Beveridge & Diamond
 

European Parliament Approves Recast of RoHS Directive

Beveridge & Diamond, P.C., December 20, 2010

On November 24, 2010, the European Parliament voted to approve substantial amendments to the Restriction of Hazardous Substances (“RoHS”) Directive (2002/95/EC), which restricts the use of certain hazardous substances in electrical and electronic equipment (“EEE”).  The amendments are the result of a compromise negotiated between the European Parliament and the Council in mid-November, and signal the close of a two-year co-decision process initiated by the Commission’s proposal in December 2008 to amend, or “recast” the Directive.  The Council’s formal adoption of the changes, the final step in the process, is expected in late December 2010 or early 2011.  Member States will then be required to transpose the new Directive into national law for its provisions to become effective. 

I.   Summary of Key Changes in RoHS Recast

Scope of Products Covered.  The scope of the current RoHS Directive is defined to include the categories of equipment set out in Annex I of its companion legislation, the Waste Electrical and Electronic Equipment (“WEEE”) Directive (2002/96/EC), excluding categories 8 and 9 — medical devices and monitoring and control equipment.  The recast RoHS Directive would incorporate all ten categories of equipment set out in the WEEE Directive in a new Annex I, including medical devices and monitoring and control equipment, and an additional eleventh “catch-all” category for any EEE not covered by the other ten categories.  The resulting “open scope” would therefore extend to all EEE unless specifically exempted.  The Directive would also provide a definition for “dependent on electricity” that would expand the scope of products covered to those that use electricity for any intended function.  Cables and certain two-wheeled vehicles will also be explicitly included in the scope of RoHS.   

Although the scope has been significantly expanded, the recast Directive would also expressly include a number of current exemptions.  For example, the exemptions for large-scale stationary industrial tools, fixed installations, and means of transport will remain outside the scope of RoHS and will be expressly listed as exemptions from RoHS.  Other exemptions include active implantable medical devices, certain photovoltaic panels, and equipment designed solely for research or development purposes and made available on a business-to-business basis.  Definitions of several key exemptions are also included in the recast Directive to further clarify its scope.    

The new scope will likely face significant interpretive issues that may be worked out in the near future by the Commission and the Technical Adaptation Committee, as took place with the original Directive.

Substance Restrictions.  Notably, the recast Directive would not expand the list of substances subject to the Directive’s restrictions, despite support from some stakeholders (including members of the European Parliament) for restrictions on additional substances such as polyvinyl chloride (“PVC”) and halogenated flame retardants.  The Parliament’s late addition of requirements for nanomaterials has also been removed in the interest of compromise.  The maximum concentration values for the substances currently restricted under the Directive will remain unchanged.   

The recast Directive does not list particular substances for possible future addition, as the Commission had initially proposed.  However, a non-binding recital directs the Commission to study the four substances listed in the Commission’s proposal (hexabromocyclododecane (HBCDD), bis (2-ethylhexyl) phthalate (DEHP), butyl benzyl phthalate (BBP) and dibutylphthalate (DBP)).  The Commission will be required to review the existing list of six restricted substances within three years of publication, leaving open the possibility of future additions to the list.  After this initial review, the Commission, on its own initiative or upon request by a Member State, may amend the list of restricted substances on the basis of scientific evidence and taking into account the specific criteria set out in the Directive.  Any changes to the list must also be consistent with the Regulation concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (“REACH”).  The recast Directive expands the Commission’s power by authorizing the Commission to adopt such changes to the restricted substances list through the streamlined “delegated acts” process, which would not require formal adoption by Parliament and Council.

Technical Exemptions.  The RoHS Directive currently allows the Commission to approve technical exemptions for applications of the six substances if substitution is “technically or scientifically impracticable, or where the negative environmental, health and/or consumer safety impacts caused by substitution are likely to outweigh the environmental, health and/or consumer safety benefits thereof.”  The recast Directive includes an additional limitation — technical exemptions must not weaken the environmental and health protection of REACH.  The Commission must also take into account the availability of substitutes and the socio-economic impact of substitution when determining whether to include a technical exemption or the length of an exemption.  Exemptions would be subject to a maximum validity period — up to seven years for medical devices and monitoring and control instruments, and up to 5 years for all other EEE.  However, manufacturers may apply to the Commission for renewal of any technical exemption.

Spare Parts.  The Directive currently exempts spare parts used for the repair or reuse of EEE placed on the market before July 2006.  Under the recast Directive, non-RoHS-compliant parts and components manufactured before 2006 may also be reused in new equipment placed on the market before July 2016, provided the reuse takes place within “auditable closed-loop business-to-business return systems” and consumers are notified that the equipment contains reused parts.

Compliance.  The recast Directive will also include specific requirements for manufacturers and importers to demonstrate compliance with the Directive.  Under the existing Directive, the act of putting covered equipment on the market constitutes a declaration by the manufacturer or importer that the equipment is RoHS compliant.  However, in line with the Commission’s initial proposal, the recast Directive would require a compliance declaration, CE marking, and a host of conformity procedures to be performed before products can be sold on the EU market.  Manufacturers must also maintain a register of non-conforming EEE and product recalls.  In the event a non-compliant product is put on the market, the recast Directive will require disclosure to the competent national authorities of affected Member States and appropriate corrective actions.  Additionally, the Directive will require Member States to conduct market surveillance as part of their enforcement program. 

II.   Timing and Next Steps

The Council is expected to formally adopt the recast Directive in late December 2010 or early 2011.  The Directive will enter into force 20 days after its publication in the Official Journal, and member states will then have 18 months to transpose it into national law.

Newly-covered EEE will not be immediately subject to the requirements in the recast Directive.  Instead, these products will be phased-in according to the following schedule:

  • Medical devices and monitoring and control equipment – within 3 years after entry into force (2014).
  • In vitro medical devices – within 5 years after entry into force (2016).
  • Industrial monitoring and control equipment (including equipment developed exclusively for industrial or professional use) – within 6 years after entry into force (2017).
  • EEE outside the scope of the existing Directive but that would be covered under the recast Directive – within 8 years after entry into force (2019). 

III.   Update on Status of WEEE Directive Recast

Despite initial attempts to proceed with revisions to the WEEE Directive in parallel with the RoHS revisions, the WEEE recast is progressing at a much slower pace.  A number of issues remain outstanding, including relating to the scope of the Directive, collection and recovery targets, and monitoring requirements.  While the scope of the recast WEEE Directive is expected to be largely aligned with the recast RoHS Directive, some differences are foreseen.  For example, a majority of delegations support the inclusion of photovoltaic panels within the scope of the WEEE Directive, although certain photovoltaic panels will be exempt under the recast RoHS Directive.  A first reading vote by Parliament is expected by February 2011, after which the Council will issue its position.  A second reading agreement on the WEEE recast is not expected until late 2011.

For more information, please contact Elizabeth Richardson (erichardson@bdlaw.com), Paul Hagen (phagen@bdlaw.com), or Lauren Hopkins (lhopkins@bdlaw.com).

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