New warning procedures when offering electrical devices and batteries

Since June 1st yet the simple offering of unregistered electrical devices or batteries represents facts which could lead to disciplinary measures. The lawyer Dr. Holger Jacobj (Versteyl lawyers) summerised the most important innovation below.

Since June 1st yet the simple offering of unregistered electrical devices or batteries represents facts which could lead to disciplinary measures. The lawyer Dr. Holger Jacobj (Versteyl lawyers) summerised the most important innovation below.


Law regarding rearrangement of the Recycling Law and the law on disposal includes modifications of the ElektroG and of the Batt

On June 1st, 2012 the most important regulations of the “Gesetz zur Neuordnung des Kreislaufwirtschafts- und Abfallrechts” (= law regarding rearrangement of the Recycling Law and the law on disposal) (BGBI. I p.212) came into force. Firstly, it serves to replace the “Kreislaufwirtschafts- und Abfallgesetz” (= Recycling Law and law on disposal) (KrW-/AbfG) by the new “Kreislaufwirtschaftsgesetz” (= Recycling Law) (KrWG), included in item 1. Furthermore, item 3 and 4 include modifications of the Electrical and Electronic Equipment Act (ElektroG) and of the Battery Act (BattG). Beside purely editoral modifications to adapt to the law title of the KrWG and other terms, it is also regarding an amendment to the act with regard to content, which is mainly important for manufacturers and suppliers. Please find following a short summery.


Modifications of the ElektroG

The term of the distributor is extended in § 3 para. 12 phrase 2 ElektroG (mentioned below):

"(12) Anybody offering new electrical and electronic devices commercially to users is a distributor in the sense of this law. The distributor is regarded as manufacturer in the sense of this law, as far as he is offering new electrical and electronic devices for sale by intentionally or negligently not or not properly registered manufacturers.“

The legislator has included the supplement, since it was problematic in a penalty procedure before the Higher Regional Court (OLG Naumburg), if the definition of a fictitious manufacturer in § 3 para. 12 phrase 2 ElektroG (Electrical and Electronic Equipment Act) on the backs of the distributor also applies, if the manufacturer who delivers goods to him may present a registration, but this registration is incorrect or incomplete for instance if the manufacturer is registered with a wrong type of device or without the brand of the distributed devices. This legal loophole is rectified by means of this modification. In the future, it is possible to hold an at least negligently acting distributor liable, unquestionably and in particular oblige him to pay a fine, if his supplier is registered as manufacturer in the sense of the ElektroG (Electrical and Electronic Equipment Act), but the registration does not refer to the type of device and the brand of the distributed devices. Therefore, for distributors a thorough inspection of the online register of the foundation EAR is even more important.

Also other amendments of the ElektroG (Electrical and Electronic Equipment Act) go back to experiences with the penalty of offences. This refers to the new paragraphs 14 and 15 of the § 3 ElektroG (Electrical and Electronic Equipment Act):

"(14) Bringing into circulation in the sense of this law is the delivery against payment or free of charge to third parties with the objective of distributing consumption or use.

(15) Offering in the sense of this law is the presenting or public making available of electrical and electronic equipment, aimed to the conclusion of the sales contract; this also includes the request to submit a quotation.“

These new terms are related with the amendments in § 6 para. 2 phrase  6 (new) ElektroG (Electrical and Electronic Equipment Act), which is fined according to § 23 para. 1 No. 4a (new) ElektroG (Electrical and Electronic Equipment Act):

"Distributors may not offer any electrical and electronic devices for sale, if the manufacturers did not register or not register properly contrary to phrase 1.

With these new wordings the legislator has taken into account the fact that distributors of electrical and electronic devices were acquitted by the Higher Regional Court (OLG Naumburg) whom the “Umweltbundesamt” (= German federal environmental agency) reproached a culpable violation of the obligation to register on the bases of quotations on internet platforms or advertisements. The Higher Regional Court (OLG) has asserted in the lower court that the term of placing on the market as act in the sense of the arguable administrative offence assumes the delivery of devices to third parties and this was unverifiable in the particular cases. In the future, an administrative offence is already punishable by offering electrical and electronic device in the sense of § 3 para. 15 (new) ElektroG (Electrical And Electronic Equipment Act). It is no longer important if the device was already delivered to the third party.

The regulation of § 9 para. 1 phrase 1 ElektroG (Electrical and Electronic Equipment Act) was re-edited as follows according to § 23 para. 1 No. 7 (new) ElektroG (Electrical and Electronic Equipment Act) as punishable:

"(9) The detection according to paragraph 1 must only be performed by public waste management services, distributors and manufacturers and must be performed in a way that the later reuse, disassembly and utilization in particular recycling is not being hindered.“

This modification shall emphasise that the gathering of electrical waste by other actors (e.g. commercial salvager's) is forbidden.


Modifications of the BattG (Battery Act)

The definition of the distributor is re-edited in § 2 para. 14 BattG (Battery Act) as follows:

"(14) Distributor is a person who commercially offers batteries to end users. (15) Offering of batteries in the sense of phrase 1 is the presenting or public making available of batteries, aimed to the conclusion of the sales contract; this also includes the request to submit a quotation.“

§2 para. 15 phrase 2 states as follows in the future:

"Distributors and intermediaries who are offering intentionally or negligently batteries of manufacturers who did not register or did not register properly, according to § 4 para. 1 phrase 1 in relation with the ordinance according to § 20 No. 1 are regarded as manufacturers in the sense of this law.“

§ 3 para. 4 BattG (Battery Act) is re-edited as follows:

"(4) Distributors must only offer batteries to the end users in the scope of this law, if they ensure the obligations to take back to which they are obliged according to § 9 para. 1 phrase 1 that the end user can return the used batteries in accordance with this law; contrary it is forbidden to offer batteries, if the manufacturer did not or did not properly register according to § 4 para. 1 phrase 1.“

These modifications bring about a harmonisation with the definition of the ElektroG (Electrical and Electronic Equipment Act). It is refer to the above mentioned statements.


Statement

Generally the regulations of the Electrical and Electronic Equipment Act (ElektroG) and of the Battery Act (BattG) are precised with the changes which are to be welcomed from the point of view of the users. On the other hand, some court decisions which had been helpful for the interpretation of the former version of the law; it is not necessarily possible to transfer the new legal position on it. In lots of cases of doubt the details of the circumstances are important further on.


About take-e-way

- Founded in 2004 in Hamburg
- Currently 10 employees
- Management: Jochen Stepp, Oliver Friedrichs

Business Fields: take-e-way GmbH at Hamburg/Germany assumes the implementation of requirements and obligations in conformity with the law according to the Electrical and Electronic Equipment Act (ElektroG/WEEE), Battery Act (BattG) and Packaging Ordinance (VerpackV) for medium-sized companies in Germany and abroad.

VERE Association: take-e-way represents the interests of more than 2'500 small and medium-sized companies even at political level in cooperation with the Verband zur Rücknahme und Verwertung von Elektro- und Elektronikaltgeräten (VERE e.V.) (= VERE Association for the take-back and recycling of waste electrical and electronic equipment (VERE e.V. registered association)) founded in 2003, the organization of suppliers, manufacturers, trade associations and individual persons for implementation of the ElektroG in Germany having the largest number of members.


About Dr. Holger Jacobj / Solicitor's office Prof. Versteyl

Dr. Holger Jacobj is a partner in the firm of solicitors Prof. Versteyl lawyers and acting for the company as well as for the public sector in the environmental law (focal point: waste, soil protection and emission control law). In dealing with the issues of the Electrical and Electronic Equipment Act (ElektroG) and the Battery Act (BattG) he advises numerous manufacturers and distributors. His practice also includes the representation in penalty procedures. He is the author of several publications regarding the Electrical and Electronic Equipment Act (ElektroG) regarding the Waste Framework Directive and the Packaging Ordinance.

The lawyers Prof. Versteyl is one of the leading solicitor's offices in the public economic law and regards itself as legal service provider. The medium-sized firm of solicitors has subsidiaries in Hanover, Berlin, Burgwedel and Peine (Germany). The main focuses of the solicitor's office acting in different regions include by name the environmental, building, construction and private law.  The clients of the solicitor's office include companies, the public authorities and private clients likewise.


Contact

- Solicitor's office Prof. Versteyl (Burgwedel)
- Dr. Holger Jacobj
- Lawyer and specialist solicitor for administrative law
- Focus reports: Electrical and Electronic Equipment Act (ElektroG), waste and soil protection legislation
- Phone: +49 / 5139 / 98 95-0
- E-Mail: holger.jacobj@versteyl.de
- Website: www.versteyl.de