Batterie
European Battery Regulation

Draft European Battery Regulation – General Approach of the Council

On 17.03.2022, after long negotiations the Council of the European Union, chaired by France, adopted its general approach on the Commission’s draft European Battery Regulation. This means that the trilogue negotiations between the institutions involved in the legislative process can now begin.

In contrast to the fundamental tightening tendencies of the EU Parliament, the Council strikes much more moderate tones and emphasizes the importance of practical implementability. In this respect, the Council is also in favor of appropriately long implementation periods. Below – comparable to the analysis of the EU Parliament’s amendments (we have reported: Draft European Battery Regulation – 1st Reading in the EU Parliament) – some key issues of the Council’s position are presented in an overview. In summary, the Council, in contrast to the Parliament, sticks all in all much closer to the proposal of the EU Commission.

Definitions (Art. 2)

The Council is also in favor of the introduction of a separate battery type for batteries for light means f transport and basically defines them in the same way as the Parliament. In a similar way, the Council also calls for a sharpening of the definitions of the other battery types, so that it can be assumed that the negotiating positions of the Council and the Parliament are in line.

In contrast, the Council is in favor of a considerable complication of the definition of “producer” in Art. 2 para. 1 No. 37. Although the Council seems to have drafted its proposal along the lines of Directive 2012/19/EU (WEEE Directive), experience shows, however, that it is precisely this multi-part role assignment in complex supply chains that repeatedly leads to role conflicts that are virtually impossible to resolve. Here, a simple delimitation (as contained in the Commission draft) would be desirable for reasons of legal certainty. This is particularly the case because the Council’s definition proposal would lead to a further approximation of the term “producer” to the term “manufacturer” in Art. 2 para. 1 No. 27 and would therefore result in demarcation difficulties in several ways.

Carbon footprint (Art. 7)

With regard to the scope of the requirements on the carbon footprint, the Council follows the Commission proposal according to which this regulation should only be applicable to certain electric vehicle and industrial batteries. In contrast, the Parliament is in favor of an extension also to batteries for light means of transport.

However, the Council calls for a further differentiation of the start date of application. The Council leaves the chronological staggering of the Commission’s draft with regard to the development of the intensity of the requirements – first pure declaration of the carbon footprint, then determination of performance classes and finally maximum values – in place. However, it proposes a further breakdown. According to this, the individual intensity levels should initially apply only to electric vehiclae batteries and only after a two-year delay in each case to industrial batteries.

Recycled content (Art. 8)

Also with regard to the regulation on a mandatory recycled content, the Council is in favor of leaving the limited scope of the Commission draft untouched and not extending it – as requested by the Parliament – to all batteries, in particular not to portable batteries and batteries for light means of transport.

Restricting the scope to industrial, electric vehicle and starter batteries should help to avoid exacerbating the already tight situation on secondary raw materials markets. However, another amendment proposed by the Council proves to be quite problematic: While the Commission and the Parliament do not make any restrictions on the source of origin of the recyclates, the Council seems to want to include a restriction that is far removed from practice in the sense that, in the case of cobalt, nickel and lithium, only secondary raw materials from waste arising during production or raw materials recovered from consumer waste are to be recognized for the fulfillment of the recyclate quota. Because it is known that it is not possible to make such a differentiation in recycling practice, this proposal must be clearly rejected. In contrast, the source of recovered lead is irrelevant.

Removability and replaceability (Art. 11)

Contrary to the Commission’s draft, which provides for these requirements to apply from the entry into force of the Regulation, the Parliament and the Council are in favor of a transitional period, which the Council envisages as 24 months from the entry into force of the Regulation.

A fundamentally welcome, clear difference in the Council’s positioning compared to the positions of the Commission and the Parliament lies in the fact that the Council makes a comprehensible assignment of roles. It explicitly assigns this obligation to those economic operators who place products with built-in portable batteries or built-in batteries for light means of transport on the market. Only these actors can ultimately ensure the removability and replaceability of batteries, so that this role assignment must be mandatory. Otherwise, i.e., if battery producers are obliged to act as such, they face incalculable liability risks, since pure battery producers often have no influence on the product design. However, this is the decisive factor for the removability and replaceability of a battery. Against this background, the usefulness of such a regulation in a pure battery regulation, which otherwise does not impose any requirements on those products that contain the batteries, remains questionable; however, the Council’s proposal represents a major step in the right direction.

Furthermore, compared to the Parliament’s proposal, the Council’s proposal does not contain a justification obligation in case of lack of removability and replaceability, nor an obligation for the actors supplying the products to provide information with regard to removability and replaceability.

Obligation for dealers to take back batteries on delivery

In a new Art. 50 para. 4a, the Council is much more clearly in favor of a take-back obligation for waste batteries from light means of transprt, starter batteries, industrial batteries and electric vehicle batteries upon delivery than the Parliament. This regulation clearly goes in the direction of the new obligations for distributors of electrical equipment under Sec. 17 paras. 1 and 2 ElektroG. In view of the considerable organizational and logistical difficulties that this regulation entails for distributors, the introduction of such an obligation requires special tact on the part of the legislator, who must take into account the practical possibilities.

After the German Federal Ministry for the Environment, Nature Conservation, Nuclear Safety and Consumer Protection, which was in charge of the amendment to the ElektroG, had already directly experienced the considerable difficulties of implementing such a requirement and was ultimately forced to trim back the statutory requirements to a reasonably practicable level by means of creative interpretative notes, it can only be appealed to German politics and industry to work towards a practicable solution to this issue. Should it remain with such a sweeping formulation as proposed by the Council, partially unsolvable tasks for the affected distributors are pre-programmed.

Forecast
Although the Council’s positions are, as expected, more moderate than those of Parliament, even the Council’s positive approaches do not eliminate all the obstacles to practical implementation. Some of Parliament’s demands, such as the assessment relating to the introduction of standardized chargers and the introduction of a mandatory deposit, have not been taken up by the Council at all.

In light of the current positions of the EU institutions directly involved in the legislative process, exciting trilogue negotiations are now likely to ensue. Because there is apparently a common will to “revolutionize” battery law, it can be predicted that failure of the project is anything but likely.

The full text of the Council’s general approach 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

25. March 2022 Michael Öttinger