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Eucobat Position Paper - Producer Definition
Transcript of Eucobat Position Paper - Producer Definition
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Position Paper
Producer definition in the Battery Directive
1. The existing legislation
According to the Battery Directive1, producer means “any person in a Member State that, irrespective of the selling technique used, including by means of distance communication as defined in 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, places batteries or accumulators, including those incorporated into appliances or vehicles, on the market for the first time within the territory of that Member State on a professional basis”. The Battery Directive defines ‘placing on the market’ as “supplying or making available, whether in return for payment or free of charge, to a third party within the Community and includes import into the customs territory of the Community”. On the other hand, the new WEEE Directive2 defines the producer as “any natural or legal person who, irrespective of the selling technique used, including distance communication within the meaning of 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:
(i) is established in a Member State and manufactures EEE under his own name or trademark, or has EEE designed or manufactured and markets it under his name or trademark within the territory of that Member State;
(ii) is established in a Member State and resells within the territory of that Member State, under his own name or trademark, 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 point (i);
(iii) is established in a Member State and places on the market of that Member State, on a professional basis, EEE from a third country or from another Member State; or
(iv) sells EEE by means of distance communication directly to private households or to users other than private households in a Member State, and is established in another Member State or in a third country.”
1 Directive 2006/66/EC of 6 September 2006 of the European Parliament and of the Council on batteries and accumulators and waste batteries and accumulators 2 Directive 2012/19/EU of The European Parliament and of the Council of 4 July 2012 on Waste Electrical And Electronic Equipment (WEEE)
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According to the WEEE Directive, ‘making available on the market’ means “any supply of a product for distribution, consumption or use on the market of a Member State in the course of a commercial activity, whether in return for payment or free of charge”. ‘Placing on the market’ is defined as “the first making available of a product on the market within the territory of a Member State on a professional basis”. The WEEE Directive introduces the concept of the “authorized representative” Each Member State shall ensure that a producer (not selling by means of distance communication) established in another Member State is allowed to appoint a legal or natural person established on its territory as the authorized representative that is responsible for fulfilling the obligations of that producer on its territory. Furthermore, each Member State shall ensure that a producer selling by means of distance communication and established on its territory, which sells EEE to another Member State in which it is not established, appoints an authorized representative in that Member State as the person responsible for fulfilling the obligations of that producer on the territory of that Member State. Producers supplying EEE by means of distance communication shall be registered in the Member State that they sell to. Where such producers are not registered in the Member State that they are selling to, they shall be registered through their authorized representatives.
2. Issues The producer definition, as described in the Battery Directive, does not comply anymore with the evolution of the battery market. The Battery Directive does not offer a solution for the substantial, and growing, international trade by means of distance communication, in particular internet sales to consumers. For the batteries put on the market in this way, no producer is responsible and in many cases the take-‐back is organized and financed by other producers. As a consequence, fair competition and a level playing field for all economic actors becomes impossible. More and more batteries are put on the market integrated in an electrical appliance. Different definitions of the producers will lead to confusion and administrative burden, when for an appliance with integrated batteries, another economic actor might be considered as the producer of the integrated batteries than the producer of the appliance.
3. The Eucobat position In order to avoid administrative burdens, a harmonisation is thus required between the Battery Directive and the WEEE Directive.
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As the WEEE Directive complies most with the evolution of the market, Eucobat proposes to align the producer definition with the WEEE Directive and to introduce also the concept of the ‘authorized representative’ in the Battery Directive. As a consequence, the definition of ‘producer’ could read as follows: “any natural or legal person who, irrespective of the selling technique used, including distance communication within the meaning of 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:
(i) is established in a Member State and manufactures batteries under his own name or trademark, or has batteries designed or manufactured and markets it under his name or trademark within the territory of that Member State;
(ii) is established in a Member State and resells within the territory of that Member State, under his own name or trademark, batteries produced by other suppliers, a reseller not being regarded as the ‘producer’ if the brand of the producer appears on the batteries, as provided for in point (i);
(iii) is established in a Member State and places on the market of that Member State, on a professional basis, batteries from a third country or from another Member State; or
(iv) sells batteries by means of distance communication directly to private households or to users other than private households in a Member State, and is established in another Member State or in a third country.”
The article concerning the registration requirements should provide following provision: “Producers supplying batteries by means of distance communication as defined in Article X (iv) shall be registered in the Member State that they sell to. Where such producers are not registered in the Member State that they are selling to, they shall be registered through their authorised representatives as referred to in Article Y (2).” A specific article should then define the concept of the authorized representative: “Article Y – Authorized representative 1. Each Member State shall ensure that a producer as defined in Article X (i) to (iii)
established in another Member State is allowed, by way of exception to Article X (i) to (iii), to appoint a legal or natural person established on its territory as the authorized representative that is responsible for fulfilling the obligations of that producer, pursuant to this Directive, on its territory.
2. Each Member State shall ensure that a producer as defined in X (iv) and established on
its territory, which sells batteries to another Member State in which it is not established, appoints an authorized representative in that Member State as the person responsible for fulfilling the obligations of that producer, pursuant to this Directive, on the territory of that Member State.
3. Appointment of an authorized representative shall be by written mandate.”
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4. About Eucobat Eucobat is the European association of national collection schemes for batteries. They ensure that all waste batteries are collected and recycled in an ecologically sound way, and by doing so contribute to a better environment. Eucobat aisbl September 2014