PUBLIC COUNCILOF THEEUROPEANUNION. Brusels,23March /10 ADD1. InterinstitutionalFile: 2008/0240(COD) LIMITE ENV65 MI 41 CODEC91

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1 ConseilUE COUNCILOF THEEUROPEANUNION Brusels,23March 2010 InterinstitutionalFile: 2008/0240(COD) PUBLIC 6169/10 ADD1 LIMITE ENV65 MI 41 CODEC91 ADDENDUMtoNOTE from: GeneralSecretariat to: Delegations No.prev.doc.: 5788/10ENV46MI 30CODEC65 No.Cionprop.: 17333/08ENV1019 MI553CODEC1859-COM(2008)809final Subject: ProposalforaDirectiveoftheEuropeanParliamentandoftheCouncilonthe restrictionoftheuseofcertainhazardoussubstancesinelectricalandelectronic equipment-(rohs)(recast) DelegationswilfindannexedcommentsfromDK/DE/UKonthetextsetoutin5788/ /10ADD1 CM/pc 1 DGI1A LIMITE EN

2 ANNEX DENMARK Articles 2.1, 3, and 5.2(c) Proposal (new/modified text is indicated in underlined/bold, deletions are marked with strikethrough and justifications are indicated in italics): Article 2 Scope 1. This directive shall apply to electrical and electronic equipment. [...] - electrical and electronic equipment, - electrical and electronic equipment built into other finished products that still have a function when the electric current is switched off, - electrical and electronic equipment built into other finished products for support or control functions, - electrical and electronic consumables and accessories and - cables. Justification for Article 2.1 The aim of making the recast of the RoHS-directive is to increase the legal clarity of the text and to eliminate the ambiguity of the existing text. The aim of the proposal for Article 2.1 is to clearly state which EEE is covered by the directive and which is not. It is the Danish opinion that all EEE shall be RoHS compliant in order to ensure a high level of protection of human health and the environment and to create equal condition for all producers of EEE. With respect to combined products, however, the whole of a combined product shall not become EEE just because the EEE is built into it. This is a clarification of our earlier proposal regarding Article 3(a). Likewise, if the EEE is part of a product that has other energy sources than the EEE and the EEE only has support and control functions, only the EEE part of the product should comply with the directive. Denmark also finds it important to specify that consumable and accessories containing electrical and electronic components shall be RoHS compliant, and therefore be defined and included specifically in Article 2 of the Directive. Due to the need for clarity, Denmark proposes that cables are specifically mentioned in Article 2. (This was already proposed by Denmark in document 13308/09). The reason being that cables form a considerable amount of EEE and WEEE, and the wording in the current directive has lead to different interpretation in the Member States. 6169/10 ADD 1 CM/pc 2

3 Article 3 Definitions For the purposes of this Directive, the following definitions shall apply: (a) "electrical and electronic equipment" (hereinafter EEE ) means equipment [ ] which is dependent on uses electric currents or electromagnetic fields in order to work properly and as well as equipment for the generation, transfer and measurement of such currents and fields [...] and designed for use with a voltage rating not exceeding 1000 volts for alternating current and 1500 volts for direct current; (new) (new) (new) (new) (new) (new) (new) availability of a substitute means that the substitutes can be ordered, manufactured and delivered within a reasonable time span as compared with the time span required for ordering, manufacturing and delivering the substances listed in Annex IV. the reliability of a substitute is not ensured means that the reliability of the RoHS compliant EEE compared with the noncompliant EEE is disproportionate taking into account requirements for the specific type of equipment and possibilities for adjusting the manufacturing process. reliability means the probability that an EEE will perform a required function without failure under a stated condition for a stated period of time. electrical and electronic consumables (hereinafter EE consumable ) means any unit used with the EEE where the EEE can not function as intended without the EE consumable, and the EE consumable has no intended single functionality. There is interdependence between the EEE and the EE consumable. The lifetime of the EE consumable is expected to be shorter than the EEE and is replaced during the lifetime of the EEE. An EE consumable contains one or more electrical or electronic components. electrical and electronic accessories (hereinafter EE accessories ) means any unit designed to be used with EEE. The EE accessory can not function without the EEE, however the EEE can function without the EE accessory. An EE accessory contains one or more electrical or electronic components. spare part means a separate part of an EEE that can replace a broken part of an EEE. The EEE cannot function as intended without that part of the EEE. The functionality of EEE remains unchanged when the broken part is replaced by a spare part. electrical or electronic components (hereinafter EE components ) means an electrical or electronic element with a discrete function. The electrical or electronic component must have two or more connecting leads or metallic pads and be part of an electric circuit. 6169/10 ADD 1 CM/pc 3

4 Justifications for the definition of EEE: Denmark has found it troublesome to work with the concept of primary function and the present situation shows that it leads to different approaches and interpretations of the RoHS directive in the Member States. The definition of the EEE has a strong influence on the scope of the directive. Denmark hereby suggests to separate scope issues from the definition. A simple definition of EEE that does not influence on the scope will also facilitate the use of the same definition in the WEEE Directive, the Eco-design Directive, EMC etc. Denmark supports the proposal to delete the wording in order to work properly as presented by the Netherlands at the meeting 16. November The wording has lead to different interpretations in the different Member States and deleting it will improve a harmonized implementation. Further, based on the proposal presented by Malta in document 13838/09 ADD 3 with respect to making references to the definition of EEE in the Low Voltage Directive, Denmark suggests that dependent on is replaced by uses. DIRECTIVE 2006/95/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 12 December 2006 on the harmonization of the laws of Member States relating to electrical equipment designed for use within certain voltage limits (LVD). Article 6 For the purposes of this Directive, electrical equipment means any equipment designed for use with a voltage rating of between 50 and V for alternating current and between 75 and V for direct current, other than the equipment and phenomena listed in Annex II. Justification for the definition of availability and reliability Reliability and availability are used in Article 5. Denmark finds that if these concepts are applied in the directive they should be defined, since they could be subject to different interpretations by the Commission and companies applying for an exemption. Furthermore, Denmark finds that when powers are delegated to the Commission it is very important that the substance of it is clearly defined. Denmark is of the opinion that we have to accept that the reliability of the EEE goes down to some degree when the restricted substances are substituted. For some EEE this is more critical than for others. It will be necessary to asses on a case by case basis whether the lower reliability in RoHS compliant EEE is unacceptable or not, and/or if the reliability of the RoHS compliant EEE is proportionate with the reliability when the RoHS substances are applied. Justification for the definition of EE consumables, EE accessories, spare parts and components Denmark has in document 13308/09 proposed that consumables and accessories should be included and defined in the directive. Denmark hereby proposes a modified version of our definitions set out in document 13308/09 whereby EE consumables and EE accessories must contain an EE component. This definition will help drawing a clearer line with respect to products included in the directive and products not included. Controlling the directive will be facilitated by this definition since inspectorates will normally always be able to see if the product contains an EE component. 6169/10 ADD 1 CM/pc 4

5 Following from this, it becomes necessary to define the concept of spare parts as it is possible that they could overlap with the concept of EE consumables and EE accessories in some cases.spare parts are meant to repair something - they replace something that is broken. The EEE cannot function without the spare part as it is essential for the EEE. The consumable is meant to be replaced, whereas the spare part is needed when the old one breaks down. Denmark is also putting forward a proposal for a definition of an EE component which is based on the notion that it must be part of a circuit and that current must run through it. This is in line with Article 5b which is based on the understanding that all EEE is made of materials and components and nothing else. 6169/10 ADD 1 CM/pc 5

6 GERMANY The following German proposals are based on the Presidency document 5788/10, dated 28 th January Germany adheres to its position regarding - the exclusion of fixed installations comprising large-scale stationary industrial tools and photovoltaic-modules in Article 2 Paragraph 3, - the corresponding definitions in Article 3 and - the definitions for electrical and electronic equipment and dependant in Article 3. For work simplification Germany has brought together these proposals with new proposals regarding the scope and a new paragraph 6 for amending Annex IV. 1. Recital 8 a) Germany proposes to amend recital 8 as follows: This Directive supplements the general Community waste management legislation, such as Directive 2008/[...]/EC of the European Parliament and of the Council on waste as well as Regulation (EC) No 1907/2006 of the European Parliament and of the Council concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH). The Commission shall study the further need to harmonize this Directive with Regulation (EC) No 1907/2006. Rationale Germany sees the need to harmonize REACH and RoHS on medium term view to simplify European legislation addressing the same kind of products. 2. Article 2 Paragraph 1 Germany proposes to amend Paragraph 1 as follows: This Directive shall apply to electrical and electronic equipment falling under the categories set out in Annex 1. xx* years after entry into force this directive shall apply to all electrical and electronic equipment. * Date to be discussed taking into account the development cycles of EEE Rationale Germany's goal is to create the greatest possible level of legal certainty and clarity, both for manufacturers and authorities. The best way to achieve this is to have an open scope as this means that all electrical and electronic equipment is covered by the directive, unless it is explicitly excluded from the scope in Article 2 Paragraph 3. Furthermore the implementation of the open scope will change the burden of proof so that the manufacturer will than have to proof whether his products fall into the scope of the RoHS-directive or not. 6169/10 ADD 1 CM/pc 6

7 The German proposal follows the amendment of European Parliament rapporteur Jill Evans. Since - no impact assessment for an open scope has been carried out, - the change to an open scope means that in future a lot more EEE will fall into the scope of the RoHS directive and therefore there is a need for adequate transitional solutions and periods, - at the moment it seems like it is not possible to phrase sufficient clear exclusions in Article 2 Paragraph 3 and - not all of the Member States support the implementation of an open scope Germany sees the proposed time-displaced implementation of the open scope as a way to balance the different interests. Furthermore it gives the manufacturers of products which in the future will fall into the scope time to adopt - which means either to substitute the restricted substances or to prepare and apply for an exemption. 3. Article 2 Paragraph 3 Germany proposes to amend the text in Article 2 para 3 as follows: (b) Fixed installations comprising large scale stationary industrial tools (c) means of transport for persons and goods (d) non-road mobile machinery for professional use (e) Photovoltaic panels Rationale for (b) Fixed installations at the end of their lives are uninstalled and recycled by professionals, so that usually it is taken care of the waste stream of fixed installations in a proper way. Therefore an exclusion of fixed installations is justified. Furthermore by explicitly excluding fixed installations from the scope of the RoHS according to the FAQs of the Commission a better legal obligation can be achieved. Since large scale stationary industrial tools can be associated to the fixed installations the proposed addition of comprising large scale stationary industrial tools serves as a clarification. Rationale for (c) According to the common understanding which is displayed by the FAQ s of the Commission transport equipment is not within the scope of the RoHS-directive. A better legal obligation can be achieved by amending the text as proposed by Germany. Rationale for (d) The proposal distinguishes between mobile machinery for professional use and for non professional use. Therefore the number of mobile machines being excluded from the scope is limited. Mobile machinery for professional use at the end of their live is recycled by professionals, so that usually it is taken care of the waste stream of this machinery in a proper way. Therefore an exclusion of mobile machinery for professional use is justified. 6169/10 ADD 1 CM/pc 7

8 Rationale for (e) Photovoltaic panels at the end of their lives are already uninstalled and recycled by professionals, so that usually it is taken care of the waste stream of photovoltaic panels and the contained hazardous substances in a proper way. Furthermore the professional association PV-CYCLE prepares a voluntary environmental agreement on the take back and recycling of photovoltaic-modules at the moment. This voluntary environmental agreement will - according to the information of PV- CYCLE - be signed in December this year. Afterwards an adoption by the Commission as an environmental agreement according to the Communication of the Commission (COM 2002/412) is intended. This environmental agreement and the corresponding take-back program will in addition to the already applied practical experience - ensure that PV-modules at the end of their lives are uninstalled and recycled properly by professionals. Additionally, the importance of new technologies to produce renewable energies for our future energy supply and their possible contribution to climate change should be taken into account. Therefore an explicit exclusion of the scope of RoHS is justified. 4. Article 3 (Definitions): 1. Add to the last sentence of (a): dependant shall mean that the equipment needs electricity as its primary energy to fulfil its basic function The Text should then read as follows: For the purposes of this Directive, the following definitions shall apply: (a) electrical and electronic equipment or EEE means equipment which is dependent on electric currents or electromagnetic fields in order to work properly and equipment for the generation, transfer and measurement of such currents and fields [ ] and designed for use with a voltage rating not exceeding 1000 Volt for alternating current and 1500 Volt for direct current; dependant shall mean that the equipment needs electricity as its primary energy to fulfil its basic function. Rationale This addition serves for clarification since the wording in the current article 3 (a) dependent on electric currents to work properly seems to pose a multitude of problems. Equipment that works without electric currents should not fall within the scope of the directive only because an additional device is added, that needs electricity for its function. For that reason the Commission gave an interpretation of dependant in its FAQs. Since this interpretation is legally not binding and does not lead to sufficient legal certainty the explanation should be given in the legal text of the directive and therefore the proposed text should be added. 2. Under (q) a definition for fixed installations should be added: (q) fixed installation means a particular combination of several types of apparatus and, where applicable, other devices, which are assembled, installed and intended to be used permanently at a predefined location. 6169/10 ADD 1 CM/pc 8

9 Rationale Germany proposes to explicitly exclude fixed installations comprising large scale stationary industrial tools in article 2 para 3 (ca). For clarification a definition for fixed installations should be added in article 3. The definition for fixed installations is taken from the Directive 2004/108/EC on the approximation of the laws of the Member States relating to electromagnetic compatibility. 3. Under (r) a definition for photovoltaic panels should be added: (r) photovoltaic panels are panels intended to be used in a system that is designed, assembled and installed for permanent use at a predefined location to produce electricity for public, commercial or residential applications. Rationale Germany proposes to explicitly exclude photovoltaic panels in article 2 para 3 (d). For clarification a definition for photovoltaic panels should be added in article New Article 6 (Review) Germany proposes to add a new Article 6 and therefore delete Article 4 Paragraph 7: Article 6 Review (1) Before [...*] and every five years thereafter, the Commission shall study the need to amend the list of substances or groups of similar substances in Annex IV on the basis of scientific facts. When studying the need to amend Annex IV the Commission shall take into account proposals submitted by the Member States. Based on this the Commission shall present proposals for amendments of Annex IV to the European Parliament and to the Council. * insert date xx years after entry into force of the Directive For the purpose of adding new substances the Commission shall assess if a substance, or a group of similar substances, in EEE or in the waste derived from it, is detrimental to the environmentally sound recovery and disposal of waste electrical and electronic equipment, or has a negative impact on human health or the environment during waste EEE collection and treatment and the socioeconomic effects of including the substances in the Annex IV. This includes whether the substance or the group of substances: a) could have a negative impact on the possibilities for preparing for the reuse of EEE or for recycling of materials from waste EEE; b) could give rise to uncontrolled or diffuse dispersion to the environment of the substance or of hazardous residues, transformation or degradation products through the use, the preparing for re-use, recycling or other treatment of materials from waste EEE; c) could lead to unacceptable risk to workers involved in the waste EEE collection or treatment processes through exposure to the substance; d) could be replaced by substitutes or alternative technologies which have less negative environmental, health and consumer safety impacts. These measures designed to amend essential elements of this Directive shall be adopted according to Article (289). 6169/10 ADD 1 CM/pc 9

10 (2) For the purpose of proposing amendments to Annex IV a Dossier following the restrictiondossiers of Annex XV of Regulation (EC) No 1907/2006 for the assessment of the substances containing at least the following information shall be submitted: - Proposal, - Rationale for the ban of the substance, - Information on the use of the substance in EEE, - Information on detrimental effects and expositions, - Information on possible substitutes and alternatives, - Rationale for the need of community-wide actions, - Socio-economic assessment. When proposing amendments of Annex IV reference shall be made to any relevant dossier, chemical safety report or risk assessment submitted to the European Chemical Agency under Regulation (EC) No 1907/2006 or other Community Regulations. (3) Where Regulation (EC) No 1907/2006 is amended regarding new restrictions or authorisation duties or is amended regarding existing restrictions or authorisation duties on substances relevant for EEE Annex IV of this Directive shall be amended accordingly. These measures shall be adopted according to Article 290 of the Treaty. Rationale Germany sees the need to ensure the possibility of Member States to be involved in the decision making process concerning the addition of new substances in Annex IV. Since at the moment it is still not finally discussed how this can be ensured within the rules laid down in Article 290 and 291 of the Lisbon Treaty Germany is in favour of adopting Annex IV according to the co-decision procedure laid down in Article 289 of the Lisbon Treaty. If as a result of the ongoing discussions there will be other ways to ensure the involvement of Member States the corresponding provisions in the above Article 6 para 1 have to be amended. Germany supports the idea of implementing a method to review and amend the list of prohibited substances in Annex IV. The background for the above proposal amongst others is the changes in procedures connected with the Lisbon Treaty. Furthermore the proposal takes into account - the discussions in the Council and - aspects of the report of rapporteur Evans. The proposal ensures the following: - A method and the relating criteria to add further substances to the list of prohibited substances in Annex IV is being decided on in the co-decision procedure in this recast. Therefore future decisions will be transparent and comprehensible and all substances will be assessed using the same criteria. - Germany sees the need to harmonize REACH and RoHS on medium term view. Therefore the proposal includes links to the REACH regulation. This ensures that the RoHS is adapted if there have been modifications in the REACH which are relevant to EEE. - The Annex IV will be revised on a regular base and therefore a regularly adaptation to the scientific knowledge is possible. 6169/10 ADD 1 CM/pc 10

11 - Notwithstanding the Commissions right to initially propose amendments to the RoHS the proposal ensures that Member States will also have the opportunity to make proposals to add further substances to the Annex IV which have to be taken into account by the Commission. - Already available information on a substance shall be used for the assessment of a substance under RoHS. 6169/10 ADD 1 CM/pc 11

12 UNITED KINGDOM Article 2.1 Scope The UK maintains its reservation on a move to open scope The UK cannot support an open scope as proposed by the Presidency as this creates a number of problems. The main one is that no impact assessment has been provided that:- 1. Indicates clearly and definitively the equipment that would be brought into scope for the first time; 2. Properly assesses the economic cost (and benefits) of expanding the scope; 3. Indicates an appropriate transition period for bringing such equipment into scope (as for categories 8 and 9) taking into account economic and technical parameters; 4. Assesses the capability of the TAC to deal with, in an appropriate manner, the vastly increased number of requests for exemptions that would result from a expanded scope; 5. Suggests whole categories for general exclusion such as transport equipment and even specific equipment such as wind turbines and photovoltaic panels. Burdens on business need to be demonstrated as proportionate under Better Regulation principles. Article 2.3 exclusions from scope The UK maintains its very strong opposition on moving to an open scope for the reasons stated above. In the absence of an Impact Assessment we do not know what the effect would be. A possible compromise could be for the Commission to conduct an impact assessment and then report back to the Council and European Parliament on the possibilities for extending the scope to cover all EEE in, for example, four years. However we believe that for the sake of clarity (with or without a move to open scope) there needs to be clear exclusions for Fixed Installations and Large-scale Stationary Industrial Tools. This would improve considerably the practical application of the Directive and take into account that the equipment used in these two applications is treated differently from consumer goods throughout its lifecycle. These items are installed, dismantled and treated by professionals and rarely, if ever, appear in the municipal waste stream. It should not be forgotten that the RoHS Directive was designed to reduce, and over time phase out, substances that are harmful to the environment when they enter landfill. The inclusion in scope of Fixed Installations and Large-scale Stationary Industrial Tools would deliver a very small (if any) environmental improvement against disproportionally high economic costs. We also believe that if the Directive is applied to some LSIT, there could be considerable repercussions on EU competitiveness and employment in many areas. 6169/10 ADD 1 CM/pc 12

13 We understand that many Member States wish to restrict the extent of these exemptions because they believe that doing so will produce greater environmental protection. However without an Impact Assessment, that is only a guess. We could equally find that the environmental impact is minimal, confusion within industry increased and the costs to business disproportionate. This could result in severe damage to European industry and we all depend on that industry to remain competitive. The Directive should also exclude transport equipment (whether or not covered by the End of Life of Vehicles Directive) and non-road equipment (eg forestry machinery, cranes, diggers etc) for similar reasons. As with LSIT, these complex products are dismantled and treated by professionals. In addition there are issues of reliability to consider eg aircraft and even the extent of EU jurisdiction in the case of international aviation and shipping. We will submit suggested text changes for consideration in due course. Article 3 Definitions Again, we will submit suggested text changes in due course. Article Prevention The UK believes that the wording used in the text should be broadened to cover the case where new parts can extend the life of EEE such as updating, recalibration and the expansion of capacity, rather than only spare parts for the purpose of extending the life of the equipment. We suggest the following change:-.including spare parts for its repair, reuse, updating its functionalities or upgrading its capacity placed on the market. Article 4.3, 4.4 and 4.5 (Dates) The UK believes that given the costs attached to bringing into scope Categories 8 and 9, it is imperative that they should only be brought into scope with reasonable and realistic phase-in dates. We therefore agree with the text as proposed by the Presidency. Article 4.4 In line with the suggested change at Article 4.1 (footnote14) a similar change should be made to Article 4.4. The spare parts reference should be changed to. Paragraph 1 shall not apply to spare parts for the repair, reuse, or to the updating of functionalities or upgrading of capacity of the following: 6169/10 ADD 1 CM/pc 13

14 Articles 4.5 The UK is against identifying two areas where the Commission shall review and propose inclusion in scope. They are highly specific and would not in themselves be specific reason to take the RoHS Directive back into co-decision (Ordinary Procedure). Article 5.1(b) The UK would propose that the wording should be as close as possible to that used under REACH when referring to the socio-economic criteria to be applied, so that confusion is avoided and a level field is provided no matter which legislation is applied. On that basis, the original wording proposed by the Commission is preferable. We also believe that a reference to socio-economic criteria is necessary to better and fully reflect the three pillars of sustainability. Article 5.2 The UK foresees considerable problems with the proposed maximum four year validity period here. In many cases, businesses might have real difficulties applying for exemptions no later than 18 months before the end of the four years not knowing when, and even if, their application will be accepted. We believe that in the case of an exemption not being renewed, industry will need a minimum of 18 months to adapt. We can however support more emphasis being placed on industry to take that renewal process forward. We also believe that for some categories, where a substitute substance is unlikely to be available in the foreseeable future, then a longer period should be allowed, therefore the exemption should be determined on a case-by-case basis. The UK suggests the following text for Article 5.2 :- Measures adopted in accordance with point b of paragraph 1 shall have a fixed period of validity period of up to four years to be decided case by case and may be renewed. An application for renewal shall be made no later than 18 months before an exemption expires and the Commission shall decide on an application for renewal no later than 6 months before the expiry date of the existing exemption. In the case that the exemption is not renewed, there shall be a minimum period of 18 months from the date that the decision is taken and made public before the exemption is withdrawn. This is to allow the economic operator time to adapt. Article 5.2c should be deleted. Article 16 - Presumption of Conformity Many manufacturers use documentation to demonstrate conformity. For a final manufacturer of a piece of equipment, it would not be viable or even possible to test each piece of homogeneous material in each component. They would be obliged to make an assessment of the systems of their suppliers. For this reason the reference to harmonised standards must not be limited to testing. Assessment of technical documentation must also be catered for so that the manufacturer can apply such a harmonised standard and claim presumption of conformity. 6169/10 ADD 1 CM/pc 14

15 Proposal: Replace paragraph 2 with the following modified wording: Materials, components, and EEE on which tests and measurements have been performed, or which have been assessed, in accordance with harmonised standards the references of which have been published in the Official Journal of the European Union, shall be presumed to comply with all the relevant requirements of this Directive to which such standards relate. Annex VI The UK reminds the Presidency and the Commission that this Annex, which contains the basis of specific exemptions for Categories 8 and 9, is out of date having been put together in It will need to be revised to ensure that it is up to date. In addition, the following points will need to be taken into account:- 1. the dates for the coming into force of the exemptions will need to be aligned with the general timetable for the introduction of categories 8 and 9 into scope; 2. eventually it will be need to be combined with Annex IV that is currently being revised as a result of the Oko recommendations; and 3. any likelihood of bringing in additional substances for restriction under RoHS or extending the scope will have a significant impact on both these exemptions and the existing ones. 6169/10 ADD 1 CM/pc 15