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 120/05)

(Text with EEA relevance)

1. 1. On 25 January 2001 the Kingdom of the Netherlands notified draft national legislation intending to deviate from the provisions of Council Directive 76/769/EEC(1) as amended by Directive 94/60/EC of the European Partiament and of the Council(2), regarding the marketing and use of creosote.

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 wood treated with creosote contact with surface water or groundwater, which according to the provisions of the Directive is allowed, provided the creosote contains less than 500 ppm Benzo-[a]-pyrene and less than 3 % water soluble phenols. The draft national legislation also intends to prohibit the reuse of old treated wood in contact with surface water or groundwater, which is not foreseen in the Directive.

5. The Dutch authorities justify their request by referring to the specific geographic situation of the Netherlands, and the results of risk assessments carried out in the course of the year 2000 and thus after adoption of Directive 94/60/EC. They 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 in Commission Decision 1999/832/EC(3), and following a request according to Article 95(4), the Commission has authorised the Kingdom of the Netherlands to maintain national legislation derogating from the provisions of Directive 76/769/EEC, as amended by Directive 94/60/EC, which existed prior to the adoption of that Directive. The national legislation approved, restricted the content of Benzo-[a]-pyrene to 50 ppm (whereas according to the Directive, creosote can contain up to 500 ppm under certain conditions) and also further restricted the use of treated wood.

7. Further information regarding the request from the Netherlands can be obtained from: Mr F. H. van den Bercken Ministerie van Volksverhuisvesting, Ruimtelijke Ordening en Milieubeheer Directoraat Generaal Milieubeheer Postbus 20951 2500 EZ Den Haag , Nederland Tel. (31-70) 339 49 64 Fax (31-70) 339 12 92 e-mail: frans.vandenbercken@minvrom.nl

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

Unit E-3 Chemicals

Rue d'Arlon/Aarlenstraat 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 365, 31.12.1994, p. 1.

(3) OJ L 329, 22.12.1999, p. 25.