EN   EN 
 
 
 EUROPEAN  
COMMISSION   
Strasbourg, 5.4.2022  
SWD(2022) 98 final  
 
COMMISSION STAFF WORKING DOCUMENT  
Subsidiarity Grid  
Accompanying the document  
Proposal for a Regulation of the European Parliament and of the Council  
on substances that deplete the ozone layer and repealing Regulation (EC) No 1005/2009  
{COM(2022)  151 final}  - {SEC(2022)  157 final}  - {SWD(2022)  99 final}  -
 {SWD(2022)  100 final}   
 
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 Subsidiarity Grid  
1. Can the Union act? What is the legal basis and competence of the Unions’ intended action?  
1.1 Which article(s) of the Treaty are used to support the legislative proposal or policy initiative?  
This proposal is based on Article 192(1) of the Treaty on the Functioning of the European Union, in 
line with the objective to preserve, protect and improve the quality of the environment;  protect 
human health; and to promote measures at international level t o deal with climate change.      
1.2 Is  the Union  competence represented by this Treaty article exclusive, shared or supporting in 
nature?  
The Union’s competence is shared . 
 
2. Subsidiarity Principle: Why should the EU act?  
2.1 Does the proposal fulfil the procedural requirements of Protocol No. 21: 
- Has there been a wide consultation before proposing the act?  
- Is there a detailed statement with qualitative and, where possible, quantitative indicators 
allowing an appraisal of whether the action can best be achieved at Union level?  
The explanatory memorandum of the proposal and the impact assessment explain in detail all 
relevant indicators.  
 
In light of the emission reduction ta rget for 2030, and in the perspective of the climate neutrality 
objective to be achieved by 2050, stronger EU action is needed.  
2.2 Does the explanatory memorandum (and any impact assessment) accompanying the 
Commission’s proposal contain an adequate justific ation regarding the conformity with the 
principle of subsidiarity?  
The proposal complements EU legislation that ha s existed at EU level since 2000  and it clearly 
complies with the subsidiarity principle for the following reasons:  
Firstly, protecting the climate system is a cross -border issue and the scale of the problem demands 
action worldwide. Protecting the climate system is a cross -border issue. Individual member states 
cannot solve the problems alone. The scale of the problem demands EU ‑wide action as well as action 
worldwide.  
Secondly, t he ODS Regulation prohibits the production, trade and use of controlled substances and 
products and equipment using those substances. It is therefore relevant to the functioning of the 
internal  market.  
Thirdly, the Protocol considers the EU as a regional economic integration organisation (REIO) and the 
EU must therefore comply with the Protocol’s obligations at Union level (e.g. reporting, licensing 
system, consumption phase -down). This requires  relevant legislation at the same level; it would be 
very difficult if not infeasible to achieve compliance through 27 different national systems.  
2.3 Based on the answers to the questions below, can the objectives of the proposed action be 
achieved sufficien tly b y the Member States acting alone  (necessity for EU action)?  
                                                           
1 https://eur -lex.europa.eu/legal -content/EN/TXT/HTML/?uri=CELEX:12016E/PRO/02&from=EN   
 
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 The objectives of this Regulation cannot be sufficiently achieved by the Member States, by reason of 
the transboundary nature of the environmental problem addressed and the effects of this R egulation 
on the  intra -Union and external trade. Thus, the objectives  can be better achieved at Union level, in 
accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union . 
(a) Are there significant/appreciable transn ational/cross -border aspects to the problems being 
tackled? Have these been quantified?  
See above  
(b) Would national action or the absence of the EU level action conflict with core objectives of 
the Treaty2 or significantly damage the interests of other Member States?  
No 
(c) To what extent do Member States have the ability or possibility to enact appropriate 
measures?  
In accordance with Article 191(4), Member States are not prevented from maintaining or intro ducing 
more stringent measures.  
(d) How does the problem and its causes (e.g. negative externalities, spill -over effects) vary 
across the national, regional and local levels of the EU?  
This measure implements the obligations under the Montreal Protocol to wh ich all Member states 
are Parties.  
(e) Is the problem widespread across the EU or limited to a few Member States?  
Global  
(f) Are Member States overstretched in achieving the objectives of the planned measure?  
No, the impact assessment assesses this in detail  
(g) How do the views/preferred courses of action of national, regional and local authorities 
differ across the EU?  
All Member States are Parties of the Montreal Protocol which this measure implements.  
2.4 Based on the answer to the questions below, can the objec tives of the proposed action be 
better achieved at Union level by reason of scale or effects of that action (EU added value)?  
The objectives of this Regulation cannot be sufficiently achieved by the Member States, by reason of 
the transboundary nature of the environmental problem addressed and the effects of this Regulation 
on the  intra -Union and external trade. Thus, the objectives  can be better achieved at Union level, in 
accordance with the principle of subsidiarity as set out in Article 5 of the Treaty  on European Union . 
(a) Are there clear benefits from EU level action?  
Yes 
(b) Are there economies of scale? Can the objectives be met more efficiently at EU level (larger 
                                                           
2 https://europa.eu/european -union/about -eu/eu -in-brief_en   
 
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 benefits per unit cost)? Will the functioning of the internal market be improved?  
Yes 
(c) What are the benefits  in replacing different national policies and rules with a more 
homogenous policy approach?  
The proposal complements EU legislation that ha s existed at EU level since 2000 , in continuation of 
legislation implementing the Montreal Prot ocol adopted by all Member States in 1987.  
(d) Do the benefits of EU -level action outweigh the loss of competence of the Member States 
and the local and regional authorities (beyond the costs and benefits of acting at national, 
regional and local levels)?  
See above.  
(e) Will there be improved legal clarity for those having to implement the legislation?  
Yes, in particular for customs authorities.  
3.  Proportionality: How the EU should act  
3.1  Does the explanatory memorandum (and any impact assessment) accompanying the 
Commission’s proposal contain an adequate justification regarding the proportionality of the 
proposal and a statement allowing appraisal of the compliance of the proposal with th e 
principle of proportionality?  
The proposal complies with the proportionality principle. The measures are based on a thorough 
assessment of their cost -effectiveness.  
In general terms, the proposal mainly improves certain aspects of the ODS Regulation. W here further 
restrictions are proposed (i.e. recovery obligations) the proposal ensures that technically and 
economically feasible alternatives are available. If under particular circumstances this is not the case, 
it allows derogations to be granted.  
Modi fications on reporting are minor and should not entail any significant costs on undertakings. On 
the other hand certain modifications result in costs savings and prevent unnecessary administrative 
burden for undertakings and national competent authorities (for example removal of the quota 
allocation system).  
No detailed provisions are proposed in areas where the objectives might be better achieved by 
action in other policy areas, for example by legislation on waste or labelling. This is to avoid overlaps 
that might lead to the unclear allocation of responsibilities, creating an additional burden for public 
authorities and companies.  
3.2 Based on the answers to the questions below and information available from any impact 
assessment, the explanatory memorandum  or other sources, is the proposed action an 
appropriate way to achieve the intended objectives?  
Yes 
(a) Is the initiative limited to those aspects that Member States cannot achieve satisfactorily on 
their own, and where the Union can do better?  
Yes 
(b) Is the  form of Union action (choice of instrument) justified, as simple as possible, and 
 
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 coherent with the satisfactory achievement of, and ensuring compliance with the objectives 
pursued (e.g. choice between regulation, (framework) directive, recommendation, or  
alternative regulatory methods such as co -legislation, etc.)?  
Yes. The legal instrument chosen is a Regulation because the proposal aims to replace and improve 
the current ODS Regulation while maintaining its general structure on control measures. The ODS 
Regulation has proven to be effective. Any major changes (i.e. repeal, or turning it into a Directive) 
would unduly burden Member States and create additional uncertainty for the unde rtakings active in 
this sector.  
(c) Does the Union action leave as much sc ope for national decision as possible while achieving 
satisfactorily the objectives set? (e.g. is it possible to limit the European action to minimum 
standards or use a less stringent policy instrument o g approach?)  
Yes. In accordance with Article 191(4), Member States are not prevented from maintaining or 
introducing more stringent measures. Notably, in respect of penalties for infringements of the 
regulation, Member States are free in their choice of national measur es as long as they are, overall, 
dissuasive, effective and proportionate.  
(d) Does the initiative create financial or administrative cost for the Union, national 
governments, regional or local authorities, economic operators or citizens? Are these costs 
comm ensurate with the objective to be achieved?  
See financial fiche attached to the proposal . 
(e) While respecting the Union law, have special circumstances applying in individual Member 
States been taken into account?  
The proposal includes the obligation to adopt penalty measures in cases of infringements , respecting 
Member States administrative practices and constitutional constraints. Moreover, training of 
personnel handing such substances is organised at national level in accordance with existing 
practices .