title: Directive (EU) 2022/642 of the European Parliament and of the Council of 12 April 2022 amending Directives 2001/20/EC and 2001/83/EC as regards derogations from certain obligations concerning certain medicinal products for human use made available in the United Kingdom in respect of Northern Ireland and in Cyprus, Ireland and Malta (Text with EEA relevance)

text:
                  20.4.2022

                  EN

                  Official Journal of the European Union

                  L 118/4

         DIRECTIVE (EU) 2022/642 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
         of 12 April 2022
         amending Directives 2001/20/EC and 2001/83/EC as regards derogations from certain obligations concerning certain medicinal products for human use made available in the United Kingdom in respect of Northern Ireland and in Cyprus, Ireland and Malta
         (Text with EEA relevance)
         THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
         Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof,
         Having regard to the proposal from the European Commission,
         After transmission of the draft legislative act to the national parliaments,
         Having regard to the opinion of the European Economic and Social Committee (1),
         Acting in accordance with the ordinary legislative procedure (2),
         Whereas:

                     (1)

                     The Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (3) (the ‘Withdrawal Agreement’) was concluded on behalf of the Union by Council Decision (EU) 2020/135 (4) and entered into force on 1 February 2020. The transition period referred to in Article 126 of the Withdrawal Agreement, during which Union law continued to apply to and in the United Kingdom in accordance with Article 127 of the Withdrawal Agreement, ended on 31 December 2020. On 25 January 2021, the Commission issued a Notice (5) on the application of the Union’s pharmaceutical acquis in markets historically dependent on medicinal products supply from or through Great Britain, namely Cyprus, Ireland, Malta and Northern Ireland, from the end of that transition period until 31 December 2021.

                     (2)

                     In accordance with the Protocol on Ireland/Northern Ireland (the ‘Protocol’), which forms an integral part of the Withdrawal Agreement, the provisions of Union law listed in Annex 2 to the Protocol apply, under the conditions set out in that Annex, to and in the United Kingdom in respect of Northern Ireland. That list includes Article 13 of Directive 2001/20/EC of the European Parliament and of the Council (6) regarding the manufacture and import of investigational medicinal products, Directive 2001/83/EC of the European Parliament and of the Council (7) and Regulation (EC) No 726/2004 of the European Parliament and of the Council (8). Therefore, medicinal products placed on the market in Northern Ireland are to comply with those provisions of Union law.

                     (3)

                     Directives 2001/20/EC and 2001/83/EC lay down the rules for medicinal products for human use and investigational medicinal products intended to be placed on the market in the Member States.

                     (4)

                     Cyprus, Ireland, Malta and Northern Ireland have historically relied on the supply of medicinal products from or through parts of the United Kingdom other than Northern Ireland, and the supply chains for those markets have not yet been fully adapted to comply with Union law. To prevent shortages of medicinal products and ultimately to ensure a high level of public health protection, Directives 2001/20/EC and 2001/83/EC need to be amended to provide for derogations for medicinal products supplied to Cyprus, Ireland, Malta and Northern Ireland from or through parts of the United Kingdom other than Northern Ireland. In order to ensure uniform application of Union law in the Member States, the derogations applicable in Cyprus, Ireland and Malta should be of a temporary nature only.

                     (5)

                     In accordance with Article 13(1) of Directive 2001/20/EC, read in conjunction with the Protocol, the import of investigational medicinal products from third countries into the Union or Northern Ireland is subject to the holding of a manufacturing and import authorisation. To ensure continued access to new, innovative or improved treatments for clinical trial participants in Northern Ireland, as well as in Cyprus, Ireland and Malta after 31 December 2021, such a manufacturing and import authorisation should not be required for investigational medicinal products imported into those markets from parts of the United Kingdom other than Northern Ireland provided that certain conditions are fulfilled. To ensure uniform application of Union law in the Member States, the derogations applicable in Cyprus, Ireland and Malta should be of a temporary nature only.

                     (6)

                     Regulation (EC) No 726/2004 lays down Union procedures for the authorisation of medicinal products. Upon authorisation in the Union, medicinal products are available to patients in Northern Ireland. It is possible, however, that the competent authorities of the United Kingdom in respect of parts of the United Kingdom other than Northern Ireland issue a marketing authorisation for a medicinal product before a marketing authorisation has been granted for the same medicinal product in the Union. In such exceptional cases, and in order to ensure that patients in Northern Ireland have access to those medicinal products at the same time as patients in other parts of the United Kingdom, the competent authorities of the United Kingdom in respect of Northern Ireland should be able to supply those medicinal products to patients in Northern Ireland temporarily and until a marketing authorisation is granted or refused in the Union. In order to ensure the full effectiveness of the centralised procedure for granting marketing authorisations set out in Regulation (EC) No 726/2004, those temporary authorisations should be limited in time and should cease to be valid when the Commission takes a decision to grant or refuse the authorisation to market that medicinal product.

                     (7)

                     In accordance with Article 8(2) of Directive 2001/83/EC, read in conjunction with the Protocol, a marketing authorisation is only able to be granted to an applicant established in the Union or in Northern Ireland. A number of operators were not able to comply with that requirement by 31 December 2021. To ensure access to certain medicinal products in Northern Ireland, it is crucial that the holders of marketing authorisations granted by the competent authorities of the United Kingdom in respect of Northern Ireland are allowed to be established in parts of the United Kingdom other than Northern Ireland. Similarly, to ensure access to certain medicinal products in Cyprus, Ireland, Malta and Northern Ireland, it is necessary to allow the competent authorities of Cyprus, Ireland, Malta and Northern Ireland to grant marketing authorisations in the context of the mutual recognition or the decentralised procedure to marketing authorisation holders established in parts of the United Kingdom other than Northern Ireland.

                     (8)

                     It follows from Articles 17 and 18 of Directive 2001/83/EC, read in conjunction with the Protocol, that applicants for a marketing authorisation wishing to obtain both a marketing authorisation for the United Kingdom in respect of Northern Ireland as well as a marketing authorisation for one or more Member States need to include the United Kingdom in respect of Northern Ireland in the scope of their marketing authorisation application in accordance with the mutual recognition or the decentralised procedure. Where medicinal products are also authorised in parts of the United Kingdom other than Northern Ireland, the requirement to comply with that obligation could hamper the continuous access to medicinal products for patients in Northern Ireland. To avoid that issue, it is necessary to allow applicants in such situations the possibility to apply for a marketing authorisation for the United Kingdom in respect of Northern Ireland either in accordance with the mutual recognition or the decentralised procedure, or in accordance with the national marketing authorisation procedure applicable in relation to the United Kingdom in respect of Northern Ireland. In the case of such a national marketing authorisation procedure, the marketing authorisation should be granted in compliance with Union law, including the requirements on quality, safety and efficacy of medicinal products.

                     (9)

                     In accordance with Article 51(1), point (b), of Directive 2001/83/EC, medicinal products imported into the Union are to undergo quality control testing in the Union. Article 20, point (b), of that Directive allows the importers which place medicinal products supplied from or through parts of the United Kingdom other than Northern Ireland on the market in Cyprus, Ireland, Malta or Northern Ireland, or wholesale distributors placing such medicinal products on those markets, to have, in justifiable cases, certain controls carried out in parts of the United Kingdom other than Northern Ireland. Taking into account the historical dependence of Cyprus, Ireland, Malta and Northern Ireland on the supply of medicinal products from or through parts of the United Kingdom other than Northern Ireland and the related risks of shortages of medicinal products in those jurisdictions, a justifiable case within the meaning of Article 20, point (b), of Directive 2001/83/EC should be considered to occur when each batch of the medicinal product concerned is released by a qualified person on a site in the Union or by a qualified person on a site in parts of the United Kingdom other than Northern Ireland applying quality standards equivalent to those laid down in Union law, thereby ensuring an equivalent level of protection of human health. Since Article 20, point (b), of Directive 2001/83/EC only provides for batch testing to be carried out in a third country on a case-by-case basis, it is necessary to lay down conditions harmonising the implementation of that provision with regard to medicinal products supplied to Cyprus, Ireland, Malta and Northern Ireland from or through parts of the United Kingdom other than Northern Ireland.

                     (10)

                     It follows from Article 40(3) of Directive 2001/83/EC, read in conjunction with the Protocol, that importers of medicinal products from third countries into a Member State are to hold a manufacturing authorisation granted by the Member State where the importer is established or, in the case of importers established in Northern Ireland, by the United Kingdom in respect of Northern Ireland. To avoid a situation in which operators withdraw from or significantly reduce medicinal products supply to Cyprus, Ireland, Malta and Northern Ireland, it is necessary to derogate exceptionally from that requirement under certain conditions and to allow imports of medicinal products from or through parts of the United Kingdom other than Northern Ireland into Cyprus, Ireland, Malta and Northern Ireland by wholesale distributors that do not hold the relevant manufacturing authorisation, while ensuring an equivalent level of protection of human health.

                     (11)

                     In a situation where medicinal products are exported from a Member State to parts of the United Kingdom other than Northern Ireland, and subsequently imported into Cyprus, Ireland, Malta or Northern Ireland, it should be possible to waive specific controls, namely quality control testing, intended to guarantee the quality of those medicinal products imported from third countries, provided that appropriate arrangements have been made by the Union to ensure that the necessary controls are carried out in the exporting country.

                     (12)

                     It follows from Article 48 of Directive 2001/83/EC, read in conjunction with Article 49 of that Directive and with the Protocol, that the manufacturing authorisation holder is to have at its disposal a qualified person who resides and operates in the Union or Northern Ireland. To ensure a continuous access to certain medicinal products to patients in Northern Ireland, it is appropriate to allow the qualified person to reside and operate in parts of the United Kingdom other than Northern Ireland.

                     (13)

                     It follows from Article 104(3) of Directive 2001/83/EC, read in conjunction with the Protocol, that the qualified person responsible for pharmacovigilance is to reside and operate in the Union or Northern Ireland. A number of operators were not able to comply with that requirement by 31 December 2021. To ensure that access to certain medicinal products for patients in Northern Ireland is not hampered, it is appropriate to allow the qualified person responsible for pharmacovigilance to reside and operate in parts of the United Kingdom other than Northern Ireland.

                     (14)

                     To avoid shortages of medicinal products in Cyprus and Malta, the competent authorities of Cyprus and Malta should be allowed, for public health reasons and for a certain period, to grant, maintain in force and extend marketing authorisations on the basis of Article 126a of Directive 2001/83/EC which rely on marketing authorisations granted by the competent authorities of parts of the United Kingdom other than Northern Ireland, even if the marketing authorisation holder is no longer established in the Union, provided that certain conditions are fulfilled. Since Union law no longer applies in parts of the United Kingdom other than Northern Ireland, it is necessary to provide that the competent authorities of Cyprus and Malta ensure that such authorisations comply with Union law. In order to ensure that the functioning of the Union market is not undermined, it is necessary to establish the conditions for enhanced supervision and enforcement of the rules relevant for the application of the derogations introduced by this Directive. The Commission should monitor developments in parts of the United Kingdom other than Northern Ireland that could affect the level of protection regarding the regulatory functions covered by this Directive. If the Commission finds that the level of protection of public health ensured by the United Kingdom by means of rules governing the production, distribution and use of medicinal products, as well as by means of the effective enforcement of those rules, is no longer essentially equivalent to that guaranteed within the Union, or if the Commission lacks information to assess whether an essentially equivalent level of protection is guaranteed, the Commission should enter into consultation with the United Kingdom to find a mutually agreed remedy to that situation. If no such remedy is found within the prescribed period, the Commission should, as a last resort, be empowered to adopt delegated acts suspending the application of one or more provisions introduced by this Directive.

                     (15)

                     In order to ensure transparency, the competent authorities of Cyprus, Ireland, Malta and the United Kingdom in respect of Northern Ireland should publish a list of medicinal products to which they intend to apply or have applied the derogations set out in this Directive. In order to make that list easily searchable, it should contain the same information as that included in the package leaflet or summary of product characteristics of the medicinal products concerned.

                     (16)

                     Since the objectives of this Directive cannot be sufficiently achieved by the Member States but can rather, by reason of the scale or effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.

                     (17)

                     Directives 2001/20/EC and 2001/83/EC should therefore be amended accordingly.

                     (18)

                     In order to ensure legal continuity for operators active in the pharmaceutical sector and to guarantee the continuous access of patients in Cyprus, Ireland, Malta and Northern Ireland to medicinal products, this Directive should enter into force as a matter of urgency on the day of its publication in the Official Journal of the European Union and the measures adopted by the Member States to comply with it should apply retroactively from 1 January 2022,

               HAVE ADOPTED THIS DIRECTIVE:

            Article 1
            In Article 13(1) of Directive 2001/20/EC, the following subparagraph is added:
            ‘By way of derogation from the first subparagraph, the competent authorities of the United Kingdom in respect of Northern Ireland and, until 31 December 2024, the competent authorities of Cyprus, Ireland and Malta shall allow investigational medicinal products to be imported from parts of the United Kingdom other than Northern Ireland without such an authorisation provided that all of the following conditions are fulfilled:

                        (a)

                        the investigational medicinal products imported into Cyprus, Ireland, Malta or Northern Ireland have undergone certification of batch release either in the Union, as provided for in paragraph 3, point (a), or in parts of the United Kingdom other than Northern Ireland in compliance with the requirements set out in paragraph 3, point (b);

                        (b)

                        the investigational medicinal products are only made available to subjects in the Member State into which those investigational medicinal products are imported, or, if imported into Northern Ireland, are only made available to subjects in Northern Ireland.’.

            Article 2
            Directive 2001/83/EC is amended as follows:

                        (1)

                        the following Article is inserted:

                           ‘Article 5a
                           By way of derogation from Article 6, the competent authorities of the United Kingdom in respect of Northern Ireland may temporarily authorise the supply to patients in Northern Ireland of a medicinal product belonging to the categories referred to in Article 3(1) and (2) of Regulation (EC) No 726/2004 provided that all of the following conditions are fulfilled:

                                       (a)

                                       the medicinal product concerned has been granted a marketing authorisation by the competent authority of the United Kingdom for parts of the United Kingdom other than Northern Ireland;

                                       (b)

                                       the medicinal product concerned is only made available to patients or end-consumers in the territory of Northern Ireland and is not made available in any Member State.

                                 The maximum validity of the temporary authorisation shall be six months. Notwithstanding the specified validity, the temporary authorisation shall cease to be valid if the medicinal product concerned has been granted a marketing authorisation in accordance with Article 10 of Regulation (EC) No 726/2004, or if such marketing authorisation has been refused in accordance with that Article.’;

                        (2)

                        in Article 8, the following paragraphs are inserted:

                           ‘2a.   By way of derogation from paragraph 2, marketing authorisations may be granted by the competent authorities of the United Kingdom in respect of Northern Ireland to applicants established in parts of the United Kingdom other than Northern Ireland.

                           2b.   By way of derogation from paragraph 2, marketing authorisations may be granted by the competent authorities of the United Kingdom in respect of Northern Ireland and, until 31 December 2024, by the competent authorities of Cyprus, Ireland and Malta, in accordance with the mutual recognition or the decentralised procedure laid down in Chapter 4 of this Title, to marketing authorisation holders established in parts of the United Kingdom other than Northern Ireland.
                           The competent authorities of the United Kingdom in respect of Northern Ireland and, until 31 December 2024, the competent authorities of Cyprus, Ireland and Malta may extend marketing authorisations already granted prior to 20 April 2022 to marketing authorisation holders established in parts of the United Kingdom other than Northern Ireland.
                           The marketing authorisations granted or extended by the competent authorities of Cyprus, Ireland or Malta in accordance with the first and second subparagraph shall cease to be valid at the latest on 31 December 2026.’;

                        (3)

                        the following Article is inserted:

                           ‘Article 18a

                              1.   By way of derogation from Article 17(1), second subparagraph, Article 17(2) and Article 18, if an application for marketing authorisation is submitted in one or more Member States and in the United Kingdom in respect of Northern Ireland, or if an application for marketing authorisation is submitted in the United Kingdom in respect of Northern Ireland for a medicinal product which is already being examined or has already been authorised in a Member State, the application regarding the United Kingdom in respect of Northern Ireland shall not have to be submitted in accordance with Articles 28 to 39 provided that all of the following conditions are fulfilled:

                                          (a)

                                          the marketing authorisation for the United Kingdom in respect of Northern Ireland is granted by the competent authority for the United Kingdom in respect of Northern Ireland in compliance with Union law, and such compliance with Union law is ensured during the period of validity of that marketing authorisation;

                                          (b)

                                          the medicinal products authorised by the competent authority for the United Kingdom in respect of Northern Ireland are made available to patients or end-consumers only in the territory of Northern Ireland, and they are not made available in any Member State.

                              2.   The marketing authorisation holder of a medicinal product for which a marketing authorisation has already been granted for the United Kingdom in respect of Northern Ireland in accordance with Articles 28 to 39 before 20 April 2022 shall be allowed to withdraw the marketing authorisation for the United Kingdom in respect of Northern Ireland from the mutual recognition or the decentralised procedure and to submit an application for a marketing authorisation for that medicinal product to the competent authorities of the United Kingdom with respect to Northern Ireland in accordance with paragraph 1.’;

                        (4)

                        in Article 20, the following paragraph is added:
                        ‘With regard to quality control testing carried out in parts of the United Kingdom other than Northern Ireland regarding medicinal products included in the list referred to in Article 127d other than those authorised by the Commission, the competent authorities of the United Kingdom in respect of Northern Ireland and, until 31 December 2024, the competent authorities of Cyprus, Ireland and Malta may consider that there is a justifiable case within the meaning of point (b) of the first paragraph, without carrying out a case-by-case assessment provided that:

                                    (a)

                                    each batch of the medicinal products concerned is released by a qualified person on a site in the Union or in Northern Ireland or by a qualified person on a site in parts of the United Kingdom other than Northern Ireland applying quality standards that are equivalent to those laid down in Article 51;

                                    (b)

                                    the establishment designated by the third party conducting the quality control testing is supervised by the competent authority of the United Kingdom, including by performing on-the-spot checks;

                                    (c)

                                    where the batch release is carried out by a qualified person who resides and operates in parts of the United Kingdom other than Northern Ireland, the manufacturing authorisation holder declares that it does not have at its disposal a qualified person who resides and operates in the Union on 20 April 2022.’;

                        (5)

                        Article 40 is amended as follows:

                                    (a)

                                    the following paragraph is inserted:

                                       ‘1a.   By way of derogation from paragraph 1 of this Article, the competent authorities of the United Kingdom in respect of Northern Ireland and, until 31 December 2024, the competent authorities of Cyprus, Ireland and Malta shall allow medicinal products to be imported from parts of the United Kingdom other than Northern Ireland by holders of a wholesale distribution authorisation as referred to in Article 77(1) that are not in possession of a relevant manufacturing authorisation provided that all of the following conditions are fulfilled:

                                                   (a)

                                                   the medicinal products have undergone quality control testing either in the Union, as provided for in Article 51(3), or in parts of the United Kingdom other than Northern Ireland in compliance with Article 20, first paragraph, point (b);

                                                   (b)

                                                   the medicinal products have been subject to batch release by a qualified person in the Union in accordance with Article 51(1) or, for medicinal products authorised by the competent authorities of Cyprus, Ireland, Malta and the United Kingdom in respect of Northern Ireland, in parts of the United Kingdom other than Northern Ireland applying quality standards that are equivalent to those laid down in Article 51(1);

                                                   (c)

                                                   the marketing authorisation for the medicinal product concerned has been granted in accordance with Union law, by the competent authority of a Member State or by the Commission or, as regards medicinal products placed on the market in Northern Ireland, by the competent authority of the United Kingdom in respect of Northern Ireland;

                                                   (d)

                                                   medicinal products are only made available to patients or end-consumers in the Member State into which the medicinal products are imported, or, if imported into Northern Ireland, are only made available to patients or end-consumers in Northern Ireland;

                                                   (e)

                                                   the medicinal products bear the safety features referred to in Article 54, point (o).

                                             Article 80, first subparagraph, point (b), shall not apply to imports that fulfil the conditions laid down in the first subparagraph of this paragraph.’;

                                    (b)

                                    the following paragraph is inserted:

                                       ‘3a.   For batches of medicinal products which are exported to parts of the United Kingdom other than Northern Ireland from a Member State and subsequently imported into Northern Ireland or, until 31 December 2024, into Cyprus, Ireland or Malta, the controls upon importation referred to Article 51(1), first and second subparagraphs, shall not be required, provided that those batches have undergone such controls in a Member State prior to being exported to parts of the United Kingdom other than Northern Ireland and that they are accompanied by the control reports referred to in Article 51(1), third subparagraph.’;

                        (6)

                        in Article 48, the following paragraph is added:

                           ‘3.   Where the manufacturing authorisation is granted by the competent authority of the United Kingdom in respect of Northern Ireland, the qualified person referred to in paragraph 1 may reside and operate in parts of the United Kingdom other than Northern Ireland. This paragraph shall not apply where the manufacturing authorisation holder already has at its disposal a qualified person who resides and operates in the Union on 20 April 2022.’;

                        (7)

                        in Article 104(3), the following subparagraph is added:
                        ‘By way of derogation from the second subparagraph, where the marketing authorisation is granted by the competent authority of United Kingdom in respect of Northern Ireland, the qualified person referred to in point (a) of the first subparagraph may reside and operate in parts of the United Kingdom other than Northern Ireland. This subparagraph shall not apply where the marketing authorisation holder already has at its disposal a qualified person who resides and operates in the Union on 20 April 2022.’;

                        (8)

                        the following Article is inserted:

                           ‘Article 111c

                              1.   The Commission shall continuously monitor developments in the United Kingdom that could affect the level of protection regarding the regulatory functions referred to in Article 8(2a) and (2b), Article 20, second paragraph, Article 40(1a) and (3a), Article 48(3), Article 104(3) and Article 126c that are carried out in parts of the United Kingdom other than Northern Ireland taking into account, in particular, the following elements:

                                          (a)

                                          the rules governing the granting of marketing authorisations, the obligations of the marketing authorisation holder, the granting of manufacturing authorisations, the obligations of the manufacturing authorisation holder, the qualified persons and their obligations, quality control testing, batch release and pharmacovigilance as laid down in United Kingdom law;

                                          (b)

                                          whether the competent authorities of the United Kingdom ensure the effective enforcement within their territory of the rules referred to in point (a), by means of, inter alia, inspections and audits of marketing authorisation holders, manufacturing authorisation holders and wholesale distributors located in their territories, and on-the-spot checks at their premises regarding the exercise of the regulatory functions referred to in point (a).

                              2.   Where the Commission finds that the level of protection of public health ensured by the United Kingdom through rules governing the production, distribution and use of medicinal products as well as the effective enforcement of those rules is no longer essentially equivalent to that guaranteed within the Union, or where sufficient information is not available to the Commission to enable it to establish whether an essentially equivalent level of protection of public health is ensured by the United Kingdom, the Commission shall inform the United Kingdom through a written notification of that finding and of the detailed reasons therefor.
                              For a period of six months following the written notification made pursuant to the first subparagraph, the Commission shall enter into consultations with the United Kingdom with a view to remedying the situation giving rise to that written notification. In justified cases, the Commission may extend that period by three months.

                              3.   If the situation giving rise to the written notification made pursuant to paragraph 2, first subparagraph, is not remedied within the time-limit referred to in paragraph 2, second subparagraph, the Commission shall be empowered to adopt a delegated act specifying the provisions among those referred to in paragraph 1 whose application shall be suspended.

                              4.   Where a delegated act pursuant to paragraph 3 has been adopted, the provisions referred to in the introductory sentence of paragraph 1 as specified in the delegated act shall cease to apply on the first day of the month following the entry into force of the delegated act.

                              5.   Where the situation giving rise to the adoption of the delegated act pursuant to paragraph 3 has been remedied, the Commission shall adopt a delegated act specifying those suspended provisions that shall apply again. In that case, the provisions specified in the delegated act adopted pursuant to this paragraph shall apply again on the first day of the month following the entry into force of the delegated act referred to in this paragraph.’;

                        (9)

                        Article 121a is amended as follows:

                                    (a)

                                    in paragraph 2, the following subparagraph is added:
                                    ‘The power to adopt delegated acts referred to in Article 111c(3) and (5) shall be conferred on the Commission for an indeterminate period of time from 20 April 2022.’;

                                    (b)

                                    paragraph 3 is replaced by the following:

                                       ‘3.   The delegation of power referred to in Article 14(1), Articles 22b, 23b, 46a, 47, 52b, 54a, Article 111c(3) and (5), and Article 120 may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.’;

                                    (c)

                                    paragraph 6 is replaced by the following:

                                       ‘6.   A delegated act adopted pursuant to Article 14(1), Articles 22b, 23b, 46a, 47, 52b, 54a, Article 111c(3) or (5), or Article 120 shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.’;

                        (10)

                        the following Article is inserted:

                           ‘Article 126c

                              1.   By way of derogation from Article 126a, until 31 December 2024, in the absence of a marketing authorisation or of a pending application for a marketing authorisation the competent authorities of Cyprus and Malta may authorise for justified public health reasons the placing on their national market of a medicinal product authorised in parts of the United Kingdom other than Northern Ireland.
                              The competent authorities of Cyprus and Malta may also maintain in force or, until 31 December 2024, extend marketing authorisations that were granted pursuant to Article 126a before 20 April 2022 which authorise the placing on their national market of a medicinal product authorised in parts of the United Kingdom other than Northern Ireland.
                              Authorisations that are granted, extended or maintained in force pursuant to the first or second subparagraph shall not be valid after 31 December 2026.

                              2.   By way of derogation from Article 8(2), the competent authorities of Malta and Cyprus may grant marketing authorisations as referred to in paragraph 1 of this Article to marketing authorisation holders established in parts of the United Kingdom other than Northern Ireland.

                              3.   Where the competent authorities of Cyprus or Malta grant or extend a marketing authorisation as referred to in paragraph 1, they shall ensure compliance with the requirements of this Directive.

                              4.   Before granting a marketing authorisation pursuant to paragraph 1, the competent authorities of Cyprus or Malta:

                                          (a)

                                          shall notify the marketing authorisation holder in parts of the United Kingdom other than Northern Ireland of the proposal to grant a marketing authorisation or to extend a marketing authorisation under this Article in respect of the medicinal product concerned;

                                          (b)

                                          may request the competent authority in the United Kingdom to submit the relevant information regarding the marketing authorisation of the medicinal product concerned.’;

                        (11)

                        the following Articles are inserted:

                           ‘Article 127c
                           The derogations set out in Article 8(2a) and(2b), Article 18a, Article 20, second paragraph, Article 40(1a) and (3a), Article 48(3), Article 104(3a) and Article 126c shall not affect the obligations of the marketing authorisation holder to ensure the quality, safety and efficacy of the medicinal product placed on the markets of Cyprus, Ireland, Malta or Northern Ireland laid down in this Directive.

                           Article 127d

                              1.   By 20 May 2022, the competent authorities of Cyprus, Ireland, Malta and the United Kingdom in respect of Northern Ireland shall establish, notify to the Commission and publish on their website a list of medicinal products to which they have applied or intend to apply the derogations as set out in this Directive.

                              2.   The competent authorities of Cyprus, Ireland, Malta and the United Kingdom in respect of Northern Ireland shall ensure that the list referred to in paragraph 1 is updated and managed in an independent manner, at least on a six-monthly basis.’.

            Article 3

               1.   Member States shall adopt and publish the laws, regulations and administrative provisions necessary to comply with this Directive within a period of four months as from the date of its entry into force. They shall immediately inform the Commission thereof.
               They shall apply those measures from 1 January 2022.
               When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

               2.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

            Article 4
            This Directive shall enter into force on the day of its publication in the Official Journal of the European Union.

            Article 5
            This Directive is addressed to the Member States.

            Done at Brussels, 12 April 2022.

                  For the European Parliament

                  The President

               R. METSOLA

                  For the Council

                  The President

               C. BEAUNE

            (1)  Opinion of 24 February 2022 (not yet published in the Official Journal).

            (2)  Position of the European Parliament of 7 April 2022 (not yet published in the Official Journal) and decision of the Council of 12 April 2022.

            (3)  OJ L 29, 31.1.2020, p. 7.

            (4)  Council Decision (EU) 2020/135 of 30 January 2020 on the conclusion of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (OJ L 29, 31.1.2020, p. 1).

            (5)  Commission Notice – Application of the Union’s pharmaceutical acquis in markets historically dependent on medicines supply from or through Great Britain after the end of the transition period (2021/C 27/08) (OJ C 27, 25.1.2021, p. 11).

            (6)  Directive 2001/20/EC of the European Parliament and of the Council of 4 April 2001 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the implementation of good clinical practice in the conduct of clinical trials on medicinal products for human use (OJ L 121, 1.5.2001, p. 34).

            (7)  Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ L 311, 28.11.2001, p. 67).

            (8)  Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Union procedures for the authorisation and supervision of medicinal products for human use and establishing a European Medicines Agency (OJ L 136, 30.4.2004, p. 1).


title: COMMISSION DELEGATED DIRECTIVE (EU) .../… amending, for the purposes of adapting to scientific and technical progress, Annex III to Directive 2011/65/EU of the European Parliament and of the Council as regards an exemption for cadmium in colour converting light-emitting diodes (LEDs) for use in display systems

text:
               EXPLANATORY MEMORANDUM

               1.CONTEXT OF THE DELEGATED ACT

               This Commission Delegated Directive amends, for the purpose of adapting to technical progress, Annex III of Directive 2011/65/EU of the European Parliament and of the Council on the restriction of the use of certain hazardous substances in electrical and electronic equipment (recast)
                  1
                (RoHS 2) as regards an exemption for specific applications containing cadmium.

               RoHS 2 restricts the use of certain hazardous substances in electrical and electronic equipment, as provided for in its Article 4. It entered into force on 21 July 2011.

               The restricted substances are listed in Annex II to RoHS 2; while the restrictions of lead, mercury, cadmium, hexavalent chromium, polybrominated biphenyls, and polybrominated diphenyl ethers are in force, the restrictions of bis(2ethylhexyl) phthalate (DEHP), butyl benzyl phthalate (BBP), dibutyl phthalate (DBP), diisobutyl phthalate (DIBP) shall apply from 22 July 2019. Annexes III and IV to RoHS 2 list the materials and components of electrical and electronic equipment (EEE) for specific applications exempted from the substance restriction of RoHS 2 Article 4(1).

               Article 5 makes provision for the adaptation to scientific and technical progress (inclusion, renewal, amendments and revoking of exemptions) of Annexes III and IV. Pursuant to Article 5(1)(a), exemptions are to be included in Annexes III and IV only if  such inclusion does not weaken the environmental and health protection afforded by Regulation (EC) No 1907/2006
                  2
                and where any of the following conditions is fulfilled: their elimination or substitution via design changes or materials and components which do not require any of the materials or substances listed in Annex II is scientifically or technically impracticable; the reliability of substitutes is not ensured; or the total negative environmental, health and consumer safety impacts caused by substitution are likely to outweigh the total environmental, health and consumer safety benefits thereof.

               Furthermore, Article 5(1) provides that the European Commission (the Commission) shall include materials and components of EEE for specific applications in the lists in Annexes III and IV by means of individual delegated acts in accordance with Article 20. Article 5(3) and Annex V establish the procedure for submitting applications for granting, renewing, or revoking an exemption.

               2.CONSULTATIONS PRIOR TO THE ADOPTION OF THE ACT

               Since the publication of RoHS 2, the Commission has received numerous
                  3
                requests from economic operators, according to the provisions in Article 5(3) and Annex V, for both granting new and renewing existing exemptions.

               The current Annex III exemption 39 permits the use of cadmium in certain colour converting light-emitting diodes (LEDs) for lighting and display applications. The colour converting component in LEDs consists of cadmium containing quantum dots. The Commission received an application for renewal of exemption 39 of Annex III in December 2012 and a related application specifically for cadmium quantum dots in displays in May 2013. The Commission services decided to address both applications in a common assessment. While exemption 39 had 1 July 2014 as former expiration date, in line with the requirements of the RoHS Directive (Article 5 (5), second subparagraph), it continues to apply until a decision on the renewal application is taken by the Commission.

               Following the renewal applications in 2012/2013, the Commission adopted a Delegated Directive in January 2015.
                  4
                However, the European Parliament objected to the Commission's Delegated Directive: in its Resolution
                  5
                of 20 May 2015 the European Parliament mainly based its objection on market developments which had occurred since the Commission's assessment, with certain cadmium-free quantum dot equipment becoming available in March 2015, and called on the Commission to reassess its decision. Consequently, the Commission initiated a new assessment as required by the Directive, with the support of external consultants and involving new stakeholder consultations. The new scientific and technical assessment was finalised in June 2016
                  6
               . A further Member States consultation took place during an expert meeting on 1 and 2 September 2016, which also involved presentations from the applicants and stakeholders most concerned. In accordance with the Better Regulation Guidelines, the draft Delegated Act was published on the Better Regulation Portal for a four-week public feedback period. Ten comments were received, seven supporting an extension of the exemption for displays and two opposing it. All necessary steps pursuant to Articles 5(3) to 5(7) have been performed. The Council and the European Parliament were notified of all activities.

               Quantum dots are a technology available on the market which, as other competing technologies, is expected to replace older colour converting designs in many applications in the near future. The scientific and technical assessment from June 2016 showed that the use of cadmiumbased quantum dots in displays with higher performance in terms of colour gamut has an overall positive environmental impact due to their lower energy consumption compared with indium phosphide alternatives, the main potential substitute technology currently on the market. Therefore, the Commission concluded that the total negative environmental, health and consumer safety impacts caused by substitution of cadmium in quantum dot applications are likely to outweigh the total environmental, health and consumer safety benefits thereof. In light of Article 5(1)(a) third criterion, a specific exemption for the use of cadmium selenide limited to less than 0.2 μg cadmium per mm2 of screen area for display applications is therefore currently justified. In comparison with the currently applicable exemption, such new exemption is more restrictive: a much lower threshold value is allowed, only the use of cadmium selenide (the inorganic compound actually used in the application concerned) is exempted and the applications are more precisely defined.

               The assessment carried out in preparation of the current delegated directive has also shown that, given the rapid technological progress and very dynamic market in this field, indiumphosphide-based applications and, possibly, other emerging technologies may lead to rapid performance enhancement of cadmium-free displays. Based on the above considerations, it is therefore justified to grant a shorttermed exemption only, of two years from publication of the Delegated Directive in the Official Journal of the European Union. This short period is the minimum duration possible for a RoHS 2 exemption given the 18month deadline in RoHS 2 Article 5 for requesting the renewal of an exemption. It is also intended to avoid any adverse impacts on innovation and in particular the further development of equivalent cadmiumfree alternatives.

               Regarding lighting applications, while cadmiumbased quantum dots LEDs for illumination (lamps) have been claimed to lead to overall performance improvement in related lighting technology, they are not available on the market yet. Hence, the so far existing exemption has in this respect not found an application in practice. Theoretical and not properly quantifiable advantages in specific applications claimed to be offered by cadmium-based prototype lamps do not justify a renewal of the exemption as regards general illumination applications, also in view of the rapid efficiency progress being made by lamps in the last years. Overall, reliable substitutes exist and there is not sufficient evidence enabling a comparison of the environmental, health and consumer safety impacts of cadmium-based illumination applications and existing alternatives. Thus, in the light of the three criteria in Article 5(1)(a), it has not been demonstrated that an exemption is justified as regards illumination applications. These are therefore not included in the Delegated Directive. Nonetheless, it is always possible to submit a request for exemption in the future when information is available for applicants to demonstrate that cadmium-based specific illumination applications have benefits over other light source alternatives, so to meet one of the criteria for RoHS exemptions.

               3.LEGAL ELEMENTS OF THE DELEGATED ACT

               The Delegated Directive grants an exemption from the restrictions in Article 4(1), to be listed in Annex III of Directive 2011/65/EU, for the use of cadmium in specific applications.

               The instrument is a Delegated Directive, as provided for by Directive 2011/65/EU, and in particular meeting the relevant requirements of Article 5(1)(a) thereof.

               The objective of the Delegated Directive is to contribute to the protection of human health and the environment and approximate related provisions to ensure the functioning of the internal market in the field of electrical and electronic equipment. This is done by allowing the use of otherwise banned substances for specific applications, in line with the provisions and under the conditions of RoHS 2 and the therein established procedure for the adaptation of the Annexes III and IV to scientific and technical progress.

               In accordance with the principle of proportionality, the measure does not go beyond what is necessary to achieve its objective.

               The proposal has no implications for the EU budget.

               COMMISSION DELEGATED DIRECTIVE (EU) .../…

               of 7.8.2017

               amending, for the purposes of adapting to scientific and technical progress, Annex III to Directive 2011/65/EU of the European Parliament and of the Council as regards an exemption for cadmium in colour converting light-emitting diodes (LEDs) for use in display systems

               (Text with EEA relevance)

               THE EUROPEAN COMMISSION,

               Having regard to the Treaty on the Functioning of the European Union,

               Having regard to Directive 2011/65/EU of the European Parliament and of the Council of 8 June 2011 on the restriction of the use of certain hazardous substances in electrical and electronic equipment
                  7
               , and in particular Article 5(1)(a) thereof,

               Whereas:

               (1)
                     Directive 2011/65/EU requires Member States to ensure that electrical and electronic equipment placed on the market does not contain cadmium.

               (2)
                     Point 39 in Annex III to Directive 2011/65/EU exempted the use of cadmium in colour converting light-emitting diodes (LEDs) for illumination and display applications from the prohibition until 1 July 2014. The Commission received an application for renewal of this exemption before 1 January 2013, in accordance with Article 5(5) of Directive 2011/65/EU.

               (3)
                     Colour converting LEDs using quantum dots have been shown advantageous as compared to earlier technology regarding energy efficiency and colour performance. The overall balance of the use of cadmium-based quantum dots in displays has a positive impact due to their lower energy consumption as compared to currently available alternative technologies. The total negative environmental, health and consumer safety impacts caused by substitution of cadmiumbased quantum dots in display applications where quantum dots are used are likely to outweigh the total environmental, health and consumer safety benefits thereof.

               (4)
                     The use of cadmium selenide in downshifting cadmium-based semiconductor nanocrystal quantum dots for use in display lighting applications should therefore be exempted from the prohibition for the period of two years after the publication of the Delegated Directive in the Official Journal of the European Union. This short validity period for the exemption is unlikely to have adverse impacts on innovation and the development of cadmium free alternatives.

               (5)
                     Cadmium-based quantum dot LEDs for illumination are not yet available on the market and their potential advantages in comparison with existing technologies are not properly quantifiable, thus a renewal of the exemption as regards illumination applications is not justified.

               (6)
                     Annex III to Directive 2011/65/EU should therefore be amended accordingly,

               HAS ADOPTED THIS DIRECTIVE:

               Article 1

               Annex III to Directive 2011/65/EU is amended as set out in the Annex to this Directive.

               Article 2

               1.Member States shall adopt and publish, by [12 months after the date of entry into force of this directive] at the latest, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those provisions.

               They shall apply those provisions from [12 months after the date of entry into force of this directive + 1 day].

               When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

               2.Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

               Article 3

               This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

               Article 4

               This Directive is addressed to the Member States.

               Done at Brussels, 7.8.2017

                     For the Commission

                     The President
                     Jean-Claude JUNCKER

                     (1)
                  OJ L 174, 1.7.2011, p. 88.

                     (2)
                  OJ L 396, 30.12.2006, p. 1

                     (3)
                  The list is given at:
                  http://ec.europa.eu/environment/waste/rohs_eee/adaptation_en.htm

                     (4)
                  C(2015) 383 final:
                  http://ec.europa.eu/transparency/regdoc/rep/3/2015/EN/3-2015-383-EN-F1-1.PDF
                  http://ec.europa.eu/transparency/regdoc/rep/3/2015/EN/3-2015-383-EN-F1-1-ANNEX-1.PDF

                     (5)

                  http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P8-TA-2015-0205+0+DOC+XML+V0//EN&language=EN
                  .

                     (6)

                  http://bookshop.europa.eu/en/assistance-to-the-commission-on-technological-socio-economic-and-cost-benefit-assessment-related-to-exemptions-from-the-substance-restrictions-in-electrical-and-electronic-equipment-pbKH0416553/

                     (7)
                  OJ L 174, 1.7.2011, p. 88.

    ---documentbreak---

               ANNEX

               to

               Commission Delegated Directive

               amending, for the purposes of adapting to scientific and technical progress, Annex III to Directive 2011/65/EU of the European Parliament and of the Council as regards an exemption for cadmium in colour converting light-emitting diodes (LEDs) for use in display systems

               In Annex III to Directive 2011/65/EU, point 39 is replaced by the following:

                        "39(a)

                        Cadmium selenide in downshifting cadmiumbased semiconductor nanocrystal quantum dots for use in display lighting applications (< 0.2 μg Cd per mm2 of display screen area)

                        Expires for all categories on [two years after the publication of the Delegated Directive in the Official Journal]"


title: COMMISSION DELEGATED DIRECTIVE (EU) .../… amending, for the purposes of adapting to technical progress, Annex III to Directive 2011/65/EU of the European Parliament and of the Council as regards an exemption for lead in bearing shells and bushes for certain refrigerant-containing compressors

text:
               EXPLANATORY MEMORANDUM

               1.CONTEXT OF THE DELEGATED ACT

               This Commission Delegated Directive amends, for the purpose of adapting to technical progress, Annex III of Directive 2011/65/EU of the European Parliament and of the Council on the restriction of the use of certain hazardous substances in electrical and electronic equipment (recast)
                  1
                (RoHS 2) as regards an exemption for specific applications containing lead.

               RoHS 2 restricts the use of certain hazardous substances in electrical and electronic equipment. RoHS 2 entered into force on 21 July 2011.

               The restricted substances are listed in Annex II to RoHS 2; while the restriction of lead, mercury, cadmium, hexavalent chromium, polybrominated biphenyls, and polybrominated diphenyl ethers restriction is being enforced to date, the restriction of bis(2ethylhexyl) phthalate (DEHP), butyl benzyl phthalate (BBP), dibutyl phthalate (DBP), diisobutyl phthalate (DIBP) shall be applied from 22 July 2019. Annexes III and IV to RoHS 2 list the materials and components of electrical and electronic equipment (EEE) for specific applications exempted from the substance restriction of RoHS 2 Article 4(1).

               Article 5 makes provision for the adaptation to scientific and technical progress (inclusion, renewal, amendments and deletion of exemptions) of Annexes III and IV. Pursuant to Article 5(1)(a), for exemptions to be included in Annexes III and IV, it has to be provided that such inclusion does not weaken the environmental and health protection afforded by Regulation (EC) No 1907/2006 and where any of the following conditions is fulfilled: their elimination or substitution via design changes or materials and components which do not require any of the materials or substances listed in Annex II is scientifically or technically impracticable; the reliability of substitutes is not ensured; or the total negative environmental, health and consumer safety impacts caused by substitution are likely to outweigh the total environmental, health and consumer safety benefits thereof.

               Furthermore, Article 5(1) provides that the European Commission (the Commission) shall include materials and components of EEE for specific applications in the lists in Annexes III and IV by means of individual delegated acts in accordance with Article 20. Article 5(3) and Annex V establish the procedure for submitting applications for granting, renewing, or revoking an exemption.

               2.CONSULTATIONS PRIOR TO THE ADOPTION OF THE ACT

               As a consequence of the provisions in Article 5(3) and Annex V which allows stakeholders to apply for an exemption from the substance restrictions, since the publication of RoHS 2 the Commission has received numerous
                  2
                requests for both granting new and renewing existing exemptions.

               On 7 October 2014 the Commission received an application for renewing exemption 9(b) of Annex III in relation to the use of lead in bearing shells and bushes for refrigerant-containing compressors, with a stated electrical power input of only 9 kW or lower for the HVACR industry.

               With a view to evaluating the application for exemption, the Commission launched a study to carry out the required technical and scientific assessment, including an eightweek online openended
                  3
                stakeholder consultation
                  4
                on the application. Three stakeholders explicitly supported the exemption renewal with the requested wording and duration. Contributions submitted provided details as to areas where the exemption is claimed indispensable.

               The final report containing the assessment of the application was published
                  5
               ; stakeholders were notified. The project page is accessible via the Europa webpage
                  6
               .

               Subsequently, the Commission consulted the Member States expert group for delegated acts under RoHS 2. An amendment proposal of RoHS 2 Annex III was sent out on 17 March 2016 with all necessary background information, and experts were invited to comment on the proposal at the meeting of 19 April 2016. The expert group unanimously supported the proposal to exempt lead in bearing shells and bushes for certain refrigerant-containing compressors for 3 years as from the original expiration date of the exemption 9(b) for the category concerned (21 July 2016). In accordance with the Better Regulation Guidelines, the draft Delegated Act was published on the Better Regulation Portal for a four-week public feedback period. Three comments were received. All of them expressed support for the adoption of the draft Delegated Act. All necessary steps pursuant to Article 5(3) to (7) have been performed. Council and Parliament were notified of relevant activities.

               The final report highlighted in particular the following technical information (see report in footnote 5):

               Lead is used in bearings of refrigerant compressors hermetically sealed to prevent leakage of the refrigerant. Lead provides low friction in the bearing by acting as a solid lubricant in case of inadequate lubrication, which may occur due to solvency of the lubricant oil in the refrigerant.

               Though lead-free bearings are viable, they still cannot reliably substitute lead bearings for the refrigerant-containing compressors with a stated electrical power input of 9 kW or lower.

               The reliability testing of lead-free bearings for the refrigerant-containing compressors with a stated electrical power input of 9 kW or lower is still underway and is expected to require three more years.

               The evaluation results for categories 1 to 7 and 10 show that at least one of the relevant criteria specified in Article 5(1)(a) is met by the exemption request relating to entry 9(b) in Annex III when formulated as "Lead in bearing shells and bushes for refrigerant-containing hermetic scroll compressors with a stated electrical power input equal or below 9 kW for heating, ventilation, air conditioning and refrigeration (HVACR) applications", the renewal is thus justified only regarding to large household appliances (i.e. category 1 of Annex I). Since, for the applications concerned, no sufficiently reliable alternatives are available today or are likely to come to the market soon, and considering the typical innovation pace of the sector, the three-year validity period of the exemption is not expected to have adverse impacts on innovation. For categories other than categories 1 to 7 and 10, the existing exemption remains as per the validity periods set out in Article 5(2). The specific exemption does not weaken the environmental and health protection afforded by Regulation (EC) No 1907/2006 (REACH), in accordance with Article 5 of Directive 2011/65/EU.

               3.LEGAL ELEMENTS OF THE DELEGATED ACT

               The proposed act grants an exemption from the substance restrictions of Directive 2011/65/EU for the use of lead in specific applications.

               The proposed instrument is a delegated directive, as provided for by Directive 2011/65/EU, and in particular Article 5(1)(a) thereof.

               The objective of the proposed act is to ensure legal certainty and sustainable market conditions for manufacturers of electrical and electronic equipment, by allowing the use of otherwise banned substances for specific applications, in line with the provisions and under the conditions of RoHS 2 and the therein established procedure for the adaptation of the Annexes III and IV to scientific and technical progress.

               In accordance with the principle of proportionality, the measure does not go beyond what is necessary to achieve its objective.

               The proposal has no implications for the EU budget.

               COMMISSION DELEGATED DIRECTIVE (EU) .../…

               of 13.3.2017

               amending, for the purposes of adapting to technical progress, Annex III to Directive 2011/65/EU of the European Parliament and of the Council as regards an exemption for lead in bearing shells and bushes for certain refrigerant-containing compressors

               (Text with EEA relevance)

               THE EUROPEAN COMMISSION,

               Having regard to the Treaty on the Functioning of the European Union,

               Having regard to Directive 2011/65/EU of the European Parliament and of the Council of 8 June 2011 on the restriction of the use of certain hazardous substances in electrical and electronic equipment
                  7
               , and in particular Article 5(1)(a) thereof,

               Whereas:

               (1)Directive 2011/65/EU prohibits the use of lead in electrical and electronic equipment placed on the market.

               (2)Lead is used in bearings of refrigerant compressors hermetically sealed to prevent leakage of the refrigerant. Lead provides low friction in the bearing by acting as a solid lubricant in case of inadequate lubrication.

               (3)Though lead-free bearings are viable, they still cannot reliably substitute lead bearings for the refrigerant-containing compressors with a stated electrical power input of 9 kW or lower.

               (4)Lead in bearing shells and bushes for refrigerant-containing hermetic scroll compressors with a stated electrical power input equal or below 9 kW for heating, ventilation, air conditioning and refrigeration (HVACR) applications should therefore be exempted until 21 July 2019. In view of the innovation cycles for HVACR applications, the duration of this exemption is unlikely to have adverse impacts on innovation.

               (5)Directive 2011/65/EU should therefore be amended accordingly,

               HAS ADOPTED THIS DIRECTIVE:

               Article 1

               Annex III to Directive 2011/65/EU is amended as set out in the Annex to this Directive.

               Article 2

               1.Member States shall adopt and publish, by [Date -12 months after the date of entry into force of this directive] at the latest, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those provisions.

               They shall apply those provisions from [Date -12 months after the date of entry into force of this directive].

               When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

               2.Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

               Article 3

               This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

               Article 4

               This Directive is addressed to the Member States.

               Done at Brussels, 13.3.2017

                     For the Commission

                     The President
                     Jean-Claude JUNCKER

                     (1)
                  OJ L 174, 1.7.2011, p. 88.

                     (2)
                  The list is available at:
                  http://ec.europa.eu/environment/waste/rohs_eee/adaptation_en.htm

                     (3)
                  The list of consulted stakeholders is regularly updated and maintained; it includes industry organisations, manufacturers and suppliers, recyclers, consumer associations, NGOs, academia, Member States' representatives, and others.

                     (4)

                  Consultation period
                  : from 24.04.2015 to 19.06.2015

                     (5)

                     Evaluation report

                     (6)

                  http://ec.europa.eu/environment/waste/rohs_eee/adaptation_en.htm

                     (7)
                  OJ L , , p. .

    ---documentbreak---

               ANNEX

               to

               COMMISSION DELEGATED DIRECTIVE (EU)

               amending, for the purposes of adapting to technical progress, Annex III to Directive 2011/65/EU of the European Parliament and of the Council as regards an exemption for lead in bearing shells and bushes for certain refrigerant-containing compressors

               In Annex III, point 9(b) is replaced by the following:

               '

                        9(b)

                        Lead in bearing shells and bushes for refrigerant-containing compressors for heating, ventilation, air conditioning and refrigeration (HVACR) applications

                        Applies to categories 8, 9 and 11; expires on:

                        21 July 2023 for category 8 in vitro diagnostic medical devices;

                        21 July 2024 for category 9 industrial monitoring and control instruments and for category 11;

                        21 July 2021 for other subcategories of categories 8 and 9.

                        9(b)-(I)

                        Lead in bearing shells and bushes for refrigerant-containing hermetic scroll compressors with a stated electrical power input equal or below 9 kW for heating, ventilation, air conditioning and refrigeration (HVACR) applications

                        Applies to category 1; expires on 21 July 2019.

               '


title: COMMISSION DELEGATED DIRECTIVE (EU) .../… amending, for the purposes of adapting to technical progress, Annex III to Directive 2011/65/EU of the European Parliament and of the Council as regards an exemption for cadmium and lead in filter glasses and glasses used for reflectance standards

text:
               EXPLANATORY MEMORANDUM

               1.CONTEXT OF THE DELEGATED ACT

               This Commission Delegated Directive amends, for the purpose of adapting to technical progress, Annex III of Directive 2011/65/EU of the European Parliament and of the Council on the restriction of the use of certain hazardous substances in electrical and electronic equipment (recast)
                  1
                (RoHS 2) as regards an exemption for specific applications containing cadmium and lead.

               RoHS 2 restricts the use of certain hazardous substances in electrical and electronic equipment. RoHS 2 entered into force on 21 July 2011.

               The restricted substances are listed in Annex II to RoHS 2; while the restriction of lead, mercury, cadmium, hexavalent chromium, polybrominated biphenyls, and polybrominated diphenyl ethers is being enforced to date, the restriction of bis(2ethylhexyl) phthalate (DEHP), butyl benzyl phthalate (BBP), dibutyl phthalate (DBP), diisobutyl phthalate (DIBP) shall be applied from 22 July 2019. Annexes III and IV to RoHS 2 list the materials and components of electrical and electronic equipment (EEE) for specific applications exempted from the substance restriction of RoHS 2 Article 4(1).

               Article 5 makes provision for the adaptation to scientific and technical progress (inclusion, renewal, amendments and deletion of exemptions) of Annexes III and IV. Pursuant to Article 5(1)(a), for exemptions to be included in Annexes III and IV, it has to be provided that such inclusion does not weaken the environmental and health protection afforded by Regulation (EC) No 1907/2006 and where any of the following conditions is fulfilled: their elimination or substitution via design changes or materials and components which do not require any of the materials or substances listed in Annex II is scientifically or technically impracticable; the reliability of substitutes is not ensured; or the total negative environmental, health and consumer safety impacts caused by substitution are likely to outweigh the total environmental, health and consumer safety benefits thereof.

               Furthermore, Article 5(1) provides that the European Commission (the Commission) shall include materials and components of EEE for specific applications in the lists in Annexes III and IV by means of individual delegated acts in accordance with Article 20. Article 5(3) and Annex V establish the procedure for submitting applications for granting, renewing, or revoking an exemption.

               2.CONSULTATIONS PRIOR TO THE ADOPTION OF THE ACT

               As a consequence of the provisions in Article 5(3) and Annex V which allows stakeholders to apply for an exemption from the substance restrictions, since the publication of RoHS 2 the Commission has received numerous
                  2
                requests for both granting new and renewing existing exemptions.

               On 11 November 2014 the Commission received an application for renewing exemption 13(b) of Annex III in relation to the use of cadmium and lead in filter glasses and glasses used for reflectance standards.

               With a view to evaluating the application for exemption, the Commission launched a study to carry out the required technical and scientific assessment, including an eightweek online openended
                  3
                stakeholder consultation
                  4
                on the application. Five contributions were made to the stakeholder consultation regarding the use of cadmium and lead in refractive standards, the relation with exemption 39, with certain optical applications relying on exemption 13(b), which would be needed e.g. to ensure correct diagnoses in medicine, and with the duration for different categories. Three stakeholders supported the renewal with the requested wording and duration.

               The final report containing the assessment of the application was published
                  5
               ; stakeholders were notified. The project page is accessible via the Europa webpage
                  6
               .

               Subsequently, the Commission consulted the Member States expert group for delegated acts under RoHS 2. An amendment proposal of RoHS 2 Annex III was sent out on 17 March 2016 with all necessary background information, and experts were invited to comment on the proposal at the meeting of 19 April 2016. The expert group unanimously supported the proposal to exempt for 5 years lead and/or cadmium in different optical glass applications of categories 1 to 7 and 10. In accordance with the Better Regulation Guidelines, the draft Delegated Act was published on the Better Regulation Portal for a four-week public feedback period. Three comments were received. All of them expressed support for the adoption of the draft Delegated Act. All necessary steps pursuant to Article 5(3) to (7) have been performed. Council and Parliament were notified of all relevant activities.

               The final report highlighted in particular the following technical information (see report in footnote 5):

               Optical filter glasses containing cadmium and/or lead are used in a wide variety of optical applications for many types of electrical and electronic equipment. While several types of optical filter glasses contain cadmium, only a few contain lead. Both cadmium and lead are used because of the unique optical properties that their use enables, such as 'sharp cut-off' in the visible spectrum that is unaffected by viewing angle.

               Most of the alternatives to glass containing cadmium and/or lead do not exhibit such sharp wavelength 'cut-off'. Interference filters do have sharp cut-offs but the wavelength at which this occurs is viewing angle dependent and so these are unsuitable for many applications. Though various substitution routes exist, substitutes do not provide sufficient cut-off performance for all applications. In the few cases where alternatives are said to supply sufficient performance in this respect, the materials used are too sensitive to environmental conditions of operation (such as heat or UV light) and thus do not provide a comparable reliability.

               In this sense, though alternatives are available for some applications, such alternatives are still not suitable for many other applications, such as striking filter glasses and ion coloured optical filter glasses.

               Finding alternatives to these applications is complicated and time-demanding, thus 5 years is perceived as justified for the categories 1 to 7 and 10.

               The evaluation results for categories 1 to 7 and 10 show that at least one of the relevant criteria specified in Article 5(1)(a) is met by the exemption request relating to entry 13(b) in Annex III, when formulated as in the Annex to this directive, and the renewal is thus justified. Since, for the applications concerned, no sufficiently reliable alternatives are available today or are likely to come to the market soon, and considering the typical innovation pace of the sector, the five-year validity period of the exemption is not expected to have adverse impacts on innovation. For categories other than categories 1 to 7 and 10, the existing exemption remains as per the validity periods set out in Article 5(2). The specific exemption does not weaken the environmental and health protection afforded by Regulation (EC) No 1907/2006 (REACH) in accordance with Article 5 of Directive 2011/65/EU.

               3.LEGAL ELEMENTS OF THE DELEGATED ACT

               The proposed act grants an exemption from the substance restrictions of Directive 2011/65/EU for the use of lead and/or cadmium in specific applications.

               The proposed instrument is a delegated directive, as provided for by Directive 2011/65/EU, and in particular Article 5(1)(a) thereof.

               The objective of the proposed act is to ensure legal certainty and sustainable market conditions for manufacturers of electrical and electronic equipment, by allowing the use of otherwise banned substances for specific applications, in line with the provisions and under the conditions of RoHS 2 and the therein established procedure for the adaptation of the Annexes III and IV to scientific and technical progress.

               In accordance with the principle of proportionality, the measure does not go beyond what is necessary to achieve its objective.

               The proposal has no implications for the EU budget.

               COMMISSION DELEGATED DIRECTIVE (EU) .../…

               of 13.3.2017

               amending, for the purposes of adapting to technical progress, Annex III to Directive 2011/65/EU of the European Parliament and of the Council as regards an exemption for cadmium and lead in filter glasses and glasses used for reflectance standards

               (Text with EEA relevance)

               THE EUROPEAN COMMISSION,

               Having regard to the Treaty on the Functioning of the European Union,

               Having regard to Directive 2011/65/EU of the European Parliament and of the Council of 8 June 2011 on the restriction of the use of certain hazardous substances in electrical and electronic equipment
                  7
               , and in particular Article 5(1)(a) thereof,

               Whereas:

               (1)Directive 2011/65/EU prohibits the use of lead and cadmium in electrical and electronic equipment placed on the market.

               (2)Optical filter glasses containing cadmium or lead are used in a wide variety of optical applications for many types of electrical and electronic equipment. Both cadmium and lead are used because of the unique optical properties that their use enables, such as 'sharp cut-off' in the visible spectrum that is unaffected by viewing angle.

               (3)Though various substitution routes exist, substitutes do not provide sufficient cut-off performance for all applications. In the few cases where alternatives are said to supply sufficient performance in this respect, the materials used are too sensitive to environmental conditions of operation and thus not sufficiently reliable.

               (4)In this sense, alternatives are still not suitable for many applications, for which finding alternatives is complicated and time-demanding, thus five years is a justified duration for the categories 1 to 7 and 10.

               (5)Certain optical filter glasses containing cadmium and/or lead should therefore be exempted until 21 July 2021 for categories 1 to 7 and 10. In view of the innovation cycles for the electrical and electronic equipment affected, the duration of this exemption is unlikely to have adverse impacts on innovation.

               (6)Directive 2011/65/EU should therefore be amended accordingly,

               HAS ADOPTED THIS DIRECTIVE:

               Article 1

               Annex III to Directive 2011/65/EU is amended as set out in the Annex to this Directive.

               Article 2

               1.Member States shall adopt and publish, by [Date -12 months after the date of entry into force of this directive] at the latest, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those provisions.

               They shall apply those provisions from [Date -12 months after the date of entry into force of this directive].

               When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

               2.Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

               Article 3

               This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

               Article 4

               This Directive is addressed to the Member States.

               Done at Brussels, 13.3.2017

                     For the Commission

                     The President
                     Jean-Claude JUNCKER

                     (1)
                  OJ L 174, 1.7.2011, p. 88.

                     (2)
                  The list is available at:
                  http://ec.europa.eu/environment/waste/rohs_eee/adaptation_en.htm

                     (3)
                  The list of consulted stakeholders is regularly updated and maintained; it includes industry organisations, manufacturers and suppliers, recyclers, consumer associations, NGOs, academia, Member States' representatives, and others.

                     (4)

                  Consultation period
                  : from 24.04.2015 to 19.06.2015

                     (5)

                     Evaluation report

                     (6)

                  http://ec.europa.eu/environment/waste/rohs_eee/adaptation_en.htm

                     (7)
                  OJ L , , p. .

    ---documentbreak---

               ANNEX

               to

               COMMISSION DELEGATED DIRECTIVE (EU)

               amending, for the purposes of adapting to technical progress, Annex III to Directive 2011/65/EU of the European Parliament and of the Council as regards an exemption for cadmium and lead in filter glasses and glasses used for reflectance standards

               In Annex III, point 13(b) is replaced by the following:

               '

                        13(b)

                        Cadmium and lead in filter glasses and glasses used for reflectance standards

                        Applies to categories 8, 9 and 11; expires on:

                        21 July 2023 for category 8 in vitro diagnostic medical devices;

                        21 July 2024 for category 9 industrial monitoring and control instruments and for category 11;

                        21 July 2021 for other subcategories of categories 8 and 9

                        13(b)-(I)

                        Lead in ion coloured optical filter glass types

                        Applies to categories 1 to 7 and 10; expires on 21 July 2021 for categories 1 to 7 and 10

                        13(b)-(II)

                        Cadmium in striking optical filter glass types; excluding applications falling under point 39 of this Annex

                        13(b)-(III)

                        Cadmium and lead in glazes used for reflectance standards

               '