2 Hazardous substances in electrical
and electronic equipment
| (30284)
17333/08
+ ADDS 1-2
COM(08) 809
| Draft Directive on the restriction of the use of certain hazardous substances in electrical and electronic equipment (recast)
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| Legal base | Article 95EC; co-decision; QMV
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| Document originated | 3 December 2008
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| Deposited in Parliament | 22 December 2008
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| Department | Business, Enterprise and Regulatory Reform
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| Basis of consideration | EM of 6 January 2009 and SEM of 27 May 2009
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| Previous Committee Report | None
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| To be discussed in Council | Second half of 2009
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| Committee's assessment | Politically important
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| Committee's decision | Not cleared; further information requested
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Background
2.1 Waste from electrical and electronic equipment (WEEE) was
identified in the Community's Fifth Environmental Action Programme[2]
as one of the target areas for prevention, recovery and safe disposal
because such equipment presents a number of problems. In particular,
its components tend to include various hazardous materials;[3]
a large proportion is landfilled, incinerated or recovered without
any pre-treatment; and the decreasing life-span of much of the
equipment has led to a rapid growth of WEEE, compared with municipal
waste in general. This led the Community to adopt in 2002, after
considerable discussion (dealt with at some length by our predecessors),
two separate, but related measures. One (Directive 2002/95/EC)[4]
sought to restrict the use of certain of these hazardous substances
in electrical and electronic equipment whilst the other (Directive
2002/96/EC)[5] established
procedures to reduce the amount of resultant waste and to increase
the level of recycling and recovery.
2.2 The Commission has now brought forward two further
proposals, which would recast each of these measures. We will
be reporting separately on the proposal relating to Directive
2002/96/EC, the current document being concerned with the level
of hazardous substances in electrical and electronic equipment.
The current document
2.3 Directive 2002/95/EC harmonises the rules on
the restriction of the use of hazardous substances in such equipment
by:
- requiring the use of substitutes
for mercury, lead, cadmium, hexavalent chromium, and polybrominated
diphenyls (PPB) and polybrominated diphenyl ethers (PBDE) flame
retardants from 1 January 2008;
- providing exemptions to this requirement where
the use of these substances is unavoidable, or where their substitutes
would have greater negative impacts on health or the environment;
and
- setting up a Community procedure to amend these
exemptions in the light of advances in scientific knowledge or
technical progress, and to establish maximum levels at which the
presence of the substances would be tolerated in specific materials
and components.
2.4 Because the current proposal is seeking essentially
to recast the Directive, it retains many of the existing provisions.
However, it would make a number of changes, as follows:
- The Directive would be aligned
with Decision No 768/2008/EC on a common framework for the marketing
of products (which was adopted earlier this year as part of the
"Goods Package" with a view to introducing greater legislative
consistency among EC harmonising measures), and in particular
among the increasing number of members of the "New Approach"
family of legislation setting harmonised requirements for a range
of products. This would involve the introduction of common definitions,
and specify the obligations of economic operators at different
stages in the supply chain (manufacturers, importers, distributors)
in relation to the placing on the market of electrical and electronic
equipment. It would also provide for manufacturers to self-certify
the conformity of their products with the requirements of the
Directive, to prepare an "EC declaration of conformity",
and to affix the "CE marking". In addition, reference
is made to Regulation No 765/2008, setting out the requirements
for accreditation and market surveillance relating to the marketing
of products.
- The scope of the measure would now be defined
more completely in this Directive itself, rather than in the Directive
2002/96/EC, and would include, for the first time, medical devices
and monitoring and control equipment. However, the application
to these two categories would be phased in over a period up to
2017, and a new annex of exemptions has been proposed specifically
for them, with derogations being made additionally for military
equipment (for which explicit provision is not made in the current
legislation).
- Although there would be no change to the list
of restricted substances, four substances would be reviewed by
the comitology procedure to establish whether they should be added
to the restricted list.
- The criteria for determining whether the use
of restricted substances should be permitted in particular applications
would be changed, and would now allow for socio-economic aspects
to be taken into account, thus providing an explicit basis for
a cost-benefit analysis when such decisions are reached.
The Government's view
2.5 In his Explanatory Memorandum of 6 January 2009,
the Economic and Business Minister at the Department for Business,
Enterprise and Regulatory Reform (Mr Ian Pearson) says that the
proposal aims to align the RoHS Directive with similar Directives
concerned with products meeting essential requirements before
they are placed on the market. He comments that there has been
an effort to better define scope in the Directive and align basic
definitions and the conformity assessment procedures with Decision
No 768/2008/EC, and that this should give all economic operators
more confidence that they are meeting the requirements of the
Directive, and also make it easier for market surveillance authorities
to ensure a more even playing field in terms of enforcement. He
also believes that the reference to Regulation No 765/2008 should
ensure that the relevant authorities are aware of their obligations.
2.6 Overall, the Minister says that the UK broadly
supports this re-cast, and in particular the changes outlined
above which provide greater commonality with other similar Directives
and confidence for economic operators as well as more even EU
market surveillance, noting also that the UK strongly supported
the introduction of the "Goods Package" for these reasons,
as well as the introduction of a defined scope into the proposed
Directive in terms of simpler legislation.
2.7 As regards the inclusion of medical devices and
monitoring and control instruments, the Minister observes that
these were originally excluded as being safety-critical (and not
to be exposed prematurely to substitute substances replacing the
restricted substances, in case equipment failure resulted). It
was therefore considered prudent to see if the substitute substances
used in non safety-critical areas caused any problems, and he
notes that the Commission has decided to introduce these areas
into the Directive in a phased way over several years, with many
exemptions for specific applications. He says that initial contact
with the industry sectors concerned in the UK suggests that, since
this will provide additional environmental benefit, the Commission
has chosen a reasonable way forward, but he adds that this will
be considered further as part of the UK consultation.
2.8 The Minister said that a UK Impact Assessment
would be prepared as soon as possible, but, in the meantime, he
pointed out that the Commission's impact assessment had suggested
a net benefit in European terms, and in particular had said that,
although the initial implementation of the revised conformity
assessment provisions could create some cost for producers and
Member States, the harmonised provisions would eventually reduce
administrative burdens and create more certainty for producers.
The Commission did, however, believe that there would be increased
costs for producers in relation to the two new categories of electrical
and electronic equipment to be covered, particularly for bespoke
equipment, but had sought to alleviate this by phasing these two
categories into scope over the period to 2017. In addition, the
list of specific use exemptions would help to counterbalance the
proposed inclusion.
Supplementary Explanatory Memorandum of 27 May
2009
2.9 We have now received from the Minister a supplementary
Explanatory Memorandum of 27 May 2009, enclosing the promised
Impact Assessment This suggests that the inclusion of medical
devices and monitoring and control instruments could give rise
to annual costs within the UK of between £45 and 92 million,
equivalent to 1-2% of turnover, due principally to expenditure
on the research needed to bring about the product re-design and
development needed to substitute the restricted substances. On
the other hand, the assessment not only says that it has not proved
possible to quantify the benefits, it goes on to suggest that
majority of the equipment in question is unlikely at present to
result in significant harm to the environment, and that there
will be a minimal reduction in the toxicity experienced by the
public in normal everyday activities. It therefore suggests that,
although there are benefits, "it is not clear that the proposal
can be justified based on the current estimates of the size of
the potential benefits and costs involved". Furthermore,
it observes that this conclusion appears to be in line with the
Commission's own research, which included the comment that the
impacts of RoHS in this equipment are extremely small, and that
they are "at the limits regarding costs and benefits".
2.10 Despite this, the Minister simply says in his
supplementary Explanatory Memorandum that "there is a need
for the proposal to be cleared from scrutiny as soon as possible",
adding that the incoming Swedish Presidency has announced that
it will give this proposal high priority, holding working group
meetings at a high frequency from the beginning of July.
Conclusion
2.11 Although the Minister has asked for the proposal
to be cleared, he does not appear to have indicated whether or
not the UK proposes to support it in the Council, or what the
prospects are for its early adoption. Consequently, before we
are able to consider it further, we would like information on
these points, and in particular on the approach which the UK proposes
to adopt, given the doubts voiced in the Government's Impact Assessment
— and, it would seem, in the Commission's own research —
about the justification for the proposal in the light of its relative
costs and benefits.
2 OJ No. C 138, 17.5.93. Back
3
Such as heavy metals; halogenated substances (CFCs); polychlorinated
biphenyls (PCBs); polyvinyl chloride (PVC); brominated flame retardants;
and asbestos and arsenic. Back
4
OJ No. L 37, 13.02.03, p.19. Back
5
OJ No. L 37, 13.02.03, p.24. Back
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