Ref. Ares(2019)6338798 - 14/10/2019
EUROPEAN COMMISSION
Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs
Consumer, Environmental and Health Technologies
Chemicals
Brussels, 17 October 2017
NOTE FOR THE FILE
Subject:
Fertilising Products Regulation
Report of a meeting of the Council Working Party of 6 October 2017
1.
INFORMATION FROM THE PRESIDENCY
The Presidency (Pcy) announced its intention to go through several amendments made to
the Council text and to present and discuss two Pcy position papers on delegated acts and
limit values for cadmium.
2.
POINTS DISCUSSED DURING THE LAST MEETING AND FOLLOW-UP
The following issues were discussed:
2.1. Biodegradability criteria
Pcy explained that the wordings of Article 42 and CMC 10 have been improved to reflect
the comments made by France at the last meeting.
On Article 42 (4a) - delegation to COM to develop biodegradability criteria – Pcy took
on board the FR suggestion to include a reference to the non-accumulation of polymer
coatings in the environment. FR replied that a more specific reference to non-toxic
substances released in the environment should be made. FR will send concrete comments
in writing.
On CMC 10 and the inclusion of a sunset clause if the COM cannot deliver on its legal
obligation to introduce biodegradability criteria: FR asked why the application of the
sunset clause has been delayed from 3 to 7 years.
2.2. CMC 2
FR requested to maintain the reference to 'non-processed or mechanically processed' in
the title of CMC 2 but to remove any reference to chemically processes in the list of
authorised processing techniques.
AT, EL, DE, PT supported the FR comment. COM clarified that supercritical CO2
extraction is used to extract essential oils. This is not a mechanical process but not a
process altering the chemical composition neither. COM informed that CMC 1
provisions could apply to recall that the chemical processes now mentioned under CMC
2 will in any event be allowed under CMC 1, subject to the extended REACH
registration obligations mentioned there.
Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111
FR, ES will examine the appropriateness of maintaining the supercritical CO2 process in
the list of permissible processes. CZ mentioned that the logic of the COM proposal
should be followed and that chemical treatments should be left out of the scope of CMC
2. CZ confirmed that the last sentence referring to alkali and acid treatment is their
biggest concern in this regard.
2.3. Total chromium
Pcy explained that the Council text has been revised in light of the latest discussion in the
CWP. The provision requiring producers to record the maximum quantity and source(s)
of total chromium in the technical documentation has been transformed into an obligation
to label the maximum concentration of total chromium if above 200 mg /kg dry matter.
HU, DK, EL, BE, FR, SK still favour a limit value for total chromium. However, FR and
BE as well as ES mentioned that they are still examining the Pcy proposal.
SE, PT reported preference to a limit value but would be ready to compromise and accept
the Pcy proposal.
UK, AT, LT, LV, CZ, DE, FI, PL commented that the Pcy proposal is a balanced
compromise between the need to inform farmers about the presence of contaminants and
the reservations expressed by some Delegations.
IT repeated its opposition to the introduction of any legal requirement concerning
maximum limits related to total chromium in fertilising products on the ground that the
legislation on organic farming includes only a limit for Cr (VI).
COM explained that it is unlikely that ingredients contaminated with total chromium will
find their way into Annex II in its current version. However, the COM intends to expand
the scope of Annex II notably through the introduction of animal by-products, struvite,
biochar and ash-based products. In developing recovery rules, JRC will verify whether
those materials are sufficiently safe to be used in the manufacture of CE marked
fertilising products.
Pcy asked Member States to send their final position in writing before Friday 13.10.2017.
2.4. Naturally occurring microorganisms
FR recalled its request to only allow the collection of naturally occurring microorganisms
in fertilising products. Pcy answered that a reference to Directive 2001/18/EC in the
'without prejudice list' of Article 1 would address the French concerns. FR explained that
some microorganisms obtained through new breeding techniques are exempted from the
scope of that Directive. Therefore, a mere reference to that Directive would not be
sufficient. COM replied that the revision of the Fertiliser Regulation should not be used
to stretch the definition of GMOs. Pcy agreed and recalled its proposal to include a
reference to Directive 2001/18/EC.
3.
DELEGATED ACTS
Pcy introduced its compromise option on delegated act. The objective of the Pcy was to
restrict as far as possible the possibility for the COM to amend the Annex I of the
Regulation while maintaining the possibility for the COM to include new component
materials categories in Annex II. The COM could only modify the content of Annex I as
a consequence of the addition of component materials in Annex II. In such a case, the
proposal suggests that the COM shall request the scientific opinion of the European Food
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Safety Authority. The table below summarizes the outcomes of the discussion. Where
necessary the positions of the Delegations are clarified after the table.
Scrutiny reservation Supportive of the Pcy proposal
Reject the Pcy proposal (the main
or no firm opinion
reason is given in brackets)
yet
LT
UK
NL/FI (The restriction is too strict and
would not allow the COM to keep
pace with innovation in the sector or
to introduce rapidly new limit values
for contaminants when new risks have
been identified.)
MT
LU
HR
SK
LV
IT/ES (would rather support a more
strict
restriction
of
the
COM
delegation of power but would be
ready to compromise and support the
Pcy proposal)
CY/HU/SV
(but EL
looks positively in
the Pcy proposal)
BE
IE
SE
DK
FI
PL
RO
FR
PT
BG
EE
DE/AT/CZ expressed concerns
about the role of EFSA in the
evaluation of the risks to
human
health
from
contaminants
present
in
fertilisers
SK, EL, DK, CZ, DE, AT questioned the competence of EFSA to evaluate the risks for
contaminants in fertilisers. SK, EL, DE asked whether the opinion of EFSA would be
binding for the COM. DK remarked that EFSA would not be competent to address the
risks of the presence of contaminants in fertilising products to the environment.
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COM explained that EFSA is an Executive Agency organising the works of scientific
advisory panels related to the safety of the food chain and that EFSA opinions are
therefore not legally binding. However, COM relies heavily on EFSA opinions that
identify risks for human health from the presence of contaminants in the food chain.
EFSA will not assess similar risks for the environment. Therefore, if required to consult
EFSA, COM would complement that consultation with another technical assessment,
probably by JRC. The Pcy proposal is not far from how the COM envisages adapting the
Annexes to technical progress by delegated acts. The COM had no intention in any event
to amend Annex I unless there would be enough new scientific evidence. But the
Commission's proposal is preferable, since it allows adaptation of the Annexes to
emerging issues with existing component materials.
NL supported the views of the COM and recalled that COM should only use its
empowerment based on solid risk assessments (Article 42 (4)). The COM shall also
consult Member States experts under Article 43(3a). Therefore, NL still firmly supports
the inclusion of Annex I in the COM delegation of power.
4.
CADMIUM LIMITS
Pcy introduced its compromise option on cadmium in fertilisers. Member States would
have to opt for one limit that would apply for their territory among a set of three possible
regulatory limit values. The Member States would have to inform the COM of the
applicable limit value. This information would be made available on a dedicated COM
website. The proposal was aimed at satisfying the Member States that expressed concerns
about the level of ambition and the Member States that expressed strong reluctance to
include binding limit values below 60 mg Cd/kg P2O5.
The Council LS explained why the proposal is legally sound even if it would not achieve
the objective of the full harmonisation in the short term. Article 114 specifies that the
Council and the EU Parliament
shall adopt the measures for the approximation of the
provisions laid down by law, regulation or administrative action in Member States which
have as their object the establishment and functioning of the internal market. The EU
Court of Justice ruled in case C-491/01 that Member States and the EU Parliament keep a
high level of discretion when harmonising the market for goods. In case C-547/14, the
Court accepted that harmonisation could be reached in several steps. In light of the
known Court cases, the Council LS concluded that the Council proposal is compatible
with the Treaty but did not rule out the possibility that the Court may have a different
opinion.
Pcy organised a tour de table the result of which is presented in the table below:
No official position yet or In favour of the Pcy Against the Pcy proposal
scrutiny reservation
proposal
MT, IE, CY, BE scrutiny LV, DK can support the LU, LT would prefer the
reservation
proposal only if a gradual COM proposal
reduction of the content of
cadmium
in
phosphate
fertilisers is the target.
NL can probably support the HU, SE, CZ, SV, FI, AT PL, ES, PT, RO continue
Pcy proposal but would would support the Pcy to support a unique limit of
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have preferred the COM proposal
as
it
seems 80 ppm. The proposal
proposal
impossible to reach a would fragment the EU
consensus on one- fits-all fertiliser market. A review
limit value. The Pcy is clause could be introduced.
certainly better than status
quo.
UK
formally
issued
a BG,EE
IT, EL, FR, DE, HR would
scrutiny
reservation,
but
only support a single limit
also
expressed
strong
value.
Most
probably
concerns
about
between 60 and 40ppm but
implementability
not below.
COM mentioned that this is not an encouragement for industry to develop decadmiation,
although companies could somehow be encouraged to produce fertilisers with less than
20 ppm, as that would give them access to the Single Market. The COM recalled that the
issue has been on the table for more than 30 years and that already the EU population is
at risk of over-exposure to cadmium through their diet. In response to questions from
delegations about legality and implementability, COM stated that its preliminary analysis
concurs with that of the Council's Legal Service. In other words, the question whether to
use this approach as a step towards harmonisation is a political choice not in
contradiction with the article 114 of the Treaty.
Pcy took notes of the results of the consultation and mentioned that a new compromise
text will be proposed by 13 October, based on the written inputs of the Member States.
The Pcy had not yet decided whether to present a compromise text (including the limit
value for cadmium) to COPERER before the end of October or to organise a last
technical meeting. The Council WP on 23.10.2017 is already cancelled.
Speaking for the Commission:
L.
Prista,
J.
Bernsel,
E.
Liégeois,
V.
Delvaux: GROW D2
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