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 metal halide lamps  
(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 exemption 
for specifi ed applications containing mercury  in metal halide lamps . 
The RoHS Directive restricts the use of certain hazardous substances in electrical and 
electronic equipment (EEE), as specified in Artic le 4. Ten substances are currently restricted 
and listed in Annex II to the Directive : lead, mercury, cadmium, hexavalent chromium, 
polybrominated biphenyls (PBB), polybrominated diphenyl ethers (PBDE), bis (2 -ethylhexyl) 
phthalate (DEHP), butyl benzyl pht halate (BBP), dibutyl phtha late (DBP) and diisobutyl 
phthalate (DIBP). Annexes III and IV list the 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 Annexes III and IV to scientific and 
technical progress, which can include granting, renewing or revoking exemptions . Pursuant to 
Article  5(1)(a), exemptions are to be included in Annexes III and IV on ly 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 co mponents 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 impac ts 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 
substitutes and the socioec onomic 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 specifies 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 4 (e) permits the use of m ercury in  metal halide lamps (MH).  
The Commission received one application to renew this exemption on 15  January  2015. The 
applicants in essence claimed that light -emitting diodes (LED) alternatives that are compatible 
with MH luminaires and provide similar perform ance are currently not available on the 
market , and that the exemption will be needed for many years as the lifetime of MH 
                                                 
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 professional luminaires is 15-25 years .4 On 20  January  2020 , the same applicant submitted a n 
updated renewal  application , based  largely  on the same argumentation . In line with the 
requirements of th e RoHS Directive (Article 5(5), second  subparagraph ), the exemption 
remains valid  until the Commission issues a decision on the renewal application.  
To evaluat e the applications to rene w 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 techn ical and scientific data 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 an d 
availability of substitutes, 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 updates were 
published9; stakeholders were notified.   
The Commission consulte d 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 an envisaged course of action 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  Articles 5(3) to 5(7).10 The Council and 
the European Parliament were notified of all activities.  
The supporting study highlighte d that : 
 despite multiple  efforts to develop mercury -free alternatives, it can be concluded that 
mercury cannot currently be substituted with another substance in MH lamps ; 
 reducing the amount of mercury in MH lamps would affect the function and 
performance  of the lamps and , probably , also their lifetime ; 
 currently, the substitution of mercury in the applications concern ed is technically 
impracticable, hence the study recommended renew ing the exemption for the 
maximum duration of a further five years.  
In con clusion, the scientific and technical assessments, including stakeholder consultations, 
detailed that the exemption criteria continue to be met with regard to exemption 4(e) as 
reliable substitutes are not yet available. The evaluation results also show ed that t he specific 
exemption would not weaken the environmental and health protection afforded by the 
REACH Regulation, in accordance with Article 5 of Directive 2011/65/EU.  
                                                 
4 http://rohs.exemptions.oeko.info/fileadmin/user_upload/RoHS_Pack_9/Exemption_4__e_/4e_LE_RoHS_E 
xemption_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 a vailable 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 3. LEGAL  ELEMENTS  OF THE  DELEGATED  ACT  
The delegated directive renews  exemption 4(e) listed 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 justif ies 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 e ntry 4(e) is to 
be renewed. The expiry date for this exemption is  set in line with Article 5(2), first 
subparagraph . As concluded by the evaluation, the state of developmen t of substitutes justifies 
renewing the exemption for the maximum validity period of  five years . The granted validity 
period is 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 20 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 electroni c equipment, by allowing the use of otherwise banned 
substances for specific applications, with the provisions and under the conditions of the RoHS  
Directive  and the procedure for adapt ing Annexes III and IV to scientific and technical 
progress.  
The delega ted directive  has no implications o n the EU budget.  EN 4  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 metal halide lamps  
(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 Dire ctive 2011 /65/EU.  
(4) By Decision 2010/571/EU2, the Commission granted, among other things , an 
exemption for the use of mercury in metal halide lamps (‘the exemption’) , which is 
now listed as exemption 4(e)  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) Mercury is used in metal halide lamps to improve the colour, efficiency, lifetime , and 
the stable operation of those specific l amps .  
(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 . An updated  renewal  application  was submitted  on 20 
January 2020. In accordance with Article 5(5)  of that Directive, the exemption remains 
valid until a deci sion on the renewal application has been adopted.  
(7) The evaluation of the renewal application , which took into account the availability of 
substitutes and  the socioeconomic impact of substitution, concluded that the  
                                                 
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 pr ogress, 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 substitution or elimination of mercury in the applications concerned is currently  
technically impracticable. 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 weake n the environmental and health 
protection afforded by it.  
(9) It is therefore appropriate to grant the renew al of the  exemption for a maximum period  
of five years , in accordance with Article 5(2) , first subparagraph,  of Directive 
2011/65/EU . In view of the re sults 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 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] . 
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 Sta tes 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 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.  
                                                 
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 Done at Brussels,  
 For the Commission  
 Ursula VON DER LEYEN  
 The President