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COMMON POSITION (EC) No 22/2005

adopted by the Council on 4 April 2005

with a view to adopting Directive 2005/.../EC of the European Parliament and of the Council of ... amending for the 22nd time Council Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations (phthalates in toys and childcare articles)

(2005/C 144 E/04)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 95 thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the European Economic and Social Committee (2),

Acting in accordance with the procedure laid down in Article 251 of the Treaty (3),

Whereas:

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Directive 76/769/EEC is hereby amended as follows:

Article 2

The Commission shall re-evaluate, by ... (14) at the latest, the measures provided for in Directive 76/769/EEC as amended by this Directive in the light of new scientific information on substances described in the Annex to this Directive and their substitutes, and if justified, these measures shall be modified accordingly.

Article 3

1.   By ... (15) Member States shall adopt and publish the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith inform the Commission thereof.

They shall apply these measures from ... (16).

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member States.

2.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 4

This Directive shall enter into force on the twentieth day following its publication in the Official Journal of the European Union.

Article 5

This Directive is addressed to the Member States.

Done at Brussels,

For the European Parliament

The President

...

For the Council

The President

...

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(1)OJ C 116 E, 26.4.2000, p. 14.

(2)OJ C 117, 26.4.2000, p. 59.

(3)  Opinion of the European Parliament of 6 July 2000 (OJ C 121, 24.4.2001, p. 410), Council Common Position of 4 April 2005 and Position of the European Parliament of ... (not yet published in the Official Journal).

(4)OJ L 217, 5.8.1998, p. 35.

(5)OJ L 315, 9.12.1999, p. 46. Decision as last amended by Decision 2004/781/EC (OJ L 344, 20.11.2004, p. 35).

(6)OJ L 228, 11.8.1992, p. 24. Directive repealed by Directive 2001/95/EC of the European Parliament and of the Council (OJ L 11, 15.1.2002, p. 4).

(7)OJ L 262, 27.9.1976, p. 201. Directive as last amended by Commission Directive 2004/98/EC (OJ L 305, 1.10.2004, p. 63).

(8)OJ 196, 16.8.1967, p. 1. Directive as last amended by Commission Directive 2004/73/EC (OJ L 152, 30.4.2004, p. 1).

(9)OJ C 321, 31.12.2003, p. 1.

(10)OJ L 84, 5.4.1993, p. 1. Regulation as amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council (OJ L 284, 31.10.2003, p. 1).

(11)OJ L 183, 29.6.1989, p. 1. Directive as amended by Regulation (EC) No 1882/2003.

(12)OJ L 196, 26.7.1990, p. 1. Directive repealed by Directive 2004/37/EC of the European Parliament and of the Council (OJ L 158, 30.4.2004, p. 50).

(13)OJ L 131, 5.5. 1998, p. 11.

(14)  Four years after entry into force of this Directive.

(15)  Six months after entry into force of this Directive.

(16)  Twelve months after entry into force of this Directive.

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ANNEX

The following points shall be added to Annex I to Directive 76/769/EEC:

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STATEMENT OF THE COUNCIL REASONS

I.   INTRODUCTION

The Commission submitted to the Council and to the European Parliament its proposal for amending for the 22nd time Directive 76/769/EEC on 24 November 1999 (1), based on Article 95 of the EC Treaty.

The European Economic and Social Committee delivered an opinion on 15 February 2000 (2).

The European Parliament completed its first reading and delivered an opinion on 6 July 2000 (3).

On 4 April 2005, the Council adopted its Common Position as set out in Document 5467/05.

II.   OBJECTIVE

The draft Directive relates to the marketing and use of toys and childcare articles containing phthalates. In its original form it foresaw prohibition of six different phthalates in toys and childcare articles containing PVC and intended to be put in the mouth by children under the age of three years.

The European Parliament, in its first reading, adopted a resolution on phthalates and toy safety proposing some amendments to the Commission proposal. The main amendments are the following:

On 25 May 2000, the Council examined the file but was not able to reach agreement on a common position.

Meanwhile, the results of new risk assessments had become available, and it seemed desirable to strengthen some of the original provisions, in line with what the European Parliament had concluded. On 24 September 2004, the Council reached a political agreement by unanimity on the draft Directive, amending for the 22nd time Directive 76/769/EEC, as set out in Annex I to Document 12469/04.

III.   ANALYSIS OF THE COMMON POSITION AS SET OUT IN DOCUMENT 5467/05

1.   General

Though not incorporating all amendments of the European Parliament, the common position broadens considerably the scope of the ban, by replacing labelling with an outright ban and ensures legal certainty by clearly defining the items which fall within the scope of the ban (a definition of childcare article, identical to the one contained in the Toys Decision (4), has been added).

Amendments 1, 3, 4, 6 and 8 have been accepted in principle, though redrafted.

Amendments 18, 2, 5, 11, 24, 7, 17/rev., 16 and 9 have not been deemed acceptable.

2.   New elements contained in the Common Position as compared with the Commission proposal

Recitals 3, 4 and 7 have undergone minor drafting changes, mostly of a legal nature. New recitals 6 and 9 to 15 have been added, to indicate that a temporary ban is already in force and to clarify the relationship between the phthalates to be banned, the precautionary principle and the risk assessment procedures.

The definition of 'childcare article' has been introduced in the new Article 1(1).

Article 2 has been redrafted to introduce the obligation for the Commission to review these measures within four years from their entry into force.

Article 3 has been redrafted to comply with the guidelines on drafting legislative texts, and to add the obligation for Member States to notify the transposition measures to the Commission.

In the Annex, the scope of the ban has been clarified, by extending it, for DEHP, DBP and BBP, to all toys and childcare articles; for DINP, DIDP and DNOP, the ban will cover toys and childcare articles intended for children under three years of age and which can be placed in the mouth by them. In both cases, it has been clarified that the concentration limit of 0,1 % of the mass applies to the plasticised material mass, so that in case of items which include both plasticised material and other components, it remains applicable in full to the plasticised part only.

IV.   CONCLUSION

The Council, through its Common Position, wishes to move forward in the same direction as the European Parliament, by significantly broadening the scope of the ban, replacing labelling with an outright ban. The Council believes that this will greatly assist towards adopting a permanent ban, subject to a continuous review, leading to an even broader ban, should new scientific evidence arise after its entry into force.

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(1)OJ C 116 E, 26.4.2000, p. 14.

(2)OJ C 117, 26.4.2000, p. 17.

(3)OJ C 121, 24.4.2001, p. 410.

(4)  Commission Decision 1999/815/EC (OJ L 315, 9.12.1999, p. 46).

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