2003/1/EC: Commission Decision of 18 December 2002 relating to national provisions on limiting the importation and placement on the market of certain NK fertilisers of high nitrogen content and containing chlorine notified by France pursuant to Article 95(5) of the EC Treaty (Text with EEA relevance) (notified under document number C(2002) 5113)

• Articles: 2

Article 1

The national provisions on limiting the importation and placement on the market of certain NK fertilisers of high nitrogen content and containing chlorine which meet the definition of EC fertilisers and the requirements of Directive 76/116/EEC notified by France pursuant to Article 95(5) of the EC Treaty are rejected.

Article 2

This Decision is addressed to the French Republic.

Done at Brussels, 18 December 2002.

For the Commission

Erkki Liikanen

Member of the Commission

(1) OJ L 24, 30.1.1976, p. 21.

(2) OJ L 18, 23.1.1999, p. 60.

(3) The term "EEC fertiliser" set out in Directive 76/116/EEC was replaced by the term "EC fertiliser" by Directive 97/63/EC (OJ L 335, 6.12.1997, p. 15).

(4) OJ L 250, 23.9.1980, p. 7.

(5) COM(2001) 508 final (OJ C 51 E, 26.2.2002, p. 1).

(6) See Articles 25 to 28 of the proposal for a regulation.

(7) Council Document No 12179/02.

(8) Following the notification, France adopted and published the planned measures. This measure is the subject of a separate procedure.

(9) The first of these regulations was Regulation (EC) No 2022/95 (OJ L 198, 23.8.1995, p. 1) imposing anti-dumping duties on ammonium nitrate originating in Russia. Currently, Regulation (EC) No 132/2001 (OJ L 23, 25.1.2001, p. 1) imposing anti-dumping duties on ammonium nitrate originating in Poland and Ukraine and Regulation (EC) No 658/2002 (OJ L 102, 18.4.2002, p. 1) imposing anti-dumping duties on ammonium nitrate originating in Russia are in force.

(10) See page 2 of the French argument.

(11) One of the tasks entrusted to this body is to ensure that products placed on the market comply with the regulations in force.

(12) In 2000 and 2001, in its Bordeaux laboratory, the DGCCRF analysed 126 samples of "NK fertiliser 32-0-5" (the designation under which the large majority of these NK fertilisers is imported). Of these 126 samples, the nitrogen and potassium content of only three matched that stated by the importer, within the tolerances set by Directive 76/116/EEC. The average nitrogen content was 29,94 %, with actual content varying from 24,10 % to 33 %, with a standard deviation of 1,413 %. Average potassium content was 7,24 %, with actual content varying from 3,3 % to 21,3 %, with a standard deviation of 2,714 %. Lastly, the potassium content of 13 of the 126 samples was below 5 %, the minimum required content for compound EC NK fertilisers.

(13) See page 8 of the French argument.

(14) See Louis Médard, Les explosifs occasionnels, (translated as Accidental Explosives), Techniques et documentation, 1979, p. 664 (See recital 34 of this Decision).

(15) See page 8 of the French argument.

(16) The Committee on Explosive Substances was created by a 1961 decree and is made up of representatives from the various administrative bodies concerned and individuals appointed due to their competence in the field of explosives. One of its tasks is to draw up opinions or recommendations on any questions regarding explosive substances which are referred to it by the Minister for Industry.

(17) The Committee on Explosive Substances' recommendation is attached to the French argument.

(18) See page 9 of the French argument.

(19) See Louis Médard, op. cit., p. 665.

(20) See Louis Médard, op. cit., p. 664.

(21) See page 14 of the French argument.

(22) See page 14 of the French argument.

(23) See footnote 8 of this Decision.

(24) See recital 41 of this Decision and, in particular, footnote 32.

(25) See, in particular, recital 27 of this Decision and footnote 12.

(26) See page 15 of the French argument, where, with regard to this point, the French authorities refer to Louis Médard, op. cit., p. 666.

(27) See page 15 of the French argument.

(28) See page 15 of the French argument.

(29) See pages 15 and 16 of the French argument.

(30) See page 3 of the French argument.

(31) See recital 24 of this Decision.

(32) The French authorities attached a web page of advertising from WCIB - France Appro Fertiliser and Pesticide World Market which includes among the items for sale: "blend NPK fertilisers on basis of ammonium-nitrate 34,5 % with add of P or K in order to not pay anti-dumping duty. Standard formulation 32/00/05."

(33) The French authorities refer specifically to the following publications: 'The FMB Fertiliser Europe Report', 16 February 2000, p. 2; 'Fertiliser Europe', 22 January 2001, p. 2; 'FMB Consultants', 11 January 2002, p. 2.

(34) See page 4 of the French argument.

(35) This book is a summary of work carried out on the subject. It should be pointed out that, when developing his arguments, Louis Médard uses "NPK fertilisers" as a generic term, i.e. it covers the various types of compound fertilisers, with NK fertilisers thus treated as a subcategory of NPK fertilisers.

(36) See Louis Médard, op. cit., p. 663 and 664.

(37) See Louis Médard, op. cit., p. 664 and 665.

(38) With a copper content of only 0,01 % to 0,03 %, fertilisers which are not subject to cigar-burning without copper can propagate the deflagration at 6 cm/h to 10 cm/h. A fertiliser containing 0,3 % copper can reach speeds of 50 cm/h to 100 cm/h. This raises the question of whether it is wise to add copper to NPK fertilisers, with the exception of those which contain practically no chlorine. See Louis Médard, op. cit., p. 669.

(39) See Louis Médard, op. cit., p. 667 to 669.

(40) See Louis Médard, op. cit., p. 673.

(41) In his book, Louis Médard describes the first accidents caused by self-sustained combustion of NPK fertilisers, prior to coming to the conclusion that these accidents demonstrate that many types of NPK fertilisers are subject to easily-triggered "cigar-burning". See Louis Médard, op. cit., p. 666 and 667.

(42) See Louis Médard, op. cit., p. 674 and 675.

(43) OJ C 188, 8.8.2002, p. 3.

(44) In the meantime, France had introduced the notified national measures into its internal law, without waiting for the Commission to adopt a decision regarding the French request for a derogation. The Commission is examining this situation under a separate procedure.

(45) See recital 7 of this Decision.

(46) The explanations of the specific problem which are included in the French argument are repeated in their entirety in recitals 39 to 41 of this Decision.

(47) See page 14 of the French argument.

(48) See recital 23 of this Decision.

(49) It should be pointed out here that Directive 76/116/EEC does not specify the form in which nitrogen or phosphate should be included in compound fertilisers either.

(50) See recital 4 of this Decision.

(51) See Louis Médard, op. cit., p. 653.

(52) See recital 41 of this Decision.

(53) See recital 41 of this Decision.

(54) Thus, The FMB Fertiliser Europe Report dated 16 February 2000, p. 2, states that "Traders have been importing a fair amount of blended Russian 32-0-5 but French customs are proving very tough on controlling the product with anything found to have less than 5 % K2O deemed to be AN and therefore subject to the full anti-dumping duty". As for Fertiliser Europe dated 22 January 2001, p. 2, it states that "At Muuga, the MV Aleksey Afanasjev completed loading with 1604 t AN in big bags and another 1403 t of NK 32-0-5 in big bags."

(55) See in particular recitals 4 and 7 of the notified draft decree, which state:

"under unsuitable conditions of storage or transport, in particular those which foster an increase in humidity, chlorine may react with ammonium nitrate at room temperature to form nitrogen trichloride compounds with potentially explosive properties;"

"such fertiliser blends are currently imported and placed on the market without any particular precautions being taken, particularly with regard to transport and storage."

(56) See, in particular, part I, section 5, of this Decision.

(57) See recital 35 of this Decision.

(58) See in particular recital 45 of this Decision. With regard to this, it should be pointed out that the products which may react spontaneously when blended with ammonium nitrate are nitrites, in a sufficiently high concentration, or products such as old wood saturated with ammonium nitrate, or sawdust or metal shavings thoroughly mixed with ammonium nitrate. Other products, such as chloride ions, are merely sensitising agents, i.e. they lower the decomposition temperature and/or the amount of energy required to trigger it, but do not trigger the decomposition themselves. Under no circumstances can these sensitising agents trigger decomposition.

(59) See recital 48 of this Decision.

(60) See recital 34 of this Decision.

(61) See the second indent of recital 30 of this Decision.

(62) It is already mentioned in Louis Médard's summary, where he describes the potential dangers of NPK fertilisers. He specifies that, "the fertiliser may have slight explosive properties, similar to those of certain straight nitrogen fertilisers. This risk is only present in fertilisers which have a relatively high ammonium nitrate content." See Louis Médard, op. cit., p. 664.

(63) See recital 34 of this Decision.

(64) See recital 34 of this Decision.

(65) Draft Decree notified to the Commission in accordance with Article 95(5) of the EC Treaty.

(66) See recital 71 of this Decision and, more specifically, footnote 55.

(67) See recitals 37 and 38 of this Decision.

(68) See the Commission communication on recourse to the precautionary principle (COM(2000) 1 final, 2.2.2000).

(69) See in particular the Court of First Instance's judgments of 11 September 2002 in Cases T-13/99 and T-70/99.

(70) See recital 37 of this Decision.

(71) See recital 38 of this Decision.

(72) See recital 38 of this Decision. Moreover, on this subject, reference should be made to the "Rapport de la commission d'enquête interne sur l'explosion survenue le 21 septembre 2001 à l'usine Grande Paroisse de Toulouse - Point de la situation des travaux en cours à la date du 18 mars 2002" (Report of the internal committee investigating the explosion which occurred on 21 September 2001 at the Grande Paroisse factory in Toulouse - Progress Report on work under way on 18 March 2002).

(73) See part I, section 2, of this Decision.