On June 2 2010 the European Parliament Committee on the Environment, Public Health and Food Safety finally voted on amendments to the European Commission's proposal for a recast of the EU Restriction of Hazardous Substances (RoHS) Directive (2002/95/EC). The committee's vote has been long awaited due to the divisiveness generated by this key legislative dossier.
The RoHS Directive was originally adopted in 2002, and bans a number of hazardous substances in electrical and electronic equipment. On December 3 2008 the commission issued a proposal to recast the RoHS Directive, aiming to tighten up some of its provisions in order to ensure that electrical and electronic equipment placed on the EU market has a lower impact on the environment and human health.
Several members of the European Parliament (MEPs) have been clamouring for more widespread bans on the substances found in electrical and electronic equipment, while other MEPs are keener on a compromise approach, at the very least so as to carry out full impact assessments of the substances concerned and to give manufacturers and importers more time to make adjustments.
The amendments that were finally approved by the committee are intended to change the scope of the directive and create a list of chemicals to be studied and considered for a future ban. The amendments which would have added new chemicals to the list of substances to be banned immediately on implementation of the new directive in member states were finally rejected. Under the commission's December 2008 proposal for a recast RoHS Directive, no new substances were added to the current ban of six hazardous materials in electrical and electronic equipment (ie, lead, mercury, cadmium, hexavalent chromium, PBB and PBDE).
According to the commission, this is because there is not enough data on the availability of substitutes for other potentially hazardous substances.
However, the commission's proposal stirred immediate controversy in the European Parliament when Jill Evans, the rapporteur (ie, an MEP who takes the lead on a particular legislative dossier) assigned to the recast RoHS Directive, stated in November 2009 that her intention was to go further than the commission's proposal. In particular, she indicated that she would seek to add provisions calling for a phasing-out of brominated and chlorinated flame retardants, as well as PVC and its hazardous additives.
Despite Evans's efforts, she could not obtain overall support for such a ban, and instead was forced to accept a set of compromise amendments which, instead of banning brominated and chlorinated flame retardants and PVC, will add these chemicals, along with various phthalates and medium-chain chlorinated paraffins to a new list of chemicals to be studied and considered for possible bans in the future.
Such studies would be carried out by the commission, and any resulting bans could be adopted under the 'delegated acts' procedure, which would allow the bans to be adopted and put into effect without the need for a long-winded legislative procedure. In addition to the list of substances to be studied in the future, the committee has adopted an amendment which would result in the scope of the directive applying to all electrical and electronic equipment, unless expressly named and exempted. The current RoHS Directive applies only to the electrical and electronic equipment listed in an annex to the EU Waste Electrical and Electronic Equipment Directive. While the commission remains opposed to an open-ended scope, it appears that the European Parliament as a whole is in favour of the change, and there is only limited opposition from member states.
Additionally, the amendments explicitly expand the scope of the recast RoHS Directive to include cables and accessories. Until now, the RoHS legal provision detailing the substance ban did not expressly provide for such inclusion but only generally applied to electrical and electronic equipment.
Further, the committee has adopted an amendment which would ban the use of certain carbon nanotubes and nanosilver. These substances are commonly used as antimicrobial agents, although there have been studies questioning their safety.
Furthermore, the committee adopted an amendment which would require economic operators to notify the commission of the use of other nanomaterials in products, and to provide the commission with environmental and health safety data. Finally, the amendments would require economic operators to label all products that contain nanomaterials.
The committee also adopted an amendment expressly exempting equipment used for renewable energy generation. This will be welcome news for businesses manufacturing renewable energy equipment for the EU market. Items such as windmills and solar panels would be exempted, subject to a review in 2014. This amendment was particularly controversial, with some MEPs pointing out that solar panels frequently contain cadmium, which can be hazardous, while others observed that the directive is intended to apply primarily to household goods rather than equipment for the generation of electricity.
Although the European Parliament was scheduled to vote on the amendments approved by the committee at a plenary session in July, the vote has now been rescheduled for September or October 2010. The vote has been delayed in order to give the Council of Member States' Ministers time to review the commission's proposal and to reach informal agreement with the European Parliament on the amendments before the latter holds its vote.
Many of the amendments approved by the committee are likely to be viewed as controversial by the Council of Member States' Ministers, and thus it is entirely possible that a first-reading agreement between the European Parliament and the council will not be reached. This, in turn, would mean that the eventual adoption of the recast directive could be delayed well into 2011.
