Response to DG Environment s Stakeholder consultation on the political options for the revision of the WEEE directive

Transcription

1 June 6 th 2008 Response to DG Environment s Stakeholder consultation on the political options for the revision of the WEEE directive Dear Madam, Dear Sir, The American Chamber of Commerce to the European Union (AmCham EU) is the voice of companies of American parentage committed to Europe towards the institutions and governments of the European Union. It aims to ensure a growthoriented business and investment climate in Europe. AmCham EU facilitates the resolution of EU US issues that impact business and plays a role in creating better understanding of EU and US positions on business matters. Total US investment in Europe amounts to $702 billion, and currently supports over 4.1 million jobs. AmCham EU member companies are drawn from a broad cross-section of the European business community and are present in most Member States of the enlarged European Union. As a pan-european business community, we have significant practical experience in complying with the Waste Electrical and Electronic Equipment (WEEE) Directives across Europe. In 2007, we submitted our comments to the previous European Commission consultation which was launched to prepare the upcoming revision of the WEEE Directive 1. We are now pleased to contribute to this consultation focused on the political options and the information supply of this revision. 3.1 TARGETS Targets on collection Separate collection is the precondition for ensuring specific treatment and recycling of WEEE and is necessary for achieving the chosen level of protection of human health and the environment in the Community (recital 15). In order to ensure that Member States strive to set up efficient collection schemes, they should be required to achieve a high level of collection of WEEE from private households (recital 16). The current WEEE collection target is 4kg/inhabitant per year. However there is a high difference of EEE consumption and of WEEE collection rates. There is evidence that the current 1 Response to DG ENTERPRISE questionnaire on the revision of the WEEE and RoHS Directives (June 5 th 2007)

2 target is not reflecting these variations sufficiently, nor is encouraging Member States to strive for the optimum. On the proposed options to improve the current level of separate collection of WEEE, AmCham EU s position is Option 4: An obligatory give-back by collection points (local municipalities, retailers, distributors, brokers, traders, recycling shops, ) to the producer responsibility organisations (PRO's) or to individual schemes. The lack of visibility of the WEEE streams is causing great difficulties in determining what volumes are actually collected. Option 4 would solve this visibility problem in the streams that are treated and collected. If all collected WEEE were to be given back to producer responsibility organisations (PRO) or to individual schemes, the reported collection volumes would reflect the actual recycled volumes in that Member State. If the rapid increase in scrap metal prices continues, it is very likely that more materials will be recycled outside of the formal WEEE recycling systems Targets for recovery, component, material and substance reuse and recycling 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 as to reduce the disposal of waste. AmCham EU s position is option 4: Stimulation of outlet market for recycled and recovered products, in particular for encouraging high level of material reapplication. AmCham EU supports option 4. While it should be noted that recyclates from WEEE are not often of sufficient quality for material reapplication, the reapplication of recyclates from all sources should be encouraged. The quality of recyclates for reapplication will be improved by Individual Producer Responsibility, which provides an incentive to improve the value of recyclates generated by WEEE. B2B medical equipment is not treated within the municipal waste stream due to technical and business reasons. Most B2B equipment has been managed through Producer product take back processes for years. B2B medical equipment should therefore be excluded from the scope of the Directive. However, if B2B medical equipment should be included in the scope of WEEE, no target should be introduced, since medical equipment design standards impose rules which may sometimes conflict with achieving a fixed recovery rate. 2

3 3.1.3 Targets for reuse of whole appliances Where the generation of waste cannot be avoided, it should be reused or recovered for its material or energy. Where appropriate, priority should be given to reuse of whole appliances, their components, subassemblies and consumables. Whereas reuse before discarding falls outside the scope of the Directive, reuse of WEEE and its components which are returned to collection points, distributors, recyclers or manufacturers can be addressed. AmCham EU s position is option 2: Include the reuse of whole appliances in the current or increased components, material and substance reuse and recycling targets. AmCham EU supports option 2 to include the reuse of whole appliances in the current or increased components, material and substance reuse and recycling targets. This ensures that reuse is not discouraged or excluded by the Directive. 3.2 THE SCOPE OF THE DIRECTIVE The definition of scope is not only relevant for the development of all other options, it also affects, for instance, producer responsibility, financing, as well as which products should be collected and recycled, and thus the environmental performance of the Directive. Potential changes in the scope of the Directive impact on the whole structure and provisions of the Directive itself. Therefore the definition of scope should be there to clarify the reach of the current (producer) responsibilities and to reflect environmental ambition with respect to what should be collected and treated Options for clarification of the scope Interpretation of the scope of the Directive could be determined on a case-by-case basis by individual EU Member States in a manner that may or not be consistent throughout the EU. This could create confusion and leave it unclear about whether a given product is within or outside the scope. Beside the question being in or out the scope is also the issue of categorisation; some products can be classified under several categories, as well categories in the sense of the 10 product categories under Annex IA as the categorisation WEEE from private households (known as business to consumers equipment or B2C) or WEEE from other than private households (known as business to business equipment or B2B). This is in particular the case for dual use goods. This categorisation is directly linked to the setting of targets as well as to the regime of financing. AmCham EU s position is option 1: Clarifying the scope, by formalising criteria used in the document on Frequently Asked Questions (FAQs). 3

4 AmCham EU s most-favoured option is clarifying the scope by formalizing criteria used in the Frequently Asked Questions (FAQ) document. However, the FAQs, as currently written, are not specific enough and have been used by various Member States to come to different conclusions as to whether a particular product is in scope. Therefore, AmCham EU believes that clarifying language needs to be added to the FAQ criteria including more detailed language describing how the FAQs apply when evaluating whether a product is within the scope of the WEEE Directive. AmCham EU agrees that the Directive should apply only to finished products. Components, sub-assemblies and consumables (such as semi-conductors, cables, etc.), which are part of electrical and electronic equipment (EEE) and yet do not have a direct function, should not be considered as EEE within the scope of the Directive. Were these products considered as EEE, we could find ourselves in a position where goods need to be registered twice. We would also like to mention that we agree with the findings of the 2008 review of WEEE report entitled 2 (hereinafter referred to as the UNU Report ). This Report recognizes that harmonisation among Member States regarding scope is essential and provides several options for achieving such harmonisation. In addition to the scope issues regarding internal components, there are also important scope questions regarding fixed installations, medical products, etc. which are not sufficiently answered by the current FAQs. Equipment which is permanently integrated into a building, and which is not removed by temporary users should be explicitly exempted from the scope of WEEE. Several years after the Directive s entry into force, there are still no guidelines on fixed installations. As a result, Member States have adopted different interpretations of the scope of WEEE. One of the weaknesses of the FAQs approach is that ambiguities for certain products may remain or occur for future products, after the FAQs criteria are incorporated into a revised Directive. If the Commission would decide to adopt this approach, there would need to be a methodology for Producers to obtain a scope determination if necessary for particular products. AmCham EU would also like to propose a new option: the scope should be placed under an Article 95. Since the WEEE Directive is based on EC Treaty Article 175, in theory, strict harmonization among the Member States is not required. However, in practice, it is essential that the basic requirements of the WEEE Directive including scope be harmonized throughout the various Member States. Whether a product is within the Review of Directive 2002/96 on Waste Electrical and Electronic Equipment (WEEE) dated of August 5 th, 2007 and prepared by United Nations University for the European Commission 4

5 scope of the Directive determines a number of responsibilities for manufacturers, importers and retailers who place products on the national markets of the Member States. Annex I B of the Directive provides a list of products; however, the general nature of the list provides opportunities for significant variation in product scope among the Member States. Some Member States have addressed uncertainties regarding scope by preparing comprehensive lists which determine whether a particular product is within the scope of the Directive. However, most Member States have simply included Annex IB into their national transposition of the Directive without providing additional clarification regarding scope. We are also concerned that some Member States have chosen to adopt the widest scope possible for the WEEE Directive, and did not limit themselves to the categories listed in Annex I A, or to those that are reasonably close to the products listed in Annex I B. AmCham EU would ask the Commission to develop an effective system for resolving grey area cases by issuance of guidance documents or legally binding decisions. Whichever system is chosen, we would hope to see the publication of a list that would be updated on a regular basis. However, a fixed list of in scope products could never be complete or up to date. Another difficulty is also that the definition of some products by their use EU versus outside the EU leaves room for interpretation. For example, China has a 40 page document of what is in scope. Yet it is still difficult for producers to know whether or not they are really subject to this legislation Options on the width of the scope In particular the width of the scope will affect the environmental ambition with respect to the contribution to the prevention of e-waste, to enhanced reuse, recycling and other forms of recovery, to the reduction of disposal of waste and to the improvement of the environmental performance of operators and systems dealing with WEEE AmCham EU s position is option 3: the exclusion of types of products/product categories from the scope. AmCham EU supports the existing exclusions from the scope of the WEEE Directive. The categories of EEE currently covered are high volume categories which contribute mostly to the EEE waste stream and therefore have a higher impact on environment. Any extension of the scope to new EEE should be based on a proper assessment of the risks to both the environment and health and on an evaluation of the socio-economic impact. 5

6 We strongly disagree with broadening the scope to include spare parts and components. It would be impossible to implement responsibility at the component manufacturer level as enforcement can only address manufacturers of finished products. Now is not the time to look at expanding the scope of WEEE. It should be clarified now what is covered by WEEE, and to improve compliance, encourage harmonisation in the application of national laws while increasing the overall reputation and efficiency of WEEE in both economic and environmental terms. As mentioned previously, B2B equipment is not treated within the municipal waste stream for technical and business reasons. Most B2B equipment has been managed through Producer product take back processes for years. B2B equipment should therefore be excluded from the scope of the Directive if the producer can demonstrate that the products are not normally used within a private household. Additionally, fixed installations should be explicitly excluded from the Directive for the purposes of legal clarity. It was clearly not the intention of the legislators when WEEE was adopted to include fixed installations (e.g. power generation, petrochemical plants, power supply networks, water treatment plants). Fixed installations must also be handled completely separately from the exclusion of largescale industrial tools as in category 6 of Annex IA/1B. Additionally, the FAQs should clarify that fixed installations include special industrial equipment, by design which is meant to be professionally installed for a fixed amount of time in order to complete a defined task. Examples would include oil drilling equipment and which would meet the requirements of LSIT, for both of these they are "permanently" installed for a fixed amount of time during which they are operated. 3.3 THE OPERATION OF THE PRODUCER RESPONSIBILITY PROVISIONS AmCham EU position related to the Operation of the Producer Responsibility Provisions is: option 3: Harmonise the implementation of the allocation of financial responsibility, the frequencies and formats of reporting, the registration and the making information available. AmCham EU believes that due to the lack of harmonisation, producers are facing different requirements on similar issues in different Member States, leading to market confusion, fragmentation in the international market and administrative burdens. In the UNU Report, it was also highlighted in section , that both simplification and harmonization are the key conditions for the success of the WEEE Directive. AmCham EU would like to highlight the following difficulties and propose the corresponding approach: 6

7 Definition of producer The WEEE Directive sets clear responsibilities for those placing EEE on the market. However, companies are unsure about the definition of the producer in the case of importing distributors, where the manufacturer has a legal presence in another Member State. In some countries it is complicated for a manufacturer to voluntarily assume producer responsibilities for entities (retail stores) that by strict definition of national law are defined as responsible. This not only makes it difficult for manufacturers to assure compliance but discourages small retailers from carrying EEE, especially if electronics are not their primary business. Another problem is that end-users can become responsible for registering relatively small numbers or even single products in countries where the manufacturer does not have its own legal entity and cannot register as a foreign legal entity. This is clearly an obstacle to the principle of free movement of goods within the Single Market. Different definitions of weight A single definition of weight: the weight of the unpacked product including all electrical & electronic accessories, but excluding batteries, non-electronic/nonelectrical accessories, consumables, documentation and packaging that normally accompany the product. Different Segmentation by Type of Equipment (ToE) for the calculation of historical responsibilities We believe that stakeholders should strive for a situation in which the registers use the same (as simple as possible) classification of types of equipment, as well as common guidelines for ambiguous cases of this classification. This would not only simplify compliance for producers, would also increase the quality of the information and therefore facilitate the reporting of coherent and comparable data from Member States to the Commission. Differences in content and frequency of reporting requested by National Registers leading to complexity in IT systems and unnecessary administrative burden The frequency of data reporting on product content is unnecessarily divergent across Member States. From one country to another these types of equipment vary widely in their classifications. This leads to classifications that are not compatible between countries and thus to a highly undesirable administrative burden and unnecessary levels of complexity in IT systems. The burdens on producers, particularly when reports are required on a monthly basis with a midmonth deadline, are onerous. 7

8 Some Member States have stricter requirements, especially with regard to reporting frequency. In a few Member States, for example Belgium, Ireland and Slovenia, the requirements are significantly more onerous (eg. Ireland: producers must submit annual reports specifying details of operations and WEEE produced, steps it took to comply the WEEE regulations and the results of those steps. Producers must also submit turnover data on a monthly basis). In many Member States producers are required to report sales in weight yet the definition of weight varies from one country to another. We would like to see that all registers use the same set of data or registration form which would be as aligned as possible with the data reporting requirements from Member States to the Commission, and with the same reporting frequency. The reporting frequency should be chosen so as to minimise workload; but also take into account seasonality in sales and be high enough to capture temporary market entrants. Quarterly reporting seems to fulfill all these criteria. Registration of foreign companies within the EU We believe all national registers should be open for registration to any producer legally established within EU, subject to the same obligations as any company established in the Member State. In addition European producers should be allowed to take over the obligation from the default national producers. Clearly, legal provisions must also be in place to allow Member States to pursue legal action against companies which have committed to fulfill the legal obligations in their territory, but do not have a legal presence (e.g. using similar approaches to the general product Safety Directive or allowing producers to discharge their obligations to local legal representatives or the Compliance Schemes). Individual Producer Responsibility During the review of the Directive there is an opportunity to strengthen the freedom of choice for IPR. In the implementation of article 8.2 of the Directive, 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. Therefore we support the full transposition 3 and implementation of Individual Producer Responsibility as specified by Article 8.2 of the WEEE Directive. 3 Some Member States (Bulgaria, Denmark, Finland, France, Greece, Latvia, Portugal, Slovenia, Spain, and UK) have failed either to transpose or implement the provisions of Article 8.2. This analysis was further substantiated by Okopol in their report to the European Commission. Okopol also highlighted that even in those Member States that have transposed Article 8.2 as a legal requirement; there has not been implementation of this requirement. 8

9 Proposed next steps towards more harmonisation Harmonised registration process We recommend the European Commission to strongly encourages Member States to create a harmonised EU registration process, leading to harmonised national requirements and procedures, or even to establish a single EU-wide registration body. The national registers should at least follow a coordinated approach towards registration and should regularly exchange their data. We believe that it would be both appropriate and essential to involve the registers in the discussion around the harmonisation of (the processes of) those registers. At a conference on the subject of harmonisation of registers held in February 2006 at INSEAD in Fontainebleau, it became clear that there is willingness among the registers to discuss harmonising their procedures. Harmonisation will encourage the emergence of cross-european recycling schemes that can create an effective one stop-shop approach. This is especially important for innovative niche players, SMEs and non-eu companies, which are not legally represented in each Member State, and which are dependant on the importer/distributor s conditions. Harmonised reporting In the name of effective better regulation, we request a harmonisation of quarterly reporting of weight by category and the B2B/B2C ratio within each category. This is sufficient to enable Member States to compile their own national data. 3.4 TREATMENT REQUIREMENTS AmCham EU s position for treatment requirements is option 1: Introduce the development of treatment standards. AmCham EU supports the introduction of mandated treatment standards, setting effluent limits for processes in line with existing BAT-BREFS. The introduction of treatment standards will facilitate treatment processes within companies having global activities, and as a result of which the same references can be applied in different regions. Yours sincerely, Christelle Verstraeten Policy officer 9