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: Netherlands, carcinogenic substance, consumer protection, derogation from EU law

C 120/10

EN

Official Journal of the European Communities

24.4.2001

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 120/05)

(Text with EEA relevance)

1. 1. On 25 January 2001 the Kingdom of the Netherlands
notified draft national legislation intending to deviate from
the provisions of Council Directive 76/769/EEC (1) as
amended by Directive 94/60/EC of the European Partiament
and of the Council (2), regarding the marketing and use of
creosote.

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-
the
isation measure,
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
wood treated with creosote contact with surface water or
groundwater, which according to the provisions of
the
Directive is allowed, provided the creosote contains less
than 500 ppm Benzo-[a]-pyrene and less than 3 % water
soluble phenols. The draft national legislation also intends
to prohibit the reuse of old treated wood in contact with
surface water or groundwater, which is not foreseen in the
Directive.

5. The Dutch authorities justify their request by referring to
the specific geographic situation of the Netherlands, and the
results of risk assessments carried out in the course of the
year 2000 and thus after adoption of Directive 94/60/EC.
They further claim that the draft regulation does not involve

arbitrary discrimination, or a disguised barrier to trade
between Member States, nor does it obstruct the operation
of the internal market.

6. Please note that in Commission Decision 1999/832/EC (3),
and following a request according to Article 95(4),
the
Commission has authorised the Kingdom of the Netherlands
legislation derogating from the
to maintain national
provisions of Directive 76/769/EEC,
amended by
as
Directive 94/60/EC, which existed prior to the adoption of
that Directive. The national legislation approved, restricted
the content of Benzo-[a]-pyrene to 50 ppm (whereas
according to the Directive, creosote can contain up to 500
ppm under certain conditions) and also further restricted the
use of treated wood.

7. Further

information regarding

the

request

from the

Netherlands can be obtained from:

Mr F. H. van den Bercken
Ministerie van Volksverhuisvesting, Ruimtelijke Ordening en
Milieubeheer
Directoraat Generaal Milieubeheer
Postbus 20951
2500 EZ Den Haag,
Nederland
Tel. (31-70) 339 49 64
Fax (31-70) 339 12 92
e-mail: frans.vandenbercken@minvrom.nl

Contact point in the European Commission:

European Commission
Directorate-General for Enterprise
Unit E-3 Chemicals
Rue d’Arlon/Aarlenstraat 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 365, 31.12.1994, p. 1.

(3) OJ L 329, 22.12.1999, p. 25.