2002/59/EC: Commission Decision of 23 January 2002 concerning draft national provisions notified by the Kingdom of the Netherlands under Article 95(5) of the EC Treaty on limitations on the marketing and use of creosote-treated wood (Text with EEA relevance) (notified under document number C(2002) 97)
Date: 2002-01-23
Institutions: European Commission
Subjects: Netherlands, chemical product, dangerous substance, derogation from EU law, marketing restriction, wood product

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L 23/37

COMMISSION

COMMISSION DECISION

of 23 January 2002

concerning draft national provisions notified by the Kingdom of the Netherlands under Article
95(5) of the EC Treaty on limitations on the marketing and use of creosote-treated wood

(notified under document number C(2002) 97)

(Only the Dutch text is authentic)

(Text with EEA relevance)

(2002/59/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 2001/
90/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.

European Parliament and Council Directive 94/60/EC (3) amended Directive 76/769/EEC to harmo-
nise amongst 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 component, Benzo[a]pyrene
(hereinafter B[a]P), and water extractable phenols when used for wood treatment (point 32 in the
Annex to Directive 94/60/EC). The limit for B[a]P is fixed at a maximum of 0,005 % by mass
(= 50 ppm) and the limit for water extractable phenols is fixed at a maximum of 3 % by mass
(= 30 g/kg). 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 0,05 % B[a]P by mass (= 500 ppm) and water extractable phenols
up to 3 % by mass (= 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, e.g. on railways, in electric power transmis-
sion and telecommunications, for fencing and in harbours and waterways, except in certain cases

(1) OJ L 262, 27.9.1976, p. 201.
(2) OJ L 283, 27.10.2001, p. 41.
(3) OJ L 365, 31.12.1994, p. 1.

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(4)

(5)

where its use is excluded, e.g. inside buildings, in contact with products intended for human or
animal consumption, in playgrounds 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.

On 26 October 2001, Directive 2001/90/EC adapting to technical progress for the seventh time
Annex I to Directive 76/769/EEC 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 was adopted.

According to the amended provisions, creosote may not be used in the treatment of wood and wood
so treated may not be placed on the market. However by way of derogation, creosote may be used
for wood treatment in industrial installations or by professional for in-situ retreatment only if they
contain B[a]P at a concentration of less than 0,005 by mass and water extractable phenols at a
concentration of less than 3 % by mass. Such substances and preparations may not be sold to
consumers and may be placed on the market only in packaging of a capacity equal to or greater than
20 litres. The packaging has to be labelled with the phrase ‘For use in industrial installations or
professional treatment only’.

(6) Wood treated this way or retreated in-situ is permitted for professional and industrial use only e.g.
on railways, in electric power transmission and telecommunications, for fencing, for agricultural
purposes and in harbours and waterways. Use is prohibited inside buildings, in playgrounds, in
parks, in gardens and outdoor recreational and leisure facilities where there is a risk of frequent skin
contact and in garden furniture or in contact with products intended for human or animal
consumption. Wood that has been treated with creosote before the Directive applies may be placed
on the second-hand market for reuse, except in the cases mentioned before.

2. EXISTING NATIONAL PROVISIONS APPROVED BY THE COMMISSION UNDER ARTICLE 95(4) OF THE

TREATY

(7)

(8)

The Netherlands already obtained a derogation from the Commission to maintain national provi-
sions incompatible with Directive 94/60/EC. The relevant request under Article 95(4) [ex-Article
in Commission Decision 1999/832/EC (4).
100a(4)] received approval

The differences between Directive 94/60/EC and the national provisions in the Netherlands that were
approved through the Commission Decision is summarised in the following table:

Directive 94/60/EC

Existing Dutch legislation

B[a]P < 50 ppm

No restrictions on sale or use of creosote
or new treated wood.

Carbolineum: No restrictions on sale. Private
use only for treating wood. Explicit restric-
tions on use of treated wood. It 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.

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

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Directive 94/60/EC

Existing Dutch legislation

Sale and use of creosote and treated prod-
ucts totally banned.

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
200 l. Special

labelling required.

Creosoted wood may only be used for
professional and industrial applications:
— railways;
— electricity poles;
— fencing;
— harbours and waterways.

Explicit restrictions on treated wood. It
may not be used:
— inside buildings;
— in contact with foodstuff;
— for containers for growing 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 prod-
ucts totally banned.

Old treated wood

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

No other
treated wood.

regulations

than for newly

(9)

In summary, the existing Dutch provisions are more
restrictive than those contained in Directive 94/60/EC in
several aspects:

treated wood for applications involving contact with
surface water and groundwater’.

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

— wood preservation has to be performed according to
in special

a specific technique (pressure/vacuum)
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. ENVISAGED NATIONAL PROVISIONS

(10)

The Netherlands intend to adopt new national provi-
sions going beyond the measures provided for under
Directive 94/60/EC by amending the Decision on Coat-
ings Containing Policyclic Aromatic Hydrocarbons
(Besluit PAK-houdende coatings) under the Chemical
Substances Act (creosote-treated wood).

(11) Article 8a under a new Section 4a of the draft above
legislation, provides that ‘as from the date to be deter-
mined by Royal Decree, it shall be prohibited to import
into the Netherlands, to use, or to supply to others, or to
keep available for sale on the Dutch market, creosote-

(12)

The ban does not apply to creosote-treated wood which
was put to use in its application before a point in time
to be determined by Royal Decree, so long as the
existing place of application is retained. Two other
exceptions concern creosote-treated wood which:

— has been placed under a customs procedure and is
intended for customs transit, placement in a customs
warehouse or for temporary admission, in accord-
ance with the provisions of Article 4(16) of Council
Regulation (EEC) No 2913/92;

— originating from a Member State of the European
Union, or an EEA State and is not intended for sale
on the Dutch market.

(13) Article 8b of the draft Decision requires that anyone
who imports, supplies, or keeps available for sale on the
market, creosote-treated wood that does not come under
the ban, keeps a record of that wood and show on
demand that the creosote-treated wood in question is
not intended for applications to which the ban relates.
The record includes, at least:

— the name and address of

the manufacturer or
supplier from whom the creosote-treated wood was
purchased;

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— the date on which the creosote-treated wood was

delivered by the manufacturer or supplier;

— the field of application for

the creosote-treated

wood;

— the name and address of the person to whom the
creosote-treated wood was made available or deliv-
ered;

— the date of delivery of the creosote-treated wood;

— the quantity of creosote-treated wood received or

delivered.

(20)

(21)

II. PROCEDURE

(14) 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.

(15) As indicated above, the Netherlands obtained approval
through Decision 1999/832/EC to maintain existing
national provisions on the use of creosote being more
restrictive than Directive 94/60/EC.

(16)

(17)

(18)

(19)

By letter of 23 January 2001, the Dutch Permanent
Representation notified the Commission that the Nether-
lands, in accordance with Article 95(5) of the EC Treaty,
intended to introduce provisions regarding creosote-
treated wood going beyond those provided for
in
Directive 94/60/EC. The Netherlands deem it necessary
to introduce such national measures in order to protect
the environment in connection with a specific problem
that arose in the Netherlands after the adoption of
Directive 94/60/EC.

the Commission
By letter of 22 February 2001,
informed the Dutch 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. The Commission also published a
notice regarding the request in the Official Journal of the
European Communities (5) in order to inform other inter-
ested parties of the draft national measures that the
Netherlands intend to adopt.

Considering that
the Dutch noti-
the justification of
fication appeared prima facie to be a complex matter
the
and not
Commission asked the Scientific Committee on Toxicity,
Ecotoxicity and the Environment (hereinafter referred as
CSTEE) to give an opinion on these issues. On 12 June

to involve a danger to human health,

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

2001 the CSTEE (6) confirmed that the justification of
the Dutch request is a complex issue and does not
directly involve a danger to human health.

adopted

Decision

Based on the CSTEE's opinion, on 13 July 2001 the
2001/599/EC (7)
Commission
pursuant to the third subparagraph of Article 95(6) of
the Treaty, whereby it extended the six-month period
referred to in the second subparagraph of Article 95(6)
within which a decision must be adopted for a further
period of six months in order to allow for a thorough
evaluation of all evidence submitted. This decision was
notified to the Netherlands on 13 July 2001.

The Commission subsequently asked the CSTEE to give
an opinion on the substance of the justification provided
by the Netherlands. More specifically, the CSTEE was
asked to give an opinion on whether the Netherlands
have provided new scientific evidence showing that the
use of creosote-treated wood in contact with surface
water and groundwater presents environmental risks
and, in the affirmative, whether these risks are specific to
the Netherlands. The CSTEE delivered its opinion on 30
October 2001 (8).

(22) As indicated above,

the provisions of Directive 76/
769/EEC relating to creosote and creosote-treated wood
have been amended by Directive 2001/90/EC and shall
be applied by the Member States by 30 June 2003.

III. ASSESSMENT

1. CONSIDERATION OF ADMISSIBILITY

(23)

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

(24) 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 neces-
sary to introduce national provisions based on new
scientific evidence relating to the protection of the envir-
onment 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.

the Netherlands intend to adopt,

(25) When comparing the provisions of Directive 94/60/EC
and those that
it
emerges that the national provisions are more restrictive
than those contained in the Directive in the following
aspects:
— the placing on the market and use of creosote-
treated wood for applications involving contact with
the
(ground)water
concentration of B[a]P or water-soluble phenols in
the creosote-based products used for the treatment;

is prohibited irrespective of

(6) 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.

(7) OJ C 210, 3.8.2001, p. 46.
(8) Opinion on: Justification of the Dutch request for derogation under
Article 95(5) of the EC Treaty — provisions of the Directive 94/
60/EC concerning creosote expressed at
the 27th CSTEE plenary
meeting, Brussels 30 October 2001.

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(26)

(27)

— old creosote-treated wood is subject to the same
prohibition if it is removed from the existing place
of application.

It has to be noted that Council Directive 76/464/EEC of
4 May 1976 on pollution caused by certain dangerous
substances discharged into the aquatic environment (9)
applies to the placing by a person of creosote-treated
wood into surface water (10). However, this Directive is
concerned with the prior authorisation of all discharges
into inter alia inland surface water, territorial waters,
internal coastal waters and does not cover the placing
on the market of creosote-treated wood, nor does it
provide for a general ban on the use of creosote-treated
wood in contact with surface water. Therefore, a
national measure seeking to ban completely the placing
on the market and use of creosote-treated wood for
applications involving contact with surface water would
go beyond the measures provided for in Directive 76/
464/EC and would be incompatible with Directive 94/
60/EC.

by

caused

certain

pollution

Furthermore, Council Directive 80/68/EEC of 17
December 1979 on the protection of groundwater
dangerous
against
substances (11) covers the placing by a person of creo-
sote-treated wood into direct contact with ground water
if polycyclic aromatic hydrocarbons (hereinafter referred
to as PAHs) leaching out from treated wood are found in
quantities or concentrations of concern. In these circum-
stances, the use of creosote-treated wood in contact with
groundwater
this Directive.
However, this Directive does not provide for a total ban
on the use of creosote-treated wood in contact with
groundwater nor does it cover the placing on the market
of creosote-treated wood. Therefore, a national measure
seeking to prohibit the placing on the market and use of
creosote-treated wood for applications involving contact
with groundwater would go beyond the measures
provided for in Directive 80/68/EEC and would be
incompatible with Directive 94/60/EC.

prohibited

under

is

(30)

(31)

(32)

(33)

2. ASSESSMENT OF MERITS

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

the Treaty,

The Commission must
therefore assess whether the
conditions provided for by Article 95(5) of the Treaty
are met. This Article requires that when a Member state
deems it necessary to introduce national provisions
derogating from a harmonisation measure, the Member
State should base it on:

(a) new scientific evidence relating to the protection of
the environment or the working environment;

(b) grounds of a problem specific to that Member State
the harmonisation

the adoption of

arising after
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.

2.1. CREOSOTE — GENERAL INFORMATION

Creosote is a complex mixture of over 200 chemical
compounds, predominantly aromatic hydrocarbons, as
well as phenolic and aromatic nitrogen and sulphur
compounds.
tar
(boiling point approximately 200-400 °C).

is a mid-heavy distillate of coal

It

(28) As required by Article 95(5) of the Treaty, the Nether-
lands notified the Commission of the actual wording of
the provisions going beyond those provided in Directive
94/60/EC that they intend to introduce, accompanying
the request by an explanation of the reasons which, in
their opinion,
justify the introduction of those provi-
sions.

(29)

The notification submitted by the Netherlands in order
to obtain approval
for the introduction of national
provisions derogating from the provisions of Directive
94/60/EC is therefore to be considered admissible under
Article 95(5) of the EC Treaty.

(9) OJ L 129, 18.5.1976, p. 23.
(10) European Court of Justice's judgement of 29 September 1999, deli-

vered in case C-232/97 — ECR 1999 I, p. 6385.

(11) OJ L 20, 26.1.1980, p. 43.

(34)

Creosote can contain over 30 different polycyclic
aromatic hydrocarbons (PAHs) with a possible total PAH
content of 85 %. The most important ones are:

— acenaphthene,

— naphthalene,

— phenanthrene,

— anthracene,

— fluorene,

— fluoranthene,

— chrysene,

— triphenylene,

— benzo[a]anthracene,

— benzo[b]fluoranthene,

— benzo[k]fluoranthene,

— benzo[a]pyrene.

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(35)

Benzo[a]pyrene (B[a]P) is one of the most thoroughly
investigated PAHs and the B[a]P content is used as an
indicator or marker substance for classification purposes
and does not, in itself, reflect the total PAH content of
creosote. Depending on the type of creosote concerned,
the B[a]P content may vary between 0,003 and 0,3 % by
weight (30 to 3 000 ppm). A refined distillation of coal
tar and selection of the fractions can lead to lower B[a]P
or phenol contents. Different industry standards have
been developed by the Western European Institute for
Wood Preservation, characterised mainly by different
contents of specified distillation fractions and, most
important in this context, different contents of B[a]P.
Limiting values for classification standards are 500 ppm
and 50 ppm.

(36) Modifications to both the physical and chemical proper-
ties of creosote are possible if they are required for use
or environmental purposes. It is possible to create a
lower viscosity product, better suited to brush applica-
tion, by incorporating components with a lower boiling
point, which is sometimes called carbolineum. Directive
it covers and
94/60/EC does not make a distinction:
treats in an identical way a whole range of different coal
tar distillates, all of
them specified by their names,
Einecs- and CAS numbers.

(37)

Creosote is principally and almost exclusively used as a
wood preserving agent. Large-scale industrial and profes-
sional applications are by far the most important ones:
railway sleepers, poles for electricity transport, hydraulic
engineering (bank protection), fences, stakes for agricul-
ture and fruit production. Creosote and similar products
are also used by individual consumers
for wood
preserving purposes.

(38)

The most important properties of creosote are:

— high fungicidal efficacy,

— high insecticidal efficacy,

— long-term persistence,

— resistance to leaching and weathering.

(39) A very small quantity of creosote is used in medicinal
products for the treatment of certain skin diseases, e.g.
psoriasis.

sote spills and from contamination left from disused
creosote plants. Environmental contamination has been
traced by an analysis of selected PAH compounds,
notably B[a]P.

(41)

Creosote is toxic to certain organisms in the soil and
highly toxic against aquatic organisms (with 96h LC-50
values often below 1 mg/l). Many of its components are
bioaccumulating.

(42)

The main characteristics of PAHs in the environment
are:

— PAHs bind strongly to soil organic matter;

— the rate of degradation of PAHs in soil and other
environmental compartments is usually slow. Creo-
sote residues can persist for many years in the envir-
onment (> 20-30 years);

— the main breakdown processes are photodegradation
(i.e. under irradiation from the sun) and microbial
degradation (i.e. by certain bacteria). Microbial degra-
dation can occur under aerobic and anaerobic condi-
tions. PAHs compounds with four rings and more
may be poorly degradable;

— PAHs reaching watercourses are rapidly transferred

to sediment;

— in watercourses, most of the lower molecular weight
PAHs are removed primarily by microbial degrada-
tion and the higher molecular weight compounds by
photooxidation and sedimentation. Microbial degra-
dation of the more water soluble PAHs occurs under
aerobic and anaerobic conditions. The PAH constitu-
ents have been shown to bioaccumulate in aquatic
species.

(43)

Emissions of PAHs to air, water and soil can occur
the
during the impregnation process and storage at
impregnation site, as well as during use of treated wood.
However, PAHs found in the various environmental
compartments are originating from a variety of sources
(e.g. all combustion processes, traffic etc.) and it is often
difficult to ascribe their levels to any particular source
such as creosote treated wood.

(44) A study (12) in Sweden has shown that after 40 years in
soil, creosote impregnated poles had lost a part of the
compounds contained in creosote, especially those with
the lowest boiling point (< 270 °C). The part of the
poles above
larger amount.
However, mobility of the leached compounds was very
low as they could only be detected in the soil in close
contact with the poles. This is coherent with the obser-
vation that the mobility of PAHs in soil is extremely low
due to their strong absorption to organic matter.

the ground lost

the

Ecotoxicological effects

(40)

Environmental contamination by creosote has been
reported in a number of countries, with old wood treat-
ment facilities often being the source of the contamina-
tion. In fact, most information on the fate of creosote in
the environment has been obtained from industrial creo-

(45)

The presence of elevated levels of PAH in aquatic envir-
onments has often been attributed to the presence of
creosote-treated wood. Migration of creosote compo-
nents from treated wood into water is higher into fresh
water than into seawater and has been proven in many
studies. Migration seems to be more limited in seawater;
in one study, after ten years in the sea, marine pilings

(12) S. Holmroos, Analys av kreosotstolpar

i Simlångsdalen efter 40 års
exponering i fält. Rapport nr. M205-252.092. Älvkarleby: Vattenfall
Utveckling. 1994.

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retained 93 % of the original composition of creosote
compounds (13). The pollution of sediments by creosote
leaching from waterbank protection has been docu-
mented in the Netherlands (14) and also in studies on
pollution from former impregnation facilities.

(46) As for human exposure, actually measured data on
environmental pollution by PAHs originating in creosote
are scarce.

2.2. THE POSITION OF THE NETHERLANDS

(47) A description is given of all the relevant arguments

behind the notified draft provisions.

(48)

(49)

(50)

The Netherlands take the view that new scientific find-
ings concerning the protection of the environment in
connection with a problem that arose in the Netherlands
after the adoption of Directive 94/60/EC justify the
introduction of the notified provisions.

by,

decisions

respectively,

1999/832/EC (15),

These new scientific findings are partly referred to in the
Commission
1999/
833/EC (16), 1999/834/EC (17), 1999/835/EC (18) on
national provisions notified
the
Kingdom of the Netherlands, the Federal Republic of
Germany, the Kingdom of Sweden and the Kingdom of
Denmark, concerning limitations to the placing on the
market and use of creosote. Furthermore, the Nether-
lands refer to a newly completed study (19) in the Nether-
lands (hereinafter referred to as RIVM study) on the
environmental risks arising from the use of creosote-
treated wood in contact with water and soil, which
provides further information in this regard.

risks

In the Decisions above the Commission pointed out
to the aquatic environments
certain potential
resulting from leaching out of PAHs from creosote-
treated wood in contact with water. Reference was also
made to a Dutch study (20) made available in 1995 and
its
review carried out by a consultant
mandated by the Commission (21), showing that creosote
from waterbank protection
compounds leaching out

subsequent

(13) L.L.

Ingram et. al, Migration of Creosote and Its Components from
Treated Piling Sections in a Marine Environment, Proc. Ann. Meet. Am.
Wood Preserv. Assoc. 78, 1982, p. 120. See also footnotes 8 and
18.

(14) bkh consulting engineers, Foundation of

the appeal against

the EC-

directive on creosote, Final report, Delft, 1 July 1995.

(15) See footnote 4.
(16) OJ L 329, 22.12.1999, p. 43.
(17) OJ L 329, 22.12.1999, p. 63.
(18) OJ L 329, 22.12.1999, p. 82.
(19) Centrum voor Stoffen en Risicobeoordeling, CSR Adviesrapport:
08196A01, Creosoot — Milieurisico's ten gevolge van de toepas-
sing van gecreosoteerd hout in contact met water en bodem —
Auteurs: M.H.M.M. Monforts, E.W.M. Roex, and J.P. Rila, 5.12.2000
— RIVM (Research for man and environment) Rijksinstituut voor
Volksgezondheid en Milieu (National Institute of public health and
the environment).
(20) See footnote 14.
(21) G. Grimmer, Study on the Justification in Scientific Terms of Allowing
The Netherlands to retain its National Laws on Creosote in Place of
Council Directive 94/60/EC. Final report, Biochemisches Institut für
Umweltcarcinogene, Großhansdorf (Germany), December 1995.

(51)

(52)

(53)

have caused the pollution of aquatic sediments in the
Netherlands.

In Decision 1999/832/EC the Commission, based on
these findings, concludes its assessment by recognising
that ‘The Dutch authorities have demonstrated that the
specific geographic situation of The Netherlands, which
necessitates extensive bank protection of watercourses,
has lead to the highest consumption of creosote treated
wood per surface in the European Union. Leaching of
components from creosote into the watercourses has
caused the pollution of the major part of sediments with
PAH compounds beyond acceptable limits. Measures
aiming at an enhanced reduction of the leaching of these
compounds into the aquatic environment are therefore
justified in the Netherlands’ (22).

The newly completed RIVM study contains an assess-
ment of the risks arising from the creosote-treated wood
as wood preservative in the Dutch environment. It sets
out data on various constituents of creosote,
i.e. six
PAHs. In Directive 94/60/EC, B[a]P is taken as repres-
entative of
the PAHs in creosote. The RIVM study,
however, shows that more data are available for other
PAHs in the environment.

The risk assessment was based on the environmental
quality standards set out in the Fourth Notice on Water
Management [Vierde Nota Waterhuishouding] of 1997
and the publication entitled ‘Stoffen en Normen’
[Substances and Standards] published by the Ministry of
Housing, Planning and the Environment in 1999. The
‘Maximum Admissible Risk’ [Maximaal Toelaatbaar Risi-
coniveau — MTR] is the minimum quality standard that
surface water, sediment and soil must meet.

(54)

In order to assess whether the levels set out in the
environmental quality standards were being exceeded,
the concentration of PAHs was determined for each of
these on the basis of model calculations and monitoring
data.

(55)

The conclusions of the risk assessment for surface water,
sediment and soil respectively are set out below.

Surface water

(56)

The model calculations conducted in the study showed
that the concentrations of most of the selected PAHs
would exceed the MTR by many times if creosote-treated
wood was used for bank protection. The levels calcu-
lated ranged from 18 to some 500 times the MTR in the

(22) Recital 102.

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(63)

(64)

(65)

(66)

(67)

(57)

(58)

(59)

(60)

(61)

first three to five days of use. These model calculations
were supported by the measured concentrations in the
vicinity of
recently placed bank protection, which
ranged from around ten to many thousands of times
greater than the MTR.

The results obtained from samples taken at various
distances from creosote-treated bank protection strongly
indicated that creosote-treated wood is indeed the cause
of the increased concentrations of PAHs. The conclusion
has therefore been drawn that the use of creosote-treated
wood for bank protection involves a threat to the quality
of the surface water on a local scale.

By means of model calculations, based on the length of
the banks in kilometres and the percentage of this length
that is protected by means of creosote-treated wood in a
given water-authority management area, the amount of
PAHs that would be released per year was calculated. It
was found that, with the current length of creosote-
treated bank protection in the management area in ques-
tion, the MTR for fluoranthene would be substantially
exceeded. Taking into account that also other MTRs are
being exceeded not only in one water-authority manage-
ment area, but also in various other parts of the country,
such as West-Overijssel and Zuid-Holland, it has been
concluded that this is a nation-wide problem.

Sediment

The model calculations showed that that the concentra-
tions of most of the selected PAHs would exceed the
MTR by five to ninety-five times. These model calcula-
tions were broadly speaking confirmed by the concen-
trations measured in the vicinity of recently placed bank
protection, according to which the
standards are
exceeded by a maximum of three times.

The results obtained from samples taken at various
distances from the creosote-treated bank protection
strongly indicate that creosote-treated wood is indeed
the cause of the increased concentrations of PAHs. It can
be concluded that the use of creosote-treated wood for
bank protection involves a threat to the quality of sedi-
ment on a local scale.

By means of model calculations, based on the length of
the banks in kilometres and the percentage of this length
that is protected by means of creosote-treated wood in a
given water-authority management area, the amount of
PAHs that would be released per year was calculated. It
was found that, with the current length of bank that is
protected by creosote-treated wood in the management
area in question, the MTR for phenanthrene would be
substantially exceeded.

(62) Given that this and other MTRs are being exceeded not
only in one water-authority management area, but also
in various parts of the country, such as West-Overijssel
and Zuid-Holland, it has been concluded that this is a
nation-wide problem.

Soil and groundwater

The model calculations for soil and groundwater show
that the MTRs for three of the six PAHs would be
exceeded, by a maximum of forty-seven times. From the
few measurements available it would appear that
in
practice, creosote does indeed leach out of treated wood
and that the MTRs for soil are exceeded, particularly in
the case of soil in the immediate vicinity of the treated
wood.

The model predicted that the groundwater standard of
0,1 µg/l would be exceeded in the immediate vicinity of
the wood in the saturated phase, but there are no meas-
urement data to support or contradict this prediction.
Infiltration of ground water (at no great depth) by
contaminated surface water is possible. In such a case,
the soil (sediment) can even act as a filter. No measure-
ment data are available to support these assumptions
either.

The Netherlands point out that the results of the RIVM
study are to be read in the light of the special situation
prevailing in the Netherlands, as recognised by the
Commission in its Decision 1999/832/EC. Therefore, the
environmental concerns identified above indicate that
there is a specific problem in the Netherlands due to
their specific geographical situation and the extensive
use of creosote-treated wood in the aquatic environment
compared to other Member States.

The Netherlands
specific
finally observe
problem has arisen after the adoption of the Directive.
In fact, the exposure situation as well as the risks stem-
ming thereof were not known at the time of adoption of
Directive 94/60/EC.

that

this

2.3. EVALUATION OF THE POSITION OF THE NETHER-

LANDS

2.3.1. The burden of proof

It has to be noted that, in the light of the time frame
established by Article 95(6) of the Treaty, the Commis-
sion, when examining whether the draft national meas-
ures 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 responsi-
bility of proving that these measures are justified, lies
with the requesting Member State. Given the procedural
framework established by Article 95, including in partic-
ular a strict 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
itself possible justifications.

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2.3.2. New scientific evidence concerning the protec-
tion of the environment or the working environ-
ment

(73)

The Netherlands have provided a considerable amount
of documents in support of their request. Reference has
also been made to certain studies made available in the
framework of the previous request submitted to the
Commission in accordance with Article 95(4) of the
Treaty
1999/
832/EC (23)].

to Commission Decision

[leading

(68)

(69)

Turning to ‘modified creosote’ (in which B[a]P is reduced
to less than 50 ppm), the CSTEE notes that the levels of
anthracene and fluoroanthene (other substances found
in creosote but not used as a marker) are not substan-
tially reduced with respect to untreated creosote. As the
these two PAHs in
Risk Quotients (PEC/PNEC)
‘standard creosote’ are well above 1, the CSTEE does not
believe that controls based on the B[a]P limit alone are
adequate.

for

(74) On this basis, the CSTEE considers that the Netherlands
have demonstrated a substantial cause for concern with
regard to environmental
impacts to aquatic, sediment
and groundwater compartments.

The Dutch study submitted in the framework of the
earlier request
for derogation (24) and its subsequent
review (25) already showed that the leaching of PAHs
from creosote-treated wood used for extensive bank
protection of watercourses in the Netherlands have
resulted in unacceptable risks to a specific aquatic
i.e. heavy contamination of sediments.
compartment,

(75)

In the light of the foregoing and of the fact that the
environmental risks indicated above were not known at
the time of adoption of Directive 94/60/EC, the conclu-
sion can be drawn that the Netherlands have provided
new scientific evidence relating to the protection of the
environment as required by Article 95(5) of the Treaty.

(70) As indicated above, all new documentation provided by
the Netherlands was submitted to the CSTEE for evalu-
ation. The CSTEEs review mainly focuses on the envir-
onmental risk assessment carried out by the Dutch
authorities as documented in the RIVM study.

(71)

(72)

In considering the submitted scientific documentation,
the CSTEE notes that the Dutch methodology differs
from the methodology normally used in the develop-
ment of risk assessments through the use of Predicted
Effect Concentrations/Lowest Effect Concentration [PEC/
L(E)C50] rather than the normal Predicted Effect Concen-
tration/Predicted No Effect Concentration (PEC/PNEC).
However, it is observed that the methodology has been
translated into the standard approach and that the calcu-
lated risk quotients are consistent with standard EU
methodology. The CSTEE is therefore of the opinion that
the environmental standards methodology followed and
the assumptions made in the environmental risk assess-
ment are adequate and are consistent with the standard
EU approach.

The CSTEE observes that the Dutch risk assessment for
standard creosote (B[a]P concentration between 50 ppm
and less than 500 ppm) for surface water and sediments
resulted in the PNEC for specific PAHs being substan-
tially exceeded. Interaction between PAHs has also been
also assessed to be likely. As this has not been consid-
ered by the Dutch authorities, the CSTEE observes that
that the risks estimated could be even greater than indi-
cated. The CSTEE is thus of
for
‘standard creosote’, there are grounds for concern with
regard to environmental effects.

the opinion that

(23) See footnote 4.
(24) See footnote 14.
(25) See footnote 21.

2.3.3. Problem specific to the Netherlands arising after

the adoption of Directive 94/60/EC

(76)

It should first be noted that the environmental concerns
indicated above are not necessarily specific to the Neth-
erlands as they relate to a general situation in which
creosote-treated wood is placed into contact with surface
water and/or groundwater and therefore apply wherever
this situation occurs. In its opinion of 30 October 2001,
the CSTEE emphasises that the specificity of the above
concerns to the Netherlands depends upon the extent to
which exposure scenarios in the Netherlands differ from
those in other Member States.

to determine whether

(77) A careful evaluation of all the relevant information made
available to the Commission is therefore necessary in
order
the Netherlands have
demonstrated that the abovementioned environmental
concerns are of particular significance in the Netherlands
as a result of particularly heavy exposure scenarios. The
relevant
information on the exposure situation for
surface water and groundwater are examined separately.

Surface water

(78)

In its Opinion of 30 October 2001, the CSTEE recog-
nises that the use of creosote-treated wood in contact
with waterways is deployed extensively in the Nether-
lands as bank protection and that the subsequent risks
for the aquatic environment within the Netherlands are
likely to be extensive. Further comparative information
made available in 1995 (26) indicate that the extensive

(26) See footnotes 14 and 21.

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use of creosote-treated wood for bank protection in the
Netherlands represents a major problem compared to
other Member States. The RIVM study also gives an
estimate of the general level of exposure to PAHs of the
surface waters in the Netherlands as a result of the high
use of creosote-treated wood for bank protection, which
confirms that the risks to these waters are extensive.

(79)

In the light of the foregoing and also taking into account
that the above environmental concerns and their partic-
ular significance in the Netherlands came into light after
adoption of Directive 94/60/EC, it can be concluded that
a specific environmental problem arising after the adop-
tion of that Directive exists in the Netherlands due to the
extensive use of creosote-treated wood for bank protec-
tion of watercourses.

Groundwater

(80)

(81)

The Netherlands have pointed out that their specific
geographical situation combined with the extensive use
of creosote-treated wood shows that a specific exposure
scenario also exists with regard to groundwater.

Current applications of creosote-treated wood may
indeed involve contact with groundwater. Fences, fruit,
transmission and telecommunication
electric power
poles and other creosote-treated wood products placed
in the soil can reach groundwater and lead to its
contamination by PAHs. This occurs predominantly, if
not exclusively, where the groundwater underlying the
surface soil is found at very low depth, i.e. close to the
surface.

(82)

Specific problems arising from the use of creosote-
treated wood for the abovementioned applications there-
fore appear dependant on the extension of low-depth
groundwater areas and the quantity of creosote-treated
wood susceptible to contact with groundwater.

(83) Areas with groundwater levels very close to the surface
cover a large part of the country in the Netherlands,
especially in the polder areas. Also, during periods of
heavy rains, groundwater can be found at very low
depth underneath the surface soil. The Dutch ground-
water compartment therefore appears to be particularly
vulnerable to the above applications of creosote-treated
wood.

2.3.4. Overall evaluation

(85)

The Netherlands have demonstrated on the basis of new
scientific evidence relating to the protection of the envir-
onment that a specific problem arising after the adop-
tion of Directive 94/60/EC exists in the Netherlands with
regard to the pollution of surface water and ground-
water by PAHs leaching out from creosote-treated wood
used for bank protection of water courses and other
applications susceptible to contact with groundwater.

(86)

The Commission therefore considers that the request
from the Netherlands for introducing national measures
aimed at reducing exposure of the aquatic environment
in the Netherlands to PAHs fulfils all the conditions
specified in Article 95(5).

2.4. ABSENCE OF ARBITRARY DISCRIMINATION OR A
DISGUISED RESTRICTION ON TRADE
BETWEEN
MEMBER STATES AND OBSTACLE TO THE FUNC-
TIONING OF THE INTERNAL MARKET

2.4.1. Absence of arbitrary discrimination

(87) Article 95(6) obliges the Commission to verify that the
envisaged measures are not a means of arbitrary discrim-
ination. According to the ruling of the Court of Justice,
the absence of discrimination means that no different
treatment should be given to similar situations, no
similar treatment of different situations.

(88)

(89)

The envisaged national provisions are general and are
intended to apply to both national and imported creo-
sote-treated wood for the applications concerned. As a
result, there is no evidence that they can be used as a
means of arbitrary discrimination between economic
operators in the Community.

2.4.2. Absence of a disguised restriction on trade

Envisaged more restrictive national measures in the area
of limitations on the marketing and use of products
derogating from the provisions of
a Community
Directive would normally constitute a barrier to trade.
Products that can be legally placed on the market in the
rest of the Community cannot be placed on the market
in the Member State concerned. The concept enshrined
in paragraph 6 of Article 95 is intended to prevent the
envisaged restrictions based on the criteria set out in
paragraph 5 being applied for inappropriate reasons,
and in reality constituting economic measures to be
introduced to impede the import of products from other
Member States in order to protect indirectly national
production.

(84)

Taking into account
the specific hydro-geographical
situation of the Netherlands and the extensive use of
creosote-treated wood for applications susceptible to
contact with groundwater, the conclusion can therefore
be drawn that a particularly heavy exposure scenario
exists in the Netherlands also with regard to ground-
water.

(90)

It was established before that there is a real concern with
regard to the aquatic environment due to the specific
overall exposure situation in the Netherlands. Therefore,
the protection of the environment seems to be the goal
of introducing the national provisions, and not the crea-
tion of disguised barriers to trade.

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(91)

in the intended legislation there is an
In addition,
exemption for
creosote-treated wood intended for
export. However, this exception is in line with the provi-
sions of Directive 94/60/EC, which allows the placing
on the market of creosote-treated wood in the aquatic
environment.

(92) Overall,

the Commission considers that

there is no
evidence indicating that the envisaged national provi-
sions, once adopted, will be a disguised restriction on
trade between Member States.

(93)

2.4.3. Absence of obstacles to the functioning of the

internal market

This condition 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
of the Internal Market has to be understood as a dispro-
portionate effect in relation to the pursued objective.

(94)

In the light of the environmental concerns identified
above and also taking into account the specific exposure
situation in the Netherlands, the Commission considers
that there is no evidence indicating that the envisaged
national provisions, once adopted, will constitute a
disproportionate obstacle to the functioning of
the
Internal Market.

— is admissible;
— fulfils the conditions established by Article 95(5) of

the Treaty;

and that the envisaged national provisions do not consti-
tute either a means of arbitrary discrimination, a
disguised restriction on trade between Member States, or
a disproportionate obstacle to the functioning of the
Internal Market.

(96)

The Commission therefore considers that the envisaged
national provisions can be approved in accordance with
Article 95(6) of the Treaty.

(97) However, the national provisions to be approved, once
adopted, would be incompatible with the provisions of
Directive 2001/90/EC.

(98)

the Treaty,

In accordance withArticle 95(7) of
the
Commission is already examining the appropriateness to
adapt to technical progress for a second time the provi-
sions of Directive 94/60/EC regarding creosote and creo-
sote-treated wood on the basis of the scientific evidence
provided by the Netherlands and the Opinion of the
CSTEE given thereof,

HAS DECIDED AS FOLLOWS:

Article 1

Without prejudice to the obligations arising from Directive
2001/90/EC, the envisaged national provisions relating to the
placing on the market and use of creosote-treated wood, which
the Kingdom of the Netherlands notified to the Commission by
letter dated 23 January 2001, are approved.

This Decision is addressed to the Kingdom of the Netherlands.

Article 2

IV. CONCLUSION

Done at Brussels, 23 January 2002.

(95)

In the light of the foregoing, it can be concluded that the
request by the Netherlands for introducing national
provisions derogating from Directive 94/60/EC with
regards to creosote-treated wood as submitted on 25
January 2001:

For the Commission

Erkki LIIKANEN

Member of the Commission