European Commission Issues Legislative Proposals on Electrical/Electropic Waste

Nami Akbarian
Oppenheimer Wolff & Donnelly LLP
Brussels, Belgium

Introduction
After several years of discussion, in June 2000, the European Commission (‘Commission’) issued two legislative proposals on waste derived from, and hazardous substances in, electrical and electronic equipment. The Proposal for a Directive of the European Parliament and of the Council on Waste Electrical and Electronic Equipment ("WEEE Proposal") establishes a take-back scheme for waste from electrical and electronic equipment ("WEEE"). The Proposal for a Directive of the European Parliament and of the Council on the restriction of the use of certain hazardous substances in electrical and electronic equipment ("Restricted Substances Proposal") provides for the phase-out of certain substances in electrical and electronic equipment. The phase-out primarily aims to make the management of WEEE less harmful to health and the environment.

The WEEE Proposal and the Restricted Substances Proposal are not the only measures the Commission envisions with regard to electrical and electronic equipment. Rather, the Commission is also currently drafting a proposal for a Directive, which aims to reduce the overall harmful impact on the environment of electrical and electronic equipment. This draft, inter alia, sets out certain design standards and requires a conformity assessment procedure before electrical and electronic equipment is placed on the market. The recently adopted proposals provide for a wide range of measures, which aim to increase the recyclability and other forms of recovery of WEEE. The measures are based on the principle of producer responsibility, meaning that producers should be responsible for the environmentally harmful impact of their products, once the products have reached the end of their useful life cycle.

Basic Elements

Scope of Applicability
The WEEE Proposal and the Restricted Substances Proposal apply to certain "equipment which is dependent on electric currents or electromagnetic fields in order to work properly and equipment for the generation, transfer and measurement of such currents and fields … designed for use with a voltage rating not exceeding 1000 Volt for alternative current and 1500 Volt for direct current." The WEEE Proposal exhaustively lists ten types of electrical and electronic equipment, which include:

• large household appliances (e.g., refrigerators, washing machines, and dishwashers);
• small household appliances (e.g., irons, toasters, and coffee machines);
• IT & telecommunication equipment (such as personal computers, printers, and telephones);
• consumer equipment (e.g., radio and TV sets, hi-fi recorders, and musical instruments);
• lighting equipment (e.g., straight and compact fluorescent lamps, high intensity discharge lamps, and low pressure sodium lamps);
• electrical and electronic tools (e.g., drills, saws, and sewing machines);
• toys (e.g., electric trains or car racing sets, hand-held video game consoles, and video games);
• medical equipment systems, except for all implanted and infected products (e.g., radiotherapy equipment, pulmonary ventilators, and laboratory equipment for in-vitro diagnosis);
• monitoring and control instruments (such as smoke detectors, heating regulators, and thermostats); and
• automatic dispensers (e.g., for hot drinks, hot or cold bottles or cans or for solid products).

These types of electrical and electronic equipment are also included in the scope of applicability of the Restricted Substances Proposal. However, the provisions relating to (i) substance bans, (ii) collection (except for distributors’ take-back duties), (iii) financing of WEEE from private households, and (iv) user-information do not apply to medical equipment systems, monitoring and control instruments, and automatic dispensers.

Substance Bans
According to the Restricted Substances Proposal, the use of lead, mercury, cadmium, hexavalent chromium, PBB and PBDEs must be substituted by January 1, 2008. However, in certain cases, mercury, lead, cadmium and hexavalent chromium are exempt from the substitution requirement. For example, the substitution requirement does not apply to mercury in laboratory equipment or to lead in electronic ceramic parts. Assisted by a so-called Technical Adaptation Committee ("TAC"), consisting of Member States’ representatives, the Commission will periodically review the list of exemptions, with a view to either adding additional exemptions or removing existing exemptions. Prior to deciding on an amendment of the list, the Commission must consult producers of electrical and electronic equipment.

Management of WEEE
The WEEE Proposal sets up collection and treatment requirements; provides for re-use, recycling and recovery targets; and establishes certain information requirements. The obligations target in the first instance the producer, which the WEEE Proposal defines as "anyone who manufactures and sells electrical and electronic equipment under his own brand, who resells under his own brand equipment produced by other suppliers or who imports that equipment on a professional basis into a Member State."

Member States must set up collection facilities to which holders and distributors can return WEEE from private households free of charge. When selling a new product, distributors are obliged to take back free of charge similar electrical and electronic equipment from private households, provided the equipment is contaminant-free. Producers are responsible for the collection of WEEE originating from a professional environment.

Producers are required to set up systems to provide for the treatment of WEEE. The treatment of WEEE must, inter alia, include the removal of all fluids, as well as the removal of certain substances and materials, such as batteries or components containing mercury. In addition, the storage and treatment of WEEE must comply with certain technical requirements.

The WEEE Proposal sets out reuse, recycling and recovery targets. The targets range from 50% to 80%, depending on the type of electrical and electronic equipment and whether the equipment is recovered or recycled/reused.

Producers will have to bear almost all costs of collection and treatment of WEEE from private households. Five years after entry into force of the WEEE Proposal, producers will have to finance the collection of WEEE from private households that has been deposited at collection facilities, as well as its treatment, recovery and environmentally-sound disposal. This obligation will also be applicable to waste from equipment that was placed on the market prior to the entry into force of the WEEE Proposal (historical waste). Note that the WEEE Proposal does not specify who must bear the costs of the transfer of WEEE from private households to the collection facilities. It is possible that Member States will also impose these costs on producers.

Producers may set up individual or collective financing systems. With respect to historical waste, the Commission wants to ensure that the financing "shall be shared by all existing producers." Producers that opt for an individual system must contribute a "fair share" to the financing of the management of historical waste.

As regards WEEE from users other than private households, producers shall share the collection and treatment costs with the user. This issue shall be dealt with by agreements between the producer and the user of the respective equipment at the time of purchase.

If required, producers must provide treatment facilities with information about the characteristics of the electrical and electronic equipment and also indicate the location of dangerous substances and preparations. Users of electrical and electronic equipment must be provided with information about take-back schemes. The WEEE Proposal does not specify that this duty to provide information must be imposed on producers, but it cannot be excluded that Member States will legislate accordingly. Finally, producers are required to mark their equipment with a certain symbol which highlights that the equipment shall not be thrown away once it has reached the end of its useful life-cycle.

Harmonizing Effect?
In addition to the aim to ensure the appropriate waste management of electrical and electronic equipment, the proposals aim to harmonize the legislation of the EU Member States in this respect. However, it is questionable to what extent harmonization will indeed be ensured. Member States’ right to adopt legislation that goes further than the restrictions and obligations provided by EU legislation, depends on the legal basis chosen for the EU legal text. The Commission has based the WEEE Proposal on Article 175(1) of the EC Treaty, which is the legal basis for a major part of the EU’s environmental legislation. The Restricted Substances Proposal is based on Article 95(1) of the EC Treaty, the EU’s legal basis for its so-called internal market legislation.

If an environmental legislative proposal also aims to harmonize the legislation of the Member States, Member States usually prefer Article 175(1), since this provision allows them to maintain or to introduce stricter legislation, subject to the duty to notify the Commission and compliance of the national measure with EU law. If an EU measure is based on Article 95(1), Member States that want to maintain or to introduce stricter national measures must request the Commission’s prior approval. Maintenance of stricter national legislation must be justified, inter alia, by the need to protect the environment. Introduction of stricter legislation must be justified by new scientific evidence that relates, inter alia, to the protection of the environment on grounds specific to that Member State arising after the harmonization measure.

Contrary to previous take-back legislation, which is largely similar to the requirements on the management of WEEE, the Commission is now using Article 175(1) instead of Article 95(1) for the WEEE Proposal. Interestingly, the Commission’s "switch" coincides with the entry into force of the Amsterdam Treaty (May 1, 1999), which introduced the aforementioned stricter conditions for the introduction of new Member States’ legislation. It is therefore reasonable to assume that the Commission wants to give a "helping hand" to those Member States who want to go beyond EU standards.

Final Observations
It remains to be seen how the WEEE and the Restricted Substances Proposal will take shape during the legislative process. A number of issues are still controversial, such as the vagueness of the term "fair share" with respect to the financing of the management of historical waste. Also, it has been reported that the Member States favor a merger of the two proposals and that the merged proposal should be based on Article 175(1). Lawyers advising manufacturers of electrical and electronic equipment to be marketed in the EU should closely follow the legislative procedure and, if needed, assist their clients in developing an appropriate lobbying strategy vis-à-vis the EU legislators.

Editor’s Note: Nami Akbarian is Chair of the Waste Working Group of the Environment Subcommittee of the EU Committee of the American Chamber of Commerce in Brussels, Belgium.