**Important legal notice**

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# 52005PC0296

**Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a Regulation of the European Parliament and of the Council on certain fluorinated greenhouse gases; and a Directive of the European Parliament and of the Council relating to emissions from air conditioning systems in motor vehicles and amending Council Directive 70/156/EEC  /* COM/2005/0296 final - ( 2003/0198 */****

[pic] | COMMISSION OF THE EUROPEAN COMMUNITIES |

Brussels, 01.07.2005

COM(2005)296 final

2003/0189 A (COD)2003/0189 B (COD)

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the

common position of the Council on the adoption of a Regulation of the European Parliament and of the Council on certain fluorinated greenhouse gases; and a Directive of the European Parliament and of the Council relating to emissions from air conditioning systems in motor vehicles and amending Council Directive 70/156/EEC

2003/0189 A (COD)2003/0189 B (COD)

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the

common position of the Council on the adoption of a Regulation of the European Parliament and of the Council on certain fluorinated greenhouse gases; and a Directive of the European Parliament and of the Council relating to emissions from air conditioning systems in motor vehicles and amending Council Directive 70/156/EEC

1. PROCEDURE

The Proposal COM(2003)492 final of 11 August 2003 was forwarded to the Council and the Parliament on 12 August 2003 in accordance with the co-decision procedure pursuant to Article 175 (1) of the EC Treaty.

The European Economic and Social Committee gave its Opinion on 28 January 2004[1].

The European Parliament gave its Opinion at the first reading in session on 31 March 2004.

Following the opinion of the European Parliament and pursuant to Article 250(2) of the EC Treaty, the Council reached political agreement on a Common Position by a qualified majority on 14 October 2004.

The Council adopted the Common Position formally on 20 June 2005.

2. PURPOSE OF THE COMMISSION PROPOSAL

The overall objective of the Commission proposal is to make a significant contribution towards the European Community’s Kyoto Protocol target by introducing cost-effective measures to reduce the emissions of fluorinated greenhouse gases. Estimated emissions (CO2 equivalent) of these fluorinated greenhouse gases would increase by around 50% between 1995 and 2010 under business as usual. It is even more important for the EU to adopt and to implement legislation swiftly to reduce its greenhouse gas emissions with the Kyoto Protocol’s entry into force on 16 February 2005.

A second objective is to prevent distortion of the internal market that could result from differing Member States’ existing or planned measures taken in order to meet their Kyoto objectives. This implies harmonised restrictions on the marketing and the use of fluorinated gases in applications where their containment is either difficult to achieve or their use is considered inappropriate and suitable alternatives exist. A key element is the control of the leakage of the specific fluorinated greenhouse gases in the air conditioning systems fitted to vehicles (mobile air conditioning systems - MACs) and to prohibit from a certain date MACs using HFC 134 a.

The proposal is expected to reduce projected emissions of fluorinated gases by around 23 million tonnes of CO2 equivalent by 2010, and even greater reductions after as some provisions, notably the phase out of HFC-134a in MACs, will only have a significant impact after 2010.

Building on the Commission’s proposal, the Common Position which takes the form of two legislative instruments, can make an important contribution for ensuring that the legal commitments to reduce greenhouse gas emissions, pursuant to the Kyoto Protocol, which was ratified by the European Community and its Member States on 31 May 2002, are fulfilled in a cost-effective way.

3. COMMISSION COMMENTS ON THE COMMON POSITION

3.1. General comments

54 of the 81 amendments proposed by the Parliament are incorporated totally, in part or in principle in the Common Position. 27 amendments, proposed by the Parliament that are in the Common Position, are accepted by the Commission.

The Commission considers that the Common Position, in the form of a Regulation on certain fluorinated greenhouse gases and a Directive on emissions from MACs, does not alter the approach and aims of its proposal. The change in form also reflects the Parliament’s wish to address MACs through type-approval legislation. The Commission agreed to this change in form on the basis that the two elements are considered as an overall package that guarantees the environmental ambition of the original proposal. The Council agreed to this and it is reflected in the recitals to the Common Position.

The Commission made a statement on Article 10 of the Regulation (in Annex)

3.2. Detailed comments

3.2.1. Parliamentary amendments accepted by the Commission and incorporated in full, in principle or in part in the Common Position

Amendments 3, 34 and 79 add the word “greenhouse” before fluorinated gases (it is used throughout the text).

Amendment 8 sets out in more detail all the aspects that Article 1(2) of the Regulation will address in the Common Position.

Amendment 12 improves the definition of recovery.

Amendment 13 provides a definition of destruction.

Amendments 15, 16 and 17 provide greater clarity on the definition of substances covered.

Amendment 18 provides legal clarity and certainty on the definition of GWP.

Amendment 29 ensures that repair work is properly done after leakage.

Amendment 30 provides for a reduction of inspection frequency if no leakage

Amendment 31 and 107 allow inspections of fire fighting equipment under ISO 14520

Amendments 32 and 33 require leakage detection systems to be in areas where leakage is more likely.

Amendment 35 provides for repair of leaks as soon as possible .

Amendment 41 requires Member States to adapt their training schemes.

Amendments 46, 50, 52 and 63 clarify the text with respect to data reporting.

Amendment 78 aims to provide information about the GWP of products and equipment containing fluorinated gases in the new labelling provision.

Amendment 82 introduces a review to establish whether the Regulation needs revising. Concerning the Directive, this is covered in principle by Article 8. Amendment 111 requires that from 31 December 2006 new vehicles types comply with the leakage rates established in a standardised test procedure.

3.2.2. Parliamentary amendments acceptable to the Commission but not incorporated in the Common Position

Concerning recitals: amendment 7 concerns training and certification. The Council has decided not to go into detail with regard to each provision which the Commission can support given that the training and certification provisions of the Regulation are strengthened.

Concerning the definitions: defining terms based on Community legislation if possible can help to give clarity and certainty as in amendments 9 and 11. The Common Position does not include the Parliament’s proposed definitions of container and producer but the Commission believes that this does not undermine its proposal.

Concerning standardised tests before placing on the market: amendment 24 requires refrigeration, air-conditioning and heat pumps to undergo standardised tests before placing on the market but these standards should be based on existing legislation not on tests defined by the Committee. The Council believes that this is normal procedure and so does not need to be repeated in the Common Position.

Concerning an electronic register of certified personnel and undertakings: amendment 40, providing for an electronic register could have been a useful tool in assisting operators to use qualified personnel. The Common Position does not include this provision and since it is not central to the containment provisions the Commission can accept this.

Concerning mobile air conditioners with a GWP below 100 and fiscal incentives: amendment 77 requires Member States to promote equipment (MACs) with a GWP below 100 and to use fiscal incentives. The Commission agrees in principle but believes that this should not be mandatory. This amendment is not included in the Common Position .

Concerning review of recovery targets and whether legal framework for recovery needs revising: Amendment 81 is concerned with strengthening the recovery element in the review provisions. The Commission believed that the review of recovery provisions could usefully be set out in the review clause. It is not included in the Common Position but the Commission believes it is covered by the requirement to assess “the impact of relevant provisions.”

3.2.3. Parliamentary amendments not accepted by the Commission but incorporated in the Common Position

Concerning mobile air conditioners : Amendment 6 deletes the recital referring to transferable quotas in relation to amendment 105 both of which the Commission could not initially accept. Council has taken a similar approach to the Parliament in terms of the legislative instrument to use for reducing emissions from MACs, and the Common Position gives effect to the Commission’s proposed provisions through a ‘type approval’-style Directive that amends Directive 1970/156/EC.

Concerning the definition of placing on the market: amendment 10 includes the placing on the market of the fluorinated gases themselves as well as products and equipment containing fluorinated gases. The amendment also removed the reference to “unused” in the Commission’s proposal. The Commission can support the new definition since it excludes the placing on the market of fluorinated gases.

Concerning the terms “operator” and “owner”: amendments 23 and 34 substitute the term “owners and operators” for the Commission’s proposal of “operators”. The Commission took the view that the responsibility for containment should be clearly defined and that standard practice was for this to be the “operator”. However, in the Common Position, Article 2(f) provides for the possibility for the “owner” to be designated as responsible for the containment and recovery provisions.

Concerning the terms “accredited companies” and certified personnel : amendments 26 , 27 and 28 introduce the concept of “certified companies” alongside the term “certified personnel”. The Commission took the view that a key element in the containment provisions is the need for qualified personnel. The use of the word “certified” instead of “qualified” in relation to personnel can be accepted along with the inclusion of companies in Article 3 (2) since the inspection system is strengthened with respect to record keeping.

Concerning recovery of fluorinated gases: amendment 39 requires recovery during servicing and during final disposal. However, in the Common Position the text is now “and before final disposal” The Commission can support this formulation.

Concerning a reduction of inspection frequency if no leakage: as regards amendment 110 the Commission preferred to leave the reduction to the competent authority which is best placed to judge. In the Common Position inspections are halved if there is a properly functioning leakage detection system in place.

Concerning training and certification: the Commission could not accept amendments 42, 43 and 44 which requires existing schemes to be brought into line with the requirements of the Regulation since they were too prescriptive. A small number of the concepts set out in these amendments have been brought into the Common Position (Article 5) which has been substantially redrafted. The key elements on timetable and procedure for establishing minimum training standards and mutual recognition remain intact.

Concerning data reporting: the Commission could not accept amendments 47, 48, 54, 55, 57, 59, 60 and 62 which introduce drafting changes that removes obligation of producers to estimate emissions of end users; the concept of emissions over the life cycle of each gas and the requirement for Member States to review a representative sample of records and report to the Commission. The Commission did not accept these amendments because they would in total upset the balance of the reporting provisions. However, the Common Position has taken a middle path which the Commission can accept

Concerning mobile air conditioners: amendments 65, 71, 73, 76, 105, 108, 111 and 112 replace the provisions on transferable quotas with ‘type-approval’ style provisions. After it became clear that Council preferred a similar approach to the Parliament as regards the legislative instrument to use, the Commission agreed to these amendments. However, there are differences between the institutions on the dates for these provisions to take effect. The Parliament proposed 2011 for new types of vehicle and 2014 for all new vehicles. The Commission considered that, in order to be equivalent to its proposal, these dates should be no later than 2010 and 2016. The Commission considered that this is important in order to contribute towards the fulfilment of the EU’s Kyoto target. The Common Position gives effect to the Commission’s proposed provisions through a ‘type approval’-style Directive that amends Directive 1970/156/EC, with dates of phase out of HFC-134a in 2011 and 2017 for new types of vehicles, and new vehicles respectively.

Concerning enhanced mobile air conditioning systems: amendments 85 and 96 delete definition of enhanced MACs following deletion of quota system. The Commission believed this should be maintained. However, the provisions on transferable quotas were replaced with ‘type-approval’ style provisions and so enhanced MACs are no longer necessary and are deleted in the Common Position.

Concerning reporting on progress in the development of climate friendly air conditioners: amendment 86 calls for the Commission to submit a report after two years on progress in the development of climate friendly air conditioners. The Common Position provides for a review of whether Community provisions concerning the GWP of fluorinated greenhouse gases should be amended, in Article 8(1) of the ‘type-approval’ Directive.

3.2.4. Parliamentary amendments not accepted by the Commission and not incorporated in the Common Position

Concerning recitals: amendment 2 introduces a recital related to the individual Kyoto emission target of each Member State and the need for individual action. However, no mention is made of the need in some cases of harmonised action and given that some of the actions in the proposed Regulation are covered by Article 95 it may not be possible for Member States to have complete discretion on their national measures.

Concerning recitals: amendment 4 introduces a recital indicating that alternatives to fluorinated gases exist for most applications and that it is therefore essential to restrict their use to applications where there are no alternatives. In the proposed Regulation a number of uses and products using fluorinated gases are prohibited. The Commission is committed in the review Article to looking further at other applications containing fluorinated gases.

Concerning recitals: amendment 5 says that Member States can stipulate additional national reporting requirements in addition to Community ones. This was not accepted by the Commission since it believed that it should be covered under the Monitoring Mechanism. However, in the Common Position there is a general recital that refers to national reporting which the Commission can support.

Concerning the definition of novelty aerosols: amendment 20 would have replaced the Commission’s proposed definition with a new definition of “technical aerosols”. In the Commission’s view this has not been fully evaluated and it supports the definition in the Common Position, which is in line with its proposal.

Concerning a new definition of small scale car manufacturers: The Commission did not accept amendment 21 because the definition is not consistent with the type approval system. Concerning a general obligation to prevent and minimise emissions: as regards amendment 22 the Commission’s view this is that this is covered already in Article 3. The Commission supports the Common Position.

Concerning inspections of mobile appliances: the Commission rejected amendment 25 because the necessary technical and economic evaluation has not yet been carried out and supports the Common Position.

Concerning registration of entities concerned with inspection of fire protection systems: the Commission did not accept amendment 36 since it believes that it would create an additional burden for industry without clear benefit. It is not included in the Common Position.

Concerning data reporting: the Commission rejected amendments 49, 57 and 61 since they widened the scope of the reporting provisions and it was not clear what the additional benefits would be in estimating emissions of fluorinated gases in the EU. This position is also confirmed in the Common Position

Concerning the use of sulphur hexafluoride in magnesium die-casting: the Commission rejected amendment 64, which removes the limit for use below 500 kg per annum. It is also not included in the Common Position although there is a review of this derogation required by 1 January 2010.

Concerning promotion of refrigeration and air conditioning through fiscal and other incentives: the Commission rejected amendments 69 and 74 since there could be difficulties as regards such fiscal incentives in relation to EC legislation on State aids.

Concerning the introduction of tax incentives for conversion of Mobile Air conditioning systems (MACs) with a GWP< 50: The Commission does not think amendment 75 is practicable and supports the Common Position.

Concerning a review of climate friendly air-conditioners two years after entry into force: the Commission could not accept amendment 80 since the scope was too broad and the review would conflict with the timetable for a review in the Commission proposal and Common Position.

Concerning the Committee: amendment 83 introduced a new additional committee that would be concerned with the recognition of professional qualifications. The Commission believes that the committee provided for under Regulation (EC) No 2037/2000 is appropriate. The Commission also rejected amendment 104 which called for the establishment of a new standing committee rather than the committee provided for under Regulation (EC) No 2037/2000.

Concerning the modification of Annex II – prohibitions : amendment 84 introduced a number of changes related to the use of PFCs in fire protection and novelty aerosols. These were rejected by the Commission because they either weakened the proposal (PFCs) or because in the case of aerosols further technical evaluation is necessary.

Concerning HFC-152a mobile air conditioners: amendment 108 (and amendments 73, 112) reduces the GWP of refrigerants from 150 to 50 which would exclude HFC-152a. In the Commission's view this is not justified from an environmental point of view. However, the Common Position provides for a review of whether Community provisions concerning the GWP of fluorinated greenhouse gases should be amended, in Article 8(1) of the ‘type-approval’ Directive.

3.2.5. Additional changes made by the Council to the Commission proposal

Concerning the legal base : Taking into account the Council’s decision to change the form of the Commission’s proposal with a Directive dealing specifically with the issue of HFCs in MACs, and a Regulation to cover the remainder of the original proposal, the Commission accepts that the Directive should be based on Article 95 alone, and that the Regulation should have a legal basis of Articles 175 with Article 95 in relation to some Articles. The Common Position is in accordance with this position. Recital 5 makes clear which of the Regulation’s Articles are based on Article 95.

Concerning the labelling of products and equipment: the Common Position contains a new Article on Labelling which will ensure that certain products and equipment containing fluorinated greenhouse gases are not put on the market unless they are appropriately labelled. The Commission through the committee procedure will establish the format of the label.

Concerning the review: the Commission welcomes the detailed review provisions, which strengthen its proposal. The Commission indicated that its proposal is only a first step, consequently the review four years after entry into force of the Regulation will be an important tool in assessing progress and making new proposals if appropriate.

Concerning the entry into force: in the Common Position the Regulation comes into force twelve months after its publication in the Official Journal instead of the twenty days proposed by the Commission. The entry into force of the Directive is maintained at 20 days. This change in date in the Regulation is because most of the prohibitions in Annex II will already take effect on the date of entry into force of the Regulation. The Commission can agree with this.

4. CONCLUSION

In its assessment of the Common Position, the Commission has taken into account the change in the form of its proposal into a Directive dealing specifically with the issue of HFCs in MACs, using vehicle type approval legislation, and a Regulation to cover the remainder of its original proposal. The Commission agreed to this change in form on the basis that the content continues to be considered as an overall package that guarantees the environmental ambition of its original proposal. The Council likewise considered it important for the content of this legislation to be considered as an overall package, and has reflected this in recital 8 to the Regulation and in recital 6 to the Directive, which emphasise that this legislation should be adopted and published in the Official Journal simultaneously.

As regards the Directive on MACs the Common Position has adopted the Parliament’s proposal to phase out fluorinated greenhouse gases from MACs using the type approval procedure instead of a transferable quota system. While the Commission could not initially accept such an amendment it has now decided to support the type-approval procedure since neither the Parliament nor the Council were ready to accept the Commission’s proposal and given that the overall environmental ambition of the Commission’s proposal is maintained.

Both the Commission and the Council did not accept the Parliament’s proposal to reduce the GWP of fluorinated gases in MACs from 150 to 50 since it would exclude the use of HFC-152a, a possible alternative technology, with only minimal environmental benefits. However, the Commission is committed within the framework of Article 8(1) of the type-approval Directive to review and to report on possible changes concerning the GWP of fluorinated gases in the light of technological and scientific developments.

The Common Position incorporates a large proportion of the amendments proposed in the Parliament’s first reading. Many help to clarify the terms of the proposal as well as to increase transparency and accountability. As part of the overall agreement, the Commission can also agree to a number of amendments proposed by the Parliament that it initially rejected, for instance under the reporting provisions, that are partially accepted or reformulated in the Common Position. The Common Position also goes further than the Commission proposal in a number of instances, for instance the new Article on labelling, which is acceptable to the Commission. The majority of the proposed Parliament amendments were taken on board, in particular the Review Article in the Regulation was considerably strengthened and made more specific and it will provide the Commission with useful guidance to assess all the policy areas set out in the Regulation and to propose further measures where appropriate.

The Commission, therefore, supports the Common Position adopted by qualified majority on the 20 June 2005.

ANNEX

Commission Statement on the review

Referred to in Article 10(2) (j)

The Commission states that in the review referred to in Article 10(2) (j) possible sectors for review in relation to Annex II could be:

-  applications in the aerosol sector

-  applications in the refrigeration, air conditioning (other than those in motor vehicles) and heat pump sectors;

-  foams, both rigid and flexible;

-  fire protection systems and fire extinguishers.

[1] Not yet published in the Official Journal