The Commission's verdict on the German rules appears to have been the first test of provisions in Article 100 of the Single European Act allowing Member States to maintain laws which are stricter than EC legislation if the goal is to protect the environment.
The German rules on PCP were introduced in 1989. They are more restrictive than an EC Directive which was proposed in 1988 (ENDS Report 160, p 24) but not adopted until 1991.
The Directive, which is due to be brought into force by Member States in July, imposes a general ban on the marketing and use of PCP in concentrations of 0.1% or more, but then provides for the continuation of certain applications of PCP such as industrial timber treatment and impregnation of textiles pending a further EC review. The German law does not allow these exemptions.
The Commission has now allowed Germany to maintain its law after deciding that its impact on trade will be limited, and is non-discriminatory as between German and foreign businesses.
Germany's ban on PCP-treated cloth has been seized upon by the Textile Finishers' Association (TFA) in its recurrent calls on the UK Government to impose a ban on imports of PCP-treated unfinished cloth. The demand was repeated in April, when the TFA claimed that some of its members may go out of business if impending restrictions on the PCP content of effluent discharges to sewer from some textile finishing businesses are implemented (ENDS Report 207, pp 6-7 ).
But the Government appears unlikely to follow the German lead. In a parliamentary answer at the end of May, one of the reasons given by Trade and Industry Minister Richard Needham for not imposing an import ban was that the UK is not "generally able to discriminate against imports arriving from other Member States of the European Community."1Following the Commission's ruling on the German law, that argument would appear no longer to be valid. However, it remains uncertain whether Brussels would accept similar legislation by the UK. Two factors which may have influenced its decision in the German case were that the German rules were introduced before the PCP Directive was adopted, and that Germany voted against the Directive.
However, Mr Needham gave two further reasons against an import ban. One was that there are no completely adequate substitutes for PCP in protecting "certain" textiles from rotting. The second was that detecting PCP-treated cloth at the port of entry would be "almost impossible".
A further reason, not cited by the Minister, was that the process of drafting and consulting on the necessary regulations could end up giving the textile finishing industry a further period of grace before it had to comply with the new effluent controls. The feeling in some parts of Whitehall is that it has had ample warning - a minimum of three years - of the need to control its PCP discharges.