Commission Directive 2003/2/EC of 6 January 2003 relating to restrictions on the marketing and use of arsenic (tenth adaptation to technical progress to Council Directive 76/769/EEC) (Text with EEA relevance)
Date: 2003-01-06
Institutions: European Commission
Subjects: approximation of laws, dangerous substance, health risk, marketing, occupational safety, semi-metal

9.1.2003

EN

Official Journal of the European Communities

L 4/9

COMMISSION DIRECTIVE 2003/2/EC

of 6 January 2003

relating to restrictions on the marketing and use of arsenic (tenth adaptation to technical progress
to Council Directive 76/769/EEC)

(Text with EEA relevance)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Community,

Having regard to Council Directive 76/769/EEC of 27 July
1976 on the approximation of
the laws, regulations and
the Member States relating to
administrative provisions of
restrictions on the marketing and use of certain dangerous
substances and preparations (1), as last amended by Commis-
sion Directive 2002/62/EC (2) and in particular Article 2(a)
thereof, introduced by Council Directive 89/678/EEC (3),

Whereas:

Council Directive 89/677/EEC (4) amending for
the
eighth time Directive 76/769/EEC places certain restric-
tions on the marketing and use of arsenic.

landfills it would be advisable to exercise caution by
limiting the use of arsenic-based wood preservation to
those situations where it is absolutely necessary.

(5)

In a further consideration of
the health effects of
arsenic (7) the CSTEE has concluded that the substance is
both genotoxic and a well known carcinogen, and that it
may be appropriate to consider that no threshold exists
for carcinogenic effect.

(6) Waste CCA-treated wood has been classified as hazar-
dous waste pursuant
to Commission Decision 2000/
532/EC of 3 May 2000 replacing Decision 94/3/EC
establishing a list of wastes pursuant to Article 1(a) of
Council Directive 75/442/EEC on waste and Council
Decision 94/904/EC establishing a list of hazardous
waste pursuant to Article 1(4) of Council Directive 91/
689/EC on hazardous waste (8) as last amended by
Council Decision 2001/573/EC (9).

A risk assessment and an analysis of advantages and
drawbacks of further restrictions on arsenic in certain
wood preservatives (5) were carried out in the framework
of a review of Community legislation concerning the use
of arsenic compounds for wood preservation following
the accession of Austria, Finland and Sweden to the
European Union in 1995.

(7)

The risk assessment was
referred to the Scientific
Committee on Toxicity, Ecotoxicity and the Environment
(CSTEE) for peer review (6) and the CSTEE concluded
that the main risks had been identified correctly. These
risks included those to human health from the disposal
of wood treated with wood preservatives containing
copper, chrome and arsenic (CCA) and in particular risks
to children's health from the use of CCA-treated wood
in playground equipment. A risk to the aquatic environ-
ment in certain marine waters was also identified.

Directive 98/8/EC of the European Parliament and of the
Council of 16 February 1998 concerning the placing of
biocidal products on the market (10)
lays down provi-
sions for harmonising the authorisation of biocides at
Community level and Commission Regulation (EC) No
1896/2000 of 7 September 2000 on the first phase of
the programme referred to in Article 16(2) of Directive
98/8/EC of the European Parliament and of the Council
on biocidal products (11) requires wood preservatives to
be evaluated as a priority in the review programme
established under Directive 98/8/EC. Arsenic has been
identified and notified as an active substance within the
time limit set out in Regulation (EC) No 1896/2000. A
complete dossier for evaluation of arsenic as an existing
substance will have to be presented by 28 March 2004.

(4)

The CSTEE further advised that in the light of a serious
knowledge gap in relation to arsenic-treated wood in

(1) OJ L 262, 27.9.1976, p. 201.
(2) OJ L 183, 12.7.2002, p. 58.
(3) OJ L 398, 30.12.1989, p. 24.
(4) OJ L 398, 30.12.1989, p. 19.
(5) Assessment of the Risks to Health and to the Environment of
Arsenic in Wood Preservatives and of the Effects of Further Restric-
tions on its marketing and use, 1998.

(6) http://europa.eu.int/comm/food/fs/sc/sct/out18_en.html.

(8) With regard to the risk assessment and taking account
of the precautionary principle, pending harmonisation of
rules under Directive 98/8/EC or a Decision pursuant to
Article 6(3) of Regulation (EC) No 1896/2000,
is
necessary to adapt the restrictions on arsenic in Directive
76/769/EEC to technical progress. This Directive does
not apply to CCA-treated wood already in place.

it

(7) http://europa.eu.int/comm/food/fs/sc/sct/out106_en.html.
(8) OJ L 226, 6.9.2000, p. 3.
(9) OJ L 203, 28.7.2001, p. 18.
(10) OJ L 123, 24.4.1998, p. 1.
(11) OJ L 228, 8.9.2000, p. 6.

(1)

(2)

(3)

L 4/10

EN

Official Journal of the European Communities

9.1.2003

(9)

the protection of workers,

should apply without prejudice

to
This Directive
Community legislation laying down minimum require-
ments for
in particular,
Council Directive 89/391/EEC of 12 June 1989 on the
introduction of measures to encourage improvements in
the safety and health of workers at work (1), Council
Directive 90/394/EEC of 28 June 1990 on the protec-
tion of workers from the risks related to exposure to
carcinogens at work (Sixth individual Directive within
the meaning of Article 16(1) of Directive 89/391/
EEC) (2), as last amended by Directive 1999/38/EC (3)
and Council Directive 98/24/EC of 7 April 1998 on the
protection of workers from chemical agents at work
(14th individual Directive within the meaning of Article
16(1) of Directive 89/391/EEC) (4).

(10)

The measures provided for in this Directive are in accor-
dance with the opinion of the Committee for the adapta-
tion to technical progress of directives on the removal of
technical barriers to trade in dangerous substances and
preparations,

Article 2

Member States shall adopt and publish the provisions necessary
to comply with this Directive by 30 June 2003 at the latest.
They shall forthwith inform the Commission thereof. They shall
apply these provisions by 30 June 2004 at the latest.

When Member States adopt those provisions, they shall contain
a reference to this Directive or be accompanied by such a refer-
ence on the occasion of their official publication. Member
States shall determine how such reference is to be made.

Article 3

This Directive shall enter into force on the 20th day following
that of its publication in the Official Journal of the European
Communities.

This Directive is addressed to the Member States.

Article 4

HAS ADOPTED THIS DIRECTIVE:

Done at Brussels, 6 January 2003.

Article 1

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

For the Commission

Erkki LIIKANEN

Member of the Commission

(1) OJ L 183, 29.6.1989, p. 1.
(2) OJ L 196, 26.7.1990, p. 1.
(3) OJ L 138, 1.6.1999, p. 66.
(4) OJ L 131, 5.5.1998, p. 11.

9.1.2003

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Official Journal of the European Communities

L 4/11

Annex I to Directive 1976/769/EEC, point 20is replaced by the following:

‘20. Arsenic compounds

1. May not be used as substances and constituents of preparations intended for use:

ANNEX

(a) To prevent the fouling by micro-organisms, plants or animals of:

— the hulls of boats,
— cages, floats, nets and any other appliances or equipment used for fish or

shellfish farming,

— any totally or partly submerged appliances or equipment;

(b) in the preservation of wood. Furthermore, wood so treated may not be placed on

the market;

(c) however, by way of derogation:

(i) Relating to the substances and preparations in the preservation of wood:
these may only be used in industrial installations using vacuum or pressure to
impregnate wood if they are solutions of inorganic compounds of the copper,
chromium, arsenic (CCA) type C. Wood so treated may not be placed on the
market before fixation of the preservative is completed.

(ii) Relating to wood treated with CCA solutions in industrial

installations
according to point (i): this may be placed on the market for professional and
industrial use provided that the structural integrity of the wood is required for
human or livestock safety and skin contact by the general public during its
service life is unlikely:
— as structural timber in public and agricultural buildings, office buildings,

and industrial premises,
— in bridges and bridgework,
— as constructional timber in freshwater areas and brackish waters e.g.

jetties and bridges,

— as noise barriers,
— in avalanche control,
— in highway safety fencing and barriers,
— as debarked round conifer livestock fence posts,
— in earth retaining structures,
— as electric power transmission and telecommunications poles,
— as underground railway sleepers.

Without prejudice to the application of other Community provisions on the
classification, packaging and labelling of dangerous substances and prepara-
tions, all treated wood placed on the market shall be individually labelled “For
professional and industrial
installation and use only, contains arsenic”. In
addition, all wood placed on the market in packs shall also bear a label
stating “Wear gloves when handling this wood. Wear a dust mask and eye
protection when cutting or otherwise crafting this wood. Waste from this
wood shall be treated as hazardous by an authorised undertaking”.

(iii) Treated wood referred to under points (i) and (ii) may not be used:
— in residential or domestic constructions, whatever the purpose,
— in any application where there is a risk of repeated skin contact,
— in marine waters,
— for agricultural purposes other than for livestock fence posts and struc-

tural uses in accordance with point (ii),

— in any application where the treated wood may come into contact with
intermediate or finished products intended for human and/or animal
consumption.

2. May not be used as substances and constituents of preparations intended for use in

the treatment of industrial waters,

irrespective of their use.’