Proposal for a European Parliament and Council Directive amending Directive 76/116/EEC on the approximation of the laws of the Member States relating to fertilizers, as regards the marketing in Austria, Finland and in Sweden of fertilizers containing cadmium
Date: 1998-02-11
Institutions: European Commission
Subjects: European standard, approximation of laws, derogation from EU law, fertiliser, marketing

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 11.02.1998 
COM(1998) 44 final 

98/ 0026 (COD) 

Proposal for a 

EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE 

amending 
Directive 76/116/EEC on the approximation of the laws of the Member States 
relating to fertilizers, as regards the marketing in Austria, Finland and in Sweden of 
fertilizers containing cadmium 

(presented by the Commission) 

Explanatory  Memorandum 

Directive  76/116/EEC,  the  mother  Directive  on  fertilizers,  was  introduced  as  a  measure 
to  eliminate  barriers  to  trade  in  respect  of  controls  on  composition,  packaging  and 
labelling.  Member  States  must  allow  the  placing  on  the  market  on  their  territories  of 
fertilizers  included  in the Annexes to this Directive, termed "EC-Fertilizers".  Specifically 
Article  7  stipulates  that,  without  prejudice  to  the  provisions  of  other  Community 
Directives,  Member  States  may  not  on  grounds  of  composition,  identification,  labelling 
or  packaging  prohibit,  restrict  or  hinder  the  marketing  of  fertilizers  marked  "HC-
Fertilizer" which  comply  with  the provisions  of Directive  76/116/EEC  and  the  Annexes 
thereto. 

In  particular,  Member  States  may  not  prohibit  restrict  or  hinder  the  marketing  of  EC-
Fertilizers  because  of  their  content  of  cadmium  as  a  cadmium  limit  is  not  specified  in 
Directive 76/116/EEC and the Annexes thereto. 

Austria,  Finland  and  Sweden,  which  for  several  years  have  restricted  the  marketing  on 
their  territories  of  fertilizers  containing  cadmium,  negotiated  derogations  from  Article  7 
of  Directive  76/116/EEC  when  they  acceded  to  the  EU.  According  to  the  Accession 
Treaties,  Article  7,  in  so  far  as it concerns  cadmium,  will  not  apply  to  Austria,  Finland 
and  Sweden  for  4  years  from  the  date  of  accession  i.e.  until  1st  January  1999.  The 
Accession  Treaties  further  provide that  Article  7, in  so far  as it contains  cadmium,  shall 
be reviewed within this period according to EC procedures. 

The  Commission  has  now  reached  certain  conclusions  in  the  context  of  its  review  of 
Article 7. 

With  regard  to  the  situation  in  the  EU  overall,  it  has  been  concluded  that  there  is 
insufficient  data  available  on  the  exposure  of  risk  groups  and. on  environmental 
conditions  in Member  States to judge  whether  or not  cadmium  in  fertilizers  presents an 
unacceptable  risk.  Further  work  is  needed  to  identify  data  requirements,  gather  data. 
analyse  the  data,  and  come  to  definitive  conclusions  on  the  risks  posed  by  cadmium  in 
fertilizers  in the EU. This means that the review  will  not be completed  in the  four  years 
as  planned  but  will  continue  for  several  years  beyond  31st  December  1998.  The 
estimated completion date is 31st December 2001. 

With  regard  to  the  specific  situation  in  Austria,  Finland  and  Sweden  it  has  been 
concluded  that  questions  remain  to  be answered  about  the  particular  risks  to  health  and 
the  environment  posed  by  cadmium  in  fertilizers.  This  means  that  the  derogations  from 
Article  7,  in  so  far  as  it.concerns  cadmium,  should  be  supplemented  by  a  further 
derogation  from  1st  January  1999  until  the  new  date  for  completing  the  review  of  this 
Article, estimated to be 31 st December 2001. 

The purpose  of the present  Directive  is to amend  Article  7 so as to provide  a derogation 
for  Austria,  Finland  and  Sweden  allowing  them  to  restrict  the  marketing  of  fertilizers 
because of cadmium content during the period  1st January  1999 to 31st December 2001. 

Justification 

A  further  derogation  for  Austria,  Finland  and  Sweden  from  Article  7,  in  so  far  as  it 
concerns  cadmium,  is needed  for  the period  1st January  1999 to  31st December  2001  to 

d 

allow for the fact that the review of Article 7 may only be completed by 31st  December 
2001  rather than by 31st December 1998 as foreseen by the Treaties of Accession. 

Subsidiarity 

The supplementary derogation from Article 7 can not be arranged by the Member States 
concerned  on their own initiative. The onlyjway  of providing for the derogation  is  by a 
Commission  proposal  to  the  European  Parliament  and  Council  amending  Article  7  of 
Directive 76/116/EEC. 

Consultation 

The Working  Group on Fertilizers which includes  Member State competent authorities, 
EFTA  State  Competent  authorities  and  industry  (European  Fertilizer  Manufactures 
Association  and European Fertilizer  Importers Association)  discussed  the principle  of a 
further derogation from Article 7 for Austria, Finland and Sweden when they met on 19th 
November  1997.  No  particular  problems  were  raised.  Furthermore,  the  competent 
authorities of Member States were consulted by fax on the text of the draft proposal. 

Proposal  for  a Directive  of the European  Parliament  and  of the  Council  amending 
Directive  76/116/EEC on  the  approximation  of the laws  of the  Member  Stairs 
irhiting  to  fertilizers,  as  regards  the  marketing  in Austria,  Finland  anil  in  Sweden <>! 
fertilizers  containing  cadmium 

TI IE  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  Commission1, 

Having  regard  to the  Opinion  of the Economic  and  Social  Committee2, 

Acting  in accordance  with the procedure  laid down  in Article  189b of the  Treaty3. 

Whereas  Article  69  and  Annex  VIII  to the  Act  of Accession  to the  EU  of Austria  provide 
that  Article  7  of  Council  Directive  76/116/EEC4,  in  so  far  as  it  concerns  the  cadmium 
content  of  fertilizers,  shall  not  apply  to  Austria  before  1  January  1999  and  that  these 
provisions  be reviewed  in accordance  with  EC procedures  before  31 December  1998; 

Whereas  Article  84  and  Annex  X  to  the  Act  of  Accession  to  the  EU  of  Finland,  provide 
that  Article  7  of  Directive  76/116/EEC,  in  so  far  as  it  concerns  the  cadmium  content  of 
fertilizers,  shall  not  apply  to  Finland  before  1 January  1999  and  that  these  provisions  be 
reviewed  in accordance  with  EC  procedures  before  31  December  1998; 

Whereas  Article  112  and  Annex  XII  to  the  Act  of  Accession  to  the  EU  of  Sweden 
provide  that  Article  7  of  Directive  76/116/EEC,  in  so  far  as  it  concerns  the  cadmium 
content  of  fertilisers,  shall  not  apply  to  Sweden  before  1  January  1999  and  that  these 
provisions  be reviewed  in accordance  with  EC procedures  before  31 December  1998; 

Whereas  the  said  review  cannot  be  completed  by  31  December  1998  because  of  the 
absence  in  many  Member  States  of  the  exposure  data  needed  to  evaluate  the  risks  of 
cadmium  in  fertilizers  to  health  and  the  environment  and  whereas  the  review  needs  to  be 
continued  by performing  further  work  after  this date; 

Whereas  the  further  work  should  evaluate  the  risks  in  Member  States  from  cadmium  in 
fertilizers  to  health,  including  to  the  health  of  vulnerable  population  groups,  and  to  the 
environment  and  whereas this can only  be accomplished  after  several  years; 

Whereas  a  risk  assessment  of  cadmium  in  the  framework  of  Council  Regulation 
739/93/EC5  has  been  launched  and  whereas  the  results  will  become  available  only  after 
several  years; 

XXX 

2  XX 
' xxxx 
4 OJ I, 24, 30.1.1976, p. 21, as last amended by Council  Directive 97/63, OJ L 335, 6.12.1997, p. 15 
• OJ  L 84, 5.4.1993, p. 1 

V 

Whereas,  apart  from  the  obligation  to  review  provided  for  by  the  Acts  of  Accession  of 
Austria,  of  Finland  and  of  Sweden,  review  of  Community  legislation  in  force  can  always 
Iv  divided  aivordinp.  to  ('otnmunih  procedure;.  :\\u\  whevevi  (\»nimumf\  I. i-i  liu.-n  .  m 
piovidc  lui  derogations  lor  limited  periods  lor  certain  Member  Stales  because  ul 
IIK 
specificity  of their  situations, 

HAVE  ADOPTED  THIS  DIRECTIVE: 

Article  I 

The following  paragraphs  are added  to Article  7 of  Directive  76/116/EEC 

"However,  Austria,  Finland  and  Sweden  may  prohibit  the marketing  on their  territories  of 
fertilizers  containing  cadmium  at  concentrations  in  excess  of  those  which,  were  fixed 
nationally  at  the  date  of  Accession.  The  derogation  shall  apply  for  the  period  from  1 
January  1999 until  31 December  2001. 

The  Commission  shall,  in consultation  with  Member  States  and  interested  parties,  review 
by  31  December  2001  the  need  for  establishing  provisions  at  European  level  concerning 
the cadmium  content  of  fertilizers." 

Article  2 

Austria,  Finland  and  Sweden  shall  adopt  and  publish  the  provisions  necessary  to  comply 
with  this  Directive by  31 December  1998 at the  latest. 

This Directive  is addressed  to Austria, Finland and Sweden. 

Article  3 

For the European Parliament 

For the Council 

The President 

The  President 

S 

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i i /> 

COM(98) 44  final 

DOCUMENTS 

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Catalogue  number  :  GB-CO-98-046-EN-C 

ISBN  92-78-30457-3 

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