2007/0286 (COD)  Communication from the Commission to the European Parliament pursuant to Article 294(6) of the Treaty on the Functioning of the European Union concerning the Council's position at first reading on the adoption of a Directive of the European Parliament and of the Council on industrial emissions (integrated pollution prevention and control) (Recast)
Date: 2010-02-23
Institutions: European Commission
Subjects: air quality, environmental protection, industrial pollution, pollution control measures, prevention of pollution, reduction of gas emissions

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EUROPEAN COMMISSION 

Brussels, 23.2.2010 
COM(2010)67 final 

2007/0286 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to Article 294(6) of the Treaty on the Functioning of the European Union 

concerning the 

Council's position at first reading on the adoption of a Directive of the European 
Parliament and of the Council on industrial emissions (integrated pollution prevention 
and control) (Recast) 

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2007/0286 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to Article 294(6) of the Treaty on the Functioning of the European Union 

concerning the 

Council's position at first reading on the adoption of a Directive of the European 
Parliament and of the Council on industrial emissions (integrated pollution prevention 
and control) (Recast) 

1. 

BACKGROUND 

Date of transmission of the proposal to the EP and the Council 
(document COM(2007)844 final — 2007/0286 COD): 

21 December 2007 

Date  of  the  opinion  of  the  European  Economic  and  Social 
Committee: 

14 January 2009 

Date of the opinion of the Committee of the Regions: 

9 October 2008 

Date of the opinion of the European Parliament, first reading: 

10 March 2009 

Date  of  adoption  of  the  Council's  position  at  first  reading 
(unanimity):  

15 February 2010 

2. 

OBJECTIVE OF THE COMMISSION PROPOSAL 

The  aim  of  the  proposal  is  to  improve  the  effectiveness  and  efficiency  of  the  current 
legislation relating to the prevention and control of industrial emissions by achieving a high 
level  of  environmental  protection,  reducing  unnecessary  administrative  burdens  and 
minimising distortion of competition within the EU. 

3. 

COMMENTS ON THE COUNCIL'S POSITION AT FIRST READING 

3.1. 

General comments 

The  European  Parliament  gave  its  opinion  at  first  reading  on  10  March  2009.  The 
Commission  accepted  in  full,  in  part  or  in  principle  47  of  the  85  amendments  adopted  by 
Parliament in its first reading. 32 of these 47 amendments are reflected, at least in part, in the 
Council's position at first reading.  

The  Commission  accepted  amendments,  either  fully  or  in  principle  or  in  part,  which  would 
clarify  the  context  of  the  proposal  and  are  consistent  with  the  general  objective  of  the 
proposal. These include changes to improve the provision of information to the public in line 
with the approach taken in the Commission’s proposal to increase transparency in permitting, 

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enforcement and compliance. 

The Commission rejected amendments which would alter the nature of the proposal, such as 
amendments that would reduce the scope of the provisions setting minimum requirements for 
large combustion plants. It also rejected amendments that would create legal confusion, would 
lead to difficulties in implementation or would be inconsistent with the core elements of the 
proposal. 

3.2. 

Detailed comments 

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

part or in principle in the Council's position at first reading 

Thirty-two amendments (7, 12, 13, 14, 16, 18, 19, 21, 27, 34, 35, 36, 37, 40, 44, 49, 50, 51, 
52, 53, 54, 55, 59, 64, 65, 66, 68, 71, 72, 73, 75 and 79) have been incorporated to varying 
degrees in the Council's position at first reading. 

Amendment 7 adds a useful reference to the Aarhus Convention. Amendment 12 is acceptable 
in principle as it provides a  clarification  of the  meaning  of ‘emission  levels associated with 
the best available techniques’. Amendment 13 is incorporated as it clarifies the definition of 
‘public  concerned’.  Amendment  14  is  partly  acceptable  to  the  extent  that  it  clarifies  the 
definition of ‘emerging techniques’. Amendment 16 concerns the inclusion of a definition of 
‘environmental inspection’. Amendments 18 and 19 clarify the provisions on the permitting of 
several installations or operators. Amendment 21 is acceptable in principle as it clarifies the 
provisions on the breach of permit conditions. Amendments 27 and 55 are acceptable in part 
and in principle to the extent that they clarify the organisation of the information exchange on 
BAT. Amendments 34 and 35 simplify the provisions relating to the use of general binding 
rules.  Amendment  36  improves  the  provision  of  information  to  the  public  on  the 
developments  in  BAT.  Amendment  37  clarifies  the  provisions  on  the  reconsideration  of 
permit  conditions.  Amendment  40  is  acceptable  in  part  to  the  extent  that  it  makes  a  link  to 
other  appropriate  Community  legislation.  Amendment 44  is  acceptable  in  part  in  relation  to 
the  principle  of  setting  minimum  frequencies  for  inspections  but  the  proposed  frequency  is 
rejected.  Amendments  49  and  50  ensure  consistency  with  the  obligations  under  the  Aarhus 
Convention. Amendments 51, 52, 53 and 54 clarify the information to be made available to 
the  public.  Amendment 59  concerns  the  reporting  by  Member  States  to  the  Commission  on 
the  setting  of  emission  limit  values.  Amendment  64  is  acceptable  in  principle  to  the  extent 
that it clarifies the scope in relation to non-ferrous metal foundries. Amendment 65 includes a 
useful  reference  to  co-incineration  in  the  scope  (Annex  I).  Amendments  66  and  68  are 
acceptable in principle to the extent that they provide greater legal clarity on the scope of the 
proposal regarding certain waste management activities. Amendments 71, 72, 73 and 75 are 
acceptable  in  part  and  in  principle  to  the  extent  that  they  improve  consistency  for  the 
derogations  granted  for  combustion  plants  operating  a  limited  number  of  hours  or  used  for 
emergency  purposes  while  not  weakening  the  requirements  of  the  current  legislation. 
Amendment 79 is acceptable in part as it reintroduces the provisions on monitoring of dioxins 
in the current legislation. 

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3.2.2.  Parliamentary amendments rejected by the Commission but incorporated in full, in 

part or in principle in the Council's position at first reading 

Twelve amendments (15, 22, 23, 29, 31, 32, 33, 41, 47, 93 (same as 115), 97 and 117) were 
rejected by the Commission but have been incorporated in full, in part or in principle in the 
Council's position at first reading.  

Amendment  15  was  rejected  by  the  Commission  as  it  failed  to  add  clarity  to  the  proposal. 
This amendment is partially included in the Council's position at first reading with regard to 
the definition of ‘baseline report’ and this inclusion can be accepted as a clarification of the 
definition.  

Amendments 22, 23, 29 and 41 on soil protection were rejected by the Commission as they 
were  either  inconsistent  with  the  Commission’s  proposal  or  failed  to  add  clarity  to  the  text. 
These  amendments  are  included  in  part  and  in  principle  in  the  Council's  position  at  first 
reading to the extent that they clarify the soil protection measures provided for in the proposal 
and  are,  therefore,  acceptable.  Amendment  33  on  the  monitoring  of  soil  and  groundwater 
monitoring  was  rejected  by  the  Commission  as  it  provides  a  lower  level  of  environmental 
protection but is incorporated in the Council's position at first reading in full.  

the 

level  of  environmental  protection.  The  amendment 

Amendment 31 on the setting of emission limit values was rejected by the Commission on the 
basis  of  it  being  inconsistent  with  one  of  the  core  principles  of  the  Commission’s  proposal, 
significantly  weakening 
is 
incorporated in part and in principle with regard to the requirements to ensure that emission 
levels  associated  with  BAT  are  not  exceeded,  so  that  the  amendment  can  be  accepted.  The 
Commission rejected amendment 32 as the proposed changes were inconsistent with the rest 
of the text of the proposal. However, it is included in principle in the Council's position at first 
reading with regard to the information of the public on the deviation from the emission levels 
associated with BAT and is consequently acceptable.  

The  Council's  position  at  first  reading  includes  the  deletion  of  the  requirements  for  public 
participation  in  the  adoption  of  general  binding  rules  as  proposed  in  amendment  47. 
Amendment 93 (same as 115) on the coverage of intensive livestock rearing of poultry was 
rejected by the Commission as it would lower the level of environmental protection provided 
by  the  proposal  but  is  incorporated  in  full  in  the  Council's  position  at  first  reading. 
Amendment  117  on  the  scope  for  ceramics  activities  was  rejected  by  the  Commission  as  it 
would  reduce  the  scope  of  the  legislation  when  compared  to  the  status  quo,  but  has  been 
included in part in the Council's position at first reading in a manner that is acceptable to the 
Commission.  The  Commission  rejected  amendment  97  concerning  an  increase  of  the  limit 
values  for  NOx  emissions  for  certain  large  combustion  plants  as  this  would  lower  the 
environmental ambition of the proposal but this has been included in principle in the Council's 
position at first reading in a way that is acceptable.  

3.2.3.  Parliamentary  amendments  accepted  in  full,  in  part  or  in  principle  by  the 

Commission but not incorporated in the Council's position at first reading 

Fifteen amendments (1, 5, 6, 8, 20, 42, 43, 46, 48, 56, 58, 60, 61, 62 and 69) were accepted in 
full, in part or in principle by the Commission but not incorporated in the Council's position at 
first  reading.  These  amendments  relate  to  language  in  the  recitals,  reporting  on  compliance, 
informing the competent authority following the cessation of activities, inspection reporting, 
definition of the public concerned, emerging techniques, monitoring, provision of information 

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to  the  public,  amendment  of  Annexes,  establishment  of  new  additional  minimum 
requirements  through  regulatory  committee  procedure  and  establishment  of  guidance 
concerning intensive rearing of poultry.  

3.2.4.  Parliamentary  amendments  rejected  by  the  Commission  and  the  Council  and  not 

incorporated in the Council's position at first reading 

Twenty-six amendments (2, 3, 4, 9, 10, 11, 17, 24, 25, 26, 28, 30, 38, 39, 45, 57, 63, 67, 70, 
76, 77, 78, 80, 114, 129 and 133) were rejected by both institutions.  

Amendments 2, 3, 4, 9, 10 and 11 are rejected by both institutions since they are inconsistent 
with  the  purpose  of  recitals.  Amendment  17  on  a  definition  of  ‘general  binding  rules’  is 
rejected by both institutions as it does not bring clarification or added value. Amendments 24, 
25 and 26 relating to the content of permit applications, amendment 28 on permit conditions 
for soil protection, amendment 30 on the determination of BAT and amendments 38 and 39 
on  permit  reconsideration  were  rejected  by  both  institutions  as  they  are  redundant  or  would 
create  legal  confusion  in  implementation.  Amendment  114  on  the  spreading  of  manure  is 
inconsistent with the Council's position at first reading and is consequently rejected by both 
institutions.  Amendment  45  on  non-routine  inspections  is  unclear  and  would  lead  to 
difficulties in implementation and is therefore rejected by both institutions. Amendment 57 is 
rejected  by  both  institutions  as  it  would  limit  the  applicability  of  the  provision  on  the 
extension of combustion plants. Regarding the scope of Chapter II of the proposal (Annex I), 
amendments 63, 67, 70 and 129 are rejected by both institutions as they are inconsistent with 
the  Council's  position  at  first  reading.  Amendment  133  is  rejected  by  both  institutions  as  it 
would  exclude  certain  combustion  plants  from  the  scope  of  the  existing  legislation. 
Amendment 76 is rejected by both institutions as it would extend the scope of monitoring of 
CO emissions to combustion plants for which no emission limit values are set. Amendment 77 
is  rejected  by  both  institutions  as  it  would  change  the  compliance  regime  for  combustion 
plants.  Amendments  78  and  80  relating  to  the  derogations  for  monitoring  of  emissions  for 
waste  incineration  plants  are  rejected  by  both  institutions  as  they  are  inconsistent  with  the 
Commission’s proposal and the Council's position at first reading.  

3.2.5.  Changes made by the Council to the proposal 

The Council proposed the following main changes to the Commission’s proposal: 

Information exchange on Best Available Techniques (BAT). The Council's position at first 
reading  maintains  the  principle  and  content  of  the  information  exchange  proposed  by  the 
Commission but adds provisions on the role of the forum while providing more details on the 
drawing  up  process  and  content  of  the  BAT  reference  documents.  The  Commission  agrees 
with the inclusion of these additional provisions, which are consistent with the current BAT 
reference document drawing up process. However, the Commission regrets that the Council's 
position  at  first  reading  provides  for  the  adoption  of  non-binding  guidance  in  relation  to 
Article 13(3)(c) and (d) via regulatory committee procedure since the Commission has its own 
autonomous  right  under  the  Treaty  to  do  so.  The  provision  of  the  Council's  position  at  first 
reading cannot affect this right (see declaration in the Annex to this Communication). 

Procedure for adopting BAT conclusions. The Council's position at first reading provides 
under  Article  13(5)  for  the  adoption  of  the  BAT  conclusions  (parts  of  the  BAT  reference 
documents  laying  down  in  particular  the  BAT-associated  emission  levels)  via  a  regulatory 
procedure  (Article  291  TFUE).  However,  in  the  Council  political  agreement,  the  regulatory 

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procedure with scrutiny had been proposed. The Commission does not share the views of the 
Council  that  Article  291  TFEU  is  the  most  appropriate  legal  basis  for  the  adoption  of  the 
measures  foreseen  in  Articles  13(5).  Those  measures  are  of  general  application  and  seek  to 
supplement the basic act with certain new non-essential elements. As a result, their adoption 
should fall under the procedure of delegated acts (Article 290 TFEU) (see declaration in the 
Annex to this Communication). 

The Commission also notes that the changes introduced by the Council will require additional 
tasks  to  be  carried  out  by  the  Commission,  increasing  the  resources  to  be  allocated  by  the 
Commission for the procedure for drawing up and adopting the BAT reference documents. 

Emission limit values in relation to emission levels associated with the BAT. Article 15(3) 
of the Council's position at first reading provides greater flexibility for competent authorities 
to set emission limit values while ensuring that emissions do not exceed the emission levels 
associated with the BAT as described in the BAT conclusions. The Commission regrets these 
changes  but  can  accept  this  approach  since  the  necessary  safeguards  have  been  introduced 
through  monitoring  and  reporting  requirements  to  ensure  compliance  with  the  expected 
environmental  objectives.  The  derogation,  in  specific  cases,  from  the  application  of  Article 
15(3) based on certain criteria is maintained but the Commission regrets that the possibility to 
specify these criteria through regulatory committee procedure is replaced by the establishment 
of  guidance.  However,  in  order  to  reach  an  agreement,  the  Commission  can  accept  this 
approach. 

Assessment of powers to be conferred on the Commission in relation to Article 41 (rules 
for  combustion  plants)  and  Article  48(5)  (monitoring  of  certain  emissions  from  waste 
incineration plants). The Commission does not share  the views of the Council that Article 
291  TFEU  is  the  most  appropriate  legal  basis  for  the  adoption  of  the  measures  foreseen  in 
Articles 41 and 48(5). Those measures are of general application and seek to supplement the 
basic act with certain new non-essential elements. As a result, their adoption should fall under 
the  procedure  of  delegated  acts  (Article  290  TFEU)  (see  declaration  in  the  Annex  to  this 
Communication). 

Reconsideration  of  permits.  The  Council's  position  at  first  reading  maintains  the  proposed 
obligation  for  competent  authorities  to  reconsider  and,  where  necessary,  update  permit 
conditions  after  the  publication  of  a  decision  on  BAT  conclusions.  However,  the  Council's 
position at first reading extends the time period from four to five years after such publication. 
The Commission regrets this change but can accept it since the time extension is limited and 
the actual frequency of permit reconsideration will remain unchanged.  

Soil  protection.  The  Council's  position  at  first  reading  contains  additional  requirements  on 
the prevention of soil and groundwater contamination to be included in permit conditions. The 
approach  of  setting  minimum  frequencies  for  the  monitoring  of  soil  and  groundwater  is 
retained  but  less  frequent  monitoring  may  be  set  by  competent  authorities  based  on  a 
systematic  appraisal  of  the  risk  of  contamination.  The  Council's  position  at  first  reading 
maintains the provisions relating to the establishment of baseline reports and the requirements 
upon  cessation  of  activities  while  introducing  some  flexibility  for  implementation  of  the 
provisions.  While  the  Commission  would  prefer  its  original  proposal,  the  changes  are 
considered acceptable since they do not jeopardise the key principles of the proposal.  

Inspections. The Council's position at first reading retains the approach of the proposal with 
the  following  main  changes.  The  determination  of  the  period  between  two  site  visits  to  an 

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installation has to be set on the basis of a systematic appraisal of the environmental risks (in 
the proposal, the appraisal of the risks was required only to derogate from the obligation of an 
annual site visit). This period cannot be longer than one or three years for installations posing 
respectively the highest and the lowest risks. The Commission considers that this requirement 
is  useful  as  it  provides  safeguards  for  the  setting  of  frequency  for  site  visits.  Although  the 
Commission regrets the removal of the regulatory committee procedure for setting the criteria 
on the appraisal of the risks, it considers that the criteria laid down in the Council's position at 
first reading are appropriate. 

Start date for new large combustion plants. The Council's position at first reading brings 
forward the date of application of the standards for new large combustion plants from 2016 to 
two years after the date of entry into force of the Directive. The Commission agrees with this 
date since the new standards have been considered BAT for new plants since 2006 and these 
plants can technically and economically comply with these new limits.  

Temporary flexibilities for existing large combustion plants. The Council's position at first 
reading introduces the following temporary flexibilities: 

–  While the date of entry into effect of the revised emission limit values remains 1 January 
2016, Member States may implement until the end of 2020 a transitional national plan on 
condition that the total emissions of the plants covered by the plan do not exceed annual 
ceilings  decreasing  in  a  straight  line  between  2016  and  2019.  From  2019  the  ceiling 
remains the same until the end of 2020. 

–  Possible  exemption  from  compliance  with  the  revised  emission  limit  values  for  the 
following types of plants: until the end of 2023, for plants with a limited lifetime (not more 
than 20 000 operating hours); until the end of 2019, for plants being part of small isolated 
systems;  until  the  end  of  2023,  for  district  heating  plants  fulfilling  certain  specific 
conditions.  

While the Commission would prefer these derogations not to be included, it can accept these 
provisions  introduced  to  reach  an  agreement  since  the  derogations  are  transitional  and  the 
environmental integrity of the proposal is maintained while facilitating Member States’ efforts 
to bring large combustion plants into line with BAT as soon as possible. 

Specific requirements for certain large combustion plants. The Council's position at first 
reading  lays  down  different  emission  limit  values  for  plants  operating  a  limited  number  of 
hours  (not  more  than  1 500  hours  annually)  and  introduces  minimum  desulphurisation  rates 
for plants which are not able to meet the emission limit values for SO2, even when BAT is 
applied,  due  to  the  specific  characteristic  of  the  indigenous  solid  fuels  being  used.  The 
Commission  considers  that  these  provisions  are  useful  and  justified  to  address  the  specific 
technical issues raised while maintaining the environmental integrity of the proposal.  

Aggregation rules for combustion plants. The Council's position at first reading introduces 
a ‘de minimis’ threshold of 15 MW for the application of the aggregation rules. As a result, 
small  individual  units  will  be  excluded  from  the  determination  of  the  total  capacity  of  a 
combustion  plant  composed  of  several  units  discharging  through  a  common  stack.  The 
Commission  regrets  that  the  Council  is  thus  weakening  the  application  of  the  aggregation 
rules but can accept a ‘de minimis’ threshold of 15 MW since it would concern small plants 
with limited environmental impacts.  

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Review clause for certain large combustion plants. The Council's position at first reading 
introduces a clause for the Commission to review the need to amend and establish limit values 
for  certain  specific  combustion  plants  which  are  not  subject  to  minimum  standards  or  for 
which  the  minimum  requirements  of  the  current  legislation  could  not  be  revised  due  to  the 
lack of updated information on BAT and, if appropriate, to make a legislative proposal by the 
end of 2013. The Commission supports this review clause since the outcome of the revision of 
the  relevant  BAT  reference  documents  could  be  taken  into  account  as  part  of  the  review 
process.  

Scope. The Commission proposed to extend the scope of the current legislation in relation to 
certain  activities.  The  Council's  position  at  first  reading  does  not  include  the  proposed 
extension  in  relation  to  the  combustion  of  fuels  in  installations  with  a  total  thermal  input 
between  20  and  50  MW  and  to  intensive  livestock  rearing.  Furthermore,  the  Council's 
position  at  first  reading  modifies  the  proposed  scope  with  regard  to  waste  management 
activities and the manufacturing of ceramic products. The Council's position at first reading 
also  removes  the  proposed  requirement  for  the  spreading  of  manure  to  be  based  on  BAT. 
While the Commission would prefer its original proposal for the extension of the scope and its 
proposed  provision  on  manure  management,  the  changes  are  acceptable  in  view  of  the 
introduction of a review clause on these specific issues.  

Trading  in  NOx  and  SO2  emissions.  The  Council's  position  at  first  reading  introduces  a 
recital on the exploration of the possibilities for market-based instruments such as trading in 
NOx and SO2 emissions. This reflects the assessment being undertaken by the Commission 
without prejudging its outcome. 

Exercise  of  the  delegation  and  objection  to  delegated  acts  (Articles  76  and  78).  In  line 
with  its  Communication  on  the  implementation  of  Article  290  TFEU1  and  based  on  the 
analysis of the specific measures foreseen in the Council position, and given also the right of 
revocation foreseen in the Presidency text, the Commission favours the delegation of powers 
for an indeterminate period of time but can accept the approach of the Council (5-year period 
with  tacit  renewal).  Furthermore,  the  Commission  regrets  that  the  Council's  position  at  first 
reading introduces a time limit of three months for the Council and the European Parliament 
to object to the delegated act. The Commission favours a time limit of two months which can 
be extended by one month on the initiative of the European Parliament or the Council. This 
would help to increase the efficiency of the procedures without undermining the principle of a 
total period of three months. 

Consultation  of  experts  in  the  preparatory  work  for  the  adoption  of  delegated  acts 
(Recital 39).  

The Commission does not support the recital on the consultation of experts in the preparatory 
phase of delegated acts. The Commission considers that expert groups cannot have a formal 
institutional  role.  Therefore  provisions  as  regards  the  involvement  of  experts  in  the 
preparation  of  delegated  acts  cannot  be  included  in  the  basic  acts.  In  this  regard  the 
Commission refers to its Communication of 9 December 2009. 

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4. 

CONCLUSION 

The  changes  introduced  by  the  Council  are  acceptable,  since  they  are  consistent  and  build 
upon the Commission's proposal, except certain assessments made by the Council regarding 
the  conferral  of  powers  on  the  Commission,  as  provided  by  Articles  290  and  291  (TFEU). 
Thus,  the  Commission  objects  to  the  Council's  position  at  first  reading  which  was  adopted 
unanimously on 15 February 2010. 

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Commission declaration in relation to correlation tables 

ANNEX 

The Commission recalls its position concerning the creation by Member States of correlation 
tables  linking  the  transposition  measures  taken by  the  Member  States  with  the  Directive,  in 
the interest of citizens, better regulation and transparency and to assist the examination of the 
conformity of national rules with Community provisions. 

In this instance, the Commission does not stand in the way of an agreement at Council with a 
view to the successful conclusion of the inter-institutional procedure on this file and in light of 
the ongoing horizontal discussions on this matter between the institutions. 

Commission declaration in relation to Article 13(3)(c) and (d) 

The Commission is of the view that the adoption by it of non binding guidance should not be 
subject to comitology since the Commission has its own autonomous right under the Treaty to 
do so. 

Thus, the Commission considers that the provision in Article 13(3)(c) and (d) for guidance to 
be adopted by regulatory procedure cannot affect this right. 

Commission  declaration  in  relation  to  assessment  of  powers  to  be  conferred  on  the 
Commission with respect to Articles 13(5), 41 and 48(5) 

The Commission does not share the views of the Council that Article 291 TFEU is the most 
appropriate  legal  basis  for  the  adoption  of  the  measures  foreseen  in  Articles  13  (5),  41  and 
48(5).  Those  measures  are  of  general  application  and seek  to  supplement  the  basic  act  with 
certain new non-essential elements. As a result, their adoption should fall under the procedure 
of delegated acts (Article 290 TFEU). 

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