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1. In order to distinguish between used and waste batteries, where the holder, meaning the natural or legal person in possession of the used batteries or the waste batteries, claims that it intends to ship or is shipping used batteries and not waste batteries, that holder shall be required to have available the following to substantiate that claim:

(a) a copy of the invoice and contract relating to the sale or transfer of ownership of the batteries which states that the batteries are destined for direct re-use and that they are fully functional;

(b) evidence of evaluation or testing in the form of a copy of the records, such as the certificate of testing, proof of functionality for every battery or fraction thereof in the consignment, and the protocol containing all information on the record in accordance with point 3;

(c) a declaration made by the holder that none of the material or equipment within the consignment is waste as defined by Article 3, point (1), of Directive 2008/98/EC; and

(d) appropriate protection against damage during transportation, loading and unloading, in particular through sufficient packaging and appropriate stacking of the load.

2. Point 1(a) and (b) and point 3 shall not apply where it is demonstrated by documentary proof that the shipment is taking place in the framework of a business-to-business transfer agreement and that:

(a) the used battery is sent back to the producer or a third party acting on its behalf for repair under warranty with the intention of re-use; or (b) if the used battery is for professional use, it is sent to the producer or a third party acting on its behalf or a third-party facility in countries to which OECD Council Decision C(2001)107/Final on the Control of Transboundary Movements of Wastes Destined for Recovery Operations applies, for refurbishment or repair under a valid contract with the intention of re-use; or (c) if the used battery is for professional use and is defective, it is sent to the producer or a third party acting on its behalf for root cause analysis under a valid contract, in cases where such an analysis can only be conducted by the producer or third parties acting on its behalf.

3. In order to demonstrate that the batteries being shipped constitute used batteries, rather than waste batteries, its holder shall carry out the following steps for testing and record-keeping: Step 1: Testing (a) the battery shall be tested for its state of health and the presence of hazardous substances shall be evaluated;

(b) the results of the evaluation and testing referred to in point (a) shall be recorded. Step 2: Record (a) the record shall be fixed securely but not permanently on either the used battery itself, if the used battery has not been packed, or on the packaging, so it can be read without removing the packaging;

(b) the record shall contain the following information:

— name of the battery or fraction thereof,

— identification number of the battery or fraction thereof, where applicable,

— year of production, if available,

— name and address of the company responsible for testing the state of health,

— types of tests performed for step 1,

— result of the tests performed for step 1, including the date of the tests.

4. In addition to the documentation required in points 1, 2 and 3, every load, for example shipping container or lorry, of used batteries shall be accompanied by:

(a) a relevant transport document; and (b) a declaration of responsibility by the person liable.

5. In the absence of proof that an object is a used battery, and not a waste battery, in the form of the appropriate documentation required in points 1, 2, 3 and 4, and of appropriate protection against damage during transportation, loading and unloading, in particular through sufficient packaging and appropriate stacking of the load, which are the obligations of the holder that arranges the transport, the object shall be considered waste and it shall be presumed that the load comprises an illegal shipment. In such cases, the load shall be dealt with in accordance with Articles 24 and 25 of Regulation (EC) No 1013/2006.