Opinion of the European Economic and Social Committee on the ‘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’ (COM(2017) 38 final — 2017/0013 (COD))
Date: 2017-07-05
Institutions: European Economic and Social Committee
Subjects: dangerous substance, electrical equipment, electronic component, electronic equipment, electronic waste, hazardous waste, machinery, market approval, musical instrument, waste recycling








C_2017345EN.01011001.xml










13.10.2017   


EN


Official Journal of the European Union


C 345/110





Opinion of the European Economic and Social Committee on the ‘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’
(COM(2017) 38 final — 2017/0013 (COD))
(2017/C 345/18)






Rapporteur:



Brian CURTIS











Consultation


Council, 20.2.2017
European Parliament, 1.2.2017




Legal basis


Articles 114 and 304 of the Treaty on the Functioning of the European Union




 


 




Section responsible


Agriculture, Rural Development and the Environment




Adopted in section


15.6.2017




Adopted at plenary


5.7.2017




Plenary session No


526




Outcome of vote
(for/against/abstentions)


139/0/4




1.   Conclusions and recommendations









1.1.


The EESC believes the amendment to this Directive is both timely and necessary to prevent barriers to trade and the distortion of competition in EU.












1.2.


The EESC notes that a widespread stakeholder consultation and an impact assessment took place, the results of which are reflected in the Commission proposal.












1.3.


The EESC supports the exclusion of pipe organs from the Directive’s scope for economic reasons, as well as for cultural reasons, this will help avoid an estimated loss of up to 90 % of jobs in the sector and an annual loss of up to EUR 65 million by 2025.












1.4.


The EESC supports the exclusion of non-road mobile machinery powered through a traction drive from the Directives scope. This will support industry development in the sector by removing distortion in the treatment of machinery.












1.5.


The EESC is of the view that to achieve the waste hierarchy’s highest priority, waste prevention, this directive alone is not sufficient. The EESC recommends that a combination of the RoHS directive along with the Ecodesign Directive and the WEEE Directive would need to be used together to achieve these goals.




2.   General comments

2.1.   
Reasons for and objectives of the proposal










2.1.1.


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 in third countries. RoHS 2 affects mainly industrial manufacturers, importers and distributors of EEE, as well as EEE customers.












2.1.2.


RoHS 2 addresses the waste hierarchy’s highest priority, waste prevention. Waste prevention includes measures that reduce the content 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.












2.1.3.


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 substances 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.












2.1.4.


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 medical 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 any 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’ provisions were not specifically assessed when introduced in RoHS 2.












2.1.5.


The Commission has a mandate to examine the need to amend the Directive’s scope in respect 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 the absence of a Commission 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 stopping of the possibility to repair with 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).








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.
2.2.   
Impact assessment










2.2.1.


The Commission’s impact assessment report stated that restoring the secondary market and increasing spare part availability for some electrical and electronic equipment (EEE) will have the following positive impacts:






—


A reduction of costs and administrative burden both for business, including SMEs, and for public authorities;










—


Additional market opportunities given to the repair industries and secondary selling;










—


Positive social impact, including for EU hospitals, which would save about EUR 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 3 000 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 additional savings of energy and raw materials.








3.   Consistency with existing policy provisions









3.1.


By addressing secondary market operations, the proposal aims to reinstate RoHS 2 full coherence with the EU’s general principles of product legislation.












3.2.


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.












3.3.


RoHS 2 creates an exception (to the general substance restriction) for cables and spare parts for the repair, reuse, updating of functionalities or upgrading of capacity of the groups of EEE gradually becoming subject to its scope. However, newly in scope EEE other than medical devices 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 spare 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.












3.4.


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 regulatory 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 machinery.












3.5.


The Commission also proposes to add pipe organs to the list of excluded equipment due to the lack of alternatives for substitution.












3.6.


Under RoHS 2, exemptions to substance restriction should have a defined limited duration.












3.7.


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 decision on applications to renew existing exemptions within 12 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 procedural steps needed for the evaluation of an application for renewal. Therefore, the provision fixing a timeframe for the Commission to decide on application for renewing exemptions should be removed.




4.   Consistency with other EU policies









4.1.


The changes subject to the current proposal do not alter the fundamental approach of RoHS 2 and its consistency with other legislation. RoHS 2 and the REACH Regulation are consistent in terms of policy interaction.












4.2.


RoHS 2 is also consistent 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 vehicles. Other EU legislation may contain independent obligations in relation to the use phase of EEE, but there are no overlaps with RoHS 2 requirements.





Brussels, 5 July 2017.


The President of the European Economic and Social Committee

Georges DASSIS