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2005.10.04 – 05.

  1. On collection systems/Producers’ network

If follows from Article 2.10,:

  1. “economic operators” means producers, distributors, collectors, motor vehicle insurance companies, dismantlers, shredders, recoverers, recyclers and other treatment operators of end-of life vehicles, including their components and materials;

that we as dismantlers are considered as economic operators, and in Article 5.1 it says:

Member States shall take the necessary measures to ensure:

–                    that economic operators set up systems for the collection of all end-of life vehicles and, as far as technically feasible, of waste used parts removed when passenger cars are repaired,

–          the adequate availability of collection facilities within their territory

It would be in line with the Directive if we – as ATFs – would claim that collectively we are a system.

However, in Article 5.4 it says:

  1. 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

Kindly note that concerning the free take back, the Directive says – with my bolding:

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

This means, that it is a National decision whether Producers should ensure free take back in their networks or whether existing networks could be used and, if the latter is chosen, then producers would have to meet all, or a significant part of, the costs of the implementation of this measure. 

Conclusion:

It is up to the Member States to decide if the want to use Producers’ networks or existing systems or both.

The question of whether Producers’ networks are adequate and sufficient is also a national decision.

However, the Commission would feel that if you have a situation where a Producers’ network could be seen as an infringement of the consumers rights, i.e. if it too difficult for him to go to an ATF being in the Producers’ network, then a complaint concerning “bad implementation” could be considered.

  1. Can an ATF charge the last owner/keeper anything when receiving an ELV?

 

The question seems to be relevant in the UK, where it seems as if, that ATFs that are not in the Producers’network will be allowed to charge the last owner/keeper – whereas a free take-back is granted by ATFs in the network.

Answer:

The Commission is still of the opinion as laid out in the Guidance document to the Directive, that a free take back should be guaranteed by all ATFs – independently of whether they have a contract with the Producer’s network or not – and if there are costs as a result of no or a negative market value of the ELV, then producers should meet all, or a significant part of, the costs of the implementation of this measure.

However, as said above we have the “and/or-situation” and the question of adequate.

To get a more precise definition one would have to get an interpretation answer for the European Court.

However, if follows from Article 5.3, where it speaks about CODs as condition for deregistration that:

Issuing the certificate of destruction by treatment facilities or dealers or collectors on behalf of an authorised treatment facility does not entitle them to claim any financial reimbursement, except in cases where this has been explicitly arranged by Member States.

So unless the Member States have made a specific arrangement concerning payments for last owner/keeper, then the ATF cannot charge.

Conclusion:

An ATF cannot charge unless this possibility has specifically been arranged.

  1. What is covered under Producer responsibility?

This questions is pertinent in relation to our discussions with GM about time/costs for depollution – and it is also relevant in case:

  1. We would claim that we – collectively – is a network and/of if a Producers network
  2. If a Producers’ network is found not to be adequate
  3. If a Member State would go for both “system” and Producers’ network.

As you may remember, this question has never been answered in neither the Directive nor the Guidance document and is – also in the 2015-review SWG – debated.

There is no clear answer, and perhaps also here an interpretation by the European Court may be necessary.

However, if one looks upon it and remembers the discussions that took place during the development of the Directive, it should be understood that, since the main objective of the Directive has to do with environment and increased recycling, then it would be logic to say, that only costs “of implementing these measures” that clearly has to do with environment and recycling should fall under “Producer responsibility”.

Therefore GM is right in their assumption that some of the costs in our calculations have to do with “work required by the authorities” and these should therefore not fall under producer responsibility.

As a consequence of this, EGARA will now review its work-/cost-calculations.

Lennart Scharff/2005.10.07