Notification according to Article 95(4) of the EC Treaty of national legislation derogating from the provisions of a Community harmonisation measure

(No 2001-NOTIF95.4-SV-1)

(2002/C 23/05)

(Text with EEA relevance)

1. On 7 December 2001 the Kingdom of Sweden notified the Commission according to Article 95(4) of the Treaty establishing the European Communities that it deems it necessary to maintain national legislation deviating from the provisions of Council Directive 76/116/EEC of 18 December 1975 on the approximation of the laws of the Member States relating to fertilisers(1), as last amended by Directive 98/97/EC(2) of the European Parliament and of the Council of 22 December 1998 regarding the marketing in Austria, Finland and in Sweden of fertilisers containing cadmium.

2. 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.

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 national legislation prohibits on the territory of the Kingdom of Sweden the marketing and the transfer of fertilisers covered by customs tariffs numbers 2510, 2809, 2835, 3103 and 3105 containing cadmium at concentrations in excess of 100 grams per tonne of phosphorus. This value is mentioned in Article 3, third indent of the ordinance 1998:944 relating to the prohibition (...) in certain cases in connection with handling, import and export of chemical products.

5. The 1994 Act of Accession of the Kingdom of Sweden already granted a derogation to Sweden to temporarily maintain the abovementioned national provisions Article 112 and point 4 of Annex XII of the Act of Accession provide that Article 7 of Directive 76/116/EEC, in so far as it concerns the cadmium content of fertilisers, shall not apply to the Kingdom of Sweden before 1 January 1999.

6. Directive 76/116/EEC was subsequently amended by Directive 98/97/EC regarding the marketing in Austria, Finland and Sweden of fertilisers containing cadmium, allowing the Kingdom of Sweden to prohibit the marketing on its territory of fertilisers containing cadmium at concentrations in excess of that which was fixed nationally at the date of accession. This derogation applies for the period from 1 January 1999 until 31 December 2001.

7. On 14 September 2001, the Commission adopted a proposal for a regulation of the European Parliament and Council relating to fertilisers(3) which, inter alia, provides for an extension of the derogation mentioned above. According to Article 33 of this proposal, Sweden may prohibit the placing on the market on its territory of EC fertilisers containing cadmium at concentrations in excess of that which was fixed nationally at the date of Accession until 31 December 2004. The second paragraph of the same Article provides that the Commission shall, in consultation with Member States and interested parities, review by 30 June 2002 at the latest the need for establishing provisions at Community level concerning the cadmium content in fertilisers.

8. Sweden justifies its request on grounds relating to the human health and the environment. In support of the request, Sweden refers to the conclusion of the risk assessment report named "Assessment of risks to health and the environment in Sweden from cadmium in fertilisers" and published on 4 October 2000 by the National Chemicals Inspectorate which has been available to the public since September 2001 in the Commission website at:

http://europa.eu.int/comm/enterprise/chemicals/fertilizers/riskassest/reports.htm

9. Sweden maintains that if fertilisers with a higher cadmium content than today would be allowed, this would lead to a substantial increase of the cadmium concentrations in soils, that these high concentrations of cadmium in soils would lead to toxic effects on soil organisms, and that unacceptable concentrations could also appear in watercourses in agricultural regions.

In the view of the Swedish authorities, the risk assessment shows that if fertilisers with higher cadmium content than today would be allowed this would lead to a substantial increase in the dietary intake of cadmium. The safety margin between today's exposure and the WHO provisional tolerable weekly intake level is extremely small. For some high-risk groups, such as women with low body iron stores, there are no safety margins at all. A high dietary intake of cadmium could therefore lead to a larger number of people who could be affected by reduced kidney functions and increased osteoporosis.

10. In the light of the foregoing, the Kingdom of Sweden deems it necessary to maintain the above national provisions also after 31 December 2001 and at least until the Community has decided appropriate measures on the use of cadmium in fertilisers.

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

12. Further information regarding the request from the Kingdom of Sweden can be obtained from: Mats Wiberg Jordbruksdepartementet S - 103 33 Stockholm tel. (46-8) 405 10 00 fax (46-8) 20 64 96 e-mail: registrator@agriculture.ministry.se

Contact point in the European Commission: Philippe Brunerie European Commission Directorate General "Enterprise"

Unit E3 "Chemicals"

AN88 4/40

B - 1049 Brussels tel. (32-2) 295 21 99 fax (32-2) 295 02 81 e-mail: philippe.brunerie@cec.eu.int

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

(2) OJ L 18, 23.1.1999, p. 60.

(3) COM(2001) 508 final.