Introduction
On November 24 2010 the European Parliament voted overwhelmingly in favour of the European Commission's proposal to recast the EU Restriction of Hazardous Substances Directive (2002/95/EC).
The European Parliament and the EU Council earlier thrashed out details of a recast that both could finally accept. Thus, the adoption of the recast directive, which is scheduled for early 2011, is likely to be a mere rubber-stamping formality. Once adopted, the text of the recast directive will be published in the Official Journal and will enter into force 20 days later. Member states will have 18 months from this publication to transpose the recast directive into their national laws.
Restriction of Hazardous Substances Directive
Scope
The recast directive will continue to apply to all electrical and electronic equipment which is covered by the existing directive, but will also cover medical devices, monitoring and control equipment, and all other electrical and electronic equipment which is not specifically excluded.
According to Jill Evans – the leading parliamentarian on this topic – this "creates legal certainty and extends the scope to goods that were previously not covered – for example, toys with an accessory electronic function or extension cables". Thus, for example, talking teddy bears will be covered by the directive, as will laboratory equipment.
Transition period
The scope will be extended as outlined above in eight years' time. The text of the recast explicitly states that any electrical and electronic equipment that lies outside the scope of the existing directive but inside the scope of the recast, may continue to be made available on the market until eight years after the entry into force of the recast.
Express exclusions
The recast expressly excludes:
* military equipment which is essential for security;
* equipment intended for outer space;
* large-scale stationary industrial tools and fixed installations;
* means of transport for persons or goods, except electric two-wheel vehicles which are not type approved;
* non-road mobile machinery for professional use;
* active implantable medical devices;
* photovoltaic panels; and
* electrical and electronic equipment designed solely for research and development which is made available on a business-to-business basis.
Definitions
Express meanings have been inserted. For example, 'cables' are defined as:
"all cables with a rated voltage of less than 50V that serve as a connection or an extension to connect EEE [electrical and electronic equipment] to the electrical outlet or to connect two or more EEE to each other".
Banned substances
Despite pressure from certain parliamentarians and non-governmental organisations, the recast continues to restrict only the six substances restricted by the existing directive (these are listed in Annex II). Earlier, forceful demands were made to consider the restriction of some 30 other substances – these demands were not met. Nonetheless, a new provision stipulates that the commission will review the list of restricted substances, with a view to its possible amendment, three years after the recast directive's entry into force.
The review must consider, among other things, whether a substance or group of similar substances could:
* have a negative impact on electrical and electronic equipment waste management operations;
* give rise to uncontrolled or diffuse release into the environment;
* lead to unacceptable exposure of workers in the waste collection or treatment processes; or
* be replaced by feasible substitutes.
Proposals to amend the list of restricted substances
Should the commission deem that further substances ought to be inserted into Annex II pursuant to its review, this can be carried out by means of delegated acts (a system of comitology, whereby changes can be made to legislation using a fast-track procedure).
Following the annexes is a commission declaration on nanomaterials, which notes that the commission is working on a common definition of 'nanomaterials', and that it intends to adopt a recommendation on a common definition for all legislative sectors in the near future. The commission considers that the restriction of hazardous substance provisions apply to all forms (including nanoforms) of restricted substances and to those which become subject to a priority review in the future.
Exempted applications
Like the existing directive, the recast directive sets out a number of applications that are exempt from the restrictions. The commission will continue to amend these in the future, under a specific framework of conditions. For example, applications will be added where these will not weaken the Registration, Evaluation, Authorisation and Restriction of Chemicals Regulation's requirements, and where their elimination or substitution is not practicable. Likewise, the commission will delete items where these conditions no longer apply.
Furthermore, the exempted applications will be time barred after a certain number of years (usually five or seven years, depending on the electrical and electronic equipment category), but can be renewed. An application must be made to the commission in order to grant, renew or delete an exempted application.
Manufacturer, importer and distributor obligations
The recast directive imposes new obligations on all economic operators.
Manufacturers must:
* draw up technical documentation and carry out internal production control procedures (or have such procedures carried out); and
* affix a type, batch or serial number, and the manufacturer's details.
Importers must:
* ensure that the appropriate conformity assessment procedure is carried out and that the relevant technical documentation has been drawn up by the manufacturer;
* ensure that the electrical and electronic equipment bears the 'CE' marking and is accompanied by the required documentation; and
* affix their details.
Among other matters, distributors must ensure that electrical and electronic equipment is accompanied by the required documents in a language that can be easily understood by consumers or end users in the member state in which it is to be placed on the market.
Evans welcomed the recast directive, stating that:
"we have identified the next generation of hazardous substances to be acted upon: PVCand halogenated flame retardants… this should be a clear signal to the market to continue its phase-out of PVC and halogenated flame retardants rather than wait until future restrictions."
On the other hand, the European Brominated Flame Retardant Industry Panel declared that the recast directive had a science-based approach and that this meant that substances used today in electrical and electronic equipment 'such as brominated flame retardants' can continue to be used as part of a portfolio of safe, effective and efficient materials available to the electronics sector.
The household appliances industry, represented by the European Committee of Domestic Equipment Manufacturers (CECED), claimed that although the recast directive is an improvement, some concerns remain. In particular, CECED is unclear as to how the methodology for evaluating future substance restrictions will work in practice.
Waste Electrical and Electronic Equipment Directive
The legislative process for the Waste Electrical and Electronic Equipment (WEEE) Directive has slowed as the European Parliament's first reading was beset by controversy and delays. Disagreements have emerged over the collection target that ought to be achieved (the European Parliament wants this target to be as high as 85% per year by 2016) and the scope of the directive (ie ,whether all electrical and electronic equipment should be covered unless expressly excluded). The final text of the directive is (rather optimistically) expected to be adopted in the first few months of 2011. Member states will then be given 18 months to transpose and implement the recast WEEE Directive's provisions.
