The EU Batteries Regulation: Taking Stock of the New EU Battery Requirements

More than a year ago, the EU Batteries Regulation (Regulation (EU) 2023/1542) entered into force.  In approximately one year’s time, the EU Batteries Regulation is set to repeal the 2006 Batteries Directive (Directive 2006/66/EC), with some exceptions. During the 2024 summer, a number of the new requirements under the EU Batteries Regulation have begun to apply.  With these points in mind, it is an opportune time to take stock of the new requirements being phased-in under the EU Batteries Regulation, consider the most recent requirements which begun to apply last month (August 2024), and assess the significant, and growing, impact the EU Batteries Regulation is having more generally.

Evolution and Background

The EU Batteries Regulation is a significant milestone in the EU’s drive towards a circular economy, and forms an important part of the EU Green Deal.  It was adopted following the EU Strategic Action Plan for Batteries, and is gradually phasing-out requirements under the 2006 EU Batteries Directive which, in turn, replaced the previous Batteries Directive (i.e. Council Directive 91/157/EEC).  However, in many ways the EU Batteries Regulation has signaled a significant departure from the now rather outdated 2006 Batteries Directive.  That is partly because batteries are no longer regarded as merely a product on the EU market necessary to regulate to ensure their safe use.  Instead, batteries – including their development and production – are regarded by the Commission as a “strategic imperative” in the clean energy transition[1] not least given the expected massive increase in demand.  Given the importance of batteries in the green transition, their role in achieving net-zero, and their intrinsic value to the EU economy – it is perhaps no surprise that the Batteries Regulation is wholly more comprehensive than the 2006 Batteries Directive, focused particularly on issues such as sustainability and environmental impacts – and also some ten times longer than the 2006 Batteries Directive. 

Aim

In essence, the EU Batteries Regulation establishes a harmonized legal framework for batteries aimed at, amongst other things: promoting the EU circular economy, reducing the environmental and social impacts of batteries, and moving towards strategic independence as regards battery production by striving to decouple from non-EU countries supplying raw materials.  At core, the Batteries Regulation is intended to effectuate significant change in the production, use and re-use/recovery/disposal of batteries so that batteries use minimal harmful substances, have a lower carbon footprint, are collected and recycled/reused more in the EU, and need less raw materials from non-EU countries.

Scope and Overview

The EU Batteries Regulation intends to regulate all types of batteries placed on the market and/or put into service in the EU/EEA. This includes batteries which are sold or supplied independently, and, in addition, those batteries contained within products. Batteries forming part of, for example: medical devices, in vitro diagnostic medical devices, electric vehicles, etc – are therefore generally in scope of the EU Batteries Regulation, and manufacturers and suppliers of these products containing batteries must ensure they comply with the EU Batteries Regulation.

The EU Batteries Regulation essentially divides batteries into 5 separate categories and other subcategories including: (1) portable batteries (including general / specific use); (2) starting, lighting and ignition batteries (SLI batteries); (3) light means of transport batteries (LMT batteries – e.g. those used in e-bikes and scooters), (4) electric vehicle batteries, and (5) industrial batteries, including stationary battery energy storage systems[2].[3] A number of the requirements set out in the EU Batteries Regulation only apply to batteries which fall a specific category.  In principle, the “no compliance - no market access” doctrine applies, meaning that if batteries do not comply with the sustainability and safety requirements, as well as the labelling, information and other relevant requirements set out in the EU Batteries Regulation, they cannot, per se, be placed on the market and/or put into service in the EU/EEA.[4] The EU Batteries Regulation contains numerous legal obligations, many of which apply to specific, and different, actors in the supply chain such as manufacturers, importers, distributors, etc.

The EU Batteries Regulation aims to regulate the entire lifecycle of batteries from manufacture to disposal and end-of-life.  The EU Batteries Regulation therefore includes, on the one hand, provisions on the manufacture, sale and supply of batteries in the EU/EEA. On the other hand, the EU Batteries Regulation lays down requirements regarding waste, disposal, recycling, and end-of-life issues.  Some of the core requirements under the new EU Batteries Regulation include:

• Information and labelling requirements
  • Battery passport
  • Battery Management System,g., state of health and expected lifetime
  • General labelling: QR code (the unique identifier in line with ISO 15459 etc), CE marking, separate collection symbol, instructions for safe use/storage, identification of manufacturer, battery category and details, date/place of manufacture, weight, chemical composition, instructions on mitigating fires/explosions, instructions on disposal, etc
  • Accompanying documentation e.g. declaration of conformity, technical documentation, due diligence reports, carbon footprint declarations on GHG emissions/removals, proof of recycled content, etc

• Sustainability and safety requirements
  • Performance and durability
  • Removability and replaceability – consumers as compared to professionals etc
  • Restricted substances – e.g. cadmium, lead, mercury, etc
  • Minimum recycled content – e.g. cobalt, nickel, lithium, etc
  • Due diligence and reporting regarding environmental and social impacts – e.g. cobalt, natural graphite, lithium, nickel, etc

• Other requirements
  • Collection and treatment of waste batteries
  • Extended Producer Responsibility (EPR)
  • Reporting
  • Complaints register
  • Green procurement
  • Traceability
  • Product withdrawals/recalls

The Most Recent Wave of EU Battery Requirements

As of 18 August 2024, a number of legal requirements under the new EU Batteries Regulation have begun to apply. This follows the provisions which have applied as of 18 February 2024. Some of the newly-applicable requirements, which began to apply as of 18 August 2024, include the following:

• The chapter of the Batteries Regulation on the obligations for economic operators becomes applicable, meaning that they need to comply with the sustainability, safety, labelling, marking and information requirements.
• Portable batteries, whether or not incorporated into appliances, must not contain more than 0,01 % of lead by weight. (This does not apply to portable zinc-air button cells until 18 August 2028.)
• Rechargeable industrial batteries with a capacity greater than 2 kWh, LMT batteries and EV batteries shall be accompanied by a document containing the values of the electrochemical performance and durability parameters, as well as technical documentation how the values were determined.
• Stationary battery energy storage systems, LMT batteries and EV batteries should include information in their battery management systems on parameters for determining the state of health and expected lifetime
• Stationary battery energy storage systems should have technical documentation confirming that these systems are safe during their operation and use.
• Certain conformity procedures come into effect in relation to most requirements, other than carbon footprint and recycled content. The manufacturer should draw up EU declaration of conformity and affix the CE marking confirming that the battery meets these applicable requirements.

Action

Companies manufacturing, supplying or involved in battery supply-chains, will need to stay up-to-date on the developments under the EU Batteries Regulation and related EU legislation.  Many of the most onerous legal requirements under the EU Batteries Regulation have not yet begun to apply, with important requirements deadlines upcoming: 18 February 2025, 18 August 2025 (e.g. Due Diligence), 18 February 2027 (e.g. Battery Passport), 18 June 2028, 18 August 2028, 31 December 2028, 18 August 2031, 18 August 2036.  Also, as a Framework Regulation, the Commission shall adopt secondary law, in the form of Delegated Acts and other measures, which companies must ensure compliance with, such as, for example ensuring access to information in the Battery Passport to persons with “legitimate interest” (including, potential competitors) as defined in the relevant Delegated Act.

Companies will need to understand the overlaps and links between, on the one hand, the EU Batteries Regulation and, on the other hand, other existing and future EU law.  This is particularly relevant – and problematic – for manufacturers and suppliers of products intended for the EU/EEA market which contain batteries (e.g. manufacturers and suppliers of electric vehicles, medical devices, etc).  As regards existing EU law, understanding the links between the new EU Batteries Regulation and EU law such as: (1) EU general product safety law and automotive law (e.g. General Product Safety Regulation (GPSR), Regulation (EU) 2024/1257, Regulation (EU) 2018/858, ELV etc); (2) EU chemical law (e.g. REACH, CLP, RoHS, etc); (3) EU waste law (e.g. Waste Framework Directive, ELV, WEEE, etc); and (4) other EU law (e.g. CSRD/CS3D, Critical Raw Materials Regulation, LVD, EMC, RED, etc) – can be complex.  As regards future EU law, understanding the links between the new EU Batteries Regulation and, for example, the proposed End-of-Life Vehicles Regulation, new EU chemical law, the ESPR and its Delegated Acts, and other EU law – can also be problematic.

Companies will also need to understand how requirements under the EU Batteries Regulation may be copied in other jurisdictions, and ensure that if and when a company puts together a compliance strategy designed for the EU/EEA market, that strategy can be extended to cover other (non-EU) jurisdictions.  Whether the new requirements in the EU Batteries Regulation will be copied in, for example, the UK – is currently an open question.  

Lastly, to achieve compliance with the new EU Batteries Regulation, in particular with the extensive information and documentation requirements – companies will need to have clear strategies in place to, amongst other things, engage: with their supply chain; collect data; identify data gaps; and retain/disclose/report data as legally necessary under the EU Batteries Regulation – all of which can be highly time-intensive, particularly in supply chains which extend outside of the EU/EEA. 

If companies fail to take these and other steps, ultimately batteries may not be compliant with the EU Batteries Regulation by the relevant deadlines and/or other relevant law – with potentially serious consequences for all companies in the supply web impacted.

For more information on the EU Batteries Regulation and other related EU/UK law, please contact Marcus Navin-Jones and Oleksii Yuzko.