The High Court said, though, that the Government and Waste
Electrical and Electronic Equipment (WEEE) Regulations enforcement
body the Environment Agency did not unlawfully fail to take action
over the behaviour.
The European Union's WEEE Directive orders producers of
electronic and electrical goods to pay for their collection and
disposal. They can do so directly but more commonly do so through
compliance schemes, which are essentially collection co-operatives.
The Directive came into force in the UK through the WEEE
Regulations.
Two of the UK's compliance schemes, Electrolink Recycling and
WERC, deliberately collected more waste than their members
produced. They then sold 'evidence notes' of that collection to a
third scheme, Repic, so that it could demonstrate compliance with
the Regulations.
Repic said that it was offered evidence notes at 'ransom
prices', and that deliberate over-collection broke the
Regulations.
It took a court case claiming that the Environment Agency acted
unlawfully by failing to take action under the Regulations against
the two schemes.
The High Court said that the Environment Agency was within its
rights to monitor the activity rather than take direct action, and
that the Agency was clearly still considering action. It said that
the Agency did not act unlawfully.
The Court did say, though, that Repic was right to maintain that
planned, deliberate over-collection breached a section of the
Regulations.
The Regulations order that "the operator of the proposed scheme
or scheme has viable plans to collect an amount of WEEE that is
equivalent to the amount of WEEE for which it will be responsible
for financing under these Regulations".
Repic argued that this means that schemes must refrain from
over-collection as well as under-collection of waste materials.
"[Repic] alleges that as a consequence of their activities …
[it] was unable to collect sufficient WEEE in order to comply with
its obligation," said the ruling. "Accordingly it claims that it
was forced to purchase evidence notes from [Electrolink and WERC]
so that it could make appropriate declarations of compliance in
respect of that compliance period. In its evidence [Repic] asserts
that the purchase of evidence notes was undertaken at 'ransom
prices'."
Electrolink and WERC argued that to say that over-collection was
barred by the Regulations was to place too much interpretation on
the word 'equivalent' in the Regulations.
The Court disagreed. "The use of the word is intended to ensure
that a producer compliance scheme has viable plans to collect no
more and no less than is necessary to meet its obligation under
Regulation 22," it said. "If it does not have viable plans to
collect a sufficient amount of WEEE a breach of paragraph 4 will be
established. If its plans for collection envisage over-collection
there will be a breach of paragraph 4."
The Court stressed, though, that this section of the Regulations
related only to the schemes' plans. If it planned for
over-collection it was in breach. If it did not plan for
over-collection and tried to stick to those plans but in fact did
over-collect then there would be no breach, the ruling said.
When deciding whether or not the authorities had broken the
Regulations by failing to take action on Electrolink and WERC's
planned over-collections, Mr Justice Wyn Williams said that the
action taken was within the Environment Agency's powers of
discretion.
"[The Environment Agency] has made clear both to [Repic] and all
other producer compliance schemes that it considers intentional
over and under-collection of WEEE to be in conflict with paragraph
4 of Part 4 of Schedule 7 of the Regulations," he said. "That has
been its unequivocal position since April 2008 at the latest."
"In my judgment [the Environment Agency] was entitled to reach
the conclusion that a process of monitoring and warning (a process
which it adopted throughout 2008) was a proportionate response to
the problem of over and under-collection," the ruling said.
Mr Justice Wyn Williams also said that Repic's claim that the
reason it could not collect enough waste to meet its targets was
because of the other schemes' over-collection was not
realistic.
"It is too simplistic, in my judgment, to proceed on the basis
that because there was over-collection by some producer compliance
schemes there was a consequent and resultant under-collection by
others. I suspect that the commercial realities are much more
complicated," he said.
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