EXPLANATORY MEMORANDUM
1.CONTEXT OF THE DELEGATED ACT
This Commission Delegated Directive amends, for the purpose of adapting to technical and scientific progress, Annex III to 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) (the RoHS Directive). The amendment concerns an exemption for specified applications containing mercury in single capped (compact) fluorescent lamps for special purposes.
The RoHS Directive restricts the use of certain hazardous substances in electrical and electronic equipment (EEE), as specified in Article 4. Ten substances are currently restricted and listed in Annex II to the Directive: lead, mercury, cadmium, hexavalent chromium, polybrominated biphenyls (PBB), polybrominated diphenyl ethers (PBDE), bis (2‑ethylhexyl) phthalate (DEHP), butyl benzyl phthalate (BBP), dibutyl phthalate (DBP) and diisobutyl phthalate (DIBP). Annexes III and IV list the EEE materials and components for specific applications that are exempt from the substance restrictions laid down in Article 4(1).
Article 5 of the Directive provides for the adaptation Annexes III and IV to scientific and technical progress, which can include granting, renewing and revoking exemptions.
Pursuant to Article 5(1)(a), exemptions are to be included in Annexes III and IV only if this does not weaken the environmental and health protection afforded by Regulation (EC) No 1907/2006 (REACH) and only if they meet any of the following conditions: (i) elimination or substituting the substance 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; (ii) the reliability of substitutes is not ensured; (iii) the total negative environmental, health and consumer safety impacts caused by substituting the substance are likely to outweigh the total environmental, health and consumer safety benefits thereof.
Decisions on exemptions, and their duration, must also take into account the availability of substitutes and the socioeconomic impact of substitution. Decisions on the duration of exemptions must also take into account any potential impact on innovation. Life-cycle thinking on the overall impacts of the exemption must be tied, where relevant.
Article 5(1)(a) also specifies that, to include materials and components of EEE for specific applications listed in Annexes III and IV, the Commission must adopt individual delegated acts. Article 5(3) and Annex V describe the procedure for submitting exemption-related applications.
2.CONSULTATIONS PRIOR TO THE ADOPTION OF THE ACT
The Commission received requests from economic operators to grant or renew exemptions under Article 5(3) and Annex V to the RoHS Directive.
The current Annex III exemption 1(f) permits the use of mercury in single capped (compact) fluorescent lamps not exceeding the following values (per burner): for special purposes: 5 mg.
The Commission received two applications to renew this exemption in December 2014 and January 2015. One of the applications was renewed with additional information in entries in January 2020.. The applicants in essence claimed that substitutes for applications covered by that exemption were not available and explained that a further reduction of the mercury threshold specified in the exemption was not practicable. In line with the requirements of the RoHS Directive (Article 5(5) (second sub-paragraph)), an exemption remains valid until the Commission takes a decision on the renewal application.
To evaluate the applications to renew that exemption, the Commission launched a study in June 2015, concluded in 2016, to carry out the required technical and scientific assessment, including an eight-week online stakeholder consultation. Further to that study assessing the extensive technical and scientific data and contributions received, as documented in the study report, the Commission carried out two complementary studies/updates, including stakeholder involvement. The study published in 2019 focused on the socioeconomic assessment and availability of substitutes, whilst an update based on recent figures and modelling was carried out in 2020. The final reports of the study and of the socioeconomic assessment updates were published; stakeholders were notified.
The Commission consulted the Member State expert group for delegated acts under the RoHS Directive during the expert meetings of 1 September 2016, 29 October 2018 and 21 October 2019 to collect Member States’ views on an envisaged course of action in line with the conclusions of the evaluations. It carried out all the requisite procedural steps relating to exemptions from the substance restriction under Articles 5(3) to 5(7). The Council and the European Parliament were notified of all activities.
The supporting study highlighted that:
·due to their special design, materials and manufacturing process, compact fluorescent lamps (CFL) for special purposes cover a very broad range of lamps, with multiple characteristics;
·for special purpose CFL lamps designed to emit light in the ultraviolet spectrum, there is sufficient information that substituting mercury in the applications concerned is technically impracticable, hence the study recommended renewing the exemption for the maximum duration of a further five years;
·for other special purpose CFL lamps, where information on the substitution of mercury in the broad range of applications concerned is lacking, the exemption should be extended for three years to allow more detailed information to justify the exemption for other types of lamps that are understood to be covered by the term ‘special purpose’, if new applications are made.
In conclusion, the scientific and technical assessments, including stakeholder consultations, detailed that the exemption criteria continue to be met with regard to exemption 1(f) as reliable substitutes are not yet available. The evaluation results also show that the specific exemption would not weaken the environmental and health protection afforded by the REACH Regulation, in accordance with Article 5 of Directive 2011/65/EU.
3.LEGAL ELEMENTS OF THE DELEGATED ACT
The delegated directive renews exemption 1(f) listed in Annex III to Directive 2011/65/EU, for the use of mercury in specified applications.
The Commission’s assessment, based on the supporting studies and consultations, concluded that the exemption request meets at least one of the criteria laid down in Article 5(1)(a) of the RoHS Directive that justifies extending the exemption: mercury cannot be reliably substituted in the lamp categories covered by this exemption.
In summary, the conditions for the exemption are fulfilled, and exemption entry 1(f) is to be renewed. The assessment also concluded that, on one hand, the scope of the exemption should be narrowed to further specified applications and, on the other hand, the duration of the current broad exemption can be shortened as follows:
I.to five years for special purpose lamps designed to emit light in the ultraviolet spectrum as no reliable alternatives are currently available;
II.to three years for all other special purpose lamps to allow the industry to prepare detailed information to justify keeping the exemptions for specific special purpose lamp categories.
The expiry dates for this exemption are set in line with Article 5(2) (first sub-paragraph). The validity periods are not expected to have an adverse impact on innovation.
The legal instrument is a delegated directive, as provided for by Directive 2011/65/EU, in particular to meet the requirements set out in Article 5(1)(a) thereof.
The objective of the delegated directive is to contribute to the protection of human health and the environment and to align the provisions for the functioning of the internal market in the field of electrical and electronic equipment, by allowing the use of otherwise banned substances for specific applications, with the provisions and under the conditions of the RoHS Directive and the procedure for adapting Annexes III and IV to scientific and technical progress.
The delegated directive has no implications on the EU budget.
COMMISSION DELEGATED DIRECTIVE (EU) .../…
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amending, for the purpose of adapting to technical and scientific progress, Annex III to Directive 2011/65/EU of the European Parliament and of the Council as regards an exemption for the use of mercury in single capped (compact) fluorescent lamps for special purposes
(Text with EEA relevance)
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union,
Having regard to Directive 2011/65/EU of the European Parliament and of the Council of 8 June 2011 on the restriction of the use of certain hazardous substances in electrical and electronic equipment, and in particular Article 5(1), point (a), thereof,
Whereas:
(1)Directive 2011/65/EU requires Member States to ensure that electrical and electronic equipment (EEE) placed on the market does not contain the hazardous substances listed in Annex II to that Directive. That restriction does not apply to certain exempted applications listed in Annexes III to that Directive.
(2)The categories of electrical and electronic equipment to which Directive 2011/65/EU applies are listed in Annex I to that Directive.
(3)Mercury is a restricted substance listed in Annex II to Directive 2011/65/EU.
(4)By Decision 2010/571/EU, the Commission granted, among other things, an exemption for the use of mercury in single capped (compact) fluorescent lamps for special purposes (‘the exemption’), which is now listed as exemption 1(f) in Annex III to Directive 2011/65/EU. The exemption was to expire on 21 July 2016, in accordance with Article 5(2), second subparagraph, point (a), of that Directive.
(5)Mercury is used in single capped (compact) fluorescent lamps (CFL) for special purposes to produce ultraviolet light, which is then converted into visible light by the fluorescent coating on the lamp bulb.
(6)On 19 December 2014 and 15 January 2015, the Commission received two applications for renewal of the exemption (‘the renewal applications’), that is within the time limit laid down in Article 5(5) of Directive 2011/65/EU, of which one was updated with a renewed application on 20 January 2020. In accordance with Article 5(5), second subparagraph, of Directive 2011/65/EU, an exemption remains valid until a decision on the renewal request has been taken.
(7)The evaluation of the renewal applications, which took into account the availability of substitutes and the socioeconomic impact of substitution, concluded that the elimination of mercury in the applications concerned or its substitution by a substance of comparable performance is currently technically impracticable. The evaluation included stakeholder consultations in accordance with Article 5(7) of Directive 2011/65/EU. The comments received during those consultations were made publicly available on a dedicated website.
(8)Exemptions from the restriction for certain specific materials or components should be limited in their scope and duration, in order to achieve a gradual phase-out of hazardous substances in EEE, the assessment also concluded that, on one hand, the scope of the exemption should be narrowed to further specified applications and, on the other hand, the duration of the current broad exemption can be shortened
(9)The exemption is consistent with Regulation (EC) No 1907/2006 of the European Parliament and of the Council and thus does not weaken the environmental and health protection afforded by it.
(10)It is therefore appropriate to grant the renewal of the exemption for a maximum period of five years, in accordance with Article 5(2), first subparagraph, of Directive 2011/65/EU, for CFL lamps for special purposes designed to emit light in the ultraviolet spectrum, as no reliable alternatives are currently available. For all other types of CFL lamps falling into the category of CFL lamps for special purposes, the exemption should be renewed for three years, to allow the industry to prepare detailed information to justify the continuation of this exemption for specified special lamps categories, in line with the Directive’s aim that exemptions should be limited in their scope and duration. In view of the results of the ongoing efforts to find a reliable substitution, the duration of the exemption is unlikely to have adverse impacts on innovation.
(11)Directive 2011/65/EU should therefore be amended accordingly,
HAS ADOPTED THIS DIRECTIVE:
Article 1
Annex III to Directive 2011/65/EU is amended as set out in the Annex to this Directive.
Article 2
1.Member States shall adopt and publish, by [the last day of the sixth month after the date of entry into force of this Directive] at the latest, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those provisions.
They shall apply those provisions from [the last day of the sixth month after the date of entry into force of this Directive + 1 day].
When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
2.Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
Article 3
This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
Article 4
This Directive is addressed to the Member States.
Done at Brussels,
For the Commission
Ursula VON DER LEYEN
The President
