Search for:

In brief

What has happened?

Since 18 February 2024, most parts of Regulation (EU) 2023/1542 concerning batteries and waste batteries (“Batteries Regulation“) apply in all EU Member States. The new Regulation repeals and replaces the existing Batteries Directive (2006/66/EC) and seeks to make all batteries placed on the EU market more durable, safe, sustainable, and efficient. It significantly expands the extended producer responsibility (EPR) regime created by the existing Directive by introducing more detailed mandatory design, content and conformity assessment requirements aimed at ensuring the sustainability and circularity of batteries. It also introduces, from August 2025 on, new mandatory supply chain due diligence requirements to address the social and environmental risks inherent in the extraction, processing and trading of certain raw materials and secondary raw materials used in battery manufacturing.


Given the fact that European regulations directly apply in all EU Member States, the Batteries Regulation did not need to be transposed into German national law. Nevertheless, the Batteries Regulation provides for a number of opening clauses for the national legislator. In addition, it contains specific regulatory mandates directed at the Member States. Consequently, German battery law still needs to be aligned with the Batteries Regulation.

To this end, the German Federal Ministry for the Environment, Nature Conservation, Nuclear Safety and Consumer Protection (BMUV) has recently published a draft for a so-called Battery Law Implementation Act (Batterierecht-Durchführungsgesetz, “BattDG“). Pursuant to the said draft, the BattDG – if adopted by the legislator as envisaged by BMUV – will enter into force on 18 August 2025. With effect from the same day, the current German Battery Act (Batteriegesetz) shall be repealed.

What does it mean for you?

As a general principle, the proposed BattDG only lays down rules if:

  • Certain specifications are necessary for the implementation of the directly applicable Batteries Regulation.
  • The Batteries Regulation itself requires the Member States to lay down national rules.
  • The Member States are given a margin of discretion with regard to specific regulations.

Against this background, the BattDG will consist of the following parts:

  • Part 1: General requirements
  • Part 2: Requirements for the management of waste batteries
  • Part 3: Determination of the authorities involved in the restriction procedure for substances
  • Part 4: Rules on the conformity of batteries
  • Part 5: Requirements regarding due diligence obligations in the supply chain
  • Part 6: Authorizations to issue ordinances
  • Part 7: Provisions on fines and final provisions

Against this background, the most relevant aspects of the current draft bill for a BattDG are as follows:

  • Art. 3 para. 1 no. 47 of the Batteries Regulation contains a detailed definition of the term “producer”. Sec. 3 no. 1 BattDG supplements this definition. To this end, the producer shall also mean any distributor who intentionally or negligently offers batteries from producers who are not, or whose authorized representatives are not duly authorized in accordance with Art. 55 of the Batteries Regulation in connection with Sec. 5 BattDG. This principle of “producer fiction” (Herstellerfiktion) intends to achieve self-regulation of the market in order to prevent large numbers of batteries from unregistered producers from being placed on the market.
  • According to Art. 57 para. 1 of the Batteries Regulation, Member States may adopt measures to make the appointment of a producer responsibility organization by producers mandatory.

Sec. 7 para. 1 BattDG makes use of this competence. Consequently, in Germany, producers of batteries will have to participate in a producer responsibility organization to ensure the nationwide take-back in each battery category. To this end, producers must specify the battery category and the maximum mass of batteries involved per calendar year. The producer responsibility organizations must immediately confirm participation to the producers in writing or electronically, stating the battery category and the maximum mass of batteries involved per calendar year. Similar organizations already exist for packaging and electrical and electronic equipment.

  • Pursuant to Art. 55 para. 6 of the Batteries Regulation, where a producer has appointed a producer responsibility organization, the registration obligations under Art. 55 of the Batteries Regulation shall be met by that organization unless otherwise specified by the Member State. The BattDG makes use of this opening clause and requires the producer to comply with the registration obligation also in cases in which a producer responsibility organization has been appointed (see Sec. 5 para. 1 BattDG).
  • Pursuant to Art. 59 para. 3 sentence 1 letter a) of the Batteries Regulation, producers of portable batteries or, where appointed, producer responsibility organizations shall attain and maintain permanently at least a collection target for waste portable batteries of 45 percent by 31 December 2023. In contrast, Sec. 13 para. 1 BattDG sets out that producer responsibility organizations must achieve a collection rate of at least 50 percent for waste portable batteries and maintain such collection rate on a permanent basis.
  • Art. 62 para. 1 and 2 of the Batteries Regulation set out various obligations for distributors of portable batteries and batteries for light means of transport (such as e-bikes and e-scooters). For example, distributors shall take back waste batteries from the end-user free of charge and without imposing an obligation on the end-user to buy or to have bought a new battery, regardless of their chemical composition, brand or origin. Sec. 14 BattDG sets out supplementary provisions in this regard. For example, according to Sec. 14 para. 3 BattDG, distributors are obliged to hand over returned waste portable batteries and waste batteries for light means of transport to a producer responsibility organization approved for the respective battery category. The distributor must conclude a contract with the producer responsibility organization for at least twelve months. Such contract may be terminated only with a three-month notice period before the end of the agreed term or, if no term has been agreed, with a three-month notice period before the end of the twelve months. If the notice period is not observed or no cancellation is declared, the term is extended by at least twelve further months.

Similar principles apply under Sec. 18 para. 3 BattDG with respect to distributors of starting, industrial and electric vehicle batteries.

  • The Batteries Regulation does not provide for a deposit return system for batteries. Instead, Art. 63 mandates that, by 31 December 2027, the Commission shall assess the feasibility and potential benefits of establishment of deposit return systems for batteries, in particular for portable batteries of general use.

In contrast, under Sec. 19 para. 1 BattDG distributors who supply starting batteries to end users are obliged to charge a deposit of EUR 7.50 including VAT per starting battery if the end user does not return an old starting battery at the time of purchasing a new one. The distributor who charged the deposit is obliged to refund the deposit when an old starting battery is returned. Note that this deposit return system for starting batteries is not an innovation by the BattDG. Sec. 10 of the current German Battery Act already provides for such a system.

Which actions should I take?

The draft Battery Law Implementation Act has not yet been introduced into the German Parliament. This is expected to take place within the next few months. During the legislative process, the German legislator may decide to amend the current text of the draft.

In any case, producers, importers and distributors of batteries, as well as fulfilment service providers and providers of online marketplaces, should start planning now for the potential impact of the current draft on their businesses. The BattDG will introduce significant and ambitious new requirements with respect to batteries, in particular as regards their distribution, collection, treatment and recycling.

It is advisable for all affected economic operators to review the current version of the legislation with a view to its bearing on their respective businesses, closely monitor the legislative process and make the legislature aware, e.g., via their business associations, of any disproportionate proposed requirements.

Author

Prof. Dr. Ulrich Ellinghaus joined Baker McKenzie in Frankfurt in 1996. He has extensive experience in regulatory law, with a focus on environmental, health & safety and product safety law. Ulrich is Head of the International Commercial & Trade Global Steering Committee Focus Group, Product Liability, Anti-Corruption and Compliance Liaison.

Author

Dr. Andreas Neumann is admitted as an attorney-at-law in the jurisdictions of Austria, Germany and New York. He is a member of Baker McKenzie’s Public Law Practice Group in Frankfurt. Prior to joining the Firm in October 2015, he gained four years of professional experience as an associate in one of Austria's leading business law firms. In this function, Andreas counseled major international enterprises in the pharmaceutical and telecommunication industries in trade law and regulatory matters. Andreas also spent nine months as a judicial clerk at various sections of the Salzburg District and Regional Court.

Write A Comment