2002/59/EC: Commission Decision of 23 January 2002 concerning draft national provisions notified by the Kingdom of the Netherlands under Article 95(5) of the EC Treaty on limitations on the marketing and use of creosote-treated wood (Text with EEA relevance) (notified under document number C(2002) 97)

• Published date: 25 January 2002
• Date of Signature: 31 May 2002
• Subject Matter: tutela dei consumatori,ostacoli tecnici,ravvicinamento delle legislazioni,ambiente,Mercato interno - Principi,sicurezza dei lavoratori e della popolazione,protección del consumidor,obstáculos técnicos,aproximación de las legislaciones,medio ambiente,Mercado interior - Principios,seguridad de los trabajadores y de la población,protection des consommateurs,entraves techniques,rapprochement des législations,environnement,Marché intérieur - Principes,sécurité des travailleurs et de la population,relaciones exteriores,Acuerdo de Asociación,medio ambiente,protección del consumidor
• Official Gazette Publication: Gazzetta ufficiale delle Comunità europee, L 23, 25 gennaio 2002,Diario Oficial de las Comunidades Europeas, L 23, 25 de enero de 2002,Journal officiel des Communautés européennes, L 23, 25 janvier 2002,Diario Oficial de las Comunidades Europeas, L 238, 05 de septiembre de 2002

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2002/59/EC: Commission Decision of 23 January 2002 concerning draft national provisions notified by the Kingdom of the Netherlands under Article 95(5) of the EC Treaty on limitations on the marketing and use of creosote-treated wood (Text with EEA relevance) (notified under document number C(2002) 97)

Official Journal L 023 , 25/01/2002 P. 0037 - 0047

Commission Decision

of 23 January 2002

concerning draft national provisions notified by the Kingdom of the Netherlands under Article 95(5) of the EC Treaty on limitations on the marketing and use of creosote-treated wood

(notified under document number C(2002) 97)

(Only the Dutch text is authentic)

(Text with EEA relevance)

(2002/59/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

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

Whereas:

I. FACTS

1. COMMUNITY LEGISLATION

(1) 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 and use of certain dangerous substances and preparations(1), as last amended by Commission Directive 2001/90/EC(2), provides for the prohibition and restriction of the use of certain dangerous substances and preparations. Directive 76/769/EEC is regularly amended to include in its Annex additional substances which are dangerous to man and the environment.

(2) European Parliament and Council Directive 94/60/EC(3) amended Directive 76/769/EEC to harmonise amongst other things the use and marketing of creosote and similar coal tar distillates, as well as preparations containing them, by limiting the content of one specific component, Benzo[a]pyrene (hereinafter B[a]P), and water extractable phenols when used for wood treatment (point 32 in the Annex to Directive 94/60/EC). The limit for B[a]P is fixed at a maximum of 0,005 % by mass (= 50 ppm) and the limit for water extractable phenols is fixed at a maximum of 3 % by mass (= 30 g/kg). Wood treated with creosote or preparations containing creosote not respecting those limits may not be placed on the market.

(3) However, by derogation, Directive 94/60/EC allows for the use of creosote and preparations containing creosote with up to 0,05 % B[a]P by mass (= 500 ppm) and water extractable phenols up to 3 % by mass (= 30 g/kg) for wood treatment in industrial installations. Such products may not be sold to the general public and containers have to be labelled with the phrase "For use in industrial installations only". Wood treated this way and placed on the market for the first time can only be used in industrial and professional applications, e.g. on railways, in electric power transmission and telecommunications, for fencing and in harbours and waterways, except in certain cases where its use is excluded, e.g. inside buildings, in contact with products intended for human or animal consumption, in playgrounds and in other outdoor places for public pleasure or where there is a risk for contact with skin. Old treated wood commercialised for a second time can be used irrespective of the creosote-type applied except in the cases mentioned before.

(4) On 26 October 2001, Directive 2001/90/EC adapting to technical progress for the seventh time Annex I to 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 was adopted.

(5) According to the amended provisions, creosote may not be used in the treatment of wood and wood so treated may not be placed on the market. However by way of derogation, creosote may be used for wood treatment in industrial installations or by professional for in-situ retreatment only if they contain B[a]P at a concentration of less than 0,005 by mass and water extractable phenols at a concentration of less than 3 % by mass. Such substances and preparations may not be sold to consumers and may be placed on the market only in packaging of a capacity equal to or greater than 20 litres. The packaging has to be labelled with the phrase "For use in industrial installations or professional treatment only".

(6) Wood treated this way or retreated in-situ is permitted for professional and industrial use only e.g. on railways, in electric power transmission and telecommunications, for fencing, for agricultural purposes and in harbours and waterways. Use is prohibited inside buildings, in playgrounds, in parks, in gardens and outdoor recreational and leisure facilities where there is a risk of frequent skin contact and in garden furniture or in contact with products intended for human or animal consumption. Wood that has been treated with creosote before the Directive applies may be placed on the second-hand market for reuse, except in the cases mentioned before.

2. EXISTING NATIONAL PROVISIONS APPROVED BY THE COMMISSION UNDER ARTICLE 95(4) OF THE TREATY

(7) The Netherlands already obtained a derogation from the Commission to maintain national provisions incompatible with Directive 94/60/EC. The relevant request under Article 95(4) [ex-Article 100a(4)] received approval in Commission Decision 1999/832/EC(4).

(8) The differences between Directive 94/60/EC and the national provisions in the Netherlands that were approved through the Commission Decision is summarised in the following table:

>TABLE>

(9) In summary, the existing Dutch provisions are more restrictive than those contained in Directive 94/60/EC in several aspects:

- the B[a]P content of creosote is not permitted in the range of 50 to 500 ppm for the use in industrial installations;

- wood preservation has to be performed according to a specific technique (pressure/vacuum) in special installations;

- in certain cases, the use of creosote is excluded for wood preservation, even if its B[a]P content is below 50 ppm.

3. ENVISAGED NATIONAL PROVISIONS

(10) The Netherlands intend to adopt new national provisions going beyond the measures provided for under Directive 94/60/EC by amending the Decision on Coatings Containing Policyclic Aromatic Hydrocarbons (Besluit PAK-houdende coatings) under the Chemical Substances Act (creosote-treated wood).

(11) Article 8a under a new Section 4a of the draft above legislation, provides that "as from the date to be determined by Royal Decree, it shall be prohibited to import into the Netherlands, to use, or to supply to others, or to keep available for sale on the Dutch market, creosote-treated wood for applications involving contact with surface water and groundwater".

(12) The ban does not apply to creosote-treated wood which was put to use in its application before a point in time to be determined by Royal Decree, so long as the existing place of application is retained. Two other exceptions concern creosote-treated wood which:

- has been placed under a customs procedure and is intended for customs transit, placement in a customs warehouse or for temporary admission, in accordance with the provisions of Article 4(16) of Council Regulation (EEC) No 2913/92;

- originating from a Member State of the European Union, or an EEA State and is not intended for sale on the Dutch market.

(13) Article 8b of the draft Decision requires that anyone who imports, supplies, or keeps available for sale on the market, creosote-treated wood that does not come under the ban, keeps a record of that wood and show on demand that the creosote-treated wood in question is not intended for applications to which the ban relates. The record includes, at least:

- the name and address of the manufacturer or supplier from whom the creosote-treated wood was purchased;

- the date on which the creosote-treated wood was delivered by the manufacturer or supplier;

- the field of application for the creosote-treated wood;

- the name and address of the person to whom the creosote-treated wood was made available or delivered;

- the date of delivery of the creosote-treated wood;

- the quantity of creosote-treated wood received or delivered.

II. PROCEDURE

(14) Directive 94/60/EC was adopted on 20 December 1994. Member States had to adopt the measures necessary to comply with it no later than one year after its adoption, i.e. 20 December 1995, and to apply them from 20 June 1996.

(15) As indicated above, the Netherlands obtained approval through Decision 1999/832/EC to maintain existing national provisions on the use of creosote being more restrictive than Directive 94/60/EC.

(16) By letter of 23 January 2001, the Dutch Permanent Representation notified the Commission that the Netherlands, in accordance with Article 95(5) of the EC Treaty, intended to introduce provisions regarding creosote-treated wood going beyond those provided for in Directive 94/60/EC. The Netherlands deem it necessary to introduce such national measures in order to protect the environment in connection with a specific problem that arose in the Netherlands after the adoption of Directive 94/60/EC.

(17) By letter of 22 February 2001, the Commission informed the Dutch authorities that it had received the notification under Article 95(5) and that the six months period for its examination according to Article 95(6) started on 26 January 2001, the day following the one when the notification was received.

(18) By letter of 17 April 2001, the Commission informed the other Member States about the request received from the Netherlands. The Commission also published a notice regarding the request in the Official Journal of the European Communities(5) in order to inform other interested parties of the draft national measures that the Netherlands intend to adopt.

(19) Considering that the justification of the Dutch notification appeared prima facie to be a complex matter and not to involve a danger to human health, the Commission asked the...