Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the Common Position of the Council on the adoption of a Directive of the European Parliament and of the Council on batteries and accumulators and spent batteries and accumulators
Date: 2005-08-23
Institutions: European Commission
Subjects: EU environmental policy, approximation of laws, electrical engineering, electricity storage device, environmental protection, waste recycling

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 23.8.2005 
COM(2005) 378 final 

2003/0282 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty 

concerning the 

Common Position of the Council on the adoption of a Directive of the European 
Parliament and of the Council on batteries and accumulators and spent batteries and 
accumulators 

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2003/0282 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty 

concerning the 

Common Position of the Council on the adoption of a Directive of the European 
Parliament and of the Council on batteries and accumulators and spent batteries and 
accumulators 

1. 

BACKGROUND 

Date of transmission of the Commission Proposal to the EP 
and the Council 
(document COM (2003) 723 final 2003/0282 (COD) 

24 November 2003 

Date of the opinion of the European Economic and Social 
Committee: 

28 April 2004 

Date of the opinion of the Committee of the Regions 

22 May 2004 

Date of the opinion of the European Parliament, first reading: 

20 April 2004 

Date of adoption of the Common Position : 

18 July 2005 

2. 

OBJECTIVE OF THE COMMISSION PROPOSAL 

The purpose of the Commission’s proposal for a new Directive on batteries and accumulators 
was twofold: 

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it aims to establish a closed-loop system for all batteries and accumulators, to avoid 
their incineration or disposal in landfill when they became waste. On the basis of the 
closed-loop  system,  all  batteries  would  have  had  to  be  collected  and  recycled,  and 
their metals re-introduced into the economic cycle; 

to  set  minimum  rules  for  the  functioning  of  national  collection  and  recycling 
schemes,  in  order  to  enhance  the  proper  functioning  of  the  internal  market  and  to 
guarantee a level playing field for all operators involved in the life cycle of batteries 
and accumulators. 

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3. 

COMMENTS ON THE COMMON POSITION 

3.1 

General comments 

The  Commission  could  accept  most  of  the  amendments  that  the  European  Parliament 
proposed  at  first  reading.  These  amendments  contain  useful  technical  clarifications  or 
additions to the proposed definitions in the Commission's proposal. The Commission rejected 
a  majority  of  the  amendments  related  to  the  substance  ban,  since  its  Extended  Impact 
Assessment showed that the proposed “closed-loop” system would entail an equivalent level 
of environmental protection at lower costs. In particular: 

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The Commission fully accepted amendments 4, 5, 11, 12, 14, 21, 24, 46, 47, 50, 51, 
52,  56,  57,  58,  59,  60,  61,  62,  64,  78,  79,  80,  81,  103  and  112,  in  total  26 
amendments. 

The Commission accepted 16 amendments in part or in principle. Amendments 10, 
29  and  35  can  be  accepted  by  the  Commission  in  principle  subject  to  re-wording 
and/or clarification. Amendments 16, 20, 22, 23, 27, 28, 40, 43, 44, 48, 53, 99 and 
109 were accepted in part. 

Amendments 1, 2, 6, 7, 8, 9, 18, 19, 25, 26, 30, 32, 33, 34, 36, 37, 38, 39, 41, 45, 49, 
54, 55, 63, 65, 66, 67, 68, 69, 71, 72, 73, 74, 75, 76, 77, 85, 92, 95, 82, 100, 101, 108 
and 120, in total 44 amendments, were not accepted by the Commission. 

The  Council  has  to  a  large  extent  taken  account  of  the  Parliamentary  amendments  and  has 
made a number of further changes. The Council considered that the proposed “closed-loop” 
system  would  be  difficult  to  achieve  in  practice  and  would  entail  high  costs  and 
administrative burdens for Member States. Therefore, the Council preferred a partial ban on 
the use  cadmium  in portable batteries, instead of an  additional collection target for portable 
cadmium batteries, which would have required the monitoring of the waste stream. 

The  Commission  stands  by  its  Extended  Impact  Assessment  (see  also  the  Commission’s 
statement  under  paragraph  4),  but  also  accepts  that  there  is  now  new  information  available, 
which  shows  that  the  proposed  “closed-loop”  system  may  entail  a  higher  administrative 
burden and higher costs than initially estimated, i.e. more costs for Member States. Therefore, 
the Commission can accept policy measures other than those proposed in its initial proposal, 
provided that the level of environmental ambition is at least equivalent to the Commission’s 
proposal, in particular with respect to collection and recycling objectives. 

As  regards  the  collection  rates,  the  Commission  welcomes  the  increase  of  the  long  term 
collection target. However, the time-frame for achieving the 45% collection rate (8 years after 
the transposition date) could be more ambitious.  

On the basis of the foregoing, the Commission can support the common position taken as a 
package. 

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3.2 

Detailed comments 

3.2.1.  Parliamentary amendments accepted by the Commission and incorporated in full, in 

part or in principle in the common position 

Amendments 4, 10, 11, 12, 14, 16, 20, 21, 23, 24, 28, 35, 40, 43, 44, 46, 51, 52, 53, 56, 57, 
59-62, 64, 78, 79-81, 99, 109 and 112 adopted by the European Parliament in first reading, 
were accepted, in full, in part or in principle by the Commission. They are also in full, in part 
or in principle incorporated in the Council’s common position. 

Amendments 4 and 52 change the word ‘consumer’ into ‘end-user’. They were fully accepted 
by  the  Commission.  They  are  incorporated  in  recital  18  and  the  title  of  Article  17  of  the 
common  position.  The  part  of  amendment  53  related  to  end-users  was  accepted  by  the 
Commission is also is partly incorporated in Article 17 (1) of the common position. 

Amendment  10  clarifies  the  scope  of  the  Directive  and  was  in  principle  accepted  by  the 
Commission. It is incorporated in Article 2 of the common position. 

Amendments  11,  12  and  14  contain  useful  clarifications  to  the  definitions  of  ‘battery’, 
‘accumulator’  and  ‘battery  pack’  and  were  fully  be  accepted  by  the  Commission.  They  are 
incorporated in Article 3 (1), (2) and (3) of the common position. 

The  Commission  accepted  amendment  16  in  part,  since  the  Commission  welcomed  the 
clarification  that  button  cells  can  also  be  used  as  back-up  power.  This  is  incorporated  in 
Article 3 (4) of the common position. 

As  regards  the  proposed  definition  of  producer,  amendment  20  was  partly  accepted  by  the 
Commission.  The  Commission  suggested  the  following  wording  for  Article  3  (13)  (b): 
“resells batteries or accumulators under his own brand on the condition that the brand of the 
producer no longer appears on the batteries or accumulators”. For the amendment related to 
subparagraph (c) the Commission suggested the following wording: “(..) into the Community 
market from third countries”. The Council’s definition of producer is partly consistent with 
amendment 20, in that it covers all batteries and accumulators incorporated into  appliances. 
The Council has further simplified the definition, in order to allow Member States to identify 
a  responsible  producer  on  their  national  territory  while  at  the  same  time  avoiding  concerns 
related to the internal market. 

Amendment  21  adds  a  definition  of  ‘distributor’  which  was  fully  accepted  by  the 
Commission. It is incorporated in Article 3 (13) of the common position. 

The Commission accepted the first two parts of amendment 23, namely that Article 4 applies 
without prejudice to Directive 2000/53/EC and the 5 ppm weight limit for mercury batteries 
and  accumulators,  since  both  changes  are  in  line  with  Commission  Proposal.  The  Council 
partly  accepted  this  amendment  in  that  Article  4  of  the  common  position  provides  for  a 
cadmium ban, subject to exemptions, and for a review. 

Amendment  24  reinforces  the  obligation  on  producers  to  increase  the  environmental 
performance of batteries and accumulators and for Member States to promote research in this 
field. It was fully accepted by the Commission. It is partly incorporated in Article 19 (3) (a) 
and (d) of the common position. 

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The  Commission  partly  accepted  amendment  28,  which  rewords  the  requirements  for 
collection schemes for portable batteries and accumulators. The Commission considered it a 
useful  clarification  to  add  that  batteries  can  also  be  collected  together  with  electrical  and 
electronic waste on the basis of schemes which were set up implementing this Directive. The 
common position incorporates this in Article 7 (1) (c). 

The  Commission  could  in  principle  agree  to  the  approach  that  the  Directive  itself  should 
establish a list of Member States that may derogate from the proposed recycling targets in an 
Annex,  as  suggested  by  amendment  35.  The  Council  preferred  the  establishment  of 
transitional  arrangements  through  a  comitology  procedure  (see  Article  9  (4)  (a)  of  the 
common position). 

The  Commission  accepted  the  correction  of  the  typing  error  in  Regulation  259/93/EEC  in 
amendment  40.  The  Council  incorporated  this  together  with  the  addition  of  the  word 
‘recycling’ in Article 12 of the common position. 

As regards amendment 43, the Commission accepted the re-wording with respect to lead and 
cadmium  recycling.  The  Commission  also  welcomed  the  new  paragraph  stipulating  that  the 
minimum recycling efficiencies could be adapted through comitology in the light of scientific 
and technical progress. This amendment is incorporated in Article 10 of the common position. 

The  Commission  partially  accepted  amendment  44,  namely  the  replacement  of  the  word 
‘arrange’ by ‘provide’ as well as the addition of the word ‘collection’ and ‘environmentally’. 
Article 13 of the common position partly incorporates this amendment by including the word 
‘collection’. 

The Commission accepted amendment 46, which stipulates that batteries still incorporated in 
other  products  such  as  cars  or  electrical  and  electronic  equipment  at  the  moment  those 
products  become  waste,  the  battery  producers  will  only  become  responsible  for  the  further 
treatment of the batteries after their removal from the other products. The Council’s common 
position  aims  to  avoid  overlap  between  the  different  financing  schemes  and  is  therefore 
consistent with the aim of this amendment (see Article 13 (2) of the common position). 

Amendment 51 clarifies that the participation in such schemes should be open to all economic 
operators on a non-discriminatory basis and was accepted by the Commission. The aim of this 
amendment is incorporated in Article 7 (2) of the common position. 

The  Commission  accepted  amendment  56,  which  would  oblige  Member  States  to  take 
appropriate  measures  to  encourage  end-users  to  participate  in  collection  schemes.  This  is 
incorporated in Article 17 (1) (b) of the common position. 

Amendments 57, 59, 60, 61, 62, 78, 79, 80 and 81 move the detailed labelling requirements 
from Annex II to the Directive to an article. Amendment 59 also deletes the possibility for the 
Commission to amend the labelling requirements according to technical progress on the basis 
of a comitology procedure. Amendment 64 inserts the possibility for the Commission to grant 
exemptions  from  the  labelling  requirements  on  basis  of  a  comitology  procedure.  The 
Commission has accepted all these amendments and they are incorporated in the Article 18 of 
and Annex II to the common position. 

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The Commission partly accepted amendment 99, namely the deletion of the 10% derogation 
from  the  recycling  requirement  and  the  possibility  of  making  technical  adaptations.  This  is 
incorporated in Article 10 (1) (b) of the common position. 

The  Commission  accepted  the  part  of  amendment  109  which  clarified  that  automotive 
batteries should be collected ‘from the end-user or from an accessible place in their vicinity’. 
This is incorporated in the common position in article 7 (4). 

Amendment 112 clarifies that the use of visible fees is prohibited for the sale of new products. 
These amendments were accepted by the Commission and are incorporated in Article 13 (3) 
of the common position. 

3.2.2.  Parliamentary  amendments  accepted  in  full,  in  part  or  in  principle  by  the 

Commission but not incorporated in the common position 

Amendments 5, 22, 27, 29, 47, 48, 50, 58 and 103 were accepted by the Commission, in full, 
in part or in principle, but are not incorporated in the common position. 

Amendments 5 and 58 stipulate that end-users should be informed about the capacity of the 
batteries  and  that  the  capacity  should  be  indicated  on  the  battery  pack.  They  were  fully 
accepted  by  the  Commission.  The  Council  did  not  incorporate  these  amendments  in  its 
common position, since they considered it inappropriate to indicate the capacity for technical 
reasons. 

In  amendment  22  related  to  the  definition  of  the  “closed-loop”  system,  the  Commission 
welcomed  the  linguistic  clarification  (a  third  ‘party’,  instead  of  ‘parties’).  As  regards 
amendment 27, the Commission welcomed the first part, which clarifies that Member States 
should  achieve  the  “closed-loop”  system.  The  references  to  a  “closed-loop”  system  are  not 
incorporated in the common position, since the Council considered the “closed-loop” system 
to be a theoretical concept which would be difficult to achieve in practice. 

The  Commission  accepted  amendment  29  in  principle,  which  obliges  end-users  to  deliver 
their  spent  batteries  and  accumulators  to  collection  points.  Similarly,  the  Commission 
welcomed amendment 47 which obliges Member States to ensure that end-users return their 
batteries  to  the  battery  collection  schemes.  The  Council  did  not  include  these  amendments, 
since it considered that such obligations for end-users would be difficult to enforce. 

Furthermore, the Commission accepted the parts of amendment 48, inserting new provisions 
clarifying  the  scope  of  producer  responsibility  and  stipulating  that  the  size  of  the  guarantee 
should depend on the hazardousness of the batteries. In order to avoid a gap in financing, the 
Council  decided  the  principle  of  producer  responsibility  should  apply  both  to  producers  of 
individual batteries and appliance and car producers who place batteries on the market, while 
avoiding double charging (see Articles 3 (12), and 13 of the common position). 

Amendments  50  and  103,  first  part,  clarify  that  the  cost  of  the  management  of  historic 
portable  batteries  and  accumulators  should  be borne  by  the  producers  of  these  batteries  and 
accumulators  according  to  market  share.  The  Commission  considered  that  this  was  useful 
clarification of the application of the producer responsibility principle and in line with Article 
8 (3) of the WEEE Directive. The Council however considered that, in order to allow some 
flexibility for the national systems, it was not necessary to include rules on the financing of 
historic waste. 

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3.2.3.  Parliamentary  amendments  rejected  by  the  Commission  and  the  Council  and  not 

incorporated in the common position 

Amendments 2, 6, 9, 18, 19, 25, 32, 39, 41, 45, 49, 54, 55, 63, 65, 67, 68, 77, 92, and 101 
were  rejected  by  the  Commission  and  not  incorporated  in  the  common  position  of  the 
Council. 

3.2.4 

Parliamentary  amendments  rejected  by  the  Commission,  but  incorporated  in  the 
common position 

Amendments 1, 7, 8, 26, 30, 33, 34, 36, 37, 38, 66, 69, 71, 72, 73, 74, 75, 76, 82, 85, 95, 100, 
108 and 120 were rejected by the Commission, but incorporated in the common position  

3.2.5.  Additional changes made by the Council to the Proposal 

Recitals 

The changes the Council made to the recitals aim at adjusting the text to reflect the various 
changes made throughout the articles, in particular: 

Recitals  8  and  9  give  a  non-exhaustive  list  of  examples  of  industrial  and  portable 
batteries and cordless power tools, in order to clarify the definitions in Article 3 (3), 
(6) and (16). 

Recital  11  incorporates  requirements  of  Articles  5  and  17  (2)  of  the  initial 
Commission  Proposal.  Recital  16  explains  what  is  meant  by  ‘best  available 
techniques’ in Article 10 (1) (a) of the common position. 

On  the  financial  producer  responsibility,  Recital  17  clarifies  what  is  meant  by  ‘net 
costs’ mentioned in Article 13. 

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Articles 

The main change made by the Council to the articles is the introduction of a limited ban on 
the use of cadmium in portable batteries (see Article 4 of the common position) instead of the 
proposed 80% collection target for portable cadmium batteries, which requires the monitoring 
of  the  waste  stream  (see  Article  13  of  the  initial  Commission  proposal).  This  should 
contribute  to  the  achievement  of  a  “closed-loop  system”  (see  Article  3  (14)  of  the  initial 
Commission proposal). On the basis of new information on the availability of substitutes for 
cadmium batteries and the costs of monitoring the waste stream, the Council considered that a 
limited  ban  would  be  a  more  sustainable  policy  option  than  the  proposed  “closed-loop 
system”.  In  line  with  these  changes,  the  Council  also  deleted  Articles  3  (14)  and  6  of  the 
initial Commission proposal and reworded Article 8 of the initial Commission proposal (now 
Article  6).  It  also  included  the  requirement  of  article  25  (2)  of  the  initial  Commission 
proposal.  The  reference  to  the  environmental  impact  of  transport  replaces  the  similar 
requirements in Article 9 (2) and article 15 (1), second paragraph of the initial Commission 
Proposal. 

As regards collection targets, like the European Parliament, the Council preferred to express 
the collection targets as a percentage instead of in grams per inhabitant as initially proposed 
by the Commission (see Article 13 of the initial Commission proposal). The Council favoured 
targets of 25% and 45%, to be achieved respectively 4 and 8 years after the transposition date 

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(see  Article  9  of  the  common  position).  Since  these  targets  are  not  linked  to  the  national 
consumption,  it  was  no  longer  necessary  to  keep  the  possibility  of  derogations  from  the 
targets for reasons of a particularly low battery consumption (see Article 14 (2) of the initial 
Commission proposal). Instead, the Council proposed to provide for the possible adoption of 
transitional arrangements on the basis of a comitology procedure (see Article 9 (4) (a) of the 
common position). 

As  regards  producer  responsibility,  the  Council  adopted  a  new  definition  of  “producer”, 
which  would  allow  Member  States  to  identify  a  producer  on  their  national  territory  for  the 
implementation  of  financial  producer  responsibility  (see  Article  3  (12)  of  the  common 
position).  In  order  to  avoid  a  gap  in  the  financing  of  the  waste  management  of  batteries 
removed from appliances/cars, appliance manufacturers and car producers are also covered by 
the definition of “producer” in this Directive, if the appliance or car incorporates a battery at 
the  moment  when  it  is  placed  on  the  market.  Article  13  of  the  common  position  requires 
Member States to avoid double charging and clarifies that producers have to finance the net 
costs  related  to  the  waste  management  of  batteries.  Article  14  of  the  common  position 
(replacing  Article  22  of  the  initial  Commission  proposal)  no  longer  requires  producers  to 
provide  a  guarantee  when  placing  a  battery  on  the  market.  Article  23  of  the  initial 
Commission  Proposal  establishing  rules  on  the  financing  of  historic  waste  is  deleted. 
Furthermore, the Council added the possibility of adopting de minimis rules for financing and 
registration on the basis of a comitology procedure (see Article 15 of the common position). 

Annexes 

Annex  I  of  the  common  position  contains  a  table  for  monitoring  compliance  with  the 
collection  targets  and  reflects  the  changes  made  in  Article  9  of  the  common  position.  The 
prescriptive  labelling  requirements  of  Annex  II  have  moved  to  Article  18  of  the  common 
position and therefore, like in the European Parliament’s first reading amendments, Annex II 
only  contains  the  labelling  symbol  (crossed-out  wheel  bin).  The  detailed  treatment  and 
recycling requirements of Articles 15(2) and 19(1) of the initial Commission’s Proposal have 
moved to Annex III to the common position. 

4 

CONCLUSION 

The  environmental  objective  of  the  Commission’s  Battery  Proposal  is  to  prevent  the 
incineration and landfill disposal of all batteries when they become waste In order to achieve 
this environmental objective, the Commission proposed high collection and recycling targets 
for  all  batteries,  with  a  particularly  high  collection  target  for  portable  cadmium  batteries,  in 
order to achieve a so-called “closed-loop” system. 

In its common position, the Council preferred other policy measures to achieve the objectives 
of  the  Commission’s  Proposal.  Since  the  level  of  environmental  ambition  of  the  Common 
Position is at least equivalent to the Commission’s Proposal, the Commission can support the 
overall package. 

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Statement by the Commission related to the Council’s impact assessment: 

The  Commission  underlines  the  importance  of  impact  assessments  being  carried  out  in  line 
with the agreed interinstitutional objectives of better regulation in future. These issues should 
be  further  explored  between  the  three  Institutions  in  the  ongoing  work  under  the 
Interinstitutional Agreement, with a view to reaching agreement on a methodology for such 
impact assessments. 

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