2008/80/EC: Commission Decision of 21 December 2007 concerning national provisions notified by the Republic of Austria on certain fluorinated greenhouse gases (notified under document number C(2007) 6646) (Text with EEA relevance)
Date: 2007-12-21
Institutions: European Commission
Subjects: Austria, approximation of laws, electrical engineering, environmental protection, greenhouse gas, marketing restriction, national law, reduction of gas emissions

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COMMISSION

COMMISSION DECISION

of 21 December 2007

concerning national provisions notified by the Republic of Austria on certain fluorinated
greenhouse gases

(notified under document number C(2007) 6646)

(Only the German text is authentic)

(Text with EEA relevance)

(2008/80/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

1. COMMUNITY LEGISLATION

1.1. ARTICLE 95(4), (5) AND (6) OF THE EC TREATY

Having regard to the Treaty
Community, and in particular Article 95(6) thereof,

establishing the European

(3)

Having regard to Regulation (EC) No 842/2006 of the European
Parliament and of the Council of 17 May 2006 on certain
fluorinated greenhouse gases (1), and in particular Article 9(3)
thereof,

Article 95(4) of the EC Treaty provides that ‘If, after the
adoption by the Council or by the Commission of a
harmonisation measure,
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 envi-
ronment,
these
provisions as well as the grounds for maintaining them.’

shall notify the Commission of

a Member State deems

it

Whereas:

I. FACTS AND PROCEDURE

(1)

about national measures
II No 447/2002 — Ordinance of

On 29 June 2007, the Republic of Austria informed the
Commission, pursuant to Article 9(3)(b) of Regulation
(EC) No 842/2006 on certain fluorinated greenhouse
adopted in 2002
gases,
(BGBl.
the Federal
Minister
for Agriculture, Forestry, Environment and
Water Management on bans and restrictions for partly
fluorinated and fully fluorinated hydrocarbons
and
Ordinance),
sulphur
published in the Federal Law Gazette on 10 December
2002) as subsequently amended by Ordinance BGBl. II
No 139/2007, 21.6.2007.

(HFC-PFC-SF6

hexafluoride

(4)

(5)

a Member State deems

Article 95(5) of the EC Treaty provides that ‘[…], without
prejudice to paragraph 4,
if, after the adoption by the
Council or by the Commission of a harmonisation
measure,
to
introduce national provisions based on new scientific
evidence relating to the protection of the environment
or the working environment on grounds of a problem
specific to that Member State arising after the adoption
of
shall notify the
Commission of the envisaged provisions as well as the
grounds for introducing them’.

the harmonisation measure,

it necessary

it

the notification, approve or reject

According to Article 95(6), the Commission shall, within
the
six months of
national provisions
verified
involved
whether or not they are a means of arbitrary discrimi-
nation 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.

after having

(2)

In this letter the Austrian Government points out that
the Republic of Austria 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 until 31 December 2012.

(1) OJ L 161, 14.6.2006, p. 1.

1.2. REGULATION (EC) No 842/2006

(6)

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

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(7)

(8)

(9)

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 basis, Article 175(1) of
the EC Treaty with respect to all provisions and Arti-
cle 95 of the EC Treaty for Articles 7, 8 and 9, 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, F-gases covered by the Regu-
In its paragraph 3(a)
lation.
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
these measures and their justification
paragraph 3(b),
shall be notified to the Commission and they shall be
compatible with the Treaty.

(10)

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

(11)

The national provisions notified by the Republic of
Austria were introduced by Ordinance No 447/2002 of
10 December 2002 and amended by Ordinance
No 139/2007 of 21 June 2007.

(12) Ordinance No 447/2002 as amended by Ordinance No
139/2007 (hereafter the Ordinance) concerns greenhouse
gases classified under the Kyoto Protocol, most of which
have high global warming potentials: hydrofluorocarbons
(HFCs), perfluorocarbons (PFCs) and sulphur hexafluoride
(SF6), with a view of meeting Austria’s
emission
reduction targets.

(14)

(15)

(16)

(17)

permissibility are laid down in Articles 4 to 17 of the
Ordinance.

to annul

the Austrian Constitutional Court

The amendment in 2007 takes into account the decision
of
(in
decisions of 9 June 2005 and 1 December 2005,
published in the Federal Law Gazette on 9 August
the limit
2005 and 24 February 2006 respectively)
value of Global Warming Potential 3 000 for HFC laid
down in Article 12(2) line 3 of Ordinance No 447/2002,
as well as the exception clause laid down in Article 12(2)
line 3(a) thereof, with the reason of their being unlawful.

the

amendment

in 2007 introduced
Furthermore,
relaxations of the restrictions relating to the refrigeration
and air-conditioning sector bringing them into line with
provisions under Regulation (EC) No 842/2006. Mobile
refrigeration and air-conditioning are no longer covered
by the amended Ordinance. As regards stationary appli-
cations, 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. For
other
are defined
applications
refrigerants are used than
ensuring that no more
necessary in accordance with the state of art. Changes
have also been made with respect to the treatment of
aerosols containing HFCs and the use of SF6 to bring
them in line with EU legislation.

technical parameters

By letter of 1 August 2007 the Commission informed
the Austrian Government that it had received the notifi-
cation and that the six-month period for its examination
under Article 95(6) started on 30 June 2007, the day
following the day on which the notification was received.

By letter of 12 October 2007, the Commission informed
the other Member States of the notification providing
them a period of 30 days to submit any comments.
The Commission also published a notice regarding the
notification in the Official Journal of the European Union (1)
in order to inform other interested parties of Austria’s
national provisions, as well as the grounds invoked to
that effect.

II. ASSESSMENT

1. CONSIDERATION OF ADMISSIBILITY

(13)

The Ordinance bans the placing on the market and use
of the abovementioned greenhouse 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

(18)

The present notification has been examined in the light
of Article 95(4) and (5) of
the EC Treaty and in
accordance with Regulation (EC) No 842/2006.

(1) OJ C 245, 19.10.2007, p. 4.

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(19) 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 envi-
ronment.

going further in terms of placing on the market and
control of use, the Ordinance is more stringent than
the legislation now in force at Community level.

(20) However, since the measures adopted in 2002 have been
amended in 2007 it is appropriate to examine if Arti-
cle 95(5) applies with regard to such provisions of the
Ordinance which were modified after adoption of Regu-
lation (EC) No 842/2006. If such provisions had changed
the substance of those already enacted before the harmo-
nisation act,
they should have been notified to the
Commission before adoption and justified on the basis
of on new scientific evidence on grounds of a problem
specific to that Member State arising after the adoption
of the harmonisation measure.

(21)

or

scope

to more

introduced in 2007 aimed either

The analysis of the amending act concluded that the
amendments
at
the amending
deleting provisions (points 10, 12 of
specific
reducing their
Ordinance),
adding
products
new
applications without
requirements (points 1, 3 and 10 of
the amending
Ordinance), or at introducing additional possibilities to
derogate
the 2002
the amending Ordinance).
Ordinance (points 6, 7 of
Furthermore,
(EC) No
to
842/2006 and explicit requirements taking account of
the harmonisation measures were introduced (points 1,
8, 9 of the amending Ordinance).

from restriction imposed by

Regulation

references

(22) No measures were

identified which changed the
substance of the measures enacted before the adoption
of the harmonisation measure in a way that additional
restrictions were introduces. Thus this amendment did
not contain new measures which have to be considered
as more stringent than Regulation (EC) No 842/2006,
but
internal market.
Therefore,
it is appropriate to apply Article 95(4) for
the evaluation of all provisions of the Ordinance, also
to those amended in 2007.

impact on the

reduced their

(23)

The Ordinance continues to consists, however, of more
stringent provisions than Regulation (EC) No 842/2006
since it contains bans 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 less restrictive ban on the placing on the
market since it only applies to products as listed in its
Annex
imposes
restrictions on the use only on SF6, while the Austrian
measure controls also the use of HFCs and PFCs. By

the Regulation

Furthermore,

II.

(24)

(25)

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 compared to the 1990
level by 2012, which arguably requires a concerted effort
in tackling every source of greenhouse gas emissions.

the Treaty,

The compatibility is examined on the basis of Arti-
cle 95(4) and 95(6) of
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.

(26)

In the light of the foregoing, the Commission considers
that the application submitted by the Republic of Austria
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

(27)

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
in
Community harmonisation measure provided for
that Article are fulfilled.
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 envi-
ronment, must not be a means of arbitrary discrimi-
nation 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.

In particular,

2.1. THE BURDEN OF PROOF

(28)

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
that, according to the
Member State. This means
provisions of
responsibility of
the
the national measures are justified lies
proving that
with the requesting Member State which seeks
to
maintain them.

the EC Treaty,

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2.2.

JUSTIFICATION ON GROUNDS OF MAJOR NEEDS
REFERRED TO IN ARTICLE 30 OR RELATING TO THE
PROTECTION OF
ENVIRONMENT OR THE
WORKING ENVIRONMENT

THE

2.2.1. Austrian position

(29)

To justify the maintenance of their national provisions,
the Austrian authorities refer to the commitment of the
the Kyoto protocol. The
Republic of Austria under
the Ordinance was a contribution to
adoption of
fulfilling the commitment
to reduce its emissions by
13 % below its 1990 level by 2012, which corresponds
to a maximum emission of 67 million tonnes of CO2
equivalents.

(34)

(35)

(30) Austria submitted a review study ‘Examination of the
state-of-art in selected areas of application of fluorinated
gases with global-warming potential’ of May 2006. The
study states that F-gases covered by the Ordinance made
up for over 2 % of Austria’s greenhouse gas emission as
of 2003, and that a doubling was expected by around
2010. Therefore the Ordinance was an integral part of
the national climate strategy.

(31)

takes

the
The Austrian Government
purpose of the Ordinance 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.

the view that

2.2.2. Evaluation of the position of Austria

(32) After having examined the information submitted by
Austria, the Commission considers that the request to
maintain more stringent measures than those contained
in Regulation (EC) 842/2006, notably after
those
measures have been brought closer in line with the
said Regulation, can be considered compatible with the
Treaty for the following reasons.

(33) Ordinance No 447/2002 was object of an infringement
procedure launched by the Commission in 2004,
i.e.
before Regulation (EC) No 842/2006 came into force.
In the letter of formal notice to Austria the Commission
pointed out that the ban of HFCs in refrigerating and air-
conditioning systems could be considered dispropor-
tionate, because these systems are closed systems and
as
and
recycling can be guaranteed, the release of HFCs can be
kept to a minimum.

functioning, maintenance

as proper

long

This procedure was based on Articles 28 to 30 of the
EC-Treaty. Following the adoption of Regulation (EC) No
842/2006 and the notification of
stricter national
measures under its Article 9(3) by Austria, the infrin-
gement procedure was closed.

In the letter of formal notice the Commission took the
view that the Austrian measures could be contrary to
Article 28 of the EC Treaty for the following reasons:
firstly, the ban on using HFCs as cooling and refrig-
erating agents did not seem to be necessary and propor-
tionate with a view to guaranteeing the adequate
the
reduction, by reasonable and effective means, of
releases of greenhouse gases in the interests of environ-
mental protection. Secondly, as far as using HFCs as fire
extinguishing agents were concerned,
the Commission
considered that the GWP threshold as foreseen in the
Ordinance might have constituted an arbitrary discrimi-
nation against products from other Member States.

(36)

These concerns have been addressed by the amending
Ordinance No 139/2007. The modification of
the
Ordinance in 2007 resulted in the lifting and relaxation
of some of the bans and thus the notified measures shall
the
not constitute an obstacle to the functioning of
internal market as required by Article 95(6) of the EC
Treaty.

to equipment used for

apply
irrespective of charge size,

(37) As regards the use of HFCs in refrigeration and air-condi-
tioning equipment and uses, the revised prohibition does
no longer
cooling
to equipment
computers,
containing between 150 g and not more than 20 kg,
to stand alone units with refrigerant charges up to 20
kg, for compact units with charges of 0,5 kg per kw and
for large interconnected stationary units with charges up
to 100 kg. Thus the ban does not apply to most refrig-
eration and air-conditioning systems. These amendments
take account of the review study of May 2006, which
was submitted to the Commission. The ban on the use of
HFCs as fire extinguishing agents was lifted by the
revision.

2.2.2.1. The environmental justification

(38) Under the Kyoto Protocol, the EC committed to reducing
its collective emissions of greenhouse gases from Member
in 1990 in the
States by at least 8 % below the level
2008-2012 period. During the subsequent discussions
within the EC, the Republic of Austria committed to
reduce its overall
level of greenhouse gases emissions
by 13 % during this period (1).

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

the European Community, of

fulfilment of commitments

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(39)

The Ordinance forms part of a broader strategy put in
place by Austria in order to meet its emission reduction
target under the Kyoto Protocol and the subsequent
burden sharing agreement adopted at Community level.

(40)

This strategy covers every source of greenhouse gas
emissions covered by the Kyoto Protocol. Measures on
F-gases are therefore part of its overall effort to fulfil its
obligations. 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
ongoing 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 (1).

(41)

Considering the above, the Commission considers that
the environmental justification given by the Republic of
Austria, namely
reduction and prevention of
fluorinated gases emissions, is reasonable and valid.

the

(45) While noting that the Ordinance has certain implications
on the free circulation of goods within the EC,
the
Commission nevertheless draws the conclusion from
the above analysis that the Ordinance is justified from
an environmental point of view and takes into consid-
eration the implications of the envisaged bans on the
internal market,
in particular since it is based on an
analysis of the existence and availability of alternatives
in the specific circumstances in Austria, reinforced by the
possibility to grant individual exemptions.

2.3. ABSENCE OF ANY ARBITRARY DISCRIMINATION OR
ANY DISGUISED RESTRICTION OF TRADE BETWEEN
MEMBER STATES

(46)

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

the EC Treaty,
reject

2.2.2.2. Relevance

and

proportionality

the Austrian
Ordinance in relation to the objective of achieving
further reduction of fluorinated greenhouse gases

of

(42)

(43)

(44)

In order to further reduce and prevent F-gases emissions,
Austria has decided already in 2002 to opt for selective
placing on the market bans of new equipment. This
decision was based on investigations into the existence
and availability of F-gas-free alternatives. The measures
have been subsequently reviewed in 2006 to take
account of new scientific and technological evidence
address Commission’s
and
concerns with regard to their proportionality.

developments,

and

to

It is also recalled that Article 9.3(a) of Regulation (EC) No
842/2006 allows national measures to be maintained
only until 31 December 2012, therefore, and considering
that the notification made by the Republic of Austria
referred to this Article of the Regulation, it follows that
the Ordinance would apply for a limited period.

The Ordinance allows for exemptions to be possibly
granted where it turns out that alternatives for the use
of HFCs in foams and foam containing products are not
available. Furthermore, exemptions for the use of HFCs
intended for export have been
for novelty aerosols
extended.

(1) OJ L 244, 29.9.2000, p. 1. Regulation as

last amended by
Commission Regulation (EC) No 899/2007 (OJ L 196, 28.7.2007,
p. 24).

(47)

(48)

It should be recalled that an application under 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
those
conditions is not met, the application must be rejected
without there being a need to examine the others.

If any one of

that Article.

The notified national provisions are general and apply to
national and imported products alike. After bringing the
rules concerning the use of HFCs in line with Regulation
(EC) No 842/2006, there is no evidence that the notified
national provisions can be used as a means of arbitrary
discrimination between economic operators
in the
Community.

(49) With regard to the limitations of purchases from other
EEA States, including the Member States of the European
Union, it is understood that these provisions are intended
the measures, equal
to ensure, within the scope of
treatment of all substances or products,
irrespective of
their origin,
that means domestically manufactured,
imported or purchased on the internal market. Goods
imported from outside the EEA are covered by the
provisions on the placing on the market. This is also
the case for goods purchased from an EEA State which
is not Member State of the EU, whereby for these goods
the measures are based on two different elements of the
provision, as the transaction represents in the same time
placing on the market and purchase from an EEA state.
However,
lead to a discriminatory
this
treatment of those goods.

should not

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(50)

(51)

(52)

environment;

The objective behind the Ordinance is the protection of
the
the
Ordinance,
in its intention or implementation, would
result
in any arbitrary discrimination or disguised
barriers to trade.

is no indication that

there

The Commission considers that
there is no evidence
indicating that the national provisions notified by the
Austrian authorities do constitute a disproportionate
obstacle to the functioning of the internal market in
relation to the pursued objectives.

III. CONCLUSION

In the light of the above considerations, the Commission
is of the opinion that the request by the Republic of
Austria, submitted on 29 June 2007, for maintaining
legislation more
until 31 December 2012 its national
stringent
than Regulation (EC) No 842/2006 with
respect to the placing on the market of products and
equipment
functioning relies
upon, F-gases, is admissible.

containing, or whose

(53) Moreover,

the Commission finds

that

the national

provisions adopted in 2002, as amended in 2007:

— meet needs on grounds of the protection of the envi-

ronment,

— take into account the existence and technical and
economic availability of alternatives to the banned
applications in Austria, 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 they can be
maintained.

the exemptions
should be noted that
However,
it
provided for
the Ordinance
in paragraph 8(2) of
cannot be granted after the 4 July 2008 in relation to
one component foams as referred to in Article 9(1) and
Annex II of Regulation (EC) No 842/2006 unless
required to meet national safety standards,

HAS ADOPTED THIS DECISION:

Article 1

The national provisions on certain fluorinated greenhouse gases,
which the Republic of Austria notified to the Commission by
letter, dated 29 June 2007, 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
Republic of Austria is authorised to maintain them until
31 December 2012.

Article 2

This Decision is addressed to the Republic of Austria.

Done at Brussels, 21 December 2007.

For the Commission

Stavros DIMAS
Member of the Commission