DTI proposals on batteries raise EC compliance issues

The EC Directive should have been brought into force by September 1992. Implementation was delayed because the European Commission had difficulties in securing agreement on the form of two labels advising consumers not to deposit spent batteries in dustbins and indicating their heavy metal content. The labelling scheme has now been finalised and incorporated in a Commission Directive issued early in October.²In May, the DTI consulted on the collection options for batteries (ENDS Report 220, pp 31-32 ). It says it is still considering responses to this.

The new consultation paper deals with provisions of the Directive which the DTI believes must be implemented by statutory means. It says that it intends to bring the necessary regulations into force on 1 January 1994, but adds that this timetable may have to be reviewed in the light of responses from consultees. However, any further lengthy delay is likely to be unacceptable to the Commission, which set 31 December as the deadline for introducing the new labelling requirements.

The draft regulations will implement three of the Directive's requirements. These are a ban on alkaline manganese batteries containing more than 0.025% mercury by weight, with some exceptions; the labelling system; and a provision that spent batteries must be readily removable from appliances by consumers.

As provided in the new labelling Directive, the labelling requirements will not apply to batteries marketed in Britain before 1 January 1996 if they were manufactured in, or imported into, the EC before 1 January 1994.

The DTI's proposals on enforcement of the labelling Directive's requirements arguably do not go far enough. Under the Directive, Member States are obliged to "lay down the penalties to be applied in the event of an infringement" of its provisions, and such penalties "must be effective, proportionate and deterrent in their effect."

This wording suggests that infringements should automatically attract a penalty. But the DTI has proposed that the initial response to a breach of the labelling rules should be for the Secretary of State to serve a notice requiring compliance. In the period immediately after the entry into force of the regulations, manufacturers would be given up to six months to comply. Only if the notice was not complied with would an offence be committed. The paper adds that the appropriate level of fine for such an offence has yet to be decided.

A similar approach will be taken to enforcing the statutory requirement for appliances to be designed so that spent batteries are readily removable. In this case manufacturers would have up to 12 months to comply with a notice in the early phase of implementation.

The consultation paper does not deal with how spent batteries will be collected separately and recycled or disposed of separately. According to the DTI, the Directive's provisions in these areas are "less specific" and will be implemented by non-statutory means.

Exactly why the DTI has interpreted the Directive in this way is not clear. For example, it regards as "less specific" a clause which says that "Member States shall take appropriate steps to ensure that spent batteries and accumulators are collected separately with a view to their recovery or disposal." Yet almost exactly the same wording is used in clauses which are to be implemented by statutory means. Thus the Directive says that Member States "shall ensure" marking of batteries, and that they "shall take measures to ensure" that batteries are not incorporated into appliances from which they cannot be readily removed.

The European Commission has received backing from the European Court of Justice in arguing that Member States must give statutory effect to obligations laid down in Directives. It will be interesting to see whether it is satisfied with the "non-statutory" scheme which the DTI has in mind.