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 the use of mercury in other High Pressure Sodium (vapour) lamps for 
general lighting 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 exemptio n 
for specified  applications containing mercury  in other high pressure sodium lamps for general 
lighting purposes . 
The RoHS Directive restricts the use of certain hazardous substances in electrical and 
elect ronic equipment (EEE), as specified in Article 4. Ten substances are currently restricted 
and listed in Annex II to 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 of exemptions . 
Pursuant to Article  5(1)(a), exemptions are to be included in Annexes II I and IV only if such 
inclusion does not weaken the environmental and health protection afforded by 
Regulation  (EC)  No 1907/2006 (REACH)2 and where any of the following conditions is 
fulfilled: (i) their elimination or substitution via design changes or ma terials 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 consume r safety impacts caused by substitution are likely 
to outweigh the total environmental, health and consumer safety benefits thereof.  
Decisions on exemptions, and their duration, must   take into account the availability of 
substitutes and the socioeconomic  impact of substitution. Decisions on the duration of 
exemptions are also to 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 specifies  that, toinclude 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 receives 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 4(c) permits the use of m ercury in other High Pressure 
Sodium (vapour) lamps for general lighting purposes not exceeding the following values (per 
burner): 4(c)-I P ≤ 155 W : 25 mg ; 4(c)-II 155 W < P ≤ 405 W : 30 mg ; 4(c)-III P > 405 W : 40 
mg. 
                                                 
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 The Commission received one application for the renewal of this exemption in January 2015. 
The applicantsin essence claimed the lack of availability of substitutes for applications 
covered by that exemption as the reduction or omission of mercury in these lamps leads to 
loss of efficacy .4 An updated  application  was submitted, by the same applican s, in January 
2020 , including a reduction of the mercury content as compared to the 2015 application . In 
line with the requirements of the RoHS Directive (Article 5(5) , second subparagraph ), the  
exemption rema ins valid  until the Commission takes a decision on the renewal application.  
To evaluat e the application 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 data and contributions received, as documented in the study 
report, the Commission carried out two complementary studies/upda tes, including stakeholder 
involvement. The study published in 20197 focussed on the socioeconomic assessment and 
availability of substitutes, whilst an update based on recent figures and modelling was carried 
out in 20208. The final reports of the study a nd of the socioeconomic assessment updates were 
published9; stakeholders were notified.  
The Commission consulted the Member State expert 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 with regard to an envisaged course of action in line 
with the conclusions of the evaluations.  It carried out all the requisite  procedural steps relatin g 
to exemptions from the substance  restriction under  Article 5(3) to 5(7) have been performed.10 
The Council and the European Parliament were notified of all activities.  
The final reports highlighted that : 
 mercury -free s ubstitutes are available on the system level (for use in new light 
emitting diode (LED ) luminaires ), but such substitutes are not compatible  as 
substitutes in existing High Pressure Sodium (vapour) (HPS) lamps (component 
replacement ). Therefore , an early p hase-out of HPS lamps may lead to existing HPS 
luminaires reaching the end of their lives early and to overall environmental 
drawbacks.  It was also concluded that time is still needed to develop sufficient 
alternatives, reason for which the renewal of the exemption for the maximum 
duration of a further five years was recommended.  
 HPS lamps  with reduced mercury content compared to current levels are available in 
different shapes and for different wattages . The exemption should therefore be 
renewed with reduced mercury content.  
In conclusion, the scientific and technical assessments, including stakeholder consultations, 
detailed that the exemption criteria continue to be met with regard to exemption 4(c) I to III . 
                                                 
4 http://rohs.exemptions.oeko.info/fileadmin/user_upload/RoHS_Pack_9/Exemption_4_c__IIII_/  
4c_LE_RoHS_Exemption_Req_Final.pdf  . 
5 Final 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/re ports/FWCW_RoHS_Lamps_SEA_  
20190729_Final.pdf  
8 https://op.europa.eu/en/publication -detail/ -/publication/f 44f2383 -dd0a -11ea -adf7-01aa75ed71a1/language -
en/format -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 . Current stage of the 
procedure can be viewed for each draft delegated act in the Interins titutional Registry of Delegated Acts at 
https://webgate.ec.europa.eu/regdel/#/home . EN 3  EN The evaluation results also show ed that renewing this  exemption with reduced mercury 
content  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 renews exemption 4(c) I to III  listed in An nex III to 
Directive  2011/65/EU  for the use of mercury in  other high pressure sodium lamps for general 
lighting purposes . The mercury content allowed in the specifi ed applications is reduced to 
correspond to technical progress  for the specified  lamps types.  
The Commission’s assessment, based on the supporting studies and consultations , concluded 
that the exemption request meets at least one of the criteria laid down in  Article 5(1)(a) of the 
RoHS Directive , which justif ies extending  the exemption: mercury cannot be reliably 
substituted in the lamp categories covered by this exemption.  
 
In summary, the conditions for the exemption are fulfilled, and exemption  4 (c) entries I to III  
are to be renewed. The  asses sment also concluded that , due to technical progress, the mercury 
content allowed for each of the exemption entries can be lowered.  
The expiry dates for this exemption are  set in line with Article 5 (2) , first subparagraph . As 
concluded by the evaluation,  the state of development of substitutes justifies renewing the 
exemption for the maximum validity period of five years The 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, 
namely Directive 2011/65/EU, in particular to meet the requirements set out in Article 5(1)(a) 
thereof.  
The objective of the delegated directive is to contribute to the protection of human health and 
the environment and to allign 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 con ditions of  the 
RoHS Directive and the procedure for adapting  Annexes III and IV to scientific and technical 
progress.  
The delegated directive  has no implications on the EU budget.  EN 4  EN COMMISSION DELE GATED 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 the use of mercury in other High Pres sure Sodium (vapour) lamps for 
general lighting 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 electri cal 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 m ercury in other High Pressure Sodium (vapour) lamps for 
general lighting purposes  (‘the exemption’) , which is now listed as exemption 4(c)-I, 
4(c)-II and 4(c) -III  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][ as per explanatory note ]. 
(5) Mercury is used in High Pressure Sodium (vapour) lamps for light colour and colour 
rendering properties.  
(6) On 15 January 2015, the 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 with additional information on 20 
January 2020 . In accordance with Article 5(5)  of Directive 2011/65/EU, the exemption 
remains valid until a decision on the renewal application has been taken . 
                                                 
1 OJ L 174, 1.7.2011, p. 88.  
2 Commission Decision 2010/571/EU of 24  September 2010 amending, for the purposes 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 bipheny ls or polybrominated diphenyl ethers (OJ L 251, 25.9.2010, p. 28).  EN 5  EN (7) The evaluation of the renewal application , which took into account the availability of 
substitutes and the socioec onomic impact of substitution, concluded that the  
substitution or elimination of mercury in the applications concerned is currently 
technically impracticable. The evaluation also concluded that the content of mercury 
allowed in those specific applications should be reduced to correspond to the changes 
in the market for the specific lamps types. The evaluation included stakeholder 
consultations 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 appro priate to grant the renewal of the exemption as concerns entries 
4(c)-I, 4(c) -II and 4(c) -III in Annex III to Directive 2011/65/EU  for a maximum period  
of five years , as no reliable substitutes  are currently available , in accordance with 
Article 5(2) , first subparagraph,  of that Directive . 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 . 
(10) Directive 2011/65/EU should therefore be amended accordin gly,   
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 d ay of the sixth  month after the date 
of entry into force of this Directive + 1 day] . 
When Member States adopt those provisions, they shall contain a reference to this 
Directive or be accompanied by such a reference on the occasion of their official 
publica tion. 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.  
                                                 
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 Article  3  
This Directiv e 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