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 cold cathode fluorescent lamps (CCFLs) and external electrode fluorescent lamps (EEFLs) for special purposes.
Article 4 of the RoHS Directive restricts the use of certain hazardous substances in electrical and electronic equipment (EEE). Restrictions currently apply to 10 substances, which are 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 materials and components of EEE for specific applications exempted from the substance restrictions under Article 4(1).
Article 5 of the Directive provides for Annexes III and IV to be adapted to scientific and technical progress, which can involve granting, renewing and 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 are to take into account the availability of substitutes and the socioeconomic impact of substitution. Decisions on their duration are to take into account any potential impact on innovation. Life-cycle thinking on the overall impacts of the exemption is to apply, where relevant.
Article 5(1)(a) of the Directive requires the Commission to include materials and components of EEE for specific applications listed in Annexes III and IV by means of individual delegated acts. Article 5(3) and Annex V establish the procedure for submitting exemption‑related applications.
2.CONSULTATIONS PRIOR TO THE ADOPTION OF THE ACT
The Commission receives requests 3 from economic operators to grant or renew exemptions pursuant to Article 5(3) of and Annex V to the RoHS Directive.
The current exemption 3 (a) to (c) of Annex III permits the use of mercury in cold cathode fluorescent lamps and external electrode fluorescent lamps (CCFL and EEFL) for special purposes not exceeding (per lamp): 3(a) Short length (≤ 500 mm):3,5 mg; 3(b) Medium length (> 500 mm and ≤ 1 500 mm): 5 mg; 3(c) Long length (> 1 500 mm):13 mg.
The Commission received one application for renewal of this exemption on 15 January 2015. The applicants in essence claimed the lack of availability of substitutes for applications covered by that exemption, which have extremely long effective life and can be replaced by manufacturers and professionals only. 4 An additional renewal application, from the same applicants, was received in January 2020. In line with the requirements of the RoHS Directive (Article 5(5), second subparagraph), the exemption remains valid until the Commission takes a decision on the renewal application.
To evaluate the application 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 on the 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 Article 5(3) to 5(7) 10 . The Council and the European Parliament were notified of all activities.
The final supporting study pointed out that mercury-free substitutes in the form of light‑emitting diodes (LEDs) are available and are used as lighting sources in new equipment coming onto the market. However, it concluded that it is not feasible to use LED lamps as replacements for the repair of EEE originally designed with CCFL/EEFL light sources. Therefore, the exemption should be renewed for the latter.
In conclusion, the scientific and technical assessments, including stakeholder consultations, found that:
–the exemption criteria continue to be met with regard to exemption 3(a) to (c), as it is not feasible to use LED lamps as replacements for the repair of EEE originally designed with CCFL/EEFL light sources; and
–due to the very long life of CCFLs/EEFLs, the renewal of the exemption for 3 more years is justified.
The evaluation also found that the renewal would not weaken the environmental and health protection afforded by the REACH Regulation (in accordance with Article 5 of the Directive).
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, 10 contributions were received. The exemption wording was clarified based on the comments received from the members of the public. . The draft act was further revised to set a validity period of three years instead of five years as information that the availability of substitutes has advanced in the last years since the assessment in 2016 was provided during the consultation. Moreover, the validity period of three years is in line with the expiry date of the similar exemption 35 in Annex IV of the RoHS Directive concerning also cold cathode fluorescent lamps. The validity period of three years is furthermore coherent with Ecodesign requirements as many lamps, which fall under this exemption under the RoHS Directive, will not meet from September 2021 the energy requirements set by the Ecodesign Regulations 2019/2020 11 and 2019/2021 12 .