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: Austria, cadmium, derogation from EU law, fertiliser, market approval

C 197/2

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 197/02)

(Text with EEA relevance)

1. On 14 June 2005 the Republic of Austria 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 Republic of Austria 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 Republic of Austria had legally binding limit
values for the concentration of cadmium in mineral fertili-
zers and Article 69 and point 4 of Annex VIII of the 1994
Act of Accession of the Republic of Austria provide that
Article 7 of Directive 76/116/EEC (2),
in so far as it
fertilizers, shall not
concerns the cadmium content of
apply to the Republic of Austria 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 Republic of Austria 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 16 November 2001 the Republic of Austria 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 2002/366/EC of
15 May 2002 (4) on the national provisions notified by the
Republic of Austria 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
Republic of Austria the marketing of phosphorous mineral
fertilizers containing 5 % P2O5 or more and containing
cadmium at concentrations in excess of 75 mg/kg P2O5.

(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 132, 17.5.2002, p. 65.

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 Austrian authority justify its request by referring to:

— the conclusion of the risk assessment report named ‘A
Risk assessment for cadmium in Austria based on the
recommendations of ERM (5)’ in which, on the basis of
the available data, the PEC value (Predicted Environ-
mental Concentration) from cadmium in mineral fertili-
zers in Austria, exceeds the PNEC value (Predicted No
Effect Concentration) for water in most investigated
regions. This also applies to 5 % of
the 52 arable
Austrian regions if bioavailable values are used. In the
view of
this means that,
according to the EU risk assessment methodology, the
substance is of concern and the obligation exists to
take further steps.

the Austrian authorities,

— Regulation (EC) No 466/2001 (6) that states in its 19th
recital that ‘cadmium may accumulate in the human
body and may induce kidney dysfunction, skeletal
damage, and reproductive deficiencies. Moreover,
it
cannot be excluded that it acts as a human carcinogen.
The SCF (7),
in its opinion of 2 June 1995, recom-
mended greater efforts to reduce dietary exposure to
cadmium since foodstuffs are the main source of
human intake of cadmium. Therefore maximum levels
should be set as low as reasonably achievable.’

(5) ERM is a consultant which had worked on behalf of the Commis-

sion.

(6) OJ L 77, 16.3.2001, p. 1.
(7) Scientific Committee for Food.

12.8.2005

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Official Journal of the European Union

C 197/3

— Regulation (EC) No 466/2001 which states explicitly in
its 3rd recital that also agricultural measures will be
required in order to prevent health impacts of certain
contaminants such as cadmium. ‘It is essential, in order
to protect public health, to keep contaminants at levels
which are toxicologically acceptable. The presence of
contaminants must be reduced more thoroughly wher-
ever possible by means of good manufacturing and
agricultural practices, in order to achieve a higher level
of health protection, especially for sensitive groups of
the population.’

— Directive 2002/32/EC (1) on undesirable substances in
animal feed which lays down a maximum level for
cadmium in feedingstuffs.

8. The Republic of Austria 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 1 January 2006
and until the ad-hoc EU legislation concerning cadmium in
fertilizers enters into force. According to Austria,
this
national Regulation is
justified by important grounds
within the meaning of Article 30 of the Treaty establishing
the European Community and in relation to environmental
protection.

9. Possible observations on the notification thus made by the
Republic of Austria 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

Republic of Austria can be obtained from:

Mr Reinhard Blauensteiner
Bundesministerium für Land und Forstwirtschaft, Umwelt
und Wasserwirtschaft
Sektion I Recht
Stubenring 1
A-1012 Wien
Tel. (43-1) 71 10 00
Fax (43-1) 711 00 65 03
e-mail: Reinhard.Blauensteiner@lebensministerium.at

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

(1) OJ L 140, 30.5.2002, p. 10.