Proposal for a Council Directive relating to a reduction of the sulphur content of certain liquid fuels and amending Directive 93/12/EEC (97/C 190/07) (Text with EEA relevance) COM(97) 88 final - 97/0105(SYN)

(Submitted by the Commission on 20 May 1997)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 130s (1) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the Economic and Social Committee,

Acting in accordance with the procedure laid down in Article 189c of the Treaty in cooperation with the European Parliament,

(1) Whereas the objectives and principles of the Community's environmental policy as set out in the action programmes on the environment and in particular the fifth environmental action programme (1) on the basis of principles enshrined in Article 130r of the Treaty, aim in particular to ensure the effective protection of all people from the recognized risks from sulphur dioxide emissions and to protect the environment by preventing sulphur deposition exceeding critical loads and levels;

(2) Whereas Article 129 of the Treaty provides that health protection requirements are to form a constituent part of the Community's other policies; whereas Article 3o of the Treaty also provides that the activities of the Community should include a contribution to the attainment of a high level of health protection;

(3) Whereas emissions of sulphur dioxide contribute significantly to the problem of acidification in the Community; whereas sulphur dioxide also has a direct effect on human health and on the environment;

(4) Whereas acidification and atmospheric sulphur dioxide damage sensitive ecosystems, reduce biodiversity and reduce amenity value as well as detrimentally affecting crop production and the growth of forests; whereas acid rain falling in cities may cause significant damage to buildings and the architectural heritage; whereas sulphur dioxide pollution may also have a significant effect on human health, particularly among those sectors of the population suffering from respiratory diseases;

(5) Whereas acidification is a transboundary phenomenon requiring Community as well as national or local solutions;

(6) Whereas emissions of sulphur dioxide contribute to the formation of particulate matter in the atmosphere;

(7) Whereas the Community and the individual Member States are Contracting Parties to the UN-ECE Convention on Long-Range Transboundary Air Pollution; whereas under the protocol on further reduction of sulphur emissions established under that convention, Contracting Parties should make significant reductions in emissions of sulphur dioxide;

(8) Whereas sulphur which is naturally present in small quantities in oil and coal has for decades been recognized as the dominant source of sulphur dioxide emissions which are one of the main causes of 'acid rain` and one of the major causes of the air pollution experienced in many urban and industrial areas;

(9) Whereas the Commission has recently published a communication on a cost-effective strategy to combat acidification in the Community, whereas the control of sulphur-dioxide emissions originating from the combustion of certain liquid fuels was identified as being an integral component of this cost-effective strategy;

(10) Whereas, in conformity with the principle of subsidiarity and the principle of proportionality referred to in Article 3b of the Treaty, the objective of reducing the emissions of sulphur dioxide arising from the combustion of certain types of liquid fuels cannot be achieved effectively by Member States acting individually and whereas unconcerted action offers no guarantee of achieving the desired objective, is potentially counterproductive and will result in considerable uncertainty in the market for the fuel products affected and whereas, in view of the need to reduce sulphur-dioxide emissions across the Community, it is more effective to take action at the level of the Community; whereas this Directive limits itself to the minimum requirements necessary to achieve the desired objective;

(11) Whereas, it should only be possible to use gas oils and heavy fuel oils within the territory of the Community on condition that their sulphur content does not exceed certain limits set out in this Directive;

(12) Whereas, in accordance with Article 130t of the Treaty, this Directive should not prevent any Member State from maintaining or introducing more stringent protective measures and whereas such measures must be compatible with the Treaty and should be notified to the Commission;

(13) Whereas a Member State, before introducing new, more stringent protective measures, should notify the draft measures to the Commission in accordance with Council Directive 83/189/EEC of 28 March 1983 (2), as last amended by Directive 96/139/EC (3), laying down a procedure for the provision of information in the field of technical standards and regulations;

(14) Whereas, with regard to the limit on the sulphur content of heavy fuel oil, it is appropriate to provide for derogations in Member States and regions where the environmental conditions allow;

(15) Whereas, with regard to the limit on the sulphur content of heavy fuel oil, it is also appropriate to provide for derogations for their use in combustion plants which comply with the emission limit values laid down in Council Directive 88/609/EEC of 24 November 1988 on the limitation of emissions of certain pollutants into the air from large combustion plants (4), as last amended by Directive 94/66/EC (5); whereas in the light of the forthcoming revision of Directive 88/609/EEC, it will be necessary to review and, if appropriate, to revise certain provisions of this Directive;

(16) Whereas a limit value of 0,2 % for the sulphur content of gas oils has already been established pursuant to Council Directive 93/12/EEC of 23 March 1993 relating to the sulphur content of certain liquid fuels (6), as amended by the Act of Accession of Austria, Finland and Sweden; whereas that limit value should continue to be generally applicable;

(17) Whereas, in accordance with the Act of Accession of Austria, Finland and Sweden, Austria and Finland have a derogation for a period of four years from the date of accession regarding the provisions in Directive 93/12/EEC concerning the sulphur content of gas oil;

(18) Whereas the limit value of 0,2 % for the sulphur content of gas oils intended for marine use in seagoing ships may present technical and economic problems for Greece throughout its territory and for Spain with regard to the Canary Islands; whereas a derogation for Greece and the Canary Islands should not have a negative effect on the market in gas oil intended for marine use and given that exports of gas oil for marine use from Greece and the Canary Islands to other Member States should satisfy the requirements in force in the importing Member State; whereas Greece and the Canary Islands should be afforded a derogation from the limit value of 0,2 % sulphur by weight for gas oil used for marine purposes;

(19) Whereas in the case of a disruption in the supply of crude oil or petroleum products, the Commission may authorize application of a higher limit within a Member State's territory;

(20) Whereas Member States should establish the appropriate mechanisms for monitoring compliance with the provisions of this Directive; whereas regular reports on the sulphur content of liquid fuels should be submitted to the Commission;

(21) Whereas, for reasons of clarity, it will be necessary to amend Directive 93/12/EEC;

HAS ADOPTED THIS DIRECTIVE:

Article 1

Purpose and scope

1. The purpose of this Directive is to reduce the emissions of sulphur dioxide resulting from the combustion of certain types of liquid fuels and thereby to reduce the harmful effects of such emissions on man and the environment.

2. Reductions in the emissions of sulphur dioxide resulting from the combustion of certain petroleum-derived liquid fuels shall be achieved by imposing limits on the sulphur content of such fuels as a condition for their use within the territory of the Community.

The limitations on the sulphur content of certain petroleum-derived liquid fuels as laid down in this Directive shall not, however, apply to fuels:

(a) contained in the fuel tanks of vessels crossing a frontier between a third country and a Member State;

(b) intended for processing prior to final combustion;

(c) used for processing in the refining industry.

Article 2

Definitions

For the purpose of this Directive:

1. 'Heavy fuel oil` means any petroleum-derived liquid fuel falling within CN codes 2710 00 71 to 2710 00 78 or any petroleum-derived liquid fuel (other than gas oil as defined in point 2) which, by reason of its distillation limits, falls within the category of heavy oils intended for use as fuel and of which less than 65 % by volume (including losses) distils at 250 °C by the ASTM D86 method. If the distillation cannot be determined by the ASTM D86 method, the petroleum product is likewise categorized as a heavy fuel oil.

2. 'Gas oil` means any petroleum-derived liquid fuel falling within CN code 2710 00 69 or any petroleum-derived liquid fuel which, by reason of its distillation limits, falls within the category of middle distillates intended for use as fuel and of which at least 85 % by volume (including losses), distils at 350 °C by the ASTM D86 method. Diesel fuels as defined in Article 2 (2) the European Parliament and Council Directive relating to the quality of petrol and diesel fuels are excluded from this definition.

3. The term 'ASTM method` means the methods laid down by the American Society for Testing and Materials in the 1976 edition of standard definitions and specifications for petroleum and lubricating products.

Article 3

Maximum sulphur content of heavy fuel oil

1. Member States shall take all necessary steps to ensure that as from 1 January 2000 within their territory heavy fuel oils cannot be used if their sulphur content exceeds 1 % by weight.

2. Provided that the air quality standards for sulphur dioxide laid down in Council Directive 80/779/EEC (7) and other relevant Community provisions are respected and the contribution to transboundary pollution is negligible, a Member State may authorize heavy fuel oils with a sulphur content between 1 and 2,5 % by weight to be used in part or the whole of its territory.

3. Paragraphs 1 and 2 shall not apply to heavy fuel oils used in combustion plants with a rated thermal input equal to or greater than 50 MW which are considered new plants in accordance with the definition given in Article 2 (9) of Directive 88/609/EEC and which comply with the sulphur-dioxide emission limits for such plants set out in Article 4 and Annex IV to that Directive.

Paragraphs 1 and 2 shall not apply to heavy fuel oils used in combustion plants and industrial cement plants other than those mentioned above, if the emissions of sulphur dioxide from the plant are less than or equal to 1 700 mg SO2/Nm³.

Member States shall take the necessary measures to ensure that any combustion plant using heavy fuel oil with a sulphur concentration greater than that referred to in paragraph 1 shall not be operated without a permit issued by a competent authority which specifies the emission limits.

4. The provisions of paragraph 3 shall be reviewed and, if appropriate, revised in the light of any future revision of Directive 88/609/EEC.

5. If a Member State avails itself of the possibilities referred to in paragraphs 2 or 3, it shall, at least 12 months beforehand, inform the Commission and the public. The Commission shall be given sufficient information to assess whether the criteria mentioned in paragraphs 2 or 3 respectively are met. The Commission shall inform the other Member States. Within six months of the date on which it receives the information from the Member State, the Commission shall examine the measures envisaged to ensure that they comply with this Directive and with other provisions of Community law and shall communicate its decision to the Member States.

Article 4

Maximum sulphur content in gas oil

1. Member States shall take all necessary steps to ensure that as from 1 January 1999 within their territory and waters, gas oils, including gas oils for marine use, cannot be used if their sulphur content exceeds 0,2 % by weight.

2. By way of derogation from paragraph 1, Spain, for the Canary Islands, and Greece, for the whole or part of its territory, may authorize the use of gas oils for marine use with a sulphur content in excess of 0,2 % by weight.

Article 5

Change in the supply of crude oil

If, as a result of a sudden change in the supply of crude oil or petroleum products, it becomes difficult for a Member State to apply the limits on the maximum sulphur content referred to in Articles 3 and 4, that Member State shall inform in Commission thereof. The Commission may authorize a higher limit to be applicable within the territory of that Member State for a period not exceeding six months and shall notify its decision to the Council and the Member States. Any Member State may refer that decision to the Council within one month. The Council, acting by a qualified majority, may adopt a different decision within two months.

Article 6

Sampling and analysis

1. Member States shall take all necessary measures to check sampling that the sulphur content of fuels used complies with Articles 3 and 4. The sampling shall commence within six months of the date on which the relevant limit for maximum sulphur content in the fuel comes into force. It shall be carried out with sufficient frequency and in such a way that the samples are representative of the fuel examined.

2. The reference method adopted for determining the sulphur content shall be that defined by:

(a) ISO method 8754 (1992) for heavy fuel oil and marine diesel oil;

(b) ISO method 4260 (1987) for gas oil.

The statistical interpretation of the verification of the sulphur content of the gas oils used shall be carried out in accordance with ISO standard 4256 (1992).

Article 7

Reporting and review

1. On the basis of the results of the sampling and analysis carried out in accordance with Article 6, Member States shall by 30 June of each year supply the Commission with a short report on the sulphur content of the liquid fuels falling within the scope of this Directive and used within their territory during the proceeding calendar year.

2. On the basis inter alia of the annual reports submitted in accordance with paragraph 1 and the observed trends in air quality and acidification, the Commission shall, by 31 December 2003, submit a report to the Council. The Commission may submit with its report proposals aimed at revising this Directive and in particular the limit values laid down for each fuel category and the exceptions and derogations provided for in Article 3 (2), Article 3 (3) and Article 4 (2).

Article 8

Amendments to Directive 93/12/EEC

Directive 93/12/EEC is amended as follows:

1. in Article 1, paragraph 1 (a) and paragraph 2 are deleted;

2. in Article 2, the first subparagraph of paragraph 2 and paragraph 3 are deleted;

3. Articles 3 and 4 are deleted.

The first paragraph shall apply as from 1 January 1999.

Article 9

Transposition

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 1 June 1998. They shall immediately inform the Commission thereof.

Member States shall apply these provisions from 1 January 1999.

When Member States adopt these provisions, these shall contain a reference to this Directive or shall be accompanied by such reference at the time of their official publication. The procedure for such reference shall be adopted by Member States.

2. Member States shall communicate to the Commission the text of the provisions of national law which they adopt in the field covered by this Directive.

Article 10

Sanctions

Member States shall lay down the system of penalties for breaching the national provisions adopted pursuant to this Directive and shall take all the measures necessary to ensure that those penalties are applied. The penalties thus provided for shall be effective, proportionate those penalties are applied. The penalties thus provided for shall be effective, proportionate and dissuasive. Member States shall notify the relevant provisions to the Commission before 1 June 1998 and shall notify any subsequent changes as soon as possible.

Article 11

Entry into force

This Directive shall enter into force on the 20th day following that of its publication in the Official Journal of the European Communities.

Article 12

Addressees

This Directive is addressed to the Member States.

(1) OJ No C 138, 17. 5. 1993, p. 5.

(2) OJ No L 109, 26. 4. 1983, p. 8.

(3) OJ No L 32, 10. 2. 1996, p. 31.

(4) OJ No L 336, 7. 12. 1988, p. 1.

(5) OJ No L 337, 24. 12. 1994, p. 83.

(6) OJ No L 74, 27. 3. 1993, p. 81.

(7) OJ No L 229, 30. 8. 1980, p. 30.