EXPLANATORY MEMORANDUM

1.CONTEXT OF THE DELEGATED ACT

Article 1 of Regulation (EU) 2019/1021 (‘POP Regulation’) 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.

Pentachlorophenol (PCP) and its salts and esters are listed in Annex I to the POP Regulation without an Unintentional Trace Contaminant (UTC) limit value. PCP was mainly used in the EU as pesticide. At the time of the listing in the POP Regulation, it was considered that no limit value was needed because it was not expected to find PCP in mixtures and articles. The Commission, ECHA and some Competent Authorities of the Member States for the POP Regulation have recently received inquiries concerning a limit value for the presence of PCP in articles. Such requests seem to relate to its presence in recovered wood chips for the production of wood panels and in imported textiles. The lack of a specified UTC limit value results in legal uncertainty since stakeholders do not know whether a limit value applies nor which value. The absence of a limit value would be interpreted as if the limit of detection applies, which would be so low that it would create problems in some cases, for example preventing the placing on the market of articles produced from recycled wood chips.

In view of the currently available information, the setting of a limit value for the presence of PCP as Unintentional Trace Contaminant (UTC) in substances, mixtures or articles is considered appropriate. Such UTC would clarify the legal situation and would facilitate the enforcement.

Based on the available information, that limit value should be set at 5 mg/kg (0,0005 % by weight) for the presence of PCP as UTC in substances, mixtures and articles.

2.CONSULTATIONS PRIOR TO THE ADOPTION OF THE ACT

The draft amendment was consulted with an expert group (the 'POP CA meeting') on 9 June 2020 and 24 November 2020 and comments were taken into account. 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 1 to 29 September 2020. All comments received supported the amendment.

3.LEGAL ELEMENTS OF THE DELEGATED ACT

The delegated act amends the entry for pentachlorophenol and its salts and esters in Annex I to Regulation (EU) 2019/1021 in order to adapt it to scientific and technical progress. The legal basis for the proposed delegated act is Article 15(1) of Regulation (EU) 2019/1021.

COMMISSION DELEGATED REGULATION (EU) …/...

of 16.12.2020

amending Annex I to Regulation (EU) 2019/1021 of the European Parliament and of the Council on persistent organic pollutants as regards pentachlorophenol and its salts and esters

(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 pollutants 1 , 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 Pollutants 2 and under the Protocol on Persistent Organic Pollutants to the 1979 Convention on Long-Range Transboundary Air Pollution 3 .

(2)Pursuant to Article 3(1) of Regulation (EU) 2019/1021, the manufacturing, placing on the market and use, whether on their own, in mixtures or in articles, of substances listed in Annex I to that Regulation are prohibited, subject to Article 4 of that Regulation.

(3)Pentachlorophenol and its salts and esters are listed in Annex I to Regulation (EU) 2019/1021 without an Unintentional Trace Contaminant (UTC) limit value.

(4)Article 15(1) of Regulation (EU) 2019/1021 empowers the Commission to adopt delegated acts to modify existing entries of Annex I to adapt them to scientific and technical progress.

(5)The Commission has determined the presence of pentachlorophenol and its salts and esters as an impurity in some articles, including imported textiles and recovered wood chips for the production of wood panels.

(6)To allow the continuation of recycling of wood chips and to facilitate enforcement, a UTC limit of 5 mg/kg (0,0005 % by weight) should be set for pentachlorophenol and its salts and esters.

(7)Regulation (EU) 2019/1021 should therefore be amended accordingly,

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, 16.12.2020

(1)    OJ L 169, 25.6.2019, p. 45.

(2)    OJ L 209, 31.7.2006, p. 3.

(3)    OJ L 81, 19.3.2004, p. 37.

ANNEX

In Part A of Annex I to Regulation (EU) 2019/1021, in the fourth column (‘Specific exemption on intermediate use or other specification’) of the entry for pentachlorophenol and its salts and esters, the following text is added:

‘For the purposes of this entry, point (b) of Article 4(1) shall apply to concentrations of pentachlorophenol and its salts and esters equal to or below 5 mg/kg (0,0005 % by weight) where they are present in substances, mixtures or articles.’.