In this last part of my blog series on WEEE compliance in Germany we will look at penalties, national differences in scoping and in-store takeback rules.
By far and away the most commonly asked question we get asked is ‘What happens if I don’t comply with WEEE compliance in Germany?’. It's a good question as Germany actually has a rather distinctive way of enforcing compliance, through both fines from the regulator and potential injunctions and compensation claims by your competitors.
Administrative offences can incur heavy fines
The German WEEE Act (ElektroG 2) details all “administrative offences” and the fines that these incur. This includes (among others):
- Failure to register, or not registering in time
- Failure to appoint an Authorised Representative
- Failure to display a German WEEE registration number
The above carry the highest fine of up to EUR 100,000 and other offences (such as failure to fulfil a collection coordination request) carry fines of up to EUR 10,000.
Most offences fall under the jurisdiction of the German Federal Environment Agency (UBA), which decides the amount of fines and deals with enforcement proceedings. However, much more widespread is enforcement through anti-competition procedures. These are civil law proceedings initiated by competitors potentially leading to indeterminate costs and legal headaches for producers.
Law against unfair competition
Also known as “Gesetz gegen den unlauteren Wettbewerb – UWG”. Based on this law, a competitor can issue a “warning” (effectively a cease-and-desist letter) and demand compensation from a non-compliant producer, stop the producer from selling non-registered EEE (injunction), and request disclosure of sales and their recipients.
The Federal Environment Agency can also request the “absorption” of profit gained through unfair competition. To avoid enforcement issues companies should assess the obligation and the product scope in Germany, as this is typically where the biggest non-compliance issues arise. Ecosurety can always help you do this.
Speaking of scope - are you assuming that if your products are out of scope in one country, they are also out of scope in another? Be warned that is not necessarily the case!
Points of divergence affecting producers of lighting equipment
One example of this are luminaires in private households. In the UK, these are excluded from the scope of WEEE until we move into “open scope” in August 2018.
In Germany however, luminaires in private households are already in scope, and producers should have registered by 1 February 2016. In addition, Germany has three distinct B2C categories for lighting (plus one for B2B) instead of the two categories in the UK (cat. 5 and cat.13) which apply to both B2B and B2C.
As we’ve seen, incorrect and missing registrations are an administrative offence, and a “genuine error” could still be interpreted as negligence by the regulator. Which finally brings me to one of the biggest (and most disputed) changes Germany introduced to its WEEE system last year.
Waste take-back rules for large retailers including online sellers
You may remember our news story in November last year that talked about the introduction of new enforcement measures on retail takeback, following the discovery of extensive non-compliance with the new take-back rules in Germany.
Distributors and retailers with a sales space (a 'stationery retailer') and storage or distribution space (an 'online retailer') greater than 400 m² in Germany have a 1:1 take-back obligation when a similar type of new EEE is purchased, and a 0:1 take-back obligation for all small WEEE (size limit of 25 cm corner length) without purchase of a new item. This has been in effect since July 2016.
From July 2017 the refusal to take back WEEE if the above space limit applies to your business will also become an administrative offence, with the aforementioned fines of up to EUR 100,000.
The take away fact here is that if your retail store space or (if selling online) any storage or distribution space in Germany exceeds 400 m², your company has an additional obligation to implement and register take-back facilities with Stiftung EAR.
International producer responsibility mythbuster!
So that’s WEEE compliance in Germany, in a rather large nutshell! Before we conclude however, let's quickly dispel some common misconceptions around compliance in the EU.
If obligated, we would need to join a compliance scheme everywhere
Not true. Almost all EU countries offer the option of either individual or collective compliance – B2B producers in particular are advised to assess options for individual compliance. B2C producer should join a compliance scheme where they can, as it’s simpler to manage their waste obligations that way.
The cost of registration would be too expensive
Only 13 member states charge a fee for WEEE registrations and along with the UK, only three other EU member states require producers to annually renew that registrations. Again, for B2B producers that are direct registrants and complying individually (a very viable option in France for example), the annual cost could even be nil, if no waste takeback took place that year.
It’s all different, everywhere
WEEE systems across Europe are actually a lot more harmonised than other legislations (packaging waste is particularly diverse). Producer definitions are largely interpreted the same way, as is the option to either comply individually or through a scheme. The main WEEE categories 1-10 are in place almost everywhere - subcategories are common, but extra additions to main categories are rare. Hungary by the way is one notable exception to all of these points!
Hopefully these blogs have been useful, please stay tuned for more blogs on other producer responsibility topics and countries in future. You can also catch-up on part one and part two of these blog installments by clicking the links.
And please do book a place on our upcoming free webinars on Producer Responsibility in Spain, Italy and Portugal on the 23 March, Assessing your international compliance obligations on the 26 April and Producer Responsibility in the Nordics on the 23 May.
If you need support assessing your compliance obligations abroad, need to understand requirements or help on registration and data management, why not contact our team of specialists by emailing email@example.com or calling 0333 4330 370.
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