In the first in a series of articles, Vic Clements from RFI Global looks at the forthcoming European environmental legislation, and asks who is responsible under the legislation

With the WEEE and RoHS Directives now being implemented by all Member States (with the exception of the UK, at the time of writing), one of the major issues still appears to be the question of who is responsible for fulfilling the legal obligations.

Both the WEEE and the RoHS Directives place obligations under the concept of “producer responsibility”. The “producer” is legally responsible for ensuring that all producer obligations so it is essential for manufacturers to determine early on whether or not they are the “producer” in any Member State.

One would hope that the Directive itself would be clear on this matter and leave no room for ambiguity but unfortunately this does not appear to be the case. If we look at Article 3 of the WEEE Directive we find it states that a “producer” is:
“any person who, irrespective of the selling technique used, including by means of distance communication in accordance with Directive 97/7/EC:
a) manufactures and sells electrical and electronic equipment under his own brand; or
b) resells under his own brand equipment produced by other suppliers, a reseller not being regarded as
the 'producer' if the brand of the producer appears on the equipment, as provided for in point a), or;
c) imports or exports electrical or electronic equipment on a professional basis into a Member State.”

Vic Clements

Even reading the first bullet raises the questions “manufactured where?” and “sold where?” What if the manufacturer is outside the EU and sells to a distributor in a Member State? 

The inclusion of selling through distance communication appears to deal with the case where the manufacturer sells remotely, say over the internet, but more on that later. For the moment let’s leave to one side the question of the extra-mural manufacturer and presume that we are talking about a company who manufactures and sells its product within a Member State. Clearly they would be the “producer” in that Member State.

The second bullet raises the same issue. Anyone doing this within a Member State is clearly a “producer” but what if the reseller is outside the EU?

The third bullet appears to answer this. In the case where the manufacturer or reseller is outside the EU then it is the importer who places the product on the market in the Member State who is the “producer”.

To support the significance of this, the DTI have offered the following comments:
“WEEE obligations will fall on the party, established in the UK, which puts the products on the market in the UK” (where put on the market means the first making available for distribution or use), “be it the original manufacturer, importer, distributor or retailer.

Should a distributor or retailer import goods from outside the UK, whether an EU state or otherwise, then for the purposes of the UK regulations that distributor or retailer would be the entity that placed the goods on the UK market and as such regarded as the obligated party for the purposes of the regulations. We can only enforce responsibility for WEEE on UK entities given that we cannot enforce obligations on parties outside the UK jurisdiction.”

This reinforces the view that the “producer” in the UK and indeed in all other member States will have to be resident in the member State in order for any enforcement action to be carried out.

In the distribution and sales processes of most products that come from outside the EU, this will not be an issue as there will always be someone in the Member State into which the products are supplied who is in the commercial chain, be it distributor, agent or retailer.

But what if such an entity did not exist? Does the inclusion of selling through distance communication in the definition of “producer” help here?

It can be argued that bringing this activity under the provisions defines the distance seller as the “producer”, however the referenced Directive 97/7/EC only applies to sales to consumers and as enforcement can only be carried out against Member State resident persons, then the inclusion of selling through distance communications only effectively covers intra EU business to consumer transactions and does not help in the B2B context or at all where the seller is outside the EU.

There are also many cases in the business to business environment where products are ordered by a user in a Member State on let’s say a US manufacturer who drop ships the product directly to the user. All transactions are directly between the end user in the EU and the manufacturer in the USA. Who is the producer in this case? There is no commercial intermediary in the Member State available for enforcement action.

It may well be that the end user has agreed under the terms of their contract with the manufacturer to take on the obligations under Article 9 of the WEEE Directive and effectively become the “producer” but where this is not the case (and certainly in the case of RoHS where there is no provision to transfer obligations to the end user), who will be responsible and in the case of suspected non-compliance how will the provisions be enforced?

The days have long gone when we could sail a gunboat up the river of some foreign country to enforce British jurisdiction and we have not been able to prosecute any US company since 1776. So it would appear that there is a gap here in the definition of producer that allows for the supply of non-compliant products with impunity.

In the absence of the ability to enforce action against the manufacturer outside the EU, what could be done and to whom? As the UK regulations are currently framed, penalties are restricted to fines on non-compliant producers. It would be difficult to enforce against the end user because with the exception of the B2B provisions in Article 9, there is no provision in the Directive to allow this.

Clearly shorn of the ability to levy fines, one other sure way of penalising non-complying non-EU manufacturers would be for the Customs authorities to stop their products at the point of entry but this begs the question of how non-compliant companies or products would be identified. For WEEE, this could be done by looking for the Wheelie Bin mark and identification of the producer. For RoHS it is difficult to see how non-complying products, even if marked in some way, will be identified without extensive time-consuming testing.

In any case such action would have to be brought under other primary legislation, as there are no enforcement provisions in the draft regulations for WEEE or RoHS to prevent or restrict sales by Customs or for that matter any other Agency.

Previous discussion with the DTI indicated that there was scope to enforce restriction or prevention of sales under The Consumer Protection Act in the UK in the case of RoHS but for WEEE this is problematic. It remains to be seen how this gap in the enforcement regime will be filled, if at all.

Vic Clements is a specialist in RoHS and WEEE legislation at UK test house RFI Global Services

www.rohs-weee.uk.com
www.rfi-global.com