Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a Regulation of the European Parliament and of the Council on certain fluorinated greenhouse gases; and a Directive of the European Parliament and of the Council relating to emissions from air conditioning systems in motor vehicles and amending Council Directive 70/156/EEC
Date: 2005-07-01
Institutions: European Commission
Subjects: air conditioning, drafting of EU law, greenhouse gas, motor vehicle, reduction of gas emissions

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 01.07.2005 
COM(2005)296 final 

2003/0189 A (COD) 
2003/0189 B (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of a Regulation of the European 
Parliament and of the Council on certain fluorinated greenhouse gases; and a Directive 
of the European Parliament and of the Council relating to emissions from air 
conditioning systems in motor vehicles and amending Council Directive 70/156/EEC 

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2003/0189 A (COD) 
2003/0189 B (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of a Regulation of the European 
Parliament and of the Council on certain fluorinated greenhouse gases; and a Directive 
of the European Parliament and of the Council relating to emissions from air 
conditioning systems in motor vehicles and amending Council Directive 70/156/EEC 

1. 

PROCEDURE 

The Proposal COM(2003)492 final of 11 August 2003 was forwarded to the Council 
and the Parliament on 12 August 2003 in accordance with the co-decision procedure 
pursuant to Article 175 (1) of the EC Treaty. 

The  European  Economic  and  Social  Committee  gave 
28 January 20041. 

its  Opinion  on 

The  European  Parliament  gave  its  Opinion  at  the  first  reading  in  session  on 
31 March 2004. 

Following the opinion of the European Parliament and pursuant to Article 250(2) of 
the EC Treaty, the Council reached political agreement on a Common Position by a 
qualified majority on 14 October 2004. 

The Council adopted the Common Position formally on 20 June 2005. 

2. 

PURPOSE OF THE COMMISSION PROPOSAL 

the  European  Community’s  Kyoto  Protocol 

The  overall  objective  of  the  Commission  proposal  is  to  make  a  significant 
contribution 
target  by 
towards 
introducing  cost-effective  measures 
the  emissions  of  fluorinated 
greenhouse  gases.  Estimated  emissions  (CO2  equivalent)  of  these  fluorinated 
greenhouse  gases  would  increase  by  around  50%  between  1995  and  2010  under 
business  as  usual.  It  is  even  more  important  for  the  EU  to  adopt  and  to  implement 
legislation swiftly to reduce its greenhouse gas emissions with the Kyoto Protocol’s 
entry into force on 16 February 2005. 

to  reduce 

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Not yet published in the Official Journal 

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A  second  objective  is  to  prevent  distortion  of  the  internal  market  that  could  result 
from differing Member States’ existing or planned measures taken in order to meet 
their Kyoto objectives. This implies harmonised restrictions on the marketing and the 
use of fluorinated gases in applications where their containment is either difficult to 
achieve or their use is considered inappropriate and suitable alternatives exist. A key 
element is the control of the leakage of the specific fluorinated greenhouse gases in 
the  air  conditioning  systems  fitted  to  vehicles  (mobile  air  conditioning  systems  - 
MACs) and to prohibit from a certain date MACs using HFC 134 a. 

The  proposal  is  expected  to  reduce  projected  emissions  of  fluorinated  gases  by 
around  23  million  tonnes  of  CO2  equivalent  by  2010,  and  even  greater  reductions 
after  as  some  provisions,  notably  the  phase  out  of  HFC-134a  in  MACs,  will  only 
have a significant impact after 2010. 

Building on the Commission’s proposal, the Common Position which takes the form 
of two legislative instruments, can make an important contribution for ensuring that 
the  legal  commitments  to  reduce  greenhouse  gas  emissions,  pursuant  to  the  Kyoto 
Protocol, which was ratified by the European Community and its Member States on 
31 May 2002, are fulfilled in a cost-effective way. 

3. 

COMMISSION COMMENTS ON THE COMMON POSITION 

3.1. 

General comments 

54 of the 81 amendments proposed by the Parliament are incorporated totally, in part 
or in principle in the Common Position. 27 amendments, proposed by the Parliament 
that are in the Common Position, are accepted by the Commission.  

The Commission considers that the Common Position, in the form of a Regulation on 
certain fluorinated greenhouse gases and a Directive on emissions from MACs, does 
not alter the approach and aims of its proposal. The change in form also reflects the 
Parliament’s  wish  to  address  MACs  through  type-approval  legislation.  The 
Commission  agreed  to  this  change  in  form  on  the  basis  that  the  two  elements  are 
considered as an overall package that guarantees the environmental ambition of the 
original proposal. The Council agreed to this and it is reflected in the recitals to the 
Common Position. 

The Commission made a statement on Article 10 of the Regulation (in Annex) 

3.2. 

Detailed comments 

3.2.1.  Parliamentary amendments accepted by the Commission and incorporated in full, in 

principle or in part in the Common Position  

Amendments 3, 34 and 79 add the word “greenhouse” before fluorinated gases (it is 
used throughout the text). 

Amendment  8  sets  out  in  more  detail  all  the  aspects  that  Article  1(2)  of  the 
Regulation will address in the Common Position. 

Amendment 12 improves the definition of recovery.  

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Amendment 13 provides a definition of destruction.  

Amendments  15,  16  and  17  provide  greater  clarity  on  the  definition  of  substances 
covered.  

Amendment 18 provides legal clarity and certainty on the definition of GWP.  

Amendment 29 ensures that repair work is properly done after leakage. 

Amendment 30 provides for a reduction of inspection frequency if no leakage 

Amendment  31  and  107  allow  inspections  of  fire  fighting  equipment  under  ISO 
14520  

Amendments  32  and  33  require  leakage  detection  systems  to  be  in  areas  where 
leakage is more likely.  

Amendment 35 provides for repair of leaks as soon as possible. 

Amendment 41 requires Member States to adapt their training schemes.  

Amendments 46, 50, 52 and 63 clarify the text with respect to data reporting.  

Amendment  78  aims  to  provide  information  about  the  GWP  of  products  and 
equipment containing fluorinated gases in the new labelling provision.  

Amendment  82  introduces  a  review  to  establish  whether  the  Regulation  needs 
revising.  Concerning  the  Directive,  this  is  covered  in  principle  by  Article  8. 
Amendment  111  requires  that  from  31  December  2006  new  vehicles  types  comply 
with the leakage rates established in a standardised test procedure.  

3.2.2.  Parliamentary  amendments  acceptable  to  the  Commission  but  not  incorporated  in 

the Common Position 

Concerning  recitals:  amendment  7  concerns  training  and  certification.  The  Council 
has decided not to go into detail with regard to each provision which the Commission 
can support given that the training and certification provisions of the Regulation are 
strengthened. 

Concerning  the  definitions:  defining  terms  based  on  Community  legislation  if 
possible  can  help  to  give  clarity  and  certainty  as  in  amendments  9  and  11.  The 
Common  Position  does  not  include  the  Parliament’s  proposed  definitions  of 
container and producer but the Commission believes that this does not undermine its 
proposal.  

Concerning standardised tests before placing on the market: amendment 24 requires 
refrigeration,  air-conditioning  and  heat  pumps  to  undergo  standardised  tests  before 
placing on the market but these standards should be based on existing legislation not 
on  tests  defined  by  the  Committee.  The  Council  believes  that  this  is  normal 
procedure and so does not need to be repeated in the Common Position. 

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Concerning  an  electronic  register  of  certified  personnel  and  undertakings: 
amendment 40, providing for an electronic register could have been a useful tool in 
assisting  operators  to  use  qualified  personnel.  The  Common  Position  does  not 
include  this  provision  and  since  it  is  not  central  to  the  containment  provisions  the 
Commission can accept this. 

Concerning  mobile  air  conditioners  with  a  GWP  below  100  and  fiscal  incentives: 
amendment 77 requires Member States to promote equipment (MACs) with a GWP 
below  100  and  to  use  fiscal  incentives.  The  Commission  agrees  in  principle  but 
believes  that  this  should  not  be  mandatory.  This  amendment  is  not  included  in  the 
Common Position. 

Concerning  review  of  recovery  targets  and  whether  legal  framework  for  recovery 
needs revising: Amendment 81 is concerned with strengthening the recovery element 
in  the  review  provisions.  The  Commission  believed  that  the  review  of  recovery 
provisions  could  usefully  be  set  out  in  the  review  clause.  It  is  not  included  in  the 
Common Position but the Commission believes it is covered by the requirement to 
assess “the impact of relevant provisions.” 

3.2.3.  Parliamentary amendments not accepted by the Commission but incorporated in the 

Common Position 

Concerning  mobile  air  conditioners:  Amendment  6  deletes  the  recital  referring  to 
transferable  quotas  in  relation  to  amendment  105  both  of  which  the  Commission 
could not initially accept. Council has taken a similar approach to the Parliament in 
terms of the legislative instrument to use for reducing emissions from MACs, and the 
Common  Position  gives  effect  to  the  Commission’s  proposed  provisions  through  a 
‘type approval’-style Directive that amends Directive 1970/156/EC. 

Concerning  the  definition  of  placing  on  the  market:  amendment  10  includes  the 
placing  on  the  market  of  the  fluorinated  gases  themselves  as  well  as  products  and 
equipment containing fluorinated gases. The amendment also removed the reference 
to  “unused”  in  the  Commission’s  proposal.  The  Commission  can  support  the  new 
definition since it excludes the placing on the market of fluorinated gases. 

Concerning the terms “operator” and “owner”: amendments 23 and 34 substitute the 
term  “owners  and  operators”  for  the  Commission’s  proposal  of  “operators”.  The 
Commission took the view that the responsibility for containment should be clearly 
defined and that standard practice was for this to be the “operator”. However, in the 
Common  Position,  Article  2(f)  provides  for  the  possibility  for  the  “owner”  to  be 
designated as responsible for the containment and recovery provisions. 

Concerning  the  terms  “accredited  companies”  and  certified  personnel:  amendments 
26,  27  and  28  introduce  the  concept  of  “certified  companies”  alongside  the  term 
“certified  personnel”.  The  Commission  took  the  view  that  a  key  element  in  the 
containment  provisions  is  the  need  for  qualified  personnel.  The  use  of  the  word 
“certified” instead of “qualified” in relation to personnel can be accepted along with 
the  inclusion  of  companies  in  Article  3  (2)  since  the  inspection  system  is 
strengthened with respect to record keeping. 

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Concerning  recovery  of  fluorinated  gases:  amendment  39  requires  recovery  during 
servicing  and  during  final  disposal.  However,  in  the  Common  Position  the  text  is 
now “and before final disposal” The Commission can support this formulation. 

Concerning a reduction of inspection frequency if no leakage: as regards amendment 
110  the  Commission  preferred  to  leave  the  reduction  to  the  competent  authority 
which is best placed to judge. In the Common Position inspections are halved if there 
is a properly functioning leakage detection system in place.  

Concerning training and certification: the Commission could not accept amendments 
42,  43  and  44  which  requires  existing  schemes  to  be  brought  into  line  with  the 
requirements of the Regulation since they were too prescriptive. A small number of 
the  concepts  set  out  in  these  amendments  have  been  brought  into  the  Common 
Position  (Article  5)  which  has  been  substantially  redrafted.  The  key  elements  on 
timetable  and  procedure  for  establishing  minimum  training  standards  and  mutual 
recognition remain intact.  

Concerning data reporting: the Commission could not accept amendments 47, 48, 54, 
55,  57,  59,  60  and  62  which  introduce  drafting  changes  that  removes  obligation  of 
producers to estimate emissions of end users; the concept of emissions over the life 
cycle of each gas and the requirement for Member States to review a representative 
sample  of  records  and  report  to  the  Commission.  The  Commission  did  not  accept 
these  amendments  because  they  would  in  total  upset  the  balance  of  the  reporting 
provisions.  However,  the  Common  Position  has  taken  a  middle  path  which  the 
Commission can accept 

Concerning mobile air conditioners: amendments 65, 71, 73, 76, 105, 108, 111 and 
112  replace  the  provisions  on  transferable  quotas  with  ‘type-approval’  style 
provisions.  After  it  became  clear  that  Council  preferred  a  similar  approach  to  the 
Parliament  as  regards  the  legislative  instrument  to  use,  the  Commission  agreed  to 
these  amendments.  However,  there  are  differences  between  the  institutions  on  the 
dates for these provisions to take effect. The Parliament proposed 2011 for new types 
of vehicle and 2014 for all new vehicles. The Commission considered that, in order 
to be equivalent to its proposal, these dates should be no later than 2010 and 2016. 
The Commission considered that this is important in order to contribute towards the 
fulfilment  of  the  EU’s  Kyoto  target.  The  Common  Position  gives  effect  to  the 
Commission’s  proposed  provisions  through  a  ‘type  approval’-style  Directive  that 
amends  Directive  1970/156/EC,  with  dates  of  phase  out  of  HFC-134a  in  2011  and 
2017 for new types of vehicles, and new vehicles respectively. 

Concerning enhanced mobile air conditioning systems: amendments 85 and 96 delete 
definition of enhanced MACs following deletion of quota system. The Commission 
believed this should be maintained. However,  the provisions  on transferable quotas 
were replaced with ‘type-approval’ style provisions  and  so  enhanced  MACs  are  no 
longer necessary and are deleted in the Common Position. 

Concerning  reporting  on  progress  in  the  development  of  climate  friendly  air 
conditioners:  amendment  86  calls  for  the  Commission  to  submit  a  report  after  two 
years  on  progress  in  the  development  of  climate  friendly  air  conditioners.  The 
Common  Position  provides  for  a  review  of  whether  Community  provisions 

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concerning the GWP of fluorinated greenhouse gases should be amended, in Article 
8(1) of the ‘type-approval’ Directive. 

3.2.4.  Parliamentary amendments not accepted by the Commission and not incorporated in 

the Common Position 

Concerning recitals: amendment 2 introduces a recital related to the individual Kyoto 
emission target of each Member State and the need for individual action. However, 
no mention is made of the need in some cases of harmonised action and given that 
some of the actions in the proposed Regulation are covered by Article 95 it may not 
be  possible  for  Member  States  to  have  complete  discretion  on  their  national 
measures. 

Concerning recitals: amendment 4 introduces a recital indicating that alternatives to 
fluorinated  gases  exist  for  most  applications  and  that  it  is  therefore  essential  to 
restrict  their  use  to  applications  where  there  are  no  alternatives.  In  the  proposed 
Regulation a number of uses and products using fluorinated gases are prohibited. The 
Commission  is  committed  in  the  review  Article  to  looking  further  at  other 
applications containing fluorinated gases.  

Concerning recitals: amendment 5 says that Member  States can stipulate additional 
national  reporting  requirements  in  addition  to  Community  ones.  This  was  not 
accepted  by  the  Commission  since  it  believed  that  it  should  be  covered  under  the 
Monitoring Mechanism. However, in the Common Position there is a general recital 
that refers to national reporting which the Commission can support. 

Concerning  the  definition  of  novelty  aerosols:  amendment  20  would  have  replaced 
the Commission’s proposed definition with a new definition of “technical aerosols”. 
In  the  Commission’s  view  this  has  not  been  fully  evaluated  and  it  supports  the 
definition in the Common Position, which is in line with its proposal. 

Concerning a new definition of small scale car manufacturers: The Commission did 
not  accept  amendment  21  because  the  definition  is  not  consistent  with  the  type 
approval  system.  Concerning  a  general  obligation  to  prevent  and  minimise 
emissions:  as  regards  amendment  22  the  Commission’s  view  this  is  that  this  is 
covered already in Article 3. The Commission supports the Common Position. 

Concerning  inspections  of  mobile  appliances:  the  Commission  rejected  amendment 
25 because the necessary technical and economic evaluation has not yet been carried 
out and supports the Common Position. 

Concerning  registration  of  entities  concerned  with  inspection  of  fire  protection 
systems: the Commission did not accept amendment 36 since it believes that it would 
create an additional burden for industry without clear benefit. It is not included in the 
Common Position. 

Concerning  data  reporting:  the  Commission  rejected  amendments  49,  57  and  61 
since they widened the scope of the reporting provisions and it was not clear what the 
additional benefits would be in estimating emissions of fluorinated gases in the EU. 
This position is also confirmed in the Common Position  

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Concerning  the  use  of  sulphur  hexafluoride  in  magnesium  die-casting:  the 
Commission rejected amendment 64, which removes the limit for use below 500 kg 
per annum. It is also not included in the Common Position although there is a review 
of this derogation required by 1 January 2010.  

Concerning promotion of refrigeration and air conditioning through fiscal and other 
incentives:  the  Commission  rejected  amendments  69  and  74  since  there  could  be 
difficulties  as  regards  such  fiscal  incentives  in  relation  to  EC  legislation  on  State 
aids. 

Concerning  the  introduction  of  tax  incentives  for  conversion  of  Mobile  Air 
conditioning  systems  (MACs)  with  a  GWP<50:  The  Commission  does  not  think 
amendment 75 is practicable and supports the Common Position. 

Concerning  a  review  of  climate  friendly  air-conditioners  two  years  after  entry  into 
force: the Commission could not accept amendment 80 since the scope was too broad 
and  the  review  would  conflict  with  the  timetable  for  a  review  in  the  Commission 
proposal and Common Position. 

Concerning  the  Committee:  amendment  83  introduced  a  new  additional  committee 
that  would  be  concerned  with  the  recognition  of  professional  qualifications.  The 
Commission  believes  that  the  committee  provided  for  under  Regulation  (EC)  No 
2037/2000  is  appropriate.  The  Commission  also  rejected  amendment  104  which 
called for the establishment of a new standing committee rather than the committee 
provided for under Regulation (EC) No 2037/2000. 

Concerning the modification of Annex II – prohibitions: amendment 84 introduced a 
number of changes related to the use of PFCs in fire protection and novelty aerosols. 
These were rejected by the Commission because they either weakened the proposal 
(PFCs) or because in the case of aerosols further technical evaluation is necessary. 

Concerning  HFC-152a  mobile  air  conditioners:  amendment  108  (and  amendments 
73, 112) reduces the GWP of refrigerants from 150 to 50 which would exclude HFC-
152a. In the Commission's view this is not justified from an environmental point of 
view. However, the Common Position provides for a review of whether Community 
provisions concerning the GWP of fluorinated greenhouse gases should be amended, 
in Article 8(1) of the ‘type-approval’ Directive.  

3.2.5.  Additional changes made by the Council to the Commission proposal 

Concerning the legal base: Taking into account the Council’s decision to change the 
form  of  the  Commission’s  proposal  with  a  Directive  dealing  specifically  with  the 
issue  of  HFCs  in  MACs,  and  a  Regulation  to  cover  the  remainder  of  the  original 
proposal,  the Commission accepts  that the Directive should be based on Article  95 
alone, and that the Regulation should have a legal basis of Articles 175 with Article 
95  in  relation  to  some  Articles.  The  Common  Position  is  in  accordance  with  this 
position.  Recital  5  makes  clear  which  of  the  Regulation’s  Articles  are  based  on 
Article 95. 

Concerning the labelling of products and equipment: the Common Position contains 
a  new  Article  on  Labelling  which  will  ensure  that  certain  products  and  equipment 

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containing  fluorinated  greenhouse  gases  are  not  put  on  the  market  unless  they  are 
appropriately  labelled.  The  Commission  through  the  committee  procedure  will 
establish the format of the label. 

Concerning  the  review:  the  Commission  welcomes  the  detailed  review  provisions, 
which strengthen its proposal. The Commission indicated that its proposal is only a 
first step, consequently the review four years after entry into force of the Regulation 
will  be  an  important  tool  in  assessing  progress  and  making  new  proposals  if 
appropriate. 

Concerning the entry into force: in the Common Position the Regulation comes into 
force twelve months after its publication in the Official Journal instead of the twenty 
days  proposed  by  the  Commission.  The  entry  into  force  of  the  Directive  is 
maintained at 20 days. This change in date in the Regulation is because most of the 
prohibitions in Annex II will already take effect on the date of entry into force of the 
Regulation. The Commission can agree with this. 

4. 

CONCLUSION 

In  its  assessment  of  the  Common  Position,  the  Commission  has  taken  into  account 
the change in the form of its proposal into a Directive dealing specifically with the 
issue of HFCs in MACs, using vehicle type approval legislation, and a Regulation to 
cover the remainder of its original proposal. The Commission agreed to this change 
in form on the basis that the content continues to be considered as an overall package 
that  guarantees  the  environmental  ambition  of  its  original  proposal.  The  Council 
likewise considered it important for the content of this legislation to be considered as 
an overall package, and has reflected this in recital 8 to the Regulation and in recital 
6  to  the  Directive,  which  emphasise  that  this  legislation  should  be  adopted  and 
published in the Official Journal simultaneously. 

As  regards  the  Directive  on  MACs  the  Common  Position  has  adopted  the 
Parliament’s  proposal  to  phase  out  fluorinated  greenhouse  gases  from  MACs  using 
the  type  approval  procedure  instead  of  a  transferable  quota  system.  While  the 
Commission  could  not  initially  accept  such  an  amendment  it  has  now  decided  to 
support  the  type-approval  procedure  since  neither  the  Parliament  nor  the  Council 
were  ready  to  accept  the  Commission’s  proposal  and  given  that  the  overall 
environmental ambition of the Commission’s proposal is maintained. 

Both  the  Commission  and  the  Council  did  not  accept  the  Parliament’s  proposal  to 
reduce the GWP of fluorinated gases in MACs from 150 to 50 since it would exclude 
the  use  of  HFC-152a,  a  possible  alternative  technology,  with  only  minimal 
environmental  benefits.  However,  the  Commission  is  committed  within  the 
framework of Article 8(1) of the type-approval Directive to review and to report on 
possible  changes  concerning  the  GWP  of  fluorinated  gases  in  the  light  of 
technological and scientific developments.  

The Common Position incorporates a large proportion of the amendments proposed 
in  the  Parliament’s  first  reading.  Many  help  to  clarify  the  terms  of  the  proposal  as 
well as to increase transparency and accountability. As part of the overall agreement, 
the  Commission  can  also  agree  to  a  number  of  amendments  proposed  by  the 

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Parliament that it initially rejected, for instance under the reporting provisions, that 
are  partially  accepted  or  reformulated  in  the  Common  Position.  The  Common 
Position  also  goes  further  than  the  Commission  proposal  in  a  number  of  instances, 
for  instance  the  new  Article  on  labelling,  which  is  acceptable  to  the  Commission. 
The  majority  of  the  proposed  Parliament  amendments  were  taken  on  board,  in 
particular  the  Review  Article  in  the  Regulation  was  considerably  strengthened  and 
made  more  specific  and  it  will  provide  the  Commission  with  useful  guidance  to 
assess all the policy areas set out in the Regulation and to propose further measures 
where appropriate. 

The  Commission,  therefore,  supports  the  Common  Position  adopted  by  qualified 
majority on the 20 June 2005. 

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ANNEX  

Commission Statement on the review 

Referred to in Article 10(2) (j) 

The Commission states that in the review referred to in Article 10(2) (j) possible sectors for 
review in relation to Annex II could be: 

•  applications in the aerosol sector 

•  applications  in  the  refrigeration,  air  conditioning  (other  than  those  in  motor 

vehicles) and heat pump sectors; 

•  foams, both rigid and flexible; 

•  fire protection systems and fire extinguishers. 

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