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 cadmium.
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 8(b) permits the use of cadmium and its compounds in electrical contacts. The Commission received two applications for renewal of this exemption in January 2015. While exemption 8(b) 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. Three 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 in written form as agreed during a previous meeting 7 . The experts agreed with the draft presented by the Commission, with a large majority of 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. Three comments were received, all supporting the act and one proposing a prolongation of the transition period to 18 months. All necessary steps relating to exemptions from the substance restriction pursuant to Articles 5(3) to 5(7) have been performed 8 . The Council and the European Parliament were notified of all activities.
The final report highlighted in particular the following technical information and assessment:
·Electrical contact materials containing cadmium are used in many electromechanical devices as components which can carry current intermittently through contact surfaces. Devices concerned are in particular power switching of electric motors; relays and contactors; switches for power tools and appliance switches; circuit breakers for switching equipment; and power packs, occupancy/time delay sensors, and lighting control panels.
·Cadmium in electrical contacts provides essential properties such as superior performance, arc-quenching, higher conductivity, less contact erosion and relatively easy manufacture compared to alternatives.
·Currently, substitution or elimination of cadmium is still scientifically and technically impracticable in several types of devices with electrical contacts, or more time is required to ensure the reliability of the substitutes.
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 8(b) in Annex III. Since reliable alternatives are still not available for certain applications or more time is needed to ensure their reliability, the exemption is renewed until 21 July 2021 with amended wording which reflects the current status of alternative technologies, adding subentry 8(b)-I to point 8(b). Where reliable alternatives are already available, only negligible socioeconomic impacts of substitution are to be anticipated for this period as gradual substitution with cadmium free alternatives is already underway. The granted validity period is also not expected to have adverse impacts on innovation. 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