Over-collection of electronic waste breaks WEEE rules, says High Court

The High Court said, though, that the Government and Waste Electrical and Electronic Equipment (WEEE) Regulations enforcement body the Environment Agency did not unlawfully fail to take action over the behaviour.

The European Union's WEEE Directive orders producers of electronic and electrical goods to pay for their collection and disposal. They can do so directly but more commonly do so through compliance schemes, which are essentially collection co-operatives. The Directive came into force in the UK through the WEEE Regulations.

Two of the UK's compliance schemes, Electrolink Recycling and WERC, deliberately collected more waste than their members produced. They then sold 'evidence notes' of that collection to a third scheme, Repic, so that it could demonstrate compliance with the Regulations.

Repic said that it was offered evidence notes at 'ransom prices', and that deliberate over-collection broke the Regulations.

It took a court case claiming that the Environment Agency acted unlawfully by failing to take action under the Regulations against the two schemes.

The High Court said that the Environment Agency was within its rights to monitor the activity rather than take direct action, and that the Agency was clearly still considering action. It said that the Agency did not act unlawfully.

The Court did say, though, that Repic was right to maintain that planned, deliberate over-collection breached a section of the Regulations.

The Regulations order 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 be responsible for financing under these Regulations".

Repic argued that this means that schemes must refrain from over-collection as well as under-collection of waste materials.

"[Repic] alleges that as a consequence of their activities … [it] was unable to collect sufficient WEEE in order to comply with its obligation," said the ruling. "Accordingly it claims that it was forced to purchase evidence notes from [Electrolink and WERC] so that it could make appropriate declarations of compliance in respect of that compliance period. In its evidence [Repic] asserts that the purchase of evidence notes was undertaken at 'ransom prices'."

Electrolink and WERC argued that to say that over-collection was barred by the Regulations was to place too much interpretation on the word 'equivalent' in the Regulations.

The Court disagreed. "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," it said. "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."

The Court stressed, though, that this section of the Regulations related only to the schemes' plans. If it planned for over-collection it was in breach. If it did not plan for over-collection and tried to stick to those plans but in fact did over-collect then there would be no breach, the ruling said.

When deciding whether or not the authorities had broken the Regulations by failing to take action on Electrolink and WERC's planned over-collections, Mr Justice Wyn Williams said that the action taken was within the Environment Agency's powers of discretion.

"[The Environment Agency] has made clear both to [Repic] and all other producer compliance schemes that it considers intentional over and under-collection of WEEE to be in conflict with paragraph 4 of Part 4 of Schedule 7 of the Regulations," he said. "That has been its unequivocal position since April 2008 at the latest."

"In my judgment [the Environment Agency] was entitled to reach the conclusion that a process of monitoring and warning (a process which it adopted throughout 2008) was a proportionate response to the problem of over and under-collection," the ruling said.

Mr Justice Wyn Williams also said that Repic's claim that the reason it could not collect enough waste to meet its targets was because of the other schemes' over-collection was not realistic.

"It is too simplistic, in my judgment, to proceed on the basis that because there was over-collection by some producer compliance schemes there was a consequent and resultant under-collection by others. I suspect that the commercial realities are much more complicated," he said.