In December 2020, the European Commission presented a proposal for a new Regulation on Batteries and Waste Batteries. The proposed Regulation aims to replace the current framework of Directive 2006/66/EC and seeks to achieve objectives set out in the European Green Deal and subsequent strategies, such as the transition to a carbon neutral and circular economy and the growth of renewable energies and clean mobility. (Covington lawyers hosted a webinar that outlines the main features of the proposed Regulation and the ordinary legislative procedure that the proposal will follow.)
The proposal includes a host of product sustainability and safety requirements, conformity assessments and end-of-life management obligations for the producers of all types of batteries. These requirements concern, among many others, carbon footprints, recycled content, chemical restrictions, durability, removability, replaceability, supply chain due diligence, waste collection, treatment and recycling, conformity assessments and CE markings, etc. The proposed rules are expected to have a significant regulatory impact on the emerging European markets for industrial batteries and e-vehicle batteries.
One of the most striking features of the proposal is that many of its provisions are limited to establishing general principles and empower the European Commission to adopt the regulatory details by means of “Commission Delegated Regulations” and “Commission Implementing Regulations.” In effect, the Commission’s proposal would leave it to the officials of the Commission and Member States to decide many of the technical details, which will eventually shape the markets of e-vehicle, industrial, automotive and portable batteries in Europe. While delegating powers to the Commission is very common in EU legislation, the extent to which the proposal leaves regulatory decision-making to the Commission seems unprecedented. It is uncertain whether the European Parliament and Council will agree to relinquishing so many critical details to the Commission.
This substantial delegation of power to the Commission also means that companies active on these markets that wish to advocate their position on the regulatory framework of batteries will need to do so not only during the proposal’s ordinary legislative procedure, but also during the adoption of the implementing rules and guidance by the Commission. This is likely to be a long and ongoing process that will take at least six years after the conclusion of the ordinary legislative procedure.