Commission Decision of 8 December 2006 concerning national provisions notified by Denmark on certain industrial greenhouse gases (notified under document number C(2006) 5934)
Date: 2006-12-08
Institutions: European Commission
Subjects: Denmark, EU law - national law, environmental law, greenhouse gas, reduction of gas emissions

L 32/130

EN

Official Journal of the European Union

6.2.2007

COMMISSION DECISION

of 8 December 2006

concerning national provisions notified by Denmark on certain industrial greenhouse gases

(notified under document number C(2006) 5934)

(Only the Danish text is authentic)

(2007/62/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

1.2. Regulation (EC) No 842/2006

Having regard to the Treaty establishing the European Commu-
nity, and in particular Article 95(6) thereof,

(5) Regulation (EC) No 842/2006 on certain fluorinated
greenhouse gases (F-gases) aims at preventing and contain-
ing the emissions of certain F-gases (HFCs, PFCs and SF6)
covered by the Kyoto Protocol.

Whereas:

I.

FACTS AND PROCEDURE

(1)

By letter of 2 June 2006 the Permanent Representation of
the Kingdom of Denmark to the European Union, the
Danish Government,
referring to Article 9(3)(b) of
Regulation (EC) No 842/2006 of the European Parliament
and of the Council (1), notified to the Commission its
national provisions concerning the regulation of certain
industrial greenhouse gases that
it deems necessary to
maintain after the adoption of that Regulation, together
with the justification for maintenance.

(2)

In this letter the Danish Government points out that the
Kingdom of Denmark intends to maintain its national
provisions which are more stringent than the Regulation, in
accordance with Article 9(3)(a) of Regulation (EC) No 842/
2006.

1.

Community legislation

1.1. Article 95(4) and (6) of the EC Treaty

(3) Article 95(4) of the EC Treaty provides that ‘If, after the
adoption by the Council or by the Commission of a
harmonisation measure, a Member State deems it necessary
to maintain national provisions on grounds of major needs
referred to in Article 30, or relating to the protection of the
environment or the working environment, it shall notify
the Commission of these provisions as well as the grounds
for maintaining them.’

the notification, approve or reject

(4) According to Article 95(6), the Commission shall, within
six months of
the
national provisions involved after having verified whether
or not they are a means of arbitrary discrimination or a
disguised restriction on trade between Member States and
whether or not they shall constitute an obstacle to the
functioning of the internal market.

(1) OJ L 161, 16.4.2006, p. 1.

(6)

(7)

It also contains a limited number of use bans and placing
on the market prohibitions when alternatives were
considered available and cost effective at Community level
and where improvement of containment and recovery were
regarded as not feasible.

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.

(8) 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, F-gases covered by the Regulation.
In its paragraph 3(a) it stipulates 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.
In
accordance with its paragraph 3(b), these measures and
their justification shall be notified to the Commission and
they shall be compatible with the Treaty.

(9)

The Regulation shall apply with effect from 4 July 2007,
with the exception of Article 9 and Annex II, which shall
apply from 4 July 2006.

2.

National provisions notified

(10) The national provisions notified by Denmark were

introduced by Order No 552 of 2 July 2002.

(11) The Order concerns three greenhouse gases classified under
the Kyoto Protocol, most of which have high global
warming potentials: hydrofluorocarbons (HFCs), perfluor-
ocarbons (PFCs) and sulphur hexafluoride (SF6).

6.2.2007

EN

Official Journal of the European Union

L 32/131

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

(19) Placing on the market of products and equipments
containing certain F-gases is harmonised at the EC level
by Regulation (EC) No 842/2006, and in particular by
Article 9 and Annex II thereof.

(13) The general ban on new products containing the covered F-
gases is accompanied by derogations specified in Annex I of
the Order.

(14) The Order allows for exemptions to be possibly granted by
the Danish Environmental Protection Agency in ‘very
special cases’. The notification contains a description of
when such an exemption process can be contemplated in
practice, pointing for instance at the unforeseen dispropor-
tionate effects of a ban, at situations where it turns out that
alternatives are not available or not suitable, or at situations
level of greenhouse gas emissions
where the overall
converted to carbon dioxide equivalent are demonstrated
to be
for a system containing F-gases. The
notification also contains a guidance document issued by
the Danish Environmental Protection Agency for operators
willing to apply for an exemption. This document lists the
criteria used by the Danish Environmental Protection
Agency to grant or refuse the exemption, and a brief
overview of all applications submitted so far, as well as the
corresponding decisions taken by the Danish Environmen-
tal Protection Agency.

lower

(15) By letter of 26 October 2006 the Commission informed
the Danish Government that it had received the notification
and that the six-month period for its examination pursuant
to Article 95(6) started on 9 June 2006, the day following
the day on which the notification was received.

(16) By letter of 19 September 2006, the Commission informed
the other Member States of the notification providing them
a period of 30 days to submit any comments. The
regarding the
Commission also published a notice
notification in the Official Journal of the European Union (2)
in order to inform other interested parties of Denmark's
national provisions, as well as the grounds invoked to that
effect.

II.

ASSESSMENT

1.

Consideration of admissibility

(17) Article 95(4) concerns cases where, after the adoption of a
harmonisation measure, a Member State deems it necessary
to maintain national provisions on grounds of major needs
referred to in Article 30, or relating to the protection of the
environment or the working environment.

(20) The Danish Order consists of more stringent provisions
than Regulation (EC) No 842/2006 since it contains a
general ban on the import, sale and use of new products
containing F-gases after 1 January 2006 as well as a ban on
the import, sale and use of F-gases, new and recovered, after
1 January 2006, while the Regulation contains a limited
ban on the placing on the market since it only applies to
products as listed in its Annex II

(21) As a result of

the above,

including Article 9(3)(b) of
Regulation (EC) No 842/2006, Member States shall notify
their measures to the Commission, together with their
underlying justification. Such measures shall be compatible
with the Treaty.

(22) The compatibility is examined through the procedure of
Article 95(4) and 95(6), taking Regulation 842/2006 into
account. Article 95(4) requires that the notification be
accompanied by a description of the grounds relating to
one or more of the major needs referred to in Article 30 or
to the protection of
the environment or the working
environment.

(23)

In the light of the foregoing, the Commission considers that
the application submitted by Denmark with a view to
obtaining authorisation to maintain its national provisions
on certain industrial greenhouse gases is admissible under
Article 95(4) of the EC Treaty.

2.

Assessment of merits

(24)

In accordance with Article 95(4) and (6), first subpara-
graph, of the EC Treaty, the Commission must ascertain
that all the conditions enabling a Member State to maintain
its national provisions derogating from a Community
harmonisation measure provided for in that Article are
fulfilled. In particular, the national provisions have to be
justified by the major needs referred to in Article 30 of the
Treaty or relating to the protection of the environment or
the working environment, must not be a means of arbitrary
discrimination or a disguised restriction on trade between
Member States and must not constitute an obstacle to the
functioning of the internal market which would not be
proportionate or necessary.

2.1. The burden of proof

(18) The Danish notification relates to national provisions
derogating from those of Article 9(1) of Regulation (EC)
No 842/2006. These national provisions were adopted and
entered into force in 2002, therefore before the adoption of
that Regulation.

(2) OJ C 228, 22.9.2006, p. 4.

(25) The Commission, when examining whether the national
measures notified under Article 95(4) are justified, has to
take as a basis ‘the grounds’ put forward by the notifying
Member State. This means that, according to the provisions
of the EC Treaty, the responsibility of proving that the
national measures are justified lies with the requesting
Member State which seeks to maintain them.

L 32/132

EN

Official Journal of the European Union

6.2.2007

(26)

It is up to the notifying Member State to provide sufficient
grounds, facts and scientific evidence so that it can be given
authorisation to maintain more stringent national legisla-
tion. It is thus in the Member State's interest to attach to the
notification any substantive or legal elements which could
the application (3). Failure to include in the
support
notification such elements shall lead the Commission to
consider the notification not founded.

the use and therefore, the emission of industrial greenhouse
gases as far as possible, so as to contribute to the reduction
of their emissions and thereby contribute to meeting its
obligations which it has committed to in an international
context. The Danish authorities consider that the ambitious
target of greenhouse gases emissions reductions which
Denmark committed itself to reach under Decision 2002/
358/EC requires a concerted effort in tackling every source
of greenhouse gas emissions.

2.2.

Justification on grounds of major needs referred to in Article
30 or relating to the protection of the environment or the
working environment

2.2.1. D a n i s h p o s i t i o n

(33) HFCs are used in Denmark mainly as cooling fluids in
refrigeration units. PFCs are no longer used in Denmark.
SF6 was previously used in soundproof insulating glass
units and within the electrical sector in certain switches.
the latter application,
Nowadays,
involving very few tonnes per year.

is only used for

it

(27) To justify the maintenance of their national provisions, the
Danish authorities have submitted an explanatory state-
ment which provides the following justifications.

(34)

the Danish authorities

In their notification,
to
projections according to which, without further regulation,
the level of emissions would double by 2010, accounting
for 0,5-0,7 million more tonnes of carbon dioxide
equivalent than with the notified legislative measures.

refer

(28) The Order no 552 of 2 July 2002 concerns the regulation
of certain industrial greenhouse gases (HFCs, PFCs and SF6),
which are all powerful greenhouse gases. For example, 1 kg
of the two most widely used HFC gases in Denmark (HFC-
134a and HFC-404A) are equivalent to 1 300 and 3 780 kg
CO2 respectively, while 1 kg SF6 is equivalent to over
22 000 kg CO2.

(29) Under the Kyoto Protocol, the EC committed to reducing its
collective emissions of greenhouse gases from Member
States by at least 8 % below the level in 1990 in the 2008
to 2012 period. During the subsequent discussions within
the EC (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, Burden
Sharing Agreement (4), Denmark committed to reduce its
overall level of greenhouse gases emissions by 21 % during
this period.

(30)

In their notification, the Danish authorities invoke the
objective of protecting the environment and, in particular,
the need to achieve by all possible means the target of
greenhouse gas emissions reduction, as laid down in
Decision 2002/358/EC.

(35) The Danish authorities

that

indicate

the principles
introduced at Community level by Regulation (EC) 842/
2006 to reduce emissions through containment were
introduced in the Danish legislation more than 50 years
ago and since then applied to applications using F-gases
and are therefore unlikely to result in further reductions.

(36)

In its notification, Denmark gives a brief description of
some of the areas of application where alternative solutions
have been developed, and which therefore are covered by
the Danish regulation. From Denmark's point of view, there
is a presumption that alternatives to the industrial green-
house gases being used in the applications which were
banned from 1 January 2006 or will be banned from 1
January 2007 are available.

(37) The general ban on the import, sale and use of new
products containing the covered F-gases is accompanied by
derogations specified in Annex I of
the Order. These
derogations relate to a number of highly specific applica-
tions and, for a number of more common applications, are
based on the quantity of greenhouse gases used in the
respective systems, thereby exempting for instance refrig-
eration 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.

(31)

In the case of this Order, the objective is to contribute to
the reduction of greenhouse gases emission through the
prevention of fluorinated greenhouse gases emissions.

(38)

(32) The Danish authorities point out that the purpose of the
Danish Order on industrial greenhouse gases is to restrict

(3) See the Communication from the Commission concerning Article
95 (paragraphs 4, 5 and 6) of the Treaty establishing the European
Community (COM(2002) 760 final, 23.12.2002),
in particular
paragraph 13.

(4) OJ L 130, 15.5.2002, p. 1.

In addition to the derogations mentioned above, the Danish
Order provides a possibility, ‘in very special cases’, for an
exemption from the general ban. The purpose of
this
exemption option is to prevent the ban, in specific cases,
from having disproportionately serious consequences (in
cases not envisaged when the order was issued, in specific
situations where the installation of refrigeration equipment
based on alternatives to HFCs would incur exceptional and
unreasonable additional costs for the installer/owner, or in
situations where the overall
level of greenhouse gas
emissions converted to carbon dioxide equivalent are
demonstrated to be lower for a system containing F-gases.).

6.2.2007

EN

Official Journal of the European Union

L 32/133

(39) The exemption option is intended to be used so that the
environmental
improvement expected by the ban is
achieved in the best and most effective way from an overall
environmental perspective,
including from an energy
standpoint.

checks for leakages)more than 50 years ago, which was
then applied to applications containing F-gases, and are
therefore unlikely to result in further reductions that could
significantly counter
the expected growth in F-gases
emissions in Denmark.

(40)

In accordance with Article 8 of
the Act on Chemical
Substances and Products No 21 of 16 January 1996, the
ban does not apply to the import, production and sale of
products exclusively intended for export.

(47) Considering the above, the Commission considers that the
environmental justification given by Denmark, namely the
reduction and prevention of fluorinated gases emissions, is
valid.

(41)

In addition, there is no ban either on importing industrial
greenhouse gases to be used in the manufacture of a given
product intended for export.

(42) The Danish Government takes the view that the purpose of
the Order is to protect the environment and that it is
necessary and proportionate in terms of preventing and
reducing emissions of fluorinated gases. Therefore, in its
view, it is compatible with the Treaty.

2.2.2. E v a l u a t i o n o f

t h e p o s i t i o n o f D e n m a r k

(43) After having examined the information submitted by
Denmark, the Commission considers that the request to
maintain more stringent measures than those contained in
Regulation (EC) 842/2006 can be considered compatible
with the Treaty for the following reasons.

2.2.2.1. The environmental justification:

(44) The Order forms part of a broader strategy put in place by
Denmark in order to meet its emission reduction target
under the Kyoto Protocol and the subsequent burden
sharing agreement adopted at Community level. Under
such a Community arrangement, Denmark shall reduce its
Greenhouse gases (GHG) emissions by 21 % over the
period 2008 to 2012 compared to the 1990 base year.

(45) Considering the above, Denmark is putting in place a
climate strategy to meet its commitments which covers
every source of greenhouse gas emissions. Measures on F-
its
Gases are therefore part of its overall effort to fulfil
obligations. It should be noted that emissions of these F-
Gases are estimated to double by 2010 in the absence of
further regulation with increasing use of refrigeration and
also as a result of the up-coming phase out of HCFCs from
refrigeration 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 (5).

(46) Regulation (EC) 842/2006 is

in
expected to result
significant F-gases emission reductions throughout
the
Community, principally in those Member States where
appropriate measures for reducing F-gases emissions are
not yet in place, mainly by measures aimed at improving
the containment and recovery of F-gases used in certain
applications. However, the Danish legislation had already
introduced comparable provisions (containment policy
based notably on compulsory training programmes, regular

(5) OJ L 244, 29.9.2000, p. 1

2.2.2.2. Relevance and proportionality of the Danish Order in
relation to the objective of achieving further reduction of
fluorinated greenhouse gases:

(48)

In this context, and in order to further reduce and prevent
F-gases emissions, Denmark has decided in 2002 already to
opt
for selective placing on the market bans of new
equipment. This selection was based on investigations that
were aimed to check,
the existence and
availability of F-gas free alternatives.

in particular,

(49) Based on this investigation, the Order foresees a general ban
on imports, sales and use of new products containing F-
gases as from 1 January 2006, with a significant number of
derogations and exemptions by which certain products and
equipments are automatically exempted or could be
exempted under certain conditions, or by which the ban
schedule is advanced or put back. Annex I of the Order
contains specific derogations for a number of highly
specific applications
laboratory
equipment) and,
for some more common applications,
exemptions which are based on the quantity of fluorinated
gases used in the respective systems, which results in
exempting refrigeration units, heat pumps or air condition-
ing 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 ship and military use as well
as the use of SF6 in high voltage units are equally exempted.

(e.g medical aerosols,

(50) Additionally,

for exemptions

the Order allows

to be
possibly granted by the Danish Environmental Protection
Agency in ‘very special cases’, namely in cases not envisaged
when the order was issued, in situations where it turns out
that alternatives are not available or not suitable, or in
situations where the overall
level of greenhouse gas
emissions (including ‘indirect emissions’ due to energy
consumption) converted to carbon dioxide equivalent are
demonstrated to be lower for a system containing F-gases.

(51) The procedure applied by the Danish Environmental
Protection Agency is clearly described, as well as the
criteria upon which the decisions to grant or
refuse
exemptions are based. These criteria take into account the
principle of proportionality.

(52)

In the same vein, it is worth pointing out that the Danish
Order allows the use of F-gases for the servicing and
maintenance of existing equipment so as not to result in the
unnecessary abandonment of equipment.

L 32/134

EN

Official Journal of the European Union

6.2.2007

(53) While noting that the Order has implications on the free
circulation of goods within the Community, the Commis-
sion nevertheless draws the conclusion from the above
analysis that the Order is justified from an environmental
point of view and takes into consideration the implications
of the envisaged bans on the internal market, reinforced by
the possibility to grant individual exemptions.

(54)

It should also be recalled that Article 9(3)(a) of Regulation
to be
(EC) No 842/2006 allows national measures
maintained only until 31 December 2012. Therefore, and
considering that the notification made by the Kingdom of
Denmark referred to this Article of
it
the Regulation,
follows that the Order would apply for a limited period.

2.3. Absence of any arbitrary discrimination, any disguised

restriction of trade between Member States

(55) Pursuant to Article 95(6) of the EC Treaty, the Commission
shall approve or reject the national provisions involved
after having verified whether or not they are a means of
arbitrary discrimination or a disguised restriction on trade
between Member States.

(56)

It should be recalled that an application pursuant to Article
95(4) of the EC Treaty must be assessed in the light of the
conditions laid down in both that paragraph and paragraph
6 of that Article. If any one of those conditions is not met,
the application must be rejected without there being a need
to examine the others.

(57) The notified national provisions are general and apply to
national and imported products alike. There is no evidence
that the notified national provisions can be used as a means
of arbitrary discrimination between economic operators in
the Community.

(58) The objective behind the order is the protection of the
environment, there is no indication that the Order, in its
intention or implementation, would result in any arbitrary
discrimination or disguised barriers to trade.

(59)

In view of the risks for the environment resulting from
certain F-gases, the Commission considers that there is no
evidence indicating that the national provisions notified by
the Danish authorities do constitute a disproportionate
obstacle to the functioning of
in
relation to the pursued objectives.

the internal market

III.

CONCLUSION

(60)

In the light of the above considerations, and taking account
of comments provided by Member States and other third
parties on the notification submitted by the Danish

authorities, the Commission is of the opinion that the
request by Denmark, submitted on 2 June 2006,
for
maintaining until 31 December 2012 its national legisla-
tion more stringent than Regulation (EC) No 842/2006
with respect to the placing on the market of products and
equipment containing, or whose functioning relies upon, F-
gases, as, is admissible.

Moreover, the Commission finds that the national provi-
sions:

— meet needs on grounds of

the protection of

the

environment,

— take into account the existence and technical and
economic availability of alternatives to the banned
applications in Denmark, and are likely to result in
limited economic impact,

— are not a means of arbitrary discrimination,

— do not constitute a disguised restriction on trade

between Member States, and

— are thus compatible with the Treaty

The Commission therefore considers that
approved,

they can be

HAS ADOPTED THIS DECISION:

Article 1

The national provisions on certain fluorinated greenhouse gases,
which the Kingdom of Denmark notified to the Commission by
letter, dated 2 June 2006, and which are more stringent than
Regulation (EC) No 842/2006 with respect to the placing on the
market of products and equipment containing, or whose
functioning relies upon, F-gases, are hereby approved. The
Kingdom of Denmark is authorised to maintain them until 31
December 2012.

Article 2

This Decision is addressed to the Kingdom of Denmark.

Done at Brussels, 8 December 2006.

For the Commission

Stavros DIMAS

Member of the Commission