HERZFELD & RUBIN, P.C. LAWYERS PROFESSIONAL CORPORATION
IN ASSOCIATION WITH RUBIN MEYER DORU & TRANDAFIR

Recycle, Reduce and Re-use of Electric and Electronic Waste:
New Obligations and New Potential Area of Business

Introduction
The content of hazardous components in electrical and electronic equipment (EEE) is a major concern during the waste management process, and recycling of waste resulting from electric and electronic equipment (“WEEE”) is not undertaken to a sufficient extent. This was the concern of the European Union when deciding to adopt a new Directive on WEEE, coming to better address the entire collection process of waste and to also extend the level of obligations of those who put WEEE on the EU market.

In this context, after more than three years of analysis, the European Parliament and the Council came to adopt Directive 2012/19 regarding WEEE (the “Directive”), thus cancelling former Directive 2002/96. The new Directive became effective on August 13, 2012, and the deadline for the Directive’s transposition in the national legislations of all the member states was set to February 14, 2014.

The new Directive obliges legal entities to put in place a coherent management system of WEEE, both through selective collection of waste, and through its delivery for recycling to authorized operators. However, it is not enough for the respective legal entities to just deliver the waste; they need to ensure that the actual recycling of the respective waste is really performed. Considering that non-compliance with the specific provisions of the directive triggers penalties and big fines, any entity potentially affected by the provisions of this Directive should closely look into its provisions.

Generally, the purpose of the new Directive is to contribute to sustainable production and consumption by, as a first priority, the prevention of WEEE, and in addition, by the re-use, recycling and other forms of recovery of such wastes. The Directive aims to improve the collection; reuse and recycling of electrical and electronic equipment in order to diminish and reduce waste, but also to achieve a more efficient promotion of resources.

For the private business, the amendments put in place by the new Directive trigger enlarged environmental obligations, since new categories of WEEE are now covered by the Directive. Determining the products which may represent WEEE and therefore be covered by the provisions of the Directive – which is exclusively the task of the producers themselves – is essential since a determination of WEEE which is contrary to the legal provisions will cause the application of fines for the respective producers.

As mentioned above, the deadline set for the Directive’s transposition into the national law of all member states was set to February 14, 2014. Although the former Directive 2002/96 was cancelled on February 15, 2012, the new Directive has not yet been transposed into the Romanian national legislation. This is not the first directive whose transposition has been delayed in Romania; however, in this case, any further delay in adopting the national law may trigger the impossibility of the state to reach its objectives as set by the EU.

In Romania, the new Directive should be transposed into national legislation by way of a Government Decision, which would replace the former one, i.e. GD 1037/2010 (adopted based on the previous Directive 2002/96). Although the draft Government Decision has been published on the website of the Ministry of Environment and put under public debate since January 2014, peculiarly enough, the actual Government Decision has not been adopted. Nearly a year past the deadline, Romania seems to be in breach of its obligation to transpose the Directive into national law. On the other hand, while Romanian authorities seem to treat this subject with peculiar indifference, the European Commission has proved its commitment to undertaking the objectives set by the Directive, and has developed various documents in an attempt to ensure the proper understanding and application of the new Directive.

In particular, the new Directive means increased obligations and a larger area of application. The Directive’s targets are individual, and each company making electric equipment available on the market may be directly and individually verified, meaning that sanctions may be applied more accurately following its implementation.

Without intending to be an exhaustive presentation of the provisions, here are some the major issues brought up by the new Directive. 

The revised WEEE regime as put in place by the new Directive covers a larger category of producers. An innovation introduced by the Directive regards the producers of photovoltaic panels – equipment including substances which degrade the level of ozone – which are now within the scope of this directive and, hence covered by the provisions and obligations put in place by the WEEE regime. However, the obligations regarding these products will become effective within a six-year term, by mid-2018.

As pinpointed above, the Directive has a transitional period, until August 14, 2018. Until then, the categories of electric and electronic equipment (“EEE”) put in place by the former Directive 2002/96 remain valid and applicable, as regards targets and reporting obligations. The new Directive includes, however, an addition in category four, mentioning that, during the transitional period, category four not only includes consumer equipment, but also photovoltaic panels as well.

From August 15, 2018, the Directive shall have an open scope, and all EEE will have to be placed in one of the six categories set by this new Directive, as regards targets and reporting obligations.

In order to determine whether a product falls within the scope of the Directive, any interested party needs to examine whether the respective equipment meets the definition of EEE, as set by the Directive, and further, if the equipment falls under any of the exclusions.

Member states and other relevant actors are allowed to design and use additional categories and subcategories, as long as reporting to the Commission in is line with the requirements of the Directive.

New categories of EEE
As outlined above, the new Directive extends the EEE covered by the provisions of the Directive. From August 15, 2018, EEE are going to be regrouped in six categories, instead of the ten current categories of EEE. Although the targets remain the same, the categories of EEE covered by the provisions of the Directive shall differ.

Besides the fact that it has broadened its scope of application, the Directive also comes to better specify its application over certain categories of EEE, such as the following:

Batteries
A producer of EEE containing a battery is also regarded as a battery producer under the Battery Directive (Directive 2006/66/EC). Batteries incorporated in WEEE will be collected based on the Directive. However, after collection, they will be removed – by way of manual, mechanical, chemical or metallurgic handling – from the WEEE and they will count for the collection targets, as well as recycling requirements as set under the Batteries Directive. 

Components
Components placed on the market separately in order to be used to manufacture and/or repair an EEE fall outside the scope of the Directive unless they have an independent function. On the other hand, a sell-assembly kit which consists of components forming an EEE when assembled is an EEE at the stage when it is sold as an assembly kit.

Antennas and cables
Antennas and cables used for the transfer of electrical currents and electromagnetic fields fall under the scope of the Directive. Cables which are components of another EEE (internal – permanently attached – or externally connected and removable, but sold together or marketed / shipped for use with the EEE) do not fall under the scope of the Directive. Cables placed on the market individually which are not part of another EEE are considered as EEE themselves.

Printer cartridges
This depends on the type of printer cartridge. Printer cartridges which contain electrical parts and are dependent on electrical currents or electromagnetic fields in order to function properly fall within the scope of the Directive. On the other hand, printer cartridges which consist of ink and container, without electrical parts, do not fall within the scope of the Directive.

Is any equipment that contains photovoltaic cells, modules or panels a photovoltaic panel under the Directive?
A photovoltaic panel is a piece of electrical equipment which has been designed with the sole purpose to generate electricity from solar light for public, commercial, industrial, rural and residential applications. This definition does not therefore include equipment with integrated PV cells whose function is to generate the electricity required to make the respective equipment work. The following non-exhaustive list outlines examples of equipment containing a solar cell which is not to be considered as photovoltaic panels, but nonetheless fall under categories of the Directive: solar air conditioning, solar cell phone charger, solar backpack, solar fan, solar keyboard, solar lamp, solar notebook, solar powered calculator, and solar powered refrigerator. Such equipment does not need to be reported as PV panels, but should be reported under its respective category of the Directive.

Additionally, the Directive clarifies whether the requirements regarding targets and reporting obligations are also applicable to, among others, lightning equipment, medical equipment, IT and telecommunication equipment.

From 2019, the minimum collection rate to be achieved annually shall be 65% of the average weight of EEE introduced on the market in the three preceding years in the respective member state, or alternatively, 85% of the WEEE generated on the territory of the respective member state.

As other states from Central and Eastern Europe, Romania will benefit from a transitional period, meaning that, during the first stage, i.e. between 2016-2019, the collection rate will be between 40-45%, and the fulfillment of the 65% collection rate (applicable in the EU from 2019) will be delayed until a further date which is to be decided by the respective member state, but which cannot be later than 2021.

The Directive obliges distributors to accept a discarded item when a new equivalent item is purchased. The Directive allows the member states to derogate from this provision, however, the states still have to ensure that returning of WEEE is not made more difficult and that it remains free of charge for the final holder.

It is for the first time when small distributors of EEE are obliged to provide for the collection of very small WEEE inside the stores which have selling areas of at least 400 m², or in the neighboring area. This obligation is applicable only in relation to small WEEE, having external dimensions of no more than 25 cm. The respective distributors must provide this service for free for the final users, with no correlative obligation for the latter to purchase any EEE. Member states are allowed to deviate from this requirement, but they still need to apply alternative collection schemes, and such schemes must be shown to be at least as effective.

The Directive obliges member states to promote that collection schemes or facilities provide, where appropriate, for the separation at collection points of WEEE to be prepared for re-use and to grant personnel from re-use centers access to the respective WEEE, provided that such re-use centers are accredited, according to the provisions of the Directive.

Basically, a number of different practices existing in various member states may apply, as regards access to collection points by re-use centers. For instance, if producer responsibility systems establish collection points, they can also control access to all collection points and cooperate with accredited re-use centers. The access could also be granted based on individual contracts between the respective operators and the re-use centers.

The Directive has put in place stricter restrictions regarding the illegal export of WEEE, so that to ensure that producers will not be tempted to export waste for processing in countries where the labor conditions are dangerous and breach environmental regulations. According to the new Directive, the exporter will be liable to prove that the goods have been expedited abroad for legitimate purposes, such as repair or reuse.

To be certain that these provisions of the Directive are fully complied with, certain issues need to be clarified, such as: Is a company manufacturing EEE in a member state, but exporting 100% of its production considered to be a producer in that member state? The answer given by the Directive to this query is pretty simple. According to the provisions of the Directive, a company established in a member state and manufacturing EEE under its own name or trademark is considered to be a producer only if it also markets EEE under its name or trademark within the territory of that member state.

Another query might be whether a manufacturer or seller not established in any member state may be considered a producer of EEE. Once again, the Directive comes to clarify this aspect. In cases that a manufacturer or seller established in a non-EU country sells EEE directly to an end-user located in a member state by means of distance communication, the respective manufacturer or seller is considered to be the producer of that EEE and must comply with the requirements of the Directive, i.e. it needs to be registered in the national registry of each member state where it sells, to fulfill take-back obligations, to report on the quantities placed on the market of each member state. However, if a manufacturer or a seller established in a non-EU country sells EEE to a professional seller in a member state then the latter meets the definition of producer under the Directive and has to comply with the requirements of the Directive.

Another legitimate query is whether a natural or legal person which places on the market of a member state, on a professional basis, EEE from a third country or from another member state needs to have the equipment branded under their own name in order to be considered a producer. According to the Directive, a natural or legal person placing on the market of a member state, on a professional basis, EEE from a third country or from another member state meets the definition of producer, regardless of whether the EEE is branded under its own name or not.    

Meeting the global targets regarding environmental protection is indeed a major concern. But this cannot be done in lack of a substantial effort put forth by each of the parties involved.

Meeting the environmental targets should be seen as a joint effort of both those whose activity generates environmental obligations and are therefore bound to comply with the environmental rules, but also of those who are competent to establish the macro policy.

This economic sector regarding waste treatment and recycling might contribute to the creation of jobs and re-launching investments, which may be seen as evolution of the entire economic life. However, this may be done only through an integrated approach developed at the national level. The fact that the Romanian state has not transposed, almost one year after the deadline, the Directive into national law shows lack of commitment towards the community targets. How can Romania as a state be able to reach its objectives if we are still unaware of the policy put in place by the state? As mentioned above, there are various areas where the Directive allows the member states to create their own policies, the result being the only one which matters, i.e. meeting the targets. No matter the manner in which the state may decide to internally regulate this area of business, it is a true fact that environmental obligations of producers will increase.