New Act on Electronic Waste - 0:1 and 1:1 as results of new legislation

Football results stand for significant increase of producer’s and distributor’s obligations

On 24th October 2015 the new Electrical and Electronic Equipment Act (the “Act”) came into force imposing several new obligations upon producers of electronic and electrical devices with a view to their return and disposal. New legislation primarily hits producers and online-distributors of electronic or electrical devices. Both have to comply immediately with the so-called “1:1 obligation” – taking back the old in return for the new electronic or electrical device. Even more, under the “0:1 obligation” producers and online-distributors are obliged to collect waste of any electronic or electrical device which dimensions is not exceeding 25 cm in total, irrespective of whether the consumer is purchasing a similar or any other new product at the same time. Corresponding to this, the consumer has to be informed about the possibility to return such waste as well as about the necessity of its proper disposal and the crossed-out wheeled bin marking. By setting new requirements for guarantees which have to be provided annually by every producer in accordance with the provisions of the new Electrical and Electronic Equipment Act, this leads to the necessity of adjusting already existing guarantees to the new legislation. Additionally, the scope the Act has been extended to lamps for private use and photovoltaic panels so that producers and distributors of these products are obliged to register with the competent authorities. Provided that electronic and electrical devices were distributed by a producer having no establishment in Germany, a representative has to be named who fulfils this criterion. The same applies to the distribution within the European Union. With respect to producers who are currently registered in accordance with the predecessor legislation and who do not fulfil the German establishment criterion, the appointment of a representative has to be completed within a six month transition period in order to prevent a withdrawal of their registration.

The new Electrical and Electronic Equipment Act (the “Act”) took effect on 20th October 2015 and transposes the WEEE 2 directive (Directive 2012/19/EU of 4th July 2012 on waste electrical and electronic equipment) of the European Union into German national law. Given that Germany transposed the directive 1.5 years upon the expiry of the transposition period, the European Commission had already initiated proceedings before the European Court of Justice this May which eventually accelerated the legislative procedure. Please find below an overview of the essential changes introduced by the Act.

Definition of Producer

According to both, the Act like the predecessor legislation, the person liable to comply with the obligations laid down by the law is the producer of electronic and electrical devices. Whether a person qualifies as producer or not is determined in accordance with the different categories stipulated by the Act. Apart from the known categories, the Act comprises a clarification which explains that it is not necessary for a distributor to import electronic or electrical device in order to qualify as producer, instead it is sufficient to offer a device which still needs to be imported.

Extension of Scope

An extension of the Act`s scope goes hand in hand with its amendment. Hence, as of 24 October 2015 photovoltaic panels fall within the scope and complement product category 4 “consumer equipment and photovoltaic panels”. Within a transition period of four months upon the Act`s entry into force, producers of such photovoltaic panels are obliged to register their products with the joint body, Stiftung ear. Additionally, lamps for private use without integrated light sources (e.g. E 27 or E 14 base for the light sources) are included in category 5 “lighting equipment”. The same transition period as with regards to category 4 applies.

Registration

Prior to any electronic or electrical device that fall within the scope of the Act being placed on the market, it has to be registered with Stiftung ear. To this effect, the national registration remains in force, as the Member States could not agree upon a single and uniform EU-wide registration procedure and authority. However, a significant amendment as regards to the registration requirements is expected prior to 15 August 2018 when the current ten product categories stipulated in the Act will be reduced and adjusted according to those six product categories that are implemented in the WEEE 2 directive and that have to be transposed effective that date. This change will affect any registration irrespective of whether a producer is already registered at that point of time or not, as the current legislation requires a registration per category, type of equipment and brand. As of that date, the Act will also comprise an open scope, meaning any electronic or electrical device which is not explicitly exempt from the application of the Act, will fall within its scope.

Guarantees

As a precondition for the successful registration with Stiftung ear, the Act demands each producer to provide a financial guarantee with respect to all electronic or electrical devices which are used in the private sector, prior to placing them on the market. The producer has two different options to meet this criterion by either providing an individual guarantee (e.g. an irrevocable guarantee on first demand provided by a credit institute) or to take part in a guarantee scheme whereas the formerly known guarantee schemes are no longer available due to the changed requirements. For the first time since the predecessor act`s entry into force, such guarantees mandatorily have to be provided for a full calendar year. Conversely, the present obligation to provide a trustee who is in charge of administrating and disbursing the amount secured by the guarantee has been abolished.The aforementioned amendments affect producers irrespective of whether they have already been registered at the point of the Act`s entry into force or not. Hence, all producers are urged to adjust their guarantees according to the new legislation if they want to market electronic or electrical devices in 2016 and onwards. However, there is no such obligation if either the present guarantee in use already fulfils the new requirements set by the Act or if the validity period of such guarantee ends prior to 31 December 2015.

Obligation to collect WEEE

The Act extends the obligation to collect waste of electronic or electrical equipment to distributors, by imposing a general duty depending on the size of the distributor. As regards to stationary trading, distributors running a retail shop with a sales area relating to electronic and electrical devices of at least 400 m2 have to ensure that electronic and electrical waste can be returned free of charge at any of their retail shops as long as the external dimensions of such waste are not exceeding 25 cm and without any obligation of the end user to buy an electronic or electrical devices of an equivalent type. The same applies to distributors who are supplying electronic or electrical devices by means of distance communication with respect to the storage area of their warehouses designated to electronic and electrical devices. In the event, the dimensions of the electronic or electrical device are exceeding 25 cm, the distributor is only obliged to collect such waste free of charge if and to the extent that the end-user is simultaneously purchasing equipment of an equivalent type which has fulfilled the same functions as the supplied equipment. As regards to distributors supplying electrical and electronic equipment via means of distance communication the grounds of the Act are indicating an important restriction. In the event such an online distributor runs several warehouses the relevant storage area for the calculation is only based on the storage area of the specific warehouse which is the starting point of the distribution. Appropriate collection facilities have to be set up according to section 17 paragraph 2 sentence 2 of the Act which have to be located in a convenient distance to end-users. Considering the grounds of the law, online-distributors should think about cooperating with stationary distributors or their contracting mail-order company in order to provide a free return option for end users.

Information Obligation

The Act imposes specific information obligations on producers of electronic and electrical devices. Accordingly, producers are obliged to inform consumers about the requirement not to dispose electronic and electrical waste as unsorted municipal waste but to collect such waste separately, the meaning of the crossed-out wheeled bin marking and the adverse effects of hazardous substances that are contained in electronic and electrical waste as well as about the collection systems and the possibility to return electronic or electrical waste at the collection points. Furthermore, there are several obligations to notify Stiftung ear, which vary depending on the type of electronic or electrical equipment, the mean of distribution or the field of its application. A detailed overview with respect to all different obligations is displayed at the website of Stiftung ear.

Foreign Producers

By amending the Act, solely foreign based producers are not any longer eligible to register with Stiftung ear. Hence, this also affects those producers who are already registered according to the predecessor legislation but who do not have a German establishment. They are given two possibilities; they can either set up a German establishment or appoint a representative who will fulfil all obligations under the Act which were originally borne by the producer.

Costs

Together with the Act the related regulation on fees has been amended and entered into force at the same date. This new regulation results in an increase of nearly all costs for the registration procedures.