2 Methodology and interpretations

Impact assessment of introduction of a general scope of the RoHS Directive – selected aspects

2.1 Changing the scope

The current RoHS Directive defines its scope by referring to product categories listed in Annex IA of the WEEE Directive (2002/96/EC). In the WEEE Directive, products falling under each category are further listed in Annex IB, but the RoHS Directive does not specifically refer to this annex.

Binding list vs. existing implementation of the RoHS Directive
One of the reasons for recasting the RoHS directive is that the Member States have had a different view on which products are regulated by the RoHS Directive. Since the current directive only refers to Annex IA in the WEEE Directive, it has been unclear whether the lists in Annex IB of the same directive should be considered as examples of equipment falling under each category and further, in that case, different interpretations have been applied when extrapolating from the examples to products not mentioned in the list.

Regarding the list in Annex IB of the WEEE directive, the Commission explains in its FAQ (EC, 2006) that "Since this list is non-exhaustive, Member States could in principle include other products in national legislation implementing the WEEE Directive, if they choose.". The approach may work with the WEEE Directive, which implement article 175 (1) of the EC treaty which concern the protection of human health and the environment. The RoHS Directive is based on article 95 of the EC Treaty and concerns the establishment and functioning of the internal market. Different interpretation and enforcement in the Member States is however not compatible with the legal basis of the Directive.

In the FAQ (EC, 2006) the Commission states with reference to the WEEE Directive that "At least the specific type of equipment quoted in Annex IB falls within the scope.". This indicated that he list should not be considered exhaustive.

In order to make an interpretation of the reference in the current RoHS Directive to Annex IA in the WEEE directive, some Member States regard Annex IB in the WEEE directive as a list of examples and consider that all equipment that is obviously in line with the examples given in Annex IB falls within the scope of their national RoHS legislation.

The introduction of a binding list in the Commission’s proposal, nearly identical to the example list in Annex IB of the WEEE Directive, consequently implies that in some Member States, equipment, which is currently considered to fall within the scope of the national legislation, would no longer be covered.

Member State example, Denmark
As an example, in Denmark all equipment that are obviously in line with the examples of Annex IB in the WEEE directive are considered to be within the scope of the categories of Annex IA in the WEEE Directive and thus within the scope of the current RoHS Directive. Popcorn machines and electric egg boilers are e.g. considered to be within the scope, because they are similar to listed equipment within Category 2 "Small household appliances" such as toasters and coffee machines. An electrical elevation bed may be considered within Category 1 "Large consumer equipment", but the bed is in its use very different from all listed products, and it is consequently considered to be outside the scope of the Danish legislation. For the category "Toys, leisure and sports equipment", Annex IB only list a very few examples, and it is difficult to judge whether an electric doll can be considered to be in line with electric trains and racing car sets, which are mentioned in the list. In the Danish interpretation, all toys specifically marketed as electric toys (e.g. as mentioned on the packaging) fall within the scope of the legislation.

In the preparation of Table 3.1 in Chapter 3, that lists products which are not specifically mentioned in Annex II of the Commission’s proposal, we have indicated which of the products that are regarded by the Danish authorities to fall within the scope of the current national RoHS legislation. With the introduction of the binding list of the Commission’s proposal these products would fall outside the scope of the legislation. In other Member States the current delineation between products within and outside the scope of the national legislation may be different.

Introducing a general scope
If a general scope is introduced all equipment that falls within the definition of EEE would fall within the scope, instead of only those EEE falling under certain product categories. Thereby a number of products currently out of the scope of the RoHS Directive would change status and fall within the scope.

2.2 Interpretation of the definitions and scope of the Commission’s Proposal

By the identification of products in this study, some interpretations of the wording of the Commission’s proposal have been necessary as the wording of the proposal at some points is ambiguous and open for different interpretations. The interpretations reflect the view of the authors only and the wording of the proposal may obviously be interpreted differently.

Definition of EEE
Both the current RoHS Directive and the Commission’s proposal define that “EEE” means equipment which is dependent on electric current or electromagnetic fields in order to work properly. In the FAQ for the current RoHS and WEEE Directives (EC, 2006) the Commission defines that “dependent” means that electricity is the primary energy source. Equipment fuelled by petrol or gas would by this definition not be considered EEE even if it included EE components. Equipment, for which electrical energy is used only for support or control functions, is according to the FAQ not covered by the current RoHS Directive. As an example of such products is mentioned a teddy bear with battery where the electricity is not essential for the primary function of the product. The interpretation that electricity should be the primary energy source has no support in the actual text of the Directive.

Further, “To work properly” could be interpreted as working in accordance with the intended use of the product. If a bear with battery is marketed as a “talking bear”, and the buyer pays extra for this feature, it cannot be considered to work properly without electricity, although it may still be used as a conventional teddy bear. In the identification of products not included in the binding list in the Commission’s proposal Annex II, we have applied this wide definition of EEE as equipment with electrical or electronic components since electric current or electromagnetic fields are essential for the intended use of such products. We recognise that this definition is subject to discussion.

Another way of testing the “to work properly” part of the definition of EEE could be “the discard test”. In order to clarify whether an electric current or electromagnetic fields is necessary for the product to work properly, you may ask whether you would discard the product if the electrical part failed and could not be repaired.

In any case the interpretation of “to work properly” is somewhat subjective and there is a need for a clearer, more objective definition.

"Designed as part of another type of equipment"
By identifying equipment, that is not included in the binding list of the Commission’s proposal, it has been considered whether the products would be covered by the scope limitations in Article 2 of the Commission’s proposal. For some products the interpretation of the limitations is not clear-cut, and the interpretation applied in this report reflect the authors’ understanding.

The limitation in Article 2, 3(b) of the Commission’s Proposal begins (our underlining) "Equipment which is specifically designed as part of another type of equipment….". In the FAQ on the current RoHS Directives, the Commission's wording is slightly different: "…Therefore, equipment that is specifically designed to be installed in airplane airplanes, boats and other transport equipment (including satellites) is considered to fall outside the scope of the RoHS Directive.". It will here be assumed that equipment that is specifically designed to be installed in equipment out of the scope is covered by this exemption (otherwise the wording "marketed as part" would be more appropriate than "designed as part").

With the current RoHS Directive, different interpretations have been applied. The Commission has the above mentioned interpretation whereas e.g. in the Netherlands, only car radios and navigation systems built-in during a car’s production are exempted, in contrast to identical car radios installed elsewhere at a later date (Bogaert et al., 2008).

The difficulties in the interpretation may be illustrated by the fact that some of the equipment specifically mentioned in Annex II probably will fall outside the scope according to the limitation in Article 2, 3(b).

Examples of equipment in Annex II of the Commission’s proposal, the authors of this report consider fall outside the scope according to Article 2, 3(b) are:

Computers for biking. A computer for biking is designed to be a part of a bike and can fulfil its function only if it is part of a bike, which is outside the scope.
Heating regulators and thermostats. Heating regulators and thermostats are designed to be used in a heating system and can fulfil their function only if they are part of a heating system, which is apparently out of the scope.
Monitoring and control instruments used in industrial installations (e.g. in control panels). Equipment build into control panels are part of the fixed installations and apparently out of the scope.

“Finished product” vs. fixed installation
It is not in the Commission’s proposal specifically indicated what the sentence "designed as part of another type of equipment"actually covers. The FAQ for the existing WEEE directive (EC, 2006) mention that “If the “other type of equipment” is a fixed installation it will not fall under the scope of the WEEE Directive” indicating that fixed installations should be considered other type of equipment. This interpretation will also be applied in this assessment.

In the FAQ, the commission distinguishes between "finished products" and "fixed installations":

A "finished product" is any device or unit of equipment that has a direct function, its own enclosure and - if applicable - ports and connections intended for end users. “Direct function” is defined as any function of a component or a finished product which fulfils the intended use specified by the manufacturer in the instructions for use for an end-user.
"Fixed installation" in the broadest sense is defined as "a combination of several equipment, systems, finished products and/or components (hereinafter called "parts") assembled and/or erected by an assembler/installer at a given place to operate together in an expected environment to perform a specific task, but not intended to be placed on the market as a single functional or commercial unit".

The study to support the impact assessment of the RoHS review (Abbayes et al., 2008) provides as mentioned a list of fixed installations, which is assumed to exemplify the kind of installations covered by the term. Examples are industrial installations/plants, electrical installations in buildings and power transmission network.

This report focuses on the finished products as defined by the Commission above. For many product groups the delineation between “finished products” and “fixed installations” is, however, not clear-cut.

2.3 Interpretation of draft Annex II

Further, by identification of products relevant for this study, some interpretations of the wording of Annex II of the Commission’s proposal have been necessary.

Interpretation of "Including and "such as"
By the transfer of the product lists in Annex IB of the WEEE Directive to Annex II of the Commission’s proposal, the terms "including" and "such as" have been introduced.

The following interpretation of the wording of Annex II in the Commission's proposal has been applied here:

The word "including" means that the succeeding list is considered binding and exhaustive. Equipment, not explicitly falling within the mentioned product groups, would fall outside the scope.
The wording "such as" means that the listed product groups are examples only and that all equipment that may fall under the product group mentioned before "such as" and is in line with the examples in the list is within the scope.

In this understanding the wording:

"2. Small household appliances, including
Appliances for cleaning, such as vacuum cleaners, carpet sweepers"

means that all small household appliances used for cleaning are within the scope of Category 2 if these appliances are in line with vacuum cleaners and carpet sweepers mentioned in the list of examples.

Similarly, the wording

“5. Lighting equipment, including
Lighting or equipment for the purpose of spreading or controlling light such as…”

means that all equipment that falls under this description is within the scope, no matter if it is just included in the succeeding “such as” list. E.g. light emitting diode (LED) lamps would be within the scope although they are not mentioned in the list, because they are in line with the examples given and covered by the overall description “equipment for the purpose of spreading or controlling light”. Equipment, for which spreading light is a secondary purpose would be in a grey area. As an example, the main purpose of a handheld mirror with light would not to be to spread light, but to reflect the image of the person.

The "such as" list consist of examples to be used in the determination of whether a product falls within the product group. The Member States may have different interpretations when it comes to judgement whether or not a product is similar to the examples mentioned.

It should be noted that the rephrasing of the list from Annex IB from the WEEE Directive to the Annex II of the Commission’s proposal introduces a more limited interpretation:

In the WEEE Directive three product groups are listed under Category 2 in Annex IB:

"Vacuum cleaners
Carpet sweepers
Other appliances for cleaning"

In the Commission’s proposal this is rephrased into:

"Appliances for cleaning, such as vacuum cleaners, carpet sweepers".

By the rephrasing vacuum cleaners and carpet sweepers serves as examples. In contrast, in Annex IB it is worded as "other appliances for cleaning", which can be totally different types of appliances for cleaning than vacuum cleaners and carpet sweepers.

"Household appliances"
Literally read "household appliances" are appliance used in households, and coffee machines mentioned under "Small household appliances" would only cover small coffee machines intended for use in households and not large coffee machines used in institutions. However, in the FAQ (EC, 2006) the Commission defines that "The RoHS Directive does not differentiate between households or professional EEE, so products for professional use are covered by the RoHS Directive." Based on this definition, in this study it is assumed that all equipment similar to household equipment, but used in institutions, offices, hotels, etc. falls within the two categories with household appliances.

"Large-scale stationary industrial tools"
The FAQ (EC, 2006) explain that "large-scale stationary industrial tools” are tools "installed by professionals at a given place in an industrial machinery or in an industrial building to perform a specific task.". It is not clearly defined what is meant by "industrial" and what could be considered large-scale stationary non-industrial tools. The FAQ mention that there is no general exemption for commercial catering equipment and that the criterion is not related to the size but to whether the equipment is fixed or not. In this study it is thus assumed that the term “industrial” is used in a broad sense and that the exemption cover virtually all large-scale stationary tools and also include such tools used in agriculture, institutions, garages, and artisanal workshops.

2.4 Delimitation of the assessment

Chapter 1 describes equipment that may be affected by introducing a general scope in the RoHS Directive, but not covered by this study. The following section further describes the groups of equipment covered by the study.

2.4.1 Equipment falling within the scope of the categories in Annex I

The first list in the next chapter (Table 3.1) includes a number of product groups which are considered by the authors to fall within the scope of the categories listed in Annex I of the Commission’s proposal, but not specifically mentioned in Annex II. Some of the products are obviously within the scope of a specific category and may simply have been overseen by the preparation of Annex II. An example is an electric egg boiler, which has an application in line with the products listed within Category 2 "small household appliances". Others are grey area products, where it is more doubtful whether they fall within any of the categories. An example is an aquaria pump. Pumps may be included in Category 6 if it used as a tool, but a pump permanently installed in an aquarium or garden pool cannot be considered a tool. Further for some products it has been very difficult to determine whether they are actually covered by one of the product groups listed in Annex II.

2.4.2 Equipment falling outside the scope of the categories in Annex I

As mentioned in Chapter 1 the current study focus on finished products which are not military equipment, large-scale stationary industrial tools or designed as part of aerospace applications, transport equipment and “fixed installations”.

Some of the finished products fall outside the categories in Annex I of the proposal.

Some of this equipment is very similar to equipment falling within the categories of Annex I or it is specifically used together with equipment within these categories. This includes:

"Veterinary devices" is quite similar to the "medical devises" in Category 8.
"Equipment for generation, transmission or conversion of electricity" is often used together with equipment within the scope. According to Art. 3, (a) of the Commission’s proposal, EEE also means equipment for the generation and transfer of electric currents and fields, but in fact no such equipment is included in Annex II of the proposal.
“Other laboratory equipment” is EEE used in laboratories, but not included in Category 9 as it is not monitoring or control instruments.
"Consumables with EE components" are typically used together with equipment within the scope. Consumables without EE components (most consumables) fall outside the definition of EEE, and their status would not be affected by introducing a general scope, but consumables with EE components falls within the general definition of EEE and would consequently be affected.

Other equipment is different from any of the categories within Annex I. Examples are "Clothing and foot-wear with EE components" and "furniture with EE components". The proposal’s Annex II includes one similar broad group of products: “Sports equipment with EE components” in Category 7.

2.5 Assessment method

For selected product groups an assessment has been made of the consequences of introduction of a general scope.

Within the limits of the study it has not been possible to make a comprehensive assessment of all costs vs. benefits of including the different EEE product groups within the scope of the Directive. The Directive is based on the notion that the benefits of restricting the RoHS substances in the EEE product groups within the scope at the least offset the socioeconomic costs. The present study therefore assess the EEE product groups outside the scope of the Commission’s proposal relative to products groups within the scope, in order to evaluate, at a screening level, whether the costs could be expected to be relatively high or/and the benefits relatively small. Further it is assessed whether the turnover of the product groups is significant.

The assessment has mainly been based on existing literature, in particularly reports prepared for the implementation of the RoHS and WEEE directives, Eurostat statistics and to a limited extent direct contact to stakeholders. Due to the wide range of product groups and the limits of the study, consultation with stakeholders, e.g. trade organisations, has been limited and for this reason the assessment has relatively large uncertainties e.g. on the market estimate.

It was anticipated that the content of RoHS substances could be estimated on the basis of existing description of the content of RoHS substances in the different equipment categories, but due to the number and diversity of product groups not covered by Annex II of the Commission’s proposal, this approach turned out to generate estimates with so large uncertainties, that the estimations did not support any qualified discussion of the potential for reduced use of the RoHS substances.

Market volumes for the different product groups have been estimated on the basis of statistics (see section 2.6.2), existing market surveys or other relevant information. The estimates are in general quite uncertain and the volumes are indicated with an interval within which the author estimates the “true value” with 80% certainty can be found.

2.6 Data collection

2.6.1 Product groups

In order to identify equipment with EE components, which is not within the scope of Annex II of the Commission’s proposal, the following activities have been undertaken:

Visit to the following retail shops in Esbjerg and Århus, Denmark: Elgiganten, Krea, Magasin, Tiger, Silvan, Huset Støc-Bo.
Internet search on the web sites of stores with all types of equipment with EE components.
Going through the commodity groups in the Combined Nomenclature (CN) used in the EU for classification of goods and merchandise in the import and export statistics.
Consulting the review of Categories 8 and 9 (Goodman, 2006) and a note from the RoHS Network on Grey Area Products of 17^thSeptember 2009.
Analysis of the Category lists using the authors basic knowledge about equipment with EE components e.g. systematically going through processes used in the different trades in order to identify tools used for processes not included in Category 6. Examples of the tools are subsequently found by an Internet search.

2.6.2 Statistical data

For some of the product groups, covered by specific commodity codes (CN codes) in the Combined Nomenclature (CN) used for EU trade statistics, data on external trade of the product have been retrieved from Eurostat’s datatabase: “EU27 Trade Since 1995 By CN8” available at Eurostat’s website. CN8 means that the commodity groups are represented by an 8-digit identification code (CN8 code). An example is CN 8509 4000 “Domestic food grinders and mixers and fruit or vegetable juice extractors, with self-contained electric motor”. Most of the EEE groups, however, are included in more aggregated product groups and it has for these groups not been possible to retrieve specific data on import or export.

Ideally the consumption within the EU27 can be estimated by the equation:

EU27 consumption =
EU27 production + extra-EU27 import ÷ extra-EU27 export.

The estimation method could be applied if production was reported using the same CN codes as the import and export. This is the situation in some Member States, but not at EU level. EU27 production is reported in Eurostat’s Prodcom database which uses more aggregated commodity groups, and for the relevant product groups it is not possible to combine the production and the external trade data.

By adding the total intra-EU 27 import (all Member States’ import from other Member States) with the extra-EU import (all Member States’ import from countries outside the EU) it is possible to calculate the total import to all Member States. In order to estimate the total EU27 consumption the consumption in each Member State, which is based on domestic production, should be added. As EEE products are intensively traded internationally, domestic production in each Member State (as EU average) is probably less than 50% and the total consumption and the import figures consequently gives a quite good idea about the total consumption.