# EUR-Lex - 52012PC0136 - EN

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# 52012PC0136

**Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of [...]amending Directive 2006/66/EC on batteries and accumulators and waste batteries and accumulators as regards the placing on the market of portable batteries and accumulators containing cadmium intended for use in cordless power tools /* COM/2012/0136 final - 2012/0066 (COD) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

The Batteries Directive (Directive 2006/66/EC[1]) seeks to make the use of
batteries and accumulators as reflected in the activities of all operators
involved in their life-cycle, less harmful to the environment. It lays down
specific rules on placing batteries and accumulators on the market and on the collection,
treatment, recycling and disposal of waste batteries and accumulators.

The Directive prohibits the placing on the
market of batteries and accumulators containing mercury and cadmium. This ban
on using cadmium in batteries and accumulators applies to ‘portable batteries
and accumulators, including those incorporated in appliances, that contain more
than 0.002% of cadmium by weight’ (Article 4(1)(b) of the Batteries Directive).
The prohibition of the use of cadmium in batteries was not proposed by the
Commission, being introduced by the co-legislators in the co-decision procedure.
Both the Council[2]
and the European Parliament[3]
prepared separate impact assessments on substantive amendments, such as the
cadmium ban, to the Commission proposal.

Article 4(3) exempts portable batteries and
accumulators intended for use in:

a)           emergency and alarm systems,
including emergency lighting;

b)           medical equipment;

c)           cordless power tools (CPT).

Article 4(4) of the Batteries Directive
requires the Commission to review the exemption from the cadmium ban provided
for portable batteries and accumulators intended for use in CPT (Article
4(3)(c)) and to submit a report to the European Parliament and to the Council
together, if appropriate, with relevant proposals, with a view to the
prohibition of cadmium in batteries and accumulators.

The Commission
was asked only to review this exemption as at the time of the adoption of the
Directive in 2006 there were doubts whether technical substitutes were already
available for this application. In this context, Recital 11 clarifies: ‘The
Commission should evaluate the need for adaptation of this Directive, taking
account of available technical and scientific evidence. In particular, the
Commission should carry out a review of the exemption from the cadmium ban
provided for portable batteries and accumulators intended for use in cordless
power tools.(..)’.

A Commission Report was submitted to the
European Parliament and to the Council in December 2010[4]. It concluded that it was not then
appropriate to bring forward proposals concerning the exemption for cadmium-containing
portable batteries intended for use in cordless power tools (CPT) because not
all the technical information (notably costs and benefits of cadmium and its
substitutes) was available to support such a decision.

Since then, this additional information has
been gathered and used by the Commission to prepare an impact assessment, in
line with its guidelines on impact assessments.

This proposal also aligns the Batteries
Directive with Articles 290 and 291 of the Treaty on the Functioning of the
European Union in line with the Commission's commitment to review provisions attached
to the regulatory procedure with scrutiny in each instrument it intends to
modify[5].

2.           RESULTS OF CONSULTATIONS WITH THE
INTERESTED PARTIES AND IMPACT ASSESSMENT

An on-line public stakeholder consultation
(10 March-10 May 2010) was launched via the EUROPA website, based on a study
published in 2009. Contributions and a summary of stakeholder comments were
published on the EUROPA website.

Stakeholders were invited to give their
views on the environmental, social and economic impact that might result from
any future ban on cadmium in portable batteries and accumulators intended for
use in cordless power tools.

Some stakeholders favoured withdrawal of
the exemption for the use of nickel-cadmium (NiCd) batteries in cordless power
tools, since they viewed the economic costs as minimal and the environmental
benefits as substantial in the long term. Others opposed withdrawal of the
exemption and underlined that the data on the economic, environmental and
social impact did not justify withdrawal. Overall, the stakeholder consultation
confirmed the need for a comparative life-cycle assessment in order to provide
a firm basis for the cost-benefit analysis.

A stakeholder workshop (peer review) was
organised on 18 July 2011. The objective was to provide input to the
comparative life-cycle assessment of the three different battery chemistries
used in portable batteries intended for use in cordless power tools. This
assessment was carried out by a consultant on behalf of the Commission.

The Commission's impact assessment
concludes that compared to the baseline scenario the other policy options
related to a withdrawal of the exemption (immediate withdrawal or withdrawal in
2016) would lead to a lower overall environmental impact, both in terms of
avoiding releases of cadmium to the environment and in terms of aggregated
environmental impacts based on six environmental indicators.

In the case of delayed withdrawal of the
exemption (in 2016), the environmental benefits would be slightly lower than
under the option of immediate withdrawal but the costs would be much lower
compared to this option. Some recyclers and cordless power tool manufacturers
have given cost-estimates for both policy options related to the withdrawal of
the exemption (in the range of €40- 60 million in the case of immediate
withdrawal and €33 million in the case of withdrawal by 2016). It is however
doubtful whether all these costs should be attributed to the cases of
withdrawal of the exemption, given that the amounts of cadmium batteries used
in cordless power tools will decrease by 50% between 2013 and 2025 under the
baseline scenario.

Consumers might be affected by the higher
manufacturing cost of alternative battery technology applied to cordless power
tools under the policy options related to the withdrawal of the exemption. Over
the period 2013-2025, a cordless power tools with an alternative battery
chemistry will, depending on the alternative battery chemistry chosen (nickel
metal hydride or lithium-ion), cost €0.8 and €2.1 more respectively if the
exemption is immediately withdrawn and an additional €0.4 and €0.9 respectively
in the case of withdrawal in 2016.

The social impacts and administrative
burden are limited for all policy options and they should not lead to
compliance issues.

The impact assessment concludes that if the
exemption is withdrawn in 2016, the environmental benefits would be slightly
lower than in the case of immediate withdrawal but the costs would be much
lower compared to an immediate withdrawal. As withdrawal of the exemption in
2016 would have almost the same level of effectiveness at a higher efficiency
compared to an immediate withdrawal, this option is the preferred one.

3.           LEGAL ELEMENTS OF THE PROPOSAL

Article 1(1) of this Proposal amends
Article 4(3)(c) of Directive 2006/66/EC by limiting the exemption for the use
of cadmium in portable batteries and accumulators intended for use in cordless
power tools to 1 January 2016. This means that as from this date, the use of
cadmium in portable batteries and accumulators intended for use in cordless
power tools, included those incorporated into appliances, is restricted to
0,002% of cadmium by weight in line with Article 4(1) of Directive 2006/66/EC.

Paragraphs (2) to (11) of Article 1 of this
Proposal identify the delegated and implementing powers of the Commission in
Directive 2006/66/EC and establish the corresponding procedures for adoption of
these acts.

Article 2 of this Proposal requires Member
States to transpose the amendment to Article 4 (3)(c) of Directive 2006/66/EC
within 18 months after entry into force of the Directive.

Article 3 of this Proposal stipulates that
this Directive enters into force on the twentieth day following that of its publication
in the Official Journal.

Article 4 of this Proposal states that this
Directive is addressed to Member States.

4.           BUDGETARY IMPLICATION

Not applicable.

5.           OPTIONAL ELEMENTS

Not applicable.

2012/0066 (COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL

of [...]
amending Directive 2006/66/EC on batteries and accumulators and waste batteries
and accumulators as regards the placing on the market of portable batteries and
accumulators containing cadmium intended for use in cordless power tools

(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 192 (1) 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 Committee[6],

Having regard to the opinion of the
Committee of the Regions[7],

Acting in accordance with the ordinary
legislative procedure,

Whereas:

(1)       Directive 2006/66/EC of
the European Parliament and of the Council of 6 September 2006 on batteries and
accumulators and waste batteries and accumulators and repealing Directive
91/157/EEC[8]
prohibits the placing on the market of portable batteries and accumulators,
including those incorporated into appliances, that contain more than 0,002% of cadmium
by weight therein. However, the portable batteries and accumulators intended
for use in cordless power tools have been exempt from that ban.

(2)       The Commission has
reviewed that exemption in accordance with Article 4 of Directive 2006/66/EC
with a view to the prohibition of cadmium in batteries and accumulators.

(3)       That review led to the
conclusion that, in order to gradually diminish the amount of cadmium released
to the environment, the prohibition of the use of cadmium should be extended to
portable batteries and accumulators intended for use in cordless power tools as
suitable cadmium-free substitutes for these applications are available on the
market, namely nickel-metal hydride and lithium-ion battery technologies.

(4)       The existing exemption for
that use should continue to apply until 31 December 2015 in order to enable
industry to further adapt the relevant technologies.

(5)       As a consequence of the
entry into force of the Lisbon Treaty, the powers conferred under Directive
2006/66/EC upon the Commission need to be aligned with Articles 290 and 291 of
the Treaty.

(6)       In order to supplement or
amend Directive 2006/66/EC, the power to adopt acts in accordance with Article
290 of the Treaty should be delegated to the Commission in respect of Annex III
regarding treatment and recycling requirements, criteria for the assessment of
equivalent conditions regarding treatment and recycling outside the European
Union, producer registration, capacity labelling of portable and automotive
batteries and accumulators, and exemptions from the labelling requirements. It
is of particular importance that the Commission carry out appropriate consultations
during its preparatory work, including at expert level. The Commission, when
preparing and drawing-up delegated acts, should ensure a simultaneous, timely
and appropriate transmission of relevant documents to the European Parliament
and Council.

(7)       In order to ensure uniform
conditions for the implementation of Directive 2006/66/EC, implementing powers
should be conferred on the Commission in respect of transitional arrangements
regarding minimum collection rates, a common methodology for the calculation of
annual sales of portable batteries and accumulators to end-users, and a questionnaire
or outline for national implementation reports. Those powers should be
exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament
and of the Council of 28 February 2011 laying down the rules and general
principles concerning mechanisms for control by the Member States of the
Commission's exercise of implementing powers[9].

(8)       Directive 2006/12/EC has
been repealed by Directive 2008/98/EC with effect from 12 December 2010.

(9)       Directive 2006/66/EC
should therefore be amended accordingly,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Directive 2006/66/EC is amended as follows:

1.           Point (c) of Article 4(3) is
replaced by the following:

‘(c) cordless power tools, until 31 December
2015.’

2.           Article 10(4) is replaced
by the following:

‘4. The Commission may establish by means of
implementing acts transitional arrangements to address difficulties faced by a
Member State in satisfying the requirements of paragraph 2 as a result of
specific national circumstances. Those implementing acts shall be adopted in
accordance with the examination procedure referred to in Article 24(2).

The Commission shall establish by means of
implementing acts a common methodology for the calculation of annual sales of
portable batteries and accumulators to end-users by 26 September 2007. Those
implementing acts shall be adopted in accordance with the examination procedure
referred to in Article 24(2).’;

3.           The first two sentences of
Article 12(6) are replaced by the following:

‘6. The Commission shall be empowered to adopt
delegated acts in accordance with Article 23a to adapt or supplement Annex III so
as to take account of technical or scientific progress.’;

4.           Article 12(7) is deleted;

5.           Article 15(3) is replaced
by the following:

‘3. The Commission shall be empowered to adopt
delegated acts in accordance with Article 23a laying down detailed rules
supplementing those in paragraph 2 of this Article, in particular criteria for
the assessment of equivalent conditions as referred to therein.’;

6.           Article 17 is replaced by
the following:

‘Article 17

Registration

Member States shall ensure that each producer
is registered. Registration shall be subject to the same procedural requirements
in each Member State.

The Commission shall be empowered to adopt
delegated acts in accordance with Article 23a establishing such requirements
for registration.’;

7.           Article 18(2) is replaced
by the following:

‘2. Member States shall make public the draft
measures referred to in paragraph 1 and the grounds for proposing them and
notify them to the Commission and other Member States.’;

8.           Article 21 is amended as
follows:

(a)
Paragraph 2 is replaced by the following:

‘2. Member States shall ensure that the
capacity of all portable and automotive batteries and accumulators is indicated
on them in a visible, legible and indelible form by 26 September 2009. The
Commission shall be empowered to adopt delegated acts in accordance with
Article 23a laying down detailed rules supplementing this requirement,
including harmonised methods for the determination of capacity and appropriate
use no later than 26 March 2009.’;

(b)
Paragraph 7 is replaced by the following:

‘7. The Commission shall be empowered to adopt
delegated acts in accordance with Article 23a to grant exemptions from the
labelling requirements set out in this Article.’;

9.           Article 22(2) is replaced
by the following:

‘2. Reports shall be drawn up on the basis of a
questionnaire or outline. The Commission shall, by means of implementing acts,
establish the questionnaire or the outline for those reports in accordance with
the examination procedure referred to in Article 24(2). The questionnaire or
outline shall be sent to Member States six months before the beginning of the
first period that the report is to cover.’;

10.         Article 23a is added:

‘Article 23a

Exercise of the delegation

1. The power to adopt delegated acts is
conferred on the Commission subject to the conditions laid down in this
Article.

2. The delegation of power referred to in Articles
12(6), 15(3), Article 17 and Articles 21(2) and 21(7) shall be conferred on the
Commission for an indeterminate period of time from the date of entry into
force of this Directive.

3. The delegation of power referred to in Articles
12(6), 15(3), Article 17 and Articles 21(2) and 21(7) may be revoked at any
time by the European Parliament or by the Council. A decision of revocation
shall put an end to the delegation of the power specified in that decision. It
shall take effect the day following the publication of the decision in the
Official Journal of the European Union or at a later date specified therein. It
shall not affect the validity of any delegated acts already in force.

4. As soon as it adopts a delegated act, the
Commission shall notify it simultaneously to the European Parliament and to the
Council.

5. A delegated act adopted pursuant to Articles
12(6), 15(3), Article 17 and Articles 21(2) and 21(7) shall enter into force
only if no objection has been expressed either by the European Parliament or
the Council within a period of two months of notification of that act to the
European Parliament and the Council or if, before the expiry of that period,
the European Parliament and the Council have both informed the Commission that
they will not object. That period shall be extended by two months at the initiative
of the European Parliament or the Council.’;

11.         Article 24 is replaced by
the following:

‘Article 24

Committee procedure

1. The Commission shall be assisted by the
Committee established by Article 39 of Directive 2008/98/EC*.

That Committee shall be a committee within the
meaning of Regulation (EU) No 182/2011.

2. Where reference is made to this paragraph,
Article 5 of Regulation (EU) No 182/2011 shall apply.

__________________

- OJ L 312, 22.11.2008, p. 3.’.

Article 2

Transposition

1.           Member States shall bring
into force the laws, regulations and administrative provisions necessary to
comply with Article 1(1) of this Directive by 18 months after entry into force at
the latest. They shall forthwith communicate to the Commission the text of
those provisions.

2.           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.           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

Entry
into force

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

Addressees

This
Directive is addressed to the Member States.

Done at Brussels, 26.3.2012

For the European Parliament                       For
the Council

The President                                                 The
President

[1]               OJ
L 266, 26.9.2006, p. 1. Directive as last amended by Directive 2008/103/EC (OJ L 327, 5.12.2008, pp. 7–8).

[2]               Draft impact assessment of key Council amendments to the Commission
proposal for a Batteries Directive (November, 2004), available at: http://register.consilium.eu.int/pdf/en/04/st14/st14372.en04.pdf.

[3]               Ban
on leaded batteries: Analysis of an amendment to Article 4 in the Council
common position for adopting a Directive on batteries and accumulators and
waste batteries and accumulators and repealing 91157/EEC (November, 2005),
available at: http://www.europarl.europa.eu/comparl/envi/pdf/externalexpertise/ieep_6leg/batteries.pdf.

[4]               The
Commission Report is available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52010DC0698:EN:NOT

[5]               The
text of the Commission Statement available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:055:0019:0020:EN:PDF

[6]               OJ C [...], [...], p. [...].

[7]               OJ C [...], [...], p. [...].

[8]               OJ L 266, 26.9.2006, p. 1.

[9]               OJ L 55, 28.2.2011, p.13