WEEE Recast Introduces Stringent Requirements for WEEE and Used EEE Export Out of the EU


September 2013

The WEEE Recast has introduced new requirements to fight illegal shipments of WEEE outside the EU. A higher number of shipments will be subject to reporting obligations and contractual obligations to ensure take-back if the shipment fails. In addition, the WEEE Recast requires exporters to provide documentation evidence that used EEE exported outside the EU is being shipped for repair or reuse.

The WEEE Recast does not introduce a new system for exports of waste. However, it enables EU Member States to enforce compliance with Waste Shipment Regulation 1013/2006* more effectively.

Article 10 of the WEEE Recast states:

“WEEE exported out of the Union shall only count towards the fulfilment of obligations and targets set out in Article 11 of this Directive if, in compliance with Regulations (EC) No 1013/2006 and (EC) No 1418/2007, the exporter can prove that the treatment took place in conditions that are equivalent to the requirements of this Directive.”

WEEE exporters will have to prove that treatment of WEEE outside the EU takes place in conditions equivalent to those required by the WEEE Recast.

Article 8 of the WEEE Recast states:

“Proper treatment, other than preparing for re-use, and recovery or recycling operations shall, as a minimum, include the removal of all fluids and a selective treatment in accordance with Annex VII.”

Treatment of WEEE outside the EU should take into account environmental considerations and the desirability of preparation for re-use and recycling, the removal of substances shall be carried out in such a way that environmentally-sound preparation for re-use and recycling of components or whole appliances is not hindered (Annex VII).

Article 23 of the WEEE Recast states:

“Member States shall ensure that shipments of used EEE suspected to be WEEE are carried out in accordance with the minimum requirements in Annex VI and shall monitor such shipments accordingly.”

Annex VI of the WEEE Recast sets out the Minimum Requirements for Shipments of used EEE. These measures make exporters responsible for proving that goods are being shipped abroad for repair or reuse. Annex VI of the WEEE Recast requires exporters to test and provide documents on the nature of their shipments, showing the shipment is of used EEE and not WEEE. Such an approach follows that previously laid down through EU Member States Transfrontier Waste Shipment Authority guidance documentation **

In order to prove that a shipment contains EEE and not WEEE, Member States shall require the following from the holder:

  • a copy of the invoice and contract which states that the equipment is destined for direct re-use;
  • evidence of evaluation or testing in the form of a copy of the records
  • a declaration made by the holder who arranges the transport of the EEE that none of the material or equipment within the consignment is waste as defined by Article 3(1) of Directive 2008/98/EC; and
  • appropriate protection against damage during transportation, loading and unloading.

All 28 EU Member States are required to transpose the WEEE Recast into their legislation by January 2014 (18 months after the publication of the Recast of the WEEE Directive in the Official Journal of the European Union), therefore, the shipment requirements mentioned above will be common throughout all EU Member States.

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* Waste Shipment Regulation 1013/2006 - Transfrontier waste shipment in EU Member States

Movement of waste between EU Member States is subject to Regulation (EC) No. 1013/2006 of the European Parliament and of the Council of 14th June, 2006 on shipments of waste. The Regulation gives effect in the EU to OECD Decision C(2001)107/FINAL and came into effect in EU Member States on 12 July 2007.

Regulation 1013/2006 covers Transfrontier shipments of waste within, into and out of the European Union. The control system is based on ‘prior informed consent’. It requires notification, where appropriate, to the Competent Authorities of dispatch, destination and transit using a consignment note containing prescribed information. Regulation 1013/2006 also requires shipments of hazardous waste to be covered by a financial guarantee.

As per the requirements of Council Decision C(2001)107/FINAL, Regulation 1013/2006 distinguishes between Green List waste, Amber List waste and Annex V wastes which may be prohibited from export (commonly found in the Red List of Council Decision C(2001)107/FINAL):

  • Green List wastes are considered to be non-hazardous wastes. Green list wastes are not controlled under Council Decision C(2001)107/FINAL, but documentation must still accompany Transfrontier shipments , (and in some EU Member States, a Pre-notification to the Competent Authority in that particular country must take place prior to shipment).
  • Amber List are considered to be hazardous wastes and require Pre-notification to the Competent Authority in each country through which the waste is to be transported plus detailed information on the waste type and recovery operations to accompany Transfrontier shipments;
  • Annex V Wastes (further subdivided into List A and List B wastes). List A wastes are covered by the export prohibition of the Basel Convention and List B wastes are not covered by the export prohibition.

**Distinction between EEE and WEEE for Transfrontier Waste Shipment

Revised Correspondents' Guidelines No 1 were agreed by EU Member States correspondents at a meeting on 14/15 June 2007 organised pursuant to Article 57 of Regulation (EC) No 1013/2006. Although not legally binding, they represent a common understanding of all EU Member States Transfrontier Waste Shipment (TFS) Authorities on how Regulation (EC) No 1013/2006 on shipments of waste should be interpreted.

Electrical and Electronic Equipment (EEE) becomes Waste Electrical and Electronic Equipment (WEEE) if the holder of the equipment discards it, or intends or is required to discard it. Under the Revised Correspondents' Guidelines No 1, there are characteristics of electrical and electronic equipment that are likely to indicate whether the equipment being shipped is waste or not. If the person who arranges the shipment of the equipment claims that the consignment includes EEE and not WEEE, the TFS Authorities expect the person who arranges the shipment to be able to demonstrate that all items included in the consignment are EEE and not WEEE. This includes:

  1. a copy of the invoice and contract relating to the sale and/or transfer of ownership of the EEE which states that the equipment is for direct re-use and fully functional;
  2. evidence of evaluation/testing in the form of copy of the records (certificate of testing – proof of functional capability) on every item within the consignment and a protocol containing all record information (see below);
  3. a declaration made by the holder who arranges the transport of the EEE that none of the material or equipment within the consignment is waste as defined by Article 1(a) WFD, and
  4. sufficient packaging to protect it from damage during transportation, loading and unloading.

The Revised Correspondents' Guidelines No 1 go on to further define instances where EEE would normally be considered WEEE. This includes:

  1. the product is not complete - essential parts are missing;
  2. it shows physical damage that impairs its functionality or safety, as defined in relevant standards;
  3. the packaging for protecting it from damage during transport and loading and unloading operations is insufficient;
  4. the appearance is generally worn or damaged, thus reducing the marketability of the item(s);
  5. the item has among its constituent part(s) anything that is required to be discarded or is prohibited under community or national legislation;
  6. the EEE is destined for disposal or recycling instead of re-use;
  7. there is no regular market for the EEE; or
  8. it is old or out-dated EEE destined for cannibalization (to gain spare parts)

The Revised Correspondents' Guidelines No 1 also state that where it is asserted that non-hazardous WEEE is being shipped, the person who arranges the shipment of the equipment should ensure that it is accompanied by evidence of appropriate testing to demonstrate that the waste that is being shipped is non-hazardous. In the absence of appropriate documentation and packaging, the TFS Authorities are likely to presume that an item is hazardous WEEE and, in the absence of consents in accordance with the requirements of Regulation 1013/2006, presume that the load comprises an illegal shipment. In these circumstances, the consignment is likely to be returned to the country of dispatch at the senders own expense and may be liable to a criminal sanction.