Regulation and Political Context
Since the Directive on the restriction of the use of certain hazardous substances in electrical and electronic equipment 2002/95/EC (RoHS)’s adoption in 2003 and its entry into force in 2006, solar modules benefit from an ambivalent legal situation. Solar modules containing toxic substances such as Lead (Pb) or Cadmium (Cd) and its compounds were neither included in nor specifically excluded from the current scope. As a result, millions of solar modules containing far higher amounts of toxics than the limits set by RoHS, 0.1% for Pb and 0.01% for Cd by weight of homogeneous material, were sold and installed in the EU each year.
A recast of the RoHS Directive has been proposed by the European Commission in December 2008 and the directive was subsequently under discussion in the European Parliament’s Committee on the Environment, Public Health and Food Safety (ENVI) and the Council of Ministers under the co-decision procedure.
The idea of an open scope for RoHS got broad support from member states at the EU Council meeting on October 21st, 2009, while some member states were arguing for exemptions and impact assessments. The majority of the member states supported a streamlined scope for RoHS.
The European Parliament ENVI Committee’s Draft Report of October 22nd, 2009 proposed a variety of amendments to the Commission’s proposal, including an open scope application of the directive, which NTSA supports (amendments 14, 35, 67 and 68). Other amendments proposed a transitional phase of four years up to July 1st, 2014, in order to allow PV-manufacturers to apply for exemptions (amendment 15), as well as a specific exemption for Cadmium in CdTe thin-film solar modules for an additional four years time period, until July 1st, 2018 (amendments 32 and 73).
Additional amendments were published on March 29th, ranging from the total exclusion of all renewable energy technologies (amendment 144), a general exclusion of PV modules from the scope of RoHS (amendments 89 and 142), exemption for CdTe with no time limit (amendment 336), to a rejection of even temporary exemptions (amendment 337).
NTSA e.V. supported the rejection of temporary exemption under an open scope (amendment 337) with a sufficiently short phase-out of maximum three years (amendment 15).
The European Parliament exchanged views on RoHS in the ENVI Committee in March and April, and adopted the report on June 2nd. This included adoption of amendment 144, thereby granting a total exclusion from RoHS for all renewable energy technologies. Furthermore, the other amendments were not voted on, as 144 constituted the widest application of exemptions possible.
After the ENVI vote on RoHS, the European Parliament, the Council of Ministers (representing member states) and the European Commission started “Triologue”-negotiations to agree on a common text.
EU member states agreed on a common Council-position at the COREPER-meeting on Friday, November 5th and presented a compromise proposal to the delegation of the European Parliament (EP) at the Trilogue meetings on November 8/9th.
On November 24th, 2010, the European Parliament (EP) plenary adopted the Trilogue negotiation compromise package on the RoHS directive, with 640 MEPs in favor, three against and twelve abstentions, thereby approving the following:
- The RoHS directive's scope will be open, applicable to all EEE, taking effect after an8 year transition period. Independent from the transition period, solar panels are
excluded and will therefore not be subject to RoHS from the day the directive takes effect.
- As the exclusion for PV is included in the body of the directive, it can only be modified by
the EP and the Council (contrary to exemptions specified in the Annex that can be
modified by the Commission), effectively giving solar PV a permanent exclusion until the
next recast/review.
- The European Commission will be asked to carry out an impact assessment in 2014 to
consider additional exclusions, but will not review the given exclusions from the scope.
The Commission will also carry out a general review of the RoHS directive after ten
years in order to decide whether a new recast is needed.
Chances remain that the EU Commission will reopen the issue in two to three years, particularly, if new scientific evidence occurs.