The production of electronics is one of the fastest growing branches of industry in the western world. New electronic appliances are constantly being created and purchased by eager buyers. This development, however, also means that an increasing quantity of equipment is thrown away or replaced and that the stream of waste of ICT equipment is increasing. Estimates indicate that the growth of electronic waste is around three times as high as the growth of ordinary household refuse. This growing stream of waste places a considerable burden on the environment, not in the least because of the percentage of poisonous substances contained by such equipment. Often, special treatment and processing is omitted and the equipment ends up in the stream of waste together with the regular household refuse.
Since 13 August 2005, several new environmental rules have been introduced in The Netherlands to try to put a stop to this development. These rules are the result of the implementation of the Directive on waste electric and electronic equipment, also known as the WEEE Directive. Simultaneously with the WEEE Directive, its ‘twin sister’ was introduced, the Directive on the restriction of hazardous substances (RoHS Directive). The RoHS Directive provides rules for the production of electr(on)ic equipment and bans the use of various substances, such as lead and cadmium. This RoHS Directive, however, falls outside of the scope of this article.
The obligations for producers of electr(on)ic equipment
For the daily practice of the ICT sector, the WEEE Directive has many consequences as it imposes far-reaching (financial) obligations on the producers of electr(on)ic equipment, such as PC’s, laptops, servers, switches, printers and mobile phones. Producers are required to finance both the collection and processing of such equipment from the moment the end user hands it in with the municipal collection depot or with the retail trade.
Producers can meet the financial obligations imposed on them in various ways. They can either make individual arrangements or join collective recycling systems. In the various member states, organisations have been set up to take care of the processing of waste. In The Netherlands, organisations like Stichting NVMP, RTA and ICT Milieu perform this job.
In order to avoid producers ignoring their obligations, the WEEE Directive provides for a guarantee arrangement. Producers must provide a guarantee demonstrating that they will indeed take care of the processing of waste. This guarantee can be given by means of, for example, recycling insurance, a blocked account or by participation of the producer in appropriate financial arrangements.
For producers of electr(on)ic equipment, the WEEE Directive contains more than financial obligations. Producers are also obliged to register with the competent authorities. In addition, they must mark their products with a so-called kca or wheely bin logo (a crossed-out dustbin) and indicate that the product was put on the market after 13 August 2005. Furthermore, they are obliged to inform the consumer about the fact that electric waste must be collected separately and indicate where the consumer can hand it in. The producer must also pay attention to the role that consumers play in the recycling cycle and to the risks that electric waste poses for the environment and public health.
Who Bears Financial Responsibility?
Producer responsibility lies at the heart of the WEEE Directive. It must therefore be established without doubt who exactly qualifies as producer to allow for a correct implementation of the WEEE Directive and an accurate assignment of the obligations. A producer is defined as “any person who i) manufactures and sells electrical and electronic equipment under his own brand, ii) resells under his own brand equipment produced by other suppliers, or iii) imports or exports electrical and electronic equipment on a professional basis into a Member State”. Not only is the manufacturer therefore producer within the meaning of the WEEE Directive, but so too are the importer and the person distributing the equipment under its own brand. In the following paragraphs of this article, it will be demonstrated that it is not always clear who qualifies as producer and that companies that do not generally consider themselves as producers can still be held responsible financially.
When a Dutch company imports products from abroad and resells this to Dutch consumers, both the foreign manufacturer and the Dutch importer qualify as a producer within the meaning of the WEEE Directive. The WEEE Directive does not determine which one of them must assume the WEEE obligations. In practice, member states have solved this issue by determining that the importer must take on the costs, implying that the Dutch importer needs to join a recycling system and meet the registration obligation. The importer is free to make deviating arrangements with the foreign manufacturer and in practice this regularly happens.
The situation becomes more complicated when a Dutch professional end user buys electronics from a foreign manufacturer. In this case, the question arises whether such end user can be deemed to import electr(on)ic equipment on a professional basis (in which case he qualifies as importer and therefore as a producer). Again, the WEEE Directive does not give an unambiguous answer. In The Netherlands, the professional end user is held responsible for the processing costs of the equipment in question. Although a professional end user is not generally considered a producer in the ordinary meaning of the word, he can actually qualify as such under the WEEE Directive.
Even more complicated is the situation where a Dutch manufacturer delivers equipment to a foreign consumer. Since the WEEE Directive intends to provide for a system in which consumers can dispose of their equipment for free, the foreign consumer cannot be qualified as a professional importer. Thus the question arises as to who must bear the costs in this case. Literal interpretation of the WEEE Directive implies that the manufacturer will have to bear the costs. It is not clear, however, if and how foreign authorities will collect the recycling costs from the manufacturer in practice since it is questionable how a Dutch producer can be obliged to financially contribute to an Italian or Swedish recycling system. Research shows that the various member states are struggling with this issue as well. In Great Britain for instance it is expected that this type of discarded equipment will be treated as ‘orphan waste’: waste that cannot be traced and therefore ends up in the processing stream at the expense of the collective. This means that the Dutch manufacturer will probably not be confronted with a bill from Great Britain. In Finland, however, the Dutch manufacturer is considered responsible. The Finnish authorities are considering making arrangements with other Member States on the basis of reciprocity, so that costs can be allocated across the borders. Whether such arrangement will actually get off the ground remains to be seen, especially since The Netherlands have not yet taken a position on the question whether waste arising from such transactions must be considered as orphan waste or not.
The professional end user of electr(on)ic equipment has financial responsibilities as well. ICT companies that have equipment in use which originates before 13 August 2005 remain responsible for the processing costs as they were based on the old legislation. For equipment placed on the market after 13 August 2005, responsibility transfers to the producer, it being noted that an end user buying the equipment from a foreign party also qualifies as ‘producer’ and is therefore financially responsible. This last end user is therefore best placed to arrange with his salesman that the latter assumes the WEEE obligations.
Manufacturers as well as importers and professional end users of electronics would be wise to reflect on the question whether they qualify as producer, as this will result in a variety of (financial) obligations. Parties exporting equipment abroad are confronted with additional complexities as the implementation of the WEEE Directive in the various countries is not always in chorus. Since not all Member States have implemented the various obligations yet, and since Member States are taking different stands with regard to some of the obligations, it remains to be seen from country to country who must bear the WEEE obligations. Whatever the outcome will be, it is impossible to imagine today’s world of electronics without the WEEE.
Commission of the European Communities, COM(2000)347 final, Brussels13 June 2000.
COM(2000)347, see note 1.
In The Netherlands, the Directive has been implemented in the Besluit Elektrische en Elektronische Apparatuur (Decreee on Electric and Electronic Equipment, 19 July 2004.
Directive 2002/96/EG of the European Parliament and the Council of 27 January 2003 on waste electric and electronic equipment.
Stichting Nederlandse Verwijdering Metalektro Producten, Stichting Recycling Technologische Apparatuur, Stichting ICT Milieu.
 Article 8(2) Directive 2002/96/EG.
 Article 10 Directive 2002/96/EG.
Article 3(i) Directive 2002/96/EG.
Information from phone conversations by SenterNovem, implementing body of the Ministry of Housing, Spatial Planning and Environment that inter alia deals with the WEEE Directive, November 2005.
 This obligation was laid down in the Besluit Beheer Wit- en Bruingoed (Decree on the Management of White and Brown Goods).