CELEX: 
Language: en
Date: 2020-06-09 00:00:00
Title: COMMISSION DELEGATED REGULATION (EU) …/... amending Annex I to Regulation (EU) 2019/1021 of the European Parliament and of the Council as regards the entry for perfluorooctane sulfonic acid and its derivatives (PFOS)

EUROPEAN
                           COMMISSION
                                                    Brussels, 9.6.2020
                                                    C(2020) 3639 final
                COMMISSION DELEGATED REGULATION (EU) …/...
                                        of 9.6.2020
   amending Annex I to Regulation (EU) 2019/1021 of the European Parliament and of the
     Council as regards the entry for perfluorooctane sulfonic acid and its derivatives
                                          (PFOS)
                                (Text with EEA relevance)
EN                                                                                      EN
 ---pagebreak---                                 EXPLANATORY MEMORANDUM
   1.        CONTEXT OF THE DELEGATED ACT
   Article 1 of Regulation (EU) 2019/1021 establishes as the objective of that Regulation to
   protect human health and the environment from Persistent Organic Pollutants (‘POPs’) by
   prohibiting, phasing out as soon as possible, or restricting the manufacturing, placing on the
   market and use of substances subject to the Stockholm Convention on POPs.
   Perfluorooctane sulfonic acid (PFOS), its salts and perfluorooctane sulfonyl fluoride (PFOSF)
   are listed in Annex B to the Convention with acceptable purposes and specific exemptions.
   The POP Review Committee (POPRC) recommended1 deleting all acceptable purposes
   except the one for use as insect baits containing sulfluramid. POPRC also recommended
   changing from acceptable purpose to specific exemption for the uses in hard chromium
   plating and in fire-fighting foams.
   At the ninth Conference of the Parties to the Stockholm Convention, which took place in
   Geneva, Switzerland, from 29 April to 10 May 2019, the decision (SC-9/4) was taken to
   amend the acceptable purposes and specific exemptions for PFOS, its salts and PFOSF, listed
   in Annex B to the Convention, following the recommendation of POPRC. The only
   amendment relevant for the current EU legislation is a change from an acceptable purpose to a
   specific exemption for the use of PFOS, its salts and PFOSF as mist-suppressant for non-
   decorative hard-chromium plating in closed loop system. This change requires adding a time
   limit for the exemption in Annex I to Regulation (EU) 2019/1021.
   In accordance with the second subparagraph of Article 15(1) of Regulation (EU) 2019/1021, a
   separate delegated act amending Annex I to Regulation (EU) 2019/1021 should be adopted to
   introduce this change in the entry on PFOS.
   2.        CONSULTATIONS PRIOR TO THE ADOPTION OF THE ACT
   The draft amendment was consulted with an expert group (the 'POP CA meeting') on 26
   November 2019 and comments were taken into account as far as possible. The group is
   composed of all the relevant stakeholders - representatives of Member States, of the European
   Chemicals Agency, the chemicals industry and the civil society.
   A public consultation was carried out for the draft act from 29 November to 27 December
   2019. One comment was received, asking to apply the same provisions for articles as in entry
   68 of Annex XVII of Regulation EU 1907/2006 (REACH), concerning PFOA, its salts and
   PFOA-related compounds. This request is not justified because it concerns regulatory
   provisions for a different substance. Moreover, the change in the entry for PFOS concerns an
   industrial use and not a use in articles.
   3.        LEGAL ELEMENTS OF THE DELEGATED ACT
   The delegated act amends the list of chemicals in Annex I on the basis of developments under
   the Convention. The legal basis for the proposed delegated act is Article 15(1) of Regulation
   (EU) 2019/1021.
   1
           Decision POPRC-14/3
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 ---pagebreak---                      COMMISSION DELEGATED REGULATION (EU) …/...
                                                 of 9.6.2020
    amending Annex I to Regulation (EU) 2019/1021 of the European Parliament and of the
       Council as regards the entry for perfluorooctane sulfonic acid and its derivatives
                                                   (PFOS)
                                          (Text with EEA relevance)
   THE EUROPEAN COMMISSION,
   Having regard to the Treaty on the Functioning of the European Union,
   Having regard to Regulation (EU) 2019/1021 of the European Parliament and of the Council
   of 20 June 2019 on persistent organic pollutants2, and in particular Article 15 (1) thereof,
   Whereas:
   (1)    Regulation (EU) 2019/1021 implements the commitments of the Union under the
          Stockholm Convention on Persistent Organic Pollutants3 (‘the Convention’) and under
          the Protocol on Persistent Organic Pollutants to the 1979 Convention on Long-Range
          Transboundary Air Pollution4 (‘the Protocol’).
   (2)    Annex B to the Convention (‘Restriction’) contains a list of chemicals for which each
          Party to the Convention is required to restrict their production, use, import and export
          in light of any applicable acceptable purpose and/or specific exemption listed in that
          Annex.
   (3)    The Conference of the Parties to the Convention has, pursuant to Article 8(9) of the
          Convention, decided in its ninth meeting to amend Annex B to the Convention in
          relation to the acceptable purposes and specific exemptions for perfluorooctane
          sulfonic acid (PFOS), its salts and perfluorooctane sulfonyl fluoride (PFOSF). The
          Conference of the Parties decided to amend the acceptable purpose for the use of
          PFOS, its salts and PFOSF for metal plating (hard metal plating) only in closed-loop
          systems to a specific exemption.
   (4)    The amendment of the acceptable purpose for the use of PFOS, its salts and PFOSF
          for metal plating (hard metal plating) only in closed-loop systems to a specific
          exemption has the effect that Parties are allowed to use that exemption for a maximum
          period of five years after the entry into force of that amendment. The exemption may
          be extended for additional five years following a decision by the Conference of the
          Parties upon request by a Party and based on a justification of the continuing need for
          that use. Consequently, the entry in Part A of Annex I to Regulation (EU) 2019/1021
          for perfluorooctane sulfonic acid and its derivatives (PFOS) should be amended to
          reflect the obligations under the Convention.
   (5)    Regulation (EU) 2019/1021 should therefore be amended accordingly,
   2
           OJ L 169/45, 25.6.2019, p. 45.
   3
           OJ L 209, 31.7.2006, p. 3.
   4
           OJ L 81, 19.3.2004, p. 37.
EN                                                    2                                            EN
 ---pagebreak---    HAS ADOPTED THIS REGULATION:
                                               Article 1
   Annex I to Regulation (EU) 2019/1021 is amended in accordance with the Annex to this
   Regulation.
                                               Article 2
   This Regulation shall enter into force on the twentieth day following that of its publication in
   the Official Journal of the European Union.
   This Regulation shall be binding in its entirety and directly applicable in all Member States.
   Done at Brussels, 9.6.2020
                                                 For the Commission
                                                 The President
                                                 Ursula VON DER LEYEN
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 ---documentbreak---                            EUROPEAN
                           COMMISSION
                                                   Brussels, 9.6.2020
                                                   C(2020) 3639 final
                                                   ANNEX
                                         ANNEX
                                           to the
                COMMISSION DELEGATED REGULATION (EU) …/...
   amending Annex I to Regulation (EU) 2019/1021 of the European Parliament and of the
     Council as regards the entry for perfluorooctane sulfonic acid and its derivatives
                                          (PFOS)
EN                                                                                      EN
 ---pagebreak---                                                  ANNEX
   In Part A of Annex I to Regulation (EU) 2019/1021, in the entry for perfluorooctane sulfonic
   acid and its derivatives (PFOS), in the fourth column (“Specific exemption on intermediate
   use or other specification”), point 4 is amended as follows:
   (1)      the first paragraph is replaced by the following:
   “4. If the quantity released into the environment is minimised, manufacturing and placing on
   the market shall be allowed until [date of entry into force of this amending Regulation + 5
   years] for use as mist suppressant for non-decorative hard chromium (VI) plating in closed
   loop systems. Provided that those Member States where PFOS is used report to the
   Commission by [date of entry into force of this amending Regulation + 4 years] on progress
   made to eliminate PFOS and justify the continuing need for this use, the Commission shall
   review the need for a prolongation of the derogation for this use of PFOS for a maximum of
   five years by [date entry into force of this amending Regulation + 5 years].”;
   (2)      the third paragraph is deleted.
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