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Important legal notice

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**Opinion of the European Economic and Social Committee on the Proposal for a Directive of the European Parliament and of the Council on the restriction of the use of certain hazardous substances in electrical and electronic equipment (recast) COM(2008) 809 final — 2008/0240 (COD) **

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Official Journal C 306 , 16/12/2009 P. 0036 - 0038 *

Opinion of the European Economic and Social Committee on the Proposal for a Directive of the European Parliament and of the Council on the restriction of the use of certain hazardous substances in electrical and electronic equipment (recast)

COM(2008) 809 final — 2008/0240 (COD)

2009/C 306/08

On 16 February 2009, the Council of the European Union decided to consult the European Economic and Social Committee, under Article 95 of the Treaty establishing the European Community, on the

"Proposal for a Directive of the European Parliament and the Council on the restriction of the use of certain hazardous substances in electrical and electronic equipment (recast)"

The Section for Agriculture, Rural Development and the Environment, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 18 May 2009. The rapporteur was Mr RETUREAU.

At its 454th plenary session, held on 10 and 11 June 2009 (meeting of 10 June), the European Economic and Social Committee adopted the following opinion by 109 votes in favour, with 3 abstentions.

1. The Committee's conclusions

1.1 Article 95 TEC rightly forms the legal base for the recast directive, which standardises conditions for the production and distribution of electrical and electronic equipment in the internal market. There are two reasons for adopting this legal form for the directive; this is a recast of a directive and it is the Member States that are responsible for implementing and monitoring the directive, in line with the principles of subsidiarity and proportionality.

1.2 The Committee considers, however, that monitoring the application of the recast directive should aim to ensure that harmonisation of its implementation in the internal market is as comprehensive as possible, in order to avoid potential administrative complications in a cross-border context and any distortions to competition that might ensue.

1.3 As regards possible changes to the list of toxic or dangerous substances whose use is prohibited or heavily restricted, the EESC can only accept the comitology method if the stakeholders concerned are consulted and an impact assessment is carried out for each substance added to or removed from the list.

2. The Commission's proposals

2.1 By proposing to replace the WEEE (Waste Electrical and Electronic Equipment) Directive with a recast directive intended to boost the waste recovery and processing rate, to extend the scope to medical and hospital equipment and monitoring instruments and to promote the re-use of reparable goods, the Commission aims to ensure better environmental protection and a reduction in administrative formalities. The proposal for a directive aimed at restricting the use of dangerous substances in electric and electronic equipment (RoHS), which is the subject of this Committee opinion, is complementary to and interdependent on the recast WEEE directive and must consequently be recast itself.

2.2 Where toxic or dangerous substances are concerned, the Commission's staff consider that this recast will result in modest but clear overall benefits. Furthermore, the options it recommends will have a considerable cumulative effect on clarifying the directive and harmonising its implementation and execution, thus contributing to better regulation.

2.3 The aim is in particular to extend the scope of the two directives by adding medical devices and monitoring and control equipment to the other equipment already covered by the earlier directives. The emphasis is also on the need to re-use some parts of equipment rather than treating them as waste. The appropriate declarations and proof must be provided to make the distinction between recycled equipment and waste.

2.4 The recast RoHS directive retains its legal base (Article 95, concerning the internal market), and the recast WEEE directive retains its own legal base (Article 175, concerning the environment), in line with their respective goals, which remain basically the same.

2.5 The appendices to the recast RoHS directive detail the type of equipment covered (appendices I and II) and form the new reference point for the recast WEEE directive. Toxic or dangerous substances whose restrictions are covered by the RoHS directive remain unchanged as regards their nature and acceptable threshold quantities. Scientific and technical developments, as well as any possible derogations, will be taken into account by the comitology with scrutiny procedure.

2.6 According to the Commission, the environmental benefits will probably be considerable: several tonnes of heavy metals covered by the RoHS directive (> 1400 tonnes of lead and around 2,2 tonnes of cadmium) are used in medical devices and monitoring and control instruments, which in terms of weight, accounts for 0,2 to 0,3 % of waste electrical and electronic equipment. Where waste is poorly managed, these substances can be released into the environment (only 49,7 % of medical device waste and 65,2 % of waste from monitoring and control instruments are collected separately); Restricting the use of these substances under the RoHS directive will, in the medium and long term, help to eliminate them from goods and the resulting waste. A more detailed analysis suggests that, even in scenarios indicating higher recycling rates, including this equipment in the scope of the RoHS directive does benefit the environment.

2.7 Harmonised definitions in all related directives will also help to ensure better implementation and the elimination of administrative barriers (see point 3.3 below) and excessively divergent implementing procedures.

3. General comments

3.1 The technique of recasting instruments such as the WEEE and RoHS directives can, as in the case now under consideration, lead to a thorough overhaul of existing legislation.

3.2 This recast should address all uncertainties regarding scope and definitions and the different practices in the Member States concerning product conformity in addition to the potential obsolescence of the directives as a result of the new REACH regulatory framework. Genuine harmonisation is crucial to limiting the implementation costs of the measures put forward, in addition to the administrative burden.

3.3 The complementarity and coherence of the two directives with other Community legislation (a common framework for the marketing of products [1], REACH [2] and energy-consuming products [3], which concerns equipment design) should be stepped up.

3.4 The Committee is pleased to note that no changes have ultimately been made to the list of prohibited or restricted substances in electrical and electronic products, which upholds an equivalent level of protection for workers and consumers.

3.5 The EESC consequently reiterates the need for vigilance concerning a number of illegal transfers of dangerous waste to countries that are not technically equipped to process them properly, which presents serious environmental and health risks for those countries. The processing of electronic waste already poses serious public health risks in some of these countries and this situation could worsen if the preliminary waste treatment proposed in the WEEE directive is not carried out properly and because extending the scope to categories 8 and 9 adds new risks.

3.6 The Committee notes that the list of prohibited or restricted substances is not changed by the proposed recast. When considering whether to authorise potential replacement products for the most toxic or dangerous substances, it must be ensured that they do not themselves present any risk. Possible exemptions should only apply to substances that are absolutely irreplaceable in the light of current knowledge and technological developments and with all the necessary protection and precautionary provisions in place.

3.7 The scope defined in appendices I and II of the recast RoHS directive can be amended by the Commission under the comitology with scrutiny procedure, but the EESC considers that any substantial changes at a later date should be subject to new impact assessments and to new preliminary consultations. The Committee welcomes the use of the REACH methodology for the possible introduction of new prohibitions on substances.

3.8 The EESC recognises that harmonising definitions horizontally, covering all of the directives concerned (see point 3.3 above) is a measure that will bring clarity and reduce administrative costs.

3.9 The Committee also acknowledges that setting a reasonable deadline for exempting certain substances (four years) is likely to boost the quest for alternative solutions, whilst providing sufficient legal certainty for manufacturers.

3.10 The EESC is aware that the amended regulatory framework has some influence on business growth and employment and welcomes the improved coherence between the two recast directives and the legislative and administrative simplification that they promote.

3.11 The Committee welcomes the extension of the RoHS directive’s scope to two additional categories of equipment (categories 8 and 9 covering medical devices and monitoring and control instruments) and the adoption of the principle of partial re-use of the equipment collected), because it considers controls that help to identify the waste from recycled devices, on the basis of the declaration and monitoring, to be proportionate.

3.12 The EESC is also satisfied with the harmonisation of the definitions of the economic operators concerned with those of the "product marketing" package and with the new definitions that have been added (concerning medical devices, for example).

3.13 The Committee very much hopes that harmonisation of the Member States’ implementation will be much more effective than it has been to date in the context of the previous directives before they were recast. An evaluation in a few years’ time would be desirable to ensure that the stated aims have indeed been met.

Brussels, 10 June 2009.

The President

of the European Economic and Social Committee

Mario Sepi

[1] OJ L 218, 13.2.2008, p. 82.

[2] OJ L 396, 30.12.2006.

[3] OJ L 191, 22.7.2005, p. 29.

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