(Reference for a preliminary ruling– Environment– Directive 2012/19

European Union law

Directive 2002/96/EC

3Directive 2002/96/EC of the European Parliament and of the Council of 27January 2003 on waste electrical and electronic equipment (WEEE) (OJ 2003 L37, p.24) provided in Article7(3) that Member States are to ensure that, for the purpose of calculating the targets for recovery of waste electrical and electronic equipment (WEEE), 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.

4Article9 of Directive 2002/96, entitled ‘Financing in respect of WEEE from users other than private households’, stated:

‘Member States shall ensure that, by 13August 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 13August 2005 is to be provided for by producers.

For WEEE from products put on the market before 13August 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.’

5Article13 of Directive 2002/96, as amended by Directive 2008/34/EC of the European Parliament and of the Council of 11March 2008 (OJ 2008 L81, p.65), provided:

‘Any amendments which are necessary in order to adapt Article7(3), AnnexIB (in particular with a view to possibly adding luminaires in households, filament bulbs and photovoltaic products, i.e. solar panels), AnnexII (in particular taking into account new technical developments for the treatment of WEEE), and AnnexesIII and IV to scientific and technical progress shall be adopted. Those measures, designed to amend non-essential elements of this Directive, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article14(3).

Before the annexes are amended the [European] Commission shall, inter alia, consult producers of electrical and electronic equipment, recyclers, treatment operators and environmental organisations and employees’ and consumer associations.’

Directive 2003/108/EC

6Recital3 of Directive 2003/108/EC of the European Parliament and of the Council of 8December 2003 amending Directive 2002/96 (OJ 2003 L345, p.106) states:

‘In accordance with the Joint Declaration, the Commission has examined the financial implications for producers following from the actual wording of Article9 of Directive [2002/96], and has found that the take-back obligation for WEEE put on the market in the past creates a retroactive liability for which no provision was made and which is likely to expose certain producers to serious economic risks.’

7Directive 2003/108 replaced Article9 of Directive 2002/96 with the following wording:

‘1.Member States shall ensure that, by 13August 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 13August 2005 is to be provided for by producers.

Member States shall ensure that, by 13August 2005, for WEEE from products put on the market before 13August 2005 (historical waste), the financing of the costs of management is as set out in the third and fourth subparagraphs.

For historical waste being replaced by new equivalent products or by new products fulfilling the same function, the financing of the costs shall be provided for by producers of those products when supplying them. Member States may, as an alternative, provide that users other than private households also be made, partly or totally, responsible for this financing.

For other historical waste, the financing of the costs shall be provided for by the users other than private households.

2.Producers and users other than private households may, without prejudice to this Directive, conclude agreements stipulating other financing methods.’

Directive 2008/98/EC

8Directive 2008/98/EC of the European Parliament and of the Council of 19November 2008 on waste and repealing certain Directives (OJ 2008 L312, p.3) defines ‘waste’ in Article3(1) as ‘any substance or object which the holder discards or intends or is required to discard’.

9Article14 of Directive 2008/98 provides:

‘1.In accordance with the polluter-pays principle, the costs of waste management shall be borne by the original waste producer or by the current or previous waste holders.

2.Member States may decide that the costs of waste management are to be borne partly or wholly by the producer of the product from which the waste came and that the distributors of such product may share these costs.’

Directive 2012/19

10Directive 2012/19 repealed Directive 2002/96.

11Recitals9, 12 and 23 of Directive 2012/19 read as follows:

‘(9)This Directive should cover all [electrical and electronic equipment (EEE)] used by consumers and EEE intended for professional use. This Directive should apply without prejudice to Union legislation on safety and health requirements protecting all actors in contact with WEEE, as well as specific Union waste management legislation… and Union product design legislation… The objectives of this Directive can be achieved without including large-scale fixed installations such as oil platforms, airport luggage transport systems or elevators within its scope. However, any equipment which is not specifically designed and installed as part of those installations, and which can fulfil its function even if it is not part of those installations, should be included in the scope of this Directive. This refers for instance to equipment such as lighting equipment or photovoltaic panels.

…

(12)The establishment, by this Directive, of producer responsibility is one of the means of encouraging design and production of EEE which take into full account and facilitate its repair, possible upgrading, re-use, disassembly and recycling.

…

(23)… Member States should encourage producers to take full responsibility for the WEEE collection, in particular by financing the collection of WEEE throughout the entire waste chain,… in line with the “polluter pays” principle. 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 through collective financing schemes to which all producers that exist on the market when the costs occur contribute proportionately.… In the case of products which have a long life cycle and which are now covered by this Directive, such as photovoltaic panels, the best possible use should be made of existing collection and recovery systems, provided that they meet the requirements laid down in this Directive.’

12Article1 of Directive 2012/19 states that the directive ‘lays down measures to protect the environment and human health by preventing or reducing the adverse impacts of the generation and management of [WEEE] and by reducing overall impacts of resource use and improving the efficiency of such use in accordance with Articles1 and 4 of Directive [2008/98], thereby contributing to sustainable development’.

13Article2(1) of Directive 2012/19 provides:

‘This Directive shall apply to [EEE] as follows:

(a)from 13August 2012 to 14August 2018 (transitional period), subject to paragraph3, to EEE falling within the categories set out in AnnexI. AnnexII contains an indicative list of EEE which falls within the categories set out in AnnexI;

(b)from 15August 2018, subject to paragraphs3 and 4, to all EEE. All EEE shall be classified within the categories set out in AnnexIII. AnnexIV contains a non-exhaustive list of EEE which falls within the categories set out in AnnexIII (open scope).’

14Article3(1)(a) of Directive 2012/19 defines ‘electrical and electronic equipment’ or ‘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 and designed for use with a voltage rating not exceeding 1000 volts for alternating current and 1500 volts for direct current’.

15In addition, under Article3(1)(e) of Directive 2012/19, ‘waste electrical and electronic equipment’ or ‘WEEE’ is ‘electrical or electronic equipment which is waste within the meaning of Article3(1) of Directive [2008/98], including all components, sub-assemblies and consumables which are part of the product at the time of discarding’.

16Article4 of Directive 2012/19 provides:

‘Member States shall, without prejudice to the requirements of Union legislation on the proper functioning of the internal market and on product design,… encourage cooperation between producers and recyclers and measures to promote the design and production of EEE, notably in view of facilitating re-use, dismantling and recovery of WEEE, its components and materials.…’

17Article12 of Directive 2012/19, entitled ‘Financing in respect of WEEE from private households’, provides in paragraph4 that WEEE from products placed on the market on or before 13August 2005 must be regarded as ‘historical waste’.

18Article13 of Directive 2012/19, entitled ‘Financing in respect of WEEE from users other than private households’, is worded as follows:

‘1.Member States shall ensure that the financing of the costs for the collection, treatment, recovery and environmentally sound disposal of WEEE from users other than private households resulting from products placed on the market after 13August 2005 is to be provided for by producers.

For historical waste being replaced by new equivalent products or by new products fulfilling the same function, the financing of the costs shall be provided for by producers of those products when supplying them. Member States may, as an alternative, provide that users other than private households also be made, partly or totally, responsible for this financing.

For other historical waste, the financing of the costs shall be provided for by the users other than private households.

2.Producers and users other than private households may, without prejudice to this Directive, conclude agreements stipulating other financing methods.’

19Article24(1) of Directive 2012/19 states as follows:

‘Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 14February 2014. They shall immediately communicate to the Commission the text of those provisions.’

20Photovoltaic panels are referred to in AnnexI to Directive 2012/19, entitled ‘Categories of EEE covered by this Directive during the transitional period as provided for in Article2(1)(a)’. They are also referred to in AnnexII to the directive, containing an indicative list of EEE which falls within the categories of AnnexI, and in AnnexIV, setting out a non-exhaustive list of EEE which falls within the categories listed in AnnexIII.

Czech law

21The Czech Republic implemented its obligations under Directive 2002/96 inter alia by enacting zákon č. 185/2001 Sb., o odpadech a o změně některých dalších zákonů (Law No185/2001 on waste and amending certain other laws; ‘the Law on waste’).

22On 30May 2012, a new Paragraph37p, establishing a mechanism for financing the costs relating to the management of waste from photovoltaic panels, was inserted in that law. Under that paragraph, the operator of a solar power plant has the obligation, by means of recycling contributions, to finance the costs relating to the management of waste from photovoltaic panels placed on the market by 1January 2013. To that end, an obligation was imposed requiring such an operator to conclude by 30June 2013 an agreement ensuring a collective financing system, in order that the financing be provided by 1January 2019. In the case of photovoltaic panels placed on the market after 1January 2013, the obligation falls on their producer.