Commission notification pursuant to Article 95, paragraph 4, 5 and 6 of the EC Treaty — Authorisation to maintain or introduce national measures being more stringent than provisions of an EC harmonisation measure (Text with EEA relevance)
Date: 2007-10-19
Institutions: European Commission
Subjects: Austria, EU law - national law, air conditioning, application of EU law, cold store, exchange of information, greenhouse gas, market approval, reduction of gas emissions

C 245/4

EN

Official Journal of the European Union

19.10.2007

Commission notification pursuant to Article 95, paragraph 4, 5 and 6 of the EC Treaty — Authori-
sation to maintain or introduce national measures being more stringent than provisions of an
EC harmonisation measure

(Text with EEA relevance)

(2007/C 245/02)

1.
On 29 June 2007, the Republic of Austria informed the Commission, pursuant to Article 9(3)(b) of
Regulation (EC) No 842/2006 of 17 May 2006 on certain greenhouse gases (1) (hereafter ‘the Regulation’),
about national measures adopted in 2002 (BGBl. II No 447/2002 — Ordinance No 447 of the Federal
Minister for Agriculture, Forestry, Environment and Water Management on bans and restrictions for partly
fluorinated and fully fluorinated hydrocarbons and sulphur hexafluoride (HFC-PFC-SF6 Ordinance),
published in the Federal Law Gazette on 10 December 2002) as subsequently amended by Ordinance
BGBl. II No 139/2007, 21.6.2007 (hereafter ‘the Ordinance’).

2.
‘The Ordinance’ 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: hydrofluoro-
carbons (HFCs), perfluorocarbons (PFCs) and sulphur hexafluoride (SF6).

3.
The Ordinance consists of a ban on the placing on the market and use of the above mentioned green-
house gases and their use in certain equipment, units and products, unless they are used for research,
development and analytical purposes.

The detailed provisions on bans and the conditions of permissibility are laid down in Articles 4 to 17

4.
of the Ordinance.

5.
The Ordinance takes into account the decision of the Austrian Constitutional Court to annul (in
decisions of 9 June 2005 and 1 December 2005, published in the Federal Law Gazette on 9 August 2005
and 24 February 2006 respectively) the limit value of Global Warming Potential 3 000 for HFC laid down
in Article 12(2) line 3 of the Ordinance, as well as the exception clause laid down in Article 12(2) line 3(a)
thereof, with the reason of their being unlawful.

6.
The Ordinance also takes into account following the 2007 amendment certain relaxations of the
restrictions relating to the refrigeration and air-conditioning sector to bring them into line with provisions
under Regulation (EC) No 842/2006. Mobile refrigeration and air-conditioning are no longer covered by the
Ordinance and as regards stationary applications the bans only apply to small plug in units with a
refrigerant charge of 150 g or less and to stand alone equipment with a refrigerant charge of 20 kg or over.
Changes have also been made with respect to the treatment of aerosols containing HFCs and the use of
sulphur hexafluoride to bring them in line with EU legislation.

7.
The Austrian legislation of 2002 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
and published in June 2006 and has been modified in 2007. The objective of Regulation (EC) No 842/2006
is to reduce the emissions of the fluorinated gases covered by the Kyoto Protocol primarily through contain-
ment (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.

8.
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.

(1) OJ L 161, 14.6.2006, p. 1.
(2) COM(2003) 492 of 11 August 2003.

19.10.2007

EN

Official Journal of the European Union

C 245/5

9.
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, fluori-
nated greenhouse 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
justification, shall be notified to the Commission and they shall be compatible with the Treaty.

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

10.
the legislation now in force at Community level.

11.
The Republic of Austria argues that such legislation is necessary in order for it to meet its obligations
under the Kyoto Protocol, namely the reduction of 13 % of its total level of greenhouse gas emissions by
2012, which arguably requires a concerted effort in tackling every source of greenhouse gas emissions.

12.
Austria underlines that the notification meets the requirements of the safeguard clause Article 9(3) of
Regulation (EC) No 842/2006, and that a number of areas (foams, electronics industry) covered by their
national legislation fall outside of the subject areas regulated by the mentioned Regulation.

In addition the modification of the Ordinance in 2007 resulted in the lifting and relaxation of some
13.
of the bans and in a better alignment with EU legislation. It is assumed by Austria that within the meaning
of Article 9(3) of Regulation (EC) No 842/2006 the ‘softening’ of national measures notified to the
Commission should be acceptable for the Member States.

14.
The present notification will be assessed in the light of Regulation (EC) No 842/2006 and in accord-
ance with Article 95(4) or (5) of the EC Treaty. 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 restriction 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

15.
publication of this notice. Any comment submitted after these 30 days will not be taken into account.

16.

Further details about the Austrian 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