IPR (Individual Producer Responsibility) vs ICT (Individual Collection Targets)

1. IPR (Individual Producer Responsibility) vs ICT (Individual Collection Targets) Kalev Aavik Attorney at Law Law Office Laus & Partners Legal counsel of EES-Ringlus

2. IPR meaning, scope, aim • IRP = each producer is responsible for financing the management of the waste from his own products (recital 20 and article 8(2) of Directive 2002/96/EC (I WEEE Directive); recital 23 and article 12(3) of Directive 2012/19/EU (II WEEE Directive) • Scope of IPR in WEEE directives: only for new WEEE from private households (deriving from products put on the market later than 13 August 2005) • Aim to reward design with „facilitated“ waste treatment

3. Identification of products as precondition for implementing IPR • Based on Union-wide definition of producer • Prescribed by article 11(2) of the I WEEE Directive • Then rendered partially ineffective by narrowing the definition of producer to nation-wide • Absent from II WEEE Directive • Could still be applied on the initiative of trade mark owner

4. Implementation of IPR in practice Virtually non-existent dueto: 1) Legal obstacles: • Difficulties in identification of WEEE • Non-transposition of the IPR by MS 2) Practical obstacles • PRO´s not implementing; • Access to WEEE • Cost • etc.

5. IPR worth retaining? Against IPR, and for arguments why „ecodesign“ considerations fail to justify it, see • 2008 Review of Directive 2002/96 on Waste Electrical and Electronic Equipment (WEEE). Final Report. United nations University For IPR, see • Esther Kristensen, Bryn Lindblad & Jonas Mortensen The WEEE Directive & Extended Producer Responsibility – Lost in Transposition. 2011 • Chris van Rossem. Individual Producer Responsibility in the WEEE Directive. From Theory to Practice? Doctoral Dissertation. 2008

6. ICT meaning, legal status, form • ICT – producers individually responsible for collecting certain amount of WEEE • Currently not prescribed by II WEEE directive • EC DRAFT FAQ on II WEEE Directive: /…/ organising the actual collection of WEEE and achieving a collection rate that is at least relative to the market share of the producers who establish a system is a responsibility of individual or collective systems themselves. No such sentence in final FAQ • Prescribed by many national laws, usually by making individual collection target relative to producers´ market share

7. Conflict between ICT and IPR • Market-share based individual collection target that applies to all WEEE (uniform ICT), by definition, prescribes collective responsibility for all WEEE, thereby excluding application of IPR. • Thus, uniform ICT is in direct conflict with article 12(3) of Directive 2012/19/EU

8. Conditions for peaceful coexistence of ICT and IPR • Separate ICT’s for historic WEEE (based on market share) and new WEEE (related to producers´ own products) • Workable solution for WEEE identification (back to Union-wide notion of producer?) • Access to WEEE (incl. mandatory handover?)

9. Concluding remarks • IPR should either be taken seriously or abolished, the current solution (IPR is there but we pretend we don’t see it) seriously undermines the principle of legal certainty and might create major inefficiencies (for example, meaningless financial guarantees that will never be used) • Uniform ICT not an option until IPR is alive, any legally sound version of ICT should be able to reconcile itself with IPR

10. THANK YOU! Further information: Kalev Aavik kalev@lauspartners.ee or info@eesringlus.ee