The current European Directive on Waste Electrical and Electronic Equipment ("WEEE") (Directive 2002/96/EC) sets targets for the collection, recycling and recovery of all types of Electrical and Electronic Equipment ("EEE").
These targets are achieved by imposing obligations on producers of EEE to account for and dispose of the waste generated by their products.
Bones of Contention...
At the choice of member states, producer responsibility can be discharged by either choosing to deal with one's waste individually or by joining an appropriate collective scheme. Over the years numerous collective schemes have emerged. The role of the organisations running them is to take over the management of producer obligations in return for a fee reflecting the recycling costs.
In recent years, three-way trialogue negotiations between the European Council, Commission and Parliament ("EP") have been underway with the objective of revising the WEEE Directive, but until last month the prospect of reaching agreement in time looked bleak. Disagreement chiefly centred around the following issues:
- Definition of "producer" – whether the definition should be made at EU level or by Member States ("MSs")? The Commission and EP argued for an EU definition, but the Council was unanimously against. Different interpretations of a producer, which is ultimately financially responsible for the selective collection and disposal of waste, may hamper a harmonised application of the Directive and may cause producers to re-organise their distribution channels.
- Scope – whether to define by a closed or open list the equipment affected by the legislation. If an open scope was to be adopted, thus derogating from the current directive which provides an exhaustive list of equipment, another question arises - how long should the transitional period be? The Council was for an “open” scope and envisaged a six-year transitional period from date of entry which would allow for an update of the list. The EP was against. One of the consequences could be a lack of consistency with the Directive on the restriction of hazardous substances in EEE, which was originally adopted at the same time as the WEEE Directive but the revision which has been speedier, resulting in the recent adoption of a recast text [Add reference and links to previous bulletin articles.
- Collection rate – to what extent targets should be increased? The Council and the Commission desired that MS, by 2020, collect 65% of the weight of equipment placed on the market in the previous three years where as the EP favoured more onerous requirements, demanding the collection of up to 85% of the waste generated each year.
- Take-back of consumers' WEEE – whether to remove the requirement on consumers to take end-of-life appliances either to shops which will accept these when replacement products are bought or to specialised collection centres? It was agreed that retailers should be obliged to accept all types of appliances, at no charge and with no obligation on consumers to buy new products, but debate continued over the size of shops to which this measure would apply.
- Visible WEEE fee – whether producers should be allowed to show consumers, on a voluntary basis, at the time of sale of new products the costs of collecting, treating and disposing of WEEE? The Council argued for visible WEEE fees, which a number of MSs already applied in contradiction with the current Directive, but the EP was against as it felt recycling costs should be incorporated into the product price so that there was an incentive to reduce those costs.
The most recent development is that progress was made at the fourth trialogue session held on 20 December 2011, and on 19 January 2012, the EP held its second reading of the proposed text voting on the amendments made to the Council's first position. As a result, the present status of the text is as follows.
A EU definition of "producer" has been adopted providing greater harmonisation among MS. As under the current regime, the definition relates to manufacturers and sellers of EEE which market products under their own name or trademark as well as entities which place EEE on the European market and those using long distance selling. Further, there is to be harmonisation of registers of producers. This will simplify the reporting process for companies that place products on more than one MS market as the same format and frequency of reporting will be required by all MSs. Lastly, a producer not established in a MS but placing products on the market of that state, will now be allowed to appoint a legal representative resident in that MS responsible for fulfilling the foreign producer's obligations.
With regards to targeted equipment, in the first six years of the new directive, the current system of a non-exhaustive list of categories listed in Annex 1 will continue to apply, but subsequently the directive will have an open scope covering all EEE save a few precisely defined exceptions. The EP's reasoning is that this will bring greater legal certainty as all equipment will be included as a matter of principle where as the previous strict categorisation gave rise to widely differing interpretations in MS. Further, new products will also be accounted for without the need to revise the directive.
Collection targets are to be calculated differently to the current directive. The proposed measure calls for a minimum collection rate of 45% of the weight of WEEE placed on the market in a given year to apply for the first four years of the new directive. After seven years of the new directive, MSs will have to achieve a minimum collection rate of 65% of the weight of EEE placed on the market or alternatively a target of 85% of the weight of WEEE generated. Until 1 January of the 4th year after date of entry, a rate of separate collection of at least four kilograms on average per inhabitant per year of waste generated from private households or the same amount of average weight of waste collected in that MS in the three preceding years, whichever is greater, shall continue to apply. Some MSs such as Bulgaria, Czech Republic, Latvia, due to a lack of the necessary infrastructure and their low level consumption of EEE, have lower targets to meet.
Regarding the issue of how consumers dispose of old appliances, the proposal states that when supplying a new product, distributors will continue to be responsible for ensuring that such waste can be returned to them at least free of charge on a one to one basis as long as the equipment is of equivalent type and performs similar functions as the supplied equipment. However, for small volume EEE (no external dimension more than 25cm) consumers will be able to deposit their WEEE at the retail stores without any obligation to buy new equipment unless alternative existing collection schemes exist that are likely to be at least as effective and the public is made aware. The latter possibility is not available under the current regime.
Lastly, MS may require producers to show purchasers at the time of sale of new products, the costs of dealing with the waste in an environmentally sound way if they so wish, but the costs mentioned shall not exceed the best estimate of the actual costs incurred. It has to be noted that ultimately, those costs will be passed on to consumers irrespective of whether the fee is visible or not.µ
From a procedural viewpoint, the next step is a second reading by the Council where it will vote on the EP's proposed amendments. Should it agree with these, the act will be adopted. Should it choose to reject these, a conciliation procedure will begin where a committee of Council and Parliament representatives will have just six weeks to finalize the text, otherwise the three-year-old proposal will be withdrawn completely.