New proposed WEEE and RoHS Directives set to alarm electrical and electronic equipment manufacturers
On 3 December 2008, the European Commission presented two proposals: one for a recast WEEE Directive and the other for a recast RoHS Directive. Several provisions in each of the draft texts will be of direct relevance and interest to Hong Kong's electrical appliances manufacturers.
The Commission's proposal for a new WEEE Directive is motivated by a number of factors, the main ones being that since the entry into force of the initial Directive, namely Directive 2002/96/EC (on 13 February 2003), a number of technical, legal and administrative difficulties have become apparent to the authorities. These would include, for example, different interpretations being given by the competent national authorities as to the scope of the EEE falling under the WEEE Directive, the division between business EEE and private household EEE, and the lack of harmonised registration and reporting requirements for producers.
In addition, the environmental objectives have failed to be met at the current collection and recycling rates set in Directive 2002/96/EC. Furthermore, illegal shipments are believed to be widespread, in breach of Directive 2002/96/EC and Regulation (EC) 1013/2006 on shipments of waste. The latter Regulation forbids, for example, the export of WEEE containing hazardous substances to countries such as mainland China, and otherwise contains strict conditions that must be complied with, for any shipments that are permitted.
One of the main changes introduced to the proposed WEEE Directive concerns collection targets. In the existing Directive, the target is 4 kg per inhabitant per year. Due to the fact that some Member States can apparently easily exceed this target, while others (e.g., Romania) can barely meet a fraction thereof, the proposed Directive sets a percentage target, which will take into account the economies of the different Member States. This target is to be, annually, 65% of the average weight of products that were placed on the market in the two preceding years in a Member State. This target, which will comprise both business to consumer and business to business WEEE, will become binding only in 2016.
The Commission has decided to include the re-use of whole appliances in the proposed Directive's recovery targets. This is because it is felt that the re-use of whole appliances is too little encouraged and should be increased. Thus, the proposed Directive sets out that while all WEEE has to be separately collected, the WEEE has to be either sent for treatment or undergo preparation for re-use. The recovery targets have furthermore been upped by 5%, in comparison to the existing WEEE Directive.
As for producers' financing responsibilities, the only material change in the provision concerning financing by producers in respect of their responsibility obligations, concerns the collection of WEEE. The new provision allows national governments to make producers finance all the costs incurred for collection facilities in respect of WEEE from private households.
In a novel provision that is bound to be of special interest to Hong Kong sellers, a producer doing business in more than one Member State will be entitled to register and report in one Member State only, for all its activities in the EU. This provision is felt necessary to harmonise the registration requirements. A full copy of the proposed WEEE Directive can be accessed via this web link: http://ec.europa.eu/environment/waste/weee/pdf/com_2008_810.pdf
As for the RoHS Directive, the Commission appreciates that Directive 2002/95/EC (RoHS) has prevented many thousands of tonnes of banned substances from being disposed of and potentially released into the environment. However, the Commission's decision for a recast RoHS Directive has come about, according to it, to improve implementation by the Member States (e.g., by ensuring a more harmonised implementation), improve enforcement and increase understanding of the provisions.
The substances that are prohibited under RoHS (including their tolerated maximum concentration values) will not change, but are now contained in Annex IV of the proposed RoHS Directive. However, what is new is that the substance prohibitions will also apply, in phased fashion, to medical devices and to monitoring and control instruments.
Annex III of the proposed RoHS Directive contains a list of priority substances, each of which needs to be addressed, with a view to eventually adding them to Annex IV as prohibited substances. The substances currently listed in proposed Annex III are Hexabromocyclododecane (HBCDD), Bis (2-ethylhexyl) phthalate (DEHP), Butyl benzyl phthalate (BBP) and Dibutylphthalate (DBP). Thus, although not banned at this time, Hong Kong sellers may see these substances, in the future, added to the list of prohibited substances.
Another new provision furthermore limits the duration of exemptions to a period of only four years, although they may be renewed.
The proposed RoHS Directive adds new obligations on economic operators, so as to - according to the Commission - reduce the number of non-compliant products and strengthen and harmonise market surveillance by the competent authorities. For manufacturers, the obligations include drawing up technical documentation and carrying out an internal production control procedure; placing on their EEE a type, batch or serial number or other element allowing their identification; and indicating the manufacturer's name, registered trade name or trademark, and the address of a single point of contact.
Importers also have specific obligations, which include ensuring that the appropriate conformity assessment procedure has been carried out by the manufacturer and that the appropriate technical documentation has been drawn up; that the EEE bears the CE marking and is accompanied by the required documents; and that an indication of their name, registered trade name or trademark and their contact address appears on the EEE.
Both proposed Directives will have to go through the formal EU legislative procedure before being adopted. Under the normal course of events, this is likely to take between one and two years; however, adoption could be fast-tracked if the Council and the European Parliament quickly agree with each other on the amendments. Once the new Directives are published in the EU's Official Journal, Member States will have (according to the draft texts) 18 months in which to implement the Directives' new provisions. The currently existing Directives (2002/96/EC on WEEE and 2002/95/EC on RoHS) will then be repealed.
