1999/831/EC: Commission Decision of 26 October 1999 concerning the national provisions notified by the Kingdom of the Netherlands concerning the limitations of the marketing and use of pentachlorophenol (PCP) (notified under document number C(1999) 3419) (Text with EEA relevance) (Only the Dutch text is authentic)
Date: 1999-10-26
Institutions: European Commission
Subjects: Netherlands, chemical product, dangerous substance, marketing restriction, national law

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L 329/15

COMMISSION DECISION

of 26 October 1999

concerning the national provisions notified by the Kingdom of the Netherlands concerning the
limitations of the marketing and use of pentachlorophenol (PCP)

(notified under document number C(1999) 3419)

(Only the Dutch text is authentic)

(Text with EEA relevance)

(1999/831/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Community, and in particular Article 95(6) thereof,

(a)

for the treatment of wood. However, treated wood
may not be used inside buildings and not for the
manufacture of containers
intended for growing
purposes or packaging which may come into contact
with products intended for human and/or animal
consumption;

Whereas:

(b) for the impregnation of fibres and heavy-duty textiles
decorative

intended

clothing

for

for

or

not
furnishings;

I. FACTS

(c) as a synthesising and/or processing agent in industrial

processes;

1. Community legislation: Directive 91/173/EEC

(1) Council Directive 76/769/EEC of 27 July 1976 on the
approximation of the laws, regulations and administrative
provisions of the Member States relating to restrictions
certain dangerous
on the marketing
and use of
substances and preparations (1), as
last amended by
Commission Directive 1999/77/EC (2), provides for the
prohibition and restriction of
certain
dangerous
preparations. Directive
and
76/769/EEC is regularly amended to include in its Annex
additional substances which are dangerous to man or the
environment.

the use of

substances

(2) Council Directive

91/173/EEC (3), which

amends
Directive 76/769/EEC for the ninth time, harmonises the
placing on the market and use of pentachlorophenol (in
the following: PCP) and its salts and esters. Directive
91/173/EEC prohibits the marketing and use of PCP and
its salts and esters in substances or preparations in a
concentration equal to or greater than 0,1 % by mass.

(3) However, four exceptions are granted. The use of PCP
and its compounds in industrial installations is permitted:

(1) OJ L 262, 27.9.1976, p. 201.
(2) OJ L 207, 6.8.1999, p. 18.
(3) OJ L 85, 5.4.1991, p. 34.

(d) for the in situ treatment of buildings of cultural and
historic interest (subject to individual authorisation
by the Member State concerned) as a remedial
treatment of timber and masonry infected by dry rot
fungus and cubic rot fungi.

have

above must

such or as a constituent of
In any event, PCP as
preparations used on the basis of the exceptions referred
to
total hexachlorodibenzo-
a
paradioxine (H6CDD) content of less than four parts per
million. The substances and preparations concerned may
not be placed on the market except in packages of 20
litres or more, may not be sold to the general public and
must,
in addition to the labelling required by other
Community provisions, be labelled with the sentence
(cid:145)Reserved for industrial and professional use(cid:146).

no

later

after

three

years

(4) The Directive provided that these exceptions had to be
reconsidered in the light of changes in knowledge and
technology
the
than
implementation of the Directive. The first review of the
Directive was carried out
in the course of 1995.
Discussions within the working group on limitations of
the marketing and use of dangerous substances and
preparations
to amend
Directive 76/769/EEC as far as PCP is concerned, as the
group held the opinion that the assessment of possible
substitutes had not led to acceptable results and needed
further examination.

conclusion not

led to the

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(5) This examination was concluded in the course of 1998
adoption of
when a
second review led to the
Commission Directive 1999/51/EC (4), which among
others, adapts
the provisions
to technical progress
concerning PCP and its salts and esters. According to the
amended provisions, PCP and its salts and esters may not
be placed on the market and used in substances or
preparations in a concentration equal to or greater than
0,1 % by mass. This amounts to a ban on the use of
substances and preparations to which PCP and its salts
and esters have been added intentionally. The new
provisions are to be applied as of 1 September 2000. By
way of derogation, France, Ireland, Portugal, Spain, and
the United Kingdom may continue to apply the former
legislation until 31 December 2008.

2. National provisions

legislation:

(6) The legal system of the Netherlands concerning PCP is
the
established by four different pieces of
Controlled Substances Act (also referred to as Pesticides
Law) of 1962 (5), Chapter IX (cid:145)Wood and Cork(cid:146) of the
Regulation on packaging and consumer products from
1980 (6),
to
the Law on environmentally hazardous
Article 24 of
and the Regulation on
substances
pentachlorophenol under the commodities Act from 11
February 1994 (8).

the Order of 18 August 1992 pursuant

from 1992 (7),

for

provides

substances,

(7) The legislation established by the Controlled Substances
Act of 1962 and the executing Decision concerning the
composition, classification, packaging and labelling of
control
adopted on 22 February 1980
called the SIVEB Decision) (9) with its
(hereinafter
subsequent
general
amendments
prohibition of the substances concerned combined with
an approval
system on an individual basis. The
Controlled Substances Act covers crop control substances
or non-agricultural control substances (Article 1(1)(f)),
which may not be supplied, possessed, kept in stock,
marketed, or used in the Netherlands unless approved
pursuant to the Act (Article 2(1)). Article 3(1) defines the
general conditions that a control substance has to meet
for permission (inter alia, to have no harmful effect on
human health, ground water and no unacceptable effects
on the environment).

a

(8) Based on the Controlled Substance Act,

the SIVEB
Decision (forming a ministerial regulation), provides for

(4) OJ L 142, 5.6.1999, p. 22.
(5) Law Gazette of the Netherlands 1962, No 288, as amended by the
Act of 25 December 1994, Law Gazette of the Netherlands 1995,
No 4.

(6) Law Gazette of the Netherlands 1980, No 18.
(7) Law Gazette of the Netherlands 1992, No 455.
(8) Law Gazette of the Netherlands 1994, No 35.
(9) Law Gazette of the Netherlands 1980, No 43.

the admissible contents of active agents
in control
substances. This forms the basis for subsequent approvals
(licenses) of the competent Minister to use the control
substances falling under the Controlled Substances Act.
In the case of PCP, the SIVEB Decision provides for a
maximum content of certain impurities: hexachloro-
benzene 1 g/kg, hexachlorodibenzoparadioxines 10 mg/kg
(= 10 ppm), heptachlorodibenzoparadioxines (100 mg/kg),
trichlorophenol
dibenzofuranes
(500 mg/kg). All approvals granted for the treatment of
wood with PCP containing products had expired in 1989.
The last remaining approval for the treatment of textiles
expired in 1992.

chlorinated

g/kg),

(1

and

packaging

(9) The Regulation on packaging and consumer products of
1980 establishes among others, that wood and cork used
as
be
consumer
manufactured by using substances that are specified in
the Annex to the Decision on packaging and consumer
products (10). Raw materials and adjuvants may not be
used in any way other than specified in the Annex. PCP
and its salts and esters are not listed as permitted wood
preservatives and therefore cannot be used.

products must

hazardous

substances

(10) The Order on the basis of Article 24 of the Law on
environmentally
from 1992
prohibits in general the marketing and use of PCP and its
salts and esters for any purpose if their concentration
exceeds 0,1 %. Exemptions are given for
the use as
intermediates in closed industrial processes under the
condition that
the
content of hexachlorodibenzoparadioxine is below 4 ppm,
and for purposes of
laboratory research. The Order
further establishes a complete ban on the sale to private
consumers, a minimum drum size of 20 litres, and a
labelling
and
(cid:145)Reserved
professional use(cid:146).

there are no emissions and that

requirement

industrial

for

(11) The Regulation under the commodities Act on PCP from
1994 stipulates that goods treated with PCP may not be
placed on the market in the Netherlands if they contain
more than 5 mg/kg PCP.

3. Comparison between the national provisions and

Directive 91/173/EEC

(12) When comparing the Community legislation and the
Netherlands provisions,
the national
measures are more restrictive in one essential aspect: the
substances or
placing on the market and use of
preparations containing PCP and its salts and esters for
the treatment of wood and the impregnation of fibres

it emerges

that

(10) Law Gazette of the Netherlands 1979, No 558.

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and heavy-duty textiles, which are allowed by the
the
are
Community Directive,
Netherlands.

permitted

not

in

(13) On the other hand,

the Netherlands provisions are
potentially less restrictive than the Community Directive,
as the Controlled Substances Act of 1962 does not
clearly limit the areas of use for which approvals could
be granted. This is done in the individual approvals. The
Netherlands authorities could, therefore, approve the use
allowed by Directive
of PCP for
of
91/173/EEC.
hexachlorodibenzoparadioxine
could
theoretically be approved for use) is 10 ppm and thus
higher than the limit value of 4 ppm established by the
Community Directive.

applications not
Furthermore

limit
PCP

the
in

value

(that

(14) As

already

indicated,

the provisions of Directive
76/769/EEC regarding PCP have been amended by
Directive 1999/51/EC, and shall be applied by the
Netherlands as from 1 September 2000. The Dutch
legislation, for which approval according to the former
Article 100a(4) has been requested,
is in line with the
new Community provisions.

II. PROCEDURE

(15) Directive 91/173/EEC was adopted on 21 March 1991.
Member States had to bring into force the national
provisions necessary to comply with the Directive before
1 July 1992 (Article 2(2)).

informed

the Commission that

(16) By letter of 21 January 1992, the Netherlands Permanent
Representative
the
Netherlands considered it necessary to maintain or adopt,
in accordance with the former Article 100a(4) of the EC
Treaty, national legal provisions, which provide for more
restrictive measures on the use of PCP in the treatment of
wood and the impregnation of
fibres and heavy-duty
textiles (sub-points (a) and (b) of point 23 of the Annex
of Directive 91/173/EEC)
the
environment and also public health. By letter of 30
March 1992 the Netherlands Permanent Representative
notified a draft regulation on PCP under the Commodities
Act prohibiting the marketing and use of goods treated
with PCP, and requested a confirmation under the former
Article 100a(4) to adopt this legislation.

to protect

in order

(18)

Ireland informs the Commission that it has no objections
to the request presented by the Netherlands authorities.

(19) Denmark supports the Netherlands’ request and agrees
with the Netherlands assessment of the danger of PCP to
human life and the environment. A total ban on PCP is
the only acceptable solution to Denmark. Denmark also
reserves the right to apply stricter national rules.

(20)

In supporting the Netherlands views, Germany refers to its
own request under the former Article 100a(4).

(21) France contests the Netherlands request. According to the
the justification
the French authorities,
evaluation of
submitted by the Netherlands authorities is insufficient,
the national provisions do not
the rule of
proportionality, and the economic consequences for the
functioning of the internal market and trade with third
countries are important.

respect

(22) Spain holds the opinion that the restrictions imposed by
Directive 91/173/EEC are
the
protection of the environment and consumer health. A
positive decision on the Netherlands request would create
an imbalance detrimental
the
Internal Market. Spain favours an overall revision of the
Directive as the most sensible solution to the problem.

to the completion of

to ensure

sufficient

(23) Greece considers that Directive 91/173/EEC ought to be
implemented correctly by all Member States, as
the
effects of national measures on the Internal Market would
be important. National measures are only justified if it
consumer
can
protection as provided for by the Directive are not
adequate.

environmental

shown

that

be

or

(24) Portugal doubts that the Netherlands national measures
are in conformity with the principle of proportionality,
as the exemptions in the Directive had been deemed
necessary due to the non-existence of safer and equally
efficient alternatives. Portugal is opposed to a derogation
for the Netherlands as the Netherlands authorities have
failed to produce any justification that was not known at
the moment when the Directive was adopted.

(17) The Commission consulted the other Member States by
letter of 27 April 1992, supplemented by a letter of 26
June 1992, with regard to the Netherlands request to
apply stricter national provisions on PCP. Seven Member
States replied:
Ireland, Denmark and Germany support
the Netherlands request, whilst France, Spain, Greece and
Portugal are opposed.

(25) By letter of 23 September 1993,

the Commission
informed the Netherlands authorities that in its opinion
the draft Regulation on PCP under the Commodities Act
as notified by the Netherlands on 30 March 1992 was
outside the area of harmonisation established by the
provisions of Directive 91/173/EEC. The draft Regulation
treated with PCP. The
concerned exclusively goods

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to

expressed

opposition

Netherlands
this
their
interpretation by letter of 4 March 1994. However, the
Court supported the position of the Commission in its
judgement of 1 October 1998, according to which,
(cid:145)Article 1(1) of Directive 76/769/EEC, as amended by
Directive 91/173/EEC, does not apply to products treated
with PCP,
its salts and esters or with a preparation
produced from that substance, with the result that the
Member States remain in principle free to fix limit values
for such products independently(cid:146) (11).

(26) By letter of 8 November 1995, the Commission informed
the Netherlands authorities that with regards to the
notification of 21 January 1992, the Commission was
intending to carry out an assessment of the risks to man
and the environment of PCP and its substitutes. The
assessment was expected to be finalised in 1998 and
lead to an adaptation of the
could,
Community Directive. Under these circumstances,
the
Commission did not see it opportune to take a final
decision on the notification presented by the Netherlands.

if found necessary,

(27) The review process was concluded in 1998 and led to an
the provisions of Directive 76/769/EEC
adaptation of
regarding
through Directive 1999/51/EC (see
Chapter I above). The amending Directive did eliminate
the derogation for wood and textile
in principle
treatment
the Community
in
Directive.

originally

included

PCP

(28) On the 1 May 1999, the Treaty of Amsterdam amending
the Treaty on European Union, the Treaties establishing
the European Communities and certain related acts,
signed at Amsterdam, 2 October 1997, entered into
force. By letter of 22 September 1999 the General
Secretariat of the Commission informed the Netherlands
authorities of the fact that their notification regarding the
placing on the market and use of PCP would be treated
in the framework of the new provisions of the Treaty.

(30) The Treaty of Amsterdam does not comprise specific
transitional provisions on the rules applicable to the
notifications made previously to the time of entry into
force of
like the Netherlands notification,
which is the subject of this Decision.

this treaty,

(31)

In the absence of specific provisions extending their
application, the old provisions of Article 100a(4) of the
EC Treaty are regarded as repealed from the day of the
entry into force of the new provisions (1 May 1999).
Instead,
apply
immediately from that date to the examination of this
notification.

the new provisions of

the Treaty

2. Consideration of admissibility

(32) The notification submitted by the Netherlands authorities
on 21 January 1992 intends to obtain the authorisation
to maintain national provisions
incompatible with
Directive 91/173/EEC, which constitutes a harmonisation
measure adopted on the basis of the former Article 100a
(now Article 95) of the EC Treaty.

(33) Article 95(4) of the Treaty reads as follows: (cid:145)If, after the
adoption by the Council or by the Commission of a
harmonisation measure,
it
necessary to maintain national provisions on grounds of
major needs referred to in Article 30, or relating to the
the working
protection
environment
environment,
these
provisions as well as the grounds for maintaining them.(cid:146)

it shall notify the Commission of

a Member State deems

the

or

of

III. ASSESSMENT

1. Applicable rules

(34) Directive 91/173/EEC was adopted on 21 March 1991.
Member States had to bring into force the national
provisions necessary to comply with the Directive before
1 July 1992. The Netherlands notified the provisions of
its national regulations that it intended to maintain on
21 January 1992 and thus before the date foreseen for
the application of the national provisions transposing the
Directive.

the former Article 100a of

(29) The Treaty of Amsterdam has amended substantially the
provisions of
the Treaty
establishing the European Community, by replacing
paragraphs 3, 4 and 5 of this Article with eight new
paragraphs numbered 3 to 10. Due
to the new
the amended Article has
numbering of all articles,
become Article 95 of
the Treaty establishing the
European Community.

(11) Case C-127/97, point 31.

(35) The Netherlands provisions

in question, namely the
Control Substances Act was adopted in 1962. All
approvals for application of PCP for wood treatment had
expired before 1989.
It had been decided on 26 May
1989 that the last approval for the treatment of textiles
with a PCP ester was to expire on 1 July 1992.
In
conclusion, the more restrictive legislation regarding the
use of PCP for the treatment of wood and textiles had
thus been adopted before Directive 91/173/EEC was
adopted (21 March 1991).

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(36)

(37)

It is therefore well justified to consider that in this case
the conditions of Article 95(4) of the Treaty are met,
according to which the national provisions notified, for
which a Member State wishes to obtain approval
for
maintaining them after the date of implementation of a
Community harmonisation measure, must have been
adopted before the adoption of
that harmonisation
measure.

regulation on PCP under

In addition, the Netherlands Authorities notified on 30
March 1992 a draft
the
Commodities Act and requested the authorisation for
approval of this draft under the former Article 100a(4).
The Regulation was finally adopted on 11 February
1994. However,
it has been explained in the previous
chapter that the provisions of this national regulation are
scope of harmonisation of Directive
outside
the
to this
91/173/EEC and are
Decision.

therefore not

subject

Netherlands Government
submitted
studies (12) by a letter of 26 April 1994.

five

additional

(41) The Commission mandated a study to an external
consultant to examine the situation in the Netherlands
concerning the pollution with dioxines and furanes and
the use of PCP (13). Further studies, which were mandated
by the Commission in the framework of similar requests
from Germany and Denmark, have also been used. In
addition,
the
in the course of
provisions of Directive 91/173/EEC,
the Commission
prepared a report on the operation of the Directive and
on the substitutability of PCP (14), and mandated further
studies to external consultants on the risks posed by
PCP (15) and possible substitutes for the treatment of
wood and textiles (16). The Commission consulted the
Scientific Committee for Toxicity, Ecotoxicity, and the
Environment on the basis of the last study on the risks
posed by PCP. The Committee adopted its opinion on 27
November 1998.

the review process of

(38)

In the light of what precedes, the Commission considers
that the request of the Kingdom of the Netherlands for
derogation from Directive 91/173/EEC as notified on 21
January 1992 under
is
admissible under Article 95(4) of the EC Treaty.

the former Article 100a(4)

(42)

3. Assessment of merits

(39)

in particular,

the Commission has

In accordance with the provisions of Article 95 of the
the
Treaty,
to assure that all
conditions enabling a Member State to avail of
the
possibilities of derogation provided for in this article are
to verify
met. The Commission has,
whether the provisions notified by the Member State are
justified by the major needs of protection referred to in
Article 30, or relating to the environment or working
environment. In addition, the Commission has to verify,
these measures are justified,
when it considers
whether or not
arbitrary
are
discrimination or a disguised restriction on trade between
the Member States, and whether or not they constitute
an obstacle to the functioning of the internal market
(Article 95(6)).

a means of

that
they

(40) The Netherlands authorities have based their request on
the need of protection of
the environment and also
human health. In support of their request of 21 January
1992 they submitted a brief analysis on the health and
environmental effects of PCP, short summaries in the
form of explanatory notes to existing or draft national
legislation, as well as the texts of some parliamentary
questions and replies concerning the marketing and use
of PCP. After numerous contacts with the Commission
services and in order to further substantiate its request
the
from Directive
for

91/173/EEC

derogation

It has to be noted that, in the light of the time frame
established by Article 95(6), which did not exist in the
former Article 100a(4) under the regime of which the
Netherlands request was notified, these substantial efforts
of the Commission to find additional elements for the
justification of
the Netherlands
the maintenance of
national provisions cannot constitute a precedent for the
future. When examining whether the national measures
notified under Article 95(4) are justified by a major need,
the Commission has to take as a basis (cid:145)the reasons(cid:146) put
forward by the Member State to justify the maintenance
of its national provisions. This means that, according to
the provisions of the Treaty, the responsibility of proving
that these measures are justified, lays on the requesting

(12) Integrated

document

chlorophenols. RIVM report No

criteria
710401013, August 1991.
Assessment of the integrated criteria document chlorophenols. Advisor
report by the Committee on Risk Assessment of Substances of the
Health Council of the Netherlands.
Basisdocument dioxinen. RIVM report No 710401024, February
1993.
Emissies van dioxinen in Nederland. RIVM and TNO report No
770501003, April 1993.
Besluit
Order including Explanatory Note.

luchtemissies afvalverbranding. A General Administrative

(13) C. Rappe, Concerning Pentachlorophenol and dioxins. Final report,
Institute of Environmental Chemistry, Umea University, Umea,
December 1994.

(14) Report to the Commission on Pentachlorophenol (PCP), Brussels,
14 December 1994. The report was established after consultation
of all Member States and other interested stakeholders who had
been informed through a note published in the OJ C 315,
12.11.1994, p. 4. Three studies prepared by external consultants
have also been taken into account.

(15) Environmental Resources Management, Assessment of

the Risks
Posed by Pentachlorophenol (PCP) through the Exposure of Man and the
Environment to Dioxins, Final Report, London, December 1997.

(16) The Consultant

(cid:145)Cabinet

hazard
assessments and reports on the suitability as substitutes to PCP in
wood and textile treatment for five substances. The Final reports
were submitted in September 1998.

Paracelse(cid:146)

prepared

has

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22.12.1999

procedural

State. Given

Member
framework
the
established by Article 95, the Commission normally has
to limit itself to examining the relevance of the elements
which are submitted by the requesting Member State,
without having to seek itself possible
reasons of
justification.

(45) With the aim of eliminating pollution of

the various
parts of the aquatic environment, which could be affected
by discharges of PCP, limit values were fixed by Council
Directive 86/280/EEC of 12 June 1986 (21) on limit
values and quality objectives for discharges of certain
dangerous substances included in List I of the Annex to
Directive 76/464/EEC.

3.1. Justification on grounds of major needs

3.1.1. PCP (cid:151) general information

(43) PCP is a synthetically manufactured chemical substance,
which is recognised as being dangerous for both man
and the environment. The classification and labelling of
PCP are harmonised at Community level in accordance
with Council Directive 67/548/EEC of 27 June 1967
relating to the classification, packaging and labelling of
dangerous substances (17), as last amended by Directive
99/33/EC (18), PCP is:

cannot be

(cid:151) classified as a category 3 carcinogen, i.e. a substance
of concern to man because of a possible carcinogenic
effect which, however,
satisfactorily
assessed given the information available. Evidence is
available from appropriate studies on animals but it
is not sufficient to place the substance in the group
of category 2 carcinogens. Such a substance is
labelled with the risk phrase (cid:145)R 40: Possible risk of
irreversible effects(cid:146),

and

polychlorodibenzodioxins

(46) PCP contains dangerous impurities including up to 0,1 %
5 % of
of
polychlorinated phenoxyphenols. PCP alone and these
impurities are contributing to the daily emission of
dioxins into the environment. Dioxins are emitted when
products treated with PCP are exposed to the sun and
when they are incinerated at the end of their useful life.
PCP in sewage sludge is also a source of dioxins.

to

1

(47) PCP is used as:

(cid:151) wood preservative (fungicide and anti-blueing agent),

(cid:151) agent

for
(fungicide),

the impregnation of

industrial

textiles

(cid:151) bactericide in tanning and the paper pulp industry,

(cid:151) molluscicide in the treatment of industrial water, in

particular cooling water, and sometimes as

(cid:151) sterilising agent.

(cid:151) classified as very toxic by inhalation and labelled (cid:145)R

26: Very toxic by inhalation(cid:146),

(48) Because of its toxicity, PCP has been made subject to

various restrictions in more than thirty countries.

(cid:151) classified as

toxic in contact with skin and if
swallowed and labelled (cid:145)R 24/25: Toxic in contact
with skin and if swallowed(cid:146),

3.1.2. The position of the Netherlands

(cid:151) classified as irritating to eyes, the respiratory system
and skin and labelled (cid:145)R 36/37/38: Irritating to eyes,
respiratory system and skin(cid:146),

(49)

In their notification of 21 January 1992, the Netherlands
authorities base the more stringent national measures on
major
the
to
environment and human health.

protection

relating

needs

the

of

(cid:151) classified as dangerous

the environment and
for
labelled (cid:145)R 50/53: Very toxic to aquatic organisms,
may cause long-term adverse effects in the aquatic
environment(cid:146).

esters and salts)

(50) According to the Netherlands authorities, PCP (including
its
in the
is
environment and is toxic to man and organisms in the
end
environment. PCP is
aquatic
dispersed through all environmental media.

scarcely degradable

relatively mobile

(44) As an organohalogene compound, PCP is included in List
I of Council Directive 76/464/EEC of 4 May 1976 on
substances
pollution caused
the
of
into
discharged
Community (19),
Directive
91/692/EEC (20). This list contains substances that are
selected mainly on the basis of their toxicity, persistence
and bioaccumulation.

certain dangerous
aquatic

environment

by
the
as

amended

by

(17) OJ 196, 16.8.1967, p. 1.
(18) OJ L 199, 30.7.1999, p. 57.
(19) OJ L 129, 18.5.1976, p. 23.
(20) OJ L 377, 31.12.1991, p. 48.

effects.

PCP and its

(51) PCP accumulates in fat tissue and thus in the food chain.
Its esters and salts break down in PCP and thus have
are
similar
contaminated with
and
chlorinated
dibenzofuranes. These compounds are also formed when
PCP is incinerated in waste. Consequently, uses of PCP
environmental
constitute
contamination with chlorinated dibenzodioxins
and
dibenzofuranes.

and esters
dibenzodioxins

significant

source

salts

of

a

(21) OJ L 181, 4.7.1986, p. 16.

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(52) The Netherlands authorities recall that the dangers of PCP
for the aquatic environment were already acknowledged
on European level
in 1976: Directive 76/464/EEC
provides that the best available technology must be used
to prevent emissions of PCP to surface waters.

(53) Paragraph c of Annex 1B to the final declaration of the
third North Sea Conference lists PCP as a substance, the
use of which in pesticides should be strictly limited or
terminated.

(54) The Netherlands authorities also point out

that, with
regard to drinking water production, the presence of PCP
in ground and surface water in concentrations greater
than 0,1 pg/l is not acceptable. In this context they refer
to the pollution of the Rhine and Meuse, which are also
in the
the production of drinking water
used for
Netherlands. Therefore, measurable emissions of
this
substance to water,
should be avoided
through replacement in all cases by other substances.

soil and air

(55)

In 1992, the major emissions of PCP occurred to the
atmosphere (48 tonnes per year), mostly originating from
treated wood. Approximately 14 tonnes of PCP per year
were deposited on soil and water from air, 11,5 tonnes
originating from PCP contained in treated wood.

(56) The major use of PCP was as wood preservative. This
was banned in 1989, when the necessary approvals were
not renewed. Already before that date, in the time period
from 1984 to 1987, consumption had declined from
300 tonnes a year to 0,2 tonnes. PCP was used to a
leather, colour, paper,
smaller extent in glues, textiles,
and cooling fluids. PCP was never produced in the
Netherlands.

(57)

(58)

letter of 6 February 1995,

In a
the Netherlands
authorities communicated calculations on the emission of
dioxines to the Commission, which showed that in the
year 2000 the use of PCP in the past will form the major
source of dioxine emissions (20 g out of 58 g from all
sources,
incineration), assuming the
continuation of the existing ban on use. If the use of PCP
was to be allowed again, this situation would become
worse.

including waster

3.1.3. Evaluation of the position of the Netherlands

their

request

It can be seen from the arguments brought forward in
the Netherlands authorities
the preceding chapter that
base
on
derogation exclusively
arguments concerning the general effects of PCP and the
impurities contained in it on health and environment.
They do not claim that there is a specific situation in the
Netherlands in comparison to the other Member States,

for

which would necessitate the more restrictive national
measures.

(59) The study mandated by the Commission to an external
consultant (22) confirms this by concluding that contrary
to the situation in Germany, no special circumstances
exist
in the Netherlands. The Netherlands national
measures could not be justified by a specific need to
protect human health as the exposure to PCP in the
Netherlands was well below acceptable daily doses. This
emerged
documentation
additional
submitted by the Netherlands authorities.

from the

also

(60) The study also contests the arguments used by the Dutch
authorities about the protection of the environment: PCP
undergoes volatilisation, photochemical degradation and
biodegradation and is thus not persistent (23). PCP is
excreted in urine and faeces by all animals and thus does
not accumulate in fatty tissue and in the food chain. The
study also states that the pollution levels of the aquatic
environment, as documented in the Dutch documents (24)
are well below acceptable limit levels. The study could
not detect either a correlation between the concentrations
of dioxines and furanes in the environment or in breast
milk and the use of PCP in the Netherlands. Nor was
there a problem in more general terms (no history of
PCP manufacture; very little use).

(61) However, the provisions of Directive 91/173/EEC contain
a requirement to re-examine the exemptions from the
general ban on the use of PCP and its salts and esters in
the light of developments in knowledge and techniques.
The Community Directive provided for exemptions from
the ban only in those areas where suitable or safer
alternatives could not easily be identified at the time of
adoption. Overall, the risks to man and the environment
of PCP had thus clearly been recognised and addressed in
the light of the available knowledge.

(62) Already as early as 1994,

the Commission started a
review programme dealing with the evaluation of the
risks linked to the use of substitutes for PCP, with the
aim of tightening the restrictions adopted in Directive
91/173/EEC in the direction of a total ban (25). This
programme was concluded in 1998 and did result in the

(22) See footnote 13.
(23) This is also confirmed by the WHO Environmental health criteria

document 71, pentachlorophenol, WHO, Geneva 1987.

(24) See footnote 12.
(25) This was announced in the Commission Decision 94/783/EC
concerning the prohibition of PCP notified by the Federal Republic
of Germany (OJ L 316, 9.12.1994, p. 43) and in the notice
published in the OJ C 315, 12.11.1994 for consulting the
stakeholders before the establishment of the report on PCP.

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conclusion that in fact less dangerous alternatives were
available.

3.3. The absence of a disguised restriction on trade

(63)

(64)

In addition, the Scientific Committee, in its opinion of 27
November 1998 and based on a large amount of
information available in the public domain and the study
by ERM (26), concluded that
in some areas, human
exposure continued even where PCP use had ceased. No
adequate clean-up treatment has yet been found to
remedy
aquatic
from PCP and associated chemicals may
environment
occur, at least in (cid:145)hot spot(cid:146) areas,
involving local PCP
release to the environment.

contaminated

soil. Risks

the

for

the Commission and the Member States,

In the light of the comprehensive review and evaluation
of alternatives carried out in the time period from 1994
to 1998,
in
their endeavour to reach a high level of protection of
health and environment, have considered it necessary to
adopt
the
to the Netherlands
Community, which are equivalent
provisions. Member States will adopt these Community
provisions as from January 2000.

in Directive 1999/51/EC measures

for

(65) The restrictions of the use of PCP in the Netherlands
legislation are considered proportionate in relation to the
pursued objective, as the exceptions to the ban of PCP
established in Directive 91/173/EEC are no longer
deemed to be acceptable if a sufficiently high level of
health and environment protection is to be guaranteed.
Therefore, it can be concluded that, although there are
in
no
circumstances
the more
comparison to the other Member States,
stringent national measures can be regarded as justified.

in the Netherlands

specific

(68) More

in the

restrictive national measures

area of
limitations of marketing and use of products derogating
from the provisions of a Community Directive do
normally constitute a barrier to trade. Products that can
the
be legally placed on the market
in the
Community, cannot be placed on the market
Member States concerned. The concept enshrined in
Article 95(6) is intended to prevent the restrictions based
on the criteria of paragraph 4 being applied for
inappropriate
constituting
and
economic measures introduced to impede the import of
products from other Member States in order to protect
indirectly national production.

in the rest of

reasons,

reality

in

(69) The Commission mandated a study (27) to analyse the
effects on trade and competition of the retention by the
Netherlands of its stricter national provisions. The study
information on the volume and
undertook to collect
trade with other Member States which are affected, the
interest, if any, which the Netherlands may have in using
the national rules to promote a national
in
if any, which the
the interest,
substitutes
Netherlands might have in using the national rules to
promote
to
national
a
PCP-containing products.

substitutes

to PCP,

interest

interest

in

(70) According to the study, neither PCP nor its derivatives
are manufactured in any of the Member States of the
European Community. Substitutes for the treatment of
wood or textiles must be approved according to the same
legislation as PCP, whether they are produced in the
Netherlands or in other Member States. There is no direct
advantage from the national
legislation on PCP to the
producers of substitutes in the Netherlands.

3.2. Absence of arbitrary discrimination

(71)

(66) Article 95(6) obliges the Commission to verify that the
arbitrary
national provisions
are not
discrimination. According to the jurisprudence of
the
Court of Justice, the absence of discrimination means that
no different
should be given to similar
situations, nor similar treatment to different situations.

a means of

treatment

It was established before that there is a real concern with
regards to human health and the environment related to
the use of PCP and treated timber. Furthermore the
national provisions on PCP are a part of a more general
policy on dioxines and furanes. Therefore, there is no
the
evidence
environment
the real goal of maintaining the
national legislation.

the protection of health and

is not

that

(67) The Netherlands regulations apply without distinction to
they are manufactured in the
all products, whether
imported from other Member States.
Netherlands or
Therefore,
the Netherlands
regulations have been used as a means of arbitrary
discrimination between economic operators
in the
Community.

there is no evidence that

(26) See footnote 15.

(72) Overall, the Commission considers therefore that there is
no evidence of a disguised restriction on trade between
Member States provoked by the Netherlands legislation
concerning PCP.

(27) S. J. Davis, The effects of the retention by the Netherlands of its national
rules on pentachlorophenol in place of the rules established by Directive
91/173/EEC, London (UK), May 1995.

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3.4. The absence of obstacles to the functioning of the

internal market

technical progress and there will be no differences
between the Netherlands legislation and the Community
legislation from 1 September 2000, the overall effects on
the functioning of the internal market are judged to be
small.

the

(73) This condition, which is established by Article 95(6), first
subparagraph, is new in comparison to the text of the
former Article 100a(4)
EC Treaty. This
of
requirement cannot be interpreted in such a way that it
prohibits the approval of any national measure likely to
affect the establishment of the internal market. In fact,
any national measure derogating from a harmonisation
measure aiming at the establishment and operation of the
internal market, constitutes in substance a measure that
is likely to affect the internal market. Consequently, to
preserve the useful character of
the procedure for
derogation provided for by Article 95 of the EC Treaty,
the Commission considers that,
in the context of the
Article 95(6), the concept of obstacle to the functioning
to be understood as a
of
disproportionate
in relation to the pursued
objective.

the Internal Market has

effect

(74) There have been no producers of PCP in the Community
after the last manufacturer closed down in France in
1992. Producers in Germany, who started production in
1978 stopped already in 1985. Due to the restrictions in
European and national
levels, considerable amounts of
PCP for wood treatment are used in three Member States
only, and a small quantity for textile treatment for a very
limited use in the military area. Use in the EC has
decreased from 8 000 tonnes in 1986 to 2 000 tonnes in
1994.

(75) The world-wide production of PCP has decreased from
26 000 tonnes in 1986 to 11 000 tonnes in 1994.
Producers are located in the US, India and China.

(76)

PCP

Imports into the Netherlands had already decreased to
around two to four tonnes for wood treatment in 1987,
and thus before the expiration of the last approval, and
treatment. This
37,5 of
for
laureate
the overall
represented already a very small part of
market
the
in the EC. The
Commission (28) did conclude that
the
Netherlands legislation on the market was practically
negligible.

study mandated by
the effect of

textile

(77) Furthermore, although the Netherlands authorities have
legislation since 1 July
continued to apply the national
1992 instead of the Community legislation,
there has
never been a complaint from an economic operator from
within or
in the
meantime the Community legislation has been adapted to

from outside the Netherlands. As

(28) See footnote 27.

(78) Taking into account

the preceding observations,

the
Commission considers that there is no evidence that the
to this Decision do
subject
Netherlands provisions
constitute a disproportionate obstacle to the functioning
of
in relation to the pursued
objectives.

the internal market

IV. CONCLUSION

(79)

In the light of the above considerations, the Commission
is of the opinion that the provisions with regards to the
use of pentachlorophenol as notified by the Kingdom of
the Netherlands pursuant to the former Article 100a(4)
on 21 January 1992 and examined under Article 95(4)
and (6) of the EC Treaty:

(cid:151) fulfil the formal requirements of the said provisions

and are to be admitted,

(cid:151) can be considered justified on grounds of major need

of protection of human health and the environment,

(cid:151) do not

either

constitute

discrimination,
between Member
obstacle to the functioning of the internal market.

arbitrary
a means of
a disguised restriction on trade
a disproportionate

States, or

(80) The Commission therefore has reasons to consider that

the national provisions notified can be approved.

(81)

for

the

limit

impuritird

to be noted that

It has
the Netherlands provisions
concerning PCP comprise an approval system without
limiting clearly the areas of possible use. Furthermore,
the
hexachlorodibenzo-
paradioxines as laid down in the SIVEB Decision of 1980
is higher than in the Community Directive. Article 95(4)
legislation on
only permits the approval of national
grounds of major needs referred to in Article 30, or
the environment or working
relating to protection of
environment. This means
is not possible to
approve national measures that are less protective than
the
laid down in the Directive. Therefore,
those
Netherlands national legislation can only be approved as
its application in practice has shown that no product
containing PCP was approved for applications not
permitted by the Community Directive or containing
more hexachlorodibenzoparadioxine than 4 ppm. A

that

it

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22.12.1999

different
of
legislation cannot be approved under Article 95(4).

the Netherlands

application

national

Act are granted, which go beyond the provisions of Directive
91/173/EEC with regard to exceptions to the ban on the use
of PCP or the content of hexachlorodibenzoparadioxin.

(82) This Decision is without prejudice to the implementation
by the Kingdom of the Netherlands of the provisions of
Directive 1999/51/EC,

Article 2

HAS ADOPTED THIS DECISION:

This Decision is addressed to the Kingdom of the Netherlands.

Article 1

Done at Brussels, 26 October 1999.

The provisions of the Controlled Substances Act of 1962 are
approved in so far as they are applied in such a way that no
approvals pursuant to Article 2 of the Controlled Substances

For the Commission

Erkki LIIKANEN

Member of the Commission