COMMON POSITION (EC) No 30/94 adopted by the Council on 27 June 1994 with a view to adopting European Parliament and Council Directive 94/. . ./EC of . . . amending for the 15th time Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations (94/C 244/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 100a thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the Economic and Social Committee (2),

Acting in accordance with the procedure laid down in Article 189b of the Treaty (3),

Whereas Article 7a of the Treaty establishes an area without internal frontiers in which it must be possible for goods, persons, services and capital to move freely;

Whereas the progress of the internal market should gradually improve the quality of life, the health protection and the safety of consumers; whereas the measures proposed by this Directive are in line with the Council resolution of 9 November 1989 on future priorities for relaunching consumer protection policy (4);

Whereas certain substances and preparations used in aerosol generators are of a particularly flammable nature;

Whereas risks to consumers arise from the increasing use in aerosol generators of flammable substances in place of chlorofluorocarbons (CFC); whereas such risks are particularly acute in the case of aerosol generators intended for entertainment and decorative purposes;

Whereas these risks can be offset by adapting to technical progress Council Directive 75/324/EEC of 20 May 1975 on the harmonization of the laws of the Member States relating to aerosol dispensers (5) and thus limiting the use of flammable substances in aerosol generators intended for entertainment and decorative purposes;

Whereas the limits planned by one Member State on the marketing of certain aerosol generators intended for entertainment and decorative purposes directly affect the completion and functioning of the internal market; whereas it is therefore necessary to approximate the laws of the Member States in this field and consequently amend Annex I to Directive 76/769/EEC (6);

Whereas, according to the scope and effects of the proposed action, the Community measures envisaged by this Directive are not only necessary but also indispensable for the attainment of the stated objectives; whereas these objectives cannot be achieved by Member States individually and whereas, furthermore, their attainment at Community level is already provided for by Directive 76/769/EEC,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Annex I to Directive 76/769/EEC is hereby amended in accordance with the Annex hereto.

Article 2

1. Member States shall adopt the laws, regulations and administrative provisions necessary to comply with this Directive no later than:

- either six months after adoption of a Commission Directive adjusting Directive 75/324/EEC on aerosol dispensers to technical progress to cover all testing procedures used to certify the conformity of products with this Directive,

- or one year after the adoption of this Directive if that date is later than the first.

They shall apply these provisions six months after expiry of the relevant period.

2. When Member States adopt the provisions referred to in paragraph 1, they shall contain a reference to this Directive or shall be accompanied by such reference at the time of their official publication. The procedure for such reference shall be adopted by Member States.

Article 3

This Directive is addressed to the Member States.

Done at . . .

For the European Parliament

The President

For the Council

The President

(1) OJ No 306, 12. 11. 1993, p. 14.

(2) OJ No C 133, 16. 5. 1994, p. 15.

(3) Opinion of the European Parliament of 15 December 1993 (OJ No C 20, 24. 1. 1994, p. 77), Council common position of . . . (not yet published in the Official Journal) and Decision of the European Parliament of . . . (not yet published in the Official Journal).

(4) OJ No C 294, 23. 11. 1989, p. 1.

(5) OJ No L 147, 9. 6. 1975, p. 40, Directive as last amended by Directive 94/1/EC (OJ No L 23, 28. 1. 1994, p. 28).

(6) OJ No L 262, 27. 9. 1976, p. 201, Directive as last amended by Directive 91/339/EEC (OJ No L 186, 12. 7. 1991, p. 64).

ANNEX

>TABLE>

STATEMENT OF THE COUNCIL'S REASONS

I. Introduction

1. On 19 October 1993 the Commission submitted a proposal, based on Article 100a of the Treaty, amending for the 15th time Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangeroues substances and preparations.

2. The European Parliament delivered its opinion, without proposing any amendments, on 15 December 1993. The opinion of the Economic and Social Committe was delivered on 23 February 1994.

3. On 27 June 1994 the Council adopted its common position in accordance with Article 189b of the Treaty.

II. Purpose

The purpose of the proposal is to amend Annex I to Directive 76/769/EEC in order to impose limits on the use of flammable gases in aerosol dispensers intended for entertainment and decorative purposes, such as decorative snow, metallic glitter, etc. Such aerosols have caused a number of accidents in the Community, particularly when used by children close to a naked flame. The use of such flammable gases in particularly high-risk situations is therefore to be limited. However, a derogation is envisaged for aerosol dispensers which, although containing flammable gases, do not give rise to any flammability risk under normal conditions of use.

III. Analysis of the common position

The Council has basically followed the Commission proposal. It has, however, introduced a number of changes designed to ensure effective checking on the marketing and use of the products covered by the Directive. Thus:

1. On the grounds that the Directive cannot be implemented if there are no reliable tests, the Council has made its entry into force conditional on the Commission's adopting a Directive adjusting Directive 75/324/EEC on aerosol dispensers to technical progress stipulating the testing procedures required in order to certify conformity of products with this Directive. In practice, it is hoped that this will not delay the Directive's entry into force, since the discussions on testing procedures are already well-advanced (Article 2 (1)).

2. The restrictions on the use of flammable gases in aerosol dispensers applied to aerosols marketed and used in household situations. As use in household situations is difficult for the authorities to check, the Council found it more appropriate to refer to aerosols marketed and intended for sale to the general public (Annex, right-hand column, paragraph 1).

3. In order to tighten the restriction on sale to the general public, the Council added a requirement that packaging be labelled with the words 'For professional users only` (Annex, right-hand column, paragraph 2).

4. The derogation in the Commission proposal was worded on the lines of that in Article 9a of Directive 75/324/EEC on aerosol dispensers. The Council decided instead to refer directly to the Directive on aerosol dispensers in order to avoid differing derogations for the same products (Annex, right-hand column, paragraph 3).

5. Lastly, the Council added the standard formula prohibiting the placing on the market of products which do not conform with the requirements of the Directive (Annex, right-hand column, paragraph 4).

IV. Conclusions

The Council considers that the amendments which it has introduced have strengthened the Directive's objectives of protecting consumers from potentially dangerous products, by allowing the Directive to be implemented in a consistent and effective manner.