2006/349/EC: Commission Decision of  3 January 2006  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 fertilisers  (notified under document number C(2005) 5549)   (Text with EEA relevance)
Date: 2006-01-03
Institutions: European Commission
Subjects: Austria, cadmium, derogation from EU law, fertiliser, marketing, plant health legislation

17.5.2006

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Official Journal of the European Union

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COMMISSION DECISION

of 3 January 2006

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 fertilisers

(notified under document number C(2005) 5549)

(Only the German text is authentic)

(Text with EEA relevance)

(2006/349/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(5)

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

establishing the European

Directive 76/116/EEC, as amended, has been replaced by
Regulation (EC) No 2003/2003 of
the European
Parliament and of
the Council of 13 October 2003
relating to fertilisers (3).

I. FACTS

1. Community legislation

Council Directive 76/116/EEC of 18 December 1975 on
the approximation of the laws of the Member States
relating to fertilisers (1),
laid down the requirements
that fertilisers must fulfil in order to be placed on the
market with the designation ‘EC fertilisers’.

to its composition,

Annex I to Directive 76/116/EEC set out the type desig-
nation and the corresponding requirements, e.g. with
respect
that each EC-designated
fertiliser must fulfil. EC-designated fertilisers included in
this list are grouped into categories, depending on the
content of
the elements
the primary nutrients,
nitrogen, phosphorus and potassium.

i.e.

(6)

(7)

Article 35(2), of Regulation (EC) No 2003/2003 states
that derogations from Article 7 of Directive 76/116/EEC
that were granted by the Commission under Article 95(6)
of the Treaty shall be construed as derogations from
Article 5 of the present Regulation and shall continue
to produce their effects notwithstanding the entry into
force of this Regulation.

Recital 15 of Regulation (EC) No 2003/2003 announces
that the Commission will address the issue of uninten-
tional cadmium content in mineral fertilisers and will,
where appropriate, draw up a proposal for a Regulation
and will present it to the European Parliament and the
Council.

(8) Work is in progress to prepare a Commission proposal

on cadmium in fertilisers.

According to Article 7 of Directive 76/116/EEC, Member
States were not permitted on grounds of composition,
identification, labelling or packaging, to prohibit, restrict
or hinder the marketing of fertilisers marked ‘EC fertiliser’
which comply with the provisions of this Directive.

(9)

Commission Decision 2002/366/EC of 15 May 2002 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 ferti-
lisers (2), granted a derogation to Directive 76/116/EEC,
by approving the Austrian provisions which prohibit the
placing on the Austrian market of phosphorous mineral
fertilisers (containing 5 % P2O5 or more) with a cadmium
content exceeding 75 mg/kg P2O5. This derogation was
applicable until 31 December 2005.

2. The accession of Austria

shall,

the use

concerning

Austria acceded to the European Union on 1 January
1995. The Act of Accession (4)
lays down transitional
and marketing of
provisions
cadmium in that State. Article 69(1) provides
that
during a period of
from the date of
four years
accession, the provisions referred to in Annex VIII of
the Act
in accordance with that Annex and
subject to the conditions set out therein, not apply to
Austria. Article 69 of and point 4 of Annex VIII the Act
that Article 7 of Directive
of Accession provide
76/116/EEC,
in so far as it concerns the cadmium
content of fertilisers, shall not apply to Austria before
the provisions of Directive
1 January 1999 and that
76/116/EEC will be
reviewed in accordance with
Community procedures by 31 December 1998.

(1) OJ L 24, 30.1.1976, p. 21. Directive as last amended by the 2003

Act of Accession.

(2) OJ L 132, 17.5.2002, p. 65.

(3) OJ L 304, 21.11.2003, p. 1. Regulation as last amended by
L 359,

(EC) No 2076/2004 (OJ

Commission Regulation
4.12.2004, p. 25).

(4) OJ C 241, 29.8.1994, p. 35 and p. 305.

Whereas:

(1)

(2)

(3)

(4)

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(10) Article 2 of the Act of Accession provides that ‘from the
date of accession, the provisions of the original Treaties
and the Acts adopted by the institutions before accession
shall be binding on the new Member States and shall
apply in those States under the conditions laid down
in those Treaties and in this Act’. Article 168 of the
‘the new Member
Act of Accession stipulates
States shall put into effect the measures necessary for
them to comply, from the date of accession, with the
provisions of directives and decisions within the meaning
of Article 189 (now Article 249) of the EC Treaty (…),
unless a time limit is provided for in the list of Annex
XIX or in any other provisions of this Act’.

that

(11) Directive 98/97/EC of

regards

the Council (5),

the European Parliament and
subsequently amended Directive
of
the marketing in Austria,
76/116/EEC as
Finland and Sweden of fertilisers containing cadmium.
inter alia, Austria may prohibit
Article 1 provides that,
fertilisers containing
the marketing on its territory of
that which
cadmium at concentrations in excess of
were fixed nationally at the date of accession and that
this derogation applies for the period from 1 January
1999 until 31 December 2001.

national

(12) On 16 November 2001, the Republic of Austria notified
existing
from the
legislation,
provisions of Directive 76/116/EEC on the approxi-
mation of the laws of the Member States relating to
fertilisers.
Decision
2002/366/EC granted a prolongation of the derogation
from Directive 76/116/EEC until 31 December 2005.

consideration,

deviating

careful

After

3. National provisions

(13) Austria’s 2004 Ordinance on Fertilisers (6), inter alia, lays
down a limit value for the cadmium content in fertilisers,
including EC-designated fertilisers. According to Article
is
in conjunction with Annex 2, section 2,
2(4),
prohibited to place on the Austrian market phosphorus
mineral fertilisers (containing 5 % P2O5 or more) with a
cadmium content exceeding 75 mg/kg P2O5.

it

lation (EC) No 2003/2003. The provisions on Cadmium
in fertilisers have not been modified.

II. PROCEDURE

the Republic of Austria
By letter of 14 June 2005,
in accordance with
notified the Commission that,
it intends to continue
Article 95(4) of the EC Treaty,
from 1 January 2006, national provisions
to apply,
concerning the cadmium content
in fertilisers. The
Austrian authorities request an extension of the current
derogation provided by Decision 2002/366/EC.

By letter of 30 June 2005, the Commission informed the
Austrian authorities that it had received the notification
under Article 95(4) and that the six months period for its
examination according to Article 95(6) started on 15
June 2005, the day following the one when the notifi-
cation was received.

By letter of 10 August 2005, the Commission informed
the other Member States about the request received from
Austria. The Commission also published a notice
regarding the request
the
European Union (8)
in order to inform other interested
parties of the national measures that Austria intends to
maintain.

in the Official

Journal of

(15)

(16)

(17)

III. ASSESSMENT

1. Consideration of admissibility

(18) Article 95(4) of the Treaty provides that,

if, after the
adoption by the Council or by the Commission of a
it
harmonisation measure,
necessary to maintain national provisions on grounds
of major needs referred to in Article 30, or relating to
the protection of the environment or the working envir-
onment,
these
provisions as well as the grounds for maintaining them.

shall notify the Commission of

a Member State deems

it

(14)

The provisions relating to the maximum permissible
cadmium content in fertilisers have been in force since
1985, when a limit value of 120 mg/kg P2O5 was estab-
level of 75 mg/kg P2O5 was
lished. The
introduced by Austria’s 1994 Ordinance on Fertilisers (7),
which has been subsequently repealed by the Ordinance
on Fertilisers from 2004 to adapt the legislation to Regu-

current

(5) OJ L 18, 23.1.1999, p. 60.
(6) Federal Law Gazette for the Republic of Austria, No 100/2004,

Series II, of 27 February 2004.

(7) Federal Law Gazette for the Republic of Austria, No 1007/1994,

Series Issue 309 of 21 December 1994, p. 7235.

(19)

The notification submitted by the Austrian authorities on
7 June 2005 intends to obtain authorisation to extend,
beyond 31 December 2005,
the current derogation
provided in Decision 2002/366/EC. This Decision
allows Austria to maintain the application of national
provisions
concerning the
composition of EC-denominated fertilisers contained in
Regulation (EC) No 2003/2003.

incompatible with those

(8) OJ C 197, 12.8.2005, p. 2.

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(20) As already indicated, Article 5 of Regulation (EC) No
2003/2003 prevents Member States from restricting the
marketing of EC-denominated fertilisers because of their
composition, but the rules governing composition do not
set any limit value for cadmium content. This means that
pursuant to Article 5 of Regulation (EC) No 2003/2003,
EC-denominated
the
requirements of that Regulation can be placed on the
market regardless of their cadmium content.

complying

fertilisers

with

(21)

(22)

In the light of the abovementioned, it is clear that the
national provisions notified by Austria, in so far as they
prohibit the placing on the market of EC-denominated
phosphorus mineral fertilisers with a cadmium content
exceeding 75 mg/kg P2O5, are more restrictive than those
contained in Regulation (EC) No 2003/2003.

indicated above,

The national provisions notified by the Austrian autho-
rities were adopted before Austria acceded to the
European Union. As
the Act of
Accession lays down transitional provisions allowing
Austria to continue to apply its national provisions
to
concerning
products covered by Directive 76/116/EEC for a period
of
four years. By Directive 98/97/EC Austria was
authorised to continue to apply the above national
2001. Decision
31 December
provisions
2002/366/EC extended the derogation until December
2005.

cadmium content of

fertilisers

until

the

(23) As required by Article 95(4), as interpreted in the light of
Articles 2 and 168 of the Act of Accession, Austria
notified the Commission of the actual wording of the
national provisions adopted before the accession to the
European Union that
intends to maintain, accom-
panying the request by an explanation of the reasons
which,
justify the maintenance of those
provisions.

in its opinion,

it

(24)

The reasons provided by the Austrian authorities are
those already submitted in the past and that lead the
Commission, in Decision 2002/366/EC, to grant a dero-
gation 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 Community level
before the end of the year.

(25)

The notification submitted by Austria on 14 June 2005,
in order to obtain approval
for maintaining national
provisions derogating from the provisions of Regulation

therefore to be considered
(EC) No 2003/2003,
admissible under Article 95(4) as interpreted in the
light of Articles 2 and 168 of the Act of Accession.

is

2. Assessment of merits

(26)

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

the Treaty,

(27)

(28)

In particular, the Commission has to assess whether the
provisions notified by the Member State are justified on
grounds of major needs referred to in Article 30 of the
Treaty, or relating to the protection of the environment
or the working environment.

that

to Article 95(6) of

the Treaty,
In addition, pursuant
the national provisions are
where it considers
justified, the Commission must check whether or not
those national provisions are a means of arbitrary discri-
mination or a disguised restriction on trade between
Member States and whether or not they constitute an
obstacle to the functioning of the internal market.

(29) Austria has based its request on the need of protection of
human health and the environment. Cadmium in ferti-
lisers is deemed to pose a threat to the environment and
human health. In support of its request, Austria makes
reference to the conclusions of an Austrian study
published in October 2000 (9) which contains
an
assessment of the risks posed by cadmium-containing
fertilisers.

2.1. Justification on grounds of major needs

(30) As regards the general

information on cadmium, from
the scientific data available up to now,
it can be
concluded that cadmium metal and cadmium oxide in
general can be considered to pose serious risks to health.
In particular, cadmium oxide has been classified as a
carcinogen, mutagen or substance toxic for reproduction,
category 2. It is also generally agreed that cadmium in
fertilisers
source of
the most
cadmium input to soil and to the food chain.

is by far

important

(9) Austrian Federal Environment Agency,

for
cadmium in Austria based on the recommendations of ERM’, 10
October 2000 (ERM — Environmental Resources Management —
is the consultant who developed the methodology for the risk
assessment).

‘A Risk assessment

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(31) As regards cadmium in fertilisers,

the most relevant
the risk assessment carried out by

information of
Austria can be summarised as follows:

— concerning water,

‘when
fertiliser is applied with an average concentration of
25 mg Cd/kg P2O5 the PNEC (10) value is exceeded
both now and in 100 years’,

report

states

that

the

— concerning the soil,

the report states that

‘when
fertiliser is applied with an average concentration of
25 mg Cd/kg P2O5 or of 90 mg Cd/kg P2O5, the
PNEC value is exceeded both now and in 100 years’.

(32)

It is clear that these conclusions refer to the specific
situation of
the Austrian soil as well as the climatic
conditions prevailing in Austria.

In conclusion, the risk assessment carried out by Austria
shows that PEC value (predicted environmental concen-
tration) from cadmium in mineral fertilisers in Austria,
exceeds the PNEC value (11) (predicted no effect concen-
tration) for water in most investigated regions. This also
applies to soil in 5 % of the 52 Austrian arable regions if
bio-available values are used. In the view of the Austrian
authorities, this means that, according to the European
Community risk assessment methodology, the substance
is of concern and there is a need to take further steps.

(37)

The validity of the data provided by Austria is confirmed
by the following scientific basis used to support
the
preparation of the Commission proposal on cadmium
in fertilisers:

— the opinion delivered on 24 September 2002 by the
SCTEE (12)
(now renamed SCHER (13)) concerning
cadmium accumulation in agricultural soils due to
fertiliser application. This opinion was based on risk
assessment reports of nine Member States which
address only the accumulation and not the possible
risks to health and environment; the conclusion of
the SCTEE was that the content of cadmium in ferti-
lisers does need to be limited to prevent accumu-
lation of cadmium in the soil,

— the final draft of

the general risk assessment of
cadmium and cadmium oxide, dated September
2004 produced in accordance with Council Regu-
lation (EEC) No 793/93 (14) and which considers all
sources of cadmium. The draft endorses the opinion
of the SCTEE concerning the accumulation in soil.
Although it
contribution from
cadmium in fertilisers may not, by itself, be sufficient
to cause a severe and immediate risk to human health
or to the environment, caution is needed, as the risk
to human health cannot be excluded for all local and
regional situations because of the large variability in
food cadmium concentrations, dietary habits and
nutritional status.

states

that

the

The risk assessment submitted by the Austrian authorities
has been carried out according to the procedures and the
methodology established at Community level, which are
considered to ensure a high degree of reliability of the
information obtained.

Pending finalisation of the general risk assessment on
cadmium and cadmium oxide as well as the potential
follow-up work on risk
the
Commission proposal on cadmium in fertilisers has
been subject to some delays.

reduction measures,

The Commission already examined the information
in the context of
contained in the risk assessment
Decision 2002/366/EC which allowed Austria
to
maintain their national provisions until 31 December
2005.

(38)

(36) No other scientific and technical data was provided by
Austria in 2005. The accumulation process is a slow one
which is not significantly modified on a three year
period. Therefore,
the
situation is similar as in 2002.

it could be considered that

(10) PNEC = Predicted No Effect Concentration.
(11) This indicates that there will be adverse effects.

the

after having

re-examined
the Austrian request,

scientific
Therefore,
the
evidence in the light of
Commission considers
the Austrian authorities
that
have shown that cadmium-containing fertilisers pose
the
environmental and human health risks, and that
national provisions notified by the Austrian authorities
aiming to limit to the minimum the exposure of the
Austrian environment to cadmium-containing fertilisers
are justified.

(12) Scientific Committee on Toxicity, Ecotoxicity and the Environment.
(13) Scientific Committee on Health and Environmental Risks.
(14) OJ L 84, 5.4.1993, p. 1. Regulation as amended by Regulation (EC)
No 1882/2003 of the European Parliament and of the Council
(OJ L 284, 31.10.2003, p. 1).

(33)

(34)

(35)

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2.2. Absence of arbitrary discrimination

(39) Article 95(6) obliges the Commission to verify that the
envisaged measures are not a means of arbitrary discri-
mination. According to the ruling of the Court of Justice,
that national
the absence of discrimination means
restrictions on trade cannot be used in such a way as
to create discrimination in respect of goods originating in
other Member States.

of the internal market has to be understood as a dispro-
portionate effect in relation to the pursued objective.

(44)

In view of the risks for both the environment and human
health resulting from the application of cadmium-
containing fertilisers to the Austrian soil and taking
into account that:

(40)

The envisaged national provisions are general and apply
and imported phosphorous based EC-
to national
designated fertilisers alike. As a result,
there is no
evidence that they can be used as a means of arbitrary
discrimination between economic operators
in the
Community.

2.3. Absence of a disguised restriction on trade

(41) More restrictive national measures governing the compo-
sition of EC-designated fertilisers that derogate from the
provisions of a Community Directive normally constitute
a barrier to trade. Products that can be legally placed on
the market in the rest of the Community cannot be
placed on the market in the Member State concerned.
The concept enshrined in Article 95(6)
is intended to
prevent the national provisions based on the criteria set
out
in paragraphs 4 and 5 being applied for inap-
propriate reasons, and in reality constituting economic
measures to be introduced to impede the import of
products from other Member States in order to indirectly
protect national production.

(42) As already established, there is concern with regard to
the protection of the environment and human health due
to the application on soil of cadmium-containing ferti-
lisers. Therefore, the protection of the environment and
human health appears to be the goal of maintaining the
national provisions and not
the creation of disguised
barriers to trade.

(43)

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

This condition cannot be interpreted in such a way that
it prohibits the approval of any national measure likely
to affect the establishment of the internal market. In fact,
any national measure derogating from a harmonisation
measure aiming at the establishment and operation of
the internal market, constitutes in substance a measure
that is likely to affect the internal market. Consequently,
to preserve the useful character of the procedure for
derogation provided for by Article 95 of the EC Treaty,
the Commission considers that,
in the context of the
Article 95(6), the concept of obstacle to the functioning

(45)

— as

national

indicated above,

the Act of Accession and
Directive 98/97/EC allowed Austria to continue to
the
apply
its
cadmium content
the
completion of the review of Directive 76/116/EEC
as regards the issue of the cadmium content in ferti-
lisers, and

concerning
awaiting

provisions

fertilisers

in

— Decision 2002/366/EC allowed Austria to maintain
its national provisions until 31 December 2005
based on the risk assessment provided by the
Austrian authorities, and

restrictive measure would provide

— ongoing work within the Commission for an appro-
ximation of Community limit values for the cadmium
content in fertilisers does not lead to believe that a
sufficient
less
protection of health and environment
in Austria.
The risk assessment shows that the specific soil and
require national
climatic
the environment
provision for
because
to
vulnerable
cadmium inputs due in particular to the acidic pH
of their soil. Under acidic conditions, the solubility of
cadmium increases and therefore could be more
easily taken up by the crops.

condition of Austria
the protection of

are more

some

areas

The Commission considers that, at
the
review, there is no evidence indicating that the national
provisions do constitute a disproportionate obstacle to
the functioning of
in relation to
the pursued objectives.

the internal market

this stage of

2.5. Limitation of time

concerning

The period for which the derogation is granted should
allow sufficient time for the Commission to propose, and
for the Council and the European Parliament to adopt
at
legislation
Community level. In order to avoid the implications of
possible delays during the interinstitutional debate, the
provisions of the current Decision should therefore be
valid until the harmonised measure is applicable at EU
level.

cadmium in

fertilisers

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IV. CONCLUSION

HAS ADOPTED THIS DECISION:

(46)

In the light of the foregoing, it can be concluded that the
request by the Republic of Austria for maintaining
national provisions that are more restrictive than the
provisions of Directive 76/116/EEC with regard to the
cadmium content of fertilisers, as submitted on 14 June
2005, is admissible.

(47) Moreover,
provisions:

the Commission finds

that

the national

— meet needs on grounds of the protection of human

health and the environment,

Article 1

the
In derogation from Regulation (EC) No 2003/2003,
Austrian provisions which prohibit
the placing on the
Austrian market of phosphorous mineral fertilisers (containing
5 % P2O5 or more) with a cadmium content exceeding
75 mg/kg P2O5 are approved.

The derogation shall apply until harmonised measures on
cadmium in fertilisers are applicable at Community level.

— are proportionate to the objectives pursued,

This Decision is addressed to the Republic of Austria.

Article 2

— are not a means of arbitrary discrimination, and

— do not constitute a disguised restriction on trade

between Member States.

The Commission therefore considers that they can be
approved,

Done at Brussels, 3 January 2006.

For the Commission

Günter VERHEUGEN
Vice-President