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The European Union Directive on Waste Electrical and Electronic Equipment: a study in Trans-Atlantic Zealotry.

  I. INTRODUCTION
 II. EUROPEAN UNION DIRECTIVE 2002/96/EC ON WASTE
     ELECTRICAL AND ELECTRONIC EQUIPMENT
     A. Scope of the WEEE Directive and Definition of a
        "Producer"
        1. Definition of WEEE; Impact on Product
           Design
        2. Definition of "Producer"
        3. Definition of "Distributors" (Retailers)
     B. Collection and Transport of Waste Electrical and
        Electronic Equipment
        1. RETURN OF WEEE FROM PRIVATE
           HOUSEHOLDS, I.E., "HOUSEHOLD-LIKE" WEEE
        2. WEEE Not from Private Households, i.e.,
           Commercial-Like WEEE
        3. Collection Targets
        4. Transport of WEEE
     C. Treatment and Recovery of WEEE
        1. Producer Responsibility for the Treatment and
           Recovery of E-Waste
        2. Technical Standards for the Treatment and
           Recovery of WEEE
        3. Member State Oversight and Licensing
     D. Financing the WEEE Directive
        1. WEEE from Private Households (including
           "Household-Like" WELL)
           a. Non-Historical WEEE from Private
              Households
           b. Historical WEEE from Private Households
        2. WEEE from Non-Private Households
     E. Information Exchange Requirements Under the
        WEEE Directive
        1. Recordkeeping and Reporting
        2. Information Exchange
III. IMPLEMENTATION AND ENFORCEMENT OF THE EU
     DIRECTIVE ON WASTE ELECTRICAL AND ELECTRONIC
     EQUIPMENT
     A. The Process of Transposition
     B. Enforcing the WEEE Directive
 IV. EXTENDED PRODUCER LIABILITY IN THE UNITED
     STATES
     A. The California Hazardous Electronic Waste
        Recycling Act of 2003
     B. Federal Legislation
  V. CONCLUSION


I. INTRODUCTION

The European Union Directive on Waste Electrical and Electronic Equipment (1) (the "WEEE Directive" or the "Directive"), adopted January 27, 2003 by the European Parliament and Council, aims for nothing less than a revolution in the way producers, distributors, and consumers create, handle, and dispose of electronic waste. (2) A copy of the Directive is attached as Exhibit A to this article. In effect, it will transfer responsibility for the collection and treatment of so-called e-waste from local governments in the European Union ("EU") to the private sector. Electronics producers will shoulder the greatest burden under the new regime. (3) Supporters argue that making electronics producers responsible for the collection and recovery of e-waste will "close the loop" by providing manufacturers with a direct economic incentive to design greener, more recyclable products. (4) Opponents argued, for example, that voluntary industry initiatives were an adequate response to the environmental threat perceived by proponents of the Directive. In the U.S., manufacturers of various devices already provide a way for customers to return certain e-waste products, postage prepaid, after their useful lives. (5) Moreover, opponents claimed, the directives would restrain innovation, be difficult to enforce, and create trade-distorting and anti-competitive effects. (6) Ultimately, opponents of the Directive were unsuccessful in preventing its passage.

Indeed, it is difficult to dispute the fact that electrical and electronic equipment ("EEE") likely constitutes a current or future problem if only because of the growing number of electronic devices used internationally. (7) Beyond issues typical of most products is the issue of hazardous waste. According to the U.S. Environmental Protection Agency, consumer electronics can contain components including lead, brominated flame retardants, mercury, cadmium and hexavalent chromium, (8) some of which are said to be capable of finding their way back into the human food chain or into the pores and mouths of residents nearby. (9) Of course, this can also be said of other products such as industrial chemicals and, indeed, a legitimate policy question is whether the proper approach is to adopt a "sector" approach that singles out particular industries, or to consider a more holistic approach encompassing the entire scope of products containing similar wastes. Another policy question is whether private industry initiatives or governmental action and institutions offer the best way to approach the various issues. Be that as it may, the EU has adopted a sector-specific approach which is the subject of this article. (10)

It is also a modern reality that land previously in the middle of nowhere has become someone's own backyard, and no one wants to put a new landfill there. Economic, social, and environmental pressures require society to grapple with the materials we use, even after we have stopped using them. It takes a large amount of time, money, and manpower to deal with the waste we all produce, so there is understandably increasing debate regarding what should be done, who should do it and who should pay for it, directly or indirectly. The WEEE Directive opts for reducing government responsibility and shifting the responsibility of dealing with waste directly to the private sector and, indirectly to consumers and other customers. (11) How it does so is the subject of this article.

The WEEE Directive represents the largest, most comprehensive public-to-private transfer of responsibility for e-waste management thus far. (12) By August 13, 2004, all European Union Member States (13) were required to pass national legislation that will establish and monitor so-called extended producer responsibility ("EPR") regimes. (14) Extended producer responsibility is an umbrella term used in the environmental policy community to refer to any effort by policymakers to hold product manufacturers responsible for the collection and/or treatment of their products once the goods have been discarded by the consumer. (15) There are several types of EPR schemes currently in existence requiring varying degrees of commitment by producers. Some of these include: producer take-back systems, (16) mandatory fee collection, (17) and wholesale EPR in which producers are fully responsible for the management of their share of the waste stream. The WEEE Directive is of the latter type.

Vesting product manufacturers with the responsibility for collecting and treating certain segments of the municipal waste stream raises a host of serious legal and policy questions. Perhaps because discussion of the WEEE Directive has been largely confined to the environmental policy literature, legal and business scholars have been relatively slow to comment on the emergence of a complex new world of private waste stream management. This article is intended to act as a wake up call to legal and business professionals who face an onslaught of thorny legal issues. First, the article will lay out the provisions of the WEEE directive in detail, explaining how the Directive is intended to work and suggesting areas that may concern legal and business professionals. Next, it will turn to issues of implementation and enforcement to explore questions that will arise as the Directive moves from political concept to legal reality. Finally, the article will look ahead to the day when U.S. lawmakers or policymakers will need to pass, reject, modify or otherwise deal with EPR legislation. EPR legislation has already been introduced in many U.S. state legislatures and has passed in at least one, (18) and the federal government has also begun to consider the issues. The final sections of this article will briefly explore this American foray into EPR for electrical and electronic consumer products.

II. EUROPEAN UNION DIRECTIVE 2002/96/EC ON WASTE ELECTRICAL AND ELECTRONIC EQUIPMENT (19)

The primary goal of the WEEE Directive is the establishment of a system for separating waste electrical and electronic equipment ("WEEE") from the general municipal waste stream, consolidating it at certain collection points, transporting it to licensed treatment facilities, and disposing of it through reuse, recycling or proper treatment. (20) With a few exceptions, (21) European countries have traditionally lumped WEEE together with the general municipal waste stream. The management of that waste stream has been centralized at the level of local or regional governments, which have borne associated costs (which, of course, are also borne by taxpayers generally). The WEEE Directive segments a previously-conglomerated waste stream and introduces a host of new players into the waste management arena. (22) Producers, distributors, government agencies, consumers, and waste treatment specialists will all face new responsibilities as the management of the e-waste stream is specifically allocated to certain segments of society. Understanding the financial and operational liability of each of these players is key to understanding how the WEEE Directive works. Recognizing the new relationships between these players is critical to predicting the legal issues that are bound to arise.

Before delving into the minutia of the WEEE Directive, we explain the nature of EU directives as such. The European Union is an international organization comprised of twenty five Member States. (23) Upon joining the EU, each member state cedes a portion of its sovereignty, allowing the organization to forge policies that will be binding upon all Member States. (24) The EU maintains a massive bureaucracy including a European Parliament, European Council, European Commission, and the European Court of Justice, (25) which work together to pass and interpret various types of legislation. (26) A directive is one type of EU legislation; it is binding upon Member States as to result, but leaves freedom in the manner in which Member States may achieve those results. (27) Directives must be implemented by each member state through the passage of national implementing legislation. (28) This process is known as "transposition." (29) The WEEE Directive must, therefore, always be viewed as a mandate by the EU to Member States requiring that they at least pass legislation giving effect to the provisions in the Directive. They may also expand that legislation in ways that are not inconsistent with the directive or its objectives. (30) Thus, non-uniformity and its consequent complexity and costs are an inherent possibility in the EU structure.

The following paragraphs provide a provision-by-provision explanation of the WEEE directive. It is critical to keep in mind that a participant may be allocated financial responsibility for one part of the waste management system without having operational control over that particular aspect and, indeed, this is one of the obvious policy concerns with the approach taken in the Directive. Because of this separation between financial responsibility and operational control, we treat the financial and operational provisions of the Directive separately. We also describe the scope of the WEEE Directive and explain some key definitions. We then turn to the mandates for collecting and transporting e-waste, and then explain the requirements for treating, recycling or otherwise disposing of WEEE. After discussing how the system works, we turn to how it is financed. Finally, the administrative details of recordkeeping, reporting, and disclosure of certain information are covered.

A. Scope of the WEEE Directive and Definition of a "Producer"

Recall that the WEEE Directive is intended to separate e-waste from the general municipal waste stream and allocate responsibility for its management to certain parts of the private sector. (31) The size of that undertaking is determined by the definition of "waste electrical and electronic equipment," otherwise known as WEEE. The recipients of that responsibility are, for the most part, "producers" as defined in the Directive. (32) The definition of the term "producer" is, therefore, critical in understanding who is subject to regulation under the new regime.

1. Definition of WEEE; Impact on Product Design

Quite simply, "waste electrical and electronic equipment" is "electrical and electronic equipment" that has been discarded by the customer. (33) By that definition, all EEE will eventually become WEEE as it reaches the end of its useful life. Thus, it is the definition of "electrical and electronic equipment" that truly governs the scope of the WEEE Directive in terms of products that producers must eventually collect and manage. Article 3(a) defines EEE as "equipment which is dependent on electric currents or electromagnetic fields in order to work properly and equipment for the generation, transfer and measurement of such currents and fields...."(34) Taken by itself, this definition would include a staggering percentage of goods consumed within the EU. Article 3(a) goes on, however, to limit the range of EEE to electrical and electronic equipment "falling under the categories set out in Annex IA and designed for use with a voltage rating not exceeding 1000 V for alternating current and 1500 V for direct current." (35) To put these figures into perspective, the voltage rating of a standard outlet in the United States is 120 volts, (36) larger household appliances generally run on 240 volts, (37) and San Francisco's Bay Area Rapid Transit light rail system uses 1,000 volts to propel its trains. (38) This dividing line narrows the definition, but not significantly if it is consumers who discard most EEE. The "categories" in Annex IA tend to focus the directive at least on consumer products. Those categories are:

* Large household appliances

* Small household appliances

* IT and telecommunications equipment

* Consumer equipment

* Lighting equipment

* Electrical and electronic tools (with the exception of large-scale industrial tools)

* Toys, leisure and sports equipment

* Medical devices (with the exception of all implanted and infected products)

* Monitoring and control instruments and

* Automatic dispensers. (39)

Even with these limitations, the universe of goods covered by the WEEE Directive is enormous, as can be seen from Annex IB of the Directive which is labeled: "[L]ist of products which shall be taken into account for the purpose of this Directive and which fall under the categories of Annex IA." (40) Annex IB makes it clear that EEE is the stuff of modern life such as refrigerators, microwaves, toasters, vacuums, clocks, bathroom scales, computers, printers, laptop computers, copiers, telephones of all kinds (standard, cordless and cellular), televisions, lamps, sewing machines, saws and drills, video games and consoles, ventilators and dialysis machines, smoke detectors, thermostats, and vending machines for beverages. (41) A copy of Annex IB is attached to this article as Exhibit B.

There are, however, several other important limitations that reduce the range of products encompassed by the Directive. One (42) appears in Article 2(1), which lays out the scope of the Directive, stating:
      This Directive shall apply to electrical and electronic
   equipment falling under the categories set out in Annex IA
   provided that the equipment concerned is not part of another
   type of equipment that does not fall within the scope of this
   Directive. (43)


Put another way, EEL that is a part of non-EEL is not subject to the WEEE Directive. For example, persons suffering from lower back pain may purchase an electronic massager to place between them and their chair. Now assume a chair with the massage unit included as part of the chair. In the first instance, the massager should be EEL covered by the Directive because it is electronic equipment falling into one of the categories in Annex IA (the category of small household appliances includes "massage and other body care appliances.") (44) In the second instance, the massager is still EEE but, because it is part of the chair which is not EEE, the massager falls outside the scope of the Directive by virtue of Article 2(1) which states that although the Directive applies to EEE in the Annex IA categories, that is only so if the EEE is not part of another type of equipment that does not fall within the scope of this Directive (the chair). Because the massager is part of the chair, it falls outside the Directive. Other examples abound, such as beds including electronics so that the bed can be adjusted with the flip of a switch. Article 2(1) does not treat the EEE in the bed under the WEEE Directive.

This is one approach to a new reality, variants of which are appearing in other areas of law. The reality is that traditional goods can be transformed into something else, thus creating a question regarding how to deal with the transformed product and whether to deal with it as a whole or in parts. (45) Under the Directive, there is no pretension that the items themselves are transformed by virtue of being in the same product: the EEE is still EEE even if it is part of non-EEE. The Directive simply makes a policy choice not to cover non-EEE items, including any EEE that may be part of them. There are other approaches, e.g., the Directive could have covered the EEE but not the non-EEE, or the Directive could have applied EEE rules to the non-EEE, but every approach presents its own issues that need to be carefully addressed in context. For example, the goals of the directive include addressing hazardous waste components in EEE. An ordinary bed likely does not contain those components although an adjustable bed may. One can either: (1) cover the entire bed, thereby sweeping in too much and applying "electronic waste" rules to an item that is not really e-waste; (2) bifurcate coverage and cover the electronic parts under the Directive tailored to electronics, but not cover the remainder of the bed which is of a different, non-electronic nature; or (3) not cover the bed or its electrical components at all, leaving their disposal to other law. The Directive chooses the latter course.

This decision in Article 2(1) eliminates uncertainty otherwise created by the Directive definitions. To illustrate, test the adjustable bed example under the definition of EEE. To work as an adjustable bed, as opposed to a traditional bed, the adjustable bed is arguably "equipment which is dependent on electric currents or electromagnetic fields in order to work properly," (46) but beds are not listed in the categories set out in Annex IA and without the electronics, the bed would still be a bed. But what if buyers purchase such beds because of the adjustable feature or other electronic features such as one allowing the bed to monitor the sleeper's heart rate and report to an ambulance center any irregularities indicating a heart attack? For that bed to work properly, dependence on electricity would be inherent. Yet it is also true that the bed still works as a bed, despite the adjustability or monitoring. Note that trying to solve whether the bed is EEE includes a need to determine whether it falls under the categories listed in Annex IA, and creates a further question: if a particular item (bed) is not listed in the relevant category, does that mean it is not within the category or does that simply indicate that the listing is not exhaustive? Clearly, our adjustable/monitoring bed is not listed, but as to categories, arguably it might be considered to be a "medical device." (47) Article 2(1) eliminates this quagmire for "mixed" items by setting a flat rule: even where EEE exists (the electronic adjuster and the monitor), if they are part of non-EEE (the bed), neither the EEE (the electronic adjuster or the monitor) nor the non-EEE (the bed) is covered by the Directive.

Any alternative, including the one selected in the Directive, may have intended or unintended consequences on product design and consumer choice. For example, if the back massager is sold as a stand-alone product it is clearly covered by the Directive, whereas if it is sold as part of the chair it is not. This may have the effect of encouraging the producer of the back massager to stop selling it as a stand-alone product and to include it only in non-EEE products such as the chair. This would make fewer products subject to the Directive and decrease customer choice (e.g., customers could only buy a "mixed" product but not a "stand-alone" product). On the other hand, if the entire chair were treated as EEE simply because the massager was made a part of it, that might cause manufacturers to refuse to make that kind of advanced product either because the entire product would invoke the Directive, or because of a fear that customers would not be willing to pay a price covering both the advanced product and the disposal costs for the entire chair (as opposed to the disposal and administrative costs for the EEE part only).

No matter one's viewpoint, this kind of legislation has consequences on product design and distribution, some of which are intended and some of which are not, and all of which are unusual in U.S. commerce where general laws typically do not dictate product design. That the Directive intends to dictate or at least influence it is clear from Article 4:
      Member States shall encourage the design and production of
   electrical and electronic equipment which take into account and
   facilitate dismantling and recovery, in particular the reuse and
   recycling of WEEE, their components and materials. In this
   context, Member States shall take appropriate measures so that
   producers do not prevent, through specific design features or
   manufacturing processes, WEEE from being reused, unless such
   specific design features or manufacturing processes present
   overriding advantages, for example, with regard to the
   protection of the environment and/or safety requirements. (48)


In the U.S., the market typically would dictate product design and several beneficial consequences flow from that, including without limitation: advancement and sophistication of products unhindered by limitations on existing technology regarding dismantling and recovery; increased competition from companies that can control and bear product design costs but who cannot bear the uncontrolled costs of participating in an EPR system; the resulting increase in customer choice of products and competition; and pricing based on competition regarding the utility of the product as opposed to one based on the ability or inability of governments to create and control costs of an EPR system. Of course, this can be a chicken and egg problem: the rubber tire might never have been invented or produced if car manufacturers had been required to design into it ways to dismantle and recycle it; on the other hand, the failure to do so ultimately created widespread tire disposal problems.

These questions concern timing and appropriate balancing of benefits and burdens. Cellular phone availability in third-world countries that do not have land-line infrastructures is overwhelmingly beneficial to populations otherwise deprived of the ability to communicate and engage in commerce outside a village, even if there is no disposal program for their phones. What is most interesting about the Directive is that it assumes too much and does not seriously recognize myriad competing public policies. It sacrifices or risks product design to only a few select policies such as "environment" and "safety." It also fosters litigation and, thereby, further sacrifices advancement and the public good often inherent in such advancements. It is difficult to imagine how innovation will occur if designers must first prove "overriding advantages" in a world where public opinion and need is as diverse as product design.

2. Definition of "Producer"

Producers, as that term is defined in Article 3(i), have substantial new obligations and liability under the WEEE Directive. The threat of new or uncertain responsibilities and liabilities will, as a business matter, prompt any company that can avoid the label of producer to do so. This is particularly true if principles reflected in the Directive are transported to legal systems such as in the U.S., where litigation, including class action litigation, is a national sport and memories of disproportionate environmental "superfund" liabilities are, rightly or wrongly, seared into corporate memory. Although the financial burdens on a given producer are intended to be roughly proportional to that producer's share of the market, the baseline obligations of compliance such as reporting and disclosing product information will be a significant deterrent to companies, particularly smaller companies, weighing the possibility of entering the electronics market in Europe. For these and other reasons, the importance of this definition is difficult to overstate.

The definition of the term "producer" in Article 3(i) is as follows:

'[P]roducer' means any person who, irrespective of the selling technique used ...

(i) manufactures and sells electrical and electronic equipment under his own brand,

(ii) resells under his own brand equipment produced by other suppliers, a reseller not being regarded as the 'producer' if the brand of the producer appears on the equipment, as provided for in subpoint (i), or

(iii)imports or exports electrical and electronic equipment on a professional basis into a Member State. (49)

Because of the lynchpin nature of this definition, it is worth parsing each subpoint.

Article 3(i): A producer must be a "person." The Directive does not define "person," but we assume that the term will include both sole proprietors (individuals) as well as all entities such as corporations, large or small. Absent contrary EU principles not stated in the Directive, it might also include governmental or quasi-governmental authorities such as cities who sell electricity saving or monitoring devices. If the other elements of the definition are met, that person can be a producer "irrespective of the selling technique used." (50)

This raises a question regarding the meaning of "selling technique." It literally refers only to various methods of sales, and references the EU distance sales contract directive, which applies to transactions that are not face-to-face (such as a mail order sale, in contrast to a face-to-face sale by a clerk to a customer at the comer store). (51) This focus also appears in the "whereas" clauses to the Directive. (52) Thus, the Directive would appear to cover most forms of sales, such as face-to-face sales, mail order, telephone order, and installment sales, but would not appear to cover other distribution methods such as leases, licenses, consignments, lease-financing and the like. There is logic in this reading given that ownership of an item typically is necessary before a decision can be made to dispose of it, and disposal is the focus of the Directive. For example, the owner of a computer can decide to throw it away; the lessee of a computer cannot, and must either return it to the lessor or purchase it under any lease-purchase option. Another interpretation would be to read "irrespective of selling technique" as "irrespective of distribution method," but to do so appears to require considerable poetic license.

Article 3(i)(i): A producer includes any person who, irrespective of the selling technique, manufactures and sells EEE under "his own brand." There are several requirements here: the person must "manufacture" and "sell" and do so under its own brand. An example would be the Disney company selling a Mickey Mouse hand-held video game console (53) if Disney is the manufacturer and sells the console. If someone else manufactures the console, the subsection should not apply and producer status will need to be found (or not) under another subsection. Note that the subsection might be inapplicable for myriad reasons: a person might manufacture but not sell EEE; or the manufacturer might sell under various brands, none of which are its own; or the transaction might be a lease, license or rental. A grocery store selling generic electronic watches will be a seller but will not be the manufacturer and will not be selling under its own brand. An interesting question also exists with respect to the meaning of "his own brand." Assume that Sears sells washing machines under its own brand (Kenmore) but also obtains a license to manufacture and sell machines under a brand that aims at a different market segment. As to machines sold under that licensed brand, is that Sears' "own" brand? Sears is not the owner of the licensed brand although it is an authorized licensee. Given the importance of branding in today's economy and the fact that most branding is done by license, this is not an insignificant question.

Article 3(i)(ii): A producer includes any person who, irrespective of the selling technique, "resells under his own brand equipment produced by other suppliers, a reseller not being regarded as the 'producer' if the brand of the producer appears on the equipment, as provided for in subpoint (i)." (54) In our example of the Disney video game console, assume that Disney does not manufacture it but does sell it under the Disney brand. Disney should be a producer under this subsection. If Disney distributes through resellers such as distributors to toy retailers, the reseller is not a producer as long as the game is branded with Disney's brand as opposed to the reseller's brand. Note that this is actually more complex than it appears. It is true that the reseller's brand may not appear on the equipment if the reseller wants to avoid being a producer, but the brand that must appear under Article 3(i)(ii) would appear to be a brand that qualifies under "subpoint (i)," i.e., the brand of a manufacturer and seller who does so under its own brand. Given the many situations in which "subpoint (i)" might not apply, Article 3(i)(ii) may be narrower than it first appears.

This provision is another example of how this kind of legislation can affect product distribution. For example, retailers may determine to give up their own brands to avoid producer liability under the WEEE Directive. They have no control over the design of the product, and thus, no way to reduce the costs of recycling that they will be forced to bear. Some may be able to pass those costs up or down the distribution chain depending upon their market power and legal expertise. Small businesses may or may not be able to do so--although a "Wal-Mart" has sufficient buying power and legal expertise to allocate costs away from itself, the corner drugstore or the small Internet seller who seeks to become the corner drugstore for the world (if Internet sales are covered), does not. In a market economy, a shake-out of small players and a decrease in consumer choice and pricing alternatives may be inevitable and represent an unintended consequence that is not automatically outweighed by the values of recycling or decreased waste.

Article 3(i)(iii): A producer includes any person that, irrespective of the selling technique, "imports or exports electrical and electronic equipment on a professional basis into a Member State." (55) A threshold question is whether the section covers mere shippers?

The reference to "irrespective of the selling technique[s]" may imply that the person must sell and import and export, but it does not matter what selling technique is used. (56) If that is a correct interpretation, then mere shippers are not covered because they do not sell. Another possible interpretation, however, is that anyone who imports or exports is covered, regardless of the selling technique used by others. If this latter interpretation is correct, then, except for EEE manufactured and sold within one member state (e.g., German refrigerator made and sold in Germany only), this provision, read literally, makes a producer out of every person who moves the refrigerators out of or into Germany. It also creates the question of whether there can be more than one producer. For example, the German manufacturer and seller of the refrigerator under its own brand is a producer under Article 3(i)(i). Is the exporter who moves the refrigerator out of Germany into another member state also a producer? If the German company outsources manufacturing to a facility in China, are the outsource facility and the shippers that it uses, "producers" when they send the refrigerators to Germany or other member states to be sold there? The only thing that is clear is that the customer who buys a refrigerator in Germany and transports it in his truck to his home in France is not a producer because that "export" (if it is an export) was not done on a professional basis. But such is not the stuff of commerce. Unless this is resolved in ways allowing importers and exporters and others that may be encompassed by those terms to control their liabilities and costs, one can imagine this provision as erecting a virtual roadblock at the borders of Member States. Before one moves EEE in or out of a Member State, one will want to know whether he is a producer.

3. Definition of "Distributors" (Retailers)

The Directive defines a "distributor" to mean "any person who provides electrical or electronic equipment on a commercial basis to the party who is going to use it." (57) This seems to contemplate what in the U.S. would be called the "retailer," i.e., the last person in the distribution chain who, instead of selling to another distributor or reseller, sells to the end user (the party who is going to use it).

The distributor must "provide" the EEE and it is not clear whether that provision must be by sale, or whether it also includes other distribution methods such as by lease. However, there will be nothing to distribute unless there is a "producer" to manufacture the item, and the definition of "producer" speaks in terms of "selling." In any event, the provision must be "commercial" and that will at least mean distribution for money. Whether it includes other distributions in commerce is not clear, such as distributions by nonprofit distributors (e.g., a municipality's sale at cost of smoke detectors or a school's sale of calculators), promotional or free distributions, or "in-kind" distributions. In other areas of the law, the meaning of what is "commercial" is the subject of litigation. (58)

B. Collection and Transport of Waste Electrical and Electronic Equipment

As previously stated, the WEEE Directive aims to separate e-waste from the general waste stream and transfer responsibility for the management of WEEE to certain segments of the private sector. We have discussed what comprises EEE, and WEEE is simply EEE that the holder discards, intends to discard, or is required to discard. (59) This article now turns to the mechanics of managing the stream of WEEE. That process occurs in three stages: (1) collection; (2) transport; and (3) treatment. This section speaks to the first two of those phases: collection and transport. Relevant to both is the fact that the Directive splits the pool of WEEE into two major categories: (1) WEEE from private households, and (2) WEEE not from private households. The terminology is misleading in that WEEE from private households includes WEEE "from commercial, industrial, institutional and other sources which, because of its nature and quantity, is similar to that from private households." (60) Thus, collectors will not be able to make simple distinctions such as between "residential" and "commercial" establishments. In any case, different parties are responsible for the collection of each type of WEEE. Member States are responsible for the transport of WEEE to treatment facilities in accordance with guidelines listed in Article 5(4).

1. RETURN OF WEEE FROM PRIVATE HOUSEHOLDS, I.E., "HOUSEHOLD-LIKE" WEEE

Article 5(2) governs the collection of "WEEE from private households," which as noted, is not limited to collection from private households but instead contemplates household-like waste even if it is collected from a commercial establishment. (61) It provides that "Member States shall ensure that by ... 13 August 2005 ... systems are set up allowing final holders and distributors [retailers] (62) to return such waste at least free of charge." (63) The onus of allowing return of WEEE separately from other waste thus initially falls upon Member State governments. Member States are given flexibility in deciding precisely how to do this, but Article 5(2)(a) requires that in doing so, "Member States shall ensure the availability and accessibility of the necessary collection facilities, taking into account in particular the population density." (64) No facility-to-inhabitant or facility-to-population of end users ratio is specified in the Directive.

Distributors (retailers) are also required to play a role. Article 5(2)(b) provides:
   [W]hen supplying a new product, distributors shall be
   responsible for ensuring that such waste can be returned to the
   distributor at least free of charge on a one-to-one basis as long
   as the equipment is of equivalent type and has fulfilled the same
   function as the supplied equipment. (65)


When combined with Article 5(2)(a), this provision would give customers several ways in which to dispose of household-like WEEE free of charge. A final holder (end-user) would be able to discard her WEEE into the collection system provided by a Member State, or would be able to turn it in to a distributor (retailer) upon purchasing a replacement for the discarded product. Distributors could then turn the waste into the system provided by the Member State, free of charge. Article 5(2)(b) gives Member States the option, however, of relieving distributors of the responsibility of accepting and transmitting WEEE to Member State facilities. (66) The only caveat is "that returning the WEEE is not thereby made more difficult for the final holder and provided that these systems remain free of charge for the final holder." (67)

According to Article 5(2)(c), producers may get in on the collection of household-like WEEE as well: "[W]ithout prejudice to the provisions of (a) and (b), producers are allowed to set up and operate individual and/or collective take-back systems for WEEE from private households provided that these are in line with the objectives of this Directive." (68)

It is unclear whether this provision precludes distributors (retailers) from competing with producers by setting up take-back systems. It is also unclear whether setting up their own take-back systems will relieve producers from the costs associated with collection systems operated by Member States. If not, producers would appear to be paying for and operating redundant collection systems. As we will see later, producers are financially responsible for virtually all collection costs. (69) It thus makes sense that they would look to assert operational control over all aspects of collection and do so in a more cost-effective manner than typically is done by government. Yet, if setting up a producer system does not relieve that producer from paying into the government system, at least as to products returned to the producer's system, there would seem to be little point or reality to the purported ability to have a dual system.

To illustrate, we start with the point that the Member State must set up a system for receipt of household-like WEEE. When producers do not set up their own system, the producer's products will be returned to the government's system. Assume, however, that the governmental system becomes quite costly because of governmental policies having nothing to do with WEEE, such as any rules regarding payment of government employees, benefit levels and the like. Will the producer who believes it can run a more efficient or cost-effective system and who therefore sets up its own system, be allowed to be more efficient and control those costs at least as to items returned to the producer's system, or will that producer also be called upon to subsidize the governmental system? This is a significant question. If producers must subsidize the governmental collection system in addition to setting up their own, the consequent impact on product pricing to consumers will be obvious as will the inappropriate allocation to WEEE of policies having nothing to do with WEEE (but having much to do with employment policies, for example).

The final rule regarding "WEEE from private households" is this: "WEEE that presents a health and safety risk to personnel because of contamination may be refused" (70) by the Member State collection facilities or distributors. (71) However, "Member States shall make specific arrangements for such WEEE." (72) Presumably, producer-systems that are not equipped to take such WEEE may use those Member State arrangements as well. What the "specific arrangements" are that Member States must establish, however, is not clear in the Directive.

2. WEEE Not from Private Households, i.e., Commercial-Like WEEE

The requirements for WEEE that do not meet the definition of "WEEE from private households" are much simpler. "In the case of WEEE other than WEEE from private households ... Member States shall ensure that producers or third parties acting on their behalf provide for the collection of such waste." (73) There are no restrictions on the ability of producers to charge for the collection of such waste or to adjust their collection schemes to comport with population density. Nor do distributors have a role to play in the collection of non-private household WEEE.

3. Collection Targets

The Directive requires that Member States collect a certain amount of WEEE. "Member States shall ensure that by 31 December 2006 at the latest a rate of separate collection of at least four kilograms on average per inhabitant per year of WEEE from private households is achieved." (74) The European Parliament and the European Council are required to come up with new mandatory targets by December 31, 2008, which "[take] account of technical and economic experience in the Member States." (75)

4. Transport of WEEE

Once WEEE has been collected as described above (i.e. collection of WEEE from private households and other WEEE), Member States are responsible for ensuring that it is transported to treatment facilities authorized under Article 6. (76) There is an exception for appliances that are "reused (77) as a whole." (78) They need not be moved from collection facilities to treatment facilities so long as "the envisaged reuse does not lead to a circumvention of [the] Directive." (79)

Both collection and transport must be done in a way "which optimizes reuse and recycling" of components or whole appliances that are "capable of being reused or recycled." (80) What this means is not clear, particularly given that the collection, storage, and transportation of e-waste can be risky. For example, in the preamble to the Directive, Member States are urged to determine the conditions under which take-back of WEEE may be refused by distributors in order to guarantee the safety and health of their personnel. (81) It is also Member States which must "adopt appropriate measures" to "achieve a high level of separate collection of WEEE," (82) and which must "ensure" that systems allowing free return of WEEE from private households exist by a particular date, (83) and "shall make specific arrangements" for WEEE presenting a health and safety risk to return personnel. (84) Taken together, it would appear that Member States will be the ones to determine the appropriate method of dealing with the collection, storage and transportation risks to a collection or treatment facility. Whether they will do so in a uniform manner is not clear.

C. Treatment and Recovery of WEEE

The treatment and recovery phase of waste management is where the WEEE Directive has its ecological impact. The separate collection and transport of WEEE would be for naught if Member States could dispose of e-waste as they saw fit. To avoid this, Articles 6 and 7 employ a three-pronged approach: (1) requiring producers to treat (85) or recover (86) all separately collected WEEE; (2) imposing minimum standards for the treatment of WEEE; and, (3) making Member States responsible for the licensing and oversight of e-waste treatment.

1. Producer Responsibility for the Treatment and Recovery of E-Waste

Simply put, producers or third parties acting for them are responsible for the treatment and recovery of WEEE. (87)

(a) Treatment. Treatment is a defined, umbrella term that encompasses any type of activity aimed at safely disposing of waste after it has been handed over to a facility for treatment. In short, treatment is not the same as collection: the collection facility (be it a distributor or Member State facility) is not the same as the treatment facility. Article 3 defines treatment in this way: "[T]reatment means any activity after the WEEE has been handed over to a facility for depollution, disassembly, shredding, recovery or preparation for disposal and any other operation carried out for the recovery and/or the disposal of the WEEE." (88) The term recovery refers to a specific type of treatment process in which waste is reused in some other form. (89) Generally, recovery is a more intense and ecologically beneficial form of treatment.

Article 6 governs the treatment of WEEE. In making producers responsible for e-waste treatment it states: "Member States shall ensure that producers or third parties acting on their behalf, in accordance with Community legislation, set up systems to provide for the treatment of WEEE.... The systems may be set up by producers individually and/or collectively." (90) Note that it is the producer or their agents, not the Member State, who must set up the treatment system.

Article 6(1) gives producers two important choices in how they will fulfill their treatment obligations. First, producers must decide whether they will take on treatment themselves or whether they will contract with third parties. Because many electronics producers lack competence in the area of waste treatment, third party specialist "outsourcers" will likely play an important role. (91) The division of costs and liabilities between producers and these outsourcers will need to be hammered out in contracts.

Second, producers have the option of banding together to provide systems for the treatment of e-waste and may also use outsourcers to do so. The incentive for cooperation in the treatment of WEEE will be strong as economies of scale can significantly reduce the marginal costs of waste treatment. Corporate competitors will, therefore, likely be prompted to forge cooperative relationships. These relationships will also need to be formalized in contracts.

(b) Recovery. Article 7 addresses the recovery of e-waste. Article 7(1) tracks the language of Article 6(1), with slight variation: "Member States shall ensure that producers or third parties acting on their behalf set up systems either on an individual or on a collective basis, in accordance with Community legislation, to provide for the recovery of WEEE collected separately in accordance with Article 5." (92)

Article 7(1) gives producers the same two choices as it provides for treatment under Article 6(1): whether to engage in e-waste management directly or to utilize third party specialists, and whether to join forces with other producers in the recovery of WEEE. What is different about Article 7(1), is the reference to Article 5 on the separate collection of WEEE.

One way of giving the difference in wording meaning, is to interpret it as suggesting that producers are responsible for the treatment of all WEEE (not only that separately collected under Article 5), but are only responsible for the recovery of that WEEE that has been collected under Article 5. Clearly that is true as to recovery, i.e., there is no obligation to provide recovery services for WEEE that is combined with other waste streams or that is not collected in accordance with Article 5. Whether the difference in wording should be so interpreted as to treatment is not so clear: in a Directive that depends upon separation of WEEE from the general waste stream and only works if it is so separated, and in a Directive that sets up a very specific collection system for WEEE and not other waste, it seems nonsensical for the treatment section to ignore that collection system and purport suddenly to apply to WEEE collected outside that system. The better interpretation is that both Articles 6 and 7 only pertain to WEEE separately collected under the Directive, but that explicit reference was made in Article 7 to appease those who were likely concerned that the scope of the requirement for the heightened and intense procedures for recovery be crystal clear.

2. Technical Standards for the Treatment and Recovery of WEEE

There are two types of treatment standards in the WEEE Directive: required treatment methodologies, and mandatory recovery targets.

Treatment: As to treatment, the Directive includes a "best available" standard. Article 6(1) says that "Member States shall ensure the producers or third parties ... set up systems to provide for the treatment of WEEE using best available treatment, recovery and recycling techniques." (93) The meaning of "best available" is not stated and could invoke the kind of litigation that has surrounded contract law default rules providing for a "best efforts" standard. (94) Perhaps to avoid that kind of litigation, Article 6(1) goes on to provide more workable guidance by referencing Article 4 of Directive 75/442/EEC on waste, which provides general guidelines for waste treatment. (95) To ensure compliance with that separate directive, treatment facilities must, at minimum, remove all fluids (96) and follow any product-specific instructions listed in Annex II of the WEEE Directive. (97) Member States may establish their own, more rigorous, treatment standards as well. (98)

Recovery: Article 3(f), which defines recovery, refers to Annex IIB of Directive 75/442/EEC, which lists a variety of technical processes that qualify as recovery for the purposes of the WEEE Directive. (99) There is no "best available" concept here: producers must simply "provide for the recovery." (100)

Mandatory recovery targets apply to e-waste recovery as opposed to treatment. Recall that Article 5(5) provides for mandatory collection targets of WEEE (101) which will be treated. A certain percentage of collected WEEE, however, must be recovered. Article 7(2) divides e-waste into three categories and provides mandatory recovery targets for each. (102) Within each e-waste category, producers must meet two recovery targets. One target is a general recovery target, and the other is a component, material and substance reuse and recycling target. (103) For example, WEEE falling under categories 1 and 10 of Annex IA (104) must be recovered at a rate of 80% average weight per appliance. (105) For those same categories, component, material and substance reuse and recycling must be achieved at a rate of 75% average weight per appliance. (106) The various mandatory recovery targets go into effect on December 31, 2006. (107)

3. Member State Oversight and Licensing

Producers have the responsibility of setting up systems for the treatment and recovery of e-waste. Member States are, in turn, given the task of ensuring that treatment operations store and treat WEEE in compliance with technical requirements set out in Annex III to the Directive. (108) That Annex contains site requirements, including requirements for impermeable surfaces and weatherproofing, for weights to measure waste, for appropriate storage for disassembled parts and batteries, and for water treatment. Treatment operations must also be permitted in compliance with Articles 9 and 10 of a different EU directive, Directive 75/442/EEC. (109) Directive 75/442/EEC already requires Member States to issue permits to facilities engaged in certain treatment and recovery operations. The WEEE Directive's requirement that permits be issued in accordance with Articles 9 and 10 of the other directive means that such permits must cover: the types and quantities of waste, the technical requirements, the security precautions to be taken, the disposal site, and the treatment method. (110) Those articles include an exception for "establishments or undertakings that carry out waste recovery" that is stated in Article 11(b) of that other directive, and the WEEE Directive allows the permit applicant to take advantage of that exception if the applicant obtains an inspection. (111) That inspection must annually meet requirements contained in Article 4 of the other directive, (112) as well as requirements contained in the WEEE Directive. (113)

One final requirement with regard to the oversight of treatment and storage facilities has to do with the possibility that producers may wish to ship WEEE to facilities outside of the member state or the EU. Extra-territorial shipment is allowed under the WEEE Directive so long as the transport complies with certain EU regulations. (114) Such shipments will only count toward the achievement of the mandatory treatment and recovery targets if "the exporter can prove that the recovery, reuse, and/or recycling operation took place under conditions that are equivalent to the requirements of [the WEEE Directive]." (115)

Member State oversight of the conditions and operations of treatment and storage facilities will create a new type of relationship between government agencies and electronics producers. New regulations and procedures will need to be adopted, and producers or third party treatment specialists will not only need to comment on those regulations, but will also need to become adept at navigating the new governmental bureaucracy. Issues of administrative law or the like will arise as the permitting and inspection processes become routine. Larger issues may arise as Member States determine how to approve waste treatment facilities abroad. China, for example, has a growing e-waste treatment industry allegedly plagued by unsafe conditions. (116) Whether EU Member States will allow electronics producers to ship e-waste to countries that maintain softer labor or environmental standards will become an important question as producers search for appropriate e-waste treatment options. (117)

D. Financing the WEEE Directive

The WEEE Directive addresses operational and financial responsibility for the management of e-waste independently. The preceding paragraphs have focused exclusively on the operational obligations imposed by the Directive. The following discussion turns to the question of who will pay for the activities described above. As with the collection of WEEE, the Directive approaches the financing of waste treatment differently depending upon whether the waste is from private households or other sources. (118) Within each of those categories are two sub-categories: (1) WEEE from products put on the market after August 13, 2005, and (2) WEEE from products put on the market before August 13, 2005, known as historical waste. (119) Because financial responsibility for each sub-category is slightly different, we address each in turn.

1. WEEE from Private Households (including "Household-Like" WEEE)

It is the responsibility of producers to "provide at least for the financing of the collection, treatment, recovery and environmentally sound disposal of WEEE from private households deposited at collection facilities set up under Article 5(2)." (120) It bears emphasizing that producers alone are responsible for financing all of the activities referenced in the preceding paragraphs, with respect to WEEE from private households, regardless of whether they have operational control over those activities. Historical and non-historical WEEE are treated separately in Article 8. (121)

a. Non-Historical WEEE from Private Households

Non-historical WEEE from private households will, over time, become the dominant segment of WEEE for which producers will be financially responsible. According to Article 8(2), "each producer shall be responsible for financing ... relating to the waste from his own products." (122) Determining the precise costs of treatment for a given producer's products will be a complicated task for which the Directive provides no further guidance. It does, however, allow producers to "fulfill this obligation either individually or collectively." (123) Again, producers will call upon the skills of contract draftsmen and the courts to negotiate and enforce new cooperative agreements.

A key element in the financing of non-historical private household WEEE management is the concept of up-front comfort. The WEEE Directive requires that "each producer provides a guarantee when placing a product on the market showing that the management of all WEEE will be financed and that producers clearly mark their products...." (124) It is not clear whether use of the word "guarantee" is intended to be taken literally and requires an actual guaranty contract, or whether it refers to any form of security or comfort, such as letters of credit, bonds, insurance and so forth. The Directive is not clear on what is intended, although it does state that "[t]he guarantee may take the form of participation by the producer in appropriate schemes for the financing and management of WEEE [or through the use of] recycling insurance or a blocked account." (125) Thus, it seems to contemplate a broad definition of the term "guarantee."

b. Historical WEEE from Private Households

Producers are responsible for the costs of managing historical WEEE from private households as those costs arise, but in proportion to their share of the market by equipment type. (126) In contrast to non-historical WEEE, producers are not directly responsible for the costs associated with their own products. Instead, each producer will pay a percentage of the cost of treatment for historical waste depending upon this market share formulation:
   The responsibility for the financing of the costs of the
   management of WEEE from products put on the market before
   [August 13, 2005] shall be provided by one or more systems to
   which all producers, existing on the market when the respective
   costs occur, contribute proportionately, e.g., in proportion to
   their respective share of the market by type of equipment. (127)


Putting aside the question of who should bear these costs (e.g., the producers, customers, society at large or others), as between producers, certainly new or successful market participants will view this formula as inappropriate. It allows producers who put WEEE into the market but who then leave the market, to shift costs to those on the market at the time costs are incurred. For example, assume that from 1998 through 2003, X produced cellular phones and beginning in 2003, Z produced them as well. In 2003 X gets out of phone manufacturing and into other ventures. In 2004 costs are incurred. There are several things to consider in this hypothetical:

(1) The formulation seems to say that as to the same market, Z will bear all costs for X's phones given that X is no longer "on the market" in 2004 when the costs are incurred. Whether this is a correct interpretation turns on what is meant by "on the market." If the reference is to "producers" on the market and if that phrase means "in the market" or "still providing product for that product market," then as between X and Z, X, the producer of product for 6 years will bear no costs; Z, who put products into the market for only 1 year, will bear all costs even though X is still in business, albeit in a different market. If the reference is to "product" existing on the market, then X's products are still in existence in 2004 and are creating waste costs as customers dispose of them, so is X obligated to share in costs? This seems a more equitable result but requires a strained reading.

The proper interpretation has obvious consequences that will be felt even given the fact that the historical WEEE category will be confined as of August 13, 2005. Technologies used in EEE change rapidly and producers come and go. For example, the Wall Street Journal reported in February, 2004, (128) that cellular telephones may be made problematical by "Wi-Fi" phones which look the same but are wired for Internet calling instead of cellular networks. The future may be cell phones, Wi-Fi phones, a combination of both, or something else. Will Wi-Fi phone producers be the ones "existing on the market" when costs are incurred for historical WEEE cell phones?

(2) There is also a question regarding what market is being measured. In the above example, is the relevant market all phones, cell phones, Wi-Fi phones or something else? Is it the market in the Member State or a larger or lesser market? It seems clear that the market is at least as to equipment "type," a term that may or may not correspond to the "categories" or products listed in Annex IB.

Whomever the participants are in the shared cost system, they at least include producers who supply equipment in the Member State, whether they do so in stores located therein or by means of "distance communication." Article 8(4) of the Directive provides as follows: "Member States shall ensure that producers supplying electrical or electronic equipment by means of distance communication also comply with the requirement set out in this Article for the equipment supplied in the Member State where the purchaser of that equipment resides." (129)

"Distance communication" is not defined in the Directive. By analogy, the term is defined in the EU's "distance contract directive" as "any means which, without the simultaneous physical presence of the supplier and the consumer, may be used for the conclusion of a contract between those parties." (130) The distance contract directive states that "an indicative list of the means covered by" that directive is contained in Annex I, which contains this list:

* Unaddressed printed matter

* Addressed printed matter

* Standard letter

* Press advertising with order form

* Catalogue

* Telephone with human intervention

* Telephone without human intervention (automatic calling machine, audiotext)

* Radio

* Videophone (telephone with screen)

* Videotex (microcomputer and television screen) with keyboard or touch screen

* Electronic mail

* Facsimile machine (fax)

* Television (teleshopping). (131)

In short, many producers are intended to be participants in the cost-sharing systems.

Use of a residency test for determining producer participation presents significant problems in a world where purchasers can be anonymous and move, and where residency typically is not disclosed as part of a sale. A customer purchasing over the counter in Germany might reside there, might be a tourist, or might be there temporarily as a student, for work or military duty. Typically the customer is not asked where he or she resides. In "distance contracts," the same is true unless the place to which the EEE is shipped happens to coincide with residency.

In any case, if the group of included producers is to be determined by "where the purchaser of that equipment resides," then one needs to know the timing of the residency test: residency upon purchase or upon disposal? The only time that will allow producers to determine and manage their risks is at purchase: that is the only time when a producer can refuse to deal, for example, with a customer who comes from a Member State with exorbitant or unreasonable WEEE costs or rules.

It is understandable that the drafters of the Directive wanted to simplify the requirements by dealing with historical waste as contemplated in Article 8. (132) In fact, however, the formulation is not simple and creates significant ambiguity and inequity. This choice may, also, come at the expense of new or growing players on the electronics market.

2. WEEE from Non-Private Households

Except for historical WEEE, Article 9 places financial responsibility for the collection, treatment, recovery, and environmentally sound disposal of WEEE from sources other than private households squarely on the shoulders of producers. (133) Unlike e-waste from private households, the Directive contains no up-front guarantee requirement and Article 9 does not make reference to any collective scheme such as that mentioned in Article 8. (134)

The management of historical WEEE from non-private households may or may not be financed by producers. Article 9 gives Member States the option of requiring that producers provide for such financing, or "users other than private households also be made, partly or totally, responsible for this financing." (135)

As for all WEEE that is not "household-like," Article 9 further states: "[p]roducers and users other than private households may, without prejudice to this Directive, conclude agreements stipulating other financing methods." (136) In short, notwithstanding what Member States may or may not decide to do, producers and users (except WEEE from private households) can allocate costs by contract.

E. Information Exchange Requirements Under the WEEE Directive

Information exchange requirements serve two purposes under the WEEE Directive: they allow Member States and the EU to fulfill their monitoring obligations, and they create a flow of information designed to raise awareness and allow for the highest level of environmental benefits. This is accomplished, in part, by mandating that the costs consumers pay for these benefits be hidden.

1. Recordkeeping and Reporting

In order for Member States to adequately track progress with respect to the mandatory recovery targets, Article 7 requires producers to keep detailed records of their recovery operations. Specifically:
   [P]roducers or third parties acting on their behalf [shall] keep
   records on the mass of WEEE, their components, materials or
   substances when entering (input) and leaving (output) the
   treatment facility and/or when entering (input) the recovery or
   recycling facility. (137)


In practice, these obligations are likely to be carried out by third party specialists.

Article 12 imposes reporting obligations upon Member States as well. It requires that Member States:
   [D]raw up a register of producers and collect information,
   including substantiated estimates, on an annual basis on the
   quantities and categories of electrical and electronic equipment
   put on their market, collected through all routes, reused,
   recycled and recovered within the Member States, and on
   collected waste exported, by weight or, if this is not possible, by
   numbers. (138)


Member States are not precluded from passing the burden of collecting such information on to producers and third parties engaged in each of these activities. The greater the administrative burden, the more difficult it will be for small electronics producers to survive or to enter the European market.

It is also up to Member States to keep tabs on producers supplying equipment by means of distance communications. Article 12 requires those producers to "provide information on the compliance with the requirements of Article 8(4) and on the quantities and categories of electrical and electronic equipment put on the market of the Member State where the purchaser of that equipment resides." (139) How this will be done, and whether Member States have the jurisdiction to accomplish this as a matter of international or other law, is a significant question. Assume a manufacturer in Alabama, U.S.A., who sells by mail order an electric fan to a customer who uses an American Express credit card and directs shipment to France because, as it turns out, the customer lives in France. The producer did not require a statement of residency as a condition of the sale, and the purchaser as easily could have been a U.S. resident shipping a gift to a friend or relative in France. May France require the Alabama producer to provide the listed information?

Member States must also submit reports to the European Commission so that the EU can monitor the progress of each country. Every two years, Member States must transmit the figures noted above. (140) Every three years, Member States must return a questionnaire that will be drafted by the Commission. (141) The Commission will compile the results and publish a report on the implementation of the WEEE Directive across the EU. (142)

2. Information Exchange

The WEEE Directive requires that producers and Member States pass along certain pieces of information, and that they withhold others.

(i) Information to Users. Article 10 requires Member States to ensure that users of EEE in private households (e.g., consumers) are given the "necessary information" about the following:

(a) the requirement not to dispose of WEEE as unsorted municipal waste and to collect such waste separately;

(b) the return and collection systems available to them;

(c) their role in contributing to reuse, recycling and other forms of recovery of WEEE;

(d) the potential effects on the environment and human health as a result of the presence of hazardous substances in electrical and electronic equipment; [and]

(e) the meaning of the symbol [that producers must newly display on their products]. (143)

All EEE put on the market after August 13, 2005, must be marked with a symbol depicting a trash container with an "X" superimposed upon it so that consumers will recognize the products that are to be disposed of separately. (144)

[ILLUSTRATION OMITTED]

In addition, there is a rule for electrical or electronic appliances. Member States must ensure:
   that any producer of an electrical or electronic appliance put on
   the market after 13 August 2005 is clearly identifiable by a
   mark on the appliance. Furthermore, in order to enable the date
   upon which the appliance was put on the market to be
   determined unequivocally, a mark on the appliance shall specify
   that the latter was put on the market after 13 August 2005. (145)


"Appliance" is not defined in the Directive, but two of the categories of EEE listed in Annex IA are "[l]arge household appliances" and "small household appliances," and a detailed listing of items included in those categories is contained in Annex IB, such as stoves, refrigerators, hair dryers, vacuum cleaners, electric fans. (146) This extra requirement to include a date on appliances most likely applies to those categories but not to the other categories of EEE. The Commission is required to promote the development of European standards for this. (147)

As for the general rule for EEE to include the trash can mark with the X, according to Annex IV of the Directive, "[t]he symbol must be printed visibly, legibly and indelibly." (148) "In exceptional cases, where this is necessary because of the size or the function of the product, the symbol shall be printed on the packaging, on the instructions for use and on the warranty of the electrical and electronic equipment." (149) These requirements alone will cause significant changes in manufacturing, packaging and printing for those subject to the WEEE Directive.

It is up to Member States to determine how to pass along information to consumers. However, the information in question is of a significant amount: it is the five items listed in (a) through (e), the WEEE symbol, and any information adopted by a Member State as part of its "appropriate measures" to ensure that consumers participate in the collection of WEEE. (150) The Directive does give Member States the option of requiring producers and/or distributors to do so by placing the information in the instructions or distributing it at the point of sale. (151)

This latter option, the distribution at the point-of-sale option, creates a potential nightmare in the real world of commerce. The information cannot simply be printed on the outside of a package because it is too voluminous and will vary with the residence of the purchaser (i.e., the return systems available to a customer in France will not be the same as those available to a customer in Ireland). Unless Member States allow inclusion of the information in the instructions, compliance will, essentially, be impossible. The information pertains to EEE put on the market after August 13, 2005, i.e., non-historical WEEE with respect to which each producer may finance its own collection system. Thus, generic information is not possible as among all producers, among all products or even as to one producer's product sold in multiple jurisdictions. The information will vary with the producer, product, country, market, and ability or inability of points of sale actually to keep track of what information goes with what product.

In the U.S., a partial point-of-sale rule exists in the federal Magnuson-Moss Warranty Act, which requires terms of express, written manufacturer warranties to be made available for pre-sale review by customers so requesting. (152) When originally adopted, the regulations were not based upon a request and dictated to retailers exactly how the information had to be supplied. However, the mandatory disclosure as to each product was unworkable and counter-productive, e.g., retailers could tape lengthy information inside the floor model of a washing machine but could not do so for a tiny watch and could not supply lengthy pre-sale information in the range of mail order and telephone order sales. In amending the rule to allow more options, the Federal Trade Commission noted as follows: "The method of compliance used most often by large retailers, keeping warranties in binders, is time-consuming and imposes costly paperwork burdens. Staff estimates that the amendments will result in a saving of more than 3.5 million work-hours per year for retailers." (153) Note that this was the burden just for keeping a notebook at a brick and mortar store containing one copy of the information relevant to each warranted product sold at that store. The WEEE Directive goes further by requiring the retailer to provide for each product a copy for each package of that product. Thus, if a retailer carries 5,000 products and 200 packages of each of the 5,000 (1,000,000 copies of information), that retailer might have to produce at the point of sale, for each package, a copy of the correct information. One can only imagine that paperwork burden and the risk of information falling off packaging or being shoved into drawers and then dumped into the trash by retailers who cannot keep it straight. The U.S. regulations were amended to provide the pre-sale information only upon consumer request, thereby relying more heavily on delivery of the information inside packaging. The regulations were also made more flexible with more options for retailers, many of whom (in the U.S. at least) are small businesses that are not able to establish or cope with complex systems. (154)

The point here is not that delivery of WEEE information should be discretionary or not "per package." The point is that Member States are given a choice regarding delivery requirements, and we sincerely hope that they offer both choices because one size does not fit all in modern commerce. The Directive gives Member States the option of requiring producers and/or distributors to provide the information by placing it "in the instructions or [distributing it] at the point of sale."(155) In many cases, placing it in the instructions delivered inside the packaging will work best for producers, consumers and distributors because the package is typically opened by no one other than the consumer. In other cases, distributors add value by opening packaging and installing or otherwise enhancing the product--there, the information could be included in the final packaging or provided at the point of sale, if feasible. Our point is that flexibility is needed because of the array of EEE, the array of distance and other sales methods, and the array of producers and distributors. Hopefully, Member States will provide as much flexibility as possible by providing both options, as well as additional options, so as not to distort commerce or impose costly burdens that benefit no one, including the environment.

(ii) Information f or Facilities. Under the Directive, producers have one year after the entry of a new product on the market to pass along certain information to treatment facilities. "This information shall identify, as far as it is needed by reuse centers, treatment and recycling facilities in order to comply with the provisions of this Directive, the different EEE components and materials, as well as the location of dangerous substances and preparations in EEE." (156) It is possible that producers could be asked to divulge sensitive product information, which in the U.S. at least, could raise constitutional or other questions. (157) Protections against improper information exchange will, therefore, need to be crafted.

(iii) Information That Cannot Be Disclosed. Finally, the WEEE Directive contains a significant prohibition on the exchange of information. Article 8(2) states: "The costs of collection, treatment and environmentally sound disposal shall not be shown separately to purchasers at the time of sale of new products." (158)

That prohibition is tempered somewhat by Article 8(3), which provides that "for a transitional period of eight years (10 years for [large appliances]) after entry into force of this Directive, producers are allowed to show purchasers, at the time of sale of new products, the costs of collection, treatment and [environmentally sound] disposal." (159) The "costs mentioned shall not exceed the actual costs incurred." (160) The rule only prohibits disclosure at the time of sale; it is not clear whether it prohibits later disclosure or disclosure altogether.

It is a curious rule, particularly when combined with the rule discussed above giving Member States the option of requiring producers and/or distributors to deliver the customer information about disposal facilities and the need to separate waste streams, by placing the information in the instructions or distributing it at the point of sale. (161) Perhaps this subsequent rule prohibiting disclosure of environmental costs makes clear that the purpose of the other rule is not to allow consumers to make choices at the time of sale based on environmental costs (and thus placement of the information inside packaging is not only necessary but consistent with EU policy), but instead reflects a policy to assume that there are costs in all EEE and then place the focus on the need for separate disposal.

In any case, the rule may reflect a cultural difference that varies globally. Another instance of it is illustrated by approaches to taxes such as the EU's "value added tax" or "VAT." In the EU, that tax may not be shown separately from the price of the goods whereas in other countries, similar taxes must be shown separately. (162) In the U.S., it is routine to list taxes and other charges separately either because it is required to avoid consumer deception or is desired to make a political or other point. For example, airlines and telephone companies often separately list governmental taxes for special items such as security or wiring schools or the like, in order to make the point that the costs are not imposed by the business but by the government, i.e., it is not the business' "fault" or the business is not providing an economically inefficient product. In the EU, this kind of allocation may be precluded perhaps for that very reason, i.e., "fault": it is harder to become disgruntled over the costs of government or any particular policy if one cannot see its costs. The same reasoning could be at work here: if the true costs of the WEEE environmental policy were known, perhaps a harder look would be taken at regulatory regimes or costs. Of course, this can be argued several different ways, i.e., perhaps the true cost of any product does or should include its disposal costs even if only selected products (such as WELL) are targeted. On the other hand, if the true costs of disposal were known and made apparent, perhaps users would become more conscious of them and take more steps to avoid them such as by keeping items longer or by encouraging secondary uses instead of disposal. In any case, the rule is significant and may come as a surprise to many businesses. This seems to be the approach taken in some proposed legislation in the U.S. (163)

III. IMPLEMENTATION AND ENFORCEMENT OF THE EU DIRECTIVE ON WASTE ELECTRICAL AND ELECTRONIC EQUIPMENT

Passage of the WEEE Directive was only a first step in the creation of a new EPR regime in Europe. Translating the Directive into national implementing legislation is the next hurdle. EU directives are intentionally drafted so as to leave room for Member States to mold European policies to fit economic, social, and legal realities at the national level. (164) The WEEE Directive is no exception; it allows national legislatures to have a hand in dictating the shape of their EPR regime in several important respects. This flexibility can make EU directives palatable to reluctant policymakers, but it can also result in inconsistencies that undermine the rationale for legislating at a supra-national level. It can also result in non-uniformity that can make compliance costly, impractical or even impossible. This section addresses some of the issues that will arise as national legislatures are called upon to transpose the WEEE Directive.

Transposition is itself only an intermediate step in the process of moving the WEEE Directive from political concept to legal reality and enforcement. The Directive leaves it to Member States to determine penalties that are "effective, proportionate and dissuasive." (165) Recall that the WEEE Directive makes no distinction between domestic and foreign producers. Thus, penalties for non-compliance may literally be levied against those in breach regardless of nationality, although such action raises obvious jurisdictional and enforcement issues. Crafting effective enforcement mechanisms that will encourage participation by foreign producers in national EPR regimes while not interfering with commitments taken under international agreements such as the GATT, and without unfairly harming domestic or foreign producers, will be tough for national policymakers. The last paragraphs of this section will be dedicated to looking at the minefield that lies ahead for legislators as they create enforcement mechanisms.

A. The Process of Transposition

In a region as economically, socially, and culturally diverse as the European Union, it is, perhaps, natural to expect that Member States would demand a certain amount of flexibility in implementing regional policy at the national level. Of course, the more countries are allowed to tailor EU policy to fit the individual needs of Member States, the less reason there is to legislate at the supra-national level in the first place. Businesses are particularly sensitive to inconsistencies in national commercial legislation. The costs of complying with a multitude of overlapping, or even contradictory, regulations can create a substantial barrier to trade and raise the price of goods to the consumer, particularly when costs are not controlled or reflect collateral policies or agendas. Conversely, businesses thrive on coherent, uniform, efficient and predictable regulatory climates. For this reason alone, businesses have cause to worry about the WEEE Directive. First, it is likely that Member States will begin to implement and enforce the Directive at different times and the Directive itself provides ample room for Member States to implement divergent legislation. The following paragraphs will address these concerns in turn.

Article 17 is clear on the deadline for Member States to pass national implementing legislation: "Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 13 August 2004." (166) The likelihood that all Member States will meet this deadline is slim if only because of the actual complexity of the Directive and the issues raised by it. As of January, 2004, no European Union member state had passed legislation fully implementing the provisions of the WEEE Directive. (167) Some Member States have proposals in the works, and others have made little or no progress. (168)

The possibility of Member States failing to pass implementing legislation raises two questions: (1) What happens to a Member State that fails to pass implementing legislation; and, (2) What are the consequences for those subject to regulation under the Directive if a Member State fails to pass implementing legislation? Article 5 of the Treaty on European Union imposes an obligation upon Member States not only to implement EU policy, but to refrain from actions that would prevent the EU from achieving its objectives. (169) Implementing legislation must also be "applied with the same effectiveness and rigour as in the application of ... national law." (170) A Member State failing satisfactorily to implement an EU Directive may be the subject of proceedings under Article 169 of the Treaty on European Union. (171) Article 169 proceedings follow an established course that, if not resolved earlier, will end with a ruling by the European Court of Justice. (172) "At most, however, a judgment by the Court of Justice pursuant to Article 169 may result in a declaration of infringement of Treaty obligations by the member state and an award of legal costs." (173) The absence of more severe penalties for breach of Treaty obligations may be the reason why the European Commission has noted "that timely implementation [of EU environmental law] into national law is 'rare,' and that instances of nonconformity of national law with Community law are 'relatively numerous.'" (174)

It is, therefore, conceivable that August 13, 2004 could come and go with Member States failing to pass implementing legislation. Failure by a member state to implement an EU Directive does not, however, appear to result in the total non-application of its provisions within that country. In fact, non-implemented EU directives might have direct effects even in countries that have not implemented a given directive. (175) The effects of a non-implemented directive are, however, limited. Only those provisions that are "unconditional and sufficiently precise" (176) may be given direct effect if a member state has failed to implement a directive. Further limiting the reach of a non-implemented directive is the fact that such a directive may only be relied upon by an individual "as against a member state." (177) The rights of private parties vis-a-vis one another are, therefore, not impacted by the passage of an EU directive unless such directive is transposed into national legislation. (178)

In terms of the WEEE Directive, it is difficult to know which provisions will be given direct effect and which will not. Because the Directive establishes new responsibilities on the part of private entities, rather than vesting individuals with new rights vis-a-vis Member State governments, it is unlikely that a non-implemented WEEE Directive would be given significant direct effect by European courts. The nature of the WEEE Directive, therefore, might preclude material impact on producers if Member States fail to pass implementing legislation by August 13, 2004.

Assuming EU Member States succeed in passing implementing legislation, the question of uniformity remains. The general assignment of operational and financial responsibility for the collection, transport, and treatment of e-waste is clearly laid out in the Directive. In a few places, the Directive explicitly gives Member States a choice. Some of the most notable are Articles 5(2), 6(1) and 10(4). Article 5(2)(b) gives Member States the option of including distributors in the collection system for WEEE from private households. (179) Article 6(1) provides that Member States "may set up minimum quality standards for the treatment of collected WEEE." (180) Article 10(4) allows Member States to require that some or all of the information that must be provided to users be provided by "producers and/or distributors, e.g. in the instructions for use or at the point of sale," a rule allowing a welter of non-uniform alternatives that could significantly impact existing practices. (181) Of course, Member States may depart from the specific language of the Directive in any number of ways while still implementing it in a satisfactory manner. Even if the Directive were translated wholesale into national legislation, the administrative regulations would surely impose distinct obligations upon producers from country to country. There is, therefore, a real danger to producers of electronics in that they may face a tremendous number of new, adverse or slightly different obligations in each member state. The administrative burden involved in complying with the multitude of new regulations will be staggering.

B. Enforcing the WEEE Directive

After the Directive has been passed by the EU and transposed by Member States, it must be enforced by Member States in such a way that producers and others subject to its provisions will abide by them, but also in conformity with the obligations of the Member State under existing international treaties. There is, obviously, nothing controversial about enforcing national laws against domestic producers, distributors, consumers, and other private entities clearly within the jurisdiction of the Member State. The Directive plainly provides Member States with the authority to adopt penalties for non-compliance. (182) What raises serious legal questions is the imposition of penalties upon foreign producers or the imposition of rules inconsistent with foreign or international law. (183) How will EU Member States penalize foreign companies that refuse to participate in EPR regimes? Will they purport to bar entry of products and will such penalties fall upon foreign and domestic producers alike? Will the penalties bring the member state into conflict with existing international commitments such as the prohibition on unfair barriers to trade within the WTO and will the penalties or rules contradict foreign legislation or policies?

As noted, Article 15 of the WEEE Directive authorizes Member States to penalize producers, and others subject to the provisions of the Directive, who refuse to comply. It states:
      Member States shall determine penalties applicable to
   breaches of the national provisions adopted pursuant to this
   Directive. The penalties provided for shall be effective,
   proportionate and dissuasive. (184)


Under the Directive, there is no limitation on the nature of the penalty, only its severity and it is easy to imagine scenarios where a penalty may have the de facto effect of penalizing or barring foreign imports. It is also easy to imagine the complexity of creating appropriate penalties and the harm that can be caused by inappropriate ones.

For example, levying a fine against non-compliant producers may have several advantages. First, depending upon the size of the fine, imposing monetary sanctions creates a direct measurable effect upon the offending producer. The consequences of noncompliance are, thus, clear to all involved. It also generates revenue that can be used to offset the effects of the noncompliance. A fine is also a less drastic punishment than a full-scale injunction on the right to conduct business, and may allow business to carry on as any dispute over compliance is resolved. On the other hand, it may be difficult for Member States to collect fines from non-compliant corporations if those corporations reside outside member state territory and do not have substantial assets that may be seized in-country. It may be possible for foreign producers to fail to comply, yet operate without paying a fine. Such a situation would likely be problematical for domestic producers. On the other hand, fines can also be used as a guise to protect domestic producers.

Another penalty that a Member State could impose would be a denial of the right to conduct business within or export products to a country. The advantage of such a penalty lies in its strong deterrent value. Of course, no producer wishing to sell product to a Member State would care to risk that market by failing to comply with the new EPR regulations unless the cost of compliance makes sales impractical. This penalty could have the disadvantage of falling more harshly upon domestic than foreign producers given that domestic producers are, generally, more tied to the domestic market and, therefore, more sensitive to threats denying them access to the home market. On the other hand, barfing others from that market through penalties is an obvious advantage for the domestic producer. Further, a foreign producer may be willing to risk the loss of certain markets if those markets are not particularly lucrative to begin with, resulting in a decrease in competition and product choice for consumers in that market.

Importantly, EU Member States have committed to the reduction of trade barriers through their participation in the World Trade Organization ("WTO"). (185) This does not mean that they are never allowed to erect new barriers to trade, only that they must treat foreign producers in the same way that they treat domestic producers. (186) It may be politically tempting to deny market access to foreign producers who do not comply with the rules of the new EPR regimes. However, such a move could lead to action within the WTO and, eventually, the imposition of trade sanctions by other countries, which could have a particularly damaging effect on the economy of a Member State. (187) In fact, the Office of the United States Trade Representative has already signaled its concern with the trade effects of the WEEE Directive. (188)

There is a history of EU Directives imposing, directly or indirectly, new obligations on domestic and foreign corporations. EU Directive 95/46/EC on the Protection of Individuals with regard to the Processing of Personal Data and on the Free Movement of Such Data (the "Data Protection Directive"), for example, requires that companies collect, process, and store data using certain methodologies and with certain consents and registrations. (189) U.S. companies approached the Data Protection Directive with skepticism, fearing that it could seriously damage their ability to do business in Europe in the way in which they had become accustomed (190) or which would be legitimate in their own jurisdictions. Other countries followed suit and the result is a bewildering array of globally conflicting data protection rules.

With respect to the EU Data Protection Directive, the U.S. Department of Commerce negotiated a safe harbor agreement (191) with the European Union that attempted to provide predictability and uniformity for American businesses and satisfy European concerns over the need to protect the data of individuals. Briefly, US companies are encouraged to voluntarily adopt a set of data protection principles which have been endorsed by EU officials. After signing on to the safe harbor principles, the company is placed on a list maintained by the US Department of Commerce (192), and is allowed to continue the conduct of business in Europe without fear of prosecution by EU Member States. The solution has not been widely embraced, however, and does not address the vast array of countries who adopted their own rules such as Canada. In short, it is a fair question whether the approach taken with respect to the data directive holds promise for the settlement of future disputes created by the passage of directives such as the WEEE Directive.

For example, the nature of the Data Protection Directive supported the negotiation of a safe harbor agreement in the sense that the Data Protection Directive lays out a relatively clear list of actions and policies that private entities must adopt in order to comply with its provisions. It was possible for negotiators to take that list and translate it into a set of safe harbor principles. The WEEE Directive seeks to revolutionize the way producers act by forcing them to participate in, or, more precisely, finance and manage an entirely new public-private bureaucracy while shifting costs that previously have been allocated to governments, consumers, and the public generally. It also impacts where businesses may provide product, what they must put on their products, packaging, warranties and instructions, and what costs they must bear directly or indirectly, even if they did not create those costs and cannot control them. In doing so, the Directive leaves it to Member States and private entities to invent new waste management systems. The stakes are high, and the process is inherently complex with impacts that may reach far beyond WEEE.

Interestingly, the objectives of the WEEE Directive and the goals of foreign electronics producers with respect to the Directive may not be mutually exclusive. The WEEE Directive seeks to internalize the costs of e-waste management by allocating to electronics producers the financial and operational responsibility for the management of that segment of the waste stream. The fears of foreign producers are obvious: if the EU can impose such rules so can every other jurisdiction, including the U.S. or individual states, and electronics producers whether in the U.S. or the EU, will want to avoid, as much as possible, increasing the cost of their products, losing access to markets, and being subject to liability in an arena in which they have little control or, perhaps, institutional competence. Those fears co-exist with the desire of every business and society equitably to deal with disposal of products created and used in society. The question is how to do that and it is not at all clear that the WEEE Directive has the best or even an appropriate answer. It is clear that the questions are complex and in need of discussion, and if only for that reason, the Directive appropriately tees up the issues. Where the ball will or should go, is a different question.

IV. EXTENDED PRODUCER LIABILITY IN THE UNITED STATES

The EU is not alone in attempting to start a dialogue about or to deal with these issues. Some form of extended producer liability (EPR) legislation specifically targeting e-waste, or a subcomponent thereof, has been introduced in over a dozen U.S. state legislatures and at the federal level. (193) California, in fact, passed a bill, which was signed into law by then Governor Davis, the implementation of which was delayed by Governor Schwarzenegger who replaced Governor Davis in a recall election. American producers should be concerned about the prospect of patchwork regulation at home as well as abroad. This section will briefly discuss the California bill that will become the first e-waste EPR legislation to take effect in the United States unless enforcement is blocked by the Schwarzenegger administration. The final paragraphs of this section will be dedicated to the proposed federal legislation known as the National Computer Recycling Act.

A. The California Hazardous Electronic Waste Recycling Act of 2003

On September 24, 2003, recalled Governor Davis signed the Hazardous Electronic Waste Recycling Act of 2003 (HEWRA), (194) which requires retailers (195) of "covered electronic devices" (196) to collect a fee from consumers at the time of sale, and transmit that fee to a statewide fund that will pay for e-waste recycling programs. It also calls for a prohibition on the sale of certain devices containing dangerous heavy metals. Governor Schwarzenegger halted the implementation of the HEWRA in November, 2003, pending review of its effects on businesses in California. (197)

The mechanics of HEWRA are fairly simple. Retailers of new electronic devices are required to collect a six, eight, or ten dollar fee from the consumer at the time of sale. (198) That fee must be transmitted to the California Integrated Waste Management Board ("CIWMB"), (199) which is responsible for reviewing and adjusting the fee schedule every two years. (200) CIWMB is then responsible for paying out those funds in the manner prescribed by the statute. CIWMB may disburse funds for the following purposes:

1. To make electronic waste recovery payments to an authorized collector (201) of covered electronic waste ...

2. To make electronic waste recycling payments to covered electronic waste recyclers (207) of electronic waste.

3. To provide for costs of the board and the department to administer this chapter.

4. To provide funding to the department to implement and enforce Chapter 6.5 ... of Division 20 of the Health and Safety Code, as that chapter relates to covered electronic devices, and any regulations adopted by the department pursuant to that chapter. (203)

HEWRA works in a different way than the WEEE Directive. Under the WEEE Directive, producers shoulder large responsibilities and are expected to internalize the associated costs. HEWRA imposes fewer burdens upon the private sector by calling for the collection of a flat fee by retailers. It is then left to the state to find collectors and recyclers that meet adequate environmental standards, and pay them to manage the waste.

The other major provision of HEWRA is the prohibition on the sale of products containing certain hazardous substances. Instead of banning the sale of certain products outright, the California bill prohibits the sale of "covered electronic devices" that are not eligible for sale in the European Union under EU Directive 2002/95/EC on the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment (the "RoHS Directive"). (204) The RoHS Directive bans the sale of new electrical and electronic equipment containing lead, mercury, cadmium, hexavalent chromium, polybrominated biphenyls (PBB) or polybrominated diphenyl ethers. (205) HEWRA was set to take effect on January 1, 2004 or on the date on which the RoHS Directive becomes effective, whichever is later. (206) Governor Schwarzenegger's order delaying implementation requires California agencies to "cease processing ... any proposed regulatory action, including emergency regulations, for further review for a period not to exceed 180 days." (207) In addition, California agencies are required to "postpone the effective date of any adopted, amended or repealed regulations published in the California Regulatory Notice Register but not yet effective." (208)

If HEWRA becomes law in California, it will close the California market to producers of banned electrical equipment. It will also raise the price of other electronic equipment sold in California by at least six, eight, or 10 dollars. (209) Consumers will likely turn to out-of-state retailers for products that are not available for sale in California at all or that are only available at an increased cost. HEWRA imposes a recycling fee "upon the first sale in the state of a covered electronic device to a consumer by a retailer," (210) and provides for a civil liability (administratively imposed) of up to $2,500 and a civil penalty (imposed by a superior court) of up to $5,000 for "each sale of a covered electronic device for which a covered electronic waste recycling fee" was not imposed. (211) It is not clear whether customers, retailers, or both are subject to those fines. Nor is it clear whether HEWRA would survive scrutiny under, for example, the Interstate Commerce Clause of the U.S. Constitution.

B. Federal Legislation

As the WEEE Directive is implemented, as concern persists about the environmental impact of the disposal of electronic waste, and as other states consider establishing systems similar to California's, the U.S. Congress may begin to give serious consideration to legislation that would establish a federal program for the disposal of electronic waste. Environmental groups are advocating such legislation, with an official of the Silicon Valley Toxics Coalition saying that passage of the WEEE Directive "provides additional momentum to our advocacy for passage of similar laws in the United States." (212)

Several steps have been taken. After proposing regulations to exclude cathode ray tubes and mercury-containing equipment from the definition of hazardous waste under the Resource Conservation and Recovery Act to promote recycling, (213) the Environmental Protection Agency convened a national group of stakeholders, the National Electronics Product Stewardship Initiative ("NEPSI"), to consider possible approaches to electronic product management. (214) NEPSI has met periodically and has issued a draft resolution calling for the establishment of a national electronics waste management system, potentially including an advance recovery fee. (215) As Chairman of the Subcommittee on Superfund and Waste Management of the Senate Environment & Public Works Committee, Senator Lincoln Chafee (R-RI) has indicated that reviewing the issue of electronic waste is one of his top priorities. (216) Finally, a relevant bill has been introduced in Congress, the National Computer Recycling Act ("NCRA," discussed further below).

The consideration of federal legislation would raise at least four major issues: the basic approach of the program, the scope of the program, its administration, and its relationship to state law.

The threshold issue is the basic approach to the program. There are several possibilities: providing incentives, such as tax incentives, to companies or consumers that take appropriate recycling activities; providing information to consumers, encouraging them to recycle and making them aware of recycling opportunities (such as has been done with respect to rechargeable batteries under the Mercury and Rechargeable Battery Recycling Act (217)); establishing an extended producer responsibility program similar to that in the WEEE Directive; or establishing a system of fees similar to that in California's HEWRA.

The second issue is the scope of the program. To what products does the program apply? Is the scope established specifically in the statute or left to the administering agency? There are a wide range of possibilities, from the WEEE Directive's broad application to "electrical or electronic equipment," which, as explained above, has the potential to apply to an enormous universe of goods (yet leaves untouched still more goods that contribute to the problems sought to be resolved), to something much narrower, along the lines of HEWRA's application to video display units. (218) The NEPSI draft resolution proposes that a national program apply to:

* TV/TV Monitors (CRTs and flat panels)

* Stand alone computer CRT and flat panel monitors greater than 9 inches

* Laptop/notebook computers

* CPUs

* Small peripherals (mice, keyboards, cables, speakers)

* Consumer desktop devices (printers and multifunction devices) (219)

The third issue is the administration of the program-specifically, whether it is administered through producers, retailers, or independent contractors.

The fourth issue is the relationship to state law. One important goal of federal legislation will likely be reducing the danger of patchwork legislation that imposes complex and inconsistent standards among state programs. This can only be accomplished if federal legislation expressly or implicitly preempts state laws, but preemption has been a controversial issue in debates about federal environmental legislation. (220) The specific issue will be whether, and to what extent, federal legislation preempts state and other electronic waste disposal laws, including HEWRA. If it does not, any federal legislation risks creating the same costs and burdens, including those for consumers, which we criticized with the respect to the non-uniformity permitted in the implementation structure for EU Directives.

With these issues in mind, it may be useful to consider the first major federal legislation regarding the disposal of electronic waste, the National Computer Recycling Act ("NCRA"), which was introduced by Representative Mike Thompson (D-CA) in 2003. (221) Although the NCRA has not yet been the subject of hearings and is not likely to be given serious consideration during the current session of Congress, it has more than thirty co-sponsors and provides some insights into the approaches that are likely to be considered.

The NCRA works similarly to HEWRA, imposing a fee on the sale of certain electronic devices. (222) That fee is to be determined by the EPA, (223) but is not to exceed ten dollars. (224) Three percent of the fee may be retained by the entity collecting the fee in order to offset the costs of administration, (225) and the fee is to be displayed to consumers separately from the purchase price. (226) The EPA will provide for "procedures for the collection of such a fee" (227) and pay them out to waste managers based on a set of general eligibility criteria. (228) Payments are to be made for the following purposes:

1. collecting or processing used computers, monitors, or other designated devices for recycling purposes;

2. reusing or reselling such computers, monitors, or devices, or components thereof; and

3. extracting and using, or selling for reuse, raw materials from such computers, monitors, or devices. (229)

Thus, in terms of the basic approach, scope, and administration, the NCRA is similar to HEWRA, imposing a fee rather than producer EPR responsibility, (230) imposing the fee on a universe of products that (compared to the WEEE Directive) is relatively narrow, (231) and administering the program through a system of payments to waste managers. Significantly, the NCRA does not address the issue of preemption, potentially leaving it for courts to decide as a matter of implied preemption. (232)

V. CONCLUSION

A dialogue has begun regarding WEEE that will reverberate nationally and internationally. The EU has adopted an approach that may or may not be wise, workable or acceptable outside the EU. Efforts by California representatives illustrate an attempt to deal with the same issues but via a significantly different approach. Private industry has its own approaches, such as the waste disposal efforts of companies like Hewlett Packard. (233) What will emerge is unknown, but certainly the heat has been turned up with adoption of the WEEE Directive.

Electronics producers, consumers, and countries potentially face a new era of increased responsibilities and regulations. It is up to them to develop an approach that will allow all of them to remain competitive, retain product choices and availability, preserve important goals that include, but are not limited to, environmental goals, and to prosper in the years to come.

In the meantime, there is the WEEE Directive. American producers and distributors need to consider and plan how they will deal with the Directive, including whether they will ship products into the European Union, how they will design, label and distribute product, and how they will finance and manage responsibilities set by the new rules, by contract, and otherwise. This will not be easy, and will be costly in ways that may change the landscape of competition. Given competing policy arguments, the only certainty is continued debate.

EXHIBIT A

DIRECTIVE 2002/96/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

OF 27 JANUARY 2003

ON WASTE ELECTRICAL AND ELECTRONIC EQUIPMENT (WELL) (234)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 175(1) thereof,

Having regard to the proposal from the Commission,

Having regard to the Opinion of the Economic and Social Committee,

Having regard to the Opinion of the Committee of Regions,

Acting in accordance with the procedure laid down in Article 251 of the Treaty in the light of the joint text approved by the Conciliation Committee on 8 November 2002,

Whereas:

(1) The objectives of the Community's environment policy are, in particular, to preserve, protect and improve the quality of the environment, protect human health and utilise natural resources prudently and rationally. That policy is based on the precautionary principle and principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.

(2) The Community programme of policy and action in relation to the environment and sustainable development (Fifth Environmental Action Programme) states that the achievement of sustainable development calls for significant changes in current patterns of development, production, consumption and behaviour and advocates, inter alia, the reduction of wasteful consumption of natural resources and the prevention of pollution. It mentions waste electrical and electronic equipment (WEEE) as one of the target areas to be regulated, in view of the application of the principles of prevention, recovery and safe disposal of waste.

(3) The Commission Communication of 30 July 1996 on review of the Community strategy for waste management states that, where the generation of waste cannot be avoided, it should be reused or recovered for its material or energy.

(4) The Council in its Resolution of 24 February 1997 on a Community strategy for waste management insisted on the need for promoting waste recovery with a view to reducing the quantity of waste for disposal and saving natural resources, in particular by reuse, recycling, composting and recovering energy from waste and recognised that the choice of options in any particular case must have regard to environmental and economic effects but that until scientific and technological progress is made and life-cycle analyses are further developed, reuse and material recovery should be considered preferable where and in so far as they are the best environmental options. The Council also invited the Commission to develop, as soon as possible, an appropriate follow-up to the projects of the priority waste streams programme, including WEEE.

(5) The European Parliament, in its Resolution of 14 November 1996, asked the Commission to present proposals for Directives on a number of priority waste streams, including electrical and electronic waste, and to base such proposals on the principle of producer responsibility. The European Parliament, in the same Resolution, requests the Council and the Commission to put forward proposals for cutting the volume of waste.

(6) Council Directive 75/442/EEC of 15 July 1975 on waste provides that specific rules for particular instances or supplementing those of Directive 75/442/ EEC on the management of particular categories of waste may be laid down by means of individual Directives.

(7) The amount of WEEE generated in the Community is growing rapidly. The content of hazardous components in electrical and electronic equipment (EEE) is a major concern during the waste management phase and recycling of WEEE is not undertaken to a sufficient extent.

(8) The objective of improving the management of WEEE cannot be achieved effectively by Member States acting individually. In particular, different national applications of the producer responsibility principle may lead to substantial disparities in the financial burden on economic operators. Having different national policies on the management of WEEE hampers the effectiveness of recycling policies. For that reason the essential criteria should be laid down at Community level.

(9) The provisions of this Directive should apply to products and producers irrespective of the selling technique, including distance and electronic selling. In this connection the obligations of producers and distributors using distance and electronic selling channels should, as far as is practicable, take the same form and should be enforced in the same way in order to avoid other distribution channels having to bear the costs of the provisions of this Directive concerning WEEE for which the equipment was sold by distant or electronic selling.

(10) This Directive should cover all electrical and electronic equipment used by consumers and electrical and electronic equipment intended for professional use. This Directive should apply without prejudice to Community legislation on safety and health requirements protecting all actors in contact with WEEE as well as specific Community waste management legislation, in particular Council Directive 91/157/EEC of 18 March 1991 on batteries and accumulators containing certain dangerous substances.

(11) Directive 91/157/EEC needs to be revised as soon as possible, particularly in the light of this Directive.

(12) The establishment, by this Directive, of producer responsibility is one of the means of encouraging the design and production of electrical and electronic equipment which take into full account and facilitate their repair, possible upgrading, reuse, disassembly and recycling.

(13) In order to guarantee the safety and health of distributors' personnel involved in the take-back and handling of WEEE, Member States should, in accordance with national and Community legislation on safety and health requirements, determine the conditions under which take-back may be refused by distributors.

(14) Member States should encourage the design and production of electrical and electronic equipment which take into account and facilitate dismantling and recovery, in particular the re-use and recycling of WEEE, their components and materials. Producers should not prevent, through specific design features or manufacturing processes, WEEE from being reused, unless such specific design features or manufacturing processes present overriding advantages, for example with regard to the protection of the environment and/or safety requirements.

(15) Separate collection is the precondition to ensure specific treatment and recycling of WEEE and is necessary to achieve the chosen level of protection of human health and the environment in the Community. Consumers have to actively contribute to the success of such collection and should be encouraged to return WEEE. For this purpose, convenient facilities should be set up for the return of WEEE, including public collection points, where private households should be able to return their waste at least free of charge.

(16) In order to attain the chosen level of protection and harmonised environmental objectives of the Community, Member States should adopt appropriate measures to minimise the disposal of WEEE as unsorted municipal waste and to achieve a high level of separate collection of WEEE. In order to ensure that Member States strive to set up efficient collection schemes, they should be required to achieve a high level of collection of WEEE from private households.

(17) Specific treatment for WEEE is indispensable in order to avoid the dispersion of pollutants into the recycled material or the waste stream. Such treatment is the most effective means of ensuring compliance with the chosen level of protection of the environment of the Community. Any establishment or undertakings carrying out recycling and treatment operations should comply with minimum standards to prevent negative environmental impacts associated with the treatment of WEEE. Best available treatment, recovery and recycling techniques should be used provided that they ensure human health and high environmental protection. Best available treatment, recovery and recycling techniques may be further defined in accordance with the procedures of Directive 96/61/EC.

(18) Where appropriate, priority should be given to the reuse of WEEE and its components, subassemblies and consumables. Where reuse is not preferable, all WEEE collected separately should be sent for recovery, in the course of which a high level of recycling and recovery should be achieved. In addition, producers should be encouraged to integrate recycled material in new equipment.

(19) Basic principles with regard to the financing of WEEE management have to be set at Community level and financing schemes have to contribute to high collection rates as well as to the implementation of the principle of producer responsibility.

(20) Users of electrical and electronic equipment from private households should have the possibility of returning WEEE at least free of charge. Producers should therefore finance collection from collection facilities, and the treatment, recovery and disposal of WEEE. In order to give maximum effect to the concept of producer responsibility, each producer should be responsible for financing the management of the waste from his own products. The producer should be able to choose to fulfil this obligation either individually or by joining a collective scheme. Each producer should, when placing a product on the market, provide a financial guarantee to prevent costs for the management of WEEE from orphan products from falling on society or the remaining producers. The responsibility for the financing of the management of historical waste should be shared by all existing producers in collective financing schemes to which all producers, existing on the market when the costs occur, contribute proportionately. Collective financing schemes should not have the effect of excluding niche and low volume producers, importers and new entrants. For a transitional period, producers should be allowed to show purchasers, on a voluntary basis at the time of sale of new products, the costs of collecting, treating and disposing in an environmentally sound way of historical waste. Producers making use of this provision should ensure that the costs mentioned do not exceed the actual costs incurred.

(21) Information to users about the requirement not to dispose of WEEE as unsorted municipal waste and to collect WEEE separately, and about the collection systems and their role in the management of WEEE, is indispensable for the success of WEEE collection. Such information implies the proper marking of electrical and electronic equipment which could end up in rubbish bins or similar means of municipal waste collection.

(22) Information on component and material identification to be provided by producers is important to facilitate the management, and in particular the treatment and recovery/recycling, of WEEE.

(23) Member States should ensure that inspection and monitoring infrastructure enable the proper implementation of this Directive to be verified, having regard, inter alia, to Recommendation 2001/331/EC of the European Parliament and the Council of 4 April 2001 providing for minimum criteria for environmental inspections in the Member States.

(24) Information about the weight or, if this is not possible, the numbers of items of electrical and electronic equipment put on the market in the Community and the rates of collection, reuse (including as far as possible reuse of whole appliances), recovery/recycling and export of WEEE collected in accordance with this Directive is necessary to monitor the achievement of the objectives of this Directive.

(25) Member States may choose to implement certain provisions of this Directive by means of agreements between the competent authorities and the economic sectors concerned provided that particular requirements are met.

(26) The adaptation to scientific and technical progress of certain provisions of the Directive, the list of products falling under the categories set out in Annex IA, the selective treatment for materials and components of WEEE, the technical requirements for storage and treatment of WEEE and the symbol for the marking of EEE should be effected by the Commission under a committee procedure.

(27) The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission,

HAVE ADOPTED THIS DIRECTIVE:

ARTICLE 1

OBJECTIVES

The purpose of this Directive is, as a first priority, the prevention of waste electrical and electronic equipment (WELL), and in addition, the reuse, recycling and other forms of recovery of such wastes so as to reduce the disposal of waste. It also seeks to improve the environmental performance of all operators involved in the life cycle of electrical and electronic equipment, e.g. producers, distributors and consumers and in particular those operators directly involved in the treatment of waste electrical and electronic equipment.

ARTICLE 2

SCOPE

1. This Directive shall apply to electrical and electronic equipment falling under the categories set out in Annex IA provided that the equipment concerned is not part of another type of equipment that does not fall within the scope of this Directive. Annex IB contains a list of products which fall under the categories set out in Annex IA.

2. This Directive shall apply without prejudice to Community legislation on safety and health requirements and specific Community waste management legislation.

3. Equipment which is connected with the protection of the essential interests of the security of Member States, arms, munitions and war material shall be excluded from this Directive.

This does not, however, apply to products which are not intended for specifically military purposes.

ARTICLE 3

DEFINITIONS

For the purposes of this Directive, the following definitions shall apply:

(a) 'electrical and electronic equipment' or 'EEE' means equipment which is dependent on electric currents or electromagnetic fields in order to work properly and equipment for the generation, transfer and measurement of such currents and fields falling under the categories set out in Annex IA and designed for use with a voltage rating not exceeding 1 000 Volt for alternating current and 1 500 Volt for direct current;

(b) 'waste electrical and electronic equipment' or 'WEEE' means electrical or electronic equipment which is waste within the meaning of Article 1(a) of Directive 75/442/ EEC, including all components, subassemblies and consumables which are part of the product at the time of discarding;

(c) 'prevention' means measures aimed at reducing the quantity and the harmfulness to the environment of WEEE and materials and substances contained therein;

(d) 'reuse' means any operation by which WEEE or components thereof are used for the same purpose for which they were conceived, including the continued use of the equipment or components thereof which are returned to collection points, distributors, recyclers or manufacturers;

(e) 'recycling' means the reprocessing in a production process of the waste materials for the original purpose or for other purposes, but excluding energy recovery which means the use of combustible waste as a means of generating energy through direct incineration with or without other waste but with recovery of the heat;

(f) 'recovery' means any of the applicable operations provided for in Annex IIB to Directive 75/442/EEC;

(g) 'disposal' means any of the applicable operations provided for in Annex IIA to Directive 75/442/EEC;

(h) 'treatment' means any activity after the WEEE has been handed over to a facility for depollution, disassembly, shredding, recovery or preparation for disposal and any other operation carried out for the recovery and/or the disposal of the WEEE;

(i) 'producer' means any person who, irrespective of the selling technique used, including by means of distance communication in accordance with Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (1):

(i) manufactures and sells electrical and electronic equipment under his own brand,

(ii) resells under his own brand equipment produced by other suppliers, a reseller not being regarded as the 'producer' if the brand of the producer appears on the equipment, as provided for in subpoint (i), or

(iii) imports or exports electrical and electronic equipment on a professional basis into a Member State. Whoever exclusively provides financing under or pursuant to any finance agreement shall not be deemed a 'producer' unless he also acts as a producer within the meaning of subpoints (i) to (iii);

(j) 'distributor' means any person who provides electrical or electronic equipment on a commercial basis to the party who is going to use it;

(k) 'WELL from private households' means WEEE which comes from private households and from commercial, industrial, institutional and other sources which, because of its nature and quantity, is similar to that from private households;

(l) 'dangerous substance or preparation' means any substance or preparation which has to be considered dangerous under Council Directive 67/548/EEC (2) or Directive 1999/ 45/EC of the European Parliament and of the Council (3).

(m) 'finance agreement' means any loan, lease, hiring or deferred sale agreement or arrangement relating to any equipment whether or not the terms of that agreement or arrangement or any collateral agreement or arrangement provide that a transfer of ownership of that equipment will or may take place.

ARTICLE 4

PRODUCT DESIGN

Member States shall encourage the design and production of electrical and electronic equipment which take into account and facilitate dismantling and recovery, in particular the reuse and recycling of WEEE, their components and materials. In this context, Member States shall take appropriate measures so that producers do not prevent, through specific design features or manufacturing processes, WEEE from being reused, unless such specific design features or manufacturing processes present overriding advantages, for example, with regard to the protection of the environment and/or safety requirements.

ARTICLE 5

SEPARATE COLLECTION

1. Member States shall adopt appropriate measures in order to minimise the disposal of WEEE as unsorted municipal waste and to achieve a high level of separate collection of WEEE.

2. For WEEE from private households, Member States shall ensure that by the 13 August 2005:

(a) systems are set up allowing final holders and distributors to return such waste at least free of charge. Member States shall ensure the availability and accessibility of the necessary collection facilities, taking into account in particular the population density;

(b) when supplying a new product, distributors shall be responsible for ensuring that such waste can be returned to the distributor at least free of charge on a one-to-one basis as long as the equipment is of equivalent type and has fulfilled the same functions as the supplied equipment. Member States may depart from this provision provided they ensure that returning the WEEE is not thereby made more difficult for the final holder and provided that these systems remain free of charge for the final holder. Member States making use of this provision shall inform the Commission thereof;

(c) without prejudice to the provisions of (a) and (b), producers are allowed to set up and operate individual and/or collective take-back systems for WEEE from private households provided that these are in line with the objectives of this Directive;

(d) having regard to national and Community health and safety standards, WEEE that presents a health and safety risk to personnel because of contamination may be refused for return under (a) and (b). Member States shall make specific arrangements for such WEEE.

Member States may provide for specific arrangements for the return of WEEE as under (a) and (b) if the equipment does not contain the essential components or if the equipment contains waste other than WEEE.

3. In the case of WEEE other than WEEE from private households, and without prejudice to Article 9, Member States shall ensure that producers or third parties acting on their behalf provide for the collection of such waste.

4. Member States shall ensure that all WEEE collected under paragraphs 1, 2 and 3 above is transported to treatment facilities authorised under Article 6 unless the appliances are reused as a whole. Member States shall ensure that the envisaged reuse does not lead to a circumvention of this Directive, in particular as regards Articles 6 and 7. The collection and transport of separately collected WEEE shall be carried out in a way which optimises reuse and recycling of those components or whole appliances capable of being reused or recycled.

5. Without prejudice to paragraph 1, Member States shall ensure that by 31 December 2006 at the latest a rate of separate collection of at least four kilograms on average per inhabitant per year of WEEE from private households is achieved.

The European Parliament and the Council, acting on a proposal from the Commission and taking account of technical and economic experience in the Member States, shall establish a new mandatory target by 31 December 2008. This may take the form of a percentage of the quantities of electrical and electronic equipment sold to private households in the preceding years.

ARTICLE 6

TREATMENT

1. Member States shall ensure that producers or third parties acting on their behalf, in accordance with Community To ensure compliance with Article 4 of Directive 75/ 442/EEC, the treatment shall, as a minimum, include the removal of all fluids and a selective treatment in accordance with Annex II to this Directive.

Other treatment technologies ensuring at least the same level of protection for human health and the environment may be introduced in Annex II under the procedure referred to in Article 14(2).

For the purposes of environmental protection, Member States may set up minimum quality standards for the treatment of collected WEEE. Member States which opt for such quality standards shall inform the Commission thereof, which shall publish these standards.

2. Member States shall ensure that any establishment or undertaking carrying out treatment operations obtains a permit from the competent authorities, in compliance with Articles 9 and 10 of Directive 75/442/EEC.

The derogation from the permit requirement referred to in Article 11 (1)(b) of Directive 75/442/EEC may apply to recovery operations concerning WEEE if an inspection is carried out by the competent authorities before the registration in order to ensure compliance with Article 4 of Directive 75/442/EEC. The inspection shall verify:

(a) the type and quantities of waste to be treated;

(b) the general technical requirements to be complied with;

(c) the safety precautions to be taken.

The inspection shall be carried out at least once a year and the results shall be communicated by the Member States to the Commission.

3. Member States shall ensure that any establishment or undertaking carrying out treatment operations stores and treats WEEE in compliance with the technical requirements set out in Annex III.

4. Member States shall ensure that the permit or the registration referred to in paragraph 2 includes all conditions necessary for compliance with the requirements of paragraphs 1 and 3 and for the achievement of the recovery targets set out in Article 7.

5. The treatment operation may also be undertaken outside the respective Member State or the Community provided that the shipment of WEEE is in compliance with Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community (1).

WEEE exported out of the Community in line with Council Regulation (EEC) No 259/93, Council Regulation (EC) No 1420/1999 (2) of 29 April 1999 establishing common rules and procedures to apply to shipments to certain non-OECD countries of certain types of waste and Commission Regulation (EC) No 1547/1999 (3) of 12 July 1999 determining the control procedures under Council Regulation (EEC) No 259/93 to apply to shipments of certain types of waste to certain countries to which OECD Decision C(92)39 final does not apply, shall only count for the fulfilment of obligations and targets of Article 7(1) and (2) of this Directive if the exporter can prove that the recovery, reuse and/or recycling operation took place under conditions that are equivalent to the requirements of this Directive.

6. Member States shall encourage establishments or undertakings which carry out treatment operations to introduce certified environmental management systems in accordance with Regulation (EC) No 761/2001 of the European Parliament and of the Council of 19 March 2001 allowing voluntary participation by organisations in a Community eco-management and audit scheme (EMAS) (4).

ARTICLE 7

RECOVERY

1. Member States shall ensure that producers or third parties acting on their behalf set up systems either on an individual or on a collective basis, in accordance with Community legislation, to provide for the recovery of WEEE collected separately in accordance with Article 5. Member States shall give priority to the reuse of whole appliances. Until the date referred to in paragraph 4, such appliances shall not be taken into account for the calculation of the targets set out in paragraph 2.

2. Regarding WEEE sent for treatment in accordance with Article 6, Member States shall ensure that, by 31 December 2006, producers meet the following targets:

(a) for WEEE falling under categories 1 and 10 of Annex IA,

--the rate of recovery shall be increased to a minimum of 80 % by an average weight per appliance, and

--component, material and substance reuse and recycling shall be increased to a minimum of 75 % by an average weight per appliance;

(b) for WEEE falling under categories 3 and 4 of Armex IA,

--the rate of recovery shall be increased to a minimum of 75 % by an average weight per appliance, and

--component, material and substance reuse and recycling shall be increased to a minimum of 65 % by an average weight per appliance;

(c) for WEEE falling under categories 2, 5, 6, 7 and 9 of Annex IA,

--the rate of recovery shall be increased to a minimum of 70 % by an average weight per appliance, and

--component, material and substance reuse and recycling shall be increased to a minimum of 50 % by an average weight per appliance;

(d) for gas discharge lamps, the rate of component, material and substance reuse and recycling shall reach a minimum of 80 % by weight of the lamps.

3. Member States shall ensure that, for the purpose of calculating these targets, producers or third parties acting on their behalf keep records on the mass of WEEE, their components, materials or substances when entering (input) and leaving (output) the treatment facility and/or when entering (input) the recovery or recycling facility.

The Commission shall, in accordance with the procedure laid down in Article 14(2), establish the detailed rules for monitoring compliance, including specifications for materials, of Member States with the targets set out in paragraph 2. The Commission shall submit this measure by 13 August 2004.

4. The European Parliament and the Council, acting on a proposal from the Commission, shall establish new targets for recovery and reuse/recycling, including for the reuse of whole appliances as appropriate, and for the products falling under category 8 of Annex IA, by 31 December 2008. This shall be done with account being taken of the environmental benefits of electrical and electronic equipment in use, such as improved resource efficiency resulting from developments in the areas of materials and technology. Technical progress in reuse, recovery and recycling, products and materials, and the experience gained by the Member States and the industry, shall also be taken into account.

5. Member States shall encourage the development of new recovery, recycling and treatment technologies.

ARTICLE 8

FINANCING IN RESPECT OF WEEE FROM PRIVATE HOUSEHOLDS

1. Member States shall ensure that, by 13 August 2005, producers provide at least for the financing of the collection, treatment, recovery and environmentally sound disposal of WEEE from private households deposited at collection facilities, set up under Article 5(2).

2. For products put on the market later than 13 August 2005, each producer shall be responsible for financing the operations referred to in paragraph 1 relating to the waste from his own products. The producer can choose to fulfil this obligation either individually or by joining a collective scheme. Member States shall ensure that each producer provides a guarantee when placing a product on the market showing that the management of all WEEE will be financed and that producers clearly mark their products in accordance with Article 11 (2). This guarantee shall ensure that the operations referred to in paragraph 1 relating to this product will be financed. The guarantee may take the form of participation by the producer in appropriate schemes for the financing of the management of WEEE, a recycling insurance or a blocked bank account. The costs of collection, treatment and environmentally sound disposal shall not be shown separately to purchasers at the time of sale of new products.

3. The responsibility for the financing of the costs of the management of WEEE from products put on the market before the date referred to in paragraph 1 (historical waste) shall be provided by one or more systems to which all producers, existing on the market when the respective costs occur, contribute proportionately, e.g. in proportion to their respective share of the market by type of equipment.

Member States shall ensure that for a transitional period of eight years (10 years for category 1 of Annex IA) after entry into force of this Directive, producers are allowed to show purchasers, at the time of sale of new products, the costs of collection, treatment and disposal in an environmentally sound way. The costs mentioned shall not exceed the actual costs incurred.

4. Member States shall ensure that producers supplying electrical or electronic equipment by means of distance communication also comply with the requirements set out in this Article for the equipment supplied in the Member State where the purchaser of that equipment resides.

ARTICLE 9

FINANCING IN RESPECT OF WEEE FROM USERS OTHER THAN

PRIVATE HOUSEHOLDS

Member States shall ensure that, by 13 August 2005, the financing of the costs for the collection, treatment, recovery and environmentally sound disposal of WEEE from users other than private households from products put on the market after 13 August 2005 is to be provided for by producers. For WEEE from products put on the market before 13 August 2005 (historical waste), the financing of the costs of management shall be provided for by producers. Member States may, as an alternative, provide that users other than private households also be made, partly or totally, responsible for this financing. Producers and users other than private households may, without prejudice to this Directive, conclude agreements stipulating other financing methods.

ARTICLE 10

INFORMATION FOR USERS

1. Member States shall ensure that users of electrical and electronic equipment in private households are given the necessary information about:

(a) the requirement not to dispose of WEEE as unsorted municipal waste and to collect such WEEE separately;

(b) the return and collection systems available to them;

(c) their role in contributing to reuse, recycling and other forms of recovery of WELL;

(d) the potential effects on the environment and human health as a result of the presence of hazardous substances in electrical and electronic equipment;

(e) the meaning of the symbol shown in Annex IV.

2. Member States shall adopt appropriate measures so that consumers participate in the collection of WEEE and to encourage them to facilitate the process of reuse, treatment and recovery.

3. With a view to minimising the disposal of WEEE as unsorted municipal waste and to facilitating its separate collection, Member States shall ensure that producers appropriately mark electrical and electronic equipment put on the market after 13 August 2005 with the symbol shown in Annex IV. In exceptional cases, where this is necessary because of the size or the function of the product, the symbol shall be printed on the packaging, on the instructions for use and on the warranty of the electrical and electronic equipment.

4. Member States may require that some or all of the information referred to in paragraphs 1 to 3 shall be provided by producers and/or distributors, e.g. in the instructions for use or at the point of sale.

ARTICLE 11

INFORMATION FOR TREATMENT FACILITIES

1. In order to facilitate the reuse and the correct and environmentally sound treatment of WEEE, including maintenance, upgrade, refurbishment and recycling, Member States shall take the necessary measures to ensure that producers provide reuse and treatment information for each type of new EEE put on the market within one year after the equipment is put on the market. This information shall identify, as far as it is needed by reuse centres, treatment and recycling facilities in order to comply with the provisions of this Directive, the different EEE components and materials, as well as the location of dangerous substances and preparations in EEE. It shall be made available to reuse centres, treatment and recycling facilities by producers of EEE in the form of manuals or by means of electronic media (e.g. CD-ROM, online services).

2. Member States shall ensure that any producer of an electrical or electronic appliance put on the market after 13 August 2005 is clearly identifiable by a mark on the appliance. Furthermore, in order to enable the date upon which the appliance was put on the market to be determined unequivocally, a mark on the appliance shall specify that the latter was put on the market after 13 August 2005 The Commission shall promote the preparation of European standards for this purpose.

ARTICLE 12

INFORMATION AND REPORTING

1. Member States shall draw up a register of producers and collect information, including substantiated estimates, on an annual basis on the quantities and categories of electrical and electronic equipment put on their market, collected through all routes, reused, recycled and recovered within the Member States, and on collected waste exported, by weight or, if this is not possible, by numbers.

Member States shall ensure that producers supplying electrical and electronic equipment by means of distance communication provide information on the compliance with the requirements of Article 8(4) and on the quantities and categories of electrical and electronic equipment put on the market of the Member State where the purchaser of that equipment resides. Member States shall ensure that the information required is transmitted to the Commission on a two-yearly basis within 18 months after the end of the period covered. The first set of information shall cover the years 2005 and 2006. The Member States shall provide for adequate information exchange in order to comply with this paragraph, in particular for treatment operations as referred to in Article 6(5).

2. Without prejudice to the requirements of paragraph 1, Member States shall send a report to the Commission on the implementation of this Directive at three-year intervals. The report shall be drawn up on the basis of a questionnaire or outline drafted by the Commission in accordance with the procedure laid down in Article 6 of Council Directive 91/692/ EEC of 23 December 1991 standardising and rationalising reports on the implementation of certain Directives relating to the environment (1). The questionnaire or outline shall be sent to the Member States six months before the start of the period covered by the report. The report shall be made available to the Commission within nine months of the end of the three-year period covered by it.

The first three-year report shall cover the period from 2004 to 2006.

The Commission shall publish a report on the implementation of this Directive within nine months after receiving the reports from the Member States.

ARTICLE 13

ADAPTATION TO SCIENTIFIC AND TECHNICAL PROGRESS

Any amendments which are necessary in order to adapt Article 7(3), Annex IB, (in particular with a view to possibly adding luminaires in households, filament bulbs and photovoltaic products, i.e. solar panels), Annex II (in particular taking into account new technical developments for the treatment of WEEE), and Annexes III and IV to scientific and technical progress shall be adopted in accordance with the procedure referred to in Article 14(2).

Before the Annexes are amended the Commission shall inter alia consult producers of electrical and electronic equipment, recyclers, treatment operators and environmental organisations and employees' and consumer associations.

ARTICLE 14

COMMITTEE

1. The Commission shall be assisted by the Committee set up by Article 18 of Directive 75/442/EEC.

2. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to Article 8 thereof.

The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.

3. The Committee shall adopt its rules of procedure.

ARTICLE 15

PENALTIES

Member States shall determine penalties applicable to breaches of the national provisions adopted pursuant to this Directive. The penalties thus provided for shall be effective, proportionate and dissuasive.

ARTICLE 16

INSPECTION AND MONITORING

Member States shall ensure that inspection and monitoring enable the proper implementation of this Directive to be verified.

ARTICLE 17

TRANSPOSITION

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 13 August 2004. They shall immediately inform the Commission thereof.

When Member States adopt these measures, they shall contain a reference to this Directive or be accompanied by such reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the Member States.

2. Member States shall communicate to the Commission the text of all laws, regulations and administrative provisions adopted in the field covered by this Directive.

3. Provided that the objectives set out in this Directive are achieved, Member States may transpose the provisions set out in Articles 6(6), 10(1) and 11 by means of agreements between the competent authorities and the economic sectors concerned. Such agreements shall meet the following requirements:

(a) agreements shall be enforceable;

(b) agreements shall specify objectives with the corresponding deadlines;

(c) agreements shall be published in the national official journal or an official document equally accessible to the public and transmitted to the Commission;

(d) the results achieved shall be monitored regularly, reported to the competent authorities and the Commission and made available to the public under the conditions set out in the agreement;

(e) the competent authorities shall ensure that the progress reached under the agreement is examined;

(f) in case of non-compliance with the agreement Member States must implement the relevant provisions of this Directive by legislative, regulatory or administrative measures.

4. (a) Greece and Ireland which, because of their overall:

--recycling infrastructure deficit,

--geographical circumstances such as the large number of small islands and the presence of rural and mountain areas,

--low population density, and

--low level of EEE consumption, are unable to reach either the collection target mentioned in the first subparagraph of Article 5(5) or the recovery targets mentioned in Article 7(2) and which, under the third subparagraph of Article 5(2) of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (1), may apply for an extension of the deadline mentioned in that Article, may extend the periods referred to in Articles 5(5) and 7(2) of this Directive by up to 24 months. These Member States shall inform the Commission of their Decisions at the latest at the time of transposition of this Directive.

(b) The Commission shall inform other Member States and the European Parliament of these decisions.

5. Within five years after the entry into force of this Directive, the Commission shall submit a report to the European Parliament and the Council based on the experience of the application of this Directive, in particular as regards separate collection, treatment, recovery and financing systems. Furthermore the report shall be based on the development of the state of technology, experience gained, environmental requirements and the functioning of the internal market. The report shall, as appropriate, be accompanied by proposals for revision of the relevant provisions of this Directive.

ARTICLE 18

ENTRY INTO FORCE

This Directive shall enter into force on the day of its publication in the Official Journal of the European Union.

ARTICLE 19

ADDRESSEES

This Directive is addressed to the Member States

Done at Brussels, 27 January 2003.

For the European Parliament The President P. COX

For the Council The President G. DRYS

ANNEX IA

CATEGORIES OF ELECTRICAL AND ELECTRONIC EQUIPMENT COVERED BY THIS DIRECTIVE

1. Large household appliances

2. Small household appliances

3. IT and telecommunications equipment

4. Consumer equipment

5. Lighting equipment

6. Electrical and electronic tools (with the exception of large-scale stationary industrial tools)

7. Toys, leisure and sports equipment

8. Medical devices (with the exception of all implanted and infected products)

9. Monitoring and control instruments

10. Automatic dispensers

ANNEX IB

LIST OF PRODUCTS WHICH SHALL BE TAKEN INTO ACCOUNT FOR THE PURPOSE OF THIS DIRECTIVE AND WHICH FALL UNDER THE

CATEGORIES OF ANNEX IA

1. Large household appliances

Large cooling appliances

Refrigerators

Freezers

Other large appliances used for refrigeration, conservation and storage of food

Washing machines

Clothes dryers

Dish washing machines

Cooking

Electric stoves

Electric hot plates

Microwaves

Other large appliances used for cooking and other processing of food

Electric heating appliances

Electric radiators

Other large appliances for heating rooms, beds, seating furniture

Electric fans

Air conditioner appliances

Other fanning, exhaust ventilation and conditioning equipment

2. Small household appliances

Vacuum cleaners

Carpet sweepers

Other appliances for cleaning

Appliances used for sewing, knitting, weaving and other processing for textiles

Irons and other appliances for ironing, mangling and other care of clothing

Toasters

Fryers

Grinders, coffee machines and equipment for opening or sealing containers or packages

Electric knives

Appliances for hair-cutting, hair drying, tooth brushing, shaving, massage and other body care appliances

Clocks, watches and equipment for the purpose of measuring, indicating or registering time

Scales

3. IT and telecommunications equipment

Centralised data processing:

Mainframes

Minicomputers

Printer units

Personal computing:

Personal computers (CPU, mouse, screen and keyboard included)

Laptop computers (CPU, mouse, screen and keyboard included)

Notebook computers

Notepad computers

Printers

Copying equipment

Electrical and electronic typewriters

Pocket and desk calculators and other products and equipment for the collection, storage, processing, presentation or communication of information by electronic means

User terminals and systems

Facsimile

Telex

Telephones

Pay telephones

Cordless telephones

Cellular telephones

Answering systems and other products or equipment of transmitting sound, images or other information by telecommunications

4. Consumer equipment

Radio sets

Television sets

Videocameras

Video recorders

Hi-fi recorders

Audio amplifiers

Musical instruments

And other products or equipment for the purpose of recording or reproducing sound or images, including signals or other technologies for the distribution of sound and image than by telecommunications

5. Lighting equipment

Luminaires for fluorescent lamps with the exception of luminaires in households

Straight fluorescent lamps

Compact fluorescent lamps

High intensity discharge lamps, including pressure sodium lamps and metal halide lamps

Low pressure sodium lamps

Other lighting or equipment for the purpose of spreading or controlling light with the exception of filament bulbs

6. Electrical and electronic tools (with the exception of large-scale stationary industrial tools)

Drills

Saws

Sewing machines

Equipment for turning, milling, sanding, grinding, sawing, cutting, shearing, drilling, making holes, punching, folding, bending or similar processing of wood, metal and other materials

Tools for riveting, nailing or screwing or removing rivets, nails, screws or similar uses

Tools for welding, soldering or similar use

Equipment for spraying, spreading, dispersing or other treatment of liquid or gaseous substances by other means

Tools for mowing or other gardening activities

7. Toys, leisure and sports equipment

Electric trains or car racing sets

Hand-held video game consoles

Video games

Computers for biking, diving, running, rowing, etc.

Sports equipment with electric or electronic components

Coin slot machines

8. Medical devices (with the exception of all implanted and infected products)

Radiotherapy equipment

Cardiology

Dialysis

Pulmonary ventilators

Nuclear medicine

Laboratory equipment for in-vitro diagnosis

Analysers

Freezers

Fertilization tests

Other appliances for detecting, preventing, monitoring, treating, alleviating illness, injury or disability

9. Monitoring and control instruments

Smoke detector

Heating regulators

Thermostats

Measuring, weighing or adjusting appliances for household or as laboratory equipment

Other monitoring and control instruments used in industrial installations (e.g. in control panels)

10. Automatic dispensers

Automatic dispensers for hot drinks

Automatic dispensers for hot or cold bottles or cans

Automatic dispensers for solid products

Automatic dispensers for money

All appliances which deliver automatically all kind of products

ANNEX II

SELECTIVE TREATMENT FOR MATERIALS AND COMPONENTS OF WASTE ELECTRICAL AND ELECTRONIC EQUIPMENT IN ACCORDANCE

WITH ARTICLE 6(1)

1. As a minimum the following substances, preparations and components have to be removed from any separately collected WEEE:

--polychlorinated biphenyls (PCB) containing capacitors in accordance with Council Directive 96/59/EC of 16 September 1996 on the disposal of polychlorinated biphenyls and polychlorinated terphenyls (PCB/PCT) (1),

--mercury containing components, such as switches or backlighting lamps,

--batteries,

--printed circuit boards of mobile phones generally, and of other devices if the surface of the printed circuit board is greater than 10 square centimetres,

--toner cartridges, liquid and pasty, as well as colour toner,

--plastic containing brominated flame retardants,

--asbestos waste and components which contain asbestos,

--cathode ray tubes,

--chlorofluorocarbons (CFC), hydrochlorofluorocarbons (HCFC) or hydrofluorocarbons (HFC), hydrocarbons (HC),

--gas discharge lamps,

--liquid crystal displays (together with their casing where appropriate) of a surface greater than 100 square centimetres and all those back-lighted with gas discharge lamps,

--external electric cables,

--components containing refractory ceramic fibres as described in Commission Directive 97/69/EC of 5 December 1997 adapting to technical progress Council Directive 67/548/EEC relating to the classification, packaging and labelling of dangerous substances (2),

--components containing radioactive substances with the exception of components that are below the exemption thresholds set in Article 3 of and Annex I to Council Directive 96/29/Euratom of 13 May 1996 laying down basic safety standards for the protection of the health of workers and the general public against the dangers arising from ionising radiation (3),

--electrolyte capacitors containing substances of concern (height > 25 mm, diameter > 25 mm or proportionately similar volume)

These substances, preparations and components shall be disposed of or recovered in compliance with Article 4 of Council Directive 75/442/EEC.

2. The following components of WEEE that is separately collected have to be treated as indicated:

--cathode ray tubes: The fluorescent coating has to be removed,

--equipment containing gases that are ozone depleting or have a global warming potential (GWP) above 15, such as those contained in foams and refrigeration circuits: the gases must be properly extracted and properly treated. Ozone-depleting gases must be treated in accordance with Regulation (EC) No 2037/2000 of the European Parliament and of the Council of 29 June 2000 on substances that deplete the ozone layer (4).

--gas discharge lamps: The mercury shall be removed.

3. Taking into account environmental considerations and the desirability of reuse and recycling, paragraphs 1 and 2 shall be applied in such a way that environmentally-sound reuse and recycling of components or whole appliances is not hindered.

4. Within the procedure referred to in Article 14(2), the Commission shall evaluate as a matter of priority whether the entries regarding:

--printed circuit boards for mobile phones, and

--liquid crystal displays are to be amended.

ANNEX III

TECHNICAL REQUIREMENTS IN ACCORDANCE WITH ARTICLE 6(3)

1. Sites for storage (including temporary storage) of WEEE prior to their treatment (without prejudice to the requirements of Council Directive 1999/31/EC):

--impermeable surfaces for appropriate areas with the provision of spillage collection facilities and, where appropriate, decanters and cleanser-degreasers,

--weatherproof covering for appropriate areas.

2. Sites for treatment of WEEE:

--balances to measure the weight of the treated waste,

--impermeable surfaces and waterproof covering for appropriate areas with the provision of spillage collection facilities and, where appropriate, decanters and cleanser-degreasers,

--appropriate storage for disassembled spare parts,

--appropriate containers for storage of batteries, PCBs/PCTs containing capacitors and other hazardous waste such as radioactive waste,

--equipment for the treatment of water in compliance with health and environmental regulations.

ANNEX IV

SYMBOL FOR THE MARKING OF ELECTRICAL AND ELECTRONIC EQUIPMENT

The symbol indicating separate collection for electrical and electronic equipment consists of the crossed-out wheeled bin, as shown below. The symbol must be printed visibly, legibly and indelibly.

EXHIBIT B

ANNEX IB

LIST OF PRODUCTS WHICH SHALL BE TAKEN INTO ACCOUNT FOR THE PURPOSE OF THIS DIRECTIVE AND WHICH FALL UNDER THE CATEGORIES OF ANNEX IA

1. Large household appliances

* Large cooling appliances

* Refrigerators

* Freezers

* Other large appliances used for refrigeration, conservation and storage of food

* Washing machines

* Clothes dryers

* Dish washing machines

* Cooking

* Electric stoves

* Electric hot plates

* Microwaves

* Other large appliances used for cooking and other processing of food

* Electric heating appliances

* Electric radiators

* Other large appliances for heating rooms, beds, seating furniture

* Electric fans

* Air conditioner appliances

* Other fanning, exhaust ventilation and conditioning equipment

2. Small household appliances

* Vacuum cleaners

* Carpet sweepers

* Other appliances for cleaning

* Appliances used for sewing, knitting, weaving and other processing for textiles

* Irons and other appliances for ironing, mangling and other care of clothing

* Toasters

* Fryers

* Grinders, coffee machines and equipment for opening or sealing containers or packages

* Electric knives

* Appliances for hair-cutting, hair drying, tooth brushing, shaving, massage and other body care appliances

* Clocks, watches and equipment for the purpose of measuring, indicating or registering time

* Scales

3. IT and telecommunications equipment

* Centralised data processing:

* Mainframes

* Minicomputers

* Printer units

* Personal computing:

* Personal computers (CPU, mouse, screen and keyboard included)

* Laptop computers (CPU, mouse, screen and keyboard included)

* Notebook computers

* Notepad computers

* Printers

* Copying equipment

* Electrical and electronic typewriters

* Pocket and desk calculators and other products and equipment for the collection, storage, processing, presentation or communication of information by electronic means

* User terminals and systems

* Facsimile

* Telex

* Telephones

* Pay telephones

* Cordless telephones

* Cellular telephones

* Answering systems and other products or equipment of transmitting sound, images or other information by telecommunications

4. Consumer equipment

* Radio sets

* Television sets

* Videocameras

* Video recorders

* Hi-fi recorders

* Audio amplifiers

* Musical instruments

* And other products or equipment for the purpose of recording or reproducing sound or images, including signals or other technologies for the distribution of sound and image than by telecommunications

5. Lighting equipment

* Luminaires for fluorescent lamps with the exception of luminaires in households

* Straight fluorescent lamps

* Compact fluorescent lamps

* High intensity discharge lamps, including pressure sodium lamps and metal halide lamps

* Low pressure sodium lamps

* Other lighting or equipment for the purpose of spreading or controlling light with the exception of filament bulbs

6. Electrical and electronic tools (with the exception of large-scale stationary industrial tools)

* Drills

* Saws

* Sewing machines

* Equipment for turning, milling, sanding, grinding, sawing, cutting, shearing, drilling, making holes, punching,

* folding, bending or similar processing of wood, metal and other materials

* Tools for riveting, nailing or screwing or removing rivets, nails, screws or similar uses

* Tools for welding, soldering or similar use

* Equipment for spraying, spreading, dispersing or other treatment of liquid or gaseous substances by other means

* Tools for mowing or other gardening activities

7. Toys, leisure and sports equipment

* Electric trains or car racing sets

* Hand-held video game consoles

* Video games

* Computers for biking, diving, running, rowing, etc.

* Sports equipment with electric or electronic components

* Coin slot machines

8. Medical devices (with the exception of all implanted and infected products)

* Radiotherapy equipment

* Cardiology

* Dialysis

* Pulmonary ventilators

* Nuclear medicine

* Laboratory equipment for in-vitro diagnosis

* Analysers

* Freezers

* Fertilization tests

* Other appliances for detecting, preventing, monitoring, treating, alleviating illness, injury or disability

9. Monitoring and control instruments

* Smoke detector

* Heating regulators

* Thermostats

* Measuring, weighing or adjusting appliances for household or as laboratory equipment

* Other monitoring and control instruments used in industrial installations (e.g. in control panels)

10. Automatic dispensers

* Automatic dispensers for hot drinks

* Automatic dispensers for hot or cold bottles or cans

* Automatic dispensers for solid products

* Automatic dispensers for money

* All appliances which deliver automatically all kind of products

(1.) Parliament and Council Directive 2002/96/EC of 27 Jan. 2003 on Waste Electrical and Electronic Equipment, 2003 O.J. (L 37) 24 [hereinafter WEEE Directive].

(2.) An explanatory memorandum put out by the European Commission sets forth the policy and scientific justifications for the WEEE Directive in great detail. Paragraph 4.3 of that memorandum explains the concept of producer responsibility, which is the driving philosophy behind the WEEE Directive's call for a rethinking of the roles of producers, consumers, and government in shaping and managing environmental policy. It states:
      The polluter pays principle is laid down in Article 174 of the EC
   Treaty. The idea behind this principle is to make those persons
   responsible for environmental pollution who have the possibility to
   improve the situation. Producers of electrical and electronic
   equipment design the product, determine its specifications and
   select its materials. Only producers can develop approaches to the
   design and manufacture of their products to ensure the longest
   possible product life and, in the event that it is scrapped, the
   best methods of recovery and disposal.

      At the moment there is hardly any economic incentive for the
   producer to take waste management, in particular recycling aspects,
   into consideration at the design stage. In this context, producers
   who have invested in design for recycling complain about the lack
   of financial incentives to maintain this product policy. As a result
   such actions run the risk of being discounted. Therefore, the
   Proposal for a WEEE Directive seeks to extend the traditional role
   of producers by making them responsible for the management of
   electrical and electronic products at end-of-life. The creation of
   a link between the producers and waste management contributes to an
   improved product design with a view to facilitating recycling and
   disposal of products once they reach their end of life. Specialized
   recyclers confirm the practical relevance of improved design for the
   recycling of electrical and electronic equipment.


Proposal for a Directive of the European Parliament and of the Council on Waste Electrical and Electronic Equipment and Proposal for a Directive of the European Parliament and of the Council on the Restriction on the Use of Certain Hazardous Substances in Electrical and Electronic Equipment, COM(2000) 347 final at 11 [hereinafter Explanatory Memorandum]. The Preamble to the WEEE Directive also clearly indicates that the purpose of the directive is to disrupt traditional thought and business patterns.
      The Community programme of policy and action in relation to the
   environment and sustainable development (Fifth Environmental Action
   Programme) states that the achievement of sustainable development
   calls for significant changes in current patterns of development,
   production, consumption and behaviour and advocates, inter alia, the
   reduction of wasteful consumption of natural resources and the
   prevention of pollution....


WEEE Directive, supra note 1, pmbl.

(3.) See WEEE Directive, supra note 1, at art. 8.

(4.) See Michael W. Toffel, Closing the Loop: Product Take-Back Regulations and their Strategic Implications, 10 INT'L J. CORP. SUSTAINABILITY 2-161, 2-165 (Oct. 2003), available at http://faculty.haas.berkeley.edu/toffel/publications /Toffel_2003_CES)_ClosingTheLoop.pdf (last visited Sept. 13, 2004) (on file with the Rutgers Computer and Technology Law Journal); see also Beverly Thorpe & Ian Kruszewska, Strategies to Promote Clean Production: Extended Producer Responsibility, available at http://www.svtc.org/cleancc/pubs/strat.htm (Jan. 7, 2004) (last visited Sept. 13, 2004) (on file with the Rutgers Computer and Technology Law Journal); see generally Silicon Valley Toxics Coalition, http://www.svtc.org/cleancc (last visited Sept. 13, 2004) (on file with the Rutgers Computer and Technology Law Journal) (providing information and resources for supporters of extended producer responsibility).

(5.) See infra note 16, regarding "take-back" systems and, for example, Hewlett-Packard Company's Planet Partners recycling program with respect to certain printers. See also http://www.hp.com/environment (last visited Oct. 1, 2004) (on file with the Rutgers Computer and Technology Law Journal).

(6.) American Electronics Association, AEA White Paper on the Impact on the Environment of Electrical and Electronic Equipment (Aug. 2001), available at http://www.aeanet.org/GovernmentAffairs/gajg_assn_eee_0801.asp (last visited Sept. 13, 2004) (on file with the Rutgers Computer and Technology Law Journal). Industry representatives are now looking ahead to the implementation of the Directive with the goal of minimizing, as much as possible, the adverse effects of the Directive on businesses. See generally http://www.orgalime.org/structure/structure.htm (last visited Oct. 1, 2004) (on file with the Rutgers Computer and Technology Law Journal) (outlining the position of European industry with respect to the WEEE Directive).

(7.) The European Environment Agency estimates that the volume of electronic waste is rising by three percent to five percent per year "due to the fast pace of technological development, especially in information technology (IT), which has resulted in the more frequent replacement of electrical and electronic equipment by industry." European Topic Centre on Waste and Material Flows, available at http://waste.eionet.eu.int/waste/6 (last visited Oct. 12, 2004) (on file with the Rutgers Computer and Technology Law Journal).

(8.) See United States Environmental Protection Agency, Computers and Electronics: Common Questions, available at http://www.epa.gov/region9/waste/solid/electronics.html#question4 (last visited Oct. 12, 2004) (on file with the Rutgers Computer and Technology Law Journal).

(9.) See Explanatory Memorandum, supra note 2, at 13-15 (explaining risks posed by materials in e-waste); see also Aaron Hoover, Discarded Cell Phones, Printers, Keyboards, etc. May be Hazardous Waste, UF NEWS, Mar. 1, 2004, available at http://www.napa.ufl.edu/2004news/ewaste.htm (last visited Oct. 12, 2004) (on file with the Rutgers Computer and Technology Law Journal) (reporting results of a recently-completed study performed on the leaching properties of e-waste. The study reportedly found that e-waste fails the U.S. EPA toxicity characteristic leaching procedure test, a laboratory procedure used in U.S. hazardous waste regulations to determine whether a particular waste material is a hazardous waste. The test, commonly referred to as the "TCLP," is intended to measure a waste's tendency to leach hazardous constituents when placed into a landfill).

(10.) See generally WEEE Directive, supra note 1.

(11.) Id.

(12.) Several European countries and Japan maintain take-back programs targeted at particular segments of the e-waste stream. For a detailed look at the existing take-back measures in EU Member States and the status of proposals implementing the WEEE Directive, see David Perchards, Transposition of the WEEE Directive in Other EU Member States (Nov. 2003), available at http://www.dti.gov.uk/sustainability/weee/perchardsreport.pdf (last visited Oct. 14, 2004) (on file with the Rutgers Computer and Technology Law Journal); see also CECED, Initiatives Undertaken by EU Member States and Norway and Switzerland to Deal with Take-Back and Proper Treatment of Waste Electrical and Electronic Equipment (WEEE): Status Report (Feb. 2002), available at http://www.ceced.org/sites/ceced.org/community/files/144/phpM7ei7h /National_take-back_initiatives_(update Feb 2002)_(website+HomeTech).doc (last visited Oct. 14, 2004) (on file with the Rutgers Computer and Technology Law Journal). For general information on the home appliance take-back law in Japan, see INFORM, Electric Appliance Recycling in Japan (Nov. 2003), available at http://www.informinc.org/fact_JapanEPR.pdf (last visited Oct. 14, 2003) (on file with the Rutgers Computer and Technology Law Journal).

(13.) The Member States of the European Union are: Austria, Belgium, Cyprus, the Czech Republic, Denmark, Estonia, France, Finland, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and the United Kingdom. For more information on the EU, see Gateway to the European Union, http://www.europa.eu.int.

(14.) WEEE Directive, supra note 1, at art. 17(1).

(15.) Organization for Economic Co-operation and Development, Extended Producer Responsibility, available at http://www.oecd.org/about/0,2337, en 264911111,00.html (last visited Sept. 14, 2004) (on file with the Rutgers Computer and Technology Law Journal).
   EPR is defined as a policy approach in which producers accept
   significant responsibility--financial and/or physical--for the
   treatment or disposal of products. The two distinguishing features
   of EPR policies are: the shifting of responsibility upstream to the
   producer, and the provision of incentives for producers to include
   environmental considerations in the design of their products.


Id.

(16.) A take-back system requires producers or distributors to accept the return of discarded equipment by consumers, and to transmit discarded equipment to recycling facilities for proper disposal. See Worldwatch Institute, Good Stuff?-Glossary of Consumption Terms, available at http://www.worldwatch.org/pubs/goodstuff/glossary/#6 (last visited Nov. 30, 2004) (on file with the Rutgers Computer and Technology Law Journal).

(17.) A mandatory fee system requires producers or distributors to charge a fee at the time of sale, and transmit that fee to a general fund which is then used to pay for collection and recycling services. It may also involve the collection of a deposit to be refunded to the consumer upon proper disposal. See John Gertsakis, Nicola Morelli and Chris Ryan, Return to Sender: An Introduction to Extended Producer Responsibility, at 6-7, available at http://www.aod.auc.dk/staff/nmor/ReturntoSender.pdf (last visited Nov. 30, 2004) (on file with the Rutgers Computer and Technology Law Journal).

(18.) California was the first state in the nation to pass and sign into law a bill creating an e-waste EPR regime. 2003 Cal. Legis. Serv. 526 [hereinafter CA Proposal]. However, on Nov. 17, 2003, implementation of the legislation was placed on hold by the Governor of California in order to reassess its impact on business. In 2004, Washington State enacted Engrossed Substitute House Bill 2488 (58th Leg., Reg. Sess. (Wash. 2004)), creating, essentially, a study committee to research and develop recommendations for implementing and financing an electronic product collection, recycling, and reuse program.

(19.) WEEE Directive, supra note 1.

(20.) WEEE Directive, supra note 1, at art. 1.

(21.) See supra note 12.

(22.) See generally WEEE Directive, supra note 1.

(23.) See Gateway to the European Union, supra note 13.

(24.) For more information on the structure and institutions of the EU, see id.

(25.) The European Community, which was created in 1957 by the Treaty of Rome ("Treaty"), has four principal institutions: the Commission, the Parliament, the Council of Ministers, and the Court of Justice. In the most basic terms, the Commission initiates legislative proposals and seeks to ensure the application of existing community law. The Council of Ministers legislates on the basis of Commission proposals. The Parliament advises by commenting on Commission proposals before the Council of Ministers decides. The Court of Justice interprets Community law. ENVTL. LAW INST., EUROPEAN COMMUNITY DESKBOOK, 3-4 (1992) [hereinafter European Community Deskbook].

(26.) Within the European Union, there are several types of legislation and policy pronouncements, each with its own legal characteristics. Article 249 of the Treaty Establishing the European Community explains the binding nature of each type:
   In order to carry out their task and in accordance with the
   provisions of this treaty, the European Parliament acting jointly
   with the Council, the Council and the Commission shall make
   regulations and issue directives, take decisions, make
   recommendations or deliver opinions.
   A regulation shall have general application. It shall be binding
   in its entirety and directly applicable in all Member States.
   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.
   A decision shall be binding in its entirety upon those to whom it
   is addressed.
   Recommendations and opinions shall have no binding force.


TREATY ESTABLISHING THE EUROPEAN COMMUNITY, Nov. 10 1997, art. 249, 1997 O.J. (C 340) 3. For a discussion of the institutions of the EU, their role in the legislative process, and the effect of community law, see European Community Deskbook, supra note 25, at 3-9.

(27.) See European Community Deskbook, supra note 25, at 6.

(28.) Id.

(29.) EUROPEAN UNION, European Parliament Fact Sheets, Sources and Scope of Community Law, Section 1.2.1, available at http://www.europarl.eu.int/factsheets/1_2_1_en.htm (last visited Nov. 30, 2004) (on file with the Rutgers Computer and Technology Law Journal).

(30.) See, e.g., Case 101/01, Bodil Lindqvist v. Aklagarkammaren i Jonkoping (E.J.C. Nov. 6, 2003), http://curia.eu.int/jurisp/cgi-bin/form.pl?lang=en (last visited Oct. 14, 2004) (on file with the Rutgers Computer and Technology Law Journal) (regarding the Directive on the Protection of Individuals with Respect to the Processing of Personal Data and on the Free Movement of Such Data, 12004/4/94 COR 3 (en) art. 2(b) (July 20, 1995) (Brussels)). In this decision, the European Court of Justice was called upon to interpret the EU Data Protection Directive. The Court was asked to answer the question of whether a member state could provide more extensive protection or create a wider scope than the EU directive, even if none of the circumstances described in it existed (which circumstances included items such as safeguarding national security or an important economic or financial interest of a member State or EU). The answer was that the Member State must be consistent both with the provisions and objective of the Directive, but "nothing prevents a Member State from extending the scope of the national legislation implementing the provisions of the [Data Protection Directive] to areas not included in the scope thereof provided that no other provision of Community law precludes it." Id. at ruling (6).

(31.) WEEE Directive, supra note 1, at art. 1.

(32.) The Directive also calls on "distributors" and member state governments to assist in the collection of e-waste. The majority of new responsibilities, however, fall upon "producers." WEEE Directive, supra note 1, at art. 3(i).

(33.) Article 3(b) of the WEEE Directive defines the term "WEEE": "'[W]aste electrical and electronic equipment' or 'WEEE' means electrical or electronic equipment which is waste within the meaning of Article 1(a) of Directive 75/442/EEC, including all components, subassemblies and consumables which are part of the product at the time of discarding." WEEE Directive, supra note 1, at art. 3(b). Article 1(a) of Directive 75/442/EEC on Waste states: "'waste' shall mean any substance or object ... which the holder discards or intends or is required to discard." Council Directive 75/442/EEC on Waste, art. 1(a), 1975 O.J. (L 194) 39 [hereinafter Directive on Waste].

(34.) WEEE Directive, supra note 1, at art. 3(a).

(35.) Id.

(36.) Lynn Underwood, Plugged Into Electrical Needs, WASH. POST, Jan. 10, 2004, at F01.

(37.) Id.

(38.) BART Announces Systemwide Renovation Hits 93 Percent Completion Mark, BUS. WIRE, Apr. 10, 2003.

(39.) WEEE Directive, supra note l, at Annex IA.

(40.) Id. at Annex IB.

(41.) Id.

(42.) Another reduction in the scope of the Directive is possible but less clear. The preamble clause to the Directive contains several references to consumers and professionals, signaling a possible coverage for the Directive of what in the EU would be viewed as consumer EEL. See WEEE Directive, supra note 1, at pmbl. (10) (Directive should cover EEL used by "consumers" and "professional use"); id. at pmbl. (15) ("consumers" must be encouraged to return WELL). In the EU, directives and statutes tend to define a consumer as a natural person acting "for purposes which are outside his trade, business or profession." See, e.g., Council Directive 97/7/EC of 20 May 1997, on the Protection of Consumers in Respect of Distance Contracts, art. 2(2), 1997 O.J. (L 144) 19. This at least encompasses traditional U.S. consumers (typically, natural persons acting primarily for personal, family or household purposes but not for business purposes). See RAYMOND T. NIMMER & HOLLY K. TOWLE, THE LAW OF ELECTRONIC COMMERCIAL TRANSACTIONS ch. 11.02 (2003) (explaining U.S. definitions of consumer). However, the definition of EEL is not expressly limited to consumer EEL, although the EEL listed in Annex IB largely, but not wholly, tends to typify consumer EEL. WEEE Directive, supra note 1, at Annex IB. Also, we discuss below the fact that some of the provisions of the Directive apply to WEEE from private households (clearly consumer WELL), which is a defined term that also includes household-like WEEE collected from commercial establishments. See infra Part II.B. 1.

(43.) WEEE Directive, supra note 1, at art. 2(1) (emphasis added). There is also another exception to the scope of the Directive. Article 2(3) states: "Equipment which is connected with the protection of the essential interests of the security of Member States, arms, munitions and war material shall be excluded from this Directive. This does not, however, apply to products which are not intended for specifically military purposes." Id. at art. 2(3).

(44.) Id. at Annex IA, at No. 2.

(45.) See, e.g., NIMMER & TOWLE, supra note 42, at ch. 8.01[4] (discussing the difficulty in modern commerce of obtaining rules that will apply appropriate law to aspects of transactions that are fundamentally different, such as determining what law to apply to contracts for access to an Internet site that also sells goods, licenses, data or other information).

(46.) WEEE Directive, supra note 1, at art. 3(a).

(47.) Id. at Annex IA.

(48.) WEEE Directive, supra note 1, at art. 4 (emphasis added).

(49.) Id. at art. 3(i). Article 3(i) includes in the definition of producer "any person who, irrespective of the selling technique used, including by means of distance communication in accordance with Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts." Id. Directive 97/7/EC defines "means of distance communication" as "any means which, without the simultaneous physical presence of the supplier and the consumer, may be used for the conclusion of a contract between those parties." European Parliament and European Council Directive 97/7/EC on the Protection of Consumers in Respect of Distance Contracts, art. 2(4), 1997 O.J. (L 144) 19. Thus, there is no geographic limitation on who may be regulated as a producer under the WEEE Directive.

(50.) WEEE Directive, supra note 1, at art. 3(i).

(51.) See, e.g. NIMMER & TOWLE, supra note 42, at ch. 11.06[5] (discussing distance sales contract directive).

(52.) See WEEE Directive, supra note 1, at pmbl. (9).

(53.) Hand-held video game consoles are listed in Annex IB of the WEEE Directive under the category "[t]oys, leisure and sports equipment." Id. at Annex IB(7).

(54.) Id. at art. 3(i)(ii).

(55.) Id. at art. 3(i)(iii).

(56.) Id at art. 3(i).

(57.) Id. at art. 3(j).

(58.) See e.g., PGC Prop. v. Wainscott/Sagaponack Prop. Owners, Inc., 250 F. Supp. 2d 136 (E.D.N.Y. 2003) (issue of material fact existed as to whether website operators were using site for fund-raising activities, and thus, whether their use of allegedly infringing domain name was "commercial" for purposes of a trademark owner's infringement claim); U.S. v. Slater, 348 F.3d 666 (7th Cir. 2003) (for purposes of applying the copyright fair use defense, a use was "commercial" even if money was not paid because the infringers were paid with services). Compare Wells Fargo & Co. v. WhenU.com, Inc., 293 F. Supp. 2d 734 (E.D. Mich. 2003) and U-Haul Int'l, Inc. v. WhenU.com, Inc. 279 F. Supp. 2d 723 (E.D. VA 2003) (Internet pop-up ad cases--no "use in commerce" found for purposes of trademark infringement), with 1-800 Contacts, Inc. v. WhenU.com, 309 F. Supp. 2d 467 (S.D.N.Y. 2003) (use in commerce found for pop-up ads).

(59.) See supra note 33.

(60.) WEEE Directive, supra note 1, at art. 3(k).

(61.) Id. at art. 5(2).

(62.) "[D]istributor means any person who provides electrical or electronic equipment on a commercial basis to the party." Id. at art. 3(j) (emphasis added).

(63.) WEEE Directive, supra note 1, at art. 5(2)(a).

(64.) Id.

(65.) Id. at art. 5(2)(b) (emphasis added).

(66.) Id.

(67.) Id.

(68.) Id. at art. 5(2)(c).

(69.) WEEE Directive, supra note 1, at art. 8-9.

(70.) Id. at art. 5(2)(d).

(71.) Id.

(72.) Id.

(73.) Id. at art. 5(3) (emphasis added) (notice the difference in language between this and Article 5(2). Article 5(3) requires Member States to ensure action on the part of producers, while Article 5(2) requires Member States to ensure a final outcome).

(74.) WEEE Directive, supra note 1, at art. 5(5).

(75.) Id.

(76.) Id. at art. 5(4) (mandating transport); see infra Section II(C)(3) (discussing Member State Oversight and Licensing).

(77.) "'[R]euse' means any operation by which WEEE or components thereof are used for the same purpose for which they were conceived, including the continued use of the equipment or components thereof which are returned to collection points, distributors, recyclers or manufacturers." WEEE Directive, supra note 1, at art. 3(d).

(78.) Id. at art. 5(4).

(79.) Id.

(80.) Id.

(81.) Id. at pmbl. (13).

(82.) Id. at art. 5(1).

(83.) WEEE Directive, supra note 1, at art. 5(2).

(84.) Id. at art. 5(2)(d).

(85.) "'[T]reatment' means any activity after the WEEE has been handed over to a facility for depollution, disassembly, shredding, recovery or preparation for disposal and any other operation carried out for the recovery and/or the disposal of the WEEE." WEEE Directive, supra note 1, at art. 3(h).

(86.) "'[R]ecovery' means any of the applicable operations provided for in Annex IIB to Directive 75/442/EEC." Id. at art. 3(f). Annex IIB of Directive 75/442/EEC lists the following as "recovery operations":

1. Use principally as a fuel or other means to generate energy

2. Solvent reclamation/regeneration

3. Recycling/reclamation of organic substances which are not used as solvents (including composting and other biological transformation processes)

4. Recycling/reclamation of metals and metal compounds

5. Recycling/reclamation of other inorganic materials

6. Regeneration of acids or bases

7. Recovery of components used for pollution abatement

8. Recovery of components used from catalysts

9. Oil re-refining or other reuses of oil

10. Land treatment resulting in benefit to agriculture or ecological improvement

11. Use of wastes obtained from any of the operations [listed above]

12. Exchange of wastes obtained from any of the operations [listed above]

13. Storage of wastes pending any of the operations [listed above] (excluding temporary storage, pending collection, on the site where it is produced)

Directive on Waste, supra note 33, at Annex IIB.

(87.) See WEEE Directive, supra note 1, at arts. 6(1), 7(1).

(88.) Id. at art. 3(h) (emphasis added).

(89.) See supra note 86.

(90.) WEEE Directive, supra note 1, at art. 6(1).

(91.) See Explanatory Memorandum, supra note 2, at 30.

(92.) Id. at art. 7(1) (emphasis added).

(93.) Id. at art. 6(1) (emphasis added.)

(94.) In the U.S., Article 2 of the Uniform Commercial Code ("UCC") regarding contracts for the sale of goods contains a "best efforts" standard dealing with exclusive output and requirements contracts. The Article 2 "gap-filler" rule is that the parties have an obligation to use "best efforts" in performing under such a contract. U.C.C. 2-306:3 (1977). This rule was crafted in the 1940s during a time when the phrase had a more colloquial meaning akin to "the old college try." Over the years, UCC litigation developed over whether the phrase required so much effort as to force the obligated party to disregard its own interests entirely, including by going into bankruptcy. The ambiguity of the standard and the inappropriateness of applying it outside its narrow construct, caused its rejection by common law courts in other contexts. What is meant by use of the "best available" standard in the WEEE Directive is not clear, but reference to the separate directive on waste treatment could be intended to save the WEEE Directive from analogous, problematic interpretations.

(95.) WEEE Directive, supra note 1, at art. 6(1) (citing Directive on Waste, supra note 33, at art. 4).

(96.) Id. at art. 6(1).

(97.) Id. at art. 6(1), at Annex II.

(98.) Id. at art. 6(1).

(99.) See Directive on Waste, supra note 86.

(100.) Compare id. at art. 6(1) with art. 7(1).

(101.) WEEE Directive, supra note 1, at art. 5(5).

(102.) WEEE Directive, supra note 1, at art. 7(2).

(103.) See WEEE Directive, supra note 77 regarding the definition of the term "reuse."

(104.) Large appliances and automatic dispensers. WEEE Directive, supra note 1, at Annex IA.

(105.) Id. at art. 7(2)(a).

(106.) Id.

(107.) Id. at art. 7(2).

(108.) See id. at art. 6(3) (referring to Annex III, which lists mandatory minimum conditions for storage and treatment facilities).

(109.) See id. at art. 6(2). See also Directive on Waste, supra note 33, at art. 6 (stating: "Member States shall establish or designate the competent authority or authorities to be responsible for the implementation of this Directive").

(110.) Directive on Waste, supra note 33, at arts. 9-10.

(111.) Id.

(112.) Article 4 provides:
   Member States shall take the necessary measures to ensure that waste
   is recovered or disposed of without endangering human health and
   without using processes or methods which could harm the environment,
   and in particular:

   --without risk to water, air, soil and plants and animals,

   --without causing a nuisance through noise or odours,

   --without adversely affecting the countryside or places of special
   interest.

   Member States shall also take the necessary measures to prohibit the
   abandonment, dumping or uncontrolled disposal of waste.


Directive on Waste, supra note 33, at art. 4.

(113.) For inspection requirements, see WEEE Directive, supra note 1, at art. 6(2).

(114.) Id. at art. 6(5).

(115.) Id.

(116.) Catherine K. Lin, Linan Yan & Andrew N. Davis, Globalization, Extended Producer Responsibility and the Problem of Discarded Computers in China: An Exploratory Proposal for Environmental Protection, 14 GEO. INT'L ENVTL. L. REV. 525 (2002).

(117.) Any transboundary shipment of waste must comply with the existing European and international agreements on such shipments. See Basel Convention on the Control of Transboundary Movements of Hazardous Waste and Their Disposal, U.N.E.P. IG. 80/3 (1989).

(118.) WEEE Directive, supra note 1, at art. 8-9.

(119.) Id. at art. 8(1)-(2).

(120.) Id. at art. 8(1). Recall also that the term "WEEE from private households" includes WEEE from commercial and other sources as long as it is by nature a quantity similar to private household waste. See Id. at art. 3(k).

(121.) Id.

(122.) Id. at art. 8(2). An example of similar U.S. legislation may be found in the Oil Pollution Act, which reads: "each responsible party for a vessel or a facility from which oil is discharged, or which poses the substantial threat of a discharge of oil, into or upon the navigable waters or adjoining shorelines or the exclusive economic zone is liable for the removal costs and damages specified [herein]." 33 U.S.C [section] 2702 (2004).

(123.) WEEE Directive, supra note 1, at art. 8(2).

(124.) Id. The "marking" reference is to the requirements of Article 11 of the WEEE Directive discussed infra. The point being that the guarantee must cover both management and marking.

(125.) WEEE Directive, supra note 1, at art. 8(2).

(126.) Id. at art. 8(3).

(127.) Id. (emphasis added).

(128.) Jesse Drucker, Big-Name Mergers Won't Ease Crowding in Cellphone Industry, WALL ST. J., Feb. 13, 2004.

(129.) WEEE Directive, supra note 1, at art. 8(4).

(130.) Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts--Statement by the Council and the Parliament re Article 6 (1), art. 2, 1997 O.J. (L 144) 4.

(131.) It is not clear that the Distance Contract Directive applies to Internet transactions that do not occur exclusively by email. See NIMMER & TOWLE, supra note 42, at ch. 11.06[5].

(132.) WEEE Directive, supra note 1, at art. 8.

(133.) Id. at art. 8-9.

(134.) Id.

(135.) Id. at art. 9.

(136.) Id.

(137.) WEEE Directive, supra note 1, at art. 7(3).

(138.) Id. at art. 12(1).

(139.) Id. at art. 12(1).

(140.) WEEE Directive, supra note 1, at art. 12(1).

(141.) Id. at art. 12(2).

(142.) Id.

(143.) Id. at art. 10(1).

(144.) Id. at art. 10(3).

(145.) WEEE Directive, supra note 1, at art. 11(2) (emphasis added).

(146.) Id. at Annex IA(1-2)--IB(1-2).

(147.) Id. at art. 11(2).

(148.) Id. at Annex IV.

(149.) WEEE Directive, supra note 1, at art. 10(3) (emphasis added).

(150.) Id. at art. 10(2).

(151.) Id. at art. 10(4).

(152.) The Magnuson-Moss Warranty Act requires sellers of expressly warranted consumer products to make the text of the warranty available for examination by prospective consumer buyers prior to the sale. 15 U.S.C. [section] 2302(b)(1)(A); see also 16 C.F.R. [section] 702.1(b) (excluding from the pre-sale disclosure rules products bought for commercial or industrial purposes). In brick-and-mortar retail stores, sellers keep on hand one notebook with the text of the warranties for items they sell--buyers ask for and review the notebook and then return it to the seller (i.e., no copies are given to the buyer--copies come with the product). 16 C.F.R. [section] 702.3(a). However, in mail order or other "distance communication" situations, the seller need not make the terms available before the transaction unless the customer writes the seller at a designated address for a copy. 16 C.F.R. [section] 702.3(c)(2)(i)(B).

(153.) 52 Fed. Reg. 7569, 7570 (Mar. 12, 1987).

(154.) See 52 Fed. Reg. 7569, 7574.

(155.) WEEE Directive, supra note 1, at art. 10(4).

(156.) Id. at art. 11(1).

(157.) See, e.g., Morris v. Reilly, 312 F.3d 24, 41, 45-46 (1st Cir. 2002), where a Massachusetts statute requiring tobacco companies to list all ingredients per brand was an unconstitutional taking of their trade secrets which were otherwise protected property. The statute required a listing of ingredients per brand, as opposed to a listing for all products, thereby making it too easy to reverse-engineer the product's secret formula. The court utilized the doctrine of unconstitutional conditions under which "[t]he government may not require a person to give up a constitutional right--here the right to receive just compensation when property is taken for public use--in exchange for discretionary benefit conferred by the government where the benefit sought has little or no relationship to the property." Id.

(158.) WEEE Directive, supra note 1, at art. 8(2).

(159.) Id. at art. 8(3).

(160.) Id.

(161.) Id.

(162.) Parliament and Council Directive 98/6/EC of February 16, 1998 on Consumer Protection in the Indication of the Prices of Products Offered to Consumers provides: "selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes." Parliament and Council Directive 98/6/EC, art. 2(a), 1998 O.J. (L 80) 41.

(163.) See Part IV(B) infra (describing the proposed National Computer Recycling Act, H.R. 1165, 108th Cong. [section] 3(b)(4) (2003), which mandates that the recycling fee be displayed to the consumer separate from the retail price of the product).

(164.) See European Community Deskbook, supra note 25, at 6.

(165.) WEEE Directive, supra note 1, at art. 15.

(166.) Id. at art. 17(1).

(167.) Based on a search of the Lexis CELEX database.

(168.) See Perchards, Transposition of the WEEE Directive in Other EU Member States, supra note 12.

(169.) Member States shall take all appropriate measures, whether general or particular, to ensure fulfillment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community's tasks. They shall abstain from any measure which could jeopardize the attainment of the objectives of this Treaty. TREATY ESTABLISHING THE EUROPEAN COMMUNITY, Mar. 25, 1957, O.J. (C 224) art. 5 (1992) [hereinafter EC TREATY]; see also European Union Law Rep. (CCH) [paragraph] 152 (summarizing the holding of Case C-129/96, Inter-Environment Wallone ASBL v. Region Wallone, (1997)).

(170.) TREATY ON EUROPEAN UNION, July 29, 1992, O.J. (C191) 35 (1992) [hereinafter "Treaty on EU"]. Declaration 19 on the Implementation of Community Law; see generally European Community Deskbook, supra note 25, at 6 (discussing the implementation of directives).

(171.)
   If the Commission considers that a Member State has failed to fulfill
   an obligation under this Treaty, it shall deliver a reasoned opinion
   on the matter, after giving the State concerned the opportunity to
   submit its observations.

   If the State concerned does not comply with the opinion within the
   period laid down by the Commission, the latter may bring the
   matter before the Court of Justice.


Treaty on EU, supra note 170, at art. 169.

(172.) See European Community Deskbook, supra note 25, at 11.

(173.) Id.

(174.) Id. at 10 (citations omitted).

(175.) Id.

(176.) Id. at 6.

(177.) Id. at 7.

(178.) See European Community Deskbook, supra note 25 at 7.

(179.) WEEE Directive, supra note 1,at art. 5(2)(b).

(180.) Id. at art. 6(1).

(181.) Id. at art. 10(4).

(182.) WEEE Directive, supra note 1, at art. 15.

(183.) Recall that the definition of a producer is not limited to producers located within the European Union. The Preamble of the WEEE Directive states:
   The provisions of this Directive should apply to products and
   producers irrespective of the selling technique, including distance
   and electronic selling. In this connection the obligations of
   producers and distributors using distance and electronic selling
   channels should, as far as is practicable, take the same form and
   should be enforced in the same way in order to avoid other
   distribution channels having to bear the costs of the provisions of
   this Directive concerning WEEE for which the equipment was sold by
   distant or electronic selling.


Id. at pmbl. para. 9.

(184.) Id. at art. 15.

(185.) See, e.g., Woolmark Business Intelligence for Australian Wool Innovation, China's Wool Non-tariff Barriers and the WTO Accession, AWI Trade Program Briefing Paper No. 2, available at http:// www.wool.com.au/awi/rwpattach.nsf/viewasattachmentPersonal/AWITradeBrief0 02.pdf/$file/AWITradeBrief002.pdf (last visited Oct. 6 2004) (on file with the Rutgers Computer and Technology Law Journal).

(186.) Id. This is known as the principle of national treatment.

(187.) Under the WTO, a country that is found to be in violation of its international trade commitments may choose to modify its trade policy so as to bring it in to conformity with its treaty obligations, or be subject to trade sanctions by countries that have been shown to have been harmed by the breaching party's actions. See, e.g., Export.gov U.S. Export Portal, European Union Trade Sanctions Against the United States Resulting from the Foreign Sales Corporation/Extraterritorial Income Dispute in the Worm Trade Organization, available at http://www.export.gov/eutsatus.html (last visited Oct. 6, 2004) (on file with the Rutgers Computer & Technology Law Journal).

(188.) U.S. TRADE REPRESENTATIVE, 2003 National Trade Estimate Report on Foreign Trade Barriers, Section on European Union Trade Barriers, available at http://www.ustr.gov/assets/Document_Library/Reports_Publications /2003/2003_NTE_Report/asset_upload_file962_6173.pdf (last visited Oct. 14, 2004) (on file with the Rutgers Computer and Technology Law Journal).

(189.) Council Directive 95/46/EC on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of such Data, 1995 O.J. (L 281) 31.

(190.) Louella Miles, Feeling the Draft: Louella Miles Examines Marketers' Attempts to Loosen the Tight Grip Imposed by the EC Draft Directive on Data Protection, MARKETING, May 30, 1991.

(191.) U.S. Department of Commerce, Introduction to the Safe Harbor, at http://www.export.gov/safeharbor (last visited Oct. 14, 2004) (on file with the Rutgers Computer and Technology Law Journal).

(192.) U.S. Department of Commerce, Safe Harbor List, at http://web.ita.doc.gov/safeharbor/shlist.nsf/webPages/safe+harbor+list (last visited Oct. 14, 2004) (on file with the Rutgers Computer and Technology Law Journal).

(193.) For a list of states with proposed EPR legislation, as well as a description of the proposed bills, visit: http://svtc.igc.org/cleancc/usinit /usinitmap.html (last visited Oct. 14, 2004) (on file with the Rutgers Computer and Technology Law Journal).

(194.) CA Proposal, supra note 18.

(195.)
   [Retailer] means a person who sells a covered electronic device in
   the state to a consumer but who did not manufacture the device.
   'Retailer' includes a manufacturer of a covered electronic
   device who sells that covered electronic device directly to a
   consumer through any means, including, but not limited to,
   transactions conducted through sales outlets, catalogs, or the
   Internet, or any other, similar electronic means, but does not
   include a sale that is a wholesale transaction with a distributor or
   seller.


Id. at art. 2(o).

(196.) "'Covered electronic device' means a cathode ray tube, cathode ray tube device, flat panel screen, or any other similar video display device with a screen that is greater than four inches in size measured diagonally and which the department determines, when discarded or disposed, would be a hazardous waste...." Id. at art. 2(f)(1).

(197.) Executive Order S-2-03 by the Governor of the State of California (Nov. 17, 2003).

(198.) CA Proposal, supra note 18, at art. 3(b).

(199.) Id. at art. 3(c).

(200.) Id. at art. 3(e).

(201.) "Authorized collector" means any of the following:
   A city, county or district that collects covered electronic devices.
   A person or entity that is required or authorized by a city, county,
   or district to collect covered electronic devices pursuant to the
   terms of a contract, license, permit, or other written
   authorization. A nonprofit organization that collects or accepts
   covered electronic devices. A manufacturer or agent of the
   manufacturer that collects, consolidates, and transports covered
   electronic devices for recycling from consumers, businesses,
   institutions and other generators. Any entity that collects,
   handles, consolidates, and transports covered electronic devices and
   has filed a notification with the department....


Id. at art. 2(b). (202.)

(202.) Covered electronic waste recycler ... means any of the following:

1. A person who engages in the manual or mechanical separation of covered electronic devices to recover components and commodities contained therein for the purpose of reuse or recycling.

2. A person who changes the physical or chemical composition of a covered electronic device, in accordance with the requirements of [California Health and Safety Code Chapter on Hazardous Waste Control] and the regulations adopted pursuant to that chapter, by deconstructing, size reduction, crushing, cutting, sawing, compacting, shredding, or refining for purposes of segregating components, for purposes of recovering or recycling those components, and who arranges for the transport of those components to an end user.

3. A manufacturer who meets any condition established by this chapter and [California Health and Safety Code Chapter on Hazardous Waste Control] for the collection or recycling of covered electronic waste.

Id. at art. 2(i).

(203.) Id. at art. 6(a).

(204.) CA Proposal, supra note 18, at Sec. 2, art. 10.3, [section] 25214.10(b).

(205.) European Parliament and European Council Directive 2002/95/EC on the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment, art. 4(1), 2003 O.J. (L37) 19.

(206.) CA Proposal, supra note 18, Sec. 2, art. 10.3, [section] 25214.10(c).

(207.) Exec. Ord. S-2-03, by the Governor of the State of Cal. (Nov. 17, 2003).

(208.) Id. [section] 1(c).

(209.) CA Proposal, supra note 18, at art. 3 [section] 42464(b)(1-3).

(210.) Id. at art. 3 [section] 42464(a).

(211.) Id. at art. 4 [section] 42474(a-b).

(212.) Press Release, Silicon Valley Toxics Coalition (Feb. 19, 2003) available at http://www.svtc.org/media/releases/2003/ccc215_weee.htm (last visited Sep. 7, 2004) (on file with the Rutgers Computer and Technology Law Journal).

(213.) 67 Fed. Reg. 40508 (June 12, 2002).

(214.) National Electronics Product Stewardship Initiative, Initial Meeting of the National Electronics Product Stewardship Initiative Stakeholder Dialogue, (Apr. 19, 2001), available at http://www.eerc.ra.utk.edu/clean/nepsi/pdfs/meetinganouncel.pdf (last visited Sept. 7, 2004) (on file with the Rutgers Computer and Technology Law Journal).

(215.) NEPSI, NEPSI Compromise Resolution (Feb. 26, 2004), available at http://www.eerk.ra.utk.edu/clean/nepsi/word_docs/NEPSI%20final%resolution.doc (last visited September 7, 2004) (on file with the Rutgers Computer and Technology Law Journal).

(216.) Senator Chafee, Cong. Organizational Meeting, Senate Environment and Public Works Comm., (Jan. 29, 2003), (attended by one of the authors).

(217.) 42 U.S.C. [subsection] 14301 et seq.

(218.) See generally WEEE Directive, supra note 1; see also CA Proposal, supra note 18.

(219.) NEPSI Compromise Resolution, supra note 215.

(220.) A relatively recent provision regarding the relationship between federal and state law with respect to the disposal of consumer products is the state authority provision of the Mercury-Containing and Rechargeable Battery Management Act, enacted in 1996, which provides:
   Nothing in this Act [ 42 U.S.C. [subsection] 14301 et seq.] shall be
   construed to prohibit a State from enacting and enforcing a standard
   or requirement that is identical to a standard or requirement
   established or promulgated under this Act. Except as provided in
   sections 14322(3) and 14323 of this title [which relate to labeling
   and to collection, storage, and transportation, respectively],
   nothing in this chapter shall be construed to prohibit a State from
   enacting and enforcing a standard or requirement that is more
   stringent than a standard or requirement established or promulgated
   under this Act.


42 U.S.C. [section] 14306.

(221.) H.R. 1165, 108th Cong. [section] 3 (2003).

(222.) Id. [section] 3(a).

(223.) Id.

(224.) Id. [section] 3(b)(3).

(225.) Id. [section] 3(c).

(226.) Id. [section] 3(b)(4).

(227.) H.R. 1165, 108th Cong. [section] 3(a).

(228.) Id. [section] 4(c).

(229.) Id. [section] 4(b).

(230.) Id. [section] 3(b)(3).

(231.) Id [section] 4(b).

(232.) See Int'l Paper Co. v. Ouellette, 479 U.S. 481, 491 (1987) (federal preemption should be inferred when "federal legislation is 'sufficiently comprehensive to make reasonable the inference that Congress left no room for supplementary state regulation'"); see also U.S. v. Locke, 529 U.S. 89 (2000) (holding that, by enacting the Oil Pollution Act of 1990 and other statutes, Congress had implicitly pre-empted various provisions of Washington state regulations for seaborne oil tankers). For examples of provisions in other federal environmental laws, see, e.g., 42 U.S.C. [section] 6929 (2000) (Resource Conservation and Recovery Act); 42 U.S.C. [section] 7416 (2000) (Clean Air Act).

(233.) Hewlett-Packard Company manages a take-back program, which allows customers to return printer-toner cartridges, for example, free of charge in the box used to deliver a replacement cartridge to the consumer. The new cartridge comes with a prepaid mailing label for HP; the consumer may return the replaced cartridge free of charge by leaving it with the courier or, for a fee, arrange for pick-up. See supra note 5; see also Hewlett-Packard Development Co., L.P. Hardware Recycling, at http://www.hp.com/hpinfo/globalcitizenship/environment/recycle/hardware.html (last visited Sept. 7, 2004) (on file with the Rutgers Computer and Technology Law Journal).

(234.) Only European Community legislation as printed in the Official Journal of the European Union is deemed to be authentic. Footnotes have been omitted from this reproduction.

Holly K. Towle, All of the authors are attorneys with Preston Gates & Ellis LLP, a national law firm. Holly Towle is the chair of the firm's E-Commercial Law practice group and the author of The Law of Electronic Commercial Transactions (2003, A.S. Pratt & Sons). Andrew Dyer works with the Energy Law and Real Estate practice groups. Michael Evans specializes in the federal policy practice in the firm's Washington, D.C. office. The authors also worked with the firm's Environmental and Land Use Planning department.
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