EN   EN 
 
 
 EUROPEAN  
COMMISSION   
Brussels, XXX   
[…](2022) 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 in gas absorption heat 
pumps 
(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 ( ‘the RoHS Direct ive’)1 as regards an exemption for hexavalent 
chromium as an anticorrosion agent in gas absorption heat pumps.  
Article  4 of the RoHS Directive restricts the use of certain hazardous substances in electrical 
and electroni c equipment. Currently, 10  substances  (or groups of substances)  are restricted 
and listed in Annex II to the Directive: lead, mercury, cadmium, hexavalent chromium, 
polybrominated biphenyls (PBB), polybrominated diphenyl ethers (PBDE), bis(2ethylhexyl) 
phthalate (DEHP), butyl benzy l phthalate (BBP), dibutyl phthalate (DBP) and diisobutyl 
phthalate (DIBP).  
Annexes III and IV to the Directive  list the materials and components of electrical and 
electronic equipment  for specific applications exempted from the substance restrictions in 
Article  4(1). Article  5 provides for Annexes III and IV to be adapted to scientific and 
technical progress ( on granting, renewing and revoking of exemptions). Under Article  5(1)(a), 
exemptions are to be included in Annexes III and IV only if this does not w eaken the 
environmental and health protection afforded by Regulation (EC) No  1907/2006 (REACH)2 
and if any of the following conditions is fulfilled:  
– the elimination or substitution of the substance via design changes or use of materials 
and components that  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;  
– the total negative environmental, health and consumer safety impacts of substitution 
are li kely to outweigh the total environmental, health and consumer safety benefits.  
Decisions on exemptions, and their duration, must  take into account the availability of 
substitutes and the socio -economic 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 apply, where relevant.  
Article  5(1) provides for the Commission to include materials and components of electrical 
and elec tronic equipment  for specific applications in the lists in Annexes  III and IV by means 
of individual delegated acts pursuant to Article  20. Article  5(3) and Annex  V establish the 
procedure for submitting exemption applications.  
2. CONSULTATIONS  PRIOR  TO THE ADOPTION  OF THE  ACT  
The Commission receives numerous requests from economic operators to grant or renew 
exemptions under Article  5(3) and Annex V to the RoHS Directive3. 
                                                 
1 OJ L 174, 1.7.2011, p.  88. 
2 Regulation (EC) No  1907/2006 of the European Parliament and of the Council of 18  December 2006 
concerning the Registration, Evaluation, Authorisation and Restricti on of Chemicals (REACH) and 
establishing a European Chemicals Agency (OJ L 396, 30.12.2006, p.  1). 
3 The list is available at: http://ec.europa.eu/environment/waste/rohs_eee/a daptation_en.htm . EN 2  EN On 23  December 2020, the Commission received an application for a new entry in Annex  III. 
The requested exemption concerns the use of hexavalent chromium as an anticorrosion agent 
in the working fluid of the carbon steel sealed circuit of gas absorption heat pumps  
(GAHPs) . 
In January 2021, the Commissi on added the request to an ongoing evaluation to  carry out the 
required technical and scientific assessment. The study, which included  a ten-week public 
stakeholder consultation, finished in February 20224. Information about the consultation was 
provided o n the project website5 and one stakeholder contribution was received . 
On 18 March 2022 , the Commission consulted the Member State s expert group for delegated 
acts under the RoHS  Directive . It carried out all the required procedural steps relating to 
exemptions from the restrictions on substances under  Articles 5(3) to 5(7)6. In this context , 
the European Parliament and the Council were notified of all activities.  
Technical evaluation  
Heat pumps can be used to heat or cool an encl osed space.  They use a working fluid  as a 
medium to transfer thermal energy from or to the outside. GAHP s are thermal ly heat-driven , 
for example  by burning natural gas. Their working fluid consists  of a refrigerant and an 
absorption medium.  
The GAHP s relevant for the current exemption request  are designed for heating purposes  in 
residential and professional buildings, where they can also replace existing boilers especially 
in high or medium temperature sectors . These GAHP s fall under the RoHS Directi ve, because 
parts such as the pump for the working fluid are electricity driven, and because they are 
smaller than larger GAHPs for industrial applications, which could be exempted from RoHS 
as large -scale fixed installations.  
The working fluid in the rele vant application is an ammonia -water mixture, circulating in a 
sealed circuit made of steel, which requires the use of a corrosion inhibitor. As an 
anticorrosion agent, hexavalent chromium in  the form of sodium chromate  is added in to 
the working fluid. During the lifetime  of the GAHP , the hexavalent chromium is reduced to 
trivalent chromium oxide, which creates a protective layer . Trivalent chromium oxide  is not 
restricted under the RoHS Directive.  
It has been confirmed  in the technic al assessment  that the working fluid containing hexavalent 
chromium in GAHP s is the state -of-the-art technology and no substitutes as anticorrosion 
agent are currently readily available . The technology can in principle  be replaced by other 
heating systems.  
GAHP technology is more energy -efficient than combustion technolog ies such as  regular 
(condensing) boilers . Where it is appropriate to modernise certain heating systems, GAHP s 
help to save CO 2 emissions. The technical assessment study concluded that each additional 
installed GAHP could save 15  t more of CO 2 emissions over 20 years compared with 
competing technologies such as  condensing boilers or hybrid systems7. GAHP s can be  
                                                 
4 Study to assess requests for renewal of 12 exemptions to Annex IV of Directive 2011/65/EU  
Review of request for  amendment of exemption III -9: final report . 
5 Consultation period: 18  March 2021 to 27  May 2021 ( https://rohs.biois.eu/requests3.html ). 
6 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 . 
7 Example household with 25  MWh of annual heating energy. Hybrid systems consist here of a 
condensing boiler and an electrical heat pump.  EN 3  EN particularly beneficial  if they run with renewable energies and ‘green gases ’ (like biomethane  
or green hydrogen) instead of natural gas.  
Based on information provided by the applicant , it was estimated  that, in the worst case , 
around 38  g of hexavalent chromium is used per GAHP and around 1  400 kg would be placed 
on the market per year  if the exemption was provided . Hexavalent chromium causes a health 
risk, in particular during  the manufacturing  of GAHP s, and in the end of life phase. The risk 
from sodium chromate in GAHP s was evaluated, especially under the REACH authorisation 
process  concerning a particular application for authorisation . The concentration of h exavalent 
chromium is gradually reduce d during the lifetime of the GAHP due to the chemical reaction 
to a protective layer. Assuming that the refrigerant solution is profe ssionally removed at the 
end of life  of the GAHP , similar to the treatment of  absorption refrigerators  according to the 
requirements of the Directive  on waste electrical and electronic equipment8, the waste GAHP 
is to be treated in an environmental ly sound manner.  
Sodium chromate, which contains  hexavalent chromium, is a substance classified as 
carcinogenic, mutagenic and toxic for reproduction . It is listed as entry 22 in Annex XIV of 
REACH. A manufacturer, importer or downstream user must  not place a substance on the 
market for a use , or use it  himself , if that substance is included in Annex XIV, unless the  use 
of that substance on its own or in a mixture or  the incorporation of the substance into an 
article for which the substance is placed on the m arket or for which he uses the substance 
himself has been authorised.  
Under Article  5(1)(a) of the RoHS Directive, exemptions are to be included in Annexes III 
and IV only if this does not weaken the environmental and health protection afforded by 
REACH.  
In February 2019, the applicant for the current RoHS exemption also submitted an application 
for authorisation under REACH for a use of sodium chromate as an anticorrosion agent of the 
carbon steel in the sealed circuit of gas absorption appliances up to 0.7% by weight (as 
hexavalent chromium (Cr(VI)) in the refrigerant solution. It was found in the technical 
evaluation that t he same maximum concentration can apply for a potential RoHS exemption 
entry. The Committee for Risk Assessment concluded that the risk management measures and 
operational conditions described in the application, and further detailed by the applicant at the 
Committee's  request, are expected to be appropriate and effective to limit the risk to workers 
and to the general population through  the environment. However, it recommended a set of 
monitoring arrangements for worker exposure and emissions to the enviro nment.  
The Committee for Socio -economic Analysis , in its analysis , conclude d that there are clear 
net losses to society if the authorisation is not granted. The main impacts were seen to relate 
to lost profits, energy saving and reduced carbon dioxide emis sions. This Committee a lso 
concluded that there were no suitable alternative substances or technologies available at the 
time of adoption of its opinion (11  June 2020). As reflected in the opinions  of both the 
Committee for Risk Assessment and  the Committe e for Socio -economic Analysis , the gas 
absorption appliances to which the content of the application refers, including the analysis of 
alternatives, are limited to gas absorption heat pumps only . 
An exemption under the RoHS Directive allowing the  placing o n the market of GAHP s 
containing hexavalent chromium does not, as such , affect that authorisation requirement under 
Regulation (EC)  1907/2006, nor would the granting of an authorisation under Regulation 
(EC)  1907/2006  affect the need to obtain an exemption under Directive 2011/65/EU.  While 
                                                 
8  OJ L 197 24.7.2012, p. 38 . EN 4  EN the authorisation process for the above -mentioned application is ongoing,  no reasons for 
refusal  of such authorisation  were raised  related to compliance with REACH conditions for 
granting an authorisation . Therefore , it can be concluded in this specific case that an 
exemption under the RoHS Directive does not weaken the environmental and health 
protection afforded by REACH.  
Other heating technologies that eliminat e the use of hexavale nt chromium in the form of 
sodium chromate cannot offer equivalent functionality and performance. Research efforts 
aiming at  reducing the hexavalent chromium content and/or substitut ing or eliminat ing 
hexavalent chromium under the same conditions will fore seeably require more than 5 years.  
This conclusion is in line with the findings under the REACH authorisation process9. 
In the context  of the assessment under the RoHS Directive, and given  the current 
unavailability of practicable  substitution technologies, the main aspect of relevance relates to 
assessing  the impact caused by substitution and elimination against the benefits provided by 
GAHPs containing hexavalent chromium . From the technical evaluation , it became clear that 
the technology can sa ve CO 2 by replacing conventional technologies ; such savings are even 
more important when fossil -free, renewable energies are used . 
Under reasonable conditions, the environmental and health risks of using hexavalent 
chromium can be limited t o an acceptable level. Environmentally sound waste treatment 
technologies are available for the refrigerant solution and GAHP s system  and safety  
precautions must be taken when assembling and disassembling any GAHP including 
hexavalent chromium.  
Overall, it  is concluded that the total benefits of granting the exemption are likely to outweigh 
the negative impacts . 
 
3. LEGAL  ELEMENTS  OF THE  DELEGATED  ACT  
The proposed act grant s an exemption from the substance restrictions in Annex II to Directive 
2011/65/EU, to be listed in Annex III, for hexavalent chromium as an anticorrosion agent of 
gas absorption heat pumps.  
The evaluation show s that the exemption to be granted would not weaken the environmental 
and health protection afforded by the REACH Regulation, in accordance with Article  5 of 
Directive 2011/65/EU.  
At least o ne of the relevant criteria specified in Article  5(1)(a) is met . Given the current 
unavailability of practicable substitutes for the use of hexavalent chromium as an 
anticorrosion agent , the total negative environmental, health and consumer safety impacts 
caused by substitution or elimination are likely to outweigh the to tal environmental, health 
and consumer safety benefits of the requested application. Therefore, the exemption is to be 
granted and an expiry date is to be set.  
Research efforts to find possibilities for reducing the hexavalent chromium content and/or to 
substitute or eliminate hexavalent chromium will foreseeably require more than 5 years  seen 
from the time of the technical evaluation . It is therefore appropriate  to grant the maximum 
five-year validity period for this exemption. The date by which this exemp tion will expire is 
set in line with Article  5(2), first subparagraph.  
                                                 
9  Committee for Ristk Assessment (RAC), Committee for Socio -economic Analysis (SEAC) - Opinion 
on an Application for Authorisation for sodium chromate as an anticor rosion agent (…)   EN 5  EN A similar exemption, exemption 9(a) -II in Annex III, allows hexavalent chromium in cooling 
systems of absorption refrigerators. The exemption is currently under review. Although this 
entry and the present requested exemption are based on the same physical principle , the final 
use differs, which, among others, justified the applications being assessed separately against 
the criteria of Article  5(1)(a).  
It is proposed to add a new entry 9(a) -III for the relevant application in Annex III . Since the 
GAHPs  described in the exemption request  fall under category 1 ‘large household appliances’ 
of Annex I, the scope of the exemption should be limited to th ose. 
The legal instrument is a delegated directive, as provided for in Directive 2011/65/EU and 
meeting the relevant requirements of its Article  5(1)(a).  
The objective of the delegated directive is to  protect human health and the environment, and 
to harmonise pr ovisions for the functioning of the single market in the field of electrical and 
electronic equipment , by allowing the use of otherwise banned substances for specific 
applications, in line with the RoHS Directive and the procedure established therein for 
adapting Annexes III and IV to the Directive to scientific and technical progress.  
The delegated directive has no implications for the EU budget.  EN 6  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 in gas absorption heat 
pumps 
(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) Hexavalent chromium is a restricted substance listed in Annex II to Directive 
2011/65/EU.  
(4) On 23  December 2020, the Commission received an application made in accordance 
with Article  5(3) of Directive 201 1/65/EU for an exemption to be listed in Annex III 
to that Directive, for the use of hexavalent chromium as an anticorrosion agent in the 
working fluid of the carbon steel sealed circuit of gas absorption heat pumps (‘the 
requested exemption’).  
(5) Gas absorpt ion heat pumps require electricity for auxiliary functions like pumping a 
working fluid through the system. The gas absorption heat pumps described in the 
requested exemption  fall under category 1 ‘large household appliances’ of Annex I to 
Directive 2011/65/EU.  
(6) The evaluation of the exemption  application , which included a technical and scientific 
assessment study2, concluded that substitution of hexavalent chromium in the 
refrigera nt solution is currently scientifically and technically impracticable, and other 
heating technologies eliminating the use of hexavalent chromium in the form of 
sodium chromate cannot offer equivalent functionality and performance.  Gas 
                                                 
1 OJ L 174, 1.7.2011, p.  88. 
2 Study to assess requests for renewal of 12 exemptions to Annex IV of Directive 2011/6 5/EU  - 
Review of request for amendment of exemption III -9: final report.  EN 7  EN absorption heat pumps  can indeed  provide higher energy efficiency than condensing 
boiler technologies, can help to replac e those systems and can lead to carbon dioxide 
emission savings.  That evaluation thus concluded that a t least one of the relevant 
conditions  specified in Ar ticle 5(1), point (a), of Directive 2011/65/EU is met, namely 
that the total negative environmental, health and consumer safety impacts of 
substituti ng hexavalent chromium in the uses covered by the exemption application  
are likely to outweigh the total en vironmental, health and consumer safety benefits 
thereof.  The evaluation included stakeholder consultations as required by  Article  5(7) 
of Directive 2011/65/EU. The comments received during those consultations were 
made publicly available on a dedicated website.  
(7) A maximum concentration  of 0,7% hexavalent chromium by weight in the refrigerant 
solution is considered as sufficient for the requested exemption .  
(8) The placing on the market for a use and the use of substances listed in Annex XIV to 
Regulation (EC ) No 1907/ 20063 are subject to an authorisation requirement under that 
Regulation. That Annex lists a number of hexavalent chromium compounds, including 
sodium chromate. Regulation (EC) No  1907/2006 and Directive 2011/65/EU apply 
without prejudice to each other . The use of a hexavalent chromium compound listed in 
Annex XIV to Regulation (EC) No  1907/2006 and its placing on the market for a use 
is subject to authorisation under that Regulation.  The granting of an exemption under 
Directive  2011/65/EU  does not  affect that authorisation requirement under Regulation 
(EC) 1907/2006, nor would the granting of an authorisation under Regulation 
1907/2006 affect the need to obtain an exemption under Directive 2011/65/EU . No 
reasons have been found according to which g ranting the requested exemption under 
Directive 2011/65/EU  would weaken the environmental and health protection afforded 
by Regulation (EC) No 1907/2006.  
(9) It is, therefore, appropriate to grant the requested exemption by including the 
applications covered by it  in Annex III to Directive 2011/65/EU  with respect to 
electrical and electronic equipment of category 1 . 
(10) Research efforts to find possibilities for reducing the hexavalent chromium content 
and/or to substitute or eliminate the use of hexavalent chromi um will foreseeably 
require more than 5 years. Thus, it is appropriate to grant the requested exemption 
until 31 December 2026 , in accordance with Article  5(2), first subparagraph, of 
Directive 2011/65/EU.  
(11) Directive 2011/65/EU should therefore be amended a ccordingly,  
HAS ADOPTED THIS DIRECTIVE:  
Article  1 
Annex I II to Directive 2011/65/EU is amended as set out in the Annex to this Directive.  
                                                 
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 8  EN Article  2 
1. Member States shall adopt and publish, by [OP please insert the date: 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 the text of those provisions to the 
Commission.  
They shall apply th ose provisions from [OP please insert the date: 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.  
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 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  
 Ursula VON DER LEYEN