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Important legal notice

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**Opinion of the European Economic and Social Committee on the Proposal for a Directive of the European Parliament and of the Council on Waste electrical and electronic equipment (WEEE) COM(2008) 810 final — 2008/0241 (COD) **

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Official Journal C 306 , 16/12/2009 P. 0039 - 0041 *

Opinion of the European Economic and Social Committee on the Proposal for a Directive of the European Parliament and of the Council on Waste electrical and electronic equipment (WEEE)

COM(2008) 810 final — 2008/0241 (COD)

2009/C 306/09

On 20 January 2009, the Council decided to consult the European Economic and Social Committee, under Article 175(1) of the Treaty establishing the European Community, on the

"Proposal for a Directive of the European Parliament and of the Council on waste electrical and electronic equipment (WEEE)"

The Section for Agriculture, Rural Development and the Environment, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 18 May 2009. The rapporteur was Ms Sylvia GAUCI.

At its 454th plenary session, held on 10 and 11 June 2009 (meeting of 11 June), the European Economic and Social Committee adopted the following opinion by 103 votes with three abstentions.

1. Introduction

1.1 The objective of the review of the WEEE directive should be to provide positive impacts, both environmental and economic. This will benefit the environment, business operators and European citizens.

1.2 Experience has shown that the aim of the WEEE Directive, which is to achieve a functional internal market approach to waste management, has not been realised.

1.3 During the implementation of the WEEE Directive there have been many problems with many differences between member states.

1.4 These differences are partly caused by ambiguous definitions in the Directive but also by the freedom in implementation given to the Member States in Article 175 of the EC Treaty.

2. Conclusions and Recommendations

2.1 To date, the Committee can summarise the issues that need to be looked at as a result of the review of the WEEE Directive, as follows:

2.2 The WEEE Directive has a simplification potential by reducing the administrative burden on the market operators.

2.3 In reviewing the Directive, the European Union together with national authorities should ensure that the Directive creates a level playing field across all EU countries. A dual legal base of articles 95 and 175 of the EC Treaty would be desirable, whereby provisions related to the scope, definitions, product requirements and producer responsibilities related to the putting on the market of new products should fall under the legal base of article 95 of the Treaty and provisions related to targets and waste treatment under article 175 of the EC Treaty.

2.4 All actors in the chain, including producers, importers, retailers, traders, scrap dealers, should face the same responsibilities when dealing with WEEE.

2.5 The review of the Directive should allow for a better interaction between provisions for the protection of the environment on the one hand and rules that affect the smooth functioning of the Internal Market on the other.

2.6 In particular, the producer definition should not lead to more barriers to the Internal Market. This will be more in conformity with recent case law of the European Court of Justice that requires that the environmental protection does not run counter to the principles of the Internal Market. The definition of producer as proposed in article 3(j) of the WEEE recast proposal should also tie in to the extent possible with relevant definitions provided in Decision 768/2008/EC, while acknowledging the specific obligation that arises from the WEEE Directive, namely that registration as well as financing of collection and recovery are not characteristics of products (e.g. composition, ingredients, environmental impact), but additional obligations which have to be fulfilled at national level exclusively (i.e.: market surveillance and enforcement).

2.7 A revised Directive should not create any obstacles to the practice of sharing costs of WEEE management on the basis of current market shares. The way forward for Annex II is to allow interested parties to continue developing treatment standards. Currently, market-share based collective systems have proved successful in managing WEEE properly.

2.8 The Directive should fulfil its social aim to protect the environment and reduce the impact of waste on human health. Tackling the electrical and electronic waste stream in the EU in a cost-effective manner should help eradicate the shipment of this type of waste to third countries, where the environmental standards are lower and the risks for the manpower handling this waste are higher.

3. Specific comments on the articles

3.1 Article 3 (j) new: Producer definition

3.1.1 The Committee agrees with the new producer definition, but at the same time points out that this definition may lead to free-riders and distortion of competition.

3.1.2 It is intended to ensure a smooth functioning of the internal market. In this regard, the EESC appeals to the Commission to simplify the procedures, whilst blocking the way for abuse by free-riders.

3.1.3 The amended producer definition, in conjunction with the clarification of the terms "making available on the market" under Article 3(o) new and "placing on the market" under Article 3(p) new allows operators to voluntarily undertake specific actions without facing the risk of having to bear costs linked to the end of the life of the product.

3.1.4 By distinguishing the role of each operator, businesses can anticipate costs and thus take up a clearer part of responsibility as a result of their involvement in the supply chain of electrical and electronic equipment.

3.1.5 For the practical implementation, it must be possible for Member States to impose national obligations to the natural or legal persons who are placing products onto their national markets for the first time from third countries as well as from countries inside the Community (intra-community trade). Therefore, Member States may put in place proportionate provisions that allow them to identify these persons and have the possibility to ask these persons to provide the registration and the financing of the management of WEEE arising from their sales.

3.1.6 The Committee believes that the most positive environmental improvements and highest cost-efficiency, as a result of a clear producer definition, can be realised in the following ways:

- The producer definition should cover the same operators across all EU Member States.

- The Committee also believes that national producer registers should function in a more harmonised manner: The different administrative requirements of various national registration and reporting schemes are indeed leading to increased costs for producers operating cross boarder on the internal market.

- Producer registers differ in the information collection from producers and their operating principles. Amongst others, the definitions for types of equipment, criteria for weight, basis for the figures that are reported, as well as consideration for sales to other Member States, differ between registers. The frequency and periodicity of reporting data also vary.

- The Committee therefore deems it important that the European institutions issue recommendations and guidance in order to achieve this objective, following appropriate consultation of stakeholders.

- The Committee also believes that a European network of national registers should be created in order to exchange information. The Network would facilitate harmonised producer registration in Member States, reflecting the activities of that registrant in the entire EU. This would ease the administrative burden for registrants and at the same time lead to a more efficient enforcement of the directive. More harmonisation and less bureaucracy would make it easier to reach environmental improvements and goals.

- The Committee is of the view that in order to prevent free-riders a European clearing house should be established to monitor and make transparent flows of goods and to ensure the financial balance of European collection and recovery systems, as should mutual (administrative) law enforcement measures and effective legal assistance among the individual EU Member States.

3.2 Article 5: Separate collection

3.2.1 The take back schemes for WEEE are a necessary step to collect WEEE from private household equipment at a large scale.

3.2.2 The Committee insists that such waste can be returned to the distributor free of charge on a one-to-one basis as long as the equipment is of equivalent type and has fulfilled the same functions as the supplied equipment.

3.2.3 The Committee believes however that consumers should be made aware about the scope of their rights, in order to avoid confusion about the role of the market operators. Indeed, market operators should not be regarded as waste collectors at the expense of the customer, without any limits. In particular, market operators should remain free to frame their take back obligations as long as the take back did not happen at the moment of the delivery of the purchased good. The Committee thinks that this will save transport and manpower costs to businesses. These savings make sense from an environmental and a competiveness point of view.

3.3 Article 7: Collection rate

3.3.1 The Committee agrees with revisiting the current collection target. A collection rate of WEEE based on sales volumes, however, is inappropriate, since in almost every case, products have a much longer lifetime than one to-two years and therefore they do not come to recycling two years after sale.

3.3.2 Due to the fact that materials are more valuable now than five to ten years ago. WEEE with a net value (i.e. a high metal content) disappears from the established collection routes. The consequence is that such WEEE collected is not reported in the official WEEE channel. Such leaked WEEE goes either to bad treatment, or to no treatment/landfill, or to illegal export, or to good treatment or to legal export. Precise figures on the destination of such leaked WEEE are not available today (see Environmental Agency Report of March 2009).

3.3.3 The Committee believes that in the future, all market operators must be held responsible for management of WEEE over which they must gain more control.

3.3.4 The Committee acknowledges that the success of meeting collection targets depends on factors outside the sole control of producers, ranging from availability of collection points to the volume of WEEE generated by the end user.

3.3.5 The Committee therefore believes that producers should not be held liable alone: studies have shown that there are large flows of WEEE collected and treated outside the official WEEE systems and that there are many stakeholders, other than producers, that can influence the volumes collected and recycled.

3.3.6 The Committee underlines that the review of the WEEE Directive should aim at maximising its environmental results (collect more) and increasing the costs efficiency of WEEE treatment (treat better).

3.3.7 The Committee believes that if collection targets are measured at the moment the WEEE reaches the recycling systems, the operation of parallel flows makes it impossible for producers to collect enough WEEE to achieve the target. The Committee therefore suggests that a more effective way to reach the collection targets would be to measure when the material reaches the recycler, as this method would capture all the WEEE flows, rather than the producer flows in isolation.

All in all, the Committee underlines that parallel flows need to be subject to regulation, to ensure that all WEEE is recycled in accordance with the requirements of the Directive. In particular, that such other actors than EEE producers should be obliged to report on WEEE collected by them.

3.4 Article 12: Financing of WEEE from private households

3.4.1 The Committee believes that the responsibility of financing in respect of WEEE from private households should not be exclusively placed with the producers, as suggested by the Commission proposal in the new article 12.

3.4.2 The Committee deems it important that producers are given incentives to choose between individual or collective solutions based on their product portfolio and business models.

3.4.3 To date, Article 8 of the WEEE Directive obliges producers of electrical and electronic equipment to meet the costs of recycling their products at the end of their products' life. The EU established an individual producer responsibility (IPR) requirement through Article 8.2 of the WEEE Directive, whereby each producer is financially responsible for the recycling of waste from his own-brand products from private households, put on the market after 13 August 2005. The producer can choose to fulfil this obligation either individually or by joining a collective scheme.

3.4.4 At this moment, producers are investigating solutions. It could well be that in the near future producers may want to deal with this issue either in individual or collective systems.

3.4.5 The Committee shares the view that article 8.2 is the appropriate legal framework for the implementation of producer responsibility for WEEE.

3.4.6 The review of the Directive must be considered an opportunity to strengthen the freedom of choice between Individual Producer Responsibility and collective solutions.

Brussels, 11 June 2009.

The President

of the European Economic and Social Committee

Mario Sepi

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