EN   EN 
 
 
 EUROPEAN  
COMMISSION   
Brussels, XXX   
[…](2021) XXX  draft 
 
COMMISSION DELEGATED DIRECTIVE (EU) .../…  
of XXX  
amending, for the purposes of adapting to scientific and technical progress, Annex III to 
Directive 2011/65/EU of the European Parliament and of the Council as regards an 
exemption for mercury in fluorescent lamps for other general lighting and special 
purposes  
(Text with EEA relevance)   EN 1  EN EXPLANATORY MEMORANDUM  
1. CONTEXT  OF THE  DELEGATED  ACT  
This Commission Delegated Directive amends, for the purpose of adapting to technical and 
scientific progress, Annex III to Directive 2011/65/EU of the European Parliament and of the 
Council on the restriction of the use of certain hazardous substances in electrical and 
electronic equipment (recast)1 (the RoHS Directive) . The amendment concerns an exe mption 
for specified  applications containing mercury  in fluorescent lamps for other general lighting 
and special purposes . 
The RoHS Directive restricts the use of certain hazardous substances in electrical and 
electronic equipment (EEE), as specified  in Article 4.  Ten substances are currently restricted 
and listed in Annex II to the RoHS: lead, mercury, cadmium, hexavalent chromium, 
polybrominated biphenyls (PBB), polybrominated diphenyl ethers (PBDE), bis (2 -ethylhexyl) 
phthalate (DEHP), butyl benzyl phthalate (BBP), dibutyl phtha late (DBP) and diisobutyl 
phthalate (DIBP). Annexes III and IV list EEE materials and components for specific 
applications that are exempt from the substance restrictions laid down in  Article 4(1).  
Article 5 of the Directive provides for the adaptation of Annexes III and IV  to scientific and 
technical progress , which can include granting, renewing and revoking  exemptions . Pursuant 
to Article  5(1)(a), exemptions are to be included in A nnexes III and IV only if this does not 
weaken the environmental and health protection afforded by Regulation  (EC)  No 1907/2006 
(REACH)2 and only if they meet any of the following conditions: (i) elimination or 
substituting the substance via design changes  or materials and components which do not 
require any of the materials or substances listed in Annex II is scientifically or technically 
impracticable; (ii) the reliability of substitutes is not ensured; (iii) the total negative 
environmental, health and c onsumer safety impacts caused by substituting the substance are 
likely to outweigh the total environmental, health and consumer safety benefits thereof.   
Decisions on exemptions, and their duration, must also take into account the availability of 
substitut es and the socioeconomic impact of substitution. Decisions on the duration of 
exemptions must take into account any potential impact on innovation. Life -cycle thinking on 
the overall impacts of the exemption must be applied , where relevant.  
Article 5(1) (a) also s pecifies that, to include materials and components of EEE for specific 
applications list ed in Annexes  III and IV , the Commission must  adopt   individual delegated 
acts. Article 5(3) and Annex V describe  the procedure for submitting exemption -related  
applications.   
2. CONSULTATIONS  PRIOR  TO THE  ADOPTION  OF THE  ACT  
The Commission receive d requests3 from economic operators to grant or renew exemptions 
under  Article 5(3) and Annex V to the RoHS  Directive . 
The current Annex III exemption 2(b)(4) permits t he use of m ercury in other fluorescent 
lamps for other general lighting and special purposes (e.g. induction lamps).  
The Commission received one application to renew this exemption on 15 January 2015. The 
applicant claimed that, due to a vast range of para meters relevant to lamps falling under 
                                                 
1 OJ L 174, 1.7.2011, p. 88.  
2 OJ L 396, 30.12.2006, p. 1. 
3 The list is available at: http://ec.europa.eu/environment/waste/rohs_eee/adaptation_en.htm . EN 2  EN exemption  2(b)(4), e.g. form, length or spectrum, these  lamps cannot be easily replaced with 
light-emitting diodes (LED) alternatives .4 That application was renewed i n January 2020 , 
providing largely the same argument ation . In line with the requirements of the RoHS 
Directive (Article 5(5), second  subparagraph) ), an exemption remains valid  until the 
Commission takes a decision on the renewal application.  
To evaluat e the applications to renew that exemption, the Commission launched a study in 
June 20155, concluded in 2016, to carry out the required technical and scientific assessment, 
including an eight -week online stakeholder consultation.6 Further to that study assessing the 
extensive technical and scientific da ta and contributions received, as documented in the study 
report, the Commission carried out two complementary studies/updates, including stakeholder 
involvement. The study published in 20197 focused on the socioeconomic assessment and 
availability of subs titutes, whilst an update based on recent figures and modelling was carried 
out in 20208. The final reports of the study and of the socioeconomic assessment update were 
published9; stakeholders were notified.  
The Commission consulted the Member State exper t group for delegated acts under the RoHS 
Directive during the expert meetings of 1 September 2016, 29 October 2018 and 21 October 
2019 to collect Member States’ views on an envisaged course of action in line with the 
conclusions of the evaluations . It car ried out a ll the requisite procedural steps relating to 
exemptions from the substance restriction under  Articles 5(3) to 5(7).10 The Council and the 
European Parliament were notified of all activities.  
The supporting study  highlighted that:  
 this exemption cove rs a wide  range of lamps with different  functions ; 
 data on the specific lamp types covered by this exem ption is currently insufficient  
and information on the substitution of mercury in this broad range of applications is 
lacking. The current exemption should be extended for three years to allow industry 
to prepare more detailed information to justify the exemption for specific  types of 
lamps that are understood to be covered by the term ‘other general lighting and 
special purposes’ ; 
 there is sufficient information that substitu ting mercury in two specific applications 
covered by this exemption, namely (i) lamps emitting light in the non -visible 
spectrum and (ii) emergency lamps , is technically impracticable, hence the study 
recommended renew ing the exemp tion for these applications for t he maximum 
duration of  five years.  
                                                 
4 http://rohs.exemptions.oeko.info/ fileadmin/user_upload/RoHS_Pack_9/Exemption_2_b__34_/  
Lighting_Europe/2b4_LE_RoHS_Exemption__Req_Final.pdf  . 
5 The f inal report of the study is available at https://op.europa.eu/en/publication -detail/ -
/publication/a3fdcc8c -4273 -11e6 -af30-01aa75ed71a1 . 
6 Consultation period: 21 August 2015 to 16 October 2015, http://rohs.exemptions.oeko.info . 
7 https://rohs.exemptions.oeko.info/fileadmin/user_upload/reports/FWCW_RoHS_Lamps_  
SEA_20190729_Final.pdf  
8 https://op.europa.eu/en/publication -detail/ -/publication/f44f2383 -dd0a -11ea -adf7-01aa75ed71a1/language -
en/fo rmat-PDF/source -146144383 , starting on page 92.  
9 https://ec.europa.eu/environment/waste/rohs_eee/studies_rohs1_en.htm . 
10 A list of the required administrative steps is available on the Commission website . The c urrent stage of the 
procedure can be viewed for each draft delegated act in the Interi nstitutional Registry of Delegated Acts at 
https://webgate.ec.europa.eu/regdel/#/home . EN 3  EN In conclusion, the scientific and technical assessments, including stakeholder consultations, 
detailed that the exemption criteria continue to be met with regard to exemption 2(b)(4) as 
reliable substitutes are not yet available. The evaluation results also show ed that the  
exemption, as reviewed, would not weaken the environmental and health protection afforded 
by the REACH Regulation, in accordance with Article 5 of Directive 2011/65/EU.  
3. LEGAL  ELEMENTS  OF THE  DELEGATED  ACT  
The delegated directive re news exemption 2(b)(4) listed in Annex III to Directive  2011/65/EU 
for the use of mercury in fluorescent lamps for other general lighting and special purposes, by 
setting new validity periods, including for certain specifi ed applications covered by that 
exemption.   
The Commission’s assessment, based on the supporting studies and consultations , concluded 
that the exemption request meets at least one of the relevant criteria laid down in Article 
5(1)(a) of the RoHS Directive , that justif ies extending the exemption: mercury  cannot be 
reliably substitute d in the lamp categories co vered by this exemption.  
In summary, the conditions for the exemption are fulfilled, and the exemption under 2(b)(4) is 
to be renewed. The assessment also concluded that the scope of the exemption should be 
narrowed to further specified applications on one hand, and, on the other hand, t o shorten the 
duration of the current broad exemption as follows: (I) to three y ears for other general lighting 
and special purposes lamps and to five years for (II) lamps emitting light in the non -visible 
spectrum and (III) emergency lamps.  
The expiry dates for this exemption are set in line with Article 5(2) ( first subparagraph). Th e 
validity periods are not expected to have an adverse impact on innovation.  
The legal instrument is a delegated directive, which is in line with the enabling legal act, 
Directive 2011/65/EU, in particular with the delegation set out in Article 5(1) and 2 0 there of.  
The objective of the delegated directive is to contribute to the protection of human health and 
the environment and to align the provisions for the functioning of the internal market in the 
field of electrical and electronic equipment, by allowing the use of otherwise banned 
substances for specific applications, with the provisions and under the conditions of the RoHS 
and the pr ocedure for adapt ing Annexes III and IV to scientific and technical progress.  
The delegated directive  has no implications o n the EU budget.  EN 4  EN COMMISSION DELEGATED DIRECTIVE (EU) .../…  
of XXX  
amendi ng, for the purposes of adapting to scientific and technical progress, Annex III to 
Directive 2011/65/EU of the European Parliament and of the Council as regards an 
exemption for mercury in fluorescent lamps for other general lighting and special 
purposes  
(Text with EEA relevance)  
THE EUROPEAN COMMISSION,  
Having regard to the Treaty on the Functioning of the European Union , 
Having regard to Directive 2011/65/EU of the European Parliament and of the Council of 
8 June 2011 on the restriction of the use of certain hazardous substances in electrical and 
electronic equipment1, and in particular Article 5(1) , point (a), thereof,  
Whereas:  
(1) Directive 2011/65/EU requires Member States to ensure that electrical and electronic 
equipment placed on the market does not contain the hazardous substances listed in 
Annex II to that Directive. That restriction does not apply to certain exempted 
applications listed in Annex III to that Directive.  
(2) The categories of electrical and electronic equipment to which Directive 2011/65/ EU 
applies are listed in Annex I to that Directive.  
(3) Mercury is a restricted substance listed in Annex II to Directive 2011/65/EU.  
(4) By Decision 2010/571/EU2, the Commission granted, among other things , an 
exemption for the use of mercury in other linear flu orescent lamps for other general 
lighting and special purposes (e.g. induction lamps) (‘the exemption’) , which is now 
listed as  exemption 2(b)(4)  in Annex III to Directive 2011/65/EU .The exemption was 
to expire on 21 July 2016, in accordance  with Article 5 (2), second subparagraph, point 
(a), of that Directive . 
(5) The exemption covers an inhomogeneous group of lamps of different shapes, 
technologies, applications , and purposes. Mercury is used in the discharge tube, which 
is essential to convert electrical ener gy to light.  
(6) On 15 January 2015, t he Commission received an application for renewal of the 
exemption (‘the renewal  application ’), that is within the time limit laid down in Article 
5(5) of Directive 2011/65/EU, which was  updated  on 20 January 2020 by an additional 
                                                 
1 OJ L 174, 1.7.2011, p. 88.  
2 Commission Decision 2010/571/EU of 24  September 2010 amending, for the pur poses of adapting to 
scientific and technical progress, the Annex to Directive 2002/95/EC of the European Parliament and of 
the Council as regards exemptions for applications containing lead, mercury, cadmium, hexavalent 
chromium, polybrominated biphenyls or polybrominated diphenyl ethers (OJ L 251, 25.9.2010, p. 28).  EN 5  EN renewal application . In accordance with Article 5(5)  of that Directive, the exemption 
remains valid until a decision on the renewal application  has been taken . 
(7) The evaluation of the renewal application , which took into a ccount the availability of 
substitutes and the socioeconomic impact of substitution, concluded that the  
substitution or elimination of mercury in the applications concerned is currently 
technically impracticable. That evaluation included stakeholder consul tations in 
accordance with Article 5(7) of Directive 2011/65/EU. The comments received during 
those consultations were made publicly available on a dedicated website.  
(8) The exemption is consistent with Regulation (EC) No 1907/2006 of the European 
Parliament and of the Council3 and thus does not weaken the environmental and health 
protection afforded by it.  
(9) It is therefore appropriate to grant the renewal of the exemption taking into account the 
general aim that exemptions from the restriction for certain spe cific materials or 
components should be limited in their scope and duration, in order to achieve a 
gradual phase -out of hazardous substances in EEE.  
(10) In order to allow for a timely reassessment of the availability of mercury -free 
replacement lamp s for the wide variety of lamp types covered by this exemption, i t is 
appropriate to grant the renewal of the exemption for a limited period  of three years .  
However, f or specific lamp categories, namely lamps emitting light in the non -visible 
spectrum  (new  sub-entry 2(b)(4) -II of Annex III)  and emergency lamps  (new sub -entry 
2(b)(4) -III of Annex III) , there is sufficient information that substitution is technically 
impracticable  in the next years  and for those categories  of lamps,  a validity period of  
five years  should be justified , in accordance with Article 5(2 ), first subparagraph,  of 
Directive 2011/65/EU . In view of the results of the ongoing efforts to find a reliable 
substitution, the duration of the exemption is unlikely to have adverse impacts on 
innovation . 
(11) Directive 2011/65/EU should therefore be amended accordingly,   
HAS ADOPTED THIS DIRECTIVE:  
Article 1  
Annex III to Directive 2011/65/EU is amended as set out in the Annex to this Directive.  
Article 2  
1. Member States shall adopt and publish, by [the last day of the sixth  month after the 
date of entry into force of this Directive]  at the latest, the laws, regulations and 
administrative provisions necessary to comply with this Directive. They shall 
forthwith communicate to the Commission the text of  those provisions.  
They shall apply those provisions from [the last day of the sixth  month after the date 
of entry into force of this Directive + 1 day] . 
                                                 
3 Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 
concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals 
(REACH) ,establishing a European Chemicals Agency , amending Directive 1999/45/EC and repealing 
Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council 
Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/ EC and 
2000/21/EC  (OJ L 396, 30.12.2006, p. 1).  EN 6  EN When Member States adopt those provisions, they shall contain a reference to this 
Directive or be acco mpanied by such a reference on the occasion of their official 
publication. Member States shall determine how such reference is to be made.  
2. Member States shall communicate to the Commission the text of the main provisions 
of national law which they adopt in  the field covered by this Directive.  
Article 3  
This Directive shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union . 
Article 4  
This Directive is addressed to the Member States.  
Done at  Brussels,  
 For the Commission  
 Ursula VON DER LEYEN  
 The President