Common Position (EC) No 21/2002 of 6 December 2001 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a Directive of the European Parliament and of the Council amending for the 24th time Council Directive 76/769/EEC relating to restrictions on the marketing and use of certain dangerous substances and preparations (pentabromodiphenyl ether)
Date: 2001-12-06
Institutions: Council of the European Union
Subjects: approximation of laws, chemical product, dangerous substance, environmental protection, market approval, marketing, public health

7.5.2002

EN

Official Journal of the European Communities

C 110 E/23

COMMON POSITION (EC) No 21/2002

adopted by the Council on 6 December 2001

with a view to adopting Directive 2002/. . ./EC of the European Parliament and of the Council of
. . . amending for the 24th time Council Directive 76/769/EEC relating to restrictions on the
marketing and use of certain dangerous substances and preparations (pentabromodiphenyl ether)

(2002/C 110 E/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

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

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the Economic and Social
Committee (2),

Acting in accordance with the procedure laid down in Article
251 of the Treaty (3),

Whereas:

(3) The Commission has adopted a Recommendation in the
framework of Regulation (EEC) No 793/93 on a riskre-
duction strategy for pentaBDE providing for restrictions
on marketing and use to control risk to the environment.
should take
It also recommended that any measures
account of the concerns about infants exposed via breast
milk.

(4) In order to protect health and the environment the placing
on the market and the use of pentaBDE and the placing on
the market of articles containing pentaBDE should be
prohibited.

(5) The commercially available, technical grade diphenyl ethers
are mixtures and contain molecules with different numbers
of bromine atoms. Technical grade octabromodiphenyl
ether (octaBDE) contains pentaBDE, in addition to mainly
octaBDE and heptaBDE. In order to protect human health
and the environment, the use of octaBDE containing more
than 0,1 % pentaBDE should no longer be allowed once
pentaBDE is restricted.

(1) Under Article 14 of the Treaty, an area without internal
frontiers is to be established, in which the free movement
of goods, persons, services and capital is ensured.

(6) Presence of pentaBDE in concentrations higher than 0,1 %
can be identified using standard analytical techniques such
as GC-MS (gas chromatography-mass spectrometry). These
techniques can distinguish between technical grades of
octaBDE and pentaBDE.

(2) The risks to the environment of pentabromodiphenyl ether
(pentaBDE) have been assessed under Council Regulation
(EEC) 793/93 of 23 March 1993 on the evaluation and
the risks of existing substances (4). The risk
control of
assessment
risks of
identified a need for
pentaBDE to the environment.
In its opinion of 4
February 2000, the Scientific Committee on toxicity, eco-
the
toxicity and the
conclusions of the assessment of pentaBDE on the need
to reduce risks to protect the environment. Furthermore,
the CSTEE confirmed, in its opinion of 19 June 2000, the
concern about exposure of breast-fed children to pentaBDE
and that the increasing levels of pentaBDE in breast milk
might be the result of a use not yet identified.

environment

confirms

reducing

(CSTEE)

(1) OJ C 154 E, 29.5.2001, p. 112.
(2) OJ C 193, 10.7.2001, p. 27.
(3) Opinion of the European Parliament of 6 September 2001 (OJ C 72
E, 21.3.2002, p. 288), Council Common Position of 6 December
2001 and Decision of the European Parliament of . . .
(not yet
published in the Official Journal).

(7) This Directive does not affect Community legislation laying
down minimum requirements for the protection of workers
contained in Council Directive 89/391/EEC of 12 June
1989 on the introduction of measures
to encourage
improvements in the safety and health of workers at
work (5), and in individual directives based thereon,
in
particular Council Directive 90/394/EEC of 28 June 1990
on the protection of workers from the risks related to
exposure
(Sixth individual
Directive within the meaning of Article 16(1) of Directive
89/391/EEC) (6) and Council Directive 98/24/EC of 7 April
1998 on protection of health and safety of workers from
the risk related to chemical agents at work (14th individual
Directive within the meaning of Article 16(1) of Directive
89/391/EEC) (7),

to carcinogens

at work

(5) OJ L 183, 29.6.1989, p. 1.
(6) OJ L 196, 26.7.1990, p. 1. Directive as last amended by Directive

1999/38/EC (OJ L 138, 1.6.1999, p. 66).

(4) OJ L 84, 5.4.1993, p. 1.

(7) OJ L 131, 5.5.1998, p. 11.

C 110 E/24

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Official Journal of the European Communities

7.5.2002

HAVE ADOPTED THIS DIRECTIVE:

Article 1

cation. The methods of making such a reference shall be laid
down by the Member States.

Annex I to Directive 76/769/EEC is hereby amended as set out
in the Annex to this Directive.

Article 3

This Directive shall enter into force on the day of its publi-
cation in the Official Journal of the European Communities.

Article 2

Member States shall adopt and publish the laws, regulations
and administrative provisions necessary to comply with this
Directive no later than . . . (*). They shall
forthwith inform
the Commission thereof.

Article 4

This Directive is addressed to the Member States.

They shall apply those provisions from . . . (**).

Done at . . .

When Member States adopt these measures, the provisions
shall contain a reference to this Directive or be accompanied
by such a reference on the occasion of their official publi-

For the European Parliament

The President

For the Council

The President

(*) 12 months from the entry into force of this Directive.
(**) 18 months from the entry into force of this Directive.

7.5.2002

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Official Journal of the European Communities

C 110 E/25

The following point [XX] is added to Annex I to Directive 76/769/EEC:

ANNEX

‘[XX] diphenylether, pentabromo derivative

C12H5Br5O

1. May not be placed on the market or used as a substance or as a
constituent of substances or of preparations in concentrations higher
than 0,1 % by mass.

2. Articles may not be placed on the market if they, or flame-retarded
parts thereof, contain this substance in concentrations higher than
0,1 % by mass.’

C 110 E/26

EN

Official Journal of the European Communities

7.5.2002

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 15 January 2001 the Commission forwarded a proposal for a Directive based on Article 95 of
the Treaty relating to restrictions on the marketing and use of certain dangerous substances and
preparations (pentabromodiphenyl ether) (1).

2. The European Parliament adopted its opinion at first reading on 6 September 2001 (2).

3. The Economic and Social Committee delivered its opinion on 25 April 2001 (3).

4. On 6 December 2001 the Council adopted its Common Position in accordance with Article 251 of

the Treaty.

II. AIM

The aim of the Commission proposal is to ban the use and marketing of goods containing penta-
bromodiphenyl ether (pentaBDE).

III. ANALYSIS OF THE COMMON POSITION

1. The Council has been examining the proposal since the beginning of 2001. The Council's common

position is generally consistent with the Commission's amended proposal.

The Council incorporated one European Parliament amendment and part of another.

2. The Council welcomed Amendment 5 deleting the derogation for octabromodiphenyl ether

(octaBDE) which contains less than 5 % pentaBDE.

3. The Council

incorporated part of Amendment 2 stipulating that octaBDE containing more than

0,1 % pentaBDE can no longer be allowed since the use of pentaBDE is restricted.

4. The Council does not consider it appropriate to discuss extending the scope of the Directive to
octabromodiphenyl ether
(decaBDE) before the risk
(octaBDE) and decabromodiphenyl ether
assessment has been completed. Consequently, the Council rejected Amendments 1, 3, 6, 15 and
16 as well as part of Amendment 2.

5. The Council also rejected Amendment 4 concerning the procedures for the evaluation and control of

risks, as the Council considers this amendment to be beyond the scope of the Directive.

IV. CONCLUSION

By incorporating the European Parliament amendments which strengthen the provisions on pentaBDE,
the Council believes that it has found a balanced solution which takes account of the risk-assessment
procedure on the one hand, and which guarantees a high level of human health and environmental
protection on the other.

(1) OJ C 154 E, 29.5.2001, p. 112.
(2) OJ C 72 E, 21.3.2002, p. 288.
(3) OJ C 193, 10.7.2001, p. 27.