Notification according to Article 95(4) of the EC Treaty — Request for an authorisation to extend the application of national legislation derogating from the provisions of a Community Harmonisation Measure Text with EEA relevance
Date: 2005-08-12
Institutions: European Commission
Subjects: Sweden, cadmium, derogation from EU law, fertiliser, market approval

C 197/6

EN

Official Journal of the European Union

12.8.2005

Notification according to Article 95(4) of the EC Treaty

Request for an authorisation to extend the application of national legislation derogating from the
provisions of a Community Harmonisation Measure

(2005/C 197/04)

(Text with EEA relevance)

1. On 29 June 2005 the Kingdom of Sweden notified a
request to extend the application of national
legislation
fertilizers
concerning the placing on the market of
containing cadmium. This legislation was already in force
at the date of accession of the Kingdom of Sweden to the
European Union and deviates from the provisions of Regu-
lation (EC) No 2003/2003 relating to fertilizers (1).

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

2. Upon accession to the European Union at the beginning of
1995, the Kingdom of Sweden had legally binding limit
values for the concentration of cadmium in mineral fertili-
zers and Article 112 and point 4 of Annex XII of the Act
the Kingdom of Sweden provide that
of Accession of
Article 7 of Directive 76/116/EEC (2),
in so far as it
concerns the cadmium content of
fertilizers, shall not
apply to the Kingdom of Sweden before 1 January 1999.
Directive 76/116/EEC was subsequently amended by Direc-
tive 98/97/EC (3)
regarding the marketing in Austria,
Finland and in Sweden of fertilizers containing cadmium,
allowing, inter alia, the Kingdom of Sweden to prohibit the
marketing on its
containing
territory of
cadmium at concentrations in excess of that which was
fixed nationally at the date of accession. This derogation
applied for the period from 1 January 1999 until 31
December 2001.

fertilizers

3. On 7 December 2001 the Kingdom of Sweden notified
existing national legislation, deviating from the provisions
of Directive 76/116/EEC on the approximation of the laws
of the Member States relating to fertilizers. After careful
consideration, the Commission Decision 2002/399/EC of
24 May 2002 (4) on the national provisions notified by the
Kingdom of Sweden under Article 95(4) of the EC Treaty
concerning the maximum admissible content of cadmium
in fertilizers granted a prolongation of the derogation from
Directive 76/116/EEC until 31 December 2005. This
period was granted on the assumption that harmonised
legislation would be in place by end 2005. Although work
is in progress, legislation would not be adopted at Com-
munity level before the end of the year.

4. The national legislation prohibits on the territory of the
Kingdom of Sweden the marketing and the transfer of
fertilizers covered by customs
tariffs numbers 25.10,
28.09, 28.35, 31.03 and 31.05 containing cadmium at
concentrations in excess of 100 grams per tonne of phos-
phorus.

(1) OJ L 304, 21.11.2003, p. 1.
(2) This directive is repealed and its content is integrated into Regu-
lation (EC) No 2003/2003. Article 7 of this Directive corresponds
to Article 5 of Regulation (EC) No 2003/2003.

(3) OJ L 18, 23.1.1999, p. 60.
(4) OJ L 138, 28.5.2002, p. 24.

6. The Commission shall, within six months of the notifica-
tion approve or reject the national provisions involved
after having verified whether or not they are a means of
arbitrary discrimination or a disguised restriction to trade
between Member States and whether or not they shall
constitute an obstacle to the functioning of the internal
market.

7. The Swedish authority justify its request by referring to a
risk assessment carried out by Sweden and other Member
States. The assessments follows an agreed methodology for
risk assessments based on the guidelines concerning risk
assessments on community level according to the Council
Regulation (EC) No 793/93/EEC (5) of 23 March 1993 on
the evaluation and control of
the risks of existing
substance. The Swedish risk assessment is published on the
internet homepage www.forum.europa.eu.int/enterprise.

The Swedish risk assessment shows that if fertilizers with a
higher cadmium content than today would be allowed, this
would lead to a substantial
the cadmium
increase of
concentrations
in soils. These high concentrations of
cadmium in soils would lead to toxic effects on soil organ-
isms. Unacceptable concentrations could also appear in
watercourses in agricultural regions.

Furthermore, the risk assessment shows that if fertilizers
than today would be
with higher cadmium content
allowed this would lead to a substantial
increase in the
dietary intake of cadmium. The safety margin between
today's exposure and the WHO (6) Provisional Tolerable
Weekly Intake level is extremely small. For some high-risk
groups, such as women with low body iron stores, there
are no safety margins at all. A high dietary intake of
cadmium could therefore lead to a larger number of
people who could be affected by reduced kidney functions
and increased osteoporosis.

(5) OJ L 84, 5.4.1993, p. 1.
(6) World Health Organization

12.8.2005

EN

Official Journal of the European Union

C 197/7

8. The Kingdom of Sweden therefore deems it necessary
according to Article 95(4) of the Treaty establishing the
European Community to maintain the national regulations
concerning cadmium in fertilizers from the 1 January
2006 and until
the ad-hoc EU legislation concerning
cadmium in fertilizers enters into force.

9. Possible observations on the notification thus made by the
Kingdom of Sweden submitted to the Commission later
than 30 days from the date of publication of this notice
may not be taken into consideration.

10. Further

information regarding the

request

from the

Kingdom of Sweden can be obtained from:

Mrs Ingrid Svedinger
Jordbruksdepartementet
Ministry of Agriculure, Food and Consumer Affairs
Livsmedels- och djurenheten
Food and Animal Division
S-103 33 Stockholm

Tel. (46-8) 405 10 00
Fax (46-8) 20 64 96
E-mail: ingrid.svedinger@agriculture.ministry.se

Contact point in the European Commission:

European Commission
Directorate-General Enterprise and Industry
Mr Philippe Brunerie
Unit G2 Chemicals
Avenue des Nerviens 105
B-1040 Brussels
Tel. (32-2) 295 21 99
Fax (32-2) 295 02 81
e-mail: Entr-Chemicals@cec.eu.int