2001/599/EC: Commission Decision of 13 July 2001 concerning draft national provisions notified by the Kingdom of the Netherlands on limitations on the marketing and use of creosote (Text with EEA relevance) (notified under document number C(2001) 1911)
Date: 2001-07-13
Institutions: European Commission
Subjects: Netherlands, marketing restriction, pesticide, public health, wood product

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COMMISSION DECISION

of 13 July 2001

concerning draft national provisions notified by the Kingdom of the Netherlands on limitations on
the marketing and use of creosote

(notified under document number C(2001) 1911)

(Only the Dutch text is authentic)

(Text with EEA relevance)

(2001/599/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

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

Whereas:

I. FACTS

1. Community legislation

(1)

(2)

(3)

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 on the marketing and use of
certain dangerous substances and preparations (1), as last amended by Commission Directive 1999/
77/EC (2), provides for the prohibition and restriction of the use of certain dangerous substances and
preparations. Directive 76/769/EEC is regularly amended to include in its Annex additional
substances which are dangerous to man and the environment.

Directive 94/60/EC of the European Parliament and of the Council (3) amended Directive 76/
769/EEC to harmonise among other things the use and marketing of creosote and similar coal-tar
distillates, as well as preparations containing them, by limiting the content of one specific compo-
nent, Benzo[a]pyrene (hereinafter B[a]P), and water extractable phenols when used for wood treat-
ment (point 32 in the Annex to Directive 94/60/EC). The limit for B[a]P is fixed at a maximum of
50 ppm (= 0,005 %) by mass and the limit for water extractable phenols is fixed at a maximum of
3 % (= 30 g/kg) by mass. Wood treated with creosote or preparations containing creosote not
respecting those limits may not be placed on the market.

However, by derogation Directive 94/60/EC allows for the use of creosote and preparations
containing creosote with up to 500 ppm (= 0,05 %) B[a)P by mass and water extractable phenols
up to 30 g/kg for wood treatment in industrial installations. Such products may not be sold to the
general public and containers have to be labelled with the phrase ‘For use in industrial installations
only’. Wood treated this way and placed on the market for the first time can only be used in
industrial and professional applications, except in certain cases where its use is excluded, for exemple
inside buildings, in contact with products intended for human or animal consumption, in play-
grounds and in other outdoor places for public pleasure or where there is a risk for contact with
skin. Old treated wood commercialised for a second time can be used irrespective of the creosote-
type applied except in the cases mentioned before.

2. Existing national provisions in the Netherlands

(4)

The Netherlands had already obtained derogation from the Commission to apply national legislation
that existed before the Community Directive was adopted. The relevant request under Article 95(4)
(ex-Article 100a(4)) received approval

in Commission Decision 1999/832/EC (4).

(1) OJ L 262, 27.9.1976, p. 201.
(2) OJ L 207, 6.8.1999, p. 18.
(3) OJ L 365, 31.12.1994, p. 1.
(4) OJ L 329, 22.12.1999, p. 25.

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(5)

legislation in the
The differences between the existing Community legislation and the national
Netherlands that was approved through the Commission Decision is summarised in the following
table:

Council Directive 94/60/EC

Existing Dutch legislation

Carbolineum: no restrictions on sale.
treating wood.
Private use only for
Explicit restrictions on use of
treated
wood. Il may not be used:
— on toys;
— inside buildings (used by humans or

animals),

— in spaces for storage of foodstuff,
— in green- or glasshouses.

Creosote: permitted only for industrial
use in special
installations for treating
wood by the vacuum and pressure
method for:
— railway sleepers,
— telephone and electricity poles,
— excavation, road and water works,
— fencing.

Sale and use of creosote and treated
products totally banned.

B [a] P < 50 ppm

No restrictions on sale or use of creo-
sote or newly treated wood.

B [a] P 50-500 ppm

Restrictions on sale of creosote:
— no sale to private consumers,
— use only permitted in industrial
installations. Minimum drum size
labelling required.
200 l. Special

Creosoted wood may only be used for
professional and industrial applica-
tions:
— railways,
— electricity poles,
— fencing,
— waterways.

Explicit restrictions on treated wood. It
may not be used:
— inside buildings,
— in contact with foodstuff,
containers
— for

growing

for

purposes,

— at playgrounds or other sites at risk

of skin contact.

B [a] P > 500 ppm

Sale and use of creosote and treated
products totally banned.

Sale and use of creosote and treated
products totally banned.

Old treated wood

Use controlled as for wood treated
with
B [a] P
containing
between 50 and 500 ppm.

creosote

No other regulations than for newly
treated wood.

(6)

In summary, the existing Dutch provisions are more restrictive in several aspects:

— the B[a]P content of creosote is not permitted in the range of 50 to 500 ppm for the use in

industrial

installations,

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— wood preservation has to be performed according to a specific technique (pressure/vacuum) in

special

installations,

— in certain cases, the use of creosote is excluded for wood preservation, even if its B[a]P content is

below 50 ppm.

3. Existing national provisions in other Member States

In addition to the Netherlands, three other Member States (Germany, Denmark and Sweden) held the
opinion that the level of protection for human health and the environment guaranteed by the
Community Directive was insufficient and also requested, pursuant to Article 95(4) of the Treaty, to
be authorised to maintain instead more restrictive national legislation. The various national meas-
ures, although all more restrictive than the Community measures in certain aspects, are not identical.

the Member States requesting derogation, except

All of
for the Netherlands, where indeed a
particular geographic situation prevailed, failed to submit evidence that they had major needs or to
produce new scientific data demonstrating that the level of the Community Directive was insuffi-
cient,

in particular with regard to the protection of human health.

This situation changed, when a long-term carcinogenicity study, made by the Fraunhofer Institute
became available (1). The Scientific Committee for Toxicity, Ecotoxicity and the Environment (SCTEE)
evaluated the new evidence provided by the study and gave its opinion on the carcinogenicity risks
of creosote (2). On the basis of this opinion of the SCTEE (and in the case of the Netherlands also
because of a particular geographic situation), the four requesting Member States were authorised to
maintain their existing national legislation. In addition, the Commission undertook to revise the
existing Community legislation and is currently in the process of finalising the necessary procedures.

(7)

(8)

(9)

4. New draft legislation in the Netherlands

(10) On 25 January 2001, the Commission received a request from the Netherlands according to Article
95(5) of the EC Treaty in order to introduce new national legislation on the use of creosote going
beyond the measures provided for under Directive 94/60/EC.

(11)

In the new draft legislation, a general administrative regulation amending the Decision on coatings
containing polycyclic aromatic hydrocarbons under the chemical substances act, for which deroga-
tion is requested now, seeks to prohibit the use of creosote-treated wood in direct contact with
surface water or ground water irrespective of the B[a]P content of the creosote.

II. PROCEDURE

(12) Directive 94/60/EC was adopted on 20 December 1994. Member States had to adopt the measures
necessary to comply with it no later than one year after its adoption, i.e. 20 December 1995, and to
apply them from 20 June 1996.

(13)

(14)

By letter of 9 March 1995, the Netherlands Permanent Representation,
in accordance with the
former Article 100a(4) of the EC Treaty (now Article 95(4)), requested authorisation from the
Commission to maintain the existing national provisions on grounds of further protection of public
health, the working environment, and the environment. In Decision 1999/832/EC the Commission
approved this request.

By letter of 23 January 2001, the Netherlands Permanent Representation notified the Commission
that the Netherlands, in accordance with Article 95(5) of the EC Treaty, intended to introduce further
measures regarding creosote going beyond those provided for under Directive 94/60/EC. The
Netherlands considers it necessary to introduce such national measures concerning the protection of
the environment in connection with a specific problem that arose in the Netherlands after the
adoption of Directive 94/60/EC.

(1) Dermal carcinogenicity study of two coal tar products by chronic epicutaneous application in male CD-1 mice (78

weeks), Fraunhofer Institute of Toxicology and Aerosol Research (ITA), Hanover, October 1997.

(2) Opinion on cancer risk to consumers from creosote containing less than 50 ppm benzo-[a]-pyrene and/or from
the eighth SCTEE plenary

wood treated with such creosote and estimation of respective magnitude expressed at
meeting, Brussels, 4 March 1999.

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(15)

(16)

By letter of 22 February 2001, the Commission informed the Netherlands authorities that it had
received the notification under Article 95(5) and that the six months period for its examination
according to Article 95(6) started on 26 January 2001, the day following the one when the
notification was received.

By letter of 17 April 2001, the Commission informed the other Member States about the request
received from the Netherlands and invited them to submit comments, if deemed necessary, within
one month. The Commission also published a notice regarding the request in the Official Journal of
the European Communities (1) in order to inform other interested parties of the draft national measures
that the Netherlands intends to adopt.

III. ASSESSMENT

1. Consideration of admissibility

(17)

The notification submitted by the Netherlands authorities on 25 January 2001 intends to obtain
approval to introduce national provisions incompatible with Directive 94/60/EC, which constitutes a
harmonisation measure adopted on the basis of Article 95 of the Treaty.

(18) Article 95(5) of the Treaty provides 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 environment or the working
environment on grounds of a problem specific to that Member State arising after the adoption of the
harmonisation measure, it shall notify the Commission of the envisaged provisions as well as the
grounds for introducing them.

(19) As required by Article 95(5) of the Treaty, the Netherlands notified the Commission of the actual
wording of the provisions that are intended to be introduced, accompanying the request by an
explanation of the reasons which,

justify the introduction of those provisions.

in its opinion,

(20)

The notification submitted by the Netherlands on 25 January 2001 in order to obtain approval for
the introduction of national provisions derogating from the provisions of Directive 94/60/EC
appears prima facie to be admissible under Article 95(5) of the EC Treaty.

2. Assessment of merits

(21)

(22)

(23)

(24)

In accordance with Article 95 of the Treaty, the Commission has to ensure that all the conditions
enabling a Member State to avail itself of the possibilities of derogation provided for in this Article
are fulfilled.

The Commission must therefore assess whether the conditions provided for by Article 95(5) of the
Treaty are met. This requires: (a) ‘new scientific evidence with regard to the protection of the
environment or the working environment’; (b) which causes the notifying Member State to consider
the introduction of national provisions to be necessary ‘on grounds of a problem specific to that
Member State’; (c) where the problem concerned arose ‘after the adoption of the harmonisation
measure’.

In addition, pursuant to Article 95(6) of the Treaty, where it considers that the introduction of such
national provisions is justified, the Commission must check whether or not those national provisions
are a means of arbitrary discrimination or a disguised restriction on trade between Member States
and whether or not they constitute an obstacle to the functioning of the internal market.

It has to be noted that, in the light of the time frame established by Article 95(6) of the Treaty, the
Commission, when examining whether the draft national measures notified under Article 95(5) are
justified, has to take as a basis ‘the grounds’ put forward by the Member State. This means that,
under the Treaty, the responsibility of proving that these measures are justified,
lies with the
requesting Member State. Given the procedural framework established by Article 95, including in
particular a strict six-month deadline for a Decision to be adopted, 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 possible justifications itself.

(25) According to Article 95(6) of the Treaty, third subparagraph, the Commission may when justified by
the complexity of the matter and in the absence of danger to human health, notify the Member State
concerned that the period of six months for adopting a decision may be extended for a further
period of up to six months.

(1) OJ C 120, 24.4.2001, p. 10.

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(26)

the
The Netherlands invokes purely environmental reasons as a justification for the request:
continued use of creosote-treated wood for the applications to be prohibited would lead to
concentrations of selected polycyclic hydrocarbons in water, soil and sediment that would exceed
certain quality standards fixed by the Netherlands authorities. The Netherlands also points out the
specific geographical situation, which was confirmed in the earlier Commission Decision.

(27) None of the other Member States, which had earlier obtained derogation has pointed out the
concern raised by the Netherlands. Quite on the contrary, in Sweden, the use of wood treated with
creosote in professional applications for marine installations is specifically authorised and also, if
more than 30 years since treatment have elapsed, non-professional use for applications in permanent
contact with damp soil (hence groundwater) and water, for the construction of jetties and other
marine installations (hence surface water). There are no specific rules on this matter either in
Denmark or in Germany.

(28)

(29)

(30)

The concerns of the Netherlands have never been mentioned during the preparatory work for the
revision of Directive 94/60/EC (currently in progress) although they could be of relevance in other
Member States as well.

In support of the request, the Netherlands has submitted a large amount of documents that need to
be evaluated in detail
in order to fully assess whether there is indeed new scientific evidence
concerning the protection of the environment regarding a problem specific to the Netherlands that
arose after the adoption of Directive 94/60/EC.

The Commission has consulted the SCTEE on the complexity of the matter and the absence of a
danger to human health on the basis of a part of the documents submitted by the Netherlands
authorities. In its opinion of 12 June 2001 (1), the SCTEE has confirmed that the justification of this
request is indeed a complex matter and does not involve a danger to human health.

(31)

In the light of the foregoing it should be concluded that:

IV. CONCLUSION

— the notification by the Netherlands concerning the introduction of national provisions derogating
from Directive 94/60/EC with regards to creosote as submitted on 25 January 2001 appears
prima facie to be admissible,

— since the matter is complex and does not involve a danger to human health, it is justified to
extend the period within which a Decision must be adopted on the envisaged national provisions
for a further period of six months in order to allow for a thorough evaluation of all evidence
submitted,

HAS ADOPTED THIS DECISION:

Article 1

Pursuant to the third subparagraph of Article 95(6) of the Treaty, the period referred to in the second
subparagraph of Article 95(6) within which a Decision must be adopted on the envisaged national
provisions notified by the Netherlands notified on 25 January 2001 is extended for a further period of six
months.

This Decision is addressed to the Kingdom of the Netherlands.

Article 2

Done at Brussels, 13 July 2001.

For the Commission

Erkki LIIKANEN

Member of the Commission

(1) Opinion on creosote — Notification of the Netherlands made under Article 95(5) of the Treaty expressed at the 24th

CSTEE plenary meeting, Brussels, 12 June 2001.