ElektroStoffV – Ordinance on the restriction of the use of certain hazardous substances in electrical and electronic equipment

With the publication of the Federal Law Gazette dated May 8th, 2013 the ordinance on the restriction of the use of certain hazardous substances in electrical and electronic equipment (ElektroStoffV) was announced. It came into force on May 9th, 2013 and serves to implement the directive 2011/65/EC of the European Parliament and of the council dated June 8th, 2011 (the so-called RoHS directive). The former RoHS directive 2002/95/EC was implemented by the substance prohibition of § 5 of the Electrical and Electronic Equipment Act (ElektroG). The regulations of the revised RoHS directive are going far beyond. Therefore, § 5 of the Electrical and Electronic Equipment Act (ElektroG) is canceled and an independent regulation is being issued. The following brief description addresses the most important issues which are of interest for manufacturers, importers and suppliers of electrical and electronic devices in relation with the Ordinance on the restriction of the use of certain hazardous substances in electrical and electronic equipment – without any claim to completeness.


Field of application and relation to the Electrical and Electronic Equipment Act

According to § 1 para. 1 clause 1 of the ordinance on the restriction of the use of certain hazardous substances in electrical and electronic equipment, this ordinance applies "for the marketing and making available of new electrical and electronic devices on the market". In clause 2 of the ordinance you will find a subdivision in device categories following § 2 para. 1 of the Electrical and Electronic Equipment Act (ElektroG). However, the ordinance on the restriction of the use of certain hazardous substances in electrical and electronic equipment goes beyond the Electrical and Electronic Equipment Act (ElektroG) since in its scope it includes "other electrical and electronic devices which are not listed under number 1 to 10" as described in § 1 para. 1 clause 2 No 11. Other than the Electrical and Electronic Equipment Act (ElektroG) the ordinance on the restriction of the use of certain hazardous substances in electrical and electronic equipment includes in principle all electrical and electronic devices in particular also cables and spare parts – subject to standardized exceptions.

The ordinance on the restriction of the use of certain hazardous substances in electrical and electronic equipment only includes new electrical and electronic devices i.e. from the outset used devices and antiquities are not included in the scope of the ordinance. Furthermore, in § 1 para. 2 of the ordinance on the restriction of the use of certain hazardous substances in electrical and electronic equipment certain product ranges are excluded, e.g. devices used for military purposes, stationary industrial large tools, photovoltaic modules as well as means of transportation for the transportation of passengers or materials but different – in the scope of the ordinance on the restriction of the use of certain hazardous substances in electrical and electronic equipment – electrically driven two-wheelers which are not type approved. The ordinance on the restriction of the use of certain hazardous substances in electrical and electronic equipment must not be applied on electrically driven two-wheelers if a type approval (a standardized type of operating license defined under European law) is required for such two-wheelers; this complies with the directive 2002/24/EC as well as its implementation in the authorization regulation for vehicles and is for instance applied for certain electric scooters.

If any other legal provisions beside the ordinance on the restriction of the use of certain hazardous substances in electrical and electronic equipment demand "specific requirements" in the use of certain hazardous substances, they also remain applicable beside § 1 para. 3 of the ordinance on the restriction of the use of certain hazardous substances in electrical and electronic equipment. In this context, the explanatory statement of the ordinance (BT printed matter 17/11836, p. 18) is mistakable, according to which the "continuing requirement" shall be applied respectively. The Federal Council of Germany (Bundesrat) has clarified in a resolution in the annex to its approval resolution dated March 22nd, 2013 (BR printed matter 68/13, p. 1) that the respectively more specific regulation and not the respectively stricter requirement is applicable so that, for instance, the regulations of the Battery Law are prevailing independent from the limit values which are standardized in the Battery Law.


Requirements for the placing on the market

The requirements which need to be complied with before placing electrical and electronic devices on the market are defined in § 3 of the ordinance on the restriction of the use of certain hazardous substances in electrical and electronic equipment. Only if

  • the device complies with the restrictions of substances of § 3 para. 1,
  • the necessary technical documents are available (§ 3 para. 2 clause 1 No 1),
  • the compliance of the restriction of substances is proved by certain procedures (§ 3 para. 2 clause 1 No 2),
  • an EC declaration of conformity is issued according to § 11 (§ 3 para. 2 clause 1 No 3) and
  • a CE marking is affixed on the device according to § 12 (§ 3 para. 2 clause 1 No 4),


all requirements are available for a lawful market participation. With the EC declaration of conformity the manufacturer confirms that he assumes the responsibility that the electrical and electronic devices comply with the ordinance on the restriction of the use of certain hazardous substances in electrical and electronic equipment. The CE marking which needs to be affixed to the device, providing an outside effect, serves the same purpose. Accordingly § 13 of the ordinance on the restriction of the use of certain hazardous substances in electrical and electronic equipment includes a disputable presumption of conformity which assumes that devices to which the CE marking is affixed comply with the requirements of this ordinance.


Obligations of the manufacturer

According to the legal definition given in § 2 No 5 of the ordinance on the restriction of the use of certain hazardous substances in electrical and electronic equipment, the manufacturer is "any natural or legal person or business partnership that manufactures develops or is having manufactured an electrical or electronic device and markets this device on his own behalf or with own brand". If importers or distributors place electrical or electronic devices on the market

  • on their own behalf or with their own brand or
  • modify such devices which are already on the market so that the compliance with the applicable requirements may be impaired


they will be regarded as manufacturers in the sense of this ordinance according to § 9 of the ordinance on the restriction of the use of certain hazardous substances in electrical and electronic equipment and have to comply with all manufacturer's obligations of the §§ 4 and 5 of the ordinance on the restriction of the use of certain hazardous substances in electrical and electronic equipment.

According to § 4 para. 1 of the ordinance on the restriction of the use of certain hazardous substances in electrical and electronic equipment, the manufacturer is only allowed to place devices on the market which comply with the requirements of § 3 para. 1 of the ordinance on the restriction of the use of certain hazardous substances in electrical and electronic equipment. If there is reason to assume that a device does not comply with these requirements, the manufacturer has to take any measures according to § 4 para. 5 of the ordinance on the restriction of the use of certain hazardous substances in electrical and electronic equipment in order to bring it into conformity. If this is not possible in an individual case it is necessary to withdraw the devices from the market or to recall them, if applicable, (maintaining the proportionality principle according to the clarifying resolution of the Federal Council of Germany (Bundesrat), BR printed matter 68/13, p. 1).

Beside the CE marking, the manufacturers assume other obligations of marking and information resulting of § 5 of the ordinance on the restriction of the use of certain hazardous substances in electrical and electronic equipment.

According to § 6 of the ordinance on the restriction of the use of certain hazardous substances in elec-trical and electronic equipment, the manufacturer may authorize a representative in writing who performs the duties which are assigned by the manufacturer on behalf of the manufacturer. The manufacturer must at least assign the tasks listed in § 6 para. 2 of the ordinance on the restriction of the use of certain hazardous substances in electrical and electronic equipment; however, it is not possible to assign the compliance with the restriction of substances as well as the issuing of technical documents. The representative is not a representative in the sense of civil or administrative regulations and he is only authorized to actually act on behalf of the manufacturer. Consequently, the representative does not take the place of the manufacturer, but he shall be the contact for national authorities. take-e-way GmbH will offer a corresponding service to all interested manufacturers.


Obligations of the importer and distributor

According to § 2 No 8 of the ordinance on the restriction of the use of certain hazardous substances in electrical and electronic equipment importers are "any natural or legal person or business partnership based in the European union that offers or places an electrical or electronic device on the market which is imported from a third country within the scope of the ordinance". According to § 7 para. 1 clause 1, other than the manufacturer, the importer only has to make sure that the devices comply with the restrictions on substances and that a conformity procedure had been performed. If a non-conformity is being suspected, the importer is not allowed to place the device on the market until it complies with the conformity.

According to § 2 No 7 of the ordinance on the restriction of the use of certain hazardous substances in electrical and electronic equipment distributors are "any natural or legal person or business partnership that offers or places electrical or electronic devices on the market, except for manufacturers and importers". The distributor has to check with due diligence if the device complies with the requirements according to § 3 of the ordinance on the restriction of the use of certain hazardous substances in elec-trical and electronic equipment; his test is mainly limited to the fact of checking if the CE marking as well as any other markings are affixed on the device which are necessary in order to identify the manufacturer or importer. If there is a suspect of non-conformity he is also obliged to observe the legal prohibition to place the device on the market.


Sanctions

Failure to comply with the restrictions on substances described in § 3 para. 1 of the ordinance on the restriction of the use of certain hazardous substances in electrical and electronic equipment represents an administrative offense which is imposed with a fine of up to 100.000 Euros. Any other administrative offenses e.g. the violation of the obligation of marking or information may also be imposed with a fine of up to 100.000 Euros.


Transitional regulations

In § 15 of the ordinance on the restriction of the use of certain hazardous substances in electrical and electronic equipment a series of transitional regulations are opposed to the open scope of the ordinance on the restriction of the use of certain hazardous substances in electrical and electronic equipment. Paragraph 1 determines that electrical and electronic devices which had not yet been subject to the restrictions on substances of § 5 of the Electrical and Electronic Equipment Act (ElektroG) but which would not comply with the requirements of the ordinance on the restriction of the use of certain haz-ardous substances in electrical and electronic equipment may be made available on the market further on until July 22nd, 2019. The paragraphs 2 through 4 include further transitional periods of different dura-tion and restrictions for certain product ranges.


Author

Attorney and specialist solicitor for administrative law Dr. Holger Jacobj,
solicitor's office Prof. Versteyl (Hannover)

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