Notification pursuant to Article 95, paragraph 4 of the EC Treaty — Authorisation to maintain national measures being more stringent than provisions of an EC harmonisation measure   (Text with EEA relevance)
Date: 2006-09-22
Institutions: European Commission
Subjects: Denmark, derogation from EU law, environmental protection, exchange of information, greenhouse gas, marketing, reduction of gas emissions

C 228/4

EN

Official Journal of the European Union

22.9.2006

Notification pursuant to Article 95, paragraph 4 of the EC Treaty — Authorisation to maintain
national measures being more stringent than provisions of an EC harmonisation measure

(2006/C 228/04)

(Text with EEA relevance)

1.
On 2nd June 2006, the Kingdom of Denmark informed the Commission, pursuant to Article 9(3)(a)
of Regulation (EC) No 842/2006 (1) on certain greenhouse gases (hereafter ‘the Regulation’), about national
measures adopted in 2002 (Order No 552 of 2nd July 2002).

2.
Order No 552 (hereafter ‘the Order’) concerns three greenhouse gases classified under the Kyoto
Protocol to the United Nations Convention on Climate Change, most of which have high global warming
potentials: hydrofluorocarbons (HFCs), perfluorocarbons (PFCs) and sulphur hexafluoride (SF6).

3.
The Order consists of a general ban on the import, sale and use of new products containing the
above mentioned greenhouse gases after 1st January 2006 as well as a ban on the import, sale and use of
these greenhouse gases, new and recovered, after 1st January 2006.

4.
The general ban on new products containing the covered fluorinated greenhouse gases is accompa-
nied by derogations specified in Annex I of the Order. These specific derogations relate to a number of
laboratory equipment) and, for a number of more
highly specific applications (e.g medical aerosols,
common applications, are based on the quantity of greenhouse gases used in the respective systems,
thereby exempting for instance refrigeration units, heat pumps or air conditioning units with charges
between 0,15 kg and 10 kg as well as refrigeration systems for recovering heat with a charge less or equal
to 50 kg. Products for ships and military use as well as the use of SF6 in high voltage units are exempted.

5.
The Order finally allows for exemptions to be possibly granted by the Danish Environmental Protec-
tion Agency in very special cases. The notification contains a description of when such an exemption
process can be contemplated in practice by the Danish Environmental Protection Agency, pointing for
instance at the unforeseen disproportionate effects of a ban or at situations where it turns out that alterna-
tives are not available or not suitable.

6.
This legislation was in place before the Commission put forward its proposal for a Regulation on
certain fluorinated greenhouse gases (2) which was eventually adopted through co-decision this year and
published in June. The objective of Regulation (EC) 842/2006 is to reduce the emissions of the fluorinated
gases covered by the Kyoto Protocol primarily through containment (Article 3) throughout the life of
products and equipment containing such gases (prevention and repair of leakages) and their recovery
(Article 4) at the end of their life. It also contains a limited number of use bans and placing on the market
prohibitions (respectively Article 8 and Article 9, paragraphs 1 and 2) when alternatives were considered
available and cost-effective at Community level and where improvement of containment and recovery was
regarded as not feasible.

7.
The Regulation has a double legal base, Article 175(1) of the EC Treaty with respect to all provisions
but Articles 7, 8 and 9, which are based on Article 95 of the EC Treaty due to their implications in terms
of free circulation of goods within the EC single market.

Article 9 of the Regulation governs the placing on the market and, more precisely, prohibits the marketing
of a number of products and equipment containing, or whose functioning relies upon, fluorinated green-
house gases covered by the Regulation. It further stipulates, in its paragraph 3(a), that Member States that
have, by 31 December 2005, adopted national measures which are stricter than those laid down in the
Article and which fall under the scope of the Regulation may maintain those national measures until 31
December 2012. However, in accordance with its paragraph 3(b), these measures, together with their justi-
fication, shall be notified to the Commission and they shall be compatible with the Treaty.

(1) OJ L 161, 14.6.2006, p. 1.
(2) COM (2003) of 11 August 2003.

22.9.2006

EN

Official Journal of the European Union

C 228/5

By going further in terms of placing on the market, the Order is therefore more stringent than the

8.
legislation now in force at Community level.

The Kingdom of Denmark argues that such legislation is necessary in order for Denmark to meet its
9.
obligations under the Kyoto Protocol, namely the reduction of 21 % of its total level of greenhouse gas
emissions by 2012, which arguably requires a concerted effort in tackling every source of greenhouse gas
emissions. It further argues that it is fully supported by the availability of alternatives which are considered
as economically and technically feasible in Denmark and, as a result, increasingly used (e.g hydrocarbons in
domestic refrigerators and freezers, ammonia in industrial refrigeration units or absorption systems for
small scale air conditioning units).

10.
The present notification will proceed taking due account of Regulation (EC) 842/2006 and in
accordance with Article 95(4) of the EC Treaty. [Article 95(4) of the EC Treaty stipulates that if, after the
adoption of a Community harmonised measure, a Member State wishes to maintain its more stringent
national legislation as justified by essential requirements as covered by Article 30 or relating to the protec-
tion of the environment or the working environment, it shall notify them to the Commission indicating
the reason for their maintenance.] The Commission has then six months to approve or reject them, during
which it shall check that they do not constitute a means of arbitrary discrimination or a disguised restric-
tion to trade and that they do not create unnecessary and disproportionate barriers to the functioning of
the internal market.

Any comment on the present notification shall be sent to the Commission within 30 days from the

11.
publication of this notice. Any comment submitted after these 30 days will not be taken into account.

12.

Further details about the Danish notification can be obtained from:

European Commission
General Directorate Environment
DG ENV. C.4 — Industrial Emissions and protection of the ozone layer
Mr. Peter. Horrocks
Tel: (32-2) 295 73 84
Electronic address: peter.horrocks@ec.europa.eu