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 (‘GHG’), often several thousand times stronger than carbon dioxide (‘CO2’). Together with CO2, methane and nitrous oxide, they belong to the group of GHG emissions covered by the Paris Agreement adopted under the United Nations Framework Convention on Climate Change (‘the Paris Agreement’). 25 Fluorinated greenhouse gas emissions amount today to 2.5 % of total GHG emissions, in the Union, but have doubled from 1990 to 2014 in contrast to other GHG emissions, which have fallen.
(3) Regulation (EU) No 517/2014 of the European Parliament and of the Council 26 was adopted to reverse the increase in fluorinated greenhouse gas emissions. As concluded by 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 47 % in terms of tonnes CO2 equivalent from 2015 until 2019. There has also been a clear shift to the use of alternatives with lower global warming potential (‘GWP’) including natural alternatives (for example CO2, ammonia, hydrocarbons, water) in many types of equipment that used fluorinated greenhouse gases traditionally.
(4) The Intergovernmental Panel on Climate Change (IPCC) Special report 27 concluded 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 of the European Parliament and of the Council (the European Climate Law). 28 That Regulation establishes a binding net GHG reduction target of at least 55 % by 2030 compared to 1990 and climate neutrality by 2050. The Union has also enhanced its initial nationally determined contribution under the Paris Agreement from at least 40 % greenhouse gas emissions reductions 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the evaluation of Regulation (EU) No 517/2014 shows that the emission savings envisaged by 2030 in the context of the outdated Union climate objectives will not be fully achieved.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 rising HFC emissions globally, Parties to the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer (‘the Protocol’) decided in 2016 under the Kigali Amendment 29 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 providing for a licencing 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 the century.
(6) It is important that this Regulation ensures that the Union complies with its international obligations under the Kigali Amendment to the Protocol in the long-term, in particular, with regards to the reduction of consumption and production of HFCs, reporting and licensing requirements, in particular by introducing a phase-down for production and adding reduction steps for the placing of HFCs on the market for the time after 2030.
(7) To ensure coherence with the reporting requirements under the Protocol, global warming potentials of HFCs should be calculated in terms of the 100-year global warming potential of one kilogram of a gas relative to one kilogram of CO2 based on the Fourth Assessment Report adopted by the IPCC. For other substances, the most recent IPCC Assessment Report should be used. 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.
(8) The intentional release of fluorinated substances, where 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 leak checking of the most relevant equipment.
(9) Given that the production process for some fluorinated compounds can result in significant emissions of other fluorinated greenhouse gases produced as by-products, such by-product emissions should be destroyed or recovered for subsequent use as a condition for the placing of fluorinated greenhouse gases on the market. Producers and importers should be required to document measures adopted to prevent emissions of trifluoromethane during the production process.
(10) To prevent emissions of fluorinated substances, it is necessary to lay down provisions on the recovery of substances from products and equipment and 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. 30 Recovery obligations should also be extended to building owners and contractors when removing certain foams from buildings, in order to maximise emissions reductions.
(11) To encourage the use of technologies with no impact or lower impact on the climate that may involve the use substances that are toxic, flammable or highly pressurized, the training of natural persons who carry out activities involving fluorinated greenhouse gases should cover technologies replacing or reducing the use of fluorinated greenhouse gases, including information on energy efficiency aspects and applicable regulations and technical standards. Certification and training programmes established under Regulation (EU) No 517/2014, which may be integrated in national vocational training systems, should be reviewed or adapted enabling technicians to handle alternative technologies safely.
(12) The existing prohibitions on specific uses of sulphur hexafluoride, the most climate damaging substance known, should be retained and be complemented by additional restrictions on the use in the critical sector of power distribution.
(13) Where suitable alternatives to the use of specific fluorinated greenhouse gases are available, bans should be introduced on 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. 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 limited period.
(14) For reasons of reducing the indirect impact of the operation of equipment for refrigeration, air-conditioning on the climate, the maximum energy consumption of such equipment set out in relevant implementing measures adopted under Directive 2009/125/EC of the European Parliament and of the Council 31 should continue to be considered as reason for exempting specified types of equipment from the prohibition to use fluorinated greenhouse gases.
(15) Non-refillable containers for ozone depleting substances, should be banned, considering that an amount of refrigerant inevitably remains in these containers when emptied, which is then released into the atmosphere. In this respect, this Regulation should prohibit their import, placing on the market, subsequent supply or making available on the market, use unless for laboratory and analytical uses, and their export.
(16) In order to facilitate the enforcement of the placing on the market prohibitions and the restriction to 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.
(17) To implement the Protocol, including the gradual reduction of the quantities of HFCs, the Commission should continue to allocate quotas to individual producers and importers for the placing of HFCs on the market, ensuring that the overall quantitative limit permitted und the Protocol is not exceeded. 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.
(18) Initially, the calculation of reference values and the allocation of quotas to individual producers and importers was based on the quantities of HFCs that they reported as having been placed on the market during the reference period 2009 to 2012. However, in order not to exclude undertakings from entering the market, or expanding their activities, a smaller part of the overall maximum quantity should be reserved for importers and producers who have previously not placed HFCs on the market and for importers and producers having a reference value that wish to increase their quota allocation.
(19) By a triannual recalculation of the reference values and quotas, 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.
(20) 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 are in need of the HFC supply 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(s) prior to the calculation of reference values, have decided to leave the market and thus they do not get a new reference value. The revenue should be used to cover administrative costs.
(21) To maintain the flexibility of the market in bulk HFCs, it should be possible to transfer quotas from undertakings that have received a reference value to other producers or importers in the Union or to other producers or importers which are represented in the Union by an only representative.
(22) A central so-called F-gas Portal should be set up and operated by the Commission to manage quotas for the placing of HFCs on the market, registration of concerned undertakings, and the 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 the charging. To ensure that only genuine operators are registering in the F-gas Portal, specific conditions should be established. A valid registration in the F-gas Portal should constitute a license, which is an essential requirement under the Protocol for the monitoring of trade and preventing illegal activities in this respect.
(23) In order to ensure automatic, real-time, customs controls, at shipment level as well as an electronic exchange and storing of information on all shipments of fluorinated greenhouse gases and the concerned products and equipment presented to customs it is necessary to interconnect the F-gas Portal with European Union Single Window Environment for Customs established by Regulation (EU) No …/… of the European Parliament and of the Council [the full reference to be inserted once that Regulation has been adopted]. 32
(24) To enable the monitoring of the effectiveness of this Regulation, the scope of the reporting obligations should be extended to cover other fluorinated substances that have significant global warming potential 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 disproportionate administrative burden, in particular for small and medium-sized enterprises and micro-enterprises where it does not result in non-compliance with the Protocol.
(25) 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, third party verification should be required.
(26) The use of consistent, high-quality data to report on fluorinated greenhouse gas emissions is essential to ensuring the quality of emissions reporting under the United Nations Framework Convention on Climate Change. 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 33 . Data on leakage of fluorinated greenhouse gases from equipment collected by companies under this Regulation could significantly improve those emission reporting systems. In that way, it should lead to a better estimation of emissions of fluorinated greenhouse gases in the national greenhouse gases inventories.
(27) In order to facilitate customs controls, it is important to specify the information to be submitted to customs authorities in cases of imports and exports of the gases and products covered by this Regulation, as well as the tasks for customs authorities when implementing the prohibitions and restrictions to imports and exports of those substances and the products and equipment covered by this Regulation.
(28) Competent authorities of Member States should take all necessary measures, including confiscation and seizure, in order to prevent the unlawful entry or exit into and from the Union of gases and products covered by this Regulation. The re-export of illegally imported products covered by this Regulation should be prohibited in any event.
(29) Member States should ensure that customs authorities carrying out controls under this Regulation have the appropriate resources and knowledge, for example via training made available to them, and are sufficiently equipped in view of addressing cases of illegal trade of the gases and products and equipment covered by this Regulation. Member States should designate those customs offices that meet those conditions and are therefore mandated to carry out customs controls on imports, exports and in cases of transit.
(30) Cooperation and exchange of the necessary information between all competent authorities 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, notably 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.
(31) In carrying out the tasks assigned to it by this Regulation, and in view of promoting cooperation and adequate exchange of information between competent authorities and the Commission in cases of compliance checks and illegal trade in fluorinated greenhouse gases, the Commission should be assisted by the European Anti-Fraud Office (OLAF). OLAF should have access to all necessary information to facilitate the performance of its tasks.
(32) The import and export of HFCs as well as products and equipment containing HFCs or whose functioning relies upon those gases from and to a State not party to the Protocol should be prohibited as from 2028. The parallel prohibition envisaged under the Protocol as from 2033 has thus been advanced, to ensure that the global HFC reduction measures of the Kigali Amendment provide the envisaged benefit to the climate as soon as possible.
(33) Member States should lay down rules on penalties applicable to infringements of the provisions of this Regulation and ensure that they are implemented. Those penalties should be effective, proportionate and dissuasive.
(34) It is also necessary to provide for administrative penalties of such a level and type that truly deter violations of this Regulations.
(35) Serious infringements of this Regulation should also be prosecuted under criminal law, in accordance with Directive 2008/99/EC of the European Parliament and of the Council. 34
(36) Competent authorities of the Member States, including their environmental authorities, market surveillance and customs authorities, should carry out checks, on a risk-based approach, in order to ensure compliance with all provisions of this Regulation. Such approach is necessary in order to target the activities representing the highest risk of illegal trade 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 proceed to a risk analysis prior to controls, in accordance with Article 47 of Regulation (EU) 952/2013 of the European Parliament and of the Council. 35 It is important to ensure that competent authorities responsible for following up the issuing of penalties are informed when cases of infringements of this Regulation have been established by other competent authorities.
(37) Whistle-blowers can bring new information to the attention of competent authorities which may help the 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 whistle-blowers to alert the competent authorities to actual or potential infringements of this Regulation and to protect the whistle-blowers from retaliation. For that purpose, it should be provided in this Regulation that Directive (EU) 2019/1937 of the European Parliament and of the Council 36 is applicable to the reporting of breaches of this Regulation and to the protection of persons reporting such breaches.
(38) 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 the 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 reporting persons.
(39) In implementing this Regulation, the Commission should establish a so-called Consultation Forum to ensure a balanced participation of Member States’ representatives and representatives of civil society, including environmental organisations, representatives of manufacturers, operators and certified persons.
(40) In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission as regards evidence to be provided on the destruction or recovery of trifluoromethane by-production during the manufacturing of other fluorinated substances; requirements for leak checks; the format of the records, their establishment and maintenance; minimum requirements for certification programmes and training attestations; the format of the notification of certification and training programmes; exemptions for products and equipment falling under a placing on the market prohibition; the format of labels; the determination of production rights for producers of HFCs; exemptions from the quota requirement for HFCs for use in specific applications, or specific categories of products or equipment; the determination of reference values for producers and importers for the placing on the market of HFCs; the modalities and detailed arrangements for the payment of the amount due; the detailed arrangements for the declaration of conformity for pre-charged equipment and their verification as well as for the accreditation of verifiers; the smooth functioning of the registry; the authorisation of trade with entities not covered by the Protocol; the details of the verification of reporting and of the accreditation of verifiers and the format for submitting reports. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council. 37
(41) In order to 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 in respect of the establishment of a list of products and equipment for which the recovery of gases or their destruction is technically and economically feasible and the specification of the technologies to be applied; labelling requirements; the exclusion from quota requirements of HFCs in accordance with decisions of the Parties to the Protocol; concerning the amounts due for the allocation of quota and the mechanism to allocate remaining quotas; additional measures for the monitoring of substances and of products and equipment placed under temporary storage and customs procedures; the rules applicable to the release for free circulation of products and equipment imported from and exported to any entity not covered by the Protocol; the update of global warming potentials of listed substances. 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 Inter-institutional Agreement of 13 April 2016 on Better Law-Making 38 . 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.
(42) 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 39 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 40 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.
(43) The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EU) 2018/1725 of the European Parliament and of the Council and delivered an opinion on [date of delivery of the opinion].
(44) Since the objectives of this Regulation 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 of the Treaty on European Union. 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.
(45) 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.
(46) In view of the yearly quota allocation and reporting process set out in this Regulation, it is appropriate that this Regulation applies as from 1 January [OP please insert the year following the year of the date of entry into force of this Regulation].