Important clarification of the EU Batteries Directive

The European Commission has proposed a short, but important, revision of Directive 2006/66/EC on batteries and accumulators and waste batteries and accumulators (“Directive”). The proposal, which is contained in Com/2008/0211 (final) (the “Communication”), aims to clarify Article 6(2) of the Directive as regards batteries and accumulators already placed on the market.

Article 6(2) of the Directive currently states that batteries and accumulators that do not meet the requirements of the Directive should not be placed on the market or should be withdrawn from it. This provision has caused concern. This is because it could be read as meaning that batteries which had been placed on the market before the implementation date (26 September 2008) but which have not yet been sold and do not meet the various requirements of the Directive, would have to be withdrawn.

Such withdrawal would have created a negative impact on the environment because of the additional waste that would have created. There would have also been significant negative economic impacts, given that new resources and additional transport would have been required and batteries would have to be re-labelled or withdrawn. The European Commission estimated that the re-labelling of batteries in laptops, cordless power tools and mobile phones alone would have resulted in an additional cost of 400 million euros.

The Communication states that the European Commission’s initial intention under the Directive was not to not to require withdrawal of batteries that had been legally placed on the market before 26 September 2008. It feels that Article 6(2) must therefore be clarified to avoid internal market disruption and provide legal certainty for Member States. As such, the Commission intends to amend Article 6(2) so that it does not apply retrospectively to batteries already on the market. The proposal has been included as a ‘fast track action’ so that it can take effect before 26 September 2008. It is expected that the amendment will be issued in the next few months.