Recently a decision of the district court in Dessau-Roßlau was published (EUWID Ref No 35 dated 25.08.2009, p. 7) maintaining a penalty amounting to 22,500 Euros on the part of a supplier pursuant to the Electrical and Electronic Equipment Act due to being charged for inapplicable registration. The publication gives cause to point out that the decision is not final and that it is necessary to clarify several legal questions with regard to offences against the Electrical and Electronic Equipment Act by means of an appeal procedure.
Subject of the procedure is the sale of devices of different manufacturers by one authorized dealer. The authorized dealer required written commitments by all manufacturers in which they confirmed to comply with the regulations of the Electrical and Electronic Equipment Act regarding obligations, identification and supporting documents, e.g. the brand-related registration. Furthermore, each manufacturer was obliged to indicate the registration number assigned to him. The devices were offered for sale on the Internet pages of the authorized dealer. The Umweltbundesamt (UBA) (=Federal Environmental Agency) checked the offers with the indicated brand names and determined that although all manufacturers were registered, some indications of the used brands were missing. Moreover, the Federal Environmental Agency determined that in the case of a rice cooker, a radiant heater for baby changing unit and a chocolate fountain the type of device "small household appliance" was indicated instead of "large household appliance" which would have been more appropriate in its opinion. The Federal Environmental Agency issued a penalty notice amounting to 120,000 Euros referring to the regulations regarding the economic benefit achieved in this respect.
The district court Dessau-Roßlau reduced the penalty to 22,500 Euros, since it partially negated the accusation against the concerned dealer and furthermore his objections against the determination of the economic benefit carried out by the Federal Environmental Agency.
With regard to the appliances "rice cooker", "radiant heater for baby changing unit" and "chocolate fountain" the classification as "small household appliances" instead of "large household appliances" which entailed the wrong registration was not perceptible to the concerned dealer in the opinion of the district court in Dessau-Roßlau. The opinion of the Federal Environmental Agency which is based on the Annex to the Electrical and Electronic Equipment Act thus considerably deviates from the general usage that registration errors might under the circumstances of the case not be culpable.
From the point of view of the concerned company the decision is certainly a step in the right direction. However, the penalty is doubtful for several other reasons:
- Is it really justified to equate manufacturers without any registration whatsoever with those manufacturers who have only made a registration error regarding the relevant brands and types of appliances according to the prevailing opinion?
- Can a dealer be expected to check whether this supplier is fully registered including the corresponding brands and types of appliance by examining the entries in the EAR system (despite the multitude of technical difficulties which may occur)?
- Does this also apply if the dealer has pointed out the obligations of the manufacturers as per the Electrical and Electronic Equipment Act to his suppliers and if he has obtained written statements regarding the compliance with all relevant obligations of the Electrical and Electronic Equipment Act?
- Is it compatible with the principles of the penalty proceedings in general and with the regulations of the Electrical and Electronic Equipment Act in particular (with the focus of the responsibility for the product lying with the manufacturers) that the pursuing authority charges the authorized dealer with a penalty instead of the original manufacturer -since the dealer is obviously easier to detect because his range of products is visible in the online shop?
The Higher Regional Court Naumburg will have to deal with the mentioned legal questions in the second instance. The point in time for the appeal decision is not yet foreseeable.
Author:
Attorney and specialist solicitor for administrative law Dr. Holger Jacobj, Kanzlei Prof. Versteyl (Burgwedel), Area of main emphasis: Electrical and Electronic Equipment Act, Waste and Soil Conservation Act.
Contact:
Phone: 0049-5139-98950, Website: www.versteyl.de, Email: holger.jacobj@versteyl.de
