Notification according to Article 95(4) of the EC Treaty — Request for an authorisation to maintain national legislation derogating from the provisions of a Community Harmonisation Measure   (Text with EEA relevance)
Date: 2006-02-04
Institutions: European Commission
Subjects: Czechia, EC conformity marking, cadmium, derogation from EU law, environmental protection, fertiliser, marketing

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Official Journal of the European Union

4.2.2006

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

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

(2006/C 29/04)

(Text with EEA relevance)

1.
On 5 December 2005 the Czech Republic notified a request to maintain the application of national
legislation concerning the placing on the market of fertilizers containing cadmium. This legislation was in
force before the date of accession of the Czech Republic to the European Union and deviates from the
provisions of Regulation (EC) No 2003/2003 relating to fertilizers (1).

2.
Upon accession to the European Union in May 2004, the Czech Republic had legally binding limit
values for the concentration of cadmium in mineral fertilizers. However, no request to maintain the
national measures was made at that time and, therefore, no derogation was granted in the Accession
Treaty.

The national legislation (2) prohibits on the territory of the Czech Republic the marketing of phos-

3.
phorous mineral fertilizers containing cadmium at concentrations in excess of 50 mg/kg P2O5.

According to Article 7 of Directive 76/116/EEC, as replaced by Article 5 of Regulation (EC) No
4.
2003/2003 relating to fertilisers, Member States are not permitted on grounds of composition, identifica-
tion, labelling or packaging, prohibit, restrict or hinder the marketing of fertilisers marked ‘EC fertilisers’
which comply with the provisions of this legislation. The Czech national limit on cadmium in fertilisers
would be therefore in contradiction with the free circulation of ‘EC type’ fertilisers regulated by the above-
mentioned legislation.

5.
Czech Decree 209/2005, in force since 1 June 2005, suspends the application of the existing national
legislation to ‘EC type’ fertilisers and restricts the application of the limit on cadmium to national fertilisers.

Through the current notification, the Czech authorities request the Commission an authorisation to

6.
apply the existing limit on cadmium content also to ‘EC type’ fertilisers.

7.
Article 95(4) stipulates that if, after the adoption by the Council or by the Commission of a harmoni-
sation 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 environment or the working environ-
ment, it shall notify the Commission of these provisions as well as the grounds for maintaining them.

8.
The Commission shall, within six months of the notification 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.

The Czech authority justifies its request by referring to the conclusion of the risk assessment report
9.
named ‘Study to assess risks to the environment and health resulting from the use of phosphate fertilisers
containing cadmium’, based on the methodology of ERM (3). According to this study, on the basis of the
available data, the PEC value (Predicted Environmental Concentration) from cadmium in mineral fertilizers
in the Czech republic, reaches 0,93 of the PNEC value (Predicted No Effect Concentration) for a fertiliser
with a cadmium content of 50 mg Cd/kg P2O5 (the national limit predating accession to the EU). A risk to
the environment would exist if that value exceeded 50mg. Moreover, an upper limit of 50 mg Cd/kg P2O5
is needed to prevent accumulation of cadmium in soil to a level which would pose a risk to the environ-
ment and to human health via the food-chain.

(1) OJ L 304, 21.11.2003, p. 1.
(2) Decree No 474/2000 setting down requirements for fertilisers.
(3) ERM is a consultant which defined a methodology for cadmium risk assessments on behalf of the Commission.

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Official Journal of the European Union

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10.
The Czech Republic therefore deems it necessary according to Article 95(4) of the Treaty estab-
lishing the European Community to maintain the national regulations concerning cadmium in fertilizers
until EU legislation concerning cadmium in fertilizers is adopted. According to the Czech Republic, this
national Regulation is justified by important grounds within the meaning of Article 30 of the Treaty estab-
lishing the European Community and in relation to environmental protection.

11.
Possible observations on the notification thus made by the Czech Republic submitted to the
Commission later than thirty days from the date of publication of this notice may not be taken into consid-
eration.

The full text of the risk assessment on cadmium in fertilisers in the Czech Republic is available at

12.
the Commission web-site at the following address:

http://europa.eu.int/comm/enterprise/chemicals/legislation/fertilizers/cadmium/reports_en.htm

13.

Further information regarding the request from the Czech Republic can be obtained from:

Ing. Michaela Budňáková
Department of plant commodities
Ministry of Agriculture
Těšnov 17
CZ-117 05 Prague 1
Tel.: (420) 221 812 071
Fax: (420) 221 812 951
e-mail: Michaela.budnakova@mze.cz

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