EU Battery Regulation 2023: Lawyer advises on the EU BattVO

EU Battery Regulation 2023: Lawyer advises on the EU BattVO

The main objective of the new EU Battery Regulation is to conserve resources while ensuring climate and environmental protection. The background to this new EU Battery Regulation is the strategic importance of batteries in the context of the Green Deal, which aims to achieve climate neutrality by 2050. The EU Battery Regulation aims to regulate the entire life cycle of batteries and includes minimum requirements for extended producer responsibility, the collection and treatment of waste batteries and reporting. The directives of the new EU Battery Regulation aim to introduce due diligence obligations for economic operators who place batteries on the market or put them into service. In addition, the EU Battery Regulation lays down requirements for environmentally oriented public procurement in connection with batteries and battery-operated products. The EU Battery Regulation takes the form of a regulation instead of a directive, which means that the EU Battery Regulation is directly applicable in every member state of the European Union after a transitional period of six months. This helps to ensure a uniform legal framework in all member states. The EU Battery Regulation came into force on 17 August 2023. It includes important provisions such as the declaration of the carbon footprint of batteries, requirements for the replaceability of batteries during the lifetime of a product, minimum percentages for recycled materials in batteries and targets for the collection of waste batteries. The guidelines of the EU Battery Regulation also promote the recycling of batteries and set minimum targets for the recycling rates of certain materials. Furthermore, the labelling of batteries will be improved through the introduction of QR codes that provide access to various information. Batteries must also have an electronic record card (battery passport) to provide information for economic operators and recycling companies.

Finally, by 31 December 2027, the Commission will assess the feasibility of deposit systems for batteries, in particular for general purpose portable batteries, in order to evaluate potential benefits and take appropriate measures. The directives of the new EU Battery Regulation are an important step towards a sustainable future and demonstrate the European Union's commitment to protecting the environment and creating a harmonised legal framework for batteries in Europe.

EU Batterieverordnung: Anwalt berät zur EU BattVO

Obligations of producers according to the EU Battery Regulation 

According to the guidelines of the new EU Battery Regulation, a producer is anyone who produces a battery or has a battery developed or produced and markets this battery under their own name or trade mark or puts it into service for their own purposes. When placing a battery on the market and putting it into service, producers are obliged to ensure that the battery has been designed and manufactured in accordance with the requirements of the EU Battery Regulation. Furthermore, the producer must ensure that the battery is accompanied by clear and comprehensible operating instructions and safety information in an understandable language. The producer is also obliged to ensure that the battery is labelled in accordance with Art. 13 of the EU Battery Regulation.

Before placing a battery on the market or putting it into service, producers must prepare technical documentation and carry out a conformity assessment procedure or arrange for one to be carried out. Once the conformity assessment procedure has been successfully completed, the producer must affix the CE marking and draw up an EU declaration of conformity. Furthermore, the producer must ensure that the batteries he places on the market bear a model identifier and a batch or serial number or a product number or other means of identification. If this is not possible due to the size or type of battery, the required information must be indicated on the packaging or in a document accompanying the battery.

Furthermore, producers shall indicate on the battery their name, registered trade name or registered trade mark, postal address, indicating a central contact point, and, if available, the internet address and e-mail address, in accordance with the obligations of the EU Battery Regulation. If this is not possible, the required information shall be indicated on the packaging or in a document accompanying the battery. The contact details shall be in a language or languages easily understood by end-users and market surveillance authorities, as determined by the Member State in which the battery is placed on the market or put into service, and shall be clear, understandable and legible.

As a lawyer for the EU Battery Regulation, we can advise you on all of the producer's obligations under the new Battery Regulation.

Obligations of authorised representatives under the EU Battery Regulation

According to the directives of the new EU Battery Regulation, an authorised representative is a natural or legal person established in the Union who has been authorised in writing by the producer to perform certain tasks on the producer's behalf in fulfilment of the producer's obligations. The authorised representative can be appointed by written mandate from the producer. The authorised representative performs tasks assigned to him by the grower. The authorised representative has the appropriate means to perform the tasks. At the request of the market surveillance authority, the authorised representative shall provide a copy of the mandate. The authorised representative's mandate includes at least the provision of the EU declaration of conformity, the provision of necessary information and documents to a national authority to demonstrate the conformity of the battery and cooperation in all measures to eliminate the risks associated with the batteries belonging to the authorised representative's mandate. As an EU Battery Regulation lawyer, we can advise you on the obligations of the authorised representative under the new Battery Regulation.

Obligations of importers according to the EU Battery Regulation

According to the directives of the EU Battery Regulation, an importer is anyone who places a battery on the market from a third country. According to the new Battery Regulation, placing on the market is the first making available of a battery on the Union market. The importer may only place a battery on the market if it fulfils the requirements of the EU Battery Regulation. Before placing the battery on the market, the importer must ensure, among other things, that the producer has drawn up the EU Declaration of Conformity and the technical documentation and has carried out the relevant conformity assessment procedure and that the battery is labelled with the CE marking in accordance with the directives of the EU Battery Regulation.

Importers shall indicate on the battery their name, registered trade name or registered trade mark, postal address, indicating a single point of contact and, if available, the internet and e-mail address. If this is not possible, the required information shall be indicated on the packaging or in a document accompanying the battery.

Importers must keep the EU declaration of conformity at the disposal of national authorities for 10 years after the battery has been placed on the market and ensure that the technical documentation can be made available to those authorities on request. Importers shall also provide a national authority with all information and documentation necessary to demonstrate the conformity of the battery upon a reasoned request from that authority.

As a lawyer for the EU Battery Regulation, we will be happy to advise you on all the obligations of the importer under the new Battery Regulation.

Obligations of retailers according to the EU Battery Regulation

According to the guidelines of the EU Battery Regulation, a distributor is anyone who makes a battery available on the market with the exception of the producer or importer. Making available on the market means any supply of a battery for distribution or use on the Union market in the course of a commercial activity, whether in return for payment or free of charge. The EU Battery Regulation requires distributors to take due care when making batteries available on the market. Retailers must ensure that the manufacturer is entered in the manufacturer register and that the battery is labelled with the CE marking. Furthermore, the dealer must ensure that the battery is accompanied by the necessary documentation, operating instructions and safety information and that the producer and importer fulfil certain requirements. The EU Battery Regulation lists a number of examples where distributors are not permitted to make batteries available on the market. Overall, the dealer obligations set out in the Battery Regulation are very far-reaching. As an EU Battery Regulation lawyer, we advise retailers on the legally compliant provision of batteries on the market.

Obligations of fulfilment service providers in accordance with the EU Battery Regulation

Fulfilment service providers guarantee, in accordance with the guidelines of the new EU Battery Regulation for batteries which they handle, that the conditions during storage, packaging, addressing or dispatch do not impair the conformity of the batteries with the requirements specified in Articles 6 to 10 and 12, 13 and 14.

Retailer can be considered a producer ("producer fiction")

According to the directives of the EU Battery Regulation, producer fiction means that the importer or distributor is considered a producer and is subject to producer obligations if he places a battery on the market or puts it into service under his own name or trade mark or modifies a battery that has already been placed on the market or put into service in such a way that conformity with the relevant requirements of the EU Battery Regulation could be impaired or the distributor or producer changes the intended use of a battery that has already been placed on the market or put into service. We will be happy to advise you on the existence of producer fiction in accordance with the new EU Battery Regulation.

Registration and extended producer responsibility

As previously in national law (see the provisions of the Batteries Act - BattG), registration and extended producer responsibility are assigned central roles by the EU Battery Regulation.

Article 54 of the EU Battery Regulation regulates the responsibilities of the Member States with regard to the implementation and monitoring of the Regulation. According to this provision, each Member State must designate one or more authorities responsible for enforcing the obligations. In particular, these authorities monitor and verify that producers and producer responsibility organisations fulfil their obligations under the Regulation. In addition, each Member State may designate one of these authorities as a contact point for communication with the European Commission. Member States are also responsible for defining the organisational details and operational procedures of these authorities. This includes registration procedures for producers, the approval of producers and producer responsibility organisations, the monitoring of extended producer responsibility and the collection of data on batteries and waste batteries. Member States must notify the European Commission of the names and addresses of the designated competent authorities by 18 November 2025. Any changes to the names or addresses of these authorities must be notified to the Commission immediately. Article 54 of the EU Battery Regulation thus creates a clear framework for national implementation and cooperation with the European Commission in the context of the EU Battery Regulation.

Article 55 of the EU Battery Regulation sets out the details for a register of producers to be set up by Member States to monitor compliance with the Regulation by battery producers. Manufacturers must register in this register by submitting an application for registration in each Member State in which they place batteries on the market for the first time. This application is made electronically and contains various information such as the name and address of the producer, the type of batteries being placed on the market and details of the measures the producer is taking to fulfil its obligations. Depending on the battery category, manufacturers must provide certain information. For example, for portable and automotive batteries, they must demonstrate how they meet the collection obligations and, where applicable, provide the name and contact details of the organisation they have designated for extended producer responsibility. Member States may request additional information to ensure the efficiency of the register. If a manufacturer has designated a producer responsibility organisation, this organisation must also fulfil the requirements of the register. Registration may also be carried out on behalf of the manufacturer by an authorised representative for extended producer responsibility. The competent authority provides information on the application procedure. If a registration is granted, it will be processed within a maximum of 12 weeks. Fees may be charged if necessary. The authority may refuse or revoke the registration if required information is not submitted or if the manufacturer no longer fulfils the requirements. Changes to the registration must be reported immediately. If the register is not publicly accessible, platforms that enable consumers to conclude distance contracts with manufacturers must provide free access to the information.

Article 56 of the EU Battery Regulation lays down the basis for "extended producer responsibility" for batteries. According to this provision, producers who place batteries on the market of an EU Member State for the first time have an extended responsibility. This includes compliance with specific requirements under EU Directive 2008/98/EC and the provisions of the article itself. The responsibility also extends to companies that place prepared, reconditioned or remanufactured batteries on the market for the first time - they are also considered producers and must assume extended producer responsibility. To implement this regulation, manufacturers must appoint an authorised representative for extended producer responsibility in each Member State in which they sell batteries. This is done by written mandate. Financial contributions from producers cover various costs, including the separate collection, transport and treatment of waste batteries, the survey on the composition of collected waste, the provision of information on waste prevention and management and the collection of data for the competent authorities.

It is possible to set up a cost-sharing mechanism for reused batteries. This mechanism is based on an actual cost allocation to jointly bear the costs of collection, information and data collection. It should not be forgotten that the first producer to place the battery on the market does not have to bear any additional costs through this mechanism. The European Commission supports this process by facilitating the exchange of information and best practices between Member States on cost sharing mechanisms.

Article 57 of the EU Battery Regulation deals with the importance of producer responsibility organisations in battery management. In essence, this article allows producers to delegate certain extended producer responsibility responsibilities to approved organisations. Member States may even require that the appointment of such organisations is mandatory, in particular where this is justified by specific characteristics of certain battery categories and their waste management characteristics. In situations where several organisations are authorised to collectively assume extended producer responsibility, they must ensure that their activities cover the entire territory of the Member State. The coordination of these organisations is supervised by the competent authority or an independent third party to ensure effective compliance. A key aspect is that these organisations must ensure that manufacturers are treated equally, regardless of their origin or size. The financial contributions that manufacturers pay to these organisations are determined on the basis of various criteria, including the category and chemical composition of the batteries, their rechargeability, recycled content and carbon footprint. Confidentiality also plays a role, as producer responsibility organisations must ensure that internal company information or data associated with specific producers is treated confidentially. Furthermore, these organisations must publish annual information on separate collection rates for waste batteries, recycling efficiencies and recycling rates. This is done in a transparent manner. Business and trade secrets are protected. Another important step is the publication of information on the procedure for selecting waste managers. Care will be taken to ensure that the selection procedure is non-discriminatory, transparent and not excessively burdensome for small and medium-sized enterprises. The European Commission is authorised to adopt implementing acts in order to prevent distortions of the internal market. Criteria for the application of specific provisions are defined, but without determining the exact amount of the contributions.

Article 58 of the EU Battery Regulation lays down the provisions for the authorisation of extended producer responsibility. Producers fulfilling their obligations individually and designated producer responsibility organisations acting collectively must submit an application to the competent authority. Authorisation requires the fulfilment of certain requirements in accordance with Directive 2008/98/EC and the specific conditions of this chapter. The decisive factor for approval is that the manufacturer or producer responsibility organisation has taken appropriate measures to fulfil the obligations relating to batteries. This includes the collection of waste batteries, whereby it must be demonstrated that the collection targets can be met and maintained on a permanent basis. Member States shall regulate the details of the authorisation procedure, including specific requirements for individual and collective producer responsibility. Compliance is verified by the competent authority, possibly by an independent expert. The authorisation is revocable under certain conditions, in particular if the collection targets are not met or the necessary requirements are no longer met. A separate control system in accordance with Article 8a(3d) of Directive 2008/98/EC must be applied regularly, at least every three years or at the request of the authorities. This serves to verify compliance with the provisions and authorisation conditions. In the event of deficiencies, the competent authority may require a corrective action plan. Guarantees must be provided by manufacturers to cover the costs associated with non-compliance with their extended producer responsibility. Member States may lay down additional requirements regarding this financial guarantee. If public organisations exist, the guarantee may take the form of a public fund financed by contributions from producers. In this case, the Member State operating the organisation is jointly and severally liable.

Warning EU Battery Regulation

A warning notice under the EU Batteries Regulation is always issued if a provision of the Regulation has been breached. However, not every violation of the regulation can be penalised with a warning letter EU Battery Regulation. Only rules of market behaviour are subject to a warning under the EU Battery Regulation. Market conduct rules are statutory provisions that are also intended to regulate market behaviour in the interests of market participants if the infringement is likely to have a significant adverse effect on the interests of consumers, other market participants or competitors. Only such market behaviour rules are the subject of an EU Battery Regulation warning. As a lawyer for the EU Batteries Regulation, we will defend you against a warning notice under the EU Batteries Regulation and advise you on the legality of your competitors' actions so that you can also issue a warning notice under the EU Batteries Regulation if necessary. You can rely on our expertise as a lawyer for competition law.

Lawyer EU Battery Regulation – how can we support you?

As a lawyer for the EU Battery Regulation, we represent you in all questions and concerns relating to this regulation. Our work in the field of batteries has a long history and we have been advising our clients on issues relating to the Batteries Act for many years. The Batteries Act already contains numerous provisions that we can also draw on as a lawyer for the EU Batteries Regulation. Our experience from our advice on the Batteries Act helps us here. Give us a call, send us an e-mail or contact us using the following form for all questions relating to the EU Battery Regulation:

EU Batterieverordnung: Anwalt berät zur EU BattVO