DigitalEurope Position Paper WEEE Recast

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13 July 2009

DIGITALEUROPE PRELIMINARY RESPONSE TO THE EUROPEAN

COMMISSION PROPOSAL FOR A REVISED DIRECTIVE OF THE

EUROPEAN PARLIAMENT AND OF THE COUNCIL ON WASTE

ELECTRICAL AND ELECTRONIC EQUIPMENT (WEEE)

DIGITALEUROPE has been delighted to play an active and positive role in the WEEE

Directive review process. DIGITALEUROPE looks forward to working closely with the

Commission, Parliament and Council to improve certain parts of the text, in particular

regarding the following important elements:

1. Collection targets and responsibilities

2. Harmonisation of scope, definitions and registration

3. Classification of Business to Business and Business to Consumer WEEE

4. WEEE v. used-eee shipments

5. Visible Fee

6. Individual Producer Responsibility

SUMMARY

Collection Targets and Responsibilities:

• It will be impossible for Producers to assume responsibility for the 65% collection

target as there are massive flows of WEEE outside the producer owned WEEE

systems.

• Instead the Directive should ensure that 100% of WEEE is recycled according to the

requirements of Annex II of the Directive and that all WEEE is accounted for.

• Member states are in control of the key instruments to both organize and enforce the

achieving of the collection targets.

• The role and responsibilities of producers should be focussed on achieving the

recovery and treatment targets as stated in Article 11.

Harmonisation of Scope, Definitions and Registration

• Shifting the WEEE annexes on scope to RoHS while keeping Article 175 as the sole

legal basis for the WEEE Directive does nothing to resolve different interpretations of

scope between various Member States.

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• In order to ensure a uniform scope across the EU without any divergence between

Member States, the Scope section and definitions of “EEE” and “WEEE” should have

Article 95 as their legal basis.

Classification of Business to Business and Business to Consumer WEEE

• The percentage of products that are B2C varies between producers dependent on

their business model and market niche. Some producers are focussed on the B2C

market; others sell to both B2B and B2C, whilst others sell largely or solely to the B2B

market.

• Therefore it would not be fair to establish a single one size fits all classification into

B2C and B2B.

• The best way to establish consistency across the EU is to enable producers to

determine whether a product is declared as B2B WEEE based upon the intended end

user of the product and according to criteria developed by DIGITALEUROPE.

WEEE v. used-eee shipments

DIGITALEUROPE is concerned that setting provisions dealing with transboundary

movements of used EEE within the WEEE Directive, which is based on Article 175 of

the EC Treaty, could lead to non harmonised requirements across Member States,

thus inhibiting the free movement of goods and the operation of the single market.

WEEE shipments as such are already covered under the Waste Shipments

Regulation and dedicated sections in the Waste Shipment Guidelines. In the recast, it

would be therefore more appropriate to use the expression “shipments of used EEE”

(with distinction between “for direct re-use” and “for repair with the intention of re-

use”) instead of “shipments of WEEE”.

In order to have harmonised requirements across Member States, we are proposing

to use of Article 95 of the EC Treaty as the legal basis for the new proposals in Article

20(2) and Annex I.

Streamlined and proportionate requirements are needed for EEE that is being sent to

and from producer evaluation or test centres and repair centres. These products

should not be classified as WEEE as long as the shipment is accompanied by a

declaration that none of the material or equipment within the consignment is waste as

defined in the WFD, and sufficient packaging is provided to protect it from damage

during transportation.

Visible Fee

Visible Fees may be appropriate as a transparent financing method for products for

which the cost of collection and recycling is substantial in comparison to the product

selling price.

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Visible Fees may be inappropriate for products, where the costs associated with the

administration of the fee far exceed the actual cost of recycling the products and

where the use of Visible Fees places an additional administrative burden on

producers.

DIGITALEUROPE calls on the European Parliament and Council to ensure that the

visible fee will remain voluntary so to ensure that no excessive burden will be placed

on businesses that do not need the visible fee to cover cost of recycling.

Individual Producer Responsibility

DIGITALEUROPE shares the view that Article 12.2 is an appropriate legal framework

for the implementation of producer responsibility for WEEE.

The European Institutions should ensure that the choice between individual and

collective solutions, as defined by Article 8.2 of the WEEE Directive, should be

properly transposed into national legislation by Member States.

In the implementation of article 8, it should be made mandatory for Member States to

give producers the option to choose between individual or collective solutions based

on their product portfolio and business models used as long as transparency of

financing is ensured.

A step towards IPR solutions is the possibility to allow Producers to collect products,

of an equivalent type as sold by the producer, directly from end users. It should be

possible to deduct these volumes from the obligation that the company has.

Table of contents:

Summary ............................................................................................................................... 1

1- Collection Targets and Collection Responsibilities.......................................................... 4

2- Scope and Definitions of EEE/WEEE ............................................................................. 9

3- Classification of Business to Business and Business to Consumer WEEE ....................12

4- WEEE v. used-eee shipments .......................................................................................15

5- Visible Fee ....................................................................................................................25

6- Individual Producer Responsibility .................................................................................27

THE MEMBERSHIP OF DIGITALEUROPE ..........................................................................29

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1- COLLECTION TARGETS AND COLLECTION RESPONSIBILITIES

1- 1- Commission Proposal

The Commission Proposal will establish new collection targets. The target is set at a

rate of 65% of WEEE placed on the market to be achieved by 2016. The target is to

be based on previous two years sales (Article 7).

Producers to be made responsible for meeting collection targets, rather than Member

States as at present.

Producers will be „encouraged‟ to take responsibility for financing household

collection facilities (Article 12).

Article 7

Collection rate

1. Without prejudice to Article 5(1), Member States shall ensure that producers or third

parties acting on their behalf achieve a minimum collection rate of 65%. The collection rate is

calculated on the basis of the total weight of WEEE collected in accordance with Articles 5

and 6 in a given year in that Member State, expressed as a percentage of the average

weight of electrical and electronic equipment placed on the market in the two preceding

years in that Member State. This collection rate shall be achieved annually and starting in

2016.

Article 12

Financing in respect of WEEE from private households

1. Member States shall ensure that, producers provide at least for the financing of the

collection, treatment, recovery and environmentally sound disposal of WEEE from private

households deposited at collection facilities set up under Article 5(2). Member States, where

appropriate, shall encourage producers to finance all the cost occurring for collection

facilities for WEEE from private households.

1- 2- DIGITALEUROPE View

Producers should not be made responsible for meeting collection targets or financing

collection.

Existing infrastructure such as municipalities should retain the primary responsibility

for collection.

Member States should retain the responsibility for meeting collection targets.

Collection targets should be replaced by „tonnage treated according to Annex 2‟ and

Member States should ensure that all WEEE treated is accounted for and that the

minimum treatment requirements are met.

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1- 3- Recommended Amendment to Commission Proposal

Article 7

Collection Responsibilities

1. Without prejudice to Article 5(1), Member States shall actively encourage and enforce

separate collection of all WEEE. Further, Member States shall ensure that all separately

collected WEEE undergoes treatment according to Article 8 of this Directive and is reported

to the Member State in accordance with Article 16 of this Directive. producers or third parties

acting on their behalf achieve a minimum collection rate of 65%. The collection rate is

calculated on the basis of the total weight of WEEE collected in accordance with Articles 5

and 6 in a given year in that Member State, expressed as a percentage of the average

weight of electrical and electronic equipment placed on the market in the two preceding

years in that Member State. This collection rate shall be achieved annually and starting in

2016.

Article 12


1. Member States shall ensure that, producers provide at least for the financing of the

collection, treatment, recovery and environmentally sound disposal of WEEE from private

households deposited at collection facilities set up under Article 5(2). Member States, where

appropriate, shall encourage producers to finance all the cost occurring for collection

facilities for WEEE from private households.

1- 4- Key Issues for Policy Makers

There are large flows of WEEE outside the WEEE system which show that

collection rates are higher than previous studies suggest and that there are many

other stakeholders that have a great influence on the volumes collected and

recycled.

In April 2008 the combined Dutch WEEE recycling systems published a research

report 1that showed that out of a total of 18.5 Kg of WEEE that is generated per

inhabitant per year, 14.8 kg (80%) is recycled. However, only 5.7kg (31%) is

recycled by the producer funded WEEE systems.

1 Witteveen+Bos (2008) Onderzoek naar complementaire afvalstromen voor e-waste in Nederland, 10 April 2008

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Figure 1 Mass Balance Household WEEE in Netherlands

It would be impossible for Producers to achieve the collection target as there are

no obligations for other stakeholders such as municipalities or B2B end users to

pass their WEEE onto producers

The European Commission proposal could lead to profiteering and for the costs of

WEEE compliance to dramatically increase with no environmental benefit. Under

the Commission proposal it is almost certain Municipalities and B2B end users will

continue to sell their WEEE to third party actors who can then sell this onto

producers at a later date when they need to comply with the collection target. This

will mean that producers will be forced to pay a much higher price for compliance

without any environmental benefit.

In the UK profiteering led to costs being inflated by 36 per cent for IT and 50 per

cent for display equipment. The Commission‟s proposal could cost producers an

extra €4.6 billion increasing the total costs of the WEEE Directive to €10.2 billion.

Waste Bin

2kg (13.5%)

Recycling

Reuse and

Installers

3.6kg (19.5%)

Consumer

18.5 kg

Material Flow WEEE

(NL)

Take-Back System (on behalf of producers)

5.7kg (30.8%)

Municipal

Collection

Point

Retail

Collection

Point

Retailers

3kg (16.2%)

14.8 kg

80%

Municipal

Leakage

2.5kg (13.5%)

Retailers

(uncertain)

1.7kg (9.2%)

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Basing collection targets on previous years sales is inadvisable. Large increases

in sales leads to the setting of a collection target that could not be achieved due to

insufficient WEEE being available in the waste stream.

Large decreases in sales would lead to a lower then desirable collection target.

At the time of the first WEEE Directive the European Commission acknowledged

that Producers should not be made responsible for household collection targets

as „there is no evidence that attributing the collection of WEEE from private

households to producers would have an impact on the design of the equipment‟.

The original goal of the Directive was to improve the design of products to ensure

products would become more recyclable. Collection of waste has no direct

relation to the design of a product; this means that by changing the design of a

product a producer will not be able to influence the cost of operating the collection

point.

Increasing collection targets is not necessary as Producers are collecting and

recycling all separately collected WEEE regardless of whether the collection

target has been exceeded.

New Member States of the EU (EU12) will be harder hit by the new collection

targets.

The success of meeting collection targets depends on factors outside the control

of producers, ranging from availability of collection points to the volume of WEEE

being generated and made available by the end user.

The current collection target is being exceeded in most MS.

Data used by UNU Report to conclude that higher collection targets are needed is

unreliable and underestimates the volumes of WEEE collected and recycled by

non producer organisations.

1- 5- Key Questions

1. Producers face problems actually getting access to WEEE. How can producers meet

a collection target when municipalities are able to continue to sell WEEE to other

organisations for recycling and treatment? What measures will ensure that these

flows of WEEE are handed onto Producers?

2. How will the costs of collection be controlled to prevent municipalities and others from

profiteering from WEEE?

3. How can producers meet a target based on previous year‟s sales when there is

insufficient material in the waste stream?

4. In 2000 the Commission said: „there is no evidence that attributing the collection of

WEEE from private households to producers would have an impact on the design of

the equipment‟. Why has this position changed?

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5. Has the Commission considered alternative solutions to this problem such as making

sure that 100% of WEEE is collected and handed onto producers, or taking measures

to ensure all WEEE is properly reported and treated?

6. Has the Commission investigated the impacts of a market where producers would

have to buy back equipment from owners to meet their collection targets? What could

be the legislative measures to be taken to prevent producers to be obliged to accept

buying back WEEE at any cost?

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2- SCOPE AND DEFINITIONS OF EEE/WEEE


The Commission Proposal recognized that there is lack of clarity on the products

covered by the current WEEE Directive and their categorisation, with different

interpretations of the current provisions made by different Member States and

stakeholders;

Annex I, which lists the categories of products in scope, would be transferred to the

RoHS Directive and referenced in the recast WEEE Directive

An additional exemption is added for: “Equipment which is not intended to be placed

on the market as a single functional or commercial unit.” (see Article 2 Section 3(c))

Article 2

Scope

1. This Directive shall apply to electrical and electronic equipment falling under the

categories set out in Annex I of Directive 20xx/xx/EC (RoHS).

2. This Directive shall apply without prejudice to requirements of Community legislation on

safety and health, on chemicals, in particular Regulation (EC)1907/2006 as well as of ï

specific Community waste management or product design legislation.

3. This Directive does not apply to any of the following equipments:

(a) Equipment which is necessary for the protection of the essential interests of the

security of Member States, including arms, munitions and war material intended for

specifically military purposes.

(b) Equipment which is specifically designed as part of another type of equipment that

does not fall within the scope of this Directive and can fulfill its function only if it is part of that

equipment.

(c) Equipment which is not intended to be placed on the market as a single functional or

commercial unit.

(d) Filament bulbs.

(e) Implanted and infected medical devices.

Article 3

Definitions

For the purposes of this Directive, the following definitions shall apply:

(a)„electrical and electronic equipment‟ or „EEE‟ means 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 falling

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under the categories set out in Annex I of Directive 20xx/xx/EC (RoHS) and designed for use

with a voltage rating not exceeding 1000 Volt for alternating current and 1500 Volt for direct

current;

(b)„waste electrical and electronic equipment‟ or „WEEE‟ means electrical or

electronic equipment which is waste within the meaning of Article 3(1) of Directive

2008/xx/EC on waste including all components, subassemblies and consumables which are

part of the product at the time of discarding;


Maintaining Article 175 as the legal basis for the provisions defining the scope of the

Directive means that Member States will be able to extend the scope at wish. Thus

the transfer of the Annexes on scope to the RoHS Directive would not improve the

current situation.

There are already existing ambiguities in Annex I that are not sufficiently addressed in

the WEEE/RoHS FAQ, and there is no mechanism that exists which would enable

Member States to agree on common interpretations. Indeed, there are documented

cases of varying scope interpretation between Member States. In order to ensure a

uniform scope across the EU without any divergence between Member States, the

Scope section and definitions of “EEE” and “WEEE” should have Article 95 as their

legal basis.

Additional clarification is needed from the Commission on the intent of the added

exemption in Article 2, Section 3(c) because of its ambiguity and its potential use to

actually expand the scope of the Directive beyond current practices. As a matter of

fact, the lack of a clear definition of “function” in the WEEE/ROHS FAQs actually gave

rise to diverging interpretations and scope determinations throughout the Member-

States. Additionally, the concept of “single functional unit”, which is not used in the

current Directive, risks leading to further legal uncertainty due to the lack of a precise

definition.

In today‟s global economy, the WEEE Directive cannot effectively function if the

scope varies between Member States.

2- 3- Recommended Amendments to the Commission Proposal

In order to ensure a uniform scope across the EU without any divergence between

Member States, the Scope section and definitions of “EEE” and “WEEE” should have

Article 95 as their legal basis.

Further, a defined procedure for addressing scope questions is necessary either by

regular updating of the WEEE/RoHS FAQ or some procedure for submitting a

question directly to the Commission or to the Regulatory Committee. The conclusion

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reached using this procedure must apply throughout the EU. The proposal should be

modified to include a formal procedure for addressing scope questions that provides

legal certainty that the answer will apply uniformly throughout the EU.

Commission Proposal Recommended Amendment

THE EUROPEAN PARLIAMENT AND

THE COUNCIL OF THE EUROPEAN

UNION,

Having regard to the Treaty establishing

the European Community, and in particular

Article 175(1) thereof,

THE EUROPEAN PARLIAMENT AND

THE COUNCIL OF THE EUROPEAN

UNION,

Having regard to the Treaty establishing

the European Community, and in particular

Article 175(1) thereof and Article 95(1)

thereof in relation to Articles 2, 3, 4, 6,

7, 10, 11 and 12 of this Directive,

Recital 1

The objectives of the Community's

environment policy are, in particular, to

preserve, protect and improve the quality

of the environment, protect human health

and utilise natural resources prudently and

rationally. That policy is based on the

precautionary principle and principles that

preventive action should be taken, that

environmental damage should as a priority

be rectified at source and that the polluter

should pay.

Recital 1

The objectives of the Community's

environment policy are, in particular, to

preserve, protect and improve the quality

of the environment, protect human health

and utilise natural resources prudently and

rationally. That policy is based on the

precautionary principle and principles that

preventive action should be taken, that

environmental damage should as a priority

be rectified at source and that the polluter

should pay. The legal base is therefore

Article 175(1) of the Treaty. However, it

is also appropriate to take measures at

Community level on the basis of Article

95(1) of the Treaty to harmonise certain

requirements and so to ensure the

smooth functioning of the internal

market and avoid distortion of

competition within the Community.

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3- CLASSIFICATION OF BUSINESS TO BUSINESS AND BUSINESS TO CONSUMER WEEE


The WEEE Directive establishes different financing mechanisms for WEEE from

private households (commonly referred to as “B2C”) and WEEE from users other

than private households (commonly referred to as “B2B”).

The European Commission proposal for revising the WEEE Directive states that the

classification of WEEE as B2B or B2C will be determined by the comitology process.

Article 2

Scope

4. WEEE shall be classified as waste from private households or from users other than

private households. The classification of types of WEEE into these categories shall be laid

down. This measure designed to amend non-essential elements of this Directive, by

supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny

referred to in Article 18(3). This classification among others shall be based on assessing the

share of the equipment sold to private households or businesses.


The percentage of products that are B2C varies between producers dependent on

their business model and market niche. Some producers are focussed on the B2C

market; others sell to both B2B and B2C, whilst others sell largely or solely to the B2B

market.

Therefore it would not be fair to establish a single one size fits all classification into

B2C and B2B.

There are many products within WEEE that are B2B and will never enter the

municipal waste stream. Examples include servers, large scale printers, networking

systems and halo video conference suites

In order to comply with the WEEE Directive, each producer must be able to

consistently and transparently classify its products as B2C or B2B.

Furthermore, it is crucial that compliance schemes, registers and authorities have the

same understanding regarding this classification approach. Currently, this is not the

case: Thus producers must verify the classification criteria for each register and

compliance scheme, which leads to large amounts of unnecessary administrative

work.

• DIGITALEUROPE believes that the best way to harmonise these definitions and

establish consistency across the EU is to enable producers to determine whether a

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product is declared as Business to Business WEEE based upon the intended end

user of the product and according to criteria developed by DIGITALEUROPE.

• This would reduce the amount of administrative work involved in complying with the

WEEE Directive and it would allow producers to determine during the product launch

under which financing regime the product would fall in all Member States.


Article 2

Scope

4. WEEE shall be classified by Producers as waste from private households or from

users other than private households. Producers shall declare EEE sold to private

households or sold to users other than private households when placing a product

on the market based on the intended end user of the product according to the

following criteria:

a) Evidence in the form of signed contract between the business user and the

Producer (or party representing the producer e.g. reseller under contract),

that clearly assigns responsibilities for end-of-life collection and treatment

costs, ensuring that the EEE will not be disposed of through municipal waste

streams,

or

b) EEE that due to its features is not used in private households and that will

therefore not be disposed of through municipal waste streams. This criterion

should be supported by at least one of the following criteria:

a) EEE that is operated by specialised software as for example an operating

system or system environment requiring a special configuration for

professional use.

b) EEE operating at a voltage or having a power consumption outside of the

range available in private households

c) EEE requiring professional licenses to operate, e.g. Base Stations requiring

the license of the telecommunication regulator

d) EEE of large size or weight requiring to be installed and de-installed or

transported by specialists

e) EEE which requires a professional environment and/or professional

education (e.g. medical X-ray equipment)

f) EEE in category 10 of Annex I of Directive 20xx/xx/EC (RoHS, COM

(2008)809/4)

g) EEE outside of the scope of the General Product Safety Directive for

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Consumer products

c) EEE provided to a consumer but by its nature once used has to be returned

to commercial facilities for processing and hence never appears in the

domestic waste stream. (for example one time use cameras.)

The classification of types of WEEE into these categories shall be laid down. This measure designed to amend non-essential elements of this Directive, by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 18(3). This classification among others shall be based on assessing the share of the equipment sold to private households or businesses.

3- 4- Key Questions

1. Can the Commission explain the different responsibilities for B2B and B2C WEEE as

they apply to both the 65% collection targets (ref Art 7) and the financial

responsibilities for recycling and treatment (ref Art 12 and 13)?

2. Producers face problems actually getting access to WEEE. How can producers meet

a collection target when B2B end users are able to continue to sell WEEE to other

organisations for recycling and treatment?

3. How does this potential escalation in costs reflect the objectives of the WEEE

Revision for simplification and reduction in financial burden?

4. Given that there are many products within WEEE that are B2B and will never enter

the municipal waste stream, is classifying category 3 as 100% B2C justifiable?

5. How can the Commission establish a single classification of B2B and B2C for

category3, given that the percentage of products that are B2C and B2B varies

between producers dependent on their business model and market niche?

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4- WEEE V. USED-EEE SHIPMENTS

4- 1- Overview

At an EU level transboundary WEEE and used EEE streams are currently dealt with in a

series of regulations and non-mandatory guidelines. Relevant instruments include the WEEE

Directive 2002/96/EC, the Regulation (EC) No 1013/2006 on shipments of waste (“Waste

Shipments Regulation” or “WSR”), Directive 2006/12/EC on waste, as amended (and to be

repealed from 12 December 2010) by the revised Directive 2008/98/EC (“Waste Framework

Directive” or “WFD”) and the relevant non legally binding guidelines regarding WEEE and

used EEE shipments agreed by the waste shipment correspondents (“Waste Shipment

Guidelines”);

These instruments clearly differentiate between shipments of WEEE (i.e. items destined for

treatment) and used EEE (i.e. items suitable for reuse), and set out requirements aimed at

promoting reuse of EEE whilst ensuring that WEEE is stored, transported and dealt with in a

way that doesn‟t harm the environment:

• The current WEEE Directive Article 6(5) permits WEEE being treated outside the

respective Member State or the Community provided that the shipment of WEEE is in

compliance with EU rules on the supervision and control of transboundary shipments

of waste;

• Transboundary movements of waste are currently regulated by the Waste Shipment

Regulation. This legislation gives effect to a number of important international

agreements and conventions (Basel Convention and the OECD decision on

transboundary movements of waste);

• The Revised Correspondents' Guidelines No 1 on shipments of WEEE represent the

common understanding of the Member State‟s authorities on shipments of used EEE

and WEEE, and how the Waste Shipment Regulation applies to shipments of

electronics. The guidelines apply as from 12 July 2007. Although the guidance

document has no legal status, it does represent a “sort of consensus” opinion at the

European level, and it can be considered that they are applied widely. Nevertheless,

there is no guarantee that every Member State will always use it, or will use it in the

same way. It should therefore be treated with some caution. Only the European Court

of Justice can make legally binding interpretations of Community legislation and

related guidance.

4- 2- Commission Recast WEEE Proposals

The Commission‟s proposal for a recast WEEE Directive puts greater emphasis on the

inspection of shipments of WEEE and used EEE:

• The recast Article 10 implements some required legal adaptations to regulatory

developments both at EU and international level. For WEEE being treated outside the

Community it proposes to define criteria for the assessment of equivalent treatment

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conditions to the requirements in the Directive (to the decided at a later stage through

the Comitology procedure);

• The recast Article 20(1) requires that as a minimum Member States should put in

place a regime and carry out appropriate inspections and monitoring to verify

compliance with the requirements of the Directive. Inspections should at least cover

the export of WEEE outside the Community in accordance with the WSR and the

operations of treatment facilities in accordance with the WFD and Annex 2 of the

recast Directive;

• In addition, the recast Article 20(2) requires Member States to closely monitor

shipments of used EEE in accordance with the criteria laid down in new Annex I to

ensure that the materials are not WEEE;

• Article 20(2) and Annex I aim at making the Waste Shipment Guidelines legally

binding;

• Finally, the recast Article 20(3) also empowers the Commission to adopt additional

rules on inspections and monitoring (or update the established requirements) at a

later stage (through the Comitology procedure);

4- 3- DIGITALEUROPE Views

DIGITALEUROPE supports the main underlying goals of the Commission‟s proposals,

namely ensuring proper treatment and shipment of WEEE and addressing flows of WEEE

exported under the guise of used EEE, thus reducing the negative environmental and health

impacts on third countries;

However, we believe the current text can be improved in a number of ways with a view to

achieving the stated goals:

• It is vital to ensure consistency between the recast WEEE Directive and the WSR and

associated guidelines to prevent confusion;

• the recast Article 20(2) and Annex I stipulate the monitoring requirements and

documentary evidence required from holders intending to ship or shipping used EEE,

and not WEEE. These provisions aim at making the specific sections of Waste

Shipment Guidelines dealing with used EEE legally binding. Although inextricably

linked, they do not refer to WEEE shipments as such however, which are covered

under the Waste Shipments Regulation and dedicated sections in the Waste

Shipment Guidelines. We therefore consider it to be more appropriate to use the

expression “shipments of used EEE” instead of “shipments of WEEE”;

• DIGITALEUROPE is concerned that setting provisions dealing with transboundary

movements of used EEE within the WEEE Directive, which is based on Article 175 of

the EC Treaty, could lead to non harmonised requirements across Member States,

thus inhibiting the free movement of goods and the operation of the single market.

We are proposing to use of Article 95 of the EC Treaty as the legal basis for the new

proposals in Article 20(2) and Annex I;

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• In line with the Waste Shipment Guidelines, difference should be made between used

EEE for direct re-use and used EEE for repair (for instance under warranty) with the

intention of re-use. Used EEE that is being sent by the producer, authorized retailer,

or customer for evaluation or testing and repair across borders to the producer or

producer‟s repair centres, and then returned to the customer or producer‟s swap pool,

should not be considered as WEEE as long as the shipment is accompanied by a

declaration made by the holder who arranges the transport of the used EEE that none

of the material or equipment within the consignment is waste as defined in the WFD,

and sufficient packaging is provided to protect it from damage during transportation,

loading and unloading;

• Streamlined and proportionate requirements are needed for EEE that is being sent to

and from producer evaluation or test centres and repair centres. Applying concepts

expressed in general and ambiguous terms, such as “evidence of evaluation or

testing in the form of a copy of the records (certificate of testing, proof of

functionality)” rather than helping to remove the legal ambiguities tends to exacerbate

them. The text is not entirely clear as to what kind of evaluation or testing (if any?)

items for repair with the intention of re-use need to undergo. We believe it is not

appropriate to require proof of evaluation or testing for used EEE which is specifically

being sent for evaluation or testing prior to repair. If after evaluation, a decision is

made not to repair and return the item to the customer so that it can be reused for its

original intended purpose, the equipment should be regarded as WEEE only when

that decision is made;

• Minimum standards for adaptations to scientific and technical progress in general and

consultations on additional inspections and monitoring rules in particular must be

guaranteed to enable all interested stakeholders to participate. We understand this is

somehow covered by the proposed recast Article 17. We would however recommend

that all measures necessary for the implementation of the Directive to be adopted

through the Comitology procedure be subject to prior consultation with relevant

stakeholders.

4- 4- Proposed Amendments

Proposed Recast WEEE Directive

COM(2008) 810 final

DIGITALEUROPE Proposed Amendments

THE EUROPEAN PARLIAMENT AND THE

COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the

European Community, and in particular Article

175(1) thereof,

THE EUROPEAN PARLIAMENT AND THE

COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the

European Community, and in particular Article

175(1) thereof, and Article 95(1) thereof in

relation to Articles […] and 20(2) and Annex

I of this Directive,

>> 18 of 29

Article 20

Inspection and monitoring

1. Member States shall carry out appropriate

inspections and monitoring to verify the proper

implementation of this Directive.

Those inspections shall at least cover exports

of WEEE outside the Community in

accordance with the Waste Shipment

Regulation and the operations at treatment

facilities in accordance with Directive

2008/xx/EC on waste and Annex II of this

Directive.

2. Member States shall carry out the

monitoring of shipments of WEEE in

accordance with the minimum monitoring

requirements in Annex I.

3. Additional rules on inspections and

monitoring may be laid down.

Those measures designed to amend non-

essential elements of this Directive, by

supplementing it, shall be adopted in

accordance with the regulatory procedure with

scrutiny referred to in Article 18(3)

Article 20

Inspection and monitoring

1. Member States shall carry out appropriate

inspections and monitoring to verify the proper

implementation of this Directive.

Those inspections shall at least cover exports

of WEEE outside the Community in

accordance with the Waste Shipment

Regulation and the operations at treatment

facilities in accordance with Directive

2008/98/EC on waste and Annex II of this

Directive.

2. Member States shall carry out monitoring of

shipments of used EEE in accordance with

the requirements in Annex I.

3. Additional rules on inspections and

monitoring may be laid down.





scrutiny referred to in Article 18(3).

ANNEX I

Minimum monitoring requirements for

shipments of WEEE

1. In order to distinguish between electrical

and electronic equipment and WEEE, where

the holder of the object claims that he intends

to ship or is shipping used electrical and

electronic equipment and not WEEE, Member

State authorities shall request the following to

back up this claim:

a) a copy of the invoice and contract relating to

the sale and/or transfer of ownership of the

electrical and electronic equipment which

states that the equipment is for direct re-use

and fully functional;

ANNEX I

Monitoring requirements for shipments of

used EEE

1. In order to distinguish between used

electrical and electronic equipment and WEEE,

where the holder arranging transboundary

transports of the object claims that he intends

to ship or is shipping used electrical and

electronic equipment and not WEEE, Member

State authorities shall, as appropriate, request

the following to back up this claim:

a) a copy of the invoice and contract relating to

the sale and/or transfer of ownership of the

used electrical and electronic equipment which

states that the equipment is for direct re-use

>> 19 of 29

b) evidence of evaluation or testing in the form

of a copy of the records (certificate of testing,

proof of functionality) on every item within the

consignment and a protocol containing all

record information according to point 2;

c) a declaration made by the holder who

arranges the transport of the electrical and

electronic equipment that none of the material

or equipment within the consignment is waste

as defined by Article 3(1) of Directive

2008/xx/EC on waste, and

d) sufficient packaging to protect the shipped

products from damage during transportation,

loading and unloading.

2. In order to demonstrate that the items being

shipped are used electrical and electronic

equipment rather than WEEE, Member States

shall require the following steps for testing and

record keeping for used electrical and

electronic equipment to be carried out:

Step1: Testing

a) Functionality should be tested and

hazardous substances should be evaluated.

The tests that should be conducted depend on

the kind of electrical and electronic equipment.

For most of the used electrical and electronic

equipment a functionality test of the key

functions is sufficient.

b) Results of evaluation and testing should be

recorded.

Step2: Record

a) The record should be fixed securely but not

permanently on either the electrical and

electronic equipment itself (if not packed) or on

the packaging so it can be read without

unpacking the equipment.

b) The record shall contain the following

information:

Name of item (Name of the equipment

according to Annex II and category according

and fully functional;

b) evidence of evaluation or testing in the form

of a copy of the records (certificate of testing,

proof of functionality) on every item within the

consignment and a protocol containing all

record information according to point 2;

c) a declaration made by the holder who

arranges the transport of the used electrical

and electronic equipment that none of the

material or equipment within the consignment

is waste as defined by Article 3(1) of Directive

2008/98/EC on waste, and

d) sufficient packaging to protect the shipped

products from damage during transportation,

loading and unloading.

2. Used EEE would not be considered

waste:

a) where the criteria in paragraph 1 (a) to (d)

are met and if it is fully functioning and is

not destined for any of the operations listed

in Annexes I and II of Directive 2008/98/EC

(recovery or disposal operations) and is

directly reused for the purpose for which it

was originally intended or presented for

sale or exported for the purpose of being

put back to direct reuse or sold to end

consumers for such reuse, or

b) where the criteria in paragraph 1 (c) and

(d) are met and

– if it is sent back as defective batches

for repair to the producer or repair

centres (e. g. under warranty) with

the intention of re-use; or

– if after repair, it is sent back for

reuse and is accompanied by a

declaration made by the holder

arranging the transport that the used

electrical and electronic equipment

within the consignment has been

repaired according to the repair

centres quality standards

>> 20 of 29

to Annex I of Directive 20xx/xx/EC (RoHS);

Identification Number of the item (type no.);

Year of Production (if available);

Name and address of the company

responsible for evidence of functionality;

Result of tests as described in step 1;

Kind of tests performed.

3. In addition to the document requested in

point 1, every load (e. g. shipping container,

lorry) of used electrical and electronic

equipment should be accompanied by a:

a) CMR document,

b) declaration of the liable person on its

responsibility.

4. In the absence of appropriate

documentation required in point 1 and 3 and

packaging, Member State authorities shall

presume that an item is hazardous WEEE and

presume that the load comprises an illegal

shipment. In these circumstances the relevant

competent authorities will be informed and the

load will be dealt with in accordance with

Articles 24 and 25 of the Waste Shipment

Regulation. In the majority of cases those

responsible for the shipment will have to take

back the waste to the country of dispatch at

their own expense and may be liable to a

criminal sanction. In those Member States

where the burden is on the state authorities to

prove the items are WEEE rather than

electrical and electronic equipment, absence

of the appropriate documentation and

packaging is likely to lead to significant delays

to the onward transport of the waste whilst the

necessary investigations are carried out to

establish the status of the items being

shipped.

3. In order to demonstrate that the items being

shipped are used electrical and electronic

equipment destined for direct re-use rather

than WEEE, Member States shall require the

following steps for testing and record keeping

for used electrical and electronic equipment to

be carried out

Step1: Testing

a) Functionality should be tested and

hazardous substances should be evaluated.

The tests that should be conducted depend on

the kind of electrical and electronic equipment.

For most of the used electrical and electronic

equipment a functionality test of the key

functions is sufficient.

b) Results of evaluation and testing should be

recorded.

Step2: Record

a) The record should be fixed securely but not

permanently on either the used electrical and

electronic equipment itself (if not packed) or on

the packaging so it can be read without

unpacking the equipment. Alternatively this

information may be attached to a batch of

products as opposed to attaching such

documentation to each and every product.

b) The record shall contain the following

information:

Name of item (Name of the equipment

according to…………);

Identification Number of the item (type no.);

Year of Production (if available);

Name and address of the company

responsible for evidence of functionality;

Result of tests as described in step 1;

Kind of tests performed.

4. In addition to the documentation requested

in paragraph 2, every load (e. g. shipping

>> 21 of 29

container, lorry) of used electrical and

electronic equipment should be accompanied

by a:

a) CMR document,

b) declaration of the liable person on its

responsibility.

5. In the absence of the appropriate

documentation required in paragraphs 2 and

4 and packaging, Member State authorities

shall presume that an item is hazardous WEEE

and presume that the load comprises an illegal

shipment. In these circumstances the relevant

competent authorities will be informed and the

load will be dealt with in accordance with

Articles 24 and 25 of the Waste Shipment

Regulation. In the majority of cases those

responsible for the shipment will have to take

back the waste to the country of dispatch at

their own expense and may be liable to a

criminal sanction. In those Member States

where the burden is on the state authorities to

prove the items are WEEE rather than used

electrical and electronic equipment, absence of

the appropriate documentation and packaging

is likely to lead to significant delays to the

onward transport of the waste whilst the

necessary investigations are carried out to

establish the status of the items being shipped

Article10

Shipments of WEEE

1. The treatment operation may also be

undertaken outside the respective

Member State or the Community

provided that the shipment of WEEE is

in compliance with Regulation (EC) No

1013/2006 of the European Parliament

and of the Council of 14 June 2006 on

the shipments of waste.

2. WEEE exported out of the Community

Article10

Shipments of WEEE

1. The treatment operation may also be

undertaken outside the respective

Member State or the Community

provided that the shipment of WEEE is

in compliance with Regulation (EC) No


and of the Council of 14 June 2006 on

the shipments of waste.

2. WEEE exported out of the Community

>> 22 of 29

in line with Regulation (EC) No

1013/2006 on shipments of waste and

Commission Regulation

(EC) No 1418/2007 of 29 November 2007

concerning the export for recovery of certain

waste listed in Annex III or Annex IIIA to

Regulation (EC) No 1013/2006 of the

European Parliament and of the Council to

certain countries to which the OECD Decision

on the control of transboundary movements of

wastes does not apply shall only count for the

fulfilment of obligations and targets of Article

11 of this Directive if the exporter can prove

that the treatment took place under conditions

that are equivalent to the requirements of this

Directive.

3. Detailed rules for the implementation of

paragraph 1 and 2, in particular criteria

for the assessment of equivalent

conditions, shall be laid down.






in line with Regulation (EC) No

1013/2006 on shipments of waste and

Commission Regulation (EC) No

1418/2007 of 29 November 2007

concerning the export for recovery of

certain waste listed in Annex III or

Annex IIIA to Regulation (EC) No


and of the Council to certain countries

to which the OECD Decision on the

control of transboundary movements of

wastes does not apply shall only count

for the fulfilment of obligations and

targets of Article 11 of this Directive if

the exporter can prove that the

treatment took place under conditions

that are equivalent to the requirements

of this Directive.

3. Detailed rules for the implementation of

paragraph 2, in particular criteria for the

assessment of equivalent conditions,

shall be laid down.






4. Before rules are adopted pursuant to

paragraph 3, the Commission shall

inter alia consult producers of

electrical and electronic equipment,

recyclers, treatment operators,

environmental organisations and

employee and consumer

associations. Comments shall be

forwarded to the Committee referred

to in Article 18. The Commission

shall provide an account of the

information it receives

>> 23 of 29

Recital 27

The measures necessary for the

implementation of this Directive should be

adopted in accordance with Council Decision

1999/468/EC of 28 June 1999 laying down the

procedures for the exercise of implementing

powers conferred on the Commission. The

Commission should be empowered to adapt

the annexes and to adopt rules for monitoring

compliance. Since those measures are of

general scope and are designed to amend

non-essential elements of Directive

2002/96/EC, inter alia, by supplementing it

with new non-essential elements, they must be

adopted in accordance with the regulatory

procedure with scrutiny provided for in Article

5a of Decision 1999/468/EC.

Recital 27

The measures necessary for the

implementation of this Directive should be

adopted in accordance with Council Decision

1999/468/EC of 28 June 1999 laying down the

procedures for the exercise of implementing

powers conferred on the Commission. The

Commission should be empowered to adapt

the annexes and to adopt rules for monitoring

compliance. Since those measures are of

general scope and are designed to amend

non-essential elements of Directive

20xx/xx/EC, inter alia, by supplementing it with

new non-essential elements, they must be

adopted in accordance with the regulatory

procedure with scrutiny provided for in Article

5a of Decision 1999/468/EC. Before

measures are adopted the Commission

shall, inter alia, consult producers of

electrical and electronic equipment,

recyclers, treatment operators and

environmental organisations and

employees' and consumer associations.

Comments shall be forwarded to the

Committee referred to in Article 18. The

Commission shall provide an account of

the information it receives.

Article 17

Adaptation to scientific and technical

progress

Amendments may be made if necessary in

order to adapt Article 16(6) and the Annexes

to scientific and technical progress. Those

measures designed to amend non-essential

elements of this Directive, shall be adopted in



Before the annexes are amended the

Commission shall, inter alia, consult producers

of electrical and electronic equipment,


Article 17

Adaptation to scientific and technical

progress

Amendments may be made if necessary in

order to adapt Articles […] and the Annexes to

scientific and technical progress. Those

measures designed to amend non-essential

elements of this Directive, shall be adopted in



Before the annexes are amended the

Commission shall, inter alia, consult producers

of electrical and electronic equipment,


>> 24 of 29

environmental organisations and employees'

and consumer associations.

environmental organisations and employees'

and consumer associations. Comments shall

be forwarded to the Committee referred to

in Article 18. The Commission shall provide

an account of the information it receive.

>> 25 of 29

5- VISIBLE FEE


The WEEE Directive (Article 8.3) allows producers the option to temporarily show a

Visible Fee. For the majority of products Visible Fees are not allowed beyond the end

of 2011 and for category 1 by the end of 2013.

The European Commission proposal for revising the WEEE Directive enables Visible

Fees to exist forever (new Article 12).

Article 1410

Information for users

1. Member States shall ensure that producers are allowed to show purchasers, at the time

of sale of new products, the costs of collection, treatment and disposal in an environmentally

sound way. The costs mentioned shall not exceed the actual costs incurred.


Article 8.3 of the WEEE Directive allows producers the option to temporarily show a Visible

Fee. For the majority of products the Directive allows a Visible Fees until the end of 2011

and for category 1 until the end of 2013. The European Commission proposal for a revised

WEEE Directive (new Article 14.1) enables Visible Fees to exist without time limitation.

DIGITALEUROPE believes that Visible Fees may be appropriate as a transparent financing

method for products for which the cost of collection and recycling is substantial in

comparison to the product selling price.

Visible Fees may be inappropriate for products, such as for example computers and their

peripherals where the costs associated with the administration of the fee far exceed the

actual cost of recycling the products and where the use of Visible Fees places an additional

administrative burden on producers.

DIGITALEUROPE observes that some Member States have made the use of the Visible Fee

mandatory for all product categories and producers, which is clearly not in line with the letter

of the WEEE Directive, which specifies that producers are allowed to show the cost of

recycling to purchasers. DIGITALEUROPE calls on the European Parliament and Council to

ensure that the visible fee will remain voluntary so to ensure that no excessive burden will be

placed on businesses that do not need the visible fee to cover cost of recycling.

>> 26 of 29


Amendment 4.1: Article 14, new text

Article 1410

Information for users

1. Member States shall ensure that producers are voluntarily allowed to show

purchasers, at the time of sale of new products, the costs of collection, treatment and

disposal in an environmentally sound way.The costs mentioned shall not exceed the actual

costs incurred. Member States shall not establish a mandatory, fixed visible recycling

fee to be applied across all product categories and all manufacturers.

>> 27 of 29

6- INDIVIDUAL PRODUCER RESPONSIBILITY


The WEEE Directive (Article 8.2) establishes framework for Individual Producer

Responsibility for „future‟ WEEE, obliging producers to finance the costs of the

management of their own products.

The European Commission proposal for revising the WEEE Directive maintains this

through Article 12.2.

Article 128


2. For products placedput on the market later than 13 August 2005, each producer shall be

responsible for financing the operations referred to in paragraph 1 relating to the waste from

his own products. The producer can choose to fulfill this obligation either individually or by

joining a collective scheme.


Article 8 of the WEEE Directive obliges producers of electrical and electronic equipment to

meet the costs of the management of their products at the end of their products‟ life. The EU

established a framework for individual producer responsibility requirement through Article 8.2

of the WEEE Directive, whereby each producer is financially responsible for the

management of of waste from his own-brand products from private households, put on the

market after 13 August 2005. The producer can choose to fulfill this obligation either

individually or by joining a collective scheme.

The European Commission proposal for revising the WEEE Directive maintains through new

Article 12.2. DIGITALEUROPE shares the view that Article 12.2 is an appropriate legal

framework for the implementation of producer responsibility for WEEE.

DIGITALEUROPE highlights that many Member States have not implemented the principle

of Individual Producer Responsibility in transposing the WEEE Directive into their national

legislation. Therefore the intended incentives of IPR are not provided within these national

laws. Currently, many Member States have implemented or propose to implement a system

of collective responsibility for waste, attributed on the basis of a company‟s market share

>> 28 of 29

rather than making each company responsible for their products when they are actually

returned. This situation will not only be applied for historic waste (products put on the market

before the Directive came into force) but also extended to all future waste. This analysis was

further substantiated by Okopol in their report to the European Commission, and confirmed

by the European Commission in Parliamentary Answer P-4971/2007 given by Mr Dimas on

9th November 2007.

During the review of the Directive there is an opportunity to strengthen the freedom of choice

between Individual and collective solutions. DIGITALEUROPE believes that the European

Institutions should ensure that this choice as defined by Article 8.2 of the WEEE Directive

should be properly transposed into national legislation by Member States. In the

implementation of article 8, it should be made mandatory for Member States to give

producers the option to choose between individual or collective solutions based on their

product portfolio and business models used as long as transparency of financing is ensured.

At this moment there are producers that are investigating potential IPR solutions. It could well

be that in the near future producers may want to set up IPR solutions either in individual or

collective systems. A step towards IPR solutions is the possibility to allow Producers to

collect products, of an equivalent type as sold by the producer, directly from end users. It

should be possible to deduct these volumes from the obligation that the company has. This

step has already been implemented in for instance UK, Germany and Netherlands.


No amendment recommended.

http://www.europarl.europa.eu/sides/getDoc.do?type=WQ&reference=P-2007-4971&language=EN

>> 29 of 29

ABOUT DIGITALEUROPE

DIGITALEUROPE, the organisation formerly known as EICTA, is the voice of the European

digital technology industry, which includes large and small companies in the Information and

Communications Technology and Consumer Electronics Industry sectors. It is composed of

61 major multinational companies and 40 national associations from 28 European countries.

In all, DIGITALEUROPE represents more than 10,000 companies all over Europe with more

than 2 million employees and over EUR 1,000 billion in revenues.

THE MEMBERSHIP OF DIGITALEUROPE

COMPANY MEMBERS:

Adobe, Agilent, Alcatel-Lucent, AMD, Apple, Bang & Olufsen, Bose, Brother, Canon, Cisco,

Corning, Dell, EADS, Elcoteq, Epson, Ericsson, Fujitsu, Hitachi, HP, IBM, Infineon, Ingram

Micro, Intel, JVC, Kenwood, Kodak, Konica Minolta, Lexmark, LG, Loewe, Micronas,

Microsoft, Mitsubishi, Motorola, NEC, Nokia, Nokia Siemens Networks, Nortel, NXP, Océ,

Oki, Oracle, Panasonic, Philips, Pioneer, Qualcomm, Research In Motion, Samsung, Sanyo,

SAP, Sharp, Siemens, Sony, Sony Ericsson, STMicroelectronics, Sun Microsystems, Texas

Instruments, Thales, Thomson, Toshiba, Xerox.

NATIONAL TRADE ASSOCIATIONS:

Austria: FEEI; Belarus: INFOPARK; Belgium: AGORIA; Bulgaria: BAIT; Cyprus: CITEA;

Czech Republic: ASE, SPIS; Denmark: DI ITEK, IT-BRANCHEN; Estonia: ITL; Finland:

FFTI; France: ALLIANCE TICS, SIMAVELEC; Germany: BITKOM, ZVEI; Greece: SEPE;

Hungary: IVSZ; Ireland: ICT IRELAND; Italy: ANITEC, ASSINFORM; Netherlands: ICT

OFFICE, FIAR; Norway: ABELIA, IKT NORGE; Poland: KIGEIT, PIIT; Portugal: AGEFE,

APDC; Romania: APDETIC; Slovakia: ITAS; Slovenia: GZS; Spain: AETIC, ASIMELEC;

Sweden: ALMEGA; Switzerland: SWICO; Turkey: ECID, TESID, TÜBISAD; Ukraine: IT

UKRAINE; United Kingdom: INTELLECT.

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