Notification according to Article 95(5) of the EC Treaty — Authorisation to introduce national legislation derogating from the provisions of a Community harmonisation measure (Text with EEA relevance)
Date: 2001-04-24
Institutions: European Commission
Subjects: Germany, dangerous substance, derogation from EU law, environmental protection, marketing restriction

24.4.2001

EN

Official Journal of the European Communities

C 120/9

Notification according to Article 95(5) of the EC Treaty

Authorisation to introduce national legislation derogating from the provisions of a Community
harmonisation measure

(2001/C 120/04)

(Text with EEA relevance)

1. On 25 January 2001 the Federal Republic of Germany
notified draft national legislation intending to deviate from
the provisions of Directive 76/769/EEC (1), as amended by
the
Commission Directive
marketing and use of organostannic compounds (TBT).

1999/51/EC (2),

regarding

2. Article 95(5) stipulates that if, after the adoption by the
Council or by the Commission of
a harmonisation
measure, a Member State deems it necessary to introduce
national provisions based on new scientific evidence relating
to the protection of
the working
environment on grounds of a problem specific to the
Member State arising after the adoption of the harmon-
isation measure,
the
envisaged provisions as well as the grounds for introducing
them.

it shall notify the Commission of

the environment or

3. The Commission shall, within six months of the notification
the national provisions involved after
approve or reject
having verified whether or not
they are a means of
arbitrary discrimination or a disguised restriction to trade
between Member States and whether or not
they shall
constitute an obstacle to the functioning of the internal
market.

4. The draft national legislation intends to prohibit the use of
organostannic compounds in anti-fouling paints for all types
of ships as of 1 January 2003. Currently,
the Directive
establishes that organostannic compounds may only be
used in anti-fouling paints providing for controlled release
of active ingredients for ships of a length of more than 25 m
that are not predominantly used on inland waterways and
lakes. The Directive also establishes that these remaining
uses are to be reviewed before 1 January 2003.

In addition, the draft national legislation intends to prohibit
the use of organostannic compounds for wood preservation,
impregnation of heavy industrial textiles and
for biocidal
yarns used for their production, and for biocidal
impreg-
nation of consumer products (within the definitions of the
Foodstuffs and Consumer Products Act. Heavy industrial
textiles and consumer products containing triorganic tin
compounds with more than 1 mg tin/kg may not be
placed on the market anymore. These uses are not
mentioned in the Community Directive.

5. The German authorities justify their request by referring to
the need to protect human health and the environment,
which necessitates the transposition of the IMO Resolution
A.895(21) of 25 November 1999 (ban of the use of orga-

nostannic compounds in anti-fouling paints as of 1 January
2003) into national law and the adoption of restrictions of
uses other
than those regulated in the Directive. The
German authorities state that there is a specific situation
in the (cid:145)Deutsche Bucht(cid:146) (part of the North Sea adjacent to
Germany), where due to the extremely busy shipping routes
to the great ports and the input through big rivers, concen-
trations of TBT in sediments are unacceptably high. During
measurements in 1999 and 2000 organostannic compounds
were also discovered in consumer products in doses that
would lead to unacceptable exposure of consumers.

The Germany authorities further claim that the draft regu-
involve arbitrary discrimination, or a
lation does not
disguised barrier
to trade between Member States, nor
does it obstruct the operation of the internal market.

6. Please

in

the

that

note

Commission

Decision
2000/509/EC (3) rejected draft national provisions notified
according to Article 95(5) by the Kingdom of Belgium,
which aimed at the introduction of national legislation dero-
gating from the provisions of Directive 76/769/EEC as
amended by Directive 1999/51/EC, by intending to ban
the use of organostannic compounds in anti-fouling paints
as of 1 January 2003.

7. Further information regarding the request from Germany

can be obtained from:

Prof. Dr. Armin Basler
Bundesministerium f(cid:252)r Umwelt, Naturschutz, und Reaktor-
sicherheit
Referat IG II 4
Bernkasteler Stra(cid:223)e 8
D-53175 Bonn
Tel. (49-18 88) 305 27 10
Fax (49-18 88) 305 35 24
e-mail: basler.armin@bmu.de

Contact point in the European Commission:

European Commission
Directorate-General for Enterprise
Unit E-3 Chemicals
Rue d’Arlon/Aarlensstraat 88 (4/6)
B-1000 Brussels
Tel. (32-2) 295 58 82
Fax (32-2) 295 02 81
e-mail: chemicals-plastics@cec.eu.int

(1) OJ L 262, 27.9.1976, p. 201.
(2) OJ L 142, 5.6.1999, p. 22.

(3) OJ L 205, 12.8.2000, p. 7