EXPLANATORY MEMORANDUM
1.CONTEXT OF THE DELEGATED ACT
This Commission Delegated Directive amends, for the purpose of adapting to technical progress, Annex III of Directive 2011/65/EU of the European Parliament and of the Council on the restriction of the use of certain hazardous substances in electrical and electronic equipment (recast) 1 (RoHS 2) as regards an exemption for specific applications containing lead.
RoHS 2 restricts the use of certain hazardous substances in electrical and electronic equipment. RoHS 2 entered into force on 21 July 2011.
The restricted substances are listed in Annex II to RoHS 2; while the restriction of lead, mercury, cadmium, hexavalent chromium, polybrominated biphenyls, and polybrominated diphenyl ethers is being enforced to date, the restriction of bis(2ethylhexyl) phthalate (DEHP), butyl benzyl phthalate (BBP), dibutyl phthalate (DBP), diisobutyl phthalate (DIBP) shall be applied from 22 July 2019. Annexes III and IV to RoHS 2 list the materials and components of electrical and electronic equipment (EEE) for specific applications exempted from the substance restriction of RoHS 2 Article 4(1).
Article 5 makes provision for the adaptation to scientific and technical progress (inclusion, renewal, amendments and deletion of exemptions) of Annexes III and IV. Pursuant to Article 5(1)(a), for exemptions to be included in Annexes III and IV, it has to be provided that such inclusion does not weaken the environmental and health protection afforded by Regulation (EC) No 1907/2006 and where any of the following conditions is fulfilled: their elimination or substitution via design changes or materials and components which do not require any of the materials or substances listed in Annex II is scientifically or technically impracticable; the reliability of substitutes is not ensured; or the total negative environmental, health and consumer safety impacts caused by substitution are likely to outweigh the total environmental, health and consumer safety benefits thereof.
Furthermore, Article 5(1) provides that the European Commission (the Commission) shall include materials and components of EEE for specific applications in the lists in Annexes III and IV by means of individual delegated acts in accordance with Article 20. Article 5(3) and Annex V establish the procedure for submitting applications for granting, renewing, or revoking an exemption.
2.CONSULTATIONS PRIOR TO THE ADOPTION OF THE ACT
As a consequence of the provisions in Article 5(3) and Annex V which allows stakeholders to apply for an exemption from the substance restrictions, since the publication of RoHS 2 the Commission has received numerous 2 requests for both granting new and renewing existing exemptions.
On 11 November 2014 the Commission received an application for renewing exemption 13(a) of Annex III in relation to the use of lead in white glasses used for optical applications.
With a view to evaluating the application for exemption, the Commission launched a study to carry out the required technical and scientific assessment, including an eightweek online openended 3 stakeholder consultation 4 on the application. No contributions were received during the stakeholder consultation.
The final report containing the assessment of the application was published 5 ; stakeholders were notified. The project page is accessible via the Europa webpage 6 .
Subsequently, the Commission consulted the Member States expert group for delegated acts under RoHS 2. An amendment proposal of RoHS 2 Annex III was sent out on 17 March 2016 with all necessary background information, and experts were invited to comment on the proposal at the meeting of 19 April 2016. The expert group unanimously supported the proposal to exempt lead in white glasses used for optical applications for five years from the original expiration date of the exemption 13(a). All necessary steps pursuant to Article 5(3) to (7) have been performed. Council and Parliament were notified of relevant activities.
The final report highlighted in particular the following technical information (see report in footnote 5):
Lead-based glasses are used because they have unique combinations of properties and characteristics, such as light transmission performance, optical dispersion, thermal conductivity, birefringence and others.
Lead-free optical glasses of alternative designs exist in the form of lead-free glass, plastic lenses and alternative equipment design. Nonetheless, those alternatives cannot provide for several properties and their combinations comparable to lead-based glasses.
Where finding substitutes was relatively straightforward, this has already occurred and substitutes are being used. Alternatives for the remaining applications are still not available. Thus substitution for the full application range is not possible in general.
The evaluation results for categories 1 to 7 and 10 show that at least one of the relevant criteria specified in Article 5(1)(a) is met by the exemption request relating to entry 13(a) in Annex III when formulated as "Lead in white glasses used for optical applications", and the renewal is thus justified. Since, for the applications concerned, no sufficiently reliable alternatives are available today or are likely to come to the market soon, and considering the typical innovation pace of the sector, the five-year validity period of the exemption is not expected to have adverse impacts on innovation. For categories other than categories 1 to 7 and 10, the existing exemption remains as per the validity periods set out in Article 5(2). The specific exemption does not weaken the environmental and health protection afforded by Regulation (EC) No 1907/2006 (REACH) in accordance with Article 5 of Directive 2011/65/EU.
3.LEGAL ELEMENTS OF THE DELEGATED ACT