Proposal for a Council Regulation (EC) on substances that deplete the ozone layer (98/C 286/06) COM(1998) 398 final - 98/0228(SYN)

(Submitted by the Commission on 17 August 1998)

THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the proposal from the Commission,

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

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

(1) Whereas Council Regulation (EC) No 3093/94 (1) must be modified substantially; whereas it is in the interest of legal clarity and transparency to revise that Regulation completely;

(2) Whereas effective measures need to be taken in order to protect human health and the environment against adverse effects resulting from emissions of substances that deplete the ozone layer;

(3) Whereas it is established that continued emissions of ozone-depleting substances at current levels continue to cause significant damage to the ozone layer; whereas it is therefore necessary to take further steps in order to ensure sufficient protection for human health and the environment;

(4) Whereas in view of the responsibilities of the Community for the environment and trade, the Community, pursuant to Council Decision 88/540/EEC (2), 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;

(5) 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;

(6) 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;

(7) 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 phase-out schedules which are stricter than those provided for in Regulation (EC) No 3093/94 and which are stricter than those of the amended and adjusted Protocol;

(8) 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;

(9) Whereas the growing availability of alternatives to methyl bromide should be reflected in an accelerated phase out of methyl bromide compared to the Montreal Protocol; whereas such an accelerated phase out is also provided for by other parties to the Protocol; whereas there might be specific critical agricultural uses and conditions for which the phasing out of methyl bromide would lead to severe technical or economic difficulties; whereas exemptions should be foreseen for those cases for which the production and placing on the market of methyl bromide may be permitted after phase out;

(10) Whereas Regulation (EC) No 3093/94 provides for controls on the production of all other ozone-depleting substances but does not provide for controls on the production of hydrochlorofluorocarbons (HCFCs); whereas it is appropriate to introduce such provision to ensure that HCFCs do not continue to be used where non-ozone depleting alternatives exist; whereas measures for the control of the production of HCFCs should be taken by all parties to the Montreal Protocol; whereas a freeze on production of HCFCs 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 HCFC and to the declining demand worldwide as a consequence of reductions in the consumption of HCFCs required by the Protocol; whereas HCFCs controls under the Montreal Protocol should be considerably tightened to protect the ozone layer and to reflect the availability of alternatives; whereas the Community will continue to press the parties to the Protocol to accept tighter controls on HCFCs;

(11) Whereas the Montreal Protocol, in Article 2F(7) requires the parties to endeavour to ensure that the use of HCFCs 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 HCFCs and products containing HCFCs can be further limited;

(12) Whereas quotas for the release for free circulation in the Community of controlled substances should only be allocated 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,

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 of chlorofluorocarbons, other fully halogenated chlorofluorocarbons, halons, carbon tetrachloride, 1,1,1-trichloroethane, methyl bromide, hydrobromofluorocarbons and hydrochlorofluorocarbons (HCFCs), 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.

Article 2

Definitions

For the purposes of this Regulation:

- 'Protocol` shall mean the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, as last amended and adjusted,

- '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 organisation 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 (HCFCs), 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` 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` or 'HCFCs` shall mean the controlled substances listed in Group VIII of Annex I, including their isomers,

- 'feedstock` shall mean any controlled substance that undergoes transformation in a process in which it is entirely converted from its original composition,

- 'processing agent` shall mean 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. It may, in accordance with the procedure laid down in Article 17, amend that list in the light of new information or technical developments,

- '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 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` 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 and by adding together, for each group of controlled substances in Annex I separately, the resulting figures,

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

- 'placing on the market` shall mean 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 with a view to their distribution or use on the Community market,

- 'use` shall mean the utilisation of controlled substances in the production or maintenance of products or equipment or in other processes except for feedstock and processing agent uses,

- 'reversible air-conditioning/heat-pump system` shall mean 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), which are reversible in that the evaporators and condensers are designed to be interchangeable in their functions,

- 'inward processing` shall mean a procedure provided for in Article 114(1)(a) of Council Regulation (EEC) No 2913/92 (3),

- '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,

- '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.

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 for their own account. 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. 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) it produces no methyl bromide after 31 December 2000.

The competent authority of each Member State shall apply the criteria set out in Annex V to determine every year any critical uses of methyl bromide for which the production, importation and use may be permitted in the Community after 31 December 2000, the quantities to be permitted and those users who may take advantage of critical uses for their own account. Such production and importation shall be allowed only if no adequate alternatives or recycled or reclaimed methyl bromide are available from any of the parties.

Each Member State shall report to the Commission by 31 January each year on the authorisations granted by its competent authority in respect of the period 1 January to 31 December of the preceding year, including the specific uses and quantities authorised, the reasons for those authorisations, efforts under way to identify and implement alternatives, measures taken to reduce emissions and an estimate of actual emissions.

Each year the Commission shall review the critical use exemptions authorised by the competent authorities of the Member States. In the light of that review and of technical and other information, the Commission shall take appropriate measures including, if necessary, proposing modifications to Annex V.

In an emergency, where unexpected outbreaks of particular pests or diseases so require, and by way of derogation from Annex V, the competent authority of a Member State may authorise the temporary use of methyl bromide. Such authorisation shall apply for a period not exceeding 60 days. Member States shall inform the Commission within one month of any emergency authorisation granted under this procedure.

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 of 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 will review the level of production of hydrochlorofluorocarbons in the period 1 January 2003 to 31 December 2007 with a view to determining whether a production cut ahead of the year 2008 should be proposed. This review will take into account the development of HCFC consumption worldwide, the HCFC exports from the Community and other OECD countries and the technical and economic availability of alternative substances or technologies.

4. The Commission shall issue licences to those users identified in accordance with the second subparagraph of paragraph 1 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 paragraph 1 for the purpose of meeting the demands licensed in accordance with paragraph 4, and to produce methyl bromide for the purposes of meeting critical uses authorised in accordance with paragraph 2. 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 of 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 State 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 State 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 of 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 relevant 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 shall be prohibited:

(a) chlorofluorocarbons;

(b) other fully halogenated chlorofluorocarbons;

(c) halons;

(d) carbon tetrachloride;

(e) 1,1,1-trichloroethane;

(f) hydrobromofluorocarbons.

2. 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) it does not place any methyl bromide on the market or use any for its own account after 31 December 2000.

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 II.

3. 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 90 % of the level calculated in application of point (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 35 % of the level calculated in application of point (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 point (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 5 % of the level calculated in application of point (b);

(g) no producer or importer shall place hydrochlorofluorocarbons on the market or use any for its own account after 31 December 2014;

(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 (f), its percentage market share in 1996.

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 (a) to (f), applicable for the period 1 January to 31 December 2003 and for each 12-month period thereafter.

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 II.

4. Paragraphs 1, 2 and 3 shall not apply to the placing on the market and use of controlled substances if:

(a) they are destroyed within the Community by technologies approved by the parties;

(b) they are used for feedstock or as a processing agent; or

(c) 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 demands for critical uses authorised in accordance with Article 3(2).

Paragraph 1 shall not apply to the placing on the market and use of controlled substances for the maintenance or servicing of refrigeration and air-conditioning equipment until 31 December 1999.

Paragraph 1(c) shall not apply to the placing on the market and use of halons in existing fire protection systems until 31 December 2003 or to the placing on the market of halons for critical uses as set out in Annex VII.

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 this 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 or 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). 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 2003, in all solvent uses, with the exception of precision cleaning of electrical and other components in the aerospace and aeronautics industries;

(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,

- 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 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 2008, 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 other than integral skin foams for use in safety applications and rigid insulating foams:

(i) from 1 January 2000, for the production of integral skin foams and polyethylene foams,

(ii) from 1 January 2002, for the production of extruded polystyrene foams, except where used for insulated transport,

(iii) 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,

(iv) from 1 January 2004, for the production of all foams;

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

(f) in all other uses.

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 in the manufacture of other chemicals;

(c) as a processing agent.

3. 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.

4. The use restrictions under paragraphs 1, 2 and 3 shall not apply to the use of hydrochlorofluorocarbons for the production of products for export to countries where the use of hydrochlorofluorocarbons in those products is still permitted.

5. 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.

6. 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 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 non-member 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.

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 III,

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

- the quantity of the substance in kilograms;

(e) the purpose of the proposed import;

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

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 III.

Article 7

Imports of controlled substances from non-member countries

The release for free circulation in the Community of controlled substances imported from non-member 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;

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

(d) for recovered controlled substances if they 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 IV 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 lists 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 hydrobromofluorocarbons or products and equipment, other than personal effects, containing those substances shall be prohibited. This prohibition shall not apply to exports of controlled substances for which production has been authorised under Article 3(6) to satisfy the basic domestic needs of parties pursuant to Article 5 of the Protocol and of controlled substances or products and equipment containing those substances authorised under Article 3(7) to satisfy essential uses of the parties.

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

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 1 January to 31 December 1999 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;

(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 III,

- 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 conformity 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 and 11(2), 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.

Article 14

Trade with a territory not covered by the Protocol

1. Subject to any decision taken under paragraph 2, Articles 8, 9 and 11(2) 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

Chlorofluorocarbons, other fully halogenated chlorofluorocarbons, halons, carbon tetrachloride, 1,1,1-trichloroethane, hydrobromofluorocarbons and hydrochlorofluorocarbons contained in:

- refrigeration equipment and air-conditioning equipment,

- equipment containing solvents,

- fire-protection systems and fire extinguishers, and

- rigid foams

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 shall promote, as appropriate, the establishment of destruction, recycling and reclamation facilities. Member States shall define the minimum qualification requirements for the servicing personnel involved.

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.

This provision shall be without prejudice to Council Directive 75/442/EEC (4) 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 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 shall define the minimum qualification requirements for the servicing personnel. They shall report to the Commission by 31 December 2000 on the schemes established concerning such qualification requirements.

The Commission shall promote, as appropriate, the preparation of European standards relating to technical requirements with respect to the leakproofness of refrigeration systems.

2. 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 shall define the minimum qualification requirements for the servicing personnel involved.

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

4. 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 COMMITTEE, REPORTING, INSPECTION AND ENFORCEMENT

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 1 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.

(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 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 statisfy 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 uses licensed in accordance with Article 3(4), for use in quarantine and preshipment 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, quarantine and preshipment 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 the 31 December, Member States' customs authorities shall return to the Commission the stamped used licence documents.

3. Every year before 1 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 1 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 steps to protect the confidentiality of information obtained under this Article.

Article 20

Penalties

The Member States shall lay down the rules on penalties applicable to infringements of the provisions of this Regulation or of national provisions adopted in implementation thereof and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive. The Member States shall notify those provisions to the Commission by 30 June 1999 at the latest and shall notify it without delay of any subsequent amendment affecting them.

CHAPTER VI FINAL PROVISIONS

Article 21

Repeal

Regulation (EC) No 3093/94 is repealed.

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

Article 22

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 1 January 1999.

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

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

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

(3) OJ L 302, 19.10.1992, p. 1.

(4) OJ L 194, 25.7.1975, p. 39.

ANNEX I

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ANNEX II

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ANNEX III

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ANNEX IV

COMBINED NOMENCLATURE (CN) CODES FOR PRODUCTS CONTAINING CONTROLLED SUBSTANCES (1)

1. Automobiles and truck air-conditioning units

CN codes

8701 20 10-8701 90 90

8702 10 11-8702 90 90

8703 10 11-8703 90 00

8704 10 11-8704 90 90

8705 10 00-8705 90 90

8706 00 11-8706 00 99

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

Refrigerators:

CN codes

8418 10 10-8418 29 00

8418 50 11-8418 50 19

8418 61 10-8418 69 99

Freezers:

CN codes

8418 10 10-8418 29 00

8418 30 10-8418 30 99

8418 40 10-8418 40 99

8418 50 11-8418 50 19

8418 61 10-8418 61 90

8418 69 10-8418 69 99

Dehumidifiers:

CN codes

8415 10 00-8415 83 90

8424 89 80

8479 60 00

8479 89 10

8479 89 95

Water coolers:

CN codes

8419 60 00

8419 89 95

Ice machines:

CN codes

8418 10 10-8414 29 00

8418 30 10-8418 30 99

8418 40 10-8418 40 99

8418 50 11-8418 50 19

8418 61 10-8418 61 90

8418 69 10-8418 69 99

8479 89 95

Air-conditioning and heat-pump units:

CN codes

8415 10 00-8415 83 90

8418 61 10-8418 61 90

8418 69 10-8418 69 99

8418 99 10-8418 99 90

3. Aerosol products, except medical aerosols

Food products:

CN codes

0404 90 21-0404 90 89

1517 90 10-1517 90 99

2106 90 92

2106 90 98

Paints and varnishes, prepared water pigments and dyes:

CN codes

3208 10 10-3208 10 90

3208 20 10-3208 20 90

3208 90 11-3208 90 99

3209 10 00-3209 90 00

3210 00 10-3210 00 90

3212 90 90

Perfumery, cosmetic or toilet preparations:

CN codes

3303 00 10-3303 00 90

3304 30 00

3304 99 00

3305 10 00-3305 90 90

3306 10 00-3306 90 00

3307 10 00-3307 30 00

3307 49 00

3307 90 00

Surface-active preparations:

CN codes

3402 20 10-3402 20 90

Lubricating preparations:

CN codes

2710 00 81

2710 00 98

3403 11 00

3403 19 10-3403 19 99

3403 91 00

3403 99 10-3403 99 90

Household preparations:

CN codes

3405 10 00

3405 20 00

3405 30 00

3405 40 00

3405 90 10-3405 90 90

Articles of combustible materials:

CN codes

3606 10 00

Insecticides, rodenticides, fungicides, herbicides, etc.:

CN codes

3808 10 10-3808 10 90

3808 20 10-3808 20 80

3808 30 11-3808 30 90

3808 40 10-3808 40 90

3808 90 10-3808 90 90

Finishing agents etc.:

CN codes

3809 10 10-3809 10 90

3809 91 00-3809 93 00

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

CN codes

3813 00 00

Organic composite solvents etc.:

CN codes

3814 00 10-3814 00 90

Prepared de-icing fluids:

CN codes

3820 00 00

Products of the chemical or allied industries:

CN codes

3824 90 10

3824 90 35

3824 90 40

3824 90 45-3824 90 95

Silicones in primary forms:

CN codes

3910 00 00

Arms:

CN codes

9304 00 00

4. Portable fire extinguishers

CN codes

8424 10 10-8424 10 99

5. Insulation boards, panels and pipe covers

CN codes

3917 21 10-3917 40 90

3920 10 23-3920 99 90

3921 11 00-3921 90 90

3925 10 00-3925 90 80

3926 90 10-3926 90 99

6. Pre-polymers

CN codes

3901 10 10-3911 90 99

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

ANNEX V

CRITERIA TO BE APPLIED IN DETERMINING CRITICAL USE EXEMPTIONS FOR METHYL BROMIDE AFTER PHASE OUT

1. The competent authorities of Member States shall authorise the critical use of methyl bromide only where it is demonstrated that all the following criteria are met:

(a) it is necessary to safeguard food and commodity supplies, or is critical to the functioning of certain types of production in agriculture or horticulture (including economic aspects);

(b) there are no available technically and economically feasible alternatives or substitutes that are acceptable from the standpoint of environment and health;

(c) work is under way to investigate, evaluate, field test, commercialise and, where necessary, facilitate regulatory approval for alternatives and substitutes, with a view to phasing out methyl bromide as soon as possible;

(d) the methyl bromide will be applied using best available technology to reduce emissions;

(e) methyl bromide has been regularly used as an integral part of fumigation operations in the crop and region concerned during the previous five years.

2. Critical use exemptions for the continued use of methyl bromide after phase out shall:

(a) specify the maximum quantity of methyl bromide to be used, the maximum rate of application, the minimum time between fumigations and the precautions to be taken to minimise emissions;

(b) specify as precisely as possible the particular use which has been exempted, including details of the crop, cropping method, location(s) and the disease(s) which methyl bromide is required to eradicate;

(c) be reviewed by the competent authorities at least every two years to determine whether or not the use still meets these criteria, with a view to further stepwise reductions in the quantity of methyl bromide used under the critical use exemption.

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 caustic soda,

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

- use of carbon tetrachloride in the chlorinated rubber process,

- use of carbon tetrachloride in the production of pesticides,

- use of carbon tetrachloride in the production of pharmaceuticals,

- use of carbon tetrachloride in chlorosulfonated polyolefin (CSM) production,

- production of poly-phenylene-terephtal-amide with the aid of carbon tetrachloride in an intermediate raw product,

- use of carbon tetrachloride in styrene butadiene rubber (SBR) production,

- use of carbon tetrachloride in chlorinated parafine production,

- use of CFC-113 in manufacturing a family of fluoropolymer resins,

- use of CFC-11 in manufacture of a fine synthetic fibre sheet structure.

ANNEX VII

CRITICAL USES OF HALON

Use of halon 1301:

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

- in crew compartments of military vehicles,

- for inerting of occupied spaces where flammable liquid release could occur.

Use of halon 1211:

- in hand-held fire extinguishers for use on board aircraft,

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