Batteries and waste batteries - EU proposes a new regulation

Batteries have been attracting increasing attention in Europe over the past few years. In 2017, the European Battery Alliance was launched and in 2019 the EU produced a Strategic Action Plan on Batteries, setting out Europe’s plan to gain increased independence from external influences in battery development.

Interest in batteries continues to grow and, in December 2020, the EU Commission published a proposal to modernise battery regulation in the EU, which is intended to replace the current Batteries Directive (2006/66/EC) and amend Regulation 2019/1020 (the Regulation). We look briefly below at the proposed regulation; for more see our note The EU Batteries Regulation.

Aims of proposed new batteries regulation

The Regulation seeks to address and mitigate three main areas:

• the lack of framework conditions providing incentives to invest in producing capacity for sustainable batteries due to the lack of a sufficient level playing field and diverging regulation within the internal market;
• suboptimal functioning of recycling markets due to regulatory shortcomings;
• social and environmental risks from:
  • a lack of transparency on sourcing raw materials;
  • hazardous substances; and
  • untapped potential for offsetting the environmental impacts of battery life cycles.

A stepped approach is envisaged that covers the full battery life cycle, not just the end-of-life phase as under the Batteries Directive, and introduces rules on production, use phases such as electrochemical performance, durability, greenhouse gas emissions and responsible sourcing. It also sets out measures on improving the functioning of recycling markets for the end-of-life phase of batteries.

Proposed EU regime

The regime under the proposed Regulation is intended to apply from 1 January 2022 and, while aiming to harmonise the rules on batteries in the single market, recognises the potential risks batteries pose to the environment and health and safety.

The main areas of the new regime include sustainability and safety requirements, which sets out rules on the carbon footprint of electric vehicle batteries and rechargeable industrial batteries, and provides detailed guidance for calculating the carbon footprint of batteries. Certain hazardous substances (notably mercury and cadmium) used in batteries are subject to restrictions set out in Annex I of the Regulation, which are in addition to the current restrictions in Annex XVII of Regulation (EC) No 1907/2006. The Regulation also enables the Commission to add further substances to the restricted list through delegated acts when an unacceptable risk to human health or the environment arises from a battery substance. Batteries will also be subject to classification into carbon footprint performance classes and, from 1 July 2027, will need to comply with maximum life cycle carbon footprint thresholds based on their earlier carbon footprint performance class.

For labelling and information, as of 1 July 2023, batteries must be labelled with the symbol indicating ‘separate collection’ and batteries containing cadmium or lead must be labelled with the elements symbol. As of 1 January 2027, batteries must be labelled in accordance with the information set out in Annex VI of the Regulation providing the information necessary for the identification of batteries and of their main characteristics. A QR code can also be printed or engraved on batteries, depending on type, which gives access to the battery information in question.

Other areas addressed include conformity assessment and notification, obligations of economic operators, end-life management, electronic exchange of information.

Reporting obligations include battery producers having to report to the competent authority such details as the volume of batteries made available within the EU Member State, the volume of waste batteries collected, the volume of collected waste batteries delivered for treatment and recycling to permitted facilities and, for portable battery producers only, the collection target reached. Member States will have to publish aggregated information (for each calendar year) specifying the volume of batteries made available on the market of each individual Member State, the volume of waste batteries collected, values of the achieved recycling efficiencies, and the values of the achieved material recovered.

Proposed application from 2022

With such a keen interest in the area of batteries not only in Europe but worldwide, the European Parliament has appointed a rapporteur with the aim of having the proposed regulation on batteries and waste batteries applicable from 2022. To achieve this, the regulation would have to get through the legislative process quickly and with few amendments, which may not be a likely prospect. For more on the batteries regulation, see our note The EU Batteries Regulation.

A consultation on changes to UK battery legislation is expected to be published in the fourth quarter of 2021.

For more information, please do not hesitate to contact Silke Goldberg, Partner, and Jannis Bille, Associate, and we would be very happy to discuss this further with you.