, for example the Ecodesign Directive, could define general principles of sustainable product design that apply to all products. Necessarily, these principles will be quite general. They could nevertheless play an important role in the transition to a more circular economy as all producers of all goods would have to think and argue if and why their products meet these general principles. The EU Commission considers introducing such principles. 53 Without trying to be comprehensive, one could think of the following requirements for sustainable product design:
Products should be designed as follows: durability, reusability, upgradability and reparability are facilitated as much as possible; products should not contain hazardous chemicals; if hazardous chemicals are unavoidable, information about this content and its possible hazardous effects is available at all times during and after the use of the product; products contain as few primary resources as possible; products contain as much recycled content as possible (while ensuring their performance and safety); greenhouse gas emissions caused by the production and distribution are reduced as much as possible; intended premature obsolescence is forbidden; destruction of unsold durable goods is prohibited.
These principles guide sustainable design of products only to a certain extent, as they are still general in character, and need to be elaborated with regard to specific products. They do not substitute specific product design requirements that are to be developed in regulations on the basis of the (broadened) Ecodesign Directive or other EU secondary law, like the Construction Product Regulation 54 and others, but complement these specific product laws, especially for those (groups of) products for which there are no specific requirements yet.
Secondly, in order to increase the effect of the general principles, they could be combined with a general requirement for producers to reduce their total environmental impact, measured in easily applicable key criteria, with a certain percentage in a given period. Such quantifiable criteria help to facilitate the proper monitoring and enforcement of sustainable product design, which is key to achieving the circularity objectives. France has introduced a similar instrument, which will be discussed below, in its Circular Economy Act. If the policy aims - âbecoming circularâ at a certain date and using only half as much virgin materials in 2030 - are taken seriously, they can only be realized if the environmental impact of all products sold on the market is reduced significantly. The introduction of general principles of sustainable products, combined with the requirement for producers to demonstrably reduce the environmental impact in a certain timeline with a certain percentage, is a logical component of such a policy goal. These two instruments combined have a leg up on detailed product requirements in ecodesign regulations for specific products, as they do not restrict the innovative potential of producers. They can decide for themselves how they will reduce the total environmental impact of their products, as long as they comply with the reduction percentages and timelines and respect the general principles of sustainable production.
EU Product Law also encourages self-regulation as an alternative to legislative measures. The current EU Ecodesign Directive and the proposed Ecodesign for Sustainable Products Regulation allow industry sectors to propose a voluntary agreement as an alternative to EU ecodesign requirements. Economic operators have to submit evidence to the European Commission that the self-regulation measures meet the criteria of the Ecodesign Directive (or in future: Ecodesign for Sustainable Products Regulation) and the Commission will assess the measures proposed by industry. 55 The idea is that self-regulation measures may help achieve ecodesign objectives faster and at lower costs than legal requirements. 56
Room for manoeuvre for national lawmakers
In regional economic organizations with a harmonized market, the parties to such an organization, such as the EU member states, are not allowed to conclude national product requirements and restrict trade of products that do not meet such national standards. So, in general, product law is a competence of the regional economic organization. However, some room for manoeuvre is left for national lawmakers. In the EU, French law provides interesting approaches to make the most of this space. The French Act on Circular Economy requires producers to draw up and implement a prevention and eco-design plan for their products, aimed at reducing the use of non-renewable resources, increasing the use of recycled materials and increasing the recyclability of their products. 57 The plan has to be revised every five years and describes the objectives as well as the prevention and eco-design actions that will be implemented in the next period. Producers can do this individually or collectively by establishing an âeco-organizationâ that can subsequently develop such plans on their behalf. While, in principle, product-related requirements in the internal market can only be set in EU law, this French legal provision can be seen as an innovative national tool, which has special added value when EU product requirements regarding circularity on specific products are lacking.
In other areas than product law, the role of national regulators is much more extensive and important. EU directives have to be transposed and all EU law has to be operationalized, applied and enforced by national authorities. In general, EU environmental law only provides for minimum requirements, leaving national regulators some leeway to go beyond EU requirements. For example, one can refer to the minimum requirements for extended producer responsibility in art. 8 and 8 bis of the Waste Framework Directive and in other directives concerning specific (groups of) products. Whilst, for example, art. 8 bis (4) (sub b) Waste Framework Directive encourages member states to apply differentiated fees for producers falling under the scope of an EPR-scheme, depending on the suitability of a product for circular use, the member states have to operationalize this and have to determine whether and to what extent differentiated fees are to be applied. Furthermore, they are allowed and encouraged to introduce EPR schemes for (groups of) products where this is not required on the basis of EU law. This goes to show that, outside the area of product law, the member states have a huge responsibility to adapt circular economy policies and to provide the legal instrumentation needed.
The need for global law on improving circularity
The EU is a substantial player covering approximately 15 % of the global market (16 % in 2017, trend decreasing). 58 However, goods are produced, distributed, used and discarded all over the world. So if the EU wants to be a frontrunner in the transition to a more circular and sustainable economy, it should push global markets in the right direction. But apart from what the EU wants to achieve, it is important to consider how law can contribute to a global change towards a more circular economy and society. One way to increase EU impact on global markets would be to synchronize product policies and legal circularity requirements between the EU and other economies with substantial impact, such as the US or China. If it were possible to introduce joint circularity criteria for certain groups of products, the global market would probably adapt to this. After all, producers cannot afford to ignore this âcoordinated marketâ and it may be too expensive for them to work with different product designs, one for the âcircular marketsâ and one for the other markets. For this purpose, international fora like G7 or G20 could also be used.
A more ambitious and far-reaching step would be to develop global law on circular and sustainable products and production. In 2019, the United Nations Environment Assembly (UNEA) adopted a resolution on the circular economy called âInnovative pathways to achieve sustainable consumption and productionâ. 59 However, unlike in other policy fields and legal areas, the almost total absence of global circularity law is striking. On a global level, there seems to be a lack of governance mechanisms that address the unsustainable and linear use of natural resources. Scarcity of critical raw materials, over-extensive use of natural resources, climate change and other problems related to a non circular use of resources have a global dimension. It is time that the need for a transition to a more circular economy and society is recognised at the global level, and that the possibilities of international law and government instruments to steer economic development towards a more circular and sustainable way of producing and consuming are addressed. An important step in this direction could be the evolution of a global treaty that addresses these problems and globally concludes general principles of sustainable production like the ones discussed above.
On the basis of these general principles and within the framework of such a treaty, protocols could be developed that specify these principles for certain (groups of) products. Besides such general principles of circular sustainable product law, a global treaty on sustainable management of natural resources could include international rules on waste prevention and management, extended producer responsibility, and rules on consumer information. In the run-up to endeavouring such a global treaty, a first measure could be the creation of a Global Circular Economy Alliance that aims at identifying knowledge and governance gaps. The European Commission has announced that it will propose such an alliance. The alliance would bring together âglobal champions of circular economy and sustainable resource management, including relevant international organisations and bodies, selected partner countries and regions, business associations, NGOs, and academia.â 60
Another area where development of global law is urgently needed is the production and use of plastics and the environmental pollution caused by plastics. A number of developing countries have adopted measures to ban the use of single-use plastics. 61 However, as long as there is no international agreement restricting certain products and materials, the ability of countries to implement measures, such as product standards, which may have implications on international trade, is limited. Therefore, the EU promotes an international agreement on preventing plastic pollution in line with the European Plastics Strategy. 62
Conclusion
Optimal legal instrumentation is one of the prerequisites for paving the pathway to a circular economy. All regulatory levels have to contribute to this and numerous areas of law are involved. Currently, some states, respectively regional economic entities like the EU have the most elaborate legal instruments. The EUâs legal framework for fostering the transition to a more circular economy is developing rapidly, with the recently launched proposal for a Regulation on Ecodesign for Sustainable Products and other legal measures as a promising example. Although the EU seems to be a frontrunner in providing legal instruments to foster the circular economy, there is still room for improvement in EU law. Amongst others, this concerns establishing concrete quantifiable general targets and introducing general legal principles of sustainable product design.
The almost complete absence of global law on the circular economy is striking. There is an urgent need for discussing the role of international law and developing global legal instruments that foster the transition to a more circular economy.
Footnotes
Global Footprint Network (2020), Past Earth Overshoot Days. Retrieved from https://www.overshootday.org/newsroom/pastearth-overshoot-days/ & Global Footprint Network (2022), Country Overshoot Days. Retrieved from 
OECD (2019), Global Material Resources Outlook to 2060: Economic Drivers and Environmental Consequences, OECD Publishing.
Ch. Backes, Law for a Circular Economy, Eleven Publishers 2017, p. 9 ff. Critical: S. Thomas (2019) âLaw and the circular economyâ, Journal of business law. (1). 72
See eg. EEA, Circular economy in Europe. Developing the knowledge base, EEA report no. 2/2016, p. 12â14.
See eg. S.K. Ghosh (ed.), Circular Economy: Global Perspective, Singapore Springer (2020), K. Winans, A. Kendall, H. Deng, âThe history and current applications of the circular economy conceptâ, Renewable and Sustainable Energy Reviews,Vol. 68, 1, 2017, p. 825â833.
Balraj K Sidhu and Bharat H Desai (2018), âPlastic Pollution: A New Common Concern of Humankind?â, Environmental Policy and Law, 48 (5), 252â255 at 254.
O.E. Ogunmakinde, A Review of Circular Economy Development Models in China, Germany and Japan, Recycling 2019, 4, 27.
O.V. Mikichurova and I V Vlialko, Circular law as a legal basis for a circular economy, IOP Conf. Series: Earth and Environmental Science 915 (2021) 012022, p. 3.
See eg. W.R. Stahel, History of the Circular Economy. The Historic Development of Circularity and the Circular Economy, in: S. Eisenriegler (ed.), The Circular Economy in the European Union. An Interim Review, Springer 2020 , p. 7â19
On this see R.M. Ballardini et al, Developing novel property concepts in private law to foster the circular economy, Journal of Cleaner Production 279 (2021) 123747.
See also S. Thomas (2019) âLaw and the circular economy.â, Journal of business law. (1). 74.
Proposal for a Regulation of the European Parliament and of the Council establishing a framework for setting ecodesign requirements for sustainable products and repealing Directive 2009/125/EC, COM (2022) 142 final.
Overviews can be found at R. Hughes, The EU Circular Economy package âlife cycle thinking to life cycle law?, Procedia CIRP 61 (2017), p. 9 and Ch. Backes, The Waste Framework Directive and the Circular Economy, in: M. Peeters, M. Eliantonio, Research Handbook on EU Environmental Law, Edward Elgar 2020, p. 328 ff.
European Commission, Closing the Loop âan EU action plan for the Circular Economy, COM (2015) 614 final.
European Commission, Closing the loop âan EU action plan for the Circular Economy, COM (2015) 614 final, p. 1.
Th. de Römph, J.M. Cramer, How to improve the EU legal framework in view of the circular economy, Journal of Energy & Natural Resources Law 38(3), 247.
Directive 2018/851/EU of the European Parliament and Council of 30 May 2018 amending Directive 2008/98/EC, OJ L150/109.
See critical B. Puentes Cocina, An analysis of the Circular Economy Legislative Package: A New Paradigm vs The OldWaste Law, in: M. Boeve, S. Akerboom, C. Backes and M. van Rijswick, Environmental Law for Transitions to Sustainability, Cambridge Intersentia, 2021, p. 57.
An overview can be found at D. Polverini, Regulating the circular economy within the ecodesign directive: Progress so far, methodological challenges and outlook, Sustainable Production and Consumption 2021, 1113â1123.
European Commission (2020), A new Circular Economy Action Plan. For a cleaner and more competitive Europe, 11 March 2020, COM (2020) 98 final; hereafter EU CE Action Plan (2020).
EU CE Action Plan (2020), p. 2.
EU CE Action Plan (2020), p. 2.
EU CE Action Plan (2020), p. 5.
See e.g. the proposal for a directive amending Directives 2005/92/EC and 2011/83/EU as regards empowering consumers for the green transition through better protection against unfair practices and better information, COM (2022), 143 final.
In March 2022 an EU Strategy for Sustainable and Circular Textiles, COM (2022) 141 final and a revision of the Construction Products Regulation, COM (2022) 144 final were published.
Proposal for a Regulation of the European Parliament and of the Council establishing a framework for setting ecodesign requirements for sustainable products and repealing Directive 2009/125/EC, COM (2022) 142 final.
EU CE Action Plan (2020), p. 4.
Art. 1 Proposal Regulation on Ecodesign for Sustainable Products, COM (2022), 142 final.
Directive 2009/125/EC of 21 October 2009 establishing a framework for the setting of ecodesign requirements for energy-related products (recast), OJ L285/10.
A âProductâ is defined as any physical good that is placed on the market or put into service (art. 2 sub 1 proposal for a Regulation on Ecodesign for Sustainable Products).
Art. 1 section 2 proposal for a Regulation on Ecodesign for Sustainable Products.
Art. 5, 6 and 7 proposals for a Regulation on Ecodesign for Sustainable Products and recital 20 & 23.
D. Polverini, Regulating the circular economy within the ecodesign directive: Progress so far, methodological challenges and outlook, Sustainable Production and Consumption 2021, 1121.
The European Commission may in certain cases exempt product groups from the requirement for a digital product passport, see art. 8, sub 4 proposal for a Regulation on Ecodesign for Sustainable Products.
Art. 8 proposal for a Regulation on Ecodesign for Sustainable Products.
Art. 58 proposal for a Regulation on Ecodesign for Sustainable Products. Another example of the introduction of a mandatory approach for Green Public Procurement is art. 70 of the Proposal for a Regulation concerning batteries and waste batteries, COM (2020) 798 final.
Art. 20 proposal for a Regulation on Ecodesign for Sustainable Products.
See on extending the scope of the Ecodesing directive eg T. J. de Römph & J.M. Cramer (2020), Howto improve theEUlegal framework in view of the circular economy, Journal of Energy & Natural Resources Law, 38 : 3, p. 245-260 and Ecofys, Evaluation of the Energy Labelling Directive and Specific Aspects of the Ecodesign Directive, 2014, Retrieved from: .
See eg. M. Ăttinger (2021), Evaluating the Draft of the European Battery Regulation âfrom an end-of-life perspective to a lifecycle approach, ELNI Review, p. 25â31.
I.M. De Waal, Coherence in law: A way to stimulate the transition towards a circular economy? A critical analysis of the European Commissionâs aspiration to achieve full coherence between chemicals legislation and waste legislation âand product legislation, Maastricht Journal of European and Comparative Law, vol. 28, 6, p. 760â783.
Ch. Backes (2020), The Waste Framework Directive and the Circular Economy, in: M. Peeters, M. Eliantonio, Research Handbook on EU Environmental Law, Edward Elgar, p. 328 ff.
EU CE Action Plan (2020), p. 2.
IRP (2019), Global Resources Outlook 2019.
Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) (2019), Global assessment report on biodiversity and ecosystem services of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services. E.S. Brondizio, J. Settele, S. DĂaz, and H.T. Ngo (editors). IPBES secretariat, Bonn, Germany. 1148 pages.
Comission Staff Working Document Leading the way to a global circular economy: state of play and outlook, 11 March 2020, SWD (2020) 100 final, p. 23.
EU, CE Action Plan (2020), p. 3.
EU, CE Action Plan (2020), p. 4.
See already Backes Law for a Circular Economy, Eleven Publishers. 2017, p. 38 ff.
EU CE Action Plan (2020), p. 5
Regulation 305/2011/EU of the European Parliament and of the Council of 9 March 2011 laying down harmonised conditions for the marketing of construction products and repealing Council Directive 89/106/EEC, OJ L88/5
See art. 18 proposal for a Regulation on Ecodesign for Sustainable Products.
See recital 19 Ecodesign Directive and the Commission Recommendation 2016/2125/EU guidelines on self-regulation measures concluded by industry of 30 November 2016.
Art. L. 541-10-12 Code de lâenvironnement.
UNEP/EA.4/Res.1, 28 March 2019.
Commission Staff Working Document Leading the way to a global circular economy: state of play and outlook, 11 March 2020, SWD (2020) 100 final, p. 22.
Commission Staff Working Document Leading the way to a global circular economy: state of play and outlook, 11 March 2020, SWD (2020) 100 final, p. 21.
Commission Staff Working Document Leading the way to a global circular economy: state of play and outlook, 11 March 2020, SWD(2020) 100 final, p. 21.