Legal provisions of COM(2022)151 - Substances that deplete the ozone layer - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2022)151 - Substances that deplete the ozone layer. |
|---|---|
| document | COM(2022)151  |
| date | February 7, 2024 |
Chapter I
General Provisions
Article 1
Subject matter
This Regulation lays down rules on the production, import, export, placing on the market, further supply as well as use, recovery, recycling, reclamation and destruction of ozone depleting substances, on the reporting of information related to those substances and on the import, export, placing on the market, further supply and use of products and equipment containing ozone depleting substances or whose functioning relies upon on those substances.
Article 2
Scope
1. This Regulation applies to the ozone depleting substances listed in Annexes I and II and their isomers, whether alone or in a mixture.
2. This Regulation also applies to products and equipment, and parts thereof, containing ozone depleting substances or whose functioning relies upon those substances.
Article 3
Definitions
For the purposes of this Regulation, the following definitions apply:
(1) ‘feedstock’ means any ozone depleting substance that undergoes chemical transformation in a process in which it is entirely converted from its original composition and emissions are insignificant;
(2) ‘process agents’ means ozone depleting substances used as chemical process agents in the applications listed in Annex III;
(3) ‘import’ means the entry of substances, products and equipment covered by this Regulation into the customs territory of the Union as far as the territory is covered by a ratification of the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer and includes temporary storage and the customs procedures referred to in Articles 201 and 210 of Regulation (EU) No 952/2013;
(4) ‘export’ means the exit from the customs territory of the Union, in so far as the territory is covered by a ratification of the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, of substances, products and equipment;
(5) ‘placing on the market’ means the supplying or making available to another person within the Union, for the first time, for payment or free of charge, the customs release for free circulation in the Union, and the use of substances produced or the use of products or equipment manufactured for own use;
(6) ‘use’ means the utilisation of ozone depleting substances in the production, maintenance or servicing, including refilling, of products and equipment or in other activities referred to in this Regulation;
(7) ‘recovery’ means the collection and the storage of ozone depleting substances from products and equipment or containers during maintenance or servicing, or prior to the disposal of the product, equipment or container;
(8) ‘recycling’ means the reuse of a recovered ozone depleting substance following a basic cleaning processes, including filtering and drying;
(9) ‘reclamation’ means the reprocessing of an ozone depleting substance in order to match the performance that is equivalent to that of a virgin substance, taking into account its intended use;
(10) ‘undertaking’ means any natural or legal person which carries out an activity referred to in this Regulation;
(11) ‘products and equipment’ means all products and equipment, including parts thereof, except containers, used for the transportation or storage of ozone depleting substances;
(12) ‘virgin substances’ means substances which have not previously been used;
(13) ‘decommissioning’ means the removal from operation or usage of a product or equipment, containing ozone depleting substances including the final shut-down of an installation;
(14) ‘destruction’ means the process of permanently transforming or decomposing completely, to the extent possible, an ozone depleting substance into one or more stable substances that are not ozone depleting substances;
(15) ‘establishment within the Union’ means for a natural person to have his or her habitual residence in the Union and for a legal person to have in the Union a permanent business establishment as referred to in Article 5(32) of Regulation (EU) No 952/2013 in the Union.
Chapter II
Prohibitions
Article 4
Ozone depleting substances
1. The production, placing on the market, any subsequent supply or making available to another person within the Union for payment or free of charge and use of ozone depleting substances listed in Annex I are prohibited.
2. Imports and exports of ozone depleting substances listed in Annex I are prohibited.
Article 5
Products and equipment containing ozone depleting substances or whose functioning relies upon those substances
1. The placing on the market and any subsequent supply or making available to another person within the Union for payment or free of charge, of products and equipment containing ozone depleting substances listed in Annex I or whose functioning relies upon those substances are prohibited.
2. Imports and exports of products and equipment containing ozone depleting substances listed in Annex I or whose functioning relies upon those substances are prohibited.
This paragraph does not apply to personal effects.
Chapter III
Exemptions to prohibitions
Article 6
Feedstock
By way of derogation from Article 4(1), ozone depleting substances listed in Annex I may be produced, placed on the market, and subsequently supplied or made available to another person within the Union for payment or free of charge to be used as feedstock.
Article 7
Process agents
1. By way of derogation from Article 4(1), ozone depleting substances listed in Annex I may be produced, placed on the market and subsequently supplied or made available to another person within the Union for payment or free of charge to be used as process agents in the processes referred to in Annex III and subject to the conditions laid down pursuant to paragraphs 2 and 3 of this Article.
2. Ozone depleting substances referred to in paragraph 1, may only be used as process agents in installations existing on 1 September 1997, provided that the emissions of ozone depleting substances from those installations are insignificant, subject to the conditions laid down pursuant to paragraph 3.
3. The Commission may, by means of implementing acts, establish a list of undertakings for which the use of ozone depleting substances listed in Annex I, as process agents in the processes referred to in Annex III in the installations referred to in paragraph 2 is permitted, laying down the maximum quantities that may be used for make-up or for consumption as process agents and maximum emission levels for each of the undertakings concerned. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 28(2).
4. The Commission is empowered to adopt delegated acts in accordance with Article 29 to amend Annex III where it is necessary due to technical developments or decisions taken by the Parties to 1987 Montreal Protocol on Substances that Deplete the Ozone Layer (‘the Protocol’).
Article 8
Essential laboratory and analytical uses
1. By way of derogation from Article 4(1), ozone depleting substances listed in Annex I may be produced, placed on the market and subsequently supplied or made available to another person within the Union for payment or free of charge to be used for essential laboratory and analytical uses, subject to the conditions laid down pursuant to paragraph 2 of this Article.
2. The Commission may, by means of implementing acts, determine any essential laboratory and analytical uses for which the production and import of ozone depleting substances may be permitted in the Union, the period for which the exemption is valid and those users which may take advantage of those essential laboratory and analytical uses. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 28(2).
3. The undertaking placing on the market or subsequently supplying or making available to another person within the Union for payment or free of charge ozone depleting substances for essential laboratory and analytical uses referred to in paragraph 1 shall retain records of the following information:
(a) name of the substances;
(b) amount placed on the market or supplied;
(c) purpose of their use;
(d) list of the purchasers and suppliers.
4. The undertaking using ozone depleting substances for laboratory and analytical uses referred to in paragraph 1 shall retain records of the following information:
(a) name of the substances;
(b) amounts supplied or used;
(c) purpose of their use;
(d) list of suppliers.
5. The records referred to in paragraphs 3 and 4 shall be retained for a minimum period of five years and shall be made available, upon request, to the competent authorities of the Member States and to the Commission.
6. Ozone depleting substances for essential laboratory and analytical uses referred to in paragraph 1 shall only be placed on the market and subsequently supplied or made available to another person within the Union for payment or free of charge under the conditions set out in Annex IV.
7. The Commission is empowered to adopt delegated acts in accordance with Article 29 to amend Annex IV, where it is necessary due to technical developments or decisions taken by the Parties to the Protocol.
Article 9
Critical uses of halon
1. By way of derogation from Article 4(1), halons may be placed on the market and used for critical uses in accordance with Annex V. Halons may only be placed on the market and subsequently supplied or made available to another person within the Union for payment or free of charge by undertakings authorised by the competent authority of the Member State concerned to store halons for critical uses.
2. Fire protection systems and fire extinguishers containing halons applied for uses referred to in paragraph 1 or whose functioning relies upon those halons shall be decommissioned by the end dates specified in Annex V. Halons contained therein shall be recovered in accordance with Article 20(5).
3. The Commission is empowered to adopt delegated acts in accordance with Article 29 to amend Annex V, where technically and economically feasible alternatives or technologies are not available for the uses listed in that Annex within the timeframes set out in Annex V or are not acceptable due to their impacts on environment or health, or where it is necessary to ensure compliance with the international commitments of the Union concerning critical uses of halons established in particular under the Protocol, the International Civil Aviation Organization (ICAO) or the International Convention for the Prevention of Pollution from Ships (MARPOL).
4. The Commission may, by means of implementing acts, and following a substantiated request of the competent authority of a Member State, grant time-limited derogations from the end dates or cut-off dates specified in Annex V for a specified case where it is demonstrated in the request that no technically and economically feasible alternative is available for that particular application. The Commission may include in those implementing acts reporting requirements, and may require submission of supporting evidence necessary for monitoring the use of the derogation, including evidence on amounts recovered for recycling or reclamation, results of leakage checks and amounts of unused halons in stocks. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 28(2).
Article 10
Emergency use of methyl bromide
1. In case of an emergency, where unexpected outbreaks of particular pests or diseases so require, the Commission may, at the request of the competent authority of a Member State, by means of implementing acts, authorise the temporary production, placing on the market, and use of methyl bromide, provided that the placing on the market and use of methyl bromide are allowed respectively under Regulation (EC) No 1107/2009 and Regulation (EU) No 528/2012. Any unused quantities of methyl bromide shall be destroyed.
2. Implementing acts referred to in paragraph 1 shall specify measures to be taken to reduce emissions of methyl bromide during use and apply for a period not exceeding 120 days and to a quantity not exceeding 20 metric tonnes of methyl bromide. The Commission may include in those implementing acts reporting requirements and may require submission of supporting evidence necessary for monitoring the use of methyl bromide, including evidence on the destruction of substances following the end of the derogation. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 28(2).
Article 11
Products and equipment containing ozone depleting substances or whose functioning relies upon those substances
1. By way of derogation from Article 5(1), products and equipment for which the use of the respective ozone depleting substance is authorised in accordance with Article 8 or Article 9 may be placed on the market, subsequently supplied or made available to another person within the Union for payment or free of charge.
2. Except for the critical uses referred to in Article 9, fire protection systems and fire extinguishers containing halons are prohibited and shall be decommissioned.
3. Products and equipment containing ozone depleting substances or whose functioning relies upon those substances shall be decommissioned when they reach the end of their life.
Article 12
Destruction and reclamation
By way of derogation from Articles 4(1) and 5(1), ozone depleting substances listed in Annex I and products and equipment containing ozone depleting substances or whose functioning relies upon those substances may be placed on the market and subsequently supplied or made available to another person within the Union for payment or free of charge for destruction within the Union pursuant to Article 20(7). Ozone depleting substances listed in Annex I may also be placed on the market for reclamation within the Union.
Article 13
Imports
1. By way of derogation from Article 4(2) and Article 5(2), the following imports are allowed:
(a) ozone depleting substances to be used as feedstock in accordance with Article 6;
(b) ozone depleting substances to be used as process agents in accordance with Article 7;
(c) ozone depleting substances to be used for essential laboratory and analytical uses in accordance with Article 8;
(d) ozone depleting substances for destruction by technologies referred to in Article 20(7);
(e) methyl bromide for emergency uses in accordance with Article 10;
(f) recovered, recycled or reclaimed halons, under the condition that they are only imported for critical uses referred to in Article 9(1), by undertakings authorised by the competent authority of the Member State concerned to store halons for critical uses;
(g) products and equipment containing halons or whose functioning relies upon halons to satisfy critical uses referred to in Article 9(1);
(h) products and equipment containing ozone depleting substances or whose functioning relies upon those substances for destruction, where applicable by technologies referred to in Article 20(7);
(i) products and equipment containing ozone depleting substances or whose functioning relies upon those substances to satisfy essential laboratory and analytical uses referred to in Article 8.
2. Imports referred to in paragraph 1 shall be subject to the presentation of a licence to customs authorities issued by the Commission in accordance with Article 16.
The licence referred to in the first subparagraph shall not be required in cases of temporary storage.
Article 14
Export
1. By way of derogation from Article 4(2) and Article 5(2), the following exports are allowed:
(a) ozone depleting substances to be used for essential laboratory and analytical uses referred to in Article 8;
(b) ozone depleting substances to be used as feedstock in accordance with Article 6;
(c) ozone depleting substances to be used as process agents in accordance with Article 7;
(d) virgin or reclaimed hydrochlorofluorocarbons, for uses other than those referred to in points (a) and (b), except for destruction;
(e) recovered, recycled or reclaimed halons stored for critical uses referred to in Article 9(1) by undertakings authorised by the competent authority of a Member State;
(f) products and equipment containing halons or whose functioning relies upon halons to satisfy critical uses referred to in Article 9(1);
(g) products and equipment containing ozone depleting substances imported under Article 13(1), point (i) or whose functioning relies upon those substances.
2. By way of derogation from Article 5(2), the Commission may, by means of implementing acts, following a request by a competent authority of a Member State, authorise the export of products and equipment containing hydrochlorofluorocarbons where it is demonstrated that in view of the economic value and the expected remaining lifetime of the specific good, the prohibition of export would impose a disproportionate burden on the exporter, and such export is in line with national legislation in the destination country. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 28(2).
Prior to such export the Commission shall notify the destination country thereof.
3. Exports referred to in paragraphs 1 and 2 shall be subject to the presentation of a licence to customs authorities issued by the Commission in accordance with Article 16.
The licence referred to in the first subparagraph shall not be required in cases of re-export subsequent to temporary storage.
Article 15
Conditions for exemptions
1. The import, placing on the market, any subsequent supply or making available to another person within the Union for payment or free of charge, utilisation, or export of non-refillable containers for ozone depleting substances, empty, or fully or partially filled, is prohibited, except for essential laboratory and analytical uses referred to in Article 8. Such containers may only be stored or transported for subsequent disposal.
Any prohibited non-refillable containers referred to in the first subparagraph shall be confiscated, seized, withdrawn or recalled from the market by the customs authorities or the market surveillance authorities for disposal. The re-export of prohibited non-refillable containers is prohibited.
The first and second subparagraph applies to:
(a) containers which cannot be refilled without being adapted for that purpose (non-refillable); and
(b) containers that could be refilled but are imported or placed on the market without provision having been made for their return for refilling.
2. Ozone depleting substances shall not be placed on the market unless producers or importers provide evidence to the competent authority at the time of such placing, that any trifluoromethane produced as a by-product during the manufacturing process, including during the manufacturing of feedstock for their production, has been destroyed or recovered for subsequent use, using best available techniques.
For the purpose of submitting evidence, importers and producers shall draw up a declaration of conformity and join supporting documentation on the production facility and the mitigation measures adopted to prevent emissions of trifluoromethane. Producers and importers shall keep the declaration of conformity and supporting documentation for a period of at least five years after the placing on the market and make them available, upon request, to national competent authorities and to the Commission.
The Commission may, by means of implementing acts, determine the detailed arrangements relating to the declaration of conformity and supporting documentation referred to in the second subparagraph. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 28(2).
3. Ozone depleting substances produced or placed on the market as feedstock, as process agents, or for essential laboratory and analytical uses as referred to in Articles 6, 7 and 8 may only be used for those purposes.
Containers containing the substances intended for the uses referred to in Articles 6, 7 and 8 shall be labelled with a clear indication that the substance may only be used for the applicable purpose. Where such substances are subject to labelling requirements provided for in Regulation (EC) No 1272/2008, such indication shall be included in the labels referred to in that Regulation.
The Commission may, by means of implementing acts, determine the format and the indication to be used on the labels referred to in the second subparagraph. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 28(2).
Chapter IV
Trade
Article 16
Licensing System
1. The Commission shall set up and ensure the operation of the electronic licensing system for ozone depleting substances listed in Annex I and products and equipment containing those substances or whose functioning relies upon those substances ('the licensing system').
2. Undertakings that wish to obtain the licences respectively required in accordance with Article 13(2) and Article 14(3) shall submit applications using the licensing system. Before submitting such an application, undertakings shall have a valid registration in the licensing system. Undertakings shall also ensure that they have a valid registration in the licensing system before reporting pursuant to Article 24.
Applications for licences shall be processed within 30 days. Licences shall be issued in accordance with the rules and procedures laid down in Annex VII.
3. Licenses may be issued to undertakings established in the Union and to undertakings established outside the Union.
Undertakings established outside the Union shall mandate an only representative with an establishment within the Union that assumes the full responsibility for complying with this Regulation. The only representative may be the same as the one mandated pursuant to Article 8 of Regulation (EC) No 1907/2006 of the European Parliament and of the Council31.
4. Licenses may be time-limited. They shall remain valid until they expire, until they are suspended or revoked by the Commission pursuant to this Article, or until they are withdrawn by the undertaking.
5. Each undertaking that holds a licence shall, during the period of validity of the license, notify the Commission of any changes which might occur during the period of validity of the licence in relation to the information submitted in accordance with Annex VII.
6. The Commission may request additional information where needed to confirm the accuracy and completeness of the information provided by the undertakings in accordance with Annex VII.
7. Competent authorities of the Member States including the customs authorities, or the Commission, may require a certificate attesting the nature or composition of substances to be imported or exported and may request a copy of the licence issued by the country from which the import or to which the export takes place.
8. The Commission may share the data submitted in the licensing system to the extent necessary in specific cases with competent authorities of the Parties to the Protocol concerned.
9. A license shall be suspended where there is reasonable suspicion that any relevant obligations set out in this Regulation is not complied with. A license shall be revoked where there is evidence that any obligation set out in this Regulation is not complied with. The license application shall also be rejected or the license revoked where there is evidence of serious or repeated infringements of Union customs or environmental legislation by the undertaking related to its activities under this Regulation.
Undertakings shall be informed, as soon as possible, of any licence application being rejected or of any licence being suspended or revoked, specifying the reasons for rejection, suspension or revocation. Member States shall also be informed of such cases.
10. Undertakings shall take all necessary measures to ensure that an export of ozone depleting substances does not:
(a) constitute a case of illegal trade;
(b) impact adversely on the implementation of control measures of the destination country taken to comply with its obligations under the Protocol
(c) lead to an excess of the quantitative limits under the Protocol for the country referred to in point (b).
11. Competent authorities of the Member States, including customs authorities, shall have access to the licensing system for the purpose of enforcing this Regulation. Access to the licensing system by customs authorities shall be ensured via the European Union Single Window Environments for Customs referred to in paragraphs 14 and 15.
12. The Commission and competent authorities of the Member States shall ensure the confidentiality of the information included in the licensing system.
13. The Commission is empowered to adopt delegated acts in accordance with Article 29 to amend Annex VII where it is necessary to ensure the smooth functioning of the licensing system, to facilitate the enforcement of customs controls, or where it is necessary to comply with the Protocol.
14. The Commission shall ensure the interconnection of the licensing system with the European Union Single Window Environment for Customs through the European Union Customs Single Window - Certificate Exchange System established by Regulation (EU) No …/… [full reference to be inserted once that Regulation has been adopted].32
15. Member States shall ensure the interconnection of their national single window environments for customs with the European Union Customs Single Window - Certificate Exchange System for the purpose of exchanging information with the licensing system.
Article 17
Controls of trade
1. Customs authorities and market surveillance authorities shall enforce the prohibitions and other restrictions set out in this Regulation with regards to imports and exports.
2. For the purpose of imports, the undertaking holding the license pursuant to Article 13(2) shall be the importer, or where not available the declarant, indicated in the customs declaration.
For the purpose of export, the undertaking holding the license pursuant to Article 14(3) shall be the exporter indicated in the customs declaration.
3. In cases of imports of ozone depleting substances listed in Annex I and of products and equipment containing those substances or whose functioning relies upon those substances the importer, or where not available the declarant, indicated in the customs declaration or in the temporary storage declaration and in cases of exports the exporter indicated in the customs declaration, shall provide to customs authorities in the declaration the following, where relevant:
(a) the number of the licence pursuant to Article 13(2) and Article 14(3);
(b) the Economic Operators Registration and Identification (EORI) number;
(c) the net mass of ozone depleting substance(s), also when included in products and equipment;
(d) the net mass multiplied by the ozone depletion potential of the ozone depleting substance(s), also when included in products and equipment;
(e) the commodity code under which the goods are classified.
4. Customs authorities shall verify, in particular, that in cases of imports the importer indicated in the customs declaration, or where not available the declarant, and in cases of exports the exporter indicated in the customs declaration, has a valid license pursuant to Article 13(2) and Article 14(3).
5. Where relevant, customs authorities shall communicate information regarding the customs clearance of goods to the licensing system via the European Union Single Window Environment for Customs.
6. Importers of ozone depleting substances listed in Annex I in refillable containers shall make available to customs authorities at the time the customs declaration related to the release for free circulation is submitted, a declaration of conformity including evidence confirming the arrangements in place for the return of the container for the purpose of refilling.
7. Importers of halons in accordance with Article 13(1), point (f), and exporters of halons in accordance with Article 14(1), point (e), shall make available to customs authorities at the time the customs declaration related to the release for free circulation or to the export is submitted a certificate confirming the nature of the substance as listed in Article 13(1), point (f) and Article 14(1), point (e).
8. Importers of ozone depleting substances shall make available to customs authorities at the time the customs declaration related to the release for free circulation is submitted, the evidence referred to in Article 15(2).
9. Customs authorities shall verify compliance with the rules on imports and exports set out in this Regulation, when carrying out the controls based on risk analysis in the context of Customs Risk Management Framework and in accordance with Article 46 of Regulation (EU) No 952/2013. The risk analysis shall take into account in particular any available information on the likelihood of illegal trade of ozone depleting substances, and the compliance history of the undertaking concerned.
10. Based on risk analysis, when carrying out physical customs controls of the substances and products and equipment covered by this Regulation, the customs authority shall, in particular, verify the following on imports and exports:
(a) that the goods presented correspond to those described in the licence and in the customs declaration;
(b) that the goods are appropriately labelled in accordance with Article 15(3) before releasing the goods for free circulation.
The importer or exporter shall make its licence available to customs authorities during controls in accordance with Article 15 of Regulation (EU) No 952/2013.
11. Customs authorities shall confiscate or seize substances, the substances and products and equipment that are prohibited by this Regulation is prohibited for their disposal in accordance with Articles 197 and 198 of Regulation (EU) No 952/2013. Market surveillance authorities shall also withdraw or recall from the market such substances and products and equipment in accordance with Article 16 of Regulation (EU) No 2019/1020 of the European Parliament and the Council33.
The re-export of substances and products and equipment that do not comply with this Regulation is prohibited.
12. Member States customs authorities shall designate or approve customs offices or other places and shall specify the route to those offices and places, in accordance with Articles 135 and 267 of Regulation (EU) No 952/2013, for the presentation to customs of ozone depleting substances listed in Annex I and of products and equipment containing those substances or whose functioning relies upon those substances at their entry into or at their exit from the customs territory of the Union. Those customs offices or places shall be sufficiently equipped to carry out the relevant physical controls based on risk analysis, and shall be knowledgeable on matters related to the prevention of illegal activities under this Regulation.
Only the designated or approved places and customs offices referred to in the first subparagraph shall be authorised to open or end a transit procedure of ozone depleting substances listed in Annex I and products and equipment containing, or whose functioning relies upon, such substances.
Article 18
Measures to monitor illegal trade
The Commission is empowered to adopt delegated acts in accordance with Article 29 to supplement this Regulation by establishing additional control measures to those set out in this Regulation for the monitoring of ozone depleting substances and of products and equipment containing those substances or whose functioning relies upon those substances placed under temporary storage, or a customs procedure including customs warehousing or free zone procedure or in transit through the customs territory of the Union on the basis of an evaluation of the potential risks of illegal trade linked to such movements, including tracing methodologies for substances placed on the market, taking into account the environmental benefits and socio-economic impacts of such measures.
Article 19
Trade with states or regional economic integration organisations and territories not covered by the Protocol
1. Import and export of ozone depleting substances listed in Annex I and of products and equipment containing those substances or whose functioning relies upon those substances from and to any state or regional economic integration organisation that has not agreed to be bound by the provisions of the Protocol applicable to a particular controlled substance shall be prohibited.
2. The Commission is empowered to adopt delegated acts in accordance with Article 29 to supplement this Regulation by establishing the rules applicable to the release for free circulation in the Union and export of products and equipment imported from and exported to any state or regional economic integration organisation subject to paragraph 1, which were produced using ozone depleting substances listed in Annex I, but do not contain substances which can be positively identified as ozone depleting substances listed in that Annex, as well as rules on the identification of such products and equipment. When adopting those delegating acts the Commission shall take into account the relevant decisions taken by the Parties to the Protocol and, as regards the rules on the identification of such products and equipment, periodical technical advice given to the Parties to the Protocol.
3. By way of derogation from paragraph 1, trade with any state or regional economic integration organisation subject to paragraph 1 in ozone depleting substances listed in Annex I and equipment containing those substances or whose functioning relies upon those substances or which are produced by means of one or more such substances may be authorised by the Commission, by means of implementing acts, to the extent that the state or regional economic integration organisation is determined by a meeting of the Parties to the Protocol pursuant to Article 4(8) of the Protocol to be in full compliance with the Protocol and has submitted data to that effect as specified in Article 7 of the Protocol. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 28(2).
4. Subject to any decision taken under paragraph 2, paragraph 1 shall apply to any territory not covered by the Protocol in the same way as such decisions apply to any state or regional economic integration organisation subject to paragraph 1.
5. Where the authorities of a territory not covered by the Protocol are in full compliance with the Protocol and have submitted data to that effect as specified in Article 7 of the Protocol, the Commission may decide, by means of implementing acts, that some or all of the provisions of paragraph 1 of this Article shall not apply in respect of that territory. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 28(2).
Chapter V
Emission Control
Article 20
Recovery and destruction of used ozone depleting substances
1. Ozone depleting substances listed in Annex I contained in refrigeration, air-conditioning and heat pump equipment, equipment containing solvents or fire protection systems and fire extinguishers shall, during the maintenance or servicing of equipment or before the dismantling or disposal of equipment, be recovered for destruction, recycling or reclamation.
2. Building owners and contractors shall ensure that during renovation, refurbishing or demolition activities implying the removal of metal-faced panels that contain foams with ozone depleting substances listed in Annex I are avoided to the extent possible by recovery for reuse or destruction of the foams and the substances contained therein.
3. Building owners and contractors shall ensure that during renovation, refurbishing or demolition activities implying the removal of foams in laminated boards installed in cavities or built-up structures that contain ozone depleting substances listed in Annex I are avoided to the extent possible by recovery for reuse or destruction of the foams and the substances contained therein.
4. Where recovery of the foams referred to in the first subparagraph is not technically feasible, the building owner or contractor shall draw up documentation providing evidence for the infeasibility of the recovery in the specific case. Such documentation shall be retained for five years and shall be made available, upon request, to the competent authorities and the Commission.
5. Halons contained in fire protection systems and fire extinguishers shall, during the maintenance or servicing of equipment or before the dismantling or disposal of equipment, be recovered for recycling or reclamation.
Destruction of halon is prohibited unless there is documented evidence that the purity of the recovered or recycled substance does not technically allow its reclamation and subsequent re-use. Undertakings destroying halons in such cases shall retain this documentation for a minimum period of five years. Such documentation shall be made available, upon request, to competent authorities and the Commission.
6. Ozone depleting substances listed in Annex I contained in products and equipment other than those mentioned in paragraphs 1 to 5 shall, if technically and economically feasible, be recovered for destruction, recycling or reclamation, or shall be destroyed without prior recovery.
7. Ozone depleting substances listed in Annex I and products and equipment containing such substances shall only be destroyed by technologies approved by the Parties to the Protocol or by destruction technologies that are not yet approved, but are environmentally equivalent and comply with Union and national legislation on waste and with additional requirements under such legislation.
8. The Commission is empowered to adopt delegated acts in accordance with Article 29 to supplement this Regulation by establishing a list of products and equipment for which the recovery of ozone depleting substances or destruction of products and equipment without prior recovery of ozone depleting substances shall be considered technically and economically feasible, specifying, if appropriate, the technologies to be applied.
9. Member States shall promote the recovery, recycling, reclamation and destruction of ozone depleting substances listed in Annex I and shall establish the minimum qualification requirements for the personnel involved.
Article 21
Release of ozone depleting substances and leakage checks
1. The intentional release of ozone depleting substances including when contained in products and equipment into the atmosphere shall be prohibited where the release is not technically necessary for the intended uses permitted under this Regulation.
2. Undertakings shall take all necessary precautions to prevent and minimise any unintentional release of ozone depleting substances listed in Annex I during production, including inadvertently produced in the course of the manufacture of other chemicals, equipment manufacturing process, use, storage and transfer from one container or system to another or transport.
3. Undertakings operating equipment containing ozone depleting substances listed in Annex I, shall ensure that any detected leakage is repaired without undue delay, without prejudice to the prohibition to use the ozone depleting substances.
4. Undertakings referred to in paragraph 3 shall retain records on the quantity and type of ozone depleting substances added and the quantity recovered during maintenance, servicing and final disposal of the equipment or system. They shall also retain records of other relevant information including the identification of the company or technician which performed the maintenance or servicing, as well as the dates and results of the leakage checks carried out. These records shall be retained for a minimum period of five years and shall be made available, upon request, to the competent authority of a Member State and to the Commission.
5. Member States shall establish the minimum qualification requirements for the personnel carrying out activities referred to in paragraph 3.
Chapter VI
Lists of ozone depleting substances and reporting
Article 22
Amendments to the lists of ozone depleting substances
1. The Commission is empowered to adopt delegated acts in accordance with Article 29 to amend Annex II to include in that Annex any substances that are not covered by this Regulation but have been found by the Scientific Assessment Panel (‘SAP’), established under the Protocol, or by another recognised authority of equivalent stature to have a significant ozone-depleting potential.
2. The Commission is empowered to adopt delegated acts in accordance with Article 29 to amend Annex I to include in that Annex any substances that fulfil the conditions set out in paragraph 1, and are exported, imported, produced or placed on the market in significant quantities and, if appropriate, to determine possible exemptions from the restrictions set out in Chapters I, II, or IV.
3. The Commission is empowered to adopt delegated acts in accordance with Article 29 to amend Annexes I and II as regards the global warming potential and the ozone depleting potential of the listed substances, where it is necessary in the light of new Assessments Reports by the Intergovernmental Panel on Climate Change or new reports of the SAP, established under the Protocol.
Article 23
Reporting by the Member States
1. Each year by 30 June [OP: Please insert the year of application of this Regulation] Please add year of application of the Regulation], Member States shall report the following information in an electronic format to the Commission, for the previous calendar year:
(a) the quantities of halons installed, used and stored for critical uses, pursuant to Article 9(1), the measures taken to reduce their emissions and an estimate of such emissions, and progress in evaluating and using adequate alternatives;
(b) cases of illegal trade, in particular those detected during the checks carried out pursuant to Article 26, including the imposition of penalties referred to in Article 27 where applicable.
2. The Commission may, if appropriate, by means of implementing acts, determine the format for the submission of the information referred to in paragraph 1. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 28(2).
3. The Commission is empowered to adopt delegated acts in accordance with Article 29 to amend paragraph 1 of this Article where it is necessary in view of the decisions of the Parties to the Protocol.
Article 24
Reporting by undertakings
1. Each year by 31 March [OP: Please insert the year of application of this Regulation], each undertaking shall report, via an electronic reporting tool, to the Commission the data listed in Annex VI for each ozone depleting substance for the previous calendar year.
Member States shall also have access to the electronic reporting tool of the undertakings falling under their jurisdiction.
Prior to reporting, undertakings shall register in the licensing system.
2. The Commission and the competent authorities of the Member States shall take appropriate measures to protect the confidentiality of the information submitted to it in accordance with this Article.
3. Where necessary, the Commission shall, by means of implementing acts, establish the format and means of the reporting referred to in Annex VI. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 28(2).
4. The Commission is empowered to adopt delegated acts in accordance with Article 29 to amend Annex VI, where it is necessary in view of the decisions of the Parties to the Protocol.
Chapter VII
Enforcement
Article 25
Cooperation and exchange of information
1. The competent authorities of Member States, including customs authorities, market surveillance authorities, environmental authorities and other authorities with inspection functions shall cooperate with each other, with authorities from other Member States, with the Commission, and if necessary, with administrative authorities of third countries in order to ensure compliance with this Regulation.
When cooperation with customs authorities is needed to ensure a proper implementation of the customs risk management framework, competent authorities shall provide all necessary information to customs in accordance with Article 47(2) of Regulation (EU) No 952/2013.
2. When customs authorities, market surveillance authorities or any other competent authority of a Member State have detected an infringement of this Regulation, that competent authority shall notify the environmental authority or if not relevant any other authority responsible for the enforcement of penalties in accordance with Article 27.
3. Member States shall ensure that their competent authorities are able to efficiently have access to and exchange between them any information necessary for the enforcement of this Regulation. Such information shall include customs related data, information on ownership and financial status, any environmental violations, as well as data recorded in the licensing system.
That information shall also be made available to competent authorities of other Member States and to the Commission when needed to ensure the enforcement of this Regulation.
4. Competent authorities shall alert competent authorities of other Member States when they detect infringement of this Regulation that may affect more than one Member State. Competent authorities shall, in particular, inform competent authorities of other Member States when they detect a relevant product on the market that is not compliant with this Regulation, to enable that it is seized, confiscated, withdrawn or recalled from the market for disposal.
The Customs Risk Management System shall be used for the communication between the customs authorities.
Customs authorities shall also exchange any relevant information related to infringement of the provisions of this Regulation in accordance with Regulation (EC) No 515/97 of the European Parliament and of the Council34 and shall request assistance from the other Member States and the Commission where necessary.
Article 26
Obligation to carry out checks
1. The competent authorities of Member States shall carry out checks to establish whether undertakings comply with their obligations under this Regulation.
2. The checks shall be carried out following a risk-based approach, which takes into consideration, in particular, the history of compliance of undertakings, the risk of non-compliance of a specific product with this Regulation, and any other relevant information received from the Commission, national customs authorities, market surveillance authorities, environmental authorities and other authorities with inspection functions or from competent authorities of third countries.
Competent authorities shall also conduct checks when they are in possession of evidence or other relevant information, including based on substantiated concerns provided by third parties, concerning potential non-compliance with this Regulation.
The competent authorities of the Member States shall also carry out the checks that the Commission considers necessary to ensure compliance with this Regulation.
3. Checks referred to in paragraphs 1 and 2 shall include on-site visits of establishments with the appropriate frequency and verification of relevant documentation and equipment.
Checks shall be carried out without prior warning of the undertaking, except where prior notification is necessary in order to ensure the effectiveness of the checks. Member States shall ensure that undertakings afford the competent authorities all necessary assistance to enable those authorities to carry out the checks provided for by this Article.
4. The competent authorities shall keep records of the checks indicating in particular their nature and results, as well as on the measures taken in case of non-compliance. Records of all checks shall be kept for at least five years.
5. At the request of another Member State, a Member State may conduct checks or other formal investigations of undertakings suspected of being engaged in the illegal movement of substances and products and equipment covered by this Regulation and which are operating on the territory of that Member State. The requesting Member State shall be informed about the result of the check.
6. In carrying out the tasks assigned to it by this Regulation, the Commission may request all necessary information from the competent authorities of the Member States and from undertakings. When requesting information from an undertaking the Commission shall at the same time forward a copy of the request to the competent authority of the Member State within the territory of which the undertaking’s seat is situated.
7. The Commission shall take appropriate steps to promote an adequate exchange of information and cooperation between competent authorities of the Member States and between competent authorities of the Member States and the Commission. The Commission shall take appropriate steps to protect the confidentiality of information obtained under this Article.
Chapter VII
Penalties, committee procedure and exercise of delegation
Article 27
Penalties
1. Member States shall lay down the rules on penalties applicable to infringements of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive. Member States shall, by 1 January [OP please insert = 1 year following the entry into force of this Regulation], notify the Commission of those rules and of those provisions and shall notify it, without delay, of any subsequent amendment affecting them.
2. Without prejudice to the obligations of Member States under Directive 2008/99/EC, Member States shall, in accordance with national law, provide for competent authorities to have the power to impose appropriate administrative penalties and take other administrative measures in relation to these infringements.
3. Member States shall ensure that the level and type of penalties are appropriate and proportionate and are applied considering at least to the following criteria:
(a) the nature and gravity of the infringement;
(b) the intentional or negligent character of the infringement;
(c) any previous infringements of this Regulation by the undertaking held responsible;
(d) the financial situation of the undertaking held responsible;
(e) the economic benefits derived or expected to be derived from the infringement.
4. The Member States shall ensure that their competent authorities are able to at least impose the following penalties in case of infringements of this Regulation:
(a) fines;
(b) confiscation or seizure of illegally obtained goods or of revenues gained by the undertaking from the infringement;
(c) suspension or revocation of the authorisation to carry out activities as these fall under the scope of this Regulation.
5. In cases of unlawful production, import, export, placing on the market, or use of ozone depleting substances listed in Annex I or of products and equipment containing those substances or whose functioning relies upon those substances, Member States shall envisage maximum administrative fines of at least five times the market value of the concerned substances or products and equipment concerned. In case of a repeated infringement within a five-year period, the Member States shall envisage maximum administrative fines of at least eight times the market value of the concerned substances or products and equipment concerned.
In cases of infringements of Article 21(1), the potential impact on the climate shall be reflected by taking into account the carbon price in the determination of an administrative fine.
Article 28
Committee procedure
1. The Commission shall be assisted by the Committee on ozone depleting substances. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.
2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.
Article 29
Exercise of the delegation
1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.
2. The power to adopt delegated acts referred to in Article 7(4), Article 8(7), Article 9(3), Article 16(13), Article 18, Article 19(2), Article 20(8), Article 22, Article 23(3) and Article 24(4) shall be conferred on the Commission for an indeterminate period of time [from the date of application of the Regulation]
3. The delegation of power referred to in Article 7(4), Article 8(7), Article 9(3), Article 16(13), Article 18, Article 19(2), Article 20(8), Article 22, Article 23(3) and Article 24(4) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.
4. Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Inter-institutional Agreement of 13 April 2016 on Better Law-Making.
5. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.
6. A delegated act adopted pursuant to Article 7(4), Article 8(7), Article 9(3), Article 16(13), Article 18, Article 19(2), Article 20(8), Article 22, Article 23(3) and Article 24(4) shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.
Chapter VIII
Transitional and final provisions
Article 30 - Review
By 1 January 2033, the Commission shall publish a report on the implementation of this Regulation.Article 31
Repeal
Regulation (EC) No 1005/2009 is repealed.
References to the repealed Regulation shall be construed as references to this Regulation and read in accordance with the correlation table in Annex VIII.
Article 32
Entry into force
This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
Articles 16(14), 16(15) and 17(5) of this Regulation shall apply from:
(a) [[1 March 2023] date = the application date specified in Regulation of the European Parliament and of the Council establishing the European Union Single Window Environment for Customs and amending Regulation (EU) No 952/2013 in the Annex for the part concerning ozone depleting substances] as regards the customs procedure release for free circulation as referred to in Article 201 of Regulation (EU) No 952/2013 and export;
(b) [[1 March 2025] date = the application date specified in Regulation of the European Parliament and of the Council establishing the European Union Single Window Environment for Customs and amending Regulation (EU) No 952/2013 in the Annex for the part concerning ozone depleting substances] as regards import procedures other than the procedure referred to in point (a).