Posts Tagged CE
Tronex. Determining ‘waste’ in reverse logistics chains. CJEU supports holders’ duty of inspection, rules out consumer return under product guarantee as ‘discarding’.
I reviewed Kokott AG’s Opinion in C-624/17 OM v Tronex here. The Court yesterday essentially confirmed her Opinion – readers may want to have a quick read of my previous posting to get an idea of the issues.
The Court distinguishes between two main categories. First, redundant articles in the product range of the retailer, wholesaler or importer that were still in their unopened original packaging. The Court at 32: ‘it may be considered that those are new products that were presumably in working condition. Such electrical equipment can be considered to be market products amenable to normal trade and which, in principle, do not represent a burden for their holder.’ However (at 33) that does not mean that these can never be considered to be ‘discarded’: the final test of same needs to be done by the national court.
The second category are electrical appliances returned under the product guarantee. At 43: goods that have undergone a return transaction carried out in accordance with a contractual term and in return for the reimbursement of the purchase price cannot be regarded as having been discarded. Where a consumer effects such a return of non-compliant goods with a view to obtaining a reimbursement of them under the guarantee associated with the sale contract of those goods, that consumer cannot be regarded as having wished to carry out a disposal or recovery operation of goods he had been intending to ‘discard’ within the meaning of the Waste Framework Directive. Moreover per C-241/12 and C-242/12 Shell, the risk that the consumer will discard those goods in a way likely to harm the environment is low.
However such a return operation under the product guarantee does not provide certainty that the electrical appliances concerned will be reused. At 35: ‘It will therefore be necessary to verify, for the purposes of determining the risk of the holder discarding them in a way likely to harm the environment, whether the electrical appliances returned under the product guarantee, where they show defects, can still be sold without being repaired to be used for their original purpose and whether it is certain that they will be reused.’
At 36: if there is no certainty that the holder will actually have it repaired, it has to be considered a waste. At 40 ff: In order to prove that malfunctioning appliances do not constitute waste, it is therefore for the holder of the products in question to demonstrate not only that they can be reused, but that their reuse is certain, and to ensure that the prior inspections or repairs necessary to that end have been done.
The Court ends at 42 with the clear imposition of a triple duty on the holder (who is not a consumer, per above): a duty of inspection, and, where applicable, a duty of repair and of packaging.
(Handbook of) EU Waste law, 2nd ed. 2015, Oxford, OUP, Chapter 1, 1.149 ff.
Tronex. Circular economy, reverse logistics qualifying as wastes return to the CJEU. Kokott AG suggests a duty of prompt inspection.
Kokott AG Opined in C-624/17 OM v Tronex end of February (I had flagged the case summarily earlier): whether consumer returns of electrical appliances some of which are no longer usable because defective, and residual stock are to be regarded as waste that may be exported only in accordance with the Waste Shipment Regulation. – Reminiscent of the issues in Shell: in that case in a B2B context.
Tronex’ export consignment that was stopped, consisted of appliances which had been returned by consumers under a product guarantee, on the one hand, and goods which, because of a change to the product range, for example, were or could no longer be sold (normally), on the other. A number of the boxes in which the appliances were packaged carried a notice stating their defects. The glass in some of the glass kettles was damaged. The shipment was to take place without notification or consent in accordance with the Waste Shipment Regulation.
The AG takes a sensible approach which distinguishes between consumer and collector. At 31 ff: The mere fact that objects have been collected for the purpose of reuse does not in itself necessarily support the assumption that they have been discarded. Indeed, it seems sensible, both economically and from the point of view of the efficient use of resources, to make appliances which can no longer be sold on the market for which they were originally intended available on other markets where they may still sell. Particularly in the case of residual stock which is still in its unopened original packaging, therefore, the request for a preliminary reference contains insufficient evidence to support the conclusion that there has been any discarding.
Returned appliances which, on account of serious defects, are no longer usable and can no longer be repaired at reasonable cost, on the other hand, must unquestionably be regarded as waste. Kokott AG suggests waste classification as the default position. At 39: in so far as there are doubts as to the reuse of the goods or substance in question being not a mere possibility but a certainty, without the necessity of using any of the waste recovery processes referred to in the Waste Directive prior to reuse, only the possibility of ‘prompt’ dispelling of the doubt by an inspection of the appliances, can shift the presumption of it being waste.
‘Repair’ is what the AG proposes as the distinctive criterion: at 40: if the inspection shows that the item is still capable of functional use, its status as waste is precluded. The same is true of goods with minor defects which limit functionality only negligibly, meaning that these goods can still be sold without repair, in some cases at a reduced price. At 41: ‘In so far as the inspection identifies defects which need to be repaired before the product is capable of functional use, however, that product constitutes waste, since there is no certainty that the retailer will actually carry out the repair. Whether the repair is less or more expensive cannot be decisive in this regard, since a product that does not work constitutes a burden and its intended use is in doubt.’ The same goes for goods (other than those in the original packaging, per above) which have not been inspected at all.
At 45 ff the AG supports this conclusion with reference to instruction in Annexes to the WEEE Directive. She also suggests that her interpretation, given the criminal law implications, be limited to those instances occurring after the eventual CJEU judgment.
(Handbook of) EU Waste law, 2nd ed. 2015, Oxford, OUP, Chapter 1, 1.149 ff.
One or two of you are aware I have written a whole handbook on EU waste law. That now needs updating as a result of the publication of the adopted ‘Circular Economy package’ – although implementation dates are some time off so if you do have a copy, do not discard it just yet.
The package includes amendments to the ELV, Batteries, WEEE, Landfill, packaging and packaging waste, and waste framework Directive.
I am hoping to write a paper on the package which will summarise the developments – watch this space.
Handbook of EU Waste law, 2nd ed. 2015: all chapters 🙂 .
I am in Wuhan 2 1/2 days this week, where I am pleased to be engaging in three of my favourites: a class on environmental law, at Wuhan University’s unparalleled Research Institute of Environmental Law; a session on best practices for PhD research at same; and a conference presentation on conflict of laws at the solidly A+++ ‘Global Forum’ of the Chinese Society of Private International Law and Wuhan University’s Institute of International Law.
Anyways, on my way I inter alia wrote following intro to a volume on Waste to Energy, edited by Harry Post. I thought would share.
The European Union purports to be moving towards a Circular Economy (CE). If recent experience in environmental and energy law is anything to go by, the rest of the world will look with interest to its progress. It is fashionable to say that in the CE ‘waste’ will no longer exist. This is however not relevant beyond semantics. What really matters is how the EU and others after or before it, create the economic and regulatory environment that enables the innovation which a CE requires.
Regulatory circles have ample sympathy for business implementing and bringing to market the many exciting ideas which engineers continue to develop. At the same time one must not be blind to the excess which unchecked engineering imagination does have on society, in all pillars of sustainable development: social, economic and environmental. We must not compromise on a robust regulatory framework which looks after what public health and environmental protection require: two Late Lessons from Early Warnings reports tell us that we would do so at our own peril. However we do have to question continuously whether our existing laws are best practice in reaching that desired outcome. It would be a particular affront if innovative products and services that truly may boost environmental protection, were not to be rolled-out because of anxiety over their legal status.
In an innovative environment, legal certainty is an important driver for success. Lack of clarity over the legal framework and /or the regulators’ implementation of same, leads industry either to seek out and concentrate development on those States with lax or flexible regulators only; or to stick to old and trusted products.
The European Union is particularly suited to providing that clarity. On the scientific front, by investing in research and development, especially at SME and specialised spin-offs level. On the regulatory front, it would do well to work out a regime which enables innovators to query enforcement agencies about the legality of a new product or service line without the fear of subsequently being disciplined for it.
This volume is a scholarly effort to assist with both strands of the exercise. It is to be much commended for that effort and I for one am sure both industry and legal scholars will find its content encouraging.