Notification pursuant to Article 114, paragraph 4 of the Treaty on the Functioning of the European Union — National measures which are more stringent than provisions of an EU harmonisation measure (Text with EEA relevance) 2020/C 42/02
Date: 2020-02-07
Institutions: Directorate-General for Energy, European Commission
Subjects: Germany, application of EU law, boiler, ecodesign, environmental protection, hard energy, harmonisation of standards, market approval, national law, reduction of gas emissions








C_2020042EN.01000201.xml










7.2.2020   


EN


Official Journal of the European Union


C 42/2






Notification pursuant to Article 114, paragraph 4 of the Treaty on the Functioning of the European Union — National measures which are more stringent than provisions of an EU harmonisation measure
(Text with EEA relevance)
(2020/C 42/02)

(1)   
By letter of 29 November 2019, which reached the Commission on 29 November 2019, Germany notified the Commission of its wish to maintain national provisions for solid fuel boilers. The national provision concerned the following points:






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Point (1) of section 5 of the German Regulation on small and medium-sized combustion units [Verordnung über kleine und mittlere Feuerungsanlagen] of 26 January 2010, (thereafter the ‘1st BImSchV’) which sets emission limit values for particulate matter. It differs from the values and measurement methodology applicable from 1 January 2020 pursuant to Commission Regulation (EU) 2015/1189 of 28 April 2015 implementing Directive 2009/125/EC of the European Parliament and of the Council with regard to ecodesign requirements for solid fuel boilers (‘Regulation (EU) 2015/1189’) (1).










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Point (1) of section 4 of the ‘1st BImSchV’, in conjunction with section 3, which provides an exhaustive list of fuels that may be used in firing installations. Regulation (EU) 2015/1189 does not contain such an exhaustive list.










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Point (4) of section 5 of the ‘1st BImSchV’ requiring hot water storage tanks to be provided with solid fuel boilers. Regulation (EU) 2015/1189 does not contain such a requirement.










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Section 14 and point (1) of section 15 of the ‘1st BImSchV’ related to the monitoring of new and significantly modified combustion units. Regulation (EU) 2015/1189 imposes requirements at the time of placing solid fuel boilers on the market and does not contain provisions for their further monitoring.






(2)   
Harmonised rules for ecodesign requirements for solid fuel boilers are set in Commission Regulation (EU) 2015/1189 implementing Directive 2009/125/EC of the European Parliament and of the Council of 21 October 2009 establishing a framework for the setting of ecodesign requirements for energy-related products.
Directive 2009/125/EC provides for the setting of requirements which the energy-related products covered by implementing measures must fulfil in order to be placed on the market and/or put into service. It contributes to sustainable development by increasing energy efficiency and the level of protection of the environment, while at the same time increasing the security of the energy supply. The Directive is based on Article 95 of the Treaty establishing the European Community (now Article 114 of the Treaty on the Functioning of the European Union — TFEU).
The Directive sets out in Article 6, paragraph 1, that Member States shall not prohibit, restrict or impede the placing on the market and/or putting into service, within their territories, of a product that complies with all the relevant provisions of the applicable implementing measure and bears the CE marking on grounds of ecodesign requirements relating to those ecodesign parameters referred to in Annex I, Part 1 of the said Directive which are covered by the applicable implementing measure.
The purpose of Commission Regulation (EU) 2015/1189 is the setting of eco-design requirements for solid fuel boilers, including limit values for the emission of particulate matter. The combined effect of the ecodesign requirements set out in that Commission Regulation and Commission Delegated Regulation (EU) 2015/1187 of 27 April 2015 supplementing Directive 2010/30/EU of the European Parliament and of the Council with regard to energy labelling of solid fuel boilers and packages of a solid fuel boiler, supplementary heaters, temperature controls and solar devices (2) is estimated to result by 2030 in a reduction of 10 kilotonnes of annual emissions of particulate matter.
For solid fuel boilers with a rated output of 500 kilowatts or less, Commission Regulation (EU) 2015/1189 stipulates that from 1 January 2020, seasonal space heating emissions of particulate matter shall not be higher than 40 mg/m3 for automatically stoked boilers and not be higher than 60 mg/m3 for manually stoked boilers, standardised to a dry flue gas basis at 10 % oxygen and standard conditions at 0 °C and 1 013 millibar.


(3)   

The 1st BImSchV entered into force on 22 March 2010 and applies to small and medium-sized combustion units, including solid fuel boilers with a rated output of 500 kilowatts or less. It provides that the emission of particulate matter at full load, for combustion units for solid fuels with a nominal heat output of 4 kilowatts or more, shall not exceed, for units constructed after 31 December 2014, 20 mg/m3, standardised to an oxygen volume content of 13 %.



(4)   
Germany considers that existing national provisions are more stringent than those of Commission Regulation (EU) 2015/1189 and that their maintenance is justified both by major needs within the meaning of Article 36 TFEU, in particular the protection of human health, and by the protection of the environment.
Germany points out that the reduction of the level of ambition set out by the 1st BImSchV would threaten air quality in Germany, contradicting the objective of improving the environmental performance of solid fuel boilers.
The deterioration of air quality would be contrary to Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (3) which requires Member States pursuant to Article 12 to maintain the levels of particulate matter below the limit values and to endeavour to preserve the best ambient air quality, compatible with sustainable development.
Germany also emphasizes that applying the limits set in Commission Regulation (EU) 2015/1189 in relation to the emission of particulate matter would also jeopardise its ability to fulfil its obligations under Directive (EU) 2016/2284 of the European Parliament and of the Council of 14 December 2016 on the reduction of national emissions of certain atmospheric pollutants, amending Directive 2003/35/EC and repealing Directive 2001/81/EC (4).
Germany considers that the existing level of protection of health and life of humans, animals and plants within the meaning of Article 36 TFEU cannot be maintained in the Federal Republic of Germany when applying the requirements of Commission Regulation (EU) 2015/1189.


(5)   

The Commission will process the German notification in accordance with Article 114(4) and (6) TFEU. Article 114(4) provides that if, after the adoption of an EU harmonisation measure, a Member State wishes to maintain its more stringent national provisions on grounds of major needs referred to in Article 36 TFEU or relating to the protection of the environment or the working environment, it shall notify them to the Commission indicating the reasons for maintaining them. Following the notification of the German provisions the Commission has 6 months to approve or reject them. In this period the Commission will verify whether the German provisions can be considered measures existing prior to harmonisation and derogating from the harmonisation rules. In the affirmative, the Commission will check if their maintenance is justified on grounds of major needs referred to in Article 36 TFEU or relating to the protection of the environment, whether or not they constitute a means of arbitrary discrimination or a disguised restriction on trade and whether or not they create an unnecessary and disproportionate obstacle to the functioning of the internal market.



(6)   

Any party who wishes to provide comments on this notification must send them to the Commission within 30 days from the publication of this notice. Any comment submitted after this period will not be taken into account.



(7)   
Further details about the German notification can be obtained from:
European Commission
Directorate-General for Energy
DG ENER — Unit C4 Energy Efficiency: Buildings and products
Tel. +32 22983831
Email: ENER-C4-SECRETARIAT@ec.europa.eu



(1)  OJ L 193, 21.7.2015, p. 100.

(2)  OJ L 193, 21.7.2015, p. 43.

(3)  OJ L 152, 11.6.2008, p. 1.

(4)  OJ L 344, 17.12.2016, p. 1.