The European Parliament,

–   having regard to the Commission proposal (COM(2005)0241),

–   having regard to Directive 2003/11/EC of the European Parliament and of the Council of 6 February 2003 amending for the 24th time Council Directive 76/769/EEC relating to restrictions on the marketing and use of certain dangerous substances and preparations (pentabromodiphenyl ether, octabromodiphenyl ether)(1),

—  _ having regard to Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(2)

–   having regard to Article 95(3) of the EC Treaty,

–   having regard to Rule 81 of its Rules of Procedure,

A.   whereas one of the objectives of Directive 2002/95/EC(3) is to contribute to the protection of human health and the environmentally sound recovery and disposal of waste electrical and electronic equipment; whereas Article 4(1) of that Directive restricts as from 1 July 2006 the use of certain hazardous substances in new electrical and electronic equipment put on the market unless exempted under the Annex thereto,

B.   whereas, on 19 April 2005, the committee established under Article 7 of Directive 2002/95/EC did not adopt a favourable opinion on a draft Commission decision to amend the Annex to Directive 2002/95/EC deleting a priority evaluation of certain items and adding two new exemptions to the Annex (DecaBDE in polymeric applications, lead in bronze-bearing shells and bushes); whereas, on 8 June 2005, Parliament received a Commission proposal for a Council decision to amend the Annex to Directive 2002/95/EC in the same way,

C.   whereas Article 5(5) of Decision 1999/468/EC lays down Parliament's right to adopt a resolution to inform the Council that a proposal by the Commission exceeds the implementing powers provided for in the basic instrument,

D.   whereas Article 5(1) of Directive 2002/95/EC provides for the adoption of any amendments necessary to adapt the Annex to scientific and technical progress by means of comitology; whereas Article 5(1)(b) of Directive 2002/95/EC provides for the possibility of exempting hazardous substances from the prohibition if the substitution with safer alternatives is not practicable(4); whereas Article 5(1)(b) of Directive 2002/95/EC lays down the only criteria that can be taken into consideration with a view to adding exemptions to the Annex by means of comitology,

E.   whereas Recital 2 of the proposed decision asserts that certain materials and components containing certain hazardous substances should be exempt from the prohibition, since the "elimination or substitution of these hazardous substances in those specific materials and components is still impracticable"; whereas several studies have shown to the contrary that safer alternatives to DecaBDE, which come within the scope of Article 4(1) of Directive 2002/95/EC are available for many, if not all, polymeric applications in electrical and electronic equipment,

F.   whereas Recital 3 of the proposed decision asserts that "since the risk assessment of DecaBDE (…) has concluded that there is at present no need for measures to reduce risks for consumers (…), DecaBDE can be exempted from the requirements of Article 4(1) of Directive 2002/95/EC"; whereas all parts of scientific risk assessments as well as the opinion of the relevant scientific committee should be taken into account for general legislative measures in the EU; whereas risk considerations as such of a substance listed in Article 4(1) of Directive 2002/95/EC are, however, not included in Article 5(1)(b) of Directive 2002/95/EC and can therefore not serve as a justification for amending the Annex by means of comitology; whereas such a revision would require a legislative proposal pursuant to Article 251 of the Treaty,

G.   whereas, without prejudice to the non-admissibility of risk considerations in comitology procedure, the proposed decision ignores findings from the additional environment risk assessment of May 2004, which found DecaBDE to be very persistent, and which presented data on widespread occurrence in top predators and the Arctic, neurotoxic effects, uptake of the substance by mammals in laboratory studies and possible formation of more toxic and accumulative products such as inter alia lower brominated diphenyl ether congeners; whereas the marketing and use of all commercially available lower brominated diphenyl ether congeners has been banned by Directive 2003/11/EC as from 15 August 2004,

H.   whereas the proposed decision goes against the opinion of 18 March 2005 of the Commission's own Scientific Committee on Health and Environmental Risks, which "strongly recommends further risk reduction" on the basis of the above risk assessment,

I.   whereas the proposed decision frustrates one of the objectives of Directive 2002/95/EC and goes against the explicit will of the co-legislators as expressed in recital 6 of Directive 2003/11/EC, in which Parliament and Council demanded further risk reduction measures on DecaBDE without delay, unless the further risk assessment concluded that DecaBDE gave no cause for concern; whereas the additional risk assessment instead provides further evidence of concern,

1.  Considers that the Commission has not acted in accordance with Article 5(1)(b) of Directive 2002/95/EC and has therefore exceeded the implementing powers provided for in that Directive;

2.  Calls on the Council to oppose the proposal, should the Commission not amend it by withdrawing the part on DecaBDE;

3.  Instructs its President to forward this resolution to the Council and Commission, and the parliaments and governments of the Member States.

(1) OJ L 42, 15.2.2003, p. 45. (2) OJ L 184, 17.7.1999, p. 23. (3) OJ L 37, 13.2.2003, p. 19. (4) Article 5(1)(b) of Directive 2002/95/EC states "exempting materials and components of electrical and electronic equipment from Article 4(1) if their elimination or substitution via design changes or materials and components which do not require any of the materials or substances referred to therein is technically or scientifically impracticable, or where the negative environmental, health and/or consumer safety impacts caused by substitution are likely to outweigh the environmental, health and/or consumer safety benefits thereof".