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Scope of “RoHS 2” is Amended, Affecting Replacement of Spare Parts and Refurbished Electrical and Electronic Equipment

On 21 November 2017, new Directive 2017/2102, which amends the scope of Directive 2011/65/EU on the restriction of the use of certain hazardous substances in electrical and electronic equipment (RoHS 2), was published in the EU’s Official Journal.

The new Directive focusses in large part on the secondary market operations for electrical and electronic equipment (EEE). These consist of repair, replacement of spare parts, refurbishment and reuse, as well as retrofitting. The EU’s legislators believe that these operations need to be facilitated in furtherance of the so-called Circular Economy. Hong Kong businesses will recall that this concept has risen in importance in recent years. It is felt that circular economy systems keep the added value in products for as long as possible, even when products have reached their end-of-life stage, so that they – or their parts – can be productively used again and again, thereby also eliminating waste.

Electronics manufacturers will recall that, generally speaking, RoHS 2 allows EEE that escaped the scope of the previous Directive 2002/95/EC (RoHS 1), but which does not comply with Directive 2011/65/EU (RoHS 2), to continue to be made available on the market until 22 July 2019. After that date, however, both the first placing on the market and secondary market operations of non-compliant EEE are prohibited. EU lawmakers now believe that such prohibition of secondary market operations is incompatible with the general principles underlying EU measures relating to products (and the circular economy) and has to therefore be rethought.

Thus, the new Directive states that, provided reuse takes place in auditable closed-loop business-to-business return systems, and that the reuse of spare parts is notified to the consumer, then the RoHS 2 prohibition of substances shall not apply to reused spare parts:

(a) recovered from EEE placed on the market before 1 July 2006 and used in EEE placed on the market before 1 July 2016;

(b) recovered from medical devices or monitoring and control instruments placed on the market before 22 July 2014 and used in EEE placed on the market before 22 July 2024;

(c) recovered from in vitro diagnostic medical devices placed on the market before 22 July 2016 and used in EEE placed on the market before 22 July 2026;

(d) recovered from industrial monitoring and control instruments placed on the market before 22 July 2017 and used in EEE placed on the market before 22 July 2027;

(e) recovered from all other EEE that was outside the scope of RoHS 1 and which is placed on the market before 22 July 2019, and used in EEE placed on the market before 22 July 2029.

It is also known that certain niche product groups are excluded from the scope of RoHS 2, such as equipment designed to be sent into space or photovoltaic panels. Pipes in organs are built using a specific type of lead-based alloy, for which no alternative has been found so far. Most pipe organs are kept in the same place for centuries and their turnover rate is negligible. Pipe organs are therefore to be excluded from the scope of RoHS 2 as their inclusion would bring negligible benefit in terms of the substitution of lead.

RoHS 2 also does not apply to non-road mobile machinery with an on-board power source, which is made available exclusively for professional use. However, for certain types of non-road mobile machinery, two versions are produced in the same production line, with the power source (either on-board or external) being the only difference. Those versions, it is stated, have to be treated in the same way under RoHS 2. Non-road mobile machinery with a traction drive powered by an external power source must therefore also be excluded from the scope of RoHS 2.

As for exemptions from the restrictions, when an application for renewal of an exemption is submitted, the Commission is required to take a decision no later than 6 months before the expiry date of the existing exemption, unless specific circumstances justify a different deadline. According to the Commission, that deadline has proven to be unfeasible in practice, due to the need to follow several mandatory procedural steps for the evaluation of an application for renewal of an exemption.

While the deadline brings no additional value to the existing procedure for the evaluation of applications for renewal, it entails uncertainties for businesses and other stakeholders due to its impracticability. Therefore, the provision related to the deadline is to be removed. However, the Commission should provide to the applicant, the Member States and the European Parliament, shortly after the receipt of an application, a timeline for the adoption of its decision on the application.

The new Directive 2017/2102, amending RoHS 2, entered into force on the twentieth day following that of its publication in the Official Journal. Member States are required to bring into force the laws, regulations and administrative provisions necessary to comply with Directive 2017/2102 amending RoHS 2 by 12 June 2019.

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