On Thursday 18 March, EU Environment Ministers welcomed the draft regulation on batteries and battery waste as an opportunity for the European Union to develop a sustainable European battery market and make progress in the transition to circular economy (see EUROPE 12620/13).
However, they overwhelmingly found the single ‘internal market’ legal basis (Article 114 TFEU) of this regulation to be inadequate, in a video conference debate (see EUROPE 12679/13, 12677/6).
Portuguese Environment Minister João Pedro Matos Fernandes stressed the importance of this regulation to improve the rate of electric mobility and to take into account the environmental impact of batteries throughout their life cycle - a model to be followed by other products in the EU.
The legislation that this Regulation is intended to amend is Directive 2006/66/EC on batteries and accumulators and their waste, which has a dual legal basis: Article 114 and Article 192 (Environment) of the TFEU.
The Ministers expressed their understanding of the European Commission’s argument for its choice - that of harmonising the rules for placing batteries on the market in order to create a level playing field - and recognised the importance of such harmonisation for the proper functioning of the internal market.
Subsidiarity for waste management. However, they considered that the addition of the legal basis 'Environment' would be appropriate, in order to provide this regulation, which also covers waste management, with a double legal basis.
This would improve the legislative framework by building on existing provisions, such as the Waste Framework Directive and all the revised Waste Directives in 2018.
Austria and Luxembourg, initially in favour of the single legal basis provided by Article 192 , said they were ready to join the rest of their colleagues advocating a dual legal basis.
The Ministers argued for subsidiarity and that there should be sufficient flexibility to ensure that Member States do not have to give up their well-functioning waste management systems.
All of them looked forward to the opinion of the EU Council’s legal service.
Safety and sustainability requirements. Some delegations, such as Bulgaria and Romania, considered the collection and recycling targets for portable batteries (from 45% to 65% by 2025) to be unrealistic and insisted that operators and end-users be given a sufficiently long transition period to adapt.
Others, such as Germany, have defended ambitious targets, but with a change in the calculation method to take account of the life of batteries. These countries also called for the strengthening of efficiency targets.
In Cyprus’ view, the flexibility of the current Directive for extended product responsibility “must be reflected in the future regulation”.
As regards hazardous substances in batteries, most delegations consider that the REACH regulation should apply.
Due diligence is generally welcomed, but some delegations find it difficult to implement and fear an excessive administrative burden, especially for SMEs producing small quantities of batteries.
The Portuguese Presidency still hopes to reach a general approach in the EU Council in June. “We have a commitment to quality regulation. But, given the complexity of the issue, there are differences of opinion on the timetable and the ambition of the objectives”, acknowledged Mr João Pedro Matos Fernandes at the end of the video conference. He was nevertheless pleased that no delegation had questioned the objectives.
Slovenia has indicated that an in-depth debate will be organised, if there is no political agreement before the Slovenian Council Presidency in the second half of 2021. (Original version in French by Aminata Niang)