A need for regulation? Proposal for a Batteries Regulation

Philipp Reusch

The European Commission has identified the development and production of batteries as strategic imperatives for Europe within the context of the clean energy transition. As an integral part of the European Green Deal, a Proposal has now been put forward to modernize the EU's legislative framework for batteries in order to support the transition to electromobility, carbon-neutral energy storage and a sustainable battery value chain and make Europe the first climate-neutral economic power by 2050.

According to the EU Commission, an evaluation of Directive 2006/66/EC on batteries and accumulators and waste batteries and accumulators and the analysis preceding the impact assessment showed that harmonization is better achieved by means of a Regulation, as opposed to a Directive, as this would ensure that the obligations would be implemented simultaneously and in the same way in all 27 member states.

Key provisions of the Proposal

The proposed Regulation would apply to all batteries, specifically portable batteries, automotive batteries, electric vehicle (EV) batteries and industrial batteries, regardless of form, volume, weight, design, composition, use or purpose.

Chapter II of the Proposal defines sustainability and safety requirements for batteries and makes reference in this regard to the restrictions on hazardous substances set down in Annex XVII of the REACH Regulation (EC) No. 1907/2006. It also contains provisions relating to the carbon footprint of EV batteries and rechargeable industrial batteries, recycled content in industrial batteries, EV batteries and automotive batteries, the performance and durability of portable batteries for general use, the removability and replaceability of portal batteries and the safety of stationary battery energy storage systems.

Chapter III then provides for a series of labelling and information requirements, which are to take effect gradually starting on 1 January 2023.

With respect to the conformity of batteries, Chapter IV refers to harmonized standards, as well as to common specifications which are to be enacted by the Commission through implementing acts. This Chapter also defines rules for conformity assessment, which provide for two different assessment procedures depending on the product requirements (via Module A1, with the involvement of a notified body), culminating in the issuance of a declaration of conformity and the affixing of the CE marking.

Chapters VI and VII define the obligations of the various economic operators and expressly address the obligations of fulfillment service providers, a new category introduced by Regulation (EU) 1020/2019.

The Proposal then defines the specific rights and duties of the participating economic operators with regard to the reuse and repurposing of batteries in the second-life cycle in order to ensure that these second-life batteries meet the requirements of the Regulation when they are placed on the market, as well as any other requirements of relevance for their specific purpose. A new category of operator in this context is the "independent operator," who is directly or indirectly involved in the repair, maintenance of repurposing of batteries.

Conclusion

The Proposal is part of a trend which has been observed in European legislation: the tendency to rely increasingly on Regulations to accomplish goals within the sphere of technical harmonization.

Regardless of this circumstance, and keeping in mind that the Proposal may yet undergo some changes, affected economic operators should lose no time in evaluating their respective roles and their resulting obligations. Particularly in view of the need to involve a notified body, and in light of the extensive information and labelling requirements, companies should act now to ensure that they will have the financial and human resources they need to meet these requirements in a timely manner.

However, it remains to be seen whether and when we can expect the finalized Regulation to be issued. We will keep you informed.

[February 2021]