Conference « Directive 98/34 – an instrument of co-operation »

Brussels, 22 June 2005

Anne Rose LambersLegal Counsellor

CeficAvenue E. van Nieuwenhuyse 4B-1160 Brussels

The business experience

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1. How is the chemical industry involved?

2. Three exemplary cases

3. Conclusions / Assessment of the functioning of the notification procedure

Overview

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How is the chemical industry involved?

• Chemicals are highly regulated products

• Strengthened information requirements for notification of intention to limit the marketing or use of a chemical substance on grounds of public health or protection of consumers or environment, Art. 8 (4)

• Analysis of the Report from the Commission on the operation of the Directive (1999-2001):

• Low number of notification cases compared to other sectors (in 2001: 19)

• But high number of reactions (detailed opinion & mere comments, in 2001: 27)

= Good result. But increase can come!

• Handling of cases at Cefic

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Example 1: SOMS (=Strategy on Management of Substances)

• Goal: develop ideas and instruments for implementation of new chemicals policy

• 2001: NL project for a joint initiative from industry, NGO’s and the Government : prioritisation procedure for listing chemicals

• Feb 2001: EU White Paper on Future Chemicals Policy

• Problem: 2 conflicting systems

• July 2002: NL notifies intention to legislate

• Sept 2002: Cefic intervenes: letter - position: wait for REACH. Attempt to extend period even further

• Oct 2002: normal standstill period elapses

• July 2003: extended standstill period elapses. NL voluntarily decides to wait for REACH

• Oct 2003: REACH proposal

= SUCCESS

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Example 2: Danish feed phosphorus tax

aim: reduce phosphorus in agriculture, curb over-enrichment of fresh waters

measure was counterbalanced by a cut in the land tax of the farmers

15 June 2004: notification of the plan 24 June 2004: letter Cefic to Notification Unit of COM End of July: approval by Danish Parliament Autumn: meeting COM, exchange of letters Jan 2005: Tax enters into force

= Failure

Difference to SOMS example:• Fiscal matter / State aid question• Several DG’s were competent

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Example 3: Deca-BDE

Feb 2005: Norwegian Government announces that it will propose a partial ban on Deca-BDE

15 April 2005: consultation of stakeholders in Norway

25 April 2005: notification to Efta Surveillance Authority and COM

− Problems:

1. EEA country: but Annex II to the Agreement on the EEA includes Directive 98/34

2. Parallel procedure: proposal from COM to exempt the Deca-BDE from an EU ban on hazardous substances in electronics manufacture (RoHS Directive)

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Conclusion / Assessment

− We support:

• Completion of the Internal market – Directive brings a valuable mechanism for monitoring national activities = early warning system

• Industry has not “briefed” right to intervene – no judicial procedure but works very well in practice

− We see the following weaknesses:

• Protection of workers, Art. 1 last paragraph: trichloroethylene case

• Tax issue, but distortion of competition: Danish case

• Precautionary principle