In December 2020, the European Commission presented a proposal for a new Regulation on Batteries and Waste Batteries. The proposed Regulation aims to replace the current framework of Directive 2006/66/EC and seeks to achieve objectives set out in the European Green Deal and subsequent strategies, such as the transition to a carbon neutral and circular economy and the growth of renewable energies and clean mobility. (Covington lawyers hosted a webinar that outlines the main features of the proposed Regulation and the ordinary legislative procedure that the proposal will follow.)
The proposal includes a host of product sustainability and safety requirements, conformity assessments and end-of-life management obligations for the producers of all types of batteries. These requirements concern, among many others, carbon footprints, recycled content, chemical restrictions, durability, removability, replaceability, supply chain due diligence, waste collection, treatment and recycling, conformity assessments and CE markings, etc. The proposed rules are expected to have a significant regulatory impact on the emerging European markets for industrial batteries and e-vehicle batteries.
One of the most striking features of the proposal is that many of its provisions are limited to establishing general principles and empower the European Commission to adopt the regulatory details by means of “Commission Delegated Regulations” and “Commission Implementing Regulations.” In effect, the Commission’s proposal would leave it to the officials of the Commission and Member States to decide many of the technical details, which will eventually shape the markets of e-vehicle, industrial, automotive and portable batteries in Europe. While delegating powers to the Commission is very common in EU legislation, the extent to which the proposal leaves regulatory decision-making to the Commission seems unprecedented. It is uncertain whether the European Parliament and Council will agree to relinquishing so many critical details to the Commission.
This substantial delegation of power to the Commission also means that companies active on these markets that wish to advocate their position on the regulatory framework of batteries will need to do so not only during the proposal’s ordinary legislative procedure, but also during the adoption of the implementing rules and guidance by the Commission. This is likely to be a long and ongoing process that will take at least six years after the conclusion of the ordinary legislative procedure.
Specifically, the proposal would empower the Commission to adopt detailed rules by means of “Commission Delegated Regulations” and “Commission Implementing Regulations.” The power to adopt Delegated Regulations essentially allows the Commission to adopt technical standards after consulting its Expert Group on Waste, which is composed of representatives of national public authorities, with the limited participation of industry trade associations and NGOs, and is subject to a concise right of scrutiny and veto of the European Parliament and Council.
By contrast, to adopt Implementing Regulations, the European Commission must follow the comitology Examination Procedure, as defined in Regulation (EU) No 182/2011. In general terms, this procedure requires that a qualified majority of the Committee of Member State representatives vote in favor of the proposed Implementing Regulation. Where the Committee does not vote in favor by qualified majority, the Commission may refer its proposed Implementing Regulation to the Appeal Committee.
Below is a timetable of the various Delegated Acts and Implementing Acts detailing the rules on batteries that the Commission is scheduled to adopt in the coming years based on the current version of the proposed Regulation.
|Legal Basis||Type of Act||Description||Timing|
|Art. 6(2)||Delegated Act||Amend and introduce new restrictions and conditions for use of hazardous substances in batteries.||At the discretion of the Commission when a substance poses an unacceptable risk to human health or the environment.|
|Art. 7(1) sub a||Delegated Act||Establish a methodology for total carbon footprint assessment.||By July 1, 2023|
|Art. 7(1) sub b||Implementing Act||Establish a format for carbon footprint declarations.||By July 1, 2023|
|Art. 7(2) sub a||Delegated Act||Establish different carbon footprint performance classes.||By December 31, 2024|
|Art. 7(2) sub b||Implementing Act||Establish formats for labelling and declarations of carbon footprint performance classes.||By December 31, 2024|
|Art. 7(3)||Delegated Act||Determine maximum life cycle carbon footprint thresholds.||By July 1, 2026|
|Art. 8(1)||Implementing Act||Lay down a methodology for the calculation and verification of recovered cobalt, lead, lithium, nickel from waste, and format for technical documentation.||By December 31, 2025|
|Art. 8(4)||Delegated Act||Amend, where justified, targets of use of certain materials recovered from waste batteries.||By December 31, 2027|
|Art. 9(2)||Delegated Act||Establish minimum values for electrochemical performance and durability parameters for portable batteries of general use.||By December 31, 2025|
|Art. 9(2)||Delegated Act||Amend minimum values for electrochemical performance and durability parameters for portable batteries of general use.||At discretion of the Commission.|
|Art. 10(3)||Delegated Act||Establish minimum values for electrochemical performance and durability parameters for rechargeable industrial batteries and electric vehicle batteries.||By December 31, 2024|
|Art. 11(3)||Guidance||Facilitate the harmonized application of the exemptions of removability and replaceability obligations for portable batteries.||Required but deadline unspecified.|
|Art. 12(2)||Delegated Act||Amend safety parameters for stationary battery energy storage systems.||At the discretion of the Commission, based on technological and scientific progress.|
|Art. 13(7)||Implementing Act||Establish harmonized specifications for labelling requirements for batteries.||By December 31, 2025|
|Art. 16(1)||Implementing Act||Lay down common specifications for requirements related to battery performance, durability, removability, labelling, repurposing.||In case of gaps or undue delays in the adoption of harmonized standards of Articles 9, 10, 12, 13, 15(2), and 59(5)(a).|
|Art. 17(4)||Delegated Act||Introduce additional verification steps in the conformity assessment modules or replace those modules by other modules set out in Decision No 768/2008/EC.||At discretion of the Commission, if necessary after adapting the assessment modules to the specific requirements for batteries.|
|Art. 32(4)||Implementing Act||Request a notifying authority to take necessary corrective actions in case of non-compliance with requirements of notification.||At discretion of the Commission, where the Commission ascertains that a notified body does not meet or no longer meets the requirements for its notification.|
|Art. 39(8) sub a||Delegated Act||Amend the list of raw materials and risks categories subject to supply chain due diligence obligations for rechargeable industrial batteries and e-vehicle batteries.||Required but deadline unspecified.|
|Art. 39(8) sub b||Delegated Act||Amend supply chain due diligence obligations for economic operators that market rechargeable industrial batteries and electric-vehicle batteries.||Required but deadline unspecified.|
|Art. 47(12)||Implementing Act||Lay down criteria for the financial contributions that are modulated as a minimum by battery type and battery chemistry and paid by producers to producers responsibility organizations||At discretion of the Commission, if it is necessary to avoid distortion of the internal market.|
|Art. 55(4)||Delegated Act||Amend the methodology to calculate the collection rate of portable batteries.||At discretion of the Commission.|
|Art. 56(4)||Delegated Act||Amend treatment and recycling requirements for waste batteries in light of scientific progress and emerging technologies.||At discretion of the Commission, in light of technical and scientific progress and emerging new technologies.|
|Art. 57(4)||Implementing Act||Establish detailed rules regarding the calculation and verification of recycling efficiencies and recovery of materials.||By December 31, 2023|
|Art. 57(5)||Delegated Act||Amend minimum levels of recovered materials for waste batteries.||At discretion of the Commission, in light of technical and scientific progress and emerging new technologies.|
|Art. 58(3)||Delegated Act||Lay down detailed rules for the treatment and recycling of shipments of waste batteries took place in conditions equivalent to those of the [proposed] Regulation in order to count towards recycling and recovery targets.||Required but deadline unspecified.|
|Art. 59(8)||Implementing Act||Establish detailed technical requirements that batteries have to fulfil to cease to be waste, and requirements for the data and the methodology to estimate the state of health of batteries.||Required but deadline unspecified.|
|Art. 62(5)||Implementing Act||Lay down a format for the data and information reports of Member States to the Commission on portable batteries, automotive batteries, industrial batteries and electric vehicle batteries etc.||By December 31, 2023|
|Art. 64(5)||Implementing Act||Establish the architecture of an electronic exchange system for battery information; its format of data and information on batteries; and rules for accessing, sharing, etc. of this information.||By December 31, 2024|
|Art. 65(7)||Implementing Act||Establish rules for accessing and sharing of information and data accessible through the battery passport for rechargeable industrial batteries and e-vehicle batteries.||Required but deadline unspecified.|
|Art. 70(3)||Delegated Act||Establish mandatory minimum green criteria or targets for batteries or products containing batteries in public procurement.||By December 31, 2026|
|Art. 72(1)||Implementing Act||Establish information requirements for the recognition of supply chain due diligence schemes by the Commission.||Required but deadline unspecified.|
|Art. 72(2)||Implementing Act||Recognize equivalence of a supply chain due diligence scheme with the requirements of the [proposed] Regulation.||At discretion of the Commission.|
|Art. 72(3)||Implementing Act||Set criteria and establish the methodology to determine whether supply chain due diligence schemes fulfil the requirements of the [proposed] Regulation.||Required but deadline unspecified.|
|Art. 72(7)||Implementing Act||Withdraw the recognition of equivalence of a supply chain due diligence scheme with the requirements of the [proposed] Regulation.||At the discretion of the Commission.|