Council adopts recast Waste Electrical and Electronic Equipment Directive - International Law Office

On June 7 2012 the Council of the European Union formally approved the recast of the EU Waste Electrical and Electronic Equipment (WEEE) Directive (2002/96/EC). The directive aims to increase the collection, reuse and recycling of used electronic and electrical equipment and to reduce electronic and electrical waste.

The directive operates according to the 'producer responsibility' principle, making EU manufacturers and importers (referred to as 'producers') financially responsible for the collection, treatment, recovery and environmentally sound disposal of WEEE. The directive also aims to incentivise producers to improve product design in ways that will reduce waste and allow for reuse and recycling.

The directive has been modified in several areas. The scope of WEEE will eventually cover all electrical and electronic equipment, including categories such as household appliances, small IT and telecommunications equipment, photovoltaic panels and equipment containing ozone-depleting substances. There is a narrow list of exceptions, including large-scale stationary industrial tools and large-scale fixed installations.

There is a six-year transition period before the recast directive's scope widens to all electrical and electronic equipment (EEE) – a separate list of EEE categories covered during this transition period is contained in the recast directive. The European Commission also plans to review the scope of the recast directive within three years of its entry into force. The commission may propose changes after analysing the impact of the WEEE scope on businesses and the environment.

Another modification concerns the collection targets for member states. Four years after the entry into force of the recast directive, member states must annually collect 45% of the average weight of EEE placed on their national markets. Three years later, this collection rate increases to 65%, or alternatively 85% of WEEE generated on the territory of that member state. Ten member states – including Bulgaria, the Czech Republic, Poland and Hungary – have lower, more flexible criteria due to their lack of necessary infrastructure and relatively low level of EEE consumption.

In terms of recovery, member states must ensure that producers meet minimum targets for each category of WEEE, set out in three stages. For example, for certain types of IT equipment:

• 75% must be recovered and 65% recycled during the first three years after entry into force;
• 80% must be recovered and 70% prepared for reuse and recycled within the next three years; and
• 85% must be recovered and 80% prepared for reuse and recycled thereafter.

Within six months of the recast directive's entry into force, the European standardisation organisations will develop standards for the treatment of WEEE, including recovery, recycling and preparing for reuse.

The recast directive also requires retail shops that have EEE sales areas of at least 400 square metres to collect very small WEEE (no more than 25 centimetres) from end users free of charge.

The requirements for shipping EEE to non-EU countries have also been tightened. In particular, stricter rules for distinguishing between EEE and WEEE have been laid down. Member states must require that the holder of a shipment have available:

• a copy of the invoice stating that the EEE is fully functional and destined for direct reuse;
• evidence of evaluation or testing for every item;
• a declaration that none of the equipment is waste; and
• appropriate protection against damage during transportation.

The recast directive was proposed by the European Commission in December 2008 in response to differences in interpretation of WEEE among member states, as well as their failure to meet environmental targets. The European Parliament approved the provisions of the recast – a compromise between the commission, the council, and the Parliament reached in December 2011 – in January 2012.

There continue to be other producer responsibilities under the directive. For example, producers must provide a guarantee when placing products on the market that WEEE obligations will be financed. Producers are allowed to set up and operate either individual or collective systems for fulfilling WEEE obligations, provided that these are in line with the objectives of the directive.

Member states may also require producers to supply information to consumers, including:

• the costs of collection, treatment and disposal;
• the need to dispose of WEEE separately from other waste;
• the return and collection systems available to consumers;
• the potential environmental and health effects of hazardous substances in EEE; and
• the meaning of the crossed-out mobile bin symbol that producers must place on EEE.

Additionally, producers will have to appoint authorised representatives in each member state where they operate if they do not already have a legal entity in that state.

Member states are directed to impose "effective, proportionate and dissuasive" penalties for violations of the directive.

The recast directive will enter into force upon publication in the Official Journal. Member states will then have 18 months to transpose its provisions into their own national laws and implement those provisions.

For further information on this topic please contact Reshad Forbes at Van Bael & Bellis by telephone (+32 2 647 73 50), fax (+32 2 640 64 99) or email (rforbes@vanbaelbellis.com).