In an effort to reduce the impact on the environment of waste electrical and electronic equipment, a fast-growing component of the EU waste stream which often contains hazardous substances, the EU enacted the Directives on Waste Electrical and Electronic Equipment (WEEE) and the Restriction of the Use of Certain Hazardous Substances Electrical and Electronic Equipment (RoHS). (Directive 2002/96/EC; Directive 2002/95/EC) The WEEE Directive makes producers primarily responsible for the reuse, recovery and recycling of WEEE. This "producer responsibility" principle is intended to encourage more environmentally responsible equipment design and production by forcing producers to confront end-of-life disposal issues that are normally the concern of governments, and follows the principles of a previous directive on the recycling of packaging waste. The Directive covers a wide range of electronic equipment identified in ten categories set forth in Annex I, and sets recovery and reuse and recycling targets for each category, to be met by December 31, 2006, as follows:
| Category |
Total % Recovery |
Total %
Re-use & Recycling |
|
|
|
| 1. Large household appliances |
80 |
75 |
| 2. Small household appliances |
70 |
50 |
| 3. IT and telecommunications equipment |
75 |
65 |
| 4. Consumer equipment |
75 |
65 |
| 5. Lighting equipment |
70 |
50 |
| 6. Electrical and electronic tools (with the exception of large- scale stationary industrial tools) |
70 |
50 |
| 7. Toys, leisure and sports equipment |
70 |
50 |
| 8. Medical devices F(with the exception of all implanted and infected products) |
No target |
No target |
| 9. Monitoring and control instruments |
70 |
50 |
| 10. Automatic dispensers |
80 |
75 |
With regard to WEEE from private households, Member States are primarily responsible for setting up systems to allow end users and distributors to return such wastes free of charge, and must ensure the availability of collection facilities, taking into account population density (Article 5). Producers are allowed, but not required, to set up private take-back systems for WEEE from private households. In the case of WEEE other than from private households (e.g. offices, institutions), producers, or third parties acting on their behalf, are responsible for collection (Article 5).
Once the waste materials are collected, responsibility for treatment, recovery and recycling falls entirely on producers, who may act individually or jointly. Producers are permitted to recuperate these costs by charging a fee on new equipment for eight years, except for Category 1 equipment, for which a ten year period is provided. For WEEE placed on the market prior to August 13, 2005, producers are required to cover the costs of treatment collectively on proportional basis based on market share.
Under the RoHS Directive, beginning July 1, 2006, new electrical and electronic equipment may not contain lead, mercury, cadmium, hexavalent chromium, and certain brominated flame retardants including polybrominated biphenyls and polybrominated diphenyl ethers for all categories of equipment in Annex I of the WEEE Directive except 8 and 9. The Annex to the RoHs Directive provides a list of exemptions for certain applications where no current alternative exists (e.g., mercury in compact fluorescent lamps not exceeding 5 mg per lamp). The Directive allows exemptions for reasons such as technical or scientific impracticability, and the European Commission is required to obtain comment from interested parties before deciding whether to grant an exemption (Article 5). As of early 2006, the European Commission was seeking comment on requests from the electronics industry to exempt 15 uses of lead and cadmium from the RoHS rules, including the use of lead in electronic vacuum tubes and gas valves for cooking appliances, and cadmium in certain electrical connections.
For more information on the WEEE/RoHS Directives, see
http://europa.eu.int/comm/environment/waste/weee_index.htm.
This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Eric Rothenberg, an O'Melveny partner licensed to practice law in New York and Missouri, has contributed to the content of this newsletter. The views expressed in this memo are those of the author.
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