Beveridge & Diamond

EU Council Revamps Commission’s Proposal to Revise RoHS and WEEE Directives

Beveridge & Diamond, P.C., October 1, 2009

European Union Member States are considering revisions to the RoHS[1] and WEEE Directives[2] beyond those first proposed by the European Commission in December 2008.  See EU Commission Issues Proposed Changes to RoHS and WEEE Directives (B&D, December 8, 2008).  The President of the European Council recently released a revamped RoHS Directive text that includes significant changes from the Commission’s proposal, while the Council’s changes to the WEEE Directive proposal were minimal. 

1.   Scope of RoHS Directive Redefined

The Council has proposed a potentially significant expansion of the scope of products covered by RoHS.  Currently, apart from a few RoHS-specific exemptions, the RoHS and WEEE Directives apply to the categories of “electrical and electronic equipment” listed in Annex IA of WEEE Directive, with examples of covered products listed in Annex IB of the WEEE Directive.  The Commission had proposed last year that the RoHS Directive apply to a fixed list of products in certain categories.  The Council now appears to have rejected the Commission’s fixed list of products and eliminated the RoHS Directive’s reliance on product categories altogether.  The Council’s text would apply the RoHS restrictions to all “electrical and electronic equipment,” with specific product exemptions to be set forth in an Annex.  The current Council draft does not provide such an Annex, but the Council President calls on Member State delegations to suggest possible exemptions, which will likely be discussed during Council meetings in October 2009. 

The Council appears to have accepted the Commission’s proposal that RoHS cover medical devices as of 2014, monitoring and control equipment as of 2014, in vitro diagnostic medical devices as of 2016, and industrial monitoring and control equipment as of 2017.  The Council’s text also includes the list of 20 exemptions for specific applications of the restricted substances in these equipment categories that the Commission proposed last year. 

2.   RoHS Substance Restrictions

The RoHS Directive currently restricts market access in the European Union for a broad range of electrical and electronic equipment that exceed certain allowable concentrations of heavy metals (lead, mercury, cadmium, and hexavalent chromium) and some brominated flame retardants (polybrominated biphenyls (PBB) and polybrominated diphenyl ethers (PBDE)).

The Commission’s December proposal would have required review and consideration of possible future restrictions for four additional substances:  the phthalates Bis (2-ethylhexyl) phthalate (DEHP), Butylbenzylphthalate (BBP), and Dibutylphthalate (DBP), and the brominated flame retardant Hexabromocyclododecane (HBCDD).  The Council’s revised text eliminates mandatory review of these substances, but adds a process for expanding the list of restricted substances based on regulatory procedures similar to the current process of adding technical exemptions.  Such a process would likely make it easier for additional substances to be added to the RoHS Directive’s restrictions.

3.   RoHS Compliance Measures

The Council largely accepted the Commission’s proposed new compliance measures for the RoHS Directive.  These measures could require a significant change from current compliance practices.  The existing Directive contemplates that by the act of putting covered equipment on the market, the manufacturer or importer has effectively declared they are RoHS compliant.  The new measures, however, 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.  In the event a non-compliant product is put on the market, the proposal would require disclosure to Member States in some cases.  Member States would also be required to conduct market surveillance as part of their enforcement program. 

For a printable PDF of the Council’s RoHS text, please click here.

4.   WEEE Directive Revisions

The WEEE Directive requires mandatory end-of-life collection and recycling of a broad range of electrical and electronic equipment.  Under the Council’s revised text, the WEEE Directive would continue to be limited to the product categories set forth in Annex IA, although Member States are permitted to bring additional products into the scope of their WEEE implementing legislation.

Producers are currently required to finance collection, treatment, and recycling.  The Council kept the Commission’s proposal for a collection target of 65% by weight of all covered electrical and electronic equipment put on the market to go into effect in 2016, but it recognized there were some significant differences in Member State views on the feasibility of this target for all categories of equipment that may be addressed in upcoming Council discussions.  In addition, recovery and reuse/recycling targets would increase across the board.  For example, by 2011, recovery targets would be increased from 75% to 80% and reuse/recycling targets for components/materials from 65% to 70% by average weight of the appliance for IT equipment.   

For a printable PDF of the Council’s WEEE text, please click here.

5.   Timing for Adoption

The RoHS and WEEE legislation must be approved by both the Council and European Parliament before it becomes effective at the EU level; it must then be transposed into national law at the Member State level.  It had been previously thought that agreement of both the Council and Parliament could be achieved by the end of 2009 or early 2010, but that no longer appears possible.  The Council’s proposed texts for the RoHS and WEEE Directives are scheduled for policy debate in the Environment Council’s October 21, 2009 meeting with political agreement scheduled to be reached by the Environment Council’s December 22, 2009 meeting.  The Parliament is expected to consider the Council’s decision in the Parliament’s Environment Committee in April 2010, with review in the Parliament’s plenary session scheduled for May 2010.  Any amendments proposed by the Parliament will be sent to the Council for adoption or conciliation.

For more information about the proposed EU legislation, please contact Paul Hagen ( or Elizabeth Richardson (

[1] Directive 2002/95 EC of the European Parliament and of the Council of 27 January 2003 on the restriction of the use of certain hazardous substances in electrical and electronic equipment.

[2] Directive 2002/96/EC of the European Parliament and of the Council of 27 January 2003 on waste electrical and electronic equipment. 




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