Notification according to Article 95(5) of the EC Treaty

Authorisation to introduce national legislation derogating from the provisions of a Community harmonisation measure

(2001/C 120/04)

(Text with EEA relevance)

1. On 25 January 2001 the Federal Republic of Germany notified draft national legislation intending to deviate from the provisions of Directive 76/769/EEC(1), as amended by Commission Directive 1999/51/EC(2), regarding the marketing and use of organostannic compounds (TBT).

2. Article 95(5) stipulates that if, after the adoption by the Council or by the Commission of a harmonisation measure, a Member State deems it necessary to introduce national provisions based on new scientific evidence relating to the protection of the environment or the working environment on grounds of a problem specific to the Member State arising after the adoption of the harmonisation measure, it shall notify the Commission of the envisaged provisions as well as the grounds for introducing them.

3. 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.

4. The draft national legislation intends to prohibit the use of organostannic compounds in anti-fouling paints for all types of ships as of 1 January 2003. Currently, the Directive establishes that organostannic compounds may only be used in anti-fouling paints providing for controlled release of active ingredients for ships of a length of more than 25 m that are not predominantly used on inland waterways and lakes. The Directive also establishes that these remaining uses are to be reviewed before 1 January 2003.

In addition, the draft national legislation intends to prohibit the use of organostannic compounds for wood preservation, for biocidal impregnation of heavy industrial textiles and yarns used for their production, and for biocidal impregnation of consumer products (within the definitions of the Foodstuffs and Consumer Products Act. Heavy industrial textiles and consumer products containing triorganic tin compounds with more than 1 mg tin/kg may not be placed on the market anymore. These uses are not mentioned in the Community Directive.

5. The German authorities justify their request by referring to the need to protect human health and the environment, which necessitates the transposition of the IMO Resolution A.895(21) of 25 November 1999 (ban of the use of organostannic compounds in anti-fouling paints as of 1 January 2003) into national law and the adoption of restrictions of uses other than those regulated in the Directive. The German authorities state that there is a specific situation in the "Deutsche Bucht" (part of the North Sea adjacent to Germany), where due to the extremely busy shipping routes to the great ports and the input through big rivers, concentrations of TBT in sediments are unacceptably high. During measurements in 1999 and 2000 organostannic compounds were also discovered in consumer products in doses that would lead to unacceptable exposure of consumers.

The Germany authorities further claim that the draft regulation does not involve arbitrary discrimination, or a disguised barrier to trade between Member States, nor does it obstruct the operation of the internal market.

6. Please note that the Commission in Decision 2000/509/EC(3) rejected draft national provisions notified according to Article 95(5) by the Kingdom of Belgium, which aimed at the introduction of national legislation derogating from the provisions of Directive 76/769/EEC as amended by Directive 1999/51/EC, by intending to ban the use of organostannic compounds in anti-fouling paints as of 1 January 2003.

7. Further information regarding the request from Germany can be obtained from: Prof. Dr. Armin Basler Bundesministerium für Umwelt, Naturschutz, und Reaktorsicherheit Referat IG II 4 Bernkasteler Straße 8 D - 53175 Bonn Tel. (49-18 88) 305 27 10 Fax (49-18 88) 305 35 24 e-mail: basler.armin@bmu.de

Contact point in the European Commission: European Commission Directorate-General for Enterprise

Unit E-3 Chemicals

Rue d'Arlon/Aarlensstraat 88 (4/6) B - 1000 Brussels Tel. (32-2) 295 58 82 Fax (32-2) 295 02 81 e-mail: chemicals-plastics@cec.eu.int

(1) OJ L 262, 27.9.1976, p. 201.

(2) OJ L 142, 5.6.1999, p. 22.

(3) OJ L 205, 12.8.2000, p. 7