Ref. Ares(2019)6338798 - 14/10/2019
COMMISSION EUROPÉENNE
SECRÉTARIAT GÉNÉRAL
Direction G
SG-G-1
Affaires horizontales et GRI (Groupe des Relations Interinstitutionnelles)
Bruxelles, le 13 octobre 2018
SI(2018) 522
GRI du 12 octobre 2018
point 3.1.
NOTE À L'ATTENTION DE MMES MM. LES MEMBRES DU GRI
Objet:
Proposition de règlement établissant les règles relatives à la mise sur le
marché des fertilisants porteurs du marquage CE et modifiant les
règlements (CE) n° 1069/2009 et (CE) n° 1107/2009 – 2016/0084 COD
(17.03.16) – rapport TURCANU
Mmes et MM. les membres du GRI trouveront en annexe une fiche préparée par la
DG GROW sous l'autorité du cabinet de Mme BIENKOWSKA et en accord avec le
cabinet de M. KATAINEN.
Annexe 1
SI(2018) 522
GRI MEETING OF 12 OCTOBER 2018
NOTE TO THE MEMBERS OF THE GRI
Subject:
Proposal for a Regulation on the making available on the
market of CE marked fertilising products and amending
Regulations (EC) No 1069/2009 and (EC) No 1107/2009
The fiche is proposed to prepare the Commission's position in
view of the forthcoming political trilogue on 22 October 2018
Ref.:
COM(2016) 157; 2016/0084(COD)
Procedure:
Ordinary legislative procedure
Council:
Working Party on Technical Harmonisation; COREPER I
Rapporteur(s):
Mihai ŢURCANU (EPP/RO), Elisabetta GARDINI (EPP/IT),
Jan HUITEMA (ALDE/NL)
Lead parliamentary committee:
Internal Market and Consumer Protection
(IMCO)
Associated parliamentary committees:
ENVI (contaminant limits including
cadmium)
AGRI
Former GRI fiches: SP(2017) 528, SI(2018) 15/2, SI(2018) 169/2, SI(2018) 248,
SI(2018) 320
PURPOSE OF THIS FICHE
The purpose of this fiche is to prepare the Commission's position
in the
forthcoming political trilogue on 22 October on cadmium limit values in
phosphate fertilisers, which remains the key political issue in this file.
This trilogue is likely to be the only opportunity to close the file under the
Austrian Presidency, and therefore probably under this Commission's mandate.
Therefore,
the Commission should continue facilitating a compromise
between the two co-legislators within the range of their two existing mandates,
in order to secure an agreement on the file and thus move away from
status quo where phosphate fertilisers with uncontrolled contaminant limits, including
cadmium, which in some cases by far exceed all the limit values contained in
those mandates, circulate freely on the single market by virtue of existing EU
harmonisation legislation.
In particular, the
Commission should actively argue in favour of what
currently appears like the best realistically achievable compromise for the
sake of protecting human health and the environment. This implies:
as of the date of application of the Regulation,
an initial limit value of
60 ppm,
followed by
a recital recalling
Member States’ prerogatives in accordance with
Article 114(4) TFEU to notify to the Commission existing national
provisions in view of maintaining those provisions for fertilisers produced in
the Member States or originating from other Member States if necessary on
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SI(2018) 522
grounds relating to the protection of human health or the environment, and to
make recourse to Article 114(5) to introduce new national provisions
.
In addition, the commission could in the spirit of compromise, while recalling
public health concerns, support
a limit value of 40 ppm,
applicable by default as of 6 years after the date of
application, and with a
requirement for the Commission to check the
feasibility of applying the 40 ppm limit well before the date of application of
it, and to put forward a legislative proposal to amend it in the event that the
outcome of the feasibility check should be negative; and accompanied by
a
labelling threshold of 20 ppm applicable as of the date of
application, i.e. as of 2020 at the earliest should also be promoted. This
would imply that fertilisers with no more than 20 ppm cadmium would be
eligible for a voluntary new harmonised “low cadmium”-label indicating that
the fertiliser has a cadmium content below 20 ppm.
Farmers would thus be
encouraged to use cleaner products.
It is suggested to the GRI to endorse the line as suggested in the present fiche.
1.
BACKGROUND
Please see the previous GRI fiches for this file with references:
i)
SP(2017) 528, prepared in view of the EP plenary debate and vote on
24 October 2017;
ii)
SI(2018) 15/2, prepared in view of the first political trilogue on
25 January 2018;
iii)
SI(2018) 169/2, prepared in view of the second political trilogue on
11 April 2018;
iv)
SI(2018) 248, prepared in order to prepare the Commission's position in
view of the forthcoming political trilogues and technical tripartite meetings;
v)
SI(2018) 320 prepared in view of the third political trilogue on 19 June
2018, as well as subsequent technical tripartite meetings.
2.
STATE OF PLAY OF TRILOGUE NEGOTIATIONS
Between the endorsement of the latest GRI fiche on 8 June 2018 and the time of
preparation of the current one:
o A
political trilogue took place on
19 June 2018 and reconfirmed that on all
issues
except cadmium, positions are close, and a landing zone acceptable
to all parties appears to be achievable;
o
In technical tripartite meetings of 25 June, 25 and 27 September 2018
with
the European Parliament’s IMCO Committee and the Austrian Council
Presidency, the co-legislators reached an agreement on most outstanding
technical issues. In particular, the European Parliament indicated
willingness to drop a number of technical amendments of concern to the
Council and the Commission, or to revise them to the satisfaction of the
other two institutions.
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SI(2018) 522
o
In the technical meeting on 26 September 2018 with the European
Parliament’s ENVI Committee and the Austrian Presidency, contaminant
limits were discussed with a particular focus on cadmium based on a non-
paper listing different regulatory options which could be considered in
order to reach a compromise (see below under section 4).
o The abovementioned non-paper was also discussed in
the Council
Working Party of 28 September 2018. The Austrian Presidency has asked
Member States for written comments on the non-paper by 4 October, and is
preparing new bilateral meetings with Member States.
o The
ENVI Committee had a Shadows meeting on 9 October.
o
A political trilogue is scheduled for
22 October 2018 where the
outstanding political issues will be discussed. Besides the limit values for
cadmium contamination, the co-legislators will also discuss the delegation
of powers and the Regulation’s application to industrial by-products.
o
On 24 October 2018, in COREPER, depending on the outcome of the
political trilogue meeting of 22 October, the Austrian Presidency could
submit their proposed compromise for approval.
3.
CADMIUM – GENERAL CONTEXT AND STATUS QUO
Cadmium is a toxic chemical. Food is the main source of exposure to cadmium in
the general population,1 and the
dietary exposure to cadmium of the European
citizen is often close to or above tolerable intake levels2. Once absorbed by the
human body, cadmium is efficiently retained and accumulates in the body
throughout life3.
It may cause cancer and damage to organs (in particular kidney
dysfunction and skeletal damage)4, and is suspected of causing genetic defects and
of damaging fertility and the unborn child5. The negative impacts of cadmium on
human health are gradual, and could appear only after 50 years of exposure.
Fertilisation with phosphate fertilisers is by far the main cause of cadmium-
contamination of agricultural soils in the EU.6 Cadmium is of no benefit to
plants, and its presence in phosphate fertilisers is only the result of use of
contaminated phosphate rock in the production process. The fertilisers sector is the
last major source of cadmium pollution for which cadmium limits have not yet
been established. A recital to the existing EU harmonisation legislation on
1
See the United Nations Environment Programme's Final review of scientific information on
cadmium of 2010, hereinafter 'UNEP 2010', published at
http://www.unep.org/hazardoussubstances/Portals/9/Lead_Cadmium/docs/Interim_reviews/UNEP_GC26_IN
F_11_Add_2_Final_UNEP_Cadmium_review_and_apppendix_Dec_2010.pdf
2
See the scientific report of the European Food Safety Authority on Cadmium dietary exposure in
the European population of 2012, hereinafter 'EFSA 2012', published at
https://www.efsa.europa.eu/sites/default/files/scientific_output/files/main_documents/2551.pdf
3
See EFSA 2012.
4
See UNEP 2010.
5
See ECHA's substance information published
at http://echa.europa.eu/substance-information/-
/substanceinfo/100.028.320.
6
See the study 'Revisiting and updating the effect of phosphate fertilizers to cadmium accumulation
in European agricultural soils' by Erik Smolders & Laetitia Six, commissioned by Fertilizers
Europe in 2013, published at
http://ec.europa.eu/health/scientific_committees/environmental_risks/docs/scher_o_168_rd_en.pdf
4
SI(2018) 522
fertilisers announces that the Commission intends to address the issue of cadmium
and other contaminants sometime in the future.
The existing EU harmonisation legislation on fertilisers (
status quo) sets no limit
for cadmium contamination. This means that
CE marked fertilisers with
uncontrolled cadmium content, which in some cases by far exceed all the limit
values discussed in the current regulatory procedure, can currently move
freely within the EU by virtue of European legislation
.
Three Member States have been allowed to impose limits for cadmium in
harmonised phosphate fertilisers: Austria (75 ppm), Sweden (44 ppm), and
Finland (22 ppm). Those Member States were granted derogation at the time of
their EU-accession for restriction of phosphate fertilisers with cadmium content
exceeding those limits. Because their national limit values were applicable before
the EU accession,
the derogations were extended in time based on notifications
approved by the Commission by virtue of what has now become Article 114(4)
of the Treaty).
Without prejudice to the following paragraph, which concerns
non-harmonised
phosphate fertilisers, other
Member States wanting to limit cadmium
contamination in harmonised phosphate fertilisers may no longer use
Article 114(4) of the Treaty to derogate from the existing Fertilisers
Regulation which dates from 2003, and are therefore allowed to do so only if
the strict conditions for derogations in Article 114(5) of the Treaty on the
Functioning of the European Union are fulfilled. Only one request for such
derogations has been submitted up to now: a request from Sweden to apply a lower
limit than under their existing derogation based on Article 114(4) TFEU), which
was however rejected by the Commission in the absence of new scientific evidence
relating to the protection of the environment or working environment
demonstrating that there is a specific problem within its territory.
In addition,
for non-harmonised phosphate fertilisers, the national legislations set:
o
No limit for cadmium contamination in 9 Member States (BG, ES, HR, IE,
IT, LU, MT, PT, UK);
o A limit
above 60 ppm in 4 Member States (AT, BE, FR, SI);
o A limit
between 40 ppm and 60 ppm in 10 Member States (CY, CZ, DE,
DK, EE, EL, LT, LV, RO, SE);
o A limit
below 40 ppm in 4 Member States (FI, HU, NL, SK), and
o A
limit value expressed in a different unit, which cannot meaningfully be
translated into the unit included in other Member States’ legislation or in
the Commission’s proposal, in one Member State (PL).
In this context,
the Commission adopted a proposal which, among other
important measures, includes a legally binding limit of 60 ppm for cadmium
contamination in phosphate fertilisers as of the date of application of the
Regulation, which is progressively reduced to 40 ppm after three years and
ultimately 20 ppm after 12 years from the date of application.
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SI(2018) 522
4.
STATE OF PLAY OF NEGOTIATIONS ON CADMIUM
The European Parliament’s position on cadmium limits for phosphate fertilisers
is closely aligned with the Commission's proposal, and introduces a limit of
60 ppm as of the date of application followed by 40 ppm after six years and an
ultimate limit of 20 ppm after 16 years.
The Council, on the other hand, has
proposed a single limit value of 60 ppm after 8 years without any further
reductions.
In the first half year of the trilogue discussions, during the spring of 2018, the
cadmium limits on phosphate fertilisers were barely discussed, either within or
between the two institutions. Instead, the Bulgarian presidency firmly insisted that
the Council position on cadmium was not negotiable, and that all its concessions to
the European Parliament on other issues were subject to the Parliament agreeing
with the Council position on cadmium.
In the political trilogue held on 19 June 2018, the IMCO Rapporteur
attempted to strike a deal with the Council Presidency on cadmium which was
very close to the Council’s position (a single limit value of 60 ppm without
further reductions, applicable from the date of application of the Regulation).
Following the ENVI Rapporteur’s statement that she did not have any mandate for
such an agreement on behalf of the ENVI Committee, the Chair of the meeting
declared that the agreement was not valid.
The technical level discussions on cadmium only really took off under
the
Austrian Presidency. They
have signalled and demonstrated a strong
commitment to arriving at a compromise acceptable to both the ENVI
Committee and a qualified majority of Member States. They have, however,
also consistently and clearly said that, due to other priorities, they will not have
time to work on this file after the end of October, and will therefore give it only one
attempt in political trilogue and COREPER.
The revived discussions on cadmium were facilitated by
the abovementioned
non-paper setting out a toolbox of regulatory solutions that could be combined
to address cadmium contamination in a manner satisfactory for both co-legislators.7
The non-paper is not indicating any limit values and lists seven elements,
sometimes with different options, as follows:
1. Flexibility as regards the timing of the application of the cadmium limit
values could be considered;
2. The intention at Union level to support decadmiation technologies and
innovation could be announced in a recital;
7 See the Annex to this fiche. The non-paper is merely an informal basis for discussions, and the
solutions suggested therein have not been endorsed by either the European Commission or the other
institutions. In the discussions on the non-paper, question marks have been raised about the legal
soundness of
1) allowing the Commission to postpone the date of application in a delegated act as under option 3
(as currently provided for by the European Parliament’s mandate), and of
2) allowing Member States to opt for predefined limit values as under option 7A and, in particular, to
grant unilateral derogations to Member States under option 7B.
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SI(2018) 522
3. The application of a lower cadmium limit value could be conditioned by
a mandatory feasibility reporting by the Commission, and an obligation
for the Commission to postpone the reduction or propose new limits if
appropriate;
4. A review clause announcing the intention to propose a reduction of the
limit values in future;
5. Different labelling thresholds;
6. The possibility to impose restrictions in the use of fertilising products;
and
7. Some flexibility in the harmonised limit values by, for instance,
allowing Member States to choose between three different predefined
values.
In addition to a large number of bilateral discussions, the compromise options have
been discussed in two important meetings:
The technical tripartite meeting
between the ENVI Committee, the Austrian Presidency and the Commission on
26 September 2018, and the
Council Working Party meeting on
28 September 2018.
It is
impossible to predict at this stage what the final agreement between the ENVI
Committee and the Council Presidency – if any – will be in the trilogue meeting of
22 October 2018.
Throughout the tripartite discussions, the Austrian Presidency has, based on their
bilateral discussions with Member States, made it very clear to the European
Parliament and the Commission that
the Council will never agree with a legally
binding limit value of 20 ppm.
Based on the Council Working Party meeting of 28 September 2018, we believe
that the Austrian Presidency is trying to get qualified majority support in the
Council for a compromise which would
retain the first limit of 60 ppm and
introduce a second limit of 40 ppm somewhere in the future, subject to some
kind of review clause or feasibility safeguard clause, or a combination of both
(options 3 and 4 set out in the abovementioned non-paper). In their view, that
would amount to something which is very close to the review clause already
included in the Council’s negotiation mandate, but with the difference that a second
limit of 40 ppm would apply after a long transitional period, and by default unless
the Council and the European Parliament would change it based on a proposal from
the Commission before its date of application for reasons of feasibility. At this
stage, however,
many Member States still strongly insist on a single limit of
60 ppm, some arguing that this was already a compromise for them and that they
would have preferred 80 ppm. Others – in particular those who have advocated low
limits in the past – appear more open to accepting a compromise along the lines
suggested by Austria. Others still believe that the solution lies in different limits
throughout the EU, or national derogations from a nominally harmonised limit.
The
ENVI Committee has taken note of the Presidency’s exclusion of a 20 ppm
limit, and signalled its willingness to examine various compromise options, without
expressing any clear preference for either of them. In the abovementioned
Shadows’ meeting of 9 October, a suggestion was put forward by some of the
Shadows for a new negotiation position which would contain a second limit value
of 40 ppm only subject to a feasibility safeguard clause, and only a review clause
7
SI(2018) 522
envisaging a possible future third limit of 20 ppm. The ENVI Rapporteur
undertook to examine this proposal. We believe that they
may ultimately be ready
to accept that 20 ppm is not included as a limit at all, but used either as a
threshold for a “low cadmium” label, or as an objective for future reductions in a
recital or review clause, or both. The bottom line of the ENVI Committee appears
to be that the legal text must provide for a future limit value which will lead to
meaningful reductions of cadmium contamination of phosphate fertilisers. That
would be the effect of a limit value of e.g. 40 ppm.
5.
PROPOSED COMMISSION POSITION ON CADMIUM LIMITS
In line with the position approved in note SI(2018) 320,
the Commission’s
priority should be to facilitate an agreement on the file, in particular since the
risk of stalemate, despite recent progress, is still tangible. If the file would
reach stalemate because of lack of agreement on the cadmium limits, there would
be significant negative consequences:
o
An important part of fertilisers' market would remain non-harmonised
– the organic fertilisers. They cover a share of around 50% of the whole
fertilisers market in EU. The current proposal would remove significant
market entry barriers for innovative organic fertilisers manufactured from
biomass, by-products and recovered bio-waste available in abundance in
Europe. The market for those organic fertilisers currently suffers from a
competitive disadvantage in relation to fertilisers from mined and fossil raw
materials, since only the latter benefit from free movement on the single
market by virtue of existing European product harmonisation legislation.
o
The harmonised phosphate fertilisers would continue to move freely on
the single market not only without any limit for cadmium, but also
without any limits for other contaminants (arsenic, copper, zinc, mercury,
etc.).
The proposal on the other hand, once adopted, would introduce limits
for other contaminants, too, which are not as controversial.
o The alignment of the existent Regulation with the New Legislative
Framework8 and therefore
the considerable simplification of the
applicable legislation for mineral fertilisers, would be lost or at least
significantly postponed.
o Being the
first deliverable of the Circular Economy Action Plan, the
stalemate of the file would affect the credibility of the Commission in
implementing this Action Plan.
The case for
introducing limit values for cadmium in phosphate fertilisers
remains clear. However,
the trilogue scheduled on 22 October 2018 is likely to
be the last window of opportunity to close negotiations in the file under the
Austrian Presidency, and therefore probably under
the current Commission's
mandate. Therefore, the mandate of the Commission should allow it to support the
European Parliament and the Council in finding any compromise within the range
8 Regulation (EC) No 765/2008 setting out the requirements for accreditation and market surveillance
relating to the marketing of products and Decision 768/2008/EC on a common framework for the
marketing of products.
8
SI(2018) 522
of their current negotiation mandates on cadmium, since a suboptimal deal within
that range is better than no deal at all.
That is because
the current status quo is that harmonised phosphate fertilisers
move freely on the single market with uncontrolled cadmium content, which
in some cases by far exceed all the limit values contained in those negotiation
positions, despite the on-going cadmium accumulation in European agricultural
soils. From this perspective
a limit – even if of 60 ppm, which according to our
latest best estimations would not be met by around 9% of the phosphate fertilisers
currently sold in European Union9, and which is lower than the limit applied by
13 Member States for non-harmonised fertilisers – is better than no limit at all. It
would, however, not affect the estimated 81 % of phosphate fertilisers with a
contamination below that level, and therefore only have a limited effect in reducing
cadmium contamination or incentivising the industry to invest in decadmiation
technology.
This being said,
the Commission should steer the discussions towards the best
realistically foreseeable compromise. The on-going discussions, in particular in
the technical tripartite meeting on 26 September, clearly indicated that the
introduction of a 20 ppm limit value as in the Commission's proposal is not a
realistic option to reach a compromise. The Commission should therefore
recall the public health concerns resulting from the high exposure to cadmium of
the European population, and particularly of children, which was confirmed by
EFSA opinion
actively argue in favour of the introduction of a limit value applicable as of the
date of application of the Regulation, which realistically means around three
years after the adoption,
i.e. as of 2022 at the earliest, and, in case of convergence
of views of the co legislators, not oppose the 60 ppm,
actively argue that this first value should be followed by
an ultimate cadmium
limit value of 40 ppm after a transitional period of up to 6 years after the date of
application, and, if needed, with the possibility of checking again the feasibility of
the limit before applying it. Based on the current discussions, if necessary to
achieve a compromise, agrees to a limit value of 40 ppm, this seems the
compromise closest to the Commission's initial proposal.
The 40 ppm legally binding limit would imply a significant improvement
compared to the current status quo. The
status quo is that:
o Harmonised phosphate fertilisers move freely without any cadmium
contamination limit at all, in principle; out of the three Member States
with a derogation allowing them to limit cadmium, only Finland has a
limit lower than 40 ppm, i.e. 22ppm;
o On non-harmonised phosphate fertilisers, only four Member States (FI,
HU, SK and NL) apply limits lower than 40 ppm.
A 40 ppm limit of cadmium
would require specific efforts by the EU fertiliser
industry, since it would affect 31 % of the currently available phosphate fertilisers
9 Study by Professor Smolders, Leuven University, 2016
http://www.europarl.europa.eu/RegData/etudes/IDAN/2016/595354/IPOL_IDA%282016%29595354_EN.pdf
9
SI(2018) 522
in the market.10 Such a limit would therefore provide an incentive for further
investments in the commercial use of available decadmiation technologies and
their further developments. According to industry, some promising techniques
have been developed at pilot scale, but still need to be fine-tuned to increase costs
efficiency.
Furthermore, a lower limit of 40 ppm may also be achieved by a mixture of
phosphate rock from different sources and/or the blending of conventional mineral
fertilisers with
organic fertilisers that are much less contaminated with
cadmium, for instance recovered phosphates from waste water or treated
livestock manure. This would facilitate such a shift towards more sustainable
fertilising products, which is a key objective of the Circular Economy Action Plan.
The
40 ppm limit value could be applicable as of 6 years from the date of
application of the Regulation, which with the deferred application of the
Regulation proposed by the European Parliament and the Council would mean
around 9 years after the date of adoption,
i.e. as of 2028 at the earliest. In order to
have the intended effect of steering technology development towards cleaner
products, the limit should be applicable by default. It could however be
accompanied by a
feasibility safeguard clause (see option 3 in the non-paper) or
other similar clause.
A
labelling threshold at 20 ppm, applicable as of the date of application, i.e. as
of 2020 at the earliest should also be promoted. This would imply that
fertilisers with no more than 20 ppm cadmium would be eligible for a
voluntary new harmonised “low cadmium”-label indicating that the fertiliser
has a cadmium content below 20 ppm. Farmers would thus be encouraged to
use cleaner products.
Finally, in order to accommodate the concerns of the many Member States that
have and wish to maintain national cadmium limit values for phosphate fertilisers
below 60 ppm, which is the initial limit value in the positions of all three
institutions,
the Commission should actively promote the introduction of a
recital recalling Member States’ prerogative to make, if necessary,
a
notification to the Commission according to Article 114(4) TFEU about
existing national provisions with a view to maintaining those provisions on
grounds relating to the protection of human health or the environment. The recital
should also echo the possibility to make recourse to Article 114(5).
Such a recital could read along the following lines: “
Several Member States have
in place national provisions limiting the presence of cadmium in phosphate
fertilisers on grounds relating to the protection of human health and of the
environment. Should a Member State deem it necessary to maintain such
provisions after the adoption of harmonised limits through this Regulation, and
until the harmonised limits are equal to or lower than the national limits
already in place, it could notify them to the Commission by virtue of
Article 114(4) of the Treaty on the Functioning of the European Union for the
Commission’s verifying according to Article 114(6) of the Treaty whether or not
they are a means of arbitrary discrimination, a disguised trade restriction or an
10 Study by Professor Smolders, Leuven University, 2016,
http://www.europarl.europa.eu/RegData/etudes/IDAN/2016/595354/IPOL_IDA%282016%29595354_EN.pdf
10
SI(2018) 522
obstacle to the functioning of the internal market. Furthermore, based on the
provision of Article 114 (5) TFEU, should a Member State deem it necessary to
introduce new national provisions based on new scientific evidence relating to
the protection of the environment or the working environment on grounds of a
problem specific to that Member State arising after the adoption of this
Regulation, it could notify the Commission of the envisaged provisions as well as
the grounds for introducing them.”
6.
RECOMMENDATION TO THE COMMISSION
It is suggested that the GRI recommends to the Commission to adopt on
cadmium limit values in phosphate fertilisers the position reflected in this
fiche, namely:
Continue facilitating a compromise between the two co-legislators, in order
to secure an agreement on the file within the range of their two existing
mandates, and thus move away from
status quo where phosphate fertilisers with
uncontrolled cadmium content, which in some cases by far exceed all the limit
values contained in those mandates, circulate freely on the single market by virtue
of existing EU harmonisation legislation.
In particular
actively argue in favour of what currently appears like the best
realistically achievable compromise for the sake of protecting human health
and the environment. This implies the following compromise:
as of the date of application of the Regulation, an initial limit value of
60 ppm, followed by
a limit value of 40 ppm applicable by default as of 6 years after the date of
application, and
with a requirement for the Commission to check the
feasibility of applying the 40 ppm limit well before the date of application
of it, and to put forward a legislative proposal to amend it if the outcome of
the feasibility check should be negative; and accompanied by
a
labelling threshold of 20 ppm,
applicable as of the date of
application, i.e. as of 2020 at the earliest should also be promoted. This
would imply that fertilisers with no more than 20 ppm cadmium would
be eligible for a voluntary new harmonised “low cadmium”-label indicating
that the fertiliser has a cadmium content below 20 ppm.
Farmers would
thus be encouraged to use cleaner products.
a recital recalling
Member States’ prerogative, if necessary,
to make a
notification to the Commission according to Article 114(4) TFEU about
existing national provisions with a view
to maintaining those provisions
on grounds relating to the protection of human health or the environment
.
The recital should echo also the possibility to make recourse to
Article 114(5).
7.
OFFICIALS RESPONSIBLE
Johanna BERNSEL (phone: 86699), Ana-Lucia CRIȘAN (phone: 50480), Ioanna
VASILAKI (phone: 63976), Victor-Alexandru ZAMFIRESCU (Phone: 81578),
Theodora NIKOLAKOPOULOU (PHONE: 82031), GROW D.2
11
Annex
Non-Paper
Cadmium limits in phosphate fertilisers – different options
The proposal for a new Regulation11 on fertilising products1 includes setting
legally binding
limit values for cadmium that can be expected to meaningfully reduce the current pace of
cadmium pollution of European Union soils by phosphate fertilisers.
The options are based on previous discussions in the legislative process, as well as solutions
in other legislative files. The added value of some of the options below depends on the
cadmium limit values agreed upon. Most of the options can, in theory, be combined.
To facilitate the conceptualisation of the ideas in this position paper, the letters X, Y and Z
represent numbers for limit values, where X is a high number, Y is a lower number, and Z is
the lowest number.
1. Flexibility on the timing for the application of different limit values
Flexibility as regards the timing of the application of the various cadmium limit values
could be considered (rows 558-560 and 597-599).
Annex I – PFC 1(B) and 1(C)(I):
Contaminants must not be present in the CE marked fertilising product by more than the
following quantities:
(a) Cadmium (Cd)
(…)
(2) Where the CE marked fertilising product has a total phosphorus (P) content of 5 %
phosphorus pentoxide (P2O5)-equivalent or more by mass ('phosphate fertiliser'):
• As of [Publications office, please insert [A] years after the date of entry into force of this
Regulation]: [X] mg/kg phosphorus pentoxide (P2O5),
• As of [Publications office, please insert the date occurring [B] years after the date of
application of this Regulation]: [Y] mg/kg phosphorus pentoxide (P2O5), and
• As of [Publications office, please insert the date occurring [C] years after the date of
application of this Regulation]: [Z] mg/kg phosphorus pentoxide (P2O5).
2. Support for de-cadmiation
The intention at Union level to support de-cadmiation technologies and innovation could
be re-announced in a recital (see row 23) or in a declaration.
(8b) In order to facilitate the compliance of the phosphate fertilising products with the
requirements of this Regulation and to boost innovation, sufficient incentives should be
provided for the development of relevant technologies, particularly decadmiation technology,
and for the management of cadmium-rich hazardous waste by means of relevant financial
resources such as those available under Horizon Europe, LIFE programmes, the Circular
Economy Finance Support Platform or through the European Investment Bank (EIB). Those
incentives should target cadmium removal solutions that are economically viable on an
industrial scale and allow appropriate treatment of the waste generated.
11 1 COM(2016)0157 – C8 – 0123/2016 – 2016/0084(COD).
SI(2018) 522
3. Safeguard feasibility clause
The application of an ultimate, low cadmium limit value could be conditioned by a
mandatory feasibility reporting by the Commission, and an obligation for the
Commission to postpone or even propose to undo the reduction if appropriate for
reasons of feasibility (row 390).
This kind of provision has already been used in the field of chemical legislation12.
A postponement could be made either through a delegated act, as proposed in row
390, or through the ordinary legislative procedure, while a repeal of the provision
setting the ultimate limit value could be done via ordinary legislative procedure.
Article 42
Delegation of powers
The Commission shall be empowered to adopt delegated acts in accordance with Article 43
to postpone the date of application of the [Z] mg/kg limit referred to in Annex I, part II,
PFC1(B), point 3, point (a), point 2 and Annex I, part II, PFC1(C)I, point 2, point (a), point
2, [with a period of up to [n] years] if, based on a thorough impact assessment, there are
grounds to consider that the application of that limit would seriously jeopardise the supply of
fertilising products to the Union.
Or:
Article 48a or separate paragraph in Article 48
1. By [Publications office, please insert the date occurring [C-5 years] after the date of
application of this Regulation], the Commission shall evaluate whether the value limit of [Z]
mg/kg set out in Annex I part II, PFC1(B), point 3, point (a), point 2 and Annex I, part II,
PFC1(C)I, point 2, point (a), point 2 for phosphate fertilisers should be modified. That
assessment shall include an analysis of the impact on the environment, human and animal
health, as well as on industry and farmers of cadmium limit values in phosphate fertilisers
above and below [Z] mg/kg, taking into account matters including accumulation of cadmium
in soil caused by phosphate fertilisers, cost, availability of raw materials, and effectiveness of
decadmiation technologies including waste management. The Commission shall submit that
assessment to the European Parliament and to the Council.
2. In addition, if the Commission, on the basis of the assessment referred to in paragraph 1,
considers that this limit value for cadmium in phosphate fertilisers requires revision, it shall,
by [Publications office, please insert the date occurring [C-4] years after the date of
application of this Regulation], present an appropriate legislative proposal. Unless the
European Parliament and the Council, on the basis of such a proposal, decide otherwise by
[Publications office, please insert the date occurring [C-2] years after the date of application
of this Regulation], the limit value of [Z mg/kg] shall be applicable from the date set out in
that Annex.
4. Review clause
If the ultimate limit value agreed upon in the course of this legislative procedure is higher
than Z, the commitment to further reduce the cadmium limit value in the future could also be
12 See Article 16(1) of Regulation (EC) No 468/2004 of the European Parliament and of the Council of 31
March 2004 on detergents (OJ L104 8.4.2004, p. 1).
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SI(2018) 522
included. This could be subject to a review carried out by the Commission by a certain date,
and imply providing an obligation to propose the reduction if appropriate and feasible (rows
86, 443 and 447). Such a provision could set a clear direction towards further reductions as
soon as lower limit values are achievable.
Article 47a
Review
By [Publication office, please insert the date [D years] after the entry into force of this
Regulation], the Commission shall carry out a review of limit values for cadmium content in
phosphate fertilisers, with a view to assessing the feasibility of reducing those limit values [to
a lower appropriate level taking into account available scientific evidence on cadmium
exposure and accumulation in the environment]/[towards [Z] mg/kg]. This review shall be
accompanied, if appropriate, by a legislative proposal.
5. Labelling requirements
One or both of the following options below could be considered:
A. Mandatory labelling threshold
The limit values X and Y ppm could be complemented by a labelling threshold at
Z
ppm meaning that any phosphate fertilisers with a cadmium contamination above Z
ppm will need to expressly mention it on the label. In order to prevent that the
manufacturer has to indicate the exact cadmium content in all his products, he could
be allowed to indicate a cadmium content that his product certainly does not exceed,
i.e. the “maximum” cadmium content.
Annex III, PFCs 1(B) and 1(C)(I):
Where the EU fertilising product has a total phosphorus (P) content of 5% phosphorus
pentoxide (P2O5)-equivalent or more by mass (‘phosphate fertiliser’), the maximum
cadmium (Cd) content in mg/kg phosphorous pentoxide (P2O5) shall be declared whenever
it is higher than [Z] mg/kg.
B. Voluntary "Low Cadmium" Label (inspired by row 1223)
The limit values X and Y ppm could be complemented by the possibility that any
phosphate fertiliser with a cadmium contamination below Z ppm may have on the
label the statement “Low cadmium (Cd) content”.
Annex III, PFCs 1(B) and 1(C)(I):
The information may contain the statement “Low cadmium (Cd) content" or similar, or a
visual representation to that effect, only if the fertilising product has a content of cadmium
(Cd) lower than [Z] mg/kg phosphorous pentoxide (P2O5).
6. General provision on the use of fertilisers
Member States may maintain or adopt provisions in compliance with the Treaties
concerning the use of EU fertilising products for the purpose of protecting human
health and the environment – row 146. Limitations in the maximum amount of both
mineral and organic fertilisers to be applied on land are already provided in Member
States, for instance in application of Council Directive 91/676/EEC of 12 December
1991 concerning the protection of waters against pollution caused by nitrates from
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SI(2018) 522
agricultural sources. However, such restrictions should not constitute an obstacle to
the placing on the market or the circulation of compliant fertilising products.
Article 3
Free movement
This Regulation does not prevent Member States from maintaining or adopting provisions
which are in compliance with the Treaties, concerning the use of CE marked fertilising
products for the purpose of protecting human health and the environment, provided that those
provisions do not require modification of CE marked fertilising products which are in
compliance with this Regulation and provided that they do not influence the conditions for
making them available on the market.
7. Flexibility of the harmonised limit values
To ensure that the limit values are adapted to the specific situation in each Member State, the
one of the two options below could be considered:
A. The possibility to opt for predefined limit values
The new Regulation could define a maximum level of X ppm for the entire EU, and
Member States could be allowed to establish a lower limit by choosing from two
possible values (Y or Z ppm). Fertilisers would be labelled with the information of
which limit value they comply with and would circulate freely in all Member States
which notify a limit value equal or higher.
It could also be considered to set the normal upper limit for cadmium in phosphate
fertilisers at Y ppm after an appropriate transition period and allow Member States to
opt for setting a higher limit of X or a lower limit of Z.
Recital (8)
Contaminants in CE marked fertilising products, such as cadmium, can potentially pose a
risk to human and animal health and the environment as they accumulate in the environment
and enter the food chain. Their content should therefore be limited in such products. As
regards cadmium in phosphate fertilisers, in view of the fragmentation of limit values for
non-harmonised fertilisers throughout the European Union and the wide variety of desired
limit values for harmonised fertilisers, and in order to approximate the rules as far as
possible, Member States should choose between one of three limit values. The possibility for
Member States to choose one of three limit values for cadmium content in phosphate
fertilisers contributes to the elimination of obstacles to the free movement of fertilising
products, and should be seen as a stage towards a single harmonised limit value at a later
stage.
[The rest of the existing Recital 8 could be moved to a new Recital (8a)]
Article 3a
1. Where a CE marked fertilising product has a total phosphorus (P) content of 5%
phosphorus pentoxide (P2O5)-equivalent or more by mass Member States shall set one of the
following limit values for cadmium (Cd) content:
a) [X] mg/kg phosphorus pentoxide (P2O5), or
b) [Y] mg/kg phosphorus pentoxide (P2O5), or
c) [Z] mg/kg phosphorus pentoxide (P2O5).
2. Member States shall notify to the Commission all measures setting the selected limit value
for cadmium at least six months in advance of the applicability of the respective limit value.
3. The Commission shall make publicly available an updated list of the limit values for
cadmium content applicable in each Member State as notified in accordance with paragraph
2.
Article 9
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2a. Before making a CE marked fertilising product available on the market distributors shall
verify that the cadmium content in the product does not exceed the limit value established in
accordance with article 4 in the Member State in which the EU fertilising product is made
available on the market.
Annex I, PFCs 1(B) and 1(C)(I):
Contaminants must not be present in the CE marked fertilising product by more than the
following quantities:
(a) Cadmium (Cd)
(ii) Where the CE marked fertilising product has a total phosphorus (P) content of 5 %
phosphorus pentoxide (P2O5)-equivalent or more by mass ('phosphate fertiliser'), the Cd
content shall not exceed the limit value established in the Member State where the product is
placed on the market in accordance with Article 3a.
Annex III, PFCs 1(B) and 1(C)(I):
2ca. Where the CE marked Fertilising product has a total phosphorus (P) content of 5%
phosphorus pentoxide (P2O5)-equivalent or more by mass, the information of whether the
product complies with the limit value for cadmium content of [X] mg/kg phosphorus
pentoxide (P2O5) or [Y] mg/kg mg/kg phosphorus pentoxide (P2O5) or [Z] mg/kg mg/kg
phosphorus pentoxide (P2O5).
B
. Derogations for certain Member States
Based on Article 114 TFEU directly, interested Member States are allowed to request
derogations for maintaining or introducing lower limit values for cadmium
contamination to CE marked phosphate fertilisers until the harmonised limits are
equal or lower, taking into account their specific circumstances (such as soil or
climate conditions). Derogations can however be granted only under the strict
conditions in the Treaty and following the procedure set therein.
The 4-coulumn table includes different options on maintaining or introducing
derogations to the harmonised limit value for cadmium in the Regulation itself:
Derogation for Member States which already have a derogation from the existing
rules based on the Treaty – row 145;
Derogation for Member States which already apply stricter national limits – row
446.
However, it could be argued that a Regulation cannot automatically maintain or introduce
derogations which normally are granted based on the Treaty, in the conditions and following
the procedure set therein.
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