Background
The publication of the draft delegated act follows a process whereby stakeholders were invited to submit applications for specific product categories they believed should be exempt from these requirements.
What are the new exemptions?
Key proposed changes include:
- Good news for wearables manufacturers – The draft delegated act would create helpful new “partial” exemptions for wearables, provided they meet certain criteria, which we would expect many wearables to be able to demonstrate. The exemptions are partial because they would permit the removal and replacement of batteries by independent professional repairers, rather than end users.
- Clarifying the wet environment exemption –Wording would also be added to the wet environment partial exemption to confirm that wearable devices can fall within this exemption, as well as the new stand-alone wearables exemption.
- Alignment for toys – The draft delegated act also proposes aligning the EUBR with the new EU Toy Safety Regulation, with a new partial exemption for electric toys that incorporate rechargeable batteries, where due to the nature or size of the toy, the derogation is necessary to ensure the safety of the toy.
- Telematics – There is also a new partial exemption proposed for certain telematics devices incorporated into specific machinery, given the nature of these devices and the need to ensure they remain water- and shock-resistant.
Importantly, because the proposed exemptions are partial, products falling within these new exemptions (if adopted) will still need to be designed for battery removability and replaceability by an independent professional.
What else is changing?
In addition to the draft delegated act, the European Commission separately published proposed draft updates to the Article 11 guidance. There are two key helpful updates from this guidance:
- The updates to the section on the wet environment exemption state that “other examples of wet appliances specifically designed to operate in a wet environment are wearable devices, such as wireless earbuds, heart rate monitor straps, smart glasses,or watches, intended to be worn on the head, wrist, chest or hand, which meet the five indicators [required for the wet environment exemption]”.
- The draft amendments also include a helpful amendment that would support charging cases and power banks being out of scope of the removability requirements entirely. It states that “Article 11 only applies to products being placed on the market which incorporate portable batteries. In certain cases, it can be considered that the product constitutes a portable battery in itself, such as rechargeable power banks, charging cases for wearable products (e.g. earbuds) … and therefore Article 11 would not be applicable in the first place”.
If you would like to see a copy of these updates, please reach out to your usual Cooley products team contact.
What should I do next?
The consultation period is open for four weeks, with feedback due by 26 May. This is almost certainly the last chance for stakeholders to have their say on the scope of the Article 11 EUBR end-user battery removability and replaceability obligations before they take effect in February 2027.
If you have questions about the draft delegated act, the proposed exemptions or how to prepare an effective consultation response, please reach out to the authors of this post.
