Recharging EU regulations on batteries management

On 17 August 2023, the publication of Regulation (EU) 2023/1542 concerning batteries and waste batteries  (the Batteries Regulation) in the Official Journal of the European Union presented a new milestone for the European Green Deal. The new regulation amends Directive 2008/98/EC and Regulation (EU) 2019/1020, and repeals Directive 2006/66/EC (aka “the Batteries Directive”), as of August 2025 — although it won’t be generally applicable until 18 February 2024.

Implementing the ambitions of the EU’s Circular Economy Action Plan, the Batteries Regulation has been very welcomed. It’s the first legislative act that takes a full-lifecycle approach to battery management in a single regulation. It encompasses the sourcing, manufacturing, use, recycling, and — importantly — product-specific due diligence.

Without any doubt, the introduction of due diligence requirements for economic operators (companies manufacturing, importing, or distributing batteries) is one of the most innovative aspects of the Batteries Regulation. It covers companies involved in the commercialization of various types of batteries.

Types of batteries covered

• Portable batteries.
• Starting, lighting, and ignition batteries.
• Light means of transport batteries.
• Electric vehicle batteries.
• Industrial batteries.

In the EU, general requirements on due diligence relating to certain minerals and metals were introduced by Regulation (EU) 2017/821, but it didn’t specifically address the minerals and materials used for battery production. Even so, the list of conflict and high-risk areas identified therein are still relevant for the implementation of the battery due diligence provisions of the Batteries Regulation.

So, what do battery due diligence requirements mean for companies already preparing for the Corporate Sustainability Due Diligence Directive and the European Sustainability Reporting Standards?

The Batteries Regulation lays down obligations regarding battery due diligence policies for economic operators that had a net turnover of EUR 40 million or more in 2021, in view of the expected exponential growth in battery demand across the EU. The obligations economic operators will need to comply with, as of 18 August 2025, are twofold:

1. They will have to draft a battery due diligence policy concerning raw materials and associated social and environmental categories.
2. They will have to identify and assess the risk of adverse impacts in their battery supply chain as part of their management plan.

Battery due diligence policy

The battery due diligence policy will have to be clearly communicated to suppliers and the public, and need to include:

• Certain raw materials, including cobalt, natural graphite, lithium, nickel, and chemical compounds based on the raw materials mentioned, which are necessary for the manufacturing of the active materials of batteries.
• Associated social and environmental risk categories that include — among others — environment, climate, and human health. They must consider direct, indirect, and cumulative effects, human rights, labor rights, industrial relations, and community life, including that of indigenous peoples.

Economic operators will also have to incorporate standards that are consistent with those set out in internationally-recognized due diligence instruments, such as the International Bill of Human Rights and the UN Guiding Principles on Business and Human Rights, among others.

Other obligations imposed on economic operators

• Structuring their internal management system to assign responsibility to top level management to oversee their battery due diligence policy.
• Maintaining records of that system for a minimum of 10 years.
• Establishing and operating a system of controls and transparency regarding the supply chain, including a chain of custody or traceability system.
• Identifying upstream actors in the supply chain, supported by documentation.
• Incorporating the battery due diligence policy, including risk management measures, into contracts and agreements with suppliers.
• Establishing a grievance mechanism, including an early-warning risk-awareness system and a remediation mechanism.

The battery due diligence policy will have to be verified and periodically audited by a notified body — a conformity assessment body authorized by EU Member States to carry out conformity assessment tasks. Economic operators will also have to keep documentation demonstrating their fulfilment of these obligations, including verification and audit reports, for 10 years after the last battery manufactured under the relevant battery due diligence policy has been placed on the market.

Risk management obligations

As well as producing a battery due diligence policy, economic operators will have to identify and assess the risk of adverse impacts in their supply chain. This will have to be done in line with the social and environmental risk categories in the battery due diligence policy, including a set of subcategories within the environment and social categories, such as air, water, soil, biodiversity, hazardous substances, occupational health and safety, child and forced labor, and discrimination.

Once this first step has been completed (identification and assessment), economic operators will have to design and implement a strategy to respond to the identified risks to prevent, mitigate and otherwise address adverse impacts by:

• Reporting findings of their risk assessment to their top management level.
• Adopting risk management measures that are consistent with the internationally-recognized due diligence instruments.
• Designing and implementing a risk management plan.
• Monitoring and tracking performance of risk mitigation efforts.
• Reporting to top level management.
• Considering suspending or discontinuing engagement with a supplier or their subsidiary or subcontractor after failed attempts at mitigation.
• Undertaking additional fact and risk assessments for risks requiring mitigation, or after a change of circumstances.

When deciding to pursue risk mitigation efforts — whether while continuing or temporarily suspending trade — economic operators will have to consult with suppliers and stakeholders before establishing a strategy for measurable risk mitigation in the risk management plan.

Lastly, economic operators will also have to identify and assess the probability of adverse impacts in the risk categories in the supply chain as part of their own risk management systems.

It’s important to note that all the activities, processes, and systems used by economic operators to fulfil due diligence obligations will have to be verified by a notified third-party body. As a result, the notified body will issue a verification report that will record the activities undertaken by economic operators and their outcomes. The Regulation doesn’t currently specify the repercussions should the notified body deem policies to not fulfil all requirements, but we anticipate this would result in the necessity to reassess and redraft the policy.

Additional disclosure-related requirements

On a final note, the Batteries Regulation imposes some disclosure-related requirements that will help economic operators provide evidence that the battery due diligence obligations have been fulfilled.

For instance, there are various aspects of risk management and due diligence reporting that will have to be made available, upon request, to Member States’ market surveillance authorities or national authorities. These include:

• The notified body verification report and approval decision.
• Any other audited reports
• Evidence of compliance with a due diligence scheme recognized by the European Commission.

The same will go for all relevant information gained and maintained pursuant to the battery due diligence policy, which will have to be made available to the economic operators’ immediate downstream purchasers.

But the Batteries Regulation goes one step further by requiring economic operators to make a report on their battery due diligence policy publicly available on an annual basis, including on the internet. The report will have to contain the data and information on steps taken by economic operators to comply with the requirements, including findings of significant adverse impacts in the risk categories and how they’ve been addressed. That report will also need to cover access to information, public participation in decision-making and access to justice in environmental matters in relation to the sourcing, processing, and trading of the raw materials present in batteries.

Lastly, where economic operators can demonstrate that the raw materials present in the battery are derived from recycled sources, they will have to publicly disclose their conclusions in reasonable detail.

Non-compliance

As of 18 August 2025, the Batteries Regulation will require Member States to establish effective, proportionate, and dissuasive penalties applicable to infringements of the Batteries Regulation, including infringements of the battery due diligence requirements, and ensure that they are implemented.

Next steps

The adoption of the Batteries Regulation entails its direct application in all EU Member States. Therefore, Member States will soon start to adapt their legal systems to enable the implementation of the Batteries Regulation.

For example, Spain has already initiated a process of preliminary public consultation to address the modification of the existing Spanish regulatory framework on batteries and their waste, either through the modification of the existing Royal Decree 106/2008 on batteries and accumulators and their waste, or its repeal, and proposal of a new Royal Decree.

Economic operators had until 11 October 2023 to submit their comments on this consultation.

As we can see, the Batteries Regulation has made a strong entry into due diligence, pioneering the introduction of due diligence requirements for a specific product. This will allow economic operators to ensure they respect human rights and the environment, and ensure they don’t contribute to conflict. To assess the risks posed by their activities, economic operators can require additional information to their stakeholders, negotiate with a view to redress a particular situation, and even, when necessary, suspend or discontinue engagement with suppliers.

Also important to note in this regard is the newly updated 2023 version of the OECD Guidelines for Multinational Enterprises on Responsible Business Conduct. This can be used by economic operators as a guidance to seek recommendations for, among others, conducting due diligence on the impacts and business relationships regarding products and services.

So far, the EU has approached due diligence from a cross-cutting perspective. The Batteries Regulation is a clear indicator of how this trend is likely to shift towards the incorporation of due diligence requirements for specific product categories. This will inevitably strengthen the legal framework for due diligence, empowering the convergence with the traditional Environmental, Health, and Safety (EHS) requirements, and creating more awareness for economic operators and all stakeholders involved.