CELEX: 
Language: en
Date: 2019-12-17 00:00:00
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 hexavalent chromium as an anticorrosion agent of the carbon steel cooling system in absorption refrigerators

EUROPEAN
                           COMMISSION
                                                     Brussels, 17.12.2019
                                                     C(2019) 9099 final
                  COMMISSION DELEGATED DIRECTIVE (EU) .../…
                                        of 17.12.2019
   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 hexavalent chromium as an anticorrosion agent of the carbon steel
                         cooling system in absorption refrigerators
                                  (Text with EEA relevance)
EN                                                                                           EN
 ---pagebreak---                                      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 in electrical and electronic
   equipment (recast)1 (RoHS 2) as regards an exemption for specific applications containing
   hexavalent chromium.
   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 currently restricted substances as listed in Annex II to RoHS 2 are the following: lead,
   mercury, cadmium, hexavalent chromium, polybrominated biphenyls (PBB), polybrominated
   diphenyl ethers (PBDE), bis(2-ethylhexyl) phthalate (DEHP), butyl benzyl phthalate (BBP),
   dibutyl phthalate (DBP) and diisobutyl phthalate (DIBP). 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 1907/20062 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 numerous3 requests from
   economic operators, according to the provisions in Article 5(3) and Annex V, for both
   granting new and renewing existing exemptions.
   The current Annex III exemption 9 permits the use of hexavalent chromium as an
   anticorrosion agent of the carbon steel cooling system. The Commission received one
   application for renewal of this exemption in January 2015. While exemption 9 had 21 July
   2016 as expiration date for categories 1 to 7 and 104, in line with the requirements of the
   1
           OJ L 174, 1.7.2011, p. 88.
   2
           OJ L 396, 30.12.2006, p. 1
   3
           The list is given at: http://ec.europa.eu/environment/waste/rohs_eee/adaptation_en.htm
   4
           These categories are namely: 1. Large household appliances; 2. Small household appliances; 3. IT and
           telecommunications equipment; 4. Consumer equipment; 5. Lighting equipment; 6. Electrical and
           electronic tools; 7. Toys, leisure and sports equipment; 10. Automatic dispensers. EEE categories are
           listed in Annex I to the RoHS Directive.
EN                                                          1                                                    EN
 ---pagebreak---    RoHS Directive (Article 5(5), second subparagraph), it continues to apply until a decision on
   the renewal application is taken by the Commission.
   With a view to evaluating the application for exemption, the Commission launched a study to
   carry out the required technical and scientific assessment, including an eight-week online
   open-ended stakeholder consultation5 on the application. One contribution was made to the
   stakeholder consultation.
   The final report containing the assessment of the application was published6; stakeholders
   were notified.
   Subsequently, the Commission consulted the Member States expert group for delegated acts
   under RoHS 2 in written form7. The experts agreed with the draft presented by the
   Commission, with a large majority of silent members. In accordance with the Better
   Regulation Guidelines, the draft Delegated Directive was published on the Better Regulation
   Portal for a four-week public feedback period. No comments were received. All necessary
   steps relating to exemptions from the substance restriction pursuant to Articles 5(3) to 5(7)
   have been performed.8 The Council and the European Parliament were notified of all
   activities.
   The final report highlighted in particular the following technical information and assessment:
             Hexavalent chromium (Cr(VI)) acts as an anticorrosion agent of the carbon steel
              cooling system in absorption refrigerators. It is used to create a layer on the interior
              surface of the steel tubes to protect them from the cooling solution that contains
              corrosive ammonia.
             A substitute for Cr(VI) has become available for absorption refrigerators using low
              boiler temperature applications (approximately 140-180°C). Substitution in other
              applications using higher boiler temperature is expected to require a longer period as
              reliability of alternatives is still under evaluation.
   The evaluation results for categories 1 to 7 and 10 show that at least one of the relevant
   criteria specified in Article 5(1)(a) is met by the exemption request relating to entry 9 in
   Annex III.
   In order to differentiate between low and high boiler applications and make the exemption
   consistent with the respective REACH authorisations9, the wording of the current exemption
   has been split. As the boiler temperature could be easily adjusted through the operating
   pressure, the temperature was not considered sufficiently reliable for RoHS enforcement
   purposes. Instead, the power input, which is closely related to boiling temperature, is
   considered easier to monitor and more reliable to represent the different categories of
   application.
   As for applications with power input < 75 W (corresponding to low boiler temperature
   products), reliable substitutes have become available, the exemption shall expire 12 months
   5
            Consultation period: from 21.08.2015 to 16.10.2015
   6
           https://bookshop.europa.eu/en/assistance-to-the-commission-on-technological-socio-economic-and-
           cost-benefit-assessment-related-to-exemptions-from-the-substance-restrictions-in-electrical-and-
           electronic-equipment-pbKH0416554/
   7
            Consultations were carried out from 14 December 2018 until 21 January 2019.
   8
            A list of the required administrative steps is available on the Commission website. Current stage of the
            procedure can be viewed for each draft delegated act in the Interinstitutional Registry of Delegated Acts
            at https://webgate.ec.europa.eu/regdel/#/home.
   9
            Commission Decision C(2017) 665
EN                                                           2                                                        EN
 ---pagebreak---    after the publication of this Delegated Directive in the Official Journal of the European
   Union, in line with Article 5(6) of the RoHS Directive.
   For applications with power input ≥ 75 W and for systems fully operating with non-electrical
   heaters (corresponding to high boiler temperature applications), a validity period of the
   exemption until 21 July 2021, which may be renewed as per Article 5(2) first paragraph, is
   justified.
   The exemption is consistent with REACH authorisations REACH/17/7/0 – REACH/17/7/3.
   No negative socioeconomic impacts of substitution are to be anticipated for the granted
   validity period. It is also not expected to have adverse impacts on innovation.
   For categories other than categories 1 to 7 and 10, the existing exemption remains as per the
   validity periods set out in Article 5(2). The specific exemption does 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.
   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 hexavalent chromium 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.
EN                                                  3                                              EN
 ---pagebreak---                        COMMISSION DELEGATED DIRECTIVE (EU) .../…
                                                    of 17.12.2019
    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 hexavalent chromium as an anticorrosion agent of the carbon steel
                                cooling system in absorption refrigerators
                                           (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 equipment10, 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 the hazardous substances listed in
           Annex II to that Directive. That restriction does not apply to the exempted applications
           listed in Annex III to Directive 2011/65/EU.
   (2)     The categories of electrical and electronic equipment to which Directive 2011/65/EU
           applies are listed in Annex I to that Directive.
   (3)     Hexavalent chromium is a restricted substance listed in Annex II to Directive
           2011/65/EU.
   (4)     An exemption from the restriction for the use of hexavalent chromium as an
           anticorrosion agent of the carbon steel cooling system in absorption refrigerators up to
           0,75 % by weight in the cooling solution (“the exemption”) is included in Annex III to
           Directive 2011/65/EU. For categories 1 to 7 and 10, the exemption was to expire on
           21 July 2016 in accordance with the second subparagraph of Article 5(2) of that
           Directive.
   (5)     The Commission received an application for renewal of the exemption (“the renewal
           request”) on 20 January 2015, that is within the time limit laid down in Article 5(5) of
           Directive 2011/65/EU. In accordance with that provision, the exemption remains valid
           until a decision on the renewal request has been adopted.
   (6)     The evaluation of the renewal request included stakeholder consultations in
           accordance with Article 5(7) of Directive 2011/65/EU. The evaluation, taking into
           account the Commission Decisions on authorisations for the placing on the market for
           the use and/or for use of substances listed in Annex XIV to Regulation (EC) No
           1907/200611, led to the conclusion that the current exemption with regard to categories
   10
           OJ L 174, 1.7.2011, p. 88.
   11
           Summary of European Commission Decisions on authorisations for the placing on the market for the
           use and/or for use of substances listed in Annex XIV to Regulation (EC) No 1907/2006 of the European
EN                                                        4                                                     EN
 ---pagebreak---          1 to 7 and 10 is to be divided into two sub-entries with wording clearly reflecting the
         scientific and technical progress as regards to substitution of hexavalent chromium,
         which differs depending on the type of application.
   (7)   Hexavalent chromium (Cr(VI)) acts as an anticorrosion agent of the carbon steel
         cooling system in absorption refrigerators. It is used to create a layer on the interior
         surface of the steel tubes to protect them from the cooling solution that contains
         corrosive ammonia.
   (8)   For applications with power input ≥ 75 W and for systems fully operating with non-
         electrical heaters (corresponding to high boiler temperature applications) which are
         covered by the current exemption, a substitution or elimination of hexavalent
         chromium is still scientifically and technically impracticable due to the lack of reliable
         substitutes. An exemption for these applications is in line with Regulation (EC) No
         1907/2006 of the European Parliament and of the Council12 and thus does not weaken
         the environmental and health protection afforded by it.
   (9)   It is, therefore, appropriate to grant the requested renewal for applications using high
         boiler temperatures until 21 July 2021, in accordance with Article 4(3) and the second
         subparagraph of Article 5(2) 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.
   (10)  For applications with power input < 75 W (corresponding to low boiler temperature)
         currently covered by the exemption, the conditions for renewal set out in Article 5(1)
         of Directive 2011/65/EU are no longer fulfilled and therefore, the renewal request
         should be rejected. In accordance with Article 5(6) of that Directive, the exemption for
         those applications should expire 12 months after the date of entry into force of this
         Directive.
   (11)  For categories 8, 9 and 11, the existing exemption remains valid as per the validity
         periods set out in the second subparagraph of Article 5(2) of Directive 2011/65/EU.
         For reasons of legal clarity, the dates of expiry should be specified in Annex III to that
         Directive.
   (12)  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 [the last day of the 12th month after the
           date of entry into force of this Directive] at the latest, the laws, regulations and
         Parliament and of the Council concerning the Registration, Evaluation, Authorisation and Restriction of
         Chemicals (REACH) (OJ C 48, 15.2.2017, p. 9).
   12
         Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006
         concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) and
         establishing a European Chemicals Agency (OJ L 396, 30.12.2006, p. 1).
EN                                                    5                                                          EN
 ---pagebreak---             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 [the last day of the 12th month after the date
            of entry into force of this Directive + 1 day].
            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, 17.12.2019
                                                  For the Commission
                                                  The President
                                                  Ursula VON DER LEYEN
EN                                                  6                                              EN
 ---documentbreak---                            EUROPEAN
                           COMMISSION
                                                    Brussels, 17.12.2019
                                                    C(2019) 9099 final
                                                    ANNEX 1
                                          ANNEX
                                             to
                             Commission Delegated Directive
     amending, for the purposes of adapting to technical progress, Annex III to Directive
   2011/65/EU of the European Parliament and of the Council as regards an exemption for
     hexavalent chromium as an anticorrosion agent of the carbon steel cooling system in
                                  absorption refrigerators
EN                                                                                        EN
 ---pagebreak---                                                  ANNEX
   In Annex III to Directive 2011/65/EU, entry 9 is replaced by the following:
   "9           Hexavalent chromium as an             Applies to categories 8, 9 and 11 and expires
                anticorrosion agent of the carbon on:
                steel cooling system in
                                                           21 July 2021 for categories 8 and 9
                absorption refrigerators up to
                                                             other than in vitro diagnostic medical
                0,75 % by weight in the cooling
                                                             devices and industrial monitoring and
                solution
                                                             control instruments;
                                                           21 July 2023 for category 8 in vitro
                                                             diagnostic medical devices;
                                                           21 July 2024 for category 9 industrial
                                                             monitoring and control instruments,
                                                             and for category 11.
   9(a)-I       Up to 0,75% hexavalent                Applies to categories 1-7 and 10 and expires
                chromium by weight, used as an        on [twelve months after the publication of the
                anticorrosion agent in the            Delegated Directive in the Official Journal].
                cooling solution of carbon steel
                cooling systems of absorption
                refrigerators (including
                minibars) designed to operate
                fully or partly with electrical
                heater, having an average
                utilised power input < 75 W at
                constant running conditions
   9(a)-II      Up to 0,75% hexavalent                Applies to categories 1-7 and 10 and expires
                chromium by weight, used as an        on 21 July 2021."
                anticorrosion agent in the
                cooling solution of carbon steel
                cooling systems of absorption
                refrigerators:
                 designed to operate fully or
                     partly with electrical heater,
                     having an average utilised
                     power input ≥ 75 W at
                     constant running conditions;
                 designed to fully operate
                     with non-electrical heater.
EN                                                  1                                                EN