Producer responsibilities under EU electro-waste law

On 13 August 2005, the Directive on WEEE ("waste electrical and electronic equipment") is scheduled to be implemented EU-wide. Its producer responsibility provisions are due to be triggered on that date.

The WEEE Directive squarely places the responsibility of WEEE management (essentially, the financing of the collection, treatment and final disposal of end-of-life appliances) on producers which include manufacturers and importers. The RoHS Directive bans six hazardous substances -- lead, mercury, cadmium, hexavalent chromium, PBB and PBDE -- in new equipment that is placed on the market as from 1 July 2006.

On 11 July 2005, the Commission announced that it has sent final warnings to eight Member States, ordering them to transpose fully the WEEE and RoHS Directives without further delay -- or be dragged before the European court in Luxembourg. The UK, France and Italy have so far failed to transpose both Directives, while Estonia, Malta and Poland have yet to transpose WEEE. Finland has transposed both, but not in one particular region (Aland). Finally, Greece still needs to come to grips with the novel provision concerning waste equipment from non-household users.

The following text provides an update of the current situation in five major Member States:

United Kingdom: The UK hopes to publish its WEEE Regulations during August 2005. Implementation of producer responsibility obligations is expected for January 2006. However, the marking-of-equipment obligations are still scheduled to begin, as foreseen, on 13 August 2005. According to a government official, retailers are unlikely to accept, from producers, unmarked equipment, even if the law has not yet been published. The government intends that actual treatment requirements (for recycling) are to be implemented by separate "permitting Regulations", expected to be published before entry into force of the WEEE Regulations.

It appears to be now settled that the UK's Environmental Agencies will register producers (these are the Environment Agency in England & Wales, the Scottish Environment Protection Agency and the Northern Ireland Environment and Heritage Service). From the onset of producer obligations, each producer must apply for registration, except where they belong to a compliance scheme, in which case the scheme will take care of the registration requirements. Any UK producer may join any UK compliance scheme. On registration, a producer will need to report data annually, showing the weight and number of units he puts on the market. Reasonable estimates, which can be corroborated, should be made of what is household and non-household.

The reported weights of household equipment put on the market will be used for calculating the producer's obligations relating to household WEEE arising in the UK. In this connection, the government will establish an allocation of WEEE to producers. This approach will mix physical (collection site) responsibilities for larger producers and compliance schemes, with financial compliance for smaller producers.

The UK has released a consultation paper laying out the proposed annual fees of Environment Agencies to recover their costs in carrying out their roles under the future national WEEE law. Producers will have to add on such fees, yet to be made definitive, to their other financial waste management burdens (insofar as the fees would apply to them):
Individually registered producers (total charge for individual registration): £730
Producer scheme set up and/or annual maintenance: £12,265
Total charge for producer scheme members: £380
Charge for retailer business or distance seller: £14
Retail compliance scheme and annual maintenance: £12,265.

Germany: In Germany, the transposing law (the "ElektroG") was approved in February 2005 and will enter into force on 13 August 2005. Under it, the so-called Joint Body is an institution to be operated and financed by producers of EEE, under the name Stiftung Elektro-Altgerate Register ("EAR") with its registered office in Furth, Bavaria. All producers are obliged to register with the EAR. The EAR has announced that, during the month of July, it will start operating its electronic registration system. Producers can then register with the EAR, but their legal obligation to do so only applies as of 23 November 2005, as the German legislator has decided to give producers more lead time to prepare for the new regime. Any registration completed before 23 November 2005 will automatically enter into force as from that date.

Further relevant information on the German WEEE collection system can be obtained from the EAR website at http://www.stiftung-ear.de/index_eng.html . Meanwhile, the Ministry for the Environment has published a draft for an Ordinance on Fees, but thus far contact details and registration fee of the Joint Body have not yet been made definitive.

The Joint Body has, among others, the following tasks: collection of data from EEE producers relating to data on their quantities and categories of EEE; collecting information on containers ready for pick-up at collection sites; and calculation of the quantity of WEEE to be picked up by each registered producer.

As for the actual logistics of waste management, producers may take back WEEE individually or join collective take-back systems. For example, Panasonic, Thomson and JVC agreed to establish a recycling program for electronics and electrical equipment. Such compliance schemes will then carry out the actual task of collecting and recycling WEEE for the producers concerned.

France: In France the WEEE law, which has been adopted, is expected to be published in the coming weeks and before 13 August 2005 in order to enter into force prior to 13 August 2005. There will be a national register of all producers of EEE. This register will, among others, list the information relating to the placing on the market and disposal of their EEE. The joining procedure, the nature of the information contained in this register and the conditions of access to this information will be determined by a future ministerial order, which has not yet been adopted. The authority responsible for this register is the Agence de l'Environnement et de la Maitrise de l'Energie (ADEME). If Hong Kong's producers would like to be informed of the publication of the ministerial order, the setting up of a provisional registering system and the ultimate date for registration, they may fill in a form and send it to the ADEME. The relevant information and form can be found at:
http://www2.ademe.fr/servlet/getDoc?id=38480&m=3&cid=96

Italy: In Italy the transposition process is still suffering long delays. The proposed Italian Legislative Decree that was supposed to be sent to the Italian Council of Ministers for approval by the end of May 2005 will be sent only in the second half of July 2005. Then it will have to go to the national Parliament before final approval by the competent minister. It is now most unlikely that the deadline of 13 August 2005, as set out in the draft Decree, is going to be met by the Italian authorities. As the position has been more or less at a status quo since our last update (see: Business Alert-EU, issue 6/2005), readers are requested to refer to that issue.

Spain: The legal position in Spain has not changed since our last update. This Member State adopted Royal Decree No 208/2005 (the "RD") on 25 February 2005. All producers of EEE must be registered at the National Register of Industrial Establishments. Such register is without prejudice to the parallel obligation at regional level, where regional registers exist. As such, information on registration and applicable fees should be sought from each of the regions of Spain. Producers may fulfil their WEEE management obligations individually or by means of a collective scheme. If they choose the latter option, they should subscribe with a scheme that has been authorised by the regional authority where they operate.