ava i lab le at www.sc ienced i rec t . com

www.compseconl i ne .com/ publ i ca t ions /prodc law.h tm

c o m p u t e r l a w & s e c u r i t y r e p o r t 2 3 ( 2 0 0 7 ) 7 3 – 7 6

Waste Electrical and Electronic Equipment Directive

UK to finally implement the WEEE Directive

Mark Turner, Dominic Callaghan

Herbert Smith LLP

a b s t r a c t

The UK government has estimated that by 2008 compliance with WEEE obligations will cost

the UK in excess of £100 million annually. Although the new legislation is due to begin in

January 2007 there are still some situations in which it is unclear whether equipment is

actually regulated and if so, who will be responsible for compliance.

ª 2006 Herbert Smith LLP. Published by Elsevier Ltd. All rights reserved.

1. Overview of the WEEE Directive1

Electrical and electronic equipment (‘‘equipment’’) is regu-

lated by the Waste Electrical and Electronic Equipment (‘‘WEEE’’)

Directive (2002/96/EC) if it uses a voltage less than 1000 V for

AC and less than 1500 V for DC (including battery-powered)

and it falls into one of the following 10 categories:

1. Large household appliances;

2. Small household appliances;

3. IT & telecommunications equipment;

4. Consumer equipment;

5. Lighting equipment;

6. Electrical and electronic tools;

7. Toys leisure and sports equipment;

8. Medical devices;

9. Monitoring and control instruments; and

10. Automatic dispensers.

There are a number of exemptions including: equipment

specifically designed for national security or military use;

equipment which is only a component of a larger item that

does not fall within the scope of the Directive (e.g. a GPS sys-

tem built into a car); large-scale stationary industrial tools;

implanted and infected medical devices; and filament bulbs

and household luminaires.2

The aim of the Directive is to decrease the amount of waste

equipment and at the same time increase the level of recy-

cling. It seeks to achieve this in four ways.

� Separate collection of household WEEE – Member States are

obliged to ensure that at waste disposal centres (e.g. munic-

ipal garbage dumps) all household WEEE is separated from

other wastes. By 2007 all EU countries should be separately

collecting household WEEE at the annual rate of 4 kg per

inhabitant.

If a customer is replacing household WEEE with new sim-

ilar equipment the distributor of the new equipment is

obliged to take the WEEE (regardless of where it was origi-

nally purchased). This can either be in-store or via a distrib-

utor compliance scheme. Online vendors are also caught by

this requirement.

� Extended producer responsibility – a producer must meet the

cost of compliance in relation to all household equipment

1 For an overview of the impact of the RoHS Directive (2002/95/EC) in the UK see ‘‘Will IT in the UK become greener in 2006? – the im-pact of the new UK Regulations on the use of hazardous substances in electrical and electronic equipment’’, Turner and Callaghan,[2006] 22 CLSR 172.

2 See particularly Article 2(3) – military equipment; Article 2(1) – components; Annex 1A paragraph 6 – large-scale stationary industrialtools; Annex 1A – medical waste; and Annex 1B – filament bulbs and household luminaires.0267-3649/$ – see front matter ª 2006 Herbert Smith LLP. Published by Elsevier Ltd. All rights reserved.doi:10.1016/j.clsr.2006.11.007

c o m p u t e r l a w & s e c u r i t y r e p o r t 2 3 ( 2 0 0 7 ) 7 3 – 7 674

it puts on the market after 13 August 2005. In addition it

must also pay a share of the cost of compliance for the back-

log of all historic (i.e. pre 13 August 2005) household WEEE.

This obligation applies regardless of whether it was the ac-

tual producer of the historic WEEE.

A different regime applies in relation to non-household

equipment. If the equipment was put on the market after

13 August 2005 the producer will be liable for the costs of

compliance. The producer is, however, permitted to pass

those costs onto the user. Any non-household equipment

put on the market before 13 August 2005 is the responsibility

of the user. EU countries have the option to require that the

producer meet some or all of the cost of compliance for that

historic WEEE if the producer is providing the user with re-

placement equipment.

� Labelling and product information – producers must mark all

equipment with a crossed out wheeled bin symbol to indi-

cate that it should not be included in general waste. They

must also produce technical information to assist treatment

and reuse of the equipment once it becomes waste.

� Reporting and enforcement – EU countries are required to keep

a register of producers and collect annual information on

the amount of equipment put on the market and the

amount of WEEE that is processed. Specific targets for recov-

ery and reuse have been set for the different categories of

equipment.

2. Implementation in the UK

2.1. The general approach

The WEEE Directive required that all EU countries have na-

tional implementing legislation in place by 13 August 2004.

The UK has postponed implementation several times. In mid

2005 the EU finally lost patience with the delays and issued

a formal notice to the UK requesting an explanation for the

delay.

After several false starts, the UK’s Department of Trade

and Industry (DTI) released its ‘‘final’’ consultation paper in

late July 2006. It included the draft national Waste Electrical

and Electronic Equipment Regulations 2006 (‘‘the draft Regula-

tions’’).3 The consultation closed in mid-October 2006.4 The

draft Regulations are due to commence on 1 January 2007,

but not all provisions will come into force until 1 July 2007.

The UK has adopted a copy-out approach when imple-

menting the key obligations and definitions in the Directive.

As will be discussed below this unfortunately repeats some

of the ambiguities in the Directive and creates some practical

difficulties for implementation.

3 ‘‘WEEE Consultation Part I: Draft implementation of Directives2002/96/EC and 2003/108/EC on Waste Electrical and ElectronicEquipment’’ DTI, July 2006. http://www.dti.gov.uk/consultations/page32448.html.

4 At the time of submission of this article in early November2006, the results of the DTI consultation were not yet publiclyavailable. The DTI was not expected to make any substantialchanges to either the draft implementing Regulations or the ac-companying guidance.

2.2. The collection system

The Directive leaves Member States free to determine the pre-

cise structure of the WEEE collection scheme. Belgium, the

Netherlands and Sweden, which all had collection schemes

in place prior to the WEEE Directive, have a single national col-

lection scheme. Typically these are run by not-for-profit com-

panies established by the relevant trade associations. The UK

has instead opted for the competitive clearing house model

that has been favoured by 16 of the 25 EU countries.

By placing the reporting, financing and treatment compli-

ance obligations on the operators of the producer compliance

schemes, rather than directly on each individual producer, the

UK government has considerably reduced its administrative

burden. The UK’s Environment Agency estimate that while

there will be 5750 producers that need to be registered in the

UK there is likely to be only 30 producer compliance schemes.5

The UK regulator will recover its operational costs via registra-

tion fees on producer compliance schemes, producers, reproc-

essors and exporters.

Under the UK’s draft Regulations every producer (this term

is discussed below) must be a member of a producer compli-

ance scheme. Producers must provide the operator of the

scheme with details of the quantity and tonnage of all equip-

ment put on the market for each of the 10 WEEE categories.

Those details must be provided for both household and non-

household equipment.

The producer compliance schemes will be established by

the private sector. The operator of each scheme must register

its members with the appropriate national regulator (in

England and Wales this will be the Environment Agency) and

provide it with details of all equipment put on the market by

scheme members. The national regulator will determine the

household WEEE quota for each producer compliance scheme.

The scheme operator rather than the individual producers is

responsible for financing the costs of compliance of both the

household WEEE quota allocated to it by the national regulator

and any non-household WEEE for which its members are

responsible.6 In practice of course, the scheme operator will

recover those costs from its members.

The operator must ensure that the WEEE for which it is re-

sponsible is treated using the best available treatment, recovery

and recycling techniques (BATRRT) either in the UK at an

authorised facility or overseas via an accredited exporter. The

scheme operators will file compliance reports with the national

regulator and these must be substantiated by evidence notes

from the relevant authorised treatment facility, accredited

reprocessor or accredited exporter. Despite being obliged to be

a member of acompliancescheme,aproducermaychooseto in-

dependently collect and treat WEEE from its own customers.

Such producers will still need to provide evidence of compliance

to the operator of their compliance scheme.

There will also be an official exchange established for the

trading of evidence notes. This will enable those who have

5 DTI ‘‘Partial Regulatory impact assessment for the WEEE Reg-ulations’’, July 2006, paragraph 10.

6 Under the UK’s draft Regulations the producer is free to passthe costs of compliance for non-household WEEE back to theuser even if the producer is providing new similar equipment.

c o m p u t e r l a w & s e c u r i t y r e p o r t 2 3 ( 2 0 0 7 ) 7 3 – 7 6 75

exceeded their quotas to sell the relevant evidence notes to

those who have failed to meet their compliance targets. Pri-

vate trading in evidence notes will also be permitted.

While the draft Regulations require that WEEE is treated

using best available treatment, recovery and recycling tech-

niques the precise detail of what that requires is the subject

of further separate consultation. The existing Waste Manage-

ment Licensing Regulations 1994 are to be amended7 and sepa-

rate guidance issued on the treatment of WEEE.8

2.3. The definition of producer

The UK’s draft Regulations have copied the following defini-

tion of producer directly from the Directive. Producer is

defined as any person who:

(i) manufactures and sells electrical and electronic equip-

ment under his own brand;

(ii) resells under his own brand equipment produced by other

suppliers, but for these purposes a reseller shall not be

regarded as the producer if the brand of the producer ap-

pears on the equipment, as provided for in (i); or

(iii) imports or exports electrical and electronic equipment on

a professional basis into a Member State, Norway, Iceland

or Liechtenstein (i.e. an EEA country).

In the situation where equipment is imported by a UK

based distributor (i.e. the entity that sells to the end user)

from a manufacturer in another EU country it is not clear

from the third limb of the definition whether one or both

parties are potentially liable for compliance in the UK. This

will mean that potentially both could be required to be regis-

tered in the UK in relation to the same equipment and both

will be financially liable in the UK when it becomes waste.

The view taken in the DTI Guidance contained in its July 2006

consultation paper is that only one of these parties needs to be

registered as the producer. The DTI’s default position is that

theUKbaseddistributor mustcomplywiththedraft Regulations

unless the non-UK exporter chooses to register as the producer.

The Guidance does not discuss who is liable for compliance

where a UK business (which is not a distributor) imports

equipment from another EU country before on-selling it to

a distributor in a third EU country. In that situation if the

same broad definition of producer is adopted in other EU

countries, the UK business may have compliance obligations

in more than one country in relation to the same equipment.

Further practical difficulties may arise due to the require-

ment to label equipment with the name of the producer. As

the equipment moves into or out of the UK from another

EEA country different national interpretations of ‘‘producer’’

may mean the equipment needs to be re-labelled. This is at

7 The Department for Environment, Food and Rural Affairs con-sultation on Waste Management Licensing. http://www.defra.gov.uk/corporate/consult/weee-article6/index.htm closed on 19August 2006 and includes draft Guidance on BATRRT.

8 The Environment Agency consultation www.environment-agency.gov.uk including draft ‘‘Guidance on the Treatment ofWaste Electrical and Electronic Equipment (WEEE)’’ closed on 29October 2006.

odds with the concept of an EU internal market where goods

can move freely between Member States.

Although there has been calls from some producers for co-

ordination between national regulators or alternatively for the

EU to take a central co-ordination role to avoid such overlaps

in national legislation neither solution is likely to be in place in

the short term.9

2.4. The collection targets

Meeting the 2007 target date for the annual collection of 4 kg of

household WEEE for each inhabitant will be difficult to

achieve for the UK as it will not have legislation in place and

fully operational until mid 2007. Even after 2007 the UK may

struggle as it does not have the long established recycling in-

frastructure and culture of countries such as Belgium, the

Netherlands and Sweden. Even prior to the Directive being

passed in 2002 all of those countries were meeting or exceed-

ing that annual collection target and had substantial capital

reserves in place for future recycling.

The Environment Agency has acknowledged that while the

UK already has the capacity to treat some of the categories of

WEEE it is still developing its capacity to process household

WEEE.10

2.5. Grey area products

Annex 1B of the Directive, which is repeated in Schedule 2 of

the draft Regulations, provides a long list of products which

fall within the 10 categories of regulated equipment. That

list is not exhaustive as the WEEE Directive is an ‘‘environ-

mental’’ Directive rather than a Single Market Directive. There

is scope for different national interpretations on whether

a product that is not specifically listed nonetheless falls within

one of the 10 categories. There is similarly also scope for dif-

fering national interpretations of the exemptions.

Even where it is clear that the equipment is regulated there

is still scope for differences in national interpretation as to

whether the equipment is for a household or non-household

purpose.11 This is commercially significant as it is only if it

is non-household WEEE that the producer can pass the finan-

cial cost of compliance on to the user.

The EU has provided some guidance via its Technical Advi-

sory Committee and issuing ‘‘Frequently Asked Questions’’,

but given the constantly evolving nature of electrical and elec-

tronic equipment it has not attempted to provide a definitive

list of equipment that is regulated by the WEEE Directive.

The DTI consultation paper has recognised these issues

need to be resolved but merely recommends that if a producer

is in doubt they should seek clarification from their trade or

9 ‘‘Implementation of the Waste Electric and Electronic Equip-ment Directive in the EU’’, European Commission Joint ResearchCentre, 2006, http://www.jrc.es/home/pages/detail.cfm?prs¼1408.10 ‘‘WEEE – from Directive to Delivery’’, a presentation by the UK

Environment Agency at the UK Environmental Law Associationseminar in London on 16 July 2006.11 The definition of ‘‘waste from private households’’ includes

WEEE from a business which because of its nature or quantityis similar to that from a private household.

c o m p u t e r l a w & s e c u r i t y r e p o r t 2 3 ( 2 0 0 7 ) 7 3 – 7 676

business association or the DTI’s Sustainable Development

and Regulation Directorate.

2.6. Putting equipment ‘‘on the market’’

As discussed the liability for treating WEEE differs depending

on whether the equipment was originally ‘‘put on the market’’

prior to, or after, 13 August 2005. That phrase could potentially

mean put on the market anywhere in the EU or put on the rel-

evant national market. Under either of those interpretations it

could also mean the point in time when the goods arrive in the

jurisdiction or if they then pass through a distribution chain it

could mean it does not occur until the equipment is eventually

offered for sale to the user.

The meaning of this phrase is also important in the UK

context as the DTI’s Guidance states that an important consid-

eration in determining if a business is regulated as a producer

is whether it has put equipment ‘‘on the market’’ in the UK.

Although putting equipment on the market is a phrase that

is used throughout the UK’s draft Regulations, it is not defined

in the draft Regulations (or in the WEEE Directive).

The DTI Guidance12 has instead adopted the EU’s interpre-

tation of the similar phrase, ‘‘placing on the market’’ which

states that it occurs at the time when a product is ‘‘made avail-

able for the first time. This is considered to take place when

a product is transferred from the stage of manufacture with

the intention of distribution or use on the Community

market.’’13 Unfortunately the EU’s definition of that phrase

is then qualified by a number of inconsistent exceptions.

The result is that in the UK we are still left with an unclear

set of parameters for determining when equipment is put on

the market and also which entity in a distribution chain is re-

sponsible for compliance.

12 The DTI Guidance paragraph 156.13 See paragraph 2.3. of the EU’s ‘‘Guide to the implementation of

Directives based on the new approach and the global approach’’:http://europa.eu.int/comm/enterprise/newapproach/legislation/guide/document/1999_1282_en.pdf.

2.7. Director and third party liability

Although not specifically required by the WEEE Directive, the

UK’s draft Regulations include a broadly worded director’s li-

ability clause. If a company contravenes the UK draft Regula-

tions any director, manager, secretary or person acting in

a similar capacity will also be liable if the offence was commit-

ted with their consent, connivance or due to their neglect.

This extension of liability will be of concern to company direc-

tors given the unclear scope of the draft Regulations.

3. Conclusion

Most of the remaining issues in the UK’s draft legislation arise

due to the very broad wording of the key definitions of ‘‘pro-

ducer’’ and ‘‘electrical and electronic equipment’’ in the Direc-

tive which have been copied straight into the UK implementing

legislation. Those issues are exacerbated in the UK as unlike

some of the other EU countries it does not have a long estab-

lished comprehensive recycling scheme. This means that

manufacturers, importers, exporters, sellers and resellers of

equipment are unclear as to exactly how the new legislation

will be enforced in practice by the UK government. It is likely

that it will take some time after the UK scheme has been in

place before the gaps in the legislation are completely filled

by the government’s still evolving enforcement policy.

Mark Turner, Report Correspondent, Partner, (mark.turner@her

bertsmith.com) and Dominic Callaghan, Associate (Australian

qualified) (dominic.callaghan@herbertsmith.com) from the London

office of Herbert Smith LLP.