Written into the current version of EU RoHS – otherwise known as Directive 2011/65/EU – is an article concerned with legislative review. This is the Directive’s Article 24, the second paragraph of which states that the European Commission is to carry out a general review of the Directive by no later than 22 July 2021 and shall “present a report to the European Parliament and Council accompanied, if appropriate, by a legislative proposal.”

The European Commission’s general review has entailed what it has chosen to call “an evaluation,” something that has been conducted in phases between 2019 and 2021. Latterly, the evaluation involved the Commission contracting  consultants to assess, in a detailed study, the effectiveness, efficiency, relevance, coherence and “added value” of Directive  2011/65/EU before turning to consider how the Directive might be simplified in keeping with the Commission’s own Better Regulation Guidelines. Said study was the Support for the Evaluation of Directive 2011/65/EU project; the final report was made public earlier this year.

While the Commission is thought likely to have presented this report, with accompanying briefing material, to the European Parliament and Council on or before the 22 July 2021 deadline, no record of this appears to exist in the public domain (several online searches revealed nothing). Meanwhile, there was never any real question of a legislative proposal being tabled in 2021, not least because the Commission has yet to oversee the completion of an impact assessment concerning future policy options for EU RoHS. Indeed, this is the subject of a separate, ongoing study at the time of writing. This study is anticipated to complete in winter 2021, making Q2 of 2022 the earliest timeframe in which the Commission might choose to table a proposal for a new or amended EU RoHS.

It is important to note that most European Commission legislative impact assessments incorporate the option of “no change” as a consideration. However, “no change” is rarely, if ever, the Commission’s preferred option when EU environmental legislation can be strengthened. On this, RoHS is unlikely to be any different. Moreover, we already have an insight into what the Commission will likely incorporate into a legislative revision from the Support for the Evaluation of Directive 2011/65/EU study, while inferences can also be drawn from current legislative proposals (e.g., for an EU Batteries Regulation) and policy (e.g., the European Commission’s current versions of its Circular Economy Action Plan and Chemicals Strategy).

With this in mind, the following is a little speculation over what may be on the horizon:

• Rather than propose the recast of Directive 2011/65/EU, the European Commission puts forward a proposal for a new EU RoHS Regulation. An EU Regulation is a different legal instrument to a Directive, with Regulations notable for being binding in their entirety and directly applicable in all EU Member States. In contrast, Directives bind EU Member States as to the results to be achieved, but they must also be transposed into national legislation to have effect and so provide some leeway as to the form and means of implementation by EU Member States. The next version of EU RoHS could well take the form of a Regulation since RoHS is aligned to the New Legislative Framework (NLF), and the Commission has previously advocated for the conversion of NLF-aligned CE Marking Directives to Regulations at time of legislative revision (e.g., EU laws pertaining to the safety of construction products, medical devices, and personal protective equipment all now take the form of Regulations when once Directives). Not only this, but the European Commission has, within the last year, proposed that the current EU Batteries Directive is changed to become a Regulation. This is notable as the Batteries Directive, like RoHS, restricts certain heavy metals from use. Furthermore, a number of EU chemicals laws that impose substance restrictions take the form of Regulations, for instance the REACH and POPs Regulations.

• Economic operator obligations are extended to fulfilment service providers. This would see EU RoHS transpose elements of the Market Surveillance and Compliance of Products Regulation (Regulation (EU) 2019/1020). The significance of this is that Regulation (EU) 2019/1020 has, in the last three years, formed part of the NLF. It defines what is meant by a “fulfilment service provider” while stipulating that — like manufacturers, authorized representatives, importers, and distributors — such providers shall also perform certain tasks under NLF- aligned product legislation (e.g., verifying that an EU Declaration of Conformity has been drawn up, cooperating with market surveillance authorities).

• Change in how hazardous substances are identified, then restricted, under EU RoHS. This is touched upon in the Support for the Evaluation of Directive 2011/65/EU study’s final report. In this, it was noted that stakeholders are looking for “more certainty with regard to the grounds on which new substances may be restricted” and that “multiple industry stakeholders are of the opinion that the methodology under Article 6 [review and amendment of RoHS’s restricted substances list] should adopt elements of the methodology for identification of substances and their restriction under REACH.” The European Commission’s proposal for a new EU Batteries Regulation may herald what a future change looks like. In this proposal, the Commission conceives of substances having to be deemed as posing an “unacceptable risk to human health or the environment” before they become candidates for restriction. A procedure is then laid out by which the Commission would make a request to the European Chemicals Agency to prepare a restriction dossier, something that would inform whether additional substances get restricted. It is possible that we will see the same procedure replicated in a future proposal relating to EU RoHS.

• Amendment of the exemptions system. Consultation with, and interviewing of, assorted stakeholders (e.g., relevant trade associations, RoHS enforcement officials, environmental NGOs) comprised a significant component of the research that informed the Support for the Evaluation of Directive 2011/65/EU study. While these stakeholders expressed differing views, they were fairly uniform in their criticism of the time being taken for exemption renewal requests to get evaluated and decided upon. This has proven to be around 2–3 years in duration, which is a lot longer than the 18 months envisaged in the RoHS Directive. To this end, the study’s final report makes recommendations that would see the exemptions system amended. The European Commission is likely to incorporate these recommendations into a future EU RoHS legislative proposal. For instance, we can anticipate the Commission elaborating upon how requests should quantify and evaluate total environmental and human health benefits — something missing from the current EU RoHS legal text. It could also be that the Commission advocates setting longer validity periods for exempt applications for which substitutions are not foreseen in the short- to medium-term. Doing so would reduce numbers of exemption renewal applications that, in turn, would very likely cut the time taken to evaluate and grant or reject exemptions.

• Definitions for certain terms used in the legislation are expanded upon. As one example, the term “large-scale,” which is important in the context of the exclusions afforded to large-scale stationary industrial tools and large-scale fixed installations, is not defined in the RoHS Directive. The European Commission may clarify what it means by this term in a future legislative proposal. (Note that although the term is discussed in the European Commission’s RoHS 2 FAQ, the interpretation given in this document is not legally binding.)

• Provision is made for radio-frequency identification (RFID) tags to be excluded from the law’s scope. This is an interesting prospect and something discussed in some detail in the Support for the Evaluation of Directive 2011/65/EU study’s final report. Certain Member States are concerned by the current, de facto inclusion of any product that permanently incorporates RFID technology within the scope of EU RoHS. As the report authors explain, the concern is that:

“…an increase of such RFID applications where the chip is permanently attached to another article would lead to a significant increase in WEEE amounts. Apparel was cited by respondents as an example, as it is seen as one of the most important future applications of RFID chips in the consumer market. Some applications within this sector could be inventory control, warehousing, automated object tracking and supply chain management as well as end of life treatment (automated sorting). The latter would enable a recycler to sort old textiles faster and more precisely with the objective to create secondary raw materials of higher quality. Although it is uncertain at this stage how exactly the attachment of RFID chips to clothing and other products will be technically feasible, respondents stress that these products should be excluded from the scope of the Directive.”

It is not thought probable that RFID tags would be fully excluded from the scope of EU RoHS, more likely that the Commission would develop criteria for their exclusion when incorporated into products like textiles and apparel.

It is important to stress that this is all speculative at present. This article has also steered clear of any discussion over what, if any, substances might get put forward as “candidates for restriction” in a future legislative proposal. Naturally enough, if the European Commission was thinking to do this, it would likely be reviewing chemicals listed on the Candidate List of Substances of Very High Concern, as well as which of these are already subject to REACH Annex XVII restrictions. Beyond that, it would likely be weighing the response to the recently introduced ban on halogenated flame retardants in plastic enclosures and stands used for electronic displays under EU ecodesign legislation as well as the US Environmental Protection Agency’s intention to restrict the likes of PIP (3:1), HCBD, and PCTP under the Toxic Substances Control Act.

Time will tell what gets included in a legislative proposal. For now, interested readers may wish to consult the following for additional information:

• https://ec.europa.eu/environment/topics/waste-and-recycling/rohs-directive_en
• https://op.europa.eu/en/publication-detail/-/publication/5b807311-9d93-11eb-b85c-01aa75ed71a1/language-en

Alex Martin, PhD, is senior regulatory consultant at the global testing, inspection, certification, and engineering consultancy business, RINA.

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