EN Official Journal of the European Union C 132/71

Opinion of the European Economic and Social Committee on the ‘Proposal for a Regulation (EU) No …/… of the European Parliament and of the Council amending Regulation (EC) No 648/2004 as regards the use of phosphates and other phosphorous compounds in household laundry detergents’

COM(2010) 597 final — 2010/0298 (COD)

2011/C 132/12

Rapporteur working alone: Nikos LIOLIOS

On 10 and 24 November 2010 respectively, the European Parliament and the Council decided to consult the European Economic and Social Committee, under Article 114 of the Treaty on the Functioning of the European Union, on the

Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 648/2004 as regards the use of phosphates and other phosphorous compounds in household laundry detergents

COM(2010) 597 final — 2010/0298 (COD).

The Section for Agriculture, Rural Development and the Environment, which was responsible for preparing the Committee’s work on the subject, adopted its opinion on 28 February 2011.

At its 470th plenary session, held on 15 and 16 March 2011 (meeting of 15 March), the European Economic and Social Committee adopted the following opinion by 174 to one with nine abstentions.

1. Conclusions

1.1 The EESC recognises the need to review Regulation (EC) 648/2004 with respect to the limits on using phosphates and other phosphorous compounds in household laundry detergents, for the following reasons:

— Even if the phosphates present in detergents make only a rather small contribution to eutrophication compared with other sources, limiting their use seems to be the most effective policy option to reduce the risk of eutrophication across the European Union.

— It is absolutely essential to ensure a fully harmonised internal market in household laundry detergents so as to eliminate any additional cost for the industry and public authorities of market fragmentation and the need for mutual recognition of phosphate-containing detergents, whereby products may be imported and approved for use in one EU country, even if that country has legislation setting limits on phosphate levels, as long as they are legally available on the market of any other European Union country.

— National authorities in the Member States that have adopted legislation on phosphates in detergents in order to counter eutrophication are likely to have more problems implementing it, owing to their obligations under the mutual recognition provisions of Regulation No (EC) 764/2008.

— Harmonised action at EU level would be much more effective than multiple actions by the Member States.

1.2 The EESC welcomes the European Commission’s general approach, where the desired reduction in the risk of eutrophication in the aquatic environment is accompanied by a review of technical and socio-economic viability and of the implications of replacing phosphates for the effectiveness and performance of detergents.

1.2.1 In accordance with this reasoning, the EESC favours option 4, which advocates limits only on phosphates in household laundry detergents, not in automatic dishwasher (ADW) or industrial and institutional (I&) detergents.

1.3 The proposal does not add much that is new, but simply sets legal requirements at EU level and consolidates the existing downward trend in the use of phosphates and other phosphorous compounds in household laundry detergents. The EESC points to the Commission’s undertaking to minimise the environmental impact of this category of product that is in wide use. The proposal would be more cogent if the recommendations made by the EESC in this opinion were taken on board. The EESC recognises that by adopting, in general voluntarily, alternatives to phosphates, manufacturers of household laundry detergents have contributed substantially to limiting the environmental impact of their products.

1.4 The EESC believes that sufficient time must be given to adapt and prepare after the revision of Regulation (EC) 648/2004 on limiting phosphates and other phosphorous compounds in household laundry detergents and before implementation of the relevant provisions. The EESC believes that one to two years are needed, especially for small and medium-sized companies, to reformulate their products and make the changes required to their equipment and production processes.

2. Introduction

2.1 Phosphates, in particular sodium tripolyphosphate, are used in detergents to soften water so that the product can work more effectively. However, phosphates can have adverse effects on the aquatic environment and upset the ecological balance, contributing to the growth of algae, a phenomenon known as eutrophication. Although phosphates in detergents are only the third-largest contributor to the increase in phosphates in the aquatic environment, restricting the amount of phosphates in laundry detergents is regarded – from a technical and economic point of view – as the most effective way of reducing the risk of eutrophication.

2.2 Regulation (EC) No 648/2004 on detergents harmonises the placing on the market of detergents with respect to their labelling and the biodegradability of the surfactants they contain. In the light of concerns about eutrophication, Article 16 of the Regulation instructs the Commission, by 8 April 2007, to ‘evaluate, submit a report on and, where justified, present a legislative proposal on the use of phosphates with a view to their gradual phase-out or restriction to specific applications’. In its report, presented in 2007 (1), the Commission concluded that the state of knowledge concerning the contribution of phosphates in detergents to eutrophication was still incomplete, but was developing rapidly. Scientific studies subsequently carried out, as well as information on the economic and social impact of possible restrictions, formed the basis for the final impact assessment report (2), which analyses a number of policy options to address the use of phosphates in detergents.

2.3 The Commission initiated a series of studies to establish whether restrictions on phosphates in detergents would be justified to reduce eutrophication in the EU. These studies formed the basis for further consultations with the Member States, industry and non-governmental organisations, during meetings held by the working group of authorities responsible for implementing the detergents regulation (the ‘Detergents Working Group’) in November 2006, July and December 2007, July 2008 and February and November 2009.

2.3.1 A specific consultation of small and medium-sized detergent producers was held through the Enterprise Europe Network in 2009 in order to gain more insight into the current use of phosphates and alternatives when formulating detergents and into the impact of potential restrictions on phosphates for these SMEs.

2.3.2 The above-mentioned studies and consultations, together with the impact study, formed the factual basis for drawing up Commission proposal COM(2010) 597 amending Regulation (EC) No 648/2004, on which the opinion of the European Economic and Social Committee has been sought.

3. Main points of the commission document

3.1 The proposal concerns the amendment of Regulation (EC) No 648/2004 on detergents, introducing limits on the content of phosphates and other phosphorous compounds in household laundry detergents, in order to decrease the contribution of detergents to the overall eutrophication of EU surface waters, further to the findings from the evaluations and the impact assessment performed by the Commission pursuant to Article 16 of the regulation in question.

3.1.1 The general objective is to ensure a high level of protection of the environment from the potential adverse effects of phosphates and other phosphorous compounds in detergents and to ensure a well-functioning internal market for detergents.

3.2 Five policy options were considered in terms of their impact:

— Option 1: no action at EU level, leaving the responsibility to act to the Member States or to regional cooperation (baseline option)

— Option 2: voluntary action by industry

— Option 3: total ban on phosphates in detergents

— Option 4: restriction/limitation on phosphate content in laundry detergents

— Option 5: setting limit values for the content of phosphates in detergents

The impacts of the different policy options were analysed with reference to the findings from the scientific analysis of the contribution of phosphates in detergents to eutrophication risk in the EU, and to the criteria of effectiveness and efficiency (including practicality, socio-economic impacts and monitorability). The information came mainly from the above-mentioned studies and further direction consultation with stakeholders.

The evaluation and impact analysis of the options showed that introducing Europe-wide limits on the use of phosphates and other phosphorous compounds in household laundry detergents would reduce the contribution of phosphates to the risk of eutrophication in EU waters, while reducing the cost of removing phosphorous for waste water treatment plants. This cost reduction would far outweigh the cost of reformulating household detergents with alternatives to phosphates. On the other hand, restricting phosphates at EU level would not make sense at the moment for automatic dishwasher (ADW) detergents or for industrial and institutional (I&) detergents, because the available alternatives on the whole do not meet the more rigorous technical requirements in these applications.

4. General observations

4.1 The EESC welcomes the Commission proposal and, given the lack of alternatives that are satisfactory from a technical and economic point of view for categories of detergent other than household laundry detergents, endorses the introduction of limits on the use of phosphates and other phosphorous compounds for the time being in household laundry detergents only. However, as correctly provided for in the amendment to Article 16, limits must also be considered for phosphates in household automatic dishwasher detergents. Manufacturers are given ample time to examine existing alternatives or develop new ones and to make these technically and economically viable. Commission initiatives to consult stakeholders might help in encouraging industry to make progress towards this goal.

4.2 The EESC’s evaluation of the options is as follows:

— Options 1 and 2: although if current trends continue these would lead to a gradual reduction in the use of phosphates, they do not meet the goal of ensuring a well-functioning internal market for detergents. Of course a reversal in the trend towards substituting phosphates with other compounds, which would have negative effects on the environment, cannot be excluded.

— Option 3: although this looks like the most attractive option in terms of reducing eutrophication risk, it would not be advisable to implement it, firstly because it would lead to a disproportionate reduction in the performance of household automatic dishwasher detergents, for which there are currently no technically and economically feasible alternatives, and secondly because alternatives for phosphates in household laundry detergents sometimes include other chemical compounds that themselves contain phosphorous, specifically phosphonates, which although added in only small quantities, are very effective, both in terms of water-softening and in stabilising bleaching agents. It is thus impossible to completely eliminate phosphorous from detergents.

— Option 4: this is the most appropriate option, since it covers only household laundry detergents, for which alternatives are already available and widely used, while also setting a minimum permissible limit for phosphates that would allow the use of phosphonates, whose importance is explained in the preceding paragraph. Restricting phosphates in laundry detergents would be less effective in reducing eutrophication than option 3, since laundry detergents account for only 60 % of phosphate use. However, this option would give producers of household automatic dishwasher detergents sufficient time to develop alternatives that are technical and economically viable for this particular type of detergent. This option would also allow specifications to be harmonised at EU level and ensure the smooth functioning of the internal market in household laundry detergents, which at the moment is fragmented.

— Option 5: this last option may seem to broadly meet the goals (reduction of eutrophication and smooth functioning of the internal market for all categories of detergent), by setting different limits for laundry detergents, automatic dishwasher (ADW) detergents and industrial and institutional (I&) detergents. However, it would not be easy to reach agreement on the limit values for ADWs, and even less easy for I& detergents, owing to the multiplicity of technical requirements (many I& detergents were developed specifically for the industrial plant of a particular customer). Imposing any given limit value would be likely to prompt many derogation requests under Article 114 TFEU, with consequent red tape for national authorities and the Commission.

4.3 The EESC recognises that the risk of eutrophication is not the same in all the Member States and therefore welcomes the Commission’s proposal to retain the existing provisions, while amending them so as to allow the Member States to keep their national rules or introduce new ones on limiting the amount of phosphates or other phosphorous compounds contained in detergents other than household laundry detergents, where this is justifiable in order to protect the aquatic environment and provided alternatives are available that are technically and economically viable.

5. Specific comments

5.1 The EESC agrees with setting a limit of 0.5 % by weight for the content of phosphorous (P) in household laundry detergents, covering all phosphates and phosphorous-containing compounds. Specifying the limit in this way ensures that it will not be easy to violate the proposed ban on phosphates.

5.2 The EESC welcomes the Commission’s proposal to review at a later stage (after adoption of the proposal in question) the contribution of household automatic dishwasher detergents containing phosphates to the risk of eutrophication, to submit a report to the European Parliament and the Council and, if deemed appropriate, to propose restrictions on the phosphate content of these detergents. However, the EESC considers the five-year time frame for the report to be rather generous, and therefore recommends:

— that the report on the contribution of household automatic dishwasher detergents containing phosphates to the risk of eutrophication be completed within three years or even earlier if possible;

— that industrial sectors producing automatic dishwasher detergents and those producing alternative ingredients both be given information and encouragement with a view to their developing and enhancing existing, but possibly still imperfect, alternatives to phosphates and making these alternatives technically and economically viable;

— that, if the phosphates contained in automatic dishwasher detergents make only a small contribution to the risk of eutrophication, and at the same time no alternative has been found that would be satisfactory for consumers, a limit should be set on the phosphorous content expressed as a percentage per weight or grams per wash, a limit that is low enough not to be too harmful for the environment, but high enough to ensure that the detergent works effectively.

5.3 As regards the consistency of the Commission’s proposal with the policies pursued by other bodies and with EU goals, the EESC agrees with the Commission’s assessment, set out below, that the necessary coherence has been achieved to a satisfactory degree.

5.3.1 The proposal under discussion is fully consistent with the objectives of the Water Framework Directive (Directive 2000/60/EC), which requires Member States to achieve a good ecological and chemical status for surface water by 2015. There has been coordinated action by the Member States concerned and cooperation strategies at regional level in certain vulnerable regions of the EU, but progress to date has been slow. Thus the Commission’s proposal is a complementary measure that is essential to the success of activities that are part of regional cooperation initiatives to combat the cross-border problem of eutrophication.

5.3.2 The proposal also complements the Urban Waste Water Treatment Directive (91/271/EEC), which aims to limit concentrations of nutrients such as phosphorous and nitrogen in surface waters in order to counter eutrophication.

5.4 The Commission notes that the legal basis for the proposal is Article 114 of the Treaty on the Functioning of the European Union (TFEU), whose aim is to establish an internal market while ensuring a high level of protection of human health and the environment.

5.4.1 The Commission states that the subsidiarity principle as set out in Article 5(3) of the Treaty on European Union applies in so far as the proposal does not fall under the exclusive competence of the Union.

5.4.2 The Commission also states that the proposal does not go beyond what is necessary in order to achieve the intended objectives, in accordance with the principle of proportionality as set out in Article 5(4) of the Treaty on European Union.

5.4.3 Finally, the Commission concludes that the legal instrument must be a regulation, since the aim is to harmonise the level of phosphates and other phosphorous compounds contained in laundry detergents. The proposed regulation amends the existing regulation on detergents.

5.4.4 The EESC endorses the Commission’s approach. With a view to the proportionality principle also being upheld in the penalties provided for, the EESC makes the following recommendations:

— If when checks are carried out a household laundry detergent is found on the market with a phosphorous content of over 0,5 % but less than 2,0 %, and provided the formulation filed with the competent authorities gives a phosphorous content of less than 0,5 %, withdrawal of the product from the market should not be required (unless of course there is a risk to health), but only an administrative fine imposed. The fine can be progressive to reflect the amount by which permissible limit has been exceeded. It is likely that the 0,5 % limit will be exceeded, not deliberately, but because the formulator will probably also be legally producing phosphate-containing detergents for non-EU countries in the same plant, and minor contamination is possible despite measures taken to isolate production batches. It would be left to the Commission’s discretion to require a fuller account of any such incident from the producer, to prevent the proposed measure being used to infringe the 0,5 % limit. It should be noted that withdrawing products without serious reason (e.g. health, safety) could eventually lead to greater environmental stress owing to the repeated transportation, destruction of packaging and discarding of the product without it having been used as intended, despite being completely safe and fit for purpose.

— In cases where the phosphate content exceeds 2,0 % by weight, the penalties and measures provided for should be applied.

Brussels, 15 March 2011. The President of the European Economic and Social Committee Staffan NILSSON

(1) COM(2007) 234.

(2) SEC(2010) 1278.