(1)

Directive 2012/19/EU of the European Parliament and of the Council (3) entered into force on 13 August 2012, and replaced Directive 2002/96/EC of the European Parliament and of the Council (4).

(2)

Photovoltaic panels, which did not fall within the scope of Directive 2002/96/EC, were included within the scope of Directive 2012/19/EU as from 13 August 2012, by means of their inclusion in category 4 of Annexes I and II, as referred to in Article 2(1), point (a), of Directive 2012/19/EU.

(3)

Article 13(1) of Directive 2012/19/EU provides that Member States are to ensure that producers of electrical and electronic equipment (EEE) bear the costs for the collection, treatment, recovery and environmentally sound disposal of waste EEE (WEEE) from users other than private households resulting from products placed on the market after 13 August 2005.

(4)

On 25 January 2022, the Court of Justice of the European Union (the ‘Court’), in its judgment in Case C-181/20 (5), declared Article 13(1) of Directive 2012/19/EU to be invalid in so far as it concerns photovoltaic panels placed on the market between 13 August 2005 and 13 August 2012, by reason of non-justified retroactive effect. The Court held that, prior to the adoption of Directive 2012/19/EU, the Union legislature left Member States the choice of requiring the costs relating to the management of waste from photovoltaic panels to be borne by current or previous waste holders or by the producer or distributor of the photovoltaic panels, pursuant to Article 14 of Directive 2008/98/EC of the European Parliament and of the Council (6). Subsequently, the Union legislature established a rule, in Article 13(1) of Directive 2012/19/EU, under which those costs are to be borne by producers in all Member States, including in relation to products which the producers had already placed on the market at a time when Directive 2008/98/EC was in force. The Court held that that rule must be regarded as applying retroactively, and is therefore liable to infringe the principle of legal certainty, and that such retroactivity invalidates it as regards photovoltaic panels placed on the market prior to the entry into force of Directive 2012/19/EU.

(5)

The Court also held in its judgment that the fact that a Member State adopted legislation contrary to a Union directive prior to the adoption of that directive does not constitute, in itself, a breach of Union law, since the achievement of the result prescribed by the directive cannot be regarded as seriously compromised before the directive forms part of the Union legal order.

(6)

The Court’s judgment directly implies that Article 13(1) of Directive 2012/19/EU should be amended so that it does not apply with regard to waste from photovoltaic panels from users other than private households placed on the market between 13 August 2005 and 13 August 2012. Furthermore, in light of the considerations set out in the Court’s judgment, it is necessary to amend Directive 2012/19/EU also in relation to the financing of waste from photovoltaic panels from private households to which Article 12 of Directive 2012/19/EU applies, and in relation to other EEE, regarding waste both from private households and from users other than private households, which is in a position comparable to that of photovoltaic panels.

(7)

Article 2(1), point (b), of Directive 2012/19/EU extends the scope of application of that Directive to all EEE as from 15 August 2018. Similarly to photovoltaic panels, EEE which did not fall within the scope of Directive 2012/19/EU pursuant to Article 2(1), point (a), thereof but which fell within its scope as from 15 August 2018 pursuant to Article 2(1), point (b), thereof (‘open-scope EEE’) had previously also not been included within the scope of application of Directive 2002/96/EC. Therefore, prior to the adoption of Directive 2012/19/EU, Member States were left, pursuant to Article 14 of Directive 2008/98/EC, the choice of requiring the costs relating to the management of waste from that EEE to be borne by current or previous waste holders or by the producer or distributor of that equipment. Therefore, applying Article 13(1) of Directive 2012/19/EU to open-scope EEE would be, for the reasons set out in the Court’s judgment, contrary to the principle of legal certainty. Furthermore, as Directive 2012/19/EU includes open-scope EEE only as from 15 August 2018, Article 13(1) should be amended in such a way as not to apply to open-scope EEE placed on the market between 13 August 2005 and 15 August 2018.

(8)

As a mirroring provision of Article 13(1) of Directive 2012/19/EU, which applies in respect of users other than private households, Article 12(1) of that Directive read in conjunction with Article 12(3) thereof imposes the financing of the costs for the collection, treatment, recovery and environmentally sound disposal of WEEE from private households on producers with regard to products placed on the market later than 13 August 2005. For the reasons set out in the Court’s judgment, in so far as those provisions apply to the financing of those waste management costs for photovoltaic panels placed on the market between 13 August 2005 and 13 August 2012 and to open-scope EEE placed on the market between 13 August 2005 and 15 August 2018, they would equally apply retroactively in a way that is contrary to the principle of legal certainty. Therefore, Article 12 of Directive 2012/19/EU should be amended in such a way as to not apply to photovoltaic panels placed on the market between 13 August 2005 and 13 August 2012 or to open-scope EEE placed on the market between 13 August 2005 and 15 August 2018.

(9)

Directive 2012/19/EU supplements Directive 2008/98/EC, which is one of the general waste management legislative acts in the Union. Articles 8 and 14 of Directive 2008/98/EC therefore apply to the management of waste from photovoltaic panels and of waste from open-scope EEE for the period when photovoltaic panels and open-scope EEE do not fall within the scope of Directive 2012/19/EU by virtue of the amendments to Articles 12 and 13 thereof by this Directive.

(10)

Article 14(4) and Article 15(2) of Directive 2012/19/EU provide for EEE placed on the market to be marked, preferably in accordance with the European standard EN 50419, which was adopted by Cenelec in March 2006. That standard has been revised in order to update the references it contains to Directive 2012/19/EU. The reference to the standard in those articles should therefore be updated to refer to the revised version of the European standard EN 50419, which was adopted by Cenelec in July 2022.

(11)

Article 15(2) of Directive 2012/19/EU provides that, in order to enable the date upon which the EEE was placed on the market to be determined unequivocally, Member States are to ensure that a mark on the EEE specifies that the EEE was placed on the market after 13 August 2005. Consequent to the amendments to Articles 12 and 13, Article 15(2) should be amended with respect to photovoltaic panels and open- scope EEE, so that it clarifies that the marking obligation applies only from 13 August 2012 in relation to photovoltaic panels and only from 15 August 2018 in relation to open-scope EEE.

(12)

In order to maintain the principle of legal certainty in future revisions of Directive 2012/19/EU, it is important to pay particular attention to preventing the adoption of any provisions that could potentially have unjustified retroactive effects. In addition, it is necessary to give clarity and predictability to EEE producers with regard to the operating conditions that were in effect when their products were placed on the market. That approach helps to avoid the risk of incurring unpredictable costs associated with future WEEE management. Furthermore, it is important that such revisions respect the waste hierarchy as laid down in Article 4 of Directive 2008/98/EC.

(13)

In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents (7), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified.

(14)

Unsound treatment of waste from photovoltaic panels and of waste from open-scope EEE leads to significant adverse impacts on health and on the environment. It is therefore important to ensure proper treatment of waste from photovoltaic panels and to maximise the recovery of waste from photovoltaic panels. Without prejudice to the changes to the financial obligations that are necessary to cover collection and treatment of waste from photovoltaic panels placed on the market before 13 August 2012 and of waste from all open-scope EEE placed on the market before 15 August 2018 introduced by this Directive, it is important that Member States ensure the environmentally sound management of related WEEE. Member States could encourage producers, through their individual or collective extended producer responsibility schemes, to properly collect and treat the related historical waste from photovoltaic panels and from open-scope EEE.

(15)

When revising Directive 2012/19/EU, and addressing its shortcomings, it is crucial to ensure that the costs of managing WEEE are not disproportionately transferred to consumers or citizens. This includes taking into consideration the ‘polluter pays’ principle, addressing potential provisions pertaining to WEEE collection targets and adherence to the waste hierarchy as laid down in Article 4 of Directive 2008/98/EC.

(16)

Since the objectives of this Directive cannot be sufficiently achieved by the Member States but can rather, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives,

(1)

the following article is inserted:

(2)

Article 12 is amended as follows:

(3)

in Article 13, paragraph 1 is replaced by the following:

(4)

in Article 14, paragraph 4 is replaced by the following:

(5)

in Article 15, paragraph 2 is replaced by the following: