EN   EN 
 
 
 EUROPEAN  
COMMISSION   
Brussels, XXX   
[…](2021) XXX  draft 
 
COMMISSION DELEGATED DIRECTIVE (EU) .../…  
of XXX  
amending, 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 as regards an 
exemption for the use of mercury in non -linear tri -band phosphor lamps   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 specific applications containing mercury  in non -linear tri -band phosphor lamps . 
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 Directive : lead, mercury, cadmium, hexavalent chromium, 
polybrominated biphenyls (PBB), polybrominated diphenyl ethers (PBDE), bis (2 -ethylhexyl) 
phthalate (DEHP), b utyl benzyl phthalate (BBP), dibutyl phthalate (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 adaptation  of 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 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 d o 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 sub stituting 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 socioeconomic impact of su bstitution. 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 mat erials and components of EEE for specific 
applications listed 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)(3) permits the use of m ercury in non -linear tri -band 
phosphor lamps with a tube diameter of > 17 mm (e.g. T9) : 15 mg. 
The Commission received two applications to renew this exemption in 2015. The applicants 
in essence claimed th at substitutes for the applications covered by that exemption  were not 
                                                 
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 availab le.4 One of the applications was renewed in January 2020  with additional information , 
in particular  as concerns the practicable mercury limit . 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 application to renew that exemption, the Commission launched a study5 in 
June 2015, 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 in 20197 an update of the 2016 st udy, focused on the 
socioeconomic assessment and on the availability of substitutes of this and other exemptions. 
The final report of the study was published8 and stakeholders were notified.  
The Commission consulted the Member State expert group for delega ted acts under the RoHS 
Directive during the expert meetings of 1  September  2016, 29  October  2018 and 
21 October  2019 to collect the  Member States’ views on an envisaged course of action in line 
with the c onclusions 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).9 The Council and the 
European Parliament were notified of all activities.  
The final supporting study highlighted that : 
 substitutes are available at system level ( light-emitting diodes (LED) luminaires), but 
the range of substitutes at component level (replacement LED ) and their 
compatibility with existing installations is yet to be verified in terms of dimensions 
and electr ic compatibility ; 
 more t ime is needed to develop sufficient compatible alternatives, hence the study 
recommended renew ing the exemption for the maximum duration of three years ; 
 however, t he reduction in mercury content  limits is already technically possibl e. 
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)(3) 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.  
3. LEGAL  ELEMENTS  OF THE  DELEGATED  ACT  
The delegated directive renews  exemption 2(b)(3) listed in Annex III to Directive  2011/65/EU 
for the use of mercury in specifi ed applications.   
                                                 
4 http://rohs.exemptions.oeko.info/fileadmin/user_upload/RoHS_Pack_9/Exemption_2_b__34_/  
Lighting_Europe/ 2b3_LE_RoHS_Exemption__Req_Final.pdf   and 
http://rohs.exemptions.oeko.info/fileadmin/user_upload/RoHS_Pack_9/Exemption_2_a__15_/  
NARVA/01_02_a__2b3_4a.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://ec.europa.eu/environment/ waste/rohs_eee/studies_rohs1_en.htm . 
9 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 Inter -institutional Registry of Delegated Acts at 
https://webgate.ec.europa.eu/regdel/#/home . EN 3  EN 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: the substitution of mercury with 
reliable substitutes in the lamp categories concerned by this exemption cannot currently be 
ensured.  
In summary, the cond itions for the exemption are fulfilled, and exemption 2(b)(3) is to be 
renewed. The assessment also concluded that the mercury concentration limit in the lamp 
categories covered by that exemption can be lowered from 15  mg to 10  mg per lamp.  
The expiry date for this exemption is 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  three more years. The 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 electronic equipment, by allowing the use of otherwise banned 
substances f or 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 delegated directive  has no implications o n the EU budget.  EN 4  EN COMMISSION DELEGATED DIRECTIVE (EU) .../…  
of XXX  
amending, 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 as regards an 
exempti on for the use of mercury in non -linear tri -band phosphor lamps  
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 Cou ncil 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 
applicat ions 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 non -linear tri -band phosphor lamps with tube 
diameter > 17 mm (e.g. T9)  (‘the exemption’) , which is now listed as exemption 
2(b)(3) in Annex  III to  Directive 2011/65. 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 non -linear tri -band phosphor lamps to produce ultraviolet light, 
which is then converted  into visible light by the fluorescent coating on the lamp. The 
composition of the coating, which contains the mercury, determines light colour and 
colour rendering.  
(6) On 19 December 2014 and 15 January 2015 , the Commission received two 
applications  for ren ewal of the exemption (‘the renewal application’) , that is within the 
time limit laid down in Article 5(5) of Directive 2011/65/EU, one of which was with a 
renewed application on 20 January 2020. . In accordance with Article 5(5)  of Directive 
2011/65/EU, an exemption remains valid until a decision on the renewal request has 
been taken . 
                                                 
1 OJ L 174, 1.7.20 11, 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 applica tions containing lead, mercury, cadmium, hexavalent 
chromium, polybrominated biphenyls 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 socioeconomic impact of substitution, concluded that the 
substitut ion or elimination of mercury in the applications concerned is currently  
technically impracticable. That evaluation further concluded that the mercury 
concentration limit in the lamp categories covered by that exemption can be lowered 
from 15 mg to 10 mg p er lamp.  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 Regul ation (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 , with a revised 
wording  setting out t he limited scope of the exemption,  for a period of three years , in 
accordance with Article 5(2), first subparagraph, of Directive 2011/65/EU,  to collect 
further data related to the availability of substitutes for the specific lamp types covered 
by that exemption. 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 accordingly,   
HAS ADOPTED THIS DIRECTIV E: 
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, t he 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 States shall determ ine 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 
concerni ng the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) and 
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 we ll 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 Directive shall enter into force on the twentie th 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  
 Ursula VON  DER LEYEN