Common Position (EC) No 7/2007 of 19 April 2007 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to the adoption of a Directive of the European Parliament and of the Council amending Council Directive 76/769/EEC relating to restrictions on the marketing of certain measuring devices containing mercury (Text with EEA relevance )
Date: 2007-04-19
Institutions: Council of the European Union
Subjects: consumer protection, dangerous substance, environmental protection, marketing restriction, mercury

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III

(Preparatory Acts)

COUNCIL

COMMON POSITION (EC) No 7/2007

adopted by the Council on 19 April 2007

with a view to adopting Directive 2007/…/EC of the European Parliament and of the Council of …
amending Council Directive 76/769/EEC relating to restrictions on the marketing of certain
measuring devices containing mercury

(Text with EEA relevance)

(2007/C 109 E/01)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EURO-
PEAN UNION,

intended for sale to the general public and, in particular,
all fever thermometers.

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 95 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and
Social Committee (1),

Acting in accordance with the procedure
Article 251 of the Treaty (2),

laid down in

Whereas:

(1)

(2)

(3)

The Commission communication of 28 January 2005 on
the Community strategy concerning mercury, which
considered all uses of mercury, concluded that it would
be appropriate to introduce Community-level marketing
restrictions on certain non-electrical or non-electronic
measuring and control equipment containing mercury,
which is the main mercury product group not covered by
Community action so far.

for human health,

There would be benefits for the environment, and in the
long term,
through preventing
mercury from entering the waste stream, if restrictions
on the marketing of measuring devices containing
mercury were introduced.

Taking into account technical and economic feasibility,
the available evidence concerning measuring and control
devices
immediate restrictive measures
should cover only those measuring devices that are

indicates

that

(1) OJ C 318, 23.12.2006, p. 115.
(2) Opinion of the European Parliament of 14 November 2006 (not yet
published in the Official
Journal), Council Common Position of
19 April 2007 and Position of the European Parliament of … (not yet
published in the Official Journal).

(4)

(5)

The import of mercury-containing measuring devices
that are more than fifty years old concerns either
antiques, or cultural goods as defined in Council Regu-
lation (EEC) No 3911/92 of 9 December 1992 on the
export of cultural goods (3). Such trade is limited in
extent and seems to pose no risk to human health or the
environment and should therefore not be restricted.

At present, mercury barometers are manufactured by
only a few small specialist enterprises, and they are sold
to the general public mainly as decorative items. An addi-
tional phasing-out period should be provided for the
placing on the market of such barometers so as to allow
the manufacturers to adapt their business in line with the
restrictions and move over to the production of mercury-
free barometers.

(6) With the aim of minimising the release of mercury into
the environment and in order to ensure the phasing-out
of the remaining measuring devices containing mercury
in professional and industrial use, especially sphygmo-
manometers in healthcare, the Commission should carry
out a review of the availability of reliable safer alterna-
tives that are technically and economically feasible. In the
in healthcare, medical
case of
experts should be consulted to ensure that the needs, in
terms of diagnosis and treatment, of specific medical
conditions are adequately addressed.

sphygmomanometers

(3) OJ L 395, 31.12.1992, p. 1. Regulation as last amended by Regulation

(EC) No 806/2003 (OJ L 122, 16.5.2003, p. 1).

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HAVE ADOPTED THIS DIRECTIVE:

Article 1

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

Article 2

shall

1. Member States
later
than … (*), the laws, regulations and administrative provisions
necessary to comply with this Directive. They shall forthwith
inform the Commission thereof.

and publish, not

adopt

They shall apply these measures from … (**).

When Member States adopt these measures, they shall contain a
reference to this Directive or shall be accompanied by such a
reference on the occasion of
their official publication. The
methods of making such reference shall be laid down by
Member States.

2. Member States shall communicate to the Commission the
text of the main provisions of national law which they adopt in
the field covered by this Directive.

Article 3

This Directive shall enter into force on the day of its publication
in the Official Journal of the European Union.

Article 4

This Directive is addressed to the Member States.

Done at …,

For the European Parliament

The President

…

For the Council

The President

…

(7)

(8)

(9)

(10)

(11)

In accordance with this Directive only the placing on the
market of new measuring devices should be restricted.
This restriction should therefore not apply to devices that
are already in use or sold second hand.

laws or administrative
The disparities between the
measures adopted by Member States as regards restriction
on mercury in various measuring and control devices
could create barriers to trade, distort competition in the
Community and may thereby have a direct impact on the
establishment and functioning of the internal market. It
therefore appears necessary to approximate the laws of
Member States in the field of measuring and control
devices by introducing harmonised provisions with
regard to those products containing mercury, thus preser-
ving the internal market whilst ensuring a high level of
protection for human health and the environment.

Council Directive 76/769/EEC of 27 July 1976 on the
approximation of the laws, regulations and administrative
provisions of the Member States relating to restrictions
certain dangerous
on the marketing and use of
substances and preparations (1)
should be amended
accordingly.

This Directive should apply without prejudice to Com-
munity legislation laying down minimum requirements
for the protection of workers contained in Council Direc-
tive 89/391/EEC of 12 June 1989 on the introduction of
measures to encourage improvements in the safety and
health of workers at work (2) and individual directives
based thereon, in particular Council Directive 98/24/EC
of 7 April 1998 on the protection of the health and
safety of workers from the risks related to chemical
agents at work (3).

In accordance with point 34 of
the Interinstitutional
agreement on better law-making (4), Member States are
encouraged to draw up, for themselves and in the interest
of the Community, their own tables illustrating, as far as
possible, the correlation between this Directive and the
transposition measures, and to make them public,

(1) OJ L 262, 27.9.1976, p. 201. Directive as last amended by Commission

Directive 2006/139/EC (OJ L 384, 29.12.2006, p. 94).

(2) OJ L 183, 29.6.1989, p. 1. Directive as amended by Regulation (EC)
the Council

the European Parliament and of

No 1882/2003 of
(OJ L 284, 31.10.2003, p. 1).

(3) OJ L 131, 5.5.1998, p. 11.
(4) OJ C 321, 31.12.2003, p. 1.

(*) One year after the date of entry into force of this Directive.
(**) Eighteen months after the date of entry into force of this Directive.

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The following point is inserted in Annex I to Directive 76/769/EEC:

ANNEX

‘19a
Mercury
CAS No 7439-97-6

(*) The date of entry into force of this Directive.
(**) Two years after the date of entry into force of this Directive.

1. May not be placed on the market:

(a) in fever thermometers;
(b) in other measuring devices intended for sale to the
general public (e.g. manometers, barometers, sphyg-
momanometers,
than fever
thermometers).

thermometers other

2. The restriction in paragraph (1)(b) shall not apply to:

(a) measuring devices that are more than fifty years old

on … (*); or
(b) barometers
until … (**).

(except barometers within point

(a))

3. By … (**) the Commission shall carry out a review of
the availability of reliable safer alternatives that are tech-
nically and economically feasible for mercury-containing
sphygmomanometers and other measuring devices in
healthcare and in other professional and industrial uses.
On the basis of this review or as soon as new informa-
tion on reliable safer alternatives for sphygmoman-
containing
ometers
and other measuring devices
if
mercury becomes available, the Commission shall,
appropriate, present a legislative proposal to extend the
restrictions in paragraph 1 to sphygmomanometers and
other measuring devices in healthcare, and other profes-
sional and industrial uses, so that mercury in measuring
devices is phased out whenever technically and econom-
ically feasible.’

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 21 February 2006 the Commission presented its proposal (1).

2. The Working Party Technical Harmonisation (Dangerous Substances) has examined at several meet-
ings in 2006 the Commission proposal as well as a number of draft amendments of the European
Parliament to the Commission proposal.

Following informal meetings held between the European Parliament, the Presidency and the Commis-
sion, a draft compromise package was prepared, the content of which was acceptable to both the
Commission and to the European Parliament.

3. On 31 October 2006 the Permanent Representatives Committee approved the draft compromise

package (doc. 14419/06).

4. The European Parliament adopted on 14 November 2006 its Opinion at first reading (2). This
Opinion includes not only the compromise package, but also one amendment granting an unlimited
derogation to barometers manufacturers together with licensing mechanisms to be established by
Member States, and some additional amendments. The text of the legislative resolution, rather than
presenting the amendments one by one, sets out the text of the Commission Proposal, as amended.

5. On 13 December 2006 the Permanent Representatives Committee approved the same text of the
compromise package of 31 October 2006 and agreed to submit it to a forthcoming Council as an
A item after legal/linguistic revision of the text, with a view to a Common Position.

6. The Council adopted its Common Position (3) in accordance with Article 251 of the EC Treaty on

19 April 2007.

II. OBJECTIVES

The aim of the Commission proposal for a Directive is to restrict the placing on the market of measuring
devices containing mercury by amending Directive 76/769/EEC. According to the proposal, metallic
mercury shall not be placed on the market in any fever thermometers (for consumer, professional and
other uses) nor in all other measuring devices intended for sale to the general public (e.g. barometers,
sphygmomanometers and other thermometers than fever thermometers).

A preliminary first reading agreement had been negotiated on the proposal. The Chair of the Permanent
Representatives Committee had confirmed the preliminary agreement to the European Parliament on
behalf of the Council. The European Parliament added, however, some additional amendments to those
that had been negotiated amongst the three Institutions (added a recital on a review to be made,
reworded another recital on placing on the market, expanded the ban on sphygmomanometers (except
strain gauges) for healthcare use, added a mechanism for granting permanent exemption to barometers,
seeking to establish also a special licensing and controlling their placing on the market).

III. COMMON POSITION

The Common Position adopted by the Council reflects partially the Opinion of the European Parliament
at first reading.

It differs mainly from the Opinion as it contains a two-year transition period for barometers, which in
the Opinion may instead be unlimited in time.

The Council does not believe that a permanent derogation for mercury barometers is justified taking
into account inter alia that they contain a significant amount of mercury and that safer alternatives exist.
Also, the Council believes that banning also sphygmomanometers for healthcare use may be premature,
because of the current lack of information on reliable safer mercury-free alternatives. The Common Posi-
tion states therefore that the Commission should carry out a review of the available alternatives.

(1) Doc. 6693/06 ENT 39 ENV 118 CODEC 179.
(2) Doc. 15181/06.
(3) Doc. 5665/07.

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Analysis of the Common Position as set out in doc. 5665/07

New elements contained in the Common Position as compared with the Commission proposal:

Recitals

(3) was slightly reworded.

(4) on the need not to restrict import of antique and/or cultural goods containing mercury is a new
recital.

(5) on the two-year transition period for barometers is a new recital.

(6) on the need to review the availability of reliable safer alternative to sphygmomanometers is a new
recital.

(11) is a new recital. It encourages the Member States to draw up their own correlation tables between
this Directive and the corresponding measures.

Art. 2

The second sentence of Art. 2 par. 1 was deleted and replaced by the new recital (11).

Annex

The Annex introduces two exemptions from the ban: a permanent one for antique (i.e. more than fifty
years old) measuring devices and another one for barometers, until two years after entry into force of
the Directive.

IV. CONCLUSION

The Council considers that its Common Position, which is fully supported by the Commission, is well in
line with the objectives of the proposed Directive. Although it could not include all of the European
Parliament amendments, it contains one additional necessary exemption, provides a transition period
which should allow the SMEs producing barometers to re-convert their production and a review clause
to ensure the phasing-out of the remaining measuring instruments containing mercury, especially sphyg-
momanometers in healthcare, whenever safer alternative solutions become available.