Proposal for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE amending for the sixteenth time Council 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: 1994-12-14
Institutions: European Commission
Subjects: approximation of laws, dangerous substance, industrial pollution, marketing restriction, metallurgical industry, non-ferrous metal

COMMISSION  OF THE  EUROPEAN  COMMUNITIES 

COM(94)  570  final 

B r u s s e l s,  14.12.1994 

94/0287  (COD) 

Proposal  for  a 
EUROPEAN  PARLIAMENT  AND  COUNCIL  DIRECTIVE 
amending  for  the  sixteenth  time  Council  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  Memorandum 

1. Introduction  and  context 

All  Member  States,  with  the  exception  of  Italy,  Greece  and  Luxembourg,  and  the 
Community,  are  Contracting  Parties  to  the  Convention  for  the  Prevention  of  Marine 
Pollution  from  Land-Based  Sources (1974 Paris Convention).  The  executive body  of the 
Paris  Convention  (PARCOM)  can  adopt  programmes  and  measures  to  eliminate  and 
reduce  pollution  of  the  marine  environment  of the  North-East  Atlantic.  The  1974  Paris 
Convention  officially  provides for  recommendations  and  (binding)  decisions  to  lay  down 
joint  programmes and measures. 

PARCOM  Decision  92/4  of  22nd  September  1992,  on  the  Phasing  Out  of  the  Use  of 
Hexachloroethane  in the  Secondary Aluminium Industry  and Primary  Aluminium  Industry 
with  Integrated  Foundries,  supported  by  all Member  States  that  are  a  Contracting  Party 
and  supported  ad  referendum  (i.e under  reserve  of the  Internal  Community  procedures), 
by the Community,  would phase out the use of hexachloroethane  (HCE)  in the aluminium 
industry  by 31st  December  1996. PARCOM Decision 93/1  of June  1993, on the  Phasing 
Out  of  all  Uses  of  Hexachloroethane  (HCE)  in the Non-Ferrous  Metal  Industry,  would 
phase out  the use of HCE in other non-ferrous  metal industries, with exemptions for  three 
magnesium alloys which are subject  to review in  1996.  This second  decision was  adopted 
with reserves of Germany, the United Kingdom and, therefore,  of the Community. 

In the absence of further  action, PARCOM 92/4 would be applied  by nine Member  States 
and  PARCOM  93/1  by  seven  Member  States.  Clearly  the  result  would  be  a  fragmented 
Internal  Market  for  HCE  and  a  level  of  protection  of  the  marine  environment  of  the 
North-East  Atlantic lower than agreed upon in the framework  of Paris Convention. 

2. Justification  for proposal and considerations of subsidiarity 

What are the objectives  of the proposal in relation to the Community's obligations ? 

Action is required  to preserve the Internal Market  and to  protect  the  environment  both  of 
which are Community obligations. 

Does  the  initiatives  arise  out  of  an  exclusive  Community  competence  or  a  shared 
competitiveness ? 

The  specific  type  of  action  needed-that  is,  action  to  preserve  the  Internal  Market  for  a 
dangerous  substance-falls  within  the  exclusive  competence  of  the  Community.  This 

competence  was  established  by  Council  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. 

WJb.at are the  causes  of action  available to  the Community  ? 

The  only  course  of  action  available  is a proposal  for  an  amendment  to  Directive  76/769  -
the  sixteenth  amendment  -  providing  for  harmonized  rules  on  the  use  of  HCE  which 
correspond  to  the  two  PARCOM  Decisions. 

Are  uniform  rules  necessary  ?  Is  it not  sufficient  to  establish  targets  to  be  implemented  by 
Member  States  9 

The  proposed  16th  Amendment  establishes  uniform  rules  for  the  circulation  of  HCE,  these 
being  necessary  to  protect  the  unity  of  the  Union  market. 
It  also  provides  for  the  high 
level  of  environmental  protection  prescribed  by  the  PARCOM  Decisions  and  should 
ensure  respect  by  the  Union  of  its  PARCOM  responsabilises.  The  proposed  16th 
amendment 
is  the  only  way  of  meeting  these  three  objectives.  Targets  would  be 
insufficient. 

Consolidation  of  Directive  76/769/EEC 

The  Commission  presented  on  23rd  September  1991  a  proposal  to  consolidate  Directive 
76/769  (SEC  (9Î )  1608  final/2)  and this proposal  is still pendidng  before  the  Council.  The 
Commission  intends  to  present,  in  the  near  future  and  conforming  to  Article  189  A 
paragraph  2  of  the  EC  Treaty,  a  proposal  to  amend  its  consolidation  proposal  so  as  to 
include  the  amendments  and  adaptations  adopted  since  23 rd  September  1991  as  well  as 
the  text  of the  present  proposal  for  a  16th  amendment. 

3.  Rationale  of the  Proposal 

The  effect  of  the  proposed  16th  Amendment  would  be  to  transpose  PARCOM  Decisions 
92/4  and  93/1  into  Community  law  without  any  substantial  change.  Thus  the  temporary 
derogation  for  small  aluminium  foundries  provided  by  PARCOM  92/4  is  implicit  in  the 
date  of  entry  into  force  of  the  proposed  Directive.  Furthermore  the  exemption  for  the 
magnesium  alloys  AZ81  ,  AZ91  and  AZ92  provided  by  PARCOM  93/1  is  included 
explicitly. 

Departures  from  the  PARCOM  Decisions,  such  as  provision  for  more  exemptions,  are 
avoided  for  the  following  reasons : 

-  they  would  create  legal  problems  for  Union  Members  who  are  party  to  PARCOM  and 
who  supported  the  PARCOM  Decisions, 

-  more  exemptions  would  conflict  with  the  requirement  under  Art.  100  A  §  3  for  a  high 
level  of  protection, 

- they would  create trade barriers with non-Union parties to PARCOM 

4. Costs and  Benefits 

4.1 Costs 

HCE  has  been  used  mainly  for  the  degassing  of  molten  metals,  notably  aluminium  and 
magnesium  alloys.  Other  less  important  uses  are  in  smoke  generation  for  military 
purposes and in fireworks. 

Use  has  decreased 
less 
environmentally  damaging  methods  of  degassing.  These  include  nitrogen  degassing 
(through tablets or gas purge), addition of primary molten metal and vacuum  operation. 

in  recent  years  as  metal  processors  moved 

to  othei 

Only one company  in the Union, Atochem in France, is known to  be  still  producing  HCE. 
Output  is thought  to  amount to  a few  thousand  tonnes per year  worth  perhaps  2 millions 
ECU/year. 

The  main  users  of  HCE  are  aluminium  manufacturers  and  processors  and  manufacturers 
of magnesium alloys.  HCE is now completely phased  out in the Union  primary  aluminium 
industry  (manufacture)  and  only  small  quantities  are  used  the  secondary  aluminium 
industry  (remelting).  This trend  has accelerated  with  rising unit  costs  of HCE  associated 
with  lower  sales  volumes.  The  main  aluminium  use  remaining  is  in  small  foundries.  A 
considerable  amount  of  HCE  is  still  used  in  making  various  magnesium  alloys.The 
proposed  16th  Amendment  as mentioned  above,  takes  account  of the  special  situation  of 
small  aluminium  foundries  and  manufacturers  of  magnesium  alloys  by  allowing  for  a 
temporary derogation  and for exemptions, respectively. 

Enquiries  carried  out  in  one  of  the  large  Member  States  showed  that  only  one  user 
company  was  likely  to  suffer  financially  from  the  proposed  16th  Amendment. 
If  this 
finding  is generalised  throughout  the Union the costs  to HCE  users  combined  should  not 
exceed  100,000 ECU/year*  The cost, if any, to the single HCE producer  is unknown 

It  can  be  concluded,  nevertheless,  that  the  overall  costs  to  industry  of  the  16th 
Amendment  are likely to be modest. 

4.2  Benefits 

The  risk  analysis  for  the  16th  Amendment  was  performed  by  PARCOM  in  developing 
PARCOM Decisions 92/4 and 93/1. 

HCE  is  one  of  the  substances  included  in  LIST  (l)-the  Black  List-of  Council  Directive 
76/464/EEC  on  pollution  caused  by  certain  dangerous  substances 
in  the  aquatic 
environment.  Emission  limits  and  quality  objectives  have  been  set  by  some  Member 
States, individually,  and may in the future  be fixed for the Union overall. 

Its  use  in  the 
Not  only  is  HCE  itself  a  cause  for  concern  in  the  aquatic  environment. 
production  and  processing  of  non-ferrous  metals  leads  to  the  release  of  other  dangerous 
substances.  These  include  certain  chlorophenols  and  hexachlorobenzene,  also  damaging 
to  the  aquatic  environment,  and  dioxins,  some  of  which  are  among  the  most  toxic 
substances  known. 

The effect  of the  16th Amendment will be to replace HCE by substitutes,  such as nitrogen, 
which  are  environmentally  benign.  The limitations  proposed,  therefore,  should  provide a 
significant  contribution to protection of the North East Atlantic environment. 

5.  Proportionality 

The  16th  Amendment  would  afford  worthwhile  benefits  in  terms  of  environmental 
protection  and  these benefits  would be achieved  at  modest  cost.  The  proposal  solves  the 
problems  posed  by  HCE  while  going  no  further  than  what  PARCOM  has judged  to  be 
necessary. 

6. Consultations Performed  in preparing the draft  16th Amendment 

Advice  on the preparation  of the proposal was sought  in a series of 3 meetings  of experts 
from  Member  States  and  industry. 
Industry,  represented  by  the  European  Aluminium 
Association  and  by  the  Association  Européenne  des  Métaux,  whilst  favouring  more 
exemptions to the ban, did not oppose the proposal. 

One large Member  State maintains a reserve on the basis that it favours  more exemptions. 

7. Conformity  with the Treaty 

It  is  clear  from  the  foregoing  that  this  proposal  is  intended  to  afford  a  high  level  of 
protection  for  the  environment  and  is therefore  in conformity  with  Article  100  A  § 3  of 
the Treaty. 

The proposal  does not call for any special provisons of the kind referred  to in Article  7c of 
the treaty. 

It is in conformity  with Article 3b. 

8. Consultation  of the European Parliament and the economic and Social  Committee 

In  compliance  with  Article  100  A  of  the  Treaty,  the  Codecision  Procedure  with  the 
European  Parliament  is  applicable.  The  Economic  and  Social  Committee  has  to  be 
consulted. 

Proposal  for  a 
EUROPEAN  PARLIAMENT  AND  COUNCIL  DIRECTIVE 
amending  for  the  sixteenth  time  Council  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 EUROPEAN PARLIAMENT AND 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  referred  to  in  Article  189b  of  the  Treaty(3), 

Whereas  Article  7a of  the Treaty  establishes  an  area  without  internal  frontiers  in  which  the 
free  movement  of  goods,  persons,  services  and  capital  is  ensured; 

Whereas  all  Member  States,  with  the  exception  of  Greece,  Italy  and  Luxembourg,  are 
contracting Parties to the Convention for the Prevention of Marine Pollution  against pollution 
from  Land-Based  Sources  (1974  Paris  Convention);  whereas  the  Paris  Commission,  the 
executive  body  of  the Paris Convention,  considers  hexachloroethane  and  the  substances that 
can  be  formed  as  a  result  of  its  application  as  substances  of  which  pollution  should 
be  eliminated,  according  to  Article  4.1a  of  the  Paris  Convention;  whereas  at  the 
Ministerial  Meeting  of  the  Oslo  and  Paris  Commissions  on  22  September  1992  the 
Community  supported  ad referendum  PARCOM Decision  92/4 on the phasing out of the use 
of  hexachloroethane  in  the  secondary  aluminium  industry  and  in  the  primary  aluminium 
industry  with  integrated  foundries;  whereas  at  the  fifteenth  meeting  of  the  Oslo  and  Paris 
Commissions  on  14-19  June  1993  the  Community  supported  with  a  reserve  PARCOM 
Decision  93/1  on  the  phasing  out  of  hexachloroethane  in  the non-ferrous  metal  industry; 

Whereas  the  Paris  Commission  has  prepared  proposals  for  decisions  at  the  request  of  all 
Ministers responsible for  the protection of the North  Sea environment  and the rivers entering 
the North Sea and of the Member of the European Commission responsible for  environmental 
protection  when  participating  in the Third  International  Conference  on the  Protection  of  the 
North  Sea  in  The Hague  on  7 and  8 March  1990; 

(i) 

(2) 

(3) 

OJNo 
OJNo 
OJNo 

Whereas  the  limitations  required  of  Member  States  on  the  placing  on  the  market  of 
hexachloroethane  for  use  in  the  non-ferrous  metals  industries  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 
Council  Directive  76/769/EEC(4),  as last  amended  by  Directive  94/.. ./EC(5); 

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  and  that  these  objectives  cannot  be  achieved  by  Member  States 
individually, and that 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  amended  as  set  out  in  the  Annex  hereto. 

Article  2 

Member  States  shall  bring  into  force  and  publish  the  laws,  regulations  and  administrative 
provisions necessary to comply with this Directive by ...  .  They shall immediately  inform  the 
Commission  thereof.  They  shall  apply  these  provisions  from  .... 

When  Member  States adopt these provisions, these 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  shall  enter  into force  on the twentieth  day  following  that  of its publication  in 
the  Official  Journal  of the European  Communities. 

This  Directive  is addressed  to the Member  States. 

Article 4 

Done  at  Brussels, 

For  the  European  Parliament 
The  President 

For  the  Council 
The  President 

(4) 
(5) 

OJ No  L  262,  27.9.1976,  p. 201. 
OJ  No L 

ANNEX 

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

"xx Hexachloroethane 
CAS  No  67-72-1 
EINECS  No  2006664 

May not be used  in the manufacturing  or 
processing  of  non-ferrous  metals 

By way of derogation, Member States may 
allow  on their  territories  the use  of 
hexachloroethane for grain refining in the 
production  of  the  magnesium  alloys 
AZ  81, AZ  91  and  AZ  92." 

FINANCIAL  STATEMENT 

SECTION  1 : FINANCIAL  IMPLICATIONS 

1. 

Title of operation 

Proposal for  a sixteenth amendment to Directive 76/769/EEC 

2. 

Budget heading involved 

Article B5-300  : completing the internal market 

For Part A, see section 2 

3. 

Legal basis 

- Article  100a of the Treaty 

4. 

4.1 

Description of operation 

Specific  objective of operation 

The proposed  operation involves : 

- Restricting the use of hexachloroethane in the manufacture  and processing of 

non-ferrous  metals. 

4.2 

Duration 

This is a "one-off'  operation 

4.3 

Target  population 

Industrialists 

5. 

Classification  of expenditure 

Not  applicable 

6. 

Type of expenditure 

None 

Unlike many previous amendments to Directive 76/769/EEC, the sixteenth 
amendment  does not require standardisation work to be performed  by CEN. 

7. 

Financial impact on appropriations for  operations 

None 

8. 

What anti-fraud  measures are planned ? 

None 

SECTION 2 : ADMINISTRATIVE  EXPENDITURE 

No new administrative expenditure is foreseen.  Any meetings to be held would take place 
pursuant  to  Directive  76/769/EEC  in  the  framework  of  which  the  "Technical  Progress 
Committee  : Dangerous  Substances and Preparations" would be convoked.  The estimated 
expenses  for  this  Directive  is  made  up  of  110.000  ECU  for  meetings  of  experts  (Art. 
A250)  and  12.000  ECU  for  meetings  of the Committee  itself  (Post  A2510  : Expenditure 
on meetings of committees whose consultation is compulsion in the procedure for  drafting 
Community Legislation). 

However,  no extra meetings are foreseen. 

SECTION  3 : ELEMENTS OF COST-EFFECTIVENESS  ANALYSIS 

1. 

The aims of the proposed  operation are, firstly, to harmonize restrictions on 
the use of hexachloroethane in the non-ferrous metals industries so as to avoid 
creating obstacles to trade, secondly, to provide a high level of protection to the 
environment  and, thirdly, to assure respect by the Commission of its 
obligations under the PARCOM convention. 

2. 

The general objective is to complete the internal market. 

Grounds for the operation 

Harmonization  serves to prevent obstacles to trade, to provide a high level of 
protection for the environment and to assure respect of the Commissions' legal 
obligations in PARCOM. 

4.  Monitoring  and evaluation of the operation 

The Committee  set up under Directive 76/769/EEC will be responsible  for 
monitoring the application of this Directive. 

10 

COMPETITIVENESS  AND EMPLOYMENT  IMPACT  ASSESSMENT 

I. 

The  Proposal 

The current proposal concerns restrictions on the marketing and use of 
hexachloroethane  (HCE).  Specifically  it would ban the use of HCE in the 
production  and processing of aluminium and, with certain exceptions, in the 
processing of other non-ferrous metals. 

The objectives  are, firstly, to protect the unity of the Internal Market (by 
harmonising the conditions for use of HCE), secondly, to protect the environment 
and thirdly to  see that the Commission meets its obligations under PARCOM. 

The proposal takes the form of an amendment (the  16th amendment) to Directive 
76/769/EEC, the framework directive to limit the marketing and use of dangerous 
substances and preparations.  It is not a new legislative departure,  so that the 
question of subsidiarity does not arise.  As with previous amendments  Community 
intervention is essential to protect the Internal Market, this being impossible to 
achieve by Member States acting alone. 

II. 

The impact on business 

The main businesses to be affected  by the measure are the manufacturing  and 
processing of aluminium and of certain other non-ferrous  metals, notably 
magnesium alloys. 

Relatively few companies are likely to suffer  from the proposed  measures.  Most 
have already adopted  substitutes for HCE.  Companies likely to face difficulties  in 
moving to  substitutes are to benefit from temporary exemptions (i.e small 
foundries)  or indefinite  derogations (i.e manufacturers  of certain magnesium 
alloys). 

Only one  Member  State, i.e France, still produces HCE.  Production, by 
Atochem,  amounts to a few thousand  tonnes/year. 

III.  What will business have to do to comply with the proposal ? 

Manufacturers  and processors of non-ferrous  metals must, with certain  exemptions 
(mentioned  above), substitute HCE by an alternative degassing agent e.g inert gas 
(tablets or inert gas lance), addition of primary aluminium, vacuum operation etc. 

IV. 

Does the proposal contain measures to take account  of the specific  situation of 
small and medium sized firms ? 

11 

Yes.  The proposed Directive, through the inevitable delay before  it can enter into 
force,  gives to  small foundries the temporary exemption provided  by PARCOM 
Decision 92/4. 

V . What economic effects  is the proposal likely to have ? 

a) 

Competitiveness 

Companies manufacturing  and processing non-ferrous  metals are unlikely to  suffer 
more by using a substitute than by using HCE.  The use of HCE is becoming 
progresively more expensive as the HCE market shrinks and unit prices rise. 

b) 

Employment 

The temporary exemptions and indefinite derogations from the HCE ban,  provided 
by the proposal, will ensure that there is minimal effect  on employment. 

VI. 

Consultation 

The following  industry associations were consulted on preparation of the proposal 
in a series of three meetings of experts. 

INDUSTRY 

REPRESENTATIVE  ASSOCIATION 

Aluminium 

European Aluminium Association 

Other Non-Ferrous Metals 

Association Européenne des Métaux 

Industry  would  have liked  to  see more exemptions  to  the  proposed  ban notably  in so  far 
as  this  concerns  magnesium  alloys.  They  thus  reflected  the  concerns  of  one  of  the 
Industry  did  not  however  oppose  the  proposal.  (More 
Member  States  in  this  regard. 
exemptions  in the  proposal  than in the PARCOM Decisions  would  create  legal  problems 
and trade barrriers and can not be accepted). 

12 

ISSN 0254-1475 

COM(94) 570 final 

DOCUMENTS 

EN 

14 

Catalogue number : CB-CO-94-593-EN-C 

ISBN 92-77-83199-5 

Office for Official  Publicauons of the European Communities 

L-2985 Luxembourg