Considerations on COM(2022)151 - Substances that deplete the ozone layer - Main contents
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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 |
(2) The ozone layer protects humans and other living beings from harmful ultra-violet (UV) radiation from the sun. It is scientifically well established that continuous emissions of ozone depleting substances cause significant damage to the ozone layer, leading to significant adverse impacts on human health and ecosystems, the biosphere as well as to large economic implications if left unaddressed.
(3) Pursuant to Council Decision 88/540/EEC17, the Union became a Party to the 1985 Vienna Convention for the Protection of the Ozone Layer and to its Montreal Protocol on Substances that Deplete the Ozone Layer (‘the Protocol’) adopted in 1987. The Protocol and subsequent decisions of its Parties constitute a set of globally binding control measures to address ozone depletion.
(4) Regulation (EC) No 1005/2009 of the European Parliament and of the Council18 ensures, inter alia, that the Union complies with the Protocol. The Commission in its evaluation of Regulation (EC) No 1005/200919 concluded that the control measures established under that Regulation remain, in general, fit-for-purpose.
(5) There is clear evidence of a decrease in the atmospheric burden of ozone depleting substances and of stratospheric ozone recovery. However, the recovery of the ozone layer to the concentrations level existing before 1980 is not projected to take place before the middle of the 21st century. Therefore, increased UV-radiation persists as a significant threat to health and the environment. Avoiding the risk of further delays in the recovery of the ozone layer remains dependent on ensuring that existing obligations are fully implemented, as well as that the necessary measures are in place to address any upcoming challenges swiftly and effectively.
(6) Most ozone depleting substances also have high global warming potential and are contributory factors towards increasing the temperature of the planet. Considering the significant findings of the Intergovernmental Panel on Climate Change (IPCC) Special Report,20 this Regulation should ensure that all feasible efforts are taken to reduce emissions of ozone depleting substances. Reducing emissions contributes to reaching the objective of the Paris Agreement adopted under the United Nations Framework Convention on Climate Change21 of ‘keeping a global temperature rise in this century well below 2 degrees Celsius above pre-industrial levels and to pursue efforts to limit the temperature increase even further to 1.5 degrees Celsius’.
(7) In order to increase awareness on the global warming potential of ozone depleting substances, in addition to the ozone depleting potential of the substances, their respective global warming potential should also be listed in this Regulation.
(8) Regulation (EC) No 1005/2009 and previous Union legislation, established more stringent control measures than required under the Protocol, requiring more restrictive rules on import and export.
(9) Under Regulation (EC) No 1005/2009, the production and placing on the market of ozone depleting substances has been phased-out for almost all uses. The placing on the market of products and equipment containing or relying on ozone depleting substances has also been prohibited except for certain cases where the use of such substances is still allowed. Even after the phase-out of ozone depleting substances, under certain conditions, it is necessary to continue to allow for exemptions for certain uses, where alternatives are not yet available.
(10) Taking into account the small quantities of ozone depleting substances actually used for essential laboratory and analytical uses, a proportionate control measure needs to be established in this respect. The registration obligation under Regulation (EC) No 1005/2009 should be replaced with the requirement to retain records in order to allow controlling unlawful use and monitoring of developments of alternatives.
(11) The placing on the market and use of halons should only be allowed for critical uses, which should be determined taking into account the availability of alternative substances or technologies and developments of international standards.
(12) Halons Technical Options Committee (HTOC) established under the Protocol indicated that non-virgin halon stocks for critical uses might not be sufficient to meet the needs from 2030 onwards at global level. To avoid that new production of halons become necessary to meet future needs, it is important to take measures to increase the availability of stocks of halon recovered from equipment.
(13) Under Regulation (EC) No 1005/2009, the exemption for critical uses of methyl bromide (for quarantine and pre-shipment purposes) ceased on 18 March 2010. The possibility to grant a derogation in emergency situations should, however, remain available, namely in the event of unexpected pests or disease outbreaks where such emergency use is to be permitted under Regulation (EC) No 1107/2009 of the European Parliament and of the Council22 and Regulation (EU) No 528/2012 of the European Parliament and of the Council23.
(14) Restrictions set out in this Regulation regarding products and equipment containing ozone depleting substances should also cover products and equipment relying on those substances in order to prevent circumventions of those restrictions.
(15) It is important to ensure that ozone depleting substances are allowed to be placed on the market for the purpose of reclamation in the Union. Ozone depleting substances and the products and equipment containing those substances or whose functioning relies upon those substances should also be allowed to be placed on the market for the purpose of destruction by technologies approved by the Parties or by technologies not yet approved but that are environmentally equivalent.
(16) Non-refillable containers for ozone depleting substances, should be banned, considering that an amount of substance inevitably remains in these containers when emptied, which is then released into the atmosphere. In this respect, it is necessary to prohibit their import, placing on the market, subsequent supply or making available on the market, use, except for laboratory and analytical uses, and their export.
(17) Regulation (EC) No 1272/2008 of the European Parliament and of the Council24 provides for the labelling of substances classified as ozone depleting substances and the labelling of mixtures containing such substances. As it is allowed to release for free circulation in the Union market ozone depleting substances produced for feedstock, process agent, laboratory and analytical uses, those substances should be distinguished from substances that are produced for other uses.
(18) The export of products and equipment containing hydrochlorofluorocarbons may be exceptionally permitted in cases where it may be more beneficial to allow these products and equipment to end their natural life cycle in a third country than to be decommissioned and disposed of in the Union.
(19) Given that the production process for some ozone depleting substances can result in emissions of the fluorinated greenhouse gas produced trifluoromethane as a by-product, such by-product emissions should be destroyed or recovered for subsequent use as a condition for the placing the ozone depleting substance on the market. Producers and importers should also be required to document measures adopted to prevent emissions of trifluoromethane during the production process.
(20) To avoid illegal trade of prohibited substances and products covered under this Regulation, the prohibitions established therein as well as the licensing requirements for trade should not only cover the entry of goods into the customs territory for release for free circulation in the Union, but also temporary storage and all other customs procedures established under Union customs law. Licensing facilitations should be allowed for goods under temporary storage, in order to avoid unnecessary burden on operators and customs authorities.
(21) The licensing system on imports and exports of ozone depleting substances is an essential requirement under the Protocol for monitoring trade and preventing illegal activities in this respect. 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 substances and products and equipment covered by this Regulation presented to customs it is necessary to interconnect the electronic licensing system for ozone depleting substances with the European Union Single Window Environment for Customs established by Regulation (EU) No …/… of the European Parliament and of the Council [full reference to be inserted once that Regulation has been adopted].25 Given this interconnection with the European Single Windows Environment for Customs it is disproportionate to provide for a shipment licencing system in the Union.
(22) 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 substances and products covered by this Regulation, as well as the tasks for customs authorities, and market surveillance authorities where relevant, when implementing the prohibitions and restrictions to imports and exports of those substances and the products and equipment covered by this Regulation.
(23) To ensure that substances as well as products and equipment covered by this Regulation that have been imported illegally in the Union market does not re-enter the market, competent authorities should confiscate or seize these products for disposal. Re-export of products not compliant with this Regulation should be prohibited in any event.
(24) 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 in the substances 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.
(25) 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.
(26) 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 ozone depleting substances, 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.
(27) In order to ensure compliance with the Protocol the import and export of ozone depleting substances as well as products and equipment containing those substances or relying on those substances from and to a State not party to the Protocol should be prohibited.
(28) The intentional release of ozone depleting substances into the atmosphere, where such release is unlawful, is a serious infringement of this Regulation and should be explicitly prohibited. All feasible measures should be taken by undertakings to reduce the unintentional release of ozone depleting substances into the atmosphere also considering their global warming potential. Thus, it is necessary to lay down provisions on the recovery of used ozone depleting substances from products and equipment and the prevention of leakages of such substances. Recovery obligations should also be extended to building owners and contractors when removing certain foams from buildings to maximise emissions reductions.
(29) It is necessary to lay down rules on new ozone depleting substances not yet covered by the Protocol (listed in Annex II), considering the quantities produced and used in the Union as well as the effect on stratospheric ozone from emissions of these substances.
(30) Member States should report on cases of illegal trade detected by competent authorities to the Commission including on the penalties issued.
(31) The use of halons should only be allowed for critical uses established in this Regulation. Member States should report on the quantities of halons installed, used or stored from critical uses, as well as on containment measures to reduce emissions from these substances and on progress made in identifying alternatives. This information is needed for knowing the halon quantities still available in the Union for critical uses, as well as for monitoring technological progress in this area which will signal that for certain uses, halon is no longer necessary.
(32) The Protocol requires reporting on trade in ozone depleting substances. Producers, importers and exporters of ozone depleting substances should therefore report annually on trade in ozone depleting substances. Trade in ozone depleting substances not yet covered by the Protocol (listed in Annex II), should also be reported in order to be able to assess the need to extend some or all of the control measures applicable for the substances listed in Annex I to also cover those substances.
(33) Competent authorities of the Member States, including their environmental authorities, market surveillance and customs authorities, should carry out checks, taking 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 ozone depleting substances into the atmosphere. 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) No 952/2013 of the European Parliament and of the Council26. It is important to ensure that competent authorities responsible for issuing penalties are informed of cases of infringements of this Regulation in order to be able to issue the appropriate penalty where needed.
(34) 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.
(35) It is also necessary to provide for administrative penalties of such a level and type that truly deter violations of this Regulations.
(36) 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 Council27.
(37) In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission as regards to the establishment of a list of undertakings that may use ozone depleting substances as process agents as well as the maximum quantities to be used for make-up or for consumption, and maximum emission levels for each undertaking; the determination of essential and analytical uses for which production and import is permitted within a certain period and the specification of authorised users, the granting of derogations from the end-dates and cut-off dates established in relation to critical uses of halons; the authorisation of the temporary production, placing on the market, further supply and use of methyl bromide in emergency cases; the authorisation of the export of products and equipment containing hydrochlorofluorocarbons; the detailed arrangements for the declaration of conformity for pre-charged equipment and verification; the evidence to be provided on the destruction or recovery of trifluoromethane by production during the manufacturing of ozone depleting substances; the form and content of labelling requirements; the authorisation of trade with entities not covered by the Protocol; and the format for the submission of information by Member States on critical uses of halons and illegal trade, as well as the format and means of the information to be reported by undertakings in particular on production, import, export, feedstock uses and destruction. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council28
(38) 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 as regards the processes for which ozone depleting substances may be used as process agents, and the maximum amount permitted for such uses including their emissions in the Union, the conditions for the placing on the market and further distribution of ozone depleting substances for essential laboratory and analytical uses, the timeframes established in Annex V for critical uses of halons, the functioning of the licensing system for ozone depleting substances, 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 or exported to any entity not covered by the Protocol; the establishment of a list of products and equipment for which the recovery of ozone depleting substances and their destruction is technically and economically feasible, and the specification of the technologies to be applied; amendments of Annexes I and II listing ozone depleting substances; the update of global warming and ozone depleting potentials of listed substances; the reporting requirements for Member States on critical uses of halons and illegal trade and the reporting requirements by undertakings in particular on production, import, export, feedstock uses and destruction. 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. 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.
(39) The protection of individuals with regard to the processing of personal data by the Member States is governed by Regulation (EU) No 2016/679 of the European Parliament and of the Council29 and the protection of individuals with regard to the processing of personal data by the Commission is governed by Regulation (EU) No 2018/1725 of the European Parliament and of the Council30 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.
(40) The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EU) No 2018/1725 and delivered an opinion [date of issuing of the opinion].
(41) 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.
(42) A number of amendments are to be made to Regulation (EC) No 1005/2009. In the interests of clarity, that Regulation should be repealed and replaced.