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, as provided for in its Article 4. It entered into force on 21 July 2011.
The restricted substances are listed in Annex II to RoHS 2. While the restrictions of lead, mercury, cadmium, hexavalent chromium, polybrominated biphenyls, and polybrominated diphenyl ethers are in force to date, the restrictions of bis(2ethylhexyl) phthalate (DEHP), butyl benzyl phthalate (BBP), dibutyl phthalate (DBP), diisobutyl phthalate (DIBP) shall apply from 22 July 2019 or later. 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 revoking of exemptions) of Annexes III and IV. Pursuant to Article 5(1)(a), exemptions are to be included in Annexes III and IV only if such inclusion does not weaken the environmental and health protection afforded by Regulation (EC) No 1907/2006 2 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
Since the publication of RoHS 2, the Commission has received numerous 3 requests from economic operators, according to the provisions in Article 5(3) and Annex V, for both granting new and renewing existing exemptions.
The current Annex III exemption 7(a) permits the use of lead in high melting temperature type solders (i.e. lead-based alloys containing 85 % by weight or more lead). The Commission received six applications for renewal of this exemption in November and December 2014, and January 2015. While exemption 7(a) had 21 July 2016 as expiration date for categories 1 to 7 and 10 4 , in line with the requirements of the RoHS Directive (Article 5(5), second subparagraph), it continues to apply until a decision on the renewal application is taken by the Commission.
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 stakeholder consultation 5 on the application. Five contributions were made to the stakeholder consultation.
The final report containing the assessment of the application was published 6 ; stakeholders were notified.
Subsequently, the Commission consulted the Member States expert group for delegated acts under RoHS 2 during an expert meeting on 15 December 2016, which also involved presentations from the applicants and stakeholders most concerned. The experts agreed with the draft presented by the Commission, with a large majority of absent or silent members. In accordance with the Better Regulation Guidelines, the draft Delegated Directive was published on the Better Regulation Portal for a four-week public feedback period. Two comments were received, both supporting the draft act. All necessary steps relating to exemptions from the substance restriction pursuant to Articles 5(3) to 5(7) have been performed. Due to the large amount of simultaneous exemption requests and connected administrative requirements, the Commission decision procedure followed alternative deadlines as per Article 5(5). The Council and the European Parliament were notified of all activities.
The final report highlighted in particular the following technical information and assessment:
Lead gives solders crucial properties such as high melting point, electrical conductivity, thermal conductivity, ductility, corrosion-resistivity, appropriate oxidation nature, and wettability. These properties are inherent to lead; it is the only known element which can provide the combination of these properties.
Currently, substitution or elimination of lead in high melting temperature solders is still scientifically or technically impracticable. Neither is it at the current stage possible to narrow the scope of the exemption due to the high diversity of the applications concerned.
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 7(a) in Annex III. Since for the applications concerned, no reliable alternatives are available today or are likely to come on the market soon, a renewal of the exemption with a validity period until 21 July 2021 is justified; as reliable substitutes are not yet available, no negative socioeconomic impacts of substitution are to be anticipated for this period. The granted validity period is also not expected to have adverse impacts on innovation, while nonessential splitting of the wording and a shorter period could generate unnecessary administrative burden for industry. In order to avoid overlapping scopes of exemptions within the Annex III, the proposed wording clarifies that the applications covered by exemption 24 are excluded from the exemption 7(a).
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