European Union Adopts a New Batteries Regulation

On 10 July 2023, the Council of the European Union approved the European Parliament's position on a new batteries and waste batteries regulation ('Batteries Regulation'). The Batteries Regulation is now awaiting its imminent publication in the European Union's Official Journal before entering into force. The new rules will cover the entire life cycle of all types of batteries sold in the European Union. Large companies that produce and place batteries in the EU market will face increased obligations, including due diligence obligations. 

1.  The overall context

This initiative was tabled by the Commission on 10 December 2020 and is part of the European Green Deal. Most of the obligations will not apply immediately after the entry into force of the Batteries Regulation but following a transitional period. The Current Batteries Directive will only be repealed as of 24 months after the entry into force of the Batteries Regulation.

This legislation aims to create a harmonized regulatory framework for batteries that deals with their entire life cycle by setting out rules on their sustainability, performance, safety, collection, recycling and second life, as well as information about batteries. 

2.  Main points

Here are some of its key provisions:

• New classification of batteries. The Batteries Regulation introduces new categories of batteries according to their use and design. Electric vehicles batteries and light means of transport batteries ('LMT batteries') (e.g., e-bikes and e-scooters) are expressly brought within the scope of the Batteries Regulation as separate categories.

  Battery cells or battery modules ready for end use shall be considered to have been placed on the market as batteries subject to the requirements applicable to the most similar battery category.

• Restrictions on hazardous substances. The Batteries Regulation restricts the use in batteries of certain substances listed in Annex I to the Batteries Regulation. This Annex I can be amended by the Commission through delegated acts if there is an unacceptable risk to human health or the environment that is not adequately controlled and needs to be addressed on an EU-wide basis. This could overlap with the restriction of chemicals under the REACH Regulation.
• Carbon footprint of certain batteries. To mitigate the impact of batteries on climate change, the Batteries Regulation requires rechargeable industrial batteries with a capacity greater than 2 kWh, LMT batteries and electric vehicle batteries: 
     
  1. To be accompanied by a carbon footprint declaration (until it becomes accessible via QR code). This declaration shall be drawn up for each battery model per manufacturing plant. The methodology for the calculation and verification of the carbon footprint will be provided for by delegated acts, but the essential elements are already set out in Annex II to the Batteries Regulation.
  2. To bear a label indicating the carbon footprint of the battery and the carbon footprint performance class of the relevant battery model per manufacturing plant. The Commission will establish carbon footprint performance classes and thresholds via a delegated act.
  3. To observe maximum life cycle carbon footprint thresholds. The declared life cycle carbon footprint value shall stay below the maximum life cycle carbon footprint threshold to be established by the Commission in a delegated act.
• Recovery of critical raw materials from batteries waste. The Batteries Regulation aims to promote the recovery of critical raw materials. In doing so, the objective is to reduce the EU's dependency on such materials. In order to attain this, the Batteries Regulation introduces the following requirements applicable to some industrial batteries, electric vehicle batteries, starting, lighting and ignition batteries ('SLI batteries') and LMT batteries (for this last category, the requirements will be applicable at a later stage):
  
  1.  Disclosure of information on recycled content of cobalt, lead, lithium and nickel. Relevant batteries shall be accompanied by documentation informing about:
  
  
  • Percentage share of cobalt, lithium or nickel present in active materials and that has been recovered from battery manufacturing waste or post-consumer waste; and
  • Percentage share of lead present in the battery and recovered from waste, for each battery model per year and per manufacturing plant.

  2.  Mandatory recycled content targets for cobalt, lead, lithium and nickel; and

       This will be applicable several months after the disclosure requirement.  The percentage share of these raw
       materials shall be measured against a methodology adopted by the Commission through delegated acts.

  This requirement is subject to third-party verification.

• Performance and durability requirements for certain batteries. Under the Batteries Regulation, portable batteries of general use (excluding button cells), rechargeable industrial batteries and LMT batteries shall comply with electrochemical performance and durability parameters set out in annexes to the Batteries Regulation. Electric vehicle batteries shall only be accompanied by a document informing about values for those parameters, but they will not be required to meet minimum values.

By the end of 2030, the Commission shall consider either the adoption of measures to phase out non-rechargeable portable batteries of general use or the setting of eco-design requirements.

• Removability and replaceability of batteries in products. As a general rule, operators placing on the market products incorporating portable batteries shall ensure that by 2027 these are 'readily removable' (i.e., without requiring specialised tools, unless provided free of charge) and replaceable by the end-user at any time during the product's lifetime. Likewise, operators shall ensure that LMT batteries as well as individual battery cells are readily removable and replaceable by an independent professional at any time. A portable or a LMT battery will be 'readily replaceable' if it can be substituted by another compatible battery without affecting the functioning, performance or safety of the appliance or light means of transport.
• Labelling and information requirements. By 2026, all batteries shall be labelled with some general information and marked with a separate collection symbol. At a later stage, by 2027, all batteries shall be marked with a QR code to access either: (a) a battery passport, for LMT batteries, some industrial batteries and electric vehicles batteries; or (b) the applicable information for other batteries.

Furthermore, (i) rechargeable portable batteries, LMT batteries and SLI batteries shall bear a label informing about charging capacity; (ii) non-rechargeable portable batteries shall bear a label informing about their minimum average duration when used in specific applications and say they are 'non-rechargeable'; (iii) batteries containing a minimum heavy metal content of cadmium or lead shall be marked with a symbol; and (iv) SLI batteries shall be marked with a QR code informing about the amount of recovered cobalt, lead, lithium or nickel.

The Batteries Regulation introduces another information requirement for stationary battery energy storage systems, LMT batteries and electric vehicle batteries using a battery management system. The end-user or any third party on their behalf shall be able to check the data stored in that system to determine the state of health and expected lifetime of their batteries, for purposes of evaluating the capability for further use, etc.

• Battery due diligence policies. The Batteries Regulation introduces an obligation for large economic operators placing batteries on the market or putting them into service to have a battery due diligence policy on responsible raw material sourcing, processing and trading, and to have it verified by a notified body and periodically audited.

  The due diligence policy shall concern raw materials and associated social and environmental risk categories listed in Annex X to the Batteries Regulation. Economic operators shall, inter alia:

  • Keep certain information regarding the supply chain (e.g., name and address of the supplier, country of origin of the raw material, additional information in some cases where the raw material originates from a conflict-affected and high-risk area).
  • Incorporate their battery due diligence policy into contracts with suppliers.
  • Identify risk of adverse impacts in their supply chain associated with the relevant risk categories, and take measures to prevent, mitigate or otherwise address those adverse impacts.
• Batteries waste management. The Batteries Regulation foresees end-of-life provisions on the basis that collection should be separate and maximized, and recycling should be efficient. Notably, it lays down provisions on a register of producers to be created at national level; extended producer responsibility; collection targets (the target for waste portable batteries is increased and a specific target is set for waste LMT batteries); take-back obligations; targets for recycling efficiency and for recovery of materials; shipment of waste batteries; reporting to the authorities, etc.
• Battery passport. LMT batteries, industrial batteries with a capacity greater than 2 kWh and electric vehicles batteries will be placed on the market or put into service with a battery passport with information relating to the battery model and specific to the individual battery. The information contained in the battery passport will only be accessible subject to some access requirements and rights.

  Lastly, throughout the Batteries Regulation there are special provisions on batteries that result from preparation for re-use, preparation for repurposing, repurposing or remanufacturing operations.

3.  Final observations

This revised framework is a welcome initiative to reduce the environmental impact (or risks?) of these products and to ensure a safe, circular and sustainable value chain for all batteries in the EU. Concerned companies will be ready to comply with the different requirements as they progressively become applicable after the entry into force of this legislation.