PROPOSAL FOR A COUNCIL DIRECTIVE AMENDING FOR THE TENTH 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
Date: 1989-11-10
Institutions: European Commission
Subjects: approximation of laws, cadmium, dangerous substance, marketing, metal pollution

COMMISSION  OF  THE  EUROPEAN  COMMUNITIES 

C0M(89) 548 final - SYN 224 

Brussels/!!} November  1989 

Proposal  for a 

COUNCIL  DIRECTIVE 

amending  for the tenth 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 

(presented  by the  Commission) 

Explanatory «eooraudui 

1.  Kim of the Directive 

This  is the restriction of  the marketing  and use of  certain dangerous 

substances and preparations. 

It will contribute to: 

-  improved protection of man and of environment, 

-  improved  functioning  of  the  internal  market  through  the  imposition 

of  the  same  restrictions  throughout  this  area  without  internal 

frontiers. 

?. Factors taken into consideration 

The following factors were taken into consideration when the proposal for 

a Directive was being drawn up: 

- cadmium pollution poses a complex and difficult problem since it is a 

"multimedia" form of pollution, affecting all environmental sectors. 

Cadmium may be emitted  into the environment  at numerous points in the 

production, manufacturing, use and waste disposal processes. 

Some twenty legal acts concerning cadmium have been published  in the 

Official Journal: clear evidence of the importance attached  to it; 

- in April 1987 the Commission presented  to the Council  an  action 

programme on environmental pollution by cadmium.  In response to that 

Communication, on 25 January 1908 the Council adopted  Resolution 

88/C 30/01 on a Community action programme to combat  environmental 

pollution by cadmium. The Resolution stresses the major elements of the 

strategy for cadmium control in the interests of the protection of 

health and  the environment. These elements concern the limitation of 

the uses of cadmium to cases where suitable alternatives do not exist, 

stimulation of research and development, collection and recycling of 

products containing cadmium, for example batteries, and development of 

a strategy designed to reduce cadmium  input  in soil; 

- measures to restrict the use of cadmium taken  individually by the 

Member States. These may constitute barriers to trade and have a direct 

effect on the establishment and operation of the internal market; 

- scientific and technical data on the existence of substitutes less 

hazardous both for man and the environment. 

3. Comments on the proposed restrictions 

Cadmium and its compounds are substances that are dangerous for man and 

the environment; it is therefore necessary to regulate their marketing. 

This proposal for a Directive falls within the context of Council 

Directive 76/769/EEC. The following principles were incorporated  in the 

drafting: 

- the ban on the use of cadmium affects three areas of application -

pigments, stabilizers and plating - but the purpose of the ban differs 

in each case. 

In the case of pigments, polymers (basic products) are covered. The 

Directive contains a list of polymers which may no longer be coloured 

by pigments containing cadmium. 

In the case of stabilizers, products or articles are covered. 

In the case of cadmium-plating. sectors or applications are covered. 

By a process of elimination, any substance not included  in the lists is 

permitted; 

- the date for putting the Directive into effect may vary according to 

product. Some manufacturers need time to adapt their production to 

these conditions; 

- in certain circumstances, notably for reasons of safety and 

reliability, it may be essential to use cadmium. A general derogation 

clause is provided for that reason; 

-the Directive is not applicable in certain cases, notably where other 

directives contain further special provisions; 

-  implementation of the Combined Nomenclature  (Council Regulation  (EEC) 

No 2658/87 of 23 July 1987, as amended, on the tariff  and statistical 

nomenclature and on the Common Customs Tariff: OJ L 256, 7.9.1987). 

•"S 

It has emerged  in many cases from discussions with national experts that 

the definition of the products or applications covered by the Directive 

poses a very thorny problem. To overcome that it is proposed to include 

with the products or applications, where possible, the corresponding CN 

code number. 

The CN code numbers corresponding  to the proposed definition are 

therefore  indicated  in brackets after each product or application.The CN 

subheadings are Community subdivisions to the harmonized  system 

nomenclature. The first  six digits of the code numbers  relate to the 

harmonized system nomenclature, while the next two digits  identify  the CN 

subheadings required. 

With a view to establishing an operative system, a recital concerning 

technical and technological progress in relation to substitutes for 

cadmium and its compounds has been included in the proposal. This 

reference to progress, which meshes with the context of Council 

Resolution 88/C 30/01, is set out in Article 2 of the proposal. 

A.  Conformity with the Treaty 

As is clear from section 3 above, this proposal  is intended to afford 

a  high  Level  of protection  for both  persons  and  the environment and 

is therefore in conformity with Article 100A  (3) of the Treaty. 

The proposal  does  not  call  for  any  special  provisions  of  the  kind 

referred to in Article 8c of the Treaty. 

5.  Consultation of the sector concerned 

The  proposal  for  a  Directive  was  drawn  up  in  consultation  with  a 

group  of  national  experts  on  public  health  and  environmental 

protection  as  well  as  representatives  of  the  various  sectors  of 

industry concerned. 

6.  Consultation of  the European Parliament  and  the Economic  and Social 

Committee 

In  compliance  with  Article  100A  of  the  Treaty,  the  cooperation 

procedure with  the European  Parliament  is applicable.  The Economic 

and Social Committee has  to be consulted. 

u 

Proposal  for a 

COUNCIL  DIRECTIVE 

amending  for  the  tenth  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. 

THE COUNCIL  OF THE EUROPEAN  COMMUNITIES, 

Havind  regard  to  the  Treaty  establishing  the  European  Economic  Community, 

and  in particular  Article  100a thereof, 

1 
Having  regard  to the proposal  from  the  Commission, 

In cooperation with  the European  Parliament, 

Having  regard  to the opinion  of the Economic  and Social  Committee, 

1  0J  No 

2  OJ  No 

3  OJ  No 

S 

- 2 -

Whereas measures  should be adopted  for the progressive  establishment  of the 

internal market  by 31 December  1992; whereas  the  internal market  is an area 

without 

internal  frontiers  in  which  the  free  circulation  of  goods, 

persons, services and capital  is guaranteed; 

4 

Whereas t he Council Resolution of 25 January 1988" invites the  Commission  to  pursue 

without  delay .the development  of  specific  measures  for  a  Community  action 

programme  to  combat  environmental  pollution  by  cadmium;  whereas  human 

health  also  has to be protected  and an  overall  strategy  that  in particular 

restricts  the  use  of  cadmium  and  stimulates  research  into  substitutes 

should  therefore be  implemented; 

Whereas  the restrictions  on the  use of  cadmium  and  its compounds  laid down 

by  this  Directive  take  into  account  the  current  state  of  knowledge  and 

techniques  regarding  substitutes; whereas  it would be advisable to reassess 

the situation  in the  light of the development  of knowledge  and techniques; 

Whereas  restrictions  already  adopted  by  certain  Member  States  on  use  and 

marketing  of the above mentioned  substances or preparations  containing  them 

have  a direct  effect  on  the  establishment  and  functioning  of  the  internal 

market;  whereas  it  is therefore  necessary  to  approximate  the  laws  of  the 

Member  States  in  this  field  and  thus  to  amend  the  Annex  to Council 

Directive 76/769/EEC  , as  last amended  by Directive 

/ 

/EEC  , 

HAS ADOPTED  THIS DIRECTIVE: 

4  OJ  No  C 30, 4.2.1988, p.1-

5  0J  No L 262, 27.9.1976, p.201 

6  OJ No L 

G 

-  3 -

'  Article 1 

Annex  I to Directive  76/769/EEC  is hereby  amended  as set out  in the Annex 

hereto. 

Article 2 

Owing  to the development  of knowledge  and techniques  in respect  of  substitutes 

for cadmium, the Council  shall  reassess the situation  within seven years of 

adoption of this  Directive on the basis of a report  drawn up by the  Commission. 

Article 3 

1. Member  States  shall bring  into force the  laws, regulations  and  administrative 

provisions  necessary  to comply  with  this Directive  no  later than 30 June 1991 

and  shall  forthwith  inform  the Commission  thereof. 

2. Member  States  shall  communicate  to the Commission  no  later than 31  December 

1990 the text  of the basic  provisions of national  law which  they adopt  in 

the field  covered  by this Directive. 

3. The provisions  adopted  pursuant  to paragraph  1 shall make express  reference 

to this  Directive. 

Article A 

This Directive  is addressed  to the Member  States. 

Done at Brussels 

For the Council 

•\ 

ANNEX 

The following point  is hereby added  to Annex  I to Directive 76/769/EEC: 

"Cadmium  (CAS No. 7440-43-9) and  its  compounds 

1.1. Shall  not  be  used  to  give  colour  to  finished  products  manufactured 

from  the substances and preparations  listed below. 

Such  finished products,  whatever  their use or  intended  final purpose, 

shall  not  be placed  on the  market  if  their  cadmium  content  (expressed 

as Cd metal) exceeds 0.01  X by weight. 

- polyvinyl  chloride  (PVC)  ••••%" 

(3904 10) (3904 21) 

(*) 

- polyurethane  (PUR) 

-  low-density polyethylene  (Id PE), with the 

exception  of  low-density polyethylene used 

(3904 22) 

(3909 50) 

for the production  of coloured  masterbatch 

(3901  10) 

-  cellulose  acetate  (CA) 

(3912 11) (3912 12) 

-  cellulose  acetate butyrate  (CAB) 

(3912 11) (3912 12) 

- epoxy  resins 

(3907 30) 

1.2. Shall  also be covered by this provision  from  (five years from  adoption 

of this Directive) : 

a) the  finished  products  manufactured  from  the  following  substances 

and preparations : 

- melamine - formaldehyde  (MF) resins 

- urea  - formaldehyde  (UF) resins 

- unsaturated polyesters  (UP) 

- polyethylene  terephthalate  (PET) 

- polybutylene  terephthalate  (PBT) 

(3909 20) 

(3909 10) 

(3907 91) 

(3907 60) 

-  transparent/general-purpose  polystyrene 

(3903 11) (3903 19) 

- acrylonitrile methylmethacrylate  (AMMA) 

- cross-1 inked polyethylene  (VPE) 

- high-impact  polystyrene 

- polypropylene  (PP) 

(3902 10) 

(*) 

(l° Council  Regulation  (EEC) No 2658/87 of 23 July  1987, on the tariff  ?nd statis 

tical nomenclature  and on the common  customs  tariff: 0J  No L 256, 7.9.1987, p.1 

- 2 ~ 

b) paints 

(3208) (3209) 

J (*) 

However,  if  the  paints  have  a  high  zinc  content,  their  residual 

concentration  of  cadmium  should  be  as  low  as  possible  and  at  all 

events not  exceed 0,1  % by weight. 

1.3. However, this provision  shall  not  apply  to  products  to  be 

coloured  for safety reasons. 

2.1. Shall  not  be  used  to  stabilize  the  finished  products  listed  below 

manufactured  from polymers or copolymers of vinyl chloride 

Such  finished  products  shall  not  be  placed  on  the  market  if  their 

cadmium  content  (expressed  as Cd metal) exceeds 0.01  % by weight. 

- packaging  materials  (bags, containers, 

(3923 29 10) 

bottles, lids) 

(3920 41) (3920 42) 

(*) 

- office or  school  supplies 

(3926 10) 

-  fitting  for  furniture, coachwork or 

the  like 

- articles of  apparel  and clothing 

accessories  (including gloves) 

-  floor  and wall  coverings 

(3926 30) 

(3926 20) 

(3918 10) 

-  impregnated, coated, covered or  laminated 

(5903 10) 

textile  fabrics 

-  imitation  leather  and morocco-leather  goods 

(4202) 

- gramophone  records 

-  tubes and pipes and their fittings 

(8524 10) 

(3917 23) 

-  swing doors 

- vehicles  for road transport  (interior, 

exterior, underbody) 

-  coating of steel sheet used  in construction 

or  in  industry 

-  insulation  for electrical  wiring 

& 

-3  -

This provision shall  enter  into force on  (three years  from the adoption 

of this Directive). 

2.2. However, this provision  shall not  apply  to finished 

products using  stabilizers  with  cadmium  for safety  reasons. 

3.  Within  the  meaning  of  this  Directive,  cadmium  plating  means  any 

deposit  or coating of metallic  cadmium  on a metallic  surface. 

3.1. Shall not  be  used  for  plating  metallic  products  or  components  of  the 

products used  in the sectors/applications  listed below. 

Such  cadmium-ptated  finished  products  or  components- of  these  products 

shall not be placed on the market  where  they are used  in  i-

a) equipments  and machinery  for 

-  food production 

- agriculture 

cooling  and freezing 

printing  and book-binding 

(*) 

(8210) 

(8417 20) 

(8419 81) 

(8421  11) 

(8421  22) 

(8422) 

(8435) (8437) (8438) 

(8476 11) 

(8419 31) 

(8424 81) 

(8432) (8433) 

(8434) (8436) 

(8418) 

(8440) 

(8442) 

(8443) 

Jo 

- 4  -

b) equipment  and machinery  for the production of : 

- household  goods 

-  furniture 

-  sanitaryware 

-  central  heating and 

air conditioning  plant 

(*) 

(7321) 

(8421  12) 

(8450) 

(8509) 

(8516) 

(8465) (8466) 

(9401) (9402) 

(9403) (9404) 

(7324) 

(7322) 

(8403) (8404) 

(8415) 

or  in the products manufactured  in the sectors  listed under b) 

3.2. Shall  be  covered  by  this  provision  from  (five  years  from  adoption of 

this  Directive)  products  or  components  of  products  intended  for  use 

in: 

. _ 

a) equipment  and machinery  for the production of : 

- paper  and board 

-  textiles and clothing 

(*) 

(8419 32) 

(8439) 

(8441) 

(8444) 

(8445) (8447) 

(8448) (8449) (8451) 

(8452) 

b) equipment  and machinery  for the production  of : 

-  industrial handling 

(8425) (8426) (8427) 

-  road and agricultural  vehicles 

- rolling  stock 

- vessels 

(8428) 

(8429) 

(8430) 

(8431) 

(chapter 87) 

(chapter 86) 

(chapter  89)) 

or  in the products manufactured  in the sectors  listed under b ). 

(*) 

\K 

y 

3.3. However, this provision  shall not  apply to: 

- products  and  components  of  the  products  used  in  the  aerospace, 

mining,  offshore  and  in  nuclear sectors whose applications require high 

safety  standards  and  in  safety  devices  in  road  and  agricultural 

vehicles, rolling  stock and vessels; 

- electrical  contacts  in  any sector  of use on account of the reliability 

required  of the apparatus on which  they are installed.'• 

rv 
i. 

Impact on competitiveness  and employment 

I.  Principle grounds for introducing  the measure 

In  the  framework of  Directive 76/769/EEC  relating to  restrictions on 

the  marketing  and  use  of  certain  dangerous  substances  and 

preparations,  a proposal  for  a  Directive has  been  prepared  by  the 

Commission with  the aim of  limiting  the use of cadmium. 

This  proposal  for  a  directive  must  be  regarded  in  the  perspective 

of : 

-  the other existing European  legislations to control  the imput of 

cadmium  in the environment 

-  the communication presented by the Commission  to the Council in 

April 1987 for a proposed action programme on environmental 

pollution by  cadmium  (COM  (87) 165 final). 

- The Council  Resolution of 25 January  1988 (88/C30/01  of 4/2/88) 

which  invites the Commission  to continue without  delay the 

elaboration of specific measures concerning and Community  action 

programme  to combat  environmental pollution by cadmium. 

The  Council  Resolution  also  underlines  the  major  elements  of  a 

strategy  for  cadmium  control  in the  interests of  the protection  of 

human health  and the environment. These elements are the  limitation 

of  the  uses  of  cadmium  where  suitable  alternatives  do  not  exist, 

the  stimulation  of  research  and  development;  the  collection  and 

recycling of products containing  cadmium. 

jft 

-2-

-  an  existing  legislation  in  Denmark  which  is  in  force  since  1st 

January  1984  and  prohibits  the  manufacture  and  importation  of 

products  containing  cadmium. 

-  a  project  of  decree  in  the  Netherlands  concerning  cadmium 

prohibition  in products  notified  to  the  Commission  in the  framework 

of  Directive  83/189/EEC  on  26  April  1987.  This  project  has  been 

already  published  in  the  Netherlands  official  journal  but  the  law 

is not  effectively  enforced. 

11-  Characteristics  of  the  firms  concerned 

The  directive  is  trying  to put  in balance  the  industrial  areas  where 

the  use  of  cadmium  is  essential  and  the  potential  risks  for  the 

environment.  The  obvious  first  step,  in  order  to  define  some 

realistic  restrictions  on  the  limitation  of  cadmium  and  its 

compounds,  was  to  look  at  the  distribution  of  cadmium  users  and  to 

make  a  distinction  between  the  major  areas  and  the  less  important 

ones. 

The  available  data  has  allowed  us  to  see  the  proportion  of  cadmium 

end-uses  in  the  European  countries.  Plating  and  pigments  have  the 

same  order  of  percentage  (24-29 %)  whereas  stabilizers  represent  the 

half  of  that  percentage  (12  %)  The  part  occupied  by  batteries 

represents  nearly  1/3  of  the  total  cadmium  consumed.  However  the 

batteries  are  being  investigated  separately  in  the  frame  of  another 

directive  and  therefore  would  not  be  tackled  'in  the  present 

directive. 

On  the  basis  of  the  above  data  only  the  three  following  sectors  : 

-  pigments 

-  stabilizers 

-  plating 

have  been  tackled  by  the present  proposal  for  a Directive. 

^ 

-3-

Are  there  regional  concentrations 

The  laws  of  prohibition  on  cadmium  already  adopted  by  some  Member 

States  had  as  result  to  close  their  markets  to  goods  coming  from 

other  member  States. 

At  the  door  of  the  Internal  Market  of  1992  such  situations  could  be 

harmful  and  therefore  the  Commission  has  decided  to  make  all  the 

necessary  efforts  to  harmonize  the  legislations  of  the  member  States 

in  this  field.  This  would  have  a  positive  impact  to  the  industry 

concerned  all  over  Community. 

III.  Direct  obligations  on  firms 

All  the  products  which  appear  in  the  lists  covered  by  this  Directive 

must  satisfy  its  provisions,  from  the  date  of  its  entry  into  force. 

Prohibitions  on  application  of  cadmium  would  result  to  a  consequent 

need  for  alternatives.  This  could  have  a  number  of  cost  implications, 

the  most  obvious  of  which  but  by  no  means  the  most  significant  is 

the  direct  cost  of  new  formulations  for  these  alternatives.  Other 

factors 

must 

also 

be 

considered 

notably 

the 

performance 

characteristics  of  the  alternatives  and  its  harmlessness  to  man  and 

the  environment. 

However,  it  is  the  view  of  the  EEC  industry  concerned  that  it  is 

feasible  that  practical  substitutes  to  cadmium  for  most  of  the  use 

areas  covered  by  the  proposal  exist  or  are  already  employed. 

In  all  the  three  sectors  mentioned  above  intensive  research  has  led 

to  the  development;  of  substitutes  which  could  be  considered  as 

equivalent  to  cadmium. 

Furthermore  at  the  present  time  and  in  the  three  sectors  concerned 

the  major  substitution  would  appear  to  have  already  taken  place. 

IV.  Obligations  which  may  be  imposed  indirectly  on  firms  by  local 

authorities. 

.p 

-4-

The  directive  will  be  applied  in  each  Member  States  on  the  basis  of 

the  transposition  of  its  provisions 

into  national  Law  local 

authorities  may  impose  additional  requirements  only  if  these  do  not 

adversely  affect  the  trade  of  the  products  concerned  and  on  the  basis 

of  paragraph  d) of  the  Article  100  A of  the  Single  European  Act. 

V.  Are  there  any  special  measures  applicable  to  small  and medium  -  sized 

firms  ? 

No. 

These 

firms 

in 

the 

three 

sectors 

concerned 

(pigments/stabilizers/plating)  should  also  comply  with  the  provisions 

provided  for  under  the  directive.  However,  despite  of  the  fact  that 

the  directive  bans  the  marketing  of  specific  products  containing 

cadmium  a  transition  period  of  3-5  years  has  been  granted  to  allow 

industry  and  more  particular  SME  and  PME  to  adapt  their  manufacturer 

process  to  the  new  conditions. 

VI.  What  is  the  likely  effect 

-  on  the  competitiveness  of  undertakings  ? 

The  powerful  advantage  given  by  the  directive  to  the  European 

Industry  concerned  as  regards  the  harmonization  of  the  legislations 

concerning  restrictions  on  the  uses  of  cadmium  is  that  after  the 

date  of  entry  into  force  of  the  directive  it  will  no  longer  be 

possible  to  impede  the  free  movement  of  the  products  which  do  not 

appear  in the  lists  of  banned  products  on  the  internal  market. 

However  this  directive  does  not  apply  to  exports  of  products 

containing  cadmium  to  Third  countries. 

On  the  other  hand  any  EEC  legislation  treats  imports  into  the 

Community  in  an  identical  manner  to  EEC  production  and  this  also 

allows  the  European  industry  to  compete  fairly  with  those  trading 

nations  who  export  to  the  Community  market. 

P 

-5-

There  is  currently  a  reliable  method  to  detect  the  presence  of 

cadmium  in  products. 

-  on  employments 

As  for  employment  the  effects  of  such  restrictions 

are  very 

difficult  to  quantity  and  would  vary  according  to  the  applications 

involved.  It  is  however  noticeable  that  the  implementation  of  the 

directive 

should 

result 

in  a  general 

improvement 

in  the 

competitiveness 

of 

the  European 

Industry  concerned  with  a 

consequent  beneficial  effect  on  the  labour  market. 

VII.  Have  both  sides  of  industry  been  consulted  ? 

Industry's  concern  regarding  the  prohibition  of  uses  of  cadmium  was 

tackled  with  attention.  Useful  contacts  have  been  taken  with  the 

representatives  of  industries  concerned  by  the  project  in  order  to 

discuss  the  critical  industrial  areas  which  could  be  affected  by  such 

a  directive.  The  approach  adopted  was  to  discuss  the  restrictions  on 

the  application  of  cadmium  on  case  by  case  basis  allowing  a  more 

complete  discription  of  the  industrial  sectors  involved.  The  result 

was  the  establishment  of  lists  of  banned  products  accepted  by  both 

sides. 

A  group  of  national  experts  was  also  directly  and  actively  involved 

in  the  preparation  of  this  proposal. 

j\ 

ISSN 0254-1475 

COM(89) 548 final 

DOCUMENTS 

EN 

05 

Catalogue number : CB-CO-89-538-EN-C 

ISBN 92-77-55053-8 

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