Whether you’re completely new to compliance outside the UK or have made a start researching requirements – chances are you’re already scared off or a bit stuck by now!
That’s understandable. For a start, most information you find is in German and possibly a good few years out of date. Germany transposed the 2012 recast WEEE Directive (WEEE 2) later than most countries and little guidance material has been translated yet.
Plus the system is very different from the UK – with no small/large producers thresholds, no WEEE compliance schemes, no WEEE evidence system but plenty of things you’ve probably never heard off: Financial guarantee? Collection coordination? Pick-up notifications? Stiftung EAR?
To help you find your way through the maze that is compliance abroad, I present a series of three blogs on WEEE compliance in Germany. To begin with, let’s look at one of the most commonly asked questions I deal with.
Ever since Germany transposed WEEE 2 in October 2015, UK companies have been experiencing an increase in registration queries from their German resellers, commonly their distributors or retailers. Often the resellers ask about their UK suppliers’ German WEEE registration number, causing confusion and the inevitable question – who exactly is the producer under German WEEE legislation?
Before this becomes a contentious issue between you and your resellers, it’s important to understand that the German WEEE producer definitions differ in wording from the WEEE Directive, and that specific aspects and phrases could lead to misinterpretation.
Principally, Germany has kept to the four “producer definition scenarios” in the WEEE Directive (manufacturer/brandholder, rebranding reseller, importer and foreign distance seller) with one crucial change and one confusing omission in wording.
Firstly, the obligation for WEEE begins when a company offers EEE for sale, not only when it starts selling it. This means that when a company advertises or offers something for delivery in or to Germany, a registration with the German WEEE authorities – Stiftung (“Foundation”) EAR should already be in place.
Secondly, the German WEEE producer definitions omit the phrase “is based in Germany and: […]” when detailing these scenarios and coupled with the phrase “offering” it becomes extremely vague – does the UK company offer it in Germany first, because its website shows that customers can buy EEE at specific German resellers?
Or does the german reseller offer it first, as he is importing it for the purpose of offering it for sale on the german market?
If you are expecting a straightforward answer, I’m afraid you’re going to be disappointed.
The rather “woolly” wording is in fact deliberate, because the onus is on the product (more so than the producer) being fully registered before it is placed on the market in Germany. This is a type of “self-control” enforcement measure Germany favours, as it is meant to promote a dialogue between supply chain actors leading to someone eventually taking on the obligation.
The German WEEE authorities Stiftung EAR place the decision squarely on the foreign suppliers and their domestic resellers.
The official guidance states that if the foreign supplier has no legal presence in Germany, the national importer must fulfil the producer obligation until the foreign producer appoints and registers via an Authorised Representative (AR).
Stiftung EAR also advises that German importers should contact their foreign suppliers to agree who is going to fulfil the obligation.
It is incredibly important that you do not sell unregistered EEE in Germany – more on enforcement in part three of this series – so speak to your German resellers today. Are they registered for WEEE with Stiftung EAR? If not, why not?
Your resellers may not understand the “importer” definition applies to them, and presume that you – especially if you are the brandholder – are taking care of it.
The same is recommended when your reseller contacts you asking for your German WEEE registration: have a discussion on the WEEE producer definition to rule out any misunderstandings. One useful aspect to perhaps clarify is the “transfer of ownership” scenario in your export chain – who owns the goods when they enter German territory? You, or the German reseller?
This may help your resellers understand their “importer” obligation or it may indeed demonstrate that the responsibility arguably lies with your company. Note however that the “offering for sale in Germany first” provision may not be as easily clarified.
Stiftung EAR will not make a decision in disputes between two companies, so if you require your German resellers to register for WEEE, then this should be agreed with them as part of your business relationship, and detailed in your contracts (or addenda).
Neither you nor the german reseller should ignore a missing WEEE registration, because this is seen as negligence and will put you both at fault and open to prosecution. You can check whether your reseller or product is registered here, or contact us and we can do this for you.
Remember, if you are offering EEE direct to end-users in Germany – through a “delivery to Germany option” on an online store or catalogues – you are now obligated through the “distance seller” producer definition that was added to WEEE legislation in Germany in 2015.
You must appoint an AR in Germany to fulfil your obligations – even if you were already registered with Stiftung EAR before 2015. Existing foreign registrations expired in April 2016, and producers were asked to re-register via their ARs by that time.
We can offer consultancy to help producers understand their requirements in Europe, with support solutions including impact assessments, compliance strategies, regulatory monitoring, data management and distributor compliance support.
Please contact our team of specialists if you are offering goods for sale in Germany by emailing firstname.lastname@example.org or calling 0845 094 2228.
Help! I’m obligated – what next?
Next week I will talk you through compliance options and requirements, from Authorised Representatives, registration, guarantee and B2B evidence procedures to data reporting and waste collections. Watch this space!
International compliance product manager
Fran works within the compliance team as our international compliance product manager, joining us in the spring of 2015. She brings a wealth of experience to the role having previously work for Apple in Ireland for six years, looking after the company’s WEEE, battery and packaging submissions across Europe. Needless to say she has gained extensive knowledge of European legislation!
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