Explanatory Memorandum to COM(2023)63 - Amendment of Directive 2012/19/EU on waste electrical and electronic equipment (WEEE) - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2023)63 - Amendment of Directive 2012/19/EU on waste electrical and electronic equipment (WEEE). |
|---|---|
| source | COM(2023)63  |
| date | 07-02-2023 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
On 25 January 2022, the Court of Justice of the European Union in its judgement in case C-181/20 1 declared as partially invalid Article 13 i of Directive 2012/19/EU on waste electrical and electronic equipment (“WEEE Directive”) by reason of non-justified retroactive effect, insofar as it provides for producers to have to assume the financing of the costs of collection, treatment, recovery and environmentally sound disposal of waste from photovoltaic panels placed on the market between 13 August 2005 and 13 August 2012. The latter date is the entry into force of the then new WEEE Directive, which replaced Directive 2002/96/EC. From its entry into force, photovoltaic panels were added to the scope of the WEEE Directive. Furthermore, the 2012 Directive more broadly implemented an ‘open scope’ as of 15 August 2018, changing in this respect from the scope of the earlier Directive 2002/96/EC.
The Court argues that prior to the adoption of Directive 2012/19/EU, Member States had, pursuant to Article 14 of Directive 2008/98/EC on waste 2 , the choice of requiring the costs relating to the management of waste from photovoltaic panels to be borne by current or previous waste holders, or by the producer or the distributor of the photovoltaic panels. According to the Court, the subsequently established rule, in Article 13 i of Directive 2012/19/EU, under which the financing of costs related to the end-of- life treatment of photovoltaic panels other than for private households must in all Member States be borne by producers, including where products had already been placed on the market at a time when the former legislation was in force, must be regarded as applying retroactively. It is therefore liable to infringe the principle of legal certainty.
The judgement requires follow-up through a targeted amendment of the WEEE Directive and its Article 13 i on financing the WEEE collection and treatment in respect of WEEE from users other than private households.
In addition, it was assessed that Article 12 i of the WEEE Directive should also be amended as it contained a parallel provision for electrical and electronic equipment (EEE) for private households. While this Article was not explicitly targeted by the Court’s judgement as not concerned by the underlying case, it can likewise be regarded as retroactive in the light of the Court’s reasoning and therefore, a similar amendment is to be made.
The targeted Commission proposal also addresses the impact of the Court’s judgment on other products falling under the ‘open scope’ set out in Article 2(1)(b) of the WEEE Directive as of 15 August 2018 with regard to which the situation is similar to the one of photovoltaic panels, explicitly targeted by the Court’s judgement. In particular, the ‘open scope’ can include both EEE for private households and EEE for users other than private households 3 . For both cases, following the Court’s judgement, clarification is needed that producers are obliged only from 15 August 2018 to finance the management of waste from ‘open scope’ EEE.
Consequently, the Commission proposal also covers an amendment of Article 12, paragraph 1. Amendment of Article 12, paragraphs 3 and 4 is proposed to clarify the time when the financing obligation for producers apply.
Likewise, to correct an otherwise retroactive effect based on the Court’s reasoning, the Commission proposal furthermore aims to amend Article 15(2) referring to the marking of EEE.
In addition, this proposal updates in Articles 14 i and 15(2) of the WEEE Directive the references to the European standard EN 50419 on marking of EEE in respect to separate collection of WEEE by replacing the reference to the 2006 version of this standard with the 2022 version.
• Consistency with existing policy provisions in the policy area
The current Union rules on the management of WEEE are laid down in Directive 2012/19/EU.
The proposal aims to amend Article 12, paragraphs 1, 3 and 4, Article 13 i and Article 15(2) of the WEEE Directive as a follow-up to the judgement of the Court of Justice of the European Union in case C-181/20. These provisions concern the principle of extended producer responsibility (EPR), a key principle of the WEEE Directive already enshrined in the first Directive 2002/96/EC and implementing the polluter pays principle as enshrined in the Treaty on the Functioning of the European Union. The EPR principle is set out in more detail in Directive 2008/98/EC on waste (Waste Framework Directive or WFD). The proposal maintains the full effectiveness of the EPR provisions. However, in light of the Court’s judgement, the principle of non-retroactivity and the related interests of economic actors have to be respected as regards the time when the WEEE Directive did not yet apply to photovoltaic panels and other products placed newly in its scope.
The proposal also aims at amending Article 14 i and Article 15(2) in order to update the reference to the European standard EN 50419 by replacing the reference to the standard EN 50419, adopted by Cenelec in March 2006, with the revised version of this standard, which was adopted in 2022 and update the references in the standard to the WEEE Directive (EN 50419:2022).
These proposed targeted amendments do not relate to any other policy provision in the WEEE area.
• Consistency with other Union policies
The proposed targeted amendments maintain coherence of the Directive and its EPR provisions with other Union policies.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The proposal is based on Article 192 i of the Treaty on the Functioning of the European Union relating to environmental protection, which is the legal basis of the Act it amends.
• Subsidiarity (for non-exclusive competence)
As referred to in Recital (36) of Directive 2012/19/EU, since the objective of the Directive cannot be sufficiently achieved by the Member States and can by reason of the scale of the problem, be better achieved at the level of the Union, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union.
Given that the targeted amendment aims to modify already existing provisions of the Directive in line with the Court’s judgment, it can be concluded that the principle of subsidiarity and EU-added value are respected, as originally intended by the adoption of Directive 2012/19/EU. Moreover, given that there might be different interpretations by the Member States regarding the question of when the extended producer responsibility applies to photovoltaic panels and new in scope EEE, there is a necessity for the amendment.
• Proportionality
As indicated in Recital (36) of Directive 2012/19/EU, in accordance with the principle of proportionality, as set out in Article 5 of the Treaty on European Union, the WEEE Directive does not go beyond what is necessary in order to achieve its objective.
Given that the targeted amendment aims to modify already existing provisions of the Directive in line with the Court’s judgment, it can be concluded that the principle of proportionality is respected, as originally intended by the adoption of Directive 2012/19/EU.
• Choice of the instrument
Given that the targeted amendment aims to modify already existing provisions of the WEEE Directive in line with the Court’s judgment, this proposal takes the form of a Directive amending Directive 2012/19/EU.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
Not applicable.
• Stakeholder consultations
Member States’ experts were informed of the implications of the Court’s judgement in case C-181/20 and during a meeting of the Expert Group on waste on 7 April 2022 on the implementation of Directive 2012/19/EU on WEEE 4 , where the Commission presented the main elements of the targeted amendment and asked for feedback. No objections to the proposed way ahead were raised, nor were any specific comments made.
Given that the Court’s judgement requires the Commission to implement the judgment without undue delay and taking into consideration the limited nature of the proposal, there were no further stakeholder consultations.
• Collection and use of expertise
Given the clearly defined, limited scope of this proposal to address a judgement by the Court of Justice of the European Union, no external expertise was required to be relied upon.
• Impact assessment
No impact assessment was carried out given that there was no choice for the Commission but to amend specific articles of the WEEE Directive according to the judgment of the Court of Justice of the European Union in case C-181/20.
• Regulatory fitness and simplification
The initiative is limited to amending Article 12, paragraphs 1, 3 and 4, Article 13 i and Article 15(2) of the WEEE Directive as a follow-up to the judgement of the Court of Justice of the European Union in case C-181/20 and to amend Article 14 i and Article 15(2) in order to update the reference to the European standard EN 50419. Therefore, the proposal follows a strictly defined legal scope and format.
• Fundamental rights
The proposal has no consequences for the protection of fundamental rights. Given the judgement of the Court of Justice of the European Union in case C-181/20, follow-up has to be given through this targeted Commission proposal for the amendment of the WEEE Directive.
4. BUDGETARY IMPLICATIONS
The proposed measure does not envisage budgetary consequences for the European Commission. Consequently, a legislative financial statement is not provided.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
Reporting arrangements are already provided for in Article 16 of the WEEE Directive, which is not affected by this targeted Commission proposal.
In addition, the rules for the calculation, verification and reporting of data for the purposes of the WEEE Directive are provided in Commission Implementing Decision (EU) 2019/2193 of 17 December 2019.
No additional measures or mechanisms are needed in relation to this proposal.
• Explanatory documents (for directives)
The Commission considers that documents explaining Member States' measures transposing the Directives are necessary in order to improve the quality of information on the transposition of the Directive.
The main objective of the proposed provisions is to ensure compliance with the Court of Justice of the European Union judgement and thus to clarify the time from when producers of different electrical and electronic equipment both for private households and for users other than private households have to provide for the financing of the management of the waste that occur from their products. Therefore, the complete and correct transposition of the new legislation is essential to guarantee that this objective is achieved and there is a harmonised approach across Member States.
The requirement to provide explanatory documents may create an additional administrative burden on some Member States. However, explanatory documents are necessary to allow effective verification of complete and correct transposition, which is essential for the reasons mentioned above, and there are no less burdensome measures to allow efficient verification. Moreover, explanatory documents can contribute significantly to reducing the administrative burden of compliance monitoring by the Commission; without them, considerable resources and numerous contacts with national authorities would be required to track the methods of transposition in all Member States.
In view of the above, it is appropriate to ask Member States to accompany the notification of their transposition measures with one or more documents explaining the relationship between the provisions of the Directive amending the WEEE Directive and the corresponding parts of national transposition instruments.
• Detailed explanation of the specific provisions of the proposal
Contents
Article 12, paragraph i:
The proposed amendment aims at clarifying the time from when producers of photovoltaic panels and of electrical and electronic equipment for private households that falls into the scope of the WEEE Directive only from 15 August 2018 (‘open scope’ EEE) have to provide for the financing of the costs for the collection, treatment, recovery and environmentally sound disposal of WEEE from private households. In particular, it clarifies that producers of photovoltaic panels for private households provide for the financing of the collection, treatment, recovery and environmentally sound disposal of WEEE resulting from photovoltaic panels where such photovoltaic panels were placed on the market from 13 August 2012.
It also lays down that producers of ‘open scope’ EEE for private households provide for financing regarding the abovementioned costs for the resulting WEEE where the EEE was placed on the market from 15 August 2018.
This provision aims to delete from the text of the Directive the first part of the first sentence “For products placed on the market later than 13 August 2005” given that the reference to 13 August 2005 is obsolete as a consequence to putting into effect the Court’s judgement.
Article 12, paragraph i:
The proposed amendment clarifies that this paragraph refers only to WEEE from products referred to in Article 2(1)(a) of the WEEE Directive other than photovoltaic panels.
Article 13, paragraph i:
The proposed amendment aims at clarifying from when producers of photovoltaic panels and of electrical and electronic equipment for users other than private households that falls into the scope of the WEEE Directive only from 15 August 2018 (‘open scope’ EEE) have to provide for the financing of the costs for the collection, treatment, recovery and environmentally sound disposal of WEEE.
In particular, it clarifies that producers of photovoltaic panels for users other than private households provide at least for the financing of the collection, treatment, recovery and environmentally sound disposal of WEEE resulting from photovoltaic panels where such photovoltaic panels were placed on the market from 13 August 2012.
It also clarifies that producers of ‘open scope’ EEE for users other than private households shall provide for financing regarding the abovementioned costs for WEEE resulting from such EEE where it was placed on the market from 15 August 2018.
Article 14 i:
This proposed amendment provides for an update as regards the reference in the WEEE Directive to the European standard EN 50419. Since this standard has been revised in 2022, the proposal is to replace the reference to the 2006 version of the standard with the updated version of 2022.
The proposed amendment comes as a consequential amendment from the amendments to Articles 12 and 13 to clarify that the obligation of producers to mark EEE applies only from 13 August 2012 in relation to photovoltaic panels and only from 15 August 2018 in relation to ‘open scope’ EEE. The proposed amendment also provides for an update as regards the reference to the European standard EN 50419, coherent with the change at this respect in Article 14 i.
Article 2 contains provisions regarding the transposition of the Directive by the Member States.
Article 3 contains provisions regarding the entry into force of the measure.
Article 4 defines the addressees of the measure, being the Member States.