REACH and RoHS: the interface

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How the restriction of hazardous substances (RoHS) in electrical and electronic equipment Directive sits alongside REACH has never been entirely clear.

Whereas RoHS is a product-specific vertical piece of legislation which seeks to minimise the use of certain hazardous substances in electrical and electronic equipment (EEE) supplied to the EU, REACH is a horizontal piece of legislation which in general is technology or product neutral.

There are essentially two key areas of confusion. What happens if one instrument regulates a substance and an initiative is launched in relation to the same substance? And what happens if neither instrument regulates the substance but action under one or both is initiated? Which takes priority?

In late summer, the European Commission published a common understanding paper to try and clarify how the two pieces of legislation work together. It concludes that as far as possible RoHS should be given priority to regulate issues pertaining to the use of substances in EEE.

There are compelling reasons why this is the right decision. RoHS applies to both imported and domestically manufactured EEE, but REACH’s authorisation process applies only to use in the EU and therefore doesn’t cover imported products. Giving priority to RoHS therefore creates a more level playing field for EU-based manufacturers as well as delivering improved health and environmental outcomes.

Of course, how this plays out in practice will be important for EEE manufacturers to understand. The Commission has identified a number of scenarios where the Directive and Regulation could clash and outlined potential solutions. These are set out below.

RoHS and REACH restrictions

Q: What happens if a restriction is proposed under REACH for a substance already in RoHS? 

A: EEE within scope of RoHS would be excluded from the proposed REACH restriction.

Q: If a restriction is in place under REACH and it is later proposed for inclusion in RoHS?
A: If a stricter restriction is proposed under RoHS, any existing restriction listed in Annex XVII of REACH would be amended to remove EEE from scope.

Q: What if a restriction is proposed for a substance used in EEE but which is not yet in RoHS?
A: A restriction under REACH could be brought in and later amended to carve out EEE from scope if/when the substance is brought into RoHS. Alternatively, the Commission or a member state could decide to implement a restriction, where judged to be justified and proportionate, via an amendment to the RoHS Directive outside the regular 4-year periodic review.

RoHS and REACH authorisation

Q. What happens if a substance in scope of RoHS is proposed for inclusion in Annex XIV (the ‘Authorisation list’) of REACH?

A. If RoHS does not exempt any uses, authorisation would apply. Where there are exempt applications, authorisation would apply but the Commission would be open to exempting the uses covered by RoHS.

Q. What would happen if a substance is already included in Annex XIV of REACH when a restriction under RoHS is proposed?
A. Assuming there are no exemptions under RoHS, companies with authorisation could use the substance in manufacturing but they would not be able to place it on the market, as it would be banned under RoHS. Any authorisations already granted under REACH to use the substance in EEE would effectively become redundant. A restriction in RoHS beginning on the expiry of the first authorisation period set by the review clause would not be at odds with REACH’s authorisation process, the Commission concludes.

Where RoHS provides exemptions, a judgement is likely to be taken on a case-by-case basis whether there is any value in retaining the authorisation requirement under REACH for those exempted activities.

Q. What happens if a substance of potential concern is not yet covered by either instrument?
A. The options are to include the substance in Annex XIV and exempt the substance in EEE if it is later brought into RoHS (unless there are solid reasons not to) or to delay REACH activity pending inclusion of the substance into RoHS. The Commission suggests initiating inclusion into RoHS as soon as it seems likely that a substance in EEE will be considered as a priority for inclusion in Annex XIV or even during initial screening so that EEE can be excluded from the authorisation requirement. Companies that are able to justify continued use of a substance of very high concern (SVHC) in EEE can then apply for a general exemption under RoHS instead of having to apply for authorisation under REACH.

Further clarity on RoHS processes are expected to emerge next year. Recently the Commission established a RoHS 2 Substances Working Group, comprising of industry associations, several member states as well as the European Parliament, which will produce guidance for the periodical review of the Directive at the end of quarter 1 in 2015. Specifically, it is considering substitution criteria, the grouping of substances, data quality and gaps, the link between Article 5 and 6 of RoHS and how to best manage member state proposals.

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