WEEE regulations recast

Nigel Harvey, chief executive of Recolight, a not-for-profit company looks at the future for WEEE regulations.

With a quiet summer behind us, the WEEE directive recast has now entered a new and frantic phase.

The report prepared by the EU Parliament's Rapporteur, Karl Heinz Florenz, followed by a vote in the environmental committee, resulted in a final text proposed to the plenary in the European Parliament.

The European Council has also now changed some of its positions under the Belgian Presidency, and has issued a proposal to be discussed in preparatory trilateral meetings between the Council, the European Commission and the Parliament.

That Council proposal summarises the areas of agreement amongst the different Member States. Some of those changes made under the Belgian Presidency do move in the direction of the Parliament's final text.

Currently there are exploratory trilateral meetings between the Council, the Rapporteur, and the Commission to try to reach consensus on the text. It is highly unlikely that agreement will be reached on first reading.

A second reading or even a conciliation procedure may be required in order to obtain final agreement on the text.

This prolonged process is required because of the divergent views on a range of issues. Currently the best estimate for a final text proposal is before the end of 2011 during the Polish presidency.

Given that there will then be an 18 month delay before Member States are required to transpose the Directive into national legislation, the amended UK regulations are unlikely to be in force before early in 2013.

One of the key areas of disagreement is the proposed collection targets applicable to Member States.

The Parliament recommended a target of 85% of "WEEE arising". However, depending on which method of calculation of "WEEE arising" could either result in targets that are higher - or lower - than the original target of 65% of the average EEE put on market from the last 2 years.

In addition, defining the calculation method of "WEEE arising" and getting hold of the input data needed is likely to be a significant challenge.

Another main area of disagreement concerns the Producer definition in the Directive. The Council is largely of the opinion that the definition should stay as it is.

That means that a Producer is the first Operator to place a product on the market in a Member State. The Parliament and the Commission are still of the opinion that this should be extended to the first operator who places a product anywhere on the European market.

There are very considerable operational and indeed legal problems with regard to such a "Europe wide" producer definition.

In very practical terms, if the organisation placing product on the UK market is based in e.g. Bulgaria, how can the UK authorities take enforcement action?

Furthermore, if a UK based producer places a product on the UK market and his client subsequently exports the product to other Member States, how will the UK producer (or the producer's compliance scheme) be able to take responsibility for those products?

One of the changes proposed by the Parliament could significantly narrow the scope of the Directive for Lighting: the definition of "large scale fixed installation" is so broad that it could inadvertently remove many products from the scope - particularly fluorescent lamps and fittings which are installed in a building or in outdoor road lighting applications. It seems likely that this "loop hole" will be closed before the text is finalised.

There is also considerable debate over the categorisation of waste under the Directive. The current proposal is for five categories - refrigeration equipment, display equipment, lamps, large equipment, and small equipment. However, the problem of categorisation is exemplified by reference to the lighting market.

Lamps or luminaires based upon LED technology could be placed in any of three categories, making it much more difficult to recycle and recover some of the valuable rare earths they contain.

To summarise, there is wide agreement on which issues in the proposed recast Directive are of concern. But there is very little agreement on the way in which those issues should be resolved. As a result, no agreement until the latter part of 2011 seems the most likely outcome.

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