Italy: implementing the new WEEE Directive

EU Member States were required to adopt the laws, regulations and administrative provisions necessary to comply with the new Directive 2012/19/EU on waste electrical and electronic equipment (WEEE) by 14 February 2014.

To this end, the Italian government has recently submitted the first draft of a legislative decree intended to transpose Directive 2012/19/EU to the Parliament (Government Act no. 69 presented to the Senate on 13th of December 2013). The content of this bill, however, raises several questions especially as far as provisions relating to individual and collective systems are concerned.

Paragraph (23) of the Directive states that, in order to achieve the goals set out in the Directive, “the producer should be able to choose to fulfil [their] obligation[s] either individually or by joining a collective scheme”.

Article 12, paragraph 3 of the Directive subsequently provides that “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 (…). 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”.

In this respect, the legislative decree draft singles out two main management systems producers could use towards the fulfillment of their obligations, with a view to ensuring the implementation of the principle of producer responsibility as well as the proper functioning of the market.

Pursuant to article 8 of the legislative decree draft, in order to track and manage WEEEs originated from the electrical and electronic equipment (EEE) they placed in the market, producers can (i) either join a collective scheme under the form of a consortium (ii) or organize their own independent management system and apply for the Environmental Ministry’s validation.

In order to obtain the required validation, the legislative decree draft requires the producers to prove that their own management system is apt to operate autonomously across the whole territory of the State, meets several stringent requirements prescribed by the decree and ensures effectiveness, efficiency, cost-effectiveness and transparency.

Producers shall prove that the proposed system would be able to trace out the movements of the WEEEs generated from EEEs they placed on the market and take them back.

It is worthwhile to mention that the decree does not require the implementation of any comparable procedure intended to assess the ability of collective systems to properly manage WEEE. Such an ostensible disparity between the collective systems’ and individual systems’ regulation, however, does not appear to be anyhow justified.

It prefigures, by contrast, the same implementation issues and challenges raised by the Italian packaging and packaging waste regulations, which have been similarly been designed so to encourage single producers to adhere to a collective system rather than setting up their own management system, thus hampering competition and failing, nonetheless, to effectively protect the environment.

That being said, while providing that collective systems take the mandatory form of a consortium, the Ministry allows himself to exert a sharp supervision over the system organization.

As a matter of fact, even though they are described as private law entities, the consortiums are deemed to carry out their activities under the close surveillance of the Ministry of the environment and the Ministry of economic development.

The ministries are bound to approve a standard bylaw within the next six months. Consortiums are required to adopt their bylaws in conformity with the ministries’ template and to submit it to the approval of the Ministry of the environment. Such provisions envisage a system where the violation of competition rules and of entrepreneurial freedoms is apparent as well as the disparity of treatment between sectors, like batteries and tires, which are similar.

EU Member States were required to adopt the laws, regulations and administrative provisions necessary to comply with the new Directive 2012/19/EU on waste electrical and electronic equipment (WEEE) by 14 February 2014.

To this end, the Italian government has recently submitted the first draft of a legislative decree intended to transpose Directive 2012/19/EU to the Parliament (Government Act no. 69 presented to the Senate on 13th of December 2013). The content of this bill, however, raises several questions especially as far as provisions relating to individual and collective systems are concerned.

Paragraph (23) of the Directive states that, in order to achieve the goals set out in the Directive, “the producer should be able to choose to fulfil [their] obligation[s] either individually or by joining a collective scheme”.

Article 12, paragraph 3 of the Directive subsequently provides that “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 (…). 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”.

In this respect, the legislative decree draft singles out two main management systems producers could use towards the fulfillment of their obligations, with a view to ensuring the implementation of the principle of producer responsibility as well as the proper functioning of the market.

Pursuant to article 8 of the legislative decree draft, in order to track and manage WEEEs originated from the electrical and electronic equipment (EEE) they placed in the market, producers can (i) either join a collective scheme under the form of a consortium (ii) or organize their own independent management system and apply for the Environmental Ministry’s validation.

In order to obtain the required validation, the legislative decree draft requires the producers to prove that their own management system is apt to operate autonomously across the whole territory of the State, meets several stringent requirements prescribed by the decree and ensures effectiveness, efficiency, cost-effectiveness and transparency.

Producers shall prove that the proposed system would be able to trace out the movements of the WEEEs generated from EEEs they placed on the market and take them back.

It is worthwhile to mention that the decree does not require the implementation of any comparable procedure intended to assess the ability of collective systems to properly manage WEEE. Such an ostensible disparity between the collective systems’ and individual systems’ regulation, however, does not appear to be anyhow justified.

It prefigures, by contrast, the same implementation issues and challenges raised by the Italian packaging and packaging waste regulations, which have been similarly been designed so to encourage single producers to adhere to a collective system rather than setting up their own management system, thus hampering competition and failing, nonetheless, to effectively protect the environment.

That being said, while providing that collective systems take the mandatory form of a consortium, the Ministry allows himself to exert a sharp supervision over the system organization.

As a matter of fact, even though they are described as private law entities, the consortiums are deemed to carry out their activities under the close surveillance of the Ministry of the environment and the Ministry of economic development.

The ministries are bound to approve a standard bylaw within the next six months. Consortiums are required to adopt their bylaws in conformity with the ministries’ template and to submit it to the approval of the Ministry of the environment. Such provisions envisage a system where the violation of competition rules and of entrepreneurial freedoms is apparent as well as the disparity of treatment between sectors, like batteries and tires, which are similar.