Notification pursuant to Article 114(5) of the TFEU — Request for an authorisation to introduce national legislation being more stringent than provisions of an EU harmonisation measure Text with EEA relevance
Date: 2011-10-21
Institutions: European Commission
Subjects: Sweden, approximation of laws, cadmium, fertiliser, market approval, national law








C_2011309EN.01000801.xml










21.10.2011   


EN


Official Journal of the European Union


C 309/8





Notification pursuant to Article 114(5) of the TFEU — Request for an authorisation to introduce national legislation being more stringent than provisions of an EU harmonisation measure
(Text with EEA relevance)
2011/C 309/07






1.


On 17 May 2011, the Kingdom of Sweden notified a request to introduce national legislation concerning the placing on the market of fertilisers containing cadmium. The Kingdom of Sweden already benefits from a derogation to the provisions of Regulation (EC) No 2003/2003 (1) relating to fertilisers that allows the Swedish authorities to prohibit the marketing of fertilisers containing cadmium at concentrations in excess of 100 grams per tonne of phosphorus. The notification submitted by the Swedish authorities intends to obtain authorisation to introduce national measures that would lower the content of cadmium allowed in phosphorous fertilisers to a maximum level of 46 grams per tonne of phosphorus.










2.


Upon accession to the European Union at the beginning of 1995, the Kingdom of Sweden had legally binding limit values for the concentration of cadmium in mineral fertilisers. Article 112 and point 4 of Annex XII to the Act of Accession of the Kingdom of Sweden provide that Article 7 of Directive 76/116/EEC (2), in so far as it concerns the cadmium content of fertilisers, shall not apply to the Kingdom of Sweden before 1 January 1999. Directive 76/116/EEC was subsequently amended by Directive 98/97/EC (3) regarding the marketing in Austria, Finland and in Sweden of fertilisers containing cadmium, allowing, inter alia, the Kingdom of Sweden to prohibit the marketing on its territory of fertilisers containing 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.










3.


On 7 December 2001, the Kingdom of Sweden 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 fertilisers. After careful consideration, the Commission Decision 2002/399/EC of 24 May 2002 (4) on the national provisions notified by the Kingdom of Sweden under Article 95(4) of the EC Treaty concerning the maximum admissible content of cadmium in fertilisers granted a prolongation of the derogation from Directive 76/116/EEC until 31 December 2005.










4.


On 29 June 2005, the Kingdom of Sweden requested, once again, to maintain the national provisions deviating from the provisions of Regulation (EC) No 2003/2003 on fertilisers. Commission Decision 2006/347/EC (5) of 3 January 2006 allows the Swedish authorities to maintain the national measures until harmonised measures on cadmium in fertilisers are applied at EU level. Although work is in progress, there are delays in the adoption of legislation at EU level.










5.


The national legislation prohibits on the territory of the Kingdom of Sweden the marketing and the transfer of fertilisers covered by customs tariffs numbers 25.10, 28.09, 28.35, 31.03 and 31.05 containing cadmium at concentrations in excess of 100 grams per tonne of phosphorus. Sweden requires to lower those concentrations to a level of 46 grams per tonne of phosphorus (which is equivalent to 20 mg Cd/kg P2O5).










6.


Article 114(5) of the TFEU stipulates that if, after the adoption by the Council or by the Commission of a harmonisation measure, a Member State deems it necessary to introduce national provisions based on new scientific evidence relating to the protection of the environment or the working environment on grounds of a problem specific to that Member State arising after the adoption of the harmonisation measure, it shall notify the Commission of the envisaged provisions as well as the grounds for introducing them.










7.


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.










8.


The Swedish authority justifies its request by referring to a new risk assessment carried out by Sweden. This assessment takes into account the general EU risk assessment of cadmium and cadmium oxide produced in accordance with Council Regulation (EEC) No 793/93 (6) as well as a scientific opinion from the European Food Safety Authority on cadmium in food (7). The Swedish risk assessment is published on the Internet at the following address: http://ec.europa.eu/enterprise/sectors/chemicals/documents/specific-chemicals/fertilisers/cadmium/risk-assessment_en.htm










9.


According to the authorities, the new risk assessment shows the need to reduce exposure to cadmium to protect the health of the Swedish population. The exposure depends on the intake of cadmium via food, mainly from plants, and therefore it is necessary to reduce the risk of high levels of cadmium in crops. Arable soils are in general more acidic in Sweden than in central Europe and this specific situation makes cadmium more readily available for plants.










10.


Lowering the national limit of 100 grams of cadmium per tonne phosphorous to 46 grams of cadmium per tonne phosphorous is a measure to reduce the accumulation of cadmium in soils, its uptake by crops and ultimately the risk of cadmium exposure of humans though the diet.










11.


The Kingdom of Sweden therefore deems it necessary, according to Article 114(5) of the TFEU, to introduce national measures lowering the cadmium content in fertilisers.










12.


The present notification will be assessed in the light of Regulation (EC) No 2003/2003 and in accordance with Article 114(5) of the TFEU. The Commission has six months to approve or reject the notified measures during which it shall check that they do not constitute a mean of arbitrary discrimination or a disguised restriction to trade and that they do not create unnecessary and disproportionate barriers to the functioning of the internal market.










13.


Possible observations on the present notification shall be sent to the Commission within 30 days from the publication of this notice. Any comment submitted after these 30 days may not be taken into consideration.










14.


Further information regarding the Swedish notification can be obtained from:





European Commission




Directorate-General for Enterprise and Industry




DG ENTR G/2 — Chemicals — Classification and Labelling, Specific Products, Competitiveness




Mr Vincent Delvaux




Tel. +32 22958196




Fax +32 22950281




E-mail: Entr-Chemicals@ec.europa.eu










(1)  OJ L 304, 21.11.2003, p. 1.

(2)  Replaced by Article 5 of Regulation (EC) No 2003/2003.

(3)  OJ L 18, 23.1.1999, p. 60.

(4)  OJ L 138, 28.5.2002, p. 24.

(5)  OJ L 129, 17.5.2006, p. 24.

(6)  EU RAR, ECB 2007: European Union Risk Assessment Report on cadmium oxide and cadmium metal, Volume 72, European Commission, Joint Research Centre, Institute for Health and Consumer Protection.

(7)  EFSA 2009: Scientific Opinion of the Panel on Contaminants in the Food Chain on a request from the European Commission on cadmium in food. The EFSA Journal (2009) 980, 1-139.