9.1.2003 Official Journal of the European Communities L 4/9 COMMISSION DIRECTIVE 2003/2/EC of 6 January 2003 relating to restrictions on the marketing and use of arsenic (tenth adaptation to technical progress to Council Directive 76/769/EEC) (Text with EEA relevance) THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, Having regard to Council Directive 76/769/EEC of 27 July 1976 on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations ('), as last amended by Commis- sion Directive 2002/62[/EC (}) and in particular Article 2(a) thereof, introduced by Council Directive 89/678/EEC (%), Whereas: Council Directive 89/677[EEC () amending for the eighth time Directive 76/769/EEC places certain restric- tions on the marketing and use of arsenic. A risk assessment and an analysis of advantages and drawbacks of further restrictions on arsenic in certain wood preservatives (°) were carried out in the framework of a review of Community legislation concerning the use of arsenic compounds for wood preservation following the accession of Austria, Finland and Sweden to the European Union in 1995. The risk assessment was referred to the Scientific Committee on Toxicity, Ecotoxicity and the Environment (CSTEE) for peer review (°) and the CSTEE concluded that the main risks had been identified correctly. These risks included those to human health from the disposal of wood treated with wood preservatives containing copper, chrome and arsenic (CCA) and in particular risks to children's health from the use of CCA-treated wood in playground equipment. A risk to the aquatic environ- ment in certain marine waters was also identified. The CSTEE further advised that in the light of a serious knowledge gap in relation to arsenic-treated wood in 4 1 0 OJ L 262, 27.9.1976, p. 201. () OJ L 183, 12.7.2002, p. 58. () OJ L 398, 30.12.1989, p. 24. () OJ L 398, 30.12.1989, p. 19. (°) Assessment of the Risis to Health and to the Environment of Arsenic in Wood Preservatives and of the Effects of Further Restric- tions on its marketing and use, 1998. () http://europa.eu.int/comm/food/fs[sc/sct/out18_en.html. 0] 0] o0 landfills it would be advisable to exercise caution by limiting the use of arsenic-based wood preservation to those situations where it is absolutely necessary. In a further consideration of the health effects of arsenic (') the CSTEE has concluded that the substance is both genotoxic and a well known carcinogen, and that it may be appropriate to consider that no threshold exists for carcinogenic effect. Waste CCA-treated wood has been classified as hazar- dous waste pursuant to Commission Decision 2000/ 532/EC of 3 May 2000 replacing Decision 94/3/EC establishing a list of wastes pursuant to Article 1(a) of Council Directive 75/442[EEC on waste and Council Decision 94/904[EC establishing a list of hazardous waste pursuant to Article 1(4) of Council Directive 91/ 689/EC on hazardous waste (°) as last amended by Council Decision 2001/573/EC (). Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market (**) lays down provi- sions for harmonising the authorisation of biocides at Community level and Commission Regulation (EC) No 1896/2000 of 7 September 2000 on the first phase of the programme referred to in Article 16(2) of Directive 98/8/EC of the European Parliament and of the Council on biocidal products (') requires wood preservatives to be evaluated as a priority in the review programme established under Directive 98/8/EC. Arsenic has been identified and notified as an active substance within the time limit set out in Regulation (EC) No 1896/2000. A complete dossier for evaluation of arsenic as an existing substance will have to be presented by 28 March 2004. With regard to the risk assessment and taking account of the precautionary principle, pending harmonisation of rules under Directive 98/8/EC or a Decision pursuant to Article 6(3) of Regulation (EC) No 1896/2000, it is necessary to adapt the restrictions on arsenic in Directive 76/769[EEC to technical progress. This Directive does not apply to CCA-treated wood already in place. http://europa.eu.int/comm/food|fs/sc/sct/out106_en.html. L 226, 6.9.2000, p. 3. L 203, 28.7.2001, p. 18. J L 123, 24.4.1998, p. 1. J L 228, 8.9.2000, p. 6.