Higher Regional Court: Lidl must take back electronic waste free of charge

The Koblenz Higher Regional Court (OLG) has ruled in response to a complaint by the German Environmental Aid (DUH): Lidl must take back used small electrical appliances in larger stores free of charge. During test visits by DUH, sales staff at Lidl stores had previously refused to accept small electrical appliances in the form of an old headphone and a charger and cable, which has been required by law for several years.

In 2021, the Bundestag passed the reform of the Electrical and Electronic Equipment Act (ElektroG). This means that food retailers, supermarkets and discount stores with a sales area of at least 800 square meters are obliged to take back electronic devices such as shavers, cell phones or power banks when they are sold. Up to an edge length of 25 cm, the right of return should not depend on whether customers also buy a new device.

Lidl argued that the standard is unconstitutional because it treats food retailers unequally compared to other retailers and thus violates Article 3 of the German Basic Law. For example, drugstores in particular, which also sell electrical goods, are exempt from the take-back obligation for no good reason. The company therefore demanded that the complaint be dismissed or referred to the Federal Constitutional Court or the European Court of Justice (ECJ).

All in the life cycle of electrical appliances covered

Lidl's appeal "was unsuccessful", decided the Higher Regional Court in its recently published ruling from March 11 (case no.: 9 U 1090/24). The Electrical and Electronic Equipment Act serves to implement the directive. The aim is to increase collection rates and improve the environmental performance of all parties involved in the life cycle, including manufacturers, distributors, consumers and those directly involved in the collection and treatment of waste electronic equipment.

The EU legislator has only set minimum standards for this, the judges emphasize. It leaves it open to the Member States to adopt additional provisions on the take-back of electrical and electronic equipment to actually achieve the required collection rates. This is so obvious "that there is no room for reasonable doubt". The ECJ was therefore not called upon.

EU Commission puts pressure on Germany

The OLG also found no violation of the Basic Law. To increase the collection rate, the legislator may take advantage of the fact that consumers regularly visit retailers for their grocery shopping. Grocery retailers also have a product responsibility with their regular, large and profit-increasing range of electrical goods. There is also no arbitrary unequal treatment with comparable sales outlets such as drugstores. In principle, these should also fall under the scope of application of Article 17 ElektroG. Furthermore, the legislator should be allowed further discretion here.

The OLG did not allow an appeal. However, Lidl can lodge an appeal with the Federal Court of Justice. "According to the latest figures from the Federal Statistical Office, Germany only collected 29.5 percent of e-waste in 2023 instead of the legally prescribed 65 percent," commented DUH Managing Director Barbara Metz on the ruling. "Uncomplicated, reliable collection points are a key factor in getting this massive environmental problem under control." The organization will therefore continue to check whether Lidl and other retailers are complying with the law. The EU Commission has initiated the first steps towards infringement proceedings against Germany for persistently falling short of the statutory collection rate for e-waste.

(mma)