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European Parliamentary Committee Publishes Report on New Proposal Amending RoHS 2

On 28 April 2017, the European Parliament’s Committee on the Environment, Public Health and Food Safety (ENVI) published its draft report on the proposal to amend Directive 2011/65/EU (RoHS 2). Hong Kong’s electrical and electronic goods sellers will know that RoHS 2 is the key instrument of EU legislation restricting the use of certain hazardous substances in electrical and electronic equipment (EEE).

The proposal, which was published by the Commission on 26 January 2017, introduces a number of amendments to RoHS 2. These are primarily aimed at tackling problems with the scope of the existing law, which, without legislative intervention, would arise after 22 July 2019.

This latter-mentioned date marks the end of the eight year transitional period introduced by RoHS 2. During this eight year period, EEE falling outside the scope of the previous Directive (RoHS 1), but falling within the scope of RoHS 2, does not need to comply with the RoHS 2 requirements in order to be made available on the EU market.

“New-in-scope EEE” products benefiting from this derogation include medical devices, monitoring and control instruments, and so-called “Category 11 EEE” which encompasses all EEE not covered by any of the specific categories or exemptions contained in RoHS 1 or 2 (e.g., electric bikes and lawnmowers with electric ignitions).

The Commission’s proposal introduces a number of provisions to resolve two of the key problems associated with the scope of this derogation.

First, according to the current text of RoHS 2, the reselling of new-in-scope EEE on the second-hand market would be forbidden after 22 July 2019. As a consequence, the lifetime of such products would be significantly shortened, and more waste would be generated. To avoid such a situation arising, the proposal introduces an amendment providing that any new-in-scope EEE, placed on the market before 22 July 2019, can continue to benefit from the derogation.

Second, the existing wording in RoHS 2 would make it impossible to repair “Category 11 EEE” using spare parts that are not in compliance with the Directive after 22 July 2019. This would have the undesirable effect of limiting the possibility to repair products, thus shortening their lifetime. As a result, the new proposed Directive introduces an amendment exempting non-compliant spare parts (associated with products placed on the market before 22 July 2019) from the requirements of RoHS 2.

This amendment, in particular, introduces a welcome degree of harmony between the different products groups listed in RoHS 2, given that exemptions for spare parts already exist for all of the others (e.g., medical devices).

The Commission’s proposal also amends Article 5 of RoHS 2, which allows the Commission, in response to a request from a market operator, to adopt delegated acts exempting specific applications from the substance restrictions contained in RoHS 2, provided that certain conditions are met.

It has been noted that the current wording of Article 5 is unsatisfactory because it fails to lay down a maximum validity period for exemptions granted for “Category 11 EEE”, even though all exemptions, irrespective of product category, are required to have a defined limited duration. To resolve this legislative oversight, the proposal, therefore, introduces a maximum validity period of five years for “Category 11 EEE” which is to start running from 22 July 2019.

The proposal also introduces changes regarding the renewal of existing exemptions. Specifically, it removes the obligation placed on the Commission to decide whether to renew an exemption at the latest six months before it is due to expire. The Commission has proposed to remove this requirement on the basis that complying with the deadline is almost impossible given the number of procedural steps needed for the evaluation of an application for renewal. To ensure that this proposed change does not have a detrimental impact on businesses, the Commission notes that market operators will be able to rely on an existing exemption until the Commission has made a decision on the renewal request.

In addition to these core amendments, the Commission has proposed to introduce exclusions from the substance restrictions contained in RoHS 2 for both cord-connected non-road machinery (e.g., tractors) and pipe organs.

Significantly, ENVI’s draft report highlights the parliamentary committee’s general support for all of the Commission’s proposed amendments. Adina-Ioana Vălean, ENVI’s rapporteur (chief draftsperson), has in particular noted that they will support the public health sector relying on refurbished medical equipment and the realisation of the circular economy. Despite this positive response, the draft report nevertheless introduces some minor amendments to the Commission’s proposal.

The most notable of these is an amendment requiring the Commission, within one month of receiving an application for an exemption, to provide the applicant, the Member States and the European Parliament with a clear timeframe for the adoption of an exemption decision. The rapporteur has noted that such a requirement is necessary for the sake of better regulation and legal predictability for businesses, especially in light of the growing number and complexity of exemptions under RoHS 2.

In her report, the rapporteur has also been keen to stress that the purpose of this review of the scope of the Directive is not to address the entire functioning of RoHS 2 and suggests that deeper changes to RoHS 2 will need to be tabled in the future. In particular, she points to the upcoming general review of the Directive, to be carried out by the Commission by 22 July 2021.

ENVI’s proposed amendments will now need to be approved by the entire European Parliament before they can form part of the Parliament’s official position on the legislative proposal. The Commission and the EU Council will also have to agree to these changes before the proposed Directive can become law.

Hong Kong exporters to the EU of all kinds of EEE containing the banned hazardous substances, such as lead or mercury, should be aware that the provisions of RoHS 2 apply to all EEE placed on the EU market, irrespective of whether they are produced in the EU or in third countries. Given the significance of the Commission’s proposed amendments, such exporters are advised to pay attention to the passage of the legislative proposal through the EU’s legal process, up until the date of their implementation into national law.

Please click on the following links to view the initial Commission proposal and ENVI’s draft report.

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