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Commission Proposes to Exclude Used Electronics from Restrictions

On 26 January 2017, the European Commission unveiled a new proposal to amend Directive 2011/65/EU (RoHS 2); the current EU legislation setting out restrictions on the use of certain hazardous substances in electrical and electronic equipment (EEE). The proposed amendments are aimed at further facilitating the reselling and repair of EEE, in an effort to reduce hazardous waste, prolong the lifetime of products and contribute to the EU’s circular economy objectives.

RoHS 2 currently provides for a derogation whereby EEE falling outside the scope of the previous Directive 2002/95/EC (RoHS 1), but falling within the scope of restrictions under the current directive (RoHS 2) may continue to be made available on the EU market until 22 July 2019. The products covered by this exemption (“RoHS 2 generation EEE”) comprise medical devices, monitoring and control instruments, and crucially, all other EEE not covered by any of the specific exceptions or categories in RoHS 1 or 2.

According to the current version of RoHS 2, after 22 July 2019, both the first placing on the market and secondary market operations of this class of non-compliant EEE are to be prohibited.

If adopted, however, the Commission’s proposed amendments to RoHS 2 would extend the duration of the exemption benefitting “RoHS 2 generation EEE”, but only with respect to their secondary market operations. In other words, these amendments would ensure that the resale of products falling within the scope of the existing exemption (“RoHS 2 generation EEE” that have been placed on the market before 22 July 2019), would continue to be exempt from the restrictions contained in RoHS 2.

Moreover, the current existing version of RoHS 2 fails to provide an exemption for spare parts associated with the residual category “all other EEE”. As a consequence, non-compliant spare parts intended for the repair of such products, placed on the market before 22 July 2019, would be prohibited after this date.

The Commission has, therefore, proposed to amend RoHS 2 so that the spare parts of this class of product would benefit from an exemption from the restrictions contained in RoHS 2. If adopted, the amendment would bring a degree of consistency to how spare parts belonging to different EEE product groups are treated under RoHS 2. This is because exemptions for the provision of spare parts for products specifically addressed by RoHS 2 (e.g., medical devices and monitoring and control instruments) are already set out.

The Commission, in justifying its proposed amendments, has noted that the end of the exemption for secondary market operations for “RoHS 2 generation EEE” would have a number of negative economic and environmental consequences. For instance, the Commission notes that this ‘hard-stop’ would immediately put an end to the possibility of reselling and repairing such products. In turn, this would advance the date of their end-of-life and disposal, thereby encouraging the generation of more hazardous waste.

The Commission has emphasised that extending the exemption for such products so as to extend their lifetime would also lead to savings of raw materials and energy. Moreover, in its view, the environmental impact of producing additional (non-compliant) spare parts would be negligible in comparison with the benefits resulting from keeping the entire product in use.

In addition to these core amendments, the Commission has also proposed to introduce two exclusions for the sale, resale and repair of certain niche product groups from the restrictions contained in RoHS 2.

The first of those proposed exclusions relates to cord-connected non-road machinery; for example, certain tractors. The Commission considers it necessary to introduce an exclusion from the application of RoHS 2 for this type of EEE, in an effort to avoid distortions. This is explained by the fact that otherwise identical machinery powered by a battery or an engine is already excluded from the scope of RoHS 2.

The second proposed exclusion from RoHS 2 targets pipe organs, in an effort to preserve culture and protect the jobs of organ makers and repairers. The Commission further notes that their inclusion would bring little benefit with regard to the reduction of the prevalence of lead, because there is no substitution for the specific type of lead alloy currently used in the pipes of organs, and in any case the turnover of such equipment is negligible.

The proposal does not state for how long the proposed exemptions should continue; however, the Commission will have the opportunity to address this matter in the future: it has already committed itself to carrying out an overall review of the RoHS 2 Directive before July 2021.

The Commission’s proposals are expected to give rise to a number of economic and environmental advantages. By prolonging the lifespan of such EEE, the institution estimates that 3,000 tonnes of hazardous waste per year could be prevented. Public authorities are also expected to benefit, as the proposal could lower EU healthcare costs by an estimated €170 million by allowing hospitals to buy and sell used medical devices after 21 July 2019.

Before the Commission’s proposed amendments enter into force, they will first need to be approved by the European Parliament and the EU Council, pursuant to the ordinary legislative procedure. The amendments will then enter into force on the twentieth day following publication in the Official Journal. Member States will have 10 months from this date to transpose the changes into their national law.

Hong Kong exporters to the EU of all kinds of EEE containing lead, mercury or the other hazardous substances should be aware that the provisions of RoHS 2 apply to all EEE placed on the EU market, irrespective of whether they are produced in the EU or in third countries. Given the significance of the Commission’s proposed amendments, such exporters are encouraged to keep a close eye on the passage of these amendments through the EU’s legislative process, up until the date of their implementation into national law.

Please click on the following link to view the proposal.

Content provided by Picture: HKTDC Research
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