2003/1/EC: Commission Decision of 18 December 2002 relating to national provisions on limiting the importation and placement on the market of certain NK fertilisers of high nitrogen content and containing chlorine notified by France pursuant to Article 95(5) of the EC Treaty (Text with EEA relevance) (notified under document number C(2002) 5113)
Date: 2002-12-18
Institutions: European Commission
Subjects: France, chemical fertiliser, derogation from EU law, import restriction, marketing, national law

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II

(Acts whose publication is not obligatory)

COMMISSION

COMMISSION DECISION

of 18 December 2002

relating to national provisions on limiting the importation and placement on the market of certain
NK fertilisers of high nitrogen content and containing chlorine notified by France pursuant to
Article 95(5) of the EC Treaty

(notified under document number C(2002) 5113)

(Only the French text is authentic)

(Text with EEA relevance)

(2003/1/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

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

Whereas:

the content of the primary nutrients, i.e. nitrogen, phos-
phorus and potassium, with these three elements being
represented by the letters N, P and K, respectively. In
particular,
fertilisers,
it distinguishes between straight
which contain only one of the three fundamental nutri-
ents, and compound fertilisers, which contain two or
three.

I. FACTS

1. Community legislation

(1)

(2)

1.1. Directive 76/116/EEC relating to fertilisers

the European Parliament and 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 of
the
Council (2), aims to remove barriers to trade resulting
from differences between Member States with regard to
legislation on fertilisers. To achieve this, it has already
established, at Community level, requirements that ferti-
lisers must meet if they are to be placed on the market
under the designation ‘EC fertiliser’ (3), such as provi-
sions
regarding designation, definition, composition,
labelling and packaging of the most important straight
and compound fertilisers in the Community.

Annex I to Directive 76/116/EEC defines the designation
of
the type of EC fertiliser and the corresponding
requirements, in particular with respect to its composi-
tion, that every fertiliser marked EC fertiliser must fulfil.
Annex I classes EC fertilisers by category according to

(1) OJ L 24, 30.1.1976, p. 21.
(2) OJ L 18, 23.1.1999, p. 60.
(3) The term ‘EEC fertiliser’ set out

in Directive 76/116/EEC was
replaced by the term ‘EC fertiliser’ by Directive 97/63/EC (OJ L
335, 6.12.1997, p. 15).

(3)

Straight primary nutrient fertilisers include, in particular:

— in the list of nitrogenous fertilisers, ammonium
nitrates, produced chemically, and which include as
an essential component ammonium nitrate with an
N-nutrient content of at least 20 %,

— in the

list of potassium fertilisers, potassium
chloride, which is obtained from crude potassium
salts and which includes as an essential component
potassium chloride with a K-nutrient content, meas-
ured as potassium oxide (K2

O), of at least 37 %.

(4)

As for compound fertilisers with primary nutrients,
which are products obtained chemically or by blending
without addition of organic nutrients of animal or
vegetable origin, they are subdivided into four subcate-
gories according to their composition: NPK, NP, NK and
PK fertilisers. Thus, NPK fertilisers must have
a
minimum total nutrient content of 20 %, with a
minimum content for each of the nutrients of 3 % of
nitrogen, 5 % of phosphorus measured as phosphorus
) and 5 % of potassium measured as
pentoxide (P
5
potassium oxide (K2O), respectively. As for NK fertilisers,
they must have a minimum total nutrient content of
18 %, with a minimum content for each of the nutrients
of 3 % of nitrogen and 5 % of potassium measured as
potassium oxide.

O
2

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Pursuant to Article 2, the designation ‘EC fertiliser’ can
only be used for fertilisers belonging to one of the
fertiliser types listed in Annex I and meeting the require-
ments laid down by Directive 76/116/EEC and Annexes
I to III thereto.

things, the maximum chlorine content, which is set at
0,02 % by weight. Moreover, Member States may require
that such fertilisers be subjected to the test of resistance
to detonation described in Annex II before or after they
are placed on the market.

(5)

(6)

(7)

(8)

(9)

to

prejudice

Article 7 introduces a free movement clause by stating:
‘Without
other
the
Community directives, Member States may not on
labelling or
grounds of composition,
packaging, prohibit, restrict or hinder the marketing of
fertilisers marked “EC fertiliser” which comply with the
provisions of this Directive and the Annexes thereto.’

identification,

provisions

of

the official checks

Lastly, Article 8 concerns
that
Member States may carry out to ensure that fertilisers
placed on the market under the description ‘EC fertiliser’
comply with the provisions of Directive 76/116/EEC
and Annexes I and II thereto.

1.2. Council Directive 80/876/EEC relating to straight
ammonium nitrate fertilisers of high nitrogen content

the Member States

Given the particular nature of
straight ammonium
nitrate fertilisers covered by Directive 76/116/EEC, and
to the resulting requirements regarding public safety,
health, and protection of workers, Council Directive 80/
876/EEC of 15 July 1980 on the approximation of the
laws of
to straight
ammonium nitrate fertilisers of high nitrogen content (4)
laid down additional Community rules for these ferti-
lisers. In the interest of public safety, the characteristics
and properties distinguishing straight ammonium nitrate
fertilisers of high nitrogen content
from varieties of
ammonium nitrate used in the manufacture of products
used as explosives have been determined at Community
level.

relating

Pursuant to its Article 1, Directive 80/876/EEC applies
to straight ammonium nitrate fertilisers of high nitrogen
content placed on the market in the Member States of
the Community, without prejudice to the application of
Directive 76/116/EEC. The
term ‘fertilisers’ means
ammonium nitrate-based products manufactured chemi-
cally for use as fertilisers and containing more than 28 %
by weight of nitrogen, which may contain inorganic
additives or inert substances such as ground limestone
or ground dolomite, calcium sulphate, magnesium
sulphate and kieserite, with it being specified that the
other inorganic additives or inert substances which are
the fertiliser must not
used in the compounding of
increase its
tendency to
detonate.

sensitivity to heat or

its

2. Recasting

the

Community
fertilisers

legislation

on

(11) On 14 September 2001, the Commission adopted a
proposal for a regulation of the European Parliament
and of the Council relating to fertilisers (5), which recasts
Council and Commission Directives on the approx-
imation of the laws of the Member States relating to
fertilisers.

(12)

(13)

(14)

amendments

and adaptations

The aim of this proposal is to simplify the legislation
relating to fertilisers by incorporating in a single text in
the form of a regulation, Directives 76/116/EEC, 80/
876/EEC, 87/94/EEC and 77/535/EEC, together with the
to technical
various
progress of these Directives. All the technical specifica-
tions have been included in the Annexes. Common
provisions have been separated from specific provisions,
the latter being ordered according to the main groups of
fertilisers that are currently included in the legislation.
The technical annexes have been compiled from the
original Directives and rearranged, and some minor
changes have been introduced, though without making
any changes to technical specifications on nutrient
contents.

Title II of the proposal for a regulation, entitled ‘Provi-
sions applicable to specific types of fertilisers’, includes a
Chapter IV on ammonium nitrate fertilisers of high
nitrogen content (6), which is largely based on the provi-
sions of Directive 80/876/EEC, whose
scope was
partially expanded to cover compound ammonium
nitrate fertilisers of high nitrogen content to take into
account the new market situation. Under the old legisla-
tion, compounds would not have been subject to tests of
resistance to detonation, which would have created a
loophole that Member States wanted to avoid for safety
reasons. As a result of this recasting, the test of resis-
tance to detonation can now also be required by
Member States for compound ammonium nitrate ferti-
lisers of high nitrogen content.

For this purpose, section 2 of Annex III to the proposal,
which contains the technical provisions for ammonium
nitrate fertilisers of high nitrogen content, describes the
test of resistance to detonation for ammonium nitrate
fertilisers of high nitrogen content which may be used
for
and
compound, of high nitrogen content. In contrast, section
1 of Annex III, which takes over the rules set out in
Annex I to Directive 80/876/EEC only describes the
characteristics of, and limits for, straight ammonium
nitrate fertilisers of high nitrogen content.

ammonium nitrate

fertilisers,

straight

all

(10) Directive

down

80/876/EEC

straight
lays
ammonium nitrate fertilisers of high nitrogen content
should conform to certain characteristics to ensure that
they are harmless. Annex I specifies the characteristics
and limits for straight ammonium nitrate fertilisers of
high nitrogen content, which include, among other

that

(4) OJ L 250, 23.9.1980, p. 7.

(5) COM(2001) 508 final (OJ C 51 E, 26.2.2002, p. 1).
(6) See Articles 25 to 28 of the proposal for a regulation.

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(15)

(16)

(17)

(18)

(19)

The Member States have already had the opportunity to
examine this proposal, and, on 30 September 2002, the
Council came to unanimous political agreement with a
view to adopting the common position (7). As for the
provisions which apply to ammonium nitrate fertilisers
of high nitrogen content, the amendments put forward
by the Member States were solely concerned with
making the test of resistance to detonation obligatory
for all
fertilisers of high nitrogen content, with the
person placing it on the market responsible for proving
that the fertilisers had successfully passed this test of
resistance to detonation, and adding an additional trace-
ability requirement for which the person placing it on
the market was also to be responsible. On the other
hand, the text of Annex III was not changed.

3. National provisions notified

France has notified new national provisions (8) intended
to prohibit
the importation and placement on the
market of NK fertilisers with a nitrogen content resulting
from ammonium nitrate of over 28 % by weight and
chlorine content over 0,02 % by weight. A decree signed
by the competent ministers is to make it obligatory to
remove these fertilisers from the market, at the expense
and under the responsibility of those who have them in
their possession. The decree is accompanied by a
memorandum concerning how to render such fertilisers
inert.

for

in France,

The notified decree, which bans the import and place-
ment on the market of certain NK fertilisers of high
nitrogen content and containing chlorine, is intended to
suspend,
the
importation, placement on the market either free of
charge or in return for a fee, and the holding for the
purposes of sale or free distribution of NK fertilisers
containing over 28 % by mass of nitrogen from
ammonium nitrate and having a chlorine content of
over 0,02 % (Article 1 of the draft decree).

a one-year period,

In addition to the ban, there will be a requirement for
the person responsible for first placing these fertilisers
on the French market to withdraw them from all places
they are present under their responsibility and at their
expense (Article 2 of the draft decree).

Lastly, the notified decree states that products which
have been withdrawn in this way cannot be placed on
the French market again until they have been recognised
as being in conformity with the legislation in force,
following the addition of an inert charge which makes it

(7) Council Document No 12179/02.
(8) Following the notification, France adopted and published the
planned measures. This measure is the subject of a separate
procedure.

possible to change the NK content (Article 3 of the draft
decree).

(20) Moreover,

in order to implement

the provisions of
Article 3, the regulatory framework will be comple-
mented by a ministerial circular on rendering inert NK
fertilisers with a nitrogen content
resulting from
ammonium nitrate of over 28 % and chlorine content
over 0,02 %. The purpose of the circular will be to
describe the procedures for rendering the fertilisers inert.

4. Justifications put forward by France

(21) Given the potential danger posed by certain fertilisers,
the French authorities consider it necessary to introduce
special provisions for NK fertilisers (nitrogen-potassium)
of high nitrogen content (N) from ammonium nitrate
(NH4NO3) and with a potassium (K) content, measured
O), of 5 %, with potassium in the
as potassium oxide (K2
form of potassium chloride (KCl). These national meas-
ures derogate from the provisions of Directive 76/
116/EEC for NK fertilisers marked ‘EC fertiliser’.

(22)

(23)

(24)

The French authorities have put forward the reasons
which led them to feel the introduction of the said
provisions was desirable, arguing that, with regard to NK
fertilisers, France is certainly in a situation which enables
it to take advantage of the derogation allowed for under
Article 95(5) of the EC Treaty. Their argument can be
summed up as follows.

the

emphasise

To begin,
that,
French authorities
although Directive 76/116/EEC defines EC NK fertilisers,
it does not specify the form under which the potassium
can be included. From this,
there is
nothing to prohibit EC NK fertilisers being manufactured
by mechanically blending a straight ammonium nitrate
even pure
fertiliser of high nitrogen content, or
ammonium nitrate,
i.e. a product with a nitrogen
content resulting from ammonium nitrate of over 28 %,
together with potassium chloride, a potassium salt.

they infer that

The French authorities then point out that, since 1995, a
series of Council regulations (9) has established anti-
dumping duties on imports of straight ammonium
nitrate fertilisers of high nitrogen content originating in
Russia, Ukraine and Poland. The French authorities state
that some producers impacted by this measure came up
with the idea of blending ammonium nitrate fertilisers of
high nitrogen content with potassium chloride in such a
way that the potassium content of the mixture, meas-
ured as potassium oxide, is at least equal to 5 %. As the
French authorities note ‘if the potassium content of the
mixture was less than 5 %, the product could no longer
be considered to be an EC NK fertiliser, but only a
straight ammonium nitrate fertiliser of high nitrogen
content, and would then have to pay anti-dumping
duties’ (10).

(9) The first of these regulations was Regulation (EC) No 2022/95
(OJ L 198, 23.8.1995, p. 1)
imposing anti-dumping duties on
ammonium nitrate originating in Russia. Currently, Regulation
(EC) No 132/2001 (OJ L 23, 25.1.2001, p. 1)
imposing anti-
dumping duties on ammonium nitrate originating in Poland and
Ukraine and Regulation (EC) No 658/2002 (OJ L 102, 18.4.2002,
p. 1) imposing anti-dumping duties on ammonium nitrate origi-
nating in Russia are in force.

(10) See page 2 of the French argument.

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(25) According to the French authorities, these NK fertilisers,
which are in theory mixtures of straight ammonium
nitrate fertilisers of high nitrogen content and potassium
chloride, have two features: firstly, they do not require
payment of anti-dumping duties and, secondly, they are
not subject to the requirements of Directive 80/876/EEC.
The French authorities are of the opinion that, as a
result, there is nothing to prevent replacing this straight
ammonium nitrate fertiliser of high nitrogen content
with a product which does not comply with Directive
80/876/EEC, or even with pure ammonium nitrate, also
known as technical-grade ammonium nitrate, which is
used in the production of industrial explosives.

(26)

specifications

conformity with the

The French authorities examined these fertilisers from
two different perspectives: firstly, their theoretical and
actual
set by
Community legislation, in order to determine whether
these NK fertiliser mixtures can be designated ‘EC fertili-
sers’, and secondly, whether they are dangerous. This
was determined, in particular, through the analysis by
the Directorate-General
consumer
affairs and fraud prevention (DGCCRF) (11) of samples
taken from imported batches.

for Competition,

(27) Given the results of

these analyses (12),

the French
authorities questioned the merits of the designation ‘EC
fertiliser 32-0-5’ used for marketing these products. As
for ‘EC fertiliser 33-0-5’, the designation under which
some of these NK fertilisers arrive, the French authorities
are of the opinion that the actual nitrogen content can
never match the declared content, since the minimum
nitrogen content of these fertilisers should be 35,449 %,
even if a tolerance of ±1,1 % is applied, which, pursuant
to Article 8(3) of Directive 76/116/EEC, cannot be done
systematically. From this, they deduce that these prod-
ucts do not have the claimed nutrient content.

(28) Having made this observation, the French authorities
addressed the problem of the potential danger of these
NK fertilisers in the following words: ‘In addition to the
observed deviations between the stated nutrient content
and the actual content, there is the problem of the

(11) One of

(12) In 2000 and 2001,

the tasks entrusted to this body is to ensure that
products placed on the market comply with the regulations in
force.

large majority of

these 126 samples,

in its Bordeaux laboratory,

the DGCCRF
(the designation
analysed 126 samples of ‘NK fertiliser 32-0-5’
is
these NK fertilisers
under which the
imported). Of
the nitrogen and potassium
content of only three matched that stated by the importer,
within the tolerances set by Directive 76/116/EEC. The average
nitrogen content was 29,94 %, with actual content varying from
24,10 % to 33 %, with a standard deviation of 1,413 %. Average
potassium content was 7,24 %, with actual content varying from
3,3 % to 21,3 %, with a standard deviation of 2,714 %. Lastly,
the potassium content of 13 of the 126 samples was below 5 %,
the minimum required content for compound EC NK fertilisers.

potential danger posed by these products, particularly in
terms of risk to the environment and in the workplace,
issues which are not addressed at all by Directive 76/
116/EEC. Following the catastrophe in Toulouse, and
given the fact that ammonium nitrate is added to potas-
sium chloride, determining whether such products might
issue’ (13).
be dangerous is a real

(29) According to the French authorities, NK fertilisers may
have slight explosive properties similar to those of
certain straight nitrogen fertilisers, although this is only
a risk with fertilisers which have a relatively high
ammonium nitrate content (14). As these NK fertilisers
have a high ammonium nitrate content,
the French
authorities are of the opinion that ‘there is a risk of
explosion which, although low, is definitely real given
that the potassium is present in the form of potassium
chloride’ (15).

(30) On this subject, the French authorities point out that:

— it is well known that chlorine is a sensitising agent
with regard to the decomposition of ammonium
nitrate, which explains the 0,02 % limit by weight on
chlorine content for straight ammonium nitrate ferti-
lisers of high nitrogen content, pursuant to point 5
of Annex I to Directive 80/876/EEC,

— when this question was referred to the Committee
on Explosive Substances (16)
issued a
recommendation (17) ‘designating “NK fertilisers with
an ammonium nitrate content of over 90 %, i.e. a
total nitrogen content of over 28 %, with a high
chloride content in the form of potassium chloride”
as “accidental explosives”’ (18),

in 2001,

it

— these mixtures

and
ammonium nitrate may produce heat, generally
without posing any safety problems (19),

potassium chloride

of

— however, with chlorine acting as a catalyst, a reac-
tion may occur, triggering a self-sustained decompo-
sition which releases toxic smoke and poses a risk
which should not be ignored (20), given the consider-
able amounts of ammonium nitrate in the mixtures.

(13) See page 8 of the French argument.
(14) See Louis Médard, Les explosifs occasionnels,

(translated as Acci-
dental Explosives), Techniques et documentation, 1979, p. 664
(See recital 34 of this Decision).
(15) See page 8 of the French argument.
(16) The Committee on Explosive Substances was created by a 1961
decree and is made up of representatives from the various admi-
nistrative bodies concerned and individuals appointed due to
their competence in the field of explosives. One of its tasks is to
draw up opinions or recommendations on any questions regar-
ding explosive substances which are referred to it by the Mini-
ster for Industry.

(17) The Committee on Explosive Substances'

recommendation is

attached to the French argument.
(18) See page 9 of the French argument.
(19) See Louis Médard, op. cit., p. 665.
(20) See Louis Médard, op. cit., p. 664.

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(31)

(32)

In the opinion of the French authorities, these risks of
explosion and decomposition explain why the precau-
tions taken when transporting NK fertilisers, either by
land or by sea, are stricter than those which apply to the
transport of straight ammonium nitrate fertilisers of
high nitrogen content.

The French authorities point out that, on this subject,
Article 1(3) of Directive 80/876/EEC relating to straight
ammonium nitrate fertilisers of high nitrogen content
states that inorganic additives or inert substances, other
than those mentioned in paragraph 2, which are used in
the compounding of the fertiliser must not increase its
sensitivity to heat or its tendency to detonate. The
French authorities feel that, since potassium chloride
cannot be considered to be an inert substance with
regard to ammonium nitrate, given that mixing
ammonium nitrate and potassium chloride can, under
certain conditions, result
in an exothermic reaction
which may trigger self-sustained decomposition. From
this, the French authorities conclude that ‘although the
products placed on the French market are unquestion-
ably EC fertilisers, at least when they comply with the
regulations, they also have the characteristic of being NK
fertilisers, that is, compound fertilisers, with a nitrogen
content resulting from ammonium nitrate of over 28 %
and a stated chlorine content of 3,78 %’ (21).

approach be

In their opinion,

the nitrogen
The French authorities also note that
content from ammonium nitrate of these NK fertilisers is
significantly higher than that found in NK fertilisers
marketed up to now.
the lack of
knowledge regarding these fertilisers, which did not exist
when Directive 76/116/EEC was adopted, requires that a
prudent
experience
acquired since the mid-1950s, a time since when the
nitrogen content from ammonium nitrate of compound
the
fertilisers has
French authorities are of
‘as the
chlorine content of
fertilisers must be
these straight
lower than 0,02 % by weight, it seems logical that the
same upper limit should be set for the chlorine content
of these NK fertilisers’ (22).

increased considerably. Therefore,

the opinion that

taken given the

(33) Within the framework of

the procedure mentioned
above (23), the French authorities submitted some addi-
tional observations concerning notification under Article
95(5) of the EC Treaty, which the Commission took into
account
in its assessment. The French authorities
consider that Article L.255-1 of the farm laws, intro-
duced by Law 79-595 of 13 July 1979 relating to the
organisation of checks on fertilisers, allows them to
prohibit the placement on the market of NK fertilisers
marked ‘EC fertilisers’. They concede that Directive 76/
116/EEC undeniably includes harmonisation measures
concerning in particular the composition, identification,

(34)

(35)

fertilisers. However,

the
labelling and packaging of
French authorities consider that there are no provisions
in Community legislation as it currently stands regarding
the intrinsic safety of all compound fertilisers marked
‘EC fertiliser’. According to them, certain advertise-
ments (24) make it clear that these NK fertilisers are no
more than ‘high-dosage ammonium nitrate based fertili-
sers’ to which the required minimum amounts of potas-
sium chloride have been added so that they may be
marketed as ‘EC fertilisers’. The French authorities state
that, although the decision to ban these products was
mainly based on safety concerns, the checks carried out
by the authorities (25), which led them to question
whether the ban truly related to EC fertilisers, were also
a factor. The deviations observed between the stated
nutrient content and the actual content caused the
French authorities to conclude that these fertilisers did
not meet the specifications described in Directive 76/
116/EEC. They feel that it is difficult to maintain that the
free movement clause in Article 7 of Directive 76/
116/EEC should apply to these fertilisers simply because
they are designated ‘EC fertilisers’.

t h e
e v i d e n c e
N e w s c i e n t i f i c
p r o t e c t i o n o f t h e e n v i r o n m e n t o r t h e w o r k i n g
e n v i r o n m e n t

c o n c e r n i n g

To support their request, in addition to the arguments
repeated above,
the French authorities provided a
number of documents, more specifically, Chapter 25,
entitled ‘Ammonium Nitrate-based Fertilisers’ of Louis
Médard's Les explosifs occasionnels, Techniques et docu-
mentation, 1979, and the Committee on Explosive
Substances'
recommendation, without providing the
additional scientific information which was the basis of
this recommendation. They also refer to the scenarios
looked at as part of the investigation of the explosion of
the AZF Factory in Toulouse, without providing any
documentation on it. Other than a number of theoretical
the French
calculations included in their argument,
authorities did not provide any other documents or
information concerning the risk posed by these NK ferti-
lisers.

The French authorities note that, as the compound ferti-
lisers placed on the market up to the mid-1950s
contained considerably less nitrogen, particularly in the
form of nitrogen from ammonium nitrate, than those
which have been manufactured since then, self-sustained
decomposition was practically unknown. They point out
that,
from the mid-1950s, an increase in nitrogen
content from ammonium nitrate initially led to spectac-
ular
decomposition of
accidents
compound fertilisers.

caused by

the

(21) See page 14 of the French argument.
(22) See page 14 of the French argument.
(23) See footnote 8 of this Decision.

(24) See recital 41 of this Decision and,
(25) See,

in particular, footnote 32.
in particular, recital 27 of this Decision and footnote 12.

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(36) According to the French authorities, ‘nothing currently
allows us to assert that these new NK fertilisers, which,
first of all, contain over 80 % ammonium nitrate or
ammonium nitrate fertiliser of high nitrogen content,
and, second of all, at least 7,93 % potassium chloride,
will not undergo complex reactions resulting in large-
scale accidents’ (26). They believe that this is even more
likely, given that potassium chloride is not an inert
substance with regard to ammonium nitrate, and that
the analyses of the samples taken from these fertilisers
have shown considerable differences between the stated
nutrient content and the actual content.

(37)

The French authorities also point out that it should not
be forgotten that on 21 September 2001, an explosion
at the Grande Paroisse factory in Toulouse, which manu-
factured technical-grade ammonium nitrate and straight
ammonium nitrate fertilisers of high nitrogen content,
killed 30 people, including 22 employees, and caused
considerable environmental damage.
‘This explosion
occurred in a warehouse where non-compliant products
of high nitrogen content from ammonium nitrate were
mixed. This concerned, firstly, ammonium nitrate which
could not be marketed as straight fertiliser since it did
not meet
the specifications of either Directive 80/
876/EEC or the French standard NF U 42-001, and,
secondly, technical-grade ammonium nitrate that did not
meet the specifications set by the clients’ (27). The French
authorities point out that, not far from the explosion, a
considerable amount of straight ammonium nitrate ferti-
liser of high nitrogen content suffered only material
damage (broken and scattered sacks), while the product
itself remained intact.

(38)

The French authorities state that ‘up to now, the causes
of this explosion are still unknown, and no theories as
to them have yet been definitively ruled out’ (28). They
specify that one of the theories put forward to explain
the catastrophe is that waste containing chlorine was
mistakenly placed in a warehouse used to store
ammonium nitrate. In the opinion of the French author-
ities, ‘it would therefore seem reasonable, as an applica-
tion of the precautionary principle, to take measures to
prevent the placement on the market of NK fertilisers
which are mixtures of
considerable quantities of
ammonium nitrate or ammonium nitrate fertiliser of
high nitrogen content with substances that increase the

(26) See page 15 of the French argument, where, with regard to this
point, the French authorities refer to Louis Médard, op. cit., p.
666.

(27) See page 15 of the French argument.
(28) See page 15 of the French argument.

(39)

(40)

(41)

and tendency to detonate of
sensitivity to heat
ammonium nitrate’ (29). They emphasise that, although it
is measured as potassium oxide, the potassium is present
in the form of a salt, potassium chloride, and that it is
well known that potassium chloride is not inert with
regard to ammonium nitrate.

S p e c i f i c c h a r a c t e r i s t i c s o f

t h e p r o b l e m

The French authorities feel that ‘due to its size, the
French market for straight ammonium nitrate fertilisers
of high nitrogen content differs from the market in the
other Member States of the Community. In fact, the
French market alone accounts for 40 % of the total EU
market for this type of fertiliser. Most of the fertiliser is
imported, and imports from non-EU member countries
account for 23,4 %’ (30).

Thus, over the last several years, the French authorities
have witnessed considerable growth in imports of NK
fertilisers with a stated nitrogen content resulting from
ammonium nitrate of over 28 % and a stated potassium
content, in the form of potassium chloride, and meas-
ured as potassium oxide, equal to 5 %. According to the
figures provided by the French authorities, imports of
these types of products were as follows: in 1997-1998:
0 tonnes; in 1998-1999: 20 000 tonnes; in 1999/2000:
40 000 tonnes; in 2000/2001: 88 000 tonnes; and in
the 2001 calendar year alone, 76 000 tonnes were
unloaded in French ports.

The French authorities then point out that these NK
fertilisers appeared on the French market shortly after
anti-dumping duties on imports of ammonium nitrate
were established (31), for the purpose of avoiding them,
as can be seen from the advertising done by certain
importers of ammonium nitrate-based fertilisers origin-
ating in Russia (32). According to the French authorities,
‘the specialist press (33), which reflects
the market,
considers this product to be more of a variant of a
straight ammonium nitrate fertiliser of high nitrogen
content than a compound NK fertiliser’ (34).

5. General

information on the potential dangers
posed by compound fertilisers of high nitrogen
content (NPK fertilisers)

(42)

The following information is taken from Chapter 25,
‘Ammonium nitrate-based fertilisers’, of Louis Médard's
Les explosifs occasionnels, Techniques et documentation,
1979, which was included with the French authorities'
notification to support their request for a derogation (35).

(29) See pages 15 and 16 of the French argument.
(30) See page 3 of the French argument.
(31) See recital 24 of this Decision.
(32) The French authorities attached a web page of advertising from
WCIB — France Appro Fertiliser and Pesticide World Market
which includes among the items for sale:
‘blend NPK fertilisers
on basis of ammonium-nitrate 34,5 % with add of P or K in
order to not pay anti-dumping duty. Standard formulation 32/
00/05.’

(33) The French authorities refer specifically to the following publica-
tions: “The FMB Fertiliser Europe Report”, 16 February 2000, p.
2; “Fertiliser Europe”, 22 January 2001, p. 2; “FMB Consultants”,
11 January 2002, p. 2.

(34) See page 4 of the French argument.
(35) This book is a summary of work carried out on the subject. It
that, when developing his arguments,
should be pointed out
Louis Médard uses ‘NPK fertilisers’ as a generic term,
it
covers the various types of compound fertilisers, with NK fertili-
sers thus treated as a subcategory of NPK fertilisers.

i.e.

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N a t u r e o f t h e p o t e n t i a l d a n g e r s p o s e d b y N P K
f e r t i l i s e r s

(43) According to Louis Médard, almost all solid NPK ferti-
lisers contain ammonium nitrate and, depending on
their composition and partly on their structure, they
may pose the following dangers:
— fertilisers with a relatively high ammonium nitrate
content may have slight explosive properties similar
to those of certain straight nitrogen fertilisers,
— when heated sufficiently, certain NPK fertilisers may
undergo nitrogen decomposition similar to that in
warm NO
3NH4 solutions. This is an autocatalytic
reaction which, once it has been triggered, will affect
all of the substance present. Chlorides favour decom-
position,

— in many fertilisers which include both ammonium
nitrate and a chloride in their composition, a special
type of deflagration can be triggered if sufficient heat
is applied to one point of the substance. This defla-
gration spreads very slowly from the point where it
was started and is known as ‘self-sustained decompo-
sition’, or alternatively ‘cigar-burning’ of the fertiliser.
The catalytic reaction of the chloride ions in the
fertiliser makes it easy to trigger the decomposition,
— certain fertilisers are liable to heat spontaneously
while being stored, often by approximately 40
degrees from the ordinary temperature, and if the
temperature reached is high enough, it may lead to
the nitrogen decomposition referred to in the second
indent (36).

S p o n t a n e o u s h e a t i n g o f N P K f e r t i l i s e r s

for example,

This phenomenon of spontaneous heating by 20 degrees
to 30 degrees may occur in particular due to the pres-
ence of organic matter,
in phosphate
deposits when the fertilisers are stored in large piles.
This heating of fertilisers which contain organic matter
should not be confused with the very moderate rise in
temperature of approximately 10 degrees which may be
seen with certain compound fertilisers which do not
contain any organic matter. Such slight rises are caused
by the formation of new salts as a result of the redistri-
bution of anions and cations, and do not pose a
danger (37).

C h a r a c t e r i s t i c s
f e r t i l i s e r s

o f

‘ c i g a r - b u r n i n g ’

i n N P K

‘Cigar-burning’ may occur
in NPK fertilisers which
contain both chloride and ammonium nitrate (or salts
which include nitrate ions and ammonium ions, such as
KNO3 and NH4Cl). Moreover,
in most NPK fertilisers,
potassium is present in the form of potassium chloride.
However, a different,
insufficiently purified, potassium
salt obtained from potassium chloride would provide
chloride ions. No more than 0,5 % chloride is needed in
a fertiliser for such decomposition to be possible. If a
large, solid residue (skeleton) can form, this fosters the
propagation of
this reason,
cigar-burning is more likely with fertilisers that contain
calcium phosphate
contain
ammonium phosphate.

the decomposition. For

then with those

that

(44)

(45)

(36) See Louis Médard, op. cit., p. 663 and 664.
(37) See Louis Médard, op. cit., p. 664 and 665.

(46) With fertilisers which form an unconfined mass, at one
atmosphere of pressure, cigar-burning has the following
characteristics, among others:

1.

it is triggered by local heating, following a certain
induction period. The temperature which must be
reached to trigger the cigar-burning depends on the
kind of fertiliser. If the source of heat has a low
temperature (120° to 160°), it will require a consid-
erable length of time, up to a few hours, to trigger
the propagation of the decomposition. As a rule, the
heating must concern a considerable amount of ferti-
liser. If it is restricted to an extremely small area, the
resulting decomposition of the fertiliser will not be
sufficient to propagate itself beyond the heated area;

2. for NPK fertilisers, the speed of the cigar-burning
deflagration can vary from 3 cm/h to 150 cm/h;

3. the temperature profile at

the deflagration front
(which is approximately 1 dm wide)
shows a
preheating zone (often from 2 cm to 3 cm wide)
where the temperature of the substance is raised to
120° to 135°,
followed by a zone where the
temperature increases rapidly (100° or more per
mm), reaching a peak in temperature, beyond which
the temperature gradually drops back;

4. certain trace

elements, particularly copper,

are

remarkable catalysts (38);

5. sulphur contamination in NPK fertilisers has the

effect of facilitating cigar-burning (39).

D e f l a g r a t i o n d a n g e r s p o s e d b y N P K f e r t i l i s e r s

(47)

The speed of unconfined deflagration of NPK fertilisers,
which are susceptible to it,
is still very low (100 to
1 000 times less than common pyrotechnic composi-
tions).
therefore, have any destructive
mechanical effects. The damage caused by cigar-burning
in NPK fertilisers results, above all, from the temperature
reached by the substance, which is high enough to burn

It does not,

subject

(38) With a copper content of only 0,01 % to 0,03 %,

fertilisers
which are not
to cigar-burning without copper can
propagate the deflagration at 6 cm/h to 10 cm/h. A fertiliser
containing 0,3 % copper can reach speeds of 50 cm/h to
100 cm/h. This raises the question of whether it is wise to add
copper to NPK fertilisers, with the exception of
those which
contain practically no chlorine. See Louis Médard, op. cit., p.
669.

(39) See Louis Médard, op. cit., p. 667 to 669.

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wood. The gases produced to do not have any particular
combustive effect and, consequently, cannot increase the
speed of development of fire (40).

to Article 95(6) had begun on 20 June 2002, the day
after the notification was received.

P r e v e n t i n g t h e d e c o m p o s i t i o n o f N P K f e r t i -
l i s e r s

(48) According to Louis Médard, when storing fertilisers, it is
crucial to avoid anything that might trigger decomposi-
tion. He states that studies of accidents (41) have revealed
that the main triggers are: incandescent lamps left on in
contact with the fertiliser; leaving the fertiliser in contact
with a warm object undergoing a repair which involves
the use of a flame, or subsequent to such a repair; using
defective electrical equipment which allows hotspots to
touch the fertiliser; and the presence of pipes containing
hot liquids in the room or the ship's hold where the
fertiliser was brought.

(49)

(50)

(51)

Therefore, during both storage and transport, an effort
should be made to ensure that none of
the above
sources of heat come into contact with the fertiliser, and
also that any substances which might begin a fire be
placed far away from the fertiliser, as the risk is less a
function of the quantity of the combustible material
than of its proximity to the fertiliser. Placing substances
which might react dangerously or substances of which
one is unsure of the composition near the fertiliser must
also be avoided. Lastly, explosives must be strictly
prohibited (42).

II. PROCEDURE

In a letter dated 12 June 2002 and notified to the
Commission on 19 June 2002, the French Permanent
Representation to the European Union informed the
Commission that, in accordance with Article 95(5) of
the EC Treaty, France intended to introduce national
provisions
regarding certain NK fertilisers of high
nitrogen content and containing chlorine beyond those
provided for in Directive 76/116/EEC.

For this purpose, the French authorities notified a draft
decree banning the importation and placement on the
market of certain NK fertilisers of high nitrogen content
and containing chlorine, together with a draft circular
on rendering such fertilisers inert and a document
setting out the arguments in justification of their request
for derogation.

(52)

the Commission
By a letter dated 31 July 2002,
informed the French authorities that it had received the
notification under Article 95(5) of the EC Treaty and
that the six-month period for its examination pursuant

(40) See Louis Médard, op. cit., p. 673.
(41) In his book, Louis Médard describes the first accidents caused by
self-sustained combustion of NPK fertilisers, prior to coming to
the conclusion that these accidents demonstrate that many types
of NPK fertilisers are subject
to easily-triggered ‘cigar-burning’.
See Louis Médard, op. cit., p. 666 and 667.
(42) See Louis Médard, op. cit., p. 674 and 675.

(53)

By a letter dated 2 August 2002,
the Commission
the request
informed the other Member States of
received from the French Republic. The Commission
also published a notice regarding the request in the
Official Journal of the European Communities (43) to inform
the other parties concerned of the draft national meas-
ures that France intended to adopt (44).

III. LEGAL ANALYSIS

1. Consideration of admissibility

(54)

The notification submitted by the French authorities on
19 June 2002 is intended to obtain approval for the
introduction of new national provisions which are
incompatible with Directive 76/116/EEC, a measure
concerning the approximation of the laws, regulations
the Member States,
and administrative provisions of
aiming at
the
internal market.

the establishment and operation of

(55) Article 95(5) 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 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.’

(56) Directive 76/116/EEC covers fertilisers marked ‘EC ferti-
liser’. Certain types of fertilisers, such as organic ferti-
lisers, are still currently subject to national regulations,
rather than Directive 76/116/EEC. This Directive harmo-
nised at Community level the rules on the types of EC
fertilisers listed in its Annex I. Therefore, EC fertilisers
listed in Annex I to Directive 76/116/EEC are governed
solely by the provisions of that Directive, particularly
with regard to designation, definition, composition,
labelling and packaging, and the free movement clause
should therefore apply to them, provided that
they
comply with the requirements of Directive 76/116/EEC.
Only straight ammonium nitrate fertilisers of high
nitrogen content must, if they are to be placed on the
market as fertilisers, also comply with the additional
Community rules laid down in Directive 80/876/EEC.

(43) OJ C 188, 8.8.2002, p. 3.
(44) In the meantime, France had introduced the notified national
measures into its internal law, without waiting for the Commis-
sion to adopt a decision regarding the French request for a dero-
gation. The Commission is examining this situation under a
separate procedure.

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(57) When comparing the provisions of Directive 76/
116/EEC and the national measures notified, it emerges
that the latter are more restrictive than those contained
in the Directive in the following aspects:

1. the importation and placement on the market of NK
fertilisers with a nitrogen content resulting from
ammonium nitrate of over 28 % by weight and a
chlorine content of over 0,02 % will be prohibited;

2. NK fertilisers with a nitrogen content resulting from
ammonium nitrate of over 28 % and a chlorine
content of over 0,02 % will be immediately with-
drawn from the market.

(64)

(58) As required by Article 95(5) of the EC Treaty, France
notified the Commission of the exact wording of the
provisions going beyond those set out in Directive 76/
116/EEC, including with the request an explanation of
the reasons which, in its opinion, justify the introduction
of those provisions.

(59)

The notification submitted by France in order to obtain
approval
for the introduction of national provisions
derogating from the provisions of Directive 76/116/EEC
is therefore to be considered admissible under Article
95(5) of the EC Treaty.

2. Assessment of merits

problem specific to that Member State arising after the
adoption of the harmonisation measure.

the national provisions notified and the
Therefore,
reasons given by the Member State are examined in light
of the Community harmonisation measure from which
they derogate, in this case, the provisions of Directive
76/116/EEC regarding NK fertilisers marked ‘EC fertili-
in so far as the draft decree imposes additional
ser’,
requirements on the placement on the market of EC NK
fertilisers, particularly with regard to their composition,
such as maximum nitrogen and chloride contents.
Directive 76/116/EEC does not itself set any maximum
limit on the nitrogen, potassium and chloride content of
NK fertilisers. Annex I simply specifies, in the latter case,
that the words ‘low in chlorine’ may be used only where
the chlorine content does not exceed 2 %, and that
is permitted.
guaranteeing a certain chlorine content
This clearly indicates that NK fertilisers may have a
chlorine content of over 2 %. As a result, the national
measures notified, which provide for banning NK ferti-
lisers containing over 28 % by mass of nitrogen from
ammonium nitrate and having a chlorine content of
over 0,02 %, go beyond the Community provisions.

(60)

(61)

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

the Treaty,
the

ensure

that

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, that Member
State should base the introduction on:

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

(65)

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

the adoption of

arising after
measure.

(62) Moreover, under Article 95(6) of the EC Treaty, the
the draft
Commission is either to approve or reject
national provisions in question after having verified
whether or not they are a means of arbitrary discrim-
ination or a disguised restriction on trade between
Member States, and whether or not they shall constitute
an obstacle to the functioning of the internal market.

2.1. Evaluation of the position of France

(63)

First of all, the Commission feels it must point out that
the national measures to which Article 95(5) of the EC
Treaty applies are those which introduce additional
requirements on the basis of the protection of the envir-
onment or the working environment, on grounds of a

The initial postulate is therefore that the NK fertilisers
concerned by the draft decree meet the requirements of
Directive 76/116/EEC, given that the designation ‘EC
fertiliser’ can only be used for fertilisers belonging to one
of the fertiliser types listed in Annex I and meeting the
requirements
laid down by the said Directive and
Annexes I to III thereto. Member States may take all
necessary measures to ensure that the designation ‘EC
fertiliser’ can only be used for fertilisers belonging to one
of the fertiliser types listed in Annex I and meeting the
requirements laid down by the Directive. Moreover,
Article 8 of Directive 76/116/EEC specifically provides
for checks by Member States on the compliance of EC
fertilisers with the requirements of the said Directive (45).
The Commission therefore does not deny Member States
the option of taking measures against fertilisers that do
not meet
the requirements of Directive 76/116/EEC.
However, the Commission feels it must be pointed out
that fertilisers with a total nutrient content (N + K
2O) of
over 18 % by weight, as well as a nitrogen content of
over 3 % and a potassium content of over 5 %, pursuant
to Directive 76/116/EEC, fall within the definition of
Community fertilisers designated ‘EC NK fertilisers’. The
free movement clause in Article 7 of Directive 76/
116/EEC should therefore apply to them in so far as
they comply with the requirements of Directive 76/
116/EEC.

(45) See recital 7 of this Decision.

(66)

(67)

(68)

(69)

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It should also be pointed out that, up to now, the
Court's case-law has been consistent in requiring that the
conditions of admissibility for a derogation from the
fundamental rules of Community law must be inter-
preted restrictively. As the provision in question creates
an exception to the principles of uniform application of
Community law and the unity of the market, Article
95(5) of
the EC Treaty must, as with all measures
relating to derogations, be interpreted in such a way that
its scope is not extended beyond the cases for which it
formally provides. As Article 95 is precisely the expres-
sion of such a derogation, it must be interpreted strictly
and only be applied under strict conditions with regard
to all of the justification required.

2.1.1. T h e b u r d e n o f p r o o f

ammonium nitrate-based fertilisers’) and adding potas-
sium chloride, should really be considered straight ferti-
lisers rather than compound EC fertilisers It is true that
Directive 76/116/EEC does not give the form in which
the potassium should be added to NK fertilisers or to
any type of compound fertiliser (49). On the other hand,
it does specify that compound fertilisers are products
obtained chemically or by blending without addition of
organic nutrients of animal or vegetable origin (50).
Directive 76/116/EEC therefore also covers compound
fertilisers produced by blending. Moreover, Louis
Médard specified that compound fertilisers are some-
times produced by blending two or three straight ferti-
lisers (51). The Commission therefore considers that if the
NK fertilisers referred to in the national measures noti-
fied meet the requirements of Directive 76/116/EEC,
they are considered to be compound NK fertilisers, and
fall within the scope of the Community legislation.

the EC Treaty,

It has to be noted that, in the light of the time frame
established by Article 95(6) of
the
Commission, when examining whether
the draft
national measures notified under Article 95(5) are justi-
fied, has to take as a basis ‘the grounds’ put forward by
the Member State. This means that, under the Treaty, the
responsibility of proving that these measures are justified
lies with the Member State making the request. Given
the procedural framework established by Article 95 of
the EC Treaty, including in particular a strict deadline for
a Decision to be adopted, the Commission normally has
to restrict
the
elements which are submitted by the requesting Member
State, without having to seek possible justifications itself.

to examining the relevance of

itself

2.1.2. N e w s c i e n t i f i c e v i d e n c e c o n c e r n i n g t h e
t h e
p r o t e c t i o n o f
w o r k i n g
a
p r o b l e m s p e c i f i c t o F r a n c e a r i s i n g a f t e r
t h e
h a r m o n i s a t i o n
m e a s u r e

t h e e n v i r o n m e n t o r
r e g a r d i n g

e n v i r o n m e n t

a d o p t i o n

t h e

o f

The French authorities believe the explanations they
have provided (46) demonstrate that ‘these fertilisers were
placed on the French market only recently, and as the
French market is unique, this problem is, in fact, specific
to France and arose after the adoption of the harmonisa-
tion measure’ (47).

The French authorities argue that Directive 76/116/EEC
does not specify the form in which the potassium
should be included in NK fertilisers, which makes it
possible to use potassium chloride (48). In addition, they
imply that such NK fertilisers, which are the result of
physically mixing straight ammonium nitrate fertilisers
(also called ‘high-dosage
of high nitrogen content

(46) The explanations of the specific problem which are included in
the French argument are repeated in their entirety in recitals 39
to 41 of this Decision.

(47) See page 14 of the French argument.
(48) See recital 23 of this Decision.

(70)

The French authorities provide data concerning the size
of the French market for straight ammonium nitrate
fertilisers of high nitrogen content and the proportion of
it made up of imports from non-member countries. It
therefore appears that they believe the appearance and
growth in these NK fertilisers is a new problem that is
specific to France. They state that the specialist press
considers these ammonium nitrate NK fertilisers of high
nitrogen content to be more a variant straight ferti-
liser (52) than a compound fertiliser. The Commission
feels that three excerpts taken from journals cannot, on
their own, be considered to be a reflection of
the
market. Moreover, contrary to the French authorities
claim (53), reading these excerpts shows that the special-
ised press does actually distinguish between straight
ammonium nitrate fertilisers (AN) and NK or NPK ferti-
lisers (54). As a result, the characteristics of the French
market for straight ammonium nitrate fertilisers of high
nitrogen content cannot be deemed to show that there is
a unique situation which justifies national derogations
for certain compound fertilisers, unless it is accepted
that the specific problem described is purely economic,
and does not therefore have a direct link with the objec-
tives of protecting the environment or the working
environment.

(49) It should be pointed out here that Directive 76/116/EEC does
not specify the form in which nitrogen or phosphate should be
included in compound fertilisers either.

(50) See recital 4 of this Decision.
(51) See Louis Médard, op. cit., p. 653.
(52) See recital 41 of this Decision.
(53) See recital 41 of this Decision.
(54) Thus, The FMB Fertiliser Europe Report dated 16 February 2000,
p. 2, states that ‘Traders have been importing a fair amount of
blended Russian 32-0-5 but French customs are proving very
tough on controlling the product with anything found to have
O deemed to be AN and therefore subject to
less than 5 % K2
the full anti-dumping duty’. As for Fertiliser Europe dated 22
January 2001, p. 2,
it states that ‘At Muuga, the MV Aleksey
Afanasjev completed loading with 1 604 t AN in big bags and
another 1 403 t of NK 32-0-5 in big bags.’

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(71) Moreover, although it is true that this type of NK ferti-
liser only came on the market recently, following the
adoption of the harmonisation measure, it is not limited
to the French market. And France has not,
in fact,
demonstrated that these fertilisers were solely intended
for the French market. The data provided by the French
authorities do not make it possible to show that there is
a problem specific to France as a result of the placement
on the market of these NK fertilisers. No information
concerning the existence and extent of similar events in
the Member States has been provided. This would be
needed to be able to assess the specific nature of the
situation described by France. If the potential danger
posed by these fertilisers, which was brought up by the
French authorities as a way of justifying their national
measures (55),
is taken into account, one must also
accept that the problem of transporting and storing such
fertilisers is shared by all the Member States and can in
no way be seen as a characteristic specific to France on
which national derogations may be based.

(75)

(76)

(72)

The introduction of national measures that are stricter
than Community standards needs to be justified by new
scientific evidence concerning the protection of
the
environment or the working environment, with the
latter covering only non-economic reasons related to the
safety, health and hygiene of workers.

(73) Whether the scientific evidence is new must be judged in
light of developments
in scientific knowledge. The
purpose of Article 95(5) of the EC Treaty is to make it
possible to use new scientific evidence to solve specific
problems arising in Member States after harmonisation
measures have been adopted.

while taking into account the effects of the Community
measures which have already been adopted.

Taking this into consideration, it seems that the docu-
mentation and arguments put forward by the French
authorities in support of their request for a derogation
can in no way be considered to be new scientific
evidence within the meaning of Article 95(5) of the EC
Treaty.

In light of the above (56), particularly the excerpts from
Louis Médard's work included with the French noti-
fication, it is clear that, although NK fertilisers of high
nitrogen content did only come on the French market
recently, the potential danger of such types of fertiliser
of high nitrogen content, notably their slight explosive
properties and self-sustained decomposition, were none-
known before Directive 76/116/EEC was
theless
adopted,
themselves
concede (57). Furthermore, according to this scientific
literature,
the various types of NPK fertilisers which
contain both chloride and ammonium nitrate, that is,
NK fertilisers and NPK or NP fertilisers, are all subject to
self-sustained decomposition (58). As
for preventive
they have also been highlighted for some
measures,
time, with the crucial point being the avoidance of
anything that might
trigger decomposition (59) when
storing such products.

authorities

French

the

as

the

France,

(77) As for the recommendation of the Committee on Explo-
sive Substances
said
referred to by
Committee looked at the potential danger posed by NK
fertilisers
(nitrogen-potassium) with an ammonium
nitrate content of over 90 %, i.e. a total nitrogen content
of over 31,5 %, with a high chloride content in the form
of potassium chloride, at its meetings of 23 January and
28 March 2001. In its recommendation, this committee
expressed a desire to ‘draw the attention of
the
competent authorities to this type of blend which,
though it cannot be considered to be an explosive as
generally understood, may occasionally have explosive
properties’ (60). Thus, contrary to what
the French
authorities maintain (61), the Committee on Explosive
Substances did not call NK fertilisers with an ammonium
nitrate content of over 90 % ‘accidental explosives’, but
only recognised that they might occasionally have explo-
sive properties. It should be noted that this observation
is not new (62) and that no new scientific evidence has
been provided in support of this conclusion.

(74)

It is therefore up to the Member State which has stated
there is a need for a derogation to provide new scientific
evidence, such as an assessment of the risk for the
environment or the working environment, or scientific
information and studies or other research in progress,

(55) See in particular recitals 4 and 7 of the notified draft decree,

which state:
‘under unsuitable conditions of storage or transport, in particular
those which foster an increase in humidity, chlorine may react
with ammonium nitrate at room temperature to form nitrogen
trichloride compounds with potentially explosive properties;’
‘such fertiliser blends are currently imported and placed on the
market without any particular precautions being taken, particu-
larly with regard to transport and storage.’

in particular, part I, section 5, of this Decision.

(56) See,
(57) See recital 35 of this Decision.
(58) See in particular recital 45 of this Decision. With regard to this,
the products which may react
that
it should be pointed out
spontaneously when blended with ammonium nitrate are nitrites,
in a sufficiently high concentration, or products such as old
wood saturated with ammonium nitrate, or sawdust or metal
shavings
thoroughly mixed with ammonium nitrate. Other
products, such as chloride ions, are merely sensitising agents, i.e.
they lower the decomposition temperature and/or the amount of
energy required to trigger it, but do not trigger the decomposi-
tion themselves. Under no circumstances can these sensitising
agents trigger decomposition.
(59) See recital 48 of this Decision.
(60) See recital 34 of this Decision.
(61) See the second indent of recital 30 of this Decision.
(62) It is already mentioned in Louis Médard's summary, where he
describes the potential dangers of NPK fertilisers. He specifies
that,
‘the fertiliser may have slight explosive properties, similar
to those of certain straight nitrogen fertilisers. This risk is only
present
in fertilisers which have a relatively high ammonium
nitrate content.’ See Louis Médard, op. cit., p. 664.

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(78)

on

extrapolated

conclusions of
Substances. What

The Commission considers that the French authorities
the
have
from the
the
Committee
Explosive
Committee on Explosive Substances in fact
recom-
mended was ‘that very close attention should be paid to
the correct classification of NK fertilisers (nitrogen-
potassium) with an ammonium nitrate content of over
90 %, i.e. a total nitrogen content of over 31,5 %, with a
high chloride content in the form of potassium chloride
with regard to transport, and that the relevant transport
regulations be strictly applied’ (63). It expressed a desire
that ‘before any such product is imported or placed on
the market, the person responsible for importing it or
placing it on the market should be required to have
samples taken from the product analysed so as to ensure
that the product in question complies strictly with the
regulations in force. More specifically, an analysis should
be carried out by a well known laboratory established in
the European Union to guarantee that samples taken
recently from the product successfully passed the test of
resistance to detonation described in Directive 87/
94/EEC of 18 December 1986, as amended by Directive
88/126/EEC of 22 December 1987’ (64). Therefore,
its
recommendations refer only to NK fertilisers where the
the
content
Committee on Explosive Substances
simply recom-
mended that there be a suitable classification of these
fertilisers for transport purposes, and in order to verify
that they comply strictly with the regulations, in partic-
ular by submitting them to the test of resistance to
detonation described in Directive 87/94/EEC. It should
be noted that Directive 76/116/EEC does not require this
test. Up to now, the test of resistance to detonation has
fertilisers of high
only been required for
ammonium nitrate content pursuant to Directive 80/
876/EEC.

is over 31,5 % — not 28 %. Moreover,

straight

(79) Moreover, the new scientific evidence required under
Article 95(5) of the EC Treaty must relate to the protec-
tion of the environment or the working environment.
However, in this case, the French authorities have not
provided any new scientific evidence which specifically
the environment or the
concerns the protection of
working environment. Moreover, examination of
the
recitals of the draft decree (65), which could have speci-
fied the justification for the notified measures, revealed
that nothing was stated with regard to the requirements
of protection of the environment and/or the working
environment. Recitals 4 and 7 (66), in particular, empha-
sise that such fertiliser blends are currently imported and
placed on the market without any particular precautions

It

that

therefore appears

being taken, particularly with regard to transport and
state of affairs presents a clear and
storage. This
immediate danger.
these
concerns are related more to transport and storage of
such fertilisers than they are to protection of the envir-
onment or the working environment. With regard to
this, it should be noted that the French authorities have
not demonstrated that there is a direct link between
transport and storage, on the one hand, and protection
of the environment or the working environment on the
the
other. The Commission therefore considers that
concerns relating to transport and storage of fertilisers
raised by France cannot be specifically regarded as
protection of the environment or the working environ-
ment within the meaning of Article 95(5) of the EC
Treaty.

(80)

(81)

its request

The only scientific evidence presented by France to
support
for derogation, particularly with
is
regard to the potential danger of NK fertilisers,
excerpts from Louis Médard's 1979 book, which is a
summary of work on the subject.

The conclusion can therefore be drawn that the national
measures notified are not justified, as France has not
provided new scientific evidence relating to the protec-
tion of the environment or the working environment
demonstrating the existence of a specific problem arising
after the adoption of Directive 76/116/EEC, as required
by Article 95(5) of the EC Treaty.

(82) As for the arguments drawn from the Toulouse cata-
strophe (67), which, in the view of the French authorities,
the
justifies recourse to the precautionary principle,
‘recourse to the
Commission must point out
that
precautionary principle presupposes
that potentially
dangerous effects deriving from a phenomenon, product
or process have been identified, and that scientific evalu-
ation does not allow the risk to be determined with
certainty’ (68). The precautionary principle
sufficient
places an obligation on Member States to provide new
data which raises serious doubts with regard to health or
in accordance with the
the environment, and which,
common rules on the burden of proof, is serious and
conclusive evidence and, without setting aside scientific
uncertainty, makes it possible to justify taking precau-
tionary measures. Moreover,
from the
Community courts' interpretation of the precautionary
principle (69) that a preventive measure may be taken
only if the risk, although the reality and extent thereof
have not been ‘fully’ demonstrated by conclusive
scientific evidence, appears nevertheless to be adequately
backed up by the scientific data available at the time
when the measure was taken. The grounds for a preven-
tive measure cannot validly be a purely hypothetical
approach to risk, based on mere hypotheses which have
not yet been scientifically confirmed. The precautionary
principle can therefore apply only in situations in which
there is a risk, notably to human health and the environ-
ment, which, although it
founded on mere
hypotheses that have not been scientifically confirmed,
has not yet been fully demonstrated.

follows

is not

it

(63) See recital 34 of this Decision.
(64) See recital 34 of this Decision.
(65) Draft Decree notified to the Commission in accordance with

Article 95(5) of the EC Treaty.

(67) See recitals 37 and 38 of this Decision.
(68) See the Commission communication on recourse to the precau-

tionary principle (COM(2000) 1 final, 2.2.2000).

(66) See recital 71 of this Decision and, more specifically, footnote

(69) See in particular the Court of First Instance's judgments of 11

55.

September 2002 in Cases T-13/99 and T-70/99.

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(83)

To begin with, as the French authorities themselves
recognise (70),
the products involved in the Toulouse
explosion were straight ammonium nitrate fertilisers of
high nitrogen content which did not meet the require-
ments of Directive 80/876/EEC or
technical-grade
ammonium nitrates, whose explosive properties are well
known, and not NK fertilisers which complied with the
requirements of Directive 76/116/EEC. It is therefore not
possible to draw any causal link between the latter EC
fertilisers and this accident. Lastly, the French authorities
state that, up to know, no theories as to the causes of
this explosion have yet been definitively ruled out, as the
causes of the explosion are still unknown (71). Lastly, the
French authorities admit that the theory relating to the
possible role of products containing chlorine in trig-
gering the Toulouse explosion is based on waste
containing chlorine being mistakenly placed in a ware-
house used to store ammonium nitrate, and not on the
presence of chlorine in the form of potassium chloride
in the make-up of the fertilisers (72). The Commission
considers that the allegations being made are too general
and lack substance. They cannot even be considered
scientific. As a result,
it is the Commission's opinion
that, in this case, there is no justification for applying
the precautionary principle.

(84) As a theoretical point, the Commission feels it must
mention that if measures are considered to be required,
measures based on the precautionary principle must be
justified with regard to the level of protection being
sought. The Commission would like to point out that
the legislation on fertilisers is currently under discussion,
as it is being recast (73). This proposal has taken the new
market situation into account, in particular by extending
the requirement for a test of resistance to detonation to
compound ammonium nitrate fertilisers of high nitrogen
content. Taking the above into consideration,
the
Commission therefore feels that only a measure making
the placement of such NK fertilisers on the market
subject to a requirement to submit them to a test of
the French
resistance to detonation could have put
concerns to rest. The national measures notified, which,
in addition to prohibiting the importation and place-
ment on the market of certain NK fertilisers, also lay
down a requirement to withdraw those fertilisers from
the market at the expense and under the responsibility
of those who have them in their possession, seem unjus-
tified, given the potential danger posed by these ferti-
lisers when they comply with Community legislation
and meet the definition of EC fertilisers.

(70) See recital 37 of this Decision.
(71) See recital 38 of this Decision.
(72) See recital 38 of this Decision. Moreover, on this subject, refe-
rence should be made to the ‘Rapport de la commission d'enquête
le 21 septembre 2001 à l'usine
interne
Grande Paroisse de Toulouse - Point de la situation des travaux en
cours à la date du 18 mars 2002’
the internal
committee investigating the explosion which occurred on 21
September 2001 at the Grande Paroisse factory in Toulouse -
Progress Report on work under way on 18 March 2002).

l'explosion survenue

(Report of

sur

(73) See part I, section 2, of this Decision.

2.1.3. S u m m a r y

if national derogations

(85) Article 95(5) of the EC Treaty requires that three condi-
tions must be met
from
Community harmonisation are to be introduced: the
national derogations must be founded on new scientific
evidence in the given sectors, there must be a problem
specific to the State making the request, and the
problem must have arisen after the adoption of the
harmonisation measure.

(86)

In this case, after having examined the scientific aspects
in light of the French request, the Commission considers
that France has not demonstrated, on the basis of new
scientific evidence relating to the protection of the envir-
onment or the working environment, that there is a
specific problem within its
territory which arose
following the adoption of Directive 76/116/EEC relating
to fertilisers, and which makes it necessary to introduce
the notified national measures. Moreover, the Commis-
sion considers that the precautionary principle, invoked
by France, cannot justify the national measures notified
derogating from Directive 76/116/EEC.

(87)

Consequently, the request from France for introducing
national measures aimed at prohibiting the importation
and placement on the market
in France certain NK
fertilisers of high nitrogen content and containing
chlorine does not fulfil all the conditions set out in
Article 95(5).

2.2. Absence of any arbitrary discrimination, any disguised
trade between Member States or any

restriction of
obstacle to the functioning of the internal market

(88) Under Article 95(6) of the EC Treaty, the Commission is
either to approve or reject the draft national provisions
in question after verifying whether or not they are a
means of arbitrary discrimination or a disguised restric-
tion on trade between Member States, and whether or
not they shall constitute an obstacle to the functioning
of the internal market.

(89)

Since the request made by France does not fulfil the
basic conditions set out in Article 95(5)
(see part II,
section 2.1, of this Decision), the Commission is not
obliged to verify whether or not the notified national
provisions are a means of arbitrary discrimination or
disguised restriction on trade between Member States,
and whether or not they constitute an obstacle to the
functioning of the internal market.

IV. CONCLUSION

(90)

In light of the elements which it had available to assess
the merits of
forward for the
the justifications put
national measures notified, and in light of the considera-
tions set out above, the Commission considers that Fran-
ce's request for introducing national provisions derog-
ating from Directive 76/116/EEC with regard to the

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importation and placement on the market of certain NK
fertilisers of high nitrogen content and containing
chlorine, which meet the definition of EC fertilisers and
the requirements of Directive 76/116/EEC, submitted on
19 June 2002:

— is admissible,

— does not fulfil all the conditions set out in Article
95(5) of the EC Treaty, as France did not provide
new scientific evidence relating to the protection of
the environment or the working environment on
grounds of a problem specific to it.

HAS ADOPTED THIS DECISION:

Article 1

The national provisions on limiting the importation and place-
ment on the market of certain NK fertilisers of high nitrogen
content and containing chlorine which meet the definition of
EC fertilisers and the requirements of Directive 76/116/EEC
notified by France pursuant to Article 95(5) of the EC Treaty
are rejected.

This Decision is addressed to the French Republic.

Article 2

(91)

The Commission therefore has grounds to consider that
the national provisions notified cannot be approved in
accordance with Article 95(6) of the Treaty,

For the Commission

Erkki LIIKANEN

Member of the Commission

Done at Brussels, 18 December 2002.