Notification according to Article 95(4) and/or Article 95(5) of the EC Treaty

Request for authorisation to introduce national provisions deviating from a Community harmonisation measure

(Notification No 2002-NOTIF95.4-5-NL-2)

(2002/C 188/02)

(Text with EEA relevance)

1. On 3 May 2002 the Kingdom of the Netherlands notified the Commission of its intention to adopt national provisions regarding the marketing and use of creosote-treated wood deviating from those laid down in Council Directive 76/769/EEC(1), as amended by Directive 2001/90/EC(2). The Kingdom of the Netherlands invoked Article 95(4) and/or Article 95(5) of the EC Treaty for the request for authorisation.

2. Article 95(4) provides 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. 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".

4. According to Article 95(6), "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".

5. The draft national provisions are intended to prohibit the placing on the market and use of creosote-treated wood for applications involving contact with surface water and groundwater. The ban is also intended to apply to old treated wood intended for reuse.

6. It has to be recalled that pursuant Article 95(5) of the EC Treaty, on 25 January 2001 the Kingdom of the Netherlands notified national provisions identical to those mentioned above in relation to Directive 94/60/EC(3).

7. The introduction of those provisions was claimed to be necessary in the light of the environmental risks posed by creosote-treated wood in contact with surface water and groundwater and their particular significance in the Netherlands as a result of their specific hydro-geographical situation in connection with the extensive use of creosote-treated wood.

8. On 23 October 2001 Directive 2001/90/EC was adopted. By Decision of 23 January 2002(4), the Commission approved the national provisions notified by the Kingdom of the Netherlands pursuant to Article 95(6).

9. The Kingdom of the Netherlands claims that the introduction above national provisions is still necessary following the adoption of Directive 2001/90/EC as that Directive does not address the environmental concerns highlighted in the previous notification and recognised in the abovementioned Commission Decision. The Kingdom of the Netherlands further claims that the national provisions do not involve arbitrary discrimination, or a disguised barrier to trade between Member States, nor do they obstruct the operation of the internal market.

10. Possible observations submitted to the Commission later than one month after the publication of this notice in the Official Journal are in principle unlikely to be considered.

11. Further information regarding the request from the Kingdom of the Netherlands can be obtained from: J. L. H. M. Stoop Ministry of Housing, Planning and the Environment

(Ministerie van Volkshuisvesting, Ruimtelijk Ordening en Milieubeheer)

Directorate for International Legal Affairs Tel. (31-70) 339 38 09 E-mail: DJZ.Internationaal@minvrom.nl

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

Unit E3 "Chemicals"

AN88 4/39

B - 1049 Brussels Tel. (32-2) 295 12 65 Fax (32-2) 295 02 81 E-mail: giovanni.indirli@cec.eu.int

(1) OJ L 262, 27.9.1967, p. 201.

(2) OJ L 283, 27.10.2001, p. 41.

(3) OJ L 365, 31.12.1994, p. 1.

(4) OJ L 23, 25.1.2002, p. 37.