The RoHS Directive 2011/65/EU entered into force on 21 July 2011 and led to the repeal of Directive 2002/95/EC on 3 January 2013. The Directive can be considered to have provided for two regimes under which exemptions could be considered, RoHS 1 (the former Directive 2002/95/EC) and RoHS 2 (the current Directive 2011/65/EU). - The scope covered by the Directive is now broader as it covers all electrical and electronic equipment (EEE; as referred to in Articles 2(1) and 3(1)); - The former list of exemptions has been transformed in to Annex III and may be valid for all product categories according to the limitations listed in Article 5(2) of the Directive. Annex IV has been added and lists exemptions specific to categories 8 and 9; - The RoHS 2 Directive includes the provision that applications for exemptions have to be made in accordance with Annex V. However, even if a number of points are already listed therein, Article 5(8) provides that a harmonised format, as well as comprehensive guidance - taking the situation of SMEs into account - shall be adopted by the Commission; and The procedure and criteria for the adaptation to scientific and technical progress have changed and now include some additional conditions and points to be considered. These are detailed below. The new Directive details the various criteria for the adaptation of its Annexes to scientific and technical progress. Article 5(1)(a) details the various criteria and issues that must be considered for justifying the addition of an exemption to Annexes III and IV: - The first criterion may be seen as a threshold criterion and cross-refers to the REACH Regulation (1907/2006/EC). An exemption may only be granted if it does not weaken the environmental and health protection afforded by REACH; - Furthermore, a request for exemption must be found justifiable according to one of the following three conditions: - Substitution is scientifically or technically impracticable, meaning that a substitute material, or a substitute for the application in which the restricted substance is used, is yet to be discovered, developed and, in some cases, approved for use in the specific application; The reliability of a substitute is not ensured, meaning that the probability that EEE using the substitute will perform the required function without failure for a period of time comparable to that of the application in which the original substance is included, is lower than for the application itself; - The negative environmental, health and consumer safety impacts of substitution outweigh the benefits thereof. - Once one of these conditions is fulfilled, the evaluation of exemptions, including an assessment of the duration needed, shall consider the availability of substitutes and the socio-economic impact of substitution, as well as adverse impacts on innovation, and life cycle analysis concerning the overall impacts of the exemption; and - A new aspect is that all exemptions now need to have an expiry date and that they can only be renewed upon submission of a new application. Against this background, and taking into account that exemptions falling under the enlarged scope of RoHS 2 can be applied for since the entry into force of the Directive (21.7.2011), the consultants have undertaken evaluation of a range of exemptions in this work (new exemption requests and exemption renewal requests).
