Legal Commentary: The Waste Electrical & Electronic Equipment Directive

As part of the government's progressive environmental agenda, the Waste Electrical and Electronic Equipment Regulations 2006 (the WEEE Regulations) have now come into effect.

Directives are drafted in such a way as to provide flexibility when incorporating their requirements into each member state's own domestic legislation. This is why different countries can end up with different legal requirements following the publication of a directive the WEEE Directive is no exception and explains why the Department of Trade & Industry (DTI) has found its transposition into UK legislation a challenging task, as have many other EU member states.

The DTI published a comprehensive set of guidance notes at the end of February 2007. 

At the outset, the point is made that the notes are not definitive and will be updated in the light of comments received as the UK WEEE system develops over time. And, as with any legislation, it will be the courts that will ultimately decide exactly how the regulations should be interpreted.

What do the regulations mean?

The intention of the regulations is to encourage the recycling of electrical and electronic equipment (EEE), such as:

• Large household appliances.
• Small household appliances.
• IT and telecommunications equipment.
• Consumer equipment.
• Lighting equipment, including electric light bulbs and household luminaires.
• Electrical and electronic tools (with the exception of large-scale stationary industrial tools).
• Toys, leisure and sports equipment.
• Medical devices (with the exception of all implanted and infected products).
• Monitoring and control instruments (smoke detectors, heating regulators and components used in control panels).
• Automatic dispensers.

The cost of recycling is borne in part by the distributor (usually the retailer or wholesaler) and the producer (usually the manufacturer), not the consumer. Ultimately, however, these costs will be built into the price of the product.

Who does the WEEE Directive apply to?

Where WEEE is removed as part of a commercial contract, the contracting parties are free to make their own commercial arrangements.

There has been concern that an installer might be deemed to be a distributor. Nowhere in the guidance notes is this suggested and indeed the installer is barely mentioned. The definition of a producer, however, is a little more complex than might first be expected and essentially includes organisations that:

• Manufacture EEE under their own brand.
• Sell EEE in the UK under their own brand, but which has been manufactured by another company.
• Import EEE and introduce it to the UK market (including from the Republic of Ireland).
• Sell EEE by distance-selling in another European member state.

Next steps for producers

A producer has to be a member of a Producer Compliance Scheme (PCS) and contribute to the funding of recycling WEEE. The intention of the Directive, and so the regulations, is that producers take financial responsibility for the environmental impact of products they place on the market, especially when those products become waste.

Implementation of the regulations is now under way. Producers must have joined a PCS by 11 April 2007 and failure to do so is an offence. EEE, which is now covered by the regulations, must be marked with a crossed-out wheelie bin. Producers have an obligation to collect and treat WEEE as from 1 July 2007. Distributors have a WEEE take-back obligation from 1 July 2007, which includes having it delivered to a PCS collection point.

A schedule of approved PCS can be found under Commercial Advice in the members' section of the ECA's website:www.eca.co.uk.

So how does it affect installers?

There were concerns that control panels might be subject to the regulations and so bring the installer into the category of producer. The widely held view is that this is not the case and it is only the qualifying components within a control panel that will be categorised as WEEE. However, installers should still be wary about branding composite equipment that they assemble to be sure that they will not get caught under the regulations as a producer.