WEEE 2: National registration remains in place

WEEE 2 does not bring about the hoped-for uniform EU-wide registration for manufacturers, which would have meant that manufacturers would in future only need to register in one EU Member State. IT companies whose business activities are not limited to the territory of one EU Member State can attest to the unfortunate fact that they face inconsistent national registration requirements in WEEE registration.

Establishment in the country of registration

According to many of the relevant national laws implementing the first WEEE Directive of 2002 (Directive 2002/96/EC), a registration requirement is that the company be established in the EU Member State in which registration is requested. The registering IT company requires an establishment in the Member State in question even when making supplies within the internal market and not only when importing from third countries. This requirement was challenged in court by IT companies on the grounds of infringement of the EU internal market; only rarely with success. This unsatisfactory outcome is reflected in the Recommendation of the European Parliament for the second reading of 06.10.2011, Amendment 64 as follows: "The requirement that every manufacturer has a place of business in the Member State in which he wishes to place electrical or electronic equipment on the market constitutes an impediment to the internal market and is particularly burdensome for SMEs."

Registration by means of an authorised representative

WEEE 2 (Directive 2012/19/EU) however provides that manufacturers may appoint an authorised representative in Member States where they do not have an establishment to carry out the registration there. Proof of an own establishment will thus no longer be required for successful registration. In the Recommendation for the second reading of the European Parliament of 06.10.2011, Amendment 64, this solution was considered sufficient. It states: "For the enforcement of the Directive in the Member States, it is sufficient if a resident authorised representative who undertakes the obligations of the Directive is available."

When do the changes take effect?

The Federal Ministry for the Environment (BMUB) presented a draft for a revised Electrical Equipment Act, the "Act on the Reordering of the Law on the Placing on the Market, the Take-back and the Environmentally Compatible Disposal of Electrical and Electronic Equipment" at the beginning of the year. The planned target date for the entry into force of the new ElektroG is April 2015.

Legal consequences of failure to register

Without appropriate national WEEE registration, there is a statutory distribution ban in the Member State in question. Anyone who nonetheless offers their products commits an administrative offence and faces fines (in Germany up to EUR 100,000.00). In particular, there is also a risk of costly cease-and-desist letters from competitors.

Conclusion

Efforts towards a single, EU-wide registration of the manufacturer have failed. Anyone offering electrical or electronic equipment cross-border should obtain advice from a specialised lawyer on proper WEEE registration in the desired EU Member States and the relevant requirements in order to prevent fines and costly cease-and-desist letters.