(21) The national provisions notified by the Finnish authorities were adopted before Finland acceded to the European Union. As indicated above, the Act of Accession lays down transitional provisions allowing Finland to continue to apply its national provisions concerning the cadmium content of fertilisers to products covered by Directive 76/116/EEC for a period of four years. By Directive 98/97/EC Finland was authorised to continue to apply the above national provisions until 31 December 2001. Decision 2002/398/EC extended the derogation until December 2005.
(22) As required by Article 95(4), as interpreted in the light of Articles 2 and 168 of the Act of Accession, Finland notified the Commission of the actual wording of the national provisions adopted before the accession to the European Union that it intends to maintain, accompanying the request by an explanation of the reasons which, in its opinion, justify the maintenance of those provisions.
(23) The reasons provided by the Finnish authorities are those already submitted in the past and that lead the Commission, in Decision 2002/398/EC, to grant a derogation until 31 December 2005. This period was granted on the assumption that harmonised legislation would be in place by end 2005. Although work is in progress, legislation would not be adopted at Community level before the end of the year.
(24) The notification submitted by Finland on 7 June 2005 in order to obtain approval for maintaining national provisions derogating from the provisions of Regulation (EC) No 2003/2003 is therefore to be considered admissible under Article 95(4) as interpreted in the light of Articles 2 and 168 of the Act of Accession.
2. Assessment of merits
(25) In accordance with Article 95 of the Treaty, the Commission has to ensure that all the conditions enabling a Member State to avail itself of the possibilities of derogation provided for in this article are fulfilled.
(26) In particular, the Commission has to assess whether the provisions notified by the Member State are justified on grounds of major needs referred to in Article 30 of the Treaty, or relating to the protection of the environment or the working environment.
(27) In addition, pursuant to Article 95(6) of the Treaty, where it considers that the national provisions are justified, the Commission must check whether or not those national provisions are a means of arbitrary discrimination or a disguised restriction on trade between Member States and whether or not they constitute an obstacle to the functioning of the internal market.
(28) Finland has based its request on the need of protection of human health and the environment. Cadmium in fertilisers is deemed to pose a threat to the environment and human health. In support of its request, Finland makes reference to the conclusions of a Finnish study published in April 2000 (8) which contains an assessment of the risks posed by cadmium-containing fertilisers.
2.1. Justification on grounds of major needs
(29) As regards the general information on cadmium, from the scientific data available up to now, it can be concluded that cadmium metal and cadmium oxide in general can be considered to pose serious risks to health. In particular, cadmium oxide has been classified as a carcinogen, mutagen or substance toxic for reproduction, category 2. It is also generally agreed that cadmium in fertilisers is by far the most important source of cadmium input to soil and to the food chain.
(30) As regards cadmium in fertilisers, the most relevant information of the risk assessment carried out by Finland can be summarised as follows:
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