EU on waste electrical and electronic equipment (WEEE) - Main contents

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dossier	COM(2023)63 - Amendment of Directive 2012/19/EU on waste electrical and electronic equipment (WEEE).
document	COM(2023)63
date	March 13, 2024

(1)Directive 2012/19/EU on waste electrical and electronic equipment (WEEE) entered into force on 13 August 2012, replacing Directive 2002/96/EC.

(2)Photovoltaic panels, which were not in the scope of Directive 2002/96/EC, were included in the scope of Directive 2012/19/EU from 13 August 2012, when they were added to category 4 of Annexes I and II referenced in Article 2(1)(a) of Directive 2012/19/EU.

(3)Article 13(1) of Directive 2012/19/EU establishes that producers of electrical and electronic equipment (EEE) are to bear the costs for the collection, treatment, recovery and environmentally sound disposal of waste EEE (WEEE) from users other than private households resulting from products placed on the market after 13 August 2005.

(4)On 25 January 2022, the Court of Justice of the European Union, in its judgement in case C-181/20 ⁷ , declared Article 13(1) of Directive 2012/19/EU invalid in so far as it concerns photovoltaic panels placed on the market between 13 August 2005 and 12 August 2012, by reason of non-justified retroactive effect. The Court held that because prior to the adoption of Directive 2012/19/EU, the EU legislature left Member States, pursuant to Article 14 of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste ⁸ , 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 distributor of the photovoltaic panels, and subsequently established a rule, in Article 13(1) of Directive 2012/19/EU under which those costs must in all Member States be borne by producers, including in relation to products the latter had already placed on the market at a time when the former legislation was in force, the latter rule must be regarded as applying retroactively, and is therefore liable to infringe the principle of legal certainty. The Court held that such retroactivity applies as regards photovoltaic panels placed on the market prior to the entry into force of Directive 2012/19/EU, on 13 August 2012.

(5)The Court’s judgment declaring Article 13(1) of Directive 2012/19/EU partially invalid directly implies that it should be amended so that it does not apply with regard to waste from photovoltaic panels from users other than private households placed on the market between 13 August 2005 and 13 August 2012. Furthermore, in light of the considerations spelled out in the Court’s judgement, it is necessary to amend Directive 2012/19/EU also in relation to the financing of waste from photovoltaic panels from private households to which Article 12 of Directive 2012/19/EU applies and in relation to other EEE, both regarding waste from private households and from users other than private households, which are in a position comparable to that of photovoltaic panels.

(6)Article 2(1)(b) of Directive 2012/19/EU from 15 August 2018 extends the scope of application of that Directive to all EEE. Similarly to photovoltaic panels, EEE which did not fall within the scope of Directive 2012/19/EU pursuant to its Article 2(1)(a), but which entered in its scope from 15 August 2018 pursuant to its Article 2(1)(b) (‘open scope EEE’), was previously not included either in the scope of application of Directive 2002/96/EC. Therefore, prior to the adoption of Directive 2012/19/EU, Member States were, pursuant to Article 14 of Directive 2008/98/EC, left the choice of requiring the costs relating to the management of waste from that EEE to be borne by current or previous waste holders or by the producer or distributor of that equipment. Therefore, applying Article 13(1) of Directive 2012/19/EU to open scope EEE would, for the reasons set out in the Court’s judgment in case C-181/20, be contrary to the principle of legal certainty. As Directive 2012/19/EU however includes open scope EEE only from 15 August 2018, Article 13(1) should be amended so to not apply to open scope EEE placed on the market between 13 August 2005 and 15 August 2018.

(7)As a mirroring provision of Article 13(1) of Directive 2012/19/EU, which applies in respect of users other than private households, Article 12(1) read in conjunction with Article 12(3) of Directive 2012/19/EU imposes the financing of the costs for the collection, treatment, recovery and environmentally sound disposal of WEEE from private households on producers with regard to products placed on the market as from 13 August 2005. For the reasons set out in the Court’s judgment in case C-181/20, in so far as these provisions apply to the financing of those waste management costs for photovoltaic panels placed on the market between 13 August 2005 and 13 August 2012 and to open scope EEE placed on the market between 13 August 2005 and 15 August 2018, they would equally apply retroactively in a way that is contrary to the principle of legal certainty. Therefore, Article 12 of Directive 2012/19/EU should be amended in such a way as to not apply to photovoltaic panels placed on the market between 13 August 2005 and 13 August 2012 neither to open scope EEE placed on the market between 13 August 2005 and 15 August 2018.

(8)Articles 14(4) and 15(2) of Directive 2012/19/EU provide for EEE placed on the market to be marked, preferably in accordance with the European standard EN 50419, which was adopted by Cenelec in March 2006. This standard has been revised in order to update the references it contains to Directive 2012/19/EU. Therefore, the reference to the standard in Article 14(4) and in Article 15(2) should be updated to refer to the updated version of the standard EN 50419, which was adopted by Cenelec in July 2022.

(9)Article 15(2) of Directive 2012/19/EU provides that in order to enable the date upon which the EEE was placed on the market to be determined unequivocally, Member States shall ensure that a mark on the EEE specifies that the latter was placed on the market after 13 August 2005. As a consequential amendment from the amendments to Articles 12 and 13, Article 15(2) should be amended with respect to photovoltaic panels and open scope EEE, so that it clarifies that the marking obligation applies only from 13 August 2012 in relation to photovoltaic panels and only from 15 August 2018 in relation to open scope EEE.

(10)In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents ⁹ , Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified.