EN   EN 
 
 
 EUROPEAN  
COMMISSION   
Brussels, XXX   
[…](2018) 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 the plating layer of certain diodes  
(Text with EEA relevance)  
This draft has not been adopted or endorsed by the European Commission. Any 
views expressed are the preliminary views of the Commission services and may not 
in any circumstances be regarded as stating an official position of the Commission.    
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 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 electronic 
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 RoH S 2. While the restriction s of lead, 
mercury, cadmium, hexavalent chromium, polybrominated biphenyls, and polybrominated 
diphenyl ethers are in force to date, the restriction 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 electronic equipment (EEE) for specific applications exempted 
from the substance restrict ion 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 A nnexes 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 mater ials 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 im pacts caused by substitution are likely to outweigh the total 
environmental, health and consumer safety benefits thereof.  
Furthermore, Article 5(1) provides that the European Commission (the Commission) shall 
include materials and components of EEE for spe cific 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 applications for granting, renewing, or 
revoking an exemption.  
2. CON SULTATIONS  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 37 permits the use of lead in the plating layer of high 
voltage diodes on the basis of a zinc borate glass body . The Commission received two 
application s for renewal of this exemption in January  2015 . While e xemption 37 had 21 July 
2016 as expiration date for categories 1 to 7 and 104, in line with the requirements of the 
                                                 
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.euro pa.eu/environment/waste/rohs_eee/adaptation_en.htm  
4 These categories are namely: 1. Large household appliances; 2. Small household appliances; 3. IT and 
telecommunications equipment; 4. Consumer equipment; 5. Lighting equipment; 6. Electrical and  
EN 2  EN RoHS Directive  (Article 5(5), second 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. One contributi on w as 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  in written form  as agreed during a previous meeting7. The experts agreed with 
the draft presented by the Commission, with a large majority of silent members. All necessary 
steps relating to exemptions from the substance restriction pursuant to Article s 5(3) to 5(7) 
have been performed. 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)8. The Council and the European Parliamen t were 
notified of all activities.  
The final report  highlighted in particular the following technical information and assessment : 
 High voltage diodes (HVD) can be built up to breakdown voltages of several 
kilovolts which cannot be achieved using convention al diode packages. Furthermore, 
the specific design of the diodes provides hermetical sealing of the chip . The diodes 
are used in external power supplies of IT and telecommunication equipment and for 
automotive applications.  
 During the manufacturing proces s of these diodes, lead contained in the glass beads 
dissolves into the plating solution, which results in around 2.5 % of lead content in 
the plating layer. Thus, the lead is not added intentionally but is the result of the 
contamination from the lead -containing glass.  
 Currently, avoiding the contamination of the plating layer of HVD is scientifically 
and technically impracticable.  
The evaluation results for categories 1 to 7 and 10 show that at least one of the relevant 
criteria specified in Article 5(1)( a) is met by the exemption request relating to entry 37 in 
Annex III. Since f or the applications concerned,  the avoidance of lead contamination is still 
impracticable , a renewal of the exemption with a  validity period until 21 July 2021 is 
justified ; as re liable 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 . 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 
specific exemption does not weaken the environmental and health protection afforded by 
                                                                                                                                                         
electron ic 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/   
7 The c onsultations were carried  out in written form from 27 April until 18 May  2017.  
8 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 .  
EN 3  EN Regulation (EC) No  1907/2006 (REACH), in accordance with Article 5  of Directive 
2011/65/EU.  
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 field of electrical and electronic equipment , by allowing the use of otherwise banned 
substances for specific applications, in line with the provisions and under t he 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 achiev e its objective.  
The proposal has no implications for the EU budget.  
  
EN 4  EN COMMISSION DELEGATED DIRECTIVE (EU) .../…  
of XXX  
amending, for the purposes of adapting to scientific and technical progre ss, Annex III to 
Directive  2011/65/EU of the European Parliament and of the Council as regards an 
exemption for lead in the plating layer of certain diodes  
(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) Directive 2011/65/EU requires Member States to ensure that electrical and electronic 
equipment placed on the market does not contain certain hazardous substances  listed 
in Annex II to that Directive.  That requirement does not apply to the applications 
listed in Annex III to Directive 2011/65/EU.  
(2) The different categories of electrical and electronic equipment for which Directive 
2011/65/EU applies (categories 1 to 11) are listed in Annex I to that Directive.  
(3) Lead is a restricted substance listed in Annex II to Directive 2011/65/EU. T he use of 
lead in the plating layer of high voltage diodes on the basis of a zinc borate glass body 
was, however, exempted from the restriction and is currently list ed in entry 37 of 
Annex III to that Directive. The expiry date of that exemption was, for categories 1 to 
7 and 10, 21 July 2016 .  
(4) The Commission received an application for renewal of th at exemption before 
21 January  2015, in accordance with Article 5 (5) of Directive 2011/65/EU.  The 
exemption remains  valid until a decision on that application has been adopted.  
(5) High voltage diodes (HVD) are used in external power supplies of IT and 
telecommunication equipment and for automotive applications. During the 
manufacturing process of HVD , lead contained in the glass beads dissolves into the 
plating solution, which results in approximately 2,5 % of lead content in the plating 
layer  of the diodes . Thus, the lead is not added intentionally but is the re sult of the 
contamination from the lead -containing glass.   
(6) Avoiding the contamination of the plating layer of HVD is scientifically and 
technically impracticable  and no reliable substitutes are available on the market . The 
exemption does not weaken the  environmental and health protection afforded by 
                                                 
1 OJ L 174, 1.7.2011, p. 88.   
EN 5  EN Regulation (EC) No 1907/2006  of the European Parliament and of the Council2. The 
exemption for t he use of lead in the plating layer of high voltage diodes on the basis of 
a zinc borate glass body  should ther efore be renewed for categories 1 to 7 and 10.  
(7) Since eliminating lead by avoiding lead contamination  for the applications concerned 
is still impracticable  and no reliable substitutes are available on the market , the 
exemption for categories 1 to 7 and 10 should be renewed for the maximum duration 
of five years  until 21 July 2021. 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 innova tion. 
(8) For categories other than 1 to 7 and 10 , the existing exemption remains valid as per the 
validity periods set out in the second subparagraph of Article 5(2) of Directive 
2011/65/EU . For reasons of clarity, the dates of expiry should be added in A nnex III to 
that Directive.  
(9) 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 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 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.  
                                                 
2 Regulation (EC) No 190 7/2006 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  (OJ L 396, 30.12.2006, p. 1 ).  
EN 6  EN Done at Brussels,  
 For the Commission  
 The President  
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