OPINION OF THE COMMISSION pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on waste from electrical and electronic equipment AMENDING THE PROPOSAL OF THE COMMISSION pursuant to Article 250 (2) of the EC Treaty

2000/0158 (COD)

OPINION OF THE COMMISSION pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on waste from electrical and electronic equipment

1. Background

The proposal for a European Parliament and Council Directive on waste electrical and electronic equipment (COM (2000) 347 final) was adopted by the Commission on 13 June 2000 and published in the Official Journal C 365E of 19 December 2000.

The Economic and Social Committee gave its Opinion on 29 November 2000.

The Committee of Regions gave its Opinion on 14 February 2001.

The European Parliament gave its Opinion (First Reading) on 15 May 2001.

The Commission adopted the amended proposal on 6 June 2001 (COM (2001)315 final).

The Council adopted its Common Position on 4 December 2001.

The European Parliament gave its Opinion (Second Reading) on 10 April 2002.

This opinion sets out the Commission's position on the European Parliament's amendments in accordance with Article 251 (2)(c) of the EC Treaty.

2. Aim of Commission proposal

The proposal establishes measures on the prevention of waste from electrical and electronic equipment, on the collection of electrical and electronic equipment as well as their treatment, recycling and recovery. It is proposed that Member States set up separate collection of waste electrical and electronic equipment (WEEE) and ensure the proper treatment, recovery and disposal of WEEE. The treatment, recovery and disposal of WEEE shall be financed by producers to create economic incentives to adapt the design of electrical and electronic equipment to the prerequisites of sound waste management. Consumers shall have the possibility to return their equipment free of charge. Quantified targets for reuse, recycling and recovery are set out.

3. Commission's Opinion on the amendments proposed by the Parliament

3.1. Summary of the Commission's position

The European Parliament has adopted 46 amendments. 17 amendments can been accepted by the Commission in full (amendments 9, 11, 12, 13, 15, 17, 18, 19, 24, 27, 28, 39, 40, 44, 45, 50 and 57) 1 amendment can been accepted in part (amendment 23) and 17 in principle (amendments 5, 6, 7, 10, 21, 41, 42, 47 (first part), 48, 49, 51, 52, 53, 54, 55, 66 and 92). The remaining 11 amendments (amendments 2, 4, 8, 22, 25, 26, 29, 32, 56, 64 and 68) cannot be accepted.

3.2. Parliament's amendments on second reading

3.2.1. Amendments accepted

The Commission agrees on the following amendments concerning recitals: amendments 9 (strengthening individual producer responsibility in recital 16), 11 (information on obligation to no longer dispose of waste equipment with unsorted waste in recital 18), 12 (inspection and monitoring in new recital 19a) and 13 (information on exports of WEEE).

The Commission accepts the deletion of a temporary exemption for small independent manufacturers in amendment 15, the clarification that a reseller should not be regarded as the producer if the name of the producer appears on the equipment in amendment 17, the clarification that the first holder shall be deemed to be the professional importer under finance agreements in amendment 18 and the new definition of individual financing in amendment 19. It also welcomes making more explicit that treatment needs to be done using state-of-the-art recovery and recycling technology in amendment 24 and supports advancing the date by which re-use, recycling and recovery targets have to be achieved to 31 December 2005 (amendment 27).

The Commission supports the higher targets for automatic dispensers in amendment 28, clarifying the date and the conditions for review of the re-use, recycling and recovery targets in amendment 39 and the obligation for Member States to encourage the development of new technologies in amendment 40. It is also in favour of extending information requirements for users on the obligation no longer to dispose of WEEE together with unsorted urban waste in amendment 44 and on the presence of hazardous substances in electrical and electronic equipment in amendment 45. It supports the provision of information and manuals for treatment facilities, including re-use centres and recycling plants (amendment 50). The Commission welcomes new Article 16a on enforcement, inspection and monitoring in amendment 57.

3.2.2. Amendments accepted in part

On amendment 23, the Commission supports the obligation of Member States to ensure that WEEE is no longer disposed of together with unsorted urban waste (new paragraph -1) and the possibility for distributors to refuse contaminated WEEE (Art. 4 (1) third subparagraph after (a) and (b)).

It accepts in principle that Member States shall ensure that producers can set up and operate individual and/or collective take-back systems (provided that these are in line with the objectives of this Directive) (Art. 4 (1) subparagraph after (a) and (b)). This also applies for the option for producers to set up take-back systems from private households (Art. 4 (2)). The obligation of Member States to set up specific collection facilities for contaminated WEEE should not lead to excessive costs (Art. 4 (1) second subparagraph after (a) and (b)). The date of 31 December 2007 for the adoption of new targets for the years beyond 2008 is acceptable without prejudice to the Commission's right of initiative (Art. 4 (4) last subparagraph).

The Commission cannot accept the possibility for Member States to depart from the principle of free take back for consumers as this may undermine the motivation for consumers and the integration of waste management costs into the product price (Art. 4 (1b) second subparagraph). The obligation for Member States to ensure that exported used electrical and electronic equipment is suitable and intended for re-use is rejected because Member States cannot control what is done with the equipment outside their borders (Art. 4 (3), new second subparagraph). In the same subparagraph, the reference to new paragraph -1 is considered unnecessary as this new paragraph concerns a general obligation whereas the other paragraphs referred to (1 and 2) refer to collection from private vs. non-private sources. In Art 4 (4), first subparagraph, the Commission considers the new binding target of six kilograms from private households as very ambitious but is prepared to accept such a target. As data collection and transmission takes time, the Commission considers, however, the target date of 31 December 2005 as defined in the amendment (i.e. a proof already to be given by this date) as unrealistic and therefore rejects this part of the amendment.

3.2.3. Amendments accepted in principle

The Commission agrees in principle on the following amendments concerning recitals: amendment 5 (deletion of the statement that the provisions of the Directive do not restrict the sources of financing; no objection but no particular reason for this deletion), amendment 6 (prohibition of disposal with urban waste and obligatory collection target; the level of the target should not be quoted in the recital; the second sentence of the recital should be reworded as follows: "In order to ensure that Member States set up efficient collection systems, they should be required to achieve a high rate of collection of WEEE from private households.") and amendment 7 (preference to re-use and achieving a recycling and recovery level as high as possible; the term "as high as possible" is unclear and recycling and recovery should only be encouraged if environmentally beneficial and justified from a sustainability point of view; the amendment should be reworded as follows: "Where appropriate, priority should be given to the re-use of WEEE and its components, sub-assemblies and consumables. Where re-use is not preferable, all WEEE collected separately should be sent for recovery, in the course of which a high level of recycling and recovery should be achieved.").

In amendment 10, the Commission agrees fully with the strengthened reference to individual producer responsibility (first sentence), with allowing to maintain existing finance agreements for 10 years (third sentence) and with sharing the financing of historical waste among producers according to their market share (fourth sentence). It agrees in principle with internalising the waste management costs into the product price (second sentence; this should only be seen as a general principle as it will be difficult to determine the waste management costs in every instance and verify whether they are internalised in the product price; this should also leave options open for specific solutions for certain product groups, if needed; for this reason, the Commission proposes the following re-wording: "The costs of collection, treatment and environmentally sound disposal should, as appropriate, be internalised within the product price."). It agrees in principle with allowing producers to show the costs for historical waste in the product price and that these costs should represent the actual costs ( fifth and sixth sentences; without prejudice to Arts. 88 and 89 of the Treaty; at the end of the fifth sentence, the following words should be inserted: "[... of historical waste] in line with articles 88 and 89 of the Treaty.").

The new definition of finance agreement in amendment 21 can be accepted in principle (if consistent with other relevant Community legislation).

On amendment 41 (Art. 7 (2)), the Commission can accept in full the strengthened individual financial responsibility for producers in the first subparagraph. The remaining parts of this amendment can be accepted in principle. The practical modalities of the request to the Commission referred to in the second subparagraph are unclear. No formal confirmation by the Commission should be required as such a confirmation cannot be done without considerable additional human resources for the Commission. Instead, it is proposed to use a notification procedure on the basis of which the Commission can launch an infringement procedure in case of non-compliance with the conditions of this amendment. This could be done as follows: "Member States may use collective financing schemes if they can demonstrate that the introduction of individual financing schemes would involve disproportionately high costs. They shall notify such systems to the Commission with an appropriate justification." The principle of internalisation of waste management costs in the product price can be supported though this might rather a matter for a recital than a legally binding provision. It may be difficult to determine these costs and control their internalisation in every instance. Maintaining existing financial arrangements for a limited period is acceptable for the Commission although the details may need some further discussion.

The principles of collective responsibility for historical waste and a "visible fee" for a limited period in amendment 42 can be accepted though this should be without prejudice to articles 88 and 89 of the Treaty. This could be clarified by adding the following words at the end of the second paragraph of Art. 7 (3): "[... of historical waste] in line with articles 88 and 89 of the Treaty."

Amendment 47 (first part as adopted by the European Parliament) can be accepted in principle though the ways how Member States can ensure that consumers participate in collection are unclear. In particular, this should not lead to excessive penalties. This might be done by the following re-wording: "Member States shall adopt all appropriate measures to ensure that consumers participate in the collection of WEEE and to encourage them to facilitate the process of re-use, treatment and recovery."

The extension of the obligation in amendment 48 to mark electrical equipment with the crossed out dustbin to all equipment is acceptable in principle though it seems unnecessary for large, bulky equipment. Similarly, the obligation in amendment 49 to apply a mark to identify equipment put on the market after a specified date can be supported although modalities might still need to be defined. This also applies to amendment 51.

The additional information required in amendment 52 (register of producers, specification according to collection routes and quantities exported) can be useful although the practical implications and additional bureaucratic load should be verified before a final decision on this amendment. The shorter reporting rhythm and the change of deadlines in amendments 53, 54 and 55 is acceptable in principle though the availability of resources required for this should be considered carefully before a final decision on these amendments. Furthermore, consistency with Directive 91/692/EEC should be guaranteed.

Amendment 66 changing the scope of equipment which contains certain substances and for this reason should be treated according to specific conditions is acceptable in principle though the details should be verified before final adoption of this amendment. Amendment 92 changing the possibility for Member States to oblige producers to share the costs for new "orphan" waste to an obligation to all producers to provide appropriate financial guarantees is acceptable in principle. This amendment introduces, however, fundamental changes and needs careful evaluation. Moreover, further details might need to be developed.

3.2.4. Amendments not accepted

The Commission cannot accept the following amendments on recitals: amendment 2 (new recital 10 a on the revision of the Batteries Directive; this infringes the Commission's right of initiative and is out of the scope of the present directive), amendment 4 (new recital 11a leaving the conditions on refusal of contaminated WEEE to Member States; this should be done preferably on a Community level) and amendment 8 (new recital 15a on exports of used equipment; Member States cannot control what is done with the equipment outside their borders, see also amendment 23).

Amendment 22 on design for re-use and recycling cannot be accepted because the details of design requirements should be elaborated more carefully in line with the principles discussed in the Green Paper on Integrated Product Policy. In particular, it might be more appropriate to improve the environmental performance of equipment throughout its life cycle than to focus on design for re-use and recycling only. One option to elaborate these details may be the planned Directive on the environmental design of electrical and electronic equipment.

Amendment 25 is rejected because the obligations for the sound treatment of WEEE are already defined in the Directive and it is inappropriate to define conditions on the shipment of waste in this Directive. This is a horizontal matter for Regulation 259/93. This also applies for amendment 26 which allows Member States to refuse, under certain conditions, shipments which are allowed under Regulation 259/93.

The Commission opposes amendments 29, 32 and 68 increasing the recovery targets for three groups of product categories without a simultaneous increase of the re-use and recycling rates as it was suggested by the Environment Committee of the European Parliament. The increased margin between recovery and re-use/recycling may create an incentive for incineration of waste fractions which are not necessarily suited for environmentally sound incineration. It should be noted that for most fractions of WEEE, re-use and/or recycling are preferable to incineration with energy recovery. Other fractions contain substances that may be problematic in incineration, in particular if not appropriately controlled. This may be particularly critical in countries with little capacities for sound incineration and facing difficulties to achieve high re-use and recycling rates. As a result, there is a risk that these amendments may lead to badly controlled incineration and environmental pollution.

Amendment 56 puts an obligation to the Commission to produce a report within nine months after the end of the reporting period. This cannot be accepted as the Commission can only produce such a report in a reasonable time after it has received the national reports. Therefore, the text of the Common Position should be maintained. Amendment 64 is rejected because all asbestos contained in WEEE is asbestos waste.

4. Conclusion

Pursuant to Article 250(2) of the EC Treaty, the Commission amends its proposal as set out above.