COMMON POSITION (EC) No 19/1999

adopted by the Council on 23 February 1999

with a view to adopting Council Regulation (EC) No .../1999 of ... on substances that deplete the ozone layer

(1999/C 123/03)

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(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),

(1) Whereas it is established that continued emissions of ozone-depleting substances at current levels continue to cause significant damage to the ozone layer; whereas ozone depletion in the southern hemisphere reached unprecedented levels in 1998; whereas in three out of four recent springs severe ozone depletion has occurred in the Arctic region; whereas increased UV-B radiation resulting from ozone depletion poses a significant threat to health and environment; whereas further efficient measures need therefore to be taken in order to protect human health and the environment against adverse effects resulting from such emissions;

(2) Whereas, in view of the responsibilities of the Community for the environment and trade the Community, pursuant to Decision 88/540/EEC(4), has become a party 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 and at their fourth meeting in Copenhagen;

(3) Whereas additional measures for the protection of the ozone layer were adopted by the parties to the Montreal Protocol at their seventh meeting in Vienna in December 1995 and at their ninth meeting in Montreal in September 1997, in which the Community participated;

(4) Whereas it is necessary for action to be taken at Community level to carry out the Community's obligations under the Vienna Convention and the latest amendments and adjustments to the Montreal Protocol, in particular to phase out the production and the placing on the market of methyl bromide within the Community and to provide for a system for the licensing not only of imports but also of exports of ozone-depleting substances;

(5) Whereas in view of the earlier than anticipated availability of technologies for replacing ozone-depleting substances, it is appropriate in certain cases to provide for control measures which are stricter than those provided for in Council Regulation (EC) No 3093/94 of 15 December 1994 on substances that deplete the ozone layer(5) and stricter than those of the amended and adjusted Protocol;

(6) Whereas Regulation (EC) No 3093/94 must be modified substantially; whereas it is in the interest of legal clarity and transparency to revise that Regulation completely;

(7) Whereas, under Regulation (EC) No 3093/94, the production of chlorofluorocarbons, other fully halogenated chlorofluorocarbons, halons, carbon tetrachloride, 1,1,1-trichloroethane and hydrobromofluorocarbons has been phased out; whereas the production of those controlled substances is thus prohibited, subject to possible derogation for essential uses and to meet the basic domestic needs of parties pursuant to Article 5 of the Montreal Protocol; whereas it is now also appropriate to progressively prohibit the placing on the market and use of those substances and of products and equipment containing those substances;

(8) Whereas even after the phase-out of controlled substances the Commission may under certain conditions grant exemptions for essential uses;

(9) Whereas the growing availability of alternatives to methyl bromide should be reflected in more substantial reductions in its production and consumption compared to the Montreal Protocol; whereas the production and consumption of methyl bromide should cease completely subject to possible derogations for critical uses determined at Community level following the criteria established under the Montreal Protocol; whereas also the use of methyl bromide for quarantine and preshipment applications should be controlled; whereas such use should not exceed current levels and ultimately be reduced in the light of technical development and developments under the Montreal Protocol;

(10) Whereas Regulation (EC) No 3093/94 provides for controls on the production of all other ozone-depleting substances but not for controls on the production of hydrochlorofluorocarbons; whereas it is appropriate to introduce such provision to ensure that hydrochlorofluorocarbons do not continue to be used where non-ozone-depleting alternatives exist; whereas measures for the control of the production of hydrochlorofluorocarbons should be taken by all parties to the Montreal Protocol; whereas a freeze on production of hydrochlorofluorocarbons would reflect that need and the Community's determination to take a leading role in this respect; whereas the quantities produced should be adapted to the reductions envisaged for the placing on the Community market of hydrochlorofluorocarbons and to the declining demand worldwide as a consequence of reductions in the consumption of hydrochlorofluorocarbons required by the Protocol;

(11) Whereas the Montreal Protocol, in Article 2F(7), requires the parties to endeavour to ensure that the use of hydrochlorofluorocarbons is limited to those applications where other more environmentally suitable alternative substances or technologies are not available; whereas in view of the availability of alternative and substitute technologies, the placing on the market and use of hydrochlorofluorocarbons and products containing hydrochlorofluorocarbons can be further limited; whereas Decision VI/13 of the meeting of the parties to the Montreal Protocol provides that the evaluation of alternatives to hydrochlorofluorocarbons should take into account such factors as ozone-depleting potential, energy efficiency, potential flammability, toxicity and global warming and the potential impacts on the effective use and phase-out of chlorofluorocarbons and halons; whereas hydrochlorofluorocarbon controls under the Montreal Protocol should be considerably tightened to protect the ozone layer and to reflect the availability of alternatives;

(12) Whereas quotas for the release for free circulation in the Community of controlled substances should be allocated only for limited uses of controlled substances; whereas controlled substances and products containing controlled substances from States not party to the Montreal Protocol should not be imported;

(13) Whereas the licensing system for controlled substances should be extended to include the authorisation of exports of controlled substances, in order to monitor trade in ozone-depleting substances and to allow for exchange of information between parties;

(14) Whereas provision should be made for the recovery of used, controlled substances, and to prevent leakages of controlled substances;

(15) Whereas the Montreal Protocol requires reporting on trade in ozone-depleting substances; whereas annual reporting should therefore be required from producers, importers and exporters of controlled substances;

(16) Whereas Decision X/8 of the tenth meeting of the parties of the Montreal Protocol encourages parties to take measures actively, as appropriate, to discourage the production and marketing of new ozone-depleting substances and in particular of bromochloromethane; whereas to this end a mechanism should be established to provide for new substances to be addressed by the present Regulation; whereas the production, importation, placing on the market and use of bromochloromethane should be prohibited,

HAS ADOPTED THIS REGULATION:

CHAPTER I

INTRODUCTORY PROVISIONS

Article 1

Scope

This Regulation shall apply to the production, importation, exportation, placing on the market, use, recovery, recycling and reclamation and destruction of chlorofluorocarbons, other fully halogenated chlorofluorocarbons, halons, carbon tetrachloride, 1,1,1-trichloroethane, methyl bromide, hydrobromofluorocarbons and hydrochlorofluorocarbons, to the reporting of information on these substances and to the importation, exportation, placing on the market and use of products and equipment containing those substances.

This Regulation shall also apply to the production, importation, placing on the market and use of substances in Annex II.

Article 2

Definitions

For the purposes of this Regulation:

- "Protocol" means the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, as last amended and adjusted,

- "party" means any party to the Protocol,

- "State not party to the Protocol", with respect to a particular controlled substance, includes any State or regional economic integration organisation that has not agreed to be bound by the provisions of the Protocol applicable to that substance,

- "controlled substances" means chlorofluorocarbons, other fully halogenated chlorofluorocarbons, halons, carbon tetrachloride, 1,1,1-trichloroethane, methyl bromide, hydrobromofluorocarbons and hydrochlorofluorocarbons, whether alone or in a mixture, and whether they are virgin, recovered, recycled or reclaimed. 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" (CFCs) means the controlled substances listed in Group I of Annex I, including their isomers,

- "other fully halogenated chlorofluorocarbons" means the controlled substances listed in Group II of Annex I, including their isomers,

- "halons" means the controlled substances listed in Group III of Annex I, including their isomers,

- "carbon tetrachloride" means the controlled substance specified in Group IV of Annex I,

- "1,1,1-trichloroethane" means the controlled substance specified in Group V of Annex I,

- "methyl bromide" means the controlled substance specified in Group VI of Annex I,

- "hydrobromofluorocarbons" means the controlled substances listed in Group VII of Annex I, including their isomers,

- "hydrochlorofluorocarbons" (HCFCs) means the controlled substances listed in Group VIII of Annex I, including their isomers,

- "new substances" means substances listed in Annex II. This definition shall cover substances whether alone or in a mixture, and whether they are virgin, recovered, recycled or reclaimed. This definition shall not cover any substance which is in a manufactured product other than a container used for transportation or storage of that substance, or insignificant quantities of any new substance, originating from inadvertent or coincidental production during a manufacturing process or from unreacted feedstock,

- "feedstock" means any controlled substance or new substance that undergoes chemical transformation in a process in which it is entirely converted from its original composition and whose emissions are insignificant,

- "processing agent" means controlled substances used as chemical processing agents in those applications listed in Annex VI, in installations existing at 1 September 1997, and where emissions are insignificant. The Commission shall, in the light of those criteria and in accordance with the procedure laid down in Article 17, establish a list of undertakings in which the use of controlled substances as processing agents shall be permitted, laying down maximum emission levels for each of the undertakings concerned. It may, in accordance with the procedure laid down in Article 17, amend Annex VI as well as the list of undertakings referred to above in the light of new information or technical developments, including the review provided for in Decision X/14 of the meeting of the parties to the Protocol,

- "producer" means any natural or legal person manufacturing controlled substances within the Community,

- "production" means the amount of controlled substances produced, less the amount destroyed by technologies approved by the Parties and less the amount entirely used as feedstock or as a processing agent in the manufacture of other chemicals. No amount recovered, recycled or reclaimed shall be considered as "production",

- "ozone-depleting potential" means the figure specified in the third column of Annex I representing the potential effect of each controlled substance on the ozone layer,

- "calculated level" means a quantity determined by multiplying the quantity of each controlled substance by its ozone-depleting potential and by adding together, for each group of controlled substances in Annex I separately, the resulting figures,

- "industrial rationalisation" means 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 optimising economic efficiency or responding to anticipated shortfalls in supply as a result of plant closures,

- "placing on the market" means the supplying or making available to third persons, against payment or free of charge, of controlled substances or products containing controlled substances covered by this Regulation,

- "use" means the utilisation of controlled substances in the production or maintenance, in particular refilling, of products or equipment or in other processes except for feedstock and processing agent uses,

- "reversible air-conditioning/heat pump system" means a combination of interconnected refrigerant-containing parts constituting one closed refrigeration circuit, in which the refrigerant is circulated for the purpose of extracting and rejecting heat (i.e. cooling, heating), processes which are reversible in that the evaporators and condensers are designed to be interchangeable in their functions,

- "inward processing" means a procedure provided for in Article 114(1)(a) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code(6),

- "recovery" means the collection and the storage of controlled substances from, for example, machinery, equipment and containment vessels during servicing or before disposal,

- "recycling" means 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" means 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,

- "untertaking" means 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.

CHAPTER II

PHASE-OUT SCHEDULE

Article 3

Control of production of controlled substances

1. Subject to paragraphs 5 to 10, the production of the following shall be prohibited:

(a) chlorofluorocarbons;

(b) other fully halogenated chlorofluorocarbons;

(c) halons;

(d) carbon tetrachloride;

(e) 1,1,1-trichloroethane;

(f) hydrobromofluorocarbons.

In the light of the proposals made by Member States, the Commission shall, in accordance with the procedure laid down in Article 17, apply the criteria set out in Decision IV/25 of the parties in order to determine every year any essential uses for which the production and importation of controlled substances referred to in the first subparagraph may be permitted in the Community and those users who may take advantage of those essential uses. Such production and importation shall be allowed only if no adequate alternatives or recycled or reclaimed controlled substances referred to in the first subparagraph are available from any of the parties.

2. (i) Subject to paragraphs 5 to 10, each producer shall ensure that:

(a) the calculated level of its production of methyl bromide in the period 1 January to 31 December 1999 and in each 12-month period thereafter does not exceed 75 % of the calculated level of its production of methyl bromide in 1991;

(b) the calculated level of its production of methyl bromide in the period 1 January to 31 December 2001 and in each 12-month period thereafter does not exceed 40 % of the calculated level of its production of methyl bromide in 1991;

(c) the calculated level of its production of methyl bromide in the period 1 January to 31 December 2003 and in each 12-month period thereafter does not exceed 25 % of the calculated level of its production of methyl bromide in 1991;

(d) it produces not methyl bromide after 31 December 2004.

The quantities referred to in subparagraphs (a), (b), (c) and (d) shall not include the amount of methyl bromide produced for quarantine and pre-shipment applications.

(ii) In the light of the proposals made by Member States, the Commission shall, in accordance with the procedure laid down in Article 17, apply the criteria set out in Decision IX/6 of the parties, together with any other relevant criteria agreed by the parties, in order to determine every year any critical uses for which the production, importation and use of methyl bromide may be permitted in the Community after 31 December 2004, the quantities and uses to be permitted and those users who may take advantage of the critical exemption. Such production and importation shall be allowed only if no adequate alternatives or recycled or reclaimed methyl bromide is available from any of the parties.

In an emergency, where unexpected outbreaks of particular pests or diseases so require, the Commission, at the request of the competent authority of a Member State, may authorise the temporary use of methyl bromide. Such authorisation shall apply for a period not exceeding 120 days and to a quantity not exceeding 20 tonnes.

3. Subject to paragraphs 8, 9 and 10, each producer shall ensure that:

(a) the calculated level of its production of hydrochlorofluorocarbons in the period 1 January to 31 December 2000 and in each 12-month period thereafter does not exceed the calculated level of its production of hydrochlorofluorocarbons in 1997;

(b) the calculated level of its production of hydrochlorofluorocarbons in the period 1 January to 31 December 2008 and in each 12-month period thereafter does not exceed 35 % of the calculated level of its production of hydrochlorofluorocarbons in 1997;

(c) the calculated level of its production hydrochlorofluorocarbons in the period 1 January to 31 December 2014 and in each 12-month period thereafter does not exceed 20 % of the calculated level of its production of hydrochlorofluorocarbons in 1997;

(d) the calculated level of its production of hydrochlorofluorocarbons in the period 1 January to 31 December 2020 and in each 12-month period thereafter does not exceed 15 % of the calculated level of its production of hydrochlorofluorocarbons in 1997;

(e) it produces no hydrochlorofluorocarbons after 31 December 2025.

Before 31 December 2002, the Commission shall review the level of production of hydrochlorofluorocarbons with a view to determining:

- whether a production cut ahead of the year 2008 should be proposed, and/or

- whether a change to the levels of production provided for under (b), (c) and (d) should be proposed.

This review will take into account the development of hydrochlorofluorocarbon consumption worldwide, the hydrochlorofluorocarbon exports from the Community and other OECD countries and the technical and economic availability of alternative substances or technologies as well as relevant international developments under the Protocol.

4. The Commission shall issue licences to those users identified in accordance with the second subparagraph of paragraph 1 and paragraph 2(ii) and shall notify them of the use for which they have authorisation and the substances and quantities thereof that they are authorised to use.

5. A producer may be authorised by the competent authority of the Member State in which that producer's relevant production is situated to produce the controlled substances referred to in paragraphs 1 and 2 for the purpose of meeting the demands licensed in accordance with paragraph 4. The competent authority of the Member State concerned shall notify the Commission in advance of its intention of issuing any such authorisation.

6. The competent authority of the Member State in which a producer's relevant production is situated may authorise that producer to exceed the calculated levels or production laid down in paragraphs 1 and 2 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 States concerned shall notify the Commission in advance of its intention of issuing any such authorisation.

7. To the extent permitted by the Protocol, the competent authority of the Member State in which a producer's relevant production is situated may authorise that producer to exceed the calculated levels of production laid down in paragraphs 1 and 2 in order to satisfy any essential, or critical, uses of parties at their request. The competent authority of the Member States concerned shall notify the Commission in advance of its intention of issuing any such authorisation.

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 authorise that producer to exceed the calculated levels of production laid down in paragraphs 1 to 7 for the purpose of industrial rationalisation 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 7 for the periods in question. The competent authority of the Member State concerned shall notify the Commission in advance of its intention if issuing any such authorisation.

9. 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, authorise that producer to exceed the calculated levels of production laid down in paragraphs 1 to 8 for the purpose of industrial rationalisation 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 8 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.

10. 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 production is situated and the government of the third party concerned, authorise a producer to combine the calculated levels of production laid down in paragraphs 1 to 9 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 rationalisation 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 9 and the calculated levels of production allowed to the third party producer under the Protocol and any relevant national legislation.

Article 4

Control of the placing on the market and use of controlled substances

1. Subject to paragraphs 4 and 5, the placing on the market and the use of the following controlled substances shall be prohibited:

(a) chlorofluorocarbons;

(b) other fully halogenated chlorofluorocarbons;

(c) halons;

(d) carbon tetrachloride;

(e) 1,1,1-trichloroethane; and

(f) hydrobromofluorocarbons.

The Commission may, following a request by a competent authority of a Member State and in accordance with the procedure laid down in Article 17, authorise a temporary exemption to allow the use of chlorofluorocarbons in military applications until 31 December 2008, where it is demonstrated that, for a particular use, technically and economically feasible alternative substances or technologies are not available or cannot be used.

2. (i) Subject to paragraphs 4 and 5, each producer and importer shall ensure that:

(a) the calculated level of methyl bromide which it places on the market or uses for its own account in the period 1 January to 31 December 1999 and in each 12-month period thereafter does not exceed 75 % of the calculated level of methyl bromide which it placed on the market or used for its own account in 1991;

(b) the calculated level of methyl bromide which it places on the market or uses for its own account in the period 1 January to 31 December 2001 and in each 12-month period thereafter does not exceed 40 % of the calculated level of methyl bromide which it placed on the market or used for its own account in 1991;

(c) the calculated level of methyl bromide which it places on the market or uses for its own account in the period 1 January to 31 December 2003 and in each 12-month period thereafter does not exceed 25 % of the calculated level of methyl bromide which it placed on the market or used for its own account in 1991;

(d) it does not place any methyl bromide on the market or use any for its own account after 31 December 2004.

To the extent permitted by the Protocol, the Commission shall, following a request by a competent authority of a Member State and in accordance with the procedure laid down in Article 17, adjust the calculated level of methyl bromide referred to in Article 3(2)(i)(c) and subparagraph (c) above where it is demonstrated that this is necessary to meet the needs of that Member State, because technically and economically feasible alternatives or substitutes that are acceptable from the standpoint of environment and health are not available or cannot be used.

The Commission, in consultation with Member States, shall encourage the development, including research, and the use of alternatives to methyl bromide as soon as possible.

(ii) Subject to paragraph 4, the placing on the market and the use of methyl bromide by undertakings other than producers and importers shall be prohibited after 31 December 2005.

(iii) The quantities referred to in subparagraphs 2(i)(a), (b), (c) and (d) shall not include the amount of methyl bromide produced or imported for quarantine and pre-shipment applications. For the period [...](7) and for each 12-month period thereafter, each producer and importer shall ensure that the calculated level of methyl bromide which it places on the market or uses for its own account for quarantine and pre-shipment applications shall not exceed the average of the calculated level of methyl bromide which it placed on the market or used for its own account for quarantine and pre-shipment in the years 1996, 1997 and 1998.

Each year Member States shall report to the Commission the quantities of methyl bromide authorised for quarantine and pre-shipment used in their territory, the purposes for which methyl bromide was used, and the progress in evaluating and using alternatives.

The Commission shall, in accordance with the procedure laid down in Article 17, take measures to reduce the calculated level of methyl bromide which producers and importers may place on the market or use for their own account for quarantine and pre-shipment in the light of technical and economic availability of alternative substances or technologies and of the relevant international developments under the Protocol.

(iv) The total quantitative limits for the placing on the market or use for their own account by producers and importers of methyl bromide are set out in Annex III.

3. (i) Subject to paragraphs 4 and 5 and to Article 5(5):

(a) 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 1999 and in the 12-month period thereafter shall not exceed the sum of:

- 2,6 % of the calculated 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;

(b) 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 2001 shall not exceed the sum of:

- 2,0 % of the calculated 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;

(c) 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 2002 shall not exceed 85 % of the level calculated in application of subparagraph (b);

(d) 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 2003 shall not exceed 45 % of the level calculated in application of subparagraph (b);

(e) 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 2004 and in each 12-month period thereafter shall not exceed 30 % of the level calculated in application of subparagraph (b);

(f) 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 2008 and in each 12-month period thereafter shall not exceed 25 % of the level calculated in application of subparagraph (b);

(g) no producer or importer shall place hydrochlorofluorocarbons on the market or use any for its own account after 31 December 2009;

(h) each producer and importer shall ensure that the calculated level of hydrochlorofluorocarbons which it places on the market or uses for its own account in the period 1 January to 31 December 1999 and in each 12-month period thereafter until 31 December 2002 shall not exceed, as a percentage of the calculated levels set out in (a) to (c), its percentage market share in 1996.

(ii) Before 1 January 2001, the Commission shall, in accordance with the procedure laid down in Article 17, determine a mechanism for the allocation of quotas to each producer and importer of the calculated levels set out in (d) to (f), applicable for the period 1 January to 31 December 2003 and for each 12-month period thereafter.

(iii) In the case of producers, the quantities referred to in this paragraph shall apply to the amounts of virgin hydrochlorofluorocarbons which they place on the market or use for their own account within the Community and which were produced in the Community.

(iv) The total quantitative limits for the placing on the market or use for their own account by producers and importers of hydrochlorofluorocarbons are set out in Annex III.

4. (i) (a) Paragraphs 1, 2 and 3 shall not apply to the placing on the market of controlled substances for destruction within the Community by technologies approved by the parties;

(b) paragraphs 1, 2 and 3 shall not apply to the placing on the market and use of controlled substances if:

- they are used for feedstock or as a processing agent, or

- they are used to meet the licensed demands for essential uses of those users identified as laid down in Article 3(1) and to meet the licensed demands for critical uses of those users identified as laid down in Article 3(2) or to meet the demands for temporary emergency applications authorised in accordance with Article 3(2)(ii).

(ii) Paragraph 1 shall not apply to the placing on the market, by undertakings other than producers, of controlled substances for the maintenance or servicing of refrigeration and air-conditioning equipment until 31 December 1999.

(iii) Paragraph 1 shall not apply to the use of controlled substances for the maintenance or servicing of refrigeration and air-conditioning equipment or in fingerprinting processes until 31 December 2000.

(iv) Paragraph 1(c) shall not apply to the placing on the market and use of halons that have been recovered, recycled or reclaimed in existing fire protection systems until 31 December 2002 or to the placing on the market and use of halons for critical uses as set out in Annex VII. Each year the competent authorities of the Member States shall notify to the Commission the quantities of halons used for critical uses, the measures taken to reduce their emissions and an estimate of such emissions, and the current activities to identify and use adequate alternatives. Each year the Commission shall review the critical uses listed in Annex VII and, if necessary, adopt modifications in accordance with the procedure laid down in Article 17.

(v) Except for uses listed in Annex VII, fire protection systems and fire extinguishers containing halons shall be decommissioned before 31 December 2003, and halons shall be recovered in accordance with the provisions of Article 15.

5. Any producer or importer entitled to place controlled substances referred to in this Article on the market or use them for its own account may transfer that right in respect of all or any quantities of that group of substances fixed in accordance with the Article to any other producer or importer of that group of substances within the Community. Any such transfer shall be notified in advance to the Commission. The transfer of the right to place on the market or use shall not imply the further right to produce or to import.

6. The importation and placing on the market of products and equipment containing chlorofluorocarbons, other fully halogenated chlorofluorocarbons, halons, carbon tetrachloride, 1,1,1-trichloroethane and hydrobromofluorocarbons shall be prohibited, with the exception of products and equipment for which the use of the respective controlled substance has been authorised in accordance with the second subparagraph of Article 3(1) or is listed in Annex VII. Products and equipment shown to be manufactured before the entry into force of this Regulation shall not be covered by this prohibition.

Article 5

Control of the use of hydrochlorofluorocarbons

1. Subject to the following conditions, the use of hydrochlorofluorocarbons shall be prohibited:

(a) in aerosols;

(b) as solvents:

(i) in non-contained solvent uses including open-top cleaners and open-top dewatering systems without refrigerated areas, in adhesives and mould-release agents when not employed in closed equipment, for drain cleaning where hydrochlorofluorocarbons are not recovered;

(ii) from 1 January 2002, in all solvent uses, with the exception of precision cleaning of electrical and other components in the aerospace and aeronautics applications where the prohibition shall enter into force on 31 December 2008;

(c) as refrigerants:

(i) in equipment produced after 31 December 1995 for the following uses:

- in non-confined direct-evaporation systems,

- in domestic refrigerators and freezers,

- in motor vehicle, tractor and off-road vehicle or trailer air-conditioning systems operating on any energy source, except for military uses where the prohibition shall enter into force on 31 December 2008,

- in road public-transport air-conditioning;

(ii) in rail transport air-conditioning, in equipment produced after 31 December 1997;

(iii) from 1 January 2000, in equipment produced after 31 December 1999 for the following uses:

- in public and distribution cold stores and warehouses,

- for equipment of 150 kw and over, shaft input;

(iv) from 1 January 2001, in all other refrigeration and air-conditioning equipment produced after 31 December 2000, with the exception of fixed air-conditioning equipment, with a cooling capacity of less than 100 kW, where the use of hydrochlorofluorocarbons shall be prohibited from 1 January 2003 in equipment produced after 31 December 2002 and of reversible, air-conditioning/heat pump systems where the use of hydrochlorofluorocarbons shall be prohibited from 1 January 2004 in all equipment produced after 31 December 2003;

(v) from 1 January 2010, the use of virgin hydrochlorofluorocarbons shall be prohibited in the maintenance and servicing of refrigeration and air-conditioning equipment existing at that date;

(d) for the production of foams:

(i) for the production of all foams except integral skin foams for use in safety applications and rigid insulating foams;

(ii) from 1 January 2000, for the production on integral skin foams for use in safety applications and polyethylene rigid insulating foams;

(iii) from 1 January 2002, for the production of extruded polystyrene rigid insulating foams, except where used for insulated transport;

(iv) from 1 January 2003, for the production of polyurethane foams for appliances, of polyurethane flexible faced laminate foams and of polyurethane sandwich panels, except where these latter two are used for insulated transport;

(v) from 1 January 2004, for the production of all foams, including polyurethane spray and block foams;

(e) as carrier gas for sterilisation substances in closed systems, in equipment produced after 31 December 1997;

(f) in all other applications.

2. By way of derogation from paragraph 1, the use of hydrochlorofluorocarbons shall be permitted:

(a) in laboratory uses, including research and development;

(b) as feedstock;

(c) as a processing agent.

3. By way of derogation from paragraph 1, the use of hydrochlorofluorocarbons as fire-fighting agents in existing fire-protection systems may be permitted for replacing halons in applications listed in Annex VII under the following conditions:

- halons contained in such fire-protection systems shall be replaced completely,

- halons withdrawn shall be destroyed,

- 70 % of the destruction costs shall be covered by the supplier of the hydrochlorofluorocarbons,

- each year, Member States making use of this provision shall notify to the Commission the number of installations and the quantities of halons concerned.

4. The importation and placing on the market of products and equipment containing hydrochlorofluorocarbons for which a use restriction is in force under this Article shall be prohibited from the date on which the use restriction comes into force. Products and equipment shown to be manufactured before the date of that use restriction shall not be covered by this prohibition.

5. Until 31 December 2009, the use restrictions under this Article shall not apply to the use of hydrochlorofluorocarbons for the production of products for exports to countries where the use of hydrochlorofluorocarbons in those products is still permitted.

6. The Commission may, in accordance with the procedure laid down in Article 17, in the light of experience with the operation of this Regulation or to reflect technical progress, modify the list and the dates set out in paragraph 1.

7. The Commission may, following a request by a competent authority of a Member State and in accordance with the procedure laid down in Article 17, authorise a time-limited exemption to allow the use and placing on the market of hydrochlorofluorocarbons in derogation from paragraph 1 and Article 4(3) where it is demonstrated that, for a particular use, technically and economically feasible alternative substances or technologies are not available or cannot be used.

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. Such licences shall be issued by the Commission after verification of compliance with Articles 6, 7, 8 and 13. 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. Controlled substances listed in Groups I, II, III, IV and V as listed in Annex I shall not be imported for inward processing.

2. The licence shall, when related to an inward-processing procedure, be issued only if the controlled substances are to be used in the customs territory of the Community under the system of suspension, provided for in Article 114(2)(a) of Regulation (EEC) No 2913/92, and under the condition that the compensating products are re-exported to a State where the production, consumption or import of that controlled substance is not prohibited. The licence shall only be issued following approval of the competent authority of the Member State in which the inward-processing operation is to take place.

3. 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) the country of final destination if controlled substances are to be used in the customs territory of the Community under the inward-processing procedure as referred to in paragraph 2;

(d) a description of each controlled substance, including:

- the commercial description,

- the description and the CN code as laid down in Annex IV,

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

- the quantity of the substance in kilograms;

(e) the purpose of the proposed import;

(f) if known, the place and date of the proposed importation and, where relevant, any changes to these data.

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

5. The Commission may, in accordance with the procedure laid down in Article 17, modify the list of items mentioned in paragraph 3 and Annex IV.

Article 7

Imports of controlled substances from third countries

The release for free circulation in the Community of controlled substances imported from third countries shall be subject to quantitative limits. Those limits shall be determined and quotas allocated to undertakings for the period 1 January to 31 December 1999 and for each 12-month period thereafter in accordance with the procedure laid down in Article 17. They shall be allocated only:

(a) for controlled substances of Groups VI and VIII as referred to in Annex I;

(b) for controlled substances if they are used for essential or critical uses or for quarantine and pre-shipment applications;

(c) for controlled substances if they are used for feedstock or as processing agents; or

(d) to undertakings having destruction facilities for recovered controlled substances if the controlled substances are used for destruction in the Community by technologies approved by the parties.

Article 8

Imports of controlled substances from a State not party to the Protocol

The release for free circulation in the Community or inward processing of controlled substances imported from any State not party to the Protocol shall be prohibited.

Article 9

Imports of products containing controlled substances from a State not party to the Protocol

1. The release for free circulation in the Community of products and equipment containing controlled substances imported from any State not party to the Protocol shall be prohibited.

2. A list of products containing controlled substances and of Combined Nomenclature codes is given in Annex V for guidance of the Member States' customs authorities. The Commission may, in accordance with the procedure laid down in Article 17, add to, delete items from or amend this list in the light of the list established by the parties.

Article 10

Imports of products produced using controlled substances from a State not party to the Protocol

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 which were produced using controlled substances but do not contain substances which can be positively identified as controlled substances, imported from any State not party to the Protocol. 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

Export of controlled substances or products containing controlled substances

1. Exports from the Community of chlorofluorocarbons, other fully halogenated chlorofluorocarbons, halons, carbon tetrachloride, 1,1,1-trichloroethane and hydrochlorofluorocarbons or products and equipment, other than personal effects, containing those substances or whose continuing function relies on supply of those substances shall be prohibited. This prohibition shall not apply to exports of:

(a) controlled substances produced under Article 3(6) to satisfy the basic domestic needs of parties pursuant to Article 5 of the Protocol;

(b) controlled substances produced under Article 3(7) to satisfy essential or critical uses of parties;

(c) products and equipment containing controlled substances produced under Article 3(5) or imported under Article 7(b);

(d) products and equipment containing halon, to satisfy critical uses listed in Annex VII;

(e) controlled substances to be used for feedstock and processing agent applications.

2. Exports from the Community of methyl bromide to any State not party to the Protocol shall be prohibited.

3. From 1 January 2004, exports from the Community of hydrochlorofluorocarbons to any State not party to the Protocol shall be prohibited. The Commission shall, in accordance with the procedure laid down in Article 17, examine the above date in the light of relevant international developments under the Protocol and modify it as appropriate.

Article 12

Export authorisation

1. Exports from the Community of controlled substances shall be subject to authorisation. Such export authorisation shall be issued by the Commission to undertakings for the period [...](8) and for each 12-month period thereafter after verification of compliance with Article 11. The Commission shall forward a copy of each export authorisation to the competent authority of the Member State concerned.

2. An application for an export authorisation shall state:

(a) the name and address of the exporter and of the producer, where it is not the same;

(b) a description of the controlled substance(s) intended for export, including:

- the commercial description,

- the description and the CN code as laid down in Annex IV,

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

(c) the total quantity of each substance to be exported;

(d) the country/countries of final destination of the controlled substance(s);

(e) the purpose of the exports.

3. Each exporter shall notify the Commission of any changes which might occur during the period of validity of the authorisation in relation to the data notified under paragraph 2. Each exporter shall report to the Commission in accordance with Article 18.

Article 13

Exceptional authorisation to trade with a State not party to the Protocol

By way of derogation from Articles 8, 9(1), 10, 11(2) and (3), trade with any State not party to the Protocol in controlled substances and products which contain or are produced by means of one or more such substances may be authorised by the Commission, to the extent that the State not party to the Protocol is determined by a meeting of the parties to be in full compliance with 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 17 of this Regulation.

Article 14

Trade with a territory not covered by the Protocol

1. Subject to any decision taken under paragraph 2, Articles 8, 9, 11(2) and (3) shall apply to any territory not covered by the Protocol as they apply to any State not party to the Protocol.

2. Where the authorities of a territory not covered by the Protocol are in full compliance with 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 of this Regulation shall not apply in respect of that territory.

The Commission shall take its decision in accordance with the procedure laid down in Article 17.

CHAPTER IV

EMISSION CONTROL

Article 15

Recovery of used controlled substances

1. Controlled substances contained in:

- refrigeration, air-conditioning and heat pump equipment, except domestic refrigerators and freezers,

- equipment containing solvents,

- fire protection systems and fire extinguishers,

shall be recovered 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.

2. Controlled substances contained in domestic refrigerators and freezers shall be recovered and dealt with as provided for in paragraph 1 after 31 December 2001.

3. Controlled substances contained in products, installations and equipment other than those mentioned in paragraphs 1 and 2 shall be recovered, if practicable, and dealt with as provided for in paragraph 1.

4. Controlled substances shall not be placed on the market in disposable containers, except for essential uses.

5. Member States shall promote, as appropriate, the establishment of destruction, recycling and reclamation facilities. Member States shall define the minimum qualification requirements for the personnel involved. At the latest on 31 December 2001, Member States shall report to the Commission on the programmes related to the above qualification requirements. The Commission shall evaluate the measures taken by the Member States. In the light of this evaluation and of technical and other relevant information, the Commission, as appropriate, shall propose measures regarding those minimum qualification requirements.

6. Member States shall report to the Commission by 31 December 2001 on the systems established to promote the recovery of used controlled substances, including the facilities available and the quantities of used controlled substances recovered, recycled, reclaimed or destroyed.

7. This Article shall be without prejudice to Council Directive 75/442/EEC of 15 July 1975 on waste(9) or to measures adopted following Article 2(2) of that Directive.

Article 16

Leakages of controlled substances

1. All precautionary measures practicable shall be taken to prevent and minimise leakages of controlled substances. In particular, fixed equipment with a refrigerating fluid charge of more than 3 kg shall be checked for leakages annually. Member States shall define the minimum qualification requirements for the personnel involved. At the latest on 31 December 2001, Member States shall report to the Commission on the programmes related to the above qualification requirements. The Commission shall evaluate the measures taken by the Member States. In the light of this evaluation and of technical and other relevant information, the Commission, as appropriate, shall propose measures regarding those minimum qualification requirements.

The Commission shall promote the preparation of European standards relating to the control of leakages and to the recovery of substances leaking from commercial and industrial air-conditioning and refrigeration equipment, from fire-protection systems and from equipment containing solvents as well as, as appropriate, to technical requirements with respect to the leakproofness of refrigeration systems.

2. All precautionary measures practicable shall be taken to prevent and minimise leakages of methyl bromide from fumigation installations and operations in which methyl bromide is used. Whenever methyl bromide is used in soil fumigation, the use of virtually impermeable films for a sufficient time, or other techniques ensuring at least the same level of environmental protection shall be mandatory. Member States shall define the minimum qualification requirements for the personnel involved.

3. All precautionary measures practicable shall be taken to prevent and minimise leakages of controlled substances used as feedstock and as processing agents.

4. All precautionary measures practicable shall be taken to prevent and minimise any leakage of controlled substances inadvertently produced in the course of the manufacture of other chemicals.

5. The Commission shall develop as appropriate and ensure the dissemination of notes describing best available technologies and best environmental practices concerning the prevention and minimisation of leakages and emissions of controlled substances.

CHAPTER V

COMMITTEE, REPORTING, INSPECTION AND PENALTIES

Article 17

Committee

The Commission shall be assisted by a committee composed of the 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. The opinion shall be delivered by the majority laid down in Article 148(2) of the Treaty in the case of 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. However, if these measures are not in accordance with the opinion of the committee, they shall be communicated by the Commission to the Council forthwith. In that event, the Commission may defer application of the measures which it has decided for a period of not more than one month from the date of such communication.

The Council, acting by a qualified majority, may take a different decision within the time limit referred to in the previous paragraph.

Article 18

Reporting

1. Every year before 31 March, 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, data as specified below for each controlled substance, in respect of the period 1 January to 31 December of the preceding year.

The format of this report shall be established in accordance with the procedure set out in Article 17.

(a) Each producer shall communicate:

- its total production of each controlled substance,

- any production placed on the market or used for the producer's own account within the Community, separately identifying production for feedstock, processing agent, quarantine and pre-shipment and other uses,

- any production to meet the essential uses in the Community, licensed in accordance with Article 3(4),

- any production authorised under Article 3(6) to satisfy basic domestic needs of parties pursuant to Article 5 of the Protocol,

- any production authorised under Article 3(7) to satisfy essential, or critical, uses of parties,

- any increase in production authorised under Article 3(8), (9) and (10) in connection with industrial rationalisation,

- any quantities recycled, reclaimed or destroyed,

- any stocks.

(b) Each importer, including any producers who also import, shall communicate:

- any quantities released for free circulation in the Community, separately identifying imports for feedstock and processing-agent uses, for essential or critical uses licensed in accordance with Article 3(4), for use in quarantine and pre-shipment applications and for destruction,

- any quantities of controlled substances entering the Community under the inward-processing procedure,

- any quantities of used controlled substances imported for recycling or reclamation,

- any stocks.

(c) Each exporter, including any producers who also export, shall communicate:

- any quantities of controlled substances exported from the Community, including substances which are re-exported under the inward-processing procedure, separately identifying quantities exported to each country of destination and quantities exported for feedstock and processing agent uses, essential uses, critical uses, quarantine and pre-shipment uses, to meet the basic domestic needs of parties pursuant to Article 5 of the Protocol and for destruction,

- any quantities of used controlled substances exported for recycling or reclamation,

- any stocks.

2. Every year before 31 December, Member States' customs authorities shall return to the Commission the stamped used licence documents.

3. Every year before 31 March, each user who has been authorised to take advantage of an essential use exemption under Article 3(1) shall, for each substance for which an authorisation has been received, report to the Commission, sending a copy to the competent authority of the Member State concerned, the nature of the use, the quantities used during the previous year, the quantities held in stock, any quantities, recycled or destroyed, and the quantity of products containing those substances placed on the Community market and/or exported.

4. Every year before 31 March, each undertaking which has been authorised to use controlled substances as a processing agent shall report to the Commission the quantities used during the previous year, and an estimate of the emissions which occurred during such use.

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

6. The Commission may, in accordance with the procedure laid down in Article 17, modify the reporting requirements laid down in paragraphs 1 to 4, to meet commitments under the Protocol or to improve the practical application of those reporting requirements.

Article 19

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, together 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 officials of that authority in the performance of their duties.

5. The Commission shall take appropriate action to promote adequate exchange of information and cooperation between national authorities and between national authorities and the Commission. The Commission shall take appropriate steps to protect the confidentiality of information obtained under this Article.

Article 20

Penalties

Member States shall determine the necessary penalties applicable to breaches of this Regulation. The penalties shall be effective, proportionate and dissuasive. Member States shall notify the provisions regarding penalties to the Commission by [...](10) at the latest and shall also notify it without delay of any subsequent amendment affecting such provisions.

CHAPTER VI

NEW SUBSTANCES

Article 21

New substances

1. The production, release for free circulation in the Community and inward processing, placing on the market and use of new substances in Annex II are prohibited. This prohibition does not apply to new substances if they are used as feedstock.

2. The Commission shall, as appropriate, make proposals to include in Annex II any substances that are not controlled substances but that are found by the Scientific Assessment Panel under the Protocol to have a significant ozone-depleting potential, including on possible exemptions from paragraph 1.

CHAPTER VII

FINAL PROVISIONS

Article 22

Repeal

Regulation (EC) No 3093/94 is repealed.

References to the repealed Regulation shall be construed as references to this Regulation.

Article 23

Entry into force

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

It shall apply from [...](11).

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

Done at ....

For the Council

The President

(1) OJ C 286, 15.9.1998, p. 6.

(2) OJ C 40, 15.2.1999, p. 34.

(3) Opinion of the European Parliament of 17 December 1998 (OJ C 98, 9.4.1999), Council common position of 23 February 1999 and Decision of the European Parliament of ... (not yet published in the Official Journal).

(4) OJ L 297, 31.10.1988, p. 8.

(5) OJ L 333, 22.12.1994, p. 1.

(6) OJ L 302, 19.10.1992, p. 1. Regulation as last amended by Regulation (EC) No 82/97 (OJ L 17, 21.1.1997, p. 1).

(7) Dates to be inserted at a later stage.

(8) Dates to be inserted at a later stage.

(9) OJ L 194, 25.7.1975, p. 39. Directive as last amended by Decision 96/350/EC (OJ L 135, 6.6.1996, p. 32).

(10) Dates to be inserted at a later stage.

(11) Dates to be inserted at a later stage.

ANNEX I

Controlled substances covered

>TABLE>

ANNEX III

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

(calculated levels expressed in ODP tonnes)

>TABLE>

ANNEX III

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

(calculated levels expressed in ODP tonnes)

>TABLE>

ANNEX IV

Groups, Combined Nomenclature 1999 (CN 99) codesand descriptions for the substances referred to in Annexes I and III

>TABLE>

ANNEX V

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

1. Automobiles and trucks equipped with air-conditioning units

CN codes

87012010-87019090

87021011-87029090

87031011-87039090

87041011-87049000

87051000-87059090

87060011-87060099

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

Refrigerators:

CN codes

84181010-84182900

84185011-84185099

84186110-84186999

Freezers:

CN codes

84181010-84182900

84183010-84183099

84184010-84184099

84185011-84185099

84186110-84186190

84186910-84186999

Dehumidifiers:

CN codes

84151000-84158390

84796000

84798910

84798998

Water coolers and gas liquefying units:

CN codes

84196000

84198998

Ice machines:

CN codes

84181010-84142900

84183010-84183099

84184010-84184099

84185011-84185099

84186110-84186190

84186910-84186999

Air-conditioning and heat-pump units:

CN codes

84151000-84158390

84186110-84186190

84186910-84186999

84189910-84189990

3. Aerosol products, except medical aerosols

Food products:

CN codes

04049021-04049089

15179010-15179099

21069092

21069098

Paints and varnishes, prepared water pigments and dyes:

CN codes

32081010-32081090

32082010-32082090

32089011-32089099

32091000-32099000

32100010-32100090

32129090

Perfumery, cosmetic or toilet preparations:

CN codes

33030010-33030090

33043000

33049900

33051000-33059090

33061000-33069000

33071000-33073000

33074900

33079000

Surface-active preparations:

CN codes

34022010-34022090

Lubricating preparations:

CN codes

27100081

27100097

34031100

34031910-34031999

34039100

34039910-34039990

Household preparations:

CN codes

34051000

34052000

34053000

34054000

34059010-34059090

Articles of combustible materials:

CN codes

36061000

Insecticides, rodenticides, fungicides, herbicides etc.:

CN codes

38081010-38081090

38082010-38082080

38083011-38083090

38084010-38084090

38089010-38089090

Finishing agents, etc.:

CN codes

38091010-38091090

38099100-38099300

Preparations and charges for fire-extinguishers; charged fire-extinguishing grenades:

CN codes

38130000

Organic composite solvents, etc.:

CN codes

38140010-38140090

Prepared de-icing fluids:

CN codes

38200000

Products of the chemical or allied industries:

CN codes

38249010

38249035

38249040

38249045-38249095

Silicones in primary forms:

CN codes

39100000

Arms:

CN codes

93040000

4. Portable fire extinguishers

CN codes

84241010-84241099

5. Insulation boards, panels and pipe covers

CN codes

39172110-39174090

39201023-39209990

39211100-39219090

39251000-39259080

39269010-39269099

6. Pre-polymers

CN codes

39011010-39119099

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

ANNEX VI

Processes in which controlled substances are used as processing agents

- Use of carbon tetrachloride for the elimination of nitrogen trichloride in the production of chlorine and caustic soda,

- use of carbon tetrachloride in the recovery of chlorine in tail gas from production of chlorine,

- use of carbon tetrachloride in the manufacture of chlorinated rubber,

- use of carbon tetrachloride in the manufacture of isobutyl acetophenone (ibruprofen-analgesic),

- use of carbon tetrachloride in the manufacture of poly-phenylene-terephtalamide,

- use of CFC-11 in manufacture of fine synthetic polyolefin fibre sheet,

- use of CFC-113 in the manufacture of vinorelbine (pharmaceutical prodcut)

- use of CFC-12 in the photochemical synthesis of perfluoropolyetherpolyperoxide precursors of Z-perfluoropolyethers and difunctional derivatives,

- use of CFC-113 in the reduction of perfluoropolyetherpolyperoxide intermediate for production of perfluoropolyether diesters,

- use of CFC-113 in the preparation of perfluoropolyether diols with high functionality,

- use of carbon tetrachloride in the production of tralomethrine (insecticide).

And the use of HCFCs in the above processes when used to replace CFC or carbon tetrachloride.

ANNEX VII

Critical uses of halon

Use of halon 1301:

- in aircraft for the protection of crew compartments, engine nacelles, cargo bays and dry bays,

- in military land vehicles and naval vessels for the protection of spaces occupied by personnel and engine compartments,

- for the making inert of occupied spaces where flammable liquid and/or gas release could occur in the military and petrochemical sector, and in cargo ships,

- for the making inert of manned communication and command cnetres of the armed forces or otherwise essential for national security existing at[........](1)

- for the making inert of spaces where there may be a risk of dispersion of radioactive matter,

- in the Channel Tunnel and associated installations and rolling stock.

Use of halon 1211:

- in hand-held fire extinguishers and fixed extinguisher equipment for engines for use on board aircraft,

- in aircraft for the protection of crew compartments, engine nacelles, cargo bays and dry bays,

- in fire extinguishers essential to personal safety used for initial extinguishing by fire brigades,

- in military and police fire extinguishers for use on persons.

(1) Date to be inserted at a later stage.

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 1 September 1998, the Commission forwarded to Council a proposal for a Council Regulation on substances that deplete the ozone layer, based on Article 130s(1) of the EC Treaty(1).

2. The European Parliament and the Economic and Social Committee delivered their opinions on 17 December 1998(2) and on 2 December 1998(3) respectively.

3. On 11 February 1999 the Commission forwarded an amended proposal to Council.

4. On 23 February 1999, the Council adopted its common position in accordance with Article 189c of the Treaty.

II. OBEJCTIVE

The Regulation is intended to replace Council Regulation (EC) No 3093/94(4) in order to implement in the Community the commitments agreed by the parties to the Montreal Protocol at their seventh meeting in Vienna (1995) and at their ninth meeting in Montreal (1997). It also aims at introducing in some cases stricter controls on ozone-depleting substances, on the basis of experience in the implementation of Regulation EC No 3093/94 and of progress in the technical and economic availability of alternative substances.

III. ANALYSIS OF THE COMMON POSITION

A. Amended Commission proposal

The Council adopted five amendments proposed by the European Parliament, as included in the amended Commission proposal. It was able to accept only in part amendment 30, since the reference to exemptions for medical uses would have not been wholly consistent with the enacting terms.

The Council further accepted the substance of amendment 21, but sought to make it stricter, banning the placing on he market in disposable containers of all controlled substances, except for essential uses.

TEXT CONTINUED UNDER DOC.NUM: 599AG0504(03).1

B. Amendments accepted by the Commission but not included in the common position

Amendement 2 (recital 9)

The Council considered that it was not appropriate to single out the negative characteristics of methyl bromide, since no similar considerations were voiced for other controlled substances. As for the second part of the amendment, the changes brought by Council to the provisions on methyl bromide (see point C. 2 below) made it less relevant.

Amendement 4 (new recital 11a)

The Council considered that the proposed recital was not appropriate since there were no corresponding enacting terms.

Amendement 14 (Article 5(1)(d))

The Council considered that the original Commission proposal was more adequate in view of the technical and economic availability of alternative substances.

Amendement 22 (Article 19(2))

The Council considered that it was useful for a Member State to know the reasons why the Commission required information from an undertaking within its territory and wished therefore to maintain the obligation for the Commission to state those reasons.

Amendement 23 (Article 19(3))

The Council considered that the obligation for Member States' authorities to carry out the investigations which the Commission considered necessary gave a sufficient guarantee of adequate controls.

C. Main changes or innovations introduced by Council

1. Preamble

The preamble was modified to ensure better consistency with the enacting terms as agreed by Council.

2. Phase-out calendar for methyl bromide (Articles 3(2) and 4(2)

The Council considered that the Commission proposal could be too demanding, in particular for Community's Member States in which economic structure and climatic conditions make the replacement of methyl bromide more difficult. These countries would risk to see their competitiveness in the agricultural sector severely impaired by much stricter controls than those applicable under the Montreal Protocol.

The Council decided therefore on a calendar culminating in a phase-out by 2005, as in the Montreal Protocol, with however stricter intermediate cuts (60 % in 2001 and 75 % in 2003, as compared with 50 % and 70 %), it being understood that, after phase-out, the criteria on critical uses agreed under the Montreal Protocol would apply. A safeguard clause provides for the possibility to adjust the levels agreed for 2003 by committee procedure, where there is a proven need for a Member State for such an adjustment since adequate alternatives are not available.

The quantities agreed by the Council exclude, as it is the case under the Montreal Protocol, quarantine and pre-shipment applications. However, such quantities would be limited to the average used over the period 1996-1998, and further reductions would be agreed by committee procedure in the light of progess in the availability of alternatives and of developments under the Montreal Protocol.

As regards emergency situations, the Council prolonged to 120 days the duration of possible derogations authorising the use of methyl bromide in such cases, but limited to 20 tonnes the quantities which could be used.

3. Phase-out calendar for HCFCs (Articles 3(3) and 4(3))

As regards production controls, the Council, while agreeing to the Commission's proposed timetable, introduced a more open review clause - relating to the whole timetable - in order to take better account of developments under the Montreal Protocol.

As regards controls on placing on the market and use, the Council agreed on phasing-out virgin HCFCs from 2010, five years earlier than in the Commission proposal, and adjusted slightly the interim cuts.

4. Halons (Article 4(4))

The Council introduced stricter provisions on halons except for critical uses, banning their use in existing fire-protection systems, except for recycled, recovered or reclaimed halons, for which the ban would enter into force already in 2003. It also introduced an obligation for Member States to notify the Commission on quantities used for critical uses and progress in reducing those, and for the Commission to review annually critical uses by committee procedure.

Furthermore, the Council provided for protection systems and fire extinguishers containing halons to be decommissioned by the end of 2003.

Annex VII, listing critical uses of halons, was modified by defining in greater detail the circumstances where halons can be used (such as spaces where there is a risk of radioactive dispersion or the Channel Tunnel).

5. Controls on the use of HCFCs(Article 5)

In order to adjust better to what is technically and economically feasible, the Council, in some cases tightened the Commission proposal (earlier ban and time-limited exemption for solvents), in other cases allowed for later implementation (air-conditioning and refrigerating equipments).

The Council introduced further a derogation allowing the use of HCFCs as fire-fighting agents in existing fire-protection systems. Such derogation was limited to the replacement of halons in critical uses, under strict handling and reporting conditions, in order to ensure that it would result in an environmental benefit in respect of the continuing use of halons.

6. Trade

- The Council banned altogether the imports for inward processing of several controlled substances, instead of submitting them to license (Article 6),

- it postponed until 1 January 2004 a ban on exports of HCFCs to States not party to the Protocol, but provided for a review by committee procedure in the light of relevant international developments (Article 11).

7. Recovery of controlled substances (Article 15)

The Council made compulsory the recovery of controlled substances contained in a series of equipments. It also introduced a provision for reporting on and possible harmonisation of minimum qualification requirements for personnel involved.

8. Prevention and minimisation of leakages of controlled substances(Article 16)

The Council introduced an obligation for the annual check of certain refigeration equipments, as well as provisions for reporting on and possible harmonisation of minimum qualification requirements for personnel involved in checking leakages.

It further introduced an obligation to use impermeable films or equivalent techniques to avoid leakages of methyl bromide introduced in soil fumigation.

The Commission was also requested to prepare and diffuse notes on relevant best available technologies and best environmental practices.

9. Some technical adaptations were agreed by Council following the results of the tenth meeting of the parties which took place in Cairo in November 1998 (see in particular definition of "processing agent" and Annex VI).

The Commission has agreed to the amendments made by Council.

(1) OJ C 286, 15.9.1998, p. 6.

(2) OJ C 98, 9.4.1999.

(3) OJ C 40, 15.2.1999, p. 34.

(4) OJ L 333, 22.12.1994, p. 1.