Regulation (EU) 2023/1542 (hereinafter: BattVO) has been in force since August 17, 2023 and problems are becoming apparent in its application.
According to Annex I No. 3 of the BattVO, the mass fraction of lead in portable batteries may not exceed 0.01% (expressed as metallic lead) from August 18, 2024. However, a correct distinction between the categories of portable batteries and industrial batteries is absolutely essential, as from August 18, 2024, incorrect classification as an industrial battery with an excessively high lead content will result in a ban on distribution.
A portable battery is defined according to Art. 3 Para. 1 No. 9 BattVO as a battery
- which is encapsulated,
- weighs 5 kg or less,
- is not specifically designed for industrial use
- and which is not an electric vehicle battery,
- an LV battery or a starter battery.
For lead batteries weighing less than 5 kg, which are not encapsulated (and therefore cannot actually be portable batteries), This means for lead batteries weighing less than 5 kg, which are not encapsulated (and therefore cannot actually be portable batteries) that they only fall under the category of industrial batteries if they are “specially designed for industrial use".
The previous classification as an industrial battery under the old Battery Directive 2006/66/EC was based on the “industrial or commercial purpose” (see Art. 3 No. 6) or, under the German Battery Act, on the “industrial, commercial or agricultural purpose” (see § 2 No. 5 BattG). Which means, for example, batteries in some medical devices, in pasture fences or as an uninterruptible power supply (UPS) were previously clearly classified as industrial batteries.
However, these specific purposes in the definition have now been removed and have given way to an objective design criterion. It is therefore no longer important whether the battery is actually used in the industrial sector or sold to corresponding customers. The nature of the battery is the decisive criterion.
There is no definition of industrial use in the BattVO. According to the wording alone, a reference to the production of products could be necessary. However, this would severely limit the category of industrial batteries.
In contrast, recital (15) argues for a rather broad scope of application. According to this, the category of industrial batteries includes “a large group of batteries intended for industrial activities, communication infrastructure, agricultural activities or the production and distribution of electrical energy. (...) Beyond this non-exhaustive indicative list, all batteries weighing more than 5 kg that do not fall into any other category under this Regulation should be considered as industrial batteries.”
This indicates that there is still a lot of room for interpretation and argumentation when it comes to classifying batteries as industrial batteries. In individual cases, however, considerable legal uncertainties remain, as it is not yet possible to predict how the market surveillance authorities will handle the matter. It is therefore to be hoped that the Commission will further specify the understanding of the term in an interpretation paper in order to provide clarity here.
Author
Fully qualified lawyer Inken Green
Product & Material Compliance Expert
