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)

(2020/C 124/06)

1. By letter of 27 January 2020, which reached the Commission on 30 January 2020, the Kingdom of Denmark notified the Commission of its wish to maintain national provisions which set a lower limit for the cadmium content of commercial fertilisers than the harmonised limit values under Regulation (EU) 2019/1009 of the European Parliament and of the Council (1). The national provision concerned (Order No 223 of 5 April 1989 on the cadmium content of fertilisers containing phosphorus; Bekendtgørelse om indhold af cadmium i fosforholdig gødning, hereinafter ‘the national measure’) sets a 48 mg/kg phosphorus pentoxide limit value for commercial fertilisers containing phosphorus derived from mineral phosphate and with a total phosphorus content of 1 % or more (by weight). This would derogate from the limit value for cadmium as a pollutant in inorganic macronutrient fertilisers as referred to in Annex I, Part II, product function category (PFC) 1(C)(I): inorganic macronutrient fertiliser.

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today are set in Regulation (EC) No 2003/2003 of the European Parliament and the Council ( 3 ) , which will be repealed as of 16 July 2022 by Regulation (EU) 2019/1009.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). 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 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. The Kingdom of Denmark intends to maintain the national limit value of 48 mg/kg phosphorus pentoxide for cadmium, as set in the Annex to the national measure. The content of cadmium in fertilisers containing phosphorus has been regulated in Denmark since 1989. According to the Danish notification, the national measure regulates the sale for use in Denmark of commercial fertilisers containing phosphorus derived from mineral phosphate and with a total phosphorus content of 1 % or more (by weight). The Danish rules are of a general nature and apply both to domestic and imported phosphorus-based fertilisers.

4. The Kingdom of Denmark 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 the environment and human health from exposure to cadmium. Cadmium is a harmful heavy metal, which is absorbed in the environment by various crops and thus poses a risk to human health through exposure to cadmium via food. Cadmium may, in extreme cases, cause damage to the kidneys and bones.

5. The Kingdom of Denmark maintains, that exposure to and the input of cadmium into agricultural soils are generally lower in Denmark than the EU average thanks to a number of steps already initiated and implemented by the Kingdom of Denmark, including a series of targeted measures to reduce cadmium input into agricultural land from phosphorus fertilisers. Further, the Kingdom of Denmark considers there to still be a need to reduce exposure levels in Denmark.

6. The national measure sets a limit value for cadmium of 48 mg/kg phosphorus pentoxide in fertilisers sold for use in Denmark. Therefore, it does not prevent Danish companies from being able to purchase fertilisers in other countries with a view to selling them on, either in the internal market or in non-member countries. The Danish market for fertilisers is estimated to be 2-3 % of the entire European market. The national limit value for cadmium is estimated by the Kingdom of Denmark to not have caused any disruption to the internal market during the more than 20 years it has been in force. The Kingdom of Denmark estimates, that the cadmium input into agricultural land from commercial fertilisers in Denmark will increase if the Danish limit value is not maintained and the higher EU harmonised limit value of 60 mg Cd/kg phosphorus pentoxide applies instead. This is because commercial fertilisers with a higher cadmium content are likely to be marketed in Denmark, thus increasing the average cadmium content in the fertilisers used in the country.

7. 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.

8. The Commission will process the Danish 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 Danish provision the Commission has 6 months to approve or reject them. In this period the Commission shall verify whether the Danish 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 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.

9. Any party who wishes to provide comments on this notification must send them to the Commission within 30 days from the publication of this notice. The Commission reserves the right to communicate such comments to the notifying Member State. Any comment submitted after this period will not be taken into account.

10. Further details about the Danish notification can be obtained from: European Commission Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs DG GROW – Unit D2 Chemicals and Plastics Industries Tel. +32 22950708 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).