COMMON POSITION (EC) No 37/94 adopted by the Council on 27 July 1994 with a view to adopting Council Regulation (EC) No .../94, of ..., on substances that deplete the ozone layer (94/C 301/01)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 103s (1) thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the Economic and Social Committee (2),

Acting in accordance with the procedure laid down in Article 189c of the Treaty (3),

Whereas it is established that continued emissions of ozone-depleting substances at current levels cause significant damage to the ozone layer;

Whereas Council Regulation (EEC) No 594/91 of 4 March 1991 on substances that deplete the ozone layer (4) was amended by Regulation (EEC) No 3952/92 (5); whereas on the occasion of this amendment it is desirable, in the interests of clarity, to recast that Regulation;

Whereas in view of the Community's responsibilities for the environment and trade, all Member States and the Community have become Parties to the Vienna Convention for the Protection of the Ozone Layer and the Montreal Protocol on Substances that Deplete the Ozone Layer as amended by the Parties to the Protocol at their second meeting in London;

Whereas, in the light of recent scientific evidence, at their fourth meeting in Copenhagen, at which the Community and the Member States played a leading role, the Parties to the Montreal Protocol adopted a second amendment to the Protocol comprising additional measures for the protection of the ozone layer;

Whereas it is necessary for action to be taken at Community level to carry out the Community's obligations under the Convention and the second amendment to the Protocol, in particular to control the production and supply of methyl bromide and hydrobromofluorocarbons and the supply and use of hydrochlorofluorocarbons within the Community;

Whereas in the light of scientific evidence in particular it is appropriate in certain cases to introduce control measures which are more severe than those of the second amendment to the Protocol;

Whereas a periodical review of the permitted uses of ozone-depleting substances by means of the committee procedure is desirable;

Whereas it is necessary to keep under review the evolution of the market in ozone-depleting substances, particularly in order to ensure sufficient supply for essential uses, and the state of development of appropriate substitutes, but also to keep to a minimum the imports of virgin, recovered and reclaimed ozone-depleting substances released for free circulation in the European Community;

Whereas it is appropriate to take all precautionary measures practicable to prevent leakages of ozone-depleting substances and to promote the recovery of such substances after use for recycling or safe destruction,

HAS ADOPTED THIS REGULATION:

CHAPTER I INTRODUCTORY PROVISIONS

Article 1

Scope

This Regulation shall apply to the production, importation, exportation, supply, use and recovery of chlorofluorocarbons, other fully halogenated chlorofluorocarbons, halons, carbon tetrachloride, 1,1,1-trichloroethane, methyl bromide, hydrobromofluorocarbons and hydrochlorofluorocarbons. It shall also apply to the reporting of information on these substances.

Article 2

Definitions

For the purposes of this Regulation:

- 'Protocol` shall mean the Montreal Protocol on Substances that Deplete the Ozone Layer, whether in the original 1987 version as adjusted in 1990 and 1992, the amended 1990 version as adjusted in 1992, or the amended 1992 version,

- 'Party` shall mean any Party to the Protocol,

- 'State not Party to the Protocol` shall, with respect to a particular controlled substance, include any State or regional economic-integration organization that has not agreed to be bound by the control measures applicable to that substance,

- 'controlled substances` shall mean chlorofluorocarbons, other fully halogenated chlorofluorocarbons, halons, carbon tetrachloride, 1,1,1-trichloroethane, methyl bromide, hydrobromofluorocarbons and hydrochlorofluorocarbons, whether alone or in a mixture. This definition shall not cover any controlled substance which is in a manufactured product other than a container used for the transportation or storage of that substance, or insignificant quantities of any controlled substance, originating from inadvertent or coincidental production during a manufacturing process, from unreacted feedstock, or from use as a processing agent which is present in chemical substances as trace impurities, or that is emitted during product manufacture or handling;

- 'chlorofluorocarbons` shall mean the controlled substances listed in Group I of Annex I, including their isomers,

- 'other fully halogenated chlorofluorocarbons` shall mean the controlled substances listed in Group II of Annex I, including their isomers,

- 'halons` shall mean the controlled substances listed in Group III of Annex I, including their isomers,

- 'carbon tetrachloride` shall mean the controlled substance specified in Group IV of Annex I,

- '1,1,1-trichloroethane` shall mean the controlled substance specified in Group V of Annex I,

- 'methyl bromide` shall mean the controlled substance specified in Group VI of Annex I,

- 'hydrobromofluorocarbons` shall mean the controlled substances listed in Group VII of Annex I, including their isomers,

- 'hydrochlorofluorocarbons` shall mean the controlled substances listed in Group VIII of Annex I, including their isomers,

- 'producer` shall mean any natural or legal person manufacturing controlled substances within the Community,

- 'production` shall mean the amount of controlled substances produced, less the amount destroyed by technologies approved by the Parties and less the amount entirely used as feedstock in the manufacture of other chemicals. No amount recovered and reclaimed shall be considered as 'production`,

- 'undertaking` shall mean any natural or legal person who produces, recycles for placing on the market or uses controlled substances for industrial or commercial purposes in the Community, who releases such imported substances for free circulation in the Community, or who exports such substances from the Community for industrial or commercial purposes,

- 'ozone-depleting potential` shall mean the figure specified in the final column of Annex I representing the potential effect of each controlled substance on the ozone layer,

- 'calculated level` shall mean a quantity determined by multiplying the quantity of each controlled substance by its ozone-depleting potential as specified in Annex I and by adding together, for each group of controlled substances in Annex I separately, the resulting figures,

- 'industrial rationalization` shall mean the transfer either between Parties or within a Member State of all or a portion of the calculated level of production of one producer to another, for the purpose of optimizing economic efficiency or responding to anticipated shortfalls in supply as a result of plant closures,

- 'recovery` shall mean the collection and the storage of controlled substances from, for example, machinery, equipment and containment vessels during servicing or before disposal,

- 'recycling` shall mean the reuse of a recovered controlled substance following a basic cleaning process such as filtering and drying. For refrigerants, recycling normally involves recharge back into equipment as is often carried out on site,

- 'reclamation` shall mean the reprocessing and upgrading of a recovered controlled substance through such processes as filtering, drying, distillation and chemical treatment in order to restore the substance to a specified standard of performance, which often involves processing off site at a central facility.

CHAPTER II PHASE-OUT SCHEDULE

Article 3

Control of production of controlled substances

1. Subject to paragraphs 8 to 12, each producer shall ensure that:

- the calculated level of his production of chlorofluorocarbons in the period 1 January to 31 December 1994 does not exceed 15 % of the calculated level of his production of chlorofluorocarbons in 1986,

- he produces no chlorofluorocarbons after 31 December 1994.

However, subject to paragraphs 8 to 12, each producer in a Member State in which the calculated level of production of chlorofluorocarbons was less than 15 000 tonnes in 1986 shall ensure that:

- the calculated level of his production of chlorofluorocarbons in the period 1 January to 31 December 1994 and in the following 12-month period does not exceed 15 % of the calculated level of his production in 1986,

- he produces no chlorofluorocarbons after 31 December 1995.

In the light of the nominations made by Member States the Commission shall, in accordance with the procedure laid down in Article 16, apply the criteria set out in Decision IV/25 of the Parties to the Montreal Protocol in order to determine every year any essential uses for which the production and importation of chlorofluorocarbons may be permitted in the Community after 31 December 1994 and those users who may take advantage of those essential uses for their own account. Such production and importation shall be allowed only if no adequate alternatives or recycled chlorofluorocarbons are available from any of the Parties to the Protocol.

The Commission shall issue licences to those users identified as laid down in the third subparagraph and shall notify them of the use for which they have authorization and the substances and the quantities of them that they are authorized to use.

A producer may be authorized by the competent authority of the Member State in which his relevant production is situated to produce chlorofluorocarbons after 31 December 1994 for the purpose of meeting the licensed demands presented by users identified as laid down in the third subparagraph. The competent authority of the Member State concerned shall notify the Commission in advance of its intention of issuing any such authorization.

2. Subject to paragraphs 8 to 12, each producer shall ensure that:

- the calculated level of his production of other fully halogenated chlorofluorocarbons in the period 1 January to 31 December 1994 does not exceed 15 % of the calculated level of his production of other fully halogenated chlorofluorocarbons in 1989,

- he produces no other fully halogenated chlorofluorocarbons after 31 December 1994.

In the light of the nominations made by Member States the Commission shall, in accordance with the procedure laid down in Article 16, apply the criteria set out in Decision IV/25 of the Parties to the Montreal Protocol in order to determine every year any essential uses for which the production and importation of other fully halogenated chlorofluorocarbons may be permitted in the Community after 31 December 1994 and those users who may take advantage of those essential uses for their own account. Such production and importation shall be allowed only if no adequate alternatives or recycled other fully halogenated chlorofluorocarbons are available from any of the Parties to the Protocol.

The Commission shall issue licences to those users identified as laid down in the second subparagraph and shall notify them of the use for which they have authorization and the substances and the quantities of them that they are authorized to use.

A producer may be authorized by the competent authority of the Member State in which his relevant production is situated to produce other fully halogenated chlorofluorocarbons after 31 December 1994 for the purpose of meeting the licensed demands presented by users identified as laid down in the second subparagraph. The competent authority of the Member State concerned shall notify the Commission in advance of its intention of issuing any such authorization.

3. Subject to paragraphs 8 to 12, each producer shall ensure that he produces no halons after 31 December 1993.

In the light of the nominations made by Member States the Commission shall, in accordance with the procedure laid down in Article 16, apply the criteria set out in Decision IV/25 of the Parties to the Montreal Protocol in order to determine every year any essential uses for which the production and importation of halons may be permitted in the Community after 31 December 1993 and those users who may take advantage of those essential uses for their own account. Such production and importation shall be allowed only if no adequate alternatives or recycled halons are available from any of the Parties to the Protocol.

The Commission shall issue licences to those users identified as laid down in the second subparagraph and shall notify them of the use for which they have authorization and the substances and the quantities of them that they are authorized to use.

A producer may be authorized by the competent authority of the Member State in which his relevant production is situated to produce halons after 31 December 1993 for the purpose of meeting the licensed demands presented by users identified as laid down in the second subparagraph. The competent authority of the Member State concerned shall notify the Commission in advance of its intention of issuing any such authorization.

4. Subject to paragraphs 8 to 12, each producer shall ensure that:

- the calculated level of his production of carbon tetrachloride in the period 1 January to 31 December 1994 does not exceed 15 % of the calculated level of his production of carbon tetrachloride in 1989,

- he produces no carbon tetrachloride after 31 December 1994.

In the light of the nominations made by Member States the Commission shall, in accordance with the procedure laid down in Article 16, apply the criteria set out in Decision IV/25 of the Parties to the Montreal Protocol in order to determine every year any essential uses for which the production and importation of carbon tetrachloride may be permitted in the Community after 31 December 1994 and those users who may take advantage of those essential uses for their own account. Such production and importation shall be allowed only if no adequate alternatives or recycled carbon tetrachloride are available from any of the Parties to the Protocol.

The Commission shall issue licences to those users identified as laid down in the second subparagraph and shall notify them of the use for which they have authorization and the substances and the quantities of them that they are authorized to use.

A producer may be authorized by the competent authority of the Member State in which his relevant production is situated to produce carbon tetrachloride after 31 December 1994 for the purpose of meeting the licensed demands presented by users identified as laid down in the second subparagraph. The competent authority of the Member State concerned shall notify the Commission in advance of its intention of issuing any such authorization.

5. Subject to paragraphs 8 to 12, each producer shall ensure that:

- the calculated level of his production of 1,1,1-trichloroethane in the period 1 January to 31 December 1994 and in the following 12-month period does not exceed 50 % of the calculated level of his production of 1,1,1-trichloroethane in 1989,

- the produces no 1,1,1-trichloroethane after 31 December 1995.

In the light of the nominations made by Member States the Commission shall, in accordance with the procedure laid down in Article 16, apply the criteria set out in Decision IV/25 of the Parties to the Montreal Protocol in order to determine every year any essential uses for which the production and importation of 1,1,1-trichloroethane may be permitted in the Community after 31 December 1995 and those users who may take advantage of those essential uses for their own account. Such production and importation shall be allowed only if no adequate alternatives or recycled 1,1,1-trichloroethane are available from any of the Parties to the Protocol.

The Commission shall issue licences to those users identified as laid down in the second subparagraph and shall notify them of the use for which they have authorization and the substances and the quantities of them that they are authorized to use.

A producer may be authorized by the competent authority of the Member State in which his relevant production is situated to produce 1,1,1-trichloroethane after 31 December 1995 for the purpose of meeting the licensed demands presented by users identified as laid down in the second subparagraph. The competent authority of the Member State concerned shall notify the Commission in advance of its intention of issuing any such authorization.

6. Subject to paragraphs 8 to 12, each producer shall ensure that:

- the calculated level of his production of methyl bromide in the period 1 January to 31 December 1995 and in each 12-month period thereafter does not exceed the calculated level of his production of methyl bromide in 1991,

- the calculated level of his production of methyl bromide in the period 1 January to 31 December 1998 and in each 12-month period thereafter does not exceed 75 % of the caclculated level of his production of methyl bromide in 1991.

The calculated level of each producer's production of methyl bromide under this paragraph shall not include the amount he produces for quarantine and pre-shipment applications.

7. Subject to paragraphs 10 to 12, each producer shall ensure that he produces no hydrobromofluorocarbons after 31 December 1995.

In the light of the nominations made by Member States the Commission shall, in accordance with the procedure laid down in Article 16, apply the criteria set out in Decision IV/25 of the Parties to the Montreal Protocol in order to determine every year any essential uses for which the production and importation of hydrobromofluorocarbons may be permitted in the Community after 31 December 1995 and those users who may take advantage of those essential uses for their own account. Such production and importation shall be allowed only if no adequate alternatives or recycled hydrobromofluorocarbons are available from any of the Parties to the Protocol.

The Commission shall issue licences to those users identified as laid down in the second subparagraph and shall notify them of the use for which they have authorization and the substances and the quantities of them that they are authorized to use.

A producer may be authorized by the competent authority of the Member State in which his relevant production is situated to produce hydrobromofluorocarbons after 31 December 1995 for the purpose of meeting the licensed demands presented by users identified as laid down in the second subparagraph. The competent authority of the Member State concerned shall notify the Commission in advance of its intention of issuing any such authorization.

8. To the extent permitted by the Protocol, the competent authority of the Member State in which a producer's relevant production is situated may authorize him to exceed the calculated levels of production laid down in paragraphs 1 to 6 in order to satisfy the basic domestic needs of Parties pursuant to Article 5 of the Protocol, provided that the additional calculated levels of production of the Member State concerned do not exceed those permitted for that purpose by Articles 2A to 2E and 2H of the Protocol for the periods in question. The competent authority of the Member State concerned shall notify the Commission in advance of its intention of issuing any such authorization.

9. To the extent permitted by the Protocol, the competent authority of the Member State in which a producer's relevant production is situated may authorize him to exceed the calculated levels of production laid down in paragraphs 1 to 5 and 7 in order to satisfy any essential uses of Parties at their request. The competent authority of the Member State concerned shall notify the Commission in advance of its intention of issuing any such authorization.

10. To the extent permitted by the Protocol, the competent authority of the Member State in which a producer's relevant production is situated may authorize him to exceed the calculated levels of production laid down in paragraphs 1 to 9 for the purpose of industrial rationalization within the Member State concerned, provided that the calculated levels of production of that Member State do not exceed the sum of the calculated levels of production of its domestic producers as laid down in paragraphs 1 to 9 for the periods in question. The competent authority of the Member State concerned shall notify the Commission in advance of its intention of issuing any such authorization.

11. To the extent permitted by the Protocol, the Commission may, in agreement with the competent authority of the Member State in which a producer's relevant production is situated, authorize him to exceed the calculated levels of production laid down in paragraphs 1 to 10 for the purpose of industrial rationalization between Member States, provided that the combined calculated levels of production of the Member States concerned do not exceed the sum of the calculated levels of production of their domestic producers as laid down in paragraphs 1 to 10 for the periods in question. The agreement of the competent authority of the Member State in which it is intended to reduce production shall also be required.

12. To the extent permitted by the Protocol, the Commission may, in agreement with both the competent authority of the Member State in which a producer's relevant production is situated and the government of the third Party concerned, authorize a producer to combine the calculated levels of production laid down in paragraphs 1 to 11 with the calculated levels of production allowed to a producer in a third Party under the Protocol and that producer's national legislation for the purpose of industrial rationalization with a third Party, provided that the combined calculated levels of production by the two producers do not exceed the sum of the calculated levels of production allowed to the Community producer under paragraphs 1 to 11 and the calculated levels of production allowed to the third Party producer under the Protocol and his national legislation.

Article 4

Control of the supply of controlled substances

1. Subject to paragraph 10, each producer shall ensure that:

- the calculated level of chlorofluorocarbons which he places on the market or uses for his own account in the period 1 January to 31 December 1994 does not exceed 15 % of the calculated level of chlorofluorocarbons which he placed on the market or used for his own account in 1986,

- he does not place any chlorofluorocarbons on the market or use any for his own account after 31 December 1994.

The competent authority of the Member State in which a producer's production is situated may authorize him to place chlorofluorocarbons on the market after 31 December 1994 for the purpose of meeting the licensed demands of those users identified as laid down in Article 3 (1).

2. Subject to paragraph 10, each producer shall ensure that:

- the calculated level of other fully halogenated chlorofluorocarbons which he places on the market or uses for his own account in the period 1 January to 31 December 1994 does not exceed 15 % of the calculated level of other fully halogenated chlorofluorocarbons which he placed on the market or used for his own account in 1989,

- he does not place any other fully halogenated chlorofluorocarbons on the market or use any for his own account after 31 December 1994.

The competent authority of the Member State in which a producer's production is situated may authorize him to place other fully halogenated chlorofluorocarbons on the market after 31 December 1994 for the purpose of meeting the licensed demands of those users identified as laid down in Article 3 (2).

3. Subject to paragraph 10, each producer shall ensure that he does not place any halons on the market or use any for his own account after 31 December 1993.

The competent authority of the Member State in which a producer's production is situated may authorize him to place halons on the market after 31 December 1993 for the purpose of meeting the licensed demands of those users identified as laid down in Article 3 (3).

4. Subject to paragraph 10, each producer shall ensure that:

- the calculated level of carbon tetrachloride which he places on the market or uses for his own account in the period 1 January to 31 December 1994 does not exceed 15 % of the calculated level of carbon tetrachloride which he placed on the market or used for his own account in 1989,

- he does not place any carbon tetrachloride on the market or use any for his own account after 31 December 1994.

The competent authority of the Member State in which a producer's production is situated may authorize him to place carbon tetrachloride on the market after 31 December 1994 for the purpose of meeting the licensed demands of those users identified as laid down in Article 3 (4).

5. Subject to paragraph 10, each producer shall ensure that:

- the calculated level of 1,1,1-trichchlorethane which he places on the market or uses for his own account in the period 1 January to 31 December 1994 and in the following 12-month period does not exceed 50 % of the calculated level of 1,1,1-trichlorethane which he placed on the market or used for his own account in 1989,

- he does not place any 1,1,1-trichloroethane on the market or use any for his own account after 31 December 1995.

The competent authority of the Member State in which a producer's production is situated may authorize him to place 1,1,1-trichloroethane on the market after 31 December 1995 for the purpose of meeting the licensed demands of those users identified as laid down in Article 3 (5).

6. Subject to paragraph 10, each producer shall ensure that:

- the calculated level of methyl bromide which he places on the market or uses for his own account in the period 1 January to 31 December 1995 and in each 12-month period thereafter does not exceed the calculated level of methyl bromide which he placed on the market or used for his own account in 1991,

- the calculated level of methyl bromide which he places on the market or uses for his own account in the period 1 January to 31 December 1998 and in each 12-month period thereafter does not exceed 75 % of the calculated level of methyl bromide which he placed on the market or used for his own account in 1991,

The calculated level of methyl bromide which each producer places on the market or uses for his own account under this paragraph shall not include any amounts he places on the market or uses for his own account for quarantine and pre-shipment application.

7. Subject to paragraph 10, each producer shall ensure that he does not place any hydrobromofluorocarbons on the market or use any for his own account after 31 December 1995.

The competent authority of the Member State in which a producer's production is situated may authorize him to place hydrobromofluorocarbons on the market after 31 December 1995 for the purpose of meeting the licensed demands of those users identified as laid down in Article 3 (7).

8. Subject to paragraph 10:

- the calculated level of hydrochlorofluorocarbons which producers and importers place on the market or use for their own account in the period 1 January to 31 December 1995 and in each 12-month period thereafter shall not exceed the sum of:

- 2,6 % of the caculated level of chlorofluorocarbons which producers and importers placed on the market or used for their own account in 1989, and

- the calculated level of hydrochlorofluorocarbons which producers and importers placed on the market or used for their own account in 1989.

To this end the Commission shall, in accordance with the procedure laid down in Article 16, assign a quota to each producer or importer when the total quantitiy which producers and importers place on the market or use for their own account reaches 80 % of the quantitiy defined by the sum described above or at the latest on 1 January 2000, whichever comes first,

- the calculated level of hydrochlorofluorocarbons which a producer or importer places on the market or uses for his own account in the period 1 January to 31 December 2004 and in each 12-month period thereafter shall not exceed 65 % of the quota assigned,

- the calculated level of hydrochlorofluorocarbons which a producer or importer places on the market or uses for his own account in the period 1 January to 31 December 2007 and in each 12-month period thereafter shall not exceed 40 % of the quota assigned,

- the calculated level of hydrochlorofluorocarbons which a producer or importer places on the market or uses for his own account in the period 1 January to 31 December 2010 and in each 12-month period thereafter shall not exceed 20 % of the quota assigned,

- the calculated level of hydrochlorofluorocarbons which a producer or importer places on the market or uses for his own account in the period 1 January to 31 December 2013 and in each 12-month period thereafter shall not exceed 5 % of the quota assigned,

- no producer or importer shall place hydrochlorofluorocarbons on the market or use any for his own account after 31 December 2014.

The Commission may, in accordance with the procedure laid down in Article 16, revise the assigned quotas for hydrochlorofluorocarbons to the extent permitted by this Regulation.

9. The quantities referred to in paragraphs 1 to 7 shall apply to the amounts of virgin substances which a producer places on the market or uses for his own account within the Community.

The quantities referred to in paragraph 8 shall apply to the amounts of virgin substances which a producer or importer places on the market or uses for his own account within the Community and which were produced in or imported into the Community.

10. Any producer entitled to place a group of substances referred to in this Article on the market or use them for his own account may transfer his right in respect of all or any quantities of that group of substances fixed in accordance with this Article to any other producer of that group of substances within the Community. A producer acquiring such rights shall immediately notify the Commission. The transfer of the right to place on the market or use shall not imply the further right to produce.

At the request of a producer, the Commission may adopt measures to respond to any shortfalls in that producer's right to place hydrochlorofluorocarbons on the market or use them for his own account to the extent permitted by the Procotol.

Article 5

Control of the use of hydrochlorofluorocarbons

1. From the first day of the sixth month following that of the entry into force of this Regulation, the use of hydrochlorofluorocarbons shall be prohibited except:

- as solvents,

- as refrigerants,

- for the production of rigid insulating foams and integral-skin foams for use in safety applications,

- in laboratory uses, including research and development,

- as feedstock in the manufacture of other chemicals and

- as carrier gas for sterilization substances in closed systems.

2. From 1 January 1996 the use of hydrochlorofluorocarbons shall be prohibited:

- in non-contained solvent uses including open-top cleaners and open-top dewatering systems without cold areas, in adhesives and mould-release agents when not employed in closed equipment, for drain cleaning where hydrochlorofluorocarbons are not recovered and aerosols, apart from use as solvents for reagents in fingerprint development on porous surfaces such as paper and apart from use as fixing agents for laser printers produced before 1 January 1996,

- in equipment produced after 31 December 1995 for the following uses:

(a) as refrigerants in non-confined direct-evaporation systems;

(b) as refrigerants in domestic refrigerators and freezers;

(c) in car air conditioning;

(d) in road public-transport air conditioning.

3. From 1 January 1998 the use of hydrochlorofluorocarbons in equipment produced after 31 December 1997 for the following uses shall be prohibited:

- in rail public-transport air conditioning,

- as carrier gas for sterilization substances in closed systems.

4. From 1 January 2000 the use of hydrochlorofluorocarbons in equipment produced after 31 December 1999 for the following uses shall be prohibited:

- as refrigerants in public and distribution cold stores and warehouses,

- as refrigerants for equipment of 150 kw and over, shaft input,

except where codes, safety regulations or other such constraints prevent the use of ammonia.

5. The importing, release for free circulation and placing on the market of equipment for which a use restriction is in force under this Article shall be prohibited from the date on which that use restriction comes into force. Equipment shown to be manufactured before the date of that use restriction shall not be covered by this prohibition.

6. The Commission may, in accordance with the procedure laid down in Article 16 and in the light of technical progress, add to, delete items from or amend the list set out in paragraphs 1 to 4.

CHAPTER III TRADE

Article 6

Licences to import from third countries

1. The release for free circulation in the Community or inward processing of controlled substances shall be subject to the presentation of an import licence, whether the substances are virgin, recovered or reclaimed. Such licences shall be issued by the Commission after verification of compliance with Articles 6, 7, 8 and 12. The Commission shall forward a copy of each licence to the competent authority of the Member State into which the substances concerned are to be imported. Each Member State shall appoint a competent authority for that purpose.

2. A request for a licence shall state:

(a) the names and the addresses of the importer and the exporter;

(b) the country of exportation;

(c) a description of each controlled substance including:

- the commercial description,

- the heading and the CN code,

- the nature of the substance (virgin, recovered or reclaimed),

- the quantity of the substance in kilograms;

(d) the purpose of the proposed import (destruction by technologies approved by the Parties, recycling, feedstock use or other use of the controlled substance);

(e) the place and date of the proposed importation, if known.

3. The Commission may require a certificate attesting to the nature of substances to be imported.

Article 7

Imports of controlled substances from third countries

1. Without prejudice to Article 4 (8) and unless the substances are intended for destruction by a technology approved by the Parties, for feedstock use in the manufacture of other chemicals or for quarantine and preshipment, the release for free circulation in the Community of controlled substances imported from third countries shall be subject to quantitiative limits. Those limits shall be determined in accordance with the procedure laid down in Article 16.

2. The Community shall open the quotas set out in Annex II or in Article 4 (8) which shall be applicable for each 12-month period laid down in the Annex or in Article 4 (1) and allocate them to undertakings in accordance with the procedure laid down in Article 16.

3. The Commission may, in accordance with the procedure laid down in Article 16, alter the quotas set out in Annex II.

4. The Commission may allow the importation into the Community of controlled substances over and above the quantities set out in Article 4 (8) and Annex II to meet the licensed demands of users identified as laid down in Articles 3 (1) to (5) and (7).

5. The Commission may authorize undertakings to release for free circulation in the Community controlled substances which are intended for destruction by a technology approved by the Parties, for feedstock use in the manufacture of other chemicals or for quarantine and preshipment in accordance with the procedure laid down in Article 16.

Article 8

Imports of controlled substances from a State not Party

1. The release for free circulation in the Community of virgin, recovered or reclaimed chlorofluorocarbons, other fully halogenated chlorofluorocarbons, halons, carbon tetrachloride or 1,1,1-trichloroethane imported from any State not Party shall be prohibited.

2. One year after the date of the entry into force of the second amendment to the Protocol, the release for free circulation in the Community of virgin, recovered or reclaimed hydrobromofluorocarbons imported from any State not Party shall be prohibited. The Commission shall publish the date of the entry into force of that amendment in the Official Journal of the European Communities.

Article 9

Imports of products containing controlled substances from a State not Party

1. Subject to the decision referred to in paragraph 4, the release for free circulation in the Community of products containing chlorofluorocarbons or halons imported from any State not Party shall be prohibited.

2. Subject to the decision referred to in paragraph 4, the release for free circulation in the Community of products containing other fully halogenated chlorofluorocarbons, carbon tetrachloride or 1,1,1-trichloroethane imported from any State not Party shall be prohibited.

3. Subject to the decision referred to in paragraph 4, the release for free circulation in the Community of products containing hydrobromofluorocarbons imported from any State not Party shall be prohibited.

4. The Commission may, in accordance with the procedure laid down in Article 16, add to, delete items from or amend the list set out in Annex V in the light of the lists established by the Parties.

Article 10

Imports of products produced using controlled substances from a State not Party

In the light of the decision of the Parties, the Council shall, on a proposal from the Commission, adopt rules applicable to the release for free circulation in the Community of products imported from any State not Party, produced from controlled substances, which can be positively identified as such but do not contain such controlled substances. The identification of such products shall comply with periodical technical advice given to the Parties. The Council shall act by a qualified majority.

Article 11

Exports of controlled substances to a State not Party

1. Exports of virgin, recovered or reclaimed chlorofluorocarbons, other fully halogenated chlorofluorocarbons, halons, carbon tetrachloride or 1,1,1-trichloroethane from the Community to any State not Party shall be prohibited.

2. One year after the date published in the Official Journal of the European Communities pursuant to Article 8 (2), exports of virgin, recovered or reclaimed hydrobromofluorocarbons from the Community to any State not Party shall be prohibited.

Article 12

Exceptional authorization to trade with a State not Party

By way of derogation from Articles 8, 9 (1), (2) and (3) and 11, trade with any State not Party in controlled substances and products which contain or are produced by means of one or more such substances may be authorized by the Commission, to the extent that the State not Party is determined by a meeting of the Parties to be in full compliance with Articles 2, 2A to 2E, 2G and 4 of the Protocol and has submitted data to that effect as specified in Article 7 of the Protocol. The Commission shall act in accordance with the procedure laid down in Article 16.

Article 13

Trade with a territory not covered by the Protocol

1. Subject to any decision taken under paragraph 2, Articles 8, 9 and 11 shall apply to any territory not covered by the Protocol as they apply to any State not Party.

2. Where the authorities of a territory not covered by the Protocol are in full compliance with Articles 2, 2A to 2E, 2G and 4 of the Protocol and have submitted data to that effect as specified in Article 7 of the Protocol, the Commission may decide that some or all of the provisions of Articles 8, 9 and 11 shall not apply in respect of that territory.

The Commission shall take its decision in accordance with the procedure laid down in Article 16.

CHAPTER IV EMISSION CONTROL

Article 14

Recovery of used controlled substances

From the first day of the fourth month following that of the entry into force of this Regulation, chlorofluorocarbons, fully halogenated chlorofluorocarbons, halons, carbon tetrachloride, 1,1,1-trichloroethane, hydrobromofluorocarbons and hydrochlorofluorocarbons contained in:

- commercial and industrial refrigeration equipment and air-conditoining equipment,

- equipment containing solvents, and

- fire protection systems

shall be recovered if practicable for destruction by technologies approved by the Parties or by any other environmentally acceptable destruction technology, or for recycling or reclamation during the servicing and maintenance of equipment or before the dismantling or disposal of equipment. Member States may define the minimum qualification requirements for the servicing personnel involved.

This provision shall be without prejudice to Council Directive 75/442/EEC of 15 July 1975 (6) on waste or to Member States' measures transposing its provisions.

Before 31 December 1994 the Commission shall submit to the Council and the European Parliament a report on the implementation of the provisions of this Article by the Member States.

Article 15

Leakages of controlled substances

1. From the first day of the fourth month following that of the entry into force of this Regulation, all precautionary measures practicable shall be taken to prevent leakages of chlorofluorocarbons, other fully halogenated chlorofluorocarbons, halons, carbon tetrachloride, 1,1,1-trichloroethane, hydrobromofluorocarbons and hydrochlorofluorocarbons from commercial and industrial air-conditioning and refrigeration equipment, from fire-protection systems and from equipment containing solvents during manufacture, installation, operation and servicing. Member States may define the minimum qualification requirments for the servicing personnel involved.

2. From the first day of the fourth month following that of the entry into force of this Regulation, all precautionary measures practicable shall be taken to prevent leakages of methyl bromide from fumigation installations and operations in which methyl bromide is used. Member States may define the minimum qualification requirements for the servicing personnel involved.

3. From the first day of the fourth month following that of the entry into force of this Regulation, all precautionary measures practicable shall be taken to prevent leakages of controlled substances used as feedstock in the manufacture of other chemicals.

4. From the first day of the fourth month following that of the entry into force of this Regulation, all precautionary measures practicable shall be taken to prevent any leakage of controlled substances inadvertently produced in the course of the manufacture of other chemicals.

CHAPTER V MANAGEMENT, REPORTING AND FINAL PROVISIONS

Article 16

Management

The Commission shall be assisted by a committee composed of representatives of the Member States and chaired by a representative of the Commission.

The representative of the Commission shall submit to the committee a draft of the measures to be taken. The committee shall deliver its opinion on that draft within a time limit which the chairman may lay down according to the urgency of the matter. Each opinion shall be deliverd by the majority laid down in Article 148 (2) of the Treaty for decisions which the Council is required to adopt on a proposal from the Commission. The votes of the representatives of the Member States within the committee shall be weighted in the manner laid down in that Article. The chairman shall not vote.

The Commission shall adopt measures which shall apply immediately. If, however, those measures are not in accordance with the committee's opinion the Commission shall communicate them to the Council forthwith. In that event, the Commission may defer application of the measures on which it has decided for up to one month after the date of that communication.

The Council may, acting by a qualified majority, take a different decision within the time limit laid down in the third paragraph.

Article 17

Reporting

1. (a) Every year before 31 March, starting in 1995, each producer, importer and exporter of controlled substances shall communicate to the Commission, sending a copy to the competent authority of the Member State concerned:

- his total production,

- his production to meet the licensed demands of users identified as laid down in Articles 3 (1) to (5) and (7),

- any increase in his production under Article 3 (8) to satisfy the basic domestic needs of Parties pursuant to Article 5 of the Protocol,

- any increase in his production under Article 3 (9) to satisfy any essential uses of Parties,

- any increase in his production under Article 3 (10), (11) and (12) authorized in connection with industrial rationalization,

- any quantities recycled,

- any quantities destroyed by means of technologies approved by the Parties,

- any stocks,

- any quantities of imported virgin substances released for free circulation in the Community with separate figures for States Party and States not Party,

- any imports into the Community to meet the licensed demands of users identified as laid down in Article 3 (1) to (5) and (7),

- any exports of production from the Community, with separate figures for States Party and States not Party,

- any production placed on the market or used for the producer's own account within the Communtiy,

- any quantities used for feedstock,

for each controlled substance in respect of the period 1 January to 31 December of the preceding year.

Notwithstanding the above obligations, the communication referred to in this paragraph for the period 1 January to 31 December 1993 shall be effected no later than the last day of the fourth month following that of the entry into force of this Regulation.

(b) For the purposes of Article 4 (8) on the last day of the quarter following that of the entry into force of this Regulation, and on the last day of each quarter thereafter, each producer or importer of hydrochlorofluorocarbons shall communicate to the Commission, sending a copy to the competent authority of the Member State concerned:

- his production of hydrochlorofluorocarbons placed on the market or used for his own account within the Community,

- his imports of hydrochlorofluorocarbons into the Community.

2. Every year before 31 March, beginning in 1996 for chlorofluorocarbons, other fully halogenated chlorofluorocarbons, halons and carbon tetrachloride and 1997 for 1,1,1-trichloroethane and hydrobromofluorocarbons, each user identified as laid down in Articles 3 (1) to (5) and (7) shall communicate to the Commission, sending a copy to the competent authority of the Member States in which he uses them, his use and the quantities he has used of those substances for which he has received authorization under the relevant paragraphs of Article 3.

3. Each producer, importer and exporter of methyl bromide in 1991 shall communicate to the Commission, sending a copy to the competent authority of the Member State concerned, the information referred to in paragraph 1 in respect of that year not later than the last day of the fourth month following that of the entry into force of this Regulation. Each producer, importer and exporter shall also indicate any quantities which relate to quarantine and pre-shipment uses.

4. The Commission shall take appropriate steps to protect the confidentiality of the information submitted.

Article 18

Inspection

1. In carrying out the tasks assigned to it by this Regulation, the Commission may obtain all the information from the governments and competent authorities of the Member States and from undertakings.

2. When requesting information from an undertaking the Commission shall at the same time forward a copy of the request to the competent authority of the Member State within the territory of which the undertaking's seat is situated, toghether with a statement of the reasons why that information is required.

3. The competent authorities of the Member States shall carry out the investigations which the Commission considers necessary under this Regulation.

4. Subject to the agreement of the Commission and of the competent authority of the Member State within the territory of which the investigations are to be made, the officials of the Commission shall assist the officals of that authority in the performance of their duties.

5. The Commission shall take appropriate steps to protect the confidentiality of information obtained under this Article.

Article 19

Sanctions

Each Member State shall determine the penalties to be imposed in the event of any failure to comply with this Regulation or with any national measures taken to implement it.

Article 20

1. Regulation (EEC) No 594/91 shall be repealed.

2. References to the Regulation repealed under paragraph 1 shall be construed as references to this Regulation.

Article 21

Entry into force

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

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at...

For the Council

The President

(1) OJ No C 232, 28. 8. 1993, p. 6.

(2) OJ No C 52, 19. 2. 1994, p. 8.

(3) European Parliament opinion of 8 February 1994 (OJ No C 61, 28. 2. 1994, p. 114). Council common position of (not yet published in the Official Journal). European Parliament decision of (not yet published in the Official Journal).

(4) OJ No L 67, 14. 3. 1991, p. 1.

(5) OJ No L 405, 31. 12. 1992, p. 41.

(6) OJ No L 194, 25. 7. 1975, p. 39. Directive as amended by Directive 91/156/EEC (OJ No L 78, 26. 3. 1991, p. 32) and by Directive 91/692/EEC (OJ No L 377, 31. 12. 1991, p. 48).

ANNEX I

>TABLE>

ANNEX II

Quantitative limits on imports from third countries (calculated levels expressed in tonnes)

>TABLE>

ANNEX III

>TABLE>

ANNEX IV

Total quantitative limits on producers' and importers' placing hydrochlorofluorocarbons on the market and using them for their own account in the Community

>

TABLE POSITION>

ANNEX V

Combined nomenclature (CN) codes for products containing controlled substances (1)

1. Automobiles and truck air-conditioning units

>TABLE>

2. Domestic and commercial refrigeration and air-conditioning/heat-pump equipment

Refrigerators:

>TABLE>

Freezers:

>TABLE>

Dehumidifiers:

>TABLE>

Water coolers:

>TABLE>

Ice machines:

>TABLE>

Air-conditioning and heat-pump units:

>TABLE>

3. Aerosol products, except medical aerosols

Food products:

>TABLE>

Paints and varnishes, prepared water pigments and dyes:

>TABLE>

Perfumery, cosmetic or toilet preparations:

>TABLE>

Surface-active preparations:

>TABLE>

Lubricating preparations:

>TABLE>

Household preparations:

>TABLE>

Articles of combustible materials:

>TABLE>

Insecticides, rodenticides, fungicides, herbicides, etc.:

>TABLE>

Finishing agents, etc.:

>TABLE>

Organic composite solvents, etc.:

>TABLE>

Prepared de-icing fluids:

>TABLE>

Products of the chemical or allied industries

>TABLE>

Silicones in primary forms:

>TABLE>

Arms:

>TABLE>

4. Portable fire extinguishers

>TABLE>

5. Insulation boards, panels and pipe covers

>TABLE>

6. Pre-polymers

>TABLE>

(1) These customs codes are given for the guidance of the Member States' customs authorities.

STATEMENT OF THE COUNCIL'S REASONS

I. Introduction

1. On 3 August 1993, the Commission submitted a proposal for a Council Regulation on substances that deplete the ozone layer, based on Articles 113 and 130s of the Treaty (1).

2. The European Parliament and the Economic and Social Committee delivered their opinions respectively on 9 February 1994 (2) and on 21 December 1993 (3).

Further to the above opinions, the Commission submitted an amended proposal on 24 March 1994 (4).

3. On 27 July 1994, the Council adopted a common position in accordance with Article 189c of the Treaty, on the basis of Article 130s, paragraph 1 of the Treaty.

II. Purpose of the Regulation

The proposal aims at completing and systematizing the Community's legislation in this field. It introduces notably the provisions necessary to ensure the observance of the commitments taken by the Parties to the Montreal Protocol under the second amendment to the Protocol (Copenhagen amendment), as well as provisions relating to the recovery and avoidance of leakages of controlled substances. Those elements are incorporated in a single text together with existing Regulation (EEC) No 594/91, as amended by Regulation (EEC) No 3952/92, which is thereby repealed.

III. Analysis of the common position

1. General comments

In accordance with the progressive attitude which it has consistently shown in this field, the Council decided on stricter standards than those provided for under the Copenhagen amendment - in particular as regards CFCs, HCFCs, and methyl-bromide - whilst also seeking to safeguard as far as possible the competitive position of industry in the Community.

2. Specific comments

(The references below are to the text of the common position.)

2.1. Changes made by the Council to the Commission's amended proposal

The Commission accepted all the changes made by the Council to its amended proposal.

The main changes are:

(a) Legal basis

The Concil considered that, the main objective of the present Regulation being the protection of the environment and in accordance with the previous relevant regulations, the only legal basis should be Article 130s, paragraph 1 of the Treaty.

(b) Essential uses (Article 3 (1) (2) (3) (4) (5) (7))

It was agreed that users, rather than producers, should receive licences from the Commission as regards essential uses of controlled substances, whilst producers may be authorized by Member States, on advance notification to the Commission, to produce those substances in order to meet licensed demands presented by users.

This system is, in the Council's view, at the same time more pragmatic, equitable and flexible than the system in force hitherto.

(c) Methyl-bromide (Articles 3 (6) and 4 (6))

Taking account of the recognized need for further study of the effects of this substance and of the difficulty of replacing it in some instances, the Council agreed to postpone the 25 % cut in use and production until 1998 and to exempt, in line with the Copenhagen amendment, quarantine und pre-shipment applications.

(d) HCFC's (Articles 4 (8) and (5))

The Council raised slightly, to 2,6 % from the proposed 2,5 %, the percentage of CFCs production to be taken into account for the determination of the cap as regards these substances; this is still considerably below the 3,1 % agreed under the Copenhagen amendment. It also modified the timetable for reductions in HCFC use and commercialization - the phase-out date remaining that proposed by the Commission. This timetable remains considerably tighter than that agreed in Copenhagen.

These changes, which provide for less abrupt reductions in the first phase, are designed to avoid excessive disadvantage to industry, which in some cases invested heavily in the production of HCFCs as a less dangerous alternative to CFCs.

Moreover, the uses of HCFCs to be banned were defined more precisely, and the dates of the bans differentiated, to take account of the effective practicability and availability of substitutes. The list of permitted uses will be revised via the Committee procedure.

(e) Imports from third countries (Article 6)

The requirements proposed under this Article were tightened, also covering imports for inward processing and offering the possibility for further controls and restrictions on imports.

(f) Leakages (Article 15)

This Article was completed to take into account leakages of methyl-bromide and of controlled substances used as feedstock or produced during the manufacture of other chemicals.

(g) Data reporting (Article 17)

This Article was completed with requirements regarding essential uses.

2.2. European Parliament amendments taken up in the Commission's amended proposal and in the common position

All the amendments suggested by the European Parliament and followed in the Commission's amended proposal were taken up in the common position.

- Article 3 (1) (2) (3) (4) (5) (7) (Amendment Nos 3, 4, 5, 6, 9, 11)

The substance of this amendment was accepted although with a different wording. In particular, production for essential uses is to be allowed only if no alternatives or recycled substances are available from any of the Parties to the Protocol (instead of to any of the Parties). The wording proposed by the European Parliament could in fact have resulted in production not being allowed in a Member State even though other Parties, whilst being in possession of alternatives or recycled substances, were unwilling to export them to that Member State - which would clearly be an unfair situation.

- Article 4 (1) (2) (3) (4) (5) (7) (Amendment Nos 16, 17, 18, 19, 22, 24)

These amendments were accepted in substance via a reference to the relevant paragraphs in Article 3, which provide for the annual revision of essential uses.

- Article 14, third paragraph (Amendment No 32)

The Council accepted this amendment.

2.3. European Parliament amendments which were not taken up by the Commission

(The order of the amendments follows that of the Parliament's opinion in Official Journal No C 61 of 28 February 1994.)

- Amendment No 1

The amendment was not taken into account in so far as it does not reflect the content of the article regarding HCFCs (only the supply and use of HCFC are regulated).

- Amendment No 2

The recital to which the amendment refers was deleted as superfluous.

- Amendment Nos 7, 8, 20 and 21

The Council preferred to follow the Commission's proposal and the Copenhagen amendment.

- Amendment Nos 10, 23, 28 (partial) and 29 (partial)

The provisions decided by the Council as regards methyl-bromide are already considerably advanced in comparison to the Copenhagen amendment, which only provides for a possible cut of 25 % by 1 January 2000. A total ban by that date appears unrealistic at this stage, pending further study (see point 2.1 (c)).

- Amendment Nos 33, 25, 34, 28 (partial) and 29 (partial)

For the Council's position on HCFCs (see point 2.1 (d)).

- Amendment Nos 13, 14 and 15

The Council considered it was appropriate to maintain these provisions which appear in Regulation (EEC) No 594/91.

- Amendement No 47

The Council preferred to retain a more general wording.

- Amendment No 26

The Council preferred to maintain a degree of flexibility, as in the Commission's proposal.

- Amendment No 59

The Council preferred, for the moment, not to include marine refrigerated containers explicitly.

- Amendment No 27

The Council preferred to maintain a more flexible provision (see point 2.1 (d)).

- Amendment No 30

The Council preferred to retain the wording proposed by the Commission.

- Amendment No 31

The Council considered it fair to retain, subject to Committee procedures, the possibility of trade with territories such as Taiwan, which comply with the relevant provisions of the Protocol whilst not being able to become Parties because of their specific international position.

- Amendment No 60

The Council considered that such detailed requirements are unrealistic at this stage.

- Amendment No 61

The Council retained this amendment in a less constrictive form - minimum qualification requirements for servicing personnel are not imposed but encouraged - extending it also to the recovery of controlled substances (Article 14).

(1) OJ No C 232, 28. 8. 1993, p. 6.

(2) OJ No C 61, 28. 2. 1994, p. 114.

(3) OJ No C 52, 19. 2. 1994, p. 8.

(4) OJ No C 109, 19. 4. 1994, p. 11.