Notification according to Article 95(4) of the EC Treaty of national legislation derogating from the provisions of a Community harmonisation measure (No 2001-NOTIF95.4-AU-1) (Text with EEA relevance)
Date: 2002-01-25
Institutions: European Commission
Subjects: Austria, cadmium, derogation from EU law, environmental protection, fertiliser, marketing

C 23/4

EN

Official Journal of the European Communities

25.1.2002

Notification according to Article 95(4) of the EC Treaty of national legislation derogating from the
provisions of a Community harmonisation measure

(No 2001-NOTIF95.4-AU-1)

(2002/C 23/03)

(Text with EEA relevance)

1. On 16 November 2001 the Republic of Austria notified
the Commission according to Article 95(4) of the Treaty
establishing the European Communities that it deems it
necessary to maintain national
legislation deviating from
the provisions of Council Directive 76/116/EEC of 18
December 1975 on the approximation of the laws of the
Member States relating to fertilisers (1), as last amended by
Directive 98/97/EC (2) of the European Parliament and of
the Council of 22 December 1998 regarding the marketing
in Austria, Finland and in Sweden of fertilisers containing
cadmium.

2. Article 95(4) stipulates that if, after the adoption by the
Council or by the Commission of a harmonisation
measure, a Member State deems it necessary to maintain
national provisions on grounds of major needs referred to
in Article 30, or
the
environment or the working environment, it shall notify
the Commission of these provisions as well as the grounds
for maintaining them.

relating to the protection of

3. The Commission shall, within six months of the notifi-
cation approve or reject the national provisions involved
after 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 national provisions prohibit on the territory of the
Republic of Austria the marketing of fertilisers containing
cadmium at concentrations in excess of 75 mg/kg P2O5.
This value is mentioned in Article 2, paragraph 2, of the
Austrian fertiliser Regulation of 1994.

5. The 1994 Act of Accession of the Republic of Austria
already granted a derogation to Austria to temporarily
maintain the abovementioned national provisions. Article
69 and point 4 of Annex VIII of the Act of Accession
provide that Article 7 of Directive 76/116/EEC, in so far
as it concerns the cadmium content of fertilisers, shall not
apply to the Republic of Austria before 1 January 1999.

6. Directive 76/116/EEC was

subsequently amended by
Directive 98/97/EC regarding the marketing in Austria,
fertilisers containing cadmium,
Finland and Sweden of
allowing
the
marketing on its
containing
territory of
cadmium at concentrations in excess of that which was
fixed nationally at the date of accession. This derogation

the Republic of Austria

to prohibit

fertilisers

applies for the period from 1 January 1999 until 31
December 2001.

7. On 14 September 2001,

the Commission adopted a
proposal for a regulation of the European Parliament and
Council relating to fertilisers (3) which, inter alia, provides
the derogation mentioned above.
for an extension of
According to Article 33 of
this proposal, Austria may
prohibit the placing on the market on its territory of EC
fertilisers containing cadmium at concentrations in excess
of that which was fixed nationally at the date of Accession
until 31 December 2004. The second paragraph of the
same Article provides
in
consultation with Member States and interested parities,
review by 30 June 2002 at the latest the need for estab-
lishing provisions at Community level concerning the
cadmium content in fertilisers.

the Commission shall,

that

8. Austria justifies its request on grounds relating to the
environment. In support of the request, Austria refers to
the conclusion of the risk assessment report named (cid:145)A risk
assessment for cadmium in Austria based on the recom-
mendations of ERM(cid:146) (4), which has been available to the
public since September 2001 on the Commission website
at:

http://europa.eu.int/comm/enterprise/chemicals/fertilizers/
riskassest/reports.htm

9. Austria maintains that the PEC value (predicted environ-
mental concentration) from cadmium in mineral fertilisers
in Austria, exceeds the PNEC value (predicted no effect
investigated regions,
concentration)
the 52 arable
and that
In the
Austrian regions if bio-available values are used.
view of
the substance is of
concern and the obligation exists to take further steps
with a view to reducing such environmental risk.

for water
this also applies

the Austrian authorities,

to 5 % of

in most

10. In the light of the foregoing, the Republic of Austria deems
it necessary to maintain the above national provisions also
after 31 December 2001 and at least until the Community
has decided appropriate measures on the use of cadmium
in fertilisers.

11. Possible observations on the notification thus made by
Austria submitted to the Commission later than fifteen
days from the date of publication of this notice may not
be taken into consideration.

(1) OJ L 262, 27.9.1976, p. 201.
(2) OJ L 18, 23.1.1999, p. 60.

(3) COM(2001) 508 final.
(4) ERM is a consultant working on behalf of the Commission.

25.1.2002

EN

Official Journal of the European Communities

C 23/5

12. Further

information regarding the

request

from the

Contact point in the European Commission:

Republic of Austria can be obtained from:

Herrn Reinhard Blauensteiner
Bundesministerium f(cid:252)r Land- und Forstwirtschaft, Umwelt
und Wasserwirtschaft
Sektion I (cid:145)Recht(cid:146)
Stubenring 1
A-1012 Wien
tel. (43-1) 71 10 00
fax (43-1) 711 00 65 03
e-mail: Reinhard.Blauensteiner@bmlf.gv.at

Philippe Brunerie
European Commission
Directorate General (cid:145)Enterprise(cid:146)
Unit E3 (cid:145)Chemicals(cid:146)
AN88 4/40
B-1049 Brussels
tel. (32-2) 295 21 99
fax (32-2) 295 02 81
e-mail: philippe.brunerie@cec.eu.int

Notification according to Article 95(4) of the EC Treaty of national legislation derogating from the
provisions of a Community harmonisation measure

(No 2001-NOTIF95.4-FI-1)

(2002/C 23/04)

(Text with EEA relevance)

that

it deems

1. On 7 December 2001 the Republic of Finland notified the
Commission according to Article 95(4) of the Treaty estab-
lishing the European Communities
it
legislation deviating from
necessary to maintain national
the provisions of Council Directive 76/116/EEC of 18
December 1975 on the approximation of the laws of the
Member States relating to fertilisers (1), as last amended by
Directive 98/97/EC (2) of the European Parliament and of
the Council of 22 December 1998 regarding the marketing
in Austria, Finland and in Sweden of fertilisers containing
cadmium.

2. Article 95(4) stipulates that if, after the adoption by the
Council or by the Commission of a harmonisation
measure, a Member State deems it necessary to maintain
national provisions on grounds of major needs referred to
in Article 30, or
the
environment or the working environment, it shall notify
the Commission of these provisions as well as the grounds
for maintaining them.

relating to the protection of

3. The Commission shall, within six months of the notifi-
cation approve or reject the national provisions involved
after 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 national legislation of the Republic of Finland provides
that agricultural and horticultural fertilisers may contain
no more than 50 mg of cadmium for each kilogram of
phosphorus. This value is mentioned in Section 3 of the
the Ministry of Agriculture and Forestry
Decision of
(45/1994) of 21 January 1994.

5. The 1994 Act of Accession of the Republic of Finland
already granted a derogation to Finland to temporarily
maintain the abovementioned national provisions. Article
the Act of Accession
84 and point 2 of Annex X of
provide that Article 7 of Directive 76/116/EEC, in so far
as it concerns the cadmium content of fertilisers, shall not
apply to the Republic of Finland before 1 January 1999.

6. Directive 76/116/EEC was

the Republic of

subsequently amended by
Directive 98/97/EC regarding the marketing in Austria,
fertilisers containing cadmium,
Finland and Sweden of
the
Finland to prohibit
allowing
marketing on its
containing
fertilisers
territory of
cadmium at concentrations in excess of that which was
fixed nationally at the date of accession. This derogation
applies for the period from 1 January 1999 until 31
December 2001.

7. On 14 September 2001,

the Commission adopted a
proposal for a regulation of the European Parliament and
Council relating to fertilisers (3) which, inter alia, provides
for an extension of
the derogation mentioned above.
According to Article 33 of this proposal, Finland may
prohibit the placing on the market on its territory of EC
fertilisers containing cadmium at concentrations in excess
of that which was fixed nationally at the date of Accession
until 31 December 2004. The second paragraph of the
same Article provides
in
consultation with Member States and interested parities,
review by 30 June 2002 at the latest the need for estab-
lishing provisions at Community level concerning the
cadmium content in fertilisers.

the Commission shall,

that

(1) OJ L 262, 27.9.1976, p. 201.
(2) OJ L 18, 23.1.1999, p. 60.

(3) COM(2001) 508 final.