# C_2006029EN.01000801.xml

| 4.2.2006 | EN | Official Journal of the European Union | C 29/8 |
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4.2.2006

EN

Official Journal of the European Union

C 29/8

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Notification according to Article 95(4) of the EC Treaty

Request for an authorisation to maintain national legislation derogating from the provisions of a Community Harmonisation Measure

(2006/C 29/04)

(Text with EEA relevance)

| 1. | On 5 December 2005 the Czech Republic notified a request to maintain the application of national legislation concerning the placing on the market of fertilizers containing cadmium. This legislation was in force before the date of accession of the Czech Republic to the European Union and deviates from the provisions of Regulation (EC) No 2003/2003 relating to fertilizers (1). |
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1.

On 5 December 2005 the Czech Republic notified a request to maintain the application of national legislation concerning the placing on the market of fertilizers containing cadmium. This legislation was in force before the date of accession of the Czech Republic to the European Union and deviates from the provisions of Regulation (EC) No 2003/2003 relating to fertilizers (1).

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| 2. | Upon accession to the European Union in May 2004, the Czech Republic had legally binding limit values for the concentration of cadmium in mineral fertilizers. However, no request to maintain the national measures was made at that time and, therefore, no derogation was granted in the Accession Treaty. |
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2.

Upon accession to the European Union in May 2004, the Czech Republic had legally binding limit values for the concentration of cadmium in mineral fertilizers. However, no request to maintain the national measures was made at that time and, therefore, no derogation was granted in the Accession Treaty.

| 3. | The national legislation (2) prohibits on the territory of the Czech Republic the marketing of phosphorous mineral fertilizers containing cadmium at concentrations in excess of 50 mg/kg P2O5. |
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3.

The national legislation (2) prohibits on the territory of the Czech Republic the marketing of phosphorous mineral fertilizers containing cadmium at concentrations in excess of 50 mg/kg P2O5.

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| 4. | According to Article 7 of Directive 76/116/EEC, as replaced by Article 5 of Regulation (EC) No 2003/2003 relating to fertilisers, Member States are not permitted on grounds of composition, identification, labelling or packaging, prohibit, restrict or hinder the marketing of fertilisers marked ‘EC fertilisers’ which comply with the provisions of this legislation. The Czech national limit on cadmium in fertilisers would be therefore in contradiction with the free circulation of ‘EC type’ fertilisers regulated by the abovementioned legislation. |
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4.

According to Article 7 of Directive 76/116/EEC, as replaced by Article 5 of Regulation (EC) No 2003/2003 relating to fertilisers, Member States are not permitted on grounds of composition, identification, labelling or packaging, prohibit, restrict or hinder the marketing of fertilisers marked ‘EC fertilisers’ which comply with the provisions of this legislation. The Czech national limit on cadmium in fertilisers would be therefore in contradiction with the free circulation of ‘EC type’ fertilisers regulated by the abovementioned legislation.

| 5. | Czech Decree 209/2005, in force since 1 June 2005, suspends the application of the existing national legislation to ‘EC type’ fertilisers and restricts the application of the limit on cadmium to national fertilisers. |
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5.

Czech Decree 209/2005, in force since 1 June 2005, suspends the application of the existing national legislation to ‘EC type’ fertilisers and restricts the application of the limit on cadmium to national fertilisers.

| 6. | Through the current notification, the Czech authorities request the Commission an authorisation to apply the existing limit on cadmium content also to ‘EC type’ fertilisers. |
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6.

Through the current notification, the Czech authorities request the Commission an authorisation to apply the existing limit on cadmium content also to ‘EC type’ fertilisers.

| 7. | Article 95(4) stipulates that if, after the adoption by the Council or by the Commission of a harmonisation measure, a Member State deems it necessary to maintain national provisions on grounds of major needs referred to in Article 30, or relating to the protection of the environment or the working environment, it shall notify the Commission of these provisions as well as the grounds for maintaining them. |
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7.

Article 95(4) stipulates that if, after the adoption by the Council or by the Commission of a harmonisation measure, a Member State deems it necessary to maintain national provisions on grounds of major needs referred to in Article 30, or relating to the protection of the environment or the working environment, it shall notify the Commission of these provisions as well as the grounds for maintaining them.

| 8. | The Commission shall, within six months of the notification approve or reject the national provisions involved after having verified whether or not they are a means of arbitrary discrimination or a disguised restriction to trade between Member States and whether or not they shall constitute an obstacle to the functioning of the internal market. |
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8.

The Commission shall, within six months of the notification approve or reject the national provisions involved after having verified whether or not they are a means of arbitrary discrimination or a disguised restriction to trade between Member States and whether or not they shall constitute an obstacle to the functioning of the internal market.

| 9. | The Czech authority justifies its request by referring to the conclusion of the risk assessment report named ‘Study to assess risks to the environment and health resulting from the use of phosphate fertilisers containing cadmium’, based on the methodology of ERM (3). According to this study, on the basis of the available data, the PEC value (Predicted Environmental Concentration) from cadmium in mineral fertilizers in the Czech republic, reaches 0,93 of the PNEC value (Predicted No Effect Concentration) for a fertiliser with a cadmium content of 50 mg Cd/kg P2O5 (the national limit predating accession to the EU). A risk to the environment would exist if that value exceeded 50mg. Moreover, an upper limit of 50 mg Cd/kg P2O5 is needed to prevent accumulation of cadmium in soil to a level which would pose a risk to the environment and to human health via the food-chain. |
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9.

The Czech authority justifies its request by referring to the conclusion of the risk assessment report named ‘Study to assess risks to the environment and health resulting from the use of phosphate fertilisers containing cadmium’, based on the methodology of ERM (3). According to this study, on the basis of the available data, the PEC value (Predicted Environmental Concentration) from cadmium in mineral fertilizers in the Czech republic, reaches 0,93 of the PNEC value (Predicted No Effect Concentration) for a fertiliser with a cadmium content of 50 mg Cd/kg P2O5 (the national limit predating accession to the EU). A risk to the environment would exist if that value exceeded 50mg. Moreover, an upper limit of 50 mg Cd/kg P2O5 is needed to prevent accumulation of cadmium in soil to a level which would pose a risk to the environment and to human health via the food-chain.

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| 10. | The Czech Republic therefore deems it necessary according to Article 95(4) of the Treaty establishing the European Community to maintain the national regulations concerning cadmium in fertilizers until EU legislation concerning cadmium in fertilizers is adopted. According to the Czech Republic, this national Regulation is justified by important grounds within the meaning of Article 30 of the Treaty establishing the European Community and in relation to environmental protection. |
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10.

The Czech Republic therefore deems it necessary according to Article 95(4) of the Treaty establishing the European Community to maintain the national regulations concerning cadmium in fertilizers until EU legislation concerning cadmium in fertilizers is adopted. According to the Czech Republic, this national Regulation is justified by important grounds within the meaning of Article 30 of the Treaty establishing the European Community and in relation to environmental protection.

| 11. | Possible observations on the notification thus made by the Czech Republic submitted to the Commission later than thirty days from the date of publication of this notice may not be taken into consideration. |
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11.

Possible observations on the notification thus made by the Czech Republic submitted to the Commission later than thirty days from the date of publication of this notice may not be taken into consideration.

| 12. | The full text of the risk assessment on cadmium in fertilisers in the Czech Republic is available at the Commission web-site at the following address:
  http://europa.eu.int/comm/enterprise/chemicals/legislation/fertilizers/cadmium/reports_en.htm |
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12.

The full text of the risk assessment on cadmium in fertilisers in the Czech Republic is available at the Commission web-site at the following address:

http://europa.eu.int/comm/enterprise/chemicals/legislation/fertilizers/cadmium/reports_en.htm

| 13. | Further information regarding the request from the Czech Republic can be obtained from:





  Ing. Michaela Budňáková |
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| Department of plant commodities |
| Ministry of Agriculture |
| Těšnov 17 |
| CZ-117 05 Prague 1 |
| Tel.: (420) 221 812 071 |
| Fax: (420) 221 812 951 |
| e-mail: Michaela.budnakova@mze.cz |

13.

Further information regarding the request from the Czech Republic can be obtained from:

Ing. Michaela Budňáková

Department of plant commodities

Ministry of Agriculture

Těšnov 17

CZ-117 05 Prague 1

Tel.: (420) 221 812 071

Fax: (420) 221 812 951

e-mail: Michaela.budnakova@mze.cz

Contact point in the European Commission:

| European Commission |
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| Directorate-General Enterprise and Industry |
| Mr Philippe Brunerie |
| Unit G2 Chemicals |
| Avenue des Nerviens 105 |
| B-1040 Brussels |
| Tel.: (32-2) 295 21 99 |
| Fax: (32-2) 295 02 81 |
| e-mail: Entr-Chemicals@cec.eu.int |

European Commission

Directorate-General Enterprise and Industry

Mr Philippe Brunerie

Unit G2 Chemicals

Avenue des Nerviens 105

B-1040 Brussels

Tel.: (32-2) 295 21 99

Fax: (32-2) 295 02 81

e-mail: Entr-Chemicals@cec.eu.int

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(1)  OJ L 304, 21.11.2003, p. 1.

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(2)  Decree No 474/2000 setting down requirements for fertilisers.

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(3)  ERM is a consultant which defined a methodology for cadmium risk assessments on behalf of the Commission.

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