Legal action for non-compliance to the Waste Electrical and Electronics Equipment (WEEE) directive has been quiet since the incident in 2005 involving the Irish authorities fining retailer Boots Pharmacy for not displaying recycling costs added to the product price. But producers have been challenging authorities in the courts in at least two member states, Germany and the Netherlands.
Bettina Enderle, a lawyer at Allen & Overy LLP (Frankfurt, Germany) pointed out the importance of watching how the German courts handle certain WEEE issues. As Europe's largest market and economic growth engine, Germany in some instances could influence WEEE compliance disputes throughout the European Union (EU).
The most noteworthy German cases involve the German National Register, Elektro-Altgerate Register (EAR). Companies have taken EAR to court over what they see as restrictive views and have won.
A case resolved in March centered on the issue of whether high-tech sport shoes with an implanted chip were considered electronic equipment under WEEE. The chip measures weight distribution when running and makes adjustments in the shoe that the manufacturer promises will result in an improved running experience.
Twelve EU member states had already ruled that the shoes were not electronic equipment, but EAR claimed they were and wanted the producer to register the products, Enderle said. The producer challenged EAR in court and the final ruling said the shoes were not electronic equipment.
Producers have also brought EAR authorities to court over the limits of fee imposition. One producer inaccurately filled in a bank account number in a registration form. When the mistake was discovered, the producer corrected the account number. EAR charged the producer for making the change. "The court held that EAR couldn't levy a fee on the change," Enderle said.
In another case, a producer mistakenly wrote on a registration form "24,000 tons" of WEEE it would be responsible for collecting instead of "2,400 tons," which was the actual number. The producer attempted to correct the mistake by sending an e-mail to EAR. EAR authorities, however, did not accept an e-mail correction and sent out collection orders for waste based on the wrong number of tonnage. The court ruled against EAR.
EAR is also under fire for charging producers Value Added Tax (VAT) for WEEE registration. VAT in Germany is 19%. The courts haven't issued a final judgment yet. But Enderle believes they will decide that EAR was not entitled to levy the VAT.
EAR is also in court over a rigid interpretation of large stationary industrial tools. The issue is highly technical but here's the simplified issue. A producer manufactures temperature regulation components attached to large stationary industrial tools, which are exempt. However, EAR said the temperature components didn't share the exemption of the industrial tool because they could be easily removed.
"EAR again took a narrow interpretation of this exemption," Enderle said.
The German Court of First Instance said that as long as components "share the same fate" of large scale industrial tools, they are exempt as well. A final ruling is expected later this year.
Not all German WEEE cases are public and presumably EAR has had decisions in its favor. But the number of cases is unknown. Enderle said the court in Bavaria, which handles all compliance-related cases, would not disclose how many times EAR has been challenged.
The lesson for producers is to challenge an EAR decision if they don't agree with the ruling. "Take all precedents as an invitation to challenge the decisions of EAR because they have to learn what their limits are," Enderle said.