Lode Pollet- Ultracold Atoms in an Optical Lattice: A Numerical Approach
Www.whitecase.com KITA seminar Kris Pollet White & Case LLP Brussels Seoul, December 17, 2004.
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Transcript of Www.whitecase.com KITA seminar Kris Pollet White & Case LLP Brussels Seoul, December 17, 2004.
Page 3
Overview
This presentation is not comprehensive in terms of WEEE/RoHS developments, but only covers a selected number of implementation issues.
13 RoHS Exemption Requests
Grey Area Products
Marking of Products
Information for Treatment
Change Separate Treatment?
Enforcement
Expand RoHS??
Page 4
13 RoHS exemption requests
Only 11 subject of study, and consultant and most MSs seem willing to grant them:
Pb in optical transceivers for industrial applications: withdrawn by applicant
Pb in solders for electrical connection inside IC packages – Flip Chips: no further info received by application – EC lost contact details…
Pb in solders for servers, storage array, network infrastructure: is considered safety critical – want to avoid breakdown
Others: mercury in straight fluorescent lamps for special purposes; light bulbs; Pb in compliant pin Very High Density Medium connectors; Pb coating for thermal conduction module c-ring; Pb & Cd in optical and filter glass; Pb in solders inside microprocessors (>85% Pb); Pb in high melting temperature type solders; safety equipment for fire and rescue services
Dec 10 TAC: expected vote on basis of EC proposal to amend Annex of RoHS
Exemptions to be reviewed by July 2010; if no justification, terminate exemption (Article 5.1.c)
Page 5
13 RoHS exemption requests
2 special requests: not part of study
Deca BDE: Comprehensive Risk Assessment finally concluded in May ’04 (Ireland rapporteur) – no risk to human health or environment – majority of TAC & EC seem in favour of excluding Deca from RoHS ban – BUT Denmark & Sweden (?) want to ban on basis of precautionary principle – long awaited EC proposal at Dec 10 TAC?
Danish Parliament only narrowly rejected a vote to impose Deca ban
Norway considering a Deca BDE ban
Pb in lead-bronze bearing shells and bushes: EC and majority of TAC seem in favour of granting because this is already exempt under the End of Life Vehicles directive
Page 6
Other exemption requests
Use of non-RoHS compliant parts in refurbishment of « old » EEE: usually for B2B leasing – EC: no problem if refurbished product marketed as « refurbished », but if product marketed as « new »? – EC: maybe grant a time-limited exemption – MSs: maybe need a generic, not sector specific exemption; and maybe only in cases where a closed loop can be proven – EC proposal at Dec 10 TAC?
Additional requests received: as of Sept 15 cut-off date EC had received 26 additional requests – but covered only about 18 product groups – EC uses “check list” to make first selection: safety critical? scientific/technical information provided? submitted by more than one applicant? etc – EC needs to locate funding for a new consultant’s study (not before start of 2005) – will need public stakeholder consultation (Art. 5.2) – it is likely conclusion will not be available before end 2005 – vote in TAC before July 2006??? – if not, EC will probably grant “temporary exemption” or “grace period” until confirmed or rejected by vote
Page 7
Grey area products
EC / TAC approach: criteria, grey area products table
TAC tries for agreement on criteria (some MSs refuse)
EC has received over 40 requests for clarification: is this product in or out of WEEE/RoHS scope?
EC submits requests to TAC for comments
If agreement, includes in grey products table
If not, EC will try to push through its own interpretation
But, MSs are not obliged to follow this ‘table’
It is likely you will have national differences
UK: pushes « due diligence » approach
UK does not believe in grey products table approach – unpractical
Companies should reach their own judgement in good faith, or after getting independent legal advice
Page 8
Grey area products
(UK approach – cont’d)
But can get non-binding advice from officials (who will keep a database of prior responses)
Have developed decision-tree approach to assist on this (based largely on draft TAC criteria)
If your interpretation is challenged, you will need to prove that you « took every reasonable step » and « excercised all due diligence » to ensure compliance
Ultimately, only national courts / European Court of Justice can give a binding legal interpretation
Same due diligence defence applies in RoHS context => to be susbstantiated by supplier declarations, sample tests, etc
Page 9
Grey area products
Products examined by TAC so far (not comprehensive):
RFID – Radio Frequency Identification Device: if it’s on the packaging, out of scope. If it’s on the product, in the scope.
Electrical scooters in airports: not covered; but if used for leisure purposes: covered under category 7
Space products: unclear (Art 2.1 WEEE?)
Fridges, Airco etc for caravans and motor homes: depends on whether caravans and motor homes fall under ELV
Page 10
Marking of products
Art. 10.3: mark EEE with crossed-out wheeled bin
if necessary, can be printed on packaging, or on the instructions for use, or on the warranty
symbol must be visible, legible, and indelible (Annex IV)
Art. 11.2: producer clearly identifiable by mark on EEE; mark if product is put on market after 13/8/2005; EC to promote EU standards on this
CENELEC draft standard prEN 50419
marking must also be accessible and durable
if not possible on EEE, can be on flag on fixed supply cord, on operating instructions or warranty
if above does not apply: shall be on packaging
Page 11
Marking of products
If standard is not ready by 13/8/2005?
legal requirement to mark remains valid
use the draft standard,
or any other marking that complies with Art’s 10.3 & 11.2
CENELEC standard will in any case remain voluntary and non-binding
Page 12
Information for treament
Art. 11.1 requires:
to facilitate environmentally sound maintenance, upgrade, refurbishment, and recycling
Member States must ensure that the following measures are taken:
producers to provide reuse and treatment info for 1) each type of new EEE, 2) within one year after placing on market
information shall include (only to allow compliance with directive provisions) 1) the different EEE components and materials, 2) location of dangerous substances and preparationsin the form of 1) manuals, or 2) electronic means
Page 13
Information for treatment
Most MSs have not dealt with this in detail yet
UK: seems to take a cautious approach
producers are allowed only to respond to info requests when they arise
producers can ‘reasonably’ be asked to provide info on location of items and substances covered by Environment
Agency’s guidance on treatment, or on dangerous substances or components in general
Ireland: preparatory Task Force recommends:
producers should “facilitate” development of guidance documents on recycling, materials handling, waste classification
Page 14
Change Separate Treatment?
WEEE Art. 6 & Annex II lay down selective treatment requirements
Would involve manual removal of components, substances
= very costly
For minimal or no environmental gain?
NL University of Delft eco-efficiency research questions several Annex II requirements
LCD’s > 100cm2 – very low eco-efficiency
Electrolyte capacitors – very low eco-efficiency
BUT: PCBs in mobile phones can be treated in smelters which enables recycling of precious metals (profitable!)
Research results have twice been presented to TAC members
Initial reaction appears to have been positive
Page 15
Enforcement
WEEE Art 15 & RoHS Art 8
MSs to determine penalties that are effective, proportionate & dissuasive
WEEE Art 16
MSs to ensure that inspection & monitoring enable proper implementation of diretive to be verified
A certain ‘honeymoon’ or ‘grace period’ will probably be observed by most regulators
Achieving compliance is hard enough as it is (in particular with a lot of guidance still missing), so « let’s not rock the boat too quickly »
National enforcement structures/agencies still need to be established, appointed, or organised in most MSs
Page 16
Enforcement
But honeymoon will not last, in particular with RoHS
Assuming that it will not be strictly enforced is dangerous, and will lead to growing free rider behaviour
UK:
RoHS: DTI to enforce; will be able to 1) make test purchases, 2) carry out tests, 3) request compliance documents, 4) issue remedial compliance measures in case of breach
WEEE: various regional agencies (Environment Agency for England & Wales; powers have not been fixed yet
Steven Andrews (DTI): national enforcement authorities will exchange information on non-compliant products
Page 17
Enforcement
Ireland Task Force recommendation:
Enforcement must be priority, penalties must be real deterrent, inspectors must be properly trained, need clear and consistent methodology, focus on RoHS compliance
Denmark
Has an established structure (Chemicals Inspectorate) that enforces existing Pb ban, with developed working methods
Netherlands
Established structure, existing working methods, and a track record…
Page 18
Enforcement
Imposing financial penalties, or even criminal prosecution, will probably only be 2nd or 3rd options
Imposing remedial measures to achieve compliance will probably be 1st choice
BUT remedial measures could be much more costly than a financial penalty…
Page 19
Expand RoHS??
Art. 6 Review
Before 13 February 2005
Present proposal for including categories 8 & 9 into scope
Study need to adapt the substance ban, on basis of precautionary principle
Deadline will be missed
No apparent room for not including cat’s 8 & 9
Proposal to EP & Council: will take 1-2 years to adopt
Include new substances in RoHS ban??
Page 20
Expand RoHS??
Add new substances to RoHS ban?
Current majority approach: await/allow compliance with 6 substance ban first
So: too early to expand?
Several elements may play a role:
Substance declarations (Green Sheet, JIG) cover a much wider number of substances than RoHS 6
This draws attention to other substances
And real ban is broader anyway: 76/769 bans PCBs, azo- colourants, etc
Other EU policy initiatives could have impact: PVC, nickel, phthalates, other brominated flame retardants, etc
REACH will inevitably lead to more restrictions / bans
Page 21
Expand RoHS??
Which substances could be targeted first?
Berylium (Berylium Oxide) – been mentioned in press reports – some recyclers already remove it – is considered as toxic as lead
Arsenic – is even more toxic than lead
Bismuth – heavy metal
TBBPA – Tetra Bromo Bisphenol A – brominated flame retardant – currently undergoing comprehensive risk assessment
However, since hazardousness/toxicity of these substances is usually known, they are only used if really needed, i.e. in critical applications
If banned, you would probably need a lot of exemptions
Restrictions may emerge through EuP or REACH
Page 23
Energy Using Products – EuP
Commission proposal for a Directive on establishing a framework for the setting of Eco-design requirements for Energy-Using Products – August 2003:
The proposal aims to improve the environmental performance of energy-using products.
The proposal aims to facilitate free movement of goods across the EU.
The proposal does not introduce directly applicable requirements for specific products.
The proposal establishes a framework: i.e. defines criteria and conditions for setting requirements regarding environmentally relevant product characteristics (such as energy consumption), through implementing measures to be adopted by the Commission on the basis of this framework.
Page 24
EuP – Procedure
First reading: The European Parliament proposed amendments in April 2004
The Council reached Political Agreement in June 2004
The Council adopted a Common Position in November 2004
Second reading: The European Parliament will examine the Common Position and
present its second reading text in spring 2005
Final adoption: The Directive is expected to be adopted at EU level in the second
half of 2005
The following analysis has been conducted on the basis of the text of the Common Position adopted in November 2004.
Page 25
EuP – Definition & Scope I
“Energy-using products”: products that, in order to operate as they are intended to operate, require some energy input, such as electricity, fossil fuels and renewable energy sources.
Examples: electrical and electronic devices or heating equipment
Parts that require energy input, are intended to be incorporated into an EuP and are intended as individual parts for end-users(e.g. battery charges) – included
Means of transport for persons and goods – excluded
Page 26
EuP – Definition & Scope II
Eco-label:
Products that have been awarded an Eco-label will be considered as compliant insofar as the Eco-label meets the requirements of the implementing measure.
EMAS:
The EMAS system can be used to demonstrate compliance. EMAS does not however grant presumption of compliance.
Page 27
EuP – Conformity Assessment
If an EuP falls in the scope of an implementing measure, then the manufacturer is required to carry out an assessment of the EuP’s conformity with the requirements provided by this implementing measure.
Manufacturers will be able to choose between the “internal design control” set out in Annex IV of the Directive and the management system under Annex V.
Page 28
EuP – Implementing Measures I
Once the EuP Directive is adopted, the Commission will enact implementing measures on specific grounds and environmental aspects (e.g. energy consumption, waste generation, water consumption, extension of lifetime).
Implementing measures will be enacted after impact assessment and after consultation with Member States and interested parties.
The Commission will be assisted by a regulatory Committee.
Page 29
EuP – Implementing Measures II
Criteria according to which an EuP can be covered under an IM:
More than 200,000 units of the EuP to be traded in the EU in a year
Significant environmental impact within the EU
Potential that the EuP’s environmental impact will improve after application of the implementing measure without entailing excessive costs – e.g.
If no other relevant EU legislation exists
If market forces fail to make an environmental improvement
If EuPs available on the market with similar functionality have very different environmental performance
Page 30
EuP – Implementing Measures III
Other parameters to be taken into account when drafting an IM:
Life cycle of the EuP
Impact assessment carried out on the environment, consumers and manufacturers
Voluntary agreements by the industry and other self-regulation
Consultation with stakeholders
The European Climate Change Programme
Member States’ existing environmental legislation
Page 31
EuP – Implementing Measures IV
Criteria to be met by the IM:
The IM must not significantly worsen the use and functionality of the EuP
The IM must not adversely affect health, safety or the environment
The IM must not significantly increase the lifecycle cost of the EuP
The IM must not significantly worsen the manufacturers’ competitiveness within or outside the EU
The IM must not indirectly require the adoption of proprietary technology by manufacturers
The IM must not impose excessive administrative costs to the manufacturers
Page 32
EuP – Ecodesign Requirements
Ecodesign requirements will be introduced through the implementing measures according to Annex I and Annex II of the Directive.
Annex I – generic ecodesign: requirements aiming to improve the overall performance of a product
Annex II – specific ecodesign: requirements on a selected environmental aspect of the product, such as energy consumption during its use
The Directive also allows for the adoption of no ecodesign requirements for specific cases.
If necessary, the Commission will adopt guidelines to accompany the ecodesign requirements.
Page 33
EuP – Working Plan
To be prepared by the Commission: After consultation with the Consultation Forum (Member States &
industry)
Within 2 years after the adoption of the EuPs Directive
What is the working plan? An indicative list of product groups
Implementing measures to be adopted on the basis of this indicative list
Three-year time span
List to be amended periodically
Page 34
EuP – Other Directives affected
Directives amended
92/42/EEC
96/57/EC
2000/55/EC
Directives repealed
78/170/EEC
86/594/EEC (existing national implementing measures will apply until IM under the EuPs Directive are adopted)
Page 35
EuP – Final Provisions
The Commission will be assisted by a regulatory Committee
A Consultation Forum with Member States’ representatives and industry will advise the Commission
The Commission will review the EuP Directive 5 years after its adoption
Member States will:
Transpose the EuP Directive within 2 years after its adoption
Determine penalties for non-compliance of the EuP Directive
Page 36
EuP – European Parliament I
Amendments proposed in April 2004 included:
Legal basis: introduce environmental basis in addition to internal market (not accepted)
Preliminary list of which products should be affected first included heating, electric motor systems, lighting, domestic appliances, office equipment, consumer electronics and HVAC systems
More information available to consumers on appliances by the manufacturer as well as instructions
Ecodesign board: environmental NGOs, consumers and manufacturers (partly accepted – Consultation Forum)
Page 37
EuP – European Parliament II
The Council’s Common Position included 23 out of the 78 proposed amendments:
Common Position to be formally sent to the EP on 12 December
Draft recommendations to be discussed in the Environment Committee before 17 February
Vote in the Committee on 14-15 March
Second reading text to be voted in plenary in April
Page 38
EuP – Common Position v COM(2003)453 I
Compared to the Commission proposal of August 2003, the Common Position:
Specifies 200,000 units/year of the EuP traded in the EU
Clarifies “potential for improvement” adding:
No EU legislation
Market forces failure
Similar EuP with different environmental performance
Page 39
EuP – Common Position v COM(2003)453 II
Includes a longer list of parameters to be taken into account adding:
The ECCP
Existing legislation in Member States
Proprietary technology
Administrative costs to manufacturers
Creates Consultation Forum
Provides that Working Plan with priority list will be adopted within 2 years after the adoption of the framework
Sets that priority measures will be adopted on EuP’s with high potential of GHG reduction (ECCP)
Page 40
EuP – Final adoption
Final adoption is expected no earlier than summer 2005
The proposed Directive lays down a framework no immediate legislation would need to be adopted
However, within the next few years, product groups will be selected on the basis of specific criteria legislative requirements to be adopted as a result
Page 41
EuP – Summary of Provisions
Certain EuP’s to be designed according to certain requirements
These requirements to be set out in future implementing measures (IM)
IM to be decided by regulatory committee of Member State officials
IM to cover only products sold in more than 200,000 units per year in the EU
Motor vehicles to be excluded
Products that conform to European or international standards to be considered compliant
Manufacturers of sub-components to provide information on the environmental impact of parts
Commission to set working plan to develop IM
Voluntary initiatives by the industry to be taken into account when preparing IM
Page 42
EuP – Reactions in the industry I
Business federations: IM only if market forces fail
Clarify link with WEEE, RoHS and IPP
Ensure involvement of stakeholders
Ensure enforceability of generic requirements
Orgalime (mechanical, electrical, electronic and metalworking industries):
Priority to voluntary measures
Proper involvement of industry
Against mandatory Life-Cycle Analysis
Page 43
EuP – Reactions in the industry II
UEAPME (crafts and SMEs employers in Europe):
Against an over-ambitious approach
Difficult for small enterprises to conduct Life-Cycle Analysis
Environmental NGOs:
Weak & generic
Against single framework Directive on ecodesign both for electrical and electronic equipment and for energy efficiency requirements
Page 45
Background
A single system to replace over 40 existing legal measures for gathering information, assessing risks to human health and the environment and authorizing or restricting the marketing and use of individual chemicals produced or supplied in the EU
To apply to the manufacture, import, placing on the market or use of substances, on their own, in preparations or in articles
If a substance does not fulfil the registration requirements set forth in the REACH proposal, its marketing in the EU will be prohibited: no data = no marketing
Page 46
Main Elements of REACH System
Registration
Evaluation
Autorisation
Reduced requirement for articles
Creation of a European Chemicals Agency
Page 47
The Story So Far
Internet consultations on draft text (May/July 2003)
Commission proposal (October 29, 2003)
First European Parliament report late 2003 (Environment Committee - Rapporteur Guido Sacconi, PSE, I). Second Sacconi report expected in February 2005 - First reading opinion expected by end 2005
Council first reading began in November 2003. Intensive work programme for proposal under Dutch Presidency - Political Agreement expected April 2005 (?)
Dialogue with Stakeholders has continued and continues. Stakeholder workshops held November 2003 and April 2004: Memorandum of Understanding between UNICE/CEFIC and Commission (results expected in March 2005)
Page 48
Competitiveness Council 25-26/11/04
Agreement that costs of REACH for business, especially for Small and Medium-Sized Enterprises (SMEs), are too high.
Recommends that Commission take steps to reduce bureaucracy involved in implementation of REACH to a minimum and urges effective cooperation between companies on data-sharing
Agreement on UK/Hungary proposal to introduce mandatory cost and data sharing in REACH registration stage: obligation to compensate firms which are forced to surrender commercial data for joint registrations. Industry disagrees with mandatory data-sharing, except for vertebrate testing.
Agreement on more information requirements for low volume substances. Industry dissatisfied with this proposal (cost of registration)
Council will express firmer approval after experts have completed further work on details (AHWG).
Page 49
Council Approach: efficient and fast-track
Ad hoc working group (AHWG) of representatives of national Competitiveness and Environment Ministries.
First stage: high-level reading of proposal to improve understanding, during which Commission explained text article by article and answered questions from Member States. Ccompleted mid-March 2004.
Second stage: AHWG focus on identifying issues for policy debates. Major proposals for cross-cutting tabled by Member States.
Workshop October 25-27, 2004 to review 36 impact studies published so far on costs and benefits (EU2004REACH report).
« Footnote paper » expected by end of 2004
Page 50
European Parliament: confused procedure
Resumed work in October 2004. 9 separate Committees expected to issue their Opinions.
Rapporteur Sacconi has expressed his support for Commission proposal and urged representatives of Member States not to make significant changes.
Inter-Committee stakeholder hearing (ENVI/ IMCO/ ITRE) on January 19, 2005
Sacconi’s second report expected by mid-February 2005
Environment Committee vote to take place during summer 2005 (?)
EP plenary 1st reading vote not expected before end 2005
Page 51
Further Impact Studies
Further specific studies on cost-effectiveness of REACH
Inclusive process, involving chemicals industry, downstream users, trade unions and NGOs
Transparent process of investigation and validation
Results expected in March 2005
EU industry hopes consultations will lead to redrafting of proposal. Commission does not plan to change proposal (?)
Identification of issues for further investigation
1. Substance withdrawal and chemicals supply chain
2. Impact on innovation
3. Impact on New Member States
Page 52
Industry Consortium Studiesof Supply-Chain and Innovation
Working Group meets about once a month - includes industry stakeholders, trade unions, environmental NGOs and Commission officials.
High-level Group (includes Commissioners and representatives of Council, EP, industry, trade unions and environmental NGOs - First meeting January 2005, after substantive requests have been received).
Supply-chain and innovation studies carried out by KPMG consultants for industry-consortium (expected March 2005)
Automotive industry
Hi-tech electronics
Inorganic materials (REACH Alliance)
Flexible packaging
Commission staff (JRC/IPTS) carry out study of New Member States
Page 53
Further developments
EC Interim Strategy: RIPs and SPORT
Reach Implementation Projects – RIPs
First EC attempt to identify implementation problems & draw up guidance to deal with them
Stakeholders involved (e.g. DUCC)
Strategic Partnership On Reach Testing – SPORT
For 9 substances go through registration/evauation procedure
Purpose: test the procedure, not the substance
Involvement of independent facilitators & all necessary actors
Started Sept 04 – end July 05
Page 54
2005 Timeline
January 19, 2005: EP Inter-Committee stakeholder hearing
February 2005: Sacconi report issued
March 2005: Industry consortium impact studies ready
April 2005: Council political agreement?
Summer 2005: EP Environment Committee vote
July-August 2005: SPORT results available
2nd half 2005: EP plenary 1st reading vote
Page 55
Specific requirements for articles
The Commission has softened its proposal since the Internet Consultation
Registration of any substance incorporated in an article when:
total amount present is over 1 metric ton per year and per article type;
classified as hazardous under Directive 67/548/EEC;
intended to be released during normal and foreseeable conditions of use.
Notification is required for substances in articles:
supplied in quantities over 1 metric ton per year and per article type;
classified as hazardous;
likely to be released during normal and foreseeable conditions of use (unintended);
quantity released may adversely affect human health or the environment;
Agency may decide on the basis of the notification that full registration is required for such substances.
Page 56
Specific requirements for articles
Article 6 of REACH and discrimination against non-EU
producers of articles : EC claims that obligations for substances in imported articles are
slightly easier than for articles produced in the EU;
importer of an article only has to consider substances classified as dangerous which may be released during use;
Article 6 becomes applicable only 11 years and 3 months after REACH comes into force;
EC guidance document on Substances in Articles will be developed.
Page 57
Council position on articles
Council questions workability and enforceability in particular where companies should be aware that dangerous substances are likely to be released from articles.
Some Member States point out that producers of articles in the EU may suffer competitive disadvantages in relation to importers of articles from non-EU producers.
Proposal to limit to only very high concern substances used in articles (CMRs, PBTs and vPvBs)
Discussion in AHWG to combine the information requirement limited to only substances of very high concern in articles with the extension of the “right to know” to professional customers.
Page 58
Case study: car industry
Manufacturers or importers, rather than the public authorities, responsible for ensuring that substances, and in certain instances substances in articles, are safe to use
Information up and down the supply chain: responsibility is shared between chemical manufacturers and downstream users (DU)
Car manufacturers consider as a DU / But in case a car manufacturer actually produces a substance/preparation, then he would be considered a producer and would have to abide with all the obligations provided for producers
Cars and car components which contain substances classified as hazardous have to be registered in quantities of 1 metric ton or more
Consortia of companies which collaborate to collect and supply data is encouraged
Duty to ensure that it is handled according to the chemical manufacturer’s recommended risk management measures
Page 59
Case study: car industry
Clarifications are necessary:
“intended to be released under normal and reasonably foreseeable conditions of use” in Article 6.1(c)
likely to be released…even if that release is not an intended function of the article” in Article 6.2(c)
Does it cover accidental leakage of substances (for instance during a car crash)?
Are car crashes excluded from “reasonably foreseeable condition of use”?
How to assess whether the quantity released may be of concern to human health or the environment ?
KPMG impact study would be important to address these issues (expected March 2005)