Batterie
European Battery Regulation

Draft European Battery Regulation – first reading in the EU-Parliament

On 10.03.2022, the draft of a European battery regulation has taken a decisive hurdle with the 1st reading in the EU Parliament. Nevertheless, a quick conclusion of the legislative process is not to be expected at all, as the plenary of the EU Parliament adopted with a large majority a total of no less than 489 (!) amendments. These will now be forwarded to the EU Commission, the Council and the national parliaments as a position for further negotiations in the course of the legislative process.

The text adopted by the EU Parliament in 1st reading follows lengthy deliberations on the EU Commission’s draft (we reported: Draft European Battery Regulation – Overview and Forecast) in four parliamentary committees with a total of over 1,500 comments for amendments. If the Parliament’s decision had to be summarized in a few key words, the summary “tightening and extension of content as well as shortening of application and transition periods” would probably be the most appropriate. Following the structure of the draft regulation, some of the amendments relevant to manufacturers and distributors are summarized below.

Battery types (Art. 2)

In addition to the new battery type for electric vehicle batteries for the traction of electric and hybrid vehicles already provided for in the Commission draft, the EU Parliament is in favor of introducing another new battery type. Accordingly, “batteries for light means of transport”, i.e. for e-bikes and e-scooters, are also to be established as a separate battery type. The regulatory requirements for this type of battery will then be placed between portable batteries and industrial and electric vehicle batteries in the overall structure of the regulation.

In addition, the Parliament also proposes to expand the definition of “automotive batteries” to include all batteries “used primarily for automotive and non-road mobile machinery starter, lighting or ignition power or other support functions”. In particular, the inclusion of non-road mobile machinery [NRMM] represents a relevant change from the previous legal and draft situation.

Also with regard to electric vehicle batteries, additional clarification is to be made by referring to vehicles of class L according to Regulation (EU) No. 168/2013 with a weight of more than 25 kg or classes M, N or O according to Regulation (EU) 2018/858 (so-called EU type-approval regulation).

Substance restrictions (Art. 6)
First of all, with regard to substances, it should be noted that the term “hazardous substances”, which in the Commission’s draft is limited to certain hazard classes under the (chemicals law) CLP Regulation, is to be extended to all CLP hazard classes according to the will of the Parliament. This would result in particular in an extension of the relevant labeling requirements from Art. 13 in conjunction with Annex IV.

In addition, there is to be an automatic mechanism in the future such that changes to the REACH Regulation on sustainability criteria for hazardous substances, by which is presumably meant in particular listings as SVHCs, substances subject to authorization or restricted substances, must lead within six months to an evaluation with regard to the need to adapt the substance restrictions of the Battery Regulation. In addition, it is proposed that the Commission, in cooperation with the European Chemicals Agency (ECHA), systematically reviews hazardous substances in batteries by 31.12.2025 and take measures based on the results, in particular the introduction of supplementary substance restrictions.

Recycled content (Art. 8)
Although several associations at different stages of the supply chain have already expressed considerable concerns with regard to the sufficient availability of secondary raw materials, the Parliament is in favor of a comprehensive extension of the applicability of these requirements. Whereas the Commission’s draft only provided for recyclate content requirements for industrial, electric vehicle and automotive batteries, the Parliament plans to extend them to portable batteries and batteries for light menas of transport, so that ultimately all batteries would be covered by Art. 8. At the same time, the first date of application, from which batteries must be accompanied by technical documentation with information on the recyclate content, is to be brought forward from 01.01.2027 to 01.07.2025. This would probably further exacerbate the feared bottlenecks for secondary raw materials.

Furthermore, the Commission is to be granted the authority to include further substances – beyond cobalt, lead, lithium and nickel – in Art. 8 and also to readjust the target values if and to the extent that this is justified by the development of battery technology.

Removability and replaceability (Art. 11 and 11a)
While the Commission has related the requirements on removability and replaceability only to portable batteries, the Parliament requests an amendment to the effect that all types of batteries must in principle be removable and replaceable. With regard to portable batteries and batteries for light means of transport, it is now stated that they must be designed in such a way that they can be readily and safely removed and replaced with basic and commonly available tools and without causing damage to the appliance or the batteries. However, ensuring the actual removability and replaceability, which in the case of portable batteries must even be possible by the end user, will ultimately only be implementable by the manufacturer of the equipment in which the batteries are incorporated. Furthermore, the Parliament demands that the use of exemptions in the future must be justified by the respective manufacturer in such a way that he proves that no alternative is available on the market.

In this context, relevant economic operators, probably mainly distributors, will be required to provide clear and detailed instructions for removal and replacement at the time of purchase of the equipment and to make them permanently available on their website in an easily understandable form to end-users, including consumers, during the expected lifetime of the product. In addition, the relevant economic operator shall inform end-users in a clear and comprehensible manner, including through labeling, at the time of purchase of the device, of cases where batteries are not removable and replaceable due to the use of an exemption. The information must then indicate the expected life of the battery.
A new proposal bythe Parliament also requires that portable batteries and batteries for light means of transport must be available at a reasonable and non-discriminatory price to independent economic operators (such as repairers) and end-users as spare parts for the equipment they power, for at least ten years after the last unit of a model has been placed on the market.

Automotive, industrial and electric vehicle batteries must be easily removable and replaceable, by qualified independent economic operators who must be able to safely discharge the battery without prior disassembly of the battery pack. The requirement is that the battery has a shorter life than the device or vehicle in which it is used.

Uniform chargers (Art. 11c)
On 23.09.2021, the EU Commission published a proposal to amend Directive 2014/53/EU (the so-called EU Radio Equipment Directive) with regard to requiring manufacturers to use USB-C charging ports uniformly (we reported: Proposal for uniform charging cables at EU level). Specifically covered by this proposal are rechargeable cell phones and similar categories or classes of wireless devices such as tablets, digital cameras, headphones, headsets, portable video game consoles and portable speakers.

In a newly proposed Art. 11c, the EU Parliament now wants to impose on the EU Commission the obligation and grant it the power to examine how best to introduce harmonized standards for a uniform charger. The regulations to be adopted by the Commission in this course are to apply from 01.01.2026 at the latest to rechargeable batteries for electric vehicles and for light means of transport, as well as to rechargeable batteries falling into certain categories of electrical and electronic equipment under Directive 2012/19/EU (WEEE Directive). However, at the same time, it is envisaged that the assessment underway under this provision will not prevent the enactment of legislation on uniform chargers elsewhere, such as under the ongoing legislative process to amend the EU Radio Equipment Directive. This indicates, at least for a transitional period, a patchwork quilt that must be avoided by prudent legislation on the part of the EU Commission, so as not to burden manufacturers beyond what is necessary and not to deter consumers with a multitude of different solutions for different types of devices.

Labeling (Art. 13)
Beyond the already very comprehensive proposals of the Commission, the Parliament requests further labeling elements such as in particular the mandatory labeling of non-rechargeable general purpose portable batteries with the indication “non-rechargeable” (from 01.01.2023) and the uniform color code labeling with regard to the respective battery type and chemical system (from 01.07.2023).

Furthermore, the Parliament is in favor of solving a long-simmering problem regarding the labeling of batteries incorporated in devices. Up to now, the legal situation in European and German battery law is such that the labeling must in principle also in these cases be applied directly on the battery and only in exceptional cases a labeling on the packaging (Sec. 17 para 4 BattG), but never on the device itself is permissible. Parliament now proposes that the labeling for batteries incorporated in a device should in principle be affixed directly on the device in a clearly visible, legible and indelible manner. This could overcome the often existing uncertainties regarding the proper labeling of incorporated batteries, so that this regulation is basically to be welcomed. However, it must be considered that manufacturers of batteries that are to be incorporated in devices would then probably no longer have to label them independently, but the labeling obligation would fall to the manufacturer of the devices. In order to clearly assign responsibilities, it would be desirable to clearly define who has which labeling obligations in this constellation. Otherwise, there is a risk of intransparency, which would be detrimental to legal certainty.

Deposit obligation (Art. 50a)
Contrary to demands from some committees, the Parliament does not directly demand the introduction of a deposit obligation for batteries. However, according to the will of the Parliament, the Commission is to examine by 31.12.2025 whether the introduction of a deposit requirement for certain types of batteries, in particular general-purpose portable batteries, would be feasible and potentially beneficial. However, the wording chosen explicitly allows for the introduction of national deposit systems for batteries. Should this provision remain in place, whereby no mandatory deposit is introduced at EU level for the time being, it is therefore by no means out of the question that the German legislator might forge ahead and introduce a national deposit system for certain battery-operated appliances and batteries, especially as this is already expressly laid down in the coalition agreement.

Forecast
Because the 489 amendments proposed by the Parliament go considerably further than the Commission proposal and the member states in the Council seem to be rather skeptical, at least in part, with regard to the very broad, lifecycle-spanning battery regulation, continued tough negotiations between the players involved in the legislative process can be expected. A concrete timetable for the entry into force of the Battery Ordinance is still not foreseeable.

The full text of the Parliament resolution is available HERE.

Do you have any questions about this news, or would you like to discuss the news with the author? Please contact: Michael Öttinger

16. March 2022 Michael Öttinger