Online retailers must also comply with the new Electrical Equipment Act!

On 24 October 2015, the new Electrical and Electronic Equipment Act (ElektroG) came into force in Germany. This is the German implementation of the European Waste Electrical and Electronic Equipment Directive (WEEE). By 24 July 2016 at the latest, manufacturers and distributors subject to take-back obligations must have set up take-back points and reported these to the German Federal Environment Agency. The new Electrical Equipment Act is also relevant for online retailers! The most important questions will be clarified below.

What is the purpose of the law?

The legislator wanted to create more return options for consumers so that waste electrical and electronic equipment can be disposed of in a better way.

How is an electrical or electronic device defined?

According to § 3 No. 1 ElektroG, electrical and electronic equipment are "devices that are designed for use with an alternating voltage of no more than 1,000 volts or a direct voltage of no more than 1,500 volts and that depend on electric currents or electromagnetic fields for their proper operation, as well as devices that serve to generate, transmit and measure electric currents and electromagnetic fields." In short, one can also say: everything that needs electricity falls under it. Since there are nevertheless a few exceptions, it is worthwhile to consult the Stiftung Elektro-Altgeräte Register (EAR) in Fürth in case of uncertainty.

For whom does it apply?

The law applies to manufacturers as well as to distributors subject to take-back obligations. The distributor is any natural or legal person or partnership that offers or makes available electrical or electronic equipment on the market (§ 3 No. 11 ElektroG). These are in particular retailers (brick-and-mortar retailers, online retailers, mail-order retailers).

What is decisive?

The law is decisive for manufacturers and retailers, whether B2C or B2B, who sell electrical and electronic equipment within Germany, provided that you use more than 400 sqm of electrical sales area as a brick-and-mortar retailer or more than 400 sqm of electrical storage and shipping area (shelf space) as an online retailer.

By 24 July 2016, retailers must have established the conditions for the free take-back of waste electrical equipment at a reasonable distance from their respective end customers throughout the entire federal territory and be able to provide corresponding proof.

Retailers can also be manufacturers!

Not only those who manufacture electrical or electronic equipment or have it manufactured by third parties and then sell it under their own name are considered manufacturers within the meaning of the law. A retailer who offers imported devices in Germany is also considered a manufacturer. Furthermore, any foreign retailer who offers devices in Germany is considered the manufacturer of the devices.

Moreover, retailers who offer electrical or electronic equipment from non-registered or not properly registered manufacturers are considered manufacturers—even if this was not done intentionally.

Every retailer is therefore strongly advised to make sure that the actual manufacturer is properly registered or has appointed an authorized representative who in turn has been registered.

Which take-back obligations must be observed?

When selling a new electrical or electronic device to a customer, a used device of the consumer of the same device type, which fulfills essentially the same functions as the new device, must be taken back free of charge at the place of delivery or in the immediate vicinity thereof (so-called 1:1 take-back).

Used devices that are no larger than 25 centimeters in any external dimension must be taken back free of charge in household quantities either in the retail store or in the immediate vicinity thereof; the take-back may not be linked to the purchase of an electrical or electronic device (so-called 0:1 take-back).

And once again: any take-back must be free of charge!

How can online retailers fulfill the take-back obligation?

For online retailers, the law states that take-back must be ensured through suitable return options at a reasonable distance from the respective end user. The question remains, however, how the reasonable distance is defined.

In the case of a 1:1 take-back for large appliances, this could be an offer to collect the used device upon delivery of the new device.

In the case of the 0:1 take-back rule, used devices (up to 25 cm) would have to be returned at the retailer's expense, for example via a parcel service provider.

It has been stipulated that the take-back may not take place at the collection points of public waste disposal bodies (e.g. municipal recycling centers). Thus, online retailers in particular are encouraged to enter into cooperation with brick-and-mortar retailers or social enterprises. But it is more than doubtful that this can happen nationwide.

One more important point: taken-back or disposed-of used devices must be reported annually to the Stiftung EAR.

Are distributors of used devices obliged to take them back?

As the law has been assessed so far, distributors of exclusively used electrical and electronic equipment are not obliged to take them back.

What about dropshipping?

But precisely the issue of dropshipping is currently an exciting question for many online retailers that cannot yet be answered clearly and conclusively. In the case of dropshipping, according to the current assessment, the shipping warehouse and the storage and shipping area claimed by the retailer are decisive. Since the customer ultimately does not notice anything about the dropshipping, the online retailer is also ultimately subject to the requirements, provided that he exceeds the maximum storage capacity of 400 sqm.

Even if it is practically hard to imagine how both the implementation and the monitoring are supposed to take place, an online retailer who uses dropshipping would accordingly have to find out from his partner how large the storage area for the products he offers is. If it is over 400 sqm, he too falls under the law. But precisely this point still seems to lie in an absolute gray area for now.

Authorized representative in other EU countries

German retailers who are subject to the new Electrical Equipment Act and offer their products EU-wide must now designate an authorized representative for each target country in which they sell. This is intended to ensure the implementation of the regulation. This person appointed by the retailer and resident in the target country is then responsible for ensuring that the national disposal and take-back obligations are implemented. However, there are already companies that offer their services in this area and provide such an authorized representative.

Information and notification obligations

If retailers or manufacturers fall under the ElektroG, in addition to the take-back obligation they will in future also be subject to the information and notification obligation. Thus, customers must be informed in three ways: 1. about the return options created; 2. about the meaning of the symbol for the separate collection of electrical and electronic equipment (crossed-out wheeled bin); 3. about the customer's own responsibility to delete personal data on the used device.

Also new is the obligation for manufacturers who sell their products online themselves to indicate the WEEE number issued by the Stiftung EAR on the internet (e.g. in the imprint). Distributors without their own WEEE number do not have to indicate anything, not even the number of their supplier/manufacturer.

Violation of the Electrical Equipment Act

In principle, all retailers affected by the new Electrical Equipment Act should implement the requirements as quickly as possible. Because violations of the law can result in a business ban but also, punished as an administrative offense, fines of up to 100,000 euros.

Questions upon questions

Since the publication of the law in October 2015, retailers have been stumbling over partly vague or not clearly defined passages of the law. How exactly is the shipping and storage area defined, for example? According to the Federal Ministry for the Environment, Nature Conservation, Building and Nuclear Safety (BMUB), horizontal and vertical storage areas must be taken into account. This would mean that in addition to the actual shelf space, goods stored on the floor would also have to be included. Whether this is indeed the case will probably first have to be clarified by courts. Or else by inspection by authorities or competitors. How this is supposed to proceed is completely open.

And why all this anyway?

Even if a mobile phone has served its time, a television has become inoperable, a computer no longer meets the latest standards, or a washing machine no longer works—all waste electrical and electronic equipment still has value even after its "lifetime." Because many of the raw materials built into them can be reused, provided one has the opportunity to recycle them. However, many consumers still simply dispose of small electrical appliances in particular in household waste.

The legislator therefore decided on these new return rules in order to create an additional disposal option for customers and thereby raise consumers' awareness not to throw used devices in the trash.

This initiative is to be understood particularly against the background that current scientific assessments assume that in about 200 years the raw materials for building electronic devices will be used up.

But first and foremost, the ElektroG seems to the affected retailers, not only at first glance, like a new bureaucratic monster.

A small ray of hope at the end

Anyone who feels slightly stunned and overwhelmed after all these regulations can also seek further advice on the topic from various associations. For example, the Händlerbund has created an information sheet on the subject. Or else one can turn to specialized firms that focus on this topic. The Association for the Take-Back and Recycling of Waste Electrical and Electronic Equipment (VERE e.V.) or the Stiftung EAR can also provide advice on this.