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 discharge lamps for special purposes  
 
(Text with EEA relevance)   EN 1  EN EXPLANATORY MEMORANDUM  
1. CONTEXT  OF THE  DELEGATED  ACT  
This Commission D elegated 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 exemption , 
currently 4(f), for specifi ed applications containing mercury  in other discharge lamps for 
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  Directive : 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 the EEE materials and components for sp ecific 
applications that are exempt from the substance restrictions laid down in Article 4(1).  
Article 5 of the Directive provides for the adaptation Annexes III and IV  to scientific and 
technical progress , which can in clude  granting, renewing or revoking the exemptions . 
Pursuant to Article  5(1)(a), exemptions are to be included in Annexes III and IV only if this 
does not weaken the level of environmental and health protection afforded by 
Regulation  (EC)  No 1907/2006 (REACH)2 and only if they meet any of th e following 
conditions: (i) eliminatin g or substitutin g 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 reliabi lity of substitutes is not ensured; (iii) 
the overall  negative environmental, health and consumer safety impacts caused by 
substitutin g the substance are likely to outweigh the overall  environmental, health and 
consumer safety benefits. Pursuant to Article  5(1)(a), exemptions are to be included in 
Annexes III and IV only if this does not weaken the environmental and health protection 
afforded by Regulation  (EC)  No 1907/2006 (REACH)3 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 consumer safety impacts caused by 
substituting the substance are likely to outweigh the total environmental, health and consumer 
safety b enefits thereof.  
Decisions on exemptions, and their duration, must also take into account the availability of 
substitutes and the socioeconomic impact of substitution. Decisions on the duration of 
exemptions must take into account any potential impact on i nnovation. Life -cycle thinking on 
the overall impacts of the exemption must be applied , where relevant.  
Article 5(1) (a) also specifies that, to include materials and components of EEE for specific 
applications in the lists in Annexes  III and IV , the Commi ssion must adopt   
individualdelegated acts. Article 5(3) and Annex V describe  the procedure for submitting 
exemption -related  applications.  
                                                 
1 OJ L 174, 1.7.2011, p. 88.  
2 OJ L 396, 30.12.2006, p. 1.  
3 OJ L 396, 30.12.2006, p. 1. EN 2  EN 2. CONSULTATIONS  PRIOR  TO THE  ADOPTION  OF THE  ACT  
The Commission receive d requests4 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 (f) permits the use of m ercury in other discharge lamps for 
special purposes not specifically mentioned in this Annex.  
The Commission received three  application s to renew this exemption in January  2015. One 
applicant claimed  that replac ing mercury in the lamps covered by this exemption is 
scientifically and technically impracticable5, whilst the other two applicants focused their 
request s on specific applications such as high intensity discharge lamps6 and lamps used for  
curing / polymerisation and for disinfection7, on the same grounds  of scientific and technic 
impracticability . In line with the requirements of the RoHS Directive (Article 5(5) , second  
subparagraph ), the exemption remains valid  until the Commission takes  a decision on the 
renewal application.  
To evaluat e the application to renew that exemption, the Commission launched a study8 in 
June 2015, concluded in 2016, to carry out the required technical and scientific assessment, 
including an eight -week online stakeholder consultation.9 Further to that study assessing the 
extensive technical and scientific data and contributions receive d, as documented in the study 
report, the Commission carried out in 201910 an update of the 2016 study focused on the 
socioeconomic assessment and on the availability of substit utes regarding  this and other 
exemptions. The final report of the study was publ ished11 and 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 on  proposals in line with the conclusions of 
the evaluations. It carried out a ll the requisite  procedural steps relating to exemptions from the 
substance restriction under  Article 5(3) to 5(7) of the RoHS Directive .12 The Council and the 
European Parliament w ere notified of all actions undertaken . 
The supporting study highlighted that : 
 The exemption covers a wide array of applications such as multiple  types of 
ultraviolet lamps (e.g. curing lamps, lamps used in photochemistry, development of 
polymers), projector lamps, horticultural lamps etc.  
                                                 
4 The list is available at: http://ec.europa.eu/environment/waste/rohs_eee/adaptation_en.htm . 
5 http://rohs.exemptions.oeko.info/fileadmin/user_upload/RoHS_Pack_9/Exemption_4_f_/Lighting_  
Europe /4f_LE_ RoHS_Exemption_Req_Final.pdf  . 
6 http://rohs.exemptions.oeko.info/fileadmin/user_upload/RoHS_Pack_9/Exemption_4_f_ /Vske/4f_201412 -
09_RoHS_Application_VskE.pdf  . 
7 http://rohs.exemptions.oeko.info/fileadmin/user_upload/RoHS_Pack_9/Exemption_4_f_/VDMA/4f_VDM 
A_excempt_req_4f_RoHS_16Jan14.pdf  . 
8 The f inal report of the study is available at https://op.europa.eu/en/publication -detail/ -/publication/a3fdcc8c -
4273 -11e6 -af30-01aa75ed71a1 . 
9 Consultation period: 21 August 2015 to 16 October 2015, http://rohs.exemptions .oeko.info . 
10 https://rohs.exemptions.oeko.info/fileadmin/user_upload/reports/FWCW_RoHS_Lamps_SEA_  
20190729_Final.pdf  
11 https://ec.europa.eu/environment/waste/rohs_eee/studies_rohs1_en.htm . 
12 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 Interinstitutional Registry of Delegated Acts at 
https://webgate.ec.europa.eu/regdel/#/home . EN 3  EN  Mercury -free substitutes are understood to be available at system level (for use in 
new light emitting diode ( LED ) luminaires ), but such substitutes have various 
limitations and cannot be used in the numerous types of existing discharge lamps for 
special purposes (component replacement).  
 Currently, the substitution of mercury in the applications concerned is techn ically 
impracticable  and the current exemption should  be renewed . However, where 
possible, the applications should be further specified . For part of the exemption, it is 
already possible to specify in further detail the applications where mercury cannot be  
substituted. For those, the maximum validity for the exemption should apply. The 
previous formulation of the exemption regarding ‘other discharge lamps for special 
purposes not specifically mentioned’ is still necessary for the uses not covered by the 
specific formulation, but it should be extended for a period short er than the 
maximum five years given the prospects of limiting the exemption in future.  
 In conclusion, the scientific and technical assessments, including stakeholder 
consultations, detailed t hat the exemption criteria continue to be met with regard to 
exemption 4(f) , as reworded,  as reliable substitutes are not yet available. The 
evaluation results also show ed that renewing  the exemption would not weaken the 
level of 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(f) in Annex III to Directive  2011/65/EU, for the 
use of mercury in specifi ed applications.   
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 that justifies extending the exemption : mercury  cannot be reliabl y substitute d 
in the lamp categories co vered  by this exemption.  
In summary, the conditions for the exemption are fulfilled, and the exemption entry 4(f) is to 
be renewed. The assessment concluded that, to limit the exemption in light of prospects for 
substitution, the current broader part of the exemption should be renewed for a shorter 
duration  of three years (entry 4 (f)-I).  Where possible , the scope of the exemption should also 
be narr owed to specified applications as follows:   
 4(f) –II: Mercury in high pressure mercury vapour lamps used in projectors where an 
output ≥2000 lumen ANSI is required ; 
 4(f) –III: Mercury in high pressure sodium vapour lamps used for horticulture 
lighting ; 
 4(f) –IV: Mercury in lamps emitting light in the ultraviolet spectrum . 
Narrowing do wnthe scope of the exemption in this way is in line with the approach expressed 
in the  recital 19  of the RoHS Directive  that exemptions should be limited in their scope and 
duration in order to achieve a gradual phase -out of hazardous substances in EEE.  
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 for the specific applications. For the 
broader entry 4 (f) -I for ‘other discharge lamps for special purposes not specifically 
mentioned’ , the validity period should be set at three years.  The validity periods are not 
expected to have an adverse impact on innovation.  EN 4  EN The legal instrument is a delegated directive, as provided for by Directive 2011/65/EU, in 
particular to meet the requirements set out in Article 5(1)(a) thereof.  
The objectiv e 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, in line with the provisions and under the conditions of the 
RoHS and the procedure for adapt ing Annexes III and IV to scientific and technical progress.  
The delegated directive  has no implications o n the EU bud get. EN 5  EN 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 discharge lamps for special purposes  
 
(Tex t 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 discharge lamps f or special purposes not 
specifically mentioned (‘the exemption’) , which is now listed as  exemption  4(f) 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 function of mercury in gas discharge lamps for special purposes is related to  the 
light generating process to convert electricity into light .  
(6) On 15 January 2015, t he Commission received several  application s for renewal of the 
exemptio n (‘the renewal applications’)  that is within the time limit laid down in 
Article 5(5) of Directive 2011/65/EU . 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 biphenyls or polybrominated diphenyl ethers (OJ L 251, 25.9.2010, p. 28).  EN 6  EN (7) The evaluation of the renewal application s, which took into account the availability of 
substitutes and the socioeconomic impact of substitution, concluded that the  
substitution or elimination of mercury in the applications concerned  by exemption  4(f) 
is currently technically impracticable.  Given the prospects of limiting the exemption 
in future, it is however appropriate to grant the renewal of current  exemption 4(f) for a 
period of  three years  only. The evaluation also concluded that  it is possible to f urther 
define the application s for which justification according to the  criteria set out in  
Article 5(1) , point  (a), of Directive 2011/65/EU  could be associated with a specific 
functionality and application area , namely high pressure mercury vapour lamps used in 
projectors , used for horticulture lighting  and emitting light in the ultraviolet spectrum . 
For those specific applications,  the exemption should be renewed  for a maximum 
period of five years.   
(8) 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 .  
(9) That evaluation included stakeholder consultations in accordance with Article 5(7) of 
Directive 2011/65/EU. The comments received during those consult ations were made 
publicly available on a dedicated website.  
(10) 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.  
(11) Directive 2011/65/EU should therefore be amended accordingly,   
HAS ADOPTED THIS DIRECTIVE:  
Article 1  
Annex I II 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 o f 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] . 
When Member States adopt those provisions, they shall contain a reference to this 
Directive or be acc ompanied 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 i n 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 7  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 a t Brussels,  
 For the Commission  
 The President  
 Ursula von der Leyen