Consultation outcome

Summary of responses and government response

Updated 21 January 2019

Introduction

On 23 June 2016, the EU referendum took place and the people of the United Kingdom voted to leave the European Union. Until exit negotiations are concluded, the UK remains a full member of the European Union and all the rights and obligations of EU membership remain in force. During this period the government will continue to negotiate, implement and apply EU legislation. The outcome of these negotiations will determine what arrangements apply in relation to EU legislation in future once the UK has left the EU.

The Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment (EEE) Regulations Directive (RoHS) Directive 2002/95/EC was adopted in 2002. Since then it has been amended many times, and recast once (RoHS 2) in 2011. The main aim of the Directive was to provide a European-wide legislative framework to restrict and reduce the quantities of six hazardous substances, (Lead, Mercury, Cadmium, Hexavalent chromium, Poly-brominated biphenyls (PBB) and Poly-brominated diphenyl ethers (PBDE) in any new EEE placed on the EU single market. RoHS 2 provisions (in line with the original Directive) apply to EEE placed on the EU market regardless whether they are produced in the EU or in third countries and then imported into the EU market. The production of EEE is a global-wide activity which takes place in many countries across the world. Thus, RoHS 2 affects mainly industrial manufacturers, importers and distributors of EEE, and, to a lesser extent, EEE customers.

The original Directive and RoHS 2 lay down requirements and obligations that are necessary to prevent barriers to trade and distortion of competition in the European Union, which could have been generated by disparities between the laws or administrative measures if these were adopted individually by the Member States. They also contribute to the protection of human health and the environmentally sound recovery and disposal of waste EEE. The Directive aims to prevent these substances from being used in the production process, thereby keeping them out of the waste stream after the equipment is disposed of at end of life to prevent potential leachate problems from landfill sites. It also ensures the free movement of goods and equipment across the Single Market by applying the same restrictions to producers placing product on the market across all EU Member States.

The amendment “Directive (EU) 2017/2102” seeks to address a number of unintended consequences introduced by RoHS 2 when it was published in the EU Official Journal in November 2017. The date by which member States must transpose the amendments to the RoHS Directive is 12 June 2019.

Issues introduced by the recast of the RoHS Directive

RoHS 2 introduced new definitions and expanded the scope to cover medical devices and monitoring and control instruments. The impact of these provisions were already assessed in advance of the publication of the Commission’s proposal in 2008. However, RoHS 2 also introduced further changes to introduce the concept of ‘open scope’, whereby all products and equipment under the Directive’s definition of EEE is captured under its requirements unless specifically exempt. It does this by, firstly, introducing a new category 11 “Other EEE not covered by any of the other categories”, so that the Directive and, secondly, through a broader interpretation of EEE as a result of a new definition of the dependency on electricity. These open scope provisions were introduced during the subsequent negotiations of the Commission’s proposals for a recast Directive and were not covered in the EC’s impact assessment.

RoHS 2 Article 2(4) provides a list of specific equipment which is excluded from the new scope, this list only covers the EEE currently excluded from scope of the new Directive. Moreover, to ease the phasing in of the additional EEE that had been introduced through the open scope, RoHS 2 provides for a transitional arrangement until 22 July 2019 for electrical and electronic equipment that was outside the scope of RoHS 1 and that is now in scope of RoHS 2. The phase in transition means that EEE falling into scope for the first time can still be placed and circulated on the EU market until 22 July 2019, even if they contain restricted substances. However, unforeseen implications of this provision hampering secondary market operations were identified after the publication of RoHS 2. The extension of the EEE lifetime via repair, resale and refurbishment is both economically and environmentally desirable, as well as providing a positive contribution to resource efficiency.

Policy objective/policy intent

The policy objective is to remove the anomalies highlighted above that were inadvertently included by the European Commission at the time of adoption of the 2011 recast RoHS Directive. If left in existing domestic legislation these anomalies would severely restrict the second-hand sales of equipment that comes within the scope from July 2019, the supply of spare parts and the restriction of the placing on the market of new pipe organs. If we don’t transpose the amending Directive, it is estimated that the cost to UK businesses will be over £30m per year and around £335m over a ten year period.

Our proposal is to transpose these requirements by amending the UK RoHS Regulations 2012.

Summary of the consultation responses

A total of five responses were received comprising of two from the Manufacturing Industry, two Members of the General Public and one Response from Tech UK representing the tech industry in the UK, with a membership of more than 900 companies.

1) Do you agree with the approach we are taking to transpose the amending Directive 2017/2102?

All the respondents agreed with DEFRA’s approach to transpose the amending Directive 2017/2102 with Tech UK stating that they strongly support our approach and that

It is imperative that the UK adopts the changes prescribed by Directive (EU) 2017/2102 into law prior to July 22 2019 in order to preserve the legality of the secondary market for all non-compliant equipment legally placed on the market prior to falling into scope of the RoHS Directive and the associated UK Statutory Instrument. Bringing forward the amendment so that the changes can be on the statute book by March 2019 also assures alignment of our obligations at the point of our proposed separation from the European Union, regardless of the outcome of the current negotiations.

Meggitt PLC stated that

We have a shared concern around the “repair-as-produced” principle which if not corrected, will place unnecessary burden on the manufacturing industry for equipment placed on market before the in-scope date as it would not be permitted (given the gaps with the current RoHS Directive) to place “repair-as-produced” spare parts on the market thereafter.

2) To what extent have we accurately assessed the impacts in the UK of the changes set out in amending Directive 2017/2102 in the accompanying Regulatory Triage Assessment

The majority of respondents agreed with our assessment of the impacts in the RTA, describing our assessment as “Very Accurately” or “Accurately”.

Regarding the RTA, Tech UK had this to say:

We would argue that the Regulatory Triage Assessment underplays the impact on Category 9 producers, rental agencies and customers. The asset value of rental equipment that is not RoHS-compliant would effectively drop to zero, despite having many years’ worth of useful service capability remaining. Further, some companies operate a model where customers can “trade-in and trade-up” to help fund their latest purchases. This model would be halted with immediate effect if the changes were not made with significant financial implications for those producers and their customers.

3) Is there anything else you would like to tell us regarding the transposition of this amending directive?

Tech UK and their members,

Are very grateful that Defra has taken the initiative to bring forward the amendments. This has provided some much needed certainty for those businesses impacted.

Government response

The UK implemented the RoHS 2 Directive through the RoHS Regulations 2012.The amended Directive seeks to address a number of unintended consequences introduced by RoHS 2. We have produced an assessment of costs and benefits set out in the Regulatory Triage Assessment that was published with the consultation document on 6 November 2018. RoHS 2 and its amending Directives are “Single Market” measures, giving Member States no flexibility around transposition without a risk of infraction proceedings instigated by the European Commission.

RoHS is a technical area and this amending Directive (2017/2102) is a deregulatory measure. It is clear from the consultation responses that all stakeholders are supportive of the government’s approach to transpose Directive (EU) 2017/2102 into UK Law. We will use section 2(2) of the European Communities Act 1972 to make amending Regulations that will enter force on or before 29 March 2019. RoHS is a reserved matter and the RoHS Regulations apply across the UK.

Final regulatory triage assessment

The final Regulatory Triage Assessment is published along with this document.

List of organisations that responded to the consultation

Camira Fabrics Ltd

Diodes Zetex Semiconductors Limited

Edysea.com

Meggitt PLC

Tech UK