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 cold cathode fluorescent lamps and external 
elect rode fluorescent lamps for special purposes  
 
(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 cold cathode fluorescent lamps  (CCFL s) and 
external electrode fluorescent lamps  (EEFL s) for special purposes . 
Article 4 of t he RoHS Directive restricts the use of certain hazardous substances in electrical 
and electronic equipment (EEE). Restrictions currently apply to 10  substances , which are 
listed in Annex  II to the Directive : lead, mercury, cadmium, hexavalent chromium, 
polybrominated biphen yls (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 materials and components of EEE for specific 
applicati ons exempted from the substance restrictions under Article 4(1).  
Article  5 of the Directive provides for Annexes  III and  IV to be  adapt ed to scientific and 
technical progress, which can involve  granting, renewing and revoking exemptions . Pursuant 
to Articl e 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 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) t he total negative 
environmental, health and consumer safety impacts caused by substituting the substance are 
likely to outweigh the total environmental, health and consumer safety benefits thereof.   
Decisions on exemptions and their duration are to take i nto account the availability of 
substitutes and the socioeconomic impact of substitution. Decisions on the ir duration are to  
take into account any potential impact on innovation. Life -cycle thinking on the overall 
impacts of the exemption is to apply, wher e relevant.  
Article  5(1)(a) of the Directive requires  the Commission to include materials and components 
of EEE for specific applications list ed in Annexes  III and  IV by means of individual delegated 
acts. Article  5(3) and Annex  V establish the procedure for submitting exemption -related  
applications.  
2. CONSULTATIONS  PRIOR  TO THE  ADOPTION  OF THE  ACT  
The Commission receives requests3 from economic operators to grant or renew exemptions 
pursuant to Article  5(3) of and Annex  V to the RoHS  Directive .  
The curr ent exemption 3 (a) to (c)  of Annex III permits the use of  mercury in cold cathode 
fluorescent lamps and external electrode fluorescent lamps ( CCFL  and EEFL ) for special 
purposes not exceeding (per lamp): 3(a)  Short  length (≤ 500 mm) :3,5 mg ; 3(b) Medium  length 
(> 500 mm and ≤ 1 500 mm) : 5 mg ; 3(c) Long  length (> 1 500 mm) :13 mg . 
                                                 
1 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 equipment (OJ L 174, 1.7.2011, p.  88). 
2 OJ L 396, 30.12.2006, p. 1. 
3 http://ec.europa.eu/environment/waste/rohs_eee/adaptation_en.htm . EN 2  EN The Commission received one application f or renewal of this exemption on 15  January  2015.  
The applicants in essence claimed the lack of availability  of substitutes for applicatio ns 
covered by that exemption , which  have extremely long effective life  and can be replaced by 
manufacturers and professionals only.4 An additional renewal application , from the same 
applicants, was received in January 2020.  In line with  the requirements of the RoHS Directive 
(Article 5(5), second subparagraph), the exemption remains valid  until the Commission take s 
a decision on the renewal application.  
To evaluat e the application to renew that exemption, the Commission launched a study  in 
June 20155, concluded in 2016,  to carry out the required technical and scientific assessmen t, 
including an eight -week online stakeholder consultation.6 Further  to th at study assessing the 
extensive technical 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 and on 
the 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 consulted the Member State expert group for delegated act s 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 all the requisite procedural steps relating to 
exemptions from the substance restric tion under Article 5(3) to 5(7)10. The Council and the 
European Parliament were notified of all activities.  
The final supporting study  pointed out  that mercury -free substitutes in the form of 
light-emitting diodes ( LED s) are available and are used as lighting sources in new equipment 
coming on to the market. However, it concluded  that it is not feasible to use LED lamps as 
replacement s for the repair of EEE originally designed with CCFL/EEFL light sources.  
Therefore , the exemption sh ould be renewed  for the latter.   
In conclusion, the scientific and technical assessments, including stakeholder consultations, 
found  that: 
– the exemption criteria continue to be met with regard to exemption  3(a) to  (c), as it is 
not feasible to use LED lamps as replacement s for the repair of EEE originally 
designed with CCFL/EEFL light sources ; and  
– due to the very long life of CCFL s/EEFL s, the renewal of the exemption for the 
maximum of a further 5 years  is justified .  
                                                 
4 http://rohs.exemptions.oeko.info/fileadmin/user_upload/RoHS_Pack_9/Exemption_3__ac _/ 
3a_3b_3c_LE_RoHS_Exemption_Req__Final.pdf    
5 The f inal report of the study is available at : https://op.europa.eu/en/publication -detail/ -/publi cation/a3fdcc8c -
4273 -11e6 -af30-01aa75ed71a1  
6 Consultation period: 21 August 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/format -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 available on the Commission website . The 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 . EN 3  EN The evaluation also found that t he renewal would not weaken the environmental and health 
protection afforded by the REACH Regulation  (in accordance with Article  5 of the Directive ).  
3. LEGAL  ELEMENTS  OF THE  DELEGATED  ACT  
The delegated directive renews  exemption  3(a) to (c) in Annex  III to the RoHS Directive, 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 of Article 5(1)(a) of the RoHS 
Directive, which justifies  extending  the exemption: mercury cannot be reliably substituted in 
the lamp categories covered by this exemption.  
In summary, the conditions for the exemption are fulfilled, and exemption 3 entries (a) to (c ) 
is to be renewed.  
The date s by which the exemption is to expire are set in line with Article  5(2), first 
subparagraph. The evaluation concluded that the state o f development of substitutes justifies 
renewal for the maximum period of 5 years. This is not expected to have adverse impacts on 
innovation.  
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 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 electri cal and electronic equipment, by allowing the use of otherwise banned 
substances for specific applications,  with the provisions and under the conditions of RoHS 
and the therein established procedure for the adapta tion of the Annexes III and IV to scientifi c 
and technical progress.  
The delegated directive  has no implications on 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 cold cathode fluorescent lamps and external 
electrode fluorescent lamps for special purposes  
 
(Text wi th 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 t he 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 
applie s 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 cold cathode fluorescent lamps and external 
electrode fluorescent lamps (CCFL and EEFL) for special purposes  (‘the exemption’) , 
which is now listed as exemption 3(a), 3(b) and 3( c) in Annex  III to Directive 
2011/65. The exemption was to expire on 21 July 2016, in accordance with A rticle 
5(2), second subparagraph, point  (a), of that Directive . 
(5) The exemption covers a heterogeneous group of lamps of different shapes, 
technologies, applications , and purposes. Mercury is used in the discharge tube, which 
is essential to convert electric al energy to light.  
(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, which was followed  in January 2020 by  an additional 
                                                 
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 5  EN renewal application  from the same applicant. In accordance with Article 5(5)  of 
Directive 2011/65/EU, the exemption remains valid until a decision on the renewal 
request 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  
substitution or elimination of mercury in the applications concerned  is currently 
technically impracticable. However, th at evaluation highlighted that mercury -free 
substitutes in the form of light  emitting diodes lamps (LED) are available, and that 
they are used as lighting sources in new equipment coming on the market. The 
evaluation included stakeholder consultations in acc ordance 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 Cou ncil3 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  for a maximum period 
of five years , in accordance with Article 5(2),  first subparagraph, of Directive 
2011/65/EU,  only for those lamps used in the electrical and electronic equipment  that 
was placed on the market before the adoption of this Directive.  In accordance with the 
first sub paragraph of Article 5(2)  of Directive 2011/65/EU, the duration of the 
exemption is established in light of unavailability of substitutes for EEE originally 
designed with CCFL/EEFL light source s, and is unlikely to have adverse impacts on 
innovation .  
(10) Directive 2011/65/EU should t herefore 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 p rovisions 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 determine how such reference is to be made.  
                                                 
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) 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 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 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.  
Done at Brussels,  
 For the Commission  
 Ursula VON DER LEYEN  
 The President