Common Position (EC) No 19/2002 of 4 December 2001 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting 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 (RoHS)
Date: 2001-12-04
Institutions: Council of the European Union
Subjects: dangerous substance, electrical equipment, electronic equipment, environmental protection, public health, waste management, waste recycling

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COMMON POSITION (EC) No 19/2002

adopted by the Council on 4 December 2001

with a view to adopting Directive 2002/. . ./EC of the European Parliament and of the Council of
. . . on the restriction of the use of certain hazardous substances in electrical and electronic
equipment (RoHS)

(2002/C 90 E/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Article 95 thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the Economic and Social
Committee (2),

Having regard to the opinion of the Committee of Regions (3),

Acting in accordance with the procedure laid down in Article
251 of the Treaty (4),

Whereas:

(1) The disparities between the

laws or

administrative
measures adopted by the Member States as regards the
restriction of the use of hazardous substances in electrical
and electronic equipment could create barriers to trade
and distort competition in the Community and may
thereby have a direct impact on the establishment and
functioning of the internal market. It therefore appears
necessary to approximate the laws of the Member States
in this field and to contribute to the protection of human
health and the environmentally sound recovery and
disposal of waste electrical and electronic equipment.

(2) The European Council at its meeting in Nice on 7, 8 and
9 December 2000 endorsed the Council resolution of
4 December 2000 on the precautionary principle.

(3) The Commission communication of 30 July 1996 on the
review of the Community strategy for waste management

(1) OJ C 365 E, 19.12.2000, p. 195 and OJ C 240 E, 28.8.2001,

p. 303.

(2) OJ C 116, 20.4.2001, p. 38.
(3) OJ C 148, 18.5.2001, p. 1.
(4) Opinion of the European Parliament of 15 May 2001, Council
Common Position of 4 December 2001 and Decision of
the
European Parliament of
(not yet published in the Official
Journal).

. . .

stresses the need to reduce the content of hazardous
substances in waste and points out the potential benefits
of Community-wide rules limiting the presence of such
substances in products and in production processes.

(4) The Council

invites

the development of

resolution of 25 January 1988 on a
Community action programme to combat environmental
pollution by cadmium (5)
the Commission to
pursue without delay
specific
measures for such a programme. Human health also has
to be protected and an overall strategy that in particular
restricts the use of cadmium and stimulates research into
implemented. The
substitutes
resolution stresses that the use of cadmium should be
limited to cases where suitable and safer alternatives do
not exist.

therefore

should

be

electrical

(WEEE) as set out

the Council on waste
necessary
are

(5) The available evidence indicates that measures on the
collection, treatment, recycling and disposal of waste elec-
trical and electronic equipment
in
Directive 2001/. . ./EC of the European Parliament and
and electronic
of
equipment (6)
the waste
reduce
management problems
linked to the heavy metals
concerned and the flame retardants concerned. In spite
of those measures, however, significant parts of WEEE
will continue to be found in the current disposal routes.
Even if WEEE were collected separately and submitted to
recycling processes,
its content of mercury, cadmium,
lead, chromium VI, PBB and PBDE would be likely to
pose risks to health or the environment.

to

ensuring the

(6) Taking into account technical and economic feasibility,
the most effective way of
significant
reduction of risks to health and the environment related
to those substances which can achieve the chosen level of
protection in the Community is the substitution of those
substances in electrical and electronic equipment by safe
or safer materials. Restricting the use of these hazardous
likely to enhance the possibilities and
substances
is
and
economic profitability of
decrease the negative health impact on workers
in
recycling plants.

recycling of WEEE

(7) The substances covered by this Directive are scientifically
well researched and evaluated and have been subject to
different measures both at Community and national level.

(5) OJ C 30, 4.2.1988, p. 1.
(6) OJ L . . .

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(8) The measures provided for in this Directive take into
account existing international guidelines and recommen-
dations and are based on an assessment of available
scientific and technical
information. The measures are
necessary to achieve the chosen level of protection of
human and animal health and the environment, having
regard to the risks which the absence of measures would
be likely to create in the Community. The measures
should be kept under review and, if necessary, adjusted
to take account of available technical and scientific
information.

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Objectives

The purpose of this Directive is to approximate the laws of the
Member States on the restrictions of the use of hazardous
substances
in electrical and electronic equipment and to
contribute to the protection of human health and the environ-
mentally sound recovery and disposal of waste electrical and
electronic equipment.

(9) This Directive

should apply without prejudice

to
Community legislation on safety and health requirements
and specific Community waste management legislation, in
particular Council Directive 91/157/EEC of 18 March
1991 on batteries and accumulators containing certain
dangerous substances (1).

Article 2

Scope

1. Without prejudice to Article 6, this Directive shall apply
to electrical and electronic equipment falling under categories
1, 2, 3, 4, 5, 6, 7 and 10 set out in Annex IA to Directive
No 2001/. . ./EC (WEEE) and to electric light bulbs, and
luminaires in households.

available

(10) The technical development of electrical and electronic
equipment without heavy metals, PBDE and PBB should
be taken into account. As soon as new scientific evidence
the
taking
becomes
other
the
precautionary
hazardous substances and their substitution by more envi-
ronmentally friendly alternatives which ensure at least the
same
should be
examined.

level of protection of

into
prohibition

and
principle,

account
of

consumers

This Directive

2.
to
Community legislation on safety and health requirements and
specific Community waste management legislation.

apply without

prejudice

shall

Article 3

Definitions

For the purposes of this Directive, the following definitions
shall apply:

(11) Exemptions from the substitution requirement should be
permitted if substitution is not possible from the scientific
and technical point of view or if the negative environ-
mental or health impacts caused by substitution are likely
to outweigh the human and environmental benefits of the
substitution. Substitution of the hazardous substances in
electrical and electronic equipment should also be carried
out in a way so as to be compatible with the health and
safety of users of electrical and electronic equipment
(EEE).

(a)

fields

in order

equipment’ or

and electronic

‘EEE’ means
‘electrical
equipment which is dependent on electric currents or elec-
tromagnetic
and
equipment for the generation, transfer and measurement
of such currents and fields falling under the categories set
out in Annex IA to Directive 2001/. . ./EC (WEEE) and
designed for use with a voltage rating not exceeding
1 000 V for alternating current and 1 500 V for direct
current;

to work properly

(12) The adaptation to scientific and technical progress of the
exemptions from the requirements concerning phasing
out and prohibition of hazardous substances should be
effected
committee
the Commission under
procedure.

by

a

(b) ‘producer’ means any person who, irrespective of the selling
technique used, including by means of distance communi-
cation according to Directive 1997/7/EC of the European
Parliament and of the Council of 20 May 1997 on the
protection of consumers in respect of distance contracts (3):

(i) manufactures

and
equipment under his own brand,

sells

electrical

and

electronic

(13) The measures necessary for the implementation of this
Directive should be adopted in accordance with Council
Decision 1999/468/EC of 28 June 1999 laying down the
procedures
implementing powers
the exercise of
conferred on the Commission (2),

for

(1) OJ L 78, 26.3.1991, p. 38. Directive as amended by Commission

Directive 98/101/EC (OJ L 1, 5.1.1999, p. 1).

(ii) resells under his own brand equipment produced by

other suppliers, or

(iii) imports or exports electrical and electronic equipment

on a professional basis into a Member State.

(2) OJ L 184, 17.7.1999, p. 23.

(3) OJ L 144, 4.6.1997, p. 19.

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Article 4

Prevention

Article 6

Review

1.
By 1 January 2007 at the latest, Member States shall
ensure that new electrical and electronic equipment put on
the market does not
cadmium,
hexavalent chromium, polybrominated biphenyls (PBB) and/or
polybrominated diphenyl ether (PBDE).

contain lead, mercury,

Paragraph 1 shall not apply to the applications listed in

2.
the Annex.

Article 5

Adaptation to scientific and technical progress

1.
Any amendments which are necessary in order to adapt
the Annex to scientific and technical progress for the following
purposes shall be adopted in accordance with the procedure
referred to in Article 7(2):

(a) establishing, as necessary, maximum concentration values
up to which the presence of the substances referred to in
Article 4(1) in specific materials and components of elec-
trical and electronic equipment shall be tolerated;

(b) exempting materials and components of electrical and elec-
the
from Article 4(1)
tronic equipment
substances
referred to therein in those materials and
components is technically or scientifically unavoidable or
where the negative environmental and/or health impacts
caused by substitution are likely to outweigh the environ-
mental and/or health benefits thereof;

the use of

if

(c) carrying out a review of each exemption in the Annex at
least every four years or four years after an item is added to
the list with the aim of considering deletion of materials
and components of electrical and electronic equipment
from the Annex if the use of the substances referred to
in these materials and components is
in Article 4(1)
avoidable, provided that
environmental
and/or health impacts caused by substitution do not
outweigh the possible
and/or health
benefits thereof.

environmental

the negative

Before the Annex is amended pursuant to paragraph 1,
2.
the Commission shall, inter alia, consult producers of electrical
and electronic
treatment operators,
environmental organisations and employee and consumer
associations. Comments shall be forwarded to the Committee
referred to in Article 7(1).

equipment,

recyclers,

Before . . . (*),
provided for
necessary, new scientific evidence.

the Commission shall
review the measures
in this Directive to take into account, as

In particular
the Commission shall by that date present
this Directive
for
proposals
equipment which falls under categories 8 and 9 set out in
Annex IA to Directive 2001/. . ./EC (WEEE).

including in the

scope of

The Commission shall also study the need to adapt the list of
substances of Article 4(1), on the basis of new scientific
evidence and taking the precautionary principle into account,
and present proposals for such adaptations, if appropriate.

Article 7

Committee

The Commission shall be assisted by the Committee set

1.
up by Article 18 of Directive 75/442/EEC (1).

2. Where reference is made to this paragraph, Articles 5 and
7 of Decision 1999/468/EC shall apply, having regard to
Article 8 thereof.

The period provided for
1999/468/EC shall be set at three months.

in Article 5(6) of Decision

3.

The Committee shall adopt its rules of procedure.

Article 8

Penalties

Member States shall determine penalties applicable to breaches
of the national provisions adopted pursuant to this Directive.
The penalties thus provided for shall be effective, proportionate
and dissuasive.

Article 9

Transposition

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive before . . . (**). They shall
immediately inform the
Commission thereof.

When Member States adopt those measures, they shall contain
a reference to this Directive or be accompanied by such a
reference on the occasion of their official publication. The
methods of making such a reference shall be laid down by
the Member States.

(1) OJ L 194, 25.7.1975, p. 39.
(*) Two years after the date of entry into force of this Directive.
(**) Eighteen months after the date of entry into force of this Directive.

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2. Member States shall communicate to the Commission the
text of all
regulations and administrative provisions
adopted in the field covered by this Directive.

laws,

Article 11

Addressees

This Directive is addressed to the Member States.

Article 10

Entry into force

Done at . . .

This Directive shall enter into force on the day of its publi-
cation in the Official Journal of the European Communities.

For the European Parliament

The President

For the Council

The President

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APPLICATIONS OF LEAD, MERCURY, CADMIUM AND HEXAVALENT CHROMIUM, WHICH ARE
EXEMPTED FROM THE REQUIREMENTS OF ARTICLE 4(1)

ANNEX

1. Mercury in compact fluorescent lamps not exceeding 5 mg per lamp.

2. Mercury in straight fluorescent lamps for general purposes not exceeding:

— halophosphate 10 mg,

— triphosphate with normal lifetime 5 mg,

— triphosphate with long lifetime 8 mg.

3. Mercury in straight fluorescent lamps for special purposes.

4. Mercury in other lamps not specifically mentioned in this Annex.

5. Lead in glass of cathode ray tubes, electronic components and fluorescent tubes.

6. Lead as an alloying element in steel containing up to 0,35 % lead by weight, aluminium containing up to 0,4 % lead

by weight and as a copper alloy containing up to 4 % lead by weight.

7. — Lead in high melting temperature type solders (i.e. tin-lead solder alloys containing more than 85 % lead),

— lead in solders for servers, storage and storage array systems (exemption granted until 2010),

— lead in solders for network infrastructure equipment for switching, signalling, transmission as well as network

management for telecommunications,

— lead in electronic ceramic parts (e.g. piezoelectronic devices).

8. Cadmium plating except for applications banned under Directive 91/338/EEC (1) amending Directive 76/769/EEC (2)

relating to restrictions on the marketing and use of certain dangerous substances and preparations

9. Hexavalent chromium as an anti-corrosion of the carbon steel cooling system in absorption refrigerators.

Within the procedure referred to in Article 7(2), the Commission shall evaluate the applications for:

— Octa BDE, Deca BDE,

— mercury in straight fluorescent lamps for special purposes,

— lead in solders for servers, storage and storage array systems, network infrastructure equipment for switching,
signalling, transmission as well as network management for telecommunications (with a view to setting a specific
time limit for this exemption), and

— light bulbs,

as a matter of priority in order to establish as soon as possible whether these items are to be amended accordingly.

(1) OJ L 186, 12.7.1991, p. 59.
(2) OJ L 262, 27.9.1976, p. 201.

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 28 July 2000, the Commission sent the Council a proposal for a European Parliament and
Council Directive on the restriction of the use of certain hazardous substances in electrical and
electronic equipment (RoHS) (1), based on Article 95 of the Treaty.

2. The European Parliament delivered its opinion at first reading on 15 May 2001.

The Economic and Social Committee delivered its opinion (2) on 29 November 2000, whereas the
Committee of the Regions gave its opinion (3) on 14 February 2001.

3. Following these opinions, the Commission forwarded its amended proposal to the Council on 8 June

2001.

4. On 4 December 2001, the Council adopted its Common Position in accordance with Article 251(2)

of the Treaty.

II. OBJECTIVE

The purpose of this Directive is to approximate the laws of the Member States on the restrictions of the
use of hazardous substances in electrical and electronic equipment (i.e. heavy metals and brominated
flame retardants). Available evidence indicates that measures are necessary to reduce the waste
management problems linked to these substances likely to pose risks to health or the environment.
The most effective way of ensuring the significant reduction of these risks is their substitution by safer
materials by a given date.

However, if this is not possible, a limited number of exemptions from the substitution requirement
should be permitted. These exemptions from the requirements of phasing out and prohibition are to be
reconsidered according to scientific and technical progress under a committee procedure.

III. ANALYSIS OF THE COMMON POSITION

The Council's Common Position, whilst generally maintaining the approach and main provisions
proposed by the Commission, has added a series of amendments to the proposal either to clarify,
strengthen or render its requirements more practicable.

A. Amended Commission proposal

1. The Council adopted either in full, in part or occasionally in spirit an important number of the

amendments proposed by the European Parliament and accepted by the Commission.

These concern:

— amendment 1 incorporated in recital 6 (slightly reworded),

— amendment 4 included partly and in spirit in recital 11,

— amendments 9 and 23 have been partly incorporated in Article 2(1) (addition in scope of

category 10, light bulbs and luminaires in households),

— amendment 10: its first part has been introduced in Article 4(1) in part and, as far as the date

is concerned, to a certain extent,

— amendment 12 has partly been taken over in Article 5(2),

(1) OJ C 365 E, 19.12.2000, p. 195 and OJ C 240 E, 28.8.2001, p. 303.
(2) OJ C 116, 20.4.2001, p. 38.
(3) OJ C 148, 18.5.2001, p. 1.

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— amendment 17 has been incorporated in Article 8,

— amendment 18 has been incorporated in Article 9(1),

— amendment 19 has been incorporated in Article 10,

— amendment 21, indents 4, 5, 9 and 11 have been deleted (following the addition of category
10 in the scope) and lead contained in high melting temperature type solder (however more
clearly specified by the Council) has been added.

2. Amendment 8, not accepted by the Commission, has been reworded and introduced in Article 1

and recital 1 of the Common Position.

B. Innovations introduced by the Council

In addition to the introduction of the amendments mentioned above, the Council also made other
changes to the proposal. These mainly concern:

— Article 3

The definition of ‘producer’ has been aligned with the one contained in the WEEE Directive to
introduce the concept of selling by means of distance communication (and therefore also the
notion of ‘export’ under 3(b)(iii)),

— Article 4

Harmonisation of phasing out of those hazardous substances mentioned in Article 4(1) has been
brought forward by one year; moreover, the words ‘at the latest’ have been introduced to allow
a number of Member States to maintain their more stringent legislation in this field,

— Article 5(1)(c)

Requires the Committee to carry out a revision of the exemptions contained in Article 4(2) and
its appertaining Annex every four years with the aim of considering their deletion,

— Article 6

A second subparagraph requires the Commission to present proposals within two years of the
entry into force of the Directive to include in its scope the equipment falling under categories 8
and 9 of the WEEE Directive.

A third subparagraph requires the Commission to study the need to adapt the banned hazardous
waste list contained in Article 4(1) on the basis of scientific evidence and the precautionary
principle and, if appropriate, to present proposals to do so,

— Annex

The Council has clarified the list regarding mercury in straight fluorescent lamps. Concerning
lead,
it has deleted the mention of light bulbs and clarified the entries for lead in solder.
Moreover, the Council requires the Commission under the committee procedure to evaluate
the applications of a series of hazardous substances as a matter of priority in view of their
possible amendment.

The Commission did not accept the term ‘at the latest’ in Article 4(1).