28 July 2017
Environment MEPs Back Update to RoHS 2 Following Compromise Reached Between European Parliament and Council
On 11 July 2017, the European Parliament’s Committee on Environment, Public Health and Food Safety (ENVI) officially backed plans to amend Directive 2011/65/EU (RoHS 2); a key piece of EU legislation setting out restrictions on the use of certain hazardous substances in electrical and electronic equipment. ENVI’s approval follows an announcement on June 21 that the Parliament and the Council have reached a deal on the Commission’s proposed amendments. Hong Kong exporters of electronics should familiarise themselves with the planned update of RoHS 2, as these two recent events suggest the text will be officially amended shortly.
Traders will be familiar with RoHS 2 which sets out limits on the use of several hazardous substances, such as mercury and lead, in almost all electrical products, except for those explicitly excluded from its scope. RoHS 2 is a recast of an earlier Directive, RoHS 1. It significantly expands RoHS 1’s product scope to also cover medical devices and monitoring and control instruments, in addition to introducing a new Category 11 covering all other EEE not specifically addressed by any of the specific exceptions or categories in RoHS 1 or 2. Miscellaneous products such as electric bikes and lawnmowers with electric ignitions fall within this class of so-called ‘open-scope EEE’.
This expanded product scope is accompanied by an eight year transitional period, during which the newly in-scope EEE does not need to comply with RoHS 2 requirements in order to be made available on the EU market. However, the Commission has recently identified a number of problems with the current scope of RoHS 2 which, without legislative intervention, would arise after this eight year transitional period ends on 22 July 2019. On 26 January 2017, the Commission tabled a proposal to amend the text of RoHS 2 to avoid these problems occurring.
The first problem identified with the existing text is that it would prohibit newly-in-scope EEE which does not comply with the requirements of RoHS 2 from being resold on the second-hand market, after 22 July 2019, even where the product has been placed on the market before this date. This restriction on second-hand market operations would shorten the lifetime of products and generate more waste. To avoid such a situation arising, the proposal includes an amendment making it clear that newly-in-scope EEE, placed on the market before 22 July 2019, can continue to be exempt from the requirements in RoHS 2 (even if it is resold on the second-hand market, after 22 July 2019).
The second problem with the existing text is that it would make it impossible to repair ’Category 11 EEE‘, placed on the market before 22 July 2019, using spare parts that are not in compliance with the restrictions contained in RoHS 2 after the end of the transitional period. The effect of this restriction would be to limit the possibility of repairing products, thus shortening their lifetime. As a result, the Commission has proposed to include an amendment stipulating that non-compliant spare parts intended for products placed on the market before 22 July 2019 are exempted from the requirements in RoHS 2. It should be noted that exemptions for spare parts already exist for other products, not falling within Category 11 (e.g., medical devices). Time limits for exemptions on all spare parts are laid down in the amended text and may last until July 2029, in the case of Category 11 EEE.
The Commission’s proposal also introduces changes in relation to the application procedure for the renewal of exemptions granted under RoHS 2. Most notably, it removes the obligation on the Commission to decide whether to renew an exemption at the latest six months before it is due to expire. Instead, the amended text provides that market operators can continue to rely on the existing exemption until the Commission had made its decision. The update aims to offer some flexibility to the Commission which has said it has struggled to comply with the six month requirement, given the number of steps involved in evaluating a request for an extension.
The new amended text will also include a requirement specifying that the Commission must inform market operators of the expected timing of the decision-making process. It is understood that this provision has been agreed on as part of the deal between the Parliament and the Commission.
As regards other proposed changes to the text, pipe organs are to be excluded entirely from the scope of RoHS 2, as the sector has no alternative to the lead-based alloys used in the pipes of organs. Cord-connected non-road machinery will also be excluded entirely from the scope of RoHS 2.
The proposed amendments to RoHS 2 were reviewed by the permanent representatives of the Member States on 28 June 2017, while ENVI approved the proposal on 11 July 2017. The entire Parliament will however still have to approve the final text of the amendments at a plenary session to take place in October. Once the final text is formally adopted and published in the Official Journal, the amendments to RoHS 2 will need to be transposed into national law by the Member States within 18 months; an extension of the 10 months originally proposed by the Commission.
Given that the scope of the proposed revisions to RoHS 2 are limited to correcting the most significant problems with the Directive, the Parliament and the Commission have agreed that the Commission must carry out a general review of RoHS 2 by 22 July 2021, which may be accompanied by a legislative proposal. There has been some speculation that this future legislative proposal may lay down time limits on the length of the exemption for the secondary market operations of newly-in-scope EEE.