WEEE implementation in the EU – 2009

WEEE implementation in the EU –  2009

The European Union WEEE (Waste Electrical and Electronic Equipment) Directive was adopted in 2003 and should have come into force on 13th August 2005 although most Member States missed the deadline. By 1st January 2008 all EU States had implemented national WEEE legislation with Italy being one of the last. Unfortunately for manufacturers, there are many significant differences between Member States, and requirements vary considerably. Some States have been warned by the European Commission (EC) that their legislation does not transpose the WEEE Directive correctly and they will need to change it or face prosecution by the European Court. The WEEE Directive appears to be straightforward having only 19 Articles whereas the much longer EU REACH regulation has 141 Articles. However, the implementation of WEEE is very complex because of the different approaches adopted by EU Member States.

The EC has carried out a comprehensive review of the WEEE directive and its implementation and has submitted proposals to amend it (see link below).

http://www.electronicsdesignworld.com/us/legislation-center/weee/pdf/WEEEJan09LR.pdf

Consultants were employed to review how it has been implemented and to make recommendations for improvements. Three studies were published by Okopol, the United Nations University, and by Ecolas (now called Arcadis) and are available from the European Commission’s website. These studies clearly show the wide variation in implementation and also highlight that the approaches adopted by some States do not meet the main intention of the legislation. An example would be to make "Producers" responsible for their own products when they reach end of life. In many EU States, WEEE is seen simply as an additional cost that does not encourage better eco-design. In 2005, over 9 million tonnes of electrical equipment was put onto the EU market with recycling rates varying from as low as ~20% of electrical tools being collected for recycling, to nearly 70% of monitoring and control equipment. The performance of EU States also varies considerably, Norway collects over 13 kg per inhabitant, the UK almost 10 kg but several Eastern European States collect less than 1 kg per inhabitant.

WEEE is implemented nationally within EU Member States each of which has its own system and rules. All States have national Producer Compliance Schemes (PCS), which producers can join and who meet all of the obligations of their members for a fee. Most schemes operate only in single States although there are a few schemes that operate in several States. It is possible for producers to meet their obligations individually but very few find that this is feasible. Some States have many PCS, the UK has over 40, whereas other States have a few schemes and in most of these (e.g. Holland) there is only one scheme for each type of product. A few States, including Belgium, have only one national PCS although producers can meet their obligations alone if they wish.

The first aspect of WEEE legislation to understand is the difference between products sold to "households" – so-called B2C and products sold to businesses – B2B.

Requirement	B2C	B2B
Obligation to collect	From municipal waste sites and from retailers	From customers
Historical Waste	Responsibility based on market share	1:1 exchange when buying new except in France, Germany and Holland where the user is responsible
Producer Guarantee	Required in all EU States	Required in some EU States
Responsibility at end of life	Always the producer	Can be transferred to user in many, but not all member states

Producer obligations for B2C and for B2B are clearly different but these obligations are not the same in all EU States. To confuse matters further, each State uses its own definition of B2C and B2B. A few have produced lists of products that are regarded as being B2C whereas anything not listed are assumed to be B2B. Some States allow producers to decide and there are several other different definitions that are used.

Who is responsible?

The WEEE Directive states that "Producers" are responsible for financing the disposal of their products at end of life. Producers can be the manufacturer, importer or a distributor. However, responsibilities are not the same in all EU States. In some States, the manufacturer, re-brander or importer are classified as the producer and must meet the financial obligations. In several States however, the responsibilities of a producer can be met by the exporter based in other States or, in some cases, outside the EU. For example, in the UK, Belgium, Holland, and a few other countries, a distributor who imports equipment is regarded as being the producer but can decide not to register if the foreign manufacturer meets all of the producer obligations by registering and joining compliance schemes.

Distance sellers

The situation with distance sellers is complex. These are companies that export equipment directly to users in other countries.
Distance sellers may have obligations in their home EU States or in the States where their products are sold. The table below illustrates the main situations that exist.

Suppliers location	Obligations in sellers State	Customer location	Obligation in customers State
UK	UK supplier is the producer and must join a UK compliance scheme	UK	N/A
UK	Keep records of sales data. Report to UK government only if requested	Germany	Distance seller expected to register in Germany and is responsible for waste equipment at end of life
Finland	Must report sales data to Finish authorities	Netherlands	Join Dutch compliance scheme
Germany	None, no obligations for exporters	Spain	None, only Spanish entities can register
USA	None	France	B2C - Join French compliance scheme B2B – No obligations

About half of EU States require (or allow) "distance sellers" to register and take on financial responsibility whereas some States allow only nationals to register. Some States require manufacturers who export to other EU States to provide data on exports and this means that in some circumstances, distance sellers have to register twice and in others not at all.
Countries that encourage foreign distance sellers that are located in other countries to register or to join national PCS include:

• France (not necessary for B2B, B2C is by joining a PCS)
• Germany
• Ireland
• Portugal
• Sweden
• UK (by joining a PCS)

Of course, distance sellers based in one State are outside of the jurisdiction of the WEEE authorities in other Member States and currently there is no mechanism to enforce national WEEE laws outside of national boundaries.

Obligations in four example Member States
Most producers comply with WEEE by joining a PCS. In many States, this is sufficient as the PCS registers members on their behalf, but producers must register themselves in eleven EU States including Austria, Germany, Ireland, Portugal and Sweden. The main requirements for equipment manufacturers who are also producers in four of the EU States are summarised below:

France:  Has seven compliance schemes and these register members on their behalf; there is no registration fee. Manufacturers are required to print the crossed wheelie bin symbol and the producers name on products. France is one of the few countries that has a mandatory requirement to show "visible fees" at the point of sale of new B2C products. The visible fee informs the customer of the actual cost of collection, recycling and disposal at end of life and is part of the product price. French law requires that the French producer’s name be printed on products. This means that distributors who import equipment should apply labels with their name on each individual piece of equipment. In practice this is not done as it means re-packaging, and it has been claimed that this requirement could be illegal as it restricts the free movement of goods within the EU.
Producers have to report on weight and number of unit sales annually

Germany: Has many compliance schemes but producers must also register with the authorities for which there is a complex fee structure. Unlike in other States, it is also necessary to pay a financial guarantee for B2C using the national guarantee scheme. Financial guarantees are required to ensure that the cost of disposal of WEEE at end of life can be met if the original seller has ceased trading. Manufacturers should print the crossed wheelie bin symbol and producers name on products although, unusually, the wheelie bin symbol appears not to be required for B2B. German producers are required to report on the weight and number of unit sales monthly for B2C and annually for B2B. The German authorities use a long list of product types to decide if equipment is B2C or B2B although B2B producers must also prove that equipment will not become municipal waste. This is important as there are separate fees and reporting requirements for B2C and B2B.

Netherlands: Most producers (both Dutch and from outside the Netherlands) join one of the three Dutch PCS and this is accepted as registration. It is possible to comply without joining a PCS but this is quite onerous and very few producers have adopted this approach. There is no registration fee in the Netherlands. The types of products accepted by each PCS are limited and so in reality there is usually a choice of only one scheme. Despite this, the Netherlands is one of the lowest cost countries for WEEE compliance in the EU. Dutch PCS require quarterly reporting but producers that comply individually report annually. In the Netherlands, deciding whether a product is B2B or B2C is not what it may appear at first sight. IT and telecom products weighing over 35 kg are classified as B2B whereas lighter equipment is B2C, irrespective of the customer. Deciding whether other types are B2C or B2B is decided by a lengthy list from the NVMP scheme.

UK: All producers must join one of the approved PCS of which there are over 30 in the UK. The PCS registers producers on their behalf and pays the registration fees. Manufacturers should print the crossed wheelie bin symbol and producers name on all products. Quarterly reporting of sales in terms of weight and number of units is required. Showing the visible fee is optional in the UK but it is not used, mainly as it is strongly disliked by retailers. At the time of writing about 3200 producers have joined UK PCS, which is lower than expected implying that many have not yet joined schemes. Over 6000 organisations have registered in Germany and over 3700 in France which has a smaller electronics industry than the UK. The shortfall in the UK is probably because some manufacturers have assumed their products are not in scope but others may be unaware that they should have joined a scheme.

Scope of WEEE legislation

The scope of the WEEE Directive is listed in Annex IA and is ten broad categories of product. Annex IB lists "products that should be taken into account for the purposes of this Directive". However, it is not clear what this means. It is not the same as "examples" or "indicative examples" and so has been interpreted differently by EU States. Annex IA is the minimum scope and Member States can have a wider outlook if they wish. However, it is not clear from national legislation whether individual States intend to broaden the scope or if this is being interpreted more broadly by civil servants. There are some significant differences between States as well as some types of products for which it is not clear if they are included or not:

• Some states such as Finland include as much equipment as possible and find a category to fit.
• Others such as the UK only include products if they clearly fit within a category although some interpretation of the product function and what is meant by the category are required. Where there is doubt, authorities tend to include rather than exclude.
• Equipment that is part of something else that is not included within the scope of WEEE is itself excluded (Article 2.1). This excludes, for example communications equipment installed in aircraft because aircraft are not in any of the 10 categories.
• Commercial kitchen equipment – included in the scope of WEEE and usually regarded as "household appliances" even though it is not used in households.
• Large-scale stationary industrial tools (LSIT) – this is a sub-category of category 6 that is excluded from the scope of WEEE. The EC has published a definition of LSIT and this indicates that the intention is to regard these as manufacturing processes in factories. Processes that produce equipment, food, magazines, chemicals, oil and probably power are regarded as LSIT and all permanently installed parts are therefore excluded from WEEE.
• Large machine tools – the status is not clear. UK believes that as these are large, stationary industrial tools, they should be excluded as LSIT but many States do not agree and include these in the scope of WEEE unless they are used as part of a production line.
• Process control equipment – this is used to monitor and control and is often installed in process control panels. However when used as part of a production process this should be excluded as LSIT components, but some States regard these products as being in Category 9, irrespective of how they are used.
• Fixed installations – this is one of the biggest topics of debate and is based on Article 2.1 which excludes equipment that is part of other equipment that is not within the scope of WEEE. The debate concerns what if the "other equipment" is a building? Several Trade Associations have stated that Article 2.1 excludes fixed installations. However there is strong disagreement between EU Member States on what should, and should not, be included. Some States such as those in Scandinavia include all fixed installation equipment. Germany excludes any equipment that has to be installed by a professional and the UK’s opinion is that if dismantling and damage to parts of the building is required to remove the equipment, then it is excluded.
• Car radios – this is another Article 2.1 issue. Most States exclude these from WEEE as they are within the scope of the End of Life Vehicles directive and this is stated in guidance published by the EC. However, the Netherlands and a few other States include these within the scope of WEEE if they are sold directly to consumers (these are included in the Netherlands because they are included in the NVMP list of B2C products).

There is WEEE legislation outside of the EU, for example in Japan, Korea and many US and Canadian States, while China has recently adopted legislation.

© 2009 Premier Farnell plc.
(Updated February 2009).
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