INTRODUCTION
In Spain, the Law 22/2011 of 28 July, on waste and contaminated soil, incorporated Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008, (the Waste Framework Directive, hereinafter "WFD") into national law. Amongst its new features, it sets the conditions under which waste managers should operate, the communication and permit management system as well as the extended producer responsibility schemes, and the Production and Waste Management Register unique at national level. This law provides for the existence of Royal Decrees for specific waste streams that will include detailed characteristics of each type of waste scheme.
Therefore, this Royal Decree incorporated Directive 2012/19/EU of the European Parliament and of the Council of 4 July into Spanish law; it includes updates to Law 22/2011, of 28 July and repeals the former Royal Decree on electric and electronic wastes (hereinafter "WEEE") to overcome the problems identified in its application and include the expertise acquired on this rapidly evolving sector since the publication of this law in 2005.
The need for a new Royal Decree in this field complies with the important changes in the Directive 2012/19/EU of the European Parliament and of the Council of 4 July, as well as the need to improve certain functioning aspects of the WEEE management model that following Royal Decree 208/2005 of 25 February, on electrical and electronic equipment and waste management, had been inadequately developed. It was necessary to address a new standard to set the path to achieve the new objectives and more ambitious and demanding obligations set under the 2012 Directive.
The complexity and diversity of the sectors involved in WEEE management should also be highlighted: these include producers of very different products, different types of waste collection operators and multiple managers involved in WEEE storage and treatment. Under this complex context of operators, the inaccuracies or omissions of the previous legislation led to very different interpretations and applications, and ultimately, to a significant lack of accuracy in the basic criteria applicable throughout the country.
Additionally, the difficulties of the competent authorities to obtain and control complete data on this type of waste should be borne in mind, partly due to the lack of a unique and homogeneous accounting and traceability instrument at a national level on waste collected, recycled, recovered and disposed of.
Finally, in many cases the positive value of this waste or circumstances such as economic crisis, which lead to its uncontrolled management or shipment to developing countries, with cheaper but less demanding treatment criteria, could endanger human health and produce extensive pollution levels, and a loss of raw materials for Europe. Hopefully, tighter EU control on shipments, which is accountable for their regulation, will set the foundations for solving this problem, but to address this issue as a Member State requires the control and traceability instruments this Royal Decree includes. To be effective, these instruments will be completed with inspection and monitoring activities on behalf of competent authorities and with the cooperation and coordination of all the authorities involved (environmental, customs, etc.) as well as connection to different databases that reinforce their activities.
OBJECTIVES OF THE ROYAL DECREE
The Royal Decree has the following immediate objectives: the establishment of a clearer regulation to increase the level of legal certainty and to establish a detailed description of the obligations of users, manufacturers, authorised representatives, importers, distributors and managers; integrate a single control instrument on regional and national WEEE data to identify compliance with the objectives in this field and ensure the traceability and appropriate management of waste; promote re-use and preparation for re-use, encourage the creation of preparation for re-use centres and job creation in this sector; provide reliability and systematise reporting obligations of EEE producers and WEEE managers on the collection and recovery of WEEE throughout the country, ensuring uniformity of WEEE management criteria and market unity; and economically optimize and efficiently manage WEEE under the extended producer responsibility in a framework that ensures competitiveness of EEE manufacturers and WEEE managers.
These challenging goals will be achieved through the definition of a WEEE management model that updates the existing one and guarantees environmental protection while preserving successful elements and avoiding past errors, in order for Spain to efficiently comply with the EU objectives and requirements in this field, optimizing the resources provided by the EEE producers under the extended producer responsibility framework, in the light of sector developments and the type of waste generated.
The most important changes can be summarized under a dual perspective, involving both substantial and institutional changes. From an institutional perspective, the establishment of a Working Group reliant on the Coordination Commission on Waste, which performs under two instruments: an electronic platform (that structures waste information and calculates and ensures its traceability, allowing participation of WEEE-related operators) and an Allocation Office directly managed by EEE producers. It also lays out the possibility of local authorities directly entrusting waste management to EEE producers or WEEE managers.
Innovations from a substantial perspective include the incorporation of distributors as key elements of WEEE collection; regulation of homogeneous technical requirements for waste treatment facilities throughout the country (harmonizing licensing by competent authorities and avoiding market distortions); unification of criteria to authorise collective schemes of extended producer responsibility (especially concerning financial guarantee and data quality); changes in the categories of EEE (to be grouped into 7 categories in comparison to the 10 currently in use); the requirement to large distributors with sales areas larger of at least 400m2 to provide for the recovery of very small WEEE; incorporate the distinction between used EEE and WEEE; and forecast user’s delivery of used equipment to second-hand shops. Finally, it is also important to point out the development and setting up of many of the obligations derived from extended producer responsibility in order to make the schemes organized by producers and authorized by regional government, more efficient, operational, transparent and reliable.
CONTENT OF SPANISH ROYAL DECREE ON WEEE
This new regulation on electrical and electronic equipment and waste management, incorporates the new provisions of EU legislation, identifies the requirements under Law 22/2011, of 28 July, and includes the elements to overcome the shortcomings identified, using a more effective and efficient WEEE management model, enabling Spain to meet EU obligations and fully align with the approach of efficient use of resources and human health and environmental protection.
The development of this Royal Decree is based on the third final provision of Law 22/2011, of 28 July, which authorises the Government to issue the necessary regulations for its development and implementation, and in this particular case, develop the specific legal status for the waste flow of electrical and electronic equipment.
The standard is divided into eleven chapters arranged according to the stages ranging from the onset of electrical and electronic equipment on the market to the collection and management of waste equipment.
The first chapter contains the general provisions. It includes the scope applicable from 15 August 2018, which extends the current scope and modifies the categories of EEE to be grouped into 7 categories in comparison to the 10 currently in use. The definitions include those in the Directive, amongst which we can highlight the explicit inclusion of the concept of the producer performing distance selling through means such Internet, and the definition of authorised representative should the producer be established in another Member State. It comprises other definitions such the "used EEE". The chapter also includes the definition of responsibilities in WEEE production and management. An article on the coordination of WEEE, which foresees a Working Group on WEEE within the Coordination Commission on Waste, is also included.
The second and third chapters are devoted to regulate the obligations of the different operators in the early stages of EEE and WEEE: market placing of EEE, its re-use as used EEE and prevention of WEEE. The fourth chapter focuses on WEEE collection, through all the planned channels and the achievement of the waste collection objectives. The fifth chapter deals with the preparation for re-use and the specific treatment for waste and recovery targets, including the accounting of WEEE shipped out of Spain for recovery. And the sixth chapter is devoted to the shipments of WEEE within Spain and to minimum requirements to avoid shipments of WEEE masked as used EEE shipments.
After the chapters on market placing and management, chapters seven through eleven are devoted to aspects related to permits and communications, to extended producer responsibility of EEE, including obligations, licensing conditions, financing and financial guarantees, the content of this chapter is intended to ensure that the extended producer responsibility schemes are more efficient, operational, transparent and reliable.
The ninth chapter contains the reporting requirements of public administration to the users, other governments and the European Commission. Consumer information is fundamental for the success of waste management; consumers must know how to prevent waste generation and how, if generated, to deliver it. It is also important to report on the relevance of the EEE distributor and producer on WEEE collection and compliance with the obligations derived from this Royal Decree. To achieve all this, joint coordinated reporting actions shall be carried out at state and regional level with the cooperation of manufacturers, distributors and other operators. Chapter ten is also relevant in this Royal Decree, dedicated to the coordination of WEEE and the Working Group on WEEE as a tool for competent authorities to ensure control, information and knowledge on the WEEE management sector and on compliance data regarding separate collection targets and appropriate management of WEEE. The Working Group on WEEE is the instrument with which to fulfil the reporting obligations of the actors mentioned in this Royal Decree.
This group which depends on the Coordination Commission on Waste and acts primarily by means of two instruments: an electronic platform and an allocation office on the collection of waste, which shall provide for the exchange of information on the collection and management of WEEE as well as the appropriate allocation of waste collected and compliance with applicable collection targets. Coordination and supervision by authorities and the functioning of the electronic platform on WEEE management and the allocation office shall be developed by ministerial decree.
The Working Group on WEEE can promote and monitor the appropriate management of WEEE at state level, produce reliable and valid information for all operators and competent authorities and apply the extended EEE producer responsibility in a homogenous, equitable and efficient manner throughout the state within a framework that ensures competitiveness among economic sectors and market unity.
Moreover, in line with the principles of administrative simplification and electronic processing in public administration, the electronic platform of the Working Group on WEEE is set up as the instrument through which to comply with the obligations of the chronological record and the annual report on collection facilities as per with Article 40 and 41 of Law 22/2011, of 28 July.
The financing of the electronic platform of the Working Group on WEEE is foreseen under the reporting obligations and compliance with the objectives of EEE producers in their extended responsibility; in this way they will finance 45% of the platform operation costs and proportionally to their market share. The Ministry of Agriculture, Food and Environment shall assume the remaining financing with the possible participation of the autonomous communities; this will allow an easier data control on behalf of these entities, logically resulting in public financing.
Finally the eleventh chapter regulates the monitoring, control, supervision and sanctions applicable to WEEE management. This chapter regulates actions to control and examine the correct application of this Royal Decree by the competent authorities. It is expected that local authorities establish notification mechanisms for citizens to report on possible breaches of the provisions of this Royal Decree, encouraging citizen participation.
Due to the fact that these waste streams concern different environmental areas, it describes a penalty system covering different regulations such as consumer protection, market unit and public safety protection.
These articles are supplemented with three additional provisions, eleven transitional provisions, a single derogatory, four final derogations and eighteen Annexes.