EU: Sustainable Requirements for Industrial & EV Batteries Proposed

Last December, the European Commission published its proposal for an EU Batteries Regulation. Currently a draft law pending scrutiny by the European Parliament and Council of the EU, Recital 13 of the Commission’s proposed Regulation details a new legislative intent to “lay down specific sustainability requirements for rechargeable industrial batteries and electric vehicle batteries [placed on the EU market] with internal storage with a capacity above 2 kWh”. This is on account of “such batteries represent[ing] the market segment which is expected to increase most in the coming years”.

What, then, of the requirements envisaged by the European Commission? There is quite an assortment, with the below giving a summary:

• Preparation and provision of a carbon footprint declaration (something that would first necessitate
  developing relevant and appropriate classifications for a battery manufacturer’s subsequent choice of class). The
  proposed regulation foresees rechargeable industrial and electric vehicle batteries being placed on the EU market:
  • “…accompanied by technical documentation that includes, for each battery model and batch per manufacturing plant, a carbon footprint declaration drawn up in accordance with [a delegated act] and containing, at least, the following information:

(a) administrative information about the producer
(b) information about the battery for which the declaration applies
(c) information about the geographic location of the battery manufacturing facility
(d) the total carbon footprint of the battery, calculated as kg of carbon dioxide equivalent
(e) the carbon footprint of the battery differentiated per life cycle stage
(f) the independent third party verification statement
(g) a web link to get access to a public version of the study supporting the carbon footprint declaration results”

• • Within the proposed regulation, the carbon footprint declaration requirement will apply to both rechargeable
    industrial and electric vehicle batteries from 1 July 2024, while the carbon footprint performance class requirements will apply from 1 January 2026 (and for both types of battery). There is also the related requirement that rechargeable industrial and electric vehicle batteries “shall bear a conspicuous, clearly legible and indelible label indicating the carbon footprint performance class that the individual battery corresponds to”. From 1 July 2027 onwards, rechargeable industrial and electric vehicle batteries shall additionally be accompanied by technical documentation demonstrating that the declared life cycle carbon footprint value is below a threshold value [said value is to be specified by the European Commission in a supplementary piece of legislation].
• For industrial batteries, electric vehicle batteries and/or automotive batteries with internal storage
  and a capacity above 2 kWh and containing one or more of cobalt, lead, lithium or nickel in “active
  materials”, accompanying technical documentation is to be prepared and supplied by the battery
  producer. The “battery producer” is any “manufacturer, importer or distributor who supplies a battery for
  the first time for distribution or use, including when incorporated into appliances or vehicles, within the territory
  of a Member State on a professional basis” while the accompanying technical documentation is to detail the amount of cobalt, lead, lithium and/or nickel recovered from waste present in active materials in each battery model and batch per manufacturing plant. This proposed requirement applies from 1 January 2027. In addition, tiered targets for minimum percentage shares of cobalt, lead, lithium, or nickel – as recovered from waste and present in active materials in each battery model and batch per manufacturing plant – will apply from 1 January 2030 and 1 January 2035. As an example, the target for cobalt derived from waste recovery and used in active materials is 12% in 2030 rising to 20% in 2035.
• Adherence to minimum values regarding electrochemical performance and durability. It appears that
  parameters are to be specified for:
  • Rated capacity (in Ah) and capacity fade (in %)
  • Power (in W) and power fade (in %)
  • Internal resistance (in Ohms) and internal resistance increase (in %)
  • Energy round trip efficiency and its fade (in %). “Energy round trip efficiency” is defined as “the ratio of
    the net energy delivered by a battery during a discharge test to the total energy required to restore the
    initial State of Charge by a standard charge”
  • An indication of their expected lifetime under the conditions for which they have been designed

Initially, the Commission is proposing that producers provide data relating to the above within accompanying
technical documentation (the proposal being that this should apply one year after the regulation enters into force) when supplying a relevant battery for the first time for distribution or use on the EU market. This technical documentation is to “contain an explanation of the technical specifications, standards and conditions used to measure, calculate or estimate the values for the electrochemical performance and durability parameters” that includes, but is not limited to:

1. Applied discharge rate and charge rate
2. Ratio between maximum allowed battery power (W) and battery energy (Wh)
3. Depth of discharge in the cycle-life test
4. Power capability at 80% and 20% state of charge
5. Any calculations performed with the measured parameters, if applicable

From 1 January 2026, the Commission is then proposing that rechargeable industrial batteries with internal storage and a capacity above 2 kWh shall meet certain minimum values, to be determined and laid down in a delegated act (i.e. in supplementary legislation).

• Rechargeable industrial batteries and electric vehicle batteries with internal storage and a capacity above 2 kWh shall include a battery management system containing data on what the Commission is calling “parameters for determining the state of health and expected lifetime of batteries”. These parameters encompass the following:
  • Parameters for determining the state of health of batteries:1. Remaining capacity
    2. Overall capacity fade
    3. Remaining power capability and power fade
    4. Remaining round trip efficiency
    5. Actual cooling demand
    6. Evolution of self-discharging rates
    7. Ohmic resistance and/or electrochemical impedance

• • Parameters for determining the expected lifetime of batteries:1. The dates of manufacturing of the battery and putting into service
    2. Energy throughput
    3. Capacity throughput

Access to the data in the battery management system “shall be provided on a non-discriminatory basis to the legal or natural person who has legally purchased the battery or any third party acting on their behalf at any time for the purpose of:

• • • evaluating the residual value of the battery and capability for further use
    • facilitating the reuse, repurposing or remanufacturing of the battery
    • making the battery available to independent aggregators or market participants through energy storage”
• The exercise of supply chain due diligence by economic operators that place rechargeable industrial batteries and electric vehicle batteries with internal storage and a capacity above 2 kWh on the EU market. The Commission anticipates this coming into effect one year on from the regulation entering into force, with economic operators additionally preparing and keeping documentation that demonstrates due diligence, including but not limited to the results of third-party verification carried out by notified bodies. Specifically, the Commission envisages economic operators:
  • adopting, and clearly communicating to suppliers and the public, a company policy for the supply chain
    of cobalt, natural graphite, lithium and nickel, also “chemical compounds based on [these] raw materials
  • incorporating in its supply chain policy standards consistent with the standards set out in the model supply
    chain policy in Annex II to the OECD’s Due Diligence Guidance for Responsible Supply Chains of Minerals
    from Conflict-Affected and High-Risk Areas Guidance
  • structuring its respective internal management systems to support supply chain due diligence by assigning
    responsibility to senior management to oversee the supply chain due diligence process as well as maintain
    records of those systems for a minimum of five years
  • establishing and operating a system of controls and transparency over the supply chain, including a chain
    of custody (CoC) or traceability system or the identification of upstream actors in the supply chain. The
    CoC or traceability system is to be supported by documentation that provides the following information:
    • description of the raw material, including its trade name and type;
    • name and address of the supplier
      that supplied the raw material present in the batteries to the economic operator that places on the
      market the batteries containing the raw material in question;
    • country of origin of the raw material
      and the market transactions from the raw material’s extraction to the immediate supplier to the
      economic operator; and
    • quantities of the raw material present in the battery placed on the market,
      expressed in percentage or weight.
  • incorporating its supply chain policy into contracts and agreements with suppliers, including their risk
    management measures
  • establishing a grievance mechanism as an early-warning risk awareness system or provide such mechanism
    through collaborative arrangements with other economic operators or organizations, or by facilitating
    recourse to an external expert or body, such as an ombudsman.

The Commission additionally foresees economic operators identifying and assessing the adverse impacts
associated with air, water, soil, biodiversity, human health, occupational health and safety, labor rights, human rights, and community life. Furthermore, economic operators are to “implement a strategy to respond to the identified risks designed so as to prevent or mitigate adverse impacts” with such a strategy likely to include, for example, implementing a risk management plan, monitoring and tracking performance of risk mitigation efforts, and reporting back to senior management, etc.

Regarding the above-mentioned third-party verification, the Commission foresees economic operators’ supply
chain due diligence policies being verified by notified bodies while economic operators are also to “[make available to] downstream purchasers all information gained and maintained pursuant to its supply chain due diligence policies with due regard for business confidentiality and other competitive concerns” and “on an annual basis, publicly report as widely as possible, including on the internet, on its supply chain due diligence policies”.

• For independent operators engaged with the repurposing and remanufacturing of industrial
  batteries and electric vehicle batteries, the Commission’s proposal is that “they shall be given access to
  the battery management system of rechargeable industrial batteries and electric vehicle batteries with internal storage with a capacity above 2 kWh, on equal terms and conditions, for the purpose of assessing and determining the state of health and remaining lifetime of batteries”. In addition, they “shall be given adequate access on equal terms and conditions, to the information relevant for the handling and testing of rechargeable industrial batteries and electric vehicle batteries, or of appliances and vehicles in which such batteries are incorporated as well as of components of such batteries, appliances or vehicles, including safety aspects”. On the independent operators’ part, they are to “ensure that the examination, performance testing, packing and shipment of batteries and their components is carried out following adequate quality control and safety instructions” while also “ensur[ing] that the repurposed or remanufactured battery complies with this regulation, relevant product, environmental and human health protection requirements in other legislation and technical requirements for its specific purpose of use when placed on the market”.
• Economic operators’ submission of data within a so-called “European Electronic Exchange System”. Data for submission is wide-ranging and detailed within Annex XIII to the Commission’s proposed Batteries Regulation. Examples are the manufacturing place and date, battery composition, including critical raw materials, expected battery lifetime expressed in cycles, and reference test(s) used. Such information is to be provided in a machine-readable format using interoperable and easily accessible data services.
• Electronic record-keeping (“passporting”). By 1 January 2026, each industrial battery and electric vehicle
  battery placed on the EU market or put into service and whose capacity is higher than 2 kWh shall have an
  electronic record (“battery passport”). The Commission envisages this as being unique for each individual battery
  linked to the information about the basic characteristics of each battery type and model stored in the data sources of the European Electronic Exchange System. The economic operator that places an industrial battery or an electric vehicle battery on the market is to ensure that the data included in the battery passport is accurate,
  complete and up to date while each battery passport is to be accessible online, through electronic systems
  interoperable with the European Electronic Exchange System.

The above represents both a detailed and ambitious list for regulatory change under a future EU Batteries Regulation. Of course, it should also be remembered that the above is specific to rechargeable industrial batteries and electric vehicle batteries with internal storage with a capacity above 2 kWh. The Commission’s proposal for a Batteries Regulation also includes requirements for many other types of battery placed on the EU market, including, for example, the future affixing of the CE marking to batteries by battery manufacturers.

As the Commission’s proposal moves through the EU’s ordinary legislative procedure in the coming months, it will be interesting to see what is retained, amended and discarded from the draft regulation and its annexes (of which there are currently 14 in number, and each reasonably detailed). Given what has been envisaged by the Commission – as legislative proposals go, it is a comprehensive overhaul and expansion of the current EU Batteries Directive – it will no doubt be subject to some fairly intense lobbying, not to mention long and involved discussions within and between the European Parliament, Council and the Commission.

For more information, see here.

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