Non-compliance with the WEEE Directive: what’s the worst that can happen?

The risk of prosecution for potential non-compliance with the WEEE Directive is often of uppermost concern to companies. In our experience, most companies will weigh up this and any associated risks against the costs associated with changing their current practices. However, many fail to recognise the opportunities that an effective compliance system offers in terms of its support for cost reduction and product innovation.

Non-compliance with the WEEE Directive: what’s the worst that can happen?

The EU is committing significant funds to reuse and recycling, and this new policy direction presents significant opportunities. In the EU circular economy strategy, released in December 2015, over €650m is being invested into a WEEE research and innovation financing programme, Horizon 2020.  The European Commission is also funding a €2.1m project to demonstrate innovative new methods of recovering critical raw materials.

What’s WEEE all about?

In the UK, the Waste Electrical and Electronic Equipment (WEEE) Directive (WEEE) Directive requirements have been transposed into The Waste Electrical and Electronic Equipment Regulations 2013, as amended. The directive aims to prevent electronic waste and promote reuse, recovery and recycling, while improving the environmental performance of all operators in the product lifecycle.

For manufacturers and distributors of electrical and electronic equipment (EEE) this means designing and labelling products to facilitate recycling and reuse of components and materials; financing the collection, treatment, recovery and environmentally sound disposal of their products and providing free take back of WEEE.

Brand holders, importers and distance sellers need to register as producers and, if a company places in excess of five tonnes of EEE on the market every year, they must join a producer compliance scheme to finance collection, recovery and recycling.

Once a member of a compliance scheme, the company is required to report EEE placed on the market and pay of fees based on weight. Producers are also obliged to mark products and provide information on reuse and treatment of waste products and components. Distributors of EEE are required to take back WEEE free of charge in-store or join the Distributor Take Back Scheme (DTS).

The impact of Brexit on UK WEEE regulations is unlikely to be significant and UK companies should continue to ensure compliance to the current legislation.

The cost of non-compliance

Enforcement of the registration, reporting, recovery and recycling provisions is undertaken by the Environment Agency. However, just two enforcement actions are recorded on the Environment Agency public register. A case in August 2015, cites that a company was fined £14,000. In Scotland, the 2013/2014 annual enforcement report records only one referral for non-compliance to the prosecution service.

Since 2015, responsibility for enforcement of these provisions lies with the National Measurement and Regulation Office. Unfortunately, no enforcement statistics or incidents have been published since, but are likely to be similar to previous figures – between April 2014 and March 2015, 3,224 inspections took place, where five enforcement notices were issued. All companies complied, so avoiding potential prosecution.

WEEE regulations stipulate fines up to £5,000 at a magistrates’ court (unlimited in a Crown Court). However, the administrative burden means that inspections supported by warning letters are likely to remain the preferred enforcement method.

WEEE for innovation and cost reduction

Although the risk of prosecution may appear low, conformity with the WEEE Directive’s design requirements supports product innovation and reduces costs. For instance, size and weight reduction of EEE lowers both material and weight-based compliance costs, while also minimising transport costs.

The reuse of working components and recycled materials including graphite, cobalt, antimony, tantalum, silver, gold, platinum, copper and aluminium, as opposed to using virgin materials, also represents costs savings and mitigates risk of supply chain disruption as a result of resource scarcity. It is consequently important to design products to facilitate component and material extraction.

Distributors with significant quantities of WEEE can also access gate-fees by Approved Authorised Treatment Facilities and generate revenues from selling evidence to Producer Compliance Schemes. Distributors who are also producers can also use the collection of WEEE in-store to offset their compliance scheme fees. In 2013, an economic assessment by the UK Department for Business, Innovation and Skills estimated total revenues to distributors over 10 years at £67m.

For producers of EEE to realise the benefits of reuse and recycling, they must have a system in place to identify components and materials in their products, which can currently be or have the potential to be reused and recycled and implement design innovations. Distributors must also collaborate with producers, the waste industry and government to improve the collection and reprocessing of WEEE to maximise economic returns.

The case for compliance with the requirements of the WEEE Directive is complex. Whilst many companies view compliance as a means to avoid enforcement, a company with an effective WEEE compliance system can identify opportunities for innovation that as well as reducing costs can access recycling markets and government funding.

Anne Barr is managing consultant at The Compliance Map

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