The European Commission’s proposed target to increase collection of waste electrical and electronic equipment will fail because it does not take into account the role of other actors in the supply chain, according to computer firm Hewlett Packard. The Commission’s proposals were published late last year in a draft revised Directive (ENDS Report 407, pp 59-60 ).
Instead of the current target to collect four kilograms of WEEE per person per year, "producers or third parties acting on their behalf" would have to collect at least 65% of the average weight of WEEE products placed on the market in the two preceding years. The wording suggests the Commission wants to shift collection responsibilities from governments to manufacturers, which have slammed this decision.
"The Commission has lost its way," said Kirstie McIntyre, WEEE programme manager at Hewlett Packard "We don’t believe it is measuring at the right point. To measure 65% at the collection stage and make producers responsible for that misses a whole section of what happens to products before they reach the end of their life."
She pointed to a study by Dutch producer compliance scheme NVMP, published April last year, which looked at flows of e-waste from individuals through civic amenity sites, second hand shops, sorting centres, retailers to recyclers.1 It found that while each person produced 16-18kg of WEEE a year, only 5.7kg was captured by collection schemes. Nevertheless recyclers were reporting they were still recycling 11.8kg. Research referred to this extra 6.1kg as a "complementary flow" - unreported recycling and reuse driven by social enterprises and business interests.
"We do believe we have a responsibility but there is a limit to what we can do," said Ms McIntyre. "To meet the targets we would almost have to say that customers must return their products to HP. We can’t even get people to fill out their warranty cards and offering rebates is prohibited."
The European Committee of Domestic Equipment Manufacturers has voiced similar concerns. It said the Commission knew that huge amounts of the most valuable end-of-life equipment are sold off for profit, often by local authorities themselves, to actors not covered by the WEEE Directive.2 This, it said, is why so much electronic waste is unaccounted for. But instead of tackling the issue and ensuring there is no leakage from the system "the Commission is ignoring the problem."
HP said that measuring recycling of WEEE at the recycler would be more logical and allow for greater enforcement on illegal exports. This would allow community and professional reuse firms to operate business as usual.
Other producers are concerned that the shift of responsibility to producers to finance collections will "hand a blank cheque to municipalities".
Previously, the cost of WEEE collection has fallen on "distributors" or retailers. In the UK this has been done through a distributor take-back scheme, where shops and internet retailers have paid for a country-wide network of designated collection facilities (DCFs). The alternative has been in-store take-back. Currently financial obligations for producers only begin when collecting and transporting WEEE from DCFs to treatment facilities.
"This is a major departure of what the Directive originally intended," said Philip Morton, chief executive of the UK’s largest producer compliance scheme, REPIC. "We’re bemused. There is a suggestion it might be loose wording. If not, how will it work? All it does is add cost into the supply chain, which ultimately will be passed to the consumer."
Under current conditions the amendment is unlikely to change much. But some producers will be worried about pressure in the future to extend collection schemes above and beyond what now exists in order to meet the 65% collection target.
In its impact assessment the Commission recognises that producers of EEE will pass costs onto customers because of their tight margins. This, it says, is in line with the ‘polluter pays’ principle.3
Questions are also being asked about the feasibility of the Commission’s decision to harmonise the scope of WEEE with the Directive restricting certain hazardous substance (RoHS).
While the legal basis of WEEE is Article 175 of the EC Treaty, for RoHS the basis is Article 95. Article 95 provides little leeway for member states to impose additional or reduced regulatory measures to ensure harmonisation. However, Article 175 gives member states more freedom, where environmentally justified, to go beyond EU legal requirements.
In an attempt to harmonise the scope of the two Directives, the Commission is proposing to place the WEEE Directive’s annex 1A and 1B under the scope of RoHS, and therefore Article 95.
The Commission hopes that this will clarify the scope of WEEE producer responsibility, reduce administrative burdens for industry and provide a level playing field across member states.
"From a legal point of view, I’m not sure this will work," said Cándido García Molyneux of law firm Covington and Burling. "WEEE will continue to be based on Article 175, so member states may continue to have discretion to introduce additional categories of products and impose more stringent requirements where environmentally justified."
Amendments to provisions on visible fees that show consumers the cost of recycling a product when they buy it have caught industry by surprise, particularly when there is no reference to these in the accompanying impact assessment.
"This is a complete reversal of previous policy, yet with no justification," said Adrian Hawkes, policy director at Valpak. "In the UK at the moment we are implementing battery regulations that explicitly exclude visible fees. But given the Commission’s u-turn you have to wonder whether it will look to apply this to other producer responsibility areas."