12 Mar 2021

DIGITALEUROPE's position paper on the proposed Batteries Regulation

Executive Summary

DIGITALEUROPE appreciates the opportunity to comment on the landmark revision of the EU Battery Directive 2013/56/EU and notes with appreciation the ambition and significant innovative thinking in the proposed revision.  Batteries will play a crucial part in the digitalisation and electrification of a circular economy. DIGITALEUROPE members drive forward many of the innovations related to battery-containing devices, which will be so crucial in the servitisation and dematerialisation aspects of the transition towards a circular economy. At the same time, the environmental challenges associated with batteries need creative solutions that will keep up with the innovation of the years to come.

The proposed Batteries Regulation comes at an important time for the batteries market and manufacturers using batteries in their devices. In this position paper, DIGITALEUROPE offers concrete recommendations for the EU institutions to consider as they negotiate this proposal.


Key priorities

In particular, DIGITALEUROPE points out three priorities:

1. Support for the new wording of removability and replaceability (Art. 11)

    • DIGITALEUROPE believes that the proposed Regulation has found a good balance. It ensures environmental protection and takes into account the significant innovation in battery and ICT technology by requiring all waste batteries at the product’s end of life, and removable during the lifetime of the product when the expected lifetime of the battery is less than that of the product.
    • DIGITALEUROPE recognises the difficulty in developing appropriate and reliable methodologies to calculate expected lifetimes ex ante and stands ready to support the European institutions in developing such guidelines. Given the anticipated short period between adoption and entry into force, and the lack of methodologies to calculate lifetimes, we ask for an adequate transition period of 12 months to allow manufacturers to put together all necessary documentation to demonstrate conformity, or, respectively 24 months to implement new engineering solutions and designs.
    • 11(2)(b) may want to consider the integration of batteries below a cerain small size, e.g 400 mAh or coin cell batteries.

 

2. Labelling requirements to be unambiguous and on feasible timelines:

    • In the current proposal, the CE mark is required as of January 2022 and the QR code as of 2023. Whilst the timeline for implementation of the QR Code not before 2023 is realistic, the CE mark is not. DIGITALEUROE recommends the same implementation timeline for the CE mark (not before 2023). It is unrealistic to expect manufacturers to be able to align their entire supply chain for a large part of their product portfolio to implement a new mark without a transition timeline. Manufacturers need 12 months after entry into force to implement the CE mark.
    • DIGITALEUROPE believes that the QR code could suffice as the only label, and host the CE mark and crossed-out wheelie bin digitally to avoid duplicative requirements. We otherwise support the proposal in clarifying that the wheelie bin, CE mark, and QR code are all subject to similar obligations, namely, they should be legible, visible and indelible, and they should all be subject to an exemption if size or nature of battery warrants it. Other marking or labelling requirements should be aligned with this. In case of an exemption, the manufacturer should have a choice between putting the labels on either the documentation or the packaging, and not both. In case of coin cell batteries, it should be clear that additional labelling is not going to fit on the battery itself.

 

3. Collection targets to be realistic yet ambitious:

    • DIGITALEUROPE and many other industry associations have continuously provided evidence for “Available for Collection” as the more appropriate methodology to calculate collection targets. Otherwise, the targets set out in the proposal are not realistic to achieve.

 

The proposal breathes significant policy innovation. DIGITALEUROPE sees the need for strong harmonisation of the proposal at hand with upcoming regulatory initiatives. In the interest of avoiding a fragmented Single Market, DIGITALEUROPE supports setting the environmental ambitions and detailed requirements at a European level through a Regulation.


Technical Recommendations

Below, DIGITALEUROPE provides detailed recommendations on specific provisions of the proposal. We have provided detailed commentary on most of those points in the following position papers

Provision

DIGITALEUROPE recommendation

Justification

Art. 11 Replaceability Supports the new wording.
Requests entry into force 12 months after adoption.
Requests close collaboration with manufacturers if guideline on metrics for lifetime of device and/or battery are to be developed.
Full support for removability at end-of-life for all devices with incorporated batteries. The replaceability provision is nuanced and strikes a good balance between protecting the environment and enabling innovation. In the absence of a single objective methodology to calculate expected lifetimes, manufacturers are faced with the risk of legal uncertainty and a fragmented Single Market caused by different interpretations by enforcement authorities.

The provision does not provide a clear definition or methodology for establishing expected lifetime, which DIGITALEUROPE has argued in the past is difficult to do ex-ante. That said, we gladly engage with members’ experiences when the Commission does consider providing guidelines.

Given the short anticipated period of time between adoption and entry into force, and the lack of methodologies, we ask for an adequate transition period of 12 months to allow manufacturers to pull together all necessary documentation to demonstrate conformity, or, respectively 24 months to implement new engineering solutions and designs.

We continue to be concerned about the requirements providing that independent operators or users should be enabled to replace the battery. There are significant potential safety and quality risks associated with non-professionals replacing batteries, and the potential use of counterfeit or substandard replacement batteries.

Finally, the current wording in the proposal defines a battery as readily replaceable, where it can be substituted with a “similar” battery without affecting the devices performance. In advanced electronics, the original battery is an integral part of the product that seamlessly interacts with the software and mechanical elements of the device. To guarantee the highest level of safety, we suggest not to consider the battery as a stand-alone component that can be replaced with any battery. “Similarity” is to go beyond size and wattage, and we encourage aftermarket services to utilise batteries that conform to the original specifications.

Art. 13
QR code
Allow for compliance with CE marking and crossed-out wheelie bin through an e-labelling via QR code. Implementation of a QR code will mean that enforcement authorities will require a QR reader to confirm compliance. In this case, a CE mark and crossed-out wheelie bin as a physical labelling requirement is duplicative.
Art.13
QR code & labels to be “printed or engraved”
Delete “printed or engraved”. Align with other regulations to prescribe only “visibly, legibly and indelibly”, in line with wheelie bin requirement and CE marking requirement – not to limit the way labels or QR code are attached to the equipment.
Art.13 QR code
Art. 13(6) if not on the battery, labels and QR code “shall be put on the packaging and to the documents accompanying the battery”
Replace “and” with “or”. Previous versions and other labelling regulations provide a choice between labelling the packaging or the documentation – this is reducing administrative complexity and achieves the intent of information provision all the same.
Annex VI Part C
QR code “shall be 100% black”
Replace with “shall be of a colour”. QR readers are capable of reading QR codes in grey or even white on dark backgrounds. The principle requirement should be “readable by a QR reader”, the rest can be left to industry to ensure.
Art. 13(1) Annex VI, Part A, 4 Remove “date of placing on the market”. It doesn’t make sense to have date of placing on the market and critical raw material contained in the battery shown on the battery label. As a requirement, this is foreseen to come into force in 2027. This means that if the information was required one could also provide it through the QR code.
Art. 18(2) EU declaration of conformity to “be translated into the language or languages required by the Member State in which the battery is placed on the market” Replace by “in a language easily understood” or, preferably, “translation upon request by Member State”. We seek alignment with NLF and Blue Guide, avoiding workload of translation the Declaration of Conformity into all EU languages.

See also comments on Art. 38-43.

Art. 20
CE marking
CE marking to be required as of 12 months after the Regulation has come into force. The negotiation timeline for the Battery Regulation is ambitious and will not leave sufficient time to implement any labelling requirements as of day 1 of the Regulation coming into force. If adopted at the end of 2021, companies will have only a few weeks to comply with a requirement that usually takes 6-12 months to implement across the entire supply chain and product line. A lack of a transition timeline forces the entire industry into the risk of a potentially non-compliant situation. SMEs do not have the capacity to monitor legislation in draft and negotiation stage and will be caught off-guard. Even if companies follow the negotiations, they tend not to implement requirements in draft legislation because they are aware of the possibility of last-minute changes. In addition, labelling requirements without adequate transition timelines will adversely affect stocks of spare parts in service centres, which cannot be reworked anymore.
Art. 38-43 Clarify responsibilities of each category of actor involved in the supply chain. Manufacturer (or authorised representative) to bear the first level of responsibility in case of direct placing on the market, importer/distributor or fulfilment service provider being the second point of call to bear responsibility in case the producer is not putting the product directly on the market.
Art. 49 Take-back of industrial and automotive batteries Move to “Available for Collection” methodology. DIGITALEUROPE has argued in the past, along with a great number of other associations for a shift of the collection methodology to “available for collection”.
Art. 49 Take-back of industrial and automotive batteries Move to “Available for Collection” methodology. DIGITALEUROPE has argued in the past, along with a great number of other associations for a shift of the collection methodology to “available for collection”.
Art. 55 collection of portable batteries Move to “Available for Collection” methodology. Implementation of a QR code will mean that enforcement authorities will require a QR reader to confirm compliance. In this case, a CE mark and crossed-out wheelie bin as a physical labelling requirement is duplicative.
Art. 60(5) “The costs covered by the producer under Art 47(1)e shall be shown separately to the end-user at the point of sale of a new battery.” Replace “shall” by “can”. Battery fees are currently visible in very few Member States (namely BE, ES, NL). Only in those countries the retailers indeed know and may show the costs covered by the producer to the end-user at the point of sale of a new battery. For other countries where the fees are not visible, the retailers are not aware of the costs covered by the producer and therefore cannot show these separately to the end-user.

Implementing visible fees across the EU involves a huge administrative and financial burden for the local “producers”, therefore DIGITALEUROPE prefers a voluntary option, especially for devices with integrated batteries which may also be subject to WEEE visible fee regulation.

Art. 75 Extension of the Batteries Regulation to the Market Surveillance Regulation Deletion of Art. 75(1). Follow better regulation principles to allow for an adequate impact assessment of extending the scope of Art. 4 of Regulation EU 2019/2020 to the revised Battery Regulation, which would bring economic operators making batteries available on the EU market into scope. The Market Surveillance Regulation is not yet applicable, and Art 4 was subject to significant discussion among EU institutions to find a compromise. If the European Commission wishes to revise 2019/2020, it should use the foreseen revision in 2023 in order to properly impact assess the change and assess the efficiency of current measures.
Art. 79 Date of application 12 months after adoption. While it is not yet clear when the regulation will be officially approved and published, it is clear that the negotiation timeline is ambitious and the entry into force envisaged for 1. Jan 2022 is not going to give manufacturers enough time to fulfil the requirements. Especially for some batteries and battery-containing products already produced, a transitional period is necessary as no grandfathering provisions are being made.

Recommendations on industrial batteries

DIGITALEUROPE would like to offer further commentary on elements of the proposal that are mostly focused on industrial and e-vehicle batteries. DIGITALEUROPE members are either directly affected by those provisions or see a need to comment based on their experience with batteries in general. Additionally, whereas portable batteries are not in scope, DIGITALEUROPE sees a need for harmonisation across policy instruments:

Provision

DIGITALEUROPE recommendation

Justification

Art. 2
Definitions
Lower the threshold to 3 kg. In several countries, the existing thresholds applied are under 3 kg. For example, it is 3 kg in DK, 1 kg in ES, 3 kg in SE. Countries will need to accommodate the higher thresholds by making major changes in their programmes. Companies that already have established take-back programmes for batteries at the thresholds defined will need to evolve their take-back practices with their customers to address the proposed 5 kg threshold.
Art. 7
Carbon footprinting
Align the transition period for carbon footprint thresholds with the transition period for recycled content. Publication of life cycle carbon footprint is a common practice in our industry. However, LCA methodology is not harmonised and methodological discussions regarding measurable product carbon footprints are still in the early stages. PEFCR guidance for mobile applications exist but no PEFCR for industrial batteries do. IEC is soon starting new standard work on PCR guidance. In summary, neither LCA nor PEF is ready to be used for threshold setting. Comparability is challenging due to definition of product performance and category, definition of “representative” product, modelling of electricity, use of secondary data and circular footprint data. More investigations are required.
Art. 8
Recycled content
Supports current scope. DIGITALEUROPE members as a rule do not produce batteries. Implementation of such a rule for industrial and e-vehicle batteries will depend on the availability of compliant batteries by battery producers.
Art. 9, Art. 10
Performance requirements
Performance requirements should be industry-led and not mandated. The Regulation should defer to industry standards for performance requirements. The evaluation of considering phasing out non-rechargeable batteries in 2030 should include evidence regarding potential cost increases and adverse effects associated with mineral mining, waste management and material recovery.
Art. 39, Art. 72
Due diligence
Propose to harmonise due diligence regulations instead of a separate due diligence obligation for batteries. DIGITALEUROPE welcomes the recognition of industry schemes but cautions against the inclusion of mandatory independent third-party verification which is not consistent with international standards and due diligence frameworks. Any rules and obligations in the Regulation should be consistent with other EU regulations, such as on responsible minerals and sustainable corporate governance.
Art. 65
Battery passport
Supports suggested scope. Requests full harmonisation with potential future product passport. There is potential for overlap or contradictory requirements with the potentially forthcoming product passport contemplated under the Commission’s Sustainable Products initiatives. DIGITALEUROPE requests full harmonisation, especially where a battery passport and a product passport may be required in the future. Ideally, the implementing acts for the Battery Regulation are drawn up in parallel with other implementing acts for other pieces of legislation.
Annex XIII Information to be stored in European Electronic Exchange System Delete parameter (p) “50% of cycle-life” and “energy efficiency … at 50% cycle life” Difficult to determine energy efficiency at 50% of cycle-life. Test period would be very long, making enforcement difficult and costly.

For more information, please contact:
Hugh Kirk
Consumer Policy Manager
Back to Sustainability
View the complete Policy Paper
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Our resources on Sustainability
Policy Paper 10 Jun 2021
DIGITALEUROPE’s supporting paper on the public consultation on the Sustainable Products Initiative
Policy Paper 09 Mar 2021
DIGITALEUROPE’s response to the Digital Decade consultation
Policy Paper 13 Jan 2021
DIGITALEUROPE's initial views on the public consultation for packaging and other measures to prevent packaging waste
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