Notification pursuant to Article 114, paragraph 4 of the Treaty on the Functioning of the European Union — Authorisation to maintain national measures which are more stringent than provisions of an EU harmonisation measure

(Text with EEA relevance)

(2019/C 394/02)

1. By letter of 7 August 2019, which reached the Commission on 9 August 2019, Slovakia notified the Commission of its wish to maintain a derogatory national provision on cadmium content in phosphate fertilisers. The national provision concerned (point 1 of Annex 3 to Slovak Ministry of Agriculture Decree No 577/2005 laying down the types of fertilisers, the composition, packaging and labelling of fertilisers, analytical methods for testing fertilisers, risk elements and their limit values for individual groups of fertilisers, permitted deviations and limits for agricultural fertilisers for the purposes of Act No 136/2000 on fertilisers) sets a limit value of 20 mg/kg phosphorus pentoxide for cadmium in fertilisers with a phosphorus content of more than 5 % phosphorus pentoxide. It would differ from point 3(a)(ii) in PFC 1(B) and point 2(a)(ii) in PFC 1(C)(I) in Part II of Annex I to Regulation (EU) 2019/1009 of the European Parliament and of the Council (1).

2. Harmonisation rules in the field of fertilisers were set for the first time in ’70-’80 ( 2 ) . The rules applicable today are set in Regulation (EC) No 2003/2003 of the European Parliament and the Council ( 3 ) , which will be repealed as of 16 July 2022 by Regulation (EU) 2019/1009. The application of the harmonisation rules set at EU level is optional. This means that a manufacturer has the possibility to choose between: (1) marketing the products under the harmonisation rules set at EU level; in such a case, these products are referred to as ‘harmonised products’ and move freely in the single market; (2) or marketing the products under the national provisions applicable in a Member State; these products are referred to as ‘non-harmonised products’ and may be marketed in another EU Member State based on Articles 34 to 36 of the Treaty on the Functioning of the EU (TFEU) and Regulation (EC) No 764/2008 of the European Parliament and of the Council (4). Based on Regulation (EC) No 2003/2003, a fertiliser belonging to a type of fertilisers listed in Annex I and complying with the conditions laid down in that Regulation, may be designated ‘EC fertiliser’ (harmonised products). Annex I to the Regulation lists different types of fertilisers, some of which have a phosphorus content of more than 5 % phosphorus pentoxide. Regulation (EC) No 2003/2003 sets no limit value for contaminants in EC fertilisers (harmonised products). It sets an obligation to Member States not to prohibit, restrict or hinder the placing on the market of compliant ‘EC fertiliser’, including on grounds of their composition, such as contaminants content. However, Member States’ national legislation may set mandatory limit values for contaminants, which are applicable to non-harmonised products. Regulation (EU) 2019/1009 sets harmonisation rules for EU fertilising products, which include more categories of products than the limitative list set in Annex I to Regulation (EC) No 2003/2003. It sets, for the first time at EU level, limit values for contaminants in harmonised products. The Regulation refers to ‘phosphate fertilisers’, which are inorganic macronutrient fertilisers or organo-mineral fertilisers with a phosphorus content of at least 5 % phosphorus pentoxide by mass. The limit value for cadmium in phosphate fertilisers is set of 60 mg/kg phosphorus pentoxide. Similarly to Regulation (EC) No 2003/2003, Member States must not impede the making available on the market of compliant EU fertilising products, for reasons relating to contaminants content. However, they may maintain or introduce any limit values deemed appropriate for contaminants in non-harmonised products.

3. Slovakia wishes to maintain the national limit value of 20 mg/kg phosphorus pentoxide for cadmium, as set in point 1 of Annex 3 of Decree No 577/2005 in relation to all fertilising products with a phosphorus content of at least 5 % phosphorus pentoxide by mass. In its letter dated 27 September 2019, Slovakia clarified that they introduced in the national legislation a limit value of 20 mg/kg phosphorus pentoxide for phosphorous fertilisers, compound fertilisers and fertilisers containing also trace elements as of 2005. This limit value is not applicable to EC fertilisers (harmonised products). Slovakia confirmed that their intention is to maintain this provision derogating from the limit value set for cadmium in phosphate fertilisers, both inorganic macronutrient fertilisers and organo-mineral fertilisers.

4. Slovakia analysed the expected national effects of the limit value of 60 mg/kg phosphorus pentoxide set in Regulation (EU) 2019/1009. This limit value raised important concerns as regards the protection of human health and of the environment. Cadmium is qualified as a carcinogenic substance, classified among the most toxic elements. Plants easily absorb cadmium and, in this way, cadmium enters into the food chain. Slovakia noticed an increase of cadmium content in children food. They emphasise the need to reduce further exposure to cadmium entering the body with food. The vast majority of phosphate fertilisers in the Slovak market are EC fertilisers (harmonised products). Nevertheless, the majority of fertilisers on the market have a cadmium content below the limit of 20 mg/kg phosphorus pentoxide. As 95 % of imported fertilisers respect already the 60 mg/kg phosphorus pentoxide limit value set in Regulation (EU) 2019/1009, Slovakia is concerned that the pattern of imports will not change in future and that there will be further accumulation of cadmium in soil and consequently transfer to the food chain. Slovakia also emphasises that there is no national producer of this type of fertilisers in Slovakia and therefore the national measure has no protectionist purpose.

5. The cadmium content in fertilisers has been addressed at different occasions at EU level given its negative effects on human health and on the environment. In recital (15) of Regulation (EC) No 2003/2003, the Commission intention to address the issue of unintentional cadmium content in mineral fertilisers was already announced. In 2016, the Commission adopted a proposal for a Regulation of the European Parliament and of the Council laying down rules on the making available on the market of CE marked fertilising products (5). The Commission proposed setting a limit value of 60 mg/kg phosphorus pentoxide for phosphate fertilisers and reducing gradually this limit value up to 20 mg/kg phosphorus pentoxide in 12 years after the application of the new Regulation. Following intense negotiations between the European Parliament and the Council, Regulation (EU) 2019/1009 adopted based on this proposal sets a limit value of 60 mg/kg phosphorus pentoxide applicable as of 16 July 2022. In addition, by 16 July 2026, the European Commission has an obligation to review the limit values for cadmium content in phosphate fertilisers, with a view to assessing the feasibility of reducing these limit values to a lower appropriate level. The Commission has to take into account environmental factors, in particular in the context of soil and climatic conditions, health factors, as well as socioeconomic factors, including considerations of security of supply.

6. The Commission will process the Slovak notification in accordance with Article 114(4) and (6) TFEU. Article 114(4) provides that if, after the adoption of an EU harmonisation measure, a Member State wishes to maintain its more stringent national provisions on grounds of major needs referred to in Article 36 TFEU or relating to the protection of the environment or the working environment, it shall notify them to the Commission indicating the reasons for maintaining them. Following the notification of the Slovak provision the Commission has 6 months to approve or reject it. In this period the Commission shall verify whether the Slovak provision can be considered a measure existing prior to harmonisation and derogating from the harmonisation rules. In the affirmative, the Commission will check if its maintenance is justified on grounds of major needs referred to in Article 36 TFEU or relating to the protection of the environment, and that it does not constitute a means of arbitrary discrimination or a disguised restriction on trade and does not create an unnecessary and disproportionate obstacle to the functioning of the internal market.

7. Any party who wishes to provide comments on this notification must send them to the Commission at the contact details mentioned below, within 30 days from the publication of this notice. Any comment submitted after this period will not be taken into account.

8. Further details about the Slovak notification can be obtained from: European Commission Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs DG GROW — Unit D2 Chemicals Tel. +3222950708

Email: grow-fertilising-products@ec.europa.eu

(1) Regulation (EU) 2019/1009 of the European Parliament and of the Council of 5 June 2019 laying down rules on the making available on the market of EU fertilising products and amending Regulations (EC) No 1069/2009 and (EC) No 1107/2009 and repealing Regulation (EC) No 2003/2003 (OJ L 170, 25.6.2019, p. 1).

(2) Council Directive 76/116/EEC of 18 December 1975 on the approximation of the laws of the Member States relating to fertilisers, OJ L 24, 30.1.1976, p. 21 and Council Directive 80/876/EEC of 15 July 1980 on the approximation of the laws of the Member States relating to straight ammonium nitrate fertilisers of high nitrogen content (OJ L 250, 23.9.1980, p. 7).

(3) Regulation (EC) No 2003/2003 of the European Parliament and of the Council of 13 October 2003 relating to fertilisers (OJ L 304, 21.11.2003, p. 1).

(4) Regulation (EC) No 764/2008 of the European Parliament and of the Council of 9 July 2008 laying down procedures relating to the application of certain national technical rules to products lawfully marketed in another Member State and repealing Decision No 3052/95/EC (OJ L 218, 13.8.2008, p. 21).

(5) COM/2016/0157 final — 2016/084 (COD).