Repic Ltd, R (on the application of) v The Scottish Environment Protection Agency & Anor

Paragraph 4 of Part 4 of Schedule 7 to the Waste Electrical and Electronic Equipment Regulations 2006 requires a producer compliance scheme to have viable plans to collect an amount of WEEE equivalent to the amount for which it is financially responsible. The requirement concerns planned collection, so deliberate plans for substantial over-collection or under-collection breach the approval condition. An accidental shortfall or excess caused by the difficulty of prediction does not breach paragraph 4 where viable plans were implemented. Enforcement authorities retain a broad discretionary judgment as to the appropriate response. Monitoring and warning may be proportionate, and the court will intervene only where the decision is irrational or unreasonable. The Regulations lawfully transpose the WEEE Directive, and evidence-note trading is not inherently inconsistent with it.

The claimant operated a producer compliance scheme under the Waste Electrical and Electronic Equipment Regulations 2006. It alleged that other schemes had intentionally over-collected WEEE, causing it to under-collect and purchase evidence notes to meet its financing obligations.

The claimant sought judicial review of the Secretary of State’s and Environment Agency’s alleged failure to enforce the Regulations against the interested parties. The issues included the interpretation of paragraph 4 of Part 4 of Schedule 7, the compatibility of the Regulations with Directive 2002/96/EC, the legality of evidence-note trading, and whether the authorities’ enforcement decisions were irrational, unreasonable or contrary to European Community law.

1. Interpretation of paragraph 4. Paragraph 4 of Part 4 of Schedule 7 requires viable plans to collect no more and no less WEEE than is necessary to meet the scheme’s financing obligation under regulation 22. Intentional planned over-collection or under-collection breaches paragraph 4. The requirement relates to plans, not necessarily to the precise amount actually collected.
2. Where viable plans are implemented, an accidental over-collection or under-collection caused by the difficulty of predicting the precise obligation does not itself breach paragraph 4. An operator cannot, however, adopt compliant plans and deliberately ignore them without necessity.
3. A breach of paragraph 4 breaches a condition of scheme approval under regulation 43(i), and breach of regulation 43 constitutes a criminal offence under regulation 73(3). A scheme which has actually under-collected may regularise its position by purchasing evidence notes or invoking regulation 39.
4. The Regulations are consistent with Directive 2002/96/EC. The Directive gives the United Kingdom a wide margin in transposition and imposes financial responsibility rather than a direct obligation on producers or schemes to undertake the physical handling of WEEE. Trading in evidence notes is therefore not inherently contrary to the Directive.
5. The Environment Agency’s decisions whether to issue an enforcement notice, prosecute or withdraw approval involved discretionary judgment. Relevant considerations included the circumstances of the case, the evidence, the prospects of challenge, proportionality and the risk that abrupt intervention would disrupt WEEE collection. Monitoring and warning were a proportionate response, and the failure to take stronger action was neither irrational nor unreasonable.
6. The authorities had treated comparable schemes consistently. The claim that the failure to enforce breached the principle of equal treatment therefore failed. Permission to apply for judicial review was granted, but declaratory relief that the defendants had acted unlawfully was refused.

This was a first-instance judicial review in the Administrative Court. No appeal or earlier decision is stated in the judgment.