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) 1 (the RoHS Directive). The amendment concerns an exemption for specified applications containing mercury in metal halide lamps.
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 or 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) 2 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 take into account any potential impact on innovation. Life-cycle thinking on the overall impacts of the exemption must be applied, 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 3 from economic operators to grant or renew exemptions under Article 5(3) and Annex V to the RoHS Directive.
The current Annex III exemption 4(e) permits the use of mercury in metal halide lamps (MH).
The Commission received one application to renew this exemption on 15 January 2015. The applicants in essence claimed that light-emitting diodes (LED) alternatives that are compatible with MH luminaires and provide similar performance are currently not available on the market, and that the exemption will be needed for many years as the lifetime of MH professional luminaires is 15-25 years. 4 On 20 January 2020, the same applicant submitted an updated renewal application, based largely on the same argumentation. In line with the requirements of the RoHS Directive (Article 5(5), second subparagraph), the exemption remains valid until the Commission issues a decision on the renewal application.
To evaluate the applications to renew that exemption, the Commission launched a study in June 2015 5 , concluded in 2016, to carry out the required technical and scientific assessment, including an eight-week online stakeholder consultation. 6 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 7 focused on the socioeconomic assessment and availability of substitutes, whilst an update based on recent figures and modelling was carried out in 2020 8 . The final reports of the study and of the socioeconomic assessment updates were published 9 ; 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). 10 The Council and the European Parliament were notified of all activities.
The supporting study highlighted that:
·despite multiple efforts to develop mercury-free alternatives, it can be concluded that mercury cannot currently be substituted with another substance in MH lamps;
·reducing the amount of mercury in MH lamps would affect the function and performance of the lamps and, probably, also their lifetime;
·currently, the substitution of mercury in the applications concerned is technically impracticable, hence the study recommended renewing the exemption for the maximum duration of a further five years.
In conclusion, the scientific and technical assessments, including stakeholder consultations, detailed that the exemption criteria continue to be met with regard to exemption 4(e) as reliable substitutes are not yet available. The evaluation results also showed 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.
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. During the consultation on the draft act, four contributions were received. The points raised were considered and no amendment was deemed necessary.