Changes from report parliamentary committee draft to plenary report

The Parliament’s Rapporteur, Mrs. Anna Zalewska MEP, intends to ensure that the targeted revision of the waste electrical and electronic equipment (WEEE) directive implements the Judgment of the Court of Case C-181/20 into the existing WEEE directive fully and accurately, nothing more, nothing less. As such, the Rapporteur has strived to make the Draft Report as concise and to-the-point as possible.

The Commission’s proposal for the targeted revision of the WEEE directive to implement the Court ruling is generally well-prepared, and the provisions do properly address the matter at hand. As such, the Rapporteur’s amendments in the Draft Report aim to mostly do two things:

(1) provide more clarity to the changes, where it would be useful, as the matter is not immediately obvious, as well as provide changes to other parts of the existing WEEE directive to ensure consistency and coherence;

(2) highlight the need to respect the principle of legal certainty and introduce provisions which would ensure the prevention of future instances of unjustified retroactivity, particularly in the anticipating upcoming overall revision of the WEEE directive.

Before the adoption of the current WEEE directive i.e. Directive 2012/19/EU of 4 July 2012, the rules concerning the environmentally sound disposal of WEEE had been covered by the general waste directive i.e. Directive 2008/98/EC. The role of Directive 2008/98/EC in this context is explained in Recital 4. Hence, clarification would be pertinent in a new preceding recital, namely introducing the waste directive, and specifically its Articles 8 and 14, which concern the Extended Producer Responsibility (EPR) as well as the costs.

With regard to the changes to Article 12 of the WEEE directive, the Rapporteur has opted to keep the Commission’s proposal of changes to Article 12 and to make no additional changes to Article 12. The Commission’s proposal is clear and properly implements the changes needed as required by the Court ruling. It would follow the same logic that the Court ruling had followed in its evaluation of Article 13, and this ensures the more complete and full implementation of the ruling.

In this, the remaining two sub-paragraphs of Article 13 (paragraph 1 of Article 13) should also be modified for consistency. In this, the Rapporteur’s amendment specifies that the provisions of costs for historical WEEE specifically is for WEEE as in Article 2 paragraph (1) point (a) but not including photovoltaic panels.

Article 2 paragraph (1) point (a), as in the existing WEEE directive, covers EEE from 13 August 2012 to 14 August 2018, which is the subject transitional period. The type of EEE are elaborated in Annex I and Annex II of the existing WEEE directive.

Indeed, photovoltaic panels were the only new EEE added to the scope between 2002 and 2012, as of application of the current WEEE Directive as it entered into force on 13 August 2012. Comparing the original scopes of application of both directives, which can be done by comparing Annex IB of the original / former WEEE Directive from 2002, and Annex II of the current WEEE Directive, it can be observed that photovoltaic panels are the only new category of equipment that appeared on the list between 2002 and 2012.

The existing WEEE Directive, specifically Article 2 paragraph 1 point (b), maintains that, the “open scope EEE”, as of 15 August 2018, should apply (with certain exceptions) to all EEE. Hence, as of 15 August 2018, instead of applying only to EEE listed in Annex II, the WEEE Directive started applying to all EEE as an all-encompassing category, in the same way it did for photovoltaic panels, using the cut-off date of ‘placing on the market after 13 August 2005’. Therefore, the Commission’s proposal appropriately corrects this retroactivity, and the Rapporteur further clarifies and ensures consistency in this amendment in Article 13.

A general update of the WEEE directive is anticipated in the coming years, independently of this targeted revision of specifically implement the Court ruling. Having functioned since 2002, the WEEE directive is generally seen to be harmonious and well functioning, with the exception of the retroactivity matter at hand. As such, it would be useful - especially in the pursuit of highlighting the principle of legal certainty - to provide a more specific time frame for the revision, which would be shortly after the transposition of the targeted revision of the WEEE directive that implements the Court ruling.

The Rapporteur has tentatively put in by the end of 2025, as this would be compatible with the period needed for the transposition time by Member States as laid out in Article 2 paragraph 1. The period of transposition for Member States to bring about the implementation of the targeted directive revision in national law and all the administrative processes needs to be practically implementable. As such, the Rapporteur has tentatively extended the transposition period for Member States from one year to two years. This is needed to ensure the complete and full transposition of the targeted amendment to the WEEE directive, addressing any potential retroactivity.

In the update, it needs to be emphasised that ensuring predictability and clarity is vital so that future scenarios of unjustified retroactivity are avoided - that is, besides the fact that the Judgement of the Court is from the Grand Chamber, which signals a degree of importance placed on this in future EU law-making practises. Furthermore, the key notion of avoiding the transfer of burdens and costs onto citizens and consumers, an overarching priority for the Rapporteur, have been explicitly included in the amendments of introducing these provisions.

References to Article 14 and Article 15, which pertain to the European Standard EN 50419:2022, have been left unchanged from the Commission proposal in the Draft Report.

At the time of writing the Draft Report, no further changes have been deemed necessary by the Rapporteur to the Commission proposal.