WEEE/RoHS Workshop

WEEE/RoHS Workshop
Taipeh, August 31, 2005
Kris Pollet
Director EU Law
& Policy
62 rue de la loi
1040 Brussels
T: 32 2 219 16 20
F: 32 2 219 16 26

Legal Basis: Back to basics
Session I

Directive vs. Regulation
« Directive »:
“A Directive shall be binding, as to the result to be achieved, upon each
Member State to which it is addressed, but shall leave to the national
authorities the choice of form and methods”
“ Regulation ”:
“A Regulation shall have general application. It shall be binding in its entirety
and directly applicable in all Member States.”
Article 249 EC Treaty
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Directive vs. Regulation
A Directive needs to be transposed into national law.
A Directive leaves Member States margin for maneuver on how to achieve
a set goal.
A Regulation is directly applicable.
Only under very specific circumstances can a citizen derive rights from a
Directive which has not (yet) been transposed into national law.
A Regulation is used for highly technical issues where differences are not
desirable (eg. REACH proposal).
A Directive leaves room for national political choices (Treaty principle of
subsidiarity).
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The WEEE & RoHS Directives
Stakeholders initially asked for a WEEE/RoHS Regulation, in order to
ensure identical implementation in all Member States…
Initially there was only one proposal for a unified electronic waste law.
The text was split up into a WEEE Directive and a RoHS Directive.
Why?
Political choice for a different legal basis!
(even the current EuP proposal for eco-design was initially supposed to be
part of the unified electronic waste law)
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Legal Basis
WEEE Directive:
Article 175 EC Treaty – Environmental Protection
It shall « not prevent any Member State from maintaining or introducing more
stringent protective measures » (Art. 176)
RoHS Directive:
Article 95 EC Treaty – Harmonisation of EU law / Single Market
National derogations are not possible (except under very strict circumstances)
Therefore, a Member State cannot normally add a 7th or 8th hazardous substance
to the 6 banned under RoHS
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Consequences
A patchwork of different substance bans in different Member States was
considered to be very damaging – would have destroyed EU Single Market
Some Member States already had electronic waste legislation – which differed
in various respects
WEEE Art 175 was meant to give them the option to stick to some of their
national choices
Since WEEE primarily determines the scope of both WEEE and RoHS, it is
possible that the scope of products covered by WEEE/RoHS differs nationally.
Other differences?
E.g. : “Producers to provide at least for collection of WEEE deposited at
collection facilities” (Art 8.1)
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Implementing rules
⇒ Problem: many detailed/technical issues have NOT been dealt with or
regulated in the Directives.
⇒ Solution: common EU mechanism to deal with technical implementing rules,
and ‘adaptation to scientific and technological progress’ = « comitology ».
European Parliament, as legislator, does not normally want to deal with
technical details – lack of expertise
These ‘implementing powers’ are granted to the European Commission,
which operates the « comitology » system.
Art 14 WEEE, Art 7 RoHS = comitology or Technical Adaptation Committee
(TAC).
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Technical Adaptation Committee
Chaired by European Commission
Made up of representatives of the 25 Member States
National officials responsible for electronic waste policy
Only European Commission can table a proposal
No real involvement of European Parliament
If majority of TAC agrees, European Commission will adopt proposal
TAC cannot amend proposals
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Technical Adaptation Committee
⇒TAC has been focal point of political discussions on WEEE and RoHS
problems for past 2 ½ years.
Decision of 18 August 2005 on Maximum Concentration Values
Draft Decision to exempt Deca BDE brominated flame retardant from RoHS
ban
Draft Decision to exempt certain applications from RoHS bans (e.g. lead
and cadmium in optical and filter glass; cadmium and its compounds in
electrical contacts)
Guidance document (called “Frequently Asked Questions”)
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Technical Adaptation Committee
⇒ Industry is NOT normally present during TAC meetings
⇒ Not straightforward to lobby TAC members
⇒ Commission / TAC turf battle with European Parliament
⇒ Commission / TAC can only legislate if explicitly foreseen in Directive
⇒ Guidance document, including on scope/grey products issues, is therefore
non-binding
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Technical Adaptation Committee
Upcoming proposals / Decisions:
amend/simplify WEEE Annex II selective treatment requirements;
request to exempt 19 applications from RoHS ban;
review of granted exemptions after 4 years;
how to calculate recovery & recycling targets.
TAC can NOT expand RoHS 6 substances ban – considered too politically
sensitive!
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