Considerations on COM(2022)150 - Fluorinated greenhouse gases - Main contents
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| dossier | COM(2022)150 - Fluorinated greenhouse gases. |
|---|---|
| document | COM(2022)150  |
| date | February 7, 2024 |
| (2) | Fluorinated greenhouse gases are human-made chemicals that are very strong greenhouse gases, which are often several thousand times stronger than carbon dioxide (CO2). Together with CO2, methane and nitrous oxide, fluorinated greenhouse gases belong to the group of greenhouse gas emissions covered by the Paris Agreement adopted under the United Nations Framework Convention on Climate Change (UNFCCC) (the ‘Paris Agreement’) (5). Today, fluorinated greenhouse gas emissions amount to 2,5 % of total greenhouse gas emissions in the Union, and have doubled from 1990 to 2014 in contrast to other greenhouse gas emissions, which have fallen. |
| (3) | Regulation (EU) No 517/2014 of the European Parliament and of the Council (6) was adopted to reverse the increase in fluorinated greenhouse gas emissions. As concluded in an evaluation prepared by the Commission, Regulation (EU) No 517/2014 has led to a year-on-year decrease of fluorinated greenhouse gas emissions. The supply of hydrofluorocarbons (HFCs) has declined by 37 % in metric tonnes and by 47 % in terms of tonnes of CO2 equivalent from 2015 until 2019. There has also been a clear shift to the use of alternatives with a lower global warming potential, including natural alternatives (for example, air, CO2, ammonia, hydrocarbons and water), in many types of equipment that traditionally used fluorinated greenhouse gases. |
| (4) | The Intergovernmental Panel on Climate Change (IPCC) concludes in its 2021 Special Report that emission decreases for fluorinated greenhouse gases of up to 90 % by 2050 globally compared to the year 2015 would be needed. In response to the urgency for climate action, the Union increased its climate ambition through Regulation (EU) 2021/1119. That Regulation establishes a binding Union domestic reduction target for net greenhouse gas emissions (emissions after deduction of removals) of at least 55 % by 2030 compared to 1990 levels and the objective of achieving climate neutrality within the Union at the latest by 2050. The Union has also enhanced its initial nationally determined contribution under the Paris Agreement of greenhouse gas emissions reductions from at least 40 % by 2030, to at least 55 %. However, the evaluation of Regulation (EU) No 517/2014 shows that the emission savings envisaged by 2030 in the context of the outdated Union climate objectives will not be fully achieved. |
| (5) | Due to global increases in HFC emissions, Parties to the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer (the ‘Protocol’) decided in 2016, under the Kigali Amendment to the Protocol (the ‘Kigali Amendment’), which was approved on behalf of the Union by Council Decision (EU) 2017/1541 (7), to implement an HFC phase-down that is to reduce HFC production and consumption by more than 80 % over the next 30 years. This implies that each Party must comply with an HFC consumption and production reduction schedule as well as provide for a licensing system for imports and exports and reporting on HFCs. It is estimated that the Kigali Amendment alone will save up to 0,4 °C of additional warming by the end of this century. |
| (6) | It is important that this Regulation ensures that the Union comply with its international obligations under the Kigali Amendment in the long term, in particular, with regard to the reduction of consumption and production of HFCs, and to reporting and licensing requirements, in particular by introducing a phase-down for production and adding reduction steps for the placing on the market of HFCs after 2030. |
| (7) | Some fluorinated greenhouse gases subject to this Regulation are Per- and Polyfluorinated Substances (PFAS) or are proven to or suspected to degrade into PFAS. PFAS are chemicals which resist degradation and potentially have negative effects on health and the environment. In line with the precautionary principle, undertakings should consider using alternatives, where available, which are less harmful for health, the environment and the climate. In 2023 a proposal under Regulation (EC) No 1907/2006 of the European Parliament and of the Council (8) to restrict the manufacture, placing on the market and use of PFAS, including fluorinated greenhouse gases, was submitted to the European Chemicals Agency. When considering potential PFAS restrictions, the Commission and Member States should take into account the availability of those alternatives. |
| (8) | To ensure coherence with the obligations under the Protocol, global warming potential of HFCs should be calculated in terms of the 100-year global warming potential of one kilogram of a gas relative to that of one kilogram of CO2, based on the Fourth Assessment Report adopted by the IPCC. For other fluorinated greenhouse gases, the Sixth IPCC Assessment Report should be used. Considering the importance of rapidly reducing greenhouse gas emissions in order to keep the target under the Paris Agreement of global warming of 1,5 °C within reach, the 20-year global warming potential of greenhouse gases is becoming increasingly relevant. In that respect, where available, the 20-year global warming potential should be provided to better inform about the climate impacts of the substances covered by this Regulation. The Commission should raise awareness of the 20-year global warming potential of fluorinated greenhouse gases. |
| (9) | The intentional release of fluorinated substances into the atmosphere, where such release is unlawful, is a serious infringement of this Regulation and should be explicitly prohibited. Operators and manufacturers of equipment should be obliged to prevent leakage of such substances to the extent possible, including through checking the most relevant equipment for leaks. Where the release of fluorinated substances is technically necessary, operators should take all technically and economically feasible measures to prevent the release of such substances into the atmosphere, including by recapturing the gases emitted. |
| (10) | Sulfuryl fluoride is another very potent greenhouse gas that can be emitted when used for fumigation. Operators, using sulfuryl fluoride for fumigation, should document the use of capture and collection measures of that gas or, when capture is not technically or economically feasible, should specify the reasons therefor. |
| (11) | Given that the production process for some fluorinated compounds can result in the emission of other fluorinated greenhouse gases, as by-products, such by-product emissions should be destroyed or recovered for subsequent use as a condition for the placing on the market of fluorinated greenhouse gases. Producers and importers should be required to document mitigation measures adopted to prevent emissions of trifluoromethane during the production process and to provide evidence of the destruction or recovery for subsequent use of those by-product emissions, in line with the best available techniques. A declaration of conformity should be provided at the moment of the placing on the market of fluorinated greenhouse gases. |
| (12) | To prevent emissions of fluorinated substances, it is necessary to lay down provisions on the recovery of substances from products and equipment and on the prevention of leakages of such substances. Foams containing fluorinated greenhouse gases should be treated in accordance with Directive 2012/19/EU of the European Parliament and of the Council (9). Recovery obligations should also be extended to building owners and contractors when removing certain foams from buildings, in order to maximise the reduction of emissions. Since the recovery, recycling and reclamation of fluorinated greenhouse gases is an application of circular economy principles, provisions on the recovery of substances are also introduced in light of the communications of the Commission of 10 March 2020 on ‘A new industrial strategy for Europe’, of 11 March 2020 on ‘A new Circular Economy Action Plan – For a cleaner and more competitive Europe’, of 14 October 2020 on ‘Chemicals Strategy for Sustainability Towards a toxic-free environment’, of 5 May 2021 on ‘Updating the 2020 New Industrial Strategy: Building a stronger Single Market for Europe’s recovery’ and of 12 May 2021 on ‘Pathway to a Healthy Planet for All – EU Action Plan: “Towards zero pollution for air, water and soil”’. |
| (13) | Cooling and freezing appliances rely heavily on fluorinated greenhouse gases for their proper functioning, and they represent one of the most relevant categories in the waste management of electrical and electronic equipment. In line with the polluter pays principle and to ensure proper waste management regarding those harmful gases, it is important that obligations relating to the extended responsibility for producers in the case of waste electrical and electronic equipment also cover the management of the fluorinated greenhouse gases contained or used in waste electrical and electronic equipment. Directive 2012/19/EU sets out financing obligations on producers of electrical and electronic equipment. This Regulation complements that Directive by requiring the financing of the collection, treatment, recovery, environmentally sound disposal, recycling, reclamation or destruction of fluorinated greenhouse gases listed in Annexes I and II to this Regulation from the products and equipment, containing those gases or whose functioning relies upon those gases, and which constitutes waste electrical and electronic equipment. |
| (14) | Refrigeration and air-conditioning equipment contained in a means of transport have particularly high leakage rates due to the vibrations that occur during transport. Operators of most means of transport should carry out leak checks or install leakage detection systems and recover fluorinated greenhouse gases for such mobile equipment. Like operators of other equipment covered by this Regulation, operators of refrigeration and air conditioning equipment on-board ships should be required to take precautionary actions to prevent the leakage of fluorinated greenhouse gases and, where such a leakage is detected, should repair it without undue delay. Given the international character of shipping, it is important that the Union and its Member States, within their respective competences, work with third countries to ensure that unnecessary emissions of fluorinated greenhouse gases in that sector are prevented, including during installation, maintenance or servicing, repair and recovery from refrigeration and air-conditioning equipment on ships. When reviewing the implementation of this Regulation, the Commission should assess the feasibility of extending the scope of containment measures to ships. |
| (15) | Regulation (EU) 2018/1139 of the European Parliament and of the Council (10) and its implementing acts lay down rules on the skills and knowledge required for natural persons who undertake maintenance or servicing activities on aircraft components. In order to prevent unnecessary emissions of fluorinated greenhouse gases in that sector, including during installation, maintenance or servicing, repair and recovery from refrigeration and air-conditioning equipment on aircraft, it is appropriate to cover the competences that are required in the regular process of updating the certification specifications and other detailed specifications, acceptable means of compliance and guidance material for the application of that Regulation. |
| (16) | In order to contribute to meeting the Union’s climate objectives and to encourage the use of technology that has no impact or less impact on the climate, that could involve the use of substances that are toxic, flammable or highly pressurised, or other relevant risks, Member States should take appropriate measures to target the need for skilled personnel so that a high number of natural persons, who carry out activities involving fluorinated greenhouse gases and technology replacing or reducing their use, are trained and certified. Such measures should include measures in the heat pump sector, where an increasing number of personnel with the necessary skills will be needed, amongst other things in light of the objectives set out in the communication of the Commission of 18 May 2022 on ‘REPowerEU Plan’, to install and service heat pumps based on novel refrigerant technologies to which different safety requirements and technical requirements apply. Member States could, for example, use the support provided by the private-public partnerships launched under the European Skills Agenda to increase the number of trained persons. Training should include information on energy efficiency aspects, alternatives to fluorinated greenhouse gases and applicable regulations and technical standards. Certification and training programmes established under Regulation (EU) No 517/2014, which could be integrated in national vocational training systems, should be reviewed or adapted enabling technicians to handle alternative technologies safely. Existing certificates issued under Regulation (EU) No 517/2014 should remain valid. |
| (17) | In May 2022, the Commission presented the REPowerEU Plan. The REPowerEU Plan includes a target to roll out 10 million hydronic heat pumps by 2027 and to double the rate of heat pump deployment by 2030, resulting in a total additional deployment of at least 30 million heat pumps by 2030. Whereas the heat pump sector will shift to lower GWP refrigerants as a result of the measures provided for under this Regulation, any increase in the deployment of heat pumps as envisaged by REPowerEU could impact the availability of HFCs on the Union market, and will depend in part on the market uptake of alternative technology before the entry into force of the prohibitions on the placing on the market under Annex IV and on the amount of heat pumps deployed that still require higher GWP gases. The Commission should closely monitor market developments, including the development of prices of fluorinated greenhouse gases listed in Section 1 of Annex I and assess at least annually whether severe shortages exist that could endanger the attainment of the REPowerEU heat pump deployment targets. If the Commission finds that such shortages exist, it should be possible to make additional amounts of HFC quota available for the heat pump sector, in addition to the quota set out under Annex VII. |
| (18) | Where suitable alternatives to the use of specific fluorinated greenhouse gases are available, the placing on the market of new equipment for refrigeration, air-conditioning, and fire protection, that contains fluorinated greenhouse gases or whose functioning relies upon those gases, and of foams and technical aerosols that contain fluorinated greenhouse gases, should be prohibited. Subject to specific conditions, such prohibitions should not apply to parts required to repair or service existing equipment that has already been installed in order to ensure that such equipment remains repairable and maintainable for its full lifespan. Where alternatives are not available or cannot be used for technical or safety reasons, or where the use of such alternatives would entail disproportionate costs, it should be possible for the Commission to authorise an exemption to allow the placing on the market of such products and equipment for a maximum period of 4 years. It should be possible to renew that exemption if, after assessment of a new substantiated exemption request, the Commission, through the committee procedure, concludes that alternatives are still not available. |
| (19) | The Commission should encourage the European standardisation organisations to develop and update relevant harmonised standards to ensure the smooth implementation of the restrictions on placing on the market laid down in this Regulation. Member States should ensure that national safety standards and building codes are updated to reflect the relevant international and European standards, including International Electrotechnical Commission (IEC) 60335-2-89 and IEC 60335-2-40. |
| (20) | The manufacture of metered dose inhalers for the delivery of pharmaceutical ingredients uses a non-negligible proportion of all HFCs consumed in the Union today. Alternative options are available that include metered dose inhalers using lower GWP fluorinated greenhouse gases as propellants that have been newly developed by industry. This Regulation includes the metered dose inhalers sector in the HFC quota system, thereby creating an incentive for the industry to pursue its path towards cleaner alternatives. To enable a smooth transition, the quota mechanism envisaged for the metered dose inhalers sector will guarantee full quota, corresponding to the most recent market share of that sector, for the period from 2025 to 2026, and reach the full reduction rate of the other sectors covered under the quota system only in 2030. HFCs used as propellants in metered dose inhalers are critical for the health of patients suffering from respiratory conditions, such as asthma and chronic obstructive pulmonary disease. Metered dose inhalers are medicinal products subject to rigorous assessments, including clinical studies, in order to ensure patient safety. Cooperation between the Commission, competent authorities in Member States and the European Medicines Agency should facilitate the smooth approval process of metered dose inhalers using low GWP fluorinated greenhouse gases and alternatives to fluorinated greenhouse gases, thereby ensuring the transition to cleaner solutions. |
| (21) | Where technically suitable alternatives are available and consistent with Union competition policy, the putting into operation of new electrical switchgear with relevant fluorinated greenhouse gases should be prohibited. Where it is necessary to extend existing electrical equipment, one or more additional cells with fluorinated greenhouse gases, with the same GWP as the existing cells, can be added if a technology using fluorinated greenhouse gases with a lower GWP would entail the replacement of the entire electrical equipment. |
| (22) | In order to limit the need for the production of virgin sulphur hexafluoride (SF6), the capacity for reclamation of SF6 from existing equipment should be increased. Without endangering the safe functioning of the electrical grids and power plants, the use of virgin SF6 in electrical switchgear should be avoided where it is technically feasible to use reclaimed or recycled SF6 and it is available. |
| (23) | In order to reduce the indirect impact of the operation of refrigeration, air-conditioning equipment and heat pumps on the climate, the maximum energy consumption of such equipment as set out in relevant implementing measures adopted under Directive 2009/125/EC of the European Parliament and of the Council (11) should continue to be considered as a ground for exempting specified types of equipment from the prohibition to use fluorinated greenhouse gases. |
| (24) | Non-refillable containers for fluorinated greenhouse gases should be prohibited since, when those containers are emptied, an amount of refrigerant inevitably remains, which is then released into the atmosphere. This Regulation should prohibit their export, import, placing on the market, subsequent supply or making available on the market, and use, except for the purpose of laboratory and analytical uses. To ensure that refillable containers for fluorinated greenhouse gases are refilled and not discarded, undertakings should be required to produce a declaration of conformity that includes evidence of the arrangements for the return of refillable containers for the purpose of refilling, when placing them on the market. |
| (25) | Following the Kigali Amendment, the export of HFCs from states that are parties to the Protocol to non-party states is prohibited. Such a prohibition is an important step towards the phasing down of HFCs. Nevertheless, several parties to the Protocol consider the prohibition to be insufficient to tackle the environmental concerns linked to the export of HFCs. Several developing countries that are parties to the Protocol have raised the problem of the export from other parties of inefficient refrigeration and air-conditioning appliances, using obsolete refrigerants and refrigerants with high GWP, to their markets, thus increasing service needs. Such a situation is particularly problematic in developing countries with limited resources and capacity for containment and recovery, as well as for used equipment with short remaining expected lifetimes and new equipment during use but at end of life. In the framework of the Union’s global efforts to mitigate climate change, in order to support the achievement of the objectives of the Protocol, and in accordance with what is already provided under Regulation (EC) No 1005/2009 of the European Parliament and of the Council (12), it is appropriate to prohibit the export of certain used and new equipment containing, or whose functioning relies upon, fluorinated greenhouse gases with a high GWP. That export prohibition should apply only in cases where the equipment is subject to a prohibition under Annex IV and at the same time meets the requirements set out in Article 22(3). |
| (26) | In order to facilitate the enforcement of the placing on the market prohibitions and the restrictions on products and equipment that contain fluorinated greenhouse gases or whose functioning relies upon those gases, including when placed on the market in containers, it is important to establish the necessary labelling requirements for those goods. |
| (27) | When desflurane is used as inhalation anaesthetic, that very potent greenhouse gas is released. In light of the availability of less potent alternatives, the use of desflurane should be permitted only where alternatives cannot be used for medical grounds. Where the derogation to permit its use applies, desflurane should, like all other gases, be captured, and the healthcare institution should keep evidence on the medical justification. |
| (28) | To implement the Protocol, including the gradual reduction of the quantities of HFCs, the Commission should continue to allocate quota to individual producers and importers for the placing on the market of HFCs, ensuring that the overall quantitative limit permitted under the Protocol is not exceeded. The Commission should be able, exceptionally, to exempt for up to 4 years from the quota requirements of HFCs for use in specific applications or specific categories of products or equipment. It should be possible to renew that exemption if, after assessment of a new substantiated exemption request, the Commission, through the committee procedure, concludes that alternatives are still not available. To protect the integrity of the gradual reduction of the quantities of HFCs placed on the market, HFCs contained in equipment should continue to be accounted for under the quota system. |
| (29) | Initially, the calculations of reference values and of the quota allocation to individual producers and importers were based on the quantities of HFCs that they reported as having been placed on the market during the reference period from 2009 to 2012. Nevertheless, in order not to exclude undertakings from entering the market or from expanding their activities, a smaller part of the overall maximum quantity should be reserved for producers and importers that have not previously placed HFCs on the market and for producers and importers that have a reference value and wish to increase their quota allocation. |
| (30) | By a recalculation at least every 3 years of the reference values and quota, the Commission should ensure that undertakings are allowed to continue their activities on the basis of the average volumes they placed on the market in recent years, also including undertakings that previously had no reference value. |
| (31) | On behalf of the Union, the Commission reports annually to the Ozone Secretariat on the import and export of hydrofluorocarbons controlled under the Protocol. Although Member States are responsible for the reporting of production and destruction of hydrofluorocarbons, the Commission should provide draft data on those activities in order to facilitate the early calculation of the Union’s consumption by the Ozone Secretariat, as well as data on HFC-23 emissions. In the absence of notifications extending the regional economic integration organisation clause, the Commission should continue that practice of annual reports while ensuring that Member States are provided with sufficient time to review the draft data provided by the Commission in order to avoid inconsistencies. |
| (32) | Considering the market value of the allocated quota, it is appropriate to claim a price for its allocation. This avoids a further fragmentation of the market to the detriment of those undertakings that need HFCs and already dependent on HFC trade in the declining market. It is assumed that undertakings that decide not to claim and pay any quota, for which they would be entitled in the year or years prior to the calculation of reference values, have decided to leave the market and thus they do not get a new reference value. Part of the revenue should be used to cover administrative costs. |
| (33) | To maintain the flexibility of the market in bulk HFCs, it should be possible for undertakings for which a reference value has been determined to transfer quota to other producers or importers in the Union or to other producers or importers which are represented in the Union by an only representative. |
| (34) | A central so-called F-gas Portal should be set up and operated by the Commission to manage quota for the placing on the market of HFCs, registration of undertakings concerned, and reporting on all substances and on all equipment placed on the market, in particular where the equipment is pre-charged with HFCs that have not been placed on the market prior to charging. To ensure that only genuine traders can register in the F-gas Portal, specific conditions should be established. A valid registration in the F-gas Portal should constitute a licence, which is an essential requirement under the Protocol to monitor HFC trade and prevent illegal activities in that respect. |
| (35) | In order to ensure automatic customs controls in real time, at shipment level, as well as the electronic exchange and storage of information on all shipments of fluorinated greenhouse gases, and products and equipment, covered by this Regulation that are presented to customs authorities in Member States (the ‘customs authorities’), it is necessary to interconnect the F-gas Portal with the European Union Single Window Environment for Customs (‘EU Single Window Environment for Customs’) established by Regulation (EU) 2022/2399 of the European Parliament and of the Council (13). |
| (36) | To enable the effectiveness of this Regulation to be monitored, the scope of the reporting obligations should be extended to cover other fluorinated substances that have significant GWP or that are likely to replace the use of fluorinated greenhouse gases. For the same reason, the destruction of fluorinated greenhouse gases and the importation into the Union of those gases when contained in products and equipment should also be reported. De minimis thresholds should be set to avoid any disproportionate administrative burden, in particular for micro-enterprises and small and medium-sized enterprises as defined in the Annex to Commission Recommendation 2003/361/EC (14) where it does not result in non-compliance with the Protocol. |
| (37) | To ensure that reports on substantial quantities of substances are accurate and that the quantities of HFCs contained in pre-charged equipment are accounted for under the Union quota system, independent third-party verification should be required. |
| (38) | The use of consistent, high-quality data to report on fluorinated greenhouse gas emissions is essential to ensure the quality of emissions reporting under the Paris Agreement. The establishment of reporting systems by Member States of emissions of fluorinated greenhouse gases would provide coherence with Regulation (EU) 2018/1999 of the European Parliament and of the Council (15). The collection of data on leakage of fluorinated greenhouse gases from equipment by undertakings under this Regulation could significantly improve those emission-reporting systems. It should also lead to a better estimation of emissions of fluorinated greenhouse gases in the national greenhouse gases inventories. |
| (39) | In order to facilitate customs controls, it is important to specify the information to be submitted to customs authorities where gases, products and equipment covered by this Regulation are imported or exported, as well as the tasks of customs authorities, and, where relevant, market surveillance authorities, when they implement the prohibitions and restrictions on imports or exports of those substances, products and equipment. Regulation (EU) 2019/1020 of the European Parliament and of the Council (16), which sets out rules on market surveillance and control of products entering the Union market, applies to the substances, products and equipment covered by this Regulation in so far as there are no specific provisions that regulate in a more specific manner particular aspects of market surveillance and enforcement. Where this Regulation lays down specific provisions, for example on customs controls, those more specific provisions prevail, thereby complementing the rules set out under Regulation (EU) 2019/1020. In order to ensure protection of the environment, this Regulation should apply to all forms of supply of fluorinated greenhouse gases that are subject to this Regulation, including distance sales as referred to in Article 6 of Regulation (EU) 2019/1020. |
| (40) | The competent authorities of Member States should take all necessary measures, including confiscation and seizure, in order to prevent the unlawful entry into or exit from the Union of gases and products or equipment covered by this Regulation. The re-export of illegally imported gases, products or equipment covered by this Regulation should in any event be prohibited. |
| (41) | Member States should ensure that customs office personnel or other authorised persons in accordance with national rules carrying out controls under this Regulation have the appropriate resources and knowledge, for example by way of training made available to them, and are sufficiently equipped to address cases of illegal trade in the gases, products and equipment covered by this Regulation. Member States should designate the customs offices or other places that meet those conditions and are therefore mandated to carry out customs controls on imports, exports and in cases of transit. |
| (42) | Cooperation and exchange of necessary information between all competent authorities of Member States involved in the implementation of this Regulation, namely customs authorities, market surveillance authorities, environmental authorities and any other competent authorities with inspection functions, amongst Member States and with the Commission, is extremely important for tackling infringements of this Regulation, in particular illegal trade. Due to the confidential nature of the exchange of customs risk-related information, the Customs Risk Management System should be used for that purpose. |
| (43) | In carrying out the tasks assigned to it by this Regulation, and with a view to promoting cooperation and adequate exchange of information between competent authorities and the Commission in the case of compliance checks and illegal trade in fluorinated greenhouse gases, the Commission should make use of the European Anti-Fraud Office (OLAF) established by Commission Decision 1999/352/EC, ECSC, Euratom (17). OLAF should have access to all necessary information to facilitate the performance of its tasks. |
| (44) | The import from and export to a State that is not party to the Protocol of HFCs as well as of products and equipment containing HFCs or whose functioning relies upon those gases should be prohibited as from 2028. The Protocol envisages that prohibition from 2033, and the purpose of its earlier application under this Regulation is to ensure that the global HFC reduction measures of the Kigali Amendment provide the envisaged benefit to the climate as soon as possible. |
| (45) | Member States should ensure that infringements of this Regulation by undertakings are subject to effective, proportionate and dissuasive penalties. |
| (46) | Member States should be able to lay down rules for criminal penalties or administrative penalties or both for the same infringement. Where Member States impose both criminal and administrative penalties for the same infringement, those penalties should not lead to a breach of the right not to be tried or punished twice in criminal proceedings for the same criminal offence (ne bis in idem), as interpreted by the Court of Justice of the European Union. |
| (47) | The competent authorities of Member States, including environmental authorities, market surveillance and customs authorities, should carry out checks, on a risk-based approach, in order to ensure compliance with this Regulation. Such an approach is necessary in order to target those activities which represent the highest risk of illegal trade in, or unlawful release of, fluorinated greenhouse gases covered by this Regulation. In addition, competent authorities should carry out checks when in possession of evidence or other relevant information on potential cases of non-compliance. Where relevant and to the extent possible, such information should be communicated to customs authorities in order to carry out a risk analysis prior to controls, in accordance with Article 47 of Regulation (EU) No 952/2013 of the European Parliament and of the Council (18). It is important to ensure that where cases of infringements of this Regulation have been established by competent authorities, the competent authorities responsible for following up the issuance of penalties are informed in order to be able to impose the appropriate penalty where it is needed. |
| (48) | Whistleblowers can bring information to the attention of competent authorities of Member States which can help those competent authorities detect infringements of this Regulation and enable them to impose penalties. It should be ensured that adequate arrangements are in place to enable whistleblowers to alert the competent authorities to actual or potential infringements of this Regulation and to effectively protect the whistleblowers from retaliation. For that purpose, it should be provided that Directive (EU) 2019/1937 of the European Parliament and of the Council (19) is applicable to the reporting of breaches of this Regulation and to the protection of persons reporting such breaches. |
| (49) | According to settled case law of the Court of Justice of the European Union, it is for the courts of the Member States to ensure judicial protection of a person’s rights under Union law. Furthermore, Article 19(1) of the Treaty on European Union (TEU) requires Member States to provide remedies that are sufficient to ensure effective legal protection in the fields covered by Union law. In that respect, Member States should ensure that the public, including natural or legal persons, has access to justice in line with the obligations that Member States have agreed to under the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (20) of 25 June 1998 (the ‘Aarhus Convention’). |
| (50) | The Commission should establish a so-called Consultation Forum. The Consultation Forum should ensure the balanced participation of Member States’ representatives and representatives of relevant stakeholders, including environmental organisations, representatives of healthcare and patient association as well as representatives of manufacturers, operators and certified persons. The Consultation Forum should, where relevant, involve the European Medicines Agency. |
| (51) | To enhance legal certainty, the applicability, pursuant to this Regulation, of Directive (EU) 2019/1937 to reports of breaches of this Regulation and to the protection of persons reporting such breaches should be reflected in Directive (EU) 2019/1937. The Annex to Directive (EU) 2019/1937 should therefore be amended accordingly. It is for the Member States to ensure that that amendment is reflected in their transposition measures adopted in accordance with that Directive, although neither the amendment, nor the adaptation of national transposition measures, are a condition for the applicability of Directive (EU) 2019/1937 to the reporting of breaches of this Regulation and to the protection of persons reporting such breaches. |
| (52) | In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission as regards:
Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (21). |
| (53) | In order to supplement or amend certain non-essential elements of this Regulation, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union (TFEU) should be delegated to the Commission as regards:
It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (22). In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States' experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts. |
| (54) | The protection of individuals with regard to the processing of personal data by the Member States is governed by Regulation (EU) 2016/679 of the European Parliament and of the Council (23) and the protection of individuals with regard to the processing of personal data by the Commission is governed by Regulation (EU) 2018/1725 of the European Parliament and of the Council (24), in particular as regards the requirements of confidentiality and security of processing, the transfer of personal data from the Commission to the Member States, the lawfulness of processing, and the rights of data subjects to information, access to and rectification of their personal data. |
| (55) | The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EU) 2018/1725 and delivered formal comments on 23 May 2022. |
| (56) | Since the objectives of this Regulation, namely to prevent additional fluorinated greenhouse gas emissions, thereby contributing to Union climate objectives, and to ensure compliance with the Protocol as regards obligations related to hydrofluorocarbons, cannot be sufficiently achieved by the Member States but can rather, by reason of the transboundary nature of the environmental problem addressed and the effects of this Regulation on the intra-Union and external trade, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives. |
| (57) | A number of amendments are to be made to Regulation (EU) No 517/2014. In the interests of clarity, that Regulation should be repealed and replaced by this Regulation, |