RoHS scope review and Article 2.2
The recast RoHS directive came into force on 3 January 2013, and requires the European
Commission to examine the need to amend the scope of this directive before 22 July 2014 with a view
to submitting proposed legislation if this is appropriate.
This review was carried out by BIO Intelligence Services and ERA Technology in 2012 and
considered whether any products that had been brought into scope of RoHS by the recast could be
excluded where the costs clearly outweighed the benefits. The approach used for the study was to
identify product types with significant sales and to estimate the financial cost of inclusion, the amounts
of RoHS substances avoided and a variety of other factors such as whether inclusion simplified
compliance.
This study was complicated by uncertainties over scope, in particular the definition of ‘large-scale’
when applied to industrial tools and fixed installations. The consultants did not try to define scope as
this was being done at the time of the study by the Commission who subsequently published the
RoHS2 FAQ. For the purposes of the study however, the worst case scenario had to be considered,
i.e. assume that most or all equipment in a category was not excluded.
A further problem was a lack of data on sales in the EU and the amounts of RoHS substances used in
products, so estimates based on previous experience and any available data had to be made. The
study showed the inclusion of most categories was justified in that the benefits outweighed the costs.
Only two types of equipment were recommended for exclusion; pipe organs and electric bicycles.
Pipe organs already comply with RoHS, except for the pipes which contain lead. Research
has been unable to find an alternative to lead in organ pipes and so inclusion of pipe organs
in the scope of RoHS would incur costs but no benefits.
Electric bicycle sales are growing but the manufacturers claim that RoHS substances are not
used. Although there is some uncertainty whether this is always the case, as all other forms
of transport are already excluded from RoHS, there does not appear to be any reason to
make an exception of electric bicycles.
During the BIO/ERA study, it became clear that Article 2.2 would have unintended consequences,
primarily due to it being included at the last minute and a lack of time available for proper scrutiny.
After adoption of the directive, the Commission’s lawyers confirmed that this article means that any
newly included non-compliant products, including products in categories 8, 9 and 11, could not be
sold, loaned or leased after 22 July 2019, irrespective of when they were first placed on the EU
market. BIO and ERA showed that this will result in large quantities of equipment becoming waste as
users would not be able to sell their equipment to second users in the EU, which would have a
significant financial cost as these products will have no value after the 22nd July 2019.
The study found that this would have a negative impact on healthcare in the EU as hospitals will not
be able to buy cheaper, refurbished equipment that contain RoHS substances, such as MRI and CT
scanners, and also will not be able to sell on their used equipment. It was estimated that the costs to
EU hospitals will be in the order of €170 million per year and, as healthcare budgets will not be
increased to compensate, the average age of equipment in EU hospitals will increase, as will
maintenance costs and downtime, which will have a negative effect on healthcare in the EU.
EU industry would suffer financially and also be at a competitive disadvantage, as their non-EU
competitors would not be affected in the same way.
Owners of commercial buildings may also be affected as much of the electrical equipment in buildings
such as power circuits and fire alarms are in newly included categories and so are covered by Article
2.2. It is possible that this article could be interpreted in such a way as to make it illegal to sell or
lease a building containing “non-compliant” electrical installations after 22 July 2019 (even giving this
equipment to new owners or tenants would not be permitted).
The study also showed that Article 2.2 will increase the amount of categories 8 and 9 waste by at
least 3,000 tonnes per year, which would have a negative environmental impact.
The Commission has announced that it intends to rectify this apparent error but this will require new
legislation that must be agreed by Member States and the European Parliament. The Commission
has until 2019 to make this change so this may not be made for some time.