L 79/44 Official Journal of the European Union 25.3.2009 COMMISSION DECISION of 24 March 2009 establishing the conditions for a derogation for plastic crates and plastic pallets in relation to the heavy metal concentration levels established in Directive 94/62/EC of the European Parliament and of the Council on packaging and packaging waste (notified under document number C(2009) 1959) (Text with EEA relevance) (2009/292[EC) THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, Having regard to Directive 94/62/EC of the European Parliament and of the Council of 20 December 1994 on packaging and packaging waste (1), and in particular Article 11(3) thereof, Whereas: (1)  Commission Decision 1999/177/EC of 8 February 1999 establishing the conditions for a derogation for plastic crates and plastic pallets in relation to the heavy metal concentration levels established in Directive 94/62EC on packaging and packaging waste (%) expired on 9 February 20009. (2) At the expiry of Decision 1999/177[EC, a considerable amount of plastic crates and plastic pallets containing heavy metals whose concentration level exceeds that provided for by Directive 94/62/EC were still on the market. Given the lack of capacity of the industry to replace all such crates and pallets, there is a high risk that those crates and pallets will be disposed of through land filling or incineration. Both solutions would have harmful impacts on health and the environment. (3)  Directive 94/62/EC aims at limiting the presence of heavy metals in packaging as well as at providing a high level of environmental protection, including reuse and recycling. 4 In order to give time to the industry to replace those plastic crates and plastic pallets using the best available techniques, it is appropriate to adopt conditions for a derogation relating to those crates and pallets which are in product loops in a closed and controlled chain. () O] L 365, 31.12.1994, p. 10. () O] L 56, 4.3.1999, p. 47. The scientific reports submitted to the Commission recommend that such derogation should be granted. (5)  Since the Commission intends to review the functioning of the system provided for in this Decision and the progress made in phasing out plastic crates and plastic pallets containing heavy metals after five years, it is necessary that Member States submit the relevant infor- mation. In order not to increase the existing administra- tive burden by imposing a specific reporting obligation on the Member States, it is sufficient that such infor- mation is included in the reports to be submitted to the Commission under Article 17 of Directive 94/62/EC. (6)  For reasons of legal certainty, this Decision should apply with effect from the date following that of the expiry of Decision 1999/177[EC in order to avoid any possible negative effects resulting from that expiry. (7  The measures provided for in this Decision are in accordance with the opinion of the Committee estab- lished pursuant to Article 21 of Directive 94/62[EC, HAS ADOPTED THIS DECISION: Atrticle 1 For the purposes of this Decision, the following definitions shall apply: 1. ‘heavy metals’ means lead, cadmium, mercury and hexavalent chromium; 2. ‘intentional introduction of heavy metals’ means the act of deliberately utilising a substance containing heavy metals in the formulation of a packaging or a packaging component where its continued presence is desired in the final packaging or packaging component to provide a specific characteristic, appearance or quality;