UK: A WEEE Guide to Business User Responsibility in the UK

Sandra Kilbourne looks at the key implications for UK business users of IT arising under the forthcoming UK implementation of the WEEE Directive.

WEEE and the Average UK Business

The global electronics and IT industry continues to frantically roll out measures to deal with the European Union’s initiatives to regulate the design and disposal of electrical and electronic equipment (EEE). This ‘green’ regime finally started to take effect under member state laws in August 2005.

It may be thought that the new law will not concern the average UK business or office. This is not the case, although the principal burden will rest with producers. If a business is established within the EU and uses electronic equipment, it may also be caught out the minute it procures, replaces or disposes of its IT equipment.

Outline of the WEEE Directive

The underlying WEEE Directive 1 requires producers (and importers) to establish and pay for programs to secure the collection, re-use, recycling and recovery of EEE discarded by households or business users. This is in essence the principle of ‘producer responsibility’. Retailers will also need to establish take-back systems. Most items with an electrical plug or powered by a battery 2 are caught by the Directive, although strictly speaking it should be checked whether the equipment in question is enumerated in the Annexes of the Directive which set out 10 categories of WEEE (covering IT and telecommunications equipment, phones, radios, TV’s, certain lighting equipment, tools, smoke detectors, etc). There are exceptions, exemptions, grey areas (eg, components and industrial manufacturing machinery) and inevitable differences in the national laws and procedures bringing the Directive into effect.

RoHS and REACH regulations

The EU’s green regime of course extends further than WEEE. The RoHS Directive 3 supports the recycling and recovery stages by phasing out the use of certain hazardous substances (principally lead, cadmium and mercury) in EEE imported or manufactured in the EU as from 1 July 2006, thereby avoiding expensive specialist treatment. The proposed REACH Directive 4 would controversially impose a stringent licensing and risk assessment regime for the continuing import or EU production of certain toxic chemicals frequently involved in the manufacture of LCD screens, semiconductor products or other high-tech chemical based inventions. Both of these directives will affect the supply chain and, no doubt, eventual price of products.

Status of Member State Implementation

The deadline for EU wide implementation of the WEEE Directive into national law was set for August 2004. The laws were due to commence this summer, although some member states are still in delay. As for the UK, the Department of Trade and Industry (DTI) announced 5 on 10 August 2005 that producer registration would take place beginning of 2006, with primary producer and retailer responsibility commencing June 2006. The final Regulations are expected to be implemented any day now, although they are still in draft form at the time of writing (September 2005).

Global companies will need to review the position in each member state in which they are operating. The DTI has commissioned a useful summary report of the status of member state implementation (the Perchards Report, available over the DTI’s website and specialist legal advisers and consultants can assist in verifying the precise status of the law and advise on compliance policies.

Impact on Business Users

Why is the WEEE Directive relevant to the average UK business user?

Although the greatest financial and administrative burden will fall to producers, this may end up being translated into a 1 per cent to 4 per cent cost increase on the price of a product, depending on the complexity of such product.

Quite apart from the price of products, a business user will not be able to throw old equipment into the bin or onto a refuse tip if it wants to avoid fines and criminal sanctions. In reality, a business user is unlikely to do so with core IT systems as its IT supplier will be removing old equipment and replacing it in the ordinary course of business. Mobile phone suppliers tend to take back old phones. Sometimes staff will be able to buy used office equipment for their own private use. Finally, some items may end up going to charity (assuming they take electrical equipment).

Less obviously, and somewhat surprisingly, a business user may be directly on the hook for meeting certain targets for the treatment, recovery and recycling of its obsolete equipment. Criminal sanctions could potentially apply, even for failing to keep records and to report compliance to the relevant supervisory authorities.

Liability will depend on whether a business user is the ‘business end user’. According to the DTI (and remembering this is not a legally binding opinion), it will need to be the business holder of the equipment who last uses it in the course of doing its business and who then takes the decision to discard the equipment. Therefore donating it or selling it to staff or to another business would ‘pass the buck’.

The extent of a business user’s potential liability will depend on the final UK Regulations implementing the WEEE Directive. The Directive allowed member states a degree of flexibility in implementing the business user liability regime, and variation on a member state basis is therefore inevitable.

A business user’s responsibility under the current draft UK Regulations depends on two basic variables:

  • Whether the WEEE is ‘historic WEEE’. Was it ‘put on the market’ before 13 August 2005? The point when a product is ‘put on the market’ is a key concept underlying the Directive. ‘Put on the market’ means, according to the European Commission’s Frequently Asked Questions 6, the initial action of making a product available for the first time on the community market, with a view to distribution or use in the community. ‘Making available’ can be either for payment or free of charge. A product is not put on the market if it is transferred to a manufacturer for further assembly. It is however put on the market when it is transferred (legally or by passing possession) from the stage of the manufacturer with the intention of distribution or use on the EU market.
  • Whether an IT Supplier is required to replace the WEEE on a like-for-like basis.

Historic Waste

Where historic WEEE is replaced on a like-for-like basis, the normal rule of producer responsibility will apply. The producer will be on the hook for financing the costs of treatment, recovery and sound disposal of the replaced equipment, irrespective of its make. No primary liability is imposed on business users under law and no charges should, in theory, arise where an IT supplier offers to take back refreshed equipment. But what is ‘like-for-like’? Non-binding DTI guidance (July 2004) suggests that the replacement equipment must have essentially the same function as that which it replaces. This could arguably include replacement by fewer units but with improved functionality.

Where WEEE is, however, not replaced on a like-for-like basis, the basic rule for the disposal of historic waste is reversed. The business user will be responsible for:

  • collection, treatment, recovery and environmentally sound disposal;
  • ensuring treatment facilities are authorised by the regulators;
  • meeting recovery and recycling targets (at least in theory);7 and
  • recording, and reporting to the relevant authorities (either the DTI or the Environment Agency) on compliance with such targets.

This may well be a surprising fact. Most businesses will not have introduced procedures to cover these legal requirements, and the delay to the application of the UK Regulations to June 2006 may just offer the breathing space required. This responsibility is primary, and cannot be contracted out of. A business may choose to sub-contract performance to a specialist firm and probably find the service being increasingly offered and individually itemised and charged by an IT supplier. A business should take care to check that the services in fact cover its primary responsibilities in law and indemnities for breach are negotiated.

Non-Historic Waste

The default position for equipment ‘put on the market’ after August 2005 is reversed and primary producer responsibility will apply to all WEEE disposed of by businesses. This includes responsibility for financing the collection, treatment, recovery and environmentally responsible disposal of such WEEE.

Caution must be exercised, however, if the parties enter into an ‘alternative arrangement’ to provide for the costs of financing the collection, treatment, recovery and environmentally sound disposal of WEEE, as this would have the effect in law of shifting the producer’s responsibility on to the customer. It is not altogether clear whether this applies also where the parties agree to share the costs. It is also not certain whether this arrangement would have to be with the full knowledge of the business user. One can imagine a situation where the supplier includes charges in the agreement in respect of these WEEE costs without highlighting this fact sufficiently. In effect, this could qualify as an alternative arrangement in which a business agrees to pay for WEEE costs that would otherwise fall to the producer.

The importance of this is that by entering into an alternative arrangement, a business will automatically inherit the numerous other primary responsibilities that are also associated with historic WEEE which is not replaced (see above).

Legal advice should be sought to ensure the primary supply contract is clear on this point and does not inadvertently impose these responsibilities on the unwitting business end-user.

Even sub-contracting the performance of these obligations to specialist WEEE disposal agencies will not remove the primary liability of a business under law. These sub-contracts would therefore need careful reviewing.

Tip of the Iceberg

Spare a moment of thought for producers and retailers. The draft Regulations as well as additional obligations under RoHS laws, REACH (in future), and other green initiatives are having a fundamental impact on the life-cycle management of producers and retailers alike. Rolling out European wide (and indeed global) compliance schemes are complex projects at the best of times, without having to deal with discrepancies in national interpretations of the Directives and grey areas in member state laws. Most global producers importing into, or established within, the EU have been working on compliance programmes for years and it is only recently that any measure of ‘market practice’ is starting to emerge, at least with global players. Compliance across Europe is principally sought in the medium term by joining national or pan-national compliance schemes which fulfill the majority (and sometimes all) of the obligations under the WEEE legislation for their members.

On a practical side, the whole scheme will need to be enforced, and not just in the UK. It is currently not wholly clear how the UK will fund the resources and channels needed to enforce the regulations in cross-border supply or US import arrangements, for example. Clearly, further DTI guidance is desirable in this area.

Accounting Issues

Looking at the UK proposals, it can be appreciated that producers and business users alike will need to implement careful accounting measures that have regard to the potential asset retirement costs associated with historical waste.

US companies importing or selling products in the EU as ‘producers’ will be looking to the Financial Accounting Standard Board (FASB) which recently published a Staff Position (FAS 143-1, 8 June 2005) suggesting appropriate accounting procedures for historic WEEE (although it may in future need to address contingent liability for non-historic WEEE in case of ‘alternative arrangements’).


According to the DTI, enactment of The Waste Electrical and Electronic Equipment (Producer Responsibility) Regulations 2005 is imminent and this will also finally verify the UK position with respect to responsibilities of business end users in relation to WEEE.8

In the meantime, the DTI’s announcement of a further delay to the implementation of the new law will give UK business users much needed time to prepare. Over the course of the coming few months, businesses around the UK will need to put in place the appropriate procedures, know-how and contracts to deal with their primary obligations, if they want to avoid the criminal sanctions and fines imposed by law. IT Directors, procurement teams and legal counsel alike will no doubt want to review forthcoming and existing IT supply and outsourcing contracts (particularly those with equipment refresh obligations) to ensure they are adequately protected.

Further information:

  • Further information on the REACH Directive is available on
  • We have prepared checklists, advisory presentations and documentation for our clients to assist in this area (contact Sandra Kilbourne in our London office).


1. Directive 2002/96/EC of the European Parliament and of the Council of 27 January 2003 on waste electrical and electronic equipment (WEEE), as amended by Directive 2003/108/EC of the European Parliament and of the Council of 8 December 2003.

2. ‘EEE’ means, under the draft UK Regulations, ‘equipment which is dependent on electric currents or electromagnetic fields in order to work properly and equipment for the generation, transfer and measurement of such currents and fields falling under the categories set out in Sch 1 to the Regulations, and designed for use with a voltage rating not exceeding 1000 Volt for alternating current and 1500 Volt for direct current.’

3. Directive 2002/95/EC of the European Parliament and of the Council of 27 January 2003 on the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment.

4. Proposal for a Regulation of the European Parliament and of the Council concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency and amending Directive 1999/45/EC and Regulation (EC) on Persistent Organic Pollutants.

5. On 10 August. Refer to

6. See (1.5 Mb)

7. See para 121 of the draft DTI guidance (published by the DTI on 30 July 2004 alongside the draft WEEE Regulations and available through the DTI website) which seems to suggest this.

8. The DTI has in fact recently published the RoHS Regulations 2005. See:

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.