Common Position (EC) No 25/2005 of 21 June 2005 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a regulation of the European Parliament and of the Council on certain fluorinated greenhouse gases
Date: 2005-06-21
Institutions: Council of the European Union
Subjects: disclosure of information, environmental risk prevention, greenhouse gas, labelling, marketing restriction, pollution control, reduction of gas emissions, roadworthiness tests, vocational training, waste management

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I

(Information)

COUNCIL

COMMON POSITION (EC) No 25/2005

adopted by the Council on 21 June 2005

with a view to adopting Regulation (EC) No …/2005 of the European Parliament and of the
Council of … on certain fluorinated greenhouse gases

(2005/C 183 E/01)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European Com-
munity, and in particular, Article 175(1) thereof and Article 95
thereof in relation to Articles 7, 8 and 9 of this Regulation,

concerning the conclusion of the United Nations Frame-
work Convention on Climate Change (4),
is to achieve
stabilisation of greenhouse gas concentrations in the
atmosphere at a level which prevents dangerous anthro-
pogenic interference with the climate system.

Having regard to the proposal from the Commission,

(3)

Having regard to the opinion of the European Economic and
Social Committee (1),

Acting in accordance with the procedure laid down in Article
251 of the Treaty (2),

Whereas:

Council Decision 2002/358/EC of 25 April 2002
the European
concerning the approval, on behalf of
Community, of
to the United
the Kyoto Protocol
Nations Framework Convention on Climate Change and
thereunder (5),
the joint
commits the Community and its Member States to
reduce
emissions of
greenhouse gases listed in Annex A to the Kyoto
Protocol by 8 % compared to 1990 levels in the period
from 2008 to 2012.

fulfilment of commitments

anthropogenic

aggregate

their

(1)

Sixth

Community

Environment

The
Action
Programme (3) identifies climate change as a priority for
action. That Programme recognises that the Community
is committed to achieving an 8 % reduction in emissions
of greenhouse gases in the period from 2008 to 2012
compared to 1990 levels, and that, in the longer term,
global emissions of greenhouse gases will need to be
reduced by approximately 70 % compared to 1990
levels.

(2)

The ultimate objective of the United Nations Framework
Convention on Climate Change, which was approved by
Council Decision 94/69/EC of 15 December 1993

(1) OJ C 108, 30.4.2004, p. 62.
(2) Opinion of the European Parliament of 31 March 2004 (JO C 103
E, 29.4.2004, p. 600), Council Common Position of 21 June 2005
and Position of the European Parliament of … (not yet published in
the Official Journal).

(3) Decision No 1600/2002/EC of the European Parliament and of the
Council of 22 July 2002 laying down the Sixth Community Envir-
onment Action Programme (OJ L 242, 10.9.2002, p. 1).

(4)

Provision should be made for the prevention and mini-
misation of emissions of fluorinated greenhouse gases,
without prejudice to Council Directive 75/442/EEC of
15 July 1975 on waste (6), Council Directive 96/61/EC
of 24 September 1996 concerning integrated pollution
prevention and control (7), Directive 2000/53/EC of the
European Parliament
the Council of 18
and of
September 2000 on end-of life vehicles (8) and Directive
the
2002/96/EC of
Council of 27 January 2003 on waste electrical and elec-
tronic equipment (WEEE) (9).

the European Parliament and of

(4) OJ L 33, 7.2.1994, p. 11.
(5) OJ L 130, 15.5.2002, p. 1.
(6) OJ L 194, 25.7.1975, p. 39. Directive as last amended by Regu-
lation (EC) No 1882/2003 of the European Parliament and of the
Council (OJ L 284, 31.10.2003, p. 1).

(7) OJ L 257, 10.10.1996, p. 26. Directive as last amended by Regu-

lation (EC) No 1882/2003.

(8) OJ L 269, 21.10.2000, p. 34. Directive as amended by Commission

Decision 2002/525/EC (OJ L 170, 29.6.2002, p. 81).

(9) OJ L 37, 13.2.2003, p. 24. Directive as last amended by Council

Decision 2004/486/EC (OJ L 162, 30.4.2004, p. 114).

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The primary objective of this Regulation is to reduce the
emissions of fluorinated greenhouse gases covered by
the Kyoto Protocol and thus protect the environment.
The legal base should therefore be Article 175(1) of the
Treaty.

(11)

(12)

(5)

(6)

(7)

(8)

Nevertheless, it is appropriate to take measures at Com-
munity level on the basis of Article 95 of the Treaty to
harmonise requirements on the use of fluorinated green-
house gases and the marketing and labelling of products
and equipment containing fluorinated greenhouse gases.
Marketing and use restrictions for certain applications of
fluorinated greenhouse gases are considered appropriate
where viable alternatives are available and improvement
of containment and recovery is not feasible. Voluntary
initiatives by some industry sectors should also be taken
into account, as well as the fact that the development of
alternatives is still ongoing.

The placing on the market of the products and equip-
ment containing fluorinated greenhouse gases, as listed
in Annex II, is detrimental to the objectives and commit-
ments of the Community and its Member States with
regard to climate change and it is therefore necessary to
restrict the placing on the market of these products and
equipment. This could also be the case concerning other
applications containing fluorinated greenhouse gases and
therefore the need for an extension of Annex II should
be reviewed, taking account of the environmental bene-
fits, the technical feasibility and cost effectiveness.

In order to contribute to the fulfilment of the commit-
ments of the Community and its Member States under
the UN Framework Convention on Climate Change, the
Kyoto Protocol and Decision 2002/358/EC, Directive
2005/…/EC of
the
Council (1) and this Regulation, which both contribute to
prevention and minimisation of emissions of fluorinated
greenhouse gases, should be adopted and published in
the Official Journal of the European Union simultaneously.

the European Parliament and of

This Regulation respects the fundamental rights and
observes the principles recognised in particular by the
Charter of Fundamental Rights of the European Union.

Since the objectives of
this Regulation, namely the
containment and reporting of certain fluorinated green-
house gases and the control of use and placing on the
market of products and equipment containing certain
fluorinated greenhouse gases,
in order to protect the
environment and to preserve the internal market, cannot
be sufficiently achieved by the Member States and can
therefore by reason of the scale and effects of this Regu-
lation be better achieved at Community level, the Com-
munity may adopt measures,
in accordance with the
principle of subsidiarity as set out in Article 5 of the
Treaty. In accordance with the principle of proportion-
ality, as set out in that Article, this Regulation does not
go beyond what is necessary in order to achieve those
objectives.

(13)

The measures necessary for the implementation of this
Regulation should be adopted in accordance with
Council Decision 1999/468/EC of 28 June 1999 laying
down the procedures for the exercise of implementing
powers conferred on the Commission (2),

HAVE ADOPTED THIS REGULATION:

Article 1

Scope

The objective of this Regulation is to reduce emissions of
fluorinated greenhouse gases covered by the Kyoto Protocol. It
shall apply to the fluorinated greenhouse gases listed in Annex
A to that Protocol. Annex I to this Regulation contains a list of
the fluorinated greenhouse gases currently covered by this
Regulation, together with their global warming potentials. In
the light of revisions provided for by Article 5(3) of the Kyoto
Protocol and accepted by the Community and its Member
States, Annex I may be reviewed and if appropriate may then
be updated.

This Regulation addresses the containment, use, recovery and
destruction of the fluorinated greenhouse gases listed in Annex
the labelling and disposal of products and equipment
I;
containing those gases; the reporting of information on those
gases; the uses referred to in Article 8 and the placing on the
market of the products and equipment referred to in Article 9;
involved in
and the training and certification of personnel
activities provided for by this Regulation.

(9)

Provision should be made for the monitoring, evaluation
and review of the provisions contained in this Regu-
lation.

(10) Member States should lay down rules on penalties
applicable to infringements of
this Regulation and
ensure that those rules are implemented. Those penalties
must be effective, proportionate and dissuasive.

(1) See page … of this Official

Journal.

(Reference to the Directive

corresponding to this Regulation for simultaneous publication).

(2) OJ L 184, 17.7.1999, p. 23.

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This Regulation shall apply without prejudice to Directives
75/442/EEC, 96/61/EC, 2000/53/EC and 2002/96/EC.

6.

‘operator’ means the natural or legal person exercising
actual power over the technical functioning of the equip-
ment and systems covered by this Regulation; a Member
in defined, specific situations, designate the
State may,
owner as being responsible for the operator's obligations;

Article 2

Definitions

7.

‘placing on the market’ means the supplying of or making
available to third persons, against payment or free of
charge, products and equipment containing or whose func-
tioning relies upon fluorinated greenhouse gases, by a
producer or an importer for the first time in the European
Union;

For the purposes of this Regulation the following definitions
shall apply:

1.

2.

‘fluorinated greenhouse gases’ means hydrofluorocarbons
(HFCs), perfluorocarbons (PFCs) and sulphur hexafluoride
(SF6) as listed in Annex I and preparations containing
those substances, but excludes substances controlled under
Regulation (EC) No 2037/2000 of the European Parliament
and of the Council of 29 June 2000 on substances that
deplete the ozone layer (1);

‘hydrofluorocarbon’ means
compound
consisting of carbon, hydrogen and fluorine, and where no
more than six carbon atoms are contained in the molecule;

organic

an

3.

‘perfluorocarbon’ means an organic compound consisting
of carbon and fluorine only, and where no more than six
carbon atoms are contained in the molecule;

4.

5.

‘global warming potential’ means the climatic warming
potential of a fluorinated greenhouse gas relative to that of
carbon dioxide. The global warming potential
is
calculated in terms of the 100 year warming potential of
one kilogram of a gas relative to one kilogram of CO2. The
GWP figures listed in Annex I are those published in the
third assessment report (TAR) adopted by the Intergovern-
mental Panel on Climate Change (2001 IPCC GWP
values) (2);

(GWP)

‘preparation’ means for the purposes of the obligations in
this Regulation, excluding destruction, a mixture composed
of two or more substances at least one of which is a fluori-
nated greenhouse gas, except where the total global
warming potential of the preparation is less than 150. The
total global warming potential (3) of the preparation shall
be determined in accordance with part 2 of Annex I;

(1) OJ L 244, 29.9.2000, p. 1. Regulation as last amended by Commis-
sion Regulation (EC) No 2077/2004 (OJ L 359, 4.12.2004, p. 28).
(2) IPCC Third Assessment Climate Change 2001. A Report of the
Intergovernmental Panel on Climate Change (http://www.ipcc.ch/
pub/reports.htm).

(3) For the calculation of the GWP of non-fluorinated greenhouse gases
in preparations, the values published in the First IPCC Assessment
shall apply, see: Climate Change, The IPCC Scientific Assessment,
J.T. Houghton, G.J. Jenkins, J.J. Ephraums (ed.), Cambridge Univer-
sity Press, Cambridge (UK) 1990.

8.

‘use’ means the utilisation of fluorinated greenhouse gases
in the production, refilling, servicing or maintenance of
products and equipment covered by this Regulation;

9.

‘heat pump’ means a device or installation that extracts
heat at low temperature from air, water or earth and
supplies heat;

10.

‘leakage detection system’ means a calibrated mechanical,
electrical or electronic device for detecting leakage of
fluorinated greenhouse gases which, on detection, alerts
the operator;

11.

‘hermetically sealed system’ means a system in which all
refrigerant containing parts are made tight by welding,
brazing or a similar permanent connection;

12.

‘container’ means a product which is designed primarily
for transporting or storing fluorinated greenhouse gases;

13.

is
‘a non-refillable container’ means a container
designed not to be refilled and is used in the servicing,
maintenance or filling of refrigeration, air-conditioning or
heat pump equipment, fire protection systems or high-
voltage switchgear; or to store or transport fluorinated
greenhouse gas based solvents;

that

14.

‘recovery’ means the collection and storage of fluorinated
greenhouse gases from, for example, machinery, equip-
ment and containers;

15.

‘recycling’ means the reuse of a recovered fluorinated
greenhouse gas following a basic cleaning process;

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16.

‘reclamation’ means the reprocessing of a recovered fluori-
nated greenhouse gas in order to meet a specified standard
of performance;

For the purposes of
‘inspected for leakage’
this paragraph,
means that the equipment or system is examined primarily for
leakage using direct or indirect measuring methods, focusing
on those parts of the equipment or system most likely to leak.

17.

‘destruction’ means the process by which all or most of a
fluorinated greenhouse gas is permanently transformed or
decomposed into one or more stable substances which are
not fluorinated greenhouse gases;

18.

‘novelty aerosol’ means those aerosol generators marketed
and intended for sale to the general public for entertain-
ment and decorative purposes as listed in the Annex to
Directive 94/48/EC of the European Parliament and of the
Council (1).

Article 3

Containment

1.
Operators of the following stationary applications: refrig-
eration, air conditioning and heat pump equipment and fire
protection systems, which contain fluorinated greenhouse gases
listed in Annex I, shall, using all measures which are technically
feasible and do not entail disproportionate cost:

(a) prevent leakage of these gases; and

(b) as soon as possible repair any detected leakage.

2.
Operators of the applications referred to in paragraph 1
shall ensure that they are inspected for leakage by certified
personnel who comply with the requirements of Article 5,
according to the following schedule:

(a) applications containing 3 kg or more of fluorinated green-
house gases shall be inspected at
least once every 12
months; this shall not apply to equipment with hermeti-
cally sealed systems, which are labelled as such and contain
less than 6 kg of fluorinated greenhouse gases;

(b) applications containing 30 kg or more of

fluorinated
greenhouse gases shall be inspected at least once every six
months;

(c) applications containing 300 kg or more of

fluorinated
greenhouse gases shall be inspected at least once every
three months.

The applications shall be inspected for leakage within one
month after a leak has been repaired to ensure that the repair
has been effective.

(1) Directive 94/48/EC of the European Parliament and of the Council
of 7 December 1994 amending for
the 13th time Directive
76/769/EEC on the approximation of the laws, regulations and
administrative provisions of the Member States relating to restric-
tions on the marketing and use of certain dangerous substances and
preparations (OJ L 331, 21.12.1994, p. 7).

3.
Operators of the applications referred to in paragraph 1,
containing 300 kg or more of fluorinated greenhouse gases,
shall install leakage detection systems. These leakage detection
systems shall be inspected at least once every 12 months to
ensure their proper functioning.

4. Where a properly functioning appropriate leakage detec-
tion system is in place,
the inspections
required under paragraph 2(b) and (c) shall be halved.

the frequency of

5.
In the case of fire protection systems where there is an
existing inspection regime in place to meet ISO 14520 stand-
ard, these inspections may also fulfil the obligations of this
Regulation as long as those inspections are at least as frequent.

Operators of the applications referred to in paragraph 1,
6.
containing 3 kg or more of fluorinated greenhouse gases, shall
maintain records on the quantity and type of fluorinated green-
house gases installed, any quantities added and the quantity
recovered during servicing, maintenance and final disposal.
They shall also maintain records of other relevant information
including the identification of the company or technician who
performed the servicing or maintenance, as well as the dates
and results of the inspections carried out under paragraphs 2, 3
and 4. The records shall be made available on request to the
competent authority and to the Commission.

By … (*), the Commission shall establish, in accordance
7.
with the procedure referred to in Article 11(2), the standard
inspection requirements for each of the applications referred to
in paragraph 1 of this Article.

Article 4

Recovery

1.
Operators of the following types of stationary equipment
shall be responsible for putting in place arrangements for the
proper recovery by certified personnel, who comply with the
requirements of Article 5, of fluorinated greenhouse gases to
ensure their recycling, reclamation or destruction:

(a) the cooling circuits of refrigeration, air-conditioning and

heat pump equipment;

(*) The date of entry into force of this Regulation.

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(b) equipment containing fluorinated greenhouse gas-based

solvents;

(c) fire protection systems and fire extinguishers; and

(d) high-voltage switchgear.

3.
The operator of the relevant application shall ensure that
the relevant personnel have obtained the necessary certification,
referred to in paragraph 2, which implies appropriate knowl-
edge of the applicable regulations and standards as well as the
necessary competence in emission prevention and recovery of
fluorinated greenhouse gases and handling safely the relevant
type and size of equipment.

2. When a refillable or non-refillable fluorinated greenhouse
gas container reaches the end of its life, the person utilising the
container for transport or storage purposes shall be responsible
for putting in place arrangements for the proper recovery of
any residual gases it contains to ensure their recycling, reclama-
tion or destruction.

4.
By … (***), Member States shall ensure that the compa-
nies involved in carrying out the activities provided for in Arti-
cles 3 and 4 shall only take delivery of fluorinated greenhouse
gases where their
relevant personnel hold the certificates
mentioned in paragraph 2 of this Article.

3.
The fluorinated greenhouse gases contained in other
products and equipment, including mobile equipment unless it
is serving military operations, shall, to the extent that it is tech-
nically feasible and does not entail disproportionate cost, be
recovered by appropriately qualified personnel, to ensure their
recycling, reclamation or destruction.

4.
Recovery, for the purpose of recycling, reclamation or
destruction of the fluorinated greenhouse gases, pursuant to
paragraphs 1 to 3, shall take place before the final disposal of
that equipment and, when appropriate, during its servicing and
maintenance.

5.
By … (*), the Commission shall determine, in accordance
with the procedure referred to in Article 11(2), the format of
the notification referred to in paragraph 2 of this Article.

Article 6

Reporting

Article 5

Training and certification

By … (*), on the basis of

information received from
1.
Member States and in consultation with the relevant sectors,
the Commission shall establish, in accordance with the proce-
dure referred to in Article 11(2), minimum requirements and
the conditions for mutual recognition in respect of training
programmes and certification for the relevant personnel and
for the companies and their personnel involved in the activities
provided for in Articles 3 and 4.

2.
By … (**), Member States shall establish or adapt their
own training and certification requirements, on the basis of the
minimum requirements referred to in paragraph 1. Member
States shall notify the Commission of their training and certifi-
cation programmes. Member States shall give recognition to
the certificates issued in another Member State and shall not
restrict the freedom to provide services or the freedom of estab-
lishment
for reasons relating to the certification issued in
another Member State.

By 31 March each year,

1.
from the first calendar year
following entry into force of this Regulation, each producer,
importer and exporter of fluorinated greenhouse gases shall
communicate to the Commission by way of a report, sending
the
the same information to the competent authority of
Member State concerned, the following data in respect of the
preceding calendar year:

(a) each producer who produces more than one tonne of
fluorinated greenhouse gases per annum shall communi-
cate:

— its total production of each fluorinated greenhouse gas
in the Community, identifying the main categories of
applications (e.g. mobile air-conditioning, refrigeration,
air-conditioning, foams, aerosols, electrical equipment,
semi-conductor manufacture) in which the substance is
expected to be used,

— the quantities of each fluorinated greenhouse gas it has

placed on the market in the Community,

— any quantities of each fluorinated greenhouse gas

recycled, reclaimed or destroyed;

(*) The date of entry into force of this Regulation.
(**) One year after the date of entry into force of this Regulation.

(***) Two years after the date of entry into force of this Regulation.

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(b) each importer who imports more than one tonne of fluori-
nated greenhouse gases per annum, including any produ-
cers who also import, shall communicate:

— the quantity of each fluorinated greenhouse gas it has
imported or placed on the market in the Community,
separately identifying the main categories of applica-
tions (e.g. mobile air-conditioning, refrigeration, air-
conditioning,
equipment,
foams, aerosols, electrical
semi-conductor manufacture) in which the substance is
expected to be used,

— any quantities of each used fluorinated greenhouse gas
it has imported for recycling, for reclamation or for
destruction;

(c) each exporter who exports more than one tonne of fluori-
nated greenhouse gases per annum, including any produ-
cers who also export, shall communicate:

— the quantities of each fluorinated greenhouse gas it has

exported from the Community,

— any quantities of each used fluorinated greenhouse gas
for reclamation or for

it has exported for recycling,
destruction.

2.
By … (*), the Commission shall determine, in accordance
with the procedure referred to in Article 11(2), the format of
the reports referred to in paragraph 1 of this Article.

equipment, listed in paragraph 2, containing fluorinated green-
house gases shall not be placed on the market unless the
chemical name of the fluorinated greenhouse gases is identified
by way of a label using the accepted industry nomenclature.
Such label shall clearly indicate that the product or equipment
contains fluorinated greenhouse gases, and this shall be clearly
and indelibly stated on the product or equipment, adjacent to
the service points for charging or recovering the fluorinated
greenhouse gas, or on that part of the product or equipment
which contains the fluorinated greenhouse gas. Hermetically
sealed systems shall be labelled as such.

Paragraph 1 shall apply to the following types of products

2.
and equipment:

(a) refrigeration products

and equipment which contain
perfluorocarbons or preparations containing perfluorocar-
bons;

(b) refrigeration and air conditioning products and equipment
(other than those contained in motor vehicles), heat pumps,
fire protection systems and fire extinguishers, if the respec-
tive type of product or equipment contains hydrofluorocar-
bons or preparations containing hydrofluorocarbons;

(c) switchgear which contains sulphur hexafluoride or prepara-

tions containing sulphur hexafluoride; and

The Commission shall take appropriate steps to protect

3.
the confidentiality of the information submitted to it.

(d) all fluorinated greenhouse gas containers.

4. Member States shall establish reporting systems for the
relevant sectors referred to in this Regulation, with the objec-
tive of acquiring, to the extent possible, emission data.

3.
The Commission shall establish, in accordance with the
procedure referred to in Article 11(2), the form of the label to
be used.

Article 7

Labelling

1. Without prejudice to the provisions of Council Directive
67/548/EEC (1) and of Directive 1999/45/EC of the European
Parliament and of the Council (2) in respect of the labelling of
the products and
dangerous

substances and preparations,

(*) The date of entry into force of this Regulation.
(1) Council Directive 67/548/EEC of 27 June 1967 on the approxima-
tion of laws, regulations and administrative provisions relating to
the classification, packaging and labelling of dangerous substances
(OJ 196, 16.8.1967, p. 1). Directive as last amended by Commission
Directive 2004/73/EC (OJ L 152, 30.4.2004, p. 1).

(2) Directive 1999/45/EC of

the European Parliament and of

the
Council of 31 May 1999 concerning the approximation of the laws,
the Member States
regulations and administrative provisions of
relating to the classification, packaging and labelling of dangerous
preparations (OJ L 200, 30.7.1999, p. 1). Directive as last amended
by Council Directive 2004/66/EC (OJ L 168, 1.5.2004, p. 35).

Article 8

Control of use

1.
The use of sulphur hexafluoride or preparations thereof
in magnesium die-casting, except where the quantity of sulphur
hexafluoride used is below 850 kg per year, shall be prohibited
from 1 January 2008.

The use of sulphur hexafluoride or preparations thereof

2.
for the filling of vehicle tyres shall be prohibited from … (*).

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Article 9

Placing on the market

(d) assess the need for European Community standards relating
to the control of emissions of fluorinated greenhouse gases
from products and equipment,
in particular as regards
foam, including technical requirements with respect to the
design of products and equipment;

The placing on the market of products and equipment
1.
containing, or whose functioning relies upon,
fluorinated
greenhouse gases, as listed in Annex II shall be prohibited as
specified in that Annex.

(e) evaluate the effectiveness of containment measures carried
out by operators under Article 3 and assess whether
maximum leakage rates for installations can be established;

2.
Paragraph 1 shall not apply to products and equipment
shown to be manufactured before the date of entry into force
of the relevant placing on the market prohibition.

(f) assess and, if appropriate, may propose a modification of
the reporting requirements in Article 6(1), in particular the
one tonne quantitative limit to improve the practical appli-
cation of those reporting requirements;

Article 10

Review

On the basis of progress in potential containment or
1.
replacement of fluorinated greenhouse gases in air conditioning
systems, other than those fitted to motor vehicles referred to in
Council Directive 70/156/EEC of 6 February 1970 on the
approximation of laws relating to the type-approval of motor
trailers (1), and in refrigeration systems
vehicles and their
contained in modes of transport, the Commission shall review
this Regulation and publish a report by 31 December 2007 at
the latest. If appropriate, it shall present legislative proposals
also with a view to applying the provisions of Article 3 to air
conditioning systems, other than those fitted to motor vehicles
referred to in Directive 70/156 EEC, and refrigeration systems
contained in modes of transport.

2.
By … (*), the Commission shall publish a report based on
the experience of the application of this Regulation. In particu-
lar, the report shall:

(a) assess the impact of relevant provisions on emissions and
projected emissions of fluorinated greenhouse gases and
examine the cost-effectiveness of these provisions;

(b) in the light of future assessment reports of the IPCC, assess
whether additional fluorinated greenhouse gases should be
added to Annex I;

(c) evaluate the training and certification programmes estab-

lished by Member States under Article 5(2);

(g) assess the need for the development and dissemination of
notes describing best available techniques and best environ-
mental practices concerning the prevention and minimisa-
tion of emissions of fluorinated greenhouse gases;

(h) include an overall summary of

the development, both
within the Community and at an international level, of the
state of technology, in particular as regards foams, experi-
ence gained, environmental requirements and any impacts
on the functioning of the internal market;

(i) assess whether the substitution of sulphur hexafluoride in
sand casting, permanent mould casting and high-pressure
die-casting is technically feasible and cost-effective and, if
appropriate, propose a revision of Article 8(1) by 1 January
2009;
it shall also review the exemption contained in
Article 8(1) in the light of further assessment of the avail-
able alternatives by 1 January 2010;

(j) assess whether the inclusion of further products and equip-
ment containing fluorinated greenhouse gases in Annex II
is technically feasible and cost-effective and, if appropriate,
make proposals to amend Annex II in order to include
such further products and equipment;

(k) assess whether Community provisions concerning the
global warming potential of fluorinated greenhouse gases
should be amended; any changes should take account of
technological and scientific developments and the need to
respect industrial product planning timescales.

(1) OJ L 42, 23.2.1970, p. 1. Directive as last amended by Commission

Directive 2004/104/EC (OJ L 337, 13.11.2004, p. 13).

(*) Four years after the date of entry into force of this Regulation.

3. Where necessary, the Commission shall present appro-
priate proposals for revision of the relevant provisions of this
Regulation.

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Article 11

Committee

The Commission shall be assisted by the Committee insti-

1.
tuted by Article 18 of Regulation (EC) No 2037/2000.

2. Where reference is made to this paragraph, Articles 5 and
7 of Decision 1999/468/EC shall apply, having regard to the
provisions of Article 8 thereof.

The period laid down in Article 5(6) of Decision 1999/468/EC
shall be set at three months.

3.

The Committee shall adopt its Rules of Procedure.

Article 12

Penalties

1. Member States shall lay down rules on penalties applic-
able to infringements of the provisions of this Regulation and
shall take all measures necessary to ensure that such rules are
implemented. The penalties provided for shall be effective,
proportionate and dissuasive.

2. Member States shall notify the rules on penalties to the
Commission by … (*) and shall also notify it without delay of
any subsequent amendment affecting those rules.

Article 13

Entry into force

This Regulation shall enter into force 12 months following the
date of its publication in the Official Journal of the European
Union.

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

Done at Brussels, …

For the European Parliament

The President

…

For the Council

The President

…

(*) One year after the date of entry into force of this Regulation.

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ANNEX I

PART 1

Fluorinated greenhouse gases referred to in Article 2(1)

Fluorinated greenhouse gas

Chemical Formula

Global Warming Potential

Sulphur hexafluoride

Hydrofluorocarbons (HFCs):

HFC-23

HFC-32

HFC-41

HFC-43-10mee

HFC-125

HFC-134

HFC-134a

HFC-152a

HFC-143

HFC-143a

HFC-227ea

HFC-236cb

HFC-236ea

HFC-236fa

HFC-245ca

HFC-245fa

HFC-365mfc

Perfluorocarbons (PFCs):

Perfluoromethane

Perfluoroethane

Perfluoropropane

Perfluorobutane

Perfluoropentane

Perfluorohexane

Perfluorocyclobutane

SF6

CHF3

CH2F2

CH3F

C5H2F10

C2HF5

C2H2F4

CH2FCF3

C2H4F2

C2H3F3

C2H3F3

C3HF7

CH2FCF2CF3

CHF2CHFCF3

C3H2F6

C3H3F5

CHF2CH2CF3

CF3CH2CF2CH3

CF4

C2F6

C3F8

C4F10

C5F12

C6F14

c-C4F8

22 200

12 000

550

97

1 500

3 400

1 100

1 300

120

330

4 300

3 500

1300

1 200

9 400

640

950

890

5 700

11 900

8 600

8 600

8 900

9 000

10 000

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Method of calculating the total global warming potential (GWP) for a preparation

PART 2

The total GWP for a preparation is a weighted average, derived from the sum of the weight fractions of the individual
substances multiplied by their GWPs.
X

(Substance X % × GWP) + (Substance Y % × GWP) + … (Substance N % × GWP)

where % is the contribution by weight with a weight tolerance of +/- 1 %.

For example: applying the formula to a theoretical blend of gases consisting of 23 % HFC-32; 25 % HFC-125 and 52 %
HFC-134a;
X

(23 % × 550) + (25 % × 3 400) + (52 % × 1 300)

Total GWP = 1 652,5

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ANNEX II

Placing on the market prohibitions in accordance with Article 9

Fluorinated greenhouse gases

Products and equipment

Date of prohibition

Fluorinated greenhouse gases

Non-refillable containers

Date of entry into force

Hydrofluorocarbons and perfluorocar-
bons

Non-confined
systems containing refrigerants

direct-evaporation

Date of entry into force

Perfluorocarbons

Fire protection systems
extinguishers

and fire

Date of entry into force

Fluorinated greenhouse gases

Windows for domestic use

Date of entry into force

Fluorinated greenhouse gases

Other windows

One year after the date of entry into
force

Fluorinated greenhouse gases

Footwear

1 July 2006

Fluorinated greenhouse gases

Tyres

Date of entry into force

Fluorinated greenhouse gases

One component foams, except when
required to meet national safety stan-
dards

One year after the date of entry into
force

Hydrofluorocarbons

Novelty aerosols

Two years after the date of entry into
force

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 11 August 2003, the Commission presented to the Council its proposal for a Regulation of the

European Parliament and of the Council on certain fluorinated greenhouse gases.

2. The European Parliament gave its opinion on 31 March 2004 (first reading).

The Economic and Social Committee adopted its opinion on 28 January 2004.

3. On 21 June 2005, the Council adopted its common position in accordance with Article 251 of the

Treaty.

II. OBJECTIVE

The objectives of the Commission's proposed Regulation were:

— to make a significant contribution towards the EC's current Kyoto Protocol target, and even greater
reductions in the later periods, by introducing cost-effective control and mitigation measures and
by encouraging more responsible use of fluorinated greenhouse gases in general, and in particular
the more environmentally damaging gases, i.e. those with a high global warming potential, and

— to prevent distortion of the internal market that could result from differing national measures in
place in, or being planned by, Member States to ensure compliance with their obligations under
the EC burden-sharing agreement to achieve the EC Kyoto Protocol emission reduction target (1).
The proposal includes bans on certain uses of the gases and prohibits the placing on the market of
a limited number of applications which contain these gases.

III. ANALYSIS OF THE COMMON POSITION

1. General

The common position incorporates approximately two thirds of the amendments proposed by the
European Parliament at first reading. The Council considers that the common position, while
altering the approach proposed (see paragraph 3 below), does not alter the aims of the original
Commission proposal and notes that the Commission also supports the common position as it
stands.

2. European Parliament amendments

In its Plenary vote on 31 March 2004, the EP adopted 81 amendments to the proposal.

(a) 54 of these have been incorporated, either verbatim, in part or in principle, into the Council's

common position, 44 in the Regulation and 10 in the Directive; and

(b) 27 amendments have not been incorporated.

The accepted amendments are listed below in the order of their inclusion in the two constituent
part of the common position, first the Regulation then the Directive.

T h e R e g u l a ti on

Amendment 3: accepted in recital 4 and this addition of the word ‘greenhouse’ has been accepted
throughout the texts.

Amendment 8: accepted in principle. The original first paragraph of Article 1 has been redrafted in
two paragraphs which now contain the content covered by this Amendment.

(1) Council Decision 2002/358/EC of 25 April 2002 concerning the approval, on behalf of the European Community,
of the Kyoto Protocol to the United Nations Framework Convention on Climate Change and the joint fulfilment of
commitments thereunder (OJ L 130, 15.5.2002, p. 1).

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Amendment 10: accepted in the most part, in Article 2(g), the placing on the market of the gases
themselves is not included in the common position, the part relating to vehicles is not included as
the Council proposes to deal with this part of the proposal in a separate vehicle type approval direc-
tive.

Amendment 12: accepted in part, in Article 2(n), the Council did not feel it was necessary to specify
‘during their servicing or disposal’, but instead kept the timing open.

Amendment 13: the Council agreed that there is a need for a definition of destruction but has not
followed the text proposed by the Parliament, instead the common position contains the definition
of destruction from the standard definition used in ozone layer reports, see Article 2(q).

Amendments 15, 16 and 17: all accepted in part, Article 2(a), (b) and (c), the Council did not feel
that the last phrase was necessary and so in each case this is not included in the common position.

Amendment 18: accepted in principle, Article 2(d).

Amendment 23: accepted in principle, Article 3(1), after lengthy discussion of the terms ‘operator’
and ‘owner’, the Council decided to use ‘operator’ only but within the definition of operator (Art
2(f)) it is noted that Member States can, in specific situations, designate the owner as being respon-
sible for the operator's role.

Amendment 107: accepted in part, the content of this amendment is covered by Article 3(2), apart
from the need to inspect when the equipment is installed, see rejected amendment 24.

Amendments 26, 27 and 28: accepted in Article 3(2), except the first part of 26 which was not felt
to be necessary.

Amendment 29: accepted in Article 3(2), in the common position this amendment has been applied
to applications covered by paragraphs (b) and (c) as well.

Amendment 30: accepted in part, Article 3(4) as the frequency can indeed be halved, but on the
basis of the installation of a leakage detection system.

Amendment 31: accepted in Article 3(5).

Amendments 110 and 32: accepted in part in Article 3(4) — see amendment 30

Amendment 33: accepted in part in Article 3(3), part on ‘one circuit’ rejected (see Amd 26) and last
part rejected as common position uses words ‘appropriate’ leakage detection system.

Amendment 34: accepted in Article 3(6)(see amendment 23).

Amendment 35: accepted in Article 3(1).

Amendment 39: accepted in Article 4(4), however the Council felt that in practice it was more
appropriate to say ‘before’, rather than ‘during’, the final disposal.

Amendments 41 and 42 and parts of 43 and 44: Article 5 has been substantially reworded, in prin-
ciple the contents of amendments 41 and 42 have been included in paragraphs 1, 2 and 3, along
with parts of 43 and 44.

Amendments 46, 47, part of 48 and 50: accepted in Article 6(1)(a).

Amendments 52, part of 53, 54 in principle and 55: accepted in Article 6(1)(b).

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Amendments 59 and 60: accepted in Article 6(1)(c).

Amendments 62 and 63: accepted in principle in Article 6(4).

Amendment 78: accepted in principle through the new Article 6(b) on 'Labelling' contained in the
common position.

Amendment 65: accepted in Article 7.

Amendment 67: accepted, almost verbatim in Article 8(1).

Amendment 79: accepted in part, Article 9(1) includes the word ‘greenhouse’ but not the deletion of
‘contained in modes of transport’.

Amendment 105: accepted deletion in Article 11.

T h e Di r e c ti v e

Amendment 6: accepted, in principal, in recital 4.

Amendments 85 and 96: accepted.

Amendment 111: accepted in principle in Article 5(2), however the date is linked to the adoption of
the harmonised leakage detection test and the limit values are already specified in the common
position.

Amendment 71: accepted in Article 7(1) second indent.

Amendment 112: accepted in part in Article 5(4), however the GWP value used in the common posi-
tion is 150, not 50.

Amendment 73: accepted in part in Article 5(5), however the date in the common position is 1
January 2017, not 1 January 2014 and the GWP value used in the common position is 150, not
50.

Amendment 76: accepted the deletion of the quota system.

Amendment 86: accepted in principle. The report to be provided under Article 8(1), five, not two,
years after entry into force, shall examine whether amendments are required taking account of tech-
nological and scientific developments and the need to respect industrial product planning time-
scales.

Amendment 82: covered in principle by Article 8.

The 27 amendments that have been rejected have been listed in the order they would apply to the
Commission's proposal, together with the reasons for their rejection:

Amendment 2: in the common position some of the measures required are to be taken on the basis
of Article 95, so it may not be possible for Member States to maintain certain national measures.

Amendment 4: these gases use has been restricted, according to the bans contained in Article 7,
following detailed consultation by the Commission. The use bans will be specifically reviewed under
Article 9(2)(i) in 2009 and 2010 and the possible extension of the placing on the market prohibi-
tions will be considered in the general review (Article 9(2)(j)).

Amendments 5 and 7: the Commission's proposed recital 7 and the Parliament's proposal for a
Recital 9a are not included in the common position as the Council did not feel that it was necessary
to explain each of the requirements. Instead more general recitals have been included to explain
which parts of the Regulation are based on Article 175 and which on Article 95.

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Amendment 9: the Council did not see a need to define producer.

Amendment 11: the Council preferred to retain the word ‘container’ rather than receptacle but has
added the word ‘primarily’ to the Commission's proposed definition.

Amendment 108: the Council did not see a need to include the 50 GWP limit in the definition as
this is dealt with later in the Articles.

Amendment 20: after lengthy debate the Council opted to retain the Commission's proposal to use
‘novelty aerosol’ as it did not feel sufficient research and consultation had been undertaken with
respect to other aerosols.

Amendment 21: the Council did not see a need to include special provisions on small-scale manufac-
turers.

Amendment 22: Council felt this was too general the principle is covered in Article 3(1).

Amendment 24: Council felt that this is already normal procedure and the purpose of this Article
was to ensure that leakage did not occur once the equipment is in service.

Amendment 25: Council did not, after detailed debate feel that it was appropriate to extend this obli-
gation to mobile equipment at this time, however this will be reviewed by 31 December 2007 (See
Article 9(1)).

Amendment 36: Council did not consider this registration requirement necessary.

Amendment 40: Council did not consider this register requirement necessary.

Amendments 49: this is covered in point Article 6(1)(b).

Amendments 57 and 61: Council did not feel that these requirements could be met in practice.

Amendment 64: in the common position an exception to the use ban in paragraph 1 is still included,
however, this is to be reviewed by 1 January 2010, see Article 9(2)(i).

Amendments 69, 74, 75 and 77: Council did not want to include tax incentives in the common posi-
tion text.

Amendment 80: Council considered this too broad, however paragraphs (i) and (j) have been added
to the review in Article 9 and do address aspects of this amendment.

Amendment 81: Council
contained in Article 9(2), e.g. paras (a), (g) and (h).

felt that this was already covered by the general review paragraphs

Amendment 104: after lengthy discussion the Council agreed that the existing Ozone Depleting
Substances Regulation Committee should be used, but under the regulatory, rather than manage-
ment, procedure, see Article 10.

Amendment 83: it was not felt that a separate committee was necessary.

Amendment 84: the new form of vehicle type approval Directive in relation to air conditioning in
vehicles means that this no longer appears in Annex II of the common position and on aerosols the
Council preferred to retain ‘novelty aerosols’ as proposed by the Commission, see amendment 20.

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3. Most important innovations introduced by the Council

— Mobile air conditioning

1. Quota system

The Council agreed with the Parliament's amendments considering that the proposed quota
system was not the most practical way to achieve the aim of reducing emissions from these
systems and, ultimately, changing the refrigerant in all new systems to a less environmentally
damaging substance (i.e. a gas with a substantially lower GWP). Therefore the quota system
has been deleted.

2. Type-approval Directive

The Council noted that the Parliament, particularly in amendments 82 and 112, intended to
use the EC Type Approval system pursuant to Directive 70/156/EEC for the purpose of
controlling the way in which vehicles would be equipped with environmentally friendly air
conditioning systems.

The Council shares the Parliament's objective and has implemented it using the standard
form of a vehicle type approval Directive, under the parent legislation contained in Directive
70/156/EEC.

— Legal base of the remaining parts of the Regulation

Having decided to remove the mobile air conditioning part of the proposal to a separate Direc-
tive, the Council gave very careful consideration to the appropriate legal base for the rest of the
Regulation and, as reflected in the common position, decided that a dual legal base is the most
appropriate solution. This means that the Regulation is based on Article 175(1). However, the
Articles relating to the use-bans, the prohibition of placing on the market and labelling are all
based on Article 95 of the Treaty. The insertion of the Article requiring specific labelling of
products containing fluorinated greenhouse gases was a new addition from the Council and
seems to fit, to some extent, with the Parliament amendment on information to consumers.

IV. CONCLUSION

Despite the fact that the Council is not able to accept all of the amendments adopted by the European
Parliament, it considers that the common position coincides to a large extent with the concerns of the
Parliament.

In relation to the mobile air conditioning aspect, the format in the common position is new. However,
in substance the aim of creating a more workable solution than the quota proposal, based on type
approval legislation, is a shared goal of both Parliament and Council. It should be underlined that
although there are two elements, a Regulation and a Directive, the Council and the Commission are in
agreement that there is still only one proposal.