The compliance scheme focused on the aspect of the case concerning the interpretation of rules governing over- and under-collection of WEEE which was discussed by the Judge in his ruling.
A spokeswoman for REPIC told letsrecycle.com that the ruling was in favour of REPIC “in terms of the issue to deal with the deliberate over-collection of WEEE which is unlawful and that was upheld.” And, in a statement REPIC said: “We are pleased that the Court has upheld REPIC's position that the deliberate over-collection of WEEE is unlawful.”
In the past, the involvement of REPIC in discussions over the WEEE system have centred on the fact that the compliance scheme has lots of members but little direct access to waste electrical and electronic equipment. This is in contrast to some schemes who have fewer members but have gained access to a lot of WEEE, mainly through civic amenity site contracts.
Increased prices
Asked about issues of under-collection, she added: “This links together with someone else who is over collecting that forces the other into a situation where they will under-collect but can buy at its increased prices.”
Commenting on the judgement Dr Philip Morton, Chief Executive of REPIC said: “If schemes deliberately over-collect in breach of that plan they will be in breach of their ongoing conditions of approval …. This is consistent with the view that REPIC has held since the implementation of the WEEE Regulations.”
He added: “Our decision to launch the judicial review process has been vindicated. This can only benefit all stakeholders and assist in improving the UK WEEE system and achieving the fundamental objectives of the WEEE Directive. REPIC would like to thank all those who have given their support and we look forward to continuing with our hard work to achieve the important objectives arising under the WEEE Regulations.”
However, the Court ruling shows that the issue centres around whether compliance schemes have viable plans.
Court ruling
The Judge highlighted paragraph 4 of the legislation which states: “That the operator of the proposed scheme or scheme has viable plans to collect an amount of WEEE that is equivalent to the amount of WEEE for which it will responsible for financing under these regulations.”
He said (referring to the word equivalent): “In my judgment, the use of the word is intended to ensure that a producer compliance scheme has viable plans to collect no more and no less than is necessary to meet its obligation under Regulation 22. If it does not have viable plans to collect a sufficient amount of WEEE a breach of paragraph 4 will be established. If its plans for collection envisage over-collection there will be a breach of paragraph 4.
“A producer compliance scheme which is in breach of the terms of paragraph 4 will be in breach of a condition of its approval as a producer compliance scheme. That is clear from Regulation 43(i). A producer compliance scheme which contravenes Regulation 43 is guilty of a criminal offence (see Regulation 73(3)).
“It seems to me to be necessary to stress, however, that paragraph 4 is designed to ensure that a producer compliance scheme has viable plans. What is the position if viable plans exist and the producer compliance scheme acts in accordance with those plans in relation to the collection of WEEE yet, nonetheless, the scheme either under-collects or over-collects as a matter of fact? In those circumstances, it seems to me that there would be no breach of paragraph 4. The obligation of the producer compliance scheme is to have viable plans.
“That does not mean, of course, that the producer compliance scheme can produce viable plans to collect an equivalent amount of WEEE to that for which it is financially responsible but then ignore those plans and collect more (or less) than the plans specify when there is no need to do so in order to comply with its obligations under the Regulations. If, however, viable plans exist for the collection of an equivalent amount of WEEE and they are implemented it does not seem to me that an actual over-collection or under-collection of WEEE which had come about only because of the difficulty in predicting the precise amount of WEEE which was necessary to comply with obligations under the Regulations would amount to a breach of paragraph 4.”
Under-collection
The ruling also talks about other points relevant to over-collection. It refers to the Environment Agency view, that making a scheme which has to much evidence for a small number of members stop its work, could “threaten the collection of WEEE.”
And, the judge highlights recognition by the Agency (the Scond Defendant) of the issue, saying “there was a recognition on the part of the Second Defendant that if a producer compliance scheme had already contracted to collect WEEE from the operators of designated collection facilities the Second Defendant would not wish to disturb that arrangement particularly if it would threaten the collection of WEEE.”
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