By way of the Directive on Waste Electrical and Electronic Equipment (Directive 2012/19/EU; so-called WEEE Directive), the EU has required its Member States to adapt their electrical and electronic equipment law until 2014. The objective of the new Directive was to increase the collection rate and retrieval of valuable substances. While other Member States have already complied with the requirements of the Directive, Germany has been granted a time extension until 2015.
Recently, the German cabinet has decided on an amendment bill to the German Electrical and Electronic Equipment Act (Elektro- und Elektronikgerätegesetz). If and when enacted, its amendments will be highly relevant for producers, exporters and distributors of electrical and electronic goods in and to Germany.
What has happened?
In its resolution of 11 March 2015 the German cabinet adopted the bill proposed by the German ministry of the environment for an Amendment of the German Electrical and Electronic Equipment Act (ElektroG-E). Hence, the transposition of the EU Directive into German law has cleared the first hurdle of the legislative process.
As a next step – presumably already in May – the German Federal Council (Bundesrat) will hold a first reading of the bill, followed by a debate in the the German Parliament (Bundestag) in late June. The second and final reading of the German Federal Council is scheduled for September 2015.
What is new?
Apart from a revised scope of application based on a catalogue of exclusions and a modification of the term “producer”, the following amendments are particularly significant:
1. Take-back obligation for distributors
The most important change is that distributors - in addition to public collectors - are now obliged to take back WEEE free of charge. According to section 17 ElektroG-E anybody who supplies electrical and electronic equipment on a sales area of at least 400 m² or places it on the market must meet the so-called “one for one” and “one for zero” take-back obligations after a transition period of nine months.
The “one for one” take-back obligation specifies that upon supplying a new electrical or electronic appliance to an end user the distributor must take back free of charge WEEE of an equivalent type, which essentially fulfils the same functions, at the place of supply or in its immediate proximity.
The “one for zero” take-back obligation relates to so-called very small equipment. It prescribes that WEEE where no external dimension measures more than 25 cm must be taken back in normal household quantities in a retail shop or in its immediate proximity free of charge with no obligation to buy new electrical or electronic products.
This will place a considerable administrative burden especially on mail order companies, for whom all storage and dispatch areas are sales areas. They must also ensure that WEEE can be taken back by providing adequate facilities within a reasonable radius of the end user.
Lobby groups and relevant trade associations are critical whether a consistent quality of WEEE collection can be ensured by the requirement of providing more space and qualified staff.
It will remain possible to take back amounts in excess of the obligation on a voluntary basis.
2. Registration obligation for authorised representatives
Analogical to the registration obligation for producers of electrical and electronic equipment, their authorised representatives will also be obliged to register with the competent WEEE Registration Foundation (Stiftung Elektroaltgeräteregister) in future (section 6 ElektroG-E). Moreover, within a transition period of six months from the effective date of the new statute, producers without a domestic branch establishment must name a domestic authorized representative, who will be obliged to register. This new requirement will affect a very large number of non-German producers. Many foreign suppliers do not have authorized representatives in Germany so far. Failure to name an authorized representative will be punishable with an administrative fine of up to EUR 100,000.00 for overseas producers.
According to the legislative objectives the authorized representative himself must therefore meet the producer’s obligations and may also be affected directly by penalisation or warning letters.
3. Extension to "dual-use" goods
Finally the definition of private household WEEE that falls under the take-back obligation will be extended to include equivalent equipment which is also used in other areas (so-called dual-use equipment; section 3 no. 5 ElektroG-E). As this extension has not been restricted to normal household quantities, it ought to lead to a considerable increase of returned equipment.
4. "Open scope" as of 2018
The draft bill prescribes a new categorization system for WEEE as of 2018. While all products must belong to one of the ten equipment categories to be classified as WEEE, this will not be required as of 2018. The remaining six equipment categories will then no longer have a constitutive effect. In practice, this means that Stiftung Elektroaltgeräteregister will probably classify more products as WEEE than in the past – so that the German Electical and Electronic Equipment Act will apply with all its consequences. This may lead to even more disputes on WEEE categorisation as of 2018.
What can be done?
The amendment is not expected to become effective until the end of 2015. As the legislative process is still at an early stage currently, there is still a possibility that the draft bill will be modified e.g. due to targeted action of the German industry associations.
However, affected companies should already examine what preparations are necessary to meet not only logistical and administrative but also organizational and legal requirements. Not only the legally sound registration but also the avoidance of possible fines is of major importance in this context.