EN    EN 
 
 
 EUROPEAN  
COMMISSION   
Brussels, 26.1.2017  
COM(2017) 38 final  
2017/0013 (COD)  
  
Proposal for a  
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  
amending Directive 2011/65/EU on the restriction of the use of certain hazardous 
substances in electrical and electronic equipment  
(Text with EEA relevance)  
{SWD(2017) 22 final}  
{SWD(2017) 23 final}   EN 2   EN EXPLANATORY MEMORANDUM  
1. CONTEXT  OF THE  PROPOSAL  
Reasons for and objectives of the proposal  
Directive 2011/65/EU (RoHS 2) sets out rules on the restriction of the use of certain 
hazardous substances  in electrical and electronic equipment (EEE) . RoHS 2 provisions apply 
to all EEE placed on the EU market regardless of whether they are produced in the EU or i n 
third countries. RoHS 2 affects mainly industrial manufacturers, importers and distributors of 
EEE, as well as EEE customers.  
RoHS  2 addresses the waste hierarchy’s highest priority, waste prevention. Waste prevention 
includes measures that reduce the co ntent of harmful substances in materials and products. 
Decreasing the amount of hazardous substances in electrical and electronic waste benefits the 
management of such waste as a result. It promotes the reuse of products and the recycling of 
used materials , which supports the circular economy.  
RoHS 2 is necessary to prevent barriers to trade and the distortion of competition in the EU, 
which could happen in case of disparities between the laws or administrative measures on 
restricting the use of hazardous s ubstances in EEE in various Member States. It also 
contributes to the protection of human health and to the environmentally sound recovery and 
disposal of electrical and electronic waste.  
RoHS 2 is a recast of the earlier RoHS Directive 2002/95/EC (RoHS 1) . Both RoHS 
directives have stimulated a reduction in hazardous materials all over the world: several 
countries, including China, Korea and the US, have developed RoHS -like legislation.  
RoHS 2 introduced new definitions and expanded the scope to cover medi cal devices and 
monitoring and control instruments. The impact of these provisions was assessed with the 
Commission’s proposal in 2008. However, RoHS 2 also introduced further changes: the 'open 
scope' through a new category 11: "Other EEE not covered by a ny of the other categories". 
Those changes make the Directive applicable to all EEE (except equipment that is explicitly 
excluded) and give a broader interpretation of EEE, based on a new definition of the 
dependency on electricity. These 'open scope' prov isions were not specifically assessed when 
introduced in RoHS 2.  
The Commission has a mandate to examine the need to amend the Directive’s scope in respect 
of the EEE definition and of additional exclusions of product groups covered by RoHS 2 by 
virtue of the open scope introduced with the 2011 recast. The Commission has carried out this 
assessment and identified a number of issues related to the scope of RoHS  2 that need to be 
addressed to avoid the legislation having unintended effects . 
In absence of a Co mmission proposal, the following problems would arise after 22 July 2019:  
– the interdiction of secondary market operations (e.g. reselling, second -hand market) 
for new -in-scope EEE. This is known as the 'hard -stop';  
– the stop of the possibility to repair wit h spare parts a subset of new -in-scope EEE 
once legally placed on the market before that date;  
– the different (distorting) treatment of cord -connected non -road mobile machinery in 
comparison to otherwise identical machinery powered by a battery or an engine  
(currently excluded from RoHS scope);  
– the de -facto prohibition of pipe organs placement on the EU market (as not 
RoHS -compliant due to the lead used to produce the wanted sound).  EN 3   EN These four problems could affect the EU market, manufacturers and citizens and trigger 
negative economic, environmental, social and cultural impacts.  
The Commission’s proposal therefore tackles scope problems that cannot be resolved by 
either substance substitution or exemptions and guidance, e.g. for specific product groups 
with permanent compliance problem or where scope provisions generate market distortions, 
namely:  
 secondary market operations for RoHS 2 EEE which fell outside the scope of 
RoHS 1;  
 spare parts for RoHS 2 EEE which fell outside the scope of RoHS 1;  
 traction -drive cord -connected non -road mobile machinery;  
 pipe organs.  
The proposal also addresses lessons learnt from  implementing  RoHS 2, in line with its overall 
objectives and legal clarity requirements . 
This initiative is not part of the REFIT agenda.  
Consistency with existing policy provisions  
By addressing secondary market operations, the proposal aims to reinstate RoHS  2 full 
coherence with the EU’s general principles of product legislation . In particular, as set out in 
the Blue Guide  providing horizontal guidan ce on the role of market placement in the EU's 
product legislation1: ‘When made available on the market, products must be in compliance 
with the Union harmonisation legislation applicable at the time of placing on the market. 
Accordingly, new products manu factured in the Union and all products imported from third 
countries — whether new or used — must meet the provisions of the applicable Union 
harmonisation legislation when placed on the market i.e. when made available for the first 
time on the Union marke t. Compliant products once they have been placed on the market may 
subsequently be made available along the delivery chain without additional considerations, 
even in case of revisions to the applicable legislation or the relevant harmonised standards, 
unless otherwise specified in the legislation ’. ‘Making available on the market ’ and ‘placing 
on the market ’ are defined in RoHS  2. Secondary market operations, such as reselling of EEE, 
which may involve also repair, spare parts replacement, refurbishment and  reuse, are already 
allowed for most (but not all) of the EEE.  
(1) RoHS 2 allows EEE that was outside the scope of RoHS  1, but which would not 
comply with RoHS 2, to continue to be made available on the market until 22 July 
2019. After that date however, both the first placing on the market and secondary 
market operations (e.g. reselling) of non -compliant EEE will be prohibited. EEE 
affected by this 'hard -stop' of secondary market operations are medical devices, 
monitoring and control instruments and other new -in-scope EEE. This barrier to 
secondary market operations is not consistent with the general harmonisation of EU 
product legislation. For this reason, the Commission proposes to remove the hard -
stop of secondary market operations.  
 
(2) RoHS 2 creates an except ion (to the general substance restriction) for cables and 
spare parts for the repair, reuse, updating of functionalities or upgrading of capacity 
                                                 
1 http://eur -lex.europa.eu/legal -content/EN/TXT/?uri=OJ:C:2016:272:TOC   EN 4   EN of the groups of EEE gradually becoming subject its scope. However, 
newly -in-scope EEE other than medical devi ces and monitoring and control 
instruments are not listed. This leads to the impossibility to use spare parts after 22 
July 2019 and to an unjustified difference in treatment. The Commission therefore 
proposes to introduce a  specific provision to exclude s pare parts from substance 
restriction, so to allow the repair at any time of all EEE in RoHS 2 scope, which were 
placed on the EU market.  
 
(3) RoHS 2 lists 10 specific kinds of equipment that are excluded from the ‘open scope’ 
provisions. One kind of equipment  that is excluded (‘non road mobile machinery 
made available exclusively for professional use’) only includes machinery with an 
on-board power source. This provision leads to types of machinery that are otherwise 
identical to be under two different regulat ory regimes for the only reason of their 
power source being different (on board or external). The Commission proposes to 
amend the definition of ‘ non road mobile machinery made available exclusively for 
professional use ’ to also capture traction -driven mac hinery.  
 
(4) The Commission also proposes to add pipe organs to the list of excluded equipment 
due to the lack of alternatives for substitution.  
 
Under RoHS  2, exemptions to substance restriction should have a defined limited duration, 
and therefore start and end dates for exemptions are given either explicitly in the entries of 
Annexes III and IV or implicitly through the maximum validity period in Article 5(2). Under 
the current Article  5(2), however, there is no maximum validity period specified for 
category  11. 
Although Article 5(5) does not provide a specific deadline for the Commission's decision on 
applications for new exemptions, the timeframe for the Commission to decide on applications 
to renew an exemption is set for at the latest 6 months before the exemption expires, and this 
has proven to be unfeasible in practice . Combined with the requirement that an application for 
renewal must be made no later than 18 months before the exemption expires, the deadline 
means that the Commission must make its decis ion on applications to renew existing 
exemptions within twelve months after the application is submitted, unless specific 
circumstances justify a different deadline . Complying with this deadline is de facto unfeasible 
due to the several mandatory procedura l steps needed for the evaluation of an application for 
renewal. The deadline brings no additional value beyond the existing transparent procedure 
for assessing requests for renewal and retaining a deadline which has proven unfeasible in 
practice does not contribute to predictability for business and stakeholders. Business 
continuity is in any case ensured since market operators can rely on an existing exemption to 
remain valid until a decision is taken on the renewal request. Therefore, the provision fixin g a 
timeframe for the Commission to decide on application for renewing exemptions should be 
removed.  
Consistency with other EU policies  
The changes subject to the current proposal do not alter the fundamental approach of RoHS  2 
and its consistency with oth er legislation. RoHS 2 and the REACH Regulation are consistent 
in terms of policy interaction.  In particular, a provision on coherence with REACH is 
provided for both restricting new substances and granting exemptions from restriction.  EN 5   EN RoHS 2 is also consi stent with other product -related legislation, such as Directive 
2012/19/EU of the European Parliament and of the Council on waste electrical and electronic 
equipment and Directive 2000/53/EC of the European Parliament and of the Council on 
end-of-life vehi cles. Other EU legislation, for example on medical devices or occupational 
health and safety, may contain independent obligations in relation to the use phase of EEE, 
but there are no overlaps with RoHS  2 requirements.  
2. LEGAL  BASIS,  SUBSIDIARITY,  PROPORT IONALITY  AND  LEGAL  
ELEMENTS  OF THE  PROPOSAL  
The legal basis of RoHS 2 and of this initiative is Article 114 of the Treaty on the Functioning 
of the European Union (TFEU), the objective of which is to ensure the functioning of the 
internal market by approximating provisions laid down by law, regulation or administrative 
action in Member States on the functioning of the internal market.  
The problems addressed by the current proposal cannot be solved without changing the scope 
of RoHS 2, as they origina te in the current legal formulation of the RoHS 2 scope and related 
provisions. Only a solution at EU level can solve the problems, as provisions regarding the 
restriction of the use of hazardous substances in EEE being placed on the EU market have a 
direc t impact on the EU single market and cannot be drawn up at Member State level without 
leading to distortion.  
The proposals are the only policy options capable of fully addressing the identified problems 
which affect the EU single market as a whole. All the  other possible policy options would 
neither solve the identified problems permanently and in their entirety, nor ensure legal 
certainty.  
The impact assessment report includes further indications on proportionality of the 
proposals.This initiative concerns  a review that is required by the Directive. The directive 
revision is introduced through an amending directive, the content of which is explained 
below:  
Articles 1(1)(a) and 1(3)(a) change the transition deadline specified in the current RoHS 
Article 2(2)  relating to the making available on the EU market of newly -in-scope EEE into a 
compliance date for placing on the EU market the same EEE specified in RoHS Article 4(3). 
This follows the same approach as for all the other product groups already included in  that 
provision. The amendment ensures legal clarity and consistency and removes the ‘hard -stop’ 
for secondary market operations, according to which such operations would not have been 
possible any longer after 22 July 2019 for the products concerned.  
Article 1(1)(b) excludes pipe organs from the scope of RoHS  2. 
Article 1(2) broadens the definition of non-road mobile machinery to include machinery 
powered by a cord -connected traction drive, in addition to similar machinery powered by an 
on-board power sour ce. As a consequence, non-road mobile machinery powered through a 
traction drive will be excluded from the scope of RoHS  2. 
Article 1(3)(b) states that cables or spare parts for the repair, the reuse, the updating of 
functionalities or upgrading of capacit y are exempt from restrictions for all 
newly -in-scope  EEE. This applies the same approach followed for other product groups.  EN 6   EN Article 1(4)(a) establishes the maximum validity period for exemptions applicable to the 
‘open scope’ category 11 (i.e. other EEE n ot covered by any of the other categories). The 
validity period for exemptions is already specified for the other categories.  
Article 1(4)(b) deletes the deadline for the Commission’s decision on the renewal of existing 
exemptions, reflecting practical exp erience and the fact that such deadline in practice does not 
bring additional certainty to applicants.  
3. STAKEHOLDER  CONSULTATIONS  AND  IMPACT  ASSESSMENTS  
Stakeholder  consultations  
Stakeholders were consulted in the carrying out of three preparatory Commi ssion studies2 
through specific websites; three 12 -week open stakeholder consultations and four stakeholder 
meetings were held in 2012 -2015.  
Around three hundred experts, representatives from Member States, industry associations, 
manufacturers of EEE, envi ronmental NGOs, consultancy companies and institutes, and other 
types of organisations (e.g. universities) were contacted. Responses from around forty 
participants were received and made publicly available. Respondents represented mostly 
business and publi c authorities.  
When asked about their preferences for addressing the problems concerned, most respondents 
preferred:  
 for the secondary market problem, removal of the ‘hard stop’ to secondary 
market operations for all newly -in-scope EEE and the transforma tion of the 
transition period into a compliance requirement by the same date;  
 for the spare parts problem, introduction of a repair -as-produced provision;  
 for the non -road mobile machinery problem, exclusion from the RoHS 
scope of cord -connected twin mac hinery;  
 for the pipe organ problem, a scope exclusion provision for pipe organs.  
Those options are seen as efficient, effective and safe solutions, and they have been reflected 
in the Commission proposal.  
Impact  assessment  
Three Commission studies were conducted in 2012 -2015. Related studies from Member 
States were also taken into account. The impact assessment report received a positive opinion 
from the Regulatory Scrutiny Board and is described in the impact assessment summary 
sheet.  
The Commission’s p roposed measures would solve the four identified problems and would 
lead to the benefits discussed below; any negative impact would be limited or negligible . 
Restoring the secondary market  and increasing spare part availability for certain EEE  
will have th e following positive impacts:  
                                                 
2 http://ec.europa. eu/environment/waste/rohs_eee/studies_rohs4_en.htm  EN 7   EN  A reduction of costs and administrative burden both for business, including SMEs, 
and for public authorities;  
 Positive economic impact in terms of additional market opportunities given to the 
repair industries and secondary se lling;  
 Positive social impact, including for EU hospitals, which would save about €170 
million after 2019, due to maintaining the possibility to resell and buy used medical 
devices;  
 Environmental benefits in terms of reduced overall waste generation: the possibility 
of prolonging the use of EEE will postpone their end -of-life and disposal, thus 
delaying the generation of hazardous waste (WEEE). In most cases, the 
environmental impact of producing additional spare parts is negligible in comparison 
with the advantage of keeping the entire equipment in use. This measure will prevent 
the creation of more than 3000 tonnes of hazardous waste per year in the EU, which 
would support the circular economy initiative. The longer lifetime of EEE would also 
lead to addi tional savings of energy and raw materials.  
The exclusion of pipe organs  from the Directive’s scope will help avoid the loss of up to 
90% of jobs in the sector and the annual loss of up to €  65 million by 2025. A significant 
cultural loss — the pipe organs  manufacture, maintenance and, gradually, also their use being 
abandoned — is also avoided .  
The exclusion of non -road mobile machinery powered through a traction drive  from the 
Directive’s scope will support industry development in the sector by removing distortion in 
the treatment of machinery. In the EU cleaning machinery sector, for example, the proposal 
will allow 14 000 cord connected units to be placed on the market each year (with a turnover 
of 300 million €), preventing any risk of eliminating thes e machinery models from the EU 
market. It will also reduce costs and unnecessary administrative burden both for business, 
including SMEs, and for public authorities.  
 
4. BUDGETARY  IMPLICATIONS  AND  OTHER  ELEMENTS  
This legislative proposal has no budgetary i mplications.  EN 8   EN 2017/0013 (COD)  
Proposal for a  
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  
amending Directive 2011/65/EU on the restriction of the use of certain hazardous 
substances in electrical and electronic equipment  
(Text with EEA relevance)  
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,  
Having regard to the Treaty on the Functioning of the European Union, and in particular 
Article  114 thereof,  
Having regard to the proposal from the European Commission,  
After transmission of the draft legislative act to the national parliaments,  
Having regard to the opinion of the European Economic and Social Committee3, 
Having regard to the opinion of the Committee of the Regions4, 
Acting in accordance with the ordinary legislative procedure,  
Whereas:  
(1) Article 24(1) of Directive 2011/65/EU of the European Parliament and of the Council5 
on the restriction of the use of certain hazardous sub stances in electrical and electronic 
equipment (EEE) requests that the Commission examine the need to amend the scope 
of Directive 2011/65/EC in respect to the EEE therein covered and, if appropriate, 
present a legislative proposal with respect to any addi tional exclusions related to that 
EEE.  
(2) Secondary market operations for electrical and electronic equipment (EEE), involving 
repair, replacement of spare parts, refurbishment and reuse, should be facilitated to 
promote a circular economy in the Union. A  high level of protection of human health 
and the environment should be ensured, including through the environmentally sound 
recovery and disposal of waste  electrical and electronic equipment. Unnecessary 
administrative burden on market operators should be  avoided. Directive 2011/65/EU 
allows EEE that fell outside the scope of the previous Directive 2002/95/EC of the 
European Parliament and of the Council6, but which would not comply with Directive 
2011/65/EU, to continue to be made available on the market until 22 July 2019. After 
that date, however, both the first placing on the market and secondary market 
                                                 
3 OJ C , , p. .  
4 OJ C , , p. .  
5 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 electroni c equipment (OJ L  174, 1.7.2011, 
p. 88). 
6 Directive 2002/95/EC of the European Parliament and of the Council of 27 January 2003 on the 
restriction of the use of certain hazardous substances in electrical and electronic equipment (OJ L  37, 
13.2.2003, p.  19). EN 9   EN operations of non -compliant EEE are prohibited . Such prohibition of secondary 
market operations is inconsistent with the general principles underlying U nion 
measures for the approximation of laws relating to products and should therefore be 
removed.  
(3) Certain niche product groups should be excluded from the scope of 
Directive  2011/65/EU as their inclusion would bring negligible environmental or 
health benefits and introduce unresolvable compliance problems or distortion that 
cannot effectively be addressed through the exemption mechanism provided for in that 
Directive.  
(4) Pipes in organs are built using a specific type of lead -based alloy, for which no  
alternative has been found so far. Most pipe organs are kept in the same place for 
centuries and their turn -over rate is negligible. Pipe organs should be excluded from 
the scope of Directive 2011/65/EU as their inclusion would bring negligible benefit 
with regard to the substitution of lead.  
(5) Directive 2011/65/EU does not apply to non -road mobile machinery with an on -board 
power source and made available exclusively for professional use. However, for 
certain types of non -road mobile machinery, two vers ions are produced in the same 
production line, with the power source (on -board or external) being the only 
difference. Those versions should be treated in the same way under that Directive. 
Non-road mobile machinery with a traction drive powered by an exte rnal power 
source should therefore also be excluded from the scope of Directive  2011/65/EU.  
(6) As exemptions from the restriction on the use of certain hazardous substances should 
have a limited duration, the maximum validity period for existing exemption s should 
be clearly defined for all relevant EEE categories, including for category 11 as set out 
in Annex I to Directive 2011/65/EU.  
(7) When an application for renewal of an exemption is submitted, the Commission is 
required to take a decision no later t han 6 months before the expiry date of the existing 
exemption, unless specific circumstances justify a different deadline. No deadline is 
specified for the Commission to take a decision on applications for new exemptions.  
According to the report from the Commission to the European Parliament and the 
Council on the exercise of the power to adopt delegated acts conferred on the 
Commission pursuant to Directive  2011/65/EU7, that deadline has proven to be 
unfeasible in practice, due to the several mandatory pr ocedural steps needed for the 
evaluation of an application for renewal. While the deadline brings no additional value 
to the existing procedure of examination of requests for renewals, it entails 
uncertainties for businesses and other stakeholders due to i ts impracticability. Business 
continuity is ensured since market operators may rely on an existing exemption 
remaining valid until a decision is taken on the renewal request. Therefore, the 
provision related to the deadline should be removed.  
(8) Since the  objectives of this  Directive to contribute to the protection of human health 
and the environmentally sound recovery and disposal of waste electrical and electronic 
equipment by the means of restriction on the use of hazardous substances in EEE  
cannot be sufficiently achieved by the Member States as disparities between the laws 
or administrative measures adopted by the Member States could create barriers to 
trade and distort competition in the Union and thus have a direct impact on the internal 
                                                 
7 COM(2016) 215 final of 18 April 2016 . EN 10   EN market,  but can rather, by reason of the scale of the problem and its implications in 
respect of other Union legislation on recovery and disposal of waste and areas of 
common interest, such as human health protection , be better achieved at Union level, 
the Union may adopt measures, in accordance with the principle of subsidiarity as set 
out in Article 5 of the Treaty on European Union. In accordance with the principle of 
proportionality as set out in that Article, this Directive  does not go beyond what is 
necessary in  order to achieve those objectives,  
 
HAVE ADOPTED THIS DIRECTIVE:  
Article 1  
Directive 2011/65/EU is amended as follows:  
(1) Article 2 is amended as follows:  
(a) paragraph 2 is deleted;  
(b) in paragraph 4, the following point (k) is added:  
 ‘(k) pipe organs.’;  
 
(2) in Article 3, point (28) is replaced by the following:  
‘(28)  ‘non-road mobile machinery made available exclusively for professional use’ 
means machinery, with an on -board power source or with a traction -drive, the 
operation of which requires  either mobility or continuous or semi -continuous 
movement between a succession of fixed working locations while working, and is 
made available exclusively for professional use.’;  
 
(3) Article 4 is amended as follows:  
(a) paragraph 3 is replaced by the fol lowing:  
‘3. Paragraph 1 shall apply to medical devices and monitoring and control instruments 
which are placed on the market from 22 July 2014, to in vitro diagnostic medical 
devices which are placed on the market from 22 July 2016, to industrial monitorin g 
and control instruments which are placed on the market from 22 July 2017 and to all 
other EEE that was outside the scope of Directive 2002/95/EC which is placed on the 
market from 22 July 2019.’;  
(b) in paragraph 4, the following point (ea) is inserted:  
‘(ea) all other EEE that was outside the scope of Directive 2002/95/EC and is placed 
on the market before 22 July 2019;’ ;  
 
(4) Article 5 is amended as follows:  
(a) in paragraph 2, the second subparagraph is replaced by the following:  
‘For the exemptions listed in Annex III as at 21 July 2011, unless a shorter period is 
specified, the maximum validity period, which may be renewed, shall be:  
(a) for categories 1 to 7 and category 10 of Annex I, 5 years from 21 July 2011;  EN 11   EN (b) for categories 8 and 9 of Annex I, 7 years from the relevant dates laid down in 
Article 4(3);  
(c) for category 11 of Annex I, 5 years from 22 July 2019.’;  
(b) in paragraph 5, the first sentence of the second subparagraph is deleted.  
Article 2  
1. Member States shall bring into force the laws, regulations and administrative 
provisions necessary to comply with this Directive by [insert date ten months after 
the entry into force of this Directive]  at the latest. They shall forthwith communicate 
to the Commission the text of those provisions.  
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 Stat es 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 European Parliament  For the Council  
The President  The President