1. 13 July 2009
DIGITALEUROPE PRELIMINARY RESPONSE TO THE EUROPEAN
COMMISSION PROPOSAL FOR A REVISED DIRECTIVE OF THE
EUROPEAN PARLIAMENT AND OF THE COUNCIL ON WASTE
ELECTRICAL AND ELECTRONIC EQUIPMENT (WEEE)
DIGITALEUROPE has been delighted to play an active and positive role in the WEEE
Directive review process. DIGITALEUROPE looks forward to working closely with the
Commission, Parliament and Council to improve certain parts of the text, in particular
regarding the following important elements:
1. Collection targets and responsibilities
2. Harmonisation of scope, definitions and registration
3. Classification of Business to Business and Business to Consumer WEEE
4. WEEE v. used-eee shipments
5. Visible Fee
6. Individual Producer Responsibility
SUMMARY
Collection Targets and Responsibilities:
• It will be impossible for Producers to assume responsibility for the 65% collection
target as there are massive flows of WEEE outside the producer owned WEEE
systems.
• Instead the Directive should ensure that 100% of WEEE is recycled according to the
requirements of Annex II of the Directive and that all WEEE is accounted for.
• Member states are in control of the key instruments to both organize and enforce the
achieving of the collection targets.
• The role and responsibilities of producers should be focussed on achieving the
recovery and treatment targets as stated in Article 11.
Harmonisation of Scope, Definitions and Registration
• Shifting the WEEE annexes on scope to RoHS while keeping Article 175 as the sole
legal basis for the WEEE Directive does nothing to resolve different interpretations of
scope between various Member States.
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2. • In order to ensure a uniform scope across the EU without any divergence between
Member States, the Scope section and definitions of “EEE” and “WEEE” should have
Article 95 as their legal basis.
Classification of Business to Business and Business to Consumer WEEE
• The percentage of products that are B2C varies between producers dependent on
their business model and market niche. Some producers are focussed on the B2C
market; others sell to both B2B and B2C, whilst others sell largely or solely to the B2B
market.
• Therefore it would not be fair to establish a single one size fits all classification into
B2C and B2B.
• The best way to establish consistency across the EU is to enable producers to
determine whether a product is declared as B2B WEEE based upon the intended end
user of the product and according to criteria developed by DIGITALEUROPE.
WEEE v. used-eee shipments
DIGITALEUROPE is concerned that setting provisions dealing with transboundary
movements of used EEE within the WEEE Directive, which is based on Article 175 of
the EC Treaty, could lead to non harmonised requirements across Member States,
thus inhibiting the free movement of goods and the operation of the single market.
WEEE shipments as such are already covered under the Waste Shipments
Regulation and dedicated sections in the Waste Shipment Guidelines. In the recast, it
would be therefore more appropriate to use the expression “shipments of used EEE”
(with distinction between “for direct re-use” and “for repair with the intention of re-
use”) instead of “shipments of WEEE”.
In order to have harmonised requirements across Member States, we are proposing
to use of Article 95 of the EC Treaty as the legal basis for the new proposals in Article
20(2) and Annex I.
Streamlined and proportionate requirements are needed for EEE that is being sent to
and from producer evaluation or test centres and repair centres. These products
should not be classified as WEEE as long as the shipment is accompanied by a
declaration that none of the material or equipment within the consignment is waste as
defined in the WFD, and sufficient packaging is provided to protect it from damage
during transportation.
Visible Fee
Visible Fees may be appropriate as a transparent financing method for products for
which the cost of collection and recycling is substantial in comparison to the product
selling price.
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3. Visible Fees may be inappropriate for products, where the costs associated with the
administration of the fee far exceed the actual cost of recycling the products and
where the use of Visible Fees places an additional administrative burden on
producers.
DIGITALEUROPE calls on the European Parliament and Council to ensure that the
visible fee will remain voluntary so to ensure that no excessive burden will be placed
on businesses that do not need the visible fee to cover cost of recycling.
Individual Producer Responsibility
DIGITALEUROPE shares the view that Article 12.2 is an appropriate legal framework
for the implementation of producer responsibility for WEEE.
The European Institutions should ensure that the choice between individual and
collective solutions, as defined by Article 8.2 of the WEEE Directive, should be
properly transposed into national legislation by Member States.
In the implementation of article 8, it should be made mandatory for Member States to
give producers the option to choose between individual or collective solutions based
on their product portfolio and business models used as long as transparency of
financing is ensured.
A step towards IPR solutions is the possibility to allow Producers to collect products,
of an equivalent type as sold by the producer, directly from end users. It should be
possible to deduct these volumes from the obligation that the company has.
Table of contents:
Summary ............................................................................................................................... 1
1- Collection Targets and Collection Responsibilities.......................................................... 4
2- Scope and Definitions of EEE/WEEE ............................................................................. 9
3- Classification of Business to Business and Business to Consumer WEEE ....................12
4- WEEE v. used-eee shipments .......................................................................................15
5- Visible Fee ....................................................................................................................25
6- Individual Producer Responsibility .................................................................................27
THE MEMBERSHIP OF DIGITALEUROPE..........................................................................29
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4. 1- COLLECTION TARGETS AND COLLECTION RESPONSIBILITIES
1- 1- Commission Proposal
The Commission Proposal will establish new collection targets. The target is set at a
rate of 65% of WEEE placed on the market to be achieved by 2016. The target is to
be based on previous two years sales (Article 7).
Producers to be made responsible for meeting collection targets, rather than Member
States as at present.
Producers will be „encouraged‟ to take responsibility for financing household
collection facilities (Article 12).
Article 7
Collection rate
1. Without prejudice to Article 5(1), Member States shall ensure that producers or third
parties acting on their behalf achieve a minimum collection rate of 65%. The collection rate is
calculated on the basis of the total weight of WEEE collected in accordance with Articles 5
and 6 in a given year in that Member State, expressed as a percentage of the average
weight of electrical and electronic equipment placed on the market in the two preceding
years in that Member State. This collection rate shall be achieved annually and starting in
2016.
Article 12
Financing in respect of WEEE from private households
1. Member States shall ensure that, producers provide at least for the financing of the
collection, treatment, recovery and environmentally sound disposal of WEEE from private
households deposited at collection facilities set up under Article 5(2). Member States, where
appropriate, shall encourage producers to finance all the cost occurring for collection
facilities for WEEE from private households.
1- 2- DIGITALEUROPE View
Producers should not be made responsible for meeting collection targets or financing
collection.
Existing infrastructure such as municipalities should retain the primary responsibility
for collection.
Member States should retain the responsibility for meeting collection targets.
Collection targets should be replaced by „tonnage treated according to Annex 2‟ and
Member States should ensure that all WEEE treated is accounted for and that the
minimum treatment requirements are met.
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5. 1- 3- Recommended Amendment to Commission Proposal
Article 7
Collection Responsibilities
1. Without prejudice to Article 5(1), Member States shall actively encourage and enforce
separate collection of all WEEE. Further, Member States shall ensure that all separately
collected WEEE undergoes treatment according to Article 8 of this Directive and is reported
to the Member State in accordance with Article 16 of this Directive. producers or third parties
acting on their behalf achieve a minimum collection rate of 65%. The collection rate is
calculated on the basis of the total weight of WEEE collected in accordance with Articles 5
and 6 in a given year in that Member State, expressed as a percentage of the average
weight of electrical and electronic equipment placed on the market in the two preceding
years in that Member State. This collection rate shall be achieved annually and starting in
2016.
Article 12
Financing in respect of WEEE from private households
1. Member States shall ensure that, producers provide at least for the financing of the
collection, treatment, recovery and environmentally sound disposal of WEEE from private
households deposited at collection facilities set up under Article 5(2). Member States, where
appropriate, shall encourage producers to finance all the cost occurring for collection
facilities for WEEE from private households.
1- 4- Key Issues for Policy Makers
There are large flows of WEEE outside the WEEE system which show that
collection rates are higher than previous studies suggest and that there are many
other stakeholders that have a great influence on the volumes collected and
recycled.
In April 2008 the combined Dutch WEEE recycling systems published a research
report 1that showed that out of a total of 18.5 Kg of WEEE that is generated per
inhabitant per year, 14.8 kg (80%) is recycled. However, only 5.7kg (31%) is
recycled by the producer funded WEEE systems.
1
Witteveen+Bos (2008) Onderzoek naar complementaire afvalstromen voor e-waste in Nederland, 10 April 2008
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6. Figure 1 Mass Balance Household WEEE in Netherlands
Material Flow WEEE
(NL) Consumer
18.5 kg Reuse and
Installers
3.6kg (19.5%)
Waste Bin
2kg (13.5%) Municipal Retail
Collection Collection
Point Point
Retailers
(uncertain)
1.7kg (9.2%)
Take-Back System
Municipal (on behalf of producers)
Leakage 5.7kg (30.8%)
2.5kg (13.5%)
14.8 kg
Recycling 80% Retailers
3kg (16.2%)
It would be impossible for Producers to achieve the collection target as there are
no obligations for other stakeholders such as municipalities or B2B end users to
pass their WEEE onto producers
The European Commission proposal could lead to profiteering and for the costs of
WEEE compliance to dramatically increase with no environmental benefit. Under
the Commission proposal it is almost certain Municipalities and B2B end users will
continue to sell their WEEE to third party actors who can then sell this onto
producers at a later date when they need to comply with the collection target. This
will mean that producers will be forced to pay a much higher price for compliance
without any environmental benefit.
In the UK profiteering led to costs being inflated by 36 per cent for IT and 50 per
cent for display equipment. The Commission‟s proposal could cost producers an
extra €4.6 billion increasing the total costs of the WEEE Directive to €10.2 billion.
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7. Basing collection targets on previous years sales is inadvisable. Large increases
in sales leads to the setting of a collection target that could not be achieved due to
insufficient WEEE being available in the waste stream.
Large decreases in sales would lead to a lower then desirable collection target.
At the time of the first WEEE Directive the European Commission acknowledged
that Producers should not be made responsible for household collection targets
as „there is no evidence that attributing the collection of WEEE from private
households to producers would have an impact on the design of the equipment‟.
The original goal of the Directive was to improve the design of products to ensure
products would become more recyclable. Collection of waste has no direct
relation to the design of a product; this means that by changing the design of a
product a producer will not be able to influence the cost of operating the collection
point.
Increasing collection targets is not necessary as Producers are collecting and
recycling all separately collected WEEE regardless of whether the collection
target has been exceeded.
New Member States of the EU (EU12) will be harder hit by the new collection
targets.
The success of meeting collection targets depends on factors outside the control
of producers, ranging from availability of collection points to the volume of WEEE
being generated and made available by the end user.
The current collection target is being exceeded in most MS.
Data used by UNU Report to conclude that higher collection targets are needed is
unreliable and underestimates the volumes of WEEE collected and recycled by
non producer organisations.
1- 5- Key Questions
1. Producers face problems actually getting access to WEEE. How can producers meet
a collection target when municipalities are able to continue to sell WEEE to other
organisations for recycling and treatment? What measures will ensure that these
flows of WEEE are handed onto Producers?
2. How will the costs of collection be controlled to prevent municipalities and others from
profiteering from WEEE?
3. How can producers meet a target based on previous year‟s sales when there is
insufficient material in the waste stream?
4. In 2000 the Commission said: „there is no evidence that attributing the collection of
WEEE from private households to producers would have an impact on the design of
the equipment‟. Why has this position changed?
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8. 5. Has the Commission considered alternative solutions to this problem such as making
sure that 100% of WEEE is collected and handed onto producers, or taking measures
to ensure all WEEE is properly reported and treated?
6. Has the Commission investigated the impacts of a market where producers would
have to buy back equipment from owners to meet their collection targets? What could
be the legislative measures to be taken to prevent producers to be obliged to accept
buying back WEEE at any cost?
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9. 2- SCOPE AND DEFINITIONS OF EEE/WEEE
2- 1- Commission Proposal
The Commission Proposal recognized that there is lack of clarity on the products
covered by the current WEEE Directive and their categorisation, with different
interpretations of the current provisions made by different Member States and
stakeholders;
Annex I, which lists the categories of products in scope, would be transferred to the
RoHS Directive and referenced in the recast WEEE Directive
An additional exemption is added for: “Equipment which is not intended to be placed
on the market as a single functional or commercial unit.” (see Article 2 Section 3(c))
Article 2
Scope
1. This Directive shall apply to electrical and electronic equipment falling under the
categories set out in Annex I of Directive 20xx/xx/EC (RoHS).
2. This Directive shall apply without prejudice to requirements of Community legislation on
safety and health, on chemicals, in particular Regulation (EC)1907/2006 as well as of ï
specific Community waste management or product design legislation.
3. This Directive does not apply to any of the following equipments:
(a) Equipment which is necessary for the protection of the essential interests of the
security of Member States, including arms, munitions and war material intended for
specifically military purposes.
(b) Equipment which is specifically designed as part of another type of equipment that
does not fall within the scope of this Directive and can fulfill its function only if it is part of that
equipment.
(c) Equipment which is not intended to be placed on the market as a single functional or
commercial unit.
(d) Filament bulbs.
(e) Implanted and infected medical devices.
Article 3
Definitions
For the purposes of this Directive, the following definitions shall apply:
(a)„electrical and electronic equipment‟ or „EEE‟ means equipment which is
dependent on electric currents or electromagnetic fields in order to work properly and
equipment for the generation, transfer and measurement of such currents and fields falling
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10. under the categories set out in Annex I of Directive 20xx/xx/EC (RoHS) and designed for use
with a voltage rating not exceeding 1000 Volt for alternating current and 1500 Volt for direct
current;
(b)„waste electrical and electronic equipment‟ or „WEEE‟ means electrical or
electronic equipment which is waste within the meaning of Article 3(1) of Directive
2008/xx/EC on waste including all components, subassemblies and consumables which are
part of the product at the time of discarding;
2- 2- DIGITALEUROPE View
Maintaining Article 175 as the legal basis for the provisions defining the scope of the
Directive means that Member States will be able to extend the scope at wish. Thus
the transfer of the Annexes on scope to the RoHS Directive would not improve the
current situation.
There are already existing ambiguities in Annex I that are not sufficiently addressed in
the WEEE/RoHS FAQ, and there is no mechanism that exists which would enable
Member States to agree on common interpretations. Indeed, there are documented
cases of varying scope interpretation between Member States. In order to ensure a
uniform scope across the EU without any divergence between Member States, the
Scope section and definitions of “EEE” and “WEEE” should have Article 95 as their
legal basis.
Additional clarification is needed from the Commission on the intent of the added
exemption in Article 2, Section 3(c) because of its ambiguity and its potential use to
actually expand the scope of the Directive beyond current practices. As a matter of
fact, the lack of a clear definition of “function” in the WEEE/ROHS FAQs actually gave
rise to diverging interpretations and scope determinations throughout the Member-
States. Additionally, the concept of “single functional unit”, which is not used in the
current Directive, risks leading to further legal uncertainty due to the lack of a precise
definition.
In today‟s global economy, the WEEE Directive cannot effectively function if the
scope varies between Member States.
2- 3- Recommended Amendments to the Commission Proposal
In order to ensure a uniform scope across the EU without any divergence between
Member States, the Scope section and definitions of “EEE” and “WEEE” should have
Article 95 as their legal basis.
Further, a defined procedure for addressing scope questions is necessary either by
regular updating of the WEEE/RoHS FAQ or some procedure for submitting a
question directly to the Commission or to the Regulatory Committee. The conclusion
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11. reached using this procedure must apply throughout the EU. The proposal should be
modified to include a formal procedure for addressing scope questions that provides
legal certainty that the answer will apply uniformly throughout the EU.
Commission Proposal Recommended Amendment
THE EUROPEAN PARLIAMENT AND THE EUROPEAN PARLIAMENT AND
THE COUNCIL OF THE EUROPEAN THE COUNCIL OF THE EUROPEAN
UNION, UNION,
Having regard to the Treaty establishing Having regard to the Treaty establishing
the European Community, and in particular the European Community, and in particular
Article 175(1) thereof, Article 175(1) thereof and Article 95(1)
thereof in relation to Articles 2, 3, 4, 6,
7, 10, 11 and 12 of this Directive,
Recital 1 Recital 1
The objectives of the Community's The objectives of the Community's
environment policy are, in particular, to environment policy are, in particular, to
preserve, protect and improve the quality preserve, protect and improve the quality
of the environment, protect human health of the environment, protect human health
and utilise natural resources prudently and and utilise natural resources prudently and
rationally. That policy is based on the rationally. That policy is based on the
precautionary principle and principles that precautionary principle and principles that
preventive action should be taken, that preventive action should be taken, that
environmental damage should as a priority environmental damage should as a priority
be rectified at source and that the polluter be rectified at source and that the polluter
should pay. should pay. The legal base is therefore
Article 175(1) of the Treaty. However, it
is also appropriate to take measures at
Community level on the basis of Article
95(1) of the Treaty to harmonise certain
requirements and so to ensure the
smooth functioning of the internal
market and avoid distortion of
competition within the Community.
>> 11 of 29

12. 3- CLASSIFICATION OF BUSINESS TO BUSINESS AND BUSINESS TO
CONSUMER WEEE
3- 1- Commission Proposal
The WEEE Directive establishes different financing mechanisms for WEEE from
private households (commonly referred to as “B2C”) and WEEE from users other
than private households (commonly referred to as “B2B”).
The European Commission proposal for revising the WEEE Directive states that the
classification of WEEE as B2B or B2C will be determined by the comitology process.
Article 2
Scope
4. WEEE shall be classified as waste from private households or from users other than
private households. The classification of types of WEEE into these categories shall be laid
down. This measure designed to amend non-essential elements of this Directive, by
supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny
referred to in Article 18(3). This classification among others shall be based on assessing the
share of the equipment sold to private households or businesses.
3- 2- DIGITALEUROPE View
The percentage of products that are B2C varies between producers dependent on
their business model and market niche. Some producers are focussed on the B2C
market; others sell to both B2B and B2C, whilst others sell largely or solely to the B2B
market.
Therefore it would not be fair to establish a single one size fits all classification into
B2C and B2B.
There are many products within WEEE that are B2B and will never enter the
municipal waste stream. Examples include servers, large scale printers, networking
systems and halo video conference suites
In order to comply with the WEEE Directive, each producer must be able to
consistently and transparently classify its products as B2C or B2B.
Furthermore, it is crucial that compliance schemes, registers and authorities have the
same understanding regarding this classification approach. Currently, this is not the
case: Thus producers must verify the classification criteria for each register and
compliance scheme, which leads to large amounts of unnecessary administrative
work.
• DIGITALEUROPE believes that the best way to harmonise these definitions and
establish consistency across the EU is to enable producers to determine whether a
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13. product is declared as Business to Business WEEE based upon the intended end
user of the product and according to criteria developed by DIGITALEUROPE.
• This would reduce the amount of administrative work involved in complying with the
WEEE Directive and it would allow producers to determine during the product launch
under which financing regime the product would fall in all Member States.
3- 3- Recommended Amendment to Commission Proposal
Article 2
Scope
4. WEEE shall be classified by Producers as waste from private households or from
users other than private households. Producers shall declare EEE sold to private
households or sold to users other than private households when placing a product
on the market based on the intended end user of the product according to the
following criteria:
a) Evidence in the form of signed contract between the business user and the
Producer (or party representing the producer e.g. reseller under contract),
that clearly assigns responsibilities for end-of-life collection and treatment
costs, ensuring that the EEE will not be disposed of through municipal waste
streams,
or
b) EEE that due to its features is not used in private households and that will
therefore not be disposed of through municipal waste streams. This criterion
should be supported by at least one of the following criteria:
a) EEE that is operated by specialised software as for example an operating
system or system environment requiring a special configuration for
professional use.
b) EEE operating at a voltage or having a power consumption outside of the
range available in private households
c) EEE requiring professional licenses to operate, e.g. Base Stations requiring
the license of the telecommunication regulator
d) EEE of large size or weight requiring to be installed and de-installed or
transported by specialists
e) EEE which requires a professional environment and/or professional
education (e.g. medical X-ray equipment)
f) EEE in category 10 of Annex I of Directive 20xx/xx/EC (RoHS, COM
(2008)809/4)
g) EEE outside of the scope of the General Product Safety Directive for
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14. Consumer products
c) EEE provided to a consumer but by its nature once used has to be returned
to commercial facilities for processing and hence never appears in the
domestic waste stream. (for example one time use cameras.)
The classification of types of WEEE into these categories shall be laid down. This
measure designed to amend non-essential elements of this Directive, by
supplementing it, shall be adopted in accordance with the regulatory procedure with
scrutiny referred to in Article 18(3). This classification among others shall be based
on assessing the share of the equipment sold to private households or businesses.
3- 4- Key Questions
1. Can the Commission explain the different responsibilities for B2B and B2C WEEE as
they apply to both the 65% collection targets (ref Art 7) and the financial
responsibilities for recycling and treatment (ref Art 12 and 13)?
2. Producers face problems actually getting access to WEEE. How can producers meet
a collection target when B2B end users are able to continue to sell WEEE to other
organisations for recycling and treatment?
3. How does this potential escalation in costs reflect the objectives of the WEEE
Revision for simplification and reduction in financial burden?
4. Given that there are many products within WEEE that are B2B and will never enter
the municipal waste stream, is classifying category 3 as 100% B2C justifiable?
5. How can the Commission establish a single classification of B2B and B2C for
category3, given that the percentage of products that are B2C and B2B varies
between producers dependent on their business model and market niche?
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15. 4- WEEE V. USED-EEE SHIPMENTS
4- 1- Overview
At an EU level transboundary WEEE and used EEE streams are currently dealt with in a
series of regulations and non-mandatory guidelines. Relevant instruments include the WEEE
Directive 2002/96/EC, the Regulation (EC) No 1013/2006 on shipments of waste (“Waste
Shipments Regulation” or “WSR”), Directive 2006/12/EC on waste, as amended (and to be
repealed from 12 December 2010) by the revised Directive 2008/98/EC (“Waste Framework
Directive” or “WFD”) and the relevant non legally binding guidelines regarding WEEE and
used EEE shipments agreed by the waste shipment correspondents (“Waste Shipment
Guidelines”);
These instruments clearly differentiate between shipments of WEEE (i.e. items destined for
treatment) and used EEE (i.e. items suitable for reuse), and set out requirements aimed at
promoting reuse of EEE whilst ensuring that WEEE is stored, transported and dealt with in a
way that doesn‟t harm the environment:
• The current WEEE Directive Article 6(5) permits WEEE being treated outside the
respective Member State or the Community provided that the shipment of WEEE is in
compliance with EU rules on the supervision and control of transboundary shipments
of waste;
• Transboundary movements of waste are currently regulated by the Waste Shipment
Regulation. This legislation gives effect to a number of important international
agreements and conventions (Basel Convention and the OECD decision on
transboundary movements of waste);
• The Revised Correspondents' Guidelines No 1 on shipments of WEEE represent the
common understanding of the Member State‟s authorities on shipments of used EEE
and WEEE, and how the Waste Shipment Regulation applies to shipments of
electronics. The guidelines apply as from 12 July 2007. Although the guidance
document has no legal status, it does represent a “sort of consensus” opinion at the
European level, and it can be considered that they are applied widely. Nevertheless,
there is no guarantee that every Member State will always use it, or will use it in the
same way. It should therefore be treated with some caution. Only the European Court
of Justice can make legally binding interpretations of Community legislation and
related guidance.
4- 2- Commission Recast WEEE Proposals
The Commission‟s proposal for a recast WEEE Directive puts greater emphasis on the
inspection of shipments of WEEE and used EEE:
• The recast Article 10 implements some required legal adaptations to regulatory
developments both at EU and international level. For WEEE being treated outside the
Community it proposes to define criteria for the assessment of equivalent treatment
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16. conditions to the requirements in the Directive (to the decided at a later stage through
the Comitology procedure);
• The recast Article 20(1) requires that as a minimum Member States should put in
place a regime and carry out appropriate inspections and monitoring to verify
compliance with the requirements of the Directive. Inspections should at least cover
the export of WEEE outside the Community in accordance with the WSR and the
operations of treatment facilities in accordance with the WFD and Annex 2 of the
recast Directive;
• In addition, the recast Article 20(2) requires Member States to closely monitor
shipments of used EEE in accordance with the criteria laid down in new Annex I to
ensure that the materials are not WEEE;
• Article 20(2) and Annex I aim at making the Waste Shipment Guidelines legally
binding;
• Finally, the recast Article 20(3) also empowers the Commission to adopt additional
rules on inspections and monitoring (or update the established requirements) at a
later stage (through the Comitology procedure);
4- 3- DIGITALEUROPE Views
DIGITALEUROPE supports the main underlying goals of the Commission‟s proposals,
namely ensuring proper treatment and shipment of WEEE and addressing flows of WEEE
exported under the guise of used EEE, thus reducing the negative environmental and health
impacts on third countries;
However, we believe the current text can be improved in a number of ways with a view to
achieving the stated goals:
• It is vital to ensure consistency between the recast WEEE Directive and the WSR and
associated guidelines to prevent confusion;
• the recast Article 20(2) and Annex I stipulate the monitoring requirements and
documentary evidence required from holders intending to ship or shipping used EEE,
and not WEEE. These provisions aim at making the specific sections of Waste
Shipment Guidelines dealing with used EEE legally binding. Although inextricably
linked, they do not refer to WEEE shipments as such however, which are covered
under the Waste Shipments Regulation and dedicated sections in the Waste
Shipment Guidelines. We therefore consider it to be more appropriate to use the
expression “shipments of used EEE” instead of “shipments of WEEE”;
• DIGITALEUROPE is concerned that setting provisions dealing with transboundary
movements of used EEE within the WEEE Directive, which is based on Article 175 of
the EC Treaty, could lead to non harmonised requirements across Member States,
thus inhibiting the free movement of goods and the operation of the single market.
We are proposing to use of Article 95 of the EC Treaty as the legal basis for the new
proposals in Article 20(2) and Annex I;
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17. • In line with the Waste Shipment Guidelines, difference should be made between used
EEE for direct re-use and used EEE for repair (for instance under warranty) with the
intention of re-use. Used EEE that is being sent by the producer, authorized retailer,
or customer for evaluation or testing and repair across borders to the producer or
producer‟s repair centres, and then returned to the customer or producer‟s swap pool,
should not be considered as WEEE as long as the shipment is accompanied by a
declaration made by the holder who arranges the transport of the used EEE that none
of the material or equipment within the consignment is waste as defined in the WFD,
and sufficient packaging is provided to protect it from damage during transportation,
loading and unloading;
• Streamlined and proportionate requirements are needed for EEE that is being sent to
and from producer evaluation or test centres and repair centres. Applying concepts
expressed in general and ambiguous terms, such as “evidence of evaluation or
testing in the form of a copy of the records (certificate of testing, proof of
functionality)” rather than helping to remove the legal ambiguities tends to exacerbate
them. The text is not entirely clear as to what kind of evaluation or testing (if any?)
items for repair with the intention of re-use need to undergo. We believe it is not
appropriate to require proof of evaluation or testing for used EEE which is specifically
being sent for evaluation or testing prior to repair. If after evaluation, a decision is
made not to repair and return the item to the customer so that it can be reused for its
original intended purpose, the equipment should be regarded as WEEE only when
that decision is made;
• Minimum standards for adaptations to scientific and technical progress in general and
consultations on additional inspections and monitoring rules in particular must be
guaranteed to enable all interested stakeholders to participate. We understand this is
somehow covered by the proposed recast Article 17. We would however recommend
that all measures necessary for the implementation of the Directive to be adopted
through the Comitology procedure be subject to prior consultation with relevant
stakeholders.
4- 4- Proposed Amendments
Proposed Recast WEEE Directive DIGITALEUROPE Proposed Amendments
COM(2008) 810 final
THE EUROPEAN PARLIAMENT AND THE THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN UNION, COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the Having regard to the Treaty establishing the
European Community, and in particular Article European Community, and in particular Article
175(1) thereof, 175(1) thereof, and Article 95(1) thereof in
relation to Articles […] and 20(2) and Annex
I of this Directive,
>> 17 of 29

18. Article 20 Article 20
Inspection and monitoring Inspection and monitoring
1. Member States shall carry out appropriate 1. Member States shall carry out appropriate
inspections and monitoring to verify the proper inspections and monitoring to verify the proper
implementation of this Directive. implementation of this Directive.
Those inspections shall at least cover exports Those inspections shall at least cover exports
of WEEE outside the Community in of WEEE outside the Community in
accordance with the Waste Shipment accordance with the Waste Shipment
Regulation and the operations at treatment Regulation and the operations at treatment
facilities in accordance with Directive facilities in accordance with Directive
2008/xx/EC on waste and Annex II of this 2008/98/EC on waste and Annex II of this
Directive. Directive.
2. Member States shall carry out the 2. Member States shall carry out monitoring of
monitoring of shipments of WEEE in shipments of used EEE in accordance with
accordance with the minimum monitoring the requirements in Annex I.
requirements in Annex I.
3. Additional rules on inspections and
3. Additional rules on inspections and monitoring may be laid down.
monitoring may be laid down.
Those measures designed to amend non-
Those measures designed to amend non- essential elements of this Directive, by
essential elements of this Directive, by supplementing it, shall be adopted in
supplementing it, shall be adopted in accordance with the regulatory procedure with
accordance with the regulatory procedure with scrutiny referred to in Article 18(3).
scrutiny referred to in Article 18(3)
ANNEX I ANNEX I
Minimum monitoring requirements for Monitoring requirements for shipments of
shipments of WEEE used EEE
1. In order to distinguish between electrical 1. In order to distinguish between used
and electronic equipment and WEEE, where electrical and electronic equipment and WEEE,
the holder of the object claims that he intends where the holder arranging transboundary
to ship or is shipping used electrical and transports of the object claims that he intends
electronic equipment and not WEEE, Member to ship or is shipping used electrical and
State authorities shall request the following to electronic equipment and not WEEE, Member
back up this claim: State authorities shall, as appropriate, request
the following to back up this claim:
a) a copy of the invoice and contract relating to
the sale and/or transfer of ownership of the a) a copy of the invoice and contract relating to
electrical and electronic equipment which the sale and/or transfer of ownership of the
states that the equipment is for direct re-use used electrical and electronic equipment which
and fully functional; states that the equipment is for direct re-use
>> 18 of 29

19. b) evidence of evaluation or testing in the form and fully functional;
of a copy of the records (certificate of testing,
b) evidence of evaluation or testing in the form
proof of functionality) on every item within the
of a copy of the records (certificate of testing,
consignment and a protocol containing all
proof of functionality) on every item within the
record information according to point 2;
consignment and a protocol containing all
c) a declaration made by the holder who record information according to point 2;
arranges the transport of the electrical and
c) a declaration made by the holder who
electronic equipment that none of the material
arranges the transport of the used electrical
or equipment within the consignment is waste
and electronic equipment that none of the
as defined by Article 3(1) of Directive
material or equipment within the consignment
2008/xx/EC on waste, and
is waste as defined by Article 3(1) of Directive
d) sufficient packaging to protect the shipped 2008/98/EC on waste, and
products from damage during transportation,
d) sufficient packaging to protect the shipped
loading and unloading.
products from damage during transportation,
2. In order to demonstrate that the items being loading and unloading.
shipped are used electrical and electronic
2. Used EEE would not be considered
equipment rather than WEEE, Member States
waste:
shall require the following steps for testing and
record keeping for used electrical and a) where the criteria in paragraph 1 (a) to (d)
electronic equipment to be carried out: are met and if it is fully functioning and is
not destined for any of the operations listed
Step1: Testing
in Annexes I and II of Directive 2008/98/EC
a) Functionality should be tested and (recovery or disposal operations) and is
hazardous substances should be evaluated. directly reused for the purpose for which it
The tests that should be conducted depend on was originally intended or presented for
the kind of electrical and electronic equipment. sale or exported for the purpose of being
For most of the used electrical and electronic put back to direct reuse or sold to end
equipment a functionality test of the key consumers for such reuse, or
functions is sufficient.
b) where the criteria in paragraph 1 (c) and
b) Results of evaluation and testing should be (d) are met and
recorded.
– if it is sent back as defective batches
Step2: Record for repair to the producer or repair
a) The record should be fixed securely but not centres (e. g. under warranty) with
permanently on either the electrical and the intention of re-use; or
electronic equipment itself (if not packed) or on – if after repair, it is sent back for
the packaging so it can be read without reuse and is accompanied by a
unpacking the equipment. declaration made by the holder
b) The record shall contain the following arranging the transport that the used
information: electrical and electronic equipment
within the consignment has been
Name of item (Name of the equipment repaired according to the repair
according to Annex II and category according centres quality standards
>> 19 of 29

20. to Annex I of Directive 20xx/xx/EC (RoHS);
Identification Number of the item (type no.); 3. In order to demonstrate that the items being
shipped are used electrical and electronic
Year of Production (if available);
equipment destined for direct re-use rather
Name and address of the company than WEEE, Member States shall require the
responsible for evidence of functionality; following steps for testing and record keeping
Result of tests as described in step 1; for used electrical and electronic equipment to
be carried out
Kind of tests performed.
Step1: Testing
3. In addition to the document requested in
point 1, every load (e. g. shipping container, a) Functionality should be tested and
lorry) of used electrical and electronic hazardous substances should be evaluated.
equipment should be accompanied by a: The tests that should be conducted depend on
the kind of electrical and electronic equipment.
a) CMR document, For most of the used electrical and electronic
b) declaration of the liable person on its equipment a functionality test of the key
responsibility. functions is sufficient.
4. In the absence of appropriate b) Results of evaluation and testing should be
documentation required in point 1 and 3 and recorded.
packaging, Member State authorities shall Step2: Record
presume that an item is hazardous WEEE and
presume that the load comprises an illegal a) The record should be fixed securely but not
shipment. In these circumstances the relevant permanently on either the used electrical and
competent authorities will be informed and the electronic equipment itself (if not packed) or on
load will be dealt with in accordance with the packaging so it can be read without
Articles 24 and 25 of the Waste Shipment unpacking the equipment. Alternatively this
Regulation. In the majority of cases those information may be attached to a batch of
responsible for the shipment will have to take products as opposed to attaching such
back the waste to the country of dispatch at documentation to each and every product.
their own expense and may be liable to a b) The record shall contain the following
criminal sanction. In those Member States information:
where the burden is on the state authorities to
Name of item (Name of the equipment
prove the items are WEEE rather than
according to…………);
electrical and electronic equipment, absence
of the appropriate documentation and Identification Number of the item (type no.);
packaging is likely to lead to significant delays
Year of Production (if available);
to the onward transport of the waste whilst the
necessary investigations are carried out to Name and address of the company
establish the status of the items being responsible for evidence of functionality;
shipped. Result of tests as described in step 1;
Kind of tests performed.
4. In addition to the documentation requested
in paragraph 2, every load (e. g. shipping
>> 20 of 29

21. container, lorry) of used electrical and
electronic equipment should be accompanied
by a:
a) CMR document,
b) declaration of the liable person on its
responsibility.
5. In the absence of the appropriate
documentation required in paragraphs 2 and
4 and packaging, Member State authorities
shall presume that an item is hazardous WEEE
and presume that the load comprises an illegal
shipment. In these circumstances the relevant
competent authorities will be informed and the
load will be dealt with in accordance with
Articles 24 and 25 of the Waste Shipment
Regulation. In the majority of cases those
responsible for the shipment will have to take
back the waste to the country of dispatch at
their own expense and may be liable to a
criminal sanction. In those Member States
where the burden is on the state authorities to
prove the items are WEEE rather than used
electrical and electronic equipment, absence of
the appropriate documentation and packaging
is likely to lead to significant delays to the
onward transport of the waste whilst the
necessary investigations are carried out to
establish the status of the items being shipped
Article10 Article10
Shipments of WEEE Shipments of WEEE
1. The treatment operation may also be 1. The treatment operation may also be
undertaken outside the respective undertaken outside the respective
Member State or the Community Member State or the Community
provided that the shipment of WEEE is provided that the shipment of WEEE is
in compliance with Regulation (EC) No in compliance with Regulation (EC) No
1013/2006 of the European Parliament 1013/2006 of the European Parliament
and of the Council of 14 June 2006 on and of the Council of 14 June 2006 on
the shipments of waste. the shipments of waste.
2. WEEE exported out of the Community 2. WEEE exported out of the Community
>> 21 of 29

22. in line with Regulation (EC) No in line with Regulation (EC) No
1013/2006 on shipments of waste and 1013/2006 on shipments of waste and
Commission Regulation Commission Regulation (EC) No
1418/2007 of 29 November 2007
(EC) No 1418/2007 of 29 November 2007
concerning the export for recovery of
concerning the export for recovery of certain
certain waste listed in Annex III or
waste listed in Annex III or Annex IIIA to
Annex IIIA to Regulation (EC) No
Regulation (EC) No 1013/2006 of the
1013/2006 of the European Parliament
European Parliament and of the Council to
and of the Council to certain countries
certain countries to which the OECD Decision
to which the OECD Decision on the
on the control of transboundary movements of
control of transboundary movements of
wastes does not apply shall only count for the
wastes does not apply shall only count
fulfilment of obligations and targets of Article
for the fulfilment of obligations and
11 of this Directive if the exporter can prove
targets of Article 11 of this Directive if
that the treatment took place under conditions
the exporter can prove that the
that are equivalent to the requirements of this
treatment took place under conditions
Directive.
that are equivalent to the requirements
of this Directive.
3. Detailed rules for the implementation of
paragraph 1 and 2, in particular criteria
3. Detailed rules for the implementation of
for the assessment of equivalent
paragraph 2, in particular criteria for the
conditions, shall be laid down.
assessment of equivalent conditions,
shall be laid down.
Those measures designed to amend non-
essential elements of this Directive, by
Those measures designed to amend non-
supplementing it, shall be adopted in
essential elements of this Directive, by
accordance with the regulatory procedure with
supplementing it, shall be adopted in
scrutiny referred to in Article 18(3).
accordance with the regulatory procedure with
scrutiny referred to in Article 18(3).
4. Before rules are adopted pursuant to
paragraph 3, the Commission shall
inter alia consult producers of
electrical and electronic equipment,
recyclers, treatment operators,
environmental organisations and
employee and consumer
associations. Comments shall be
forwarded to the Committee referred
to in Article 18. The Commission
shall provide an account of the
information it receives
>> 22 of 29

23. Recital 27 Recital 27
The measures necessary for the The measures necessary for the
implementation of this Directive should be implementation of this Directive should be
adopted in accordance with Council Decision adopted in accordance with Council Decision
1999/468/EC of 28 June 1999 laying down the 1999/468/EC of 28 June 1999 laying down the
procedures for the exercise of implementing procedures for the exercise of implementing
powers conferred on the Commission. The powers conferred on the Commission. The
Commission should be empowered to adapt Commission should be empowered to adapt
the annexes and to adopt rules for monitoring the annexes and to adopt rules for monitoring
compliance. Since those measures are of compliance. Since those measures are of
general scope and are designed to amend general scope and are designed to amend
non-essential elements of Directive non-essential elements of Directive
2002/96/EC, inter alia, by supplementing it 20xx/xx/EC, inter alia, by supplementing it with
with new non-essential elements, they must be new non-essential elements, they must be
adopted in accordance with the regulatory adopted in accordance with the regulatory
procedure with scrutiny provided for in Article procedure with scrutiny provided for in Article
5a of Decision 1999/468/EC. 5a of Decision 1999/468/EC. Before
measures are adopted the Commission
shall, inter alia, consult producers of
electrical and electronic equipment,
recyclers, treatment operators and
environmental organisations and
employees' and consumer associations.
Comments shall be forwarded to the
Committee referred to in Article 18. The
Commission shall provide an account of
the information it receives.
Article 17 Article 17
Adaptation to scientific and technical Adaptation to scientific and technical
progress progress
Amendments may be made if necessary in Amendments may be made if necessary in
order to adapt Article 16(6) and the Annexes order to adapt Articles […] and the Annexes to
to scientific and technical progress. Those scientific and technical progress. Those
measures designed to amend non-essential measures designed to amend non-essential
elements of this Directive, shall be adopted in elements of this Directive, shall be adopted in
accordance with the regulatory procedure with accordance with the regulatory procedure with
scrutiny referred to in Article 18(3). scrutiny referred to in Article 18(3).
Before the annexes are amended the Before the annexes are amended the
Commission shall, inter alia, consult producers Commission shall, inter alia, consult producers
of electrical and electronic equipment, of electrical and electronic equipment,
recyclers, treatment operators and recyclers, treatment operators and
>> 23 of 29

24. environmental organisations and employees' environmental organisations and employees'
and consumer associations. and consumer associations. Comments shall
be forwarded to the Committee referred to
in Article 18. The Commission shall provide
an account of the information it receive.
>> 24 of 29

25. 5- VISIBLE FEE
5- 1- Commission Proposal
The WEEE Directive (Article 8.3) allows producers the option to temporarily show a
Visible Fee. For the majority of products Visible Fees are not allowed beyond the end
of 2011 and for category 1 by the end of 2013.
The European Commission proposal for revising the WEEE Directive enables Visible
Fees to exist forever (new Article 12).
Article 1410
Information for users
1.  Member States shall ensure that producers are allowed to show purchasers, at the time
of sale of new products, the costs of collection, treatment and disposal in an environmentally
sound way. The costs mentioned shall not exceed the actual costs incurred. 
5- 2- DIGITALEUROPE View
Article 8.3 of the WEEE Directive allows producers the option to temporarily show a Visible
Fee. For the majority of products the Directive allows a Visible Fees until the end of 2011
and for category 1 until the end of 2013. The European Commission proposal for a revised
WEEE Directive (new Article 14.1) enables Visible Fees to exist without time limitation.
DIGITALEUROPE believes that Visible Fees may be appropriate as a transparent financing
method for products for which the cost of collection and recycling is substantial in
comparison to the product selling price.
Visible Fees may be inappropriate for products, such as for example computers and their
peripherals where the costs associated with the administration of the fee far exceed the
actual cost of recycling the products and where the use of Visible Fees places an additional
administrative burden on producers.
DIGITALEUROPE observes that some Member States have made the use of the Visible Fee
mandatory for all product categories and producers, which is clearly not in line with the letter
of the WEEE Directive, which specifies that producers are allowed to show the cost of
recycling to purchasers. DIGITALEUROPE calls on the European Parliament and Council to
ensure that the visible fee will remain voluntary so to ensure that no excessive burden will be
placed on businesses that do not need the visible fee to cover cost of recycling.
>> 25 of 29

26. 5- 3- Recommended Amendment to Commission Proposal
Amendment 4.1: Article 14, new text
Article 1410
Information for users
1.  Member States shall ensure that producers are voluntarily allowed to show
purchasers, at the time of sale of new products, the costs of collection, treatment and
disposal in an environmentally sound way.The costs mentioned shall not exceed the actual
costs incurred. Member States shall not establish a mandatory, fixed visible recycling
fee to be applied across all product categories and all manufacturers. 
>> 26 of 29

27. 6- INDIVIDUAL PRODUCER RESPONSIBILITY
6- 1- Commission Proposal
The WEEE Directive (Article 8.2) establishes framework for Individual Producer
Responsibility for „future‟ WEEE, obliging producers to finance the costs of the
management of their own products.
The European Commission proposal for revising the WEEE Directive maintains this
through Article 12.2.
Article 128
Financing in respect of WEEE from private households
2. For products placedput on the market later than 13 August 2005, each producer shall be
responsible for financing the operations referred to in paragraph 1 relating to the waste from
his own products. The producer can choose to fulfill this obligation either individually or by
joining a collective scheme.
6- 2- DIGITALEUROPE View
Article 8 of the WEEE Directive obliges producers of electrical and electronic equipment to
meet the costs of the management of their products at the end of their products‟ life. The EU
established a framework for individual producer responsibility requirement through Article 8.2
of the WEEE Directive, whereby each producer is financially responsible for the
management of of waste from his own-brand products from private households, put on the
market after 13 August 2005. The producer can choose to fulfill this obligation either
individually or by joining a collective scheme.
The European Commission proposal for revising the WEEE Directive maintains through new
Article 12.2. DIGITALEUROPE shares the view that Article 12.2 is an appropriate legal
framework for the implementation of producer responsibility for WEEE.
DIGITALEUROPE highlights that many Member States have not implemented the principle
of Individual Producer Responsibility in transposing the WEEE Directive into their national
legislation. Therefore the intended incentives of IPR are not provided within these national
laws. Currently, many Member States have implemented or propose to implement a system
of collective responsibility for waste, attributed on the basis of a company‟s market share
>> 27 of 29

28. rather than making each company responsible for their products when they are actually
returned. This situation will not only be applied for historic waste (products put on the market
before the Directive came into force) but also extended to all future waste. This analysis was
further substantiated by Okopol in their report to the European Commission, and confirmed
by the European Commission in Parliamentary Answer P-4971/2007 given by Mr Dimas on
9th November 2007.
During the review of the Directive there is an opportunity to strengthen the freedom of choice
between Individual and collective solutions. DIGITALEUROPE believes that the European
Institutions should ensure that this choice as defined by Article 8.2 of the WEEE Directive
should be properly transposed into national legislation by Member States. In the
implementation of article 8, it should be made mandatory for Member States to give
producers the option to choose between individual or collective solutions based on their
product portfolio and business models used as long as transparency of financing is ensured.
At this moment there are producers that are investigating potential IPR solutions. It could well
be that in the near future producers may want to set up IPR solutions either in individual or
collective systems. A step towards IPR solutions is the possibility to allow Producers to
collect products, of an equivalent type as sold by the producer, directly from end users. It
should be possible to deduct these volumes from the obligation that the company has. This
step has already been implemented in for instance UK, Germany and Netherlands.
6- 3- Recommended Amendment to Commission Proposal
No amendment recommended.
>> 28 of 29

29. ABOUT DIGITALEUROPE
DIGITALEUROPE, the organisation formerly known as EICTA, is the voice of the European
digital technology industry, which includes large and small companies in the Information and
Communications Technology and Consumer Electronics Industry sectors. It is composed of
61 major multinational companies and 40 national associations from 28 European countries.
In all, DIGITALEUROPE represents more than 10,000 companies all over Europe with more
than 2 million employees and over EUR 1,000 billion in revenues.
THE MEMBERSHIP OF DIGITALEUROPE
COMPANY MEMBERS:
Adobe, Agilent, Alcatel-Lucent, AMD, Apple, Bang & Olufsen, Bose, Brother, Canon, Cisco,
Corning, Dell, EADS, Elcoteq, Epson, Ericsson, Fujitsu, Hitachi, HP, IBM, Infineon, Ingram
Micro, Intel, JVC, Kenwood, Kodak, Konica Minolta, Lexmark, LG, Loewe, Micronas,
Microsoft, Mitsubishi, Motorola, NEC, Nokia, Nokia Siemens Networks, Nortel, NXP, Océ,
Oki, Oracle, Panasonic, Philips, Pioneer, Qualcomm, Research In Motion, Samsung, Sanyo,
SAP, Sharp, Siemens, Sony, Sony Ericsson, STMicroelectronics, Sun Microsystems, Texas
Instruments, Thales, Thomson, Toshiba, Xerox.
NATIONAL TRADE ASSOCIATIONS:
Austria: FEEI; Belarus: INFOPARK; Belgium: AGORIA; Bulgaria: BAIT; Cyprus: CITEA;
Czech Republic: ASE, SPIS; Denmark: DI ITEK, IT-BRANCHEN; Estonia: ITL; Finland:
FFTI; France: ALLIANCE TICS, SIMAVELEC; Germany: BITKOM, ZVEI; Greece: SEPE;
Hungary: IVSZ; Ireland: ICT IRELAND; Italy: ANITEC, ASSINFORM; Netherlands: ICT
OFFICE, FIAR; Norway: ABELIA, IKT NORGE; Poland: KIGEIT, PIIT; Portugal: AGEFE,
APDC; Romania: APDETIC; Slovakia: ITAS; Slovenia: GZS; Spain: AETIC, ASIMELEC;
Sweden: ALMEGA; Switzerland: SWICO; Turkey: ECID, TESID, TÜBISAD; Ukraine: IT
UKRAINE; United Kingdom: INTELLECT.
>> 29 of 29