EN   EN 
 
 
 EUROPEAN  
COMMISSION   
Brussels, XXX   
[…](2019) 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 hexavalent chromium as an anticorrosion agent of the carbon steel 
cooli ng system in absorption refrigerators  
(Text with EEA relevance)   EN 2  EN EXPLANATORY MEMORANDUM  
1. CONTEXT  OF THE  DELEGATED  ACT  
This Commission Delegated Directive amends, for the purpose of adapting to technical 
progress, Annex I II of 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 (RoHS  2) as regards an exemption for specific applicati ons containing 
hexavalent chromium . 
RoHS  2 restricts the use of certain hazardous substances in electrical and electronic 
equipment , as provided for in its Article 4.  It entered into force on 21 July 2011.  
The currently restricted substances as listed in A nnex II to RoHS  2 are the following: lead, 
mercury, cadmium, hexavalent chromium, polybrominated biphenyls (PBB), polybrominated 
diphenyl ethers (PBDE), bis(2 -ethylhexyl) phthalate (DEHP), butyl benzyl phthalate (BBP), 
dibutyl phthalate (DBP) and diisobuty l phthalate (DIBP). Annexes III and IV to RoHS 2 list 
the materials and components of electrical and electronic equipment (EEE) for specific 
applications exempted from the substance restriction of RoHS  2 Article 4(1).  
Article 5 makes provision for the adap tation to scientific and technical progress (inclusion,  
renewal, amendments and revoking  of exemptions) of Annexes III and IV. Pursuant to 
Article  5(1)(a), exemptions are to be included in Annexes III and IV  only if  such inclusion 
does not weaken the environmental and health protection afforded by 
Regulation  (EC)  No 1907/20062 and where any of the following conditions is fulfilled: their 
elimination or substitution 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; the reliability of substitutes is not ensured; or the total negative environmental, 
health and consumer safety impacts caused by substitut ion are likely to outweigh the total 
environmental, health and consumer safety benefits thereof.  
Furthermore, Article 5(1) provides that the European Commission (the Commission) shall 
include materials and components of EEE for specific appli cations in the  lists in Annexes  III 
and IV by means of individual delegated acts in accordance with Article  20. Article 5(3) and 
Annex V establish the procedure for submitting applications for granting, renewing, or 
revoking an exemption.  
2. CONSULTATIONS  PRIOR  TO THE  ADOPTION  OF THE  ACT  
Since the publication of RoHS 2 , the Commission has received numerous3 requests from 
economic operators, according to the provisi ons in Article 5(3) and Annex V, for both 
granting new and renewing existing exemptions.  
The current  Annex I II exemption 9 permits the use of hexavalent chromium  as an 
anticorrosion agent of the carbon steel cooling system . The Commission received one 
application for renewal of this exemption in January  2015 . While e xemption 9 had 21 July 
2016 as expiration date for categories 1 to 7 and 104, in line with the requirements of the 
                                                 
1 OJ L 174, 1.7.2011, p. 88.  
2 OJ L 396, 30.12.2006, p. 1 
3 The list is given at: http://ec.europa.eu/environment/waste/rohs_eee/adaptation_en.htm  
4 These categories are namely: 1. Large household appliances; 2. Small household appliances; 3. IT and 
telecommu nications equipment; 4. Consumer equipment; 5. Lighting equipment; 6. Electrical and 
electronic tools; 7. Toys, leisure and sports equipment; 10. Automatic dispensers. EEE c ategories are 
listed  in Annex I  to the RoHS  Directive . EN 3  EN RoHS Directive  (Article 5(5), second subparagraph), it continues to apply until a decision on 
the renewal application is taken by the  Commission.  
With a view to evaluat ing the application  for exemption , the Commission launched a study to 
carry out the required technical and scientific assessment,  including an eight -week online 
open -ended stakeholder consultation5 on the application. One contribution w as made to the 
stakeholder consultation.  
The final report containing the assessment of the application was published6; stakeholders 
were notified.  
Subsequently, the Commission consulted the Member States expert group for delegated acts 
under RoHS 2  in writte n form7. The experts agreed with the draft presented by the 
Commission, with a large majority of silent members . All necessary steps relating to 
exemptions from the substance restriction pursuant to Article s 5(3) to 5(7) have been 
performed.8 The Council and the European Parliament were notified of all activities.  
The final report  highlighted in particular the following technical information and assessment : 
 Hexavalent chromium (Cr (VI)) acts as an anticorrosion agent of the carbon steel 
cooling system in absorption refrigerators. It is used to create a layer on the interior 
surface of the steel tubes to protect them from the cooling solution that contains 
corrosive ammonia.  
 A substitute  for Cr(VI) has become  available for absorption refrigerators using  low 
boiler temperature applications ( approximately 140-180°C).  Substitution in other 
applications using  higher boiler temperature is expected to require a longer period  as 
reliability of alternatives is still under evaluation .  
The evaluation results for categories 1 to 7 and 10 show that at least one of the relevant 
criteria specified in Article 5(1)(a) is met by the exemption request relating to entry 9 in 
Annex III. 
In order to differentiate between low and high boiler applications and make  the exemption 
consistent with the respective  REACH authori sation s9, the wording  of the current exemption 
has been split. As the boiler temperature could be easily adjusted through the  operating 
pressure, the temperature was not considered sufficiently reliable for  RoHS  enforcement 
purposes . Instead , the power  input , which is closely related to boiling temperature , is 
considered easier to monitor and more reliable to represent the diffe rent categories of 
application .  
As f or applications with power input < 75 W (corresponding to low boiler temperature 
products ), reliable substitutes have become available , the exemption shall expire  12 months 
after the publication of this Delegated Directive in the Official Journal of the European 
Union , in line with Article 5(6) of the RoHS Directive.   
                                                 
5 Consultation period : from 21.08.2015 to 16.10.2015  
6 https://bookshop.europa.eu/en/assistance -to-the-commission -on-technological -socio -economic -and-
cost-benefit -assessment -related -to-exemptions -from -the-substance -restrict ions-in-electrical -and-
electronic -equipment -pbKH0416554/   
7 Consultations were carried out  from 14 December 2018 until 21 January 2019.  
8 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 Interinstitutional Registry of Delegated Acts 
at https://webgate.ec.europa.eu/regdel/#/home . 
9 Commission Decision C(2017) 665  EN 4  EN For applications with power input ≥ 75 W and for systems fully operating with non -electrical 
heater s (corresponding to high boiler temperature applications ), a validity period of the 
exemption until 21 July 2021 , which may be renewed as per Article 5(2) first paragraph,  is 
justified.  
The exemption is consistent  with REACH authori sation s REACH/17/7/0  – REACH/1/7/73 . 
No negative socioeconomic impacts of substitution are to be anticipated for the granted 
validity period.  It is also not expected to have a dverse impacts on innovation .  
For categories other than categories 1 to 7 and 10, the existing exemption remains as per the 
validity periods set out in Article 5(2) . The specific exemption does not weaken the 
environmental and health protection afforded by Regulation (EC) No  1907/2006 (REACH), in 
accordance with Article 5 of Directive 2011/65/EU.  
3. LEGAL  ELEMENTS  OF THE  DELEGATED  ACT  
The Delegated Directive grants an exemption from the restri ctions in Article 4(1), to be listed 
in Annex III  of Directive  2011/65/EU, for the use of hexavalent chromium  in specific 
applications.  
The inst rument is a Dele gated Directive, as provided for by Directive 2011/65/EU, and in 
particular meeting the relevant requirements of Article 5(1)(a) thereof.  
The objective of the Delegated Directive  is to contribute to the protection of human health and 
the environment and approximate 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 
RoHS 2 and the therein established procedure for the adaptation of the Annexes  III and IV  to 
scientific and technical progress.  
In accordance with the principle of proportionality, the measure does not go beyond what is 
necessary to achieve its objective.  
The proposal has no implications for the EU budget.  
 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 hexavalent chromium as an anticorrosion agent of the carbon steel 
cooling system in absorption refrigerators  
(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 Par liament and of the Council of 
8 June 2011 on the restriction of the use of certain hazardous substances in electrical and 
electro nic equipment10, and in particular Article 5(1)(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 Dir ective. That restriction  does not apply to the exempted applications 
listed in Annex III to Directive 2011/65/EU.  
(2) The categories of electrical and electronic equipment to which Directive 2011/65/EU 
applies are listed in Annex I to that Directive.  
(3) Hexavalen t chromium is a restricted substance listed in Annex II to Directive 
2011/65/EU.  
(4) An exemption from the restriction for t he use of hexavalent chromium as an 
anticorrosion agent of the carbon steel cooling system  in absorption refrigerators up to 
0,75 % by weight in the cooling solution  (“the exemption”)  is included in Annex III to 
Directive 2011/65/EU. For categories 1 to 7 and 10, t he exemption was  to expire on 
21 July 2016  in accordance with the second subparagraph of Article 5(2) of that 
Directive . 
(5) The C ommission received an application for renewal of th e exemption (“the renewal 
request”) on 20 January 2015 , that is within the time limit laid down in Article 5(5) of 
Directive 2011/65/EU. In accordance with that provision, the exemption remains valid 
until a decision on the renewal request has been adopted . 
(6) The evaluation of the renewal request included stakeholder consultations in 
accordance with Article 5(7) of Directive 2011/65/EU.  The evaluation, taking into 
account the Commission Decisions on authorisa tions for the placing on the market for 
the use and/or for use of substances listed in Annex XIV to Regulation (EC) No 
1907/200611, led to the conclusion that the current exemption with regard to categories 
                                                 
10 OJ L 174, 1.7.2011, p. 88.  
11 Summary of European Commission Decisions on authorisations for the placing on the market for the 
use and/or for use of substances listed in Annex XIV to Regulation (EC) No 1907/2006 of the European EN 6  EN 1 to 7 and 10 is to be divided into two sub -entrie s with wording clearly reflecting the 
scientific and technical progress as regard s to substitution of hexavalent chromium , 
which differs depending on the type of application.  
(7) Hexavalent chromium (Cr (VI)) acts as an anticorrosion agent of the carbon steel 
cooling system in absorption refrigerators. It is used to create a layer on the interior 
surface of the steel tubes to protect them from the cooling solution that contains 
corrosive ammonia.  
(8) For applications with power input ≥ 75 W and for systems fully operating with non -
electrical heaters  (corresponding to high boiler temperature applications ) which are 
covered by the current exemption, a  substitution or elimination of hexavalent 
chromium  is still scientifically and technically impracticable due to the lack of reliable 
substitutes. An exemption for these applications is in line with Regulation (EC) No 
1907/2006 of the European Parliament and of the Council12 and thus  does not weaken 
the environmental and health protection afforded by  it.  
(9) It is, therefore , appropriate to grant the requested renewal for applications  using  high 
boiler temperature s until 21 July 2021 , in accordance with Article 4(3) and the second  
subparagraph of Article 5(2) of Directive 2011/65/EU. In view of the results of the 
ongoing effo rts to find a reliable substitution, the duration of the exemption is unlikely 
to have adverse impacts on innovation.  
(10) For applications with power input < 75 W ( corresponding to low boiler temperature ) 
currently covered by the exemption, the conditions for renewal set out in Article 5(1) 
of Directive 2011/65/EU are no  longer  fulfilled  and therefore, the renewal request 
should be rejected . In accordance with Article 5(6) of that Directive, t he exemption f or 
those applications should  expire  12 months after the date of entry into force of this 
Directive.  
(11) For categories 8, 9 and 11 , the existing exemption remains valid as per the validity 
periods set out in the second subparagraph of Article 5(2) of Directive  2011/65/EU . 
For reasons of legal clarity, the dates of expiry should be specified  in Annex III to that 
Directive.  
(12) 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 12th month after the 
date of entry into force of this Directive ] at the latest, the laws, regulations and 
                                                                                                                                                         
Parliament and of the Council concerning the Registration, Evaluation, Authorisation and Restriction of 
Chemicals (REACH) (OJ C 48, 15.2.2017, p. 9).  
12 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) and 
establishing a European Chemicals Agency (OJ L 396, 30.12.2006, p. 1).  EN 7  EN 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 12th 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 
publication. Member States shall determine how such reference is to be made.  
2. Member Stat es 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  
 The President  
 […]