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Penalty Introduced for Non-compliance of German Retailers Regarding WEEE Take-back Obligation

As of 1 June 2017, a violation of the waste electrical and electronic equipment (WEEE) take-back obligation by retailers has become an offence in Germany. Germany’s Federal Environment Agency can impose fines of up to 100,000 EUR.

Hong Kong manufacturers who appoint an authorised representative as their retailer in Germany, or supply equipment to importers or other downstream distributors in Germany, should take note of this new amendment to the German EEEA. Awareness of the law and ensuring that it is complied with will ensure that a hefty penalty is avoided.

The take-back obligation has been introduced into German law by means of the Electrical and Electronic Equipment Act (EEEA). The EEEA transposes Directive 2012/19/EU on waste electrical and electronic equipment (the WEEE Directive) in Germany.

Hong Kong sellers will be familiar with the key provisions and product scope of the WEEE Directive. The law, which has been transposed into the local statutory laws of all Member States, applies to all electrical and electronic equipment (EEE) which is used in private households (so-called B2C devices), e.g. refrigerators, washing machines, personal computers, television sets and radios, to name just a few examples. It also applies to so-called “professional” WEEE, namely, to equipment used in other than private households. Only a limited number of EEE are exempted from the scope of the WEEE Directive.

Hong Kong traders may recall that Article 5 of the WEEE Directive requires Member States to ensure that, among others, distributors assume responsibility in the collection of WEEE.

Article 5 (2) (b) of the WEEE Directive provides that when supplying a new product to a customer, distributors are responsible for ensuring that waste can be returned to them at least free of charge on a one-to-one basis. This is so, as long as the WEEE is of equivalent type and has fulfilled the same functions as the supplied equipment (one-to-one obligation) without regard to the sales space of the retailer.

Article 5 (2) (c) of the WEEE Directive then requires distributors to provide for the collection, at retail shops with sales areas relating to EEE of at least 400 square metres, or in their immediate proximity, of very small WEEE (no external dimension more than 25 cm) free of charge to end-users and with no obligation to buy EEE of an equivalent type (zero-to-one obligation). Such obligation would apply, for example, when an individual brings a discarded electric toothbrush or mobile phone to a store which fulfils the aforementioned space requirement.

Peculiarly, under the German EEEA, both take-back obligations, the one-to-one obligation and the zero-to-one obligation, apply only to distributors and retailers with a sales space (in-store) of at least 400 square metres located in Germany.

Whenever a similar type of new equipment is purchased, the purchase triggers a 1:1 take-back obligation of WEEE in accordance with the WEEE Directive. This means that the retailer is obligated to take back, free of charge, an old appliance from the consumer which serves the same general purpose as the newly purchased equipment.

Small devices (i.e. maximum 25 cm edge length), on the other hand, are subject to a 0:1 take-back obligation. This means that, in line with the WEEE Directive, their taking back must not be conditional upon the purchase of a new device of a similar kind in Germany. The obligation is limited to five pieces of equipment per type at a time under the EEEA, which is another deviation from the WEEE Directive.

Since the EEEA’s entry into force in October 2015, a German non-profit environmental and consumer protection association has discovered extensive non-compliance with these rules. Non-compliance has apparently ranged from insufficient and incorrect communication of the consumer’s right to return WEEE, to refusal to take back equipment in stores.

Due to widespread criticism of this consumer-unfriendly behaviour, the German legislative authority saw the need to introduce a fine for non-compliance to conserve resources and promote resource-friendly and responsible behaviour. Depending on the severity of the infringement, the fine can amount to up to 100,000 EUR.

Federal Environment Minister Dr. Barbara Heinrichs has stressed that each piece of WEEE is a “small warehouse for raw materials”. She highlighted the crucial role the retail sector has to play in the establishment of a tight collection network for recycling.

Content provided by Picture: HKTDC Research
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