Germany was one of the last European member states to transpose the WEEE Directive 2012/19/EU (WEEE II) and the Electrical and Electronic Equipment Act (ElektroG 2) which came into force on 24 October 2015.
Some of the new requirements, such as appointing an Authorised Representative for foreign based producers, or WEEE take-back obligations for large retail and online shops, came into effect in stages throughout 2016.
The latter provision to take back WEEE either on 1:1 or 0:1 basis affects distributors and retailers with a sales or storage and distribution space above a certain size, and was met with significant resistance by obligated companies in the lead up to the transposition.
Following discovery of extensive non-compliance with the new take-back rules, which only came into effect officially on 27 July 2016, the German government announced on 14 December 2016 that it will adopt changes to the Electrical and Electronic Equipment Act effective from 2017.
Here we detail the changes and possible impacts on UK companies:
Waste take-back rules for large retailers include online sellers
Waste take-back obligations for distributors and retailers with a sales space (a 'stationery retailer') and storage or distribution space (an 'online retailer') greater than 400 m² in Germany have been in effect since the summer.
This mandates a 1:1 take-back obligation of WEEE when a similar type of new equipment is purchased and a 0:1 take-back obligation for all small WEEE (size limit of 25 cm corner length) without purchase of a new item.
The greater than 400 m² space threshold applies only to locations in Germany and not those abroad, however, non-German based companies which have a distribution hub or warehouse in Germany (or utilise similar sized shelf-space in an Amazon fulfilment centre in Germany) could be faced with the same waste take-back requirements.
Spot-checks revealed widespread non-compliance
Deutsche Umwelthilfe (DUH), a non-profit environmental and consumer protection association performed random tests at large retailers (including those that sell online) between July and August of this year, having previously contacted and reminded obligated sellers in the run-up to the July deadline.
The findings revealed widespread non-compliance with in-store and online take-back rules, which were so staggering that DUH issued cease and desist letters to Amazon, Apple and IKEA in August and September following their investigations.
DUH found that the right to return WEEE, either when purchasing a new item or free of charge when returning small equipment, was in most cases insufficiently communicated or not advertised at all, and in several cases take-back was simply refused in stores.
Checks revealed that staff at IKEA, Amazon and Apple (and other well-known retail names in Germany, such as Karstadt, Obi and Galeria Kaufhof) were unaware of the requirements, no information was provided on websites or was hard to find and often incorrect.
DUH published its findings on its website, and harshly criticised the lack of cooperation with the new rules and overall consumer “un-friendly” nature of this requirement, which was introduced to increase collection and recycling of waste by making the return of e-waste more convenient and safe.
Explicit sanctions for non-compliance with take-back rules
According to the Recommendation and Report document published a few days ago by the German Bundestag (a constitutional and legislative branch of German government), the articles outlining take-back of WEEE (§ 17) and fines for non-compliance (§ 45) in the Electrical and Electronic Equipment Act will be amended as follows:
- Reiteration that WEEE with a size limit of 25 cm corner length must be taken back by a retailer or in his near vicinity (“on request by an end-consumer”) and this may not be tied to the purchase of a new electronic or electrical equipment
- New introduction of limiting the right to return WEEE to five items per equipment type
The above will come into effect three months after an official announcement of the changes, possibly in force around March or April 2017.
- Making it an offence if contrary to §17 the obligated seller either intentionally or through negligence does not correctly, or not promptly or not fully takes back WEEE.
- The offence is punishable by fines of up to EUR 100,000.
This will come into effect on 1 June 2017.
UK producers impacted if take-back rules apply to them
In May of this year we advised UK producers to assess their obligations by clarifying whether their company had any storage or distribution space meeting the size threshold in Germany, and suggested the same due-diligence to companies using the Amazon or eBay fulfillment services.
If not already done so, we recommend doing a review of this early in 2017 to allow your company to proactively address any potential compliance gaps before the changes to the above articles come into effect.
The changes in the legislation are likely to prompt stricter enforcement measures in Germany with further spot-checks, concentrating on online sellers particularly.
Unsure whether you are obligated or need more information?
We can offer consultancy to help producers understand their requirements in Europe, with support solutions including impact assessments, compliance strategies, regulatory monitoring, data management and distributor compliance support.
Please contact our team of specialists if you are offering goods for sale in Germany by emailing firstname.lastname@example.org or calling 0845 094 2228.
International compliance product manager
Fran works within the compliance team as our international compliance product manager, joining us in the spring of 2015. She brings a wealth of experience to the role having previously work for Apple in Ireland for six years, looking after the company’s WEEE, battery and packaging submissions across Europe. Needless to say she has gained extensive knowledge of European legislation!
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