This article demonstrates the need for and the limits of the so‐called comitology procedure in the area of European waste legislation, using the example of Directive 2002/95/ EC on the restriction of the use of certain hazardous substances in electrical and electronic equipment (the RoHS Directive). The RoHS Directive prohibits the use of six hazardous substances in certain electrical and electronic equipment. The Annex to the RoHS Directive, which contains the exemptions from this prohibition, can be amended through the comitology procedure. This procedure is a widely used method in European Community law for the delegation of legislative power from the Council and the European Parliament to the executive branch, i.e. the European Commission. The authors conclude that the use of comitology is indispensable for highly technical issues for which the co‐legislators are lacking the time, as well as the resources, to carry out the adaptation of the legislative acts. However, the Commission needs to handle comitology with care; otherwise it runs the risk that its decisions lack legitimacy.

The article deals with the interaction of the Waste Electrical and Electronic Equipment (WEEE) Directive and the Waste Shipment Regulation, insofar as they both regulate shipments of waste electrical and electronic equipment. While the number of such shipments is increasing rapidly, there is widespread uncertainty among companies and enforcement authorities concerning the interpretation of some of the relevant provisions. In particular, the borderline issues linked to the definition of ‘waste’ and the distinction between ‘waste’ and ‘product’ seem to cause difficulties that could be exploited by companies disguising their waste as ‘products’ to circumvent EU rules on waste management. Furthermore, the correct classification of waste is not always obvious, which provides for uncertainty as far as the applicable control procedure is concerned. This article analyses the regulatory and non‐regulatory steps taken at both European and national levels towards more clarity. It concludes by calling for more coordination at European level in relation to enforcement activities. Furthermore, companies must take a more proactive stance when designing their take‐back and waste management plans.

By its judgment of 1 April 2008, the European Court of Justice annuls Commission Decision 2005/717/EC exempting deca BDE from the use restriction under the ROHS Directive 2002/95/EC. The Court states that by not complying with the formal conditions of Article 5 (1) (b) of the Directive, the Commission exceeded its implementing powers. As the Court finds that the Commission failed to respect these formal conditions, it does not need to address the pleas of the applicants relating to more fundamental questions regarding risk assessment and risk management under comitology. The authors put this judgment in the broader context of risk regulation on both sides of the Atlantic, and close with an outlook on risk regulation under the new comitology rules introducing regulatory procedure with scrutiny.