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 the use of cadmium and lead in plastic profiles in electrical and elect ronic 
windows and doors containing recovered polyvinyl chloride  
(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 
progress, Annex III 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 applications containing 
cadmium  and lead . 
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 Annex 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 diisobutyl 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 adaptation 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 substitution are likely to outweigh the total 
environmental, health and consumer safety benefits thereof.  
Decisions on exemptions, and their duration, are furthermore to take into account the 
availability of substitutes and the socioeconomic impact of substitution; and  decisions on the 
duration of exemptions shall take into account any potential impact on innovation. Life -cycle 
thinking on the overall impacts of the exemption shall apply, where relevant.  
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 appl ications 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 Commission received a request  for a new  exemption for use of cadmium and lead in 
plastic profiles in electrical and electronic windows and doors containing recover ed polyvinyl 
                                                 
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   
EN 2  EN chloride  (PVC)  in December 2015 (request no. B-2016).  The exemption concerns electrical 
and electronic equipment listed in category 11  of Annex I4.  
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. Eighteen contribution s were 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  during the expert meeting s on 22 September 2017  and on 21 October 2019 . 
One expert explicit ly supported the granting of the exemption, two Member State ex perts 
expressed their opposition , stressing mainly the need for alignment with Regulation (EC) 
No 1907/2006 (REACH)  as well as to apply the same requirements to virgin and recycled 
material . In addition, one of the comments asked for removal of the symbol with “PVC”  from 
the wording. This comment was accepted and the draft Delegated Directive  subsequently 
amended  accordingly . The remainder of experts remained silent . In accordance with the 
Bette r Regulation Guidelines, the draft Delegated Directive  was published on the Better 
Regulation Portal for a four -week public feedback period. Two comments were received , both 
supporting the draft proposal while requesting an exemption validity period of fif teen years. 
Furthermore, one of the comments questioned the applicability of the RoHS Directive to 
electrical and electronic windows and doors. All necessary steps relating to exemptions from 
the substance restriction pursuant to Article s 5(3) to 5(7) have  been performed .7 The Council 
and the European Parliament were notified of all activities.  
The final report  of the technical and scientific assessment highlighted in particular the 
following technical information and assessment : 
 Cadmium and lead are used i n PVC  frame material for windows and door sets  for the 
purpose of polymer stabilisation of the PVC profiles .  
 While lead - and cadmium -free technologies used in virgin PVC are available on the 
market , use of recovered  PVC8 requires lower  amount s of energy a nd natural 
resources (such as water, petroleum and natural salt) than would be otherwise needed 
for use of  virgin PVC . The use of recovered  PVC is thus associated with s ocio-
economic benefit s in particular with regard to dec arbonisation, circular economy and 
raw material availability .  
 At least one of the relevant criteria specified in Article 5(1)(a) is met by the 
application subject to the exemption request : the total negative environmental, health 
                                                 
4 The categories listed in Annex I of Directive 2011/65/EU are namely: 1. Large household appliances; 2. 
Small household appliances; 3. IT and telecommunications equipment; 4. Consumer equipm ent; 5. 
Lighting equipment; 6. Electrical and electronic tools; 7. Toys, leisure and sports equipment; 8. Medical 
devices; 9. Monitoring and control instruments including industrial monitoring and control instruments; 
10. Automatic dispensers; 11. Other EE E not covered by any of the categories above. Category 11 
enters in scope of Directive 2011/65/EU on 22 July 2019, as per Article 4(3) to that Directive.  
5 Consultation period : from 28 October until  22 December 2016.  
6 https://publications.europa.eu/en/publication -detail/ -/publication/e8c8a008 -3e99 -11e7 -a08e -
01aa75ed71a1   
7 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 . 
8 ‘Recovered PVC’ refer to mixtures produced from PVC waste.   
EN 3  EN and consumer safety impacts by substitution (i.e. use of  virgin PVC not containing 
lead and cadmium  associated with high use of raw material and primary energy) are 
likely to outweigh the total environmental, health and consumer safety benefits 
thereof (avoidance of lead and cadmium in EEE to be placed on the m arket).   
The evaluation results show the specific exemption would at this point 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.  Under REACH, there i s a restriction 
process on lead in PVC ongoing since 2016. The recent publication of a draft restriction 
proposal under REACH9 provides sufficient indications with regard to recovered PVC in 
order to proceed with the decision under RoHS. In any case, in li ght of the ongoing REACH 
restriction process, the exemption should be granted for a short validity period of 2 years to 
ensure alignment with REACH once the restriction process is concluded.  The validity period 
for the exemption being very short, it is also not expected to have adverse impacts on 
innovation . 
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 cadmium  and lead  in specific 
applications.  
The inst rument is a Delegated 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 application s, 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.  
                                                 
9 Draft Commission Regulation amending Annex XVII to Regulation (EC) No 1907/2006 of the 
European Parliament and of the Council on the Registration, Evaluation, Authorisation and Restriction 
of Chemicals (REA CH) as regards lead and its compounds is available here: 
http://ec.europa.eu/growth/tools -
databases/tbt/en/search/?tbtaction=search.detail&Country_ID=EU&num=668&dspLang=en&basdatede
b=10/07/2019&basdatefin=18/07/2019&baspays=&basnotifnum=&basnotifnum2=&bast ypepays=ANY
&baskeywords=.   
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 cadmium and lead in plastic profiles in electrical and electronic 
windows and doors contai ning recovered polyvinyl chloride  
(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 
electronic equipment1 and in particular Article 5(1)(a) thereof,  
Whereas:  
(1) Article 4(1) of 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 the 
applications listed in Annex III  and IV  to Directive 2011/65/EU.  
(2) The categories of electrical and ele ctronic equipment to which Directive 2011/65/EU 
applies are listed in Annex I to that Directive.  
(3) Cadmium  and lead are restricted substance s listed in Annex II to Directive 
2011/65/EU.  
(4) On 14 December 2015, the Commission received an application made  in accordance 
with Article 5( 3) of Directive 2011/65/EU for granting an exemption  for the use of 
cadmium  and lead  in electrical and electronic windows and doors containing 
recovered polyvinyl chloride  (PVC)  ("the requested exemption") .  
(5) The assessment  of the request included stakeholder consultations in accordance with 
Article 5(7) of Directive 2011/65/EU.  
(6) Cadmium and lead are used in recovered PVC  frame material for windows and door 
sets for the purpose of polymer stabilisation of the PVC profiles .  
(7) While lead - and cadmium -free virgin PVC is available on the market , use of recovered 
PVC  requires lower amount s of energy and natural resources (such as water, 
petroleum and natural salt) than the amounts that would be otherwise needed for use 
of virgin PVC . Therefore , the total negative environmental, health and consumer 
safety impacts by substitution are likely to outweigh the total environmental, health 
and consumer safety benefits thereof.  
(8) The exemption does not weaken the environmental and health protection afforded by  
Regulation (EC) No 1907/2006 of the European Parliament and of the Council .2 In 
                                                 
1 OJ L 174, 1.7.2011, p. 88.   
EN 5  EN light of the restriction process on lead in PVC  provided for in Regulation (EC) No 
1907/2006 , the exemption should be granted for a short validity  period of 2 years to 
ensure full alignment with that Regulation  once the relevant restriction process is 
concluded.  
(9) It is, therefore, appropriate to grant t he exemption by including the applications 
covered by that exemption  in Annex III to Directive  2011/65/EU with respect to 
electrical and electronic equipment of category 11 of Annex I to Directive 
2011/65/EU .  
(10) The exemption should be granted for the duration of 2 years starting from  [the date of 
the publication of the Delegated Directive in the Official Journal ], in accordance with 
the first subparagraph of Article 5(2) of Directive 2011/65/EU . In view of the results 
of the ongoing efforts to find a reliable  substitution , the duration of th e exemption is 
unlikely to have adverse impacts on in novation .  
(11) 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 5th 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 C ommission the text of those provisions.  
They shall apply those provisions from [the last day of the 5th 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 States shall communicate to the Commission the text of the main provisions 
of national l aw 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 M ember States.  
                                                                                                                                                         
2 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 
establis hing a European Chemicals Agency (OJ L 396, 30.12.2006, p. 1).   
EN 6  EN Done at Brussels,  
 For the Commission  
 The President  
 […]