Producer responsibility for ELVs:’
- Do we need an interpretation by the European Court of Justice?
The discussions concerning “who should pay for what” in relation to the producer responsibility in the EU ELV-Directive continues – in almost all European countries. With only just over six month to go until 01.01.2007 where, according to the ELV-Directive, there will be full producer responsibility for all ELVs, legislation is now getting passed in all countries – however with some differences. All legislation should however be based on the same principles, as laid out in Article 5.4 of the Directive, where it is stated:
- Member States shall take the necessary measures to ensure that the delivery of the vehicle to an authorised treatment facility in accordance with paragraph 3 occurs without any cost for the last holder and/or owner as a result of the vehicle’s having no or a negative market value.
Member States shall take the necessary measures to ensure that producers meet all, or a significant part of, the costs of the implementation of this measure and/or take back end-of life vehicles under the same conditions as referred to in the first subparagraph
So what does that mean – in practice?
Well, reading the above, supplemented with the Commission’s guidance document to it, holding the “history” of the Directive and the “reasoning” behind it, we in EGARA are of the firm opinion that, there are two possibilities:
1 The producers organise an adequate network for free-take back
- Existing ATFs accept ELVs and if the costs of treating them according to the Directive are higher than the value of the ELV, then the producers should pay all or a significant part of the costs
and, as wee see it, which has been confirmed in a number of countries: Both systems can exist in parallel. Looking at the latter possibility, the Commission has stated that, the right to get reimbursed for costs higher than the value of the ELV, exists for all AFTs, independently of whether they have signed a contract with the producer’s network or not!
We have earlier raised these questions to the Commission’s legal services, and now, where we have seen the UK legislation and the draft Irish one, we – again – consulted the Commission, basically because we do not feel that neither the UK “rules”, nor the Irish are in conformity with the Directive.
In the UK it is stated that ATFs, having signed a contract wit the producers’ system, in principle can charge the producers – ATF that have not signed a contract with the producers’ system can charge the last owner/keeper. In principle mentioned, since as far as we know, when an ATF signs a contract, it also “promises” not to charge – until 2015.
The draft Irish legislation is even more peculiar! Here it is said that ATFs in the producers’ system can charge producers, whereas ATFs outside the producers’ system cannot charge neither producers, nor the last owner/keeper.
The Commissions’ views on this has been expressed as follows:
- The Draft Irish legislation contains provisions which may lead to unfair competition between contracted ATFs and non-contracted ATFs
- That if the cost of receiving and treating an ELV are higher that the market value of the ELV and if a significant part of these costs were not be borne by the producer, that may constitute a case of non-conformity with the Directive.
- A binding interpretation of the provisions of the Directive is ultimately the matter for the European Court of Justice
So here we are: Must we go to the European Court of Justice to get the final interpretation concerning how to calculate costs and to get a mechanism defined, by which, we the ATFs, get our cost covered? Perhaps there is some hope that it could be sorted out between the parties in stead of going to court, and if so, there seems to be some “guidance” in the UK Guidance notes to the legislation, where it is said:
The valuation of a vehicle would be the subject of negotiations between the authorised treatment facility or collection point and the producer who put the vehicle on the market. Such negotiations would be for the parties concerned, but DTI would expect negotiations to take into account the likely cost of treatment (depollution, dismantling and issue of the Certificate of Destruction (CoD)) and recovery and recycling, and the projected income from reused elements and materials recovered from dismantling, shredding and other recovery operations.
Are we, perhaps, finally getting into real negotiations and getting a cost calculation model defined?
And if so: Hopefully a model which is applicable in all countries and linked to the real, and fluctuating, market conditions & prices and not based on the simple saying that we have heard so many times – from the car-producers: An ELV always has a positive value!
This may be true right now with the extremely high scrap-metal prices – but they simply cannot be guaranteed until 2015, which is what the car-producers have stipulated in their contracts with ATFs.
EGARA-meeting Bucharest, 12.-13.05.2006
Our colleagues in ANSDAR were the hosts of the meeting and managed to get a good crowd of people to come the an “open session”. About 50 people attended a seminar, amongst those several representatives from government and parliament in Romania as well as, of course, members of ANSDAR. We all got a good insight into what is happing in Romania in order to get everything into shape before joining the EU – by 01.01.2007? – of course concentrated around ELVs and there was a very good discussion at the seminar, emphasising o that we all have responsibilities for this – producers, authorities and ATFs – and it became clear, that especially in Romania, a collaborative effort is necessary in order to get things organised.
Estonia and Lithuania joins EGARA
NGO-ELV of Estonia with 45 member sand DA of Lithuania with some 30 were, during the last EGARA-meeting in Bucharest, accepted as members of EGARA. At the meeting we also, for the first time, had representatives form GOE, Hungary who, it seems , also will join EGARA.
EGARA gets a new chairman
After having been chairman since 2001, John Murphy, IMVRA, Ireland unfortunately had to step down. The situation in Ireland combined with the fact that his own business Pouladuff Dismantlers Ltd, Cork requires “more devotion” and in fact has been “suffering” from John’s enormous effort at the EGARA level, made John feel that he would not any more be able to spend sufficient time for EGARA in the future. We all in EGARA deeply regret this , although we understand it.
As new chairman was elected Paul Fox, MVDA, UK.
Paul Fox began his working career as an apprentice motor mechanic, studying motor vehicle technology at a local college, before qualifying as a mechanic some four years later. A career move saw Paul open a Dismantling Yard and join the Association in the UK the MVDA. Legislation changes saw Paul seeking more knowledge and he took a HNC course in Environmental and Waste Management at a local College. Paul became Chairman of the MVDA and has been a member of the Executive Committee for three years.
Paul election to chairman made room for a new constitution of the EGARA Executive Committee, and as new member was elected Tiit Plaks, NGO-ELV, Estonia. Tiit has been following the EGARA-meetings for almost three years now and is quite familiar with EGARA-issues. He was very much welcomed as member of the Executive Committee, especially since he is the first one from “the new world” being elected officer.
EGARA therefore now has the following officers:
Chairman: Paul Fox, MVDA, UK
Executive Committee: Dorothée Giffard, CNPA, France
Walter Frauenknecht, VASSO, Switzerland
Tiit Plaks, NGO-ELV, Estonia
Treasurer: Marc van den Brand, STIBA, Netherlands
Secretary: Lennart Scharff, DAG, Denmark