CELEX: 51993PC0499
Language: en
Date: 1993-10-18
Title: Proposal for a COUNCIL DIRECTIVE amending for the fifteenth 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
                                                  COM(93) 499 final - SYN 473
                                                  Brussels, 18 October 1993
'Sir
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                                   Proposal for a
       amending   for  the   fifteenth   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 Memorandum
I.        Introduction
The French authorities notified the Commission in early 1992 that they
had taken two measures in the framework of Article 10 of Directive
75/324/EEC on aerosol generators, thereby employing the safety clause
of that directive for the specified period of one year.
The first of these measures imposed mandatory labelling requirements,
subject to exemption, for aerosol generators containing flammable
gases and the second provided for a ban on the manufacture, importation
and marketing of aerosols containing flammable gases and intended for
entertainment and decorative purposes.
The Commission having examined the French measures and having consulted
experts from all Member States gave notice of its intention to adapt
Directive 75/734/EEC to technical progress with regard to aerosol
generators containing flammable substances and to propose to the
Council an amendment to Annex 1 of Council Directive 76/769/EEC to
provide for harmonized limitations on the use of flammable gases in
aerosol generators intended for entertainment and decorative purposes.
The present proposal concerns the amendment of Annex 1 to Directive
76/769/EEC.
The Commission considers that this proposal is consistent with the
Principle of Subsidiarity and with the requirement under the Treaty to
take as a base in its harmonization proposals a high level of
protection concerning health and consumers.
What are the objectives of the proposal   in relation to the Community's
obi Igat ions ?
One objective is to establish uniform rules to allow a maximum of free
circulation in the products concerned. A second objective is to ensure
that the rules established provide a high level of protection to the
consumer. Only the Community can develop uniform rules meeting the
necessary requirements and the Community is obliged to act under the
Treaty.
Does this initiative arise out of an exclusive Community competence or
a shared competence ?
 It arises out of an exclusive Community competence. This competence
was established by Council Directive 76/769 and the initiative is
simply the 15th Amendment of this Directive.
 ---pagebreak--- What courses of action are available to the Community ?
The only way of realising the stated objectives is to introduce uniform
rules for the products concerned by amending Annex I to Directive
76/769/EEC.
Are uniform rules necessary ? It is not        sufficient  to  establish
targets to be implemented by Member States ?
The only way of realising the objective of maximizing free circulation
is to establish uniform rules at Community level. The uniform rules
are thus necessary. It would not be sufficient to establish targets;
these would be implemented differently by Member States and the result
would be barriers to trade.
11.     Background
Implementation of the Montreal Protocol on substances that deplete the
Ozone    Layer    has    led    to    progresssive    substitution    of
chlorofluorocarbons, which are non-flammable, by substitutes which are
often flammable. Specifically the recent past is characterised by
increasing use of flammable gases in aerosol generators intended for
entertainment and decorative purposes.
A number of accidents have occured as on result of such increasing use
of flammable gases. For example young children in France have suffered
burns through fires involving aerosol generators producing artificial
snow. Further accidents are likely with other aerosol           products
intended for entertainment and decorative purposes as these are often
used in close proximity to the naked flame.
Given the hazard associated with the use of flammable gases in aerosol
generators and that consumers may be exposed to risk during everyday
situations it is desirable that the use of such flammable gases should
be limited in particularly high risk situations such as use in aerosol
generators for entertainment and decorative purposes.
III.    Substances to be limited
Substances, use of which needs to be limited, are those classified or
provisionally classified as flammable, highly flammable or extremely
flammable according to Directive 67/548/EEC.
 ---pagebreak---                                    H
IV.     Existence of Substitutes
The systems affected by this proposal are simple in nature and open to
alternative solutions. For example, flammable gas propellants could be
replaced by mechanical pumps in some situations and by inert gas
propellants in other situations. In a small minority of cases a
dangerous product may simply have to be eliminated.
V.      Effect on Industry
Overall the impact    on  the  industries  concerned  is   likely   to  be
insignif icant.
VI.     Conclusion
It is concluded that the use of flammable gases in aerosol generators
intended for entertainment and decorative purposes poses a danger to
the health of consumers and particularly to children. The strategy
proposed therefore is to ban the use of substances classified or
provisionally classified as flammable, highly flammable or extremely
flammable in such uses. The ban would not apply however in situations
where it has been demonstrated on the basis of approved tests that the
aerosol generator product does not present risk of flammability under
normal and reasonably foreseable conditions of use.
The test methods necessary for implementation are being developed in
the   framework  of   adaptation   of  Directive   75/324/EEC     (aerosol
generators) to technical progress.
VII.    Conformity with the Treaty
It is clear from the foregoing that this proposal is intended to afford
a high level of protection for consumers and is therefore in conformity
with Article 100 A (3) of the Treaty.
The proposal does not call for any special      provisions of   the kind
referred to in Article 8c sof the Treaty.
VIII.   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.
 ---pagebreak---                                    6'
                             Proposal for a
                            COUNCIL DIRECTIVE
amending   for the fifteenth      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,
Having regard to the Treaty establishing the          European   Economic
Community, and in particular Article 100a thereof.
Having regard to the proposal from the Commission,1
In cooperation with the European Parliament,2
Having regard to the opinion of the Economic and Social Committee,3
Whereas Article 8A of the Treaty establishes an area without internal
barriers in which the free circulation of goods, of, persons-, of services
and capital is assured-,
Whereas work on the internal market should gradually improve the quality
of life, health protection and consumer safety; whereas the measures
proposed by this Directive are in line with the Council resolution of
9 November 1989 on future priorities for relaunching consumer protection
policy;4
 1   0J No
2    OJ No
3    OJ No
4    OJ No C 294 of 23.11.1989 p.
 ---pagebreak---                                       6
Whereas certain substances and preparations used      in aerosol generators
have a particularly flammable nature;
Whereas risks to consumers arise from the increased use in aerosol
generators of flammable substances in place of ch lorofluorocarbons
(CFC); whereas such risks are particularly acute in the case of aerosol
generators used for entertainment and decorative purposes;
Whereas part of the increased risks can be offset by adaptation to
technical    progress    of  «Council    Directive   75/324/CEE5   on    the
harmonization of Member State laws on aerosol generators and the
remaining part of the risk by limiting hereby the use of flammable
substances    in aerosol generators       intended for entertainment and
decorative purposes;
Whereas limitations planned by one Member State on the placing on the
market of certain aerosol generators intended for entertainment and
decorative purposes directly affect the completion and functioning of
 the internal market; whereas it is therefore necessary to approximate
 the laws of the Member States In this field and consequently amend Annex
 I to Directive 76/769/EEC,6 as last amended by Directive 91/339/EEC;7
Whereas, according to the scope and effects of the proposed action, the
Community measures envisaged by this directive are not only necessary
 but also indispensable for the attainment of the stated objectives and
 that these objectives cannot be achieved by Member States individually,
 and that furthermore their attainment at Community level is already
 provided for by Directive 76/769/EEC;
 HAS ADOPTED THIS DIRECTIVE:
                                  Art icle 1
 Annex I to Directive 76/769/EEC      is hereby amended as set out    in the
 Annex hereto.
                                  Art icle 2
 1.  Member States shall adopt and publish the laws, regulations and
     administrative provisions necessary to comply with this Directive no
      later than 1 year after the date of its adoption and shall forthwith
      inform the Commission thereof. They shall apply these provisions
      from (3 months after the date stated above).
 5   OJ No L 147, 9.10.1975, p. 40
 6    OJ No L 262, 27.9.1976, p.201.
 7    OJ No L 186 Of 12.7.1991 p. 64
 ---pagebreak---                                    £
2.  When Member States adopt the above mentioned provisions, these shall
    contain a reference to this Directive or shall be accompanied by
    such reference at the time of their official publication. The
    procedure for such reference shall be adopted by the Member States.
                                Article 3
This Directive is addressed to the Member States.
Done at Brussels,                         For the Council
 ---pagebreak---                                      X
                            kUNFX
ww. Substances                    May not be used as such or
                                  in the form of preparations
ei ther                           in aerosol generators marketed
                                  and intended
- appearing in Annex I            for entertainment and
to Directive 67/548/EEC           decorative purposes in
which are classified as           household situations such as
flammable, highly flammable       the fol lowing:
or extremely flammable and        - decorative metallic glitter
 label led as such                destined mainly for parties
                                  - decorative snow and frost
or                                - fun breaking of wind
                                  - silly str ing
                                  - fun excrement
                                  - horns for parties
                                  - decorative disappearing
- not yet appearing in            flakes and foams
Annex I to Directive              - artificial cobwebs
67/548/EEC but conforming         - funny stink
 to the criteria of flammability
of Annex VI to                    By way of derogation this provision
Directive 67/548/EEC              shall not apply where it has been
and being provisionally           demonstrated on the basis of
classified and labelled           documented appropriate tests and
 as flammable, highly flammable,  analyses by the person responsable for
or extremely flammable according   the placing on the market of these
 to Article 5 para 2 of            aerosol generators that while
 Directive 67/548/EEC             containing flammable substances and
                                   preparations the aerosol generators do
                                   not present a risk of flammability
                                  under normal and reasonably forseable
                                   conditions of use. In this case the
                                   quantity of flammable substance(s) in
                                   the    aerosol   generator   must   be
                                   indicated clearly and indeliby on the
                                   label by the phrase "contains x% by
                                   mass of flammable substances"
 ---pagebreak---                                         3
                             FINANCIAL STATEMENT
                     SECTION 1: FINANCIAL IMPLICATIONS
1.  Title of operation
    Proposal for a fifteenth amendment to Directive 76/769/EEC
2.  Budget heading involved
    Article B5-300:    completing the internal market
3.  Legal basis
    - Article 100a of the Treaty
4.  Description of operation
4.1 Specific objective of operation
    The proposed operation involves :
         Restricting the use of flammable gases in aerosol   generators
         intended for entertainment and decorative purposes.
4.2 Durât ion
    This is a "one-off" operation
4.3 Target population
     Industrialists and consumers
5.  Classification of expenditure
    Not applicab le.
6.  Type of expenditure
    None
Unlike previous amendments to Directive 76/769/EEC, the fifteenth
amendment does not require standardisation work to be performed by CEN.
The test methods necessary for implementation are being developed in
the framework of adapting Directive 75/324/EEC (aerosol generators) to
technical progress using funds already allocated for this purpose.
7.  Financial impact on appropriations for operations
    None
8. What ant I-fraud measures are planned?
    None
 ---pagebreak---                                       Ax>
                  SECTION 2: ADMINISTRATIVE EXPENDITURE
No new administrative expenditure is foreseen. Any meetings to be held
would take place pursuant to Directive 76/769/EEC in the framework of
which the "Technical Progress Committee: Dangerous Substances and
Preparations" would be convoked, and would be covered by the budget for
that Directive. The estimated annual budget for this Committee is made
up of 174.000 ECU for meetings of experts (01/03/U/080) and 12.000 ECU
for meetings of the Committee itself (01/03/T/080).
However, no extra meetings are foreseen at this time.
            SECTION 3: ELEMENTS OF COST-EFFECTIVENESS ANALYSIS
     The aim of the proposed operation is to harmonize restrictions on
     the use of flammable gazes in aerosol generators intended for
     entertainment and decorative purposes so as to avoid creating
     obstacles to trade and, at the same time, to provide a high level
     of protection for consumers.
     The general objective is to complete the internal market.
II. Grounds for the operation
Harmonization serves to prevent obstacles to trade and, at the same
time, to provide a high level of protection for consumers.
 III.    Monitoring and evaluation of the operation
The Committee set up under Directive 76/769/EEC will be responsible for
monitoring the application of this Directive.
 ---pagebreak---                                                 AA
                                                                     ISSN 0254-1475
                                                              COM(93) 499 final
                                                      DOCUMENTS
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                                 Catalogue number : CB-CO-93-534-EN-C
                                                             ISBN 92-77-59827-1
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