CELEX: 51989PC0548
Language: en
Date: 1989-11-10
Title: PROPOSAL FOR A COUNCIL DIRECTIVE AMENDING FOR THE TENTH TIME DIRECTIVE 76/769/EEC ON THE APPROXIMATION OF THE LAWS, REGULATIONS AND ADMINISTRATIVE PROVISIONS OF THE MEMBER STATES RELATING TO RESTRICTIONS ON THE MARKETING AND USE OF CERTAIN DANGEROUS SUBSTANCES AND PREPARATIONS

COMMISSION OF THE EUROPEAN COMMUNITIES
                                           C0M(89) 548 final - SYN 224
                                           Brussels/!!} November 1989
                                  Proposal for a
                                COUNCIL DIRECTIVE
     amending for the tenth time Directive 76/769/EEC on the approximation
  of the laws, regulations and administrative provisions of the Member States
             relating to   restrictions on the marketing and use of
                 certain dangerous substances and preparations
                         (presented by the Commission)
 ---pagebreak---                           Explanatory «eooraudui
1.  Kim of the Directive
    This is the restriction of the marketing and use of certain dangerous
    substances and preparations.
    It will contribute to:
    - improved protection of man and of environment,
    - improved functioning of the internal market through the imposition
       of  the same  restrictions  throughout  this area without  internal
       frontiers.
?. Factors taken into consideration
   The following factors were taken into consideration when the proposal for
   a Directive was being drawn up:
   - cadmium pollution poses a complex and difficult problem since it is a
      "multimedia" form of pollution, affecting all environmental sectors.
      Cadmium may be emitted into the environment at numerous points in the
      production, manufacturing, use and waste disposal processes.
      Some twenty legal acts concerning cadmium have been published in the
      Official Journal: clear evidence of the importance attached to it;
    - in April 1987 the Commission presented to the Council an action
      programme on environmental pollution by cadmium. In response to that
      Communication, on 25 January 1908 the Council adopted Resolution
      88/C 30/01 on a Community action programme to combat environmental
      pollution by cadmium. The Resolution stresses the major elements of the
      strategy for cadmium control in the interests of the protection of
      health and the environment. These elements concern the limitation of
      the uses of cadmium to cases where suitable alternatives do not exist,
      stimulation of research and development, collection and recycling of
      products containing cadmium, for example batteries, and development of
      a strategy designed to reduce cadmium input in soil;
    - measures to restrict the use of cadmium taken individually by the
      Member States. These may constitute barriers to trade and have a direct
      effect on the establishment and operation of the internal market;
    - scientific and technical data on the existence of substitutes less
      hazardous both for man and the environment.
 ---pagebreak--- 3. Comments on the proposed restrictions
   Cadmium and its compounds are substances that are dangerous for man and
   the environment; it is therefore necessary to regulate their marketing.
   This proposal for a Directive falls within the context of Council
   Directive 76/769/EEC. The following principles were incorporated in the
   drafting:
  - the ban on the use of cadmium affects three areas of application -
    pigments, stabilizers and plating - but the purpose of the ban differs
     in each case.
     In the case of pigments, polymers (basic products) are covered. The
    Directive contains a list of polymers which may no longer be coloured
     by pigments containing cadmium.
     In the case of stabilizers, products or articles are covered.
     In the case of cadmium-plating. sectors or applications are covered.
     By a process of elimination, any substance not included in the lists is
     permitted;
   - the date for putting the Directive into effect may vary according to
     product. Some manufacturers need time to adapt their production to
     these conditions;
   - in certain circumstances, notably for reasons of safety and
     reliability, it may be essential to use cadmium. A general derogation
     clause is provided for that reason;
   -the Directive is not applicable in certain cases, notably where other
     directives contain further special provisions;
   - implementation of the Combined Nomenclature (Council Regulation (EEC)
      No 2658/87 of 23 July 1987, as amended, on the tariff and statistical
      nomenclature and on the Common Customs Tariff: OJ L 256, 7.9.1987).
                                                                             •"S
 ---pagebreak---    It has emerged in many cases from discussions with national experts that
   the definition of the products or applications covered by the Directive
   poses a very thorny problem. To overcome that it is proposed to include
   with the products or applications, where possible, the corresponding CN
   code number.
    The CN code numbers corresponding to the proposed definition are
    therefore indicated in brackets after each product or application.The CN
    subheadings are Community subdivisions to the harmonized system
    nomenclature. The first six digits of the code numbers relate to the
    harmonized system nomenclature, while the next two digits identify the CN
    subheadings required.
    With a view to establishing an operative system, a recital concerning
    technical and technological progress in relation to substitutes for
    cadmium and its compounds has been included in the proposal. This
    reference to progress, which meshes with the context of Council
    Resolution 88/C 30/01, is set out in Article 2 of the proposal.
A.  Conformity with the Treaty
    As is clear from section 3 above, this proposal is intended to afford
    a high Level of protection for both persons and the environment and
    is therefore in conformity with Article 100A (3) of the Treaty.
    The proposal does not call for any special provisions of the kind
    referred to in Article 8c of the Treaty.
5.  Consultation of the sector concerned
    The proposal for a Directive was drawn up in consultation with a
    group   of  national  experts   on  public  health  and  environmental
    protection as well    as  representatives of   the various   sectors of
     industry concerned.
6.   Consultation of the European Parliament and the Economic and Social
     Committee
     In compliance with Article    100A of   the Treaty,   the cooperation
    procedure with the European Parliament is applicable.      The Economic
     and Social Committee has  to be consulted.
                                                                              u
 ---pagebreak---                               Proposal for a
                            COUNCIL DIRECTIVE
amending for the tenth time Directive 76/769/EEC on the approximation of
the laws,   regulations and administrative provisions of the Member States
relating to   restrictions on the marketing   and use of certain  dangerous
substances and preparations.
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Havind regard to the Treaty establishing the European Economic Community,
and in particular Article 100a thereof,
                                                   1
Having regard to the proposal from the Commission,
In cooperation with the European Parliament,
Having regard to the opinion of the Economic and Social Committee,
1
  0J No
2
  OJ No
3
  OJ No
                                                                            S
 ---pagebreak---                                             - 2 -
Whereas measures should be adopted for the progressive establishment of the
 internal market by 31 December 1992; whereas the internal market is an area
 without       internal    frontiers     in   which    the  free   circulation  of   goods,
 persons, services and capital is guaranteed;
                                                     4
 Whereas t h e Council Resolution of 25 January 1988" invites the   Commission  to pursue
 without delay .the development of specific measures for a Community action
 programme     to combat     environmental      pollution   by   cadmium;   whereas human
 health also has to be protected and an overall strategy that in particular
 restricts     the use of      cadmium    and    stimulates   research   into  substitutes
 should therefore be implemented;
 Whereas the restrictions on the use of cadmium and its compounds laid down
 by this Directive take          into account      the current state of knowledge and
 techniques regarding substitutes; whereas it would be advisable to reassess
 the situation in the light of the development of knowledge and techniques;
 Whereas restrictions already adopted by certain Member States on use and
 marketing of the above mentioned substances or preparations containing them
 have a direct effect on the establishment and functioning of the internal
 market;     whereas it is therefore necessary to approximate the laws of the
 Member   States     in this field       and   thus to amend      the Annex   to Council
Directive 76/769/EEC , as last amended by Directive                   /    /EEC ,
HAS ADOPTED THIS DIRECTIVE:
 4
    OJ No C 30, 4.2.1988, p.1-
 5
    0J No L 262, 27.9.1976, p.201
 6
   OJ No L
                                                                                            G
 ---pagebreak---                                 - 3 -
                            '  Article 1
Annex I to Directive 76/769/EEC is hereby amended as set out in the Annex
hereto.
                              Article 2
Owing to the development of knowledge and techniques in respect of substitutes
for cadmium, the Council shall reassess the situation within seven years of
adoption of this Directive on the basis of a report drawn up by the Commission.
                              Article 3
1. Member States shall bring into force the laws, regulations and administrative
   provisions necessary to comply with this Directive no later than 30 June 1991
   and shall forthwith inform the Commission thereof.
2. Member States shall communicate to the Commission no later than 31 December
   1990 the text of the basic provisions of national law which they adopt in
   the field covered by this Directive.
3. The provisions adopted pursuant to paragraph 1 shall make express reference
   to this Directive.
                              Article A
This Directive is addressed to the Member States.
Done at Brussels                                     For the Council
                                                                                • \
 ---pagebreak---                                                                     ANNEX
 The following point is hereby added to Annex I to Directive 76/769/EEC:
"Cadmium (CAS No. 7440-43-9) and its compounds
 1.1. Shall not be used to give colour to finished products manufactured
         from the substances and preparations listed below.
         Such finished products,   whatever their use or intended final purpose,
         shall not be placed on the market if their cadmium content (expressed
         as Cd metal) exceeds 0.01 X by weight.
         - polyvinyl chloride (PVC)    ••••%"             (3904 10) (3904 21)      (*)
                                                          (3904 22)
         - polyurethane (PUR)                             (3909 50)
         - low-density polyethylene (Id PE), with the
           exception of low-density polyethylene used
           for the production of coloured masterbatch     (3901 10)
         - cellulose acetate (CA)                         (3912 11) (3912 12)
         - cellulose acetate butyrate (CAB)               (3912 11) (3912 12)
         - epoxy resins                                   (3907 30)
  1.2. Shall also be covered by this provision from (five years from adoption
         of this Directive) :
         a) the finished   products manufactured  from the following    substances
            and preparations :
           - melamine - formaldehyde (MF) resins          (3909 20)                (*)
           - urea - formaldehyde (UF) resins              (3909 10)
           - unsaturated polyesters (UP)                  (3907 91)
           - polyethylene terephthalate (PET)             (3907 60)
           - polybutylene terephthalate (PBT)
           - transparent/general-purpose polystyrene      (3903 11) (3903 19)
           - acrylonitrile methylmethacrylate (AMMA)
           - cross-1 inked polyethylene (VPE)
           - high-impact polystyrene
           - polypropylene (PP)                           (3902 10)
 (l
    ° Council Regulation (EEC) No 2658/87 of 23 July 1987, on the tariff ?nd statis-
      tical nomenclature and on the common customs tariff: 0J No L 256, 7.9.1987, p.1
 ---pagebreak---                             - 2 ~
                                                                                (*)
     b) paints                                       (3208) (3209)
                                                                               J
     However,   if the paints have a high    zinc content,   their residual
     concentration of  cadmium should be as    low as possible   and   at all
     events not exceed 0,1 % by weight.
1.3. However, this provision   shall  not  apply  to  products   to   be
     coloured for safety reasons.
2.1. Shall not  be used  to stabilize   the finished products   listed   below
     manufactured from polymers or copolymers of vinyl chloride
     Such finished products shall not be placed on     the market    if their
     cadmium content (expressed as Cd metal) exceeds 0.01 % by weight.
     - packaging materials (bags, containers,        (3923 29 10)
                                                                                 (*)
       bottles, lids)                                (3920 41) (3920 42)
     - office or school supplies                     (3926 10)
     - fitting for furniture, coachwork or
       the like                                      (3926 30)
     - articles of apparel and clothing
       accessories (including gloves)                 (3926 20)
     - floor and wall coverings                      (3918 10)
     - impregnated, coated, covered or laminated     (5903 10)
       textile fabrics
     - imitation leather and morocco-leather goods    (4202)
     - gramophone records                            (8524 10)
     - tubes and pipes and their fittings            (3917 23)
     - swing doors
     - vehicles for road transport (interior,
       exterior, underbody)
     - coating of steel sheet used in construction
       or in industry
     - insulation for electrical wiring
                                                                                     &
 ---pagebreak---                                   -3  -
      This provision shall enter into force on (three years from the adoption
      of this Directive).
2.2. However, this provision shall not apply to finished
     products using stabilizers with cadmium for safety reasons.
3.   Within    the meaning   of  this Directive,   cadmium   plating means any
     deposit or coating of metallic cadmium on a metallic surface.
3.1. Shall not be used for plating metallic products or components of the
     products used in the sectors/applications listed below.
     Such cadmium-ptated finished products or components- of these products
     shall not be placed on the market where they are used in i-
     a) equipments and machinery for
         - food production                               (8210)                (*)
                                                        (8417 20)
                                                         (8419 81)
                                                        (8421 11)
                                                         (8421 22)
                                                        (8422)
                                                         (8435) (8437) (8438)
                                                        (8476 11)
         - agriculture                                  (8419 31)
                                                         (8424 81)
                                                        (8432) (8433)
                                                         (8434) (8436)
            cooling and freezing                        (8418)
            printing and book-binding                    (8440)
                                                         (8442)
                                                         (8443)
                                                                                 Jo
 ---pagebreak---                               - 4 -
     b) equipment and machinery for the production of :
        - household goods                              (7321)                (*)
                                                       (8421 12)
                                                       (8450)
                                                       (8509)
                                                       (8516)
        - furniture                                    (8465) (8466)
                                                       (9401) (9402)
                                                       (9403) (9404)
        - sanitaryware                                 (7324)
        - central heating and                          (7322)
           air conditioning  plant                     (8403) (8404)
                                                       (8415)
         or in the products manufactured in the sectors listed under b)
3.2. Shall be covered by this provision from (five years from adoption of
     this Directive) products or components of products intended for use
     in:                                           . _
     a) equipment and machinery for the production of :
         - paper and board                             (8419 32)
                                                                             (*)
                                                       (8439)
                                                       (8441)
         - textiles and clothing                       (8444)
                                                       (8445) (8447)
                                                       (8448) (8449) (8451)
                                                       (8452)
     b) equipment and machinery for the production of :
         - industrial handling                          (8425) (8426) (8427)
                                                                              (*)
                                                       (8428)
                                                       (8429)
                                                       (8430)
                                                       (8431)
         - road and agricultural vehicles               (chapter 87)
         - rolling stock                                (chapter 86)
         - vessels                                      (chapter 89))
         or in the products manufactured in the sectors listed under b ) .
                                                                                 y
                                                                                   \K
 ---pagebreak---    3.3. However, this provision shall not apply to:
        - products   and  components of  the products     used   in the aerospace,
          mining,    offshore and  in nuclear sectors whose applications require high
          safety standards    and in safety  devices   in road     and  agricultural
          vehicles, rolling stock and vessels;
        - electrical contacts in any sector of use on account of the reliability
           required of the apparatus on which they are installed.'•
rv
i.
 ---pagebreak---                 Impact on competitiveness and employment
I. Principle grounds for introducing the measure
   In the framework of Directive 76/769/EEC relating to restrictions on
   the   marketing    and  use  of  certain   dangerous   substances  and
   preparations,    a proposal for a Directive has been prepared by the
   Commission with the aim of limiting the use of cadmium.
   This proposal   for a directive must be regarded in the perspective
   of :
   - the other existing European legislations to control the imput of
     cadmium in the environment
   - the communication presented by the Commission to the Council in
     April 1987 for a proposed action programme on environmental
     pollution by cadmium (COM (87) 165 final).
   - The Council Resolution of 25 January 1988 (88/C30/01 of 4/2/88)
     which invites the Commission to continue without delay the
     elaboration of specific measures concerning and Community action
     programme to combat environmental pollution by cadmium.
     The Council   Resolution  also underlines the major elements    of a
     strategy for cadmium control in the interests of the protection of
     human health and the environment. These elements are the limitation
     of the uses of cadmium where suitable alternatives do not exist,
     the stimulation of research and development;      the collection and
     recycling of products containing cadmium.
                                                                          jft
 ---pagebreak---                                           -2-
     - an existing     legislation    in Denmark which      is in    force since 1st
       January   1984    and   prohibits    the   manufacture    and  importation of
       products containing cadmium.
     - a   project    of   decree     in   the    Netherlands    concerning     cadmium
       prohibition in products notified to the Commission in the framework
       of Directive 83/189/EEC on 26 April 1987.              This project has been
       already published in the Netherlands official journal but the law
       is not effectively enforced.
11
   - Characteristics of the firms concerned
     The directive is trying to put in balance the industrial areas where
     the use of     cadmium    is essential      and the potential     risks for the
     environment.     The    obvious   first    step,    in  order   to   define   some
     realistic    restrictions     on    the    limitation    of   cadmium     and  its
     compounds,    was to look at the distribution of cadmium users and to
     make a distinction between the major areas and the                less important
     ones.
     The available data has allowed us to see the proportion of cadmium
     end-uses   in the European countries.           Plating and pigments have the
     same order of percentage (24-29 %) whereas stabilizers represent the
     half   of  that   percentage     (12   %)   The   part  occupied    by   batteries
     represents nearly      1/3 of   the total cadmium       consumed.     However the
     batteries are being investigated separately in the frame of another
     directive    and   therefore     would    not    be  tackled 'in     the   present
     directive.
     On the basis of the above data only the three following sectors :
     - pigments
     - stabilizers
     - plating
     have been tackled by the present proposal for a Directive.
                                                                                        ^
 ---pagebreak---                                         -3-
     Are there regional concentrations
     The  laws of prohibition on cadmium       already   adopted   by some Member
     States had   as  result   to close   their markets    to goods    coming   from
     other member States.
     At the door of the Internal Market of 1992 such situations could be
     harmful  and  therefore   the   Commission   has decided    to make all     the
     necessary efforts to harmonize the legislations of the member States
     in this field.     This would have a positive       impact   to the   industry
     concerned all over Community.
III. Direct obligations on firms
     All the products which appear in the lists covered by this Directive
     must satisfy its provisions, from the date of its entry into force.
     Prohibitions on application of cadmium would result to a consequent
     need for alternatives. This could have a number of cost implications,
     the most  obvious of which but by        no means the most significant       is
     the direct   cost of new formulations       for these alternatives.      Other
     factors    must    also    be    considered     notably    the     performance
     characteristics of the alternatives and its harmlessness to man and
     the environment.
     However,   it is the view of the EEC        industry  concerned    that  it is
     feasible that practical substitutes to cadmium for most of the use
     areas covered by the proposal exist or are already employed.
     In all the three sectors mentioned above intensive research has led
     to  the  development; of     substitutes   which   could   be   considered   as
     equivalent to cadmium.
     Furthermore at the present time and in the three sectors concerned
     the major substitution would appear to have already taken place.
 IV. Obligations   which   may   be   imposed   indirectly   on   firms   by   local
     authorities.
                                                                                     .p
 ---pagebreak---                                         -4-
    The directive will be applied in each Member States on the basis of
    the   transposition     of   its   provisions       into   national     Law   local
    authorities may impose additional requirements only if these do not
    adversely affect the trade of the products concerned and on the basis
    of paragraph d) of the Article 100 A of the Single European Act.
 V. Are there any special measures applicable to small and medium - sized
    firms ?
    No.      These       firms     in     the       three      sectors       concerned
    (pigments/stabilizers/plating) should also comply with the provisions
    provided for under the directive.         However,     despite of the fact that
    the   directive   bans   the  marketing     of  specific    products    containing
    cadmium a transition period of 3-5 years has been granted to allow
    industry and more particular SME and PME to adapt their manufacturer
    process to the new conditions.
VI. What is the likely effect
    - on the competitiveness of undertakings ?
      The   powerful   advantage    given    by   the  directive     to the    European
       Industry concerned as regards the harmonization of the legislations
      concerning restrictions on the uses of cadmium is that after                  the
      date of entry      into force of the directive          it will no     longer be
      possible to impede the free movement of the products which do not
       appear in the lists of banned products on the internal market.
      However    this   directive    does   not    apply   to   exports   of   products
       containing cadmium to Third countries.
       On  the other    hand   any  EEC   legislation     treats    imports   into  the
       Community   in an identical manner        to EEC production and this also
       allows the European industry to compete fairly with those trading
       nations who export to the Community market.
                                                                                        P
 ---pagebreak---                                           -5-
       There  is  currently a reliable method           to detect  the presence    of
       cadmium in products.
     - on employments
       As  for   employment     the   effects    of   such  restrictions   are   very
       difficult to quantity and would vary according to the applications
       involved.    It is however noticeable that the implementation of the
       directive     should    result     in   a    general   improvement    in   the
       competitiveness      of    the   European     Industry   concerned    with   a
       consequent beneficial effect on the labour market.
VII. Have both sides of industry been consulted ?
     Industry's concern regarding the prohibition of uses of cadmium was
     tackled with     attention.     Useful   contacts have been taken with       the
     representatives    of   industries    concerned   by the project in order to
     discuss the critical industrial areas which could be affected by such
     a directive.     The approach adopted was to discuss the restrictions on
     the application     of cadmium     on case    by case basis allowing a more
     complete discription of the industrial sectors involved.             The result
     was the establishment of        lists of banned products      accepted by both
     sides.
     A group of national experts was also directly and actively              involved
     in the preparation of this proposal.
                                                                                      j\
 ---pagebreak---  ---pagebreak---                                                                      ISSN 0254-1475
                                                              COM(89) 548 final
                                                      DOCUMENTS
EN                                                                              05
                                 Catalogue number : CB-CO-89-538-EN-C
                                                             ISBN 92-77-55053-8
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