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THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 192(1) thereof,

Having regard to the proposal from the European Commission,

Having regard to the opinion of the European Economic and Social Committee,

Having regard to the opinion of the Committee of the Regions,

Acting in accordance with the ordinary legislative procedure,

Whereas:

(1)A number of substantial changes are to be made to Directive 2002/96/EC of the European Parliament and of the Council of 27 January 2003 on waste electrical and electronic equipment (WEEE). In the interests of clarity, that Directive should be recast.

(2)The objectives of the Union’s environment policy are, in particular, to preserve, protect and improve the quality of the environment, to protect human health and to utilise natural resources prudently and rationally. That policy is based on the precautionary principle and the principles that preventive action should be taken, that environmental damage should, as a priority, be rectified at source and that the polluter should pay.

(3)The Community programme of policy and action in relation to the environment and sustainable development (Fifth Environmental Action Programme) stated that the achievement of sustainable development calls for significant changes in current patterns of development, production, consumption and behaviour and advocates, inter alia, the reduction of wasteful consumption of natural resources and the prevention of pollution. It mentioned waste electrical and electronic equipment (WEEE) as one of the target areas to be regulated, in view of the application of the principles of prevention, recovery and safe disposal of waste.

(4)This Directive supplements the general waste management legislation of the Union, such as Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste. It refers to the definitions in that Directive, including the definitions of waste and general waste management operations. The definition of collection in Directive 2008/98/EC includes the preliminary sorting and preliminary storage of waste for the purposes of transport to a waste treatment facility. Directive 2009/125/EC of the European Parliament and of the Council establishes a framework for setting ecodesign requirements for energy-related products and enables the adoption of specific ecodesign requirements for energy-related products which may also be covered by this Directive. Directive 2009/125/EC and the implementing measures adopted pursuant thereto are without prejudice to the waste management legislation of the Union. Directive 2002/95/EC of the European Parliament and of the Council of 27 January 2003 on the restriction of the use of certain hazardous substances in electrical and electronic equipment requires the substitution of banned substances in respect of all electrical and electronic equipment (EEE) within its scope.

(5)As the market continues to expand and innovation cycles become even shorter, the replacement of equipment accelerates, making EEE a fast-growing source of waste. While Directive 2002/95/EC has contributed effectively to reducing hazardous substances contained in new EEE, hazardous substances such as mercury, cadmium, lead, hexavalent chromium and polychlorinated biphenyls (PCBs) and ozone-depleting substances will still be present in WEEE for many years. The content of hazardous components in EEE is a major concern during the waste management phase, and recycling of WEEE is not undertaken to a sufficient extent. A lack of recycling results in the loss of valuable resources.

(6)The purpose of this Directive is to contribute to sustainable production and consumption by, as a first priority, the prevention of WEEE and, in addition, by the re-use, recycling and other forms of recovery of such wastes so as to reduce the disposal of waste and to contribute to the efficient use of resources and the retrieval of valuable secondary raw materials. It also seeks to improve the environmental performance of all operators involved in the life cycle of EEE, e.g. producers, distributors and consumers and, in particular, those operators directly involved in the collection and treatment of WEEE. In particular, different national applications of the ‘producer responsibility’ principle may lead to substantial disparities in the financial burden on economic operators. Having different national policies on the management of WEEE hampers the effectiveness of recycling policies. For that reason, the essential criteria should be laid down at the level of the Union and minimum standards for the treatment of WEEE should be developed.

(7)The provisions of this Directive should apply to products and producers irrespective of selling technique, including distance and electronic selling. In this connection, the obligations of producers and distributors using distance and electronic selling channels should, as far as is practicable, take the same form, and should be enforced in the same way, as for other distribution channels, in order to avoid those other distribution channels having to bear the costs resulting from this Directive arising from WEEE for which the equipment was sold by distance or electronic selling.

(8)In order to fulfil the obligations pursuant to this Directive in a given Member State, a producer should be established in that Member State. By exception, to reduce existing barriers to the proper functioning of the internal market and administrative burdens, Member States should allow producers that are not established on their territory, but that are established in another Member State, to appoint an authorised representative to be responsible for fulfilling the obligations of that producer under this Directive. In addition, administrative burdens should be reduced by simplifying registration and reporting procedures and by ensuring that duplicate charges are not levied for registrations within individual Member States.

(9)This Directive should cover all EEE used by consumers and EEE intended for professional use. This Directive should apply without prejudice to Union legislation on safety and health requirements protecting all actors in contact with WEEE, as well as specific Union waste management legislation, in particular Directive 2006/66/EC of the European Parliament and of the Council of 6 September 2006 on batteries and accumulators and waste batteries and accumulators, and Union product design legislation, in particular Directive 2009/125/EC. The preparing for re-use, recovery and recycling of waste cooling equipment and the substances, mixtures or components thereof should be in accordance with the relevant legislation of the Union, in particular Regulation (EC) No 1005/2009 of the European Parliament and of the Council of 16 September 2009 on substances that deplete the ozone layer and Regulation (EC) No 842/2006 of the European Parliament and of the Council of 17 May 2006 on certain fluorinated greenhouse gases. The objectives of this Directive can be achieved without including large-scale fixed installations such as oil platforms, airport luggage transport systems or elevators within its scope. However, any equipment which is not specifically designed and installed as part of those installations, and which can fulfil its function even if it is not part of those installations, should be included in the scope of this Directive. This refers for instance to equipment such as lighting equipment or photovoltaic panels.

(10)A number of definitions should be included in this Directive in order to specify its scope. However, in the framework of a revision of the scope, the definition of EEE should be further clarified in order to bring Member States’ relevant national measures and current, applied and established practices closer together.

(11)Ecodesign requirements facilitating the re-use, dismantling and recovery of WEEE should be laid down in the framework of measures implementing Directive 2009/125/EC. In order to optimise re-use and recovery through product design, the whole life cycle of the product should be taken into account.

(12)The establishment, by this Directive, of producer responsibility is one of the means of encouraging design and production of EEE which take into full account and facilitate its repair, possible upgrading, re-use, disassembly and recycling.

(13)In order to guarantee the safety and health of distributors’ personnel involved in the take-back and handling of WEEE, Member States should, in accordance with national and Union legislation on safety and health requirements, determine the conditions under which take-back may be refused by distributors.

(14)Separate collection is a precondition for ensuring specific treatment and recycling of WEEE and is necessary to achieve the chosen level of protection of human health and the environment in the Union. Consumers have to actively contribute to the success of such collection and should be encouraged to return WEEE. For this purpose, convenient facilities should be set up for the return of WEEE, including public collection points, where private households should be able to return their waste at least free of charge. Distributors have an important role in contributing to the success of WEEE collection. Therefore, collection points set up at retail shops for very small WEEE should not be subject to the registration or permit requirements of Directive 2008/98/EC.

(15)In order to attain the chosen level of protection and the harmonised environmental objectives of the Union, Member States should adopt appropriate measures to minimise the disposal of WEEE as unsorted municipal waste and to achieve a high level of separate collection of WEEE. In order to ensure that Member States strive to set up efficient collection schemes, they should be required to achieve a high level of collection of WEEE, particularly for cooling and freezing equipment containing ozone-depleting substances and fluorinated greenhouse gases, given their high environmental impact and in view of the obligations contained in Regulation (EC) No 842/2006 and Regulation (EC) No 1005/2009. Data included in the impact assessment carried out by the Commission in 2008 show that 65 % of the EEE placed on the market was already separately collected then, but more than half of this was potentially the object of improper treatment and illegal exports, and, even when properly treated, this was not reported. This leads to losses of valuable secondary raw materials, environmental degradation, and provision of inconsistent data. To avoid this, it is necessary to set an ambitious collection target and to ensure that WEEE collected is treated in an environmentally sound way and is correctly reported. It is appropriate to lay down minimum requirements for shipments of used EEE suspected to be WEEE, in the application of which Member States may have regard to any relevant Correspondents’ Guidelines elaborated in the context of the implementation of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste. Such minimum requirements should in any case have the purpose of avoiding unwanted shipments of non-functional EEE to developing countries.

(16)The setting of ambitious collection targets should be based on the amount of WEEE generated where due account is taken of the differing life cycles of products in the Member States, of non-saturated markets and of EEE with a long life cycle. Therefore, a methodology for calculating collection rates based on WEEE generated should be developed in the near future. According to current estimates, a collection rate of 85 % of WEEE generated is broadly equivalent to a collection rate of 65 % of the average weight of EEE placed on the market in the three preceding years.

(17)Specific treatment for WEEE is indispensable in order to avoid the dispersion of pollutants in recycled material or the waste stream. Such treatment is the most effective means of ensuring compliance with the chosen level of protection of the environment of the Union. Any establishment or undertaking carrying out collection, recycling and treatment operations should comply with minimum standards to prevent negative environmental impacts associated with the treatment of WEEE. The best available treatment, recovery and recycling techniques should be used, provided that they ensure human health and a high level of environmental protection. Best available treatment, recovery and recycling techniques may be further defined in accordance with the procedures of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control.

(18)The Scientific Committee on Emerging and Newly Identified Health Risks, in its opinion on ‘Risk Assessment of Products of Nanotechnology’ of 19 January 2009, stated that exposure to nanomaterials that are firmly embedded in large structures, for example in electronic circuits, may occur in the waste phase and during recycling. To control possible risks to human health and the environment from the treatment of WEEE that contains nanomaterials, it is appropriate for the Commission to assess whether specific treatment may be necessary.

(19)The collection, storage, transport, treatment and recycling of WEEE as well as its preparation for re-use shall be conducted with an approach geared to protecting the environment and human health and preserving raw materials and shall aim at recycling valuable resources contained in EEE with a view to ensuring a better supply of commodities within the Union.

(20)Where appropriate, priority should be given to preparing for re-use of WEEE and its components, sub-assemblies and consumables. Where this is not preferable, all WEEE collected separately should be sent for recovery, in the course of which a high level of recycling and recovery should be achieved. In addition, producers should be encouraged to integrate recycled material in new equipment.

(21)The recovery, preparation for re-use and recycling of WEEE should be counted towards the achievement of the targets laid down in this Directive only if that recovery, preparation for re-use or recycling does not conflict with other Union or national legislation applicable to the equipment. Ensuring proper preparation for re-use, recycling and recovery of WEEE is important for sound resource management and will optimise supply of resources.

(22)Basic principles with regard to the financing of WEEE management have to be set at the level of the Union, and financing schemes have to contribute to high collection rates, as well as to the implementation of the principle of producer responsibility.

(23)Users of EEE from private households should have the possibility of returning WEEE at least free of charge. Producers should finance at least the collection from collection facilities, and the treatment, recovery and disposal of WEEE. Member States should encourage producers to take full responsibility for the WEEE collection, in particular by financing the collection of WEEE throughout the entire waste chain, including from private households, in order to avoid separately collected WEEE becoming the object of suboptimal treatment and illegal exports, to create a level playing field by harmonising producer financing across the Union and to shift payment for the collection of this waste from general tax payers to the consumers of EEE, in line with the ‘polluter pays’ principle. In order to give maximum effect to the concept of producer responsibility, each producer should be responsible for financing the management of the waste from his own products. The producer should be able to choose to fulfil this obligation either individually or by joining a collective scheme. Each producer should, when placing a product on the market, provide a financial guarantee to prevent costs for the management of WEEE from orphan products from falling on society or the remaining producers. The responsibility for the financing of the management of historical waste should be shared by all existing producers through collective financing schemes to which all producers that exist on the market when the costs occur contribute proportionately. Collective financing schemes should not have the effect of excluding niche and low-volume producers, importers and new entrants. Collective schemes could provide for differentiated fees based on how easily products and the valuable secondary raw materials that they contain could be recycled. In the case of products which have a long life cycle and which are now covered by this Directive, such as photovoltaic panels, the best possible use should be made of existing collection and recovery systems, provided that they meet the requirements laid down in this Directive.

(24)Producers could be allowed to show purchasers, on a voluntary basis at the time of sale of new products, the costs of collecting, treating and disposing of WEEE in an environmentally sound way. This is in line with the Commission Communication on Sustainable Consumption and Production and Sustainable Industrial Policy Action Plan, in particular with regard to smarter consumption and green public procurement.

(25)Information to users about the requirement not to dispose of WEEE as unsorted municipal waste and to collect WEEE separately and about the collection systems and their role in the management of WEEE is indispensable for the success of WEEE collection. Such information necessitates the proper marking of EEE which could end up in rubbish bins or similar means of municipal waste collection.

(26)Information on component and material identification to be provided by producers is important to facilitate the management, and in particular the treatment and recovery or recycling, of WEEE.

(27)Member States should ensure that inspection and monitoring infrastructure enables the proper implementation of this Directive to be verified, having regard, inter alia, to Recommendation 2001/331/EC of the European Parliament and of the Council of 4 April 2001 providing for minimum criteria for environmental inspections in the Member States.

(28)Member States should provide for effective, proportionate and dissuasive penalties to be imposed on natural and legal persons responsible for waste management, where they infringe the provisions of this Directive. Member States should also be able to take action to recover the costs of non-compliance and remedial measures, without prejudice to Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage.

(29)Information about the weight of EEE placed on the market in the Union and the rates of collection, preparation for re-use, including as far as possible preparation for re-use of whole appliances, recovery or recycling and export of WEEE collected in accordance with this Directive is necessary to monitor the achievement of the objectives of this Directive. For the purposes of calculating collection rates, a common methodology for the calculation of weight of EEE should be developed to ascertain, inter alia, whether this term includes the actual weight of the entire equipment in the form in which it is marketed, including all components, sub-assemblies, accessories and consumables but excluding packaging, batteries, instructions for use and manuals.

(30)It is appropriate to allow Member States to choose to implement certain provisions of this Directive by means of agreements between the competent authorities and the economic sectors concerned, provided that particular requirements are met.

(31)In order to address difficulties faced by Member States in achieving the collection rates, to take into account technical and scientific progress and to supplement the provisions on fulfilment of recovery targets, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union (TFEU) should be delegated to the Commission in respect of transitional adjustments for certain Member States, adaptation to technical and scientific progress and the adoption of detailed rules on WEEE exported out of the Union counting towards the fulfilment of recovery targets. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.

(32)In order to ensure uniform conditions for the implementation of this Directive, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers.

(33)The obligation to transpose this Directive into national law should be confined to those provisions which represent a substantive change as compared with the earlier Directives. The obligation to transpose the provisions which are unchanged arises under the earlier Directives.

(34)In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents, Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified.

(35)This Directive should be without prejudice to the obligations of the Member States relating to the time limits for transposition into national law and application of the Directives set out in Annex XI, Part B.

(36)Since the objective of this Directive cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale of the problem, be better achieved at the level of the Union, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective,

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