From a recent draft legal article........
Please dont ask me any questions!
Kay

*********
E Marking	
The WEEE Directive provides for two marking requirements, one a 'crossed
out wheeled bin' , and another that is being prepared by the
standardization committee - European Committee for Electrotechnical
Standardization (CENELEC). Standardization is highlighted by the
Commission as one possible root for implementing IPP.  environmental
product policy. Here I highlight issue of legal certainty and validity
of such an approach. 

Article 11(2) deals with information for treatment facilities.  It
provides for a similar but separate marking requirement to that provided
for in Article 10(3), that is marking requirement for a crossed out
wheeled bin on most electrical and electronic products.  The simple
option of just using the same crossed out wheeled bin was rejected as
some companies already mark some of their products with the crossed out
wheeled bin. .  

The Commission provided CENELEC with a mandate to make a recommendation
for a standard to fulfill the Article 11(2) requirements.  The Draft
Recommendation,  which is set to be adopted under the voluntary
standardization procedure is set to be adopted by the end of 2004. 

The CENELEC standard provides for a mark to identify the producer and
when the product is put on the market as required under Article 11(2).
More sensitive matter, from a legal viewpoint, is that CENELEC standard
also contains an  'Exemption from the Marking Requirement.'  Clause 4(3)
of the Draft Recommendation makes provisions for an exemption from the
marking mandate. First it sets out conditions for being exempted, they
are: Size and Functionality.

If a producer meets one of these two criteria the marks (date and
producer) can be put on: 
        i)     On the flag on the fixed supply cord (if any), and
       ii)    Operating instructions and warranty certificates; or
       iii)   Mark on packaging

Whilst this may be practical it is not legal. There is confusion with a
mistaken view that the limited derogation in Article 10(3) for marking
not to be on the products is imported into Article 11(2). There is no
such provision.
 
More simply the WEEE Directive does not provide for an exemption to the
requirement for 'a mark on the appliance'. The Council and European
Parliament called for 'a mark on the appliance' covered by the
Directive. This wording is too clear. No provision is made for
exceptions to the marking requirement like that provided in Art 10(3).
If the co-legislators had intended that they would have said that.  

Second, Article.11 (2) requirement runs in conjunction with Article 8 on
the 'Financing in respect of WEEE from private households'.  Art.8 (2)
provides: 'For products put on the market later than 13 August 2005 ....
Member States shall ensure that each producer provides a guarantee when
placing a product on the market showing that the management of all WEEE
will be financed and that producers clearly mark their products in
accordance with Article 11(2).'

It would appear that Art.11 (2) marking requirement is key to ensure
that the individual finance approach taken for products put on the
market after 13 August 2005 works. An individual finance approach
requires products to be marked so the producer can pay for new WEEE. 

Third, a key part of the provision is beyond the powers of the WEEE
Directive, and should not have been inserted into the standard. Whilst
compliance with the standard' provides a presumption of conformity with
the Directive.  There is a presumption of conformity, were, legally none
exists.

The matter could be resolved if the Commission adopts a Decision on the
marking requirement to comply with Article 11(2) that complies with
Article 11(2). The Commission however sees their role as to promote 'a
recommendation'. So, a European standard contrary to the Directive is
set to be adopted by the end of 2004. 

The standard has the force of law in most Member States as their
implementing measures refer to the standard as providing 'a presumption
of conformity' with the Directive. Whilst this presumption can be
refuted by adding another mark, this is a costly and time consuming
path, which in the meantime, would prevent a product being brought onto
the market.  So by fact of circumstance, the standard becomes binding.

-----Original Message-----
From: Leadfree [mailto:[log in to unmask]] On Behalf Of MA/NY DDave
Sent: 14 January 2005 06:24
To: [log in to unmask]
Subject: Re: [LF] WEEE labeling requirement


Hi Dan, Ms Good, IPC LF Listservers,

Dan, I am going to break up your short concise note.

>Interesting interpretation.
>However, article 11 (2) only addresses the date code requirement.

Dan, Read article 11 (2) again. It clearly states more than a date code
is
needed. i.e it indicates another symbol is needed.
"Further-more - - - " and that "unequivocally" word


<Article 10 addresses the wheelie bin and clearly states:
>....States shall ensure that producers appropriately mark electrical
and
>electronic equipment put on the market after 13 August 2005 with the
symbol
>shown in Annex IV

OK Dan, I am losing to YOU BIG TIME on Article 10 (3).
 It seems that CENELEC EN 50419 isn't the be all and end all of WEEE
labelling and that everything really comes back to this WEEE Directive
and
Article 10 not 11. Recycling centers covered under 11 and by EN 50419
seem
to be helping them do a better job recovering WEEE.

DANG I guess this means we need this marking symbol on all products.
When
the product is too small or ??? it goes on the packaging.

========= Comment =======
Recycling in Massachetts (USA-MA) is really horrible. The best of the
best
list their success at about <37% and the government officials have great
difficulty moving the citizenry to recycling. I wonder about Europe..

So this might be why, for certain product EN 50419 exists.
==========================



>-----Original Message-----
>From: Leadfree [mailto:[log in to unmask]]On Behalf Of MA/NY DDave
>Sent: Thursday, January 13, 2005 2:05 AM
>To: [log in to unmask]
>Subject: Re: [LF] WEEE labeling requirement
>
>
>Hi Dan, Todd, Camille, IPC LF Listservers,
>
>Well I am sitting and reading parts of the Directives again and from
what I
>can read your example doesn't exactly apply.
>
><One question I have raised relates to multi-component products, such
as a
>corded telephone.  Does it need to be marked on the base unit AND the
>headset????>
>
>
>Article 11 (2) uses the word "appliance"
> and in
>Annex 1B  only (1) and (2) categories use the word appliance
>
>SO Bose Boxes Annex 1B (4) don't need the mark.
>and telephones Annex 1B (3) don't need the mark.
>
><----------
>NOW this doesn't make sense to me, yet that is how WEEE reads.
> Best be safe would be my advice.
><----------
>
>Of interest is that the same CENELEC working group is considering RFID
tags
>in WEEE electrical and electronic appliances. I forgot this from the
last
>time I went looking at this site after a note from Extreme-EdBurke
>
>Yours in Engineering, Dave
>YiEngr, MA/NY DDave
>
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