EU: Final report on RoHS Directive review

 

Some time ago, the EU Commission launched a public consultation concerning a general review of the RoHS Directive.  Now, a final report with conclusions was issued.

The reason for the review were several issues with the RoHS Directive, relating in particular to:

– Provisions and procedures on granting/renewing/revoking exemptions to substance restrictions, which are complex and have in part proved to be impracticable in their application:

• overly complex rules on exemption validity;
• issues arising from the application of criteria for exemptions (e.g. lack of criteria for weighing ‘total negative impact’ of substitution or substitution with critical raw materials);
• deadlines and length of exemption process; o delays stemming from the need to transpose delegated acts for exemptions into Member State legislation;
• issues of predictability for economic operators and overall high administrative burden.

– The process of reviewing the list of restricted substances:

• insufficiently clear provisions on how the restriction process is triggered;
• (further) substance restrictions in EEE, which could potentially be set under the RoHS (lex specialis), but also under the REACH Regulation (nevertheless, there are differences in the two acts’ objectives and in the criteria and mechanisms for deciding on substance restrictions).

– Enforcement difficulties, in particular in the context of e-commerce.

– Certain unclear and outdated provisions on spare parts or scope, and insufficient provisions to support the circular economy (e.g. for secondary resources).

– Consistency with related EU legislation covering substance assessment and restrictions (REACH Regulation) or legislation specific to EEE (Ecodesign Directive).

In the report, the following conclusions were reached:

The RoHS Directive has played a crucial role in minimizing hazardous substances in electrical and electronic equipment (EEE) within the EU, safeguarding human health and the environment across various stages of the value chain. The evaluation indicates that, despite identified shortcomings, the RoHS Directive is generally functioning well. This directive simplifies restrictions on hazardous substances in EEE, impacting their presence in WEEE, and simultaneously allows necessary derogations. By establishing a level playing field for EEE producers, the directive has contributed to harmonization and the effective functioning of the internal market, a feat unattainable without its existence. Moreover, the RoHS Directive has gained international significance as a global benchmark for reducing hazardous substances in EEE, potentially yielding substantial environmental and health benefits worldwide.

The evaluation underscores certain deficiencies in the processes for deciding on exemptions and updating substance restrictions under the RoHS Directive. These include lacking transparency, efficiency, and scientific robustness, with methodological and procedural differences identified between preparatory work for RoHS substance restrictions and those under the REACH Regulation.

In response to these issues and to enhance overall coherence, the Commission proposes reassigning responsibility for the technical assessment of time-limited exemptions and the review of the list of restricted substances to the European Chemicals Agency (ECHA). This proposed change diverges from the current practice, where the Commission relies on external consultants for technical input. Placing ECHA and its technical committees in charge of the assessment process, with an appropriate transitional period, aims to enhance consistency and effectiveness, particularly in addressing interactions with other chemicals legislation. The Commission would retain responsibility for decision-making through delegated acts on possible amendments to the Directive’s respective Annexes.

The re-attribution of assessment tasks to ECHA would not impact the substantive requirements forming the basis for adopting substance restrictions or corresponding exemptions. This re-attribution aligns with the ‘one substance – one assessment’ principle within the chemicals strategy for sustainability, promoting more streamlined processes. If ECHA conducts the assessment, it could leverage information and assessments available or being gathered under other legislative acts within the Agency’s area of responsibility, enhancing consistency with other chemicals legislation. This aligns with the RoHS Directive’s requirement to be coherent with other legislation related to chemicals, particularly Regulation (EC) N° 1907/2006. Entrusting ECHA and its scientific committees with all future exemption applications would ensure consistency in recommendations to be decided upon by the Commission, provided ECHA extends its expertise in the field of EEE and the end-of-waste stage of EEE, alongside the necessary resources.

Additionally, utilizing established IT tools managed by ECHA offers a known and modern way to inform stakeholders, aligning with REACH practices. This approach also provides a single digital interface for submitting exemption requests and restriction dossiers. Given these changes, the Commission would provide guidance on exemption requests and the process of reviewing the list of restricted substances when the tasks are reassigned to ECHA.

Considering the above and other prioritized initiatives under the CEAP, the current general review of the RoHS Directive, mandated by Article 24(2), will not involve a revision of the Directive at this stage. Instead, it will focus on a targeted amendment, specifically addressing the re-attribution of scientific and technical tasks to ECHA.

Regarding a possible future review of the RoHS Directive:

Recognizing that not all identified deficiencies can be remedied through the aforementioned actions, it is crucial to emphasize that any forthcoming comprehensive revision must take into account the findings of the evaluation. There exists potential to modernize provisions and align them with future needs. This process involves updating the scope, such as conducting a review of photovoltaic panels, and eliminating numerous transitional provisions initially relevant for introducing the open scope but now deemed unnecessary. Simultaneously, expired exemptions and administrative burdens associated with various categories of Electrical and Electronic Equipment (EEE) could be removed from Annexes III and IV.

While the procedural steps for the two processes would be altered as part of their reassignment to ECHA, the framework for granting exemptions and assessing new substances remains unchanged. Nevertheless, the framework must evolve to align with scientific and technical progress, adapting flexibly to technological and market developments. For instance, criteria for deciding on exemptions could consider cases where exemptions should expire due to their diminished relevance in the market. Moreover, the limited options for validity or transitional periods for exemptions could be adjusted to allow individual periods based on specific cases, and barriers hindering an efficient process could be removed.

Another potential measure involves assessing the appropriateness of introducing fees to the time-limited exemption system for applications involving restricted hazardous substances. Additionally, the RoHS Directive could be fortified given the ongoing importance of hazardous substances in EEE concerning the circular economy and zero-pollution objectives. The necessity to assess and potentially restrict certain hazardous substances remains high, particularly for new substances in EEE that contradict the objectives of the Directive.

Simultaneously, efforts should be made to enhance the circular economy for EEE. The RoHS Directive holds the potential to simplify provisions on reused spare parts for EEE, particularly within a specific time-limited period. Increasing the use of recycled materials could be achieved by introducing favorable conditions compared to primary materials.

A future revision is advisable due to the interplay with other legislative instruments currently under revision, possibly resulting in adjustments to the RoHS Directive, such as the REACH Regulation. However, the current circumstances do not favor a major overhaul of the Directive. The presence of hazardous substances in Waste Electrical and Electronic Equipment (WEEE) holds significant relevance for its treatment, as addressed in the WEEE Directive. Given the ongoing evaluation of the WEEE Directive, close coordination between the two legislative acts could yield positive synergies. For instance, the WEEE Directive could incentivize the phased-out use of hazardous substances by adapting extended producer responsibilities, and conversely, the RoHS Directive could permit the temporary use of spare parts to support the reuse and repairability of specific devices. Moreover, the RoHS Directive could aid in preventing contamination of material streams containing critical raw materials by updating its provisions in light of technical and scientific progress or by allowing, through the use of time-limited exemptions, hazardous substances in EEE to circulate in a closed-loop system.

To pave the way and allow sufficient preparatory time for any future developments, the potential future revision of the Directive should consider the legislation’s long-term perspective and its positioning within waste, products, environmental, and chemicals legislation.

The full text of the Report can be accessed HERE.

To find out more the RoHS Directive and its revision, material compliance, and the EU chemical legislation please contact the Product Compliance Institute directly.