Product liability in Austria & Switzerland: All you need to know about rights & obligations pertaining to recycling and waste disposal
Non-compliant products pose a high safety risk and distort competition by breaking the law. In order to lessen these problems, the new Market Surveillance Regulation (EU) 2019/No. 1020 was approved and published on 25 June 2019. In the future, it will lay the groundwork for an enhanced and unified market surveillance of products, whereas today consumers and producers have to deal with a maze of conformity requirements around the EU which exceed the 70 (!) individual regulations and directives. Both the powers of the authorities and the liability of the parties involved will be considerably expanded and implemented in the national legislation of the individual EU-countries.
The risks of being caught committing legal violations and the consequences due to non-compliance will thus be significantly increased. Manufacturers and distributors should therefore take the issue of product compliance seriously and take the necessary precautions in advance to prevent losses and reputational damage to their business due to this new regulation which comes into force in mid-2021. For Switzerland and Austria, the effects are to be highlighted as special examples of this situation and the impact of these changes on product liability is also worth mentioning.
Product liability in Switzerland: special features and news
As a non-EU member, Switzerland is not bound by the EU directives, but it does tacitly adhere to their spirit of said regulations or norms. The Swiss Ordinance on the Return, Take-Back and Disposal of Electrical and Electronic Equipment (VREG) has been in force since July 1, 1998 and has been amended several times since then. Currently, a revision of the VREG is being controversially discussed in Switzerland. The aim is to prevent free-riding (that is, the evasion of paying adequate environmental contributions) by online retailers and vendors in Switzerland. The recycling system for waste from electrical and electronic equipment (WEEE), which is organised by the private sector and is very successful in international comparison with a take-back rate of 95 %, would like to avoid an expected increase in operative and administrative costs.
Online traders, distributors and logistics service providers are included in the extended producer’s liability
Extended producer liability enlarges the circle of responsible market participants and initial distributors to include online traders, distributors and logistics service providers. Here, product liability is expanded to include additional products and device types. For example, as of January 1, 2020 in Switzerland, the fee and equipment list of the SENS foundation was modified and supplemented, and the equipment and categories on which an advance recycling fee (vRG) is levied were revised as well as the amounts charged. The list of categories is very broad and it is divided in 20 product groups at its upper, most-aggregated level, and it must be said that these device classes are not intuitive and thus are not easy to understand and use (e.g., “equipment for the production and processing of materials without rechargeable batteries”).
Since the SENS Foundation is builds the backbone of the recycling and take-back systems in Switzerland, it is safe to expect that new product groups will continue to be added at a fast pace (e.g., partnership with Swissolar also incorporates photovoltaic modules into the SENS system). The use of individual waste management systems is also not free of redundancies or overlaps and leads to a procedure where it is difficult to gain an overview in order to assume the liability for a product in terms of compliance. Here are some examples:
- Batteries are included in the vRG fee/levy for each product/unit sold. “Loose batteries” must be settled directly with INOBAT.
- Fitness equipment ≥ 5 kg pays a vRG fee of CHF 0.56 in general.
- Electrically powered vehicles (e.g., e-bikes, Segways and similar) must be reported directly to INOBAT. INOBAT coordinates the payment of vRG and VEG directly with SENS.
Important difference between vRG and VEG
A distinction is also made between the vRG as an advance recycling fee for electrical appliances and the VEG as an advance disposal fee for batteries. In order to weed out free-riders or those who file inaccurate declarations, individual sectors have started to print the vRG and VEG fees on their invoices (e.g., photovoltaics).
The list of tariffs and devices including the price list of the Sens Foundation is never exhaustive and is continuously being expanded. Even if certain devices are not explicitly included in the list, the Sens Foundation checks imported products from manufacturers for conformity with the VREG.
Product Liability in Austria: Waste Electrical Equipment, Battery and Packaging Ordinances are combined in this country
In Austria, product liability is also directly linked to the Ordinance on Waste Electrical Equipment and the Battery and Packaging Ordinance.
All electrical appliances placed on the market must be marked by the manufacturer/importer with a “crossed-out wheeled bin” in accordance with Articles 12 of the WEEE-Ordinance.
The marking must be clearly visible, recognisable and permanent. In exceptional cases, this marking may also appear either on the packaging, the operating instructions or on the warranty certificate of the electrical appliance.
CE labelling in Switzerland
CE marking is generally not required in Switzerland. However, if the sector-specific legislation in Switzerland mandates a conformity marking, the CE marking can be affixed as an alternative to the Swiss conformity mark. The manufacturer – or his authorised representative – is responsible for affixing the CE marking. By affixing the CE marking as an EU market authorisation mark, the manufacturer declares that the product complies with the applicable requirements and, if a 4-digit identification number is indicated, that an appropriate conformity assessment procedure has been carried out.
CE labelling in Austria
In order for an electrical appliance to be placed on the Austrian market, it must, among other things, also comply with the requirements or specifications of prohibited substances which derived from the ROHS Directive. Corresponding documents, such as the declaration of conformity, must be submitted within the framework of market surveillance. In the event of a violation, a ban on further offering and placing products on the market is to be expected. Market surveillance is usually carried out by the Federal Ministry for Climate Protection, Environment, Energy, Mobility, Innovation and Technology (BMK) in conjunction with the inspection of compliance in adherence to the Packaging and Battery Ordinance.
By using the CE marking, the distributor therefore not only declares that he has ensured that his products meet the usual measures/norms of product safety and product liability, but also confirms to the market surveillance authorities that he complies with the Ordinance on Waste Electrical Equipment, Batteries and Packaging.
In addition to the labelling obligation, Austrian law also requires the provision of information to facilitate the reuse and environmentally sound processing and disposal of WEEE. Manufacturers and importers have to provide such instructions or guidance within one year after placing a new type of equipment on the market.
These shall include information on the components and materials used and the location and nature of the dangerous substances and compounds contained in the equipment. These documents or materials shall be made available to treatment and recycling facilities in the form of manuals or electronically (CD-ROM, online services, etc.).
While the return of WEEE from private households is free of charge at the drop-off points, manufacturers and importers of commercial WEEE are obliged to take this kind of waste back.
The Regulation allows producers to reach alternative arrangements with users for financing the collection or treatment of diverse types of waste. These obligations can also be transferred to a collection and recovery system. However, it is the responsibility of the producer and importer to organise and finance the take-back.