EN    EN 
 
 
 EUROPEAN  
COMMISSION   
Brussels, XXX   
[…](2017) 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 lead in high melting temperature solders  
(Text with EEA relevance)    
EN 2   EN EXPLANATORY MEMORANDUM  
1. CONTEXT  OF THE  DELEGATED  ACT  
This Commission Delegated Directive amends, for the purpose of adapting to technical 
progress, Annex I II 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 e lectronic 
equipment  (recast)1 (RoHS  2) as regards an exemption for specific applications containing 
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 restricted substances are listed in Annex II to RoHS  2. While the restriction s of lead, 
mercury, cadmium, hexavalent chromium, polybrominated biphenyls, and polybrominated 
diphenyl ethers are in force to date, the r estriction s of bis(2 -ethylhexyl) phthalate (DEHP), 
butyl benzyl phthalate (BBP), dibutyl phthalate (DBP), diisobutyl phthalate (DIBP) shall 
apply  from 22 July 2019  or later . Annexes III and IV to RoHS 2 list the materials and 
components of electrical and e lectronic 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 followi ng 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 subst itutes 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.  
Furthermore, Article 5(1) provides that the E uropean 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 proce dure for submitting applications 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 current  Annex III exemption 7(a) permits the use of lead in high melting temperature type 
solders (i.e. lead -based alloys contain ing 85 % by weight or more lead). The Commission 
received six application s for renewal of this exemption in November and December  2014 , and 
January  2015 . While e xemption 7(a) had 21 July 2016  as expir ation date  for categories 1 to 7 
and 104, in line with the requirements of the RoHS  Directive  (Article 5(5), second 
                                                 
1 OJ L 174, 1.7.2011, p. 88.  
2 OJ L 396, 30.12.2006, p. 1. 
3 The l ist is given at: http://ec.europa.eu/environment/waste/rohs_eee/adaptation_en.htm . 
4 These categories are namely: 1. Large household appliances; 2. Small household appliances; 3. IT and 
telecomm unications equipment; 4. Consumer equipment; 5. Lighting equipment; 6. Electrical and  
EN 3   EN subparagraph ), it continues to apply until a decision on the renewal application is taken by the  
Commission.  
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. Five contributions 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 an expert meeting on 15 December 2016, which also involved 
presentations from the applicants and stakeholder s most concerned.  The experts agreed with 
the draft presented by the Commission, with a large majority of absent or silent members. All 
necessary steps relating to exemptions from the substance restriction pursuant to Article s 5(3) 
to 5(7) have been perfor med. Due to the large amount of simultaneous exemption requests 
and connected administrative requirements, the Commission decision procedure followed 
alternative deadlines as per Article 5(5). The Council and the European Parliament were 
notified of all activities.  
The final report highlighted in particular the following technical information and assessment : 
 Lead gives solders crucial properties such as high melting point, electrical 
conductivity, thermal conductivity, ductility, corrosion -resistivity, ap propriate 
oxidation nature, and wettability . These properties are inherent  to lead; it is the only 
known element which can provide the combination of these  properties . 
 Currently, substitution or elimination of  lead in high melting temperature solders  is 
still scientifically or technically impracticable. Neither is it at the current stage 
possible to narrow the scope of the exemption  due to the high diversity of the 
applications concerned . 
The evaluation results for categories 1 to 7 and 10 show that at leas t one of the relevant 
criteria specified in Article 5(1)(a) is met by the exemption request relating to entry 7(a) in 
Annex III. Since for the applications concerned, no reliable alternatives are available today or 
are likely to come on the market soon , a renewal of the exemption with a  validity period until 
21 July 2021  is justified ; as reliable substitutes are not yet available, no negative 
socioeconomic impacts of substitution are to be anticipated for this period. The granted 
validity period is also not  expected to have  adverse impacts on innovation , while nonessential 
splitting of the wording and a shorter period could generate unnecessary administrative 
burden for industry . In order to avoid overlapping scopes of exemptions  within the Annex III, 
the proposed wording clarifies that  the applications covered by exemption 24 are excluded 
from the exemption 7(a) .  
For categories other than categories 1 to 7 and 10, the existing exemption remains as per the 
validity periods set out in Article 5(2) . The specif ic exemption does 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.  
                                                                                                                                                         
electronic tools; 7. Toys, leisure and sports equipment; 10. Automatic dispensers. EEE c ategories are 
listed  in Annex I  to the RoHS  Directive . 
5 Consultation period : from 21.08.2015 to 16.10.2015 . 
6 https://bookshop.europa.eu/en/assistance -to-the-commission -on-technological -socio -economic -and-
cost-benefit -assessment -related -to-exemptions -from-the-substance -restrictions -in-electrical -and-
electronic -equipment -pbKH0416554/ .  
EN 4   EN 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 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 f ield of electrical and electronic equipment , by allowing the use of otherwise banned 
substances for specific applications, in line with the provisions and under the conditions of 
RoHS  2 and the therein established procedure for the adaptation of the Annexe s 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.  
  
EN 5   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 lead in high melting temperature solders  
(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/E U 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 equipment7 and in particular Article 5(1)(a) thereof , 
Whereas:  
(1) Directive 2011/65/EU requires Membe r States to ensure that electrical and electronic 
equipment placed on the market does not contain lead. 
(2) Point 7(a) of Annex III to Directive 2011/65/EU exempted the use of lead in high 
melting temperature type solders (i.e. lead -based alloys contain ing 85 % by weight or 
more lead ) until 21 July 2016 . The Commission received an application for renewal of 
this exemption  in relation to categories 1 to 7 and 10 before 21 January  2015 , in 
accordance with Article 5(5) of Directive 2011/65/EU . 
(3) Lead gives solders crucial properties such as high melting point, electrical 
conductivity, thermal conductivity, ductility, corrosion -resistivity, appropriate 
oxidation nature, and wettability .  
(4) Currently, substitution or elimination of lead in high melting tempe rature solders is 
still scientifically or technically impracticable. Neither is it at current stage possible to 
narrow the scope of the exemption due to the high diversity of the applications 
concerned.  
(5) Since for the applications concerned  in categorie s 1 to 7 and 10  no reliable alternatives 
are available on the market  or are likely to be available on the market in the near 
future , a renewal of the exemption with a  validity period until 21 July 2021 is justified , 
while nonessential splitting of the word ing and a shorter period could generate 
unnecessary administrative burden  for the industry . In order to avoid overlapping 
scopes of exemptions  within the Annex III  to Directive 2011/65/EU , the proposed 
wording clarifies that  the applications covered by exemption 24  (solders for the 
soldering to machined through hole discoidal and planar array ceramic multilayer 
capacitors)  are excluded from the exemption 7(a) . For categories other than categories 
1 to 7 and 10, the existing exemption is valid  as per the validity periods set out  in the 
second subparagraph of  Article 5(2) of Directive 2011/65/EU . 
(6) Directive 2011/65/EU should therefore be amended accordingly,   
                                                 
7 OJ L 174, 1.7.2011, p. 88.   
EN 6   EN  
HAS ADOPTED THIS DIRECTIVE:  
Article 1  
Annex III to Directive 2011/65/EU is amended as set out i n the Annex to this Directive.  
Article 2 
1. Member States shall adopt and publish, by [the last day of the  12th 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  12th 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 comm unicate 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 Journa l of the European Union . 
Article 4 
This Directive is addressed to the Member States.  
Done at Brussels,  
 For the Commission  
 The President  
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