2002/884/EC: Commission Decision of 31 October 2002 concerning national provisions on restrictions on the marketing and use of creosote-treated wood notified by the Netherlands under Article 95(4) and (5) of the EC Treaty (Text with EEA relevance) (notified under document number C(2002) 4116)
Date: 2002-10-31
Institutions: European Commission
Subjects: Netherlands, chemical product, dangerous substance, marketing restriction, national law, wood product

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COMMISSION

COMMISSION DECISION

of 31 October 2002

concerning national provisions on restrictions on the marketing and use of creosote-treated wood
notified by the Netherlands under Article 95(4) and (5) of the EC Treaty

(notified under document number C(2002) 4116)

(Only the Dutch text is authentic)

(Text with EEA relevance)

(2002/884/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 2002/
61/EC (2), establishes rules restricting the marketing and use of certain dangerous substances and
preparations. Under Article 1(1) thereof, the Directive applies to the substances and preparations
listed in Annex I.

Council Directive 89/678/EEC of 21 December 1989 (3) amending Directive 76/769/EEC inserted in
Directive 76/76/EEC an Article 2(a), under which the amendments required to adapt the Annexes to
technical progress, with regard to the substances and preparations already covered by Directive
76/769/EEC, are to be adopted in accordance with the procedure laid down in Article 29 of Council
Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative
provisions relating to the classification, packaging and labelling of dangerous substances (4), as
amended by Council Directive 92/32/EEC (5).

Directive 76/769/EEC has been amended on several occasions. A number of dangerous substances
and preparations have been added to Annex I, and further restrictions have been placed on the
marketing and/or use of substances and preparations covered by that Annex. In certain cases,
restrictions are also placed on the marketing and/or use of products treated with or containing those
substances and preparations.

(1) OJ L 262, 27.9.1979, p. 201.
(2) OJ L 243, 11.9.2002, p. 15.
(3) OJ L 398, 20.12.1989, p. 24.
(4) OJ 196, 16.8.1967, p. 1.
(5) OJ L 154, 5.6.1992, p. 1.

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(4)

(5)

(6)

(7)

(8)

(9)

European Parliament and Council Directive 94/60/EC amending for the 14th time Directive 76/
769/EEC (6), which was adopted on the basis of Article 100a of the Treaty (now, after amendment,
Article 95), added to the list of dangerous substances and preparations whose marketing and use are
subject to restrictions set out in Annex I to Directive 76/769/EEC, inter alia, Section 32, which
concerns creosote and similar coal tar distillates, as well as preparations containing them (hereinafter
‘creosote’). It laid down restrictions on the marketing and use of creosote intended for wood
treatment and of wood treated with creosote.

Under Section 32, creosote was not to be used for wood treatment if it contained Benzo[a]pyrene
(hereinafter B[a]P), and water extractable phenols (hereinafter WEP) above certain concentrations.
The limit for B[a]P was fixed at a maximum of 0,005 % by mass (= 50 ppm) and the limit for WEP
was fixed at a maximum of 3 % by mass (= 30 g/kg). In addition, wood so treated was not to be
placed on the market.

However, by way of derogation, the use of creosote for wood treatment was permitted in industrial
installations if it contained B[a]P at a concentration of less than 0,05 % by mass (= 500 ppm) and
WEP at a concentration of less than 3 % by mass (= 30 g/kg). Creosote complying with those limits
could not be sold to the general public and containers had to be labelled with the phrase ‘For use in
industrial installations only’. Wood treated with creosote in industrial installations which was placed
on the market for the first time could be used only in industrial and professional applications, such
as on railways, in electric power transmission and telecommunications, for fencing and in harbours
and waterways. In certain cases, however, its use was wholly excluded, for example, inside buildings,
in contact with products intended for human or animal consumption, in playgrounds and in other
outdoor places for public recreation or where there was a risk of skin contact. Old treated wood
placed on the second-hand market could be used irrespective of the creosote-type applied except in
the cases mentioned above.

In 1999, on the basis of a study on the health effects of creosote (7) and the subsequent review by
the Scientific Committee on Toxicity, Ecotoxicity and the Environment (hereinafter referred to as the
SCTEE) (8), the Commission started discussions with the Member States with a view to reviewing the
provisions of Directive 76/769/EEC regarding creosote.

On 26 October 2001 the Commission, adopted Directive 2001/90/EC (9), adapting to technical
progress for the seventh time Annex I to Directive 76/769/EEC (creosote). The second recital in the
preamble makes reference to the health effects study, concluding that creosote has a greater potential
to cause cancer than previously thought. The third recital mentions the findings of the review of that
study, carried out by the SCTEE, indicating that there is a cancer risk to consumers from creosote
with a B[a]P content of less than 0,005 % by mass and/or from wood containing such creosote, and
that the magnitude of the risk gives clear cause for concern.

Directive 2001/90/EC replaced Section 32 of Annex I to Directive 76/769/EEC, introducing new
restrictions on the marketing and use of creosote for wood treatment and creosote-treated wood.
According to the provisions of that Section, 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
containing B[a]P at a concentration of
less than 0,005 by mass (= 50 ppm) and WEP at a
concentration of less than 3 % by mass (= 30 g/kg) may be used for wood treatment in industrial
installations or by professionals for in situ re-treatment. This type of creosote 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) OJ L 365, 31.12.1994, p. 1.
(7) Fraunhofer Institute of Toxicity and Aereosol Research,

‘Dermal Carcinogenicity Study of two Coal Tar Products
(CTP) by Chronic Epicutaneous Application in Male CD-1 mice (78 weeks)’, Final Report, Hanover, Germany,
October 1997.

(8) Opinion on ‘Cancer risk to consumers from creosote containing less than 50 ppm benzo-[a]-Pyrene and/or from
wood treated with such creosote and estimation of respective magnitude’, expressed at the eight SCTEE plenary
meeting, Brussels, 4 March 1999.

(9) OJ L 283, 27.10.2001, p. 41.

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(10)

The use of wood so treated which is placed on the market for the first time or re-treated in situ is
permitted for professional and industrial applications only, such as on railways, in electric power
transmission and telecommunications, for fencing, for agricultural purposes and in harbours and
waterways. In certain cases, however, its use is wholly excluded, for example 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 Directive 76/769/EEC, as
amended by Directive 2001/90/EC, applies may be placed on the second-hand market for re-use,
except in the cases listed above where its use is wholly excluded.

2. National provisions

(11)

The national provisions notified to the Commission take the form of a draft Decree intended to
amend the Decision on Coatings Containing Policyclic Aromatic Hydrocarbons (Besluit PAK-houdende
coatings) (10) under the Chemical Substances Act (creosote-treated wood).

(12) Article 1, point B, of the draft Decree inserts a new Section 4(a) entitled ‘creosote-treated wood’,
containing a new Article 8(a), Paragraph 1(a), of which provides that ‘as from the date to be
determined by Royal Decree, it shall be forbidden to import into the Netherlands, to use, or to
supply to others, or to keep available for sale on the Dutch market, creosote-treated wood for
applications involving contact with surface water or groundwater’.

(13) Under paragraph 2 of the new Article 8(a), the ban would not apply to creosote-treated wood which
was put to use in its application before a date to be determined by Royal Decree, so long as the
existing place of application is retained. Two other exceptions from the application of the ban are
provided in paragraph 3. They 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 accordance with the provisions of Article
4(16) of Council Regulation (EEC) No 2913/92 (11);

— originates from a Member State of the European Union, or an EEA State and is not intended for

sale on the Netherlands market.

(14) Article 8b of the new Section 4a would require anyone who imports, supplies, or keeps available for
sale on the market, creosote-treated wood that does not come under the ban, to keep a record of
that wood and to show if so required that the creosote-treated wood in question is not intended for
applications to which the ban relates. Specific minimum requirements are provided for in relation to
the record,

including:

— the name and address of the manufacturer or supplier from whom the creosote-treated wood was

purchased,

— 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

delivered,

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

— the quantity of creosote-treated wood received or delivered.

3. Previous notification under Article 95(5) of the Treaty

(15)

The Netherlands had previously notified the Commission of their intention to introduce those
national provisions. The notification was submitted on 25 January 2001 and sought to obtain the
Commission's approval in relation to the relevant provisions of Directive 76/769/EEC as amended by
Directive 94/60/EC. Pursuant to Article 95(6) of the Treaty, by Decision 2002/59/EC (12), the
Commission approved the draft national provisions.

(10) Bulletin of Acts and Decrees (Staatsblad) 1996, No 304, as last amended by the Decree of 6 April 1998

(Staatsblad No 235).

(11) OJ L 302, 19.10.1992, p. 1.
(12) OJ L 23, 25.1.2002, p. 37.

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(16) A detailed description of the arguments put forward by the Netherlands, as supported by the
evidence submitted, as well as the main factual and legal elements taken as a basis for the assessment
by the Commission is contained in the recitals of Decision 2002/59/EC, to which full reference is
made for the purpose of the present Decision. For reasons of clarity, a brief summary is given in
recitals 17 to 20.

(17)

(18)

The Netherlands took the view that new scientific findings concerning the protection of the
environment in connection with a problem that had arisen in the Netherlands after the adoption of
Directive 94/60/EC justified the introduction of the notified provisions.

in particular Policyclic Aromatic Hydrocarbons,

The evidence submitted by the Netherlands indicated certain environmental risks posed by creosote
compounds,
leaching out from creosote-treated
wood in contact with surface water and groundwater. Also, the information submitted highlighted
the particularly heavy exposure situation prevailing in the Netherlands with regard to its surface
water and groundwater compartments.

(19) On 12 June 2001 the SCTEE gave a preliminary opinion (13) on the evidence submitted, concluding
that the justification of the Netherlands notification is a complex matter and does not directly
involve a danger to human health. On 13 July 2001, by Decision 2001/599/EC (14), the Commission
extended the six-month period referred to in the second subparagraph of Article 95(6) of the Treaty
for a further period of six months in order to allow for a thorough evaluation of all evidence
submitted. The Decision was notified to the Netherlands on the day of its adoption.

(20)

The SCTEE delivered its final opinion on 21 October 2001, shortly before the adoption of Directive
2001/90/EC, broadly confirming the scientific validity of the evidence submitted by the Netherlands.
On the basis of that opinion, on 23 January 2002, by Decision 2002/59/EC, the Commission
approved the draft national provisions. The Decision was notified to the Netherlands the same day.

II. PROCEDURE

(21) Under Directive 2001/90/EC, Member States have to adopt and publish the provisions necessary to
comply with that Directive by 31 December 2002 at the latest, and to apply them no later than 30
June 2003.

(22) As indicated in point 16, pursuant to Article 95(6) of the Treaty, by Decision 2002/59/EC the
Commission approved the draft national provisions concerning creosote-treated wood notified to it
by the Netherlands.

(23)

By letter dated 25 April 2002, the Permanent Representation of the Netherlands again notified the
Commission, in accordance with Article 95(5) of the Treaty, of the national provisions which the
Netherlands intends to introduce, but which are inconsistent with Directive 76/769/EEC as amended
by Directive 2001/90/EC, as well as the grounds for introducing them. By letter of 10 July 2002, the
Netherlands Permanent Representation informed the Commission that the Netherlands Government
also refers to Article 95(4) of the Treaty in support of its position.

(24)

By letter of 8 August 2002, the Commission informed the Netherlands authorities that it had
received the notification under Article 95(4) and (5) of the Treaty and that the six-month period for
its examination under Article 95(6) started on 4 May 2002, the day following the day on which the
notification was received.

(13) 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.

(14) OJ L 210, 3.8.2001, p. 46.

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(25)

By letter of 8 August 2002, the Commission informed the other Member States of the notification
received from the Netherlands. The Commission also published a notice regarding the notification in
the Official Journal of the European Communities (15) in order to inform other interested parties of the
draft national measures that the Netherlands intend to introduce.

III. ASSESSMENT

1. Admissibility

(26)

The Netherlands seeks the Commission's approval of national provisions which are incompatible
with Directive 76/769/EEC as amended by Directive 2001/90/EC, a harmonisation measure adopted
on the basis of Article 95 of the Treaty. Directive 2001/90/EC was adopted pursuant to Article 2a of
Directive 76/769/EEC. It replaces Section 32 of Annex I to Directive 76/769/EEC, as amended by
Directive 94/60/EC, which was adopted on the basis of Article 100(a) of the Treaty (now, after
amendment, Article 95) and harmonises the marketing and use of creosote and creosote treated
wood.

(27)

The differences between the relevant provisions of Directive 2001/90/EC and the national provisions
are summarised in the following table:

Wood treated with creo-
sote
containing
B[a]P < 0,005 % by mass
and WEP < 3 % by mass

Wood treated with creo-
sote
containing
B[a]P > 0,005 % by mass
and WEP < 3 % by mass

Directive 2001/90/EC

National provisions

Wood treated in industrial installations
or retreated in situ by professionals can
be placed on the market and used for
professional and industrial applications
involving contact with surface water
and groundwater.
Wood treated otherwise than above
before 30 June 2003 can be placed on
the secondhand market and/or (re)used
for the above applications

treated
Ban on marketing and use of
wood for applications involving contact
with surface water or groundwater
Old treated wood cannot be marketed for
reuse or be reused for the applications
above if it is removed from the existing
application
place

of

Old treated wood can be placed on the
reuse
secondhand market
for
applications
contact with
surface water and groundwater

involving

for

Old treated wood cannot be marketed for
reuse or be
applications
reused for
involving contact with surface water or
groundwater if it is removed from the
existing place of application

(28) Overall, the national provisions are more restrictive than those laid down in Directive 2001/90/EC in

the following respects:

— the placing on the market and/or use of wood treated with creosote containing B[a]P at a
concentration of less than 0,005 % by mass and WEP at a concentration of less than 3 % by mass
in industrial installations or re-treated in situ by professionals for professional and industrial
applications involving contact with (ground)water, which are allowed under the Directive, would
be prohibited in the Netherlands;

— the marketing for reuse or the reuse for applications involving contact with surface water or
ground water in the Netherlands of old creosote-treated wood is prohibited if the wood is
removed from the existing place of application.

(29) Directive 2001/90/EC replaces all the provisions on creosote-treated wood which had been intro-
duced into Directive 76/769/EEC by Directive 94/60/EC and in relation to which the Netherlands
had obtained authorisation to introduce the national provisions in question. The differences between
the relevant provisions of Directive 76/769/EEC as amended by 94/60/EC, as amended by Directive
2001/90/EC and the national provisions in question are summarised in the following table:

(15) OJ C 188, 8.8.2002, p. 2.

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Directive 94/60/EC

Directive 2001/90/EC

National provisions

Wood treated with creo-
sote
containing
< 0,005 % by mass and
WEP FEA < 3 % by mass

Wood treated with creo-
sote containing B[a]P in
the range of 0,005 to
0,05
< B[a]P
< 0,05) and WEP < 3 %
by mass

(0,005

use

on
restrictions
No
marketing
of
or
treated wood for applica-
tions
involving contact
with surface water and
groundwater
No
on
restrictions
marketing or use of old
treated wood for applica-
tions
involving contact
with surface water and
groundwater

Wood treated with creo-
sote in industrial installa-
tions can be placed on
the market and used for
professional and indus-
trial
applications
involving contact with
and
surface
groundwater.
Old treated wood can be
second
placed on the
hand market
for re-use
the above applica-
for
tions.

water

Wood treated in indus-
trial
installations or re-
treated in situ by profes-
sionals can be placed on
the market and used for
professional and indus-
trial
applications
involving contact with
surface
and
groundwater.
Wood treated otherwise
than above before 30
June 2003 can be placed
on
second-hand
market and (re)used for
the above applications.

water

the

of

for

Ban on the marketing and
creosote-treated
use
applications
wood
involving
contact with
surface water or ground-
water
Old treated wood cannot
be marketed for re-use or
be re-used for applications
involving
contact with
surface water or ground-
water if it is removed from
of
the
application

existing

place

placing
of

on
the
creosote-
totally

First
market
treated wood
banned
Wood treated before 30
June 2003 can be placed
second-hand
on
re-use
market
in
for
involving
applications
contact with
surface
water and groundwater.

the

Ban on marketing and use
of creosote-treated wood
for applications involving
contact with surface water
or groundwater
Old treated wood cannot
be marketed for re-use or
be re-used for applications
involving
contact with
surface water or ground-
water if it is removed from
the
of
application

existing

place

Wood treated with creo-
sote
containing B[a]P
> 0,05 % by mass and
WEP < 3 % by mass

Placing on the market of
creosote-treated
wood
totally banned.
Old treated wood can be
placed on the second-
for re-use
hand market
for
applications
involving contact with
and
surface
groundwater.

water

Placing on the market of
creosote-treated
wood
totally banned.
Old treated wood can be
placed on the second-
for re-use
hand market
for
applications
involving contact with
and
surface
groundwater.

water

Placing on the market of
creosote-treated
wood
totally banned.
Old treated wood cannot
be marketed for re-use or
be re-used for applications
involving
contact with
surface water or ground-
water if it is removed from
the
of
application

existing

place

(30)

It is evident from that table that, with the exception of the rules on the marketing and use of wood
treated with creosote containing B[a]P at a concentration of greater than 0,05 % by mass previously
placed on the market, which remain unchanged, the relevant provisions introduced by Directive
2001/90/EC are more restrictive than those introduced by Directive 94/60/EC. However, the national
provisions notified by the Netherlands, and previously notified and approved by the Commission,
continue to be stricter than those of Directive 2001/90/EC.

(31)

In their letter of 25 April 2002, notified to the Commission on 3 May 2002, and complemented by
their letter of 10 July 2002, the Netherlands makes reference to both Article 95(4) and/or (5) of the
Treaty in support of its notification.

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(32) Article 95(4) of the Treaty reads as follows:

‘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 relating to the protection of the
environment or the working environment, it shall notify the Commission of these provisions as well
as the grounds for maintaining them.’

(33) 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.’

(34)

(35)

(36)

(37)

(38)

Those Treaty provisions distinguish between situations where the national provisions notified by
Member States are to be maintained and situations where they are to be introduced, each situation
being subject to specific conditions for the application of the derogation provided for in the key
provisions of Article 95. While the applicability of the conditions laid down in Article 95(4)
presupposes that the national provisions in principle exist before the adoption of the harmonisation
measure, the conditions established by Article 95(5) apply where the national provisions are in
principle notified at the draft stage.

It appears from the submitted documentation that the national provisions exist only in draft form.
They are not in force, nor were they adopted before the adoption of Directive 2001/90/EC. However,
certain specific circumstances have to be taken into account in order to establish whether the
notification submitted by the Netherlands has to be considered in the light of the conditions
provided for in Article 95(4) of the Treaty or has rather to be assessed in the light of those specified
in Article 95(5).

In particular, the national provisions were first notified to the Commission on 23 January 2001, that
is to say, before the adoption of Directive 2001/90/EC, and they were approved by Decision
2002/59/EC. According to established case-law, a Member State is not authorised to apply national
measures derogating from a harmonisation measure until the Commission has decided there-
upon (16). In addition, neither the environmental concerns nor the specific problem pointed out by
the Netherlands were taken into consideration at the time of adoption of Directive 2001/90/EC.
Acknowledgement of those concerns and their specificity to the Netherlands occurred after the
adoption of that Directive. This in turn led the Commission to approve the national provisions while
at the same time to declare its intention of reviewing the newly adopted Directive (17).

It is clear that by notifying national provisions which had already been notified before the adoption
of Directive 2001/90/EC, the Netherlands ‘deems it necessary to maintain [those] national provi-
sions’, which have been approved by the Commission, within the meaning of Article 95(4).
Conversely, the renewed notification does not appear to fulfil the conditions of Article 95(5) because
it was not ‘after the adoption by … the Commission of a harmonisation measure’ that the
Netherlands deemed it necessary to introduce the national provisions, but well before the adoption
of Directive 2001/90/EC.

It should be noted that under Community law a Member State is not allowed to apply national
measures derogating from a harmonisation measure until the Commission has approved them. It
should also be noted that Article 95(4) EC is concerned with national measures that a Member State
wishes to maintain after the adoption of a harmonisation measure, in other words measures that are
already applicable in that Member State. On 23 January 2002 the Commission approved the draft
national measures that the Netherlands wishes to introduce and which from a point of view of
environmental protection derogated from Directive 94/60/EC. However, Directive 2001/90/EC was
adopted on 26 October 2001. The draft national measures, thus authorised by the Commission
under Article 95(5) EC, derogate from Directive 2001/90/EC and accordingly, the Commission needs
to approve that they may be applied. Hence, the Netherlands proceeded to a second notification of
the same national provisions that it had previously notified and which the Commission has already
approved. It is under these specific circumstances that the Commission concludes that the Nether-
lands wish to ‘maintain’ the same national provisions, which from a point of view of environmental
protection are more restrictive than those laid down in Directive 2001/90. The notification
submitted by the Netherlands has therefore to be assessed in the light of Article 95(4) EC.

(16) See e.g. Case C-319/97: Kortas, ECR [1999] I-3143, para [28].
(17) See Commission Decision 2002/59/EC, recital 98.

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(39)

(40)

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 of the Community (18) applies to the
placing by a person of creosote-treated wood into surface water (19). However, that Directive is
concerned with the prior authorisation of all discharges into,
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, the Netherlands provisions under consideration, in providing for a
total ban on the marketing and/or use of creosote-treated wood for applications involving contact
with surface water, go beyond the measures provided for in Directive 76/464/EC and are incompat-
ible with Directive 2001/90/EC.

inter alia,

Furthermore, Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater
against pollution caused by certain dangerous substances (20) covers the placing by a person of
creosote-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 those circumstances, the use of creosote-treated wood in contact with
groundwater is prohibited under that Directive. However, that 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. Consequently, the Netherlands provisions under considera-
tion, in providing for a total ban on the marketing and use of creosote-treated wood for applications
involving contact with groundwater, go beyond the measures provided for in Directive 80/68/EEC
and are incompatible with Directive 2001/90/EC.

(41)

The notification submitted by the Netherlands contains an explanation of the grounds relating to the
justify the national provisions notified.
in their opinion,
protection of the environment which,

(42)

(43)

it can therefore be concluded that the Netherlands notified the
In the light of the foregoing,
Commission of the actual wording of the national provisions approved by Decision 2002/59/EC but
incompatible with Directive 2001/90/EC, which they intend to maintain, as well as an explanation of
the reasons which,

justify the maintenance of those provisions.

in their opinion,

The notification submitted by the Netherlands in order to obtain approval of the draft national
provisions, which were approved by Decision 2002/59/EC under Article 95(5) EC and remain
unchanged, concerns measures more restrictive than those adopted by Directive 2001/90/EC. The
notification is therefore to be considered admissible under Article 95(4) of the Treaty to the extent
that the relevant provisions of Directive 2001/90/EC are not identical with those laid down in
Directive 94/60/EC.

2. Merits

(44)

In accordance with Article 95(4) of the Treaty, the Commission must ascertain that all the conditions
enabling a Member State to avail itself of the possibility of derogation provided for in that Article are
fulfilled. In particular, the national provisions have to be justified by the major needs referred to in
Article 30 of the Treaty or relating to the protection of the environment or the working environ-
ment. Also, the possibility of derogation provided for in Article 95(4) requires the existence of a
problem specific to the notifying Member State in connection with the grounds invoked by that
State.

(18) OJ L 129, 18.5.1976, p. 23.
(19) European Court of Justice's judgment of 29 September 1999, case C-232/97 — ECR [1999] I, p. 6385.
(20) OJ L 20, 26.1.1980, p. 43.

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(45)

In addition, pursuant to Article 95(6) of the Treaty, where the Commission considers that such
national provisions are justified,
it must check whether or not they 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

(46)

Creosote is a complex mixture of over 200 chemical compounds, predominantly aromatic hydrocar-
bons, as well as phenolic and aromatic nitrogen and sulphur compounds. It is a mid-heavy distillate
of coal tar (boiling point approximately 200 to 400 °C).

(47)

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.

(48)

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. Limit values for classification standards are 500 ppm and 50 ppm.

(49) Modifications to both the physical and chemical properties 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 application, by incorporating components with a lower boiling point, which is
sometimes called carbolineum. Directive 2001/90/EC does not make a distinction: it covers and treats
in an identical way a whole range of different coal tar distillates, each of them specified by name,
Einecs- and CAS number.

(50)

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

(51)

The most important properties of creosote are:

— high fungicidal efficacy,

— high insecticidal efficacy,

— long-term persistence,

— resistance to leaching and weathering.

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(52) A very small quantity of creosote is used in medicinal products for the treatment of certain skin

diseases, such as psoriasis.

E c o t o x i c o l o g i c a l e f f e c t s

(53)

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

(54)

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

(55)

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.

Creosote residues can persist for many years in the environment (> 20 to 30 years),

— the main breakdown processes are photodegradation (under irradiation from the sun) and
microbial degradation (by certain bacteria). Microbial degradation can occur under aerobic and
anaerobic conditions. PAH 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
degradation and the higher molecular weight compounds by photooxidation and sedimentation.
Microbial degradation of the more water soluble PAHs occurs under aerobic and anaerobic
conditions. The PAH constituents have been shown to bioaccumulate in aquatic species.

(56)

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

(57) A study (21) published in Sweden has shown that after 40 years in soil, creosote impregnated poles
had lost some of the compounds contained in creosote, especially those with the lowest boiling
point (< 270 °C). The part of the poles above the ground lost the 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 consistent with the observation that the mobility of PAHs in soil is extremely
low due to their strong absorption to organic matter.

(58)

The presence of elevated levels of PAH in aquatic environments has often been attributed to the
presence of creosote-treated wood. Migration of creosote components 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 retained 93 %
of the original composition of creosote compounds (22). The pollution of sediments by creosote
leaching from waterbank protection has been documented in the Netherlands (23) and also in studies
on pollution from former impregnation facilities.

(21) S. Holmroos, Analys av kreosotstolpar i Simlångsdalen efter 40 års exponering i

fält. Rapport nr. M205-252.092.

Älvkarleby: Vattenfall Utveckling. 1994.

(22) L.L. Ingram et. al., Migration of Creosote and Its Components from Treated Piling Sections in a Marine Environ-

ment, Proc. Ann. Meet. Am. Wood Preserv. Assoc. 78, 1982, p. 120. See also footnotes 8 and 18.

(23) BKH Consulting Engineers, Foundation of the appeal against the EC-directive on creosote, Final report, Delft, 1

July 1995.

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(59) More recently, on the basis of a study carried out in the Netherlands (24), the SCTEE (25) highlighted
the environmental risks associated with the use of creosote-treated wood in the aquatic environment
(surface water and groundwater) even at very low concentration of BaP contained in the creosote
used for wood treatment.

(60) As for human exposure via the environment, actually measured data on environmental pollution by

PAHs originating in creosote are scarce.

(61)

(62)

(63)

(64)

2.2. The position of the Netherlands

The Netherlands takes the view that the national provisions are justified by the need to protect the
aquatic environment from the risks posed by creosote-treated wood in contact with surface water
and groundwater and by the specific exposure situation prevailing in the Netherlands.

The Netherlands refers to the evidence submitted in support of their previous notification as well as
the findings of the review carried out by SCTEE (26). A detailed description of the relevant documen-
tary evidence referred to by the Netherlands is contained in Decision 2002/59/EC, to which reference
is made for the purposes of the present Decision. Furthermore, the Netherlands points out that
Directive 2001/90/EC is exclusively inspired by human health protection requirements and does not
take into account either environmental concerns or the specific exposure situation prevailing in the
Netherlands

2.3. Evaluation of the position of the Netherlands

2.3.1. Justification with regard to the need to protect the environment

The evidence referred to in the Netherlands notification highlights the risks to the aquatic environ-
ment from PAHs leaching out from creosote-treated wood in contact with surface water and
groundwater. The assessment of the risks carried out by the Netherlands authorities addresses both
wood treated with creosote containing B[a]P at concentration of less than 0,05 % by mass (herein-
after standard creosote) and that with a B[a]P content of less than 0,005 % (hereinafter modified
creosote). In both cases, creosote-treated wood is reported to result in the maximum admissible
concentrations of most of the selected PAHs in surface water, groundwater and sediment being
considerably exceeded.

In its opinion of 21 October 2002, the SCTEE broadly confirms the environmental concerns pointed
out by the Netherlands. However, as far as wood treated with standard creosote is concerned, the
SCTEE observes that the environmental risks could be even greater than indicated by the Netherlands
authorities. As for modified creosote, the SCTEE observes that this does not result in a substantial
reduction of the levels of other PAHs and concludes that controls based on B[a]P alone are not
adequate.

(24) Centrum voor Stoffen en Risicobeoordeling, CSR Adviesrapport: 08196A01, Creosoot — Milieurisico's ten gevolge
in contact met water en bodem — Auteurs: M.H.M.M. Monforts, E.W.M.
van de toepassing van gecreosoteerd hout
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).

(25) Opinion on creosote. — Notification of the Netherlands made under Article 95(5) of the Treaty expressed at the

(26) 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.

24th CSTEE plenary meeting, Brussels, 12 June 2001.

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(65) Directive 2001/90/EC, which was adopted before the SCTEE delivered its opinion, merely reduced
the B[a]P content permitted in creosote from 0,05 to 0,005 and thus does not adequately address the
environmental risks pointed out by the Netherlands. It is exclusively inspired by human health
protection requirements and, pending the evaluation by the SCTEE, does not take into consideration
the environmental concerns pointed out by the Netherlands. Furthermore, in Decision 2001/59/EC,
by addressing those environmental concerns and announcing its intention of reviewing those
provisions accordingly, the Commission acknowledges the limitations of Directive 2001/90/EC.

(66)

(67)

The documentation referred to in the Netherlands notification also shows that a specific problem
exists in the Netherlands due to the high level of exposure to PAHs from creosote-treated wood of
the Netherlands surface water and groundwater areas.

In its opinion of 30 October 2001, the CSTEE recognises that creosote-treated wood in contact with
waterways is used extensively in the Netherlands as riverbank protection and that the subsequent
risks for the aquatic environment within the Netherlands are likely to be extensive. Further compara-
tive information (27) indicates that the extensive use of creosote-treated wood for riverbank protec-
tion in the Netherlands represents a major problem by comparison with other Member States.
Furthermore, a recent estimate (28) of the general concentration level of PAHs in the Netherlands
surface water areas confirms that the exposure scenario prevailing in the Netherlands is particularly
intensive.

(68)

Likewise, in the light of the data showing the considerable extent of low-depth groundwater areas in
the Netherlands combined with the extensive use of creosote-treated wood in applications suscept-
ible to contact with groundwater, it can reasonably be concluded that a particularly high level of
exposure to PAHs from creosote-treated wood can also be expected with regard to groundwater.

(69)

In the light of the foregoing, the Commission considers that the national provisions notified by the
Netherlands are justified by the need to reduce the exposure of the Netherlands aquatic environment
and are proportionate to the objective pursued.

2.4. Absence of arbitrary discrimination or of any disguised restriction on trade between

Member States and of any obstacle to the functioning of the Internal market

2.4.1. Absence of arbitrary discrimination

(70) Article 95(6) obliges the Commission to verify that the envisaged measures are not a means of
arbitrary discrimination. In order for there to be no discrimination, similar situations must not be
treated in different ways and different situations must not be treated in the same way, is a general
principle in Community law.

(71)

The national provisions are general and are intended to apply to both national and imported
creosote-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.

(27) BKH Consulting Engineers, Foundation of the appeal against the EC-directive on creosote, Final report, Delft, 1

July 1995.
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, Groß-
hansdorf (Germany), December 1995.

(28) Centrum voor Stoffen en Risicobeoordeling, CSR Adviesrapport: 08196A01, Creosoot — Milieurisico's ten gevolge
van de toepassing 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).

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2.4.2. Absence of a disguised restriction on trade

(72) National measures which restrict the marketing and use of products to a greater extent than a
Community Directive would normally constitute a barrier to trade, in so far as products that could
be legally placed on the market in the rest of the Community could not be placed on the market in
the Member State concerned. The pre-conditions laid down in paragraph 6 of Article 95 are intended
to prevent restrictions based on the criteria set out in paragraphs 4 and 5 thereof from being applied
for inappropriate reasons, and constituting in effect economic measures to impede the importation
of products from other Member States, that is to say, a means of indirectly protecting national
production.

(73) However, it has already been established that there is real cause for concern as regards the aquatic
environment, because of the specific overall exposure situation in the Netherlands. The true aim of
the national provisions appears, therefore, to be the protection of the environment, not the creation
of disguised barriers to trade.

(74)

The national provisions provide for an exemption for creosote-treated wood intended for export.
However, that exception is in line with Directive 76/769/EEC as amended by Directive 2001/90/EC,
and, hence,

is not concerned with this decision.

(75)

It must be concluded that there is no evidence to indicate that the envisaged national provisions are
a disguised restriction on trade between Member States.

2.4.3. Absence of obstacles to the functioning of the internal market

(76)

This condition cannot be interpreted in such a way that it precludes the approval of any national
measure likely to affect the establishment of the internal market. Indeed, any national measure
derogating from a harmonisation measure aiming at the establishment and operation of the internal
market will constitute in substance a measure likely to affect the internal market. Consequently, in
order to preserve the useful character of the procedure for derogation provided for by Article 95 of
the EC Treaty, the concept of obstacle to the functioning of the internal market must, in the context
of Article 95(6), be understood as a disproportionate effect in relation to the pursued objective.

(77)

In the light of the environmental concerns identified and also taking into account the specific
exposure situation in the Netherlands, it must be concluded that there is no evidence to indicate that
the envisaged national provisions constitute an obstacle to the functioning of the internal market.

IV. CONCLUSION

(78)

(79)

(80)

In the light of the foregoing, it can be concluded that the notification by the Netherlands of the
national provisions derogating from Directive 2001/90/EC with regard to creosote-treated wood, as
notified on 3 May 2002, is admissible and fulfils the conditions established by Article 95(4) of the
Treaty.

Furthermore, the national provisions do not constitute a means of arbitrary discrimination, or a
disguised restriction on trade between Member States, or a disproportionate obstacle to the func-
tioning of the Internal Market.

The national provisions can therefore be approved in accordance with Article 95(6) of the Treaty. In
accordance with Article 95(7) of the Treaty, the Commission is currently considering an adaptation
of the provisions of Directive 76/769/EC, as amended by Directive 2001/90/EC, on the basis of all
available scientific evidence.

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HAS ADOPTED THIS DECISION:

Article 1

The national provisions relating to the placing on the market and use of creosote-treated wood, which the
Netherlands notified to the Commission on 3 May 2002, are approved.

This Decision is addressed to the Kingdom of the Netherlands.

Article 2

Done at Brussels, 31 October 2002.

For the Commission

Erkki LIIKANEN

Member of the Commission