2007/395/EC: Commission Decision of 7 June 2007 concerning national provisions on the use of short-chain chlorinated paraffins notified by the Kingdom of the Netherlands under Article 95(4) of the EC Treaty (notified under document number C(2007) 2361)   (Text with EEA relevance)
Date: 2007-06-07
Institutions: European Commission
Subjects: Netherlands, approximation of laws, dangerous substance, derogation from EU law, environmental protection, paraffin, public health

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COMMISSION DECISION

of 7 June 2007

concerning national provisions on the use of short-chain chlorinated paraffins notified by the
Kingdom of the Netherlands under Article 95(4) of the EC Treaty

(notified under document number C(2007) 2361)

(Only the Dutch text is authentic)

(Text with EEA relevance)

(2007/395/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(…)

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

establishing the European

Whereas:

I. FACTS

(1)

(2)

the Permanent Representation of

By letter of
the
Kingdom of the Netherlands to the European Union of
8 December 2006, the Dutch Government, referring to
Article 95(4) of the Treaty, notified to the Commission
its national provisions on the use of
short-chain
chlorinated paraffins (hereinafter referred to as SCCPs)
that it deems necessary to maintain after the adoption
of Directive 2002/45/EC of the European Parliament and
of the Council of 25 June 2002 amending for the 20th
to
time
restrictions on the marketing and use of
certain
dangerous
(short-chain
chlorinated paraffins) (1).

Council Directive

and preparations

76/769/EEC

substances

relating

The notification of 8 December 2006 is the second noti-
fication of the Kingdom of the Netherlands concerning
derogation from the provisions of Directive 2002/45/EC.
existing national
A first
for maintaining
provisions was
In
Decision 2004/1/EC (2),
the Commission decided that
the Netherlands could maintain partially its national
provisions until 31 December 2006.

submitted on 17 January 2003.

request

1. Article 95(4) and (6) of the Treaty

(3)

Article 95(4) and (6) of the Treaty provides:

‘4.
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
the environment or the
relating to the protection of
it shall notify the Commission
working environment,
of these provisions as well as the grounds for main-
taining them.

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

2. Directive 2002/45/EC and the national provisions

2.1. Directive 2002/45/EC

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
on the marketing
certain dangerous
and use of
substances and preparations (3), as amended, establishes
rules
certain
restricting the marketing and use of
dangerous substances and preparations. According to
Article 1(1),
to the dangerous
substances and preparations listed in Annex I.

the Directive applies

inserted in Annex I

Adopted on the legal basis of Article 95 of the Treaty,
Directive 2002/45/EC has
to
Directive 76/769/EEC a new point 42 concerning
laying down rules
alkanes, C10 to C13, chloro (SCCPs),
on the marketing and use of these substances. According
to point 42.1, SCCPs may not be placed on the market
substances or as constituents of other
for use as
in concentrations higher
substances or preparations
than 1 %:

— in metalworking,

— for fat liquoring of leather.

Point 42.2 provides that before 1 January 2003 all
remaining uses of SCCPs will be reviewed by the
the
European Commission,
in
Member States and the OSPAR Commission,
in the
light of any relevant new scientific data on risks posed
by SCCPs to health and the environment and that the
European Parliament will be informed of the outcome of
this review.

cooperation with

(4)

(5)

(6)

(1) OJ L 177, 6.7.2002, p. 21.
(2) OJ L 1, 3.1.2004, p. 20.

(3) 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).

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Article 2(1) provides that Member States shall apply the
measures transposing the Directive from 6 January 2004
at the latest.

(12)

(7)

(8)

(9)

Registration,

Directive 76/769/EEC will be repealed on 1 June 2009
and replaced by Regulation (EC) No 1907/2006 of the
European Parliament and of the Council (1) concerning
the
and
Evaluation,
Restriction of Chemicals (REACH). The group of SCCPs
substances is listed in Annex XVII of Regulation (EC) No
1907/2006 under point 42 with the restrictions as
provided for under Directive 2002/45/EC.

Authorisation

2.2. National provisions

The national provisions notified by the Netherlands were
introduced by the Decision of 3 November 1999, laying
down rules prohibiting certain uses of
short-chain
(Chlorinated Paraffins Decision,
chlorinated paraffins
Chemicals Substances Act
(Staatsblad van het
Koninkrijk der Nederlanden, Jaargang 1999, 478).

(WMS))

(10) Article 1 provides

that

the Decision applies

to
chlorinated alkanes with a chain of
from 10 to 13
inclusive carbon atoms and a chlorination degree of
than 48 % by weight. Under Article 2(1),
not
SCCPs referred to in Article 1 may not be used:

less

(a) as plasticisers in paints, coatings or sealants;

the

and

(CSTEE),

Environment

Following the outcome of the earlier risk assessment and
its reviews by the Scientific Committee on Toxicity,
Ecotoxicity
the
Commission adopted pursuant to Article 10 of Regu-
lation (EEC) No 793/93, Commission Regulation (EC)
No 642/2005 (3)
imposing testing and information
requirements on the importers or manufacturers of
certain priority substances. This regulation requires the
industry to provide additional
information on environ-
and biodegradation simulation to
mental
determine half-life in the marine environment, which
were deemed necessary in order to allow for a more
reliable assessment of the risks.

exposure

(13)

The relevant industry association (Euro Chlor) submitted
information in 2004 indicating that there had been a
further decrease in the use of SCCPs in all applications
since 2001. The EU consumption in textiles and rubber
had decreased in 2003 to a third of the level in 2001,
with further decreases occurring (particularly in use in
textiles, paints and sealants and adhesives)
in 2004.
The consumption in paints and sealants/adhesives also
decreased by 50 % over the same time period. Some
use in metal working fluids was
still occurring in
2003, but
this use stopped in 2004 following the
entry into force of Directive 2002/45/EC. The overall
amount of short-chain chlorinated paraffins used in all
applications was less than 1 000 tonnes in 2003 and less
than 600 tonnes in 2004 (4). In reaction to Regulation
(EC) No 642/2005, industry performed further analytical
laboratory tests. Preliminary results of this analysis seem
to suggest that SCCPs could meet the criteria of Persistent
Bioaccumulating and Toxic substances (PBT). The final
test
report will be submitted to the UK authorities
acting as rapporteur according to the Regulation (EEC)
No 793/93, as soon as the final results are confirmed by
the laboratory.

(b) in metal-working fluids;

(14)

(c) as flame-retardants in rubber, plastics or textiles.

3. Background information on SCCPs

(11) A detailed description of SCCPs,

the risk assessment carried out

their uses and the
outcome of
in the
framework of Council Regulation (EEC) No 793/93 of
23 March 1993 on the evaluation and control of the
risks of existing substances (2)
is contained in Section
I.4 of Decision 2004/1/EC. This section focuses only
on new information that has become available since
January 2004.

the scenarios,

The United Kingdom, acting as rapporteur for SCCPs,
prepared an update to the SCCPs environmental risk
assessment (hereafter called the updated risk assessment)
in August 2005, which was discussed and agreed at the
third Technical Committee on New and Existing
Substances meeting in 2005 (TCNES III 2005). For
some of
the earlier conclusions were
changed and new risks were identified for applications
textiles,
such as flame-retardant
combined
industrial
for certain
compounding and conversion of
different
the
environmental
refinement of this assessment based on 2004 tonnage
data for SCCPs led to modified conclusions indicating
textile back-coating application and rubber
risk for
compounding/conversion. The
risk
assessment will be published soon by the Commission.
The updated risk assessment will be sent for evaluation
to the Scientific Committee on Health and Environmental
Risks (SCHER) in the second half of 2007, if appropriate.

coatings,
rubber
endpoints. However,

in back-coatings for

use of paints

updated

agreed

and

(1) OJ L 396, 30.12.2006, p. 1.
(2) 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).

(3) OJ L 107, 28.4.2005, p. 14.
(4) Figures from draft revised risk assessment report on SCCPs, August

2005.

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(15)

by

are

the

SCCPs

above,

covered

In addition to the Community measures and actions
described
other
Community legislation. Decision No 2455/2001/EC of
the Council of 20
the European Parliament and of
list of priority
November 2001 establishing
substances in the field of water policy and amending
Directive 2000/60/EC (1)
included SCCPs among the
priority hazardous substances within the meaning of
Article 16(3) of the Water Framework Directive. Under
the Water Framework Directive, the Commission shall
submit proposals of controls
the cessation or
phasing out of discharges, emissions and losses within
20 years after their adoption, and proposals for quality
standards applicable to the concentrations in surface
water, sediment and biota.

for

and

policy,

of water

these substances

(16) On 17 July 2006, the Commission adopted a proposal
for a Directive on environmental quality standards in the
field
amending Directive
2000/60/EC. This proposal maintains the classification
of SCCPs as priority hazardous substances and sets envi-
ronmental quality standards applicable to the concen-
trations of
in surface water. The
proposal does not contain specific control measures for
any priority substance as many environmental protection
measures
existing
Community legislation, and as it seems more cost-
effective
to
include, where necessary and in addition to the imple-
mentation of existing Community legislation, appropriate
control measures in the programme of measures to be
developed for each river basin in accordance with Article
11 of Directive 2000/60/EC.

for Member States

and proportionate

scope of other

fall under

the

(17)

the

Regulation (EC) No 850/2004 of
European
Parliament and of the Council of 29 April 2004 on
persistent organic pollutants and amending Directive
79/117/EEC (2) implements the provisions of two inter-
instruments on persistent organic pollutants
national
(POPs): the Protocol on POPs (3) from 1998 under the
UNECE Convention on Long-Range Transboundary Air
Pollution and the Stockholm Convention on POPs (4).

(1) OJ L 331, 15.12.2001, p. 1.
(2) OJ L 158, 30.4.2004, p. 7, corrected by OJ L 229, 29.6.2004, p. 5.
Regulation as last amended by Commission Regulation (EC) No
323/2007 (OJ L 85, 27.3.2007, p. 3).

(3) The 1979 Convention on Long-range Transboundary Air Pollution
the UNECE region
which addresses environmental problems of
through scientific collaboration and policy negotiation, has been
extended by eight protocols that identify specific measures to be
taken by Parties to cut
their emissions of air pollutants. The
Protocol on Persistent Organic Pollutants (POPs) signed in 1998,
entered into force on 23 October 2003. This protocol was ratified
by the European Community on 30 April 2004.

(4) The Stockholm Convention of 22 May 2001 is a global treaty with
the objective to eliminate or reduce the release of persistent organic
pollutants (POPs) into the environment. It entered into force on 17
May 2004. The European Community ratified this Convention on
16 November 2004.

This Regulation entered into force on 20 May 2004. The
Regulation goes further than the international agreements
emphasising the aim to eliminate the production and use
of the internationally recognised POPs.

(18) Neither Regulation (EC) No 850/2004, nor the two inter-
national Conventions contain specific rules regarding
SCCPs. However, both Conventions contain mechanisms
to propose
inclusion and
substances
procedures for evaluating proposed candidates.

further

for

(19)

that SCCPs be considered POPs
the Protocol and that

The Commission, on behalf of the European Community,
together with the Member States which are Parties to the
POPs Protocol, proposed on 9 September 2005 to
amend the relevant Annex II of the Protocol by adding
SCCPs. During its meeting in September 2006, the Task
Force set up under the Protocol to review proposals for
adding further substances supported the conclusion of
the dossier
in the
the risk profile
context of
provided sufficient information showing that SCCPs had
for Long-Range Transboundary Atmo-
the potential
spheric Transport
(LRAT). The Task Force generally
concluded that the hazard characteristics, together with
the
the monitoring information, were indicative of
potential
for environmental effects due to LRAT. The
information contained in the track B review (risk
management
considered
of
accurate by the Task Force, though supplementary infor-
mation was needed for many aspects of a socioeconomic
evaluation of various
risk management actions. On
December 2006 the Parties to the Protocol took note
of the conclusions proposed by the Task Force on the
the dossier on SCCPs and they
technical content of
agreed that
this substance should be considered as a
POP as defined under the Protocol and requested that
the Task Force continues with the Track B review of
SCCPs and explores a risk management strategy.

SCCP were

options)

(20)

In addition, the European Commission on behalf of the
European Community, together with the Member States
which are Parties to the Stockholm Convention proposed
on 29 June 2006 to amend the relevant Annexes of the
Convention by adding SCCPs. During its second meeting
the POP Review
from 6 to 10 November 2006,
Committee concluded that SCCPs meet
the screening
criteria
listed in Annex D to the Convention as
reported in Decision POPRC-2/8 (5). This Decision also
recommended that a draft risk profile should be prepared
in accordance with Annex E to the Convention.

(5) Available

at:

http://www.pops.int/documents/meetings/poprc_2/

meeting_docs/report/default.htm

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(21)

In case SCCPs will eventually be included in the
Stockholm Convention under one of
relevant
Annexes, the European Commission will propose corre-
sponding measures either under Directive 76/769/EEC or
under Regulation (EC) No 850/2004 that would lead to a
tightening of the existing restrictions.

the

II. PROCEDURE

(22)

The procedural steps linked to the first notification by
the Kingdom of The Netherlands of 17 January 2003, in
accordance with Article 95(4) of the Treaty are described
in Section II of Decision 2004/1/EC.

(23) On 16 December 2003, pursuant

to 95(6),

the
Commission notified the Kingdom of the Netherlands
of its Decision 2004/1/EC of the same date, whereby
the Commission approved the national provisions on
SCCPs notified by the Netherlands on 21 January 2003
in so far as they do not apply to the use of SCCPs as
constituents of other substances and preparations in
concentrations lower than 1 % intended for use as plas-
ticisers
sealants, and flame
coatings, or
retardants in rubbers or textiles. This derogation was
valid until 31 December 2006.

in paints,

in

their

notification,

the Commission
provisions
assumes that the national measures notified are those
notified in January 2003: the Decision of 3 November
1999,
laying down rules prohibiting certain uses of
short-chain chlorinated paraffins.

(28)

(29)

By letters of 15 December 2006 and 20 December 2006,
the Commission informed the Dutch Government that it
had received the notification under Article 95(4) of the
Treaty and that the six-month period for its examination
under Article 95(6) started on 9 December 2006, the day
following the day on which the notification was received.

By letter of 30 January 2007, the Commission informed
the other Member States of the notification received from
the Netherlands. The Commission also published a notice
regarding the notification in the Official
the
European Union (1)
in order to inform other interested
parties of the national provisions that the Netherlands
intends to maintain as well as of the grounds invoked
to that effect. At the end of the commenting period (30
days after publication) no Member State or other stake-
holder had submitted comments.

Journal of

III. ASSESSMENT

1. Consideration of Admissibility

(24) After the adoption of Decision 2004/1/EC authorising
to partially maintain their national
the Netherlands
provisions,
amended the
national measures in order to comply with the provisions
of that Decision.

the Netherlands has not

(30)

(25)

(26)

Instead,
the Netherlands have requested before the
European Court of Justice the annulment of Decision
2004/1/EC on the basis of Article 230 of the Treaty
(reference T-234/04, ex-case C-103/04) and this case is
still pending before the Court of First Instance. In their
request, the Netherlands contest the fact that an autho-
risation is necessary for
the
national measures concerning applications of SCCPs
which are not referred to in Directive 2002/45/EC.

the implementation of

By letter of 8 December 2006 of the Permanent Repre-
sentation of the Kingdom of The Netherlands to the
European Union,
the Dutch Government, referring to
Article 95(4) of the Treaty, notified for the second time
to the Commission its national provisions on the use of
SCCPs that it intends to maintain after the adoption of
Directive 2002/45/EC.

(27)

The notification of 8 December 2006 has the same
object as the notification of 17 January 2003, which is
the approval of
the Chlorinated
the provisions of
Paraffins Decision of the Dangerous Substances Act. As
submitted new national
the Netherlands have not

the
In Recitals 38 and 39 of Decision 2004/1/EC,
the application submitted
Commission concluded that
by the Kingdom of
the Netherlands was admissible.
Reference is made to that Decision for the purposes of
the present Decision. It is nonetheless useful to recall the
aspects in which the notified national provisions are
incompatible with
of Directive
2002/45/EC.

requirements

the

(31)

In summary,
the notified national provisions departs
from the requirements of Directive 2002/45/EC in the
following respects:

— the use of SCCPs with a chlorination degree of not
less than 48 % as plasticising substances in paints,
coatings or sealants and as flame-retardant substances
in rubber, plastics or textiles, which is not subject to
restrictions on marketing and use under the Directive,
is prohibited in the Netherlands,

— the use in metal working fluids of substances and
preparations in which SCCPs with a chlorination
degree of not less than 48 % are present as consti-
to restrictions on
tuents, which is not
marketing and use under the Directive if SCCPs are
present in a concentration below 1 %, is prohibited in
the Netherlands.

subject

(1) OJ C 21, 30.1.2007, p. 5.

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(32)

(33)

(34)

2. Merits

In accordance with Article 95(4) and (6), first subpara-
graph, of the Treaty, the Commission must ascertain that
all the conditions enabling a Member State to maintain
its national provisions derogating from a Community
harmonisation measure provided for in that Article are
fulfilled.

In particular, the Commission has to assess whether or
not the national provisions are justified by the major
needs referred to in Article 30 of the Treaty or relating
to the protection of the environment or the working
environment and do not exceed what is necessary to
In addition,
attain the legitimate objective pursued.
the national
when the Commission considers
that
it must verify,
the above conditions,
provisions fulfil
pursuant to Article 95(6), whether or not the national
provisions are a means of arbitrary discrimination or a
disguised restriction on trade between Member States and
whether or not they constitute an obstacle to the func-
tioning of the internal market.

the EC Treaty,

It has to be noted that, in the light of the time frame
established by Article 95(6) of
the
Commission, when examining whether
the national
measures notified under Article 95(4) are justified, has
to take as a basis ‘the grounds’ put
forward by the
notifying Member State. This means that, according to
the provisions of the EC Treaty, the responsibility of
the national measures are justified lies
proving that
with the requesting Member State which seeks
to
maintain them. Given the procedural framework estab-
lished by Article 95 paragraph 4 and 6 of the EC Treaty,
including in particular a strict deadline for a decision to
be adopted, the Commission normally has to limit itself
to examining the relevance of the elements which are
submitted by the requesting Member State, without
having to seek itself possible reasons of justifications.

(35) However, where the Commission is in the possession of
information in the light of which the Community harmo-
nisation measure from which the notified national
provisions derogate may need to be reviewed,
it can
such information into consideration in the
take
assessment of the notified national provisions.

further information suggesting the legitimate objective
pursued can be attained by less restrictive measures,
in particular, a lower concentration limit for
such as,
and
SCCPs
as
the national
preparations,
provisions do not appear to exceed what is necessary
to attain that objective.

constituents
it was

concluded that

substances

other

of

(37)

Furthermore, Decision 2004/1/EC concluded in Recital
66 concerning the remaining uses of SCCPs as substances
that taking into account the precautionary principle, the
national provisions,
the
in so far as
remaining uses of SCCPs, could remain in place for a
limited period of time in order not to interrupt existing
measures that may appear justified in the light of a forth-
coming risk assessment.

they prohibit

(38) Decision 2004/1/EC concluded in Recital 68 concerning
the prohibition of use of SCCPs as constituents of other
substances and preparations based on the opinion of the
SCTEE of 3 October 2003, that the national provisions
are not
in plastics, where possible
problems might occur.

justified, except

(39)

as

constituents

In summary, Decision 2004/1/EC authorised the national
provisions in so far as they did not apply to the use of
SCCPs
and
of
preparations in concentrations lower than 1 % intended
for use as plasticisers in paints, coatings or sealants, and
flame retardants in rubber or textiles. The Decision was
based on the scientific evidence available at the time and
the precautionary principle.

substances

other

(40)

In their new request, the Netherlands do not submit any
new information compared to the request of 2003.

(41) On the other hand, there have been further developments
that have increased the available
at European level
knowledge base. The results of
the biodegradation
testing required under Regulation (EC) No 642/2005
seem to suggest that the mineralisation rate is slow so
that the persistence criterion of PBT substances will be
met.

(42)

2.1. Justification on grounds of major needs

(36)

The justification of the national provisions on grounds of
major needs have been examined at great
length in
section III.2 of Decision 2004/1/EC. According to the
findings in that Decision (Recitals 55 and 56),
the
national provisions,
in so far as they prohibit the use
of SCCPs as a constituent of other substances and
preparations in metal-working can be justified by the
need to protect the environment. In the absence of any

on

also

based

The updated draft risk assessment presented by the UK
authorities during the TCNES III meeting in 2005
for certain applications new risks were
indicated that
identified
recent
and
consumption data of SCCP. The UK Rapporteur has in
particular identified new risks from the use of SCCPs in
textile back-coating application and rubber compoun-
ding/conversion. The updated risk assessment was
agreed by written procedure and will be published
soon by the Commission. It will be sent to the SCHER
for review, if appropriate.

the most

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(43)

leather,

additional

liquoring of

the new risks

identified require

risk
If
management measures for some uses of SCCPs other
than metal working and fat
the
Commission will adopt other risk reduction measures
in addition to those already adopted in Directive
2002/45/EC. The precise scope of any such further
restrictions
the
ongoing evaluations of the Community notifications of
SCCPs as candidates under the UNECE POPs Protocol
and the Stockholm Convention on POPs, respectively,
and the possible inclusion of the substances into one
or both international agreements might lead to further
restrictions in the framework of Regulation (EC) No
850/2004.

Furthermore,

currently

unclear.

is

to trade,

in the Member State

in so far as
normally constitute a barrier
products that are legally placed on the market and
used in the rest of the Community are not expected, as
a result of the prohibition on use, to be placed on the
concerned. The pre-
market
conditions laid down in paragraph 6 of Article 95 are
intended to prevent restrictions based on the criteria set
out in paragraphs 4 and 5 thereof from being applied for
and
inappropriate
effect
in
importation of
to impede
economic measures
products from other Member States, that is to say, a
means of indirectly protecting national production.

constituting
the

reasons,

(44)

In any case, it is possible that such further restrictions
currently still
would concern applications
allowed under Community legislation but are already
prohibited under the Dutch national legislation.

that are

(45)

In these circumstances and taking into account
the
precautionary principle, the national provisions applied
by Netherlands can be considered justified in their
such time that Community measures,
entirety until
taking full account of the latest scientific data, will be
adopted under Directive 76/769/EEC, or under Regu-
lation (EC) No 850/2004.

(49) As previously established, the true aim of the national
provisions is the protection of the environment from the
risks associated with the uses of SCCPs. In the absence of
any evidence suggesting that
the national provisions
constitute in effect a measure intended to protect
it can be concluded that they are
national production,
not a disguised restriction to trade between Member
States.

2.2.3. A b s e n c e o f o b s t a c l e s

t o t h e f u n c -

t i o n i n g o f

t h e i n t e r n a l m a r k e t

2.2. Absence of arbitrary discrimination or of any disguised
restriction on trade between Member States and of any
obstacle to the functioning of the internal market

(50)

2.2.1. A b s e n c e

o f

a r b i t r a r y

d i s c r i m i -

n a t i o n

(46) Article 95(6) obliges the Commission to verify that the
envisaged measures are not a means of arbitrary discri-
mination. According to the jurisprudence of the Court of
Justice, in order for there to be no discrimination, similar
situations must not be treated in different ways and
different situations must not be treated in the same way.

(47)

The national provisions are general and apply to the uses
of SCCPs regardless of whether the substances are manu-
factured in the Netherlands or are imported from other
Member States. In the absence of any evidence to the
contrary, it can be concluded that the national provisions
are not a means of arbitrary discrimination.

(51)

2.2.2. A b s e n c e o f a d i s g u i s e d r e s t r i c t i o n

o n t r a d e

(48) National measures which restrict the use of products to a
than a Community Directive would

greater

extent

This condition cannot be interpreted in such a way that
it precludes the approval of any national measure likely
to affect the establishment of the internal market. Indeed,
any national measure derogating from a harmonisation
measure aiming at the establishment and operation of
the internal market constitutes in substance a measure
in
likely to affect
order to preserve the useful character of the procedure
laid down in Article 95 of the Treaty, the concept of
obstacle to the functioning of the internal market must,
in the context of Article 95(6), be understood as a
in relation to the pursued
disproportionate
objective.

the internal market. Consequently,

effect

It has been established that the national provisions can
be temporarily maintained on grounds relating to the
protection of the environment and that, on the basis of
the available information, they appear to constitute the
only available measure to ensure the maintenance of the
high level of protection pursued by the Netherlands. The
Commission therefore considers that, pending the identi-
fication of appropriate risk reduction measures,
it can
conclude that the condition relating to the absence of
obstacles to the functioning of the internal market is
fulfilled.

9.6.2007

EN

Official Journal of the European Union

L 148/23

IV. CONCLUSION

(52) As reported in Section I.3 of the present Decision, a
number of initiatives were taken at Community level to
gather the information necessary to remove or to reduce
surrounding the risk evaluation of
the uncertainties
the time when Decision 2004/1/EC was
SCCPs at
adopted. The results of
the updated risk assessment
indicate that additional risks exist which will probably
to be
require adequate
adopted by the Commission.

risk management measures

(53) Under both the Stockholm Convention and the UNECE
Protocol on Persistent Organic Pollutants (POPs) a review
of SCCPs is ongoing, which may lead to their inclusion
into these international instruments. This would trigger
Community measures in the framework of Regulation
(EC) No 850/2004.

(54) As such new measures to be adopted at Community level
might well concern uses of SCCPs that are currently still
allowed under Directive 76/769/EEC, but are already
legislation and
prohibited under
the Dutch national
it can
taking into account the precautionary principle,
the national provisions can be
be concluded that
temporarily maintained on grounds
relating to the
protection of the environment and do not exceed what
is necessary to attain the objective pursued in so far as
they prohibit the use of SCCPs as constituents of other
substances and preparations in metal working fluids, as
flame retardants in rubber, plastics and textile, as plasti-
cisers in paints, coatings and sealants. Derogation should
therefore be granted for the national provisions in their
entirety.

(55)

In addition, the national provisions, in so far as they can
be temporarily maintained, are not a means of arbitrary
discrimination or a disguised restriction on trade between

Member States and do not constitute an obstacle to the
functioning of the internal market.

(56)

specified above,

extent
the Commission considers

The Commission therefore considers that the national
can be
to the
provisions,
approved. However,
that
their
expire when Community
has
approval
measures concerning SCCPs will be adopted either
under the frame of Directive 76/769/EEC or under Regu-
lation (EC) No 850/2004 which ever is the most appro-
priate instrument,

to

HAS ADOPTED THIS DECISION:

Article 1

The national provisions on SCCPs notified by the Netherlands
on 8 December 2006 pursuant to Article 95(4) are approved.

Article 2

This Decision is addressed to the Kingdom of the Netherlands
and shall expire on the earlier of the following two dates:

— entry into force of a Commission Directive adapting
Annex I of Council Directive 76/769/EEC as regards SCCPs,

— entry into force of a Regulation amending Regulation (EC)

No 850/2004 concerning SCCPs.

Done at Brussels, 7 June 2007.

For the Commission

Günter VERHEUGEN
Vice-President