EN   EN 
 
 
 EUROPEAN  
COMMISSION   
Brussels, XXX   
[…](2021) XXX  draft 
 
COMMISSION DELEGATED DIRECTIVE (EU) .../…  
of XXX  
amending, for the purposes of adapting to scientific and technical progress, Annex III to 
Directive 2011/65/EU of the European Parliament and of the Council as regards an 
exemption for the use of mercury in other low pressure discharge lamps  
(Text with EEA  relevance)   EN 1  EN EXPLANATORY MEMORANDUM  
1. CONTEXT  OF THE  DELEGATED  ACT  
This Commission Delegated Directive amends, for the purpose of adapting to scientific and 
technical progress, Annex III to Directive 2011/65/EU of the European Parliament and of the 
Council on the restriction of the use of certain hazardous substances in electrical and 
electronic equipment (recast)1 (the RoHS Directive) . The amendment concerns an exemption 
for specifi ed applications containing mercury  in other low pressure discharge lamps . 
The RoHS Directive restricts the use of certain hazardous substances in electrical and 
electronic equipment (EEE), as specified  in Article 4. Ten substances are currently restricted 
and listed in Annex II to the Directive : lead, mercury, cadmium, hexavalent chromium, 
polybrominated biphenyls (PBB), polybrominated diphenyl ethers (PBDE), bis (2 -ethylhexyl) 
phthalate (DEHP), butyl benzyl phthalate (BBP), dibutyl  phtha late (DBP) and diisobutyl 
phthalate (DIBP). Annexes III and IV list the EEE materials and components for specific 
applications that are exempt from the substance restrictions laid down in Article 4(1).  
Article 5 of the Directive provides for the adap tation of Annexes III and IV  to scientific and 
technical progress , which can include  granting, renewing and revoking of exemptions. 
Pursuant to Article  5(1)(a), exemptions are to be included in Annexes III and IV only if such 
inclusion does not weaken the environmental and health protection afforded by 
Regulation  (EC)  No 1907/2006 (REACH)2 and where any of the following conditions is 
fulfilled: (i) their elimination or substitution via design changes or materials and components 
which do not require any of t he materials or substances listed in Annex II is scientifically or 
technically impracticable; (ii) the reliability of substitutes is not ensured; (iii) the total 
negative environmental, health and consumer safety impacts caused by substitution are likely 
to outweigh the total environmental, health and consumer safety benefits thereof.  
Decisions on exemptions, and their duration, must also  take into account the availability of 
substitutes and the socioeconomic impact of substitution. Decisions on the duratio n of 
exemptions must also take into account any potential impact on innovation. Life -cycle 
thinking on the overall impacts of the exemption must be applied , where relevant.  
Article 5(1) (a) also specifies that, to include materials and components of EEE for  specific 
applications in the lists in Annexes  III and IV , the Commission  must adopt  individual 
delegated acts. Article 5(3) and Annex V describe the procedure for submitting exemption -
related  applications  to the Commission . 
2. CONSULTATIONS  PRIOR  TO THE  ADOPTION  OF THE  ACT  
The Commission receive d requests3 from economic operators to grant or renew exemptions as 
provided for under Article 5(3) and Annex V to the RoHS  Directive . 
The current Annex III exemption 4(a) permits the use of m ercury in other low pr essure 
discharge lamps  (per lamp): 15 mg.  
In December 2014 and January 2015  the Commission received two application s for the 
renewal of this exemption claiming  in essence that there is no available light-emitting diodes 
(LED ) or other lighting techn ology that use less mercury  or which can be used as a substitute 
                                                 
1 OJ L 174, 1.7.2011, p. 88.  
2 OJ L 396, 30.12.2006, p. 1.  
3 The list is available at: http://ec.europa.eu/environment/waste/rohs_eee/adaptation_en.htm . EN 2  EN for these lamps4. One of the applications was renewed with additional information in January 
2020 . In line with the requirements of Article 5(5)  of the RoHS Directive, an exemption 
remains valid until the Commission takes a decision on the renewal application . 
To evaluat e the application to renew that exemption, the Commission launched a study5 in 
June 2015, concluded in 2016, to carry out the required scientific and technical assessment, 
including an eight -week online stakeholder consultation6. Further to that study assessing the 
extensive scientific and technical data and contributions received, as documented in the study 
report, the Commission in 20197 carried out an update of the 2016 study, focused on the 
socioeconomic assessment and availability of substitutes of this and other exemptions . The 
final report  of the study was published8 and stakeholders were notified.  
The Commission consulted the Member State expert group for delegated acts und er the RoHS  
Directive  during the expert meetings o f 1 September 2016 , 29 October 2018  and 21 October 
2019  to collect Member States’ views on an envisaged course of action  in line with the 
conclusions of the evaluations . It carried out all the requisite procedural steps relating to 
exemptions from the substance restriction , under  Article 5(3) to 5(7) .9 The Council and the 
European Parliament were notified of all activities.  
The final reports highlighted th at: 
 the lamps covered by this exemption are not phosphor -coated and produce mainly 
light in ultraviolet spectrum. They are  installed in equipment for industrial, 
commercial and residential applications and cover  uses such as  ultraviolet germicid al 
or bacterial disinfection/pur ification of air/water/surf aces; 
 in order to fulfil these purposes, the light output  must be in the deep ultraviolet r ange . 
Mercury -free a lternatives do not yet provide the necessary wavelength  range.  
Therefore, substitutes  with a comparable performance  are currently  technically 
impracticable ; 
 it was also concluded that first alternatives coming on the market would not cover 
the full product range and , at the system level , time is still needed to develop 
sufficient alternatives, reason for which it was recommended to renew the exempt ion 
for the maximum duration of a further five years ; 
 the current scope  of the exemption  can be narrowed to low-pressure discharge lamps 
that are not phosphor -coated  and emit light in the ultraviolet range.  
In conclusion, the scientific and technical assessments, including stakeholder consultations, 
detailed that , as reliable su bstitutes are not yet available,  the exemption criteria continue  to be 
met with regard to exemption 4(a). The evaluation results also show that t he specific 
                                                 
4 http://rohs.exemptions.oeko.info/fileadmin  and http:// rohs.exemptions.oeko.info/fileadmin/user_upload/  
RoHS_Pack_9/Exemption_4_a_/Lighting_Europe /4a_LE_RoHS_Exemption_Req__Final.pdf .  
5 Final Report of the study is available at https://op.europa.eu/en/publication -detail/ -/publication/a3fdcc8c -
4273 -11e6 -af30-01aa75ed71a1 . 
6 Consultation period: 21 August 2015 to 16 October 2015, http://rohs.exemptions.oeko.info . 
7 https://rohs.exemptions.oeko.info/fileadmin/user_upload/reports/FWCW_RoHS_  
Lamps_SEA_20190729_Final.p df 
8 https://ec.europa.eu/environment/waste/rohs_eee/studies_rohs1_en.htm . 
9 A list of the required administrative steps is available on the Commission website . Current stage of the 
procedure can be viewed for each draft delegated act in the Interinstitutional Registry of Delegated Acts at 
https://webgate.ec.europa.eu/regdel/#/home . EN 3  EN exemption would not weaken the environmental and health protection afforded by the 
REACH Regulation, in accordance with Article 5 of Directive 2011/65/EU.  
 3. LEGAL  ELEMENTS  OF THE  DELEGATED  ACT  
The delegated directive renews  exemption 4(a), listed in Annex III of Directive  2011/65/EU, 
for the use of mercury in specifi ed applications.  
The Commission’s assessment , based on the supporting studies and consultations , concluded 
that the exemption request meets at least one of the criteria laid down in Article 5(1)(a) , that 
justifies extending the exemption : the substitution of mercury, with re liable substitutes, in the 
lamp  categories concerned by this exemption cannot currently be ensured.  The assessment 
also concluded that t he scope of the exemption should be narrowed to f urther specified 
applications.  
In summary, the conditions for renewing the exemption are fulfilled, and exemption 4(a) is to 
be renewed by introducing a new wording suitable to the actual scope of the exemption.  
The date  by which this exemption shall expir e is set in line with Article 5(2)(first 
subparagraph). As concluded by the evaluation, the state of development of substitutes 
justifies renewing the exemption for the maximum validity period of five years.  The granted 
validity period is not expected to h ave adverse impacts on innovation.  
The legal instrument is a delegated directive, as provided for by Directive 2011/65/EU, in 
particular to meet the requirements set out in Article 5(1)(a) thereof.  
The objective of the delegated directive is to contribute to the protection of human health and 
the environment and to align the provisions for the functioning of the internal market in the 
field of electrical and electronic equipment , by allowing the use of otherwise banned 
substances for specific applications, with the provisions and under the conditions of the RoHS 
Directive and the procedure for adapting Annexes III and IV to scientific and technical 
progress.  
The delegated directive  has no implications for the EU budget.  
 EN 4  EN COMMISSION DELEGATED DIRECTIVE (EU) .../…  
of XXX  
amending, for the purposes of adapting to scientific and technical progress, Annex III to 
Directive 2011/65/EU of the European Parliament and of the Council as regards an 
exemption for the use of mercury in other low pressure discharge lamps  
(Text with EEA relevance)  
THE EUROPEAN COMMISSION,  
Having regard to the Treaty on the Functioning of the European Union , 
Having regard to Directive 2011/65/EU of the European Parliament and of the Council of 
8 June 2011 on the restriction of the use of certain hazardous substances in electrical and 
electronic equipment1, and in particular Article 5(1) , point  (a), thereof,  
Whereas:  
(1) Directive 2011/65/EU requires Member States to ensure that electr ical and electronic 
equipment placed on the market does not contain the hazardous substances listed in 
Annex II to that Directive. That restriction does not apply to certain exempted 
applications listed in Annexes III to that Directive.  
(2) The categories of electrical and electronic equipment to which Directive 2011/65/EU 
applies are listed in Annex I to that Directive.  
(3) Mercury is a restricted substance listed in Annex II to Directive 2011/65/EU.  
(4) By Decision 2010/571/EU2, the Commission granted,  among other t hings, an 
exemption  for the use of mercury in other low pressure discharge lamps  (‘the 
exemption’) , which is now listed  as exemption 4(a) in Annex  III to Directive 
2011/65/EC. The exemption was to expire on 21 July 2016 , in accordance with Article 
5(2), se cond subparagraph, point (a), of that Directive . 
(5) Mercury is used in low pressure discharge lamps to produce ultraviolet light  used for 
ultraviolet germicidal or bacterial disinfection and/or purification of air, water and 
surfaces.  
(6) On 19 December 2014 and 15 January 2015 , the Commission received two 
application s for renewal of the exemption  (‘the renewal application’), that is within the 
time laid down in Article 5(5) of Directive 2011/65/EU , of which one was updated 
with a renewed application on 20 January 2020.  In accordance with Article 5(5)  of 
Directive 2011/65/EU, the exemption remains valid until a decision on the renewal 
application has been taken . 
                                                 
1 OJ L 174, 1.7.2011, p. 88.  
2 Commission Decision 2010/571/EU of 24  September 2010 amending, for the purposes of adapting to 
scientific and technical progress, the Annex to D irective 2002/95/EC of the European Parliament and of 
the Council as regards exemptions for applications containing lead, mercury, cadmium, hexavalent 
chromium, polybrominated biphenyls or polybrominated diphenyl ethers (OJ L 251, 25.9.2010, p. 28).  EN 5  EN (7) The evaluation of the renewal applicat ion, which took into account the availability of 
substitutes and the socioeconomic impact of substitution, concluded that the 
elimination of mercury in the applications concerned  or its substitution by a substance 
of comparable performance  is currently technically impracticable. That evaluation 
further concluded that the current scope of the exemption can be limited to low 
pressure discharge lamps that are not phosphor coated and emit light in the ultraviolet 
range. The evaluation included stakeholder consultations in accordance with Article 
5(7) of Directive 2011/65/EU. The comments received during these consultations were 
made publicly available on a dedicated website.  
(8) The exemption is consistent with Regulation (EC) N o 1907/2006 of the European 
Parliament and of the Council3 and thus does not weaken the environmental and health 
protection afforded by it.  
(9) It is therefore appropriate to grant the renewal of the exemption,  with a revised 
wording,  setting out the limited s cope of the exemption , for a maximum period of five 
years , in accordance with Article 5(2 ), first subparagraph,  of Directive 2011/65/EU . In 
view of the results of the ongoing efforts to find a reliable substitution, the duration of 
the exemption is unlikely to have adverse impacts on innovation . 
(10) Directive 2011/65/EU should therefore be amended accordingly,  
HAS ADOPTED THIS DIRECTIVE:  
Article 1  
Annex III to Directive 2011/65/EU is amended as set out in the Annex to this Directive.  
Article  2 
1. Member Sta tes shall adopt and publish, by [the last day of the sixth  month after the 
date of entry into force of this Directive]  at the latest, the laws, regulations and 
administrative provisions necessary to comply with this Directive. They shall 
forthwith communic ate to the Commission the text of those provisions . 
They shall apply those provisions from [the last day of the sixth  month after the date 
of entry into force of this Directive + 1 day] . 
When Member States adopt those provisions, they shall contain a refer ence to this 
Directive or be accompanied by such a reference on the occasion of their official 
publication. Member States shall determine how such reference is to be made . 
2. Member States shall communicate to the Commission the text of the main provisions 
of national law which they adopt in the field covered by this Directive.  
                                                 
3 Regu lation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 
concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) and 
establishing a European Chemicals Agency , amending Directive 1999/45/EC and repealing Council 
Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council 
Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 
2000/21/EC  (OJ L 396, 30.12.2006, p. 1).  EN 6  EN Article  3 
This Directive  shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union . 
Article  4 
This Directive is address ed to the Member States.  
Done at Brussels,  
 For the Commission  
 Ursula VON DER LEYEN  
 The President  