CELEX: 
Language: en
Date: 2018-06-18
Title: COMMISSION DELEGATED DIRECTIVE (EU) .../… amending, for the purposes of adapting to scientific and technical progress, Annex III to Directive 2011/65/EU of the European Parliament and of the Council as regards an exemption for lead in bearings and bushes applied in certain non-road professional use equipment

EXPLANATORY MEMORANDUM
            
            
               1.CONTEXT OF THE DELEGATED ACT
            
            
               This Commission Delegated Directive amends, for the purpose of adapting to technical progress, Annex III of Directive 2011/65/EU of the European Parliament and of the Council on the restriction of the use of certain hazardous substances i
            
            
               n electrical and electronic equipment (recast)
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                (RoHS 2) as regards an exemption for specific applications containing lead.
            
            
               RoHS 2 restricts the use of certain hazardous substances in electrical and electronic equipment, as provided for in its Article 4. It entered into force on 21 July 2011.
            
            
               The restricted substances are listed in Annex II to RoHS 2. While the restrictions of lead, mercury, cadmium, hexavalent chromium, polybrominated biphenyls, and polybrominated diphenyl ethers are in force to date, the restrictions of bis(2ethylhexyl) phthalate (DEHP), butyl benzyl phthalate (BBP), dibutyl phthalate (DBP), diisobutyl phthalate (DIBP) shall apply from 22 July 2019 or later. Annexes III and IV to RoHS 2 list the materials and components of electrical and electronic equipment (EEE) for specific applications exempted from the substance restriction of RoHS 2 Article 4(1).
            
            
               Article 5 makes provision for the adaptation to scientific and technical progress (inclusion, renewal, amendments and revoking of exemptions) of Annexes III and IV. Pursuant to Article 5(1)(a), exemptions are to be included in Annexes III and IV only if such inclusion does not weaken the environmental and health protection afforded by Regulation (EC) No 1907/2006
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                and where any of the following conditions is fulfilled: their elimination or substitution via design changes or materials and components which do not require any of the materials or substances listed in Annex II is scientifically or technically impracticable; the reliability of substitutes is not ensured; or the total negative environmental, health and consumer safety impacts caused by substitution are likely to outweigh the total environmental, health and consumer safety benefits thereof.
            
            
               Furthermore, Article 5(1) provides that the European Commission (the Commission) shall include materials and components of EEE for specific applications in the lists in Annexes III and IV by means of individual delegated acts in accordance with Article 20. Article 5(3) and Annex V establish the procedure for submitting applications for granting, renewing, or revoking an exemption.
            
            
               2.CONSULTATIONS PRIOR TO THE ADOPTION OF THE ACT
            
            
               Since the publication of RoHS 2, the Commission has received numerous
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                requests from economic operators, according to the provisions in Article 5(3) and Annex V, for both granting new and renewing existing exemptions.
            
            
               The Commission received a request for a new exemption to Annex III for use of lead in bearings and bushes of diesel or gaseous fuel powered internal combustion engines applied in non-road professional use equipment in July 2015 (request no. 2016-1). The exemption was requested for category 11
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               . 
            
            
               With a view to evaluating the request for exemption, the Commission launched a study to carry out the required technical and scientific assessment, including an eightweek online openended stakeholder consultation
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                on the application. No contributions were received during the stakeholder consultation. 
            
            
               The final report containing the assessment of the application was published
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               ; stakeholders were notified.
            
            
               Subsequently, the Commission consulted the Member States expert group for delegated acts under RoHS 2 during an expert meeting on 22 September 2017. The experts agreed with the proposal presented by the Commission, with a large majority of silent members. All applicable steps relating to exemptions from the substance restriction pursuant to Articles 5(3) to 5(7) have been performed.
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                The Council and the European Parliament were notified of all activities.
            
            
               The final report highlighted in particular the following technical information and assessment:
            
            
               ·Lead containing bearings and bushes are necessary to achieve satisfactory reliability in large size engines and those operating in harsh or demanding environments to be used in professional use non-road equipment. Such bearings and bushes are used for example in mobile air compressors, mobile welding equipment or cranes.
            
            
               ·Currently, there are no lead-free alternatives available on the market which would provide sufficient level of reliability in terms of seizure resistance, conformability, embedability and debris resistance for application areas of professional use non-road equipment engines. Therefore, substitution or elimination of lead is still scientifically and technically impracticable for applications concerned. 
            
            
               The evaluation results for category 11 show the specific exemption would not weaken the environmental and health protection afforded by Regulation (EC) No 1907/2006 (REACH), in accordance with Article 5 of Directive 2011/65/EU. Furthermore, at least one of the relevant criteria specified in Article 5(1)(a) is met by the exemption request: Since for the applications concerned, no reliable alternatives are available today or are likely to come on the market soon, granting the exemption with the maximum validity period of five years, starting from 22 July 2019
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               , is justified. As reliable substitutes are not yet available, no negative socioeconomic impacts of substitution are to be anticipated for this period. The granted validity period is also not expected to have adverse impacts on innovation. In order to avoid overlapping scopes of exemptions within Annex III, the proposed wording clarifies that applications covered by exemption 6(c) are excluded from the newly granted exemption.
            
            
         
         
            
               3.LEGAL ELEMENTS OF THE DELEGATED ACT
            
            
               The Delegated Directive grants an exemption from the restrictions in Article 4(1), to be listed in Annex III of Directive 2011/65/EU, for the use of lead in specific applications.
            
            
               The instrument is a Delegated Directive, as provided for by Directive 2011/65/EU, and in particular meeting the relevant requirements of Article 5(1)(a) thereof.
            
            
               The objective of the Delegated Directive is to contribute to the protection of human health and the environment and approximate the provisions for the functioning of the internal market in the field of electrical and electronic equipment, by allowing the use of otherwise banned substances for specific applications, in line with the provisions and under the conditions of RoHS 2 and the therein established procedure for the adaptation of the Annexes III and IV to scientific and technical progress.
            
            
               In accordance with the principle of proportionality, the measure does not go beyond what is necessary to achieve its objective.
            
            
               The proposal has no implications for the EU budget.
            
            
            
               COMMISSION DELEGATED DIRECTIVE (EU) .../…
            
            
               of XXX
            
            
               amending, for the purposes of adapting to scientific and technical progress, Annex III to Directive 2011/65/EU of the European Parliament and of the Council as regards an exemption for lead in bearings and bushes applied in certain non-road professional use equipment
            
            
               (Text with EEA relevance)
            
            
               THE EUROPEAN COMMISSION,
            
            
               Having regard to the Treaty on the Functioning of the European Union,
            
            
               Having regard to Directive 2011/65/EU of the European Parliament and of the Council of 8 June 2011 on the restriction of the use of certain hazardous substances in electrical and electronic equipment
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                and in particular Article 5(1)(a) thereof,
            
            
               Whereas:
            
            
               (1)
                     Directive 2011/65/EU requires Member States to ensure that electrical and electronic equipment placed on the market does not contain certain hazardous substances listed in Annex II to that Directive. That requirement does not apply to the applications listed in Annex III to Directive 2011/65/EU.
            
            
               (2)
                     The different categories of electrical and electronic equipment for which Directive 2011/65/EU applies are listed in Annex I to that Directive.
            
            
               (3)
                     Lead is a restricted substance listed in Annex II to Directive 2011/65/EU. The Commission received, in accordance with Article 5(3) of Directive 2011/65/EU, in July 2015 an application for granting an exemption for category 11, to be listed in Annex III, for use of lead in bearings and bushes of diesel or gaseous fuel powered internal combustion engines applied in non-road professional use equipment. 
            
            
               (4)
                     Lead containing bearings and bushes are necessary to achieve satisfactory reliability in terms of seizure resistance, conformability, embedability and debris resistance in large size engines and those operating in harsh or demanding environments to be used in professional use non-road equipment, such as mobile air compressors, mobile welding equipment and mobile cranes.
            
            
               (5)
                     Currently, there are no lead-free alternatives available on the market which would provide sufficient level of reliability for application areas of professional use non-road equipment engines. 
            
         
         
            
               (6)
                     Due to the lack of reliable substitutes, a substitution or elimination of lead is scientifically and technically impracticable for certain professional use non-road equipment engines. The exemption is consistent with Regulation (EC) No 1907/2006 of the European Parliament and of the Council
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                and thus does not weaken the environmental and health protection afforded by it. The exemption for the use of lead in bearings and bushes of certain diesel or gaseous fuel powered internal combustion engines applied in non-road professional use equipment should therefore be granted, adding a new entry 42 to Annex III to Directive 2011/65/EU. To avoid overlapping scopes of exemptions within Annex III and to ensure legal clarity, it should be added that applications covered by entry 6(c) of Annex III are excluded from the new entry 42 to Annex III to Directive 2011/65/EU.
            
            
               (7)
                     Since, for the applications concerned, no reliable alternatives are yet available on the market or are likely to be available on the market in the near future, the exemption for category 11 of Annex I to Directive 2011/65/EU should be granted for the maximum validity period of five years starting from 22 July 2019, which is the date that category 11 enters into the scope of Article 4(1) of Directive 2011/65/EU. In view of the results of the ongoing efforts to find a reliable substitution, the duration of the exemption is unlikely to have adverse impacts on innovation. 
            
            
               (8)
                     Directive 2011/65/EU should therefore be amended accordingly, 
            
            
            
               HAS ADOPTED THIS DIRECTIVE:
            
            
               Article 1
            
            
               Annex III to Directive 2011/65/EU is amended as set out in the Annex to this Directive.
            
            
               Article 2
            
            
               1.Member States shall adopt and publish, by 21 July 2019 at the latest, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those provisions.
            
            
               They shall apply those provisions from 22 July 2019.
            
            
               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.
            
            
               2.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
            
            
               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
            
            
               This Directive is addressed to the Member States.
            
            
               Done at Brussels,
            
            
               
                     For the Commission
               
               
                     The President
                     […]
                  
            
         
         
      
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               ANNEX
            
            
               In Annex III, entry 42 is added:
            
            
                     
                        "42
                     
                  
                  
                     
                        Lead in bearings and bushes of diesel or gaseous fuel powered internal combustion engines applied in non-road professional use equipment:
                     
                     
                        -with engine total displacement ≥ 15 litres; 
                           or
                     
                     
                        -with engine total displacement < 15 litres and the engine is designed to operate in applications where the time between signal to start and full load is required to be less than 10 seconds; or regular maintenance is typically performed in a harsh and dirty outdoor environment, such as mining, construction, and agriculture applications.
                     
                  
                  
                     
                        Applies to category 11, excluding applications covered by entry 6(c) of this Annex.
                     
                     
                        Expires on 21 July 2024."